The Congressional Research Service and Constitutional Law Scholars Weigh in on President Bush's Authorization of Warrantless Surveillance:
Why This Controversy Bridges the Partisan Divide, At Least Among Experts

By ELAINE CASSEL
Thursday, Jan. 12, 2006

On December 16, 2005, the New York Times had a riveting page one headline: "Bush Lets U.S. Spy on Callers without the Courts." The article reported that, in 2002, President Bush signed an executive order directing the National Security Agency (NSA) to listen in on overseas phone calls to and from the United States - without approval from any court, even the Foreign Intelligence Surveillance Act (FISA) Court.

After first refusing to discuss the report, President Bush went on the offensive - even threatening those who exposed the program with investigation. (The Times had held the story for more than a year, for reasons yet not fully explained).

It turns out that only eight members of Congress knew of the program. They were told shortly after it began in 2002, and they were, literally, sworn to secrecy. Congress as a whole was neither consulted nor asked to amend FISA to allow the surveillance the President wanted - even though it had overwhelmingly passed the USA Patriot Act after September 11.

In a December 22, 2005 letter to Congress, Assistant Attorney General William Moschella tried to defend Bush's actions to the literally hundreds of members who were left out of the loop. He contended that the legal foundation for the surveillance program derived from Congress's September 18, 2001 Authorization to Use Military Force in Afghanistan (AUMF); the President's inherent powers as Commander-in-Chief during "wartime"; and historical precedent for more liberally interpreting the Fourth Amendment's reasonableness requirement for warrantless searches in "wartime."

Meanwhile, the President's approval rating has dropped only a point - from his pre-Times article rating of 47 percent. And public opinion on the issue has so far followed a roughly partisan divide. In a Washington Post-ABC News poll of 1,001 randomly selected adults, reported on January 11, 75 percent of Republicans thought the program was acceptable, while 61 percent of Democrats said it was not.

On January 5, the non-partisan Congressional Research Service (CRS) released its own report on the controversy. And on January 9, fourteen top constitutional law experts and former government officials - among them, prominent conservatives -- sent a letter to Congressional leaders directly responding the December 22 DOJ letter.

Both the CRS and the legal experts' analyses definitively rebut the Administration's December 22 defense of its actions. And even Bush Supreme Court nominee Samuel Alito, when asked in his confirmation hearings whether the president is above the law, answered with a definite "no."

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In this column, I will discuss these sources in arguing that this domestic surveillance program isn't a partisan issue; the law is quite clear .

The Congressional Research Service Report

The CRS report, undertaken at the request of some members of Congress, does not come out and flatly say that there was no legal basis for the secret spy program, because the full details of the program are not yet known. However, it directly rebuts the Administration's claims, in its December 22 letter, as to why it had to engage in secret surveillance.

The Administration's main excuse was that FISA -- enacted in 1978, as a direct response to former President Nixon's illegal wiretapping of his political "enemies" -- is too outdated, too slow, and too cumbersome to deal with the "new threat" posed by this "new" kind of enemy and new kind of "war."

But then, why not ask Congress to amend FISA? Acting outside FISA, the CRS report pointed out, is illegal: FISA itself says that "procedures in this chapter . . . shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted."

What about the argument that the President has the power simply to disregard FISA if he so chooses? The CRS outright rejected the claim that there is constitutional authority for plenary presidential surveillance in derogation of Congressional statutes clearly to the contrary. And it points out that FISA is, indeed, directly to the contrary: Its legislative history of FISA and amendments indicate clearly that the "exclusive means" language was inserted to precisely to counter any claim that the President has inherent Executive authority to order surveillance of Americans without complying with FISA.

Finally, the CRS report effectively refutes the Administration's claims that FISA is too slow or cumbersome to be effective in current times. It explains how, under FISA, surveillance can begin prior to receipt of a warrant. (It is also done in secret, without notice to the target.) And it points out that if the President nevertheless feared that FISA warrants would take too long or might somehow "tip off" targets of surveillance, he had only to ask Congress for changes to the law.

Legal Scholars Appeal to the Congress

The legal experts' conclusions are strikingly similar to those of the CRS report: They characterize the Bush administration's defense of its NSA domestic spying program as lacking "any plausible legal authority."

The signers - listed in the letter -- include the nation's leading constitutional law scholars, many of them former Justice Department attorneys and presidential advisors, and even a former FBI Director and federal judge.

The experts' letter refutes Administration claims that the AUMF and Article II of the Constitution, which includes the "Commander-in-Chief" language, give Bush the authority to disregard FISA and violate the Fourth Amendment. The letter agrees with the CRS report that Bush should have asked the Congress for changes to existing law, rather than proceeding unilaterally - and illegally. And it ends with a stinging admonition: "[T]he President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

The Upcoming Congressional Hearings Are Not Merely a Partisan Clash

Senator Arlen Specter recently repeated his promise to conduct hearings on the surveillance program after the Alito hearings conclude, and his plan has bipartisan support. Even the President himself said, on January 11, that the hearings will be "good for democracy," as long as they don't give away "secrets" to the enemy. And reportedly, an NSA whistleblower has come forward offering to testify.

What should we demand from the hearings? Some will be cloaked in secrecy, no doubt. But the public deserves to know who the targets are, what is being done with the information, and how widespread the program is - especially since the Times, in several follow-up stories, has suggested that the surveillance is far more widespread than the Administration admitted in its December 22 letter.

The disclosure of this illegal surveillance program is but one of the many ways in which President Bush, unbeknownst to most Americans, and even the Congress, has carried out his avowed goal (and one frequently touted by Vice-President Cheney) to "restore" the presidency to its stronger, pre-Watergate phase. That's code for creating an executive branch that only obeys the laws it likes--and ignores the rest.

President Bush has said as much in the "signing statements" appended to many laws. With one hand, he signs into law the statutes passed by the our elected representatives, while with the other he endorses a directive to federal agencies that he will tell them how they are to carry out--or not carry out--the law.

At this time, possibly a pivotal point in our nation's history and a crucial test of our Constitution and form of government, it is worth remembering the words of author James Baldwin, "People are as free as they want to be."

Americans should be outraged at this power grab undertaken in the guise of protecting national security. It's up to us--regardless of party affiliation--to demand that our leaders, in all branches of government, serve us, not themselves, and govern within the law.

Interested readers may also want to consult several recent Findlaw columns that have addressed the warrantless surveillance issue: John Dean's column compared the Bush program with Nixon's wiretapping; Edward Lazarus's columns discussed the surveillance program, and discussed the powers of the Commander-in-Chief; and Jennifer Van Bergen's column commented on the Administration's invocation of the "Unitary Executive" theory. -- Editor


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004. Her website, Civil Liberties Watch, is published under the auspices of Minneapolis, Minnesota's City Pages.