I second psyberdawg's request for more on this. I'm getting an enormous amount of resistance over at Daily Kos, where I do most of my blogging, to the idea that these scandals (both the wiretaps and the USA) could ever be resolved by congress in the courts. The party line there is rapidly coalescing around the idea that the courts will almost surely side with the administration, and that congress therefore is left with two options.

One, inherent contempt, which I know little about and have no idea how it would be enforced. And two, impeachment, which I give next to zero chance of succeeding if attempted at this point, and a high chance of blowing up in Dems' faces if they try (which is why I believe that they won't, and that it's doubly futile to try to convince them otherwise).

I continue to view congress's persuing these scandals in the courts as our best bet, and not as futile as some believe that it is. Sure, there are many potential and likely obstacles, as I've outlined in other comments, and not a few dangers. But it's not a done deal as I see it, and I just don't see any other option being more promising at this point.

Just wondering what you think, as a lawyer, even though I understand that you've never practiced law in that particular jurisdiction--i.e. the DC District and Circuit, and SCOTUS. Is there more reason to believe that the courts will side with congress, or with the administration, even if the former presents the most compelling case possible (and what might that be)? And do the potential benefits outweigh the risks, or vice-versa?

It just occured to me that the ACLU case just vacated by the appeals court is somewhat similar to the recent Ledbetter decision by SCOTUS, which ruled that someone who experience pay discrimination has no more than 180 days to file a complaint--from the date at which the descrimnation began, not the date that they discovered that they were being discriminated against--or else they have no standing to sue (or something to that effect, I don't know the exact legal terminology). So if they found out on day 181, they're SOL.

The similarity I see is that the courts appear to be very narrowly ruling on standing these days. In Ledbetter, even though the plaintiff was clearly wronged, her failure to sue within that 180 day period nullified her otherwise legitimate standing. And even though the ACLU plaintiffs had clearly been affected by the wiretap program since they had to curtail their international calls (which was essential to what they do), their inability to demonstrate specific and direct harm convinced the majority that they had insufficient standing.

Not to belabor this point, as it is somewhat strained, but what I'm getting at is that if this SCOTUS ruled against someone with more tangible standing than these ACLU plaintiffs, then my guess is that chances are that they would rule against them as well, and uphold the appeals court ruling. Funny how the courts often interpret the law narrowly when it benefits their side, but broadly when it doesn't (Bush v. Gore). So much for "strict constructionism", whatever that means.

And now that I've made a complete fool of myself for not knowing the first thing about the law in trying to make a broader point, I will end this exercize in self-mockery... ;-)

I would just add that, although I'm fairly certain that SCOTUS would have upheld the ACLU ruling on insufficient standing grounds, I'm not entirely convinced that they would rule for the administration if standing could be shown by demonstrating that actual harm had been done to them via warrantless wiretaps--with the key word "warrantless". Considering how they've ruled on important constitutional cases that went AGAINST the administration (Hamdan, Rasul & Hamdi, which I'm tempted to refer to as HRH since I refer to it so often these days), I think that it's premature to assume that they'd rule FOR the administration on warrantless wiretap cases IF the standing hurdle could be overcome.

Of course, that's likely a moot point since it's unlikely that enough information about this program will ever emerge except through congressional investigation that would allow any party to do this. But hypothetically, if it did, I wouldn't at all be surprised if SCOTUS ruled against the program. Which, I think, the administration realizes, which is why it's trying so hard to hide the details of this program.

In any case, it's likely going to have to be up to congress to get to the bottom of this, end the program, hold those responsible for it accountable, and fix whatever flaws allowed it to go on for so long. And that will take years. At least we can be fairly certain that the next president will be a lawyer and actually understand the legal issues involved, as opposed to this numb nut of a president, and take the matter with the seriousness that it deserves.