Talking heads and fellow citizens!

When debating the Scooter commutation, anytime someone wheels out the Clinton-Did-It-Too Defense (almost as effective, and half as logical as the Chewbacca Defense), chop their knees out by simply calling them out on the tactic.

Say bluntly, and without reserve, "Everytime a neoconservative can't think of any good reason for another neoconservative's misbehavior, they change the subject to President Clinton. Why stop there, though? If we're exploring the past, why don't we talk about how Bush Sr. pardoned people directly involved in the Iran-Contra scandal, or how Gerald Ford pardoned Richard Nixon?

"Personally, I find it a bit ironic that you want so badly to emulate President Clinton, but can never quite get it right, and just end up reminding everyone of how much better things were when Clinton was President. In the end, however, this is so obviously not about Democrats and not about Clinton, as much as you wish it were.

"No, instead, this is about nobody other than George Bush, Dick Cheney, and Scooter Libby. It's really quite simple. In commuting Scooter's sentence, Bush rewarded a member of his own administration for helping to obstruct a serious investigation into potential crimes committed by the administration itself, and as a result we may never know what the administration actually did.

"No wonder you want to change the subject. There's just no other way to defend the blatant obstruction of justice that the President is perpetuating as we speak."

Just having fun on a Friday.

Congress can keep pushing for any and all information concerning violations of FISA, inherently defined as conducting eavesdropping activities on US persons on US soil without the necessary court order. Congress must seek specific information as to which particular individuals had been subjected to this eavesdropping, which administratively would simply be a matter of accessing the extensive electronic records that NSA surely keeps of its activities.

Because the congressional requests/subpoenas would be in order to ascertain whether the government had committed felonies, as provided under FISA, Congress would have ample constitutional power as held by the Nixon case to pry the information from the Executive Branch, if the conflict were ever to make it to a court. If the Administration were to refuse to produce such records reflecting the widespread commission of felonies, it would be committing the additional crime of contempt of Congress (though this would also require cooperation of a prosecutor, or at least a congressional resolution of "inherent contempt").

In this way, the Congress essentially outflanks and surrounds the lawlessness of the Executive -- if the Executive does not produce records of its violations of FISA, violations it has admitted committing for all intents and purposes, it is subject to contempt of Congress. If it does yield (or is forced to yield by a court) and produces such records, this information would provide the necessary predicate for any of the targets of the surveillance to sue the government and overcome the standing obstacle. Once a court inevitably finds that FISA has been violated, this in turn will reveal that the Administration has in fact committed felonies, and could eventually form the basis of a prosecution or prosecutions under the FISA criminal provisions.

There are other things Congress and individuals can do, but I'll leave it at that for now.

It seems to me the real problem here is not so much standing as the government using the state secrets privilege to block any investigation into its own wrongdoing.

This is a problem in these types of cases, and has been since the inception of the "states secrets privilege," but in this particular instance the barrier is substantially destroyed by the fact that the government has proudly admitted conducting these types of activities, and said it is nevertheless within its rights to do so.

This fact, of course, has not deterred the government from continuing to argue the state secrets privilege in court, although I think most courts would have less of a problem batting it down with regard to the admitted NSA program than they would with giving standing to a plaintiff who cannot firmly show he or she has been the subject of that program.

Again, as Glenn and others have said, the issue of standing is not inherently about the government being above the law (although it has proven a useful tool to this end). Standing is about ensuring that courts only hear cases of the actually aggrieved. It's the reason our federal courts cannot issue "advisory opinions" on legal questions presented to them by individuals or government entities that want to resolve a question in the abstract, without a particular "case or controversy" being present as required by the Constitution.

I agree with Glenn and the overwhelming majority of legal observers that standing is an essential constitutional and functional limitation on the courts. Though its specific applications are often controversial and sometimes questionable, the doctrine itself is very important to maintaining balance among the branches.