Congressional Research Service nullifies Bush's unwarranted wiretap claims

On January 5 the Congressional Research Service issued a study of the Bush administration's initial justifications for its warrantless wiretap program. The authors, E. B. Bazan and J. K. Elsea, indicated that the courts were unlikely to buy Bush's feeble claims, which ran afoul of the clear intent of the FISA statute. Administration apologists complained bitterly that the authors were biased (shockingly, they measured the Great Man's pronouncements against what the laws state).

Since then, Bush & Co. often have tried to justify the unjustifiable and rebut the rebuttals of their assertions of authority.

It's gone unnoticed that a more recent survey by CRS in September, "Anti-terrorism authority under the laws of the United Kingdom and United States", completely nullifies Bush's claims. 'Nullify' is exactly the right term. The newer CRS report describes the law as it really is and it simply ignores the unwarranted fantasies that Bush & Co. have spun for the last year.

In other words, the baseless assertions we heard last winter from the administration, after the NYT revealed the NSA program, are not even noted and rebutted now. They are not acknowledged at all. Nor is the interpretation of the FISA law described as controversial. It's provisions are summarized without giving any ground whatever to the administration's tendentious arguments.

Sad to say, but these days it's remarkable when a government agency treats the administration's blatant falsifications for what they are.

Here in its entirety is what the CRS now has to say about how electronic surveillance may legally be conducted in the U.S. Notice what is absent...any mention of the president's 'right' to wiretap terrorists on his own say so:

In the United States, a court order is required for the lawful interception of communications in most circumstances146 and can be obtained either under the Electronic Communications Act (Title III)147 or the Foreign Intelligence Surveillance Act (FISA).148 The circumstances in which communications can be intercepted without an order under Title III include those in which:

* one party to the communication has consented to the interception;149

* the service provider intercepts the communication incident to rendering service, or in order to protect the provider’s property;150

* the interception occurs through the use of telephone equipment used in the ordinary course of the interceptor’s business;151

* there is no justifiable expectation of privacy in the intercepted oral communication;152

* an emergency exists and approval of an application is anticipated;153 or

* the interception of communication occurs outside of the United States and in compliance with the laws of the place where it occurs.154

The circumstances in which communications can be intercepted without an order under FISA include those in which:

* the President has approved interception for up to 15 days during a time war declared by Congress;155

* the President has approved interception for up to 1 year when the communications are between foreign powers (not including terrorist groups) and the communications of a U.S. person are not likely to be intercepted;156

* an emergency exists and an application is anticipated;157

* there is no justifiable expectation of privacy in the intercepted oral communication;158 or

* the interception of communication occurs outside of the United States and in compliance with the laws of the place where it occurs.159

[snip...]

The authorization process to obtain an order to intercept communications under either U.S. federal statute differs from the process to obtain a traditional search warrant. Under Title III, a United States District Court issues an order to intercept communications upon receipt of an application approved by a senior Justice Department official.165 Under FISA, federal judges designated to act as judges of the special Foreign Intelligence Surveillance Court issue orders to intercept communications upon receipt of an application approved by the Attorney General.166 In urgent cases, senior Justice Department officials may authorize emergency interception pending court approval of Title III application.167 The Attorney General enjoys similar authority under FISA.168 The interception orders must identify the location and nature of the facilities targeted for interception unless the efforts to thwart identification are anticipated or, in the case of intercepted oral communications, circumstances render identification impractical.169

I was not surprised to see that the authors of the report, Clare Feikert and Charles Doyle, don't subscribe to the Bush administration's interpretation of its wiretapping authority. Almost nobody aside from Bush's toadies accepts his ludicrous arguments. As fourteen legal scholars wrote in February in an open letter to Congress:

Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

What is remarkable, though, is that the CRS authors cannot even be bothered to pretend to take Bush's arguments seriously long enough to shoot them down. Is it going too far to postulate that the total exclusion of the Bush administration's position marks a major shift in the discussion of unwarranted wiretapping in DC.? Can employees at CRS assume that everybody of sense already admits that Bush's excuses don't merit discussion?

I've not been able to determine who requested this report, though I'd guess a Democrat who was anticipating the opportunity to revise anti-terrorist legislation across the board. The report covers much more than wiretapping, and at every stage it examines the nature of relevant British law and its successes/failures before summarizing American law.

It's worth noting that in regard to all these other aspects of anti-terrorist law as well, the CRS report gives no ground whatever to the Bush administration's claims and practices. For example, you can't read the sections on the rules for detaining, arresting, and prosecuting terrorist-suspects without concluding that John Ashcroft's DoJ ran amok after the 2001 terrorist attack.

Instead, the CRS report simply distills the settled law nicely, and points to areas of controversy, imprecision, and uncertainty in the law (these are mainly on the British side). You might want to bookmark it. It reads as a point by point repudiation of the Bush administration's practices since 2001.

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All the more remarkable that it has been overlooked on line. Steven Aftergood, who took the trouble recently to post the report at the Federation of American Scientists' Secrecy News, notes why it's so hard to keep up to date on CRS studies:

When new leadership takes control in the 110th Congress, the public may finally gain routine online access to finished products of the Congressional Research Service.

The prospects for adopting this simple change in disclosure policy are enhanced by the fact that such a move would not require Bush Administration concurrence.

For the time being, however, congressional policy prohibits direct public access to CRS reports.

That is something you might suppose the Democrats could benefit from remedying—if not in the first 100 hours after they take charge, then maybe in the second hundred.

[Updated] The report in question here was produced little more than half a year after the CRS was under intense Republican attack for bias against the administration calling a spade a spade.

As a result of the damning January 5th report, Alfred Cumming, the CRS expert on intelligence and national security, was quickly villified by the right wing media and Rep. Hoekstra joined the attack. Georgia10 noted the smear campaign at the time. It was a clear attempt to intimidate the CRS analysts.

About the same time, a revered and very senior analyst at CRS, Louis Fisher, also came under sustained attack, nominally because he'd commented in a Government Executive article that whistleblowers lacked significant protections. It was a statement of fact, but his manager at CRS chose to interpret that statement as taking sides in a Congressional debate, and rebuked him. It became a notorious dispute in DC, since Fisher had made himself extremely unpopular with the administration and Republicans in Congress, particularly because of his 2005 CRS report slamming detentions without trial as illegal.

Here's the WSJ:

Mr. Fisher has testified before Congress 38 times and recently took the extraordinary step of filing his own friend-of-the-court brief at the Supreme Court, where he told the justices that President Bush had overstepped his authority in establishing a system of special military courts to try suspected foreign terrorists. He has written 16 books and hundreds of scholarly articles.
"His writings are considered the gold standard," said Robert Spitzer, the State University of New York scholar who edited the book. "If he has a slant of any kind, it's a pro-Congress one. He believes that Congress should stand up for itself more against the administration."

More about the attack on Fisher last January, from Beth Daley at POGO:

In a growing culture of caution and fear of dissent, a Congressional research agency has warned a senior analyst to avoid describing his research findings. The analyst specializes in separation of powers issues for the Congressional Research Service (CRS) and has frequently authored reports which encourage the Congress to assert its Constitutional oversight authority over the Executive Branch.

The analyst was criticized over a report and comments he made concerning the plight of national security whistleblowers.... A January 18, 2006 memo from Louis Fisher, a Senior Specialist in Separation of Powers, describes a culture of fear and retaliation for CRS staff. Fisher states that "Congressional research arms cannot function if they fear criticism. Disagreement--strong disagreement--is a natural condition on Capitol Hill."

Eventually, Fisher was reassigned to the Law Library in the Library of Congress. The fact that CRS went so far as to get rid of him made it appear that it was responding to Republican pressure to tone down the "partisanship" of its findings. That is to say, to soften their factual focus.

Thus my curiosity was piqued by the September report, which pulls no punches that I can see.