They’ll Be OK if No One Reads the Report

Yesterday the Congressional Research Service released a report that purported to be a bipartisan analysis of the legal issues raised by the NSA electronic intercept controversy, titled “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information.” This morning’s Washington Post trumpets the report as a decisive repudiation of the administration’s legal position; its article is titled “Report Rebuts Bush on Spying.” It begins:

A report by Congress’s research arm concluded yesterday that the administration’s justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments.
The Congressional Research Service’s report rebuts the central assertions made recently by Bush and Attorney General Alberto R. Gonzales about the president’s authority to order secret intercepts of telephone and e-mail exchanges between people inside the United States and their contacts abroad.

It continues:

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.

The CRS report, which you can access here, is 44 pages long. Yet the Post, apparently not wanting to confuse its readers by exposing them to the actual report, rather than Democratic politicians’ interpretations of it, quotes only two sentence fragments:

“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.

The Post’s coverage of the CRS report is deeply misleading. In fact, the CRS concluded:

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.

The report also 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 (more on this later):

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.”
Putting aside the Post’s misreporting, which will no doubt be echoed in many other newspapers, what does the CRS report actually add to the debate on the legal issues? Not much.
The critical issue, as I have argued repeatedly, is the President’s inherent power under Article II of the Constitution to take military actions appropriate to protect the nation’s security. That inherent power has been recognized again and again by the federal courts. In at least five appellate decisions, as I noted here, the federal courts have specifically held that the President has the inherent constitutional power to order warrantless intercepts to gain foreign intelligence information (which is defined to include information on terrorism). How does the CRS deal with this issue? Poorly. It acknowledges this line of federal cases, 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.

The CRS tries to sidestep this definitive statement by the court specifically charged with interpreting and applying FISA:

While the Court of Review does not cite to the cases to which it is referring, its allusion to the holdings of “all the other courts to have considered the issue,” appears to have been to cases which pre-date FISA’s passage or which address pre-FISA surveillances. Such cases deal with a presidential assertion of inherent authority in the absence of congressional action to circumscribe that authority. Where the Congress has exercised its constitutional authority in the areas of foreign affairs and thereby has withdrawn the electronic surveillance, as defined by FISA, from the “zone of twilight,” between Executive and Legislative constitutional authorities, it might be argued that the President’s asserted inherent authority to engage in warrantless electronic surveillance was thereby limited. In the wake of FISA’s passage, the Court of Review’s reliance on these pre-FISA cases or cases dealing with pre-FISA surveillance as a basis for its assumption of continued vitality of the President’s inherent constitutional authority to authorize warrantless electronic surveillance for the purpose of gathering foreign intelligence information might be viewed as somewhat undercutting the persuasive force of the Court of Review’s statement.

So the CRS admits that the prevailing and uncontradicted law, last expressed in 2002, supports the administration. The best the CRS can do is to suggest that it “might be argued” that FISA somehow limited the President’s powers, even though the FISA Court of Review said the exact opposite, and that the passage of FISA “might be viewed as somewhat undercutting” the Court’s 2002 opinion, even though that was the precise proposition that the Court of Review rejected. In other words, the authors of the CRS report don’t agree with the prevailing law, as articulated in the federal courts, and wish it were otherwise. This is probably not surprising, given that the CRS is an arm of Congress.
The ultimate question, of course, is whether Congress can limit the President’s constitutional powers by legislation. As I have argued before, Congress can no more take away the President’s powers by legislation, than the President can take away Congress’s powers by executive order. Here is how the CRS tries to frame the issue:

[I]t might be contended that, in enacting FISA, the Congress circumscribed the manner in which the President might exercise his inherent constitutional authority with respect to foreign intelligence electronic surveillance, rather than eliminating the President’s authority.

But this theory is a non-starter. What the federal courts have repeatedly held is that the President has the inherent constitutional authority to order warrantless surveillance for foreign intelligence purposes. If Congress purports to detract from that power by requiring a warrant, it hasn’t merely “circumscribed the manner” in which the President must act, it has “eliminat[ed] the authority” in question. And that, Congress cannot constitutionally do. The CRS report continues:

As this discussion suggests, … some support may be drawn from the Court of Review’s decision in In re Sealed Case for the position that the President continues to have the power to authorize warrantless electronic surveillance to gather intelligence outside the FISA framework. Whether such authority may exist only as to those areas which were not addressed by FISA in its definition of “electronic surveillance” or is of broader sweep appears to be a matter with respect to which there are differing views.

That’s right; the problem, from the point of view of the administration’s critics, is that only one of those “differing views” has ever been endorsed by the federal courts, and that view is the administration’s. Note, too, how weak the report’s conclusion is — “there are differing views” — compared to the Post’s trumpeting of the report as a decisive refutation of the administration’s legal arguments.
One last point–the CRS report relies heavily on Justice Jackson’s concurring opinion in the steel seizure case for its theory that Congress might be able to take away the President’s constitutional powers through legislation. As I argued here, that opinion is the product of sloppy thinking. Its tripartite analysis, on which the CRS relies, immediately falls apart if one tries to apply it to the President’s powers as Commander in Chief, which are at issue here.


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