The Bush administration's acknowledgement of secret and unauthorized domestic spying since the 9/11 attacks has roiled both Republicans and Democrats in Congress. On Dec. 16, The New York Times reported President Bush authorized the National Security Agency (NSA) to eavesdrop on domestic phone calls and emails without a wiretapping warrant, kicking off a storm of protest just as renewal of the USA PATRIOT Act was being considered. OMB Watch responded to the unfolding events in a Dec. 20 statement. The following is a summary of major events since the Times story broke.

As news of the surveillance was reported, the president launched a full-scale defense of his actions. On Dec. 20, Vice President Dick Cheney said the president "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done." The president spoke in national forums on the importance of protecting the American public in the aftermath of terrorist attacks, and acknowledged authorizing the domestic spying as one means for providing such protection.

On Dec. 22, Assistant Attorney General William Moschella sent a letter to Congress, providing a legal justification for the actions. The Moschella letter argues that the President has the authority to authorize the spying, and that it is in the national interest that the spying is conducted. The letter further argues that the inherent powers of the president as Commander in Chief, authorized under Article II of the Constitution, give him the power to protect the nation against attacks and that "[t]his constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States..."

Moschella added that the congressional joint resolution passed in September 2001, called the Authorization for Use of Military Force (AUMF), provides additional authority for the presidential action. The AUMF gave the president the power to use "all necessary and appropriate force" against those responsible for the 9/11 terrorist attacks. According to Moschella, "The AUMF cannot be read as limited to authorizing the use of force against Afghanistan..." The Moschella letter assumes the definition of "force" includes domestic spying.

The next day former-Senate Minority Leader Tom Daschle, who helped negotiate the language of the AUMF, responded with an opinion piece in the Washington Post: "I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance." Daschle added that more expansive language sought by the White House, which would have added a provision making clear that the president was grant power to act within the United States, was rejected.

Despite the White House legal justification, legal experts appeared unconvinced. Rather than face these criticisms, however, the White House has now shifted gears. On Dec. 30, the Justice Department announced it would investigate the leaks to the news media, particularly The New York Times, of information about the NSA spying program. The White House argued that the government employee(s) who leaked the information had threatened national security. Many have argued that such people are whistleblowers that should be protected under law. The White House, however, strongly disagrees. The Justice Department investigation is ongoing.

Debate over whether the president has the legal authority to authorize this extrajudicial eavesdropping has remained heated. On Jan. 6, the Congressional Research Service (CRS) provided Senators with a report questioning the legal justification provided by the administration. The 44-page memo stated, "It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here." They continued, saying the administration's legal justification is not "well-grounded."

The CRS authors argue that it is unlikely Bush can claim the broad presidential powers he has relied upon as authority to order the secret monitoring of emails and calls made by U.S. citizens. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance. The report also concluded that the AUMF does not appear to give Bush the authorization to eavesdrop, in order to detect and fight terrorists.

On Jan. 9, 14 prominent constitutional experts and former government officials reached a similar conclusion, arguing that the Bush administration lacks "any plausible legal authority" for the secret domestic spying. In a letter to Congress, they rejected the argument that the AUMF implicitly authorized warrantless domestic wiretapping. In addition, they rejected the argument that the president has inherent powers under Article II of the Constitution as Commander in Chief to act when Congress has provided express statutory requirements to get authority from a court established under the Foreign Intelligence Surveillance Act (FISA). Finally, the letter notes that warrantless domestic wiretapping raises serious questions under the Fourth Amendment, which deals with probable cause and warrants.

The signers include deans and former deans of prestigious law schools, a former director of the FBI, a former deputy attorney general, a former acting solicitor general, two lawyers who worked in the executive branch under President George H. W. Bush, and a prominent conservative scholar and fellow at the Hoover Institution.

Public opinion appears to be on the side of these legal experts. An AP-Ipsos poll conducted last week found 56 percent of Americans believe the government should be required to first get a court warrant to eavesdrop on the overseas calls and e-mails of U.S. citizens, even when those communications are believed to be tied to terrorism.

As this article is being written, the The Washington Post is reporting that the NSA's inspector general has launched an investigation into the NSA's activities under the spying program. This is surprising, the Post notes, because President Bush said last month that the spying was "thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general." This raises questions why the same person who has already reviewed and approved the actions would now be investigating that approval. The Post also says that other inspectors general declined to open investigations, even after House Democrats wrote a letter requesting investigations into the legality of the warrantless domestic spying. The Justice Department inspector general said he did not have the authority to which the Democrats responded on Jan. 9 that the inspector general statute and the USA Patriot Act call for the Justice Department to get involved.

Sen. Arlen Specter (R-PA), the chair of the Judiciary Committee, has said he intends to hold hearings on the administration's actions and the legal justification for the secret authorization of wiretapping. Additionally, five members of the Senate Intelligence Committee, including GOP Sens. Olympia Snowe (ME) and Chuck Hagel (NE), have called for immediate inquiries.