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CRS attacked again on wiretap bias

By SHAUN WATERMAN, UPI Homeland and National Security Editor

WASHINGTON, Feb. 20 (UPI) -- Another House GOP committee chair has joined criticism of the Congressional Research Service for its legal analysis of the administration's program of warrantless counter-terrorist electronic surveillance.

Rep. F. James Sensenbrenner, R-Wisc., conservative chairman of the powerful House Committee on the Judiciary, wrote to the service's director, Daniel Mulhollan, earlier this month.

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In the letter, Sensenbrenner says that he asked two legal scholars to review the 44-page Jan. 5 CRS memorandum on the surveillance program -- which analyzed the administration's legal rationale for the program as laid out at that time, and found it wanting.

Sensenbrenner said the scholars, both of whom have conservative reputations, "expressed concerns that the memorandum is based on an incomplete analysis of the law."

He hinted that the conservative tradition of legal scholarship his correspondents represented had not been taken sufficiently into account.

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Members of Congress, he wrote, rely on the service for "objective analysis of legislative and legal matters. In doing so, I believe it is imperative that the various positions on an issue be fully discussed, which is why I am forwarding you the attached letters for your review and comment."

No one at the Congressional Research Service could be reached for comment Sunday, but in the past, officials there have said the service does not comment on its correspondence with members of Congress.

Defenders of the service say that Sensenbrenner's letter -- which was first reported in The Hill newspaper last week -- is part of a concerted effort on the part of the GOP congressional leadership to cow or silence sources of independent authority and expertise.

Last month, House Permanent Select Committee on Intelligence Chairman Peter Hoekstra, R-Mich., also complained about the service's analysis of the surveillance program, questioning whether its analysis was truly free from partisan bias, and footnoting a media report about the Democratic political sympathies about one of its research staff.

The Jan. 5 memorandum criticized by Hoekstra and Sensenbrenner examines in some detail the arguments of Attorney General Albert Gonzales and other officials that the surveillance program run by the National Security Agency was given a legislative basis by Congress' enactment of the Authorization for the Use of Military Force, passed in September 2001.

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The authors' conclusions are relatively blunt.

"It appears unlikely," the memorandum reads, "that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion."

"The administration's legal justification (for the program) does not seem to be as well-grounded as the tenor of" its comments would suggest, the authors finish.

One of the critics cited by Sensenbrenner, Robert Alt, a columnist for the right-wing National Review Online, and a fellow of the conservative-leaning John M. Ashbrook Center for Public Affairs at Ashland University, attacks the memo's analysis of the Foreign Intelligence Surveillance Act.

The authors' reading of the act "is erroneous," he writes, "and violates the most fundamental principles of statutory interpretation."

But he does not accuse them of bias.

Defenders of the Congressional Research Service, like Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists, say this is an important distinction.

"There is a big difference between allegations of errors and claims of bias," he told United Press International.

"Everyone makes mistakes," he said and there might well be errors or omissions in the memo. "But it is a huge leap from that to say that the service or its researchers are biased."

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He said that such a leap is "subversive in its consequences, because it says that you have twisted the facts for malicious motives."

The fact that Sensenbrenner had to turn to two "avowedly conservative" legal scholars for his analysis "suggests that the bias is on his end," concluded Aftergood.

The clearest allegation of bias in the Sensenbrenner correspondence is in the letter he forwarded from his second correspondent, said John Eastman, law professor and director of the Claremont Institute Center for Constitutional Jurisprudence at Ashland University.

But Eastman said the service's bias is institutional, not partisan. The memo's authors are not anti-Republican, he charges, they are anti-Executive Branch.

"Every indulgence in favor of congressional authority that can even weakly be drawn from existing judicial opinions is drawn," he writes, while "every recognition by the courts of inherent executive power is downplayed or ignored."

Eastman argues his own support of the administration's own authority to conduct the program is "much better grounded in constitutional text, precedent, history, and the political theory espoused by our nation's Founders" than its critics.

The theories of presidential power that conservative scholars like Eastman subscribe to are part of the broader context of Sensenbrenner's criticism, according to some of the service's defenders.

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To Aftergood, Sensenbrenner's letter was "an act of intimidation" -- part of a campaign by the congressional GOP to stifle potential voices of dissent against the administration.

Aftergood said that after the GOP got control of Congress in 1996, their leadership had closed down the non-partisan Congressional Office of Technology Assessment for "being too independent."

"The subtext of the current assault on the (congressional research service)," he said, was "You are next."

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