Rivkin and Casey float one at the end of their excellent op-ed on the NSA program in the Journal today:
In short, there is no obviously constitutional and practical means of subjecting NSA’s al Qaeda surveillance program to regular judicial review. Instead, Congress must itself shoulder the responsibility. It might enact a new FISA that would fully bless the president’s activities, but add enhanced oversight, involving more information sharing with more members of Congress, backed up by the threat to use its fiscal powers to de-fund the program if abuses arise.
Having thus secured a bigger seat at the table, Congress would also have to share fully in the political risks and rewards associated with the NSA terrorist surveillance program. This may well be politically difficult and bureaucratically cumbersome, but no one ever said that constitutional governance is easy. Despite much grumbling by the critics, the real constitutional problem we face today is not the administration’s program. Rather, it is demands that the president’s war powers be checked by the judiciary, which is not politically accountable, instead of by Congress, which is.






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