© 2006 New York Times http://www.nytimes.com/2006/01/06/politics/06cnd-nsa.html?hp&ex=1136610000&en=00780be4858f8682&ei=5094&partner=homepage

Published: January 6, 2006

By ERIC LICHTBLAU and SCOTT SHANE

WASHINGTON, Jan. 6 - President Bush's rationale for authorizing eavesdropping on American citizens without warrants rests on questionable legal ground and "may represent an exercise of presidential power at its lowest ebb," according to a formal Congressional analysis released today.

The analysis, conducted by the Congressional Research Service, an independent research arm of Congress, is the first formal assessment of a question that has gripped Washington for the last three weeks: Did President Bush act within the law when he ordered the National Security Agency to eavesdrop on Americans?

While the Congressional report reached no bottom-line conclusions on whether the program is legal or not, it concluded that the legal rationale appears somewhat dubious. The legal rationale "does not seem to be as well-grounded" as the Bush administration's lawyers have suggested, and Congress did not appear to have intended to authorize warrantless wiretaps when it gave President Bush the authority to wage war against Al Qaeda in the days after the Sept. 11 attacks, the report concluded.

Bush administration lawyers quickly took issue with the report's conclusions, arguing that President Bush acted within his constitutional and statutory powers in approving the N.S.A. program.

"The president has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks," said Brian Roehrkasse, a spokesman for the Justice Department.

"As the attorney general has stated numerous times, the National Security Agency activities described by the president were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," Mr. Roehrkasse said.

But many Democrats and some Republicans said they found the doubts raised by Congressional report persuasive, pointing to it as another indication that President Bush may have overextended his authority in fighting terrorism.

Thomas H. Kean, the former chairman of the Sept. 11 commission, said he too doubts the legality of the program. Weighing in for the first time on the controversy, he said in an interview that the commission was never told of the operation and that he has strong doubts about whether it is authorized under the law.

Federal law under the Foreign Intelligence Surveillance Act, created in 1978, "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," said Mr. Kean, a Republican and former governor of New Jersey. "We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances."

Opinions on the N.S.A. domestic spying issue have broken down largely, though not exclusively, along partisan lines, causing public rifts between the top Republicans and Democrats on both the House and Senate Intelligence Committees.

But the analyses of the Congressional Research Service, part of the Library of Congress, are generally seen as objective and without partisan taint, said Eleanor Hill, who served as a Congressional staffer for 17 years and was staff director of the joint Congressional inquiry into the Sept. 11, 2001, terrorist attacks.

"My experience is that they're well respected in the Senate and House," said Ms. Hill, now a Washington lawyer in private practice. "I don't remember anybody attacking them for being partisan. They're more academic in approach."