Yesterday the Congressional Research Service, the nonpartisan research arm of Congress, released a report [PDF format] that argues that the NSA surveillance program is not as "well-grounded" legally as the president and his lawyers argue.

While the CRS is nonpartisan -- that is, neither Democrat nor Republican -- it still has an unmentioned bias that is even more important in a case such as this -- a bias toward Congressional power. What is at issue in this case is the separation of powers between the legislative and executive branches. The CRS report relies heavily on FISA to call into question the NSA program. The problem is that President Bush is asserting his Article II powers as commander in chief (in conjunction with Congress' authorization for use of force against Al Qaeda) and Congress cannot remove or curtail those powers through legislation any more than the President can remove the Congress' power of the purse by executive order.

The media has not done a good job of reporting on the CRS report. Powerline's John Hinderaker does an excellent job of critiquing the Washington Post's article, and many of those criticisms also apply to the New York Times article on the subject, though it does a better job of describing the uncertainty in the CRS report.

On a related note: I also commend to you this analysis of the Youngstown Steel case, also by John Hinderaker, which is a big part of the basis for the CRS report.