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"More Calls to Pizza Hut"

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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January 20, 2006

An avalanche of stories on the NSA scandal were delivered to our doorstop this week.

Today, the Justice Department released a 42-page defense of the program, intended to rebut the nonpartisan Congressional Research Service report concluding the program was likely illegal.

Robert Reinstein, dean at Temple Law School, puts it in perspective in the above article:

[T]he eavesdropping program [is] “a pretty straightforward case where the president is acting illegally,” and he said there appeared to be a broad consensus among legal scholars and national security experts that the administration’s legal arguments were weak.

The foreign intelligence law passed by Congress in 1978 represents the Bush administration’s biggest legal hurdle, Reinstein said, adding “When Congress speaks on questions that are domestic in nature, I really can’t think of a situation where the president has successfully asserted a constitutional power to supersede that.”

The LA Times has more scholarly rejoinder:

“When you have a statute that seems to be pretty clear and pretty specific about what ought to happen, and then that is just ignored, that is probably the weakest point in their analysis,” said Carl Tobias, a law professor at the University of Richmond.

“The history is interesting, but irrelevant,” said David Cole, a professor at Georgetown University Law Center in Washington. “If he needed broad authority, he should have come back to Congress and asked for it.”

Also, in response to a request by House Intelligence Committee Ranking Member Jane Harman, the CRS released another report questioning the legality of the hyper-limited Congressional briefings on the NSA surveillance, which were only given to the “Gang of Eight” the House and Senate leadership and the chairman and ranking member on each of the House and Senate intelligence committees.

We were shocked ‘shocked’ to see this piece reporting that the FBI got fed up with the flood of go-nowhere NSA tips from the warrantless surveillance. Apparently, agents used to joke after getting a batch of tips that it was time for more “calls to Pizza Hut.”

Finally, Scott McLellan was on fire this week, slamming former Vice President Al Gore (who called the NSA scandal part of a larger pattern of illegality by the administration) and attacking the credibility of Human Rights Watch (whose only crime was accusing the administration of countenancing torture). (More McLellan here.)

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