Nothing about the warrantless-search program was legal

January 19, 2006

From the beginning of the controversy, the White House has defended its warrantless-search program with a series of equally unpersuasive arguments, usually focusing on two central points: Congress’ 9/11 resolution empowered Bush to do this and Congress was briefed so oversight requirements had been met.

Two weeks ago, the non-partisan Congressional Research Service rejected the administration’s first argument. Yesterday, the CRS rejected the second.

The Bush administration appears to have violated the National Security Act by limiting its briefings about a warrantless domestic eavesdropping program to congressional leaders, according to a memo from Congress’s research arm released yesterday.

The Congressional Research Service opinion said that the amended 1947 law requires President Bush to keep all members of the House and Senate intelligence committees “fully and currently informed” of such intelligence activities as the domestic surveillance effort. […]

The only exception in the law applies to covert actions, Cumming found, and those programs must be reported to the “Gang of Eight,” which includes House and Senate leaders in addition to heads of the intelligence panels. The administration can also withhold some operational details in rare circumstances, but that does not apply to the existence of entire programs, he wrote.

Unless the White House contends the program is a covert action, the memo said, “limiting congressional notification of the NSA program to the Gang of Eight . . . would appear to be inconsistent with the law.”

So, is the NSA program a “covert action”? Apparently not. As USA Today explained, “Covert action is defined as an operation in which the role of the United States government would be denied if exposed. After the surveillance was disclosed in The New York Times, President Bush acknowledged the program.”

I’m not a lawyer, but like most people I’ve heard the old adage, “When you have the law, argue the law. When you have the facts, argue the facts. When you have neither, bang the table.” Far be it for me to give the White House advice, but if I were in Karl Rove’s shoes, I’d have to conclude that it’s table-banging time.

I am a lawyer, and I agree 100% with your analysis of the situation. When this story first broke, I kept waiting for the “real” defense of the program to come out. I figured that when their initial specious legal arguments were debunked, they would eventually offer some sort of technical defense, i.e, FISA doesn’t technically apply to what we’re doing because the technology is so novel. But then Gonzales came out and admitted that the type of surveillance they’re doing is the type that requires a FISA warrant. So all they have is their AUMF authorization argument which is incredibly weak. They’ve got nothing. Their confidence in their legal arguments is a bluff. They know they stand little chance of winning this if it ever gets to a court. They’re just hoping that it never will, that they’ll be able to fend off legal challenges like the ACLU’s on procedural standing grounds, and that if they are sufficiently intimidating, the courts won’t want to get anywhere near this. In other words, their table pounding is an attempt to spin this politically while doing whatever they can to avoid having the legality of the program litigated in court.

  • When you have the facts, argue the facts.

    Won’t they just pretend that their lies are facts? And the worthless “reporters” who cover the white house will just keep “reporting” them?

  • The Watergate break-in by Nixon’s plumbers was essentially political espionage. We don’t know who Bush’s NSA was spying on. It could have been only terrorists. It could have been muslin-Americans telephoning the family back in the old country. The NSA could have been spying on members of the press–domestic or foreign. There are no obtainable records on who was spied on, because there was no warrant issued by any court. Bush’s NSA could have even spied on John Kerry, Howard Dean, on any number of Democrats or their supporters. That’s the real question. Nobody knows who was spied on. With the 2002 and 2004 elections in the rear-view mirror, Democrats have to ask if they were spied on. The only way that Bush administration can be trusted is with some kind of disclosure.

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