I haven’t had a chance to read the Congressional Research Service’s report on the legality of the NSA intercept program. However, Orin Kerr finds its scope “quite narrow.” According to Kerr, “it says that if you accept that the NSA program violated FISA, then the claims in DOJ’s letter as to why the AUMF or Article II trump FISA are relatively weak. . .The CRS report is appropriately cautious.”
The Washington Post story on the report is clever. It focuses on CRS’s disagreement with arguments contained in a Justice Department letter to Congress, and ignores what Kerr sees as the “narrow” and “cautious” aspects of the report. If Kerr’s reading is correct, then the Post’s account is 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 in question.
I also love the Post’s characterization of the report as “the first nonpartisan assessment of the [surveillance] program to date.” The report is bipartisan in the sense that it’s not Republican or Democrat. But the potential constitutional issue the report considers is not about Republicans vs. Democrats (the only lens the partisan Post sees through these days). It’s about congressional vs. presidential power.
CRS is, as the Post says, “Congress’s research arm.” Thus, its 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.
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