Over at Balkinization, Marty Lederman has a post considering how the legality of the NSA surveillance program might get before the courts. My own pet theory is to watch the FISA Court: the FISA court judges have been briefed on the program, and I wouldn’t be surprised if they issue an opinion at some point giving their take on the legal issues presented. There are some procedural barriers to doing that — for example, it’s not clear to me that the FISA statutory suppression remedy applies to FISA application submissions — but a decision akin to the FISA court’s 2002 opinion isn’t out of the question. I’m not sure it’s likely, but it’s at least a possibility.
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