White House legal foundation washed out.

In a story out just within the past few hours, a Congressional Service has undercut the Bush administration's legal argument in favor of domestic spying.

WASHINGTON - A memorandum from two congressional legal analysts concludes that the administration's justification for the monitoring of certain domestic communications may not be as solid as President Bush and his top aides have argued.

The Congressional Research Service, which advises lawmakers on a wide range of matters, said a final determination about the issue is impossible without a deeper understanding of the program and Bush's authorization, "which are for the most part classified."

Yet two attorneys in the organization's legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees "does not seem to be as well-grounded as the tenor of that letter suggests."

This is significant for two reasons. The first is that the Congressional Research Service, after over a decade of GOP control of the house, can hardly be written off as some kind of 'liberal' organization. During the past few weeks, as the water has been muddied by partisan sniping over the issue, there has not been a clear voice disputing the White House position which was not immediately attacked (usually inaccurately) as being biased towards the left. But this report has to be taken seriously by conservatives simply because they can't just dismiss the messenger as having a 'liberal bias,' without looking like inept fools themselves.

The second is that as we learn every day more and more about the widespread surveillance, for example learning today that The Department of Homeland Security has been opening and reading private mail, including some that both originate and end with people who have no connection to terrorism (as in the case profiled in the story), the legal basis for all of these acts is called into question.

The best defense conservatives can come up with is to point to statements like this (from the first story):

Ken Bass, a Carter administration Justice Department official and an expert on the Foreign Intelligence Surveillance Act, said the issue of the president's inherent power has remained unresolved for decades.

The White House's analysis of presidential power is consistent with previous administrations, Bass said. But he said he didn't know of an administration that had asserted authority for four years, as in the monitoring program, to delegate decisions normally requiring court orders to midlevel intelligence officials.

OK, it is an unresolved issue (and Bass suggests that warrantless surveillance on the scale that is happening now has never been done). That is not to say it is legal, but instead that it hasn't been tested in court. And if it were-- (from the first article):

But the memo concludes: "It appears unlikely that a court would hold that Congress has ... authorized the NSA electronic surveillance operations here under discussion."

So then it would come down to an executive order. Well, the right was quick to jump up and claim that the White House was covered by Clinton and Carter executive orders. One problem with that-- they ARE NOT. Carter did issue a number of directives authorizing various types of surveillance, but those were actually issued during an era when the nation was wrestling with the question of how to conduct surveillance at all in the complete absence of any rules (or at least any that had been kept)-- remember the country had just awoken from the Richard Nixon/J. Edgar Hoover nightmare, and expanding surveillance powers was not at all on Jimmy Carter's priority list-- spelling out in English what could and could not be done was. And there is NO Carter executive order authorizing warrantless surveillance of Americans. None.

Now, Clinton did push for (but didn't get Congress to agree with him on) increased use of warrantless surveillance. He did not issue an executive order that expanded the powers granted by Reagan order 12333 (which allows warrantless surveillance against 'foreign agents.') 12333 was signed at the height of the Cold War when the concern was keeping tabs on Soviet spies, however I am willing to concede that in the context of today's world, 'known or suspected terrorists' could probably be substituted for 'foreign agents,' and no reasonable person would object to 12333 being applied. To be honest, the fact that the right has not referred to 12333, instead ambiguously saying 'Carter and Clinton' orders (which ones? They won't give you order numbers because there AREN'T any that would justify White House spying, and by being vague they can get away with it for awhile-- but they are running out of rope as no one has yet cited which order) tells you one thing right away: they are going BEYOND persons known or suspected of terrorism, and so in this context, the language of 12333 becomes a limitation instead of a support.

The most humorous part of this has been to watch the Republicans tie themselves up in knots about spying by the Clinton administration. A few weeks ago they were saying that Clinton was too cautious and set up too many hurdles to effective surveillance in their quest to protect civil liberties (remember the Curt Weldon allegations), but today they are claiming that whatever Bush is doing, Clinton did it first. My Gosh, even Clinton himself couldn't change his color as quickly as the GOP is about this.

Specifically, in NO PLACE in any Carter or Clinton order, or Reagan executive order 12333 for that matter, does it allow for data mining, surveillance against persons for whom there is no probable cause to claim they are terrorists, or the type of profiling that we see when they simply open every piece of mail which comes from the Philippines (in fact, I have two friends in the Philippines on a religious mission right now, I wonder if I write them whether the Department of Homeland Security will rip open the letter and read it.)

And the real troubling point is this: Any search of a terror suspect, including surveillance, could be accomplished easily and within minutes by, GETTING A WARRANT. Everything that has been done, if it was about watching terror suspects, could have been done without any of this beating around in the bushes. So one has to conclude that the reason that this White House is going to such extraordinary measures to push their warrantless surveillance is precisely because they are going beyond 'terror suspects,' and that that is part of their plan.

For too long, this administration has pursued a 'legal by assertion' strategy on this, claiming that if it didn't say it was illegal, therefore it was legal. It's about time someone with unquestioned credibility called them on it.