Let's Draft Articles of Impeachment!
Nothing I've read since I last touched on the subject suggests to me that the present NSA scandal will have much in the way of legs, and indeed references to it have largely been overshadowed by the Alito hearings. While there are some interesting constitutional and legal questions, NSAGate lacks one key ingredient necessary to create a proper political scandal: evidence of malicious intent.
Put it this way: unless one already hates G.W. Bush (in which case the evidence is irrelevant), the most the NSA program can be accused of is excess in the protection of American citizens against terrorism. Unless one can some up with a story of the NSA not only stumbling across an innocent conversation, but then somehow using it to a non-terrorist's detriment, there is simply no story here.
Bush's opponents know this, which is why every effort is made to drum corruption up out of thin air. As one critic put it, "One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents." (emp. mine) This is a statement that's technically true, but for there really to be outrage, one needs evidence that Mr. Lederman's grandparents have been spied upon.
Among the radical left, the desperation to find such a hook is shifting from the funny to the slightly pathetic. Take this piece from The Raw Story, "National Security Agency mounted massive spy op on Baltimore peace group, documents show". (Hat tip, as you might expect, to Prof. Leiter, who takes it seriously.) Sounds horrible, doesn't it? And you can expect to see noises like "Well, Bush's NSA is even monitoring Quaker peace groups" from your favorite lefty websites, talking heads and politicians.
But credit to the Raw Story: though they try to bury the reality in the lower paragraphs, they do actually publish copies of the NSA documents that are supposed to get our blood boiling. It turns out that the "spying" done by the NSA consisted of little more than increased security at an NSA facility when this group decided to stage a protest without permission. They monitored the movements of this group on their way to the facility, while there, and shortly after, in a manner that might be slightly overexuberant, but still more policework than espionage. Now I know that among a certain set, the idea that one does not have the right to protest at any place or time of their choosing, including the visitor's entrance of a secure facility, is a sign of creeping fascism. Nevertheless, crying, "Help! Help! We're being oppressed!" at this juncture is not likely to make a mass movement.
Maybe the Republicans should take a hint from the Democratic playbook. Before the 2004 elections, Charles Rangel introduced a bill to bring back a live draft, which prompted enough posts about a hidden administration conspiracy that Republicans eventually had to bring the bill to the floor just to vote it down. It was a cunning bit of PR, and Karl Rove should take the hint: find a couple of moderate or dissenting Republicans and ask them to file articles of impeachment.
If the Democrats tried to impeach, Bush can pretty much expect polls in the high sixties as Republicans paint themselves as strong on security and Democrats seek vainly for a reason Joe Sixpack should concern himself with Fourth Amendment fetishists.  At the moment, John Kerry can "joke" about articles of impeachment if the Dems take the House in '06. This fires up the base nicely. So give the Democrats a chance before the election to show where they really stand. If enough Republicans announce an intention to "go along with their colleagues," then Democrats will find themselves having to either vote against the articles (and disappoint their base) or vote for them (and alienate the center).
Ah, one can dream. In the meantime, expect a lot more smoke and mirrors from the far left, a great many more flip-flopping editorials from the NYT, and not much in the way of political impact two weeks from now.
: Yes, the Fourth Amendment is necessary, and we should pay attention to our Constitution, etc. etc. I'm not making an argument here that Con Law is irrelevant, merely that lawyers make the "defense" of the Constitution into a greater issue than it warrants politically. Look at it this way: suppose arguendo that Bush's authorization to the NSA violates an obscure section of FISA, but that he has done so out of a reasonable concern for national security and that FISA really isn't appropriate for handling vast packet-sniffing operations. Failing to punish Bush for this can be looked at as an act of prosecutorial discretion on the part of the American people.