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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, April 05, 2006

NSA endgame

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By Anonymous Liberal
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As I've said said before, I think Senator Feingold's censure resolution is an entirely reasonable and justified response to the flouting of a criminal statute by a sitting president. I also think that if Democratic politicians could muster the courage to stand together on this, the resolution could be good politics as well. That said, I've come to the same conclusion as Marty Lederman: "The only way for Congress to prevail in this important was powers standoff is if the Supreme Court declares the President's conduct unlawful."

In theory, Congress could re-assert its powers by making life very difficult for the president. It could threaten impeachment. It could hold the executive branch hostage by withholding funding for key initiatives. But there's simply no way that Congress is going to take these measures, even if by some miracle the Democrats manage to take back both chambers of Congress in November. Such extreme measures are simply too politically risky. The potential for blowback is too large, particularly when it comes to national security related issues.

Realistically, only a major judicial ruling--a modern day Youngstown--can restore the proper constitutional balance. For that reason, opponents of Bush's warrantless surveillance (and his Article II theories generally) must pursue a political and legal strategy designed to maximize the odds of the Court weighing in on this issue.

There are already several legal challenges underway. The lawsuit filed by the ACLU (on behalf of such plaintiffs as Christopher Hitchens and Larry Diamond) has some potential, but the plaintiffs must first establish that they have standing to sue, which will not be easy. Another legal challenge has been filed by lawyers for the al-Haramain Islamic Foundation claiming that the director of the organization was a target of the NSA's warrantless surveillance. This challenge has a better claim to legal standing, at least in theory, but its success will largely depend on the factual details of whatever surveillance actually took place.

For those of you who are unfamiliar with the concept of legal standing, the "case or controversy" clause of Article III of the Constitution has been interpreted to bar federal courts from issuing "advisory opinions." The courts will only hear genuine disputes between litigants with a personal stake in the outcome. This has come to be known as Article III standing. In order to proceed to the merits of a case, a plaintiff must first establish, as a threshold matter, that he has 1) suffered an "injury in fact," 2) that this injury is fairly traceable to the defendant's conduct, and 3) that a favorable decision by the court would redress this injury (for a primer on standing doctrine, see this). Standing doctrine is notoriously convoluted, and as a practical matter, judges tend to find standing exists when they want to address the merits of a case and find it lacking when they don't. Nevertheless, standing poses a major obstacle for any would-be challengers of the NSA program.

There are, however, a few proposals on the table that are potentially helpful in this regard. The first is a piece of proposed legislation by Chuck Schumer that would attempt to provide statutory standing for litigants (like Hitchens, Diamond, etc.) who claim that the NSA program has had a chilling effect on the exercise of their professional and constitutional rights. For a discussion of this bill, see this excellent post by Marty Lederman. The goal of Schumer's bill is to facilitate adjudication of the merits of suits like the one filed by the ACLU. While such a law would not guarantee that a court would find standing to exist, it would make such a ruling much more likely.

The problem, as Marty concedes, is that Schumer's bill stands virtually zero chance of becoming law. Even if Schumer could get enough Republicans to join him--which is unlikely to begin with--the bill would likely be vetoed. As a political matter, though, the bill would at least call the administration's bluff and make it crystal clear that they have no confidence whatsoever in the strength of their legal arguments. But then again, that's pretty clear already.

The other interesting avenue of legal challenge is the one proposed by Sean Patrick Maloney, a candidate for Attorney General in New York. Maloney, with the assistance of some other good lawyers, has actually drafted a complaint that could be used by any number of state Attorneys General to challenge the legality of the NSA program. The complaint alleges--among other things--that the NSA program violates a New York state law that forbids eavesdropping except as authorized by relevant state and federal laws. Many other states have similar laws. Determining whether the NSA program violates these laws would require a judge to determine whether or not the President acted within his constitutional power in authorizing the program. This sort of lawsuit may be less vulnerable to standing challenges than one filed by a private party.

Looming over all these legal challenges, however, is the possibility that new legislation will render the issues moot. If either the DeWine or the Specter bill passes, it will bring the NSA program within the letter of the law. At that point, the ACLU's standing argument--even if buttressed by the Schumer bill--would be seriously undermined. There would no longer be any illegal program causing a "chilling effect" on communications. And the declaratory and injunctive relief sought in that action would no longer make sense. The same is true of Maloney's Attorney General complaint, at least as it is currently drafted.

The passage of the DeWine or Specter bills would not retroactively legalize the surveillance that has already occurred, but it would make it very difficult to construct a viable legal vehicle for challenging the President's Article II theories.

For this reason, I've come to the conclusion that the best strategy for Democrats to pursue is to vigorously oppose any further amendments to FISA, at least until the courts have had a chance to weigh in on this issue. So long as the President claims the inherent authority to disregard FISA, amending FISA is not only a pointless exercise, but it will actually serve to delay or preclude judicial resolution of this constitutional impasse. The Democrats need to give this issue the time to work its way through the courts.

In the meantime, they should be prepared to filibuster any proposed FISA amendments should it be necessary. If the Republicans try to paint them as being obstructionist or opposed to legislation necessary to fight the war on terror, Democrats can simply point to statements like this one:

JIM LEHRER: Is the president willing to work with Congress to settle some of the legal disputes about the NSA surveillance program?

VICE PRESIDENT DICK CHENEY: We believe, Jim, that we have all the legal authority we need.

Similar statements have been made on numerous occasions by Scott McClellan and even the President himself. It will be pretty hard to paint the Democrats as opposing necessary legislation when the administration itself concedes that it is unnecessary. If the administration changes its tune and argues that authorizing legislation is necessary, that in and of itself, will be a significant victory.

What we need to do now, at least in my humble opinion, is buy time. We need to give these legal challenges a chance to proceed without being mooted by new legislation. Schumer's bill should be supported vigorously, even if its prospects for passage are slim. Attorneys General in solidly blue states should be encouraged to consider filing legal challenges similar to the one proposed by Sean Maloney. The more challenges that are filed, the better the chance that at least one of them will reach the merits. And when the administration is finally forced to make its frivolous legal arguments in front of federal judge, it's not going to be pretty.

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