Carl Tobias of the University of Richmond School of Law also sees an uncertain trajectory for the lawsuits.
Obama might kill the constitutional challenges by ending the program, Tobias says, depending on "what representations the Department of Justice might make to the courts" and if plaintiffs can persuade judges that similar alleged offenses may happen again.
Skeptics – from Sen. Patrick Leahy, D-Vt., to Shelby – say the Obama administration has offered no evidence the 7-year-old program ever prevented a terror attack within the United States. Administration officials and Pauley say it has contributed to thwarting some plots, but the White House panel concluded the program was "not essential to preventing attacks."
Richardson, who has tracked the issue for years with the ACLU, recommended killing the program and "not even worry[ing] about data retention." Its collection has been demonstrably "worthless," she said.