President Bush says it's legal to spy on American citizens with possible terror ties. The Senate wants to know if his Supreme Court nominee agrees.
Lawmakers will get their chance next Monday when appeals court judge Samuel Alito's confirmation hearing begins. The top Republican and Democrat on the Senate Judiciary Committee have both said they will ask Alito about the Bush administration's now-outed domestic surveillance program.
Watch gavel-to-gavel, streaming live video of the Senate Judiciary Committee hearing on FOXNews.com.
Whether Alito answers the questions is less clear as the issue could wind up before the Supreme Court he hopes to join. But a 1984 document he wrote may shed some light about where Alito stands, and that makes the topic fair game for questioning.
The memo was written to Alito's then-boss, Solicitor General Rex Lee, who asked Alito for advice on how the Department of Justice should argue a case going up to the Supreme Court.
The case was against former Attorney General John Mitchell. The plaintiff in the case, an American citizen, wanted money from Mitchell, who had approved a secret warantless tap of the plaintiff's phone.
Alito argued the attorney general should be immune from such lawsuits, a position that was shared by even left-leaning Justice John Paul Stevens, but one that has some Democrats arguing Alito may be too deferential to the executive branch.
"These are going to be very, very serious questions that are asked of Judge Alito about executive power and when he thinks it should be checked," said Sen. Charles Schumer, D-N.Y., a member of the Senate Judiciary Committee.
Alito's supporters say the memo is irrelevant to the issue since it doesn't reflect his views on whether such wiretaps are appropriate but instead addresses when executive branch officials can be sued for monetary damages.
"Fifty-four percent of the American people support the Alito nomination. That's exactly where the Roberts nomination was at this point. He's an outstanding nominee. We expect him to do extremely well in the hearings," said Sen. Mitch McConnell, R-Ky.
Alito is already being prepped on these issues by various top attorneys. One source who participated told FOX News that Alito is excelling, that he knows every case, is self-deprecating and likeable and is "the good kind of nerdy."
FOX News' Megyn Kendall contributed to this report.