Congressional Options for NSA Warrantless Surveillance

Marty Lederman at Balkanization thinks it may be fruitless to get a special counsel appointed to investigate Bush's warrantless NSA electronic surveillance program. But, he has another possible solution:

My friend David Barron has come up with the simple but ingenious idea that Congress should vote for a statute that would confer statutory standing on certain persons to file a cause of action in federal court seeking declaratory relief that the NSA program is unlawful -- say, for example, persons who have a reasonable basis for claiming that they are chilled by the spying program because their employment regularly requires them to make overseas calls in connection with academic or journalistic work related to the war on terrorism.

That way, the Supreme Court could resolve the question. Of course, the President could veto such a bill. But I think there'd be some chance of an override (see, e.g., the overwhelming majorities for the McCain Amendment); and, in any event, presumably such a veto would be politically dicey.

There's more at David Barron's blog, Law and Culture.

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    Re: Congressional Options for NSA Warrantless Surv (none / 0) (#1)
    by roger on Fri Jan 20, 2006 at 05:32:21 AM EST
    This would be a spineless cave-in. If the Dems do this, I will stop voting completely. Impeachment is the only remedy

    At what point will you people realize that this horse is dead and gone? This is a perfect example of why you will never have anything to offer American voters. Instead of pushing for checks and balances on this necessary intel collection that might actually protect civil rights. Instead you stomp your foot and scream for impeachment, like a 3 year old at the check out line in a grocery store.

    Re: Congressional Options for NSA Warrantless Surv (none / 0) (#3)
    by roger on Fri Jan 20, 2006 at 09:03:39 AM EST
    V, If you are right, then our country is dead and gone, not just the horse. If that's the case, then who cares about some small group of wackos?

    Re: Congressional Options for NSA Warrantless Surv (none / 0) (#4)
    by Slado on Fri Jan 20, 2006 at 09:19:59 AM EST
    Variable is only stating the obvious. Impeachement is an extreme and unrealistic position. Hearings, oversight etc... is making a realistic compromise. Especially when you don't control any portion of government. Impeachement is a pipe dream and to fight tooth and nail for it is a loser politicaly. Just being relistic. I don't think the pres did anything wrong but I'd love to see the dems to waste political capital on this issue.

    Re: Congressional Options for NSA Warrantless Surv (none / 0) (#5)
    by cpinva on Fri Jan 20, 2006 at 10:12:05 AM EST
    i'm not sure why a veto would be "politically dicey"? this is a lame-duck president, why would he possibly care? impeachment is only a realistic option if: a. you are the majority party., or b. you have managed to actually disgust members of your own, majority party, to the point where even they would vote for it. this is a different breed of republicans, not those that "urged" richard nixon to resign, rather than face the certainty of a bi-partisan bill to impeach. the current bunch is so vested in mr. bush's administration, that isn't going to happen. go ahead, make noise now, and put it in the back pocket, for use in this year's mid-terms, and 2008.

    Re: Congressional Options for NSA Warrantless Surv (none / 0) (#6)
    by roger on Fri Jan 20, 2006 at 01:52:21 PM EST
    Impeachment is so far left that Arlen Spector says that he will consider it. Yeah, nothing to see here, move along

    Re: Congressional Options for NSA Warrantless Surv (none / 0) (#7)
    by kdog on Sat Jan 21, 2006 at 10:04:15 AM EST
    Yeah...violating the 4th amnedment can't hold a candle to lying about a bj. Please.

    The NSA/FBI/Pentagon eavesdropping scandals are of a magnitude that - NOTHING ELSE IS AS IMPORTANT! All who care for the future of the U.S.A must put this front and foremost - the implications of this scandal DEFINE EVERY OTHER ISSUE! The justifications Bush uses to break FISA law sets him up to be above All U.S and world law. Every citizen (Congressperson AND constituent) must use every legal method, parliamentary procedure/tactic to stop traffic, manage the debate, sidestep the distractions, and stop all pretense at "business as usual". Close all congressional activity down to focus on the NSA and related SCANDALS! This constitutional crisis is foundational and dealing with it prerequisite to everything else. Nothing else should matter - for example proceeding with any aspect of the Alito confirmation is akin to judge shopping for the administration. Endless debates about words people use, beached whales, and all the other pathetic MSM distraction burns up our time. WE ALL HAVE TO TREAT THE NSA DEAL AS THE SHOW STOPPING, FIST POUNDING, TRAFFIC JAMMING SCANDAL THAT IT IS!!! Damn it anyway... poll at

    Impeachement is an extreme and unrealistic position ... I'd love to see the dems to waste political capital on this issue.
    That sounds suspiciously like nervous bravado to me. And I'm sure I'm not the only one who can see through it. I'd love to see the Dems call your bluff and prove just how wrong you are. What possible "realistic compromise" can there be when the President is redefining the meaning of the Constitution to put himself above the law?