Media Matters for America

On the January 31 edition of MSNBC'S Countdown with Keith Olbermann, Washington Post columnist Dana Milbank echoed President Bush's misleading explanation of a 2004 statement in which Bush said that "[a]ny time you hear the United States government talking about wiretap, it requires ... a court order" and that "[w]hen we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Critics have pointed to the 2004 statement to accuse Bush of falsely suggesting that the administration would not conduct domestic surveillance without a warrant. Rather than address the actual words of Bush's 2004 statement, Milbank simply repeated Bush's own claim this year that his 2004 comments referred only to roving wiretaps authorized under the USA Patriot Act and did not constitute an acknowledgment -- in contradiction of what the Bush administration is now known to have been doing -- that the government must obtain a warrant for all domestic surveillance. Milbank asserted that while Bush's 2004 comments were "technically" true, they could nonetheless be "exploited politically," presumably a suggestion that those making an issue of the apparent contradiction between the 2004 comments and Bush's warrantless eavesdropping program would be doing so for political gain, and not because they believed that Bush had not been telling the truth.

But while Bush's 2004 statement was indeed made in the context of defending the Patriot Act's authorization of roving wiretaps for which warrants are obtained, the actual words he used encompassed all wiretapping activities -- not just those authorized under the Patriot Act. Bush said in 2004 -- without any qualification -- that a court order is required "[a]ny time you hear the United States government talking about wiretap." Bush added, again without qualification: "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." At no point during his 2004 speech did Bush suggest that the requirement that the government get a warrant to undertake domestic surveillance applied only to roving wiretaps or other Patriot Act programs.

Shortly after the September 11, 2001, terrorist attacks, Bush authorized the National Security Agency to carry out warrantless eavesdropping on the communications of U.S. residents -- an apparent violation of the Foreign Intelligence Surveillance Act (FISA). Yet, at an April 20, 2004, "conversation on the USA Patriot Act" in Buffalo, New York -- after the warrantless eavesdropping program had been in effect for at least two years -- Bush stated:

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.

At a January 1 press conference, a reporter asked Bush if he was "in any way misleading" when he stated in 2004 that wiretaps require warrants. Bush responded that he "was talking about roving wiretaps ... involved in the Patriot Act," which, he said, is "different from the NSA program":

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

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

On Countdown, Olbermann played Bush's 2004 remarks, noting that the comments "would seem to be problematic for the president at this point." Without addressing Bush's actual statement, Milbank simply repeated Bush's misleading January 1 defense, without noting that he was doing so. Milbank insisted that "technically, what the president said there [in 2004] was true." He added that Bush "was not talking about these international wiretaps. He was talking about these roving wiretaps, which are domestic, under the Patriot Act. Now, so, technically, what he said may very well have been true."

Milbank then said that even though Bush's statement was "technically" true, "that does not mean that it could not be exploited politically, or that others wouldn't exploit it politically." He later noted that "[Sen.] Dick Durbin [D-IL] mentioned it, almost sort of off-handedly, the other day" -- a reference to a January 25 press conference in which Durbin correctly stated:

DURBIN: This is a quote from President Bush in April of 2004, as direct and clear as it could be. He said, in Buffalo, New York, "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." How could it be any clearer? The president stated the law, as of April 2004. And now, we are hearing from the administration that that isn't the law, that a court order isn't necessary, that somehow this president is above the law.

Milbank told Olbermann that Democrats are "not really pouncing on" Bush's 2004 comments, adding, "Maybe they do have some compunctions about saying, 'Well, it's technically not what he was talking about.' "

From the January 31 edition of MSNBC's Countdown with Keith Olbermann:

OLBERMANN: Let me play you a sound bite from a speech in Buffalo, April 20, 2004.

BUSH [video clip]: 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.

OLBERMANN: You know, that would seem to be problematic for the president at this point. Is that going to come up at some point in the speech, or in the week ahead, in politics in Washington?

MILBANK: Well, you'd think it would, and it might, in a different environment. Now, let's say, technically, what the president said there was true. He was not talking about these international wiretaps. He was talking about these roving wiretaps, which are domestic, under the Patriot Act. Now, so, technically, what he said may very well have been true. But that does not mean that it could not be exploited politically, or that others wouldn't exploit it politically. It remains to be seen how they do that.

OLBERMANN: Why aren't the Democrats, by the way, all wearing T-shirts that have a picture of the president's picture -- the president from Buffalo that day, and then it's emblazoned with the words, "When we're talking about chasing down terrorists, we're talking about getting a court order before we do so"? Why haven't they done that?

MILBANK: You know, it beats me. The -- Dick Durbin mentioned it, almost sort of off-handedly, the other day. They're not really pouncing on it. Maybe they do have some compunctions about saying, "Well, it's technically not what he was talking about." But if the Democrats have learned anything in politics, they should realize that you and I can get up and say, "Yes, that's incorrect." But in terms of forming a public impression, that doesn't fly at all. So they could clearly make hay out of a statement like that.

Following President Bush's January 31 State of the Union address, during which he defended the administration's warrantless domestic surveillance program, various media figures described Bush's defense of domestic eavesdropping as "strong," "vigorous," and "fierce." But they failed to note the numerous inaccuracies Bush employed in justifying the program, whose legality has been challenged not just by Democrats but by Republicans and some prominent conservative legal scholars as well.

Bush's defense of warrantless domestic surveillance, from his State of the Union address:

BUSH: It is said that prior to the attacks of September the 11th, our government failed to connect the dots of the conspiracy. We now know that two of the hijackers in the United States placed telephone calls to Al Qaeda operatives overseas, but we did not know about their plans until it was too late. So, to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected Al Qaeda operatives and affiliates to and from America. Previous presidents have used the same constitutional authority I have, and federal courts have approved the use of that authority. Appropriate members of Congress have been kept informed. The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with Al Qaeda, we want to know about it because we will not sit back and wait to be hit again.

As Media Matters for America has previously noted, nearly every argument Bush made in defense of the program is either false or misleading:

"We now know that two of the hijackers in the United States placed telephone calls to Al Qaeda operatives overseas, but we did not know about their plans until it was too late."

As Media Matters noted, it was apparently not for a lack of intelligence that Nawaf al-Hazmi and Khalid al-Mihdhar, the two hijackers to whom Bush apparently referred, were not captured -- the government had information on the two men more than a year before the 9-11 terrorist attacks. Instead, bureaucratic entanglements and miscues by federal law enforcement and intelligence agencies, as described by the 9-11 Commission and congressional investigators, allowed al-Hazmi and al-Mihdhar to remain free.

"So, to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected Al Qaeda operatives and affiliates to and from America."

The "statute" to which Bush apparently referred is Joint Resolution 23 -- Authorization for Use of Military Force (AUMF) -- which was passed by Congress in the days following the 9-11 attacks, authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." The administration has often cited AUMF as legal justification for the surveillance program. A January 5 report by the nonpartisan Congressional Research Service (CRS) noted that "the Administration asserts that a part of the Foreign Intelligence Surveillance Act (FISA) that punishes those who conduct "electronic surveillance under color of law except as authorized by statute" does not bar the [National Security Agency] NSA surveillance at issue because the AUMF is just such a statute." However, the CRS report also concluded that the AUMF did not repeal FISA's requirement to obtain a warrant when conducting domestic electronic surveillance:

Where Congress has passed a declaration of war, 50 U.S.C. § 1811 [FISA] authorizes the Attorney General to conduct electronic surveillance without a court order for fifteen calendar days following a declaration of war by Congress. This provision does not appear to apply to the AUMF, as that does not constitute a congressional declaration of war. Indeed, even 90 if the authorization were regarded as a declaration of war, the authority to conduct warrantless electronic surveillance under 50 U.S.C. § 1811 would only extend to a maximum of 15 days following its passage.

Overall, the CRS report further noted that the Bush administration's legal justification for the NSA program "conflicts with existing law and hinges on weak legal arguments," as Media Matters noted.

Moreover, members of Bush's own Justice Department were unconvinced the program was constitutional. As Newsweek reported in its February 6 edition, a number of former Bush administration officials objected to vast expansions of executive authority to conduct the "war on terror," such as the NSA program.

Additionally, in 2002, the Justice Department refused to support a bill that would have lowered the threshold for obtaining a FISA warrant to conduct electronic surveillance of non-U.S. persons, contending that such a change might not be constitutional, as Media Matters noted. Specifically, the Justice Department wrote that the bill offered by Sen. Mike DeWine (R-OH) to lower FISA standards might not "pass constitutional muster," even while Bush was -- and is -- authorizing surveillance wholly independent of FISA standards.

"Previous presidents have used the same constitutional authority I have ..."

As Media Matters noted, conservative media figures have often pointed to the 1995 testimony of then-Deputy Attorney General Jamie Gorelick before the House Intelligence Committee as proof that President Clinton asserted "the same authority" as Bush regarding warrantless surveillance. However, unlike electronic surveillance, the "physical searches" to which Gorelick referred were not restricted by FISA at the time of her 1994 testimony. Therefore, by asserting the authority to conduct physical searches for foreign intelligence purposes, the Clinton administration was not asserting that it did not have to comply with FISA. In October 1994, Congress passed legislation -- with Clinton's support -- to require FISA warrants for physical searches. Thereafter, the Clinton administration never argued that any "inherent authority" pre-empted FISA.

Additionally, the Think Progress weblog noted on December 20 that executive orders by Clinton and President Jimmy Carter regarding warrantless surveillance were merely explaining FISA's restrictions on the conduct of searches on "United States persons." Subsequent reports by NBC chief foreign affairs correspondent Andrea Mitchell and The Washington Post also debunked the claim while noting that it was highlighted in the December 21 RNC press release.

"... and federal courts have approved the use of that authority."

As CRS wrote, and as Media Matters previously noted, no court has ruled on the sort of conduct in which the Bush administration has engaged -- authorizing the surveillance of communications involving people in the United States without obtaining a warrant, in apparent violation of FISA. According to the CRS report:

Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance. The Court of Review, the only appellate court to have addressed the issue since the passage of FISA, "took for granted" that the President has inherent authority to conduct foreign intelligence electronic surveillance under his Article II powers, stating that, "assuming that was so, FISA could not encroach on that authority." However, much of the other lower courts' discussions of inherent presidential authority occurred prior to the enactment of FISA, and no court has ruled on the question of Congress's authority to regulate the collection of foreign intelligence information.

"Appropriate members of Congress have been kept informed."

As Media Matters noted, of the seven Democratic lawmakers known to have been briefed about the program, three have said they objected at the time, and three more claim they were inadequately apprised of the program's nature and scope. On the December 16 broadcast of ABC's Nightline, former Sen. Bob Graham (D-FL) claimed he was not informed of the program at all and maintains he was not told the warrantless eavesdropping program would be directed at U.S. citizens. A separate CRS report, released January 18, said that the Bush administration's limited notification of Congress about the domestic surveillance program "appear[s] to be inconsistent with the law."

"The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America."

A January 17 New York Times article cited "current and former officials" in challenging the effectiveness and utility of the program. According to the Times:

In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. But virtually all of them, current and former officials say, led to dead ends or innocent Americans."

Following the warrantless domestic surveillance program's public disclosure in a December 16 Times article, administration officials and conservative commentators pointed to the arrest of Al Qaeda accomplice Iyman Faris as proof of the program's efficacy. Faris, a naturalized U.S. citizen and an acquaintance of the alleged mastermind of the 9-11 attacks, Khalid Shaikh Mohammed, plotted to bring down the Brooklyn Bridge by cutting its suspension cables with blowtorches. However, as Media Matters noted, the January 17 Times article indicated that information gleaned from the eavesdropping program did not play "a significant role" in Faris's capture.

Notwithstanding these numerous false or misleading assertions, CNN host Paula Zahn, CNN senior analyst Jeff Greenfield, CNN chief national correspondent John King, Fox News Washington bureau chief Brit Hume, Fox News host Chris Wallace, and CBS news contributor Gloria Borger all uncritically praised Bush's defense of the surveillance program during their post-speech coverage.

From CNN's post-speech coverage:

ZAHN: These certainly are things we've heard him talk about before, fiercely defending NSA wiretapping, but we also have to be honest that the Democrats, according to polls, have not given the American public a unified voice or any alternatives to really consider here.

[...]

GREENFIELD: Ten days ago, the president's political guru Karl Rove told a group of Republicans, "We're going to run this campaign essentially on national security in the midterms." They won the midterms in 2002 on that issue. I think they won the presidential election last time largely on it. And the strongest part of the president's speech was defending the controversial warrantless wiretaps, where he used the same kind of approach he's used in this field before: "I'm going to protect this country, I'm not going to let it sit back and wait to get hit again. We've protected the country from future terrorist attacks," and by implication, "My critics will not be as strong on this issue."

[...]

KING: There is the domestic surveillance program -- the president emphatically defending that tonight; hearings in Congress next week on that program. They think they will win that debate but it's a dicey one.

From Fox News' post-speech coverage:

HUME: He made a very strong defense, at least in his tone, of what he calls the "terrorist surveillance program." That, of course, that electronic intercept program engaged in by the National Security Agency, which intercepts telephone calls to and from Al Qaeda operatives and those believed to be Al Qaeda operatives -- inside -- from calls picking up conversations involving people inside the United States with people outside the United States believed associated with that terrorist organization.

[...]

WALLACE: And the thing that struck me about the speech tonight is the degree to which, particularly on foreign policy, he didn't give an inch. I mean, he talked about criticism of his policy on Iraq as retreat. There's been criticism, of course, of his policy on the NSA wiretapping, and he made it clear he thought he was particular -- completely within his legal rights and very much within his duty of protecting the country to continue that program. I thought it was -- there was no give whatsoever in the president, either at lunch or in his speech tonight when it came to foreign policy.

From CBS' post-speech coverage:

BORGER: I also believe, quite frankly, that the Democrats believe they have a pretty clear agenda lined out for themselves heading into the midterm elections, and that they want to distinguish themselves from George W. Bush, rather than joining themselves with the president. And I might also add that the president was very firm in his defense of those warrantless wiretaps performed by the National Security Agency. He did not back down one bit, nor did he back down in calling for renewal of the [USA] Patriot Act in March.

Similarly, The New York Times, in a February 1 article on the State of the Union address, reported Bush's remarks about the domestic surveillance program without noting any of Bush's inaccuracies, describing his defense of the program as "vigorous." According to the Times: "Mr. Bush continued his vigorous defense of his administration's secret program of eavesdropping without warrants and suggested that it could have caught some of the Sept. 11 hijackers, although he provided few details." By contrast, The Washington Post noted some of Bush's inaccuracies and misleading statements in a February 1 article:

In his State of the Union address last night, President Bush waded right in the middle of the debate over his warrantless domestic eavesdropping program, making a number of assertions that have been subject to intense debate.

For instance, Bush strongly suggested that the Sept. 11, 2001, attacks could have been prevented if the phone calls of two hijackers had been monitored under the program. This echoes an assertion made earlier this year by Vice President Cheney.

But the Sept. 11 commission and congressional investigators said the government had compiled significant information on the two suspects before the attacks and that bureaucratic problems -- not a lack of information -- were the main reasons for the security breakdown. The FBI did not even know where the two suspects lived and missed numerous opportunities to track them down in the 20 months before the attacks.

Bush also asserted that "previous presidents have used the same constitutional authority I have." But the most recent example cited by the administration -- involving actions by President Bill Clinton -- is hotly disputed by Democrats who say the current and past situations are not comparable.

The Foreign Intelligence Surveillance Act (FISA), which required the executive branch to get approval from a secret court before conducting wiretaps within the United States, was silent on warrantless physical searches of suspected spies or terrorists. So the Clinton administration asserted that it had the authority to conduct such "black bag" jobs, including searches of CIA turncoat Aldrich Ames's house, which turned up evidence of his spying for Russia.

Clinton later sought amendments to FISA that brought physical searches, as well as wiretaps, under the FISA framework. Bush has never sought such amendments, and he did not publicly acknowledge the program until it was revealed in news reports.

In other sections of his speech, Bush omitted context or made rhetorical claims that are open to question.

National Public Radio also provided a "Fact Check" of the State of the Union address on the February 1 broadcast of Morning Edition, in which it explained many of the problems with Bush's defense of the warrantless domestic surveillance program.

During Fox Broadcasting Co.'s January 31 special coverage of the State of the Union address, Fox News political contributor and former Speaker of the House Newt Gingrich (R-GA) falsely accused Senate Democratic Leader Harry Reid (D-NV) of taking money from former lobbyist Jack Abramoff and asserted that this would compromise the ability of the Democrats to charge Republicans with a "culture of corruption."

Gingrich's claim regarding money he said "Reid took from Abramoff" has no apparent basis in fact. As Media Matters for America has previously noted, a Center for Responsive Politics breakdown of Abramoff's donations shows that Abramoff made contributions only to Repubicans, not Democrats.

From Fox Broadcasting Co.'s January 31 special coverage of the State of the Union address:

SHEPARD SMITH (host): Is that a case -- were you in charge of that party [the Democrats] -- you could make? The culture of corruption?

GINGRICH: Look, I think it is a good case for them to try to make. I think, frankly, with Reid's relationship to Abramoff, the amount of money Reid took from Abramoff, it's a little trickier case for them to make. But, you know, if you are the opposition party, you've got to try.

During ABC's post-State of the Union address coverage, Charles Gibson, co-host of ABC's Good Morning America, cited "polls done in eight of the last 11 years after the State of the Union (SOTU) address, [in which] at least 75 percent of the people who responded said they approved of what they heard" to justify his claim that "maybe [the president] will get a pretty good size boost in his polls from this speech." However, as ABC News polling director Gary Langer stated in the January 31 edition of ABC News' online political news summary The Note, such after-speech polls are a highly unreliable indicator of the entire country's view of the speech because those who listen or watch the speech, by and large, support the president already.

From the January 31 edition of ABC News' The Note, quoting Langer:

"Partisans watch these things; rather than torturing themselves, people who don't like the guy can just turn to another of their 100 channels. When we polled on the SOTU in 2003, we found that the president's approval rating among speech watchers was 70 percent, versus 47 percent among those who didn't watch. As we put it at the time: 'Simply put, people who don't like a particular president are considerably less apt to tune him in.'"

Langer further noted that, due to this built-in skew and the speech's typical content of mostly "poll-tested applause lines," ABC News "ha[s]n't done immediate post-SOTU reax [reaction] polls in years (pre-war 2003 was an exception) because ... they are so dreadfully predictable."

From ABC's January 31 post-State of the Union address coverage:

GIBSON: But it is a chance, as I mentioned earlier, for the president, really, to seize the initiative, to have the podium, to lay out his agenda. And I was interested to note that polls done in eight of the last 11 years after the State of the Union address, at least 75 percent of the people who responded said they approved of what they heard. So with the president's polls as low as they are, with the president reaching out and trying to find cooperation in Washington, maybe he will get a pretty good size boost in his polls from this speech.

Following MSNBC's January 31 coverage of the Democratic response to President Bush's State of the Union address -- delivered by Virginia Gov. Tim Kaine (D) -- Newsweek managing editor Jon Meacham referred to "the base" of the Democratic Party as "the people who have an almost irrational hatred of George W. Bush." After Kaine's speech, Hardball host Chris Matthews asked Meacham if Democrats are "afraid because of divisions within their own party over policy to make a clear statement" in opposition to Bush's Iraq policies. Meacham responded that "they're afraid because the people who get elected president, who are Democrats, are centrist governors." He added that "they have a very hard time ... keeping the left wing of their party happy, which is the base; and they're the very active people. They're the most vocal people. They're the people who have an almost irrational hatred of George W. Bush." Meacham equated this "almost irrational hatred" with "the way the hard right in the Republican Party had an irrational hatred of Bill Clinton." He added: "I mean some things never change."

From MSNBC's January 31 post-State of the Union coverage:

MATTHEWS: And here, the Democrats had a fellow come on tonight and say -- this is how strong he got -- "Are the president's policies the best way to win this war?" That's it. That was the criticism. Are they afraid to take on this president on his central, signature issue of the war in Iraq?

MEACHAM: Well, I hate to say it, but I do think that -- that response illuminates a good bit of the Democratic problem right now, which is that there is not been a powerfully articulated critique of this president. And there is a -- there's much to critique, obviously.

MATTHEWS: Are they afraid because of divisions within their own party over policy to make a clear statement?

MEACHAM: I think they're afraid because the people who get elected president, who are Democrats, are centrist governors. And I think that they have a very hard time playing to the -- keeping the left wing of their party happy, which is the base; and they're the very active people. They're the most vocal people. They're the people who have an almost irrational hatred of George W. Bush in the way the hard right in the Republican Party had an irrational hatred of Bill Clinton. I mean some things never change.

Immediately following President Bush's January 31 State of the Union address, MSNBC host Chris Matthews praised the "strong statements" Bush made in defense of the administration's warrantless domestic surveillance program and repeated without correction Bush's suggestion that, as Matthews phrased it, "we could have caught two of the Al Qaeda terrorists" involved on the September 11, 2001, terrorist attacks "if we'd had access to this kind of surveillance ability." In fact, according to the 9-11 Commission, it was bureaucratic entanglements -- not a lack of intelligence -- that prevented law enforcement officials from capturing the two hijackers. Matthews also claimed the dispute over the surveillance program has been fought "between those Democratic and Republican aisles," even though a number of Republicans have criticized the program and called for congressional inquiries.

From MSNBC's coverage of the State of the Union address:

MATTHEWS: Well, that was an unapologetic defense of this administration's policies, a call to arms to continue those policies for the next three years. There is no lame duck in this president's speech. There's nothing but: "I'm gonna do what I've been doing, get used to it. Support me or fight me, but do it civilly." We saw the president tonight make a number of strong statements. One defending the war in Iraq, saying it's necessary to go after failed tyrannies, repressive states, because they're the states that harbor terrorists and attacked us on 9-11. He said much the same thing in defending the NSA [National Security Agency] surveillance program, which has been so controversial and fought over between those Democratic and Republican aisles now for weeks now. He said we could have caught two of the Al Qaeda terrorists, the hijackers of 9-11, itself, perhaps, if we'd had access to this kind of surveillance ability. He talked about them being on the telephone overseas to here in the United States as they prepared for the mass murder of 9-11 in 2001.

Bush, during his address, said:

BUSH: It is said that prior to the attacks of September the 11th, our government failed to connect the dots of the conspiracy. We now know that two of the hijackers in the United States placed telephone calls to Al Qaeda operatives overseas. But we did not know about their plans until it was too late. So to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected Al Qaeda operatives and affiliates to and from America.

As Media Matters for America has noted, the September 11 Commission's report and congressional investigators have contradicted claims that 9-11 may have been prevented had the domestic surveillance program been in place prior to the attacks. Investigators have noted that the government had information on Nawaf Alhazmi and Khalid Almihdhar, the two hijackers to whom Bush apparently referred, more than a year before the attacks occurred, but miscues by federal law enforcement and intelligence agencies in the months prior to the attacks prevented any action being taken against Alhazmi and Almihdhar. Further, as The Washington Post noted in a January 5 article, the NSA intercepted on September 10, 2001, two messages warning of the attacks but did not translate them from Arabic until September 12.

The January 5 Washington Post article laid out the various holes in this argument after Vice President Dick Cheney proffered it in defense of the surveillance program:

Even without the warrantless domestic spying program, however, the NSA and other U.S. intelligence agencies had important clues about the Sept. 11 plot and the hijackers before the attacks, according to media reports and findings by Congress and the commission.

For example, the NSA intercepted two electronic messages on Sept. 10, 2001, that warned of the attacks -- but the agency failed to translate them until Sept. 12. The Arabic-language messages said "The match is about to begin" and "Tomorrow is zero hour," intelligence officials said.

U.S. intelligence sources have said that NSA analysts were unsure who was speaking on the intercepts but that they were considered a high enough priority for translation within two days.

Cheney's apparent reference to Alhazmi and Almihdhar is also incomplete, leaving out the fact that several government agencies had compiled significant information about the duo but had bungled efforts to track them.

According to the Sept. 11 commission's report, released in 2004, the NSA first identified Alhazmi and Almihdhar in December 1999, passing the information to the CIA but conducting no further research.

In 2000, the CIA failed to place Alhazmi and Almihdhar on a watch list despite their ties to a terrorist summit in Malaysia. The CIA also mishandled efforts to follow them after the summit and failed to share information about them with the FBI, including the crucial fact that both men had U.S. visas, the commission found.

By late August 2001, the FBI finally had information that Almihdhar had recently entered the United States. But the search for the suspected al Qaeda operative was treated as routine and assigned to a rookie agent, according to the commission report.

Bruce Hoffman, a terrorism expert who heads Rand Corp.'s Washington office, said it is unclear what communications could have been intercepted if the FBI and other agencies did not know where Alhazmi and Almihdhar were.

Hoffman also said Cheney's comments ignore the breadth of the government failures before the attacks, which were due to structural problems rather than a single missed lead.

"It's not that legislation was lacking; it was a systemic failure," he said.

Furthermore, Matthews's claim that the debate over the program's legality is a partisan issue ignored the fact that 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), and Rep. C.L. "Butch" Otter (R-ID) have also expressed their concerns over the program, as Media Matters noted.

During CNN's live coverage preceding President Bush's January 31 State of the Union address, co-host Paula Zahn claimed "a lot of people out there" are saying that "if you vote for a Democrat, that basically you want to be bombed." Zahn also purported to identify a "perception" that Democrats are "reactive, not proactive, that they have no agenda of their own, and ... that basically the only thing they're good at is blasting the president."

From Zahn's exchange with Democratic strategist Paul Begala during a special edition of The Situation Room:

ZAHN: Paul, let's talk about some of the challenges Democrats have to challenge tonight. And one is the perception that they're reactive, not proactive, that they have no agenda of their own, and we heard it in a briefing today, that basically the only thing they're good at is blasting the president.

BEGALA: Well, I wish they were better at that. I'd be happy if that's all that they did. But -- well, they're getting better. I think they're doing a smart thing, though. [CNN congressional correspondent] Ed Henry just said that they had a whole week of what they call "pre-buttals," and I was talking to them up on the Hill, and they understand that they can't beat the president on the night of the State of the Union. They said "We're going to win the State of the Union before he ever gets up on the podium." So now they've had a week where they've said, "Here's our plan on energy independence, here's our plan on cleaning up corruption." And they know that the president will command the stage tonight. But I suspect after the speech, in addition to [Virginia Gov.] Tim Kaine doing his -- whatever he's going to say [in the Democratic response], they're going to go at the president's credibility. The new Washington Post poll says 53 percent of Americans say the president is not honest and trustworthy. OK, last midterm election, 71 [percent] said he was. Now, the majority of country doesn't think he tells the truth. That could be deadly.

ZAHN: But security is still going to be a huge issue in this country, and whether you like it or not, you've got a lot of people out there saying, if you're Republican, we're going to keep the country safe, you know, if you vote for a Democrat, that basically you want to be bombed.

Despite President Bush's approval ratings hovering in the low 40s and a January 29 ABC News/Washington Post poll showing a majority of the American people disapproving of his performance on nearly every major issue, ABC posted onscreen text reading "America's Agenda" beneath an image of Bush while anchor Elizabeth Vargas introduced ABC correspondent George Stephanopoulos's preview of the 2006 State of the Union address on the January 31 edition of World News Tonight.

Attacking an economic proposal by the United Nations Development Programme (UNDP), Rush Limbaugh, on the January 30 broadcast of his nationally syndicated radio show, claimed the plan was intended to "rape" the United States. Limbaugh made the comment while discussing the annual meeting of the World Economic Forum, which took place from January 25 to 29 in Davos, Switzerland. The UNDP plan, which was unveiled at the international gathering, proposes new approaches to global problems that its authors claim would unlock some $7 trillion in wealth worldwide. The proposal is presented in The New Public Finance: Responding to Global Challenges (Oxford University Press, 2006), a book edited by Inge Kaul, special adviser to the UNDP's Office of Development Studies, and Pedro Conceição, acting director of the UNDP's Office of Development Studies.

While talking about the UNDP proposal, Limbaugh both quoted and paraphrased a January 30 article in The Independent, a London newspaper. According to Philip Thornton, The Independent's economic correspondent, the UNDP plan would "unlock" wealth through six economic schemes, including "[r]educing greenhouse gas emissions through pollution permit trading" and "cutting poor countries' borrowing costs by securing the debts against the income from stable parts of their economies." The article noted that the plan is contingent in part upon the United States changing its stance on the Kyoto Protocol, an international agreement that aims to reduce or limit net emissions of certain greenhouse gases. The United States, under the Clinton administration, signed the agreement, on which President Bush subsequently reneged. After asserting that "we don't have the same kinds of problems in this country that they're [forum attendees] all discussing and worried about in Davos," Limbaugh added: "When they [the UNDP offficials] say they wanna unlock $7 trillion of wealth; it means, 'How can we rape the U.S. for $7 trillion?' "

From the January 30 edition of Premiere Radio Networks' The Rush Limbaugh Show:

LIMBAUGH: And, you know, the problems of the world created by that kind and those -- those variations of those forms of government, we don't have the same problems in this country that they're all discussing and worried about in Davos -- "It's tearing us up!" When they say they wanna unlock $7 trillion of wealth; it means, "How can we rape the U.S. for $7 trillion?"

This is a long story, and I'm not gonna -- I'm not gonna bore you with the whole thing. Let me just give you a couple of ideas that they propose. "The scheme, by the way, which is backed by the U.K., France, Italy, Spain, Sweden, and the Bill and Melinda Gates Foundation, was born out of a proposal by Gordon Brown through a larger scheme to double the total aid budget to $100 billion a year." Now, when it says here that this -- it's backed by the U.K., France, Italy, Spain -- that's -- it means it's backed by people from those countries who went to Davos.

"In an endorsement of the report, Mr. Brown said, 'This shows we can help equip people in countries for a new global economy that combines greater prosperity and fairness, both within and across nations.' " These guys think they can manage a global economy. They can't even manage an economy in a small, little, Podunk nation that's the total -- it -- most of its budget is the result of gifts, donations, contributions, aid, foreign aid, whatever you wanna call it. And these people now claim that they have the expertise to manage a global econ -- You don't manage an economy. You deregulate it and get outta the way, leaving no room for people like this to even have a job, which would be the best thing overall for most people in the world.

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:

• An ABC News/Washington Post poll, conducted January 23-26, found Bush's approval rating to be 42 percent. That figure is down four percent from the previous ABC/Post poll, conducted January 5-8.
• A Fox News/Opinion Dynamics poll, conducted January 24-25, placed Bush's approval rating at 41 percent. That figure is down one percent from the previous Fox/Opinion Dynamics poll, conducted January 10-11.
• A CBS News/New York Times poll, conducted January 20-25, found Bush's approval rating to be 42 percent. That figure is up one percent from the previous CBS poll, conducted January 5-8.
• A CNN/USA Today/Gallup poll, conducted January 20-22, placed Bush's approval rating at 43 percent. That figure is the same as Bush's approval rating in the previous CNN/USA Today/Gallup poll, conducted January 9-12.
• Rasmussen Reports' daily tracking polls show Bush's approval rating to have ranged from 48 to 50 percent since January 28, after ranging from 44 to 46 percent for most of January.
• Three other major polls, which also suggest conflicting trends in Bush's approval ratings, do not have recent prior results for comparison. A Time magazine poll conducted January 24-26 put Bush's approval rating at 41 percent, which is equal to the last Time poll, conducted November 29-December 1. A Cook Political Report/RT Strategies poll conducted January 22-25 found Bush's approval rating to be 47 percent, up five percent from the previous Cook/RT Strategies poll conducted December 8-11. A Los Angeles Times/Bloomberg poll conducted January 22-25 put Bush's approval rating at 43 percent, noting that the figure was "a big drop" from older polling by the Los Angeles Times, and that "most national polls have shown Bush's popularity declining dramatically":

  
  A majority of Americans (54%) disapprove of the way the president is handling his job, while 43% approve. This includes 39% who strongly disapprove. This is a big drop from the beginning of last year, when a January L.A. Times Poll had Bush's job rating at 50% approve (47% disapprove). Throughout much of 2005, most national polls have shown Bush's popularity declining dramatically. The poll results are very close to the average of other national polls released in the last two weeks.

• The only major poll released since Stolberg's January 29 article indicates a lower approval rating for Bush than any of the polls released earlier in the week. An NBC News/Wall Street Journal poll conducted January 26-29 placed Bush's approval rating at 39 percent, equal to the previous NBC/Journal poll conducted December 9-12.

The margin of error in all of the above polls is approximately 3 percentage points.

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.

[crosstalk]

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.

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?"

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 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 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.