In a recent post, I pointed out a problem with criminal law. Since the government controls criminal prosecution, crimes the government approves of are unlikely to get prosecuted. Although FISA provides a criminal penalty of up to five years and ten thousand dollars for making warrantless wiretaps under color of law or using the information they produce, there is little chance that either Bush or the NSA employees involved in making the wiretaps will end up in jail–even if the Supreme Court rejects the Administration's arguments for why what they were doing was legal.
In addition to criminal penalties, FISA also provides civil penalties–statutory damages of $1000 for each illegal wiretap. A civil suit does not have to be filed by the government.
In order to sue, you have to show that your phone was tapped. If you send a Freedom Of Information Act query to the NSA asking for a list, they will surely reply that they have good reason not to release the information, since they do not want terrorists to know whether or not they have been discovered.
As people from both the NSA and the FBI have made clear, not all of the leads generated by warrantless wiretaps panned out. Some turned out to be terrorists and are still being watched. Others turned out to have no connection with terrorism and have been crossed off the list. When you sent in your FOIA request, all you ask for are the names that have been crossed out.
The NSA might argue, somewhat less persuasively, that a list of everyone whose name has been crossed out will reveal too much about their procedures--how they are deciding whom to tap. If so, reduce your request. All you want are half--if they insist a quarter or a tenth--of the names crossed off. Surely the NSA can select them to obscure any pattern that the whole list might reveal.
Once you have names--at least one name will do--you can sue. If the court rules in your favor, you ask for the rest of the names. At that point you have established that the NSA is in violation of the law, with anyone responsible subject to criminal penalties, so hiding information in order to be able to continue the program should no longer be an issue.Disclaimer: I am not an attorney. Several colleagues who are saw nothing inherently impossible about my proposal, but that is no guarantee that it would actually work.