Vice president Gore says the NSA spying controversy occasions a constitutional crisis because the President is acting flatly inconsistent with a federal statute, the Foreign Intelligence Surveillance Act (FISA). That's certainly true, if you believe, as I do, that the administration is wrong in arguing that the Authorization to Use Military Force (AUMF) that Congress enacted did not impliedly repeal or otherwise displace the FISA warrant requirements. The President's only authority would then be his assertion of an exclusive power as commander-in-chief in this area. Even the President's supporters must acknowledge that, at a minimum, it's an open question whether that's right. But Vice President Gore also usefully turned attention away from whether the President acted unlawfully to what can be done about it if he did. He makes a variety of recommendations, including the appointment of an independent counsel (IC).
In my view, relying on an IC wrongly frames the issue as if it concerns a kind of venal criminality as opposed to a potentially dangerous assertion of unchecked executive power. But whether you agree with that or not, it must be said that the independent counsel is unlikely to be appointed. And even if one was, suppose he agreed with the President's constitutional view and declined to prosecute. Should that single person's judgment count as a conclusive determination of the merits of such a fundamental issue of separation of powers?
So what is a solution? One possibility is to pass a new statute making clear that the AUMF did not displace FISA. But that just sets up the President to veto it, or to sign it with one of his now customary signing statemetns.
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. The Court's unlikely to confer standing to the current plaintiffs in the absence of a statute granting it on the basis of speculative claim of chill. But it's much more likely to do so if Congress has given them a statutory right to sue.
Would a statute conferring such standing be constitutional? The court has suggested that Article III's case or controversy requirement may prohibit Congress form conferring standing on any citizen to assert that the government is not following the law, but it has not gone so far as to say that Congress may not identify a more discrete injury - here chilling activity by a specified class -- and confer statutory standing upon them. I doubt it would go that far.
Would such a statute have a chance of being enacted? Such a statute might have real political appeal and thus actually get passed. It avoids members of Congress having to re-affirm FISA in all its particulars, and it avoids them having to modify FISA in light of new circumstances when they are not being told about what the administration is currently doing. Moreover, if the ultimate issue is whether the President has the lawful power to do what he is doing, why not make sure that the Supreme Court has a chance to set forth its view on that question? The administration might still resist such a statute, but I think it puts it in an awkward position. It's one thing to claim that a congressional prohibition is unconstitutional. It's another thing entirely to argue that the Supreme Court should not be permitted to decide whether that's right.
To be sure, this approach has a court-centric orientation, and that's no longer in vogue. But for my part, it's well past time the Court weighed in on the President's assertion of unprecedent commander-in-chief powers. Congress has recently done its part to limit the Court's power to review the scope of his authority through Senator Graham's bill restricting habeas on Guantanomo. But Senator Graham has himself raised real concerns about the President's actions in connection with the NSA. Now it's time for he and his fellow members of Congress to give the Court a chance to say what the law is.