an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
The New York Times editorial is silly and misguided.
You *did* say it better yourself here: http://balkin.blogspot.com/2006/03/schumer-nsa-bill-and-feingold-censure.html .
The New York Times is quick to say: "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."
"Could" and "would"--yes, it'd be nice. Unlike you (and the Anonymous Liberal, and others), The Times fails to mention in its avid support for Schumer’s bill that the chance of it becoming law is tiny, since even if the bill managed to fight the partisan tides in Congress, the President would veto it.
The Times says in apparent reference to different pieces of legislation aimed at “reining in” the surveillance program: "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."
Is this a serious editorial? The Times concedes that Bush would ignore “strong legislation” that tries to rein in the surveillance program. It then advocates the pursuit of legislation that would be much harsher on Bush.
The Schumer bill will not resolve the wiretap debate.
More importantly, it won’t settle the federal power-struggle that the wiretap debate encapsulates. Schumer’s bill won’t help reanimate Congress.
The sad reality is that by failing to act sooner, Congress already abdicated its constitutional role in governing. The best way to get a Supreme Court judgment on Executive powers does not involve Congress. Individual states should bring the matter to the federal courts.
As The Anonymous Liberal points out, Sean Maloney, who is a candidate for New York State Attorney General, is pebbling a much smoother path to a Supreme Court ruling (see: http://seanmaloney.com/globals/docs/NSA_Complaint.pdf)
The New York Times would have done the public a much greater service if it had written an editorial supporting Maloney’s effort, rather than Schumer’s effort.
The above poster has a point. Even if the bill passed, Congress seems hamstrung and the Court is now effectively stacked in Bush's favor. I don't see how this bill, however noble, can possibly change anything. Perhaps this administration has simply pointed out a gap in our system of checks and balances. Perhaps in the future, we should draft legislation that will more firmly limit executive overreach.
I've often joked that the reason Bush is still in power is because, whenever he is accused of wrongdoing, he just looks at the media and says "Yeah? So?" And people don't know how to respond to that.