I think that first, a lawsuit should be brought against the President or the NSA. I wouldn't want the lawsuit to, for lack of a better word, get anyone in trouble. I would rather it go all the way to the Supreme Court so they may rule if the warrantless wiretaps are legal or illegal. Once we know the current Constitutionality of this according to the court system, Congress could take measures if needed.
If action was needed I believe that Congress should affirm FISA in a new bill. With its passage, they would be in effect denying that they gave the President the power under the declaration of war. Next the Congressional leaders must look at what the constitution said and see where it would need to be changed. Yes, it would be difficult but not impossible to get an amendment passed. This is all assuming that the Supreme Court fully upheld the right to wiretap without the warrant.
To my knowledge the Supreme Court has not ruled on such a case, please anyone correct me if I am wrong on that point. I do not believe that the Constitution gives the President unchecked power and that Congress never gave up there right to oversight on this issue.
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Hmmm . . . you might be on to something. What you are talking about would be a “writ of mandamus” where a court orders another branch of government to perform a specific duty. I would venture to say such writs are very rare in the Federal Government, but there is such a lawsuit going on right now in my city. A private citizen filed suit asking the superior court to order the city commissioners to perform their legal responsibility to govern (they have been essentially filibustering everything lately).
Back to your suggestion, the suit would have to be filed by a private individual or group, it could not be filed by Congress. As I've said, all the Congress can do is either start the impeachment process or cut off funding for the NSA or cut off funding for the War on Terror. None of those alternatives will happen. You would think that the ACLU would have filed such a lawsuit already!
I really do think that a group such as the ACLU could and should bring a lawsuit. And I do agree that cutting off funding would be a very long shot and it most likely would fail to get much (if any) support.
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