Is this not, however, the de facto current situation, that no persons who know what the President has asked for by way of surveillance have power to legally bring scrutiny upon these actions? What are the possibilities -- impeachment or judicial decree? Spilling the beans to Congress as a whole, or filing an objection with the US Supreme Court, is only going to get you slammed in jail.
Is this not, however, the de facto current situation, that no persons who know what the President has asked for by way of surveillance have power to legally bring scrutiny upon these actions? What are the possibilities -- impeachment or judicial decree? Spilling the beans to Congress as a whole, or filing an objection with the US Supreme Court, is only going to get you slammed in jail.
Well, my point wasn't to probe the options left to a person who was subjected to unilateral action by the executive, but rather to assert that in the spectrum of "unilateral and hidden" to "involving more than one branch and transparent" action, some people will incline toward accepting, encouraging and rationalizing more of the "unilateral and hidden."
Heck, I rationalize some, depending on the nature of the activity and the circumstances involved.
If the discovered activity is surveillance, the reactions of the aggrieved person (target) and unilateral actor (e.g., the CIA or the FBI) are myriad. Jail is extreme, but I can imagine the issue settling out with the target being labeled a nut case.
Oh - Duh, I just realized the notion of your post, what options are left to insiders who know of the program. I believe that spilling the beans to certain members of Congress is quite defensible as a matter of Con Law principle. See Porter Goss's "ADDITIONAL VIEWS" in House Report 106-130 - Part I. That same writing also shows that the offending agent can, as a matter of practice, stonewall at least. But once in Congress, the ultimate remedy is impeachment, as you point out.
I don't see the Court as an appropriate venue for an insider, a whistleblower who is not a target.
Depending on the risk to the country at the "leak" and the resolve of the executive (for any variety of motives), there are plenty of possible scenarios following even a confidential disclosure.
While hardly a hidden or confidential matter, Lincoln "got away" with unilateral and military justice, and with using military power to silence political competitors. The people hold him in high regard, so it must be politically acceptable to circumvent the Constitution in some circumstances. If the people don't effectively object to a practice, the executive has his way.
Lincoln blew off the broad ramifications of Taney's order in Merryman. And while the Merryman case probably prompted Lincoln to ask for Congressional approval, he didn't follow the resulting Congressional grant of suspension of habeas corpus. At least the public was treated to the debate and the legal activity, and today we have the written history to use as we see fit.