Schumer's Praiseworthy Punt


An editorial in yesterday's Times reminds me that I'd meant to blog a bill introduced by Chuck Schumer that would give a clear legal cause of action to anyone whose speech has been curtailed as a result of a reasonable fear that they (or their interlocutors) might be targeted by the National Security Agency's warrantless wiretap program. (The ACLU has already filed such a suit on behalf of various journalists and academics, but it was unclear whether they'd be found to have standing, since none of the plaintiffs can know for sure that they've been targeted.)

The top legal scholars not actively employed by the Bush administration seem mostly to agree that the wiretap program plainly broke the law. But a proposal to even censure the president for this sends Democrats scurrying, and polls suggest a slim majority of the public is all too happy to be tapped. Since the program's secret, that will mean that the government can get away with breaking the law so long as it's politically popular unless the courts have some hook to grab on to. While I'm not holding my breath for its passage, the Schumer bill would at least let legislators hand off the problem to the courts, who are more likely to make the right decision, without opening themselves to charges they're "soft on terrorism." In fact, supporters can turn it around: If you're sure this program's legal, why not let the courts vindicate you?

Addendum: It'd be good to get this moving soon, since apparently Attorney General Alberto Gonzales won't rule out tapping totally domestic conversations as part of the president's "inherent authority." Which is funny, because I'm pretty sure that the Supreme Court already ruled it out.