What Can Be Done About the NSA Dispute?

Marty Lederman

As most of you probably already know by now, former Vice President Gore delivered a powerful speech on Monday inveighing against the Administration's assertions of unchecked Executive power. And today, the Department of Justice responded to its critics (yours truly included) with a 42-page single-spaced legal defense of the NSA program.

So the battle lines are drawn. What's the next move for those, especially in Congress, who think the NSA program is unlawful?

The first of VP Gore's proposals for dealing with the problem is appointment of a Special Counsel.

Three weeks ago, I wrote here that because the dispute is almost entirely over the proper understanding of the law, it appears that the legal predicate for appointing a Special Counsel cannot be met, and that, in any event, such a Counsel would not be empowered to disagree with the legal judgment reached by the President and Attorney General as to the legality of the NSA program. Since then, friends who know more about such things than I do have just about convinced me that I was probably wrong -- that a Special Counsel could be appointed, and could be empowered to reach an independent legal judgment about the legality of the program.

I won't rehearse those arguments here, however, because they're beside the point: The AG is not going to appoint a Special Counsel with a mandate to review the AG's understandings of the AUMF and Article II; and even if there were a Special Counsel, and even if that Counsel concluded that the NSA program is unlawful, so what? At that point, you'd simply have one lawyer agreeing with a majority of Congress, and disagreeing with the AG. Which would accomplish not much of anything -- no more than if the Special Counsel concluded that the AG was correct on the law. In either case, we'd still be fighting about the merits, and the Administration would still be sticking to its guns. [See the comments below for why a criminal proceeding is virtually unthinkable.]

So, what to do? Even if Congress kicks and screams during next month's hearings -- even if it passes another statute saying "FISA -- WE MEAN IT!" -- the President will continue with business as usual.

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, particularly if the plaintiffs could sue for injunctive as well as declaratory relief.

Of course, the President could veto such a bill conferring standing to challenge his program. 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.

Check out his post over on LawCulture. (David discusses the question of Article III standing, too. Comments welcome here on how such a statute could be drafted to best avoid possible Article III hurdles.)
Posted 12:20 AM by Marty Lederman [link]