Using so many qualifiers that one would think that they owned the franchise on the word “maybe,” the Congressional Research Service (CRS) has determined that the Bush Administration “probably” cannot claim the broad expansion of Presidential powers the President has relied on to justify the NSA intercept program:

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 Mr. 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, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous 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 murkiness contained in the CRS report is not their fault. There are still so many details of the intercept program that are classified that it is impossible to make any kind of determination as to whether or not the program is Constitutional and/or legal.

Then why write a report in the first place? Well, Congress asked them to, that’s why. Twenty-seven Congressmen sent the non-partisan adjunct to the Library of Congress a letter requesting their opinion on the legality of the program and whether or not the Department of Justice’s explanation held any Constitutional water. Under law, they were obligated to respond.

Their answer to both questions was a qualified “probably not:”

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. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.

The report also concluded that Bush’s assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

While this gives some ammunition to civil libertarian absolutists and partisan Democrats, what particularly struck me was the less qualified and stronger rejection by CRS of the rather sloppy Administration argument that Congressional authorization was contained in the “Authorization to Use Military Force” (AUMF) passed in the wake of the 9/11 attacks:

The report also concluded that Bush’s assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

“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.

Orrin Kerr has made the same argument and has pointed out that the DOJ letter was sent by the Office of Legislative Affairs. This bunch probably knew less about the technical details of the program than the rest of us know today thanks to the publication of the Risen book. So, in my opinion, the justifications by the Administration for the program will probably receive a much fuller treatment during the almost certain Congressional hearings on the matter.

All this CRS report does is muddy the waters on both the legality and Constitutionality of the NSA intercept program. Given their limited knowledge of the program and the near certainty that no definitive case could be made one way or the other, one has to look at the motives of those asking for the report in the first place. It seems pretty clear that Congress is very concerned (as they damn well should be) about any unwarranted expansion of executive power – even in time of war. As our friends on the left are so fond of saying, “War doesn’t make the President king.” This is very true but neither should it be the business of Congress to tie the hands of the President and emasculate his powers in matters of national security where the life and death of thousands – perhaps millions – of citizens is at stake.

This is the razor’s edge that our democracy is standing on right now. And the fact that Democrats are using the CRS report as a club to score partisan political points is typical but unhelpful. Perhaps it is too much to ask that we wait until more is known about the intercept program before leaping into either the abyss of executive power emasculation or the quicksand of an imperial Presidency. If we really put our minds to it, perhaps we could come down somewhere in the middle.

Given the rank partisanship on the hill, I wouldn’t hold my breath waiting for it.

UPDATE

John Hinderaker agrees with me on the ambiguity of the report’s conclusions – which either makes me very smart or the CRS report very obvious.

Hinderaker also skewers the Washington Post for their slanted coverage.