A congressional report challenges Bush spy program

WASHINGTON -- A report by Congress's research arm concluded yesterday that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments.

The Congressional Research Service's report disputes the central assertions made recently by Bush and Attorney General Alberto R. Gonzales about the president's authority to order secret intercepts of telephone and e-mail exchanges between people inside the United States and their contacts abroad.

The findings, the first nonpartisan assessment of the program's legality to date, prompted Democratic lawmakers and civil liberties advocates to repeat calls for Congress to conduct hearings on the monitoring program and attempt to halt it.

The 44-page report said Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by US 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 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 [National Security Agency] electronic surveillance operations here," the authors of the report wrote. The administration's legal justification ''does not seem to be . . . well-grounded," they said.

Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, has pledged to hold hearings on the program, and the judges of the intelligence surveillance court have demanded a classified briefing about the program, which is scheduled for Monday.

''This report contradicts the president's claim that his spying on Americans was legal," said Senator Frank R. Lautenberg, Democrat of New Jersey, one of the lawmakers who asked the research service to look into the issue. ''It looks like the president's wiretapping was not only illegal, but also ensnared innocent Americans who did nothing more than place a phone call."

Brian Roehrkasse, Justice Department spokesman, said the president and the administration believe the program is on firm legal footing. ''The national security activities described by the president were conducted in accord with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," he said. A spokesman for the National Security Agency was not available for a comment yesterday.

Other administration officials, who spoke on the condition of anonymity, said the service reached some erroneous legal conclusions, erring on the side of a narrow interpretation of what constitutes military force and when the president can exercise his war powers.

Bush has said he has broad powers in times of war and must exercise them to target not only ''enemies across the world," but ''terrorists here at home." The administration has argued, starting in 2002 briefs to the intelligence surveillance court, that the war on terror is global and indefinite, effectively removing the limits of wartime authority.

Some law professors said yesterday that the report's conclusions were expected. ''Ultimately, the administration's position is not persuasive," said Carl W. Tobias, a University of Richmond specialist on constitutional law.