Media Matters for America

Apparently referring to some of the speakers at Coretta Scott King's February 7 funeral, Republican political strategist Mary Matalin stated that "these civil rights leaders are nothing more than racists." Continuing, Matalin claimed that "they're keeping constituency, they're keeping their neighborhoods and their African-American brothers enslaved ... by continuing to let them think that they're -- or forced to think that they're victims." Matalin's comments came during the February 8 edition of Fox News' Hannity & Colmes.

Several speakers at the funeral included political messages, some critical of President Bush, in their addresses, drawing sharp criticism from numerous conservative figures.

From the February 8 edition of Fox News's Hannity & Colmes:

MATALIN: Well, when you're -- have no facts -- you know, there's no facts, there's no vision. Therefore, there's no hope, it's all hate, and it's all anger. So it's -- I'll say again, it's sad. Look, this -- we're at a time in our nation's history where we need all the best brains involved in the process, and one whole party has taken itself out of the game here.

SEAN HANNITY (co-host): Yeah.

MATALIN: And the reason that -- it's not their face. It's not their message. There's no policy, there's no facts. I mean, the attacks on the president yesterday completely missed the progress that's been made in the African-American community, which can be credited to President Bush. African-American homeownership at an all-time high --

HANNITY: Well --

MATALIN: -- the achievement gap between the white and black students at a high, closing, narrowing. I mean, you know, I think these civil rights leaders are nothing more than racists. And they're keeping constituency, they're keeping their neighborhoods and their African-American brothers enslaved, if you will, by continuing to let them think that they're -- or forced to think that they're victims, that the whole system is against them. Articulate it better, Sean; it's so sad to me.

On the February 6 edition of Fox News' Special Report with Brit Hume, chief Washington correspondent Jim Angle repeated as fact President Bush's and Attorney General Alberto R. Gonzales's explanation for Bush's April 20, 2004, remarks on wiretap authorization. Bush stated that "any time you hear the United States government talking about wiretap, it requires ... a court order," and that "[w]hen we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Critics have argued the 2004 statement indicates Bush falsely suggested that the administration would not conduct domestic surveillance without a warrant, even though that is what the administration was secretly doing. Bush and Gonzales have defended the 2004 statement, claiming it applied only to roving wiretaps in the context of the USA Patriot Act. Although Bush made the 2004 statement in the context of defending the Patriot Act's authorization of roving wiretaps, as Media Matters for America previously noted, Bush's statement was unqualified as it referred to all wiretapping activity. In his report, Angle did not inform viewers that Bush's explanation of his 2004 remarks is contradicted by his own words; Angle stated only that Bush said "warrants are always obtained in domestic wiretaps under the Patriot Act."

Angle repeated Gonzales's defense of Bush's 2004 statement while reporting on an exchange between Sen. Dianne Feinstein (D-CA) and Gonzales, during Gonzales's February 6 testimony at the Senate Judiciary Committee hearing on the secret warrantless eavesdropping program Bush authorized. Angle stated:

ANGLE: Senator Feinstein even accused the president of lying in a statement he made in 2004, saying warrants are always obtained in domestic wiretaps under the Patriot Act. Gonzales said that has nothing to do with international intercepts of terrorist communications.

Angle's report echoed Gonzales's defense of Bush's 2004 statement, made in response to a question from Feinstein:

FEINSTEIN: Mr. Attorney General, in light of what you and the president have said in the past month, this statement appears to be false. Do you agree?

GONZALES: No, I don't, Senator. In fact, I take great issue with your suggestion that, somehow, that the president of the United States was not being totally forthcoming with the American people.

I have his statement, and in the sentence immediately before what you're talking about, he said -- he was referring to roving wiretaps.

And so, I think anyone --

FEINSTEIN: So, you're saying that statement only relates to roving wiretaps, is that correct?

GONZALES: Senator, that discussion was about the Patriot Act. And right before he uttered those words that you're referring to, he said, "Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talk about wiretaps, it requires -- a wiretap requires a court order."

So, as you know, the president is not a lawyer, but this was a discussion about the Patriot Act, this was a discussion about roving wiretaps. And I think some people are trying to take part of his statement out of context, and I think that's unfair.

FEINSTEIN: OK, fair enough. Let me move along.

Gonzales's statement echoed remarks Bush made at a January 1 White House press conference. When a reporter asked Bush if he was "in any way misleading" when he stated in 2004 that wiretaps require warrants, Bush responded that he "was talking about roving wiretaps ... involved in the Patriot Act," which, he said, is "different from the NSA program":

QUESTION: In 2004, when you were doing an event about the Patriot Act, in your remarks, you had said that any wiretapping required a court order, and that nothing had changed. Given that we now know you had prior approval for this NSA program, were you in any way misleading?

BUSH: I was talking about roving wiretaps, I believe, involved in the Patriot Act. This is different from the NSA program. The NSA program is a necessary program. I was elected to protect the American people from harm.

But as Media Matters noted, although Bush's 2004 statement was made in the context of defending the Patriot Act's authorization of roving wiretaps for which warrants are obtained, it referred to all wiretapping activity, not just "roving wiretaps ... involved in the Patriot Act" as Bush later claimed. From Bush's "Conversation on the USA Patriot Act" in Buffalo, New York, on April 20, 2004:

BUSH: Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

From the February 6 edition of Fox News' Special Report with Brit Hume:

ANGLE: The questioning also got rather personal as Senator [Russ] Feingold [D-WI] flatly accused Gonzales of having lied in his confirmation hearing.

FEINGOLD: Look, this is what you said: "It's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes." And when you said that, you knew about this program.

ANGLE: Gonzales said his answer stands that what the president authorized was not illegal, but Feingold said Gonzales knowingly misled the Senate.

FEINGOLD: Of course, if you had told the truth, maybe, that would have jeopardized your nomination.

GONZALES: Senator, I told the truth then. I'm telling the truth now. You asked about a hypothetical situation of the president of the United States authorizing electronic surveillance in violation of our criminal statutes. That has not occurred.

ANGLE: Senator Feinstein even accused the president of lying in a statement he made in 2004, saying warrants are always obtained in domestic wiretaps under the Patriot Act. Gonzales said that has nothing to do with international intercepts of terrorist communications -- all prompting this observation from Senator Lindsey Graham [R-SC].

GRAHAM: Well, I would think if you believed that our president was breaking the law, you'd have the courage of your convictions and you'd bring -- you'd stop funding for it.

During an interview with Vice President Dick Cheney on the February 7 edition of PBS' The NewsHour with Jim Lehrer, anchor Jim Lehrer missed numerous opportunities to challenge assertions Cheney made in defense of the Bush administration's domestic surveillance program, in which the National Security Agency (NSA) eavesdrops on calls involving parties in the United States without court-approved warrants.

Below are suggestions for how Lehrer could have followed up on some of Cheney's assertions:

Cheney claimed administration has "all the legal authority we need" to conduct warrantless domestic surveillance

LEHRER: Is the president willing to work with Congress to settle some of the legal disputes about the NSA surveillance program?

CHENEY: We believe, Jim, that we have all the legal authority we need. He indicated the other day he's willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest. We'd have to make a decision as an administration whether or not we think it would help and would enhance our capabilities. But as I say, we believe firmly that based on the Constitution, based on the authorization for the use of force Congress passed in the immediate aftermath of 9-11, that we have all the legal authority we need with respect to the NSA program.

Possible follow-up: Lehrer could have noted that numerous lawmakers and legal scholars of all political stripes question the administration's assertion that it has the legal authority to bypass the Foreign Intelligence Surveillance Act (FISA) to conduct warrantless wiretapping.

Even conservative lawmakers and legal scholars have criticized the administration's legal argument. For example, Bruce Fein, former associate deputy attorney general under President Reagan, recently said that the administration's justifications for the program's constitutionality "would permanently shift the political and constitutional landscape towards one-branch government contrary to the intent of the Founding Fathers." Senate Judiciary Committee chairman Arlen Specter (R-PA) similarly stated that no "fair reading" of the 2001 resolution would justify the surveillance and that the administration's interpretation of FISA "just defies logic and plain English." The nonpartisan Congressional Research Service (CRS) published a January 5 report concluding that the Bush administration's legal justification for the program "conflicts with existing law and hinges on weak legal arguments."

Cheney claimed administration did not seek legislation altering FISA because of "consensus" that such action "would disclose the program in ways that would potentially be damaging to it"

LEHRER: There were two Republican senators at the Senate Judiciary Committee hearing yesterday who made the strong point -- Senator [Mike] DeWine of Ohio and Senator Lindsey Graham of South Carolina said it would be in the interests of the country, interests of the president and interests of everybody involved for Congress and the president to sort this out and get it behind it, get it off the table. You don't agree with that?

CHENEY: Well, I don't think it would necessarily be in the interests of the country, especially if we get into a situation where the legislative process leads to the disclosure of sensitive operational matters with respect to this program. If we end up destroying the effectiveness of the program by broadcasting far and wide operational details that would allow our enemies to in effect negate it or neutralize its effectiveness, that's not in anybody's interests. That clearly is not in the national interest, and the concern in the past when we had had discussions with those members of Congress that had been briefed into the program about the possible amendment, if you will, or additional legislation on this issue, there was a consensus that, in fact, proceeding to do that would disclose the program in ways that would potentially be damaging to it.

So there was a consensus between those of us in the administration who were involved as well as the leaders on Capitol Hill that were briefed on the program that legislation would not be helpful.

Possible follow-up: Lehrer could have noted that, contrary to Cheney's version of events, Attorney General Alberto R. Gonzales initially claimed that the administration did in fact seek legislation altering FISA, but that it was rebuked by Congress. As The New York Times noted on February 7:

Mr. Gonzales also clarified again a statement he made on Dec. 19, a few days after the spying program was disclosed by The New York Times. At the time, he said the administration had not sought an amendment to the 1978 law because "certain members of Congress" had "advised that that would be difficult, if not impossible." Since then Mr. Gonzales has said the real problem is that such legislation could not be enacted without compromising the program.

Lehrer also could have mentioned that, even as it was already bypassing FISA in 2002, the Bush administration resisted a congressional effort to amend FISA to make it easier to obtain warrants. As Media Matters for America has noted, the Justice Department issued a statement opposing proposed legislation by Sen. Mike DeWine (R-OH) to loosen the standard for surveillance under FISA from "probable cause" to "reasonable basis" for non-U.S. persons, who are not entitled to the same constitutional protections as U.S. persons. The Justice Department statement noted that the change was likely unnecessary and, even with the bill's limitation to surveillance of non-U.S. persons, possibly unconstitutional.

Cheney claimed that Justice Dept. assessment of legal authority for spy program was "thoroughly exhausted"

LEHRER: But there has not been any new conversations about that with Congress just in the last two or three days since this thing has really mushroomed into a controversy?

CHENEY: Not that I've been -- not that I've been involved in. But some of the controversy -- Jim, again let me emphasize here, when we briefed the chairman and ranking members of the committee on this program which we've done at least a dozen times -- I presided over most of those briefings -- there was no great concern expressed that somehow we needed to come get additional legislative authority. In fact, the program has operated for four years, Congress has been informed, a few members of Congress, informed throughout that period of time, and everything was fine until there was publicity in The New York Times. Somebody leaked the program to The New York Times, then there was public disclosure of it, and at that point now we've had some members head for the hill, so to speak, and forget perhaps that they were in the briefings and fully informed of the program.

But in terms of the legal authority, there is a very solid analysis that includes the Office of Legal Counsel in the Justice Department, the counsel in the White House, the attorney general of the United States, and this has been reviewed 30 times now, more than 30 times, because it's had to be renewed every 45 days since we started the program. So the legal issues have been thoroughly exhausted.

Possible follow-up: Lehrer could have asked Cheney about reports that indicate there was not universal support for the domestic surveillance program within the Justice Department. As Newsweek reported on February 6, then-deputy attorney general James B. Comey, who was serving as acting attorney general while then-Attorney General John Ashcroft was in the hospital, was one of several Justice Department officials who objected strenuously to the continuation of the program, prompting White House chief of staff Andrew H. Card Jr. and then-White House counsel Gonzales to visit Ashcroft's hospital room to obtain Department of Justice approval.

Lehrer also could have mentioned that even conservatives such as Fein and former Rep. Bob Barr (R-GA) have questioned whether Gonzales could provide an independent legal analysis of the program from the White House. From a February 4 Times report:

Some legal experts see Mr. Gonzales as little more than a surrogate for President Bush, whom he has served in a variety of capacities since 1997, when Mr. Bush was governor of Texas.

"Nothing in Al Gonzales's public statements, legislative proposals or anything else suggests that this is an individual who operates outside of the political gyroscope of President Bush," said Bruce Fein, an associate deputy attorney general in the Reagan administration.

Bob Barr, a former Republican House member from Georgia, said Mr. Gonzales's role in developing and defending the program "does raise questions about what is the role of attorney general."

"Clearly," Mr. Barr added, "people know his testimony reflects the same view as the White House counsel, and that it's not so much reflecting anything approaching an independent legal analysis. He's there as a lawyer for the president, as opposed to being an advocate for the Constitution and the laws of the country. It's a fine line, and I'm not so sure in his current capacity he has a great deal of credibility."

Cheney claimed Hamdi case provides "ample precedent" for warrantless domestic surveillance

LEHRER: What do you make of Senator Graham's argument that he made yesterday in public to the attorney general, which is using the force resolution which is one of the legal justifications, you decided and it has been decided by the administration -- said if you go down that road, the future when the next president or this president or the next president comes and asks for a force resolution from Congress, there could be all kinds of exceptions -- you can do this, this and this, but you can't wiretap, you can't do this, you can't do that -- and he said if we don't settle this issue now, you will open up a difficult situation for the future. You don't agree with that?

CHENEY: I think people are straining here to try to find an issue to some extent. Remember what's happened since the authorization of the use of force was approved in the aftermath of 9-11, and we've used it extensively in Afghanistan and so forth. We also had a Supreme Court decision in the Hamdi [v. Rumsfeld] case, where the court in effect found that there was implicit in the authorization of the use of force, the authorization for the president to hold an American citizen, and clearly that's a more intrusive, if you will, use of power and authority than surveillance of the enemy.

Incident to the authorization of the use of force, military force, clearly I would expect would be a decision that that implies as well the ability to intercept the communications of the enemy. That's an inherent part of warfare. There's ample precedent we believe on the books based on the Supreme Court decision, based on the statute, based on the president's constitutional authorities, for us to do exactly what we're doing.

Possible follow-up: Lehrer could have noted that numerous legal scholars have expressed strong objections to Cheney's claim that the high court affirmed in Hamdi presidential authority to eavesdrop on the international communications of U.S. citizens without a warrant.

As Media Matters has documented, Robert A. Levy, a senior fellow in constitutional studies at the libertarian Cato Institute and member of the conservative Federalist Society, has noted that the Supreme Court's plurality opinion in Hamdi imposed numerous limitations on the powers originally sought by the Bush administration. Moreover, in a February 2 letter to Democratic and Republican congressional leaders, 14 legal experts noted that in Hamdi, the Supreme Court stated that the administration's authority to detain enemy combatants is broader than it is on issues that Congress has explicitly considered and addressed -- such as the circumstances under which the government can intercept communications involving U.S. persons. The scholars wrote that a specific provision of FISA, which limits authorization for warrantless surveillance to 15 days after war is declared, "plainly distinguishes" warrantless surveillance from the detention issue, which "Congress had not specifically regulated" for U.S. citizens during wartime.

A January 5 CRS report similarly noted that "the Court [in Hamdi] appears to have relied on a more limited interpretation of the scope of the AUMF [the use of force resolution] than that which the Administration had asserted in its briefs."

Cheney claimed Rockefeller "never had any questions that weren't answered" and that the "process of briefing just a few members of Congress is well established"

LEHRER: What about the points that were made yesterday that all the things you just outlined are all within the executive branch with the exception of the members of Congress, these eight members, four Democrats, four Republicans, one of whom wrote you a letter afterward raising concerns about, Senator Rockefeller.

CHENEY: Wrote a letter three years ago and never raised any concerns after that, sat through numerous briefings, never had any questions that weren't answered.

LEHRER: And nobody else of those eight -- none of those other eight did either?

CHENEY: Correct.

LEHRER: So what's going on here, do you think?

CHENEY: Well, I think a lot of people decided after it became public that they wanted to take a different position than they had in private. This process of briefing just a few members of Congress is well established, Jim. I've been involved one way or another in the intelligence operations of our government going back 30 years to the Ford administration, or when I was on the Intelligence Committee myself in the '80s, or when I was secretary of defense in the early '90s. The practice of the president deciding to brief only a few members of Congress on really sensitive programs is well established. We've operated that way now for a very long time, and this program was treated in that fashion. It's important we preserve that capability.

Possible follow-up: Lehrer could have noted that Sen. John D. Rockefeller IV (D-WV) has disputed Cheney's claim that Rockefeller "never had any questions that weren't answered" about the spy program. Lehrer also could have mentioned that the limited briefings that the administration provided to Congress, which Cheney described as "well established," are in apparent violation of the law.

In a letter to Cheney dated July 17, 2003, Rockefeller wrote that the surveillance program "raise[s] profound oversight issues" and that he was "unable to fully evaluate, much less endorse" the program until he received more information about how the program functioned and the nature of its legal underpinnings. Upon publicly releasing the letter on December 19, 2005, Rockefeller said that "these concerns were never addressed, and I was prohibited from sharing my views with my colleagues.''

A January 18 CRS report concluded that "limiting congressional notification of the NSA program to the Gang of Eight," which includes the majority and minority leaders and intelligence committee chairmen and ranking members of both the Senate and House of Representatives, "appear[s] to be inconsistent with the law." Even those members of Congress who were briefed on the program may not have been briefed to the extent required by law. As Media Matters has noted, Rockefeller, Graham, Rep. Peter Hoekstra (R-MI), and Senate Democratic Leader Harry Reid (D-NV) have all stated that they did not receive written reports from the White House on the surveillance operation, as required by the National Security Act of 1947, although Hoekstra has since criticized CRS for concluding that the congressional intelligence committees were not adequately informed of the program.

Cheney claimed "reason to believe that it's Al Qaeda related" is a "very important and very clear-cut" criterion for what calls are monitored under NSA program; claimed he's "never seen as much care and caution exercised" as in NSA program

LEHRER: As vice president of the United States, can you assure any American who's out there, an innocent American who has no connections to Al Qaeda, absolutely none, that his and her rights are not being violated by this NSA surveillance program?

CHENEY: I can.

LEHRER: In any way whatsoever?

CHENEY: Let me emphasize again: People call it domestic surveillance; no, it's not domestic surveillance. The requirements for this authorization to be utilized are that one end of the communication has to be outside the United States, and one end of the communication has to involve reason to believe that it's Al Qaeda related or affiliated or part of the Al Qaeda network. Now those are two very important and very clear-cut criteria, and for this presidential authorization to be used in this way, those two conditions have to be met.

LEHRER: Do you understand why some average Americans might say, wait a minute, whose definition is it of an Al Qaeda possibility or whatever, that they would ask serious questions and want accountability?

CHENEY: Well, I can assure them that the program is operating in a very cautious and prudent manner. As I said, I've been involved off and on for more than 30 years in various aspects of the government's intelligence business as a consumer, as somebody who was responsible for part of the community at one time. I've never seen as much care and caution exercised as there is in this program. It has been done with immaculate concern to guarantee that we protect the civil liberties of the American people, but at the same time that we're able to collect intelligence that will allow us to defend the country against further terrorist attacks.

Possible follow-up: Lehrer could have noted that almost all of the communications intercepted by the domestic surveillance program have reportedly led to innocent Americans, not terrorist suspects, according to intelligence and national security officials cited in investigative reports by The Washington Post and The New York Times. Lehrer also could have asked Cheney about the administration's contradictory statements about whether the NSA program requires a lower standard of proof to conduct surveillance than that required by FISA.

Citing "current and former government officials and private-sector sources with knowledge of the technologies" used to conduct the eavesdropping, the Post reported on February 5 that out of thousands of Americans whose communications have been monitored by the NSA without a court order, "fewer than 10" U.S. citizens or residents "aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well." The Post report followed a December 17, 2005, article by the Times, which noted that "virtually all" of the phone conversations monitored by the NSA have "led to dead ends or innocent Americans," according to "[m]ore than a dozen current and former law enforcement and counterterrorism officials."

As Media Matters has documented, while the Justice Department has maintained that the operative standard required for the NSA to conduct warrantless surveillance is "essentially the same" as the "probable cause" standard required under FISA, Gen. Michael V. Hayden previously stated that the standard of proof under the NSA program is "a bit softer than it is for a FISA warrant," and directly acknowledged, in response to a question from a reporter, that the warrantless domestic surveillance had adopted a "lower standard" than required under FISA. Hayden is the former head of the NSA and was the first official put forth by the administration to defend the program.

Cheney claimed that the "vast majority of the American people support this program"

CHENEY: I think, Jim, that I'd make a couple of more points. I think the vast majority of the American people support this program, and I also think when ultimately the history is written about this period, the relevant reaction of the Congress will be the reaction of the leadership when we briefed them into the program in years past, and they signed up to it, and they agreed that it was an extraordinarily important program, and they urged us to continue.

Possible follow-up: Lehrer could have noted that polls have consistently shown that public opinion is, and continues to be, split over the domestic surveillance program.

Most recently, a January 30 NBC/Wall Street Journal poll found that a slight majority of Americans support the Bush's administration use of warrantless wiretaps to date but, by a slightly greater margin, also believe the administration should be required to get a court order to do so:

As you may know, since 2002, the Bush administration has been using wiretaps to listen to telephone calls between suspected terrorists in other countries and American citizens in the United States without getting a court order to do so. Do you approve or disapprove of the Bush administration's approach on this issue?

Approve

51

Disapprove

46

Not sure

3

Do you think that the Bush administration should conduct wiretaps of American citizens who are suspected of having ties to terrorists without a court order, or do you think that the Bush administration should be required to get a court order before conducting these wiretaps?

Should be able to wiretap without court order

41

Should be required to get a court order before wiretapping

53

Depends (VOL)

4

Not sure

2

The February 8 edition of CNN's The Situation Room featured a video clip of part of civil rights leader Rev. Joseph Lowery's address at the February 7 funeral of civil rights activist Coretta Scott King, during which Lowery mentioned the failure to find weapons of mass destruction in Iraq. Lowery's WMD remarks were greeted with 23 seconds of applause and a standing ovation. But during the CNN segment, in which host Wolf Blitzer asked his panelists -- Democratic strategist Paul Begala and former Bush administration official Victoria Clarke -- whether they thought Lowery's remarks were appropriate, CNN played the clip of Lowery, but cropped 18 seconds of applause -- more than three fourths of the time -- and footage of the standing ovation, without any indication that the clip had been doctored. Viewers who were watching Lowery's remarks for the first time would not have known that they actually drew a standing ovation -- not the perfunctory five seconds of applause CNN's edited clip conveyed -- and that the 23 seconds of applause prevented Lowery from continuing his eulogy.

Lowery's comments, as broadcast by CNN on February 7:

LOWERY: We know, now, there were no weapons of mass destruction over there --

[23-second standing ovation]

LOWERY: -- but Coretta knew, and we know that there are weapons of misdirection right down here.

The edited clip featured only five seconds of applause, showing footage of the very end of Lowery's standing ovation, after most in attendance had already sat down.

Blitzer introduced the discussion about Lowery's comments as follows:

BLITZER: Let's talk about the funeral yesterday. The Reverend Joseph Lowery was among those eulogizing Coretta Scott King. Among other things, he said this.

[edited footage of Lowery's comments]

BLITZER: I don't know if that was a direct reference to the president of the United States, who was there, but was it appropriate?

In a February 8 Wall Street Journal opinion article (subscription required), David B. Rivkin Jr. and Lee A. Casey, former Justice Departments officials under presidents Ronald Reagan and George H. W. Bush, defended President Bush's National Security Agency (NSA) warrantless domestic wiretapping program by repeating the claim made by former NSA director Gen. Michael V. Hayden that the program monitors only the communications involving "Al Qaeda operatives" either out of or into the United States. Like Hayden, Rivkin and Casey also asserted that media reports of the program show that its "domestic footprint" was "minimized."

However as Media Matters for America previously noted, media reports about the program indicate that the program is far from limited to "Al Qaeda operatives" and far from having a minimal domestic scope. Rather, it has reportedly cast a broad net, monitoring the communications of thousands of people with no relationship to Al Qaeda. Most recently, a February 5 Washington Post report quoting "current and former government officials" said that "[i]ntelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat." The New York Times similarly reported on January 17 that "[m]ore than a dozen current and former law enforcement and counterterrorism officials," some of whom knew of the domestic spying program, "said the torrent of tips [from NSA wiretapping] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."

Notwithstanding those reports, Rivkin and Casey echoed Hayden's January 23 description of the program, saying that "communications entirely within the U.S. are not targeted, and only those international communications involving al Qaeda on one end are collected and analyzed," adding, "All else is speculation (or wishful thinking) by the administration's political opponents."

From the February 8 edition of The Wall Street Journal:

Although enhanced congressional oversight of the NSA program may well be constitutionally permissible and even sensible as a policy matter, the requirement of a warrant for this type of surveillance would trench upon the president's constitutional power as commander in chief to monitor enemy communications in wartime. Far from being a "pervasive" domestic spying program, the NSA has simply intercepted the communications of al Qaeda operatives into, or out of, the U.S. As described by former NSA director, Gen. Michael V. Hayden, communications entirely within the U.S. are not targeted, and only those international communications involving al Qaeda on one end are collected and analyzed. All else is speculation (or wishful thinking) by the administration's political opponents.

Even the NSA program's fiercest foes don't claim that it was designed or administered for snooping on the president's "enemies" or critics. Surveillance is conducted by career intelligence officials at an agency renowned for discretion and professionalism. Nor has the administration ignored privacy interests and congressional prerogatives. According to media accounts, administration officials have minimized the program's domestic footprint -- effectively limiting it to the collection of battlefield intelligence, or the practical equivalent, which is squarely within the president's constitutional authority.

From the January 17 edition of The New York Times:

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism -- case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration.

From the February 5 edition of The Washington Post:

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

As Media Matters for America has previously noted, not long after the Bush administration adopted new rhetoric to describe its warrantless domestic surveillance program, Fox News reporters and anchors began using the White House's terminology -- referring to it as a "terrorist surveillance program" or "terror surveillance program." Beginning on January 25 -- during a week that saw the administration go on the offensive to promote its practice of spying on U.S. residents without obtaining warrants -- Fox News began slipping the term, without qualification, into its news reports and commentary. Since then, Fox News reporters and anchors have continued to use the term "terrorist [or terror] surveillance program" in their reporting. Further, some regional newspapers appear to be following Fox News' lead, also adopting, without qualification, the White House's preferred nomenclature to describe the National Security Agency's (NSA) warrantless domestic spying program.

Fox Broadcasting Co. followed its cable news partner in picking up the terminology on Fox News Sunday, where host Chris Wallace claimed that a Washington Post article reported: "... the government's top-secret terror surveillance program has yielded few suspects from the thousands of Americans who have been monitored in overseas calls." But, while Wallace suggested that "terror surveillance program" was the Post's wording, the article explicitly stated that "terrorist surveillance program" was an administration phrase, noting: "[President] Bush has recently described the warrantless operation as 'terrorist surveillance,' and summed it up by declaring that 'if you're talking to a member of al Qaeda, we want to know why.' "

Later, while introducing guest Gen. Michael V. Hayden, deputy director of national intelligence, Wallace again used the term "terror surveillance program" to describe the NSA program.

As Media Matters has noted, the term "terrorist surveillance program" appears to have originated with the right-wing news website NewsMax.com on December 22, 2005; operators of right-wing weblogs began to pick up the term on January 20, according to a timeline by the weblog Think Progress. On January 22, the White House press office released a backgrounder on the NSA program, in which the term appeared 10 times in reference to domestic eavesdropping.

In a January 23 speech, Bush said of the NSA's activities, "It's what I would call a terrorist surveillance program." He and other administration officials have since used the term in numerous speeches and interviews. While most news outlets that have referred to this wording have placed it in quotes or disclosed it as a term the Bush administration has promoted (as the Post did in its February 5 article), Media Matters noted that Fox News began to use it on January 25, without qualification, in news reports and commentary.

From January 30 to February 6, Fox News increased its usage of the term "terrorist surveillance program" or "terror surveillance program" in reference to the NSA's warrantless domestic spying. During that period, Media Matters found that Fox News and Fox Broadcasting Co. used the term or a variation at least 26 times on 15 different programs throughout its coverage of the NSA's controversial program.

Date

Show

1/30/06

Fox News Live, Studio B With Shepard Smith

1/31/06

Big Story with John Gibson

2/1/06

Fox & Friends First, Fox & Friends

2/4/06

Fox News Live Weekend, The Line-Up, The Journal Editorial Report

2/5/06

Fox News Live, Fox News Sunday

2/6/06

Fox & Friends, Fox News Live, Your World with Neil Cavuto, Big Story with John Gibson, Hannity & Colmes

During the same period (January 30-February 6), while Fox News increased its usage of the term "terrorist surveillance program," some regional newspapers also adopted Bush's terminology in their commentary and reporting of the NSA spy program: The Arizona Republic (Phoenix), The Honolulu Advertiser, San Antonio Express-News, The Greenville News (South Carolina), and The Washington Times (as Media Matters previously noted here). With the exception of the San Antonio Express-News, all of the papers used the term in editorials defending or praising Bush's January 31 State of the Union address. The San Antonio Express-News used the phrase in a news article. Four of the five newspapers -- The Arizona Republic, San Antonio Express-News, The Greenville News and The Washington Times -- endorsed Bush in the presidential election of 2004.

From the February 5 broadcast of Fox Broadcasting Co.'s Fox News Sunday:

WALLACE: I'm Chris Wallace. New revelations about that controversial NSA surveillance program, next on Fox News Sunday.

Terrorist surveillance: Can attacks be prevented while civil liberties are protected? We'll find out in a rare interview with the architect of the NSA spy program, General Michael Hayden, now the deputy director of national intelligence.

[...]

WALLACE: And good morning again from Fox News in Washington. Here's a quick check of the latest headlines. The Washington Post reports today the government's top-secret terror surveillance program has yielded few suspects from the thousands of Americans who have been monitored in overseas calls.

Only about 10 citizens or residents a year have raised enough suspicion to prompt more surveillance. We'll talk about that with General Hayden in a moment.

[...]

WALLACE: Well, tomorrow, here on Capitol Hill, hearings begin on that controversial terror surveillance program. Our first guest, General Michael Hayden, started the program as head of the National Security Agency. Now he's the principal deputy director of national intelligence. General Hayden joins us live from Detroit.

On the January 6 edition of MSNBC's The Abrams Report, host Dan Abrams failed to challenge Kris W. Kobach's assertion that President Bush's controversial warrantless domestic spying program dealt only with "very targeted" calls. Kobach, a constitutional law professor and former counsel to former Attorney General John Ashcroft, defended the program against the criticism of Gerald B. Lefcourt, a defense attorney and past president of the National Association of Criminal Defense Lawyers. Kobach claimed that the warrantless surveillance program monitored "only on those communications between a known Al Qaeda source or a suspected Al Qaeda source." In fact, according to recent media reports citing current and former government officials, the program is far from being "very targeted"; it has cast a broad net, monitoring the communications of thousands of people with no relationship to Al Qaeda.

A February 5 Washington Post report quoting "current and former government officials" stated that "[i]ntelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat." The New York Times similarly reported on January 17 that "[m]ore than a dozen current and former law enforcement and counterterrorism officials," some of whom knew of the domestic spying program, "said the torrent of tips [from NSA wiretapping] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."

From the January 6 edition of MSNBC's The Abrams Report:

KOBACH: Well, yeah, that is that -- look, the surveillance here is only on those communications between a known Al Qaeda source or a suspected Al Qaeda source, I should say, and someone inside the United States. These are very targeted. And the critics of this program who have been claiming, "Oh, it's domestic surveillance of U.S. citizens," have been deliberately, I would say, misleading by making it seem as if all of our phone calls are subject to surveillance. No, not at all. Only if we happen to be making an international call to someone whose number is a known Al Qaeda number, yeah, then we might.

In his February 8 nationally syndicated column, L. Brent Bozell III, president of the conservative Media Research Center, drew a false comparison between the Bush administration's warrantless domestic surveillance program and former President Bill Clinton's call for expanding anti-terror legislation following the 1995 Oklahoma City bombing. Bozell specifically faulted CBS News, claiming: "CBS didn't shriek about 'domestic spying' or commission a poll then questioning Clinton's commitment to civil liberties." Bozell, however, ignored a key distinction between Clinton's and Bush's attempts to expand the government's ability to investigate suspected terrorists. Clinton publicly called for the legislation; Bush secretly authorized a clandestine surveillance program without informing the public or seeking congressional approval. Additionally, the April 25, 1995, CBS report Bozell pointed to did, in fact, note that there was public concern at the time over possible threats to civil liberties posed by Clinton's proposed legislation, and following Clinton's proposal, CBS did commission a poll asking if the government should have more authority to combat terrorism, even if Americans' constitutional rights were violated.

From Bozell's February 8 column:

In April of 1995, after the Oklahoma City bombing, President Clinton called for more agents to investigate domestic terror suspects, and more power to infiltrate terrorist plots and examine suspects' "phone, hotel, and credit card records," as CBS explained at the time. CBS didn't shriek about "domestic spying" or commission a poll then questioning Clinton's commitment to civil liberties. They noted Clinton's handling of Oklahoma City "sent his approval ratings soaring."

As Bozell himself noted, however, Clinton "called" for this legislation on April 23, 1995 -- publicly announcing his plans and urging Congress to carry them out. The New York Times reported on April 26, 1995, that "Administration officials said today that the Federal Bureau of Investigation and its parent agency, the Justice Department, wanted new authority to monitor, investigate and infiltrate groups suspected of planning terrorist attacks," and "members of Congress said there was widespread support for such changes on Capitol Hill, where lawmakers appear eager to move quickly." Bush, however, never made a public call for the authority to monitor domestic communications without a warrant, nor did he petition Congress for legislative approval. Rather, the administration assumed it had the authority and exercised it without consulting with Congress or the courts. During his February 6 testimony at the Senate Judiciary Committee hearing into the domestic surveillance program, Attorney General Alberto R. Gonzales was asked by Sen. Edward M. Kennedy (D-MA) why the administration did not consult with Congress when implementing the program; Gonzales responded: "Sir, the short answer is -- is that we didn't think we needed to, quite frankly."

Also, Bozell's claim that CBS did not "commission a poll then questioning Clinton's commitment to civil liberties" is false. According to The Roper Center for Public Opinion Research at the University of Connecticut, an April 25, 1995, CBS poll (available via the Lexis-Nexis database) asked respondents about the expansion of governmental authority to combat terrorism and the potential risk to civil liberties. Though the poll's question did not mention Clinton by name, it did reference the authority to "plant undercover agents in possible terrorist groups" -- one of the powers Clinton requested. From the CBS poll:

"Do you think that in order to fight terrorism, the Federal government should have MORE authority to investigate and plant undercover agents in possible terrorist groups or would this violate Americans constitutional rights?"

 

Total

Republicans

Democrats

Independents

Yes

76%

81%

78%

70%

No

16%

13%

13%

21%

DK/NA

8%

6%

9%

9%

Moreover, Bozell's suggestion that CBS did not question "Clinton's commitment to civil liberties" is false. From the April 25, 1995, CBS report:

BILL PLANTE (correspondent): The president urged Americans to stand up to the people he called promoters of paranoia, saying freedom of speech makes silence in the face of hatred unforgivable.

CLINTON: So, exercise yours, my fellow Americans. Our country, our future, our way of life is at stake. I never want to look into the faces of another set of family members like I saw yesterday and you can help to stop it.

PLANTE: Mr. Clinton also wants new legislation to combat terrorism, making it easier to infiltrate terrorist groups and examine their phone, hotel, and credit card records. Some worry that that could mean FBI harassment of any unpopular group.

JAMES DEMPSEY (Center for National Security Studies): We could see a return to the time of the '60s and '70s, when the FBI was investigating people based purely on ideology.

PLANTE: The administration shrugs that off -- says those disputes over civil liberties can be worked out. They're also very well aware that the call to be tough on terrorists is a political winner. And although no one around here would have the bad taste to mention it, the White House staff is very much aware that Mr. Clinton's handling of the crisis in Oklahoma City has sent his approval ratings soaring.

On the February 6 edition of Fox News' Special Report with Brit Hume, Fred Barnes, executive editor of The Weekly Standard, remarked that in the recent violent protests over cartoons that caricatured the prophet Mohammed, "We see Muslims' contempt for democracy, for freedom of speech, for freedom of the press and particularly for freedom of religion." The cartoons first drew criticism after their original September 30, 2005, publication in the Danish newspaper Jyllands-Posten. After initial criticism of the cartoons, which included one that depicted the prophet Mohammed wearing a turban fashioned into a bomb, several European newspapers reprinted them on February 1.

From the February 6 edition of Fox News' Special Report with Brit Hume:

HUME: What about this controversy? Where is it going? What does it tell us? Fred?

BARNES: It tells us a lot. It tells us that our enemy or -- is not just Al Qaeda. That there's -- that Muslims all over Europe and all over the world are certainly enemies of Western civilization. Look what the showing of these cartoons, which I do -- originally thought was a mistake. They shouldn't have run them. Now, I think we've learned a lot from this. We see the Muslims' contempt for democracy, for freedom of speech, for freedom of the press, and particularly, for freedom of religion.

Freedom of religion doesn't mean, just, you have the right to practice your own religion. It means that you can reject, and criticize, and even insult other religions if you want to. And that's what's happened. And it doesn't mean that you have to die or should be threatened or have your hand cut off or anything like that as a result.

In a February 7 article, USA Today reported that "[t]he Bush administration has briefed congressional leaders on the details" of its warrantless domestic surveillance program, but the article failed to note that many of the Democrats who said they had been informed about the program contend that they were not told about its actual nature and extent.

The USA Today article, by staff reporter John Diamond, echoed Bush's own misleading assertion in his State of the Union address that "[a]ppropriate members of Congress have been kept informed" about the program as well as a misleading rhetorical question Bush asked in a January 23 speech: "[I]f I wanted to break the law, why was I briefing Congress?"

In fact, as Media Matters for America has noted, several Democratic leaders have challenged the claim that they were briefed "on the details of the surveillance program." For example, Rep. Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, said in a December 21, 2005, statement: "I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda." She added: "Like many Americans, I am deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed."

Sen. John D. Rockefeller IV (D-WV), the ranking minority member on the Senate Intelligence Committee, wrote a letter to Vice President Dick Cheney on July 17, 2003, expressing his "lingering concerns" raised by a briefing on the program he had received that day. In the secret handwritten letter, Rockefeller cited a lack of information that left him "unable to fully evaluate, much less endorse these activities." From Rockefeller's letter:

Clearly, the activities we discussed raise profound oversight issues. As you know, I am neither a technician, nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

[...]

Without more information and the ability to draw on independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

Former Senate Majority Leader Tom Daschle (D-SD) has said there were "omissions of consequence" in the briefings he received in 2002 and 2004. And former Sen. Bob Graham (D-FL), chairman of the Senate Intelligence Committee at the time Bush first authorized the program, has claimed that he was never informed "that the program would involve eavesdropping on American citizens."

A December 23, 2005, New York Times article noted that Senate Democratic Leader Harry Reid (D-NV) -- along with Harman and Graham -- "have all suggested in recent days that they were not provided with a complete accounting of the program, and that they might have raised objections if they had understood its scope."

In addition, Graham and Rep. Peter Hoekstra (R-MI), the Republican chairman of the House Intelligence Committee -- along with aides to Rockefeller and Reid -- have all said that the briefings did not constitute written reports about the program, which are required of the White House under the National Security Act of 1947 (as amended in 2001).

A January 18 report by the nonpartisan Congressional Research Service concluded that the Bush administration's limited notification of Congress about the domestic surveillance program "appear[s] to be inconsistent with the law."

From the February 7 USA Today article, headlined "Lawmakers doubtful on surveillance defense":

The Bush administration has briefed congressional leaders on the details of the surveillance program, but [Attorney General Alberto R.] Gonzales said it did not seek an act of Congress because that would have risked exposure of the details of the program.

"Our enemy is listening, and I cannot help but wonder if they aren't shaking their heads in amazement" and "smiling at the prospect that we might now disclose even more," Gonzales said.

On the February 7 edition of MSNBC's Hardball, host Chris Matthews promised viewers "straight talk" from Sen. John McCain (R-AZ), but instead provided a friendly forum for McCain to attack fellow Sen. Barack Obama (D-IL). McCain and Obama recently exchanged correspondence over congressional efforts on lobbying reform.

Matthews directed the following set of "hardball" questions and statements to McCain:

• What was your original relationship with Senator Obama on congressional reform?
• Did he, well, welsh on the deal?
• Did he welsh on the deal? Did he double-cross you by going partisan after promising to go bipartisan with you, senator?
• Let me ask you about the original [letter from Obama to McCain]. It seems to me looking at the exchange of letters between yourself and Senator Obama, the Democratic senator from Illinois, that you initially put together a bipartisan effort and then he withdrew from the deal and went back and said -- and then told you in no uncertain terms, "I'm not dealing with you anymore in a bipartisan fashion, I'm going off and going to do this as a Democrat."
• Do you stand by your letter back to Senator Obama?
• Well, let's take a look at it [McCain's letter to Obama] because I think the people will learn a lot from this about -- I know you're being nice now, but the way in which Obama treated you. The first line of the letter -- I thought we were going to see this on prompter here -- "I'd like to apologize to you for assuming that your private assurances to me regarding your desire to cooperate in our efforts to negotiate bipartisan lobbying reform legislation were sincere." You're basically saying what here?
• Well, I concluded -- more here. "I concluded your professed concern for the public interest was genuine and admirable. Thank you for disabusing me of such notions." You're saying to the guy," I thought you were a gentleman and a civil servant and now you're obviously not."
• Let me ask you, I know I love to do this -- you know, Senator, I have to do this now. Ken Mehlman, the chairman of your party, has gone after [Sen.] Hillary [Rodham] Clinton [D-NY] for being angry, as if there's something wrong with it. This is the letter of a very sophisticated, angry senator. What's wrong with being angry?
• Well, this letter is brilliantly angry.
• You know, I worked on the Hill for many years, and I used to notice there was a big difference between the Senate and the House of Representatives. The Senate was bipartisan by its nature. It was people that found common ground where they could and didn't waste a lot of time. The House of Representatives was mainly about taking party positions and seeing who won. Do you think that Obama is behaving like a House member here rather than a senator?
• OK, we're hoping to get Senator Obama to come on and talk about how you're going to work together. But are you -- have you any confidence now that he will join your bipartisan effort?
• That letter that you sent, and we were beginning to -- I'm not going to quote any further from it. I think we caught the gist or tone of it. Senator, do you stand by this letter?
• OK, great.

From the February 7 edition of MSNBC's Hardball with Chris Matthews:

MATTHEWS: On the Republican side, popular John McCain whacked Democratic Senator Barack Obama as "self-interested," "posturing" and "disingenuous." My kind of day. Let's play Hardball.

[...]

Good evening, I'm Chris Matthews. Welcome to Hardball. The biggest political story in Washington tonight is the battle between Senators John McCain and Barack Obama. In a blistering letter, Senator McCain accused Obama of "using the ethics reform issue for self-interested partisan posturing" and apologized for thinking Obama was sincere. This is the first time any prominent national politician has publicly criticized superstar Obama. Why did Senator McCain go after the freshman senator? We'll get the straight talk from Senator McCain himself in just a moment, but one of the lessons here might be: Don't mess with John McCain.

[...]

MATTHEWS: But first, Senator John McCain. Senator McCain, are you with us?

McCAIN: Chris.

MATTHEWS: Thank you for joining us. What was your original relationship with Senator Obama on congressional reform?

McCAIN: Well, my relationship is fine with him. We had a difference of viewpoints because he sent me a letter that basically said that he wasn't, as I read it, wasn't going to be -- we weren't going to work together, and he'd been at a meeting with me and the chairman and ranking member, Senator [Susan] Collins [R-ME], Senator [Joseph I.] Lieberman [D-CT], as we worked towards lobbying reform, which we have to do, and then I received a letter that basically said that he wasn't going to do that. Actually, I didn't receive the letter before I got press reports, and so I responded with a little straight talk.

MATTHEWS: Did he, well, welsh on the deal?

McCAIN: Say that again.

MATTHEWS: Did he welsh on the deal? Did he double-cross you by going partisan after promising to go bipartisan with you, senator?

McCAIN: You know, I'm sorry, it's garbled, Chris, you're going to have to try to repair it, because I'm, you're, you're garbled.

[...]

MATTHEWS: We'll go right back now to Senator John McCain. Senator McCain, can you hear me now?

McCAIN: All right.

MATTHEWS: Can you hear me now, senator?

McCAIN: Yes, I do.

MATTHEWS: Let me ask you about the original. It seems to me looking at the exchange of letters between yourself and Senator Obama, the Democratic senator from Illinois, that you initially put together a bipartisan effort and then he withdrew from the deal and went back and said -- and then told you in no uncertain terms, "I'm not dealing with you anymore in a bipartisan fashion, I'm going off and going to do this as a Democrat."

McCAIN: Well, I had a conversation with Senator Obama, and he said that was not his intention, but the way I read the letter, after I heard from the press that it was on its way, that indeed that was the case, including touting Senator [Harry] Reid's [D-NV] proposal, which has no Republican sponsors and will not, and we all know that we have to work together and so I responded and Senator Obama and I had a conversation, and we agreed to move on.

MATTHEWS: Do you stand by your letter back to Senator Obama?

McCAIN: Sure.

MATTHEWS: Well, let's take a look at it because I think the people will learn a lot from this about -- I know you're being nice now, but the way in which Obama treated you. The first line of the letter -- I thought we were going to see this on prompter here -- "I'd like to apologize to you for assuming that your private assurances to me regarding your desire to cooperate in our efforts to negotiate bipartisan lobbying reform legislation were sincere." You're basically saying what here?

McCAIN: I'm saying that I believed that his efforts were sincere at the time. The letter that I received contradicted that, at least my reading of it -- and I don't know how you read it any other way -- and so therefore I -- that's exactly what I said. It was a little straight talk, Chris.

MATTHEWS: Well, I concluded -- more here. "I concluded your professed concern for the public interest was genuine and admirable. Thank you for disabusing me of such notions." You're saying to the guy," I thought you were a gentleman and a civil servant and now you're obviously not."

McCAIN: Well, I thought it was pretty well written; didn't you?

MATTHEWS: I think it was tough. Let me ask you, I know I love to do this -- you know, Senator, I have to do this now. Ken Mehlman, the chairman of your party, has gone after Hillary Clinton for being angry, as if there's something wrong with it. This is the letter of a very sophisticated, angry senator. What's wrong with being angry?

McCAIN: I'm not angry. I --

MATTHEWS: Well, this letter is brilliantly angry.

McCAIN: Well, I wasn't angry when I wrote it. Look, I wrote the letter because I was very disappointed in the letter that I received from Sen. Obama and was told to me by the press. Look, this is a pressing issue. We have to move forward in a bipartisan fashion. You know and I know that if -- the only way you resolve one of these issues is in a bipartisan fashion, and so that's why I felt strongly about it. In the room were Sen. Collins, the chairperson of the oversight committee and Sen. Lieberman and we had all agreed to move forward with her committee as quickly as possible, and there was reference in the letter to a task force, that frankly we had committed to moving forward with the committee process.

MATTHEWS: You know, I worked on the Hill for many years, and I used to notice there was a big difference between the Senate and the House of Representatives. The Senate was bipartisan by its nature. It was people that found common ground where they could and didn't waste a lot of time. The House of Representatives was mainly about taking party positions and seeing who won. Do you think that Obama is behaving like a House member here rather than a senator?

McCAIN: I hope not. I hope that he made a mistake and we can move forward, and I continue to work with Joe Lieberman and many other senators because they realize that we've got to get work done on a bipartisan basis. Have times changed? Of course, they have changed and for the worse.

MATTHEWS: OK, we're hoping to get Senator Obama to come on and talk about how you're going to work together. But are you -- have you any confidence now that he will join your bipartisan effort?

McCAIN: Well, I hope so. We have agreed to move forward and that's what's important at this point, and we've probably provided enough entertainment for a while.

MATTHEWS: That letter that you sent, and we were beginning to -- I'm not going to quote any further from it. I think we caught the gist or tone of it. Senator, do you stand by this letter?

McCAIN: Sure.

MATTHEWS: OK, great.

Last week, Media Matters for America documented how most media outlets failed to report that special counsel Patrick J. Fitzgerald, the lead prosecutor in the CIA leak case, wrote -- in a letter to defense attorneys for former vice presidential chief of staff I. Lewis "Scooter" Libby -- that numerous White House emails from 2003 are missing from White House computer archives. A further review by Media Matters has found that most major media outlets have continued to ignore this story; specifically, no reports on the missing emails have been found on any of the three major broadcast networks (ABC, NBC, and CBS), The Wall Street Journal, The New York Times, The Washington Post, USA Today, or the Reuters wire service.

On October 28, 2005, a grand jury indicted Libby on five counts of perjury, obstruction of justice, and making false statements to the FBI. Made public as part of a recent court filing, Fitzgerald's letter was sent in response to requests by Libby's legal team that the prosecutor turn over a large number of documents pertaining to the defendant. At the end of the letter, in which he refused the request, Fitzgerald wrote:

We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed. In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.

While the February 4 broadcast of the CBS Evening News did report on the unsealing of more documents in the case, the report did not mention the missing e-mails. Media Matters' February 2 review has previously noted the Associated Press' February 1 report by staff writer Pete Yost and Dan Froomkin's February 2 washingtonpost.com "White House Briefing" column. The Post's print edition has not published a story regarding the missing e-mails. The February 2 Los Angeles Times published Yost's report. While Yost's report also appeared on washingtonpost.com, it did not appear in either the February 2 or the February 3 print editions of the Post.

The Media Matters review consisted of searches in the Lexis-Nexis database and Factiva of the three broadcast networks, the Associated Press, the Washington Post, the Los Angeles Times, The Wall Street Journal, The New York Times, USA Today, and the Reuters wire service. These searches turned up no articles on any of these media outlets on the missing emails for February 1 through the morning of February 7. The Lexis-Nexis search was "(Plame or Fitzgerald) w/20 (e-mail or email or message or delete or missing or archive)" for 2/1/2006 through 2/7/2006, while the Factiva searches (The Wall Street Journal and Reuters) were "(Plame or Fitzgerald) /n20/ (e-mail or email or message or delete or missing or archive)" for 2/1/2006 to 2/7/2006; and "Plame /n20/ Fitzgerald" for 2/1/2006 to 2/7/2006.

During the February 6 edition of Christian Broadcasting Network's (CBN) The 700 Club, host Pat Robertson said that "Europe is right now in the midst of racial suicide because of the declining birth rate." Robertson blamed the declining birth rate on the existential philosophy of Jean-Paul Sartre, which, according to Robertson, "has permeated the intellectual thinking of Europe" and has left Europeans without "a faith in the future."

From the February 6 edition of CBN's The 700 Club:

ROBERTSON: Studies that I have read indicate that having babies is a sign of a faith in the future. You know, unless you believe in the future, you're not going to take the trouble of raising a child, educating a child, doing something. If there is no future, why do it? Well, unless you believe in God, there's really no future. And when you go back to the existentialism of Jean-Paul Sartre, the whole idea of this desperate nightmare we are in -- you know, that we are in this prison, and it has no hope, no exit. That kind of philosophy has permeated the intellectual thinking of Europe, and hopefully it doesn't come here. But nevertheless, ladies and gentlemen, Europe is right now in the midst of racial suicide because of the declining birth rate. And they just can't get it together. Why? There's no hope.

On the February 3 edition of CNN's Lou Dobbs Tonight, New York Daily News columnist Michael Goodwin claimed that "a recent poll ... shows that [President] Bush ... is held in much higher regard than congressional Democrats." Goodwin did not cite a specific poll as the basis for his claim, but the two major recent polls that pitted Bush against congressional Democrats in the same question show that more Americans think congressional Democrats will do a better job of handling most key issues and more Americans think the country "should go in the direction" congressional Democrats would take it. The comments came during a discussion in which Goodwin, whose columns have appeared on the conservative websites FrontPageMag.com and Jewish World Review, was joined by Republican strategist and former Reagan political director Ed Rollins and Wall Street Journal columnist John Fund but no Democrats or progressives.

Neither Rollins nor Fund -- nor the show's guest host, CNN correspondent Kitty Pilgrim -- challenged Goodwin's assertion. Pilgrim began by asking Rollins for his thoughts about newly elected House Majority Leader John Boehner's (R-OH) "surprise victory over [House Majority Whip] Roy Blunt [R-MO]," who also ran for the majority leader position. Rollins called Boehner "a very effective leader," characterizing him as "articulate" and stating that "he'll basically make a good difference." Pilgrim then asked Fund, "[W]ill we be able to get distance on the [former lobbyist Jack] Abramoff scandal and the lobbying issue with him [Boehner], or is he still involved in this?" Fund responded that although "any congressional leader is going to have lobbyist friends," Boehner "has the support of the reformers, even if he's not a complete reformer." After Pilgrim noted that the first two panelists had given Boehner "two good, positive reviews," she asked Goodwin for his thoughts on the issue. Goodwin stated:

GOODWIN: Well, I think the good news for Republicans is that the Democrats are in disarray, too. I think that the Democrats don't really know what to do. They're against everything the president is for, but beyond that, I think it's not really working. There's a recent poll that shows that Bush is much more -- is held in much higher regard than congressional Democrats. So I think that the Republicans may have a little time to get their act together.

Although a January 12 Fox News/Opinion Dynamics poll and a January 4-8 Pew Research poll show higher approval ratings for President Bush than for congressional Democrats, the same polls also show higher disapproval ratings for Bush and a bigger negative gap between approval and disapproval for Bush than for congressional Democrats. And more recent polls that pit Bush and congressional Democrats head to head in the same question report that more Americans trust congressional Democrats to handle a majority of specific issues and most Americans want the country to head in the direction congressional Democrats would take it, as opposed to the direction President Bush would take it. A January 26 Los Angeles Times/Bloomberg poll asked respondents who they thought would do a better job of handling four specific issues: taxes, the federal budget deficit, health care, and protecting the nation from terrorism. The authors of the poll noted:

The only issue that Bush defeats Democrats on is who would be best at protecting the nation against terrorism. When asked who could do a better job of handling taxes -- 43% thought the Democrats in Congress would be better, compared to 34% for the president; handling the federal budget deficit -- 47% said the Democrats and 30% sided with Bush; handling health care issues - 53% mentioned the Democrats and 25% supported Bush; better job of protecting the nation against terrorism -- 45% thought Bush would be better, while 32% thought that about the Democrats.

Additionally, a January 26 Washington Post/ABC News poll asked respondents: "Do you think the country should go in the direction (Bush wants to lead it), go in the direction (the Democrats in Congress want to lead it), or what?" A majority of respondents -- 51 percent -- said the country should go in the direction congressional Democrats want to lead it, compared with 35 percent who said the country should go in the direction Bush wants to lead it.

From the February 3 edition of CNN's Lou Dobbs Tonight:

PILGRIM: It's been a busy week in Washington. Now, the country has a new Supreme Court justice, and House Republicans chose their new majority leader.

Joining me to discuss those issues and a lot more are three of the nation's leading political minds. We have Ed Rollins, who served as President Reagan's political director; John Fund from The Wall Street Journal; and Michael Goodwin of the New York Daily News.

So let's start with you, Ed. What are your thoughts about the Boehner issue, and the victory, surprise victory over Roy Blunt, who two weeks ago said he had it in the bag, basically.

ROLLINS: Well, I've watched many walk in thinking they have it and not have it. Boehner is a very effective leader. He was a leader in the early [former House Speaker Newt] Gingrich [R-GA] days, and I think he's a good face. I think he's articulate. I think he'll basically make a good difference. Good difference.

PILGRIM: John, will we be able to get distance on the Abramoff scandal and the lobbying issue with him, or is he still involved in this?

FUND: Well, any congressional leader is going to have lobbyist friends. That's -- a lot of the Democratic leaders have those connections, too. The conservative movement had become disgusted with the high-spending pork-barrel practices of Congress under [former House Majority Leader] Tom DeLay [R-TX].

They basically turned out en masse and said to Roy Blunt, "We don't like you. We think you're too tied to the past." I think that was a critical difference in making John Boehner majority leader. He has the support of the reformers, even if he's not a complete reformer.

PILGRIM: Yeah. And, so, two good, positive reviews. What about you, Michael?

GOODWIN: Well, I think the good news for Republicans is that the Democrats are in disarray, too. I think that the Democrats don't really know what to do. They're against everything the president is for, but beyond that, I think it's not really working. There's a recent poll that shows that Bush is much more -- is held in much higher regard than congressional Democrats. So I think that the Republicans may have a little time to get their act together.

On the February 6 edition of MSNBC Live, Hardball host Chris Matthews falsely claimed that President Bush's April 2004 statement that "[a]ny time you hear the United States government talking about wiretap, it requires ... a court order" was "pre-9-11." Though it is not clear whether Matthews meant that Bush made this statement prior to the September 11, 2001, terrorist attacks or that Bush was simply referring to "pre-9-11" policies, either claim would be false. In fact, Bush's statement came more than two years after the September 11 attacks and included Bush's assertion that "[n]othing has changed. ... When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

On February 6, Attorney General Alberto R. Gonzales appeared before the Senate Judiciary Committee to defend Bush's authorization of warrantless eavesdropping on the communications of U.S. residents -- an apparent violation of the Foreign Intelligence Surveillance Act (FISA). Referring at the hearing to Bush's 2004 statement, Sen. Dianne Feinstein (D-CA) told Gonzales: "Mr. Attorney General, in light of what you and the president have said in the past month, this statement appears to be false."

On MSNBC Live, anchor Contessa Brewer asked Matthews about Feinstein's use of Bush's 2004 statement. Matthews falsely responded: "Well, that's what he said in the past. Of course, that was pre-9-11."

In fact, on April 20, 2004 -- more than two years after authorizing the warrantless eavesdropping program -- Bush stated that "[n]othing has changed" and that "[w]hen we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Bush did not suggest that his comments applied only to pre-September 11 policies. From Bush's "conversation on the USA Patriot Act" in Buffalo, New York:

BUSH: Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

From the February 6 edition of MSNBC Live:

BREWER: Democrats really, though -- they're playing hardball, if you'll excuse the pun.

MATTHEWS: Sure.

BREWER: Sen. Dianne Feinstein played a little sound bite from President Bush from a speech back in 2004 where he's talking about wiretapping, and he's going to assure the press that are there and the people who are attending this event that they have to go to court to get a court order before they wiretap. How does that all play out?

MATTHEWS: Well, that's what he said in the past. Of course, that was pre-9-11. And he'll tell you, and he'll say that the Congress gave him authority under 9-11 -- the 9-11 September 14 [2001] authorization [for use of military force] -- to do what he had to do against the people attacking us on 9-11. He'll say, "Times have changed."

A February 6 New York Times article by reporter Scott Shane reprinted, without challenge, an excerpt of a letter written by Sen. Pat Roberts (R-KS) to Democratic National Committee chairman Howard Dean in defense of President Bush's warrantless wiretapping program, which Dean recently compared to "the abuse of power" exemplified by the illegal wiretapping of U.S. citizens by the Nixon administration. In the portion of the letter published by the Times, Roberts characterized the current program as being "directed at enemies that had attacked the United States and killed thousands of Americans" and dismissed all suggestions that surveillance by the National Security Agency (NSA) could ensnare Americans with no connection to terrorism. However, as The Washington Post reported a day earlier, sources in the intelligence community indicated that out of thousands of Americans whose communications have been monitored by the NSA without a court order, "fewer than 10" U.S. citizens or residents "aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well."

The Times reported in a December 24 article that "according to current and former government officials," the NSA "has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity." The officials said communications were "collected by tapping directly into some of the American telecommunication system's main arteries." Further, both the original December 16 Times report on the program and subsequent reporting in the newspaper's January 17 edition indicated that despite the administration's characterization of the wiretapping as limited to individuals suspected of being terrorists, government sources tell a different story.

From the January 17 edition of The New York Times:

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism - case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration.

From the February 6 edition of The New York Times:

Former Senator Gary W. Hart, a Colorado Democrat who served on the Church Committee, believes views such as Mr. Cheney's have set the clock back 30 years.

''What we're experiencing now, in my judgment, is a repeat of the Nixon years,'' Mr. Hart said. ''Then it was justified by civil unrest and the Vietnam war. Now it's terrorism and the Iraq war.''

But on Friday, Senator Pat Roberts of Kansas, the current chairman of the Senate Intelligence Committee, strongly defended the eavesdropping program and dismissed any comparison to the Nixon era.

Writing to Howard Dean, the Democratic Party chairman, who had compared the current controversy to ''the abuse of power during the dark days of President Nixon,'' Mr. Roberts declared, ''Any suggestion that a program designed to track the movement, locations, plans or intentions of our enemy particularly those that have infiltrated our borders is equivalent to abusive domestic surveillance of the past is ludicrous.''

He added: ''When President Richard Nixon used warrantless wiretaps, they were not directed at enemies that had attacked the United States and killed thousands of Americans.''

From the February 5 edition of The Washington Post:

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

In a February 5 International Herald Tribune article -- also published on The New York Times' website -- reporter Brian Knowlton wrote that some Democrats who had been briefed on the Bush administration's warrantless domestic surveillance program before it was publicly revealed "say" they "expressed concerns or objections" at the time -- suggesting that their claims are the only existing evidence that they did in fact express concern. The report failed to note a letter to Vice President Dick Cheney by Sen. John D. Rockefeller IV (D-WV), the ranking Democrat on the Senate Intelligence Committee, describing his "lingering concerns" about the program written more than two years before its public disclosure.

The New York Times Company publishes the International Herald Tribune.

Knowlton's article described an appearance by deputy director of national intelligence Gen. Michael V. Hayden on the February 5 edition of Fox News Sunday. From Knowlton's February 5 article, as it appeared on the Times' website:

But citing the secrecy of the program, the general was circumspect in answering other questions.

Asked whether any of the eight members of Congress who had regularly been briefed on the program had expressed concern or objections -- as some say they did -- he replied, "I certainly never left the room believing we had to do anything differently."

As Media Matters for America has noted, the fact that Rockefeller expressed concerns about the program shortly after being briefed on it is not in dispute. On July 17, 2003, Rockefeller was briefed on the program by Hayden, who was then serving as director of the National Security Agency (NSA). In a handwritten letter to Cheney dated the same day, Rockefeller repeatedly referenced his "concerns" about the program and the limited information provided in the briefing:

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI [Director of Central Intelligence George J. Tenet], DIRNSA [Hayden], and Chairman [Pat] Roberts [R-KS] and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

Rockefeller added: "I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication."

In addition, Knowlton's reference to "the eight members of Congress who had regularly been briefed on the program" is misleading. Knowlton was apparently referring to the so-called "Gang of Eight," which is composed of the House speaker and minority leader, the Senate majority and minority leaders, and the chairmen and ranking minority members of the House and Senate intelligence committees. But several Democrats have said that their briefings did not adequately describe the program.

For example, Rep. Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, said in a December 21, 2005, statement, "I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda." She added: "Like many Americans, I am deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed."

Similarly, former Senate Majority Leader Tom Daschle (D-SD) said there were "omissions of consequence" in the briefings he received in 2002 and 2004, according to an article in the January 9 issue of Newsweek:

"The presentation was quite different from what is now being reported in the press. I would argue that there were omissions of consequence." At his briefing in the White House Situation Room, Daschle was forbidden to take notes, bring staff or speak with anyone about what he had been told. "You're so disadvantaged," Daschle says. "They know so much more than you do. You don't even know what questions to ask."

And former Sen. Bob Graham (D-FL), chairman of the Senate Intelligence Committee at the time the program was created, has claimed that he was never informed "that the program would involve eavesdropping on American citizens," as the Times reported on December 21.

On the February 3 edition of The O'Reilly Factor, guest host Tony Snow repeated the false claim that Valerie Plame's husband, former ambassador Joseph C. Wilson IV, said his wife "wasn't covert for six years" before she was exposed as a CIA operative by syndicated columnist Robert Novak in his July 14, 2003, column.

However, Media Matters for America has previously noted (here and here) that Wilson did not say that.

Snow's false claim appears to be in reference to a comment Wilson made in an interview on the July 14, 2005, edition of CNN's Wolf Blitzer Reports. In the interview, Wilson stated: "My wife was not a clandestine officer the day that Bob Novak blew her identity."

From the July 14, 2005, edition of CNN's Wolf Blitzer Reports, which featured host Wolf Blitzer:

BLITZER: The -- but the other argument that's been made against you is that you've sought to capitalize on this extravaganza, having that photo shoot with your wife [in the January 2004 Vanity Fair magazine], who was a clandestine officer of the CIA, and that you've tried to enrich yourself writing this book and all of that.

What do you make of those accusations, again, which are serious accusations, as you know, that have been leveled against you?

WILSON: My wife was not a clandestine officer the day that Bob Novak blew her identity.

BLITZER: But she hadn't been a clandestine officer for some time before that?

WILSON: That's not anything that I can talk about. And, indeed, I'll go back to what I said earlier, the CIA believed that a possible crime had been committed, and that's why they referred it to the Justice Department.

She was not a clandestine officer at the time that that article in Vanity Fair appeared.

Media Matters previously noted that following Wilson's initial July 2005 comment, some media outlets inaccurately reported that Wilson said his wife was not covert at the time of Novak's column. But Wilson simply noted that Plame's identity was no longer secret after Novak publicly revealed it. In fact, when Blitzer specifically asked Wilson if his wife "hadn't been a clandestine officer for some time before" Novak's column was published, Wilson responded that he could not comment on her past status as an undercover officer, but noted that "the CIA believed that a possible crime had been committed." The implication of Wilson's statement is clear: Had Plame not been a clandestine officer at the time Novak published her identity, the CIA would not have believed a possible crime had been committed.

Soon after that CNN interview, Wilson clarified his remarks, and many media outlets, such as the Associated Press, corrected the error. For example, in a July 15, 2005, article, the AP revised its report on Wilson's comment:

In an interview on CNN earlier Thursday before the latest revelation, Wilson kept up his criticism of the White House, saying Rove's conduct was an "outrageous abuse of power ... certainly worthy of frog-marching out of the White House."

Wilson also said "my wife was not a clandestine officer the day that Bob Novak blew her identity."

In an interview Friday, Wilson said his comment was meant to reflect that his wife lost her ability to be a covert agent because of the leak, not that she had stopped working for the CIA beforehand.

From the February 3 edition of Fox News' The O'Reilly Factor:

SNOW: Very quickly -- very quickly, you got this Valerie Plame case. Now, it turns out that [special counsel] Peter (sic: Patrick) Fitzgerald doesn't -- can't even identify any harm. She wasn't a covert agent. She wasn't compromised.

As a result, what you're doing is possibly sending a senior administration official off about a faulty memory over something that wasn't a crime.

Meanwhile, you got [CIA director] Porter Goss saying that there's serious damage here. Don't you think this deserves at least an opportunity to try to figure out what happened?

CROWLEY: Well, I'll take exception with you. The fact that we had a covert operative that was exposed, it's possible.

SNOW: She wasn't covert anymore. Even her husband says she wasn't covert for six years.

During the February 4 broadcast of Fox News' The Journal Editorial Report, Wall Street Journal deputy editorial page editor Daniel Henninger claimed that Democrats were "very ungracious" during President Bush's January 31 State of the Union address for "refusing to applaud anything this president said," with the exception of one instance, adding that they "simply sat on their hands." In fact, the Democrats applauded more than a dozen times during the State of the Union address.

Henninger's claim echoed an assertion made by NBC's Katie Couric, who said that Democrats "really applauded" only when Bush mentioned his failed Social Security plan. But far from sitting "on their hands," the Democrats gave standing ovations when Bush began the address by eulogizing Coretta Scott King; when he recognized the family of Marine Staff Sgt. Dan Clay, who was killed in Iraq; when he called for bipartisan support for the "war on terror"; and when he asked Congress "to put aside partisan politics and work together" in resolving the financial challenges facing Social Security, Medicare, and Medicaid programs. In total, Democrats applauded Bush at least 15 times during the approximately 50-minute-long address.

From the February 4 broadcast of Fox News' The Journal Editorial Report, with host and Wall Street Journal editorial page editor Paul A. Gigot:

HENNINGER: I thought the more telling thing, though, was the Republicans -- the Democrats refusing to applaud anything this president said, other than that [Bush's mention of his failed attempt at Social Security overhaul], in the State of the Union. I thought it was very ungracious.

GIGOT: You mean the Democrats?

HENNINGER: The Democrats, yeah.

GIGOT: Yeah.

HENNINGER: They simply sat on their hands, and people noticed that.

In an interview with Gen. Michael V. Hayden on the February 5 edition of Fox Broadcasting Co.'s Fox News Sunday, host Chris Wallace failed to challenge a statement Hayden made that appeared to directly contradict something Hayden had previously said in defense of the Bush administration's domestic surveillance program. In the interview, Hayden repeated the administration's defense that in order for the National Security Agency (NSA) to undertake domestic surveillance without a warrant, it must have evidence in the same "probable cause range" that the Foreign Intelligence Surveillance Act (FISA) requires to obtain a warrant. But as the first administration official to publicly defend the program, Hayden admitted on January 23 that what he called the program's "reasonable basis" standard is "a bit softer than it is for a FISA warrant," and directly acknowledged, in response to a question from a reporter, that the warrantless domestic surveillance had adopted a "lower standard" than required under FISA.

Hayden's assertion on Fox News Sunday was uncritically reported in a February 5 article in the International Herald Tribune, a newspaper owned by The New York Times Company.

Asked by Wallace why Americans should not be concerned that the administration has adopted a "lower or looser standard" for conducting wiretaps in the United States, Hayden replied by outlining the administration's current defense that "the standard that we use ... is in that probable cause range":

WALLACE: General, one of the big questions I think that people are asking is: Why can't you use the FISA law that was passed by Congress back in 1978?

As I understand it, under FISA, you have to show a court that you have probable cause before you can intercept a phone call, but under the president's plan, all you need is a reason to believe.

Why shouldn't Americans be concerned that what you have done is taken a program or taken a standard, in which you had to go to a court that would be using a judge that would be using a higher standard, and instead, now, you're using an NSA officer who's able to apply a lower or looser standard?

HAYDEN: All right. Lots of questions contained in there, Chris. First of all, I think you'll hear from NSA lawyers, and you'll probably hear from the attorney general tomorrow, that the standard that we use in order to determine whether or not we want to cover a communication is in that probable cause range.

Hayden's February 5 description of the program is in line with the Justice Department's (DOJ) defense of the program, but it directly contradicts his previous account of the program's requirement for engaging in warrantless surveillance.

As The Washington Post reported on January 26, Justice Department spokeswoman Tasia Scolinos said that the operative standard for NSA surveillance is "reasonable basis," which she said was "essentially the same" standard as FISA's requirement for "probable cause." But as Media Matters for America documented at the time, the DOJ account directly contradicted a statement Hayden had made earlier that week. In a January 23 press conference, Hayden acknowledged that the domestic surveillance program's standard is "a bit softer than it is for a FISA warrant" and confirmed a reporter's characterization that the program has a "lower standard" than that required by FISA:

HAYDEN: The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates.

[...]

REPORTER: Just to clarify sort of what's been said, from what I've heard you say today and an earlier press conference, the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?

HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a handful of people at NSA who can make that decision. They're all senior executives; they are all counterterrorism and Al Qaeda experts. So I -- even though I -- you're actually quoting me back, Jim, saying, "shift supervisor." To be more precise in what you just described, the person who makes that decision, a very small handful senior executive: so, in military terms, a senior colonel or general officer equivalent; and in professional terms, the people who know more about this than anyone else.

REPORTER: Well, no, that wasn't the real question. The question I was asking, though, was, since you lowered the standard, doesn't that decrease the protections of the U.S. citizens? And number two, if you could give us some idea of the genesis of this. Did you come up with the idea? Did somebody in the White House come up with the idea? Where did the idea originate from?

Thank you.

HAYDEN: Let me just take the first one, Jim. And I'm not going to talk about the process by which the president arrived at his decision.

I think you've accurately described the criteria under which this operates, and I think I, at least, tried to accurately describe a changed circumstance, threat to the nation, and why this approach -- limited, focused -- has been effective.