As Glenn, DCLaw1 and others have said, it's going to be up to congress to resolve this, if it can be resolved. Congress doesn't need to demonstrate "standing", because it has inherent oversight powers granted to it by the constitution that it has every right and duty to employ when there are valid grounds for oversight. And, since the administration has itself admitted to having spied without warrants, such oversight is fully warranted and in fact obligatory.

So the administration can't protect itself on standing if congress compels it to reveal the details of this program, as congress has both inherent and specific "standing" to "sue". And, should it try to protect itself from having to divulge information on this program with a states secrets approach, it should similarly find itself walking on very shaky legal ground since it has, of course, already admitted to violating FISA and thus the law.

It shouldn't even be necessary for congress to demonstrate that this program was used to spy on people who had nothing to do with terrorism, as that would merely be another crime on top of the fundamental crime of spying on ANYONE, even Osama's brother, without a warrant. For this program to have been used even ONCE without a proper warrant makes it inherently illegal, even if the target was one whom FISA would surely have issued a warrant to spy on.

Of course, it's all but certain that this program HAS been used to spy on the sorts of people whom FISA would likely not have issued a warrant to spy on, which is almost certainly why the administration has chosen to bypass FISA. But that's almost a secondary point, or, at best, an additional charge to bring against the administration once the specifics of who has been spied on emerge (if the do emerge). But the major charge, I believe, is the one having to do with this program's INHERENT illegality, and that is the charge that I think congress would have the strongest legal leg to stand on in the courts.

Which is why the administration will almost certainly pursue a defense based on procedural maneuvers and obstructing justice through its control on the DoJ, and not an actual legal and constitutional defense of this program, which would by far be its weakest possible defense, as Glenn and others have amply demonstrated. And thus it comes down to how smart and tough and determined (and perhaps lucky) congress proves to be in overcoming the various procedural and obstructionist obstacles that the administration will throw in its path.

E.g., what will congress do when the current DC USA, Bushie Jeff Taylor, either refuses to enforce these and other subpoenas, or does so with deliberate slowness and ineffectiveness? Will it hold him in contempt and/or ask the chief judge of the DC District court, Thomas Hogan, to name his replacement when his interim term ends mid-October as per the recently enacted S.214? Will Hogan accede to congress's request, and if so name a competent and ethical replacement? And will this new USA attempt to enforce these subpoenas aggressively, and/or will the DoJ prevent him from doing so. And will congress hold the DoJ in contempt if it obstructs? And how much time will this eat up before it gets to the stage where we get to the actual underlying merits of congress's case against this program, assuming it ever gets there?

It's clearly going to be rough going for Leahy & Conyers & Co., and I hope that they've begun to beef up their legal and political staff in preparation for the many procedural and political battles to come. I happen to believe that they can ultimately prevail, even if the odds appear to be against them, but that it's going to take some incredible legal and political maneuvering on their part, some serious errors by the administration, and the cooperation of the courts, for that to happen. But I wouldn't count it out.

However, the beauty of congress's going after the administration this way is that even if the latter is able to successfully (from a purely technical perspective) stonewall congress, it will just make bringing new, secondary and even more powerful charges of contempt and obstruction of justice against them, and perhaps even impeachment. And either can and likely will help Dems politically in '08. This can be a win-win-win for congress IF it goes about this properly. And, frankly, it has no choice BUT to pursue this properly, from both a principled and political point of view. Congress represents our biggest chance against BushCo, and it MUST do this.