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February 1, 2006
Responding to reports that ABC World News Tonight co-anchor Bob Woodruff and cameraman Doug Vogt survived a roadside bombing in Iraq because they were wearing body armor, Rush Limbaugh claimed without evidence on his nationally syndicated radio show that "the media" had reversed their position on the condition of American troops' body armor. Asserting that the media were doing "180s" on the issue, Limbaugh cited unnamed reports "telling us about how poor the body armor was." In fact, multiple media outlets -- including ABC News and The New York Times -- have recently noted that a large number of fatalities have resulted from the military's failure to provide troops with armor for their sides, shoulders, and outer torsos. They have not claimed -- as Limbaugh suggested -- that existing body armor is entirely ineffective.
On his show, Limbaugh played comments by ABC News correspondent David Wright, who reported on the January 30 broadcast of ABC's Good Morning America that Woodruff and Vogt were wearing "helmets and flak jackets." From the January 30 broadcast of The Rush Limbaugh Show:
WRIGHT [audio clip]: Both of them, when they went out on this assignment, serious veteran war reporters. And they knew full well that this is a dangerous place.
Bob and his team were riding in the lead vehicle in the convoy, an Iraqi light armor personnel carrier. Wearing helmets and flak jackets, they stood in the back hatch, taping a stand-up when the explosion hit.
LIMBAUGH: They stood in the -- they stood in the back hatch taping a stand-up when the explosion hit. Now, this just seems to be so out of touch and so far removed from reality. "Serious veteran war reporters, they knew full well this is a dangerous place. Bob and his team were riding in the lead vehicle, an Iraqi light armored personnel carrier, wearing helmets and flak jackets." By the way, body armor, which -- how long ago was it the media was telling us about how poor the body armor was? The body armor wasn't working, American troops didn't have the proper equipment, they weren't properly equipped, they weren't properly protected. Bush and Cheney didn't care, Rumsfeld should be fired. And now they're out there saying it was the body armor that literally saved the lives of Bob Woodruff and his cameraman over there. How fast these 180s are made. At any rate, it just, it's -- I have all the sympathy here in the world for Bob Woodruff; don't misunderstand here, folks. I just think it is instructive to look at what it takes for these people to understand that this is real and that this is dangerous.
Limbaugh was apparently referring to recent media reports highlighting the military's failure to provide troops in Iraq with certain types of life-saving body armor. But these reports did not claim -- as Limbaugh's "180" comment suggested -- that existing body armor was ineffective. Rather, they noted that additional armor could have prevented a significant portion of American fatalities in Iraq.
On January 7, The New York Times reported that "[a] secret Pentagon study has found that as many as 80 percent of the marines who have been killed in Iraq from wounds to the upper body could have survived if they had had extra body armor." The Times reported: "Such armor has been available since 2003, but until recently the Pentagon has largely declined to supply it to troops despite calls from the field for additional protection, according to military officials." The Times further explained: "The ceramic plates in vests now worn by the majority of troops in Iraq cover only some of the chest and back. In at least 74 of the 93 fatal wounds that were analyzed in the Pentagon study of marines from March 2003 through June 2005, bullets and shrapnel struck the marines' shoulders, sides or areas of the torso where the plates do not reach." On January 8, the Times editorialized:
Marines in the field have been clamoring for additional body armor (and vehicle armor) almost since the Iraq war began. Military officials initially turned them down because of concerns that the added weight might constrict movement. Once the study results came in last summer, Marine Corps leaders belatedly reversed themselves and started speeding armor to the troops.
Still, as of last month, less than 10 percent of the 28,000 sets of armor plates on order had actually reached the Marines in Iraq. Similar delays have plagued deliveries of improved vehicle armor. And the much larger Army contingent in Iraq has faced even more extensive delays.
Following the Times' report, Good Morning America ran a week-long segment on the issue. On January 9, for instance, co-anchor Diane Sawyer interviewed a mother who had helped her son purchase "extra body armor not supplied by the Marines." Sawyer reported: "In the end, the added protection cost $3,000 and shields the shoulders, sides, and the outer edges of the torso, areas left vulnerable by his current equipment." Sawyer asked viewers: "So why didn't they have it? Why is the Pentagon moving so slowly, and why are some mothers not waiting for the military?"
A January 21 New York Times article reported: "Under pressure to speed the delivery of armor to troops in Iraq, the United States Army has awarded an emergency contract for ceramic plates to protect the sides of soldiers' torsos from insurgents' attacks, military officials said yesterday" -- a move "expected to shave three months off the typical contracting process" The Times further noted that "the Senate and House Armed Services committees said they planned to hold hearings in response to concerns raised by a report in The New York Times on Jan. 7 about the military's body armor program."
It is not clear from media reports whether the armor worn by Woodruff and Vogt is the same as that issued to troops by the military.
Update: Democratic strategist Donna Brazile -- not listed on the TVNewser entry -- will also participate in CNN's coverage of the State of the Union address.
According to the weblog TVNewser, CNN's January 31 coverage of President Bush's State of the Union address will feature three conservative commentators but only one progessive commentator. The January 31 TVNewser post, which detailed the State of the Union "coverage plans" for the major cable and broadcast news networks, indicated that CNN will feature former Reagan administration Secretary of Education Bill Bennett, former Bush administration official Victoria Clarke, and former Rep. J.C. Watts (R-OK). Democratic strategist Paul Begala is the only progressive commentator scheduled to appear on CNN, according to TVNewser.
In his January 30 nationally syndicated column, U.S. News & World Report senior writer Michael Barone mischaracterized the Bush administration's warrantless domestic surveillance program, dismissing the "hue and cry" from "the mainstream media and some Democrats" over its alleged illegality.
In his column, Barone wrote:
But for some people, it seems to be the '70s all the time. After The New York Times revealed on Dec. 16 that the National Security Agency was monitoring telephone calls from suspected terrorists abroad to people in the United States, a hue and cry went up from the mainstream media and some Democrats that the Bush administration was engaged in a massive and illegitimate program of domestic wiretapping. Never mind that few if any wires were tapped -- it's likely that most of these calls were on cell phones -- and that every one of the calls was by definition international.
Yes, there are some serious people who argue that the program violated the Foreign Intelligence Surveillance Act of 1978 (that slum of a decade again) because warrants were not obtained. But no serious person doubts that the president can order surveillance of enemy communications in time of war. And it doesn't make much sense to listen in on enemy communications but to hang up when a call is made to someone in the United States.
Barone's claim that the "hue and cry" came up from "the mainstream media and some Democrats" ignored the fact that Republicans and conservatives have also criticized or expressed concern over the program. As Media Matters for America noted, Sens. Chuck Hagel (R-NE), Olympia Snowe (R-ME), Richard Lugar (R-IN), Susan Collins (R-ME), and John E. Sununu (R-NH) have called for hearings about the program. Senate Judiciary Committee chairman Arlen Specter (R-PA) agreed to hold hearings and said he was "skeptical" of Attorney General Alberto R. Gonzales's claims of the program's legality. Sens. John McCain (R-AZ), Lindsey Graham (R-SC), and Larry Craig (R-ID) have expressed their concerns over the program, as have Rep. C.L. "Butch" Otter (R-ID) and former Rep. Bob Barr (R-GA). These Republican lawmakers have been joined in their criticism by conservative media figures such as former Reagan deputy attorney general Bruce Fein and Washington Post columnist George F. Will.
In writing that the NSA monitors "calls from suspected terrorists abroad to people in the United States," and that "every one of the calls was by definition international," Barone mischaracterized The New York Times' reporting on the program and ignored evidence that the surveillance program monitors communications from the United States and even calls in which both parties are in the United States. The Times reported on December 16, 2005, that "officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time." President Bush and White House press secretary Scott McClellan have acknowledged that the NSA requires only that it "reasonably suspect" someone of links to terrorism in order to intercept that person's communications. The Times also reported on December 21 that purely domestic calls had been captured by the program.
Barone's claim that "it doesn't make much sense to listen in on enemy communications but to hang up when a call is made to someone in the United States" is misleading. The administration's critics argue that surveillance should be conducted in accordance with the law. As Barone himself noted in the preceding sentence: "[N]o serious person doubts that the president can order surveillance of enemy communications in time of war." But, at least one high-ranking member Bush's Department of Justice has expressed doubts that the president could do what he is reportedly doing. As Media Matters for America has noted, former Deputy Attorney General James B. Comey -- who was then acting attorney general -- refused to reauthorize the NSA program in 2002 while then-Attorney General John Ashcroft was hospitalized. As Newsweek reported in its February 6 edition, Comey was one of several Bush administration officials who objected to vast expansions of executive power to conduct the "war on terror," such as the NSA program. The nonpartisan Congressional Research Service (CRS) also said that the program as reportedly conducted raises serious legal and constitutional questions. Specifically, a January 5 CRS report noted that the Bush administration's legal justification for the NSA program "conflicts with existing law and hinges on weak legal arguments."
Critics also argue that the administration should have petitioned Congress to change the 1978 Foreign Intelligence Surveillance Act (FISA) before initiating the program. Instead, as Media Matters noted, the Bush administration has actively rejected congressional consultation and offered contradictory rationales for opposing a 2002 bill by Sen. Mike DeWine (R-OH) that would have lowered the threshold for conducting electronic surveillance under FISA. Specifically, the Justice Department rejected the DeWine bill in 2002, claiming that lowering FISA standards might not "pass constitutional muster," despite the fact that the program was -- and is -- being conducted wholly independent of FISA standards.
In a January 29 New York Times article, reporter Sheryl Gay Stolberg wrote -- without citing evidence -- that "[t]he president's poll numbers, which plummeted last year, are beginning to inch up." Later in the article, Stolberg again reported that Bush's poll numbers "are rising but still comparatively low." In fact, a review of eight major polls released in the week preceding Stolberg's report revealed that polls showing President Bush's approval rating either declining or remaining steady outnumbered polls showing an increase.
The results of those polls:
The margin of error in all of the above polls is approximately 3 percentage points.
Matthews, Carlson suggested Democrats who don't applaud Bush speech will "look bad," which will be "good for the Republicans"
On the 5 p.m. ET hour of the January 30 edition of MSNBC's Hardball with Chris Matthews, host Chris Matthews and Tucker Carlson, host of MSNBC's The Situation with Tucker Carlson suggested that if Democrats at President Bush's January 31 State of the Union address "sit on their hands dramatically" while "the Republicans stand up and roar," the Democrats will "look bad" to the American public, and "[t]hat's good for the Republicans."
During a discussion with Carlson and MSNBC chief Washington correspondent Norah O'Donnell, Matthews asked: "Will there be a moment where the Democrats sit on their hands dramatically and the Republicans stand up and roar?" When Carlson replied, "There always is, absolutely," and asserted that "it is shocking to people who don't follow Congress," Matthews asked: "Do they [the Democrats] look bad when they don't [applaud President Bush]?" Carlson responded: "I think they do," adding, "I don't think the public likes that." Matthews later asked: "Suppose the president says, 'I'm gonna make my tax cuts permanent,' and the Democrats sit on their hands. That's good for the Republicans, right?" Carlson replied: "Yeah, probably so."
From the 5 p.m. ET hour of the January 30 edition of MSNBC's Hardball with Chris Matthews:
MATTHEWS: Will there be moments -- I want to get back to substance, but I love the visual because I think it is a television event now. It's a studio audience, basically. Will there be a moment where the Democrats sit on their hands dramatically and the Republicans stand up and roar?
CARLSON: There always is, absolutely. I think people are always surprised by -- and every year, not just this year -- but they are always surprised by how partisan it is. I don't even think most people at home know that the parties sit in different places. I mean, I think it is shocking to people who don't follow Congress that one side, you know, won't respond at all to the president, and the other side goes crazy.
MATTHEWS: Do they look bad when they don't?
CARLSON: I think they do. I mean, I'm not shocked by it; I've lived here a long time. But yeah, I don't think the public likes that.
MATTHEWS: Suppose the president says, "I'm gonna make my tax cuts permanent," and the Democrats sit on their hands. That's good for the Republicans, right?
CARLSON: Yeah, probably so.
During the January 30 edition of MSNBC's Hardball, host Chris Matthews called Sen. Edward M. Kennedy (D-MA) "the guy that molested" Martha-Ann Alito, wife of Supreme Court nominee Judge Samuel A. Alito Jr. Matthews predicted that during President Bush's January 31 State of the Union address, Bush would spotlight Alito's wife, who broke down in tears while Sen. Lindsey Graham (R-SC) was questioning Judge Alito at his Senate Judiciary Committee nomination hearings. Matthews said: "Won't they say something very upbeat and bucking up, like isn't she a great woman, and then they'll put the camera right on Ted Kennedy. And show how he was the guy that molested her, basically... the way they [presumably Senate Judiciary Committee Democrats] beat up Judge Alito to make his wife cry." Matthews's comments came during a conversation with MSNBC anchor Tucker Carlson, NBC's chief Washington correspondent Norah O'Donnell, and MSNBC political analyst Ron Reagan.
Immediately following the incident in which Martha-Ann Alito left the hearing room, numerous media outlets seized on her emotional reaction to suggest Democrats "went too far" in questioning Judge Alito.
From the January 30 edition of MSNBC's Hardball with Chris Matthews:
MATTHEWS: Do you think the press cameras, the network cameras, will enjoy highlighting these campus characters?
CARLSON: I hope so. I hope they do. That's like the most interesting thing of the whole event. I love it.
MATTHEWS: Well, another visual I want to suggest the possibility that the president will be on top of his game. His people like [presidential counselor] Dan Bartlett and such will be on the top of their game. And then Martha-Ann Alito will be up in the gallery, the woman who was --
O'DONNELL: But not crying.
MATTHEWS: The president will say something -- well, Norah, you follow the White House, you know how it works. Won't they say something very upbeat and bucking up, like, "Isn't she a great woman," and then they'll put the camera right on Ted Kennedy. And show how he was the guy that molested her, basically. That's the way they'll play it.
O'DONNELL: Well, sure. The president always uses his box and those who sit next to the first lady to sort of symbolize some great moment, and clearly one of the high points for this president over the past year has been the fact that he got Chief [Justice] John Roberts confirmed and potentially Sam Alito.
MATTHEWS: -- the way they beat up Judge Alito to make his wife cry.
REAGAN: Norah, will Mrs. Alito be the hero that is featured in the grandstand there?
O`DONNELL: I don't know. But I would imagine that they would pick a what's called sort of a more "regular" American, if you will.
CARLSON: That's my least favorite part. They always have -- it's either an Indian chief or a female firefighter.
Milbank ignored polling in presenting impeachment advocates as fringe element, overstated margin of Alito filibuster loss
The Washington Post continued to ignore polling that shows that a majority of Americans believe Congress should consider impeaching President Bush. In his January 31 column, Post columnist Dana Milbank depicted advocates of impeachment as a fringe element of the Democratic Party -- which he said is in one of its "periodic splits between pragmatism and symbolism" -- while ignoring polling that shows that a majority of Americans believe Congress should consider impeaching Bush over his authorization of warrantless domestic surveillance. Milbank also falsely reported that Sen. John F. Kerry (D-MA) "got only 25 of the 60 needed votes" to mount a filibuster against President Bush's nomination of Samuel A. Alito Jr. to the Supreme Court. In fact, it was Alito's supporters who "needed" the 60 votes to invoke "cloture," or end debate on the nomination and proceed to a floor vote; filibuster supporters needed 41 votes. (The version of Milbank's column on the Post's website has corrected the claim; the article now states that "Kerry got only 25 votes.")
Milbank devoted the bulk of his column to dismissive coverage of a forum on "The Impeachment of President George W. Bush and Vice President Dick Cheney" held in Washington, D.C., on January 30. Milbank described the speakers at the event as a "Bill O'Reilly fantasy" and noted that they "did not disappoint." He reported that the chance of a Republican-controlled Congress "moving to impeach Bush is close to zero" and quoted a commenter on an unnamed website arguing that such efforts provide "a cartoon image of the old pinko commie left, and fair game for the wingnuts at Fox." But Milbank failed to mention polling that shows that a majority of Americans believe Congress should consider impeachment. As Media Matters previously noted, the Post ignored the results of a November 2005 Zogby International poll commissioned by members of AfterDowningStreet.org that found that 53 percent of Americans thought that Congress should consider impeachment "[i]f President Bush did not tell the truth about his reasons for going to war with Iraq." (Post polling director Richard Morin later offered the dubious explanation that the paper does not itself poll on the topic because "it is not a serious option or a topic of considered discussion.") More recently, another Zogby poll, commissioned by the same organization and released on January 16, found that a majority of Americans think Congress should consider impeachment -- though not over the Iraq war, as speakers at the forum apparently advocated, but, rather, "[i]f President Bush wiretapped American citizens without the approval of a judge."
In addition, Milbank apparently confused the numbers required to defeat and sustain a filibuster. From Milbank's January 31 "Washington Sketch" column headlined "Tasting Victory, Liberals Instead Have a Food Fight," as it originally appeared in the Post:
Elected Democrats and their liberal base are in one of their periodic splits between pragmatism and symbolism. Under pressure from blogs and liberal groups, Sen. John F. Kerry (D-Mass.) yesterday attempted an obviously doomed filibuster against the Supreme Court nomination of Samuel Alito -- and Kerry got only 25 of the 60 needed votes.
In fact, it was the opponents of the filibuster who needed, and obtained, 60 votes to cut off debate. Milbank's construction suggested that Kerry's effort failed by a much wider margin than was actually the case. Had 41 senators -- not 60 -- voted against the cloture motion, debate would have continued.
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." 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. For example, reporter Harris Faulkner, on the January 25 edition of The O'Reilly Factor, used the term during a news brief when she noted that " '[s]trange and farfetched' ... is what New York Senator Hillary Rodham Clinton is calling President Bush's defense of his terror surveillance program."
During what many in the media have described as the White House's weeklong "blitz" to foster support for the wiretapping program, on the January 24 edition of the Fox News morning show, Fox & Friends, co-hosts E.D. Hill and Steven Doocy used the term "terrorist surveillance program" while discussing the president's January 23 Kansas State University speech in which he began using the term publicly. Hill and Doocy concurred that the White House's terminology "sounds better" and "is more accurate" -- presumably than other descriptions of the program, such as "domestic spy program," "warrantless wiretapping" and "NSA domestic surveillance program." The following day on Fox & Friends First, Doocy and co-host Brian Kilmeade announced their intention to refer to the program as "the terrorist surveillance program."
On January 22, the White House Press press office released a backgrounder -- called "Setting the Record Straight" -- on the NSA spy program, in which the term "terrorist surveillance program" appeared 10 times in reference to the NSA's controversial practice, authorized by the White House, of the warrantless surveillance of people in the United States, including U.S. citizens. The term "terrorist surveillance program" appears to have originated with the right-wing news website NewsMax.com on December 22; operators of right-wing weblogs began to pick up the term on January 20, according to a timeline at the Think Progress blog.
As Media Matters for America has noted, Fox also followed the White House's lead in replacing the terms "suicide bomber" and "suicide bombing" with "homicide bomber" and "homicide bombing" to describe attackers who kill themselves and others with explosives. On April 12, 2002, then-White House press secretary Ari Fleisher adopted the term, and Fox News immediately followed suit in its reporting. According to an April 13, 2002, Associated Press report, "Dennis Murray, executive producer of [Fox News'] daytime programming, said executives there had heard the phrase ["homicide bombing"] being used by administration officials in recent days and thought it was a good idea." In a February 23, 2005, item, Media Matters documented Fox's doctoring of AP articles featured on the Fox News website concerning terrorist attacks in the Middle East to conform to Bush administration terminology -- even altering a quote from Sen. Hillary Rodham Clinton (D-NY) to fit the White House jargon.
Initially, when using the phrase, "terrorist surveillance program", Fox News reporters and anchors noted that it was the term promoted by the Bush administration. For example, on January 23 broadcast of Your World with Neil Cavuto news update anchor Uma Pemmaraju highlighted the switch:
PEMMARAJU: President Bush on the offensive against critics of domestic wiretapping in the war on terror. The president, speaking at Kansas State University, relabeled his effort the "terrorist surveillance program." He says it was within the law to eavesdrop on people communicating with Al Qaeda associates outside the U.S. after 9-11.
But beginning January 25, use of the phrase began to appear in Fox News reports without any indication that the White House has promoted it.
From Faulkner's news brief during the January 25 edition of Fox News' The O'Reilly Factor:
FAULKNER: "Strange and far-fetched," that's what New York Senator Hillary Rodham Clinton is calling President Bush's defense of his terror surveillance program. For example, President Bush has said Congress gave him the authority as part of a terror fight resolution passed after 9-11. Senator Clinton says she doesn't buy that argument, calling it "a stretch."
From the January 25 broadcast of Fox & Friends First:
KILMEADE: Let's call it the terrorist surveillance program. That would be a lot easier. And right now, if you're--
DOOCY: And more accurate.
KILMEADE: Yeah, more accurate too. If you're for the NSA wiretapping without going to the FISA court, I guess warrantless, then most likely you're Republican. If you are against it, you most likely are a Democrat. Here is what the president is going to be focusing on: the independents.
As Media Matters has previously documented, numerous Republicans and conservatives have expressed concern over the legality of the NSA warrantless spy program.
From the January 24 broadcast of Fox News Channel's Fox and Friends:
DOOCY: I wouldn't be surprised if George W. Bush is looking for a house in Manhattan, Kansas, because the audience yesterday at the Alf Landon Lecture Series at Kansas State University gave him a warm reception. He was talking at great length about the terrorist surveillance program -- that's now how it is being referred to by the White House -- and as we heard the president say at the top of this program just four minutes ago --
HILL: It sounds better, doesn't it? It's more accurate.
DOOCY: It is more accurate, and it tells you what it's about. And he made a good point: He said, "If I wanted to break the law, why was I briefing Congress?"
January 30, 2006
On TV and in print, Time claimed, despite contradictory evidence, that Bush has "put the NSA story to bed"
On the air and in print, Time assistant managing editor Michael Duffy and White House correspondent Mike Allen both claimed that President Bush successfully deflected criticism of his recently disclosed warrantless domestic surveillance program, conducted by the National Security Agency (NSA) and authorized by the White House. However, neither Duffy nor Allen offered much evidence to justify that assessment of Bush's handling of the controversy; moreover, in reaching that conclusion, they apparently dismissed numerous examples of contradictory statements offered by administration officials to defend the program, ignored mounting evidence -- consolidated by Newsweek in an article released the same day as Allen's -- of bitter dissent within the Bush administration over the program, and overlooked polling that shows the American public divided in its view of the program but with a majority favoring appointment of a special prosecutor to investigate possible violations of the law. On the January 29 edition of the NBC-syndicated The Chris Matthews Show, Duffy, without justification, said that Bush has "put the NSA story to bed." In an article in the February 6 edition of Time, Allen claimed that the domestic surveillance controversy has given Bush a "foothold" and ignored the administration's various legal problems and rhetorical inconsistencies regarding the surveillance issue.
From the January 29 edition of the NBC-syndicated The Chris Matthews Show:
MATTHEWS: Can he [Bush] shape the battlefield that effectively? Can he say, "The issue here is NSA surveillance?" No questions, by the way, this week at the press conference on Iraq. That's just sort of off the table. But the other thing is, can he say, on things like Katrina aftermath, and interviewing [former Federal Emergency Management Agency director] Michael Brown, and all that argument about executive privilege, can he say -- and also about these [former lobbyist Jack] Abramoff photos the White House apparently has -- can he just say, "That's small potatoes, I'm talking about the big stuff"?
DUFFY: Well, I'm not sure he can clear the table, but when it comes to almost all the security stuff, on terror, I think he's won it. I think he's put the NSA story to bed.
Duffy offered no justification for this argument, though it was expanded in Allen's Time article, to which Duffy contributed. From the Time article:
But the eavesdropping controversy turned out to offer a foothold. "If somebody from al-Qaeda is calling you, we'd like to know why," Bush declared, while polls showed Americans weren't particularly concerned about warrantless wiretapping if authorities were using it to fight terrorism. When a new threat on tape from Osama bin Laden emerged, Bush was set up to return to the stage as Protector in Chief, the Republicans' award-winning role in the past two elections.
Starting Feb. 6, the Senate will plunge ahead with hearings on eavesdropping, and Bush could face trouble if facts come out indicating he has described the program inaccurately or incompletely. After Bush delivered his war-on-terrorism defense of the program, however, Democrats seemed to have lost their stomach for battle. "I'm not sure that's a winning issue for Democrats," party strategist Harold Ickes said. Senate Democratic leader Harry Reid preferred to focus on Medicare snafus and what he called G.O.P. corruption.
Allen's claim that Bush "could face trouble if facts come out indicating he has described the program inaccurately or incompletely" ignored the fact that Bush and other members of his administration already have given contradictory arguments in defense of the program, and already have been accused of describing the program inaccurately and incompletely. As Media Matters for America noted, the administration's explanations for refusing to support a 2002 bill by Sen. Mike DeWine (R-OH) that would have loosened the standards for conducting domestic surveillance, as set forth by the 1978 Foreign Intelligence Surveillance Act (FISA), contradict its current justifications for the program. Specifically, DeWine proposed lowering the threshold for obtaining a FISA warrant to conduct electronic surveillance on "non-U.S. persons" from "probable cause" to "reasonable suspicion." At the time, the Justice Department refused to support the legislation, expressing concerns that changing FISA in such a way might not "pass constitutional muster" and asserting that such changes were likely unnecessary.
Justice Department spokeswoman Tasia Scolinos was quoted in a January 26 Washington Post article explaining that the administration refused to support DeWine's 2002 bill because the bill would have lowered the standard for obtaining warrants in certain cases to "reasonable suspicion." By contrast, Scolinos said, the operative standard for NSA surveillance is "reasonable basis," which she said was a higher standard than "reasonable suspicion" and "essentially the same" as FISA's requirement for "probable cause." But on January 23, Gen. Michael V. Hayden, deputy director for national intelligence and former head of the NSA, said something very different about how the two standards of "reasonable basis" and "probable cause" compare. Contrary to Scolinos, who claimed that they were essentially the same standard, Hayden made clear there was a difference, attempting to justify the domestic surveillance program by claiming that the Fourth Amendment stipulates that the NSA needs only a "reasonable basis" for engaging in surveillance, and is not bound by the "probable cause" standard established by FISA. Moreover, contrary to Scolinos's assertion that "reasonable basis" was a stricter standard than "reasonable suspicion," Bush himself has blurred the distinction between the "reasonable basis" championed by the White House and the "reasonable suspicion" advocated by the DeWine bill, as Media Matters has noted.
Additionally, as Washington Post staff writers Dan Eggen and Walter Pincus noted in a January 27 article: "Before the program's existence was revealed, several administration officials also emphasized in testimony and public statements that the NSA was prohibited from engaging in domestic surveillance -- even as the agency was clearly doing so under the authority of Bush's secret order that established the program." Bush himself claimed in an April 20, 2004, speech:
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.
Beyond the contradictions in the administration's description of the program and the standards used to determine who becomes a target of surveillance, other facts have "come out indicating that he has described the program" both inaccurately and incompletely. As Media Matters previously noted, members of Congress have accused the administration of giving incomplete and misleading descriptions of the program. The Congressional Research Service noted that the Bush administration's limited notification of Congress about the domestic surveillance program "appear[s] to be inconsistent with the law." And, as Media Matters has noted, White House senior adviser Karl Rove has attempted to smear Democrats by claiming that "some important Democrats disagree" that "if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why." In fact, no member of the Democratic leadership in Congress, no Democratic governor, and no Democratic party official has said that it is not in our interest to know whom Al Qaeda is calling, but numerous Democrats (and some Republicans and conservatives) have said they are opposed to the warrantless surveillance of Americans -- the program that Bush has reportedly authorized. Several media outlets repeated Rove's mischaracterization of opponents' position and his implicit mischaracterization of the program.
Allen's assertion also ignores the issue at the heart of the controversy -- presumably to be considered by the Senate Judiciary Committee and possibly by the courts -- of whether Bush violated the law in authorizing the program. As noted in the February 6 edition of Newsweek, senior officials at the Justice Department such as former deputy attorney general James B. Comey, objected strenuously to the program and to vast expansions of executive power to conduct the "war on terror." As Media Matters noted prior to the Newsweek article's release, Comey, while serving as acting attorney general while then-Attorney General John Ashcroft was hospitalized in 2002, refused to reauthorize the surveillance program. Comey's refusal reportedly prompted White House chief of staff Andrew H. Card Jr. and then-White House counsel Alberto R. Gonzales, now the attorney general, to visit Ashcroft in the hospital to obtain Department of Justice approval. Newsweek reported: "In pain and on medication, Ashcroft stood by his No. 2. A compromise was finally worked out. The NSA was not compelled to go to the secret FISA court to get warrants, but Justice imposed tougher legal standards before permitting eavesdropping on communications into the United States."
Moreover, Duffy's claim that Bush "put the NSA story to bed" ignored polling showing that the public is, and continues to be, concerned about the controversy.
A CBS News/New York Times poll conducted January 20-25 -- partially after Bush began a concerted defense of the program with a speech on January 23 -- showed little or no change in public opinion on the domestic surveillance program from a CBS poll taken earlier in the month. The CBS/Times poll found that the percentage of respondents who "approve of Bush authorizing wiretaps to fight terrorism" was "similar to those [results] seen nearly three weeks ago, soon after news reports about the wiretaps appeared"; that the amount of confidence respondents expressed in the government correctly choosing which calls to monitor "ha[s] changed little from earlier this month"; and there was an increase of two percentage points in both the number of respondents concerned that the government will "[n]ot make laws strong enough" to combat terrorism and the number of respondents who fear the government will "go too far in restricting civil liberties." The largest change in public opinion in the latest CBS/Times poll actually bolstered the argument for those who oppose the domestic surveillance program: it indicated an increase of five percentage points in respondents who are "very concerned about losing civil liberties because of Bush administration's anti-terror measures," and a corresponding decrease in the percent who are "somewhat" or "not very/not at all" concerned.
Additionally, a CNN/USA Today/Gallup poll conducted January 20-22 showed that a majority of Americans -- 58 percent -- think that a special prosecutor should be appointed to investigate the matter. While this polling was conducted before Bush began this media blitz, Duffy's and Allen's praise of Bush for defusing this issue appears not to be wholly deserved, especially when just one week earlier, nearly 60 percent of Americans were concerned enough to think it deserves serious investigation.
In NY Times op-ed, Bobbitt suggested FISA to blame for failure to identify 9-11 hijackers; 9-11 Commission report concluded otherwise
In a January 30 New York Times op-ed defending the Bush administration's domestic surveillance program, former National Security Council senior director Philip Bobbitt appeared to contradict the 9-11 Commission by suggesting that regulations under the Foreign Intelligence Surveillance Act (FISA) prevented the U.S. from identifying the hijackers who later committed the September 11, 2001, terrorist attacks. Bobbitt suggested that FISA prevented U.S. officials from tracking "credit card accounts, frequent-flyer programs and a cellphone number" from two of the future hijackers that, in turn, would have likely led to the other 17 men who eventually committed the attacks. But according to the 9-11 Commission report, it was intelligence officials' confusion over the rules concerning intelligence sharing, not FISA's requirements for obtaining warrants to conduct electronic surveillance, that prevented an "investigation of their [the hijackers'] travel and financial activities."
According to Bobbitt, FISA's requirement that investigators show "probable cause" to obtain a warrant for surveillance against "U.S. persons" prohibited investigators from "cross-referenc[ing] credit card accounts, frequent-flyer programs and a cellphone number shared by" the two would-be hijackers the U.S. was tracking at the time, Nawaf al-Hazmi and Khalid al-Mihdhar. Bobbitt then suggested that information would have allowed for "data mining [that] might easily have picked up on the 17 other men linked to" Hazmi and Mihdhar.
From Bobbitt's op-ed:
Consider that on Sept. 10, 2001, the N.S.A. intercepted two messages: "The match begins tomorrow" and "Tomorrow is zero hour." These were not picked up through surveillance of suspected individuals but from random monitoring of pay phones in areas of Afghanistan where Al Qaeda was active. Not surprisingly, these messages were not translated or disseminated until Sept. 12th.
Nor was the fact that we knew the identities of two of the terrorists sufficient to thwart the attack the next day. But had we at the time cross-referenced credit card accounts, frequent-flyer programs and a cellphone number shared by those two men, data mining might easily have picked up on the 17 other men linked to them and flying on the same day at the same time on four flights. Such intelligence collection would not have been based on probable cause, and yet the presence of the hijackers in the country would have qualified them as "U.S. persons."
Clearly, "random" information is likely to be useless when it is not linked to surveillance focused on an individual, while that focused intelligence is much less useful when it is not linked to data mining collected in broad surveillance of "U.S. persons."
But the 9-11 Commission report appears to contradict Bobbitt's account, attributing intelligence officials' failure to conduct an "investigation of their [Hazmi and Mihdhar's] travel and financial activities" to "confus[ion] about the rules governing the sharing and use of information gathered in intelligence channels," not to the FISA requirements. The report specifically noted that criminal investigators "could have conducted a search using all available information" related to Mihdhar because the National Security Agency (NSA), which the 9-11 Commission suggests had already obtained much of this information on Hazmi and Mihdhar, "had approved the passage of its information to the criminal agent" in the criminal case involving the October 2000 bombing of the USS Cole. The report suggested that a search of Mihdhar could have been particularly fruitful, because he was identified by name well before Hazmi.
From the 9-11 Commission report:
It is now clear that everyone involved was confused about the rules governing the sharing and use of information gathered in intelligence channels. Because Mihdhar was being sought for his possible connection to or knowledge of the Cole bombing, he could be investigated or tracked under the existing Cole criminal case. No new criminal case was needed for the criminal agent to begin searching for Mihdhar. And as NSA had approved the passage of its information to the criminal agent, he could have conducted a search using all available information. As a result of this confusion, the criminal agents who were knowledgeable about al Qaeda and experienced with criminal investigative techniques, including finding suspects and possible criminal charges, were thus excluded from the search.
We believe that if more resources had been applied and a significantly different approach taken, Mihdhar and Hazmi might have been found. They had used their true names in the United States. Still, the investigators would have needed luck as well as skill to find them prior to September 11 even if such searches had begun as early as August 23, when the lead was first drafted.
Many FBI witnesses have suggested that even if Mihdhar had been found, there was nothing the agents could have done except follow him onto the planes. We believe this is incorrect. Both Hazmi and Mihdhar could have been held for immigration violations or as material witnesses in the Cole bombing case. Investigation or interrogation of them, and investigation of their travel and financial activities, could have yielded evidence of connections to other participants in the 9/11 plot. The simple fact of their detention could have derailed the plan. In any case, the opportunity did not arise.
In NY Post book review, McCarthy falsely suggested Clinton administration responsible for upholding Miranda requirement
In a January 24 New York Post book review, Andrew C. McCarthy, a senior fellow with the Foundation for the Defense of Democracies and contributor to National Review Online, falsely suggested that, due to a position taken by the Clinton administration in 1999, the Constitution now requires that law enforcement officials give suspects Miranda warnings for confessions to be admissible in court. In fact, as the Supreme Court noted in Dickerson v. United States (2000), it was the Miranda court itself -- in 1966 -- that held that this requirement is embedded in the Constitution.
In its 1999 brief in Dickerson, the Clinton Justice Department declined to defend the government's victory in a court of appeals ruling that Congress had used its power through a 1968 law to overrule the requirement -- imposed by the Supreme Court in the 1966 case of Miranda v. Arizona -- that suspects must be informed of their right to remain silent. McCarthy, in his book review, asserted that, "thanks largely" to the Clinton administration's decision not to argue against Miranda, the Supreme Court, in Dickerson, subsequently upheld Miranda's warning requirement as mandated by the Fifth Amendment, and struck down Congress' attempt to overrule it.
From McCarthy's January 24 New York Post book review of Protecting Liberty In An Age Of Terror (MIT Press, 2006) by Philip B. Heymann and Juliette N. Kayyem:
Further, the authors' extension of American constitutional rights to alien detainees is high-minded; but -- thanks largely to a position taken by the Clinton Justice Department before the Supreme Court in 1999 -- the Fifth Amendment guarantee now incorporates Miranda protections. That is hardly appropriate for wartime enemy combatants.
But McCarthy's assertion ignored the actual language in the Miranda court's opinion, as noted by the majority in Dickerson. McCarthy falsely suggested that the Dickerson decision was the first time the court ruled on whether Miranda protections are required by the Fifth Amendment. But the first time the court ruled that the Fifth Amendment guarantee includes Miranda protections was in Miranda. The question in Dickerson was ultimately whether the Miranda decision was right as a constitutional matter -- whether the court went too far or had since fundamentally undermined its ruling -- and not whether the Miranda court was in fact ruling on the parameters of the Fifth Amendment right against self-incrimination. As to the second question -- whether the Miranda court was, in fact, ruling on the parameters of the Fifth Amendment, which McCarthy falsely suggested was a matter of dispute before the Dickerson court -- the Dickerson court said this was not in dispute: The Miranda court, according to the majority in the Dickerson court, had clearly set out to articulate a constitutional standard, not merely an administrative rule of evidence that could be reversed by Congress:
The Miranda opinion itself begins by stating that the Court granted certiorari "to explore some facets of the problems ... of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U. S., at 441-442 (emphasis added). In fact, the majority opinion is replete with statements indicating that the majority thought it was announcing a constitutional rule.4 Indeed, the Court's ultimate conclusion was that the unwarned confessions obtained in the four cases before the Court in Miranda "were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege." 5 Id., at 491.
McCarthy suggested that had the Clinton administration argued vigorously in favor of the position McCarthy thinks it should have argued for, the Dickerson court would have found -- contrary to the above statement -- that "the majority opinion" was not "replete with statements indicating that the majority thought it was announcing a constitutional rule." Persuading the court of a different interpretation of the law is one thing; persuading it that the facts are the opposite of what the court would otherwise have concluded they are is quite another.
The specific question in Dickerson was whether Congress had the power to reverse Miranda legislatively, which it attempted to do in 1968 by statute. Prior to Miranda, the Supreme Court had said that a confession was admissible if it was voluntary, to be judged by "the totality of the circumstances"; after Miranda, a confession was presumed to be involuntary (and therefore inadmissible) if a suspect had not been given his or her "Miranda warnings." In 1968, two years after Miranda, Congress passed a law, Section 3501, which stated that the courts were to use the "totality of the circumstances" test that Miranda had repudiated. The law received little attention until a 1999 decision by the 4th U.S. Circuit Court of Appeals, which held that Miranda had not, in fact, enunciated a constitutional requirement but had merely set out a rule for the federal courts, which Congress has the power to overwrite. The 4th Circuit ruled that Congress did just that in 1968, by passing Section 3501. The Supreme Court reversed the 4th Circuit, ruling that the court's decision in Miranda was a determination of a constitutional right which cannot be abrogated by Congress, and that the court's decision in Miranda was correct as a matter of constitutional interpretation.
In arguing Dickerson, the Clinton Justice Department chose not to argue to defend the 4th Circuit ruling that the 1968 statute should be upheld. But contrary to McCarthy's suggestion, the case did include an advocate for upholding the 4th Circuit decision. The Supreme Court asked law professor and current U.S. District Judge Paul G. Cassell, who had advocated through his legal scholarship the overturning of Miranda, to argue the position that the 4th Circuit decision should be upheld. By a vote of 7-2, the Supreme Court upheld the original Miranda decision in Dickerson and reversed the 4th Circuit.
McCarthy's suggestion that the 4th Circuit decision was reversed because of the Clinton administration's refusal to defend it is further undermined by the reasoning the court gave for ultimately ruling as it did. The majority opinion in the case, written by the late Chief Justice William H. Rehnquist, indicates that the court's decision rested on factors different from the merits of the 4th Circuit's ruling. Rehnquist wrote that -- essentially regardless of the merits of the 4th Circuit's ruling or of the original Miranda decision itself -- Miranda would be upheld largely because it has "become embedded in routine police practice to the point where the warnings have become part of our national culture":
Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. ... While" 'stare decisis is not an inexorable command,'" State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (quoting Payne v. Tennessee, 501 U. S. 808, 828 (1991)), particularly when we are interpreting the Constitution, Agostini v. Felton, 521 U. S. 203, 235 (1997), "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.'"
We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U. S. 314, 331-332 (1999) (SCALIA, J., dissenting) (stating that the fact that a rule has found "'wide acceptance in the legal culture'" is "adequate reason not to overrule" it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, see, e. g., Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989), we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief.
And, even though the Justice Department declined to argue against Miranda in the case, the court did hear that argument from Cassell. From Dickerson:
Because no party to the underlying litigation argued in favor of [Section] 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below.
On the January 29 edition of Fox Broadcasting Co.'s Fox News Sunday, Weekly Standard editor William Kristol distorted Democratic National Committee chairman Howard Dean's criticism of the Bush administration's warrantless domestic surveillance program. Kristol claimed that Dean, during an interview on the program, had asserted that the controversial program was "probably some kind of domestic spying on political enemies." But Dean made no such allegation. Rather, he expressed concern that the National Security Agency (NSA) -- having been authorized by President Bush to intercept the international communications of U.S. residents without a warrant -- was eavesdropping on innocent Americans. He further criticized the program's lack of legal oversight as infringing on "the rights of ordinary Americans not to be intruded on by their government."
During the panel segment of the show, Kristol referenced the interview host Chris Wallace had earlier conducted with Dean:
KRISTOL: We saw Howard Dean earlier in your interview say that the eavesdropping program conducted under the supervision of Lieutenant General [Michael V.] Hayden by the National Security Agency, entirely staffed by career employees -- that that somehow is pernicious and probably some kind of domestic spying on political enemies. The Democratic Party is at risk if the Republicans exploit this now. The Republican Party can make the case that the Democratic Party is the party that stands against men like [Supreme Court nominee Samuel A.] Alito [Jr.] being judges and the leadership of people like General Hayden in terms of national security. And I think that's very dangerous for the Democratic Party if Republicans highlight this to the voters.
But contrary to Kristol's claim, at no point in the interview did Dean allege "pernicious" intent on the part of the Bush administration, nor did he suggest that they had utilized the program to spy on "political enemies." In fact, Dean agreed that the communications of terrorists should be monitored, but expressed concern about news reports (see here, here and here) suggesting that the NSA may be sweeping up large volumes of telephone and Internet communications in order to identify evidence of terrorist activity.
From Dean's interview with Wallace on the January 29 edition of Fox Broadcasting Co.'s Fox News Sunday:
WALLACE: You've also been very critical of the president's NSA surveillance program, and you talked about that this week. Let's take a look at that, if we can. "This is not simply listening in to Al Qaeda. It's poking around into people's private lives in order to see if they're doing anything wrong." Governor, what evidence do you have that the NSA is poking around into people's private lives?
DEAN: I think it's been widely reported that you can't -- you have to poke around if you're going to spy on Al Qaeda. When you dial up a number or tap into a number, you don't know that's an Al Qaeda number until you hear what's going on on the other end of the phone. Look, I support spying on Al Qaeda, and I think every Democrat in America thinks that we ought to attack Al Qaeda and spy on them and do whatever we have to do to beat them. The problem is we ought to do it within the law.
We need a country that will lead the nation, but we also need a president that will -- I mean, excuse me, we need a president that will lead the nation, but we also need a president that will follow the law. The law says that if the president thinks that Al Qaeda is an imminent threat and he wants to spy on them, he can do that immediately, but he's got to go get a warrant after the fact. In 2002, there was a memo from the Justice Department that suggested changing the law, and the White House said, "No, we didn't need to do it." We are not asking the president not to spy on Al Qaeda. We are asking the president to follow the law when he does so. No one should be above the law, not even the president of the United States.
WALLACE: But, Governor, I want to go back to this issue of the NSA poking around in people's lives. It's not like they're just, you know, picking up the phone and taking any phone call that's out there. I mean, they say that every phone call that they're intercepting they have reason to believe has an Al Qaeda connection. In fact, General Michael Hayden, who used to be head of the NSA and is now the deputy director of national intelligence, talked about that this week. Let's watch.
HAYDEN [video clip]: These are communications that we have reason to believe are Al Qaeda communications -- a judgment made by American intelligence professionals, not folks like me or political appointees.
WALLACE: Governor, do you have any reason to believe that General Hayden isn't telling the truth?
DEAN: I don't know General Hayden in any way. But I can tell you that it's been, again, widely reported that not only is the NSA, of course, listing to Al Qaeda, which is their job, but they also tap into the main trunk lines just to see what kind of patterns emerge and what chatter is going on. That sounds like pretty random exploration of what's going on. Look, this is easy. The current law has existed since 1967. And the law is very plain. You don't get to do whatever you want if you're the president. The courts -- the president -- 19,000 times in the past the president has used the law -- this president and previous presidents have used the law. Only five times have they been rejected. But that rejection is a safeguard against the rights of ordinary Americans not to be intruded on by their government. So look, again, we support the idea of supplying -- spying on Al Qaeda, but we want the president to follow the law.
WALLACE: Again -- and I don't want to argue the legal point -- but, again, you've got General Hayden here saying these are conversations that we have reason to believe involved Al Qaeda. Do you have any reason to disbelieve that?
DEAN: No, I think that's probably true. But I don't think all the conversations they have reason to believe, because why would they tap the conversations in the first place? I don't think they know in advance who the Al Qaeda people are and who the American citizens are. That's the only point I'm trying to make.
During the January 29 edition of NBC's Meet the Press, host Tim Russert, along with a roundtable of reporters, speculated over the implications of a recent CNN/USA Today/Gallup poll (subscription required) that rated potential presidential candidates Sen. Hillary Rodham Clinton (D-NY) and Secretary of State Condoleezza Rice. However, neither Russert nor any of his guests -- Washington Post national political correspondent David S. Broder, NBC News White House correspondent Kelly O'Donnell, U.S. News & World Report chief political correspondent Roger Simon, and National Review White House correspondent Byron York -- once mentioned that the poll included Rice, much less, that the difference between Rice's numbers and Clinton's fell within the poll's margin of error.
Russert initiated the conversation by misleadingly reporting, "The Gallup poll went out this week about Hillary Clinton -- and drew a lot of comment around the country -- 'Would you vote for Hillary Clinton for president? Definitely: 16 percent. Maybe: 32 percent. Definitely not: 51 percent.' " The poll, labeled "Hillary/Condi Polarize Electorate," was -- as the label indicates -- not solely about "Hillary Clinton" but included results for a potential Rice candidacy as well. However, Russert did not mention any of Rice's numbers. As Media Matters for America has already reported, Rice's results were similar to Clinton's and within the poll's 3-percent margin of error: among registered voters, 14 percent said they would "definitely vote for" Rice, 38 percent said they "might consider voting for" her, and 46 percent said they would "definitely not vote for" her.
Not only did the panel neglect to mention the poll's head-to-head comparison, but one of its members falsely suggested that the poll was simply about a potential Hillary Clinton candidacy. Russert did not correct the false suggestion. "The problem with the poll is that elections are always one candidate vs. the other candidate," York said. "So, this is just kind of a generic question hanging out there."
Moreover, O'Donnell pre-empted any discussion of Rice's candidacy by simply asserting that Rice does not want to run: "I think if he [President Bush] could get Condoleezza Rice to run, he'd be happy about that, but we know where she stands on it."
From the January 29 edition of NBC's Meet the Press:
RUSSERT: Let me turn to the race for the White House. You heard [Senate Majority Leader] Senator [Bill] Frist [R-TN] suggest that he's considering running for president. The [CNN/USA Today/]Gallup poll went out this week about Hillary Clinton -- and drew a lot of comment around the country -- "Would you vote for Hillary Clinton for president? Definitely: 16 percent. Maybe: 32 percent. Definitely not: 51 percent." Does that tell us anything at this point of the race, David?
BRODER: Well, it tells us she carries a lot of baggage if she decides to run for -- for president. She's become a very adept politician, as you know, and so I don't discount her potential. But, she doesn't start at the same place as everybody else does. People have an opinion about her and about her husband that they will bring into the race with her.
O'DONNELL: She's always had high negatives.
SIMON: Right. But you can look at the same poll, if you are Hillary Clinton, and say, "If you take those who say they will vote for me and say -- take those who say they will consider voting for me, that's 48 percent. That's not a bad base to build upon two years and nine months before the presidential elections."
YORK: But the problem with the poll is that elections are always one candidate vs. the other candidate. So, this is just kind of a generic question hanging out there. Actually, I think the poll that showed her running -- was it 10 points? -- behind [Sen.] John McCain [R-AZ] was a little bit more interesting because you have two candidates with very high name recognition at this point.
RUSSERT: The president said the other day that this is a wide open race; the most wide open he's ever seen. Does he have any kind of wink, or nudge towards any Republicans?
O'DONNELL: Well, he was very careful because he knows that anything he says will influence the process. I think if he could get Condoleezza Rice to run, he'd be happy about that, but we know where she stands on it.
RUSSERT: Whoa! That's going to set the [web]blogs a running there, Kelly.
Roberts selectively cited new CBS poll to falsely suggest that Americans approve of warrantless domestic surveillance
On the January 26 edition of CBS' Evening News, chief White House correspondent John Roberts selectively cited the results of a January 20-25 CBS News/New York Times poll to support his assertion that "President Bush went into today's press conference" -- where he discussed his warrantless domestic surveillance program -- "with a boost." To back up that assertion, Roberts stated that the poll "found 61 percent of Americans believe the eavesdropping is meant to fight terror, and the majority support that." He later asserted, "You take a look at that poll, the majority of Americans think if it's directed at terrorism, it's the right thing to do." But Roberts did not mention poll results showing that only 46 percent of respondents approve of the warrantless surveillance when the "specific reason for the wiretapping -- to reduce the threat of terrorism -- is omitted from the question."
A reading of the entire poll indicates that, contrary to Roberts's assertion, the public's view of the warrantless surveillance program appears to be more evenly divided than he suggested. When Roberts asserted that a "majority support" the program, an onscreen graphic stated that 53 percent of respondents approved of Bush's warrantless surveillance program. The full poll document reported that when respondents were told that the purpose of the program is to "fight terrorism," 53 percent said they approved of it while 46 percent said they disapproved -- a result within the poll's four-point margin of error. (The onscreen graphic noted the margin of error, although the results document did not mention it.) The poll document itself states that "[t]he public is divided over the President's authorization of wiretaps," and -- contrary to Roberts's assertion that the poll had given Bush a "boost" -- the poll notes that "[t]he results [regarding approval for the program if its purpose is to fight terrorism] are similar to those seen nearly three weeks ago [49 percent approval; 48 percent disapproval], soon after news reports about the wiretaps appeared." Further, as the poll documents, "When the specific reason for the wiretapping -- to reduce the threat of terrorism -- is omitted from the question, the number of Americans who approve of this action drops by 7 points" to 46-percent approval, with 50-percent disapproval.
Evening News anchor Bob Schieffer suggested that the poll shows that "perhaps the Democrats are weak" in the fight against terrorism, but the poll asked no questions regarding Democrats and fighting terrorism.
From the January 26 edition of CBS' Evening News:
ROBERTS: On the NSA spying program, President Bush went into today's press conference with a boost. A new CBS News/New York Times poll found 61 percent of Americans believe the eavesdropping is meant to fight terror, and the majority support that. The president insisted again, today, he's on solid legal ground and was skeptical about increasing talk in Congress to write new laws covering the program.
BUSH [video clip]: If the attempt to write law makes this program -- is likely to expose the nature of the program, I'll resist it. Why tell the enemy what we're doing if the program is necessary to protect us from the enemy?
ROBERTS: Even if Congress were to write new laws, the larger question is: Would President Bush feel obligated to conduct the eavesdropping only under those rules? From a legal standpoint, not likely. But if Congress gives him everything he needs, political pressures may dictate that he has to. Bob?
SCHIEFFER: You know, John, it looks to me as if the president has decided to make this a political issue to show that he is strong in the fight against terrorism and perhaps the Democrats are weak. And I must say looking at that poll, he may be succeeding.
ROBERTS: A political issue and a national security issue which history would show the president does very well on. You take a look at that poll, the majority of Americans think if it's directed at terrorism, it's the right thing to do, Bob.
On the January 25 broadcast of The Radio Factor, host Bill O'Reilly asserted that "51 percent" of Americans "won't vote for" Sen. Hillary Rodham Clinton (D-NY) if she runs for president because "they don't know what she's going to do [once elected]." He drew a distinction between Clinton and President Bush, stating:
O'REILLY: [L]ook, you knew what Bush was going to do. Bush did exactly what he said he was going to do.
O'REILLY: [H]e's not a hypocrite, Bush. He told you exactly what he was going to do, and he did it.
But during the 2004 presidential campaign, the Center for American Progress compiled a long list of examples of what it characterized as Bush's "serial flip-flopping." Some highlights from Bush's 2000 presidential campaign include:
More recently, in an April 19, 2004, speech promoting the USA Patriot Act, Bush told his audience that domestic wiretapping required a court order:
BUSH: For years, law enforcement used so-called roving wiretaps to investigate organized crime. You see, what that meant is, if you got a wiretap by court order, and by the way, everything you hear about requires a court order -- requires -- there's -- to be permission from a FISA [Foreign Intelligence Surveillance Act] court, for example.
Bush repeatedly emphasized that wiretapping was undertaken "with court approval" or "with a court order," but as The New York Times revealed December 16, following the September 11, 2001, terrorist attacks, Bush secretly authorized the National Security Agency to eavesdrop on the conversations of persons within the United States without the court-approved warrants required by the 1978 FISA law.
From the January 25 broadcast of Westwood One's The Radio Factor with Bill O'Reilly:
CALLER: Hi, Mr. O'Reilly; got two quick points: One, I don't think people will vote for Hillary because -- Dick Morris puts it best -- she's a chameleon. They can see right through her, so they're just not going to vote for her for that reason. My other comment is, I just -- it shows how weak that Democratic Party is if 51 percent of the people say they absolutely will not vote for Hillary. Yet, she is doing just as well as [Sen.] John Kerry [D-MA] and other Democrats against the Republicans. Just shows how weak the Democratic Party is.
O'REILLY: Oh, she's doing better. She's doing better among Democrats. Well, I don't -- look.
CALLER: Well, that just -- that just strengthens my point of view that that just shows how weak the Democratic Party is.
O'REILLY: I think the Hillary Clinton -- I think the Hillary Clinton vote is a vote for Bill Clinton. I think that's what it is. I think it's, "Well, we had a great time for eight years" -- we the Democrats -- "It's too bad that Monica Lewinsky messed it all up for us, and let's get back and do it again." I think that's what the vote is it. I think there, you know -- and Hillary, obviously, is a committed liberal, no question. She can, you know, say she -- she isn't, but her voting record is what? Ninety-five percent on the liberal line?
She's not an independent thinker by any stretch of the imagination, but my main objection to Mrs. Clinton, and why I think 51 percent won't vote for her, is that we don't trust her. And I think that's why Kerry lost, too, 'cause most of those people don't trust them, 'cause they don't know what she's going to do. And in a very dangerous time, we need to have some idea -- look, you knew what Bush was going to do. Bush did exactly what he said he was going to do. Unfortunately, they've made too many mistakes in my opinion. The Bush administration has made too many mistakes. I'm praying it all works out, but they've made too many mistakes. But he's not a hypocrite, Bush. He told you exactly what he was going to do, and he did it.
Echoing Couric, O'Reilly attacked Dean, falsely claiming Abramoff was "charged with giving [Democrats] other people's money"
On the January 26 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly falsely claimed disgraced lobbyist Jack Abramoff was "charged with giving [Democrats] other people's money." O'Reilly advanced this false claim while attacking Democratic National Committee chairman Howard Dean for comments Dean made on the January 25 broadcast of NBC's Today. Echoing Today host Katie Couric, who chided Dean for accurately stating that "[n]ot one dime of money from [lobbyist] Jack Abramoff ever went to any Democrat," O'Reilly played a clip of Dean's Today appearance, then stated: "Well, according to the Federal Elections [sic] Commission, Mr. Abramoff did funnel almost $2 million to Democrats. So is Dean lying?" The answer, O'Reilly asserted, "depends on how you view spin. Abramoff personally did not give any of his own money to Democrats, but he's charged with giving them other people's money. That's what Dean's hiding behind." O'Reilly called Dean "quite a guy," characterizing his statement as "[r]idiculous."
But O'Reilly's assertion that Abramoff was "charged with giving [Democrats] other people's money" is false. Abramoff pleaded guilty on January 3 to charges of conspiracy, mail fraud, and tax evasion and pleaded guilty January 4 to charges of conspiracy and wire fraud in a second, unrelated case. As Media Matters for America previously noted, the indictment of Abramoff in the first case alleged that Congressman Bob Ney (R-OH) received from Abramoff "a stream of things of value," including a golf junket to Scotland, tickets to sporting events, meals at Abramoff's restaurant, and campaign contributions, in exchange for Ney's "agreement to perform a series of official acts to benefit defendant Abramoff's businesses, clients and others." But Abramoff was not "charged" with anything related to contributions his clients made to Democrats.
Moreover, as Media Matters noted in response to Couric's statements, Dean's assertion that "[n]ot one dime of money from Jack Abramoff ever went to any Democrat" is accurate. As the Center for Responsive Politics has documented, no evidence exists that Abramoff made campaign contributions to politicians outside the Republican Party, though Democrats did receive contributions from American Indian tribes that were clients of Abramoff.
From the January 26 edition of Fox News' The O'Reilly Factor:
O'REILLY: Time now for "The Most Ridiculous Item of the Day." Appearing on the Today show this morning, DNC chairman Howard Dean challenged an assertion that lobbyist Jack Abramoff, who was charged with a variety of money-related crimes, was a nonpartisan offender.
DEAN [video clip]: It is a Republican finance scandal. Not one dime of money from Jack Abramoff ever went to any Democrat, not one dime.
O'REILLY: Well, according to the Federal Elections [sic] Commission, Mr. Abramoff did funnel almost $2 million to Democrats. So is Dean lying? Well, it depends on how you view spin. Abramoff personally did not give any of his own money to Democrats, but he's charged with giving them other people's money. That's what Dean's hiding behind. He's quite a guy, isn't he? Ridiculous? I think so. But as always, I could be wrong.
On the January 26 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly and Fox political analyst Dick Morris misleadingly asserted that a recent Gallup poll pitting potential presidential candidates Sen. Hillary Rodham Clinton (D-NY) and Secretary of State Condoleezza Rice head-to-head was "not good news for Senator Hillary Clinton if she wants to run for president." But O'Reilly and Morris omitted any mention of the poll's results for a potential Rice candidacy, which match Clinton's numbers when the margin of error is factored in, rendering inconclusive any determination that one of them wields the political advantage.
O'Reilly correctly reported half of the poll's results: "Fifty-one percent of Americans say they will definitely not vote for Mrs. Clinton. Only 16 percent say they will definitely vote for her. Among independents, 41 percent say there's no way they'll vote for her, and even among Democrats, 20 percent say, 'Not gonna happen.' "
But in reporting those numbers, O'Reilly left out any point of comparison to Rice's performance. The poll, which Gallup released under the headline "Hillary/Condi Polarize Electorate," is not an isolated evaluation of Clinton's popularity and, when examined in its full context, shows virtually the same results for Rice within the poll's 3 percent margin of error. Sixteen percent said they definitely would vote for Clinton and 32 percent said they might, a total of 48 percent that is within the margin of error of the 52 percent who indicated a potential vote for Rice as a presidential candidate, with 14 percent saying they would definitely vote for Rice and 38 percent saying they might do so.
Although Morris claimed that "[t]he public is going to realize the only person that can defeat Hillary is Condoleezza Rice," the poll he and O'Reilly cited does not support that claim. While O'Reilly asserted that the poll is "not good news" for Clinton because "[o]nly 16 percent say they definitely vote for her," poll numbers for Rice on the same question are comparable. Of registered voters, only 14 percent would "definitely vote for" Rice, while 38 percent would consider voting for Rice, putting total percentage of respondents who view her potential candidacy favorably at 52, a figure also within the 3-point margin of error of Clinton's 48 percent.
To amplify what he calls "bad news" for Clinton, O'Reilly also pointed to various subsets of the polling data, such as the 41 percent of independents and 20 percent of Democrats who say they would not vote for Clinton. Yet Rice fared more poorly among independents, with a full 50 percent saying they would not vote for her. Among Republicans, Rice, meanwhile, is opposed by 19 percent ofRepublicans -- nearly identical to what Clinton encounters among Democrats.
The results, which put the two potential 2008 presidential candidates in a virtual dead heat, are consistent with prior polling by other organizations. A Zogby America poll from December 6-8, 2005, shows Rice with a 47 percent to 46 percent edge over Clinton (margin of error: +/-3.1 percent), an October 12-13 and 17, 2005, WNBC/Marist poll gave Clinton a 50 percent to 41 percent lead over Rice (margin of error: +/-3.5 percent), and a Fox News/Opinion Dynamics Poll from September 25-28, 2005, gave Clinton a 46 percent to 43 percent advantage (margin of error: +/-3 percent).
Morris asserted that "the only person that can defeat Hillary is Condoleezza Rice" because, he explained, "it doesn't take a brilliant genius to know two fundamental things: A woman can do better at getting women's votes against a woman than a man can, and a black can do better at getting black votes than a white can." O'Reilly then said, "I still don't know if Secretary Rice wants it [the presidency]." He did not, however, question whether Sen. Clinton "wants it."
Morris, co-author with his wife, Eileen McGann, of the book Condi vs. Hillary: The Next Great Presidential Race (ReganBooks, October 2005), is an advocate of encouraging or drafting Rice to run for president in 2008. While Rice has repeatedly discouraged speculation about a presidential run, Morris responded: "Unlike in dating, 'no' doesn't always mean 'no' in politics."
From the January 26 edition of Fox News' The O'Reilly Factor:
O'REILLY: Thanks for staying with us. I'm Bill O'Reilly. In the "Factor Follow-up" segment tonight, a new Gallup poll is not good news for Senator Hillary Clinton if she wants to run for president. Fifty-one percent of Americans say they will definitely not vote for Mrs. Clinton. Only 16 percent say they will definitely vote for her. Among independents, 41 percent say there's no way they'll vote for the senator, and even among Democrats, 20 percent say, 'Not gonna happen.'
Joining us now from West Palm Beach, Florida, is Dick Morris, the author of the book Condi vs. Hillary. Well, this is good for your book here, because they polled both Condoleezza Rice and Hillary Clinton. I was very surprised.
MORRIS: It's the first poll -- the first poll that only polls Condi and Hillary.
O'REILLY: I was very surprised.
MORRIS: That's what the race is going to be, Bill. It's gonna be Condi against Hillary.
O'REILLY: I was very surprised that -- let me get a word in here. I was very surprised that Hillary Clinton did so poorly in this poll. Were you surprised, and why?
MORRIS: Yeah. Well, I was heartened, of course. But, you know, she -- I was thinking today she has the jobs mixed up. She thinks she's still running Bill's campaigns. When she was flacking for Bill, her job was to be the battering ram and go against the opposition and crash it down and attack it and talk about the vast right-wing conspiracy. But now that she's the candidate, she shouldn't be doing that. She's peaking too soon, she's too public, she's too strident, and she's leading the charge against Bush, and she should let others do that. She should be a lot quieter right now if she wants to get elected president. But I'm not in the business of giving Hillary advice --
O'REILLY: No, no. But the negatives are so high among independents. And 20 percent of Democrats? I guess that's the far left that doesn't like her position on Iraq and doesn't like her flag-burning thing and all of that. I guess that's what that is.
MORRIS: And some of it might be the moderates in the Democratic Party that think she's too strident and -- and too aggressive. The problem is -- that we have is that she's very popular among the Democratic Party rank and file. She's still way ahead of everybody else when it comes to a primary. So she is still going to be the Democratic nominee. And the more this process unfolds, Bill -- I told it on this show first, and I'm going to stay with it for 2 1/2 years. The public is going to realize the only person that can defeat Hillary is Condoleezza Rice. And that's what this race is going to come down to --
O'REILLY: But why do you say that? If she has 51 percent, Hillary Clinton, 51 percent who won't vote for her, why can't [Sen. John] McCain [R-AZ], [former New York Mayor Rudolph] Giuliani, Governor [Mitt] Romney of Massachusetts, or anybody else beat her?
MORRIS: McCain or Giuliani probably could defeat her because they have enough traction among independents. But neither of those guys is conservative enough to get the nomination of the Republican Party. And of the people who can get the nomination, people like [Sen. George] Allen [R-VA] or Romney or [New York Gov. George] Pataki or [Senate Majority Leader Bill] Frist [R-TN], they're going to drive voters back into Hillary's arms by being strongly conservative. But it doesn't take a brilliant genius to know two fundamental things: A woman can do better at getting women's votes against a woman than a man can, and a black can do better at getting black votes than a white can. Duh.
O'REILLY: Yeah, but I still don't know if Secretary Rice wants it. So we'll see.
On the January 26 edition of Fox News' Special Report, host Brit Hume misrepresented a January 24-25 Fox News/Opinion Dynamics poll by reporting that it shows 51 percent of Americans "would now support" air strikes to prevent Iran from developing nuclear weapons and 46 percent would support "air strikes coupled with a ground invasion." In fact, the poll asked whether respondents would support various military actions "[i]f diplomacy fails" -- a condition that Hume omitted.
From the January 24-25 Fox News/Opinion Dynamics poll:
From the January 26 edition of Fox News' Special Report with Brit Hume:
HUME: A majority of Americans, 51 percent, would now support air strikes to stop Iran from acquiring nuclear weapons, while a plurality, 46 percent, would support air strikes coupled with a ground invasion. That, according to a new Fox News poll, which shows that 56 percent of Americans think Iran poses an immediate or near-term threat to the U.S. Just 7 percent said the country is not a danger to American security.
In reporting on Sen. John Kerry's (D-MA) call for a filibuster of Judge Samuel A. Alito Jr.'s nomination to the Supreme Court, CNN anchor Miles O'Brien and CNN congressional correspondent Ed Henry asserted that by calling for the filibuster from the World Economic Forum in Davos, Switzerland, Kerry reinforced the "elitist" label given him by the GOP during the 2004 presidential campaign. However, when CNN later interviewed Sen. Saxby Chambliss (R-GA) about the potential filibuster, there were no "elitist" comments to be found, even though Chambliss was also commenting from Davos.
On the January 27 edition of CNN's American Morning, Henry reported:
HENRY: Republicans believe that round two in "Bush v. Kerry" is going to go to Bush again, in part because John Kerry has decided to launch this filibuster of Samuel Alito from, of all places -- Davos, Switzerland -- where Kerry was attending the World Economic Forum. I can tell you, even some senior Democrats up here on Capitol Hill are saying they think this is only going to fuel Republican charges that Kerry is an elitist, that he's basically launching this from overseas. But a Kerry aide fired back to CNN that the senator could care less what the chattering class is saying about this.
Later, O'Brien interviewed Los Angeles Times columnist Ronald Brownstein about the proposed filibuster and alleged that the Republican stereotype of Kerry's "elitist nature" was reinforced by calling for the Senate action from Davos. O'Brien then paraphrased a famous line from Shakespeare's Hamlet to deride the Democratic filibuster effort:
O'BRIEN: Joining us now is CNN political analyst, LA Times columnist Ron Brownstein. They [senators conducting filibusters] don't do that anymore, do they? They don't actually have to read anything --
BROWNSTEIN: No, they don't -- they don't have to stand there like Jimmy Stewart [in the film Mr. Smith Goes to Washington (Sony Pictures, 1939)].
O'BRIEN: Virtual filibusters. Maybe, they should make them do it again then that could change things. Let's say -- how likely is that? And what is John Kerry thinking getting on the phone from Davos, Switzerland? All that does is, you know -- every -- every stereotype, which the Republicans would like to put out there about John Kerry and his elitist nature, is reinforced by that.
BROWNSTEIN: Well, there are a couple of steps here. First, there's a lot of Democratic opposition to Samuel Alito. As we saw, a unanimous vote of the Judiciary Committee, much more than there was to [Chief Justice] John Roberts. But the big question, of course, is whether there is enough -- and there may well be more than 40 votes against him, for his confirmation, but are those opponents willing to filibuster? You know, Miles, remember your Shakespeare? In Henry IV, one character says, "I can summon spirits from the vasty deep," and another one says, "well" -- young Henry says, "well, so can I, and so can any man, the question is, will they come when you call them?" And it's really the same thing here. John Kerry can call for a filibuster from Davos, or the Senate floor, or anywhere else he wants. The question is: Does he have the 41 votes he needs? And the Democrats, by and large, think that's an uphill proposition.
O'BRIEN: Interesting. Shakespeare. I'm very impressed. Methinks --
BROWNSTEIN: Yes. A relevant quote, however.
O'BRIEN: Methinks the Democrats protesteth too much, here, perhaps. A little Shakespeare back at you, there.
Later on the January 27 edition of CNN Live Today, anchor Daryn Kagan interviewed Chambliss from the World Economic Forum about Kerry's filibuster proposal. But Kagan offered no commentary about Chambliss's location, except to note it, even though Chambliss was commenting on the filibuster from Switzerland.
From the January 27 Live Today:
KAGAN: Let's get back to some politics now. As we told you earlier, Senate Republicans hope to have Judge Samuel Alito confirmed to the Supreme Court in a vote next Tuesday, but Democratic Senator John Kerry is making a last-ditch effort to filibuster. Kerry is over in Davos, Switzerland, for the World Economic Conference. Also attending that conference is Georgia Republican Senator Saxby Chambliss. Joins me live now from Davos. Senator, good afternoon to you, there, in Davos.
CHAMBLISS: Glad to be with you, Daryn. We don't get much of this in Atlanta. It's great to be here.
KAGAN: No, it's been a very mild winter here in Atlanta. Let me ask you about this political storm that's brewing a little bit. Any comment on Senator Kerry from there in Davos calling for a filibuster of the Alito vote?
CHAMBLISS: Well, I would be very much surprised if the Democrats do decide to filibuster Judge Alito. I understand Senator Kerry went home early this morning, as a matter of fact, went back to Washington to do whatever is going to be done relative to that. But, you know, I think we have the votes. We're scheduled, right now, to vote at 4:30 on Monday afternoon on the cloture, and then we'll vote, Tuesday morning, on the confirmation; and, you know, this man's qualified. I think the American people understand that, particularly after watching the hearings. So, hopefully, it will move forward very quickly.
KAGAN: And I take it you'll make it home in plenty of time for both of those votes.
CHAMBLISS: We will.
The Washington Post reported on January 27 that Republicans "poked fun" at Kerry for announcing the filibuster from Switzerland:
"Continuing to threaten a filibuster, even after it is crystal clear that Democrats don't have the necessary votes to sustain their obstruction, is needless, strange and at odds with many of their fellow Democrats," Sen. John Cornyn (R-Tex.) said in a statement. Some Republicans poked fun at Kerry -- the 2004 Democratic presidential nominee, who may make another White House bid -- for allowing others to announce the filibuster plan earlier in the day while he was attending an economic conference in Davos, Switzerland.
Echoing baseless conservative charges, ABC's Tapper said "some liberals" concerned about a "Catholic court"; ignored Republicans who touted nominees' faith
On the January 24 broadcast of ABC News' Nightline, correspondent Jake Tapper reported that if Supreme Court nominee Samuel A. Alito Jr. is confirmed, a majority of Supreme Court justices will be Catholic. After noting that a majority-Catholic court "tends not to be something people make an issue out of, at least publicly," Tapper added: "But some liberals do have some concerns about such a Catholic court." Tapper quoted no identifiable Democrats or liberals during the segment, instead relying on a clip of John C. Green, senior fellow in religion and American politics at the Pew Forum on Religion & Public Life, who claimed: "There is some fear that they might, perhaps on some issues like abortion, carry out a kind of Catholic jurisprudence, you know, rather than reflecting a broader point of view."
Tapper's characterization of liberals' purported concern over a "Catholic court" and the imposition of a "Catholic jurisprudence" misrepresent the role that religion has played in recent nomination processes in at least two significant ways. First, to the extent that concern has been raised over a nominee's religion, that concern has generally focused not on the possibility that one particular religion might be disproportionately represented on the court, but rather that a nominee's religious beliefs might control his or her interpretation of the law -- a concern that has been expressed by both Democrats and Republicans. Had President Clinton nominated former New York Gov. Mario Cuomo to the Supreme Court, as was rumored to be a possibility, presumably few would have expressed concern that his Catholic faith would control his rulings. On the issue of abortion, for example, he has made it clear that he personally opposes abortion but does not believe that his religion should dictate someone else's access to it.
Second, missing entirely from Tapper's report was any indication that it has been, in fact, supporters of Bush's nominees who have made religion a key issue in the nomination process. In 2003, two years before Bush's first nomination to the Supreme Court, supporters of his appellate court nominees had begun the drumbeat of accusations that Democrats and liberals bore an anti-Catholic or anti-religious bias. In 2003, the conservative Committee for Justice (CFJ) raised the issue in ads criticizing Democratic opposition to appeals court nominee William H. Pryor -- a vocal abortion opponent who has described Roe v. Wade as "the worst abomination of constitutional law in our history." CFJ published newspaper ads baselessly claiming that "some in the U.S. Senate are attacking Bill Pryor for having 'deeply held' Catholic beliefs to prevent him from becoming a federal judge. Don't they know the Constitution expressly prohibits religious tests for public office?" The ads featured a picture of a courthouse with a sign reading, "Catholics need not apply." Responding to the ad campaign, a July 26, 2003, Washington Post editorial asked: "But who exactly is 'playing politics with religion' here? We are aware of no instance in which any Senate opponent of Mr. Pryor has raised his religion -- nor did the Committee for Justice produce an example in response to our inquiries. The only people raising Mr. Pryor's Catholicism, rather, seem to be his supporters."
As the Newhouse News Service reported on July 29, 2003, "The issue of Pryor's Catholicism surfaced at a June 11 hearing in Washington when Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, asked him to state his religious affiliation." From the June 11, 2003, hearing:
HATCH: OK. Now, just for the record, what is your religious affiliation?
PRYOR: I'm a Roman Catholic.
HATCH: Are you active in your church?
PRYOR: I am.
HATCH: You're a practicing Roman Catholic?
PRYOR: I am.
HATCH: You believe in your religion?
PRYOR: I do.
HATCH: OK. I commend you for that.
After Sens. Arlen Specter (R-PA) and Patrick Leahy (D-VT) objected to Hatch's questions, Hatch responded by connecting criticism of Pryor's anti-abortion views to his Catholic faith. Addressing Pryor, Hatch stated:
HATCH: You've also been asked extensively about your personal beliefs with regard to Roe v. Wade, which almost everybody for a circuit court judgeship is asked -- in fact, everybody is, because that seems to be the be-all, end-all issue to some people on this committee. But of course, being asked those questions, as I understand it, that stems from your pro-life beliefs, which in turn are rooted in your religious beliefs.
Hatch later stated: "The left is trying to enforce an anti-religious litmus test."
The Newhouse article quoted Green -- who on Nightline suggested a liberal fear of "Catholic jurisprudence" -- as saying that the Republican strategy of highlighting Pryor's Catholicism "may even lead some Republicans to be irritated because it would appear to bring religion four-square into the debate."
Conservatives made similar charges of religious bias following Roberts's and Alito's Supreme Court nominations. Fox News' Sean Hannity, for example, baselessly claimed that, following Roberts's nomination, Democratic senators were "creating this litmus test" based on faith. On the day of Alito's nomination, Joseph Cella, president of the conservative "Catholic-based advocacy organization" Fidelis, issued a press release stating: "Given the likelihood of a vigorous debate, we remain steadfast in our insistence upon a fair and dignified process free of any attack on Judge Alito's Catholic faith and personal beliefs." Citing no examples, Cella added, "Early attacks by left wing interest groups are particularly worrisome."
Tapper echoed these attacks on Nightline, reporting that even though the Constitution prohibits "religious tests" for public office, "sometimes" senators "raise the issue, as Chief Justice John Roberts found out in his hearing." Tapper then played footage of Roberts telling Sen. Dianne Feinstein (D-CA) on September 13, 2005: "My faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books, and always have. I don't look to the Bible or any other religious source." But Feinstein was not suggesting that Roberts's Catholicism should disqualify him from the court, as Tapper's "religious test" comment would imply; rather, the question from Feinstein to which Roberts was responding asked about his views on separation of church and state:
FEINSTEIN: In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion. And he even said, "I believe in an America where the separation of church and state is absolute." My question is: Do you?
That concern was not unique to Democrats. Earlier in the same hearing, Specter asked Roberts:
SPECTER: When you talk about your personal views and, as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, "I do not speak for my church on public matters and the church does not speak for me," close quote?
As Media Matters for America noted, Democratic Sen. Richard J. Durbin (IL) was accused of invoking a "religious test" after he reportedly asked Roberts about his Catholic faith during a private meeting. But in contrast with the extensive coverage Durbin's question received, the press was largely silent when a Republican senator was reported to have asked similar questions. According to a July 23, 2005, Associated Press article, Republican Sen. Tom Coburn (OK) also acknowledged asking Roberts "a question about how his Catholic faith influences his life and work." Coburn went so far as to suggest that a nominee's "personal faith" was relevant to the to "the Roe v. Wade situation."
From a July 23, 2005, Associated Press article:
"If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation," he said. "I am looking for somebody who is not going to make that mistake again in any other area of life."
Coburn said the records of Associate Justices Antonin Scalia and Clarence Thomas were examples for the next justice to follow.
Moreover, Roberts's supporters trumpeted his religious faith after leading conservatives were apparently assured of his religious bona fides. As Media Matters has noted, The New York Times reported in a July 22, 2005, article that "two well-connected Christian conservative lawyers -- Leonard Leo, chairman of Catholic outreach for the Republican Party, and Jay Sekulow, chief counsel of an evangelical Protestant legal center founded by Pat Robertson," won support for Roberts from social conservatives "with a series of personal testimonials about Judge Roberts, his legal work, his Roman Catholic faith, and his wife's public opposition to abortion." Leo, who also serves as executive vice president of the conservative Federalist Society, said on the July 25 edition of CNN's Inside Politics: "My goal is to make sure that the Catholic community and others involved in Republican politics understand who Judge Roberts is and who are in a position to -- and are in a position to support him."
Other Roberts supporters, including New York Times columnist David Brooks and Media Research Center president L. Brent Bozell III, noted Roberts's Catholicism. Syndicated columnist Robert D. Novak said on the July 19, 2005, edition of CNN's Anderson Cooper 360 that he was "sure" Roberts wanted to overturn Roe v. Wade, adding: "He's a devout Catholic. I think he's pro-life. His wife is a pro-life activist."
The Bush administration's emphasis on religion continued with the failed nomination of Harriet Miers, who was picked to replace retiring Justice Sandra Day O'Connor. Green was quoted in an October 17, 2005, Legal Times article as saying, "The Bush administration is assuming that Harriet Miers' religious background as an evangelical will persuade many evangelicals to support her nomination." Indeed, at an October 12, 2005, press conference, Bush told reporters: "People ask me why I picked Harriet Miers. They want to know Harriet Miers's background; they want to know as much as they possibly can before they form opinions. And part of Harriet Miers's life is her religion."
While some conservatives criticized the administration's focus on religion as a qualification for the Supreme Court, Focus on the Family founder and chairman James C. Dobson claimed on his October 12, 2005, radio show that his support of Miers was based in part on the fact "that Harriet Miers is an evangelical Christian, that she is from a very conservative church, which is almost universally pro-life." And according to Washington Post columnist E.J. Dionne, Sekulow said on the Christian Broadcasting Network's The 700 Club that the Miers nomination was "a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court."
After Miers's withdrawal, some conservatives emphasized the Catholic credentials of her replacement, Alito. In a November 4, 2005, op-ed supporting Alito's nomination, Republican Sen. Trent Lott (MS) suggested that as a Catholic, Alito was likely personally opposed to so-called "partial-birth abortion":
Yet, in another case involving the pro-abortion Planned Parenthood, he ruled that a state law banning partial-birth abortions was unconstitutional in light of a then recent Supreme Court decision because of a failure to provide exceptions for protecting the mother's health. An overwhelming majority of Americans opposes this horrible late-term abortion procedure as I assume does a Catholic son of Italian immigrants like Judge Alito. Yet, he obviously put aside personal beliefs in this case and ruled according to the law. That's what a conservative, strict constructionist jurist does. He bases decisions on law.
And in a November 6, 2005, column, Novak suggested that Alito's faith would yield political benefits for Republican Sen. Rick Santorum (PA):
The Alito nomination could help Sen. Rick Santorum's uphill fight for re-election in Pennsylvania. His Democratic opponent, State Treasurer Bob Casey, like Santorum is Catholic and pro-life and now will have to take a stand on the pro-life, Catholic Alito.
From the January 24 broadcast of ABC News' Nightline:
TAPPER: If Samuel Alito is confirmed to the Supreme Court, it will be the first time in American history five sitting justices will be Catholic: Alito, John Roberts, Clarence Thomas, Antonin Scalia, and Anthony Kennedy. A minority religion, a majority on the court. It tends not to be something people make an issue out of, at least publicly. But some liberals do have some concerns about such a Catholic court.
GREEN: There is some fear that they might, perhaps on some issues like abortion, carry out a kind of Catholic jurisprudence, you know, rather than reflecting a broader point of view.
TAPPER: As for the senators responsible for confirming them, their obligation includes not voting for nominees in any way because of their faith. It's right there in Article VI of the Constitution: "No religious test shall ever be required as a qualification to any office or public trust under the United States." Even though sometimes they raise the issue, as Chief Justice John Roberts found out in his hearing.
ROBERTS: My faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.
TAPPER: So, does a Catholic majority on the court matter? Well, Terry [Moran, Nightline co-anchor], ultimately what might matter the most is that these things don't seem to matter much anymore.
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