Just four days after news of Bush’s warrantless-search program broke, the administration relied on its lawyers to present its best defense.
Facing mounting criticism over use of the National Security Agency to listen to phone calls of suspected al Qaeda contacts in the United States without court approval, the Bush administration went public [on December 19] with its most detailed legal defense yet of the program. President Bush and top administration officials said his authority derives from a congressional resolution and a Supreme Court decision, as well as the president’s constitutional powers as commander in chief.
In fact, the Justice Department summarized the administration’s defense in a written report to lawmakers. Anxious for an independent legal analysis, several Democratic senators asked the non-partisan Congressional Research Service to review the administration’s arguments to see if they’re consistent with the law.
The Congressional Research Service published its response this afternoon — and I obtained a copy. To make a long story short, the CRS didn’t buy the administration’s defense at all.
From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.”
While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.
That’s obviously some fairly bureaucratic language, but the conclusion was straightforward enough. Bush thinks he has the legal authority to do surveillance without warrants; the CRS doesn’t.
Does this matter? It might. For one thing, while CRS reports are not legally enforceable, they carry weight among lawmakers who routinely rely on these reports for accurate analyses. For another thing, the Bush administration has held out the CRS as a reliable source for objective information — so it will be difficult for the White House to turn around and say dismiss the CRS and its conclusions out of hand.
Perhaps most importantly, if the Senate Judiciary Committee moves forward with investigative hearings, as Arlen Specter has promised, the CRS’s conclusions may play center stage. This is a 44-page non-partisan legal analysis by Congress’ lawyers that says Bush doesn’t have the authority he claims to have. It’s the kind of thing that might put the administration on the defensive.