http://www.azcentral.com/news/articles/0107nsa-spying07.html

Report questions legality of Bush's wiretaps

Erice Lichtblau and Scott Shane New York Times Jan. 7, 2006 12:00 AM

WASHINGTON - President Bush's rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a congressional analysis released Friday.

The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Bush act within the law when he ordered the National Security Agency, the country's most secretive spy agency, to eavesdrop on some Americans?

The report reached no bottom-line conclusions on whether the program was legal, in part because it said so many details of the operation remained classified.

But it raised doubts about the power to bypass Congress in ordering such operations, saying the legal rationale "does not seem to be as well grounded" as the administration's lawyers have argued.

The report was critical of an administration justification for the program, that Congress had effectively approved such eavesdropping after the Sept. 11, 2001, attacks by authorizing "all necessary and appropriate force" against groups responsible for the attacks. Congress "does not appear to have authorized or acquiesced in such surveillance," the report said, adding that the administration's reading of some provisions of wiretap law could render them "meaningless."

Administration lawyers took issue with several conclusions, saying Bush had acted within his constitutional and statutory powers.

"The president has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks," Brian Roehrkasse, a Justice Department spokesman, said, adding that the program represented "a critical tool in the war on terror that saves lives and protects civil liberties at the same time."

Many Democrats and some Republicans pointed to the findings as perhaps the strongest indication that Bush might have exceeded his authority in fighting terrorism.

Thomas Kean, a Republican who chaired of the 9/11 commission on the attacks, weighed in for the first time in the debate, saying that he doubted the legality of the program. He said in an interview that the administration had not informed his commission about the program and that he wished it had.