{"id":53368,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-congressional-research-service-and-constitutional-law-scholars-weigh-in-on-president-bushs-authorization-of-warrantless-surveillance.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-congressional-research-service-and-constitutional-law-scholars-weigh-in-on-president-bushs-authorization-of-warrantless-surveillance","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-congressional-research-service-and-constitutional-law-scholars-weigh-in-on-president-bushs-authorization-of-warrantless-surveillance.html","title":{"rendered":"The Congressional Research Service and Constitutional Law Scholars Weigh in on President Bush’s Authorization of Warrantless Surveillance"},"content":{"rendered":"\n
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The Congressional Research Service and Constitutional Law Scholars Weigh in on President Bush’s Authorization of Warrantless Surveillance:
Why This Controversy Bridges the Partisan Divide, At Least Among Experts<\/span><\/h1><\/td>\n <\/tr>\n

By ELAINE CASSEL<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Jan. 12, 2006<\/td>\n\n <\/tr>\n <\/table>\n

On December 16, 2005, the New York Times<\/i> <\/i><\/i><\/i>had a riveting page one headline: “Bush Lets U.S. Spy on Callers without the Courts.” The article reported that, in 2002, President Bush signed an executive order directing the National Security Agency (NSA) to listen in on overseas phone calls to and from the United States – without approval from any court, even the Foreign Intelligence Surveillance Act (FISA) Court. <\/p>

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After first refusing to discuss the report, President Bush went on the offensive – even threatening those who exposed the program with investigation. (The Times<\/i> had held the story for more than a year, for reasons yet not fully explained). <\/p>

It turns out that only eight members of Congress knew of the program. They were told shortly after it began in 2002, and they were, literally, sworn to secrecy. Congress as a whole was neither consulted nor asked to amend FISA to allow the surveillance the President wanted – even though it had overwhelmingly passed the USA Patriot Act after September 11.<\/p>

In a December 22, 2005 letter to Congress<\/a>, Assistant Attorney General William Moschella tried to defend Bush’s actions to the literally hundreds of members who were left out of the loop. He contended that the legal foundation for the surveillance program derived from Congress’s September 18, 2001 Authorization to Use Military Force in Afghanistan (AUMF); the President’s inherent powers as Commander-in-Chief during “wartime”; and historical precedent for more liberally interpreting the Fourth Amendment’s reasonableness requirement for warrantless searches in “wartime.” <\/p>

Meanwhile, the President’s approval rating has dropped only a point – from his pre-Times<\/i> article rating of 47 percent. And public opinion on the issue has so far followed a roughly partisan divide. In a Washington<\/i> Post<\/i>-ABC News poll of 1,001 randomly selected adults, reported on January 11, 75 percent of Republicans thought the program was acceptable, while 61 percent of Democrats said it was not.<\/p>

On January 5, the non-partisan Congressional Research Service (CRS) released its own report<\/a> on the controversy. And on January 9, fourteen top constitutional law experts and former government officials – among them, prominent conservatives — sent a letter to Congressional leaders<\/a> directly responding the December 22 DOJ letter. <\/p>

Both the CRS and the legal experts’ analyses definitively rebut the Administration’s December 22 defense of its actions. And even Bush Supreme Court nominee Samuel Alito, when asked in his confirmation hearings whether the president is above the law, answered with a definite “no.” <\/p> Column continues below \u2193<\/a>\n\n