CRS Weighs In Again on NSA Program

For the second time in a month, the Congressional Research Service has issued an opinion regarding the legality of the NSA domestic surveillance program. This time, the CRS takes issue with the Bush administration's failure to do anything more than notify a few Congressional leaders about the program:

The Congressional Research Service opinion said that the amended 1947 law requires President Bush to keep all members of the House and Senate intelligence committees "fully and currently informed" of such intelligence activities as the domestic surveillance effort.

[National Security Specialist Alfred] Cumming's analysis found that both intelligence committees should have been briefed because the program involved intelligence collection activities.

The only exception in the law applies to covert actions, Cumming found, and those programs must be reported to the "Gang of Eight," which includes House and Senate leaders in addition to heads of the intelligence panels. The administration can also withhold some operational details in rare circumstances, but that does not apply to the existence of entire programs, he wrote.

Unless the White House contends the program is a covert action, the memo said, "limiting congressional notification of the NSA program to the Gang of Eight . . . would appear to be inconsistent with the law."

As you'll recall, as far as we know the administration has only kept a "gang of four" briefed on the program, including the chairs of the House and Senate Intelligence committees and two ranking Democrats. Even if the administration contends that the program is "covert action" they failed to notify the requisite number of members of Congress. But whether a domestic intelligence program can be defined as "covert action" in the first place is quite another matter. Looking to the portion of United States Code that deals with accountability for intelligence matters, if we look to 50 U.S.C. Sec. 413(b) we see covert action defined as:

(e) ''Covert action'' defined

As used in this subchapter, the term ''covert action'' means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include-
(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities

Now this section applies only to presidential approval and reporting of covert actions, but I think that this definition is almost certainly more generally applicable. As you'll note, this definition specifically does not include intelligence gathering activities under the definition of "covert action."

Of course as always we must remember that this is merely a legal opinion, which does not become a ruling on law until a court steps in. But the CRS, a non-partisan organization, is as well-qualified to issue an opinion on the subject as anyone, and the argument is clear enough so that it's hard to imagine a court finding otherwise unless it adopts a very broad definition of Presidential war-power.