Informed Speculation

The nonpartisan branch of the Library of Congress disputed some of the justifications presented by President Bush, but stopped short of declaring the program illegal:

President Bush’s rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a Congressional analysis released Friday.

The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Mr. Bush act within the law when he ordered the National Security Agency, the country’s most secretive spy agency, to eavesdrop on some Americans?

The report, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous doubts about the power to bypass Congress in ordering such operations, saying the legal rationale “does not seem to be as well grounded” as the administration’s lawyers have argued.

The administration quickly disputed several conclusions in the report.

The report was particularly critical of a central administration justification for the program, that Congress had effectively approved such eavesdropping soon after the Sept. 11, 2001, attacks by authorizing “all necessary and appropriate force” against the terrorist groups responsible. Congress “does not appear to have authorized or acquiesced in such surveillance,” the report said, adding that the administration reading of some provisions of federal wiretap law could render them “meaningless.”

John Hinderaker at Power Line, though, says that the report is more ambivalent than headlines would lead you to believe:

The report…acknowledges the legitimacy of the administration’s claim that the Constitution gives the President the inherent power to conduct the surveillance in question, regardless of any Congressional action or inaction…:

Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance.

Where the Post is most mendacious, however, is in the truncated quote that it presents as the CRS’s overall conclusion: “The administration’s legal justification ‘does not seem to be … well grounded,’ they said.”

Here is what the CRS actually wrote:

Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.

So the Post’s headline, instead of reading, “Report Rebuts Bush on Spying,” should have said, “Report Expresses Uncertainty on Spying.”

In related news, I’m sure you recall the Rasmussen Poll recently that got so much attention, and had the left crying foul because it didn’t say the magic word ‘warrantless’. Well, score one for the left – a new AP/Ipsos poll includes the magic word, and it shows a slim majority who oppose the idea of warrantless eavesdropping:

56 percent of respondents in an AP-Ipsos poll said the government should be required to first get a court warrant to eavesdrop on the overseas calls and e-mails of U.S. citizens when those communications are believed to be tied to terrorism.

Agreeing with the White House, some 42 percent of those surveyed do not believe the court approval is necessary.