home

Congressional Report Doubts Legality of NSA Warrantless Surveillance

By Jeralyn, Section War on Terror
Posted on Fri Jan 06, 2006 at 11:21:38 PM EST
Tags: (all tags)
Share This: Digg! StumbleUpon del.icio.us reddit reddit

A new report from Congressional Research Service attempts to answer the question of whether Bush had the legal authority to authorize the National Security Agency to order warrantless surveillance on Americans. CRS is the public policy, independent research arm of Congress.

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.

Tom Kean, Chair of the 9/11 Commission agrees:

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."

The Washington Post has more here.

The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.

The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the authors of the CRS report wrote. The administration's legal justification "does not seem to be . . . well-grounded," they said.

CRS does not make its reports available to the public, but members of Congress are free to publish them on their own sites.

With its $80 million budget and 800 employees, it issues about 3,000 briefs, reports, short issue papers and longer position papers per year.

An arm of the Library of Congress, the Congressional Research Service is renowned for its non-partisanship and in-depth analysis, but it does not make its reports available to the public. However, it cannot prevent members of Congress from giving them out individually and some government agencies from posting reports they find relevant. Perhaps 1000 have become available on the web.

[Graphic exclusive to TalkLeft.]

< Jose Padilla Update: Bail Hearing Thursday | FBI Sued Over Cozy Relationship With Hit Man >

  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


    • Display: Sort:
    Congressional Report Doubts Legality of NSA Warrantless Surveillance | 52 comments (52 topical)
    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#1)
    by roxtar on Sat Jan 07, 2006 at 03:23:31 AM EST
    The conclusions of the report are both stunning and damning, while at the same time being utterly predictable. In other words, about what you'd expect to find in the Friday Night News Dump. Bush's best way out is to acknowledge that reasonable people can come to different conclusions and suspend the program pending judicial review. But the principle of president-as-king is too dear to his cabal, so that's not likely to happen.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#2)
    by roger on Sat Jan 07, 2006 at 04:55:49 AM EST
    Roxtar, The problem with this is that reasonable people cannot disagree and still be reasonable. W's argument is pathetic and laughable. Those of us who remember the aftermath of Hoover, Watergate, and "enemies lists" know that Congress was pretty clear on the limits of wiretaps. W didnt just step over the line, he pole vaulted over it.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#3)
    by Edger on Sat Jan 07, 2006 at 06:26:24 AM EST
    Roger: The problem with this is that reasonable people cannot disagree and still be reasonable. With CRS being as nonpartisan, and as respected as it is, their report underscores the need for a full fledged investigation and judicial determination on the question. This is not a report that should or can be held up by either left as damning or exonerating for Bush. If Gonzales won't appoint a special prosecutor, the congress needs to begin a serious investigation themselves.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#4)
    by Edger on Sat Jan 07, 2006 at 06:34:07 AM EST
    That should read "by either left as damning or right as exonerating for Bush."

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#5)
    by roger on Sat Jan 07, 2006 at 06:36:00 AM EST
    Edger, Gonzalez is one of the main players who needs to be investigated. Don't hold your breath waiting for him to do anything.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#6)
    by Talkleft Visitor on Sat Jan 07, 2006 at 06:36:48 AM EST
    Further confirmation that President Bush is, as John Dean said last month, "the first President to admit to an impeachable offense."

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#7)
    by Edger on Sat Jan 07, 2006 at 06:45:15 AM EST
    Roger, I know. They're attached at the hip... It will have to be the congress if it's anybody. And this is again, another chance for GOP senators and congressmen to understand that they can be both self-serving in time for this years elections, and be seen as doing the right thing. An opportunity like that doesn't come along often enough for any politician.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#8)
    by Talkleft Visitor on Sat Jan 07, 2006 at 06:47:24 AM EST
    This report will have no effect on wingdom who will a) swiftboat the CRS as non-partisan, but a Congressional organization that is pro-Congress, and b) doesn't matter anyway since article II says King George can do whatever he wants Don't believe me? That's been the Official Congressonal Law Professor View of Ann Althouse. John Yoo, Hugh Hewitt, Glenn Reynolds, Ann Althouse, ... Jebus Ms. Merritt, your profession has some really terrible professors professing it. Where have you gone Professor Kingsfield? Our nation turns it's lonely eyes to you.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#9)
    by Edger on Sat Jan 07, 2006 at 06:47:33 AM EST
    Charlie. it's a slow process for sure. But the tortoise won the race after all, didn't he?

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#10)
    by Edger on Sat Jan 07, 2006 at 07:20:26 AM EST
    Teachers teach that knowledge waits Can lead to hundred-dollar plates Goodness hides behind its gates But even the president of the United States Sometimes must have to stand naked. It's Alright Ma (I'm Only Bleeding)


    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#11)
    by Edger on Sat Jan 07, 2006 at 07:36:26 AM EST
    It occurs to me that we first heard of this report yesterday. Maybe it will go down in the history books as "Bush's Black Friday"?

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#12)
    by Edger on Sat Jan 07, 2006 at 09:40:51 AM EST
    It's interesting, and I suppose predictable, that PowerLines response so far to the CRS report is to attack, with honey dripping words, the Washington Post as "clever" and "more concerned with attacking the Bush administration than with giving its readers a full sense of what CRS concluded about the legality of the program", and to question the neutrality of the CRS with an amazing statement with which they literally shoot themselves in the foot: "[CRS's] conclusions about how much power Congress has are no more entitled to a presumption of neutrality than the conclusions of researchers and lawyers within the executive branch." Jeezus boys!, we're nearly out of ammo... quick, kill those bright lights and use your last few bullets to shoot the messenger...

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#13)
    by Dadler on Sat Jan 07, 2006 at 11:10:51 AM EST
    Lord, I'm sick of this. I get the strong feeling the whitewash is in the making. To me, this report does nothing if it leaves ANY room for Bush to claim legality. And no discussion of motive here? You only go around this kangaroo court for one reason -- you know even THEY won't approve the nonsense you're involved in. If anything is so vital that only Bush and his cronies "can handle" the knowledge, then we are all in very big trouble.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#14)
    by Edger on Sat Jan 07, 2006 at 11:33:24 AM EST
    Dadler, I don't think the report is the beginning of a whitewash. I think if it does anything it provides reasons for congress to want to hear whatever Russell Tice (the ex NSA employee who has offered to tesify under the Whistleblower Protection Act) has to say. The report said it was impossible to determine the legality of the taps without access to classified information surrounding the decision. The conclusion (page 42) of the CRS report begins with:
    Whether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President’s authorization, which are for the most part classified. If the NSA operations at issue are encompassed in the definition of “electronic surveillance” set forth under FISA, it would seem consistent with Congress’s intent that such surveillance must be carried out in accordance with FISA procedures. Although section 109(a) of FISA does not explicitly limit the language “as authorized by statute” to refer only to Title III and to FISA, the legislative history suggests that such a result was intended.
    RawStory thoughtfully provides the full CRS (44 page PDF file) report here.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#15)
    by Talkleft Visitor on Sat Jan 07, 2006 at 01:00:09 PM EST
    But, today's news on John Kerry's involvement with the NSA is a stunner.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#16)
    by Edger on Sat Jan 07, 2006 at 01:03:33 PM EST
    machsplanck, your one liner ads are more dishonest than all of bushco's lies, IMO.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#17)
    by Talkleft Visitor on Sat Jan 07, 2006 at 03:26:20 PM EST
    Secrecy News ... fas.org ... discussed this report and supplies links to other CRS reports as well. They have a useful free list you an sign-on to ... one recent government report showed that Star Trek's opening was patterned to a pamphlet released by the Ike administration.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#18)
    by jen on Sat Jan 07, 2006 at 04:35:22 PM EST
    machsplanck, your link says I'm forbiden from seeing it. Is there another way?

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#19)
    by Talkleft Visitor on Sat Jan 07, 2006 at 04:53:56 PM EST
    Funny picture. Too bad this entire investigation is not whether or not our government has the intent to spy on Americans, but whether or not it is illegal for the administration to do so in the sole circumstance where they do not get RUBBER STAMP blanket approval by a SECRET COURT.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#20)
    by jimakaPPJ on Sat Jan 07, 2006 at 06:21:32 PM EST
    Don't be shy folks, Here is the actual report rather a spinned copy. And this is a nifty quote you won't see on the Left side of the road.
    Whether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President's authorization, which are for the most part classified.
    and from this link which writes and then quotes.
    including the 2002 decision by the FISA appellate court, which wrote:
    We take for granted that the President does have that authority [to order warrantless surveillance for foreign intelligence gathering purposes], and, assuming that is so, FISA could not encroach on the President's constitutional power.
    Seems like the infamous horse of a different color has shown up, eh? Aint the Internet grand???

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#21)
    by soccerdad on Sat Jan 07, 2006 at 06:25:35 PM EST
    yeh you forgot to understand this part
    foreign intelligence gathering


    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#22)
    by soccerdad on Sat Jan 07, 2006 at 06:34:13 PM EST
    wrt to PPJ's first citation here's the rest of the paragraph which I'm sure he just forgot to include.
    If the NSA operations at issue are encompassed in the definition of “electronic surveillance” set forth under FISA, it would seem consistent with Congress’s intent that such surveillance must be carried out in accordance with FISA procedures. Although section 109(a) of FISA does not explicitly limit the language “as authorized by statute” to refer only to Title III and to FISA, the legislative history suggests that such a result was intended. The exceptions to the criminal prohibition under Title III, however, are specifically limited to those mentioned within Title III. Even if the AUMF is read to provide the statutory authorization necessary to avoid criminal culpability under FISA, it does not necessarily follow that the AUMF provides a substitute authority under FISA to satisfy the more specific language in Title III. To the extent that any of the electronic surveillance at issue may be outside the sweep of FISA or Title III, Congress does not appear to have legislated specifically on the subject, nor, by the absence of legislation, to have authorized or acquiesced in such surveillance.
    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#23)
    by Edger on Sat Jan 07, 2006 at 06:45:12 PM EST
    Here is the actual report rather a spinned copy...And this is a nifty quote you won't see on the Left side of the road. Jim, it helps make you look less foolish if you read the thread first. Look up, look waaaaaayyyy up. January 7, 2006 12:33 PM in this thread.

    Re: Congressional Report Doubts Legality of NSA Wa (none / 0) (#24)
    by