The CRS Begs to Differ...

If you ask a Republican whether the NSA spying program is legal they'll say "Of course!" If you ask a Democrat they'll say "Of course not!" This is what is so often construed as political "debate." However, the justifications for the program as well as it's legality can be measured rationally, and though they don't say so in as many words, the non-partisan Congressional Research Service thinks Bush is on thin ice with the program:

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.

"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.

Of course, it is necessary to note that this is a mere opinion on what a court would say were it to judge this issue. Since no one is currently suing Bush or the NSA over the program, the program's legality is not an issue for the courts, but an issue for public opinion and political discourse. That's why conservatives think they can get away with muddying the waters by bringing up the indefinite "war on terror" as a justification for the President's authority. But it is also worth remembering that the question of the legality of this program can and probably will be resolved definitively, and what we know of the program and the President's actions so far suggest that the program is at least Presidential over-reaching, if not flat-out illegal and unconstitutional (both for over-stepping Presidential authority and for violating private constitutional rights.) So don't let the GOP's talking points confuse you. Whatever they say there is a very real limit to Presidential authority, and whatever else we may or may not know, we definitely do know that the President decided that he alone is the arbiter of the limits of his own power. And that should make us all pretty uncomfortable.