Unwarranted Surveillance and Standing

by Seth Weinberger

Over at the Exploring International Law blog, run by Anthony Arend (a former professor of mine at Georgetown), is an excellent post on the question of how any suits regarding warrantless NSA surveillance might reach the courts. I’m sure my colleagues here at Opinio Juris are much more qualified and capable of addressing this question than am I, but from a political perspective, it seems that this is a important issue. While Julian and I may disagree as to the legality of the spying, I do tend to agree with Tony that it’s very unlikely that this will be decided in the courts soon (although the New York Times reports that several men accused of ties to al Qaeda will challenge the legality of the surveillance) . Rather, it will take a political confrontation between Congress and the administration to settle whether or not the president does indeed have sufficient authority to conduct such a surveillance campaign without the explicit authorization from Congress.

I am no conspiracy theorist. I do not think that Bush and Cheney cooked up this scheme to seize power and spy on average everyday Americans or to subvert this country into their own private fiefdom. However, I do believe in the limitation of the power of government. And in this “war” in particular, specifically one that has no metrics for victory and no imaginable end, it seems that we need to be especially careful when we give the president unusual powers to conduct secret operations on American soil. It is hard to envision feckless congressmen mustering the political courage to challenge the president on this in the face of charges like “unpatriotic” and “soft on terror.” This is why, in my mind, it is so important to keep the domestic use of executive power on a tight legislative leash.


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