about the latest bush administration surveillance scandal, glenn greenwald notes how the administration is following a familiar pattern:
This theme emerges again and again. We continuously hear that the Bush administration has legal authority to do anything the President orders. Claims that he is acting illegally are just frivolous and the by-product of Bush hatred. And yet, as I detailed here, each and every time the administration has the opportunity to obtain an adjudication of the legality of its conduct from a federal court (which, unbeknownst to the administration, is the branch of our government which has the authority and responsibility to interpret and apply the law), it does everything possible to avoid that adjudication.meanwhile, atrios notes the ridiculousness of the democrat's response to the latest revelation: passing a law that requires the NSA to comply with FISA when there already is a law requiring it to comply with FISA; a law the president claims he is allowed to ignore.
as glenn points out, the problem is not the legislative branches' involvement. on paper they were already involved because of their previous passage of FISA and the national security act. the problem is that the judiciary is not involved. and they are the branch that is deals with lawbreakers. that's why the administration is working so hard to keep the judiciary intervening (and is largely succeeding).
here's what congress can do about it if they really are serious about dealing with the bush administration abuses: they can amend FISA to include a citizen suit provision.
what's a citizen suit provision? generally, a person only has standing to bring a lawsuit alleging a violation of law if they can show they were personally harmed by the violation. so, for example, if i heard about someone who got hit by a drunk driver, i can't sue the drunk driver. i don't have standing. the person who was hit (or his survivors) does.
some environmental laws, however, contain an exception to the normal standing rules, a citizen suit provision. they authorize any citizen of the united states to bring a lawsuit against the federal government to require them to enforce environmental rules. effectively these provisions grant standing to anyone who believes there might be a violation. the logic behind the citizen suit provision is that environmental damage harms all of us, but proving individual harm is virtually impossible to do even when there are egregious violations of the law. to assure that such violations are adjudicated, congress created the right to a citizen suit.
there is an analogous situation with the actions of the NSA. the NSA is spying on a some large group of the american public, but without judicial intervention, we can't find out who exactly the victims are. and the infringement of civil liberties in a sense harms us all, like dirty air does. it seems to me that the same reasons for have citizen suit provisions in environmental legislation exists with regard to enforcement of the FISA regime.
i understand why members of congress could get frustrated with the president's actions when he so blatantly ignores what their own legislation requires. but the solution is not passing more legislation so the president can ignore it. instead, they should pass a citizen suit provision and let the judicial branch assert its own authority on the issue. the president may never sign a citizen suit act, but i would love to see the president use his first veto on a bill that seeks to do nothing more but allow americans to assert their civil rights in court.
