New York Times on the Schumer Bill

Marty Lederman

Editorial
Resolving the Wiretap Debate

Congress seems to lack the backbone to stop President Bush from authorizing wiretaps without court orders, and censuring him would probably not do much to make him follow the law. What could make a real difference would be a Supreme Court ruling that found his domestic surveillance program to be illegal.

A recently introduced bill would provide a good way to resolve the matter: putting the National Security Agency's secret spying program on a fast track to Supreme Court review.

Under the bill, which was introduced by Senator Charles Schumer, the New York Democrat, people who suspect that they are being subjected to warrantless electronic surveillance could challenge the spying in court. The bill would give people, like academics and journalists, who communicate regularly with people in places like Afghanistan, Iraq and Pakistan standing to sue if they are refraining from communicating out of fear that the government is illegally listening.

The challenges would begin in a special three-judge court, then go on the fast track to the Supreme Court. Suits against the program have already been filed, but this would put challenges on a firmer legal footing and let them get to the Supreme Court more quickly. The courts are in a better position than Congress to take on this issue. Under its current leadership, Congress has failed to investigate the domestic spying program seriously or to pass the legislation that is needed to rein it in.

Even if Congress did pass strong legislation, there is a good chance that President Bush, who has a sweeping — and unjustified — view of presidential power, would ignore it. If the Supreme Court told him to stop breaking the law, however, it would be difficult for him to defy its order.

It is hard to say for certain how the Supreme Court would rule, particularly since it has two new members. But it has had a good record recently of interceding when the Bush administration has gone too far in the war on terror, and it showed appropriate skepticism last week in oral arguments in another case in this area.

Getting the courts involved would elevate the domestic spying debate from the level at which it has languished in Congress — where defenders of the program have been quick to charge critics with being politically motivated and unpatriotic. A ruling from the Supreme Court would keep the focus where it should be, on the law and the serious civil liberties issues presented by Mr. Bush's domestic espionage.