A better solution, I think, would be for Congress to pass a statute that kicks the question to the Supreme Court by amending FISA to confer standing for a declaratory judgment that the NSA program is unlawful. The statute could authorize suits by persons who have a reasonable basis for claiming that they are chilled by the spying program, designating such persons as those whose employment regularly requires them to make overseas calls in connection with academic or journalistic work related to the war on terrorism. Such a statute would significantly help overcome the myriad jurisdictional obstacles that the plaintiffs in the ACLU's suit are likely to face -- obstacles that arise because no one knows if the plainitffs have been wiretapped or not and because the discovery process is itself likely to be a nightmare even if it is permitted to get underway.
Saturday, January 21, 2006
Sue Dubya for illegal wiretapping!
David Barron suggests that the appointment of an independent counsel to investigate Bush's NSA-related high crimes and misdemeanours would not go nearly far enough: