Bush allowed NSA to spy within USA without warrants

[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.