I asked about this in a comment in a diary earlier, but I didn't get any answers... this could be the way out we're looking for that (a) enables Congress to make up for their capitulation on FISA, (b) secures our right to privacy, and (c) returns some semblance of balance back to our government.
Let me preface this by saying that I'm no legal beagle or Constitutional scholar, so this is really more speculation than anything else - let those who are legal beagles (and particularly those who are experts on Constitutional law) correct me if I've got this totally wrong.
The Constitution gives Congress - and Congress alone - the power to define the jurisdiction and makeup of all the Federal courts below the Supreme Court. We find this in Article III, Section 1:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
And also here in Article III, Section 2:
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
I recall the Wingnuts using this back when they had the Congress to try and ram a law through that would have removed from the Federal courts the power to rule on Establishment Clause issues (and effectively gut the Establishment Clause). So there's precedent for the idea that Congress doesn't just handle the Federal court system administratively (i.e. defining district boundaries, setting up appellate courts, etc.) but also ideologically (determining what can and cannot be heard, etc.)
It also seems that the Legislative Branch has this power unilaterally - in other words, that they don't have to get the President to sign off on any changes they make to the Federal courts.
Now one of the things that's stymied legal challenges to the Bush administration's warrantless wiretaps is that the courts have ruled that nobody has standing - they can't prove that they've been wiretapped (because the wiretap records are protected for reasons of national security) and thus can't challenge their wiretaps.
But given that Congress has the power to define unilaterally the jurisdiction of the Federal courts - including, apparently, the power to determine who has standing to challenge things before the Federal courts - am I correct in understanding that it would take nothing other than a simple act of Congress to declare that any American citizen has standing to challenge warrantless wiretaps as unconstitutional?
Again, I'm no Constitutional law scholar, but it seems to me that this should work... if any lawyers are out there who can tell me otherwise, please do. Otherwise - this seems like a way for Congress to start undoing the damage they did with the FISA vote, and it doesn't even require the President's signature. We could be on our way to getting this obviously unconstitutional law stayed and eventually overturned with a simple yea-nay vote from both Houses.
Any thoughts?