Former Senate Minority/Majority/Minority Leader Tom Daschle has an op-ed in today’s WaPo which would explain why President Bush didn’t just ask Congress for more domestic surveillance authority in the wake of the 9/11 attacks.

In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president “was granted authority by the Congress to use all means necessary to take on the terrorists, and that’s what we’ve done.”

As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

[…]

The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress — but at the time, the administration clearly felt they weren’t or it wouldn’t have tried to insert the additional language.

Bart Gelman adds,

The Justice Department acknowledged yesterday, in a letter to Congress, that the president’s October 2001 eavesdropping order did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.”

[…]

Yesterday’s letter, signed by Assistant Attorney General William Moschella, asserted that Congress implicitly created an exception to FISA’s warrant requirement by authorizing President Bush to use military force in response to the destruction of the World Trade Center and a wing of the Pentagon. The congressional resolution of Sept. 18, 2001, formally titled “Authorization for the Use of Military Force,” made no reference to surveillance or to the president’s intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.

But Moschella argued yesterday that espionage is “a fundamental incident to the use of military force” and that its absence from the resolution “cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.” Such eavesdropping, he wrote, necessarily included conversations in which one party is in the United States.

It’s quite possible that the administration simultaneously thought they had inherent power to do something and nonetheless sought the explicit approval from Congress, seeking additional legitimacy. It’s also possible that, after being denied additional power from Congress, the White House’s legal advisors looked for more creative ways to get the job done. That’s what lawyers do, after all.

Still, presuming Daschle’s account is not substantially contradicted, this revelation puts the administration in a less sound position on this matter than they were a day ago. Just as explicit authority from Congress would have strengthened the president’s hand, explicit denial weakens it.

The last line of Gelman’s piece is rather amusing:

Republican legislators involved in the negotiations could not be reached for comment last night.

Considering that Congress has hightailed it out of town for the holidays after being delayed by filibusters and last-minute wrangling, I’m not surprised. Either Daschle was exceedingly clever in timing his op-ed for the Christmas break, or it was quite a fortuitous coincidence.

Correction: The original misstated the side of Capitol Hill where Daschle was employed.