ubertuber

Wow knifemissle, I think you've extracted the most interesting question I've seen come from these issues... I couldn't actually answer it (yet, if ever), but I have a couple of cents to throw in. The executive is certainly NOT responsible to the legislature - at least not in a sense that one trumps the other. I know this idea of "checks and balances" is axiomatic (or at least we think it is), but there's more there than the knee jerk we usually give. The Constitution explicitly avoided a system in which the national legislature selects or controls the executive. Think about the fact that, while the writers of the Constitution held the election of the executive one step removed from the public, they also kept that election the hell away from Congress. So while the President may be accountable to Congress in the form of impeachment, he is not necessarily responsible or subordinate to the legislature. I'm not sure you could even say that he derives his authority from the legislature. Well... Maybe you could. I'd have to think about it.

Ace, I see the value in your impulse to ask these questions - after all, the answers should help to focus the debate. However, I think it is important to note that no one needs to be harmed for a right to have been abrogated. That's the whole bit with rights - they pre-exist transgressions regardless of damages, and sometimes in spite of damages. In fact, we suffer damages in the defense of our rights all the time because we see the protection of them as essential to the nature of our national character. Imagine a situation in which a serial killer has been caught and arrested but the evidence had been collected in violation of his 4th amendment rights. The case is thrown out and the criminal goes back to the street - and in this case it is clear that while the killer's rights were protected, a significant damage has been inflicted to the past and especially future victims. But still our system insists on the protection of rights. I'm not trying to sidetrack you with some lame analogy - merely trying to illustrate that I don't think your questions capture the whole of the issue accurately.

Personally, I think the executive's arguments are clever. I especially like this bit: "the Program, which has been widely reported in every major news outlet, is nevertheless still such a secret that the Judiciary (a co-equal branch under the Constitution) cannot acknowledge its existence by ruling against it." It's so circular and delicious! However, it's also erroneous. I don't think that anyone is trying to argue that the executive does not have the power to collect or classify information in cases which reasonably enhance national security. The whole point here is that this program's collection and classification may be out of proportion to its national security benefits. So, if the court did indeed rule against the program, that would be a de facto claim that the program didn't deserve its special status or classification. An argument that Judiciary (a co-equal branch under the Constitution) cannot acknowledge its [the program's] existence by ruling FOR it and therefore the case should be dismissed would have been gutsier and more internally consistent. But that one probably looks a little too ridiculous.

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Cogito ergo spud -- I think, therefore I yam