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Nonpartisan report questions legality of eavesdropping

WASHINGTON—The nonpartisan research arm of Congress on Friday questioned the legal foundation of President Bush's decision to order eavesdropping on Americans without court warrants.

An analytical report by the Congressional Research Service is likely to provide new ammunition to critics who charge that Bush acted outside the law in ordering the National Security Agency to monitor the international e-mail and telephone calls of Americans suspected of belonging to al-Qaida or supporting the terrorist network.

The 44-page analysis cautioned that a conclusion about the legality of the program "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."

However, it went on to say that "the legal justification" for the more than four-year-old program as set out in a Dec. 22 Department of Justice memo to lawmakers "does not seem to be as well grounded as the tenor of that letter suggests."

Congress has shown through legislation and statements over the years that it intends to regulate electronic surveillance and "it appears unlikely that a court would hold that Congress has expressly or implicitly authorized the NSA electronic surveillance operations," it said.

The White House directed questions about the CRS findings to the Justice Department.

"The National Security Agency activities described by the president were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," said Brian Roehrkasse, a Justice Department spokesman.

The CRS conducted its analysis at the request of Sen. Dianne Feinstein, D-Calif., a member of the Senate judiciary and intelligence committees. She's questioned the legality of the surveillance program and has joined Democrats and some Republicans in urging a joint investigation by those committees.

"The CRS report makes absolutely clear that the legal authorities advanced by the president in justifying domestic surveillance are on very shaky ground," Feinstein said Friday.

Sen. Arlen Specter, R-Pa., the Judiciary Committee chairman, has said he intends to hold hearings, but Sen. Pat Roberts, R-Kan., who heads the intelligence panel, has made no such commitment.

Bush authorized the eavesdropping operation after the Sept. 11, 2001, attacks. He's said that it's limited to tracking Americans who are suspected of belonging to or aiding al-Qaida or its allies. The program is governed by strict rules, protects civil liberties and is designed to thwart attacks, the president has said. He also said it targeted only communications in which one end was outside the United States.

In the Dec. 22 memorandum, the administration argued that Bush has an inherent power under the Constitution to protect national security, allowing him to bypass the Foreign Intelligence Surveillance Act. That 1978 law requires the government to obtain warrants from a secret federal court to eavesdrop on Americans.

Bush's inherent constitutional power was augmented, the administration argued, by a resolution that Congress passed after Sept. 11 authorizing him to use military force against al-Qaida and its allies.

In its analysis, the CRS analysis cited a 1952 Supreme Court opinion that presidential power "is at its lowest ebb" when a president takes an action contrary to "the expressed or implied will" of Congress.

It said Congress passed an amendment to a 1968 law and included language in FISA that made the act the "exclusive means" by which the government could conduct electronic surveillance.

"The passage of FISA and inclusion of such exclusivity language reflects Congress' view of its authority to cabin the president's use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence," the analysis said.

The administration also argued that U.S. officials must move quickly in wartime to avert attacks and that the process of obtaining a warrant from the secret FISA court is too slow and burdensome.

The CRS analysis noted that FISA allows the government to conduct emergency surveillance for up to 72 hours before it must seek a warrant. Moreover, it said the president and the attorney general could take administrative steps to streamline the process or could ask Congress to make changes in the law.

The analysis questioned the administration's contention that the 2001 force resolution gave Bush the power to authorize the NSA operation.

The administration relied on a 2004 Supreme Court decision that found that the resolution allowed Bush to detain as an "enemy combatant" an American who was captured in Afghanistan fighting for the Taliban. Eavesdropping operations to collect intelligence on al-Qaida are an implied extension of that power, the administration contended.

The CRS analysis found that while gathering intelligence is "an important facet of fighting a battle, it is not clear that the collection of intelligence constitutes a use of force."

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(c) 2006, Knight Ridder/Tribune Information Services.

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