At the "zenith of his powers"
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Facing two lawsuits by the biggest civil liberties organizations in the country and a growing legal consensus that the N.S.A. wiretapping was an illegal act, the Justice Department has responded with a bizarre 42 page document attempting to justify the spying. The rationale? That a straightforward 1978 law that requires court warrants for domestic eavesdropping is supereceded by President's right to act "at the zenith of his powers" and that Congress gave the President this right in October 2001, in the heated days after the 9/11 attacks, when it authorized the president to use military force against al Qaeda. Apparently, by "military force" it meant evesdropping and by "al Qaeda" it meant U.S. civilians.
This argument, though, is unlikely to stem the flow of criticism. The New York Times quotes Robert Reinstein, Dean of the law school at Temple University, who said there's a broad consensus among legal scholars and security experts that the eavesdropping program is "a pretty straightforward case where the president is acting illegally."
So what to do about it? Beside the impeachment option, Congress is considering a special counsel investigation. But David Baron has another idea, pass a law allowing people to challenge the wiretapping on the grounds that it has a "chilling affect" on free speech. Here it is in legalese:
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. Of course, the President could veto such a bill. But I think there'd be some chance of an override.
What I like about this idea is that it's immediately proactive. It doesn't preclude a Congressional investiagion or even the beginning of an impeachment inquiry, but it builds by doing something right now, and it forces every Senator and Congressperson to say publicly where they stand on warentless wiretapping of U.S. civilians, in the same way the McCain Ammendment forced them to take a position for or against torture.