As Scott Shane of the New York Times explains:
The program, whose existence was revealed in an article in The New York Times on Dec. 16, has provoked sharp criticism from civil liberties groups, some members of Congress and some former intelligence officials who believe that it circumvents the law governing national security eavesdropping.
But the administration insists that it has acted within the bounds of Mister Bush's executive authority.
President Bush and Attorney General Alberto R. Gonzales have vigorously defended the program as a legal, critical defense against terrorism that has helped prevent attacks in this country. They say Mr. Bush's executive order authorizing the program is constitutional as part of his powers as commander in chief and under the resolution passed by Congress days after the attacks of Sept. 11, 2001. That resolution authorized the use of force against terrorists.
The congressional resolution Shane refers to was the Authorization for Use of Military Force (AUMF) passed by both houses of the legislature on September 18, 2001. That act constituted "specific statutory authorization" under the War Powers Resolution of 1973 for Mr. Bush to take certain actions in what has come to be known as the Global War on Terror. Most notably, he was authorized to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
NSA's domestic surveillance isn't the only questionable activity of the executive branch that the administration has claimed legal authority to conduct under the Constitution and the AUMF.
On December 30, 2005, Dana Priest of The Washington Post reported on the ambitious CIA program Mr. Bush authorized after 9/11.
The broad-based effort, known within the agency by the initials GST, is compartmentalized into dozens of highly classified individual programs, details of which are known mainly to those directly involved.
GST includes programs allowing the CIA to capture al Qaeda suspects with help from foreign intelligence services, to maintain secret prisons abroad, to use interrogation techniques that some lawyers say violate international treaties, and to maintain a fleet of aircraft to move detainees around the globe. Other compartments within GST give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world.
Priest explains that as with the NSA controversy, the administration defends the GST program as being consistent with the authority granted it in the September '01 AUMF.
"Everything is done in the name of self-defense, so they can do anything because nothing is forbidden in the war powers act," said one official who was briefed on the CIA's original cover program and who is skeptical of its legal underpinnings. "It's an amazing legal justification that allows them to do anything," said the official, who like others spoke on the condition of anonymity because of the sensitivity of the issues.
(In backchannel correspondence, Ms. Priest clarified that the anonymous official was referring to the AUMF when used the term "war powers act.")
Ultimately, the administration's claims to "plenary" or "absolute" wartime powers to legitimize anything the executive branch has done in its conduct of the Global War on Terror will rest in the AUMF, and in light of that piece of legislation, the legislative and judiciary branches will have a tough time reigning in Mr. Bush's claims to sweeping authorities as a wartime Commander in Chief.
Coming in Power Games Part II: the dynamics of separations of power in the Global War on Terror.