Bush allowed NSA to spy within USA without warrants

[Hurin_Rules]

And another article on the same report, but with a bit more information:

Report Questions Legal Basis for Bush's Spying Program

By ERIC LICHTBLAU
and SCOTT SHANE
Published: January 6, 2006
WASHINGTON, Jan. 6 - President Bush's rationale for authorizing eavesdropping on American citizens without warrants rests on questionable legal ground and "may represent an exercise of presidential power at its lowest ebb," according to a formal Congressional analysis released today.

The analysis, conducted by the Congressional Research Service, an independent research arm of Congress, is the first formal assessment of a question that has gripped Washington for the last three weeks: Did President Bush act within the law when he ordered the National Security Agency to eavesdrop on Americans?

While the Congressional report reached no bottom-line conclusions on whether the program is legal or not, it concluded that the legal rationale appears somewhat dubious. The legal rationale "does not seem to be as well-grounded" as the Bush administration's lawyers have suggested, and Congress did not appear to have intended to authorize warrantless wiretaps when it gave President Bush the authority to wage war against Al Qaeda in the days after the Sept. 11 attacks, the report concluded.

Bush administration lawyers quickly took issue with the report's conclusions, arguing that President Bush acted within his constitutional and statutory powers in approving the N.S.A. program.

"The president has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks," said Brian Roehrkasse, a spokesman for the Justice Department.

"As the attorney general has stated numerous times, the National Security Agency activities described by the president were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," Mr. Roehrkasse said.

But many Democrats and some Republicans said they found the doubts raised by Congressional report persuasive, pointing to it as another indication that President Bush may have overextended his authority in fighting terrorism.

Thomas H. Kean, the former chairman of the Sept. 11 commission, said he too doubts the legality of the program. Weighing in for the first time on the controversy, he said in an interview that the commission was never told of the operation and that he has strong doubts about whether it is authorized under the law.

Federal law under the Foreign Intelligence Surveillance Act, created in 1978, "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," said Mr. Kean, a Republican and former governor of New Jersey. "We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances."

Opinions on the N.S.A. domestic spying issue have broken down largely, though not exclusively, along partisan lines, causing public rifts between the top Republicans and Democrats on both the House and Senate Intelligence Committees.

But the analyses of the Congressional Research Service, part of the Library of Congress, are generally seen as objective and without partisan taint, said Eleanor Hill, who served as a Congressional staffer for 17 years and was staff director of the joint Congressional inquiry into the Sept. 11, 2001, terrorist attacks.

"My experience is that they're well respected in the Senate and House," said Ms. Hill, now a Washington lawyer in private practice. "I don't remember anybody attacking them for being partisan. They're more academic in approach."

http://www.nytimes.com/2006/01/06/po...rtner=homepage

[Pindar]

Hurin,

The analysis, conducted by the Congressional Research Service... Yet two attorneys in the organization’s legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees “does not seem to be as well-grounded as the tenor of that letter suggests.”


The National Security Agency’s activity “may present an exercise of presidential power at its lowest ebb,” Bazan and Elsea write in the 44-page memo.

Would you like me to explain some of the language used? This "may present an exercise of presidential power at its lowest ebb" is a direct reference to Justice Jackson's concurring opinion from: Youngstown Sheet and Tube Co. v. Sawyer (1952) Here's the quote the phrase comes from:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.."

This plays in nicely with what I have been arguing. Bazan and Elsea, while obviously having an opinion bowing to Congressional power (hardly surprising from the Congressional Research Service) they are wont to actually charge illegality. Why? Because they are aware of the traditional understanding of inherent Presidential power. Their stance is a problem because it assumes Congress is at odds with Presidential prerogative. The AUMF pushes the NSA issue toward a combined justification of both Legislative and Executive Constitutional power. Here is another quote from the same Jackson opinion to help explain the notion:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty."

Of course there isn't just the AUMF that speaks toward this understanding there is also testimony like the following:

"As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities."
-Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21

The above thus, also demonstrates the confluence of government action that undercuts the Bazan/Elsea stance.

To directly challenge the President's power to gathering foreign intelligence is going to be very difficult to argue legally. Not only is there the Constitutional power the President can appeal to which has been recognized by previous Presidencies and the courts going way back (this is what I have been focusing on as I think it is the clearest, most legally demonstrable position) but there is the added AUMF that makes any suggestion of governmental branch tension problematic. As I said before political bluster is one thing, but the legal issue is not difficult.

[Tribesman]

The issue has been whether the President could authorize warrantless surveillance.
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

[Xiahou]

The issue has been whether the President could authorize warrantless surveillance.
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

Based on what? Supposition?

[Tribesman]

Based on what? Supposition?
No Xiahou , based on the fact that the administration has admitted that it has done so mistakenly or by technical errors .
Unless of course the administration is only basing those admitions on its own supposition .
That is what the judicial commitee is going to investigate , in case you missed it .

[Pindar]

The issue has been whether the President could authorize warrantless surveillance.

No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

Alas, no read the Times article again.

No Xiahou , based on the fact that the administration has admitted that it has done so mistakenly or by technical errors .
Unless of course the administration is only basing those admitions on its own supposition .

Actually it was an NSA admission and unless you wish to argue this was systemic, intentional and under direction of the President it is not relevant to our discussion.