Media Matters for America

On the January 4 edition of Fox News' Special Report with Brit Hume, Fox News chief Washington correspondent Jim Angle reported that warrantless eavesdropping on domestic communications would not violate the Foreign Intelligence Surveillance Act (FISA) "if the intelligence were gathered overseas and an overseas person were targeted." The following day, Angle used comments by former Bush National Security Council deputy counsel Bryan Cunningham to support his claim, offering it as an explanation for "why President Bush did not seek the approval of the FISA court" in connection with his authorization allowing the National Security Agency (NSA) to eavesdrop on communications to and from Americans. While Angle's hypothetical claim is debatable, it is also irrelevant, as it does not reflect the reported reality of Bush's controversial NSA program.

FISA's warrant requirements kick in only if an eavesdropping program falls under the FISA definition of "electronic surveillance." Under one definition in FISA, a warrant is required for the following:

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States...

Depending on the particular circumstances, Angle's claim -- that warrantless wiretapping would not violate FISA "if the intelligence were gathered overseas and an overseas person were targeted" -- may be true. However, that is not the conduct for which legality is currently in question.

The conduct that has touched off the current furor is the reported gathering of intelligence domestically, involving surveillance of people in the United States. New York Times reporters Eric Lichtblau and James Risen reported in a December 24 article that "according to current and former government officials," the NSA "has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity." They said that the communications were "collected by tapping directly into some of the American telecommunication system's main arteries."

Lichtblau and Risen reported that as part of Bush's program, "the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said." Lichtblau and Risen further noted that "the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials."

FISA further specifies that the attorney general may authorize warrantless electronic surveillance only after certifying under oath that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person (a U.S. citizen or permanent legal resident) is a party." In their December 16 article, which first revealed Bush's surveillance program, Risen and Lichtblau reported that "according to the officials familiar with the N.S.A. operation," Bush authorized "some warrantless eavesdropping on those inside the United States -- including American citizens, permanent legal residents, tourists and other foreigners."

Despite The New York Times' reporting, in a conversation with host Brit Hume on January 4, Angle defined the issue in a misleading manner: "[I]f the intelligence were gathered overseas and an overseas person were targeted, that would not require a FISA warrant." Angle did not tell viewers that this scenario conflicted with actual reports about Bush's program.

On the following day's Special Report, Angle elaborated further on this hypothetical scenario. Introducing Angle's January 5 report, Hume claimed: "Some clarity is beginning to emerge tonight about why President Bush may have decided to authorize the National Security Agency to eavesdrop without warrants on some international communications that had one end in the U.S."

Following Hume's introduction, Angle reported: "Some intelligence experts say there are many circumstances that simply do not require such a warrant." Angle then played Cunningham's taped comments:

CUNNINGHAM: If, for example, the communications were monitored overseas, say, with a satellite over Afghanistan, or if the calls of the -- if the communications of the people in the United States were not, quote, unquote, "targeted for collection."

Angle added: "So if the U.S. were listening to a phone used by [Osama] bin Laden and they heard a call he made to someone in the United States, several intelligence sources say that does not require a warrant."

An onscreen graphic noted that Cunningham formerly served as deputy counsel for the National Security Council but did not reveal that he held this position under Bush from 2002-2004 -- while the administration was conducting its surveillance program. (During the Clinton administration, Cunningham served as assistant general counsel at the Central Intelligence Agency, then as a trial attorney and special assistant United States attorney in the Justice Department.)

Angle's hypothetical example, in which overseas intelligence-gathering might not require a FISA warrant, not only conflicts with the Times' reporting of what has actually occurred, it also appears to be inconsistent with a Bush administration admission about the eavesdropping program. At a December 19 press conference, principal deputy director of national intelligence Lt. Gen. Michael V. Hayden -- who was serving as NSA director at the time Bush approved the program -- acknowledged that the program goes beyond what is authorized under FISA. Hayden stated: "We understand that this is a more -- I'll use the word 'aggressive' -- program than would be traditionally available under FISA."

From the January 4 edition of Fox News' Special Report with Brit Hume:

ANGLE: But if you get into legal arguments, there are several circumstances under which what the president -- what we believe the president did and authorized NSA to do -- would not require a warrant. For instance, if the intelligence were gathered overseas and an overseas person were targeted, that would not require a FISA warrant. I asked Senator [Russell] Feingold [D-WI] --

HUME: Even if the phone call was coming into the U.S.?

ANGLE: Yes. Even if it were coming into the U.S. I asked Senator Feingold about that today. He says if one end of that conversation is in the U.S., then it does require a warrant. Now, intelligence experts insist that is not correct. So, there is an argument over what the law actually says, much less over what the president did.

From the January 5 edition of Fox News' Special Report with Brit Hume:

HUME: Some clarity is beginning to emerge tonight about why President Bush may have decided to authorize the National Security Agency to eavesdrop without warrants on some international communications that had one end in the U.S. Fox News chief Washington correspondent Jim Angle reports.

[begin video clip]

ANGLE: One of the key unanswered questions in the NSA controversy is why President Bush did not seek the approval of the FISA court, which acts in secret to issue warrants for eavesdropping. Some intelligence experts say there are many circumstances that simply do not require such a warrant.

CUNNINGHAM: If, for example, the communications were monitored overseas, say, with a satellite over Afghanistan, or if the calls of the -- if the communications of the people in the United States were not, quote, unquote, "targeted for collection."

ANGLE: So if the U.S. were listening to a phone used by bin Laden and they heard a call he made to someone in the United States, several intelligence sources say that does not require a warrant.

[end video clip]

On the January 6 edition of MSNBC's Countdown with Keith Olbermann, host Keith Olbermann gave nationally syndicated radio host Rush Limbaugh the show's "Worst Person in the World" award for falsely claiming on the January 4 broadcast of his radio show that the Foreign Intelligence Surveillance Act (FISA) court denied the FBI a warrant to access the laptop computer of Zacarias Moussaoui -- the alleged "20th hijacker" in the September 11, 2001, terrorist plot -- immediately prior to the attacks. Media Matters for America had documented Limbaugh's falsehood earlier that day.

During the January 4 broadcast on his nationally syndicated radio show, Limbaugh falsely claimed that the FBI, which was in possession of Moussaoui's laptop, "wanted to get into it [Moussaoui's laptop], wanted to connect the dots" but that a FISA court "[j]udge wouldn't let them do it." In fact, as Media Matters noted and as Olbermann explained on his January 6 broadcast, it was the FBI -- not the FISA court -- that determined the evidence against Moussaoui did not meet FISA standards for obtaining a warrant. A February 2003 Senate Judiciary Committee report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), found that the FBI's evidence against Moussaoui was, in fact, sufficient under the act but that the FBI attorneys handling the case employed an "unnecessarily high standard" for probable cause that exceeded FISA's own standard.

In presenting Limbaugh with the "Worst Person in the World" honors, Olbermann stated: "But of course, that's not the kind of story Rush Limbaugh wants you to know, so he lied about it, told it backwards." Olbermann asserted that this type of reporting is "why his [Limbaugh's] listeners live in ignorance."

From the January 6 broadcast of MSNBC's Countdown with Keith Olbermann:

OLBERMANN: But tonight's winner: the indescribable Rush Limbaugh. He has now defended the president bypassing the foreign intelligence surveillance courts to authorize those NSA wiretaps by explaining to his audience that it was one of those FISA court judges who wouldn't let the FBI examine the laptop of the so-called 21st hijacker [sic], Zacarias Moussaoui, which perhaps might have allowed them to discover the 9-11 plot in the summer of 2001. Of course, in fact, the FBI never even went to the court in that case; they never even asked a judge to let it read Moussaoui's computer. The FBI's own lawyers decided the bureau did not have the right to examine the computer. A later investigation suggested the FBI lawyers were wrong, and if they'd only gone to one of the FISA judges, the judge would have granted access to Moussaoui's computer. But of course, that's not the kind of story Rush Limbaugh wants you to know, so he lied about it, told it backwards. Which is why his listeners live in ignorance and why Rush Limbaugh is once again today's Worst Person in the World.

On the January 4 broadcast of his nationally syndicated radio show, Rush Limbaugh baselessly claimed that Sen. Carl Levin (D-MI) is "tainted" by the Jack Abramoff scandal because he helped a Saginaw Chippewa Indian tribe -- an Abramoff client -- acquire educational money "[i]n exchange" for Abramoff-directed contributions. In fact, the articles Limbaugh cited to support this claim present no evidence linking Abramoff-directed contributions to a letter Levin and Sen. Debbie Stabenow (D-MI) wrote urging Sen. Conrad Burns (R-MT), chairman of the Subcommittee on Interior and Related Agencies of the Committee on Appropriations, to approve the education funding. The Saginaw Chippewa tribe ultimately received a $3 million school grant, although the tribe had to be exempted from requirements otherwise rendering them ineligible for funding normally targeted at impoverished tribes.

According to Limbaugh, Levin "took thousands of dollars from Abramoff's firm" and, "[i]n exchange," the Saginaw Chippewa tribe "got a lot for their money, at least $3 million" because "Levin wrote a letter with Debbie Stabenow [D-MI] ... urging and pressuring Senator Conrad Burns's appropriations committee to give $3 million to the Saginaw Chippewas." To corroborate his claim, Limbaugh quoted the Helena (Montana) Independent Record and the Detroit Free Press, neither of which indicate that Levin's letter in any way resulted from money Levin received from Abramoff himself or from his former employers.

The Helena Independent Record article on which Limbaugh primarily relied to assert that money prompted Levin and Stabenow's letter actually addresses Ryan Thomas, a staffer for Burns whose alleged conduct surrounding the $3 million education grant has come under criticism. The article mentioned Levin and Stabenow once, quoting Thomas:

"I was one of many staffers whose jobs required us to make sure we were being responsive to the requests of senators before the subcommittee [on Interior and Related Agencies]. In this case (Michigan) Senators (Debbie) Stabenow and (Carl) Levin had expressed interest to the subcommittee and submitted a letter of request for the Saginaw school."

There is no other mention of either Levin or Stabenow in the article and no indication of whether or how money from Abramoff may have influenced their efforts on behalf of the Saginaw Chippewa tribe.

Limbaugh then claimed that the "Detroit Free Press says that Levin admits that he asked for the $3 million." The January 4 edition of the Free Press did report that Levin attempted to influence Burns's decision:

Democratic Sens. Carl Levin and Debbie Stabenow and Rep. David Camp, R-Midland, have said they urged Burns to allow the tribe to get the school money. The tribe's casino is in Camp's district.

The article noted that Levin received $2,000 from the Saginaw Chippewas, but it does not link that funding to or make any statements about Levin's motivations for writing the letter. The article also reported that Levin received $5,000 from Greenberg Traurig LLP, Abramoff's employer at the time, but cited Levin spokesperson Tara Andringa as saying that the contributions "weren't connected to Abramoff or casinos." As the National Journal Hotline weblog noted, Greenburg Traurig, a legal and lobbying firm, operates a political action committee that "regularly gives money to members of both parties."

A spokesperson for Stabenow has also denied any connection between the letter and $4,000 in Saginaw Chippewa contributions (although the Associated Press, which reported the spokesperson's comments, reported Saginaw Chippewa contributions to Stabenow as $4,000, the Detroit Free Press totaled those contributions at $5,000). As Media Matters for America has documented, only Republicans received direct contributions from Abramoff.

From the January 4 broadcast of The Rush Limbaugh Show:

LIMBAUGH: Apparently, the Detroit Free Press is reporting today that Carl Levin, Senator Carl Levin, Democrat, took thousands of dollars from Abrafobs -- Abramoff's firm back then, and -- and -- and from his client, this Saginaw Chippewa Indian tribe. In exchange for that, the Indian tribe got a lot for their money, at least $3 million. According to the Helena Independent Record, Levin wrote a letter with Debbie Stabenow, also a liberal Democrat U.S. senator from Michigan, urging and pressuring Senator Conrad Burns's appropriations committee to give $3 million to the Saginaw Chippewas, one of America's wealthiest tribes, which didn't need the money. Today's Droit -- Detroit Free Press says that Levin admits that he asked for the $3 million. OK, so Levin's gonna be tainted.

Concluding an interview with Department of Homeland Security Secretary Michael Chertoff on the January 5 broadcast of MSNBC's Hardball with Chris Matthews, host Chris Matthews thanked Chertoff and stated: "[Y]ou're doing a great job." Chertoff appeared on the program to discuss immigration reform and the controversy surrounding the National Security Agency's warantless spy program.

It is not clear on what criterion Matthews based his assessment, but Chertoff was part of the Bush administration's widely criticized response to the Hurricane Katrina disaster. As Media Matters for America documented at the time, Chertoff did not declare Katrina an "Incident of National Significance" until two days after the hurricane struck. Chertoff also delayed until September 2, 2005 -- four days after the hurricane struck New Orleans -- the enforcement of his department's own December 2004 National Response Plan, which called for the federal government to take a "primary role" in the disaster response. Among other things, Chertoff falsely claimed that New Orleans citizens "spontaneously" decided to take shelter at the Ernest N. Morial Convention Center. In fact, as New Orleans Times-Picayune staff writer Bruce Nolan reported on August 29 for the Newhouse News Service (the article was republished in the Times-Picayune on August 30), city officials were already considering opening the convention center as a "temporary refuge to shelter an estimated 50,000 people made homeless by the storm." Chertoff attempted to place the blame for the conditions at the Louisiana Superdome solely on state and local officials.

Matthews also told Chertoff, "I won't say that you're doing a heck of a job because that would be kind of funny" -- a reference to Michael D. Brown, former director of the Federal Emergency Management Agency (FEMA), an agency under Homeland Security. Five days after Katrina hit, President Bush told Brown he was doing "a heck of a job" despite mounting criticism of Brown over FEMA's response to the disaster. Brown later resigned.

From the January 5 broadcast of MSNBC's Hardball with Chris Matthews:

MATTHEWS: OK, Mr. Secretary. Thank you for your service, by the way. I won't say that you're doing a heck of a job because that would be kind of funny, but you're doing a great job.

Thank you very much, Michael Chertoff, secretary for Homeland Security.

CHERTOFF: Thanks a lot, Chris.

In an interview with Sens. Charles E. Schumer (D-NY) and John Cornyn (R-TX) on the January 8 broadcast of NBC's Meet the Press, host Tim Russert revived his prior false claim that justices Ruth Bader Ginsburg and Stephen G. Breyer had the reputation and record of liberal judges when they were nominated to the Supreme Court. Russert used the falsehood to reiterate the argument that because Republicans voted overwhelmingly to confirm the two, Democrats should extend the same courtesy to current Supreme Court nominee Samuel A. Alito Jr.

Specifically, Russert suggested that Senate Republicans had set aside their ideological differences with the "liberal judicial philosophies" of President Clinton's Supreme Court nominees, Ginsburg and Breyer, because "it was a Democratic president who had the right to make that nomination." Russert noted that Ginsburg had served as chief counsel for the American Civil Liberties Union (ACLU) and that Breyer had worked as a staffer for then-Senate Judiciary Committee chairman Edward M. Kennedy (D-MA). Russert further asserted that while Alito's "philosophy may be conservative ... it's no more conservative than Ginsburg and Breyer's were liberal." In fact, both Ginsburg and Breyer were widely viewed as moderates and -- unlike Alito -- were consensus nominees reportedly recommended for nomination by the senior Judiciary Committee senator in the minority party.

Schumer responded by noting that "everyone conceded that Breyer and Ginsburg were" in the "mainstream," and that "most people didn't think Breyer was much of a liberal," adding, "They thought he was a moderate."

Later in the interview, Russert failed to challenge Cornyn when he misleadingly equated Alito's stated personal belief that "the Constitution does not protect a right to an abortion" with statements made by Ginsburg.

From the January 8 broadcast of NBC's Meet the Press:

RUSSERT: But here's the situation, as many people see it. When Ruth Bader Ginsburg was put forward by Bill Clinton, she had been general counsel for the ACLU. Steven Breyer has worked for Ted Kennedy, and yet they were overwhelmingly confirmed because they had competence and temperament, as you say.

SCHUMER: Right.

RUSSERT: And even though they had a more liberal judicial philosophy than many members of the Senate, it was a Democratic president who had the right to make that nomination. If, in fact, Republicans supported Ginsburg and Breyer, why shouldn't Democrats support Alito, who's been rated well qualified, the gold standard of the ABA [American Bar Association], and whose philosophy may be conservative, but it's no more conservative than Ginsburg and Breyer were liberal?

SCHUMER: Well, that's the $64,000 question. If Alito is within the judicial mainstream, as everyone conceded that Breyer and Ginsburg were -- most people didn't think Breyer was much of a liberal; they thought he was a moderate -- if he is within the mainstream, even if he's a conservative, he will be approved. Some people may vote against him, because they say, "He's not my philosophy," but there'll be no attempt to block him.

[...]

RUSSERT: Senator Cornyn, let me pick up on the point Senator Schumer raised about the right of abortion in the Constitution. As you well know, when Samuel Alito applied for a position to be deputy assistant attorney general -- and here is his job application. There you see it, Alito, Samuel A., he wrote this: "... it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued ... that the Constitution does not protect a right to an abortion."

That seems very clear, his personal view and his legal view, arguing that the Constitution does not provide a right to an abortion. Why can't Judge Alito come forward and say, "This is my view. I don't find the right of abortion in the Constitution"? Why doesn't he just say it?

CORNYN: Well, Tim, the -- obviously Judge Alito joins other groups of distinguished legal scholars and jurists who have questioned the decision in Roe v. Wade. Ruth Bader Ginsburg and [Harvard law professor] Laurence Tribe and others have said it's a poorly reasoned decision.

By citing the confirmations of Ginsburg and Breyer as examples of Republican senators setting aside ideological considerations to support the president's nominees "because it was a Democratic president who had the right to make that nomination," Russert was reviving the so-called Ginsburg precedent. According to this deceptive argument -- hatched shortly after the nomination of Chief Justice John G. Roberts Jr. -- Senate Republicans responded to Ginsburg's 1993 nomination by putting aside their ideological differences, not requiring her to answer questions that would signal how she would decide future cases, and voting overwhelmingly for her confirmation, thereby establishing a precedent for the opposition party's handling of future Supreme Court nominees.

Russert previously raised this argument in a November 13 interview with Democratic National Committee chairman Howard Dean. At the time, Media Matters for America noted that the Ginsburg and Breyer nominations actually differ from Alito's in key respects. First, Sen. Orrin Hatch (R-UT) -- then the ranking minority member of the Senate Judiciary Committee -- has claimed credit for recommending both of Clinton's Supreme Court nominees. In his autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), Hatch wrote that he had suggested both Ginsburg and Breyer in 1993 after discouraging Clinton from nominating then-Secretary of the Interior Bruce Babbitt to the Supreme Court:

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg [sic].

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease. (Page 180.)

In her November 15 Washington Post column, Ruth Marcus pointed out that "then-Judge Ginsburg was a consensus choice, pushed by Republicans and accepted by the president in large part because he didn't want to take on a big fight."

Moreover, Ginsburg had a reputation as a moderate on the U.S. Court of Appeals for the District of Columbia Circuit. A June 15, 1993, Washington Post article reported that Ginsburg had "straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years" and that her "pragmatic, non-ideological approach" would most likely put her in league with such "centrist-conservatives" as justices Sandra Day O'Connor and David H. Souter. The Post article cited a Legal Times study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges -- such as Kenneth W. Starr and Laurence H. Silberman -- than those appointed by Democrats. Hatch made the same point in a footnote in Square Peg, writing of Ginsburg: "Not many people realize this, but her voting record at the appellate court was very similar to that of another subsequent Supreme Court Justice, Antonin Scalia." (Page 263.)

Breyer was also frequently described as a "centrist" and a "moderate" during his confirmation process. In a July 8, 1994, New York Times article, Neil A. Lewis wrote:

President Clinton has shown no inclination to try any judicial counter-revolution. He has not emptied the academies of liberal scholars to fill the courts, and his first two nominees to the Supreme Courts were moderate enough to please many Republicans.

So, when Judge Breyer is questioned by the Judiciary Committee members about his views on abortion, for example, his answers will be remarkably like those of Justice Ginsburg. And in this new low-key era, don't expect even the conservative Republicans on the panel to raise any serious objections.

In a May 14, 1994, appearance on CBS' Face the Nation, Hatch cited Breyer's Judiciary Committee work, referring to Breyer as "moderate" and "reasonable":

HATCH: Well, I think Breyer is going to bring a tremendous legal intellect, of broad-based experience. He -- he -- he, believe it or not, is a person who -- who can work very politically well. For instance, when he was chief counsel of the Judiciary Committee, he was able to bring together Republicans and Democrats in one of the most contentious committees on Capitol Hill, and he did it with aplomb because he was honest, he was decent, he was moderate, he was reasonable in his approach. And when it came time to put him on the First Circuit Court of Appeals -- Reagan had been elect -- elected, the Republicans had stopped any further Democrat judges. And because of the esteem of everybody on that Judiciary Committee, including myself, we put him on the First Circuit Court of Appeals.

Even The Wall Street Journal editorial board supported Breyer's nomination, which, the Journal said, "reflects the political philosophy that some of us, including centrist Democrats, had hoped we'd see as a matter of course from the Clinton presidency." On May 23, 1994, the Journal wrote, "We suspect Mr. Breyer is no Robert Bork, but his writings suggest he is at least someone Mr. Bork could have a discussion with." The Journal approvingly cited opposition to Breyer from Ralph Nader and then-Sen. Howard Metzenbaum (D-OH) and praised Breyer's work in support of airline deregulation.

Also during the January 8 interview, Russert quoted from a 1985 job application in which Alito wrote about his personal belief "that the Constitution does not protect a right to an abortion."

From Alito's 1985 job application:

Most recently, it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.

In response, Cornyn claimed that "obviously Judge Alito joins other groups of distinguished legal scholars and jurists who have questioned the decision in Roe v. Wade" -- the Supreme Court ruling establishing a woman's constitutional right to an abortion. Cornyn then asserted that Ginsburg had said Roe is "a poorly reasoned decision." Russert did not challenge Cornyn's assertion, which falsely equated the position that Roe was wrongly decided because there is no constitutional right to abortion with the position that Roe was correctly decided, but incorrectly reasoned.

Defending Supreme Court nominee Samuel A. Alito Jr.'s dissent in the abortion-rights case of Planned Parenthood of Southeastern Pennsylvania v. Casey, NBC News justice correspondent Pete Williams falsely suggested that Alito had simply followed the lead of Supreme Court Justice Sandra Day O'Connor but that O'Connor then "changed her mind" on the constitutionality of spousal notification requirements. In fact, the Casey decision was O'Connor's first ruling on spousal notification, which came after Alito dissented in Casey. Alito, therefore, could not have based his dissent on O'Connor's rulings on spousal notification, nor did O'Connor's ruling in Casey represent a reversal on her part.

Discussing Alito's judicial record on abortion during the January 8 edition of NBC's syndicated The Chris Matthews Show, New York Times White House correspondent Elisabeth Bumiller said that O'Connor "thought [spousal notification] was an undue burden on women, and she took a different position than Alito on this."

Williams countered: "But she changed her mind. And you could argue that Judge Alito, when he voted to uphold this Pennsylvania provision, was following Justice O'Connor's earlier rulings. She then changed her mind and said, you know, this is -- this is an undue burden."

But at the time when Alito wrote his dissent for the 3rd U.S. Circuit Court of Appeals, O'Connor had yet to address the question of the constitutionality of spousal notification requirements. In reaching separate conclusions about how the Supreme Court would rule on the provision, the 3rd Circuit majority in Casey and Alito's dissent in that case both relied on O'Connor's rulings on other types of abortion restrictions.

The Supreme Court upheld the 3rd Circuit's ruling in Casey that the Pennsylvania spousal notification requirement created an undue burden on women seeking abortions. O'Connor ruled with the majority in determining that spousal notification requirements were "likely to prevent a significant number of women from obtaining an abortion." The court wrote, "It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle."

From the January 8 broadcast of NBC's syndicated The Chris Matthews Show:

BUMILLER: I will speak and just remind people that Sandra Day O'Connor, the centrist on the court who Alito is replacing, thought this was an undue burden on women, and she took a different position than Alito on this. That --

WILLIAMS: But she changed her mind. And you could argue that Judge Alito, when he voted to uphold this Pennsylvania provision, was following Justice O'Connor's earlier rulings. She then changed her mind and said, you know, this is -- this is an undue burden.

In an interview on the January 8 edition of Fox News Sunday, Fox News Washington managing editor Brit Hume failed to challenge Sen. Lindsey Graham's (R-SC) false suggestion that when Supreme Court nominee Samuel A. Alito Jr. wrote in a 1985 job application that "the Constitution does not protect a right to an abortion," he was simply representing the views of the Reagan administration. Graham stated: "[A]s an advocate and a lawyer for the Reagan administration, he [Alito] gave them advice consistent with the policies of the Reagan administration." Graham's mischaracterization of Alito's self-expressed views on a constitutional right to abortion recalls a false statement that Hume himself made shortly after Alito's November 1985 application to be an assistant attorney general was made public.

In fact, Alito explicitly stated in the application that this legal position reflected his own "strongly" held "personal[]" view that there is no constitutional right to abortion:

Most recently, it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.

Notwithstanding Alito's clear statement that there was no difference between the legal arguments he had made and his personal views on those issues, on the November 14, 2005, edition of Fox News' Special Report, Hume stated that "these were not personal views he [Alito] was discussing," but rather "the legal arguments that he made as a lawyer in the Reagan Justice Department," as the weblog Think Progress noted at the time.

From the January 8 edition of Fox Broadcasting Co.'s Fox News Sunday:

SEN. DIANNE FEINSTEIN (D-CA): He has expressed his views. My question is are his views -- let's say on abortion -- the same as they were in 1985 when he wrote in an application, "The constitution does not protect a woman's right in this area?" Now, if that's true and he still holds to that, this would make him a very difficult nominee for many of us.

HUME: Let me turn to Senator Graham on that point. Senator, give us your thoughts about that position Judge Alito took. It was pretty straightforward, 20 years ago. Of course, that right to an abortion has been the law of the land now for 32 years. What is your view of Judge Alito on this matter?

GRAHAM: Well, he was applying for a job with the Reagan administration as a lawyer, and the position of the Reagan administration was that Roe v. Wade took away from elected officials the ability to have a say about the unborn. I believe that was a power grab by the courts. And as an advocate and a lawyer for the Reagan administration, he gave them legal advice consistent with the policies of the Reagan administration. He's the most qualified person to be nominated for the Supreme Court in 70 years in terms of judicial experience. He's been on the court for 15 years and there's absolutely no evidence that he's an ideologue: a person who will ignore the law to enact their own personal agenda. So, he's a solid conservative, and I think he'll be confirmed, probably on a party line vote in the committee.

On the January 5 edition of MSNBC's Hardball, host Chris Matthews mentioned during three separate segments Sen. Hillary Rodham Clinton's (D-NY) decision to donate to charity $2,000 in campaign contributions received from American Indian tribes represented by disgraced lobbyist Jack Abramoff, who on January 3 pleaded guilty to felony charges of conspiracy, mail fraud, and tax evasion and on January 4 pleaded guilty to conspiracy and fraud charges in a separate case. Despite repeatedly noting Clinton's receipt of the donations from Abramoff's clients, Matthews virtually ignored the $6,000 and $69,000 in campaign contributions received from Abramoff and his clients by President Bush and House Speaker J. Dennis Hastert (R-IL), respectively -- contributions both have also pledged to donate to charity. Moreover, no mention was made of the more than $100,000 Abramoff reportedly raised on behalf of Bush's re-election campaign that the president has refused to relinquish. Matthews did not inform viewers that Bush had received money from Abramoff and his clients at all and gave only passing mention to the contributions Hastert received, and only in response to remarks by MSNBC host and former Rep. Joe Scarborough (R-FL), a guest on the program.

Clinton's re-election campaign announced she "would return $2,000 in donations from tribes that were Abramoff clients," according to a January 4 Associated Press article. Bush's 2004 re-election campaign will donate $6,000 in campaign contributions received from Abramoff and some of his clients to the American Heart Association, The Washington Post reported on January 5. But Bush's campaign has no plans to return or donate more than $100,000 Abramoff raised on the president's behalf as a Bush campaign fund-raiser, the Post noted. Similarly, Hastert has announced he will donate $69,000 he received from Abramoff and his clients to charity, the Chicago Tribune reported on January 5.

Although the amount of money Clinton received from Abramoff's clients was far smaller than the amounts Bush and Hastert received from Abramoff and those he represented, Matthews mentioned Clinton by name with regard to Abramoff-connnected donations during three separate segments. During the introduction to the program, Matthews remarked that "those $1,000 gifts [are] being sent back to charity like Christmastime fruitcake. Even Hillary Clinton's got some hot Abramoff cash to shed." Similarly, during the introduction to a panel discussion featuring Bloomberg News chief political correspondent Roger Simon and MSNBC chief Washington correspondent Norah O'Donnell, Matthews stated: "Everybody is giving away their money, giving it away. Hillary Clinton even giving a thousand bucks away." After a commercial break, Matthews reintroduced Simon and O'Donnell, then stated: "So far, most of the names on the short list connected to Abramoff are Republican. There are some outlying names that keep popping up. Hillary Clinton gave back $1,000 today."

Matthews never informed his viewers that Bush had received money from Abramoff or his clients. It was left to O'Donnell, who remarked that "when it comes to personal contributions by Abramoff and his wife, he only made personal contributions to Republicans. Those Republicans have got to return those personal contributions, just like President Bush returned those contributions." At no point were viewers made aware that Bush has decided to keep more than $100,000 in contributions that Abramoff raised for the campaign during the 2004 election.

Matthews gave only passing mention to Hastert's receipt of Abramoff-related money, after Hardball correspondent David Shuster and Scarborough mentioned Hastert in two separate segments. During his report, Shuster stated:

SHUSTER: The Boston Globe reports Republican House Speaker Dennis Hastert at a fund-raiser two years ago at Signatures, Abramoff's Capitol Hill restaurant, and collected [sic] $21,000. A week later, Hastert wrote to Interior Secretary Gail Norton, urging her to reject an Indian casino in Louisiana. Abramoff's clients feared that casino would be a new competitor. Hastert told Norton the new casino would, quote, "run counter to congressional intent."

Later, Scarborough mentioned the donations to Hastert, which Matthews briefly acknowledged before changing the subject to Rep. Bob Ney (R-OH), who also received money from Abramoff and his clients, and could face indictment for "allegedly receiv[ing] favors from ... Abramoff in return for supporting legislation beneficial to one of Abramoff's clients," The Los Angeles Times reported January 4.

During the exchange, Scarborough stated:

SCARBOROUGH: I saw the report on Denny Hastert getting money from Abramoff, $21,000 at a fund-raiser that David Shuster reported. A week or two later, he writes a letter that helps an Indian casino that Abramoff supports. I think that's going way over the line.

To which Matthews responded:

MATTHEWS: Because he doesn't have Indians in his district. He's clearly -- this guy, Robert Ney, making some push in the Congressional Record for some business deal down in Florida, trying to screw some enemy of a business deal. There's nobody in Ohio that's got a casino in Florida.

From the January 5 edition of MSNBC's Hardball with Chris Matthews:

MATTHEWS: Johnny, we hardly knew ye. Suddenly, the biggest big shot on K Street is the man nobody knows. Suddenly, the man who handed out campaign cash like Johnny Appleseed is watching those $1,000 gifts being sent back to charity like Christmastime fruitcake. Even Hillary Clinton's got some hot Abramoff cash to shed. Let's play Hardball.

[...]

Good evening. I'm Chris Matthews, and welcome to Hardball. As disgraced Republican lobbyist Jack Abramoff gets ready to dime out his pals on the Hill, the politicians who grabbed his campaign cash keep rushing to give it back, showing charity doesn't begin at home, but rather with hysteria. Tonight, as a public service from Hardball, we'll be listing the names of politicians, congressmen and senators returning or donating Abramoff-related contributions. You can read on the banners at the bottom of your screen. It's a public service. But will returning the campaign cash cleanse lawmakers of their sins in time for the midterm elections this November? And the big question today in Washington: Will Congressman Tom DeLay, "The Hammer," get nailed by the Abramoff scandal? Prominent conservative voices are already calling for DeLay's banishment as majority leader, with reports that some GOP House members are already campaigning for his job.

[...]

SHUSTER: The Boston Globe reports Republican House Speaker Dennis Hastert at a fund-raiser two years ago at Signatures, Abramoff's Capitol Hill restaurant, and collected [sic] $21,000. A week later, Hastert wrote to Interior Secretary Gale Norton, urging her to reject an Indian casino in Louisiana. Abramoff's clients feared that casino would be a new competitor. Hastert told Norton the new casino would, quote, "run counter to congressional intent."

[...]

MATTHEWS: Try to decipher this. A member of Congress, somebody you know, once told me that you could go into a subcommittee and you'd be sitting around a room trying to figure out how to mark up a bill or how to begin to approach it -- and you could tell all of a sudden that some guys were tanked, as he said. In other words, you could tell they were in the tank, the industry had gotten to them, they were basically "Invasion of the Body Snatchers" types. And there's also guys like you, you know, a member of -- a lobbyist guy, you respect him, and he's a good source of information and maybe a campaign contribution now and then. But you're not owned by the guy. He can get in the door, maybe spend 10 minutes with you, but you could also say, "Tough luck." Where's the line?

SCARBOROUGH: I think the line is, and I saw the report on Denny Hastert getting money from Abramoff, $21,000 at a fund-raiser that David Shuster reported. A week or two later, he writes a letter that helps an Indian casino that Abramoff supports. I think that's going way over the line.

MATTHEWS: Because he doesn't have Indians in his district. He's clearly -- this guy, Robert Ney, making some push in the Congressional Record for some business deal down in Florida, trying to screw some enemy of a business deal. There's nobody in Ohio that's got a casino in Florida.

[...]

MATTHEWS: For more on this, we turn to Roger Simon, chief political correspondent for Bloomberg News -- and he's one of the best there is in politics -- and MSNBC's chief Washington correspondent Norah O'Donnell. Thank you, Norah. Let's -- I want to start with Simon here -- Roger, because you've covered so many campaigns, you've covered so many politicians, you write beautifully, and these guys are all shedding like the dogs in shedding season. Everybody is giving away their money, giving it away. Hillary Clinton even giving a thousand bucks away. I've never seen so many people giving so much money away to charity overnight because they don't want this Abramoff money.

[...]

MATTHEWS: We're back with Bloomberg chief political correspondent Roger Simon and MSNBC chief foreign -- chief Washington correspondent Norah O'Donnell. Norah, let me go through the settling out of this thing, the way we set it up. So far most of the names on the short list connected to Abramoff are Republican. There are some outlying names that keep popping up. Hillary Clinton gave back $1,000 today. [Senate Democratic Leader] Harry Reid's [D-NV] got a little connection through some Indian tribes. Conrad -- what's the other guy's name?

O'DONNELL: Burns.

MATTHEWS: Burns -- [Sen.] Conrad Burns [R-MT] involved here, at least tangentially. Is this a partisan problem in the main?

O'DONNELL: It's a great question. Is this only a Republican Party problem? Listen, when it comes to personal contributions by Abramoff and his wife, he only made personal contributions to Republicans. Those Republicans have got to return those personal contributions, just like President Bush returned those contributions.

With Senate Judiciary Committee hearings for Supreme Court nominee Samuel A. Alito Jr. scheduled to begin on January 9, the media are again turning their attention to the heated battle over the high court. In anticipation, Media Matters for America has compiled the top myths and falsehoods advanced by conservatives and Alito supporters -- and often repeated in the mainstream media -- that effectively obscure his record and distort concerns and questions raised by his critics.

#1: Alito's opinion in Farmer case is evidence that he would vote to uphold Roe

Broadcast and print media have repeatedly mischaracterized Alito's concurring opinion in the 2000 case Planned Parenthood of Central New Jersey v. Farmer as evidence that he has issued conflicting rulings on abortion. Specifically, these news outlets have juxtaposed Alito's decision in the Farmer case, in which he voted with the majority on the 3rd U.S. Circuit Court of Appeals to strike down a New Jersey law restricting certain late-term abortion procedures, with Alito's dissent in a 1991 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, in which he argued for upholding restrictions on abortion. But Alito's actions in the two cases are in no way inconsistent. His concurring opinion in Farmer provides no support for the claim that he would have ruled the same way if he were sitting on the Supreme Court. Indeed, he explicitly noted in a separate concurring opinion that he was voting to strike down the abortion ban only because he was obligated as an appellate judge to follow Supreme Court precedent.

In that concurrence, Alito wrote that he was voting to strike down the abortion ban only because he was bound to follow the Supreme Court's 2000 decision in Stenberg v. Carhart. In that case, the court struck down a Nebraska law restricting certain late-term abortion procedures as an undue burden, in part because the ban did not include an exception for the health of the pregnant woman. While the majority opinion in Farmer provided a detailed examination of the New Jersey law's constitutionality, Alito explicitly distanced himself from such analysis. In his concurring opinion, he wrote: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent." He went on to express the view that the court's only responsibility was to "explain why Carhart requires us to affirm the decision of the District Court." (The District Court overturned the New Jersey late-term abortion ban.)

As correspondent Jeffrey Toobin stated on the October 31 edition of CNN's American Morning, the Farmer opinion represented "a reluctant following of precedent" by Alito. Toobin also correctly noted that Alito would have "a lot more flexibility regarding precedent" as a Supreme Court justice.

#2: Alito's recusal pledge covered only a limited time frame

In reporting on Alito's refusal to recuse himself in two cases involving companies in which he owned stock, The New York Times has repeated without challenge Alito's claim that the pledge he made in 1990 to recuse himself in such cases was limited to "the initial period" after his confirmation. In fact, when Alito assured the Senate Judiciary Committee that he would recuse himself from cases involving companies in which he had a financial interest, he did not qualify the pledge in any way or suggest that it was time-limited.

In the questionnaire he submitted to the Senate during his 1990 confirmation, Alito made the unqualified promise to recuse himself from all cases involving companies tied to his "financial interests," such as Vanguard Group and Smith Barney:

I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney, or the First Federal Savings & Loan of Rochester, New York.

Despite this pledge, Alito participated in a 2002 case involving the Vanguard Group in which Shantee Maharaj, widow of a holder of Vanguard funds, charged, according to a November 1, 2005, Washington Post article, "that the company had improperly seized some private accounts and blocked the owner's widow from obtaining the funds they contained." Alito joined in a ruling in favor of Vanguard, but the decision was withdrawn after Maharaj complained that Alito's participation in the case was improper. Further, Alito ruled on a 1996 case involving Smith Barney.

The Times has also presented as undisputed the claim that Alito was not required to recuse himself in those cases. In fact, the propriety of Alito's participation in those cases is very much in dispute. George Washington University constitutional law professor Mary Cheh has said that "even though these are broadly held funds ... if you are aware of the holdings, you should recuse yourself because you stand to benefit one way or the other." Others such as University of Pennsylvania law school professor Geoffrey C. Hazard Jr. argue that Alito had no obligation to recuse himself from these cases. But even Hazard has conceded that Alito's 1990 pledge to recuse himself is "a basis for mild criticism," given that Alito has since engaged in conduct that is apparently at odds with it.

#3: Alito is a "strict constructionist"

Shortly after Alito's nomination, NBC Today co-host Katie Couric parroted his supporters' claim that he is a "strict constructionist." Such characterizations of Alito's judicial temperament promote the false dichotomy -- advanced by conservatives in support of Bush's judicial nominees -- between strict constructionists (who, supporters claim, will "interpret the Constitution literally") and "judicial activists" (whom supporters describe as "legislating from the bench"). Couric's comments also suggest that Alito's judicial philosophy is not a matter of dispute. But whether Alito is a true "strict constructionist" -- if scholars can even agree on a definition -- and a practitioner of judicial restraint is an issue very much in dispute. Indeed, some legal experts contend that by one measure of "activism"-- a judge's inclination to strike down statutes passed by Congress -- Alito's record is, in fact, that of a judicial activist.

A recent study by Yale law professor Paul Gewirtz and Yale Law School graduate Chad Golder suggests that Supreme Court justices often labeled "strict constructionists" (i.e., justices who purport to discern and apply the true original meaning of constitutional provisions) are the real judicial activists. Gewirtz and Golder ranked the justices according to how often each voted to strike down a law passed by Congress. They found that justices Antonin Scalia and Clarence Thomas, often considered the two most conservative justices on the high court, ranked first and third, respectively, in frequency of votes striking down acts of Congress. While their analysis concerned only Supreme Court justices, George Washington University law professor and New Republic legal affairs editor Jeffrey Rosen recently analyzed Alito's efforts to restrict congressional authority and similarly determined that Alito is an "activist."

In a November 22, 2004, New Republic column, Rosen defined "conservative activists" as those "determined to use the courts to strike at the heart of the regulatory state"; Rosen included Alito in that group. As evidence, he cited Alito's "troubling" view on the limited scope of congressional authority under the Commerce Clause as described in his "dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns." Rosen concluded that Alito's "lack of deference to Congress is unsettling."

Alito's colleagues on the bench have similarly criticized his apparent willingness to usurp congressional authority. For example, the majority opinion of the 3rd Circuit Court in the case United States v. Rybar also criticized Alito's dissenting view that Congress ought to be required to prove a link between regulation and interstate commerce in such cases. Third Circuit Chief Justice Dolores K. Sloviter wrote: "We know of no authority to support such a demand on Congress"; further, she noted that such a demand would require "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute."

#4: Alito's 1985 criticism of Roe mirrors legal scholars' opinion that the decision was right but incorrectly reasoned

In his 1985 application for the position of assistant attorney general in the Reagan Justice Department, Alito wrote that he was "proud of his contributions in cases in which the government has argued in the Supreme Court ... that the Constitution does not protect a right to an abortion." Numerous conservative commentators have attempted to downplay Alito's stated position on abortion by likening it to the common argument put forth by some more liberal legal experts that the decision in Roe v. Wade was correct, but the court's reasoning was wrong. In fact, there is a clear difference between arguing that a constitutional right to an abortion does not exist and questioning the particular constitutional principles upon which the court relied in reaching its decision.

Those likening these arguments have often put forth as examples the criticism of Roe articulated by Supreme Court Justice Ruth Bader Ginsburg. Some also cite comments made by author and former Supreme Court clerk Edward Lazarus. But in contrast to Alito, both Ginsburg and Lazarus have clearly stated in their writings on the subject that they believe the Constitution protects a woman's right to an abortion.

Indeed, in a 1984 lecture, Ginsburg strongly criticized the basis for the court's affirmation of a constitutional right to an abortion. She argued that, while the Supreme Court was right to strike down the Texas law in question, it should have done so on the basis of the Constitution's equal protection clause, rather than on an unstated constitutional right to privacy. But Ginsburg affirmed her belief in a constitutional right to abortion during her 1993 confirmation hearings.

In an October 2002 column, Lazarus asserted that "[a]s a matter of constitutional interpretation and judicial method, Roe borders on the indefensible." But he went on to write, "I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it."

#5: Alito's 1985 job application does not represent his "personal views"

Some media figures have further defended Alito's controversial 1985 job application by claiming that he was not expressing his "personal views" when he wrote that "the Constitution does not protect a right to an abortion." For example, on the November 14, 2005, edition of Fox News' Special Report, host Brit Hume asserted that "these were not personal views he was discussing," but rather "the legal arguments that he made as a lawyer in the Reagan Justice Department."

In fact, Alito made clear in the application that he "strongly" and "personally" believed in the legal arguments in question:

Most recently, it has been an honor and a source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.

#6: The "Ginsburg precedent" should apply to the Democrats' handling of Alito

As occurred following the 2005 nomination of Chief Justice John G. Roberts Jr., reporters and conservative commentators have suggested that Senate Democrats should set aside ideological concerns in considering the Alito nomination because Senate Republicans did just that in their nearly unanimous 1993 confirmation of Ginsburg. This deceptive argument -- the so-called "Ginsburg precedent" -- was recently revived by NBC host Tim Russert and The 700 Club host Pat Robertson. The argument rests, however, on the false claim that Republicans confirmed Ginsburg despite her reputation as a liberal. In fact, she had established a largely moderate record during her 13 years on the U.S. Court of Appeals for the D.C. Circuit and was recommended to President Clinton by a senior Republican on the Senate Judiciary Committee.

Indeed, Ginsburg was considered "a consensus choice, pushed by Republicans and accepted by the president in large part because he didn't want to take on a big fight," as Ruth Marcus wrote in her November 15, 2005, Washington Post column. Sen. Orrin Hatch (R-UT) -- then the ranking Republican member of the Senate Judiciary Committee -- claimed credit in his autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), for suggesting Ginsburg as a Supreme Court nominee in 1993 after discouraging Clinton from nominating then-Secretary of the Interior Bruce Babbitt. Hatch even wrote of Ginsburg: "Not many people realize this, but her voting record at the appellate court was very similar to that of another subsequent Supreme Court Justice, Antonin Scalia" [Page 263]. This assessment of Ginsburg's reputation as a moderate judge was substantiated by a study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges -- such as Kenneth W. Starr and Laurence H. Silberman -- than those appointed by Democrats.

Two major newspapers -- the Los Angeles Times and The Washington Post -- reported on January 6 that President Bush met the previous day with a bipartisan group of 13 former secretaries of state and defense to discuss Iraq war policy at the White House for one hour. But neither newspaper's coverage of the meeting noted, as the The New York Times did, that most of the time was devoted to a briefing on the war -- described by The New York Times as "upbeat" -- by Gen. George W. Casey Jr., the senior U.S. commander in Iraq, and U.S. ambassador to Iraq Zalmay Khalilzad, with only 5 to 10 minutes of actual discussion among Bush and his guests.

The Los Angeles Times article by staff writer James Gerstenzang described the meeting as having "lasted about an hour" and quoted Bush as saying that it had given him "a chance to listen to [the former secretaries'] concerns, their suggestions about the way forward." But the paper did not note the length of the briefing by Casey and Khalilzad, leaving readers with the false impression that Bush devoted the full hour to discussion.

An article in The Washington Post by staff writer Jim VandeHei also described the meeting as lasting an hour but did not indicate how much time Bush apparently allowed for discussion. VandeHei wrote that White House officials "believed they accomplished their twin goals of portraying a more solicitous president and underscoring the broad bipartisan agreement that a speedy withdrawal from Iraq would be unwise and potentially devastating to U.S. interests."

In contrast, staff writer David E. Sanger of The New York Times noted that "if it was a bipartisan consultation, as advertised by the White House, it was a brief one," and that Bush "allowed 5 to 10 minutes for interchange with the group." The Times also described the briefing as being "exceedingly upbeat" and lasting approximately 40 minutes.

From the January 6 article in The New York Times:

Colin L. Powell said nothing -- a silence that spoke volumes to many in the White House on Thursday morning.

His predecessor, Madeleine K. Albright, a bit stirred up after hearing an exceedingly upbeat 40-minute briefing to 13 former secretaries of state and defense about how well things are going in Iraq, asked President Bush whether, with the war "taking up all the energy" of his foreign policy team, he had let the nuclear programs in Iran and North Korea spin out of control and allowed Latin America and China policy suffer by neglect.

[...]

But if it was a bipartisan consultation, as advertised by the White House, it was a brief one. Mr. Bush allowed 5 to 10 minutes for interchange with the group -- which included three veterans of the Vietnam era: Robert S. McNamara, Melvin R. Laird and James R. Schlesinger -- before herding the whole group into the Oval Office for what he called a "family picture."

Those who wanted to impart more wisdom to the current occupants of the White House were sent back across the hall to meet again with Stephen J. Hadley, the national security adviser, and Gen. Peter Pace, the chairman of the Joint Chiefs of Staff. But as several of the participants noted, by that time Mr. Bush, Vice President Dick Cheney, Secretary of State Condoleezza Rice and Defense Secretary Donald H. Rumsfeld had gone on to other meetings.

[...]

The session Thursday morning began with briefings from Gen. George W. Casey Jr., the senior American commander in Iraq and, by secure video connection from Baghdad, Zalmay Khalilzad, the American ambassador there.

"The message was, briefly stated, that the political process is working," said William J. Perry, who served as defense secretary under President Clinton.

[...]

In the few minutes that he engaged with his guests, Mr. Bush seemed to call on the oldest officials present: Mr. McNamara, whose own second-guessing about his decisions on Vietnam have now become legendary; Mr. Laird; and George P. Shultz, secretary of state to President Reagan and still an important behind-the-scenes adviser to some officials in the Bush administration. (Henry Kissinger, whom Mr. Bush also consults periodically, had to cancel at the last minute; Warren M. Christopher and Caspar W. Weinberger could not make it.)

From the January 6 Los Angeles Times article:

Bush and a number of the participants said some of them disagreed about whether he was right to invade Iraq but agreed that, with American forces deployed throughout the country, the United States had to be certain of success.

The president said the meeting, which had been scheduled for 45 minutes but lasted about an hour, had given him "a chance to listen to their concerns, their suggestions about the way forward."

"Not everybody around this table agrees with my decision to go into Iraq. I fully understand that," Bush told reporters during a photo session at the end of the meeting. "But these are good, solid Americans who understand that we've got to succeed now that we're there.

"We take to heart the advice," he said.

From the January 6 article in The Washington Post:

The session in the Roosevelt Room came complete with a photo opportunity and presidential statement after Bush spent an hour with such prominent foreign policy voices as Robert S. McNamara, a Democratic secretary of defense during the Vietnam era 40 years ago, and James A. Baker III, the secretary of state for Bush's father during the Persian Gulf War of the early 1990s.

While the president was challenged once or twice in the meeting, according to participants, White House aides believed they accomplished their twin goals of portraying a more solicitous president and underscoring the broad bipartisan agreement that a speedy withdrawal from Iraq would be unwise and potentially devastating to U.S. interests.

On the January 5 broadcast of Christian Broadcasting Network's (CBN) The 700 Club, host Pat Robertson falsely claimed that Jamie Gorelick, who served as deputy attorney general during the Clinton administration, "went before Congress and said the president has absolute authority to conduct wiretaps in war against enemy agents if they're in this country. It's perfectly legal." Robertson was defending President Bush's authorization of warrantless domestic electronic surveillance by the National Security Agency (NSA) -- an apparent violation of the Foreign Intelligence Surveillance Act (FISA) of 1978.

Robertson was apparently referring to Gorelick's July 14, 1994, testimony before the House Permanent Select Committee on Intelligence. But in that hearing, Gorelick never said that the president could authorize warrantless domestic electronic surveillance. Rather, she told the committee that the president had the "inherent authority to conduct warrantless physical searches" -- which, unlike electronic surveillance -- were not covered by FISA at the time. A Media Matters for America review of Gorelick's Clinton-era testimony available in the Nexis database uncovered no evidence that Gorelick ever told Congress that the president had absolute authority to order domestic wiretaps.*

Gorelick's 1994 testimony was first highlighted in the context of Bush's domestic surveillance program in a December 20 National Review article by White House correspondent Byron York, headlined "Clinton Claimed Authority to Order No-Warrant Searches." Since then, several conservative commentators have used Gorelick's statement about physical searches to falsely claim that she asserted the same power that the Bush administration has asserted in defense of its electronic surveillance program.

In her testimony, Gorelick noted that, in contrast with physical searches, FISA did address electronic surveillance. She stated: "In FISA, the privacy interests of individuals are protected not by mandatory notice [to the surveillance target] but through in-depth oversight of foreign intelligence electronic surveillance by all three branches of government and by expanded minimization procedures."

At the same hearing, Gorelick testified in support of amending FISA to create a warrant requirement for physical searches. Gorelick stated that "the administration and the attorney general support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes." Gorelick further stated that "the Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation." In October 1994, Congress passed legislation to require FISA warrants for physical searches. In February 1995, Clinton issued an executive order that implemented the new FISA requirements on physical searches.

Similarly, host Lou Dobbs, on the January 4 edition of CNN's Lou Dobbs Tonight, failed to challenge former Bush administration official Ron Christie's claim that "President Clinton's deputy Attorney General Jamie Gorelick said that the president has the inherent constitutional ability to order wiretapped searches for electronics eavesdropping purposes." Like Robertson, Christie -- who served as a special assistant to President Bush and policy adviser to Vice President Dick Cheney -- was defending Bush's domestic surveillance program. Though Christie did not specifically cite Gorelick's congressional testimony, he did not offer any evidence or citation to back up his claim.

Christie also baselessly claimed that "President Clinton exercised the same authority" as Bush. In a later segment of the program, during an interview with James Bamford, author of A Pretext for War: 9/11, Iraq, and the Abuse of America's Intelligence Agencies (Doubleday, 2004), Dobbs asked about this comment. "That's not true," Bamford answered. "I mean, the Clinton administration never went around the FISA court." However, Dobbs did not ask Bamford about Christie's claim regarding Gorelick.

From the January 5 broadcast of CBN's The 700 Club:

ROBERTSON: Jamie Gorelick, assistant attorney general under the Clinton administration, went before Congress and said the president has absolute authority to conduct wiretaps in war against enemy agents if they're in this country. It's perfectly legal. And there was no furor at all. I mean, what's the big deal about Bush doing the same thing to protect Americans from those who are trying to blow us up?

From the January 4 edition of CNN's Lou Dobbs Tonight:

DOBBS: Why do you believe that this is a justified action on the part of the administration? And when I say justified action, the way in which they've gone about it.

CHRISTIE: I think it's justified because the president laid out very clearly to the American people that there are certain instances that Al Qaeda or members of other terrorist organizations want to hurt us. They might make one phone call, either to the United States or to coordinate with their terrorist colleagues.

What the president wanted to do was to order the NSA in a highly classified manner to allow them to intercept these conversations with either Al Qaeda members abroad or making that call into the United States.

Not disrupting American civil liberties. Not listening to everybody in the United States and their private phone calls, but only in limited circumstance. And Lou, I would stress that this is not an unprecedented authority. President Clinton exercised the same authority, and President Clinton's deputy attorney general Jamie Gorelick said that the president has the inherent constitutional ability to order wiretapped searches for electronics eavesdropping purposes.

[...]

DOBBS: And you heard Ron Christie say that other administrations have done precisely the same thing. He cited the Clinton administration, your thoughts?

BAMFORD: That's not true. I mean, the Clinton administration never went around the FISA court. They went right through -- they went to the FISA to get warrants. Nobody since the FISA court was created in 1978 has ever gone around the FISA court. That's why you have a judge quitting from the FISA court because of this happening.

* Nexis search of "CQ Congressional Testimony," "CQ Transcriptions," "Federal News Service," "National Narrowcast Network Transcripts," and "FDCH News Service Capitol Report" for "Jamie S. Gorelick and (wiret! or wire tap! or surveillance or eaves! or physical or electronic)"

During a discussion with a caller on the January 4 broadcast of his nationally syndicated radio show, Bill O'Reilly again claimed that he wasn't "vilifying" Cindy Sheehan, an anti-war protester whose son was killed in Iraq. O'Reilly stated: "I'm not vilifying the woman. I play her comments, and I tell you the truth." Continuing, O'Reilly claimed that Sheehan was being "run by far-left elements who are using her, and she's dumb enough to allow it to happen." O'Reilly then added: "It's not a vilification, it's a fact."

O'Reilly was responding to a caller who stated, "I think it's wrong to attack and vilify someone like Sheehan." The comment came during a discussion of O'Reilly's guest appearance on the January 3 edition of CBS' Late Show with David Letterman in which host David Letterman challenged O'Reilly's criticism of Sheehan.

As Media Matters for America documented (here and here), O'Reilly has accused Sheehan, among other things, of behavior that "other American families who have lost sons and daughters in Iraq" think "borders on treasonous" and has included her as a member of his "coward list."

Sheehan became a national figure as a result of a 26-day vigil outside of President Bush's Crawford, Texas, ranch in August 2005, helping to spark a national anti-war movement.

From the January 4 broadcast of Westwood One's The Radio Factor with Bill O'Reilly:

CALLER: First, I want to commend you for even going on the Letterman show. People like, I think, [Rush] Limbaugh and [Sean] Hannity don't have the guts to do it. At least you did it, so I commend you for that. But I -- I tend to side with Letterman's viewpoints, particularly the Cindy Sheehan issue. I think it's wrong to attack and vilify someone like Sheehan. And you did the same thing with [son of 9-11 terrorist attack victim] Jeremy Glick. I think it's deplorable. Let me ask you a question --

O'REILLY: Well, I mean, you just --

[crosstalk]

O'REILLY: Let me ask you a question here. You just heard her sound bite saying that terrorists who kill babies, women, anybody, are freedom fighters. Do you believe that?

CALLER: Well --

O'REILLY: Do you believe that?

CALLER: I don't agree with it.

O'REILLY: OK.

CALLER: However, I don't think it is fair to attack and vilify her --

O'REILLY: Of course -- I'm not attacking and vilifying. I'm --

CALLER: Let me ask you a question.

O'REILLY: Hold it, hold it. You sh -- all right, get rid of him. I'm not attacking and vilifying anybody. That comment that she's -- that Cindy Sheehan puts forth to the American people that these people are "freedom fighters." Do you know how painful that is to people who have lost soldiers and Marines in Iraq? Yeah, she lost her son. We feel bad. I'm not vilifying the woman. I play her comments, and I tell you the truth. She's run by far-left elements who are using her, and she's dumb enough to allow it to happen. It's not a vilification, it's a fact.

From the January 3 broadcast of CBS' Late Show with David Letterman:

O'REILLY: The soldiers and Marines are noble, they're not terrorists. And when people call them that, like Cindy Sheehan -- called the insurgents "freedom fighters," we don't like that. It is a vitally important time in American history, and we should all take it very seriously and be very careful about what we say.

LETTERMAN: Well, and you should be very careful with what you say also.

O'REILLLY: Give me an example. Give me an example.

LETTERMAN: How can you possibly take exception with the motivation and the position of someone like Cindy Sheehan?

O'REILLY: Because I believe she's run by far-left elements in this country. I feel bad for the woman.

LETTERMAN: Have you lost family members in armed conflict?

O'REILLY: No, I have not.

LETTERMAN: Well, then, you can hardly speak for her, can you?

O'REILLY: All right, I'm not speaking for her. All right, let me ask you this question.

LETTERMAN: Let's go back to your little red and green stories.

O'REILLY: Whoa, whoa, whoa, this is important, this is important. Cindy Sheehan lost a son, a professional soldier in Iraq, correct? She has a right to grieve any way she wants, she has a right to say whatever she wants. When she says to the public that the insurgents and terrorists are freedom fighters, how do you think, David Letterman, that makes people who lost loved ones by these people blowing the hell out of them -- how do you think they feel? What about their feelings, sir?

LETTERMAN: What about -- why are we there in the first place?

O'REILLY: We're there --

LETTERMAN: The president, the president himself, less than a month ago, said we are there because of a mistake made in intelligence. Well, whose -- whose intelligence? Was it just, somebody got off a bus and handed it to him? No, it was the intelligence gathered by his administration.

O'REILLY: By the CIA.

LETTERMAN: Yeah, so why are we there in the first place? I agree to you, with you that we have to support the troops. They are there, they are the best and the brightest of this country. There's no doubt about that. And I also agree that now we're in it, it's going to take a long, long time. People who expect it to be solved and wrapped up in a couple of years -- unrealistic, it's not going to happen. However, however, that does not eliminate the legitimate speculation and concern and questioning of why the hell are we there to begin with?

O'REILLY: If you want to question that and then revamp an intelligence agency that's obviously flawed -- the CIA, OK? But remember, MI6 in Britain said the same thing. [Vladimir] Putin's people in Russia said the same thing, and so did [Hosni] Mubarak's intelligence agency in Egypt.

LETTERMAN: But does that make it all right?

O'REILLY: No --

LETTERMAN: That the intelligence across the board makes it all right that we're there?

O'REILLY: It doesn't make it right. Mistakes are made --

LETTERMAN: I'm very concerned about people like yourself who don't have nothing but endless sympathy for a woman like Cindy Sheehan, honest to Christ.

O'REILLY: No, I'm sorry.

LETTERMAN: Honest to Christ.

O'REILLY: No way --

LETTERMAN: I just --

O'REILLY: No way you're gonna get me -- no way that a terrorist who blows up women and children --

LETTERMAN: You have children?

O'REILLY: Yes, I do, and they're the same age as yours. No way a terrorist who blows up women and children is gonna be called a freedom fighter on my program.

Nationally syndicated radio host Rush Limbaugh falsely claimed that the Foreign Intelligence Surveillance Court (established by the 1978 Foreign Intelligence Surveillance Act, or FISA) denied the FBI a warrant to access the laptop computer of Zacarias Moussaoui -- the alleged "20th hijacker" in the September 11, 2001, terrorist plot -- immediately prior to the attacks. Limbaugh asked: "[W]hy aren't some of these judges investigated and held to account for their secret decisions?" In fact, the Moussaoui case never reached the FISA court: The FBI determined at the time that there was insufficient evidence to petition FISA for a warrant. A bipartisan Senate Judiciary Committee later concluded the FBI did have sufficient evidence, but had set too high a standard for establishing probable cause.

On the January 4 broadcast of The Rush Limbaugh Show, Limbaugh joined a caller in denouncing the "federal judge" who allegedly barred the FBI from accessing Moussaoui's computer:

CALLER: Good afternoon, Rush. One of the things that I think stands out most and it's -- it's not being talked about: We cannot go back to the courts and -- and (inaudible) to get their approval. That would lead us to the 21st [sic] hijacker and we couldn't get into his laptop 'cause we were forbidden by a judge to get in that and, "Allah, welcome, here comes 9-11."

LIMBAUGH: Haha! That's a --

CALLER: 'Cause they could not get in there.

LIMBAUGH: -- you're talking about Zacarias Moussaoui.

CALLER: That is correct, and we were on -- we were barred by a federal judge from getting into his computer. So, that's the type of protection these Democrats, these demagogues in, --

LIMBAUGH: That's exactly right. That's the right to privacy that they're talking about.

CALLER: Yeah. And then the other thing --

LIMBAUGH: He was and that -- that is an excellent point because it was all -- that was raised by the Minneapolis FBI office, I think, after 9-11; [former FBI agent] Coleen Rowley was her name. But they had the guy's laptop and they wanted to get into it, wanted to connect the dots. Judge wouldn't let them do it. You know, that -- that actually -- it -- it -- great point. Why aren't -- why aren't some of these judges investigated and held to account for their secret decisions? Everybody else is out there getting mad at the president for what he's doing in secret, the NSA for doing what it's doing in secret, but how about these judges?

CALLER: That judge had no right --

LIMBAUGH: As -- as you said, that may very well have prevented us from thwarting the 9-11 hijackers if we could have gotten into Moussaoui's computer. All this talk about the great FISA court and how judges can do no wrong and need to be involved in the process; what's their record been when their inputs been used to influence our national security? That -- that is an excellent point.

But, as Media Matters for America noted, it was the FBI -- not the FISA court -- that determined the evidence against Moussaoui was insufficient to obtain a warrant. A February 2003 Senate Judiciary Committee report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), found that the FBI's evidence against Moussaoui was, in fact, sufficient, but that the FBI attorneys handling the case employed an "unnecessarily high standard" for probable cause that exceeded FISA's own standard. Rowley, to whom Limbaugh referred, made a similar point in the full version of a December 24 letter published in The Washington Post:

The bottom line is that THE FISA LAW ITSELF WAS NOT THE REASON THE FBI FAILED TO INSPECT MOUSSAOUI'S PERSONAL EFFECTS AND COMPUTER FILES. Rather, the faulty interpretations and failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation. [emphasis Rowley's]

Fox News correspondent Major Garrett stated that "neither [former House Majority Leader Tom] DeLay [R-TX] nor his aides have been charged" in the investigation surrounding former lobbyist Jack Abramoff. In fact, while none of DeLay's current aides has been charged, Michael Scanlon, former DeLay communications director and subsequently Abramoff's lobbying partner, pleaded guilty to federal charges of bribery and fraud. Another former DeLay aide has also reportedly been implicated in Abramoff's plea agreement.

On November 21, 2005, Scanlon reached a plea bargain with prosecutors and agreed to plead guilty to conspiring to bribe several public officials, including a member of Congess. He also agreed to pay back more than $19 million he fraudulently charged Indian tribal clients. In return, Scanlon will help the Justice Department with its investigation into possible criminal activities of elected officials and staffers on Capitol Hill and in the Bush administration.

Another former DeLay aide, identified in Abramoff's plea agreement as "Staffer A," allegedly had an agreement with Abramoff "to perform a series of official acts, including stopping legislation involving internet gaming and opposing postal rate increases." Business Week reporter Eamon Javers and The New York Times have subsequently noted that the likely identity of "Staffer A" is Tony C. Rudy, former deputy chief of staff to DeLay. Additionally, the indictment states that Abramoff provided as compensation "10 monthly payments totaling $50,000 through a nonprofit entity to the wife of Staffer A." In return, Rudy allegedly helped kill a bill opposed by eLottery Inc, an Abramoff client. Subsequent reporting by The Washington Post has confirmed that the two former DeLay aides, Scanlon and Rudy, have been implicated in criminal activity. Rudy left DeLay's office in 2001 for a lobbying position with Abramoff at the firm Greenberg Traurig.

From the January 4 edition of Fox News' Special Report with Brit Hume:

HUME: Prominent Washington lobbyist Jack Abramoff, who pleaded guilty to three felony counts in Washington yesterday, was in Miami today to plead guilty to two more. Fox News correspondent Major Garrett reports these latest charges arise from Abramoff's efforts to purchase a casino cruise line.

GARRETT: Jack Abramoff entering federal court in Miami to plead guilty to a second set of felonies, this time conspiracy to commit wire fraud and mail fraud, crimes arising from Abramoff's fraudulent effort to purchase SunCruz Casinos, a casino cruise line. Abramoff vowed to assist prosecutors in hopes of lowering his sentence, now a minimum of four years, eight months.

R. ALEXANDER ACOSTA (U.S. attorney): To the extent that he cooperates, we are willing to work with him and to consider how to proceed.

GARRETT: Abramoff cut a similar deal Tuesday when he pled guilty in Washington to three felonies. His testimony could lead to bribery or corruption charges against administration figures, powerful lawmakers, or top congressional staff.

NORMAN J. ORNSTEIN (American Enterprise Institute resident scholar): This is much bigger than one rogue lobbyist and a handful of greedy members who took bribes. This is really about an abuse of power that goes into some depth, with lobbyists having incredible access to members of Congress and people in the administration holding up clients for tens of millions of dollars.

GARRETT: Abramoff has pled guilty to bilking five Indian tribes of millions of dollars. He also leaned on these and other clients to donate millions to members of Congress. According to the Center for Responsive Politics, clients have made more than $4.4 million in political contributions since 2000. Republican committees or lawmakers received $2.8 million, Democratic committees or candidates, $1.5 million

ROGER STONE (Republican strategist): The Abramoff scandal has the capacity to take down members of Congress of both parties, Republican and Democrats.

GARRETT: Abramoff is an associate of former House Majority Leader Tom DeLay, and former DeLay aides have been tied to Abramoff's criminal deeds. Neither DeLay nor his aides have been charged. DeLay has denied wrongdoing even as he fights money-laundering charges in Texas. The question now: Will Abramoff's case complicate DeLay's efforts to regain his majority leader post?

In a discussion about a January 4 press conference held by women's groups opposing the confirmation of Supreme Court nominee Samuel A. Alito Jr., nationally syndicated radio host Rush Limbaugh referred to the participants as "feminazis," stating: "Keep these left-wing socialist freaks out there. The feminazis, the 1960s feminazis." This is the third example that Media Matters for America has documented of Limbaugh's use of the term since he declared on June 22, 2005, that "I haven't used that term on this program in years." On his August 29, 2005, broadcast, Limbaugh credited "militant feminazis" for an alleged lack of majority support for abortion rights in the United States, and on his August 9, 2005, broadcast, he stated that abortion rights activists are "the original feminazis." Media Matters has documented his use of the term "feminazis" on numerous other occasions since March 2004.

From the January 4 broadcast of The Rush Limbaugh Show:

LIMBAUGH: You know what I say, folks? I say keep these freaks out there. Keep these left-wing socialist freaks out there. The feminazis, the 1960s feminazis more, mean more [Sen.] Chuck Schumer [D-NY], more [Sen.] Dick Durbin [D-IL]. Keep 'em out there front and center, making the case and telling us who these people are.

In a January 3 Washington Times article and again in a January 5 "Commentary" column, Washington Times chief political correspondent Donald Lambro used the results of a nearly two-month-old survey commissioned by the Republican party to claim "polls show" that Republican New Jersey state Sen. Thomas H. Kean Jr. leads Democrat and U.S. Senate-designate Robert Menendez by 13 points in the 2006 New Jersey senatorial race. Lambro's data was apparently based on a survey conducted by a Republican polling group for the National Republican Senatorial Committee (NRSC) in November 2005 -- a fact he did not disclose to his readers. In fact, more recent, independent polls show Menendez leading Kean among New Jersey voters.

Menendez, a member of Congress representing New Jersey's 13th District, was appointed by Governor-elect Jon S. Corzine to fill Corzine's current U.S. Senate seat for the remainder of his Senate term.

Lambro wrote in his January 3 Times article:

New Jersey polls show Republican state Sen. Thomas H. Kean Jr., son of the popular former governor, with a 13-point lead over incoming Democratic Sen. Robert Menendez, appointed to fill the unexpired term of Jon Corzine, who resigned after he was elected governor.

In his January 5 "Commentary" column for the Times, Lambro wrote:

Right now, in fact, polls show Republican state Sen. Thomas H. Kean Jr., son of the popular former governor, with a 13-point lead over Robert Menendez, the Democratic congressman Mr. Corzine named to fill the rest of his unexpired term. Other Democrats are about to jump in the race, raising the likelihood of a divisive party primary, while Republicans are energized and united behind Mr. Kean's candidacy.

Lambro was apparently referring to a poll conducted by McLaughlin & Associates for the NRSC from November 13-15, 2005, which showed Kean leading Menendez 31 percent to 18 percent. The poll asked 300 "likely voters": "If the election for U.S. senator were held today, who would you vote for between Tom Kean Jr., the Republican, and Bob Menendez, the Democrat?" McLaughlin & Associates is headed by CEO John McLaughlin, a "strategic consultant and pollster" whose bio lists campaigns he has worked for -- all Republican -- and partner Jim McLaughlin, who "was one of only two Republican pollsters named as a part of Roll Call newspaper's Fabulous Fifty for his work as the NRCC's [National Republican Congressional Committee] lead pollster in their successful campaign to retain the GOP majority in Congress."

More recent independent polls show very different results from those of the partisan NRSC survey. A Quinnipiac University poll conducted December 10-13 asked 689 registered voters: "If the 2006 election for United States senator were being held today and the candidates were Robert Menendez the Democrat and Tom Kean Jr. the Republican, for whom would you vote?" Forty-four percent favored Menendez, compared with Kean's 38 percent; the previous month's Quinnipiac poll showed Menendez leading Kean 41 percent to 39 percent. A Rasmussen survey of 500 "likely voters" conducted December 7 showed Menendez leading Kean 38 percent to 34 percent.

Lambro's misleading citation of polling data is nothing new. Media Matters for America has exposed Lambro inaccurately citing exit poll data from the 2004 presidential election; selectively citing poll data to claim that Democrats "aren't doing any better" in the polls than Republicans; and twisting data from an already flawed poll to suggest that Americans favor remaining in Iraq.

In an article in the January 2 issue of The Weekly Standard, Gary Schmitt, a resident scholar and director at the American Enterprise Institute, defended President Bush's decision to authorize domestic wiretapping without obtaining court orders required by the Foreign Intelligence Surveillance Act (FISA) by citing two "known instances in which FISA's 'probable cause' standard prevented the government from getting warrants": the investigations of Al Qaeda operative Zacarias Moussaoui and then-suspected Chinese spy Wen Ho Lee. While Schmitt suggested that the failure to obtain warrants in both cases was the result of FISA's overly stringent probable-cause standard, formal reviews of these cases determined that it was the FBI and the Department of Justice's (DOJ) misinterpretation of this standard that prevented the FBI from acquiring the warrants in question.

Further, Schmitt claimed that there is "irony" in "so many liberals ... now defending FISA." But, he did not explain what he suggested the inconsistency was in having criticized FISA as a "rubber stamp" and now criticizing Bush for flouting even its lax requirements.

In his article, Schmitt claimed that the FISA standard for granting warrants requires such a high degree of proof regarding the target's connections to terrorist or espionage activities that the process "is less about collecting intelligence than confirming intelligence":

Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the "facts and circumstances relied upon ... to justify [the attorney general's] belief that the target is an agent of a foreign power" or "engages ... in international terrorism." And the FISA judges can only grant the warrant when "there is probable cause to believe that the target" is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence.

Schmitt then cited the Moussaoui case as an example of how FISA's purportedly stringent standard resulted in the government's "inability to aggressively pursue suspected foreign agents on U.S. soil":

This shouldn't be news. The inability of the FBI to aggressively pursue suspected foreign agents on U.S. soil was well aired in the 9/11 post--mortems, especially the notorious case of the "20th hijacker," French Moroccan Zacarias Moussaoui. His laptop was in the possession of FBI agents in Minneapolis in August 2001 but, for want of a warrant, was not searched before 9/11.

Though much of the court's workings are classified, there are known instances in which FISA's "probable cause" standard prevented the government from getting warrants where common sense made it perfectly clear surveillance was justified.

Schmitt suggested that the "want of a warrant" in the Moussaoui case was the result of the government's failure to meet FISA's probable-cause standard. In fact, as Media Matters for America noted in response to Schmitt's earlier use of this example -- in a December 20 Washington Post op-ed he co-authored with Weekly Standard editor William Kristol -- the government's failure lay, according to a bipartisan Senate report, in self-imposing overly stringent requirements for establishing probable cause. That Senate Judiciary Committee report, released in February 2003, found that the FBI attorneys who concluded there was insufficient evidence to request a FISA warrant for Moussaoui's laptop had employed an "unnecessarily high standard" for probable cause -- one that exceeded the legal requirements set by FISA. The report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), concluded that there appeared "to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application."

Former FBI agent Coleen Rowley recently reiterated this point in the full version of the December 24 letter that was published by the Post rebutting Kristol and Schmitt's December 20 op-ed:

The bottom line is that THE FISA LAW ITSELF WAS NOT THE REASON THE FBI FAILED TO INSPECT MOUSSAOUI'S PERSONAL EFFECTS AND COMPUTER FILES. Rather, the faulty interpretations and failure to share and analyze intelligence sufficiently is what enabled Moussaoui to escape further investigation. [emphasis Rowley's]

In his Weekly Standard article, Schmitt went on to cite the investigation of nuclear scientist Wen Ho Lee as another instance in which FISA "prevented the government from getting warrants":

Notably, there was the case of Wen Ho Lee, the Chinese--American scientist who worked at the Los Alamos nuclear weapons lab. Lee downloaded nuclear codes and databases from the lab's secure computers. "In the wrong hands," his boss noted, such information could "change the global strategic balance." Despite this, and the fact that Lee had access to a warhead design that had leaked to the Chinese, had visited China in the period when Beijing apparently acquired the data, and had obvious friendly ties to Chinese nuclear scientists, it was judged that a FISA warrant could not be obtained. It didn't matter how grave the damage might be if Lee was actually engaged in espionage; what mattered was the government had no real evidence that Lee was a likely spy.

But as with the Moussaoui case, a subsequent review of the handling of the application in the Lee case determined that the FBI had, in fact, "established probable cause to believe that Wen Ho Lee was an agent of a foreign power" and therefore, subject to surveillance. The Attorney General's Review Team on the Handling of the Los Alamos National Laboratory Investigation was headed by Assistant United States Attorney Randy I. Bellows, then-Senior Litigation Counsel in the Office of the United States Attorney for the Eastern District of Virginia. The "Bellows Report," submitted on May 12, 2000, concluded that the evidence presented by the FBI to the DOJ's Office of Intelligence Policy Review (OIPR) should have resulted in OIPR submitting the application to the FISA court and, ultimately, should have led to the issuance of a FISA warrant:

The final draft FISA application (Draft #3), on its face, established probable cause to believe that Wen Ho Lee was an agent of a foreign power, that is to say, a United States person currently engaged in clandestine intelligence gathering activities for or on behalf of the PRC which activities involved or might involve violations of the criminal laws of the United States [...] Given what the FBI and OIPR knew at the time, it should have resulted in the submission of a FISA application, and the issuance of a FISA order.

The report further stated that OIPR personnel -- much like the FBI attorneys who blocked the Moussaoui application -- had applied "too conservative" an approach in their handling of the Lee application and had insisted "on a bit more [evidence] than the law requires."

On the January 3 edition of Westwood One's The Radio Factor, host Bill O'Reilly mischaracterized a wager he proposed to Newsweek senior editor Jonathan Alter during Alter's December 21 appearance on the show. On the January 3 broadcast of the Factor, O'Reilly claimed that Alter "wouldn't take the bet" that President Bush "has the legal authority" to wiretap U.S. citizens. In fact, on the December 21 broadcast of the show, O'Reilly did not offer to wager whether Bush's domestic wiretap program was legal or illegal, but whether Bush would ultimately be convicted of a crime.

From the December 21 edition of Westwood One's The Radio Factor with Bill O'Reilly:

O'REILLY: You convicted the guy [President Bush] -- you convicted the guy of a crime -- and I wanna go on right now.

ALTER: I didn't convict him of anything.

O'REILLY: I wanna bet you -- I wanna bet you $10,000 to go to Habitat for Humanity -- you think that's a worthy charity, I'm sure, right?

ALTER: I do, yeah.

O'REILLY: I will bet you $10,000 that the president is not convicted of anything, and it doesn't even come to that.

ALTER: Oh, I completely agree with you. I won't take that bet.

From the January 3 edition of Westwood One's The Radio Factor with Bill O'Reilly:

O'REILLY: You know, this eavesdropping NSA [National Security Agency] thing, there are two strong sides to this story. There are two strong sides to the story. It looks to me, examining all arguments, that President Bush had the legal authority to do what he did, and I think that will prevail. I'll make a prediction right now, and I -- I tried to bet Jonathan Alter a couple of weeks ago on this radio program $10,000 it would prevail -- he wouldn't take the bet, although he wrote in Newsweek magazine, "Bush knows he's a lawbreaker," which is a bunch of garbage. It's just not true. So, I put Alter on the spot and said: "I'll bet you ten grand that he has the legal authority to do it." Alter wouldn't take the bet. What does that tell you? And the bet wasn't money for us, it was for charity, OK? What does that tell you?

On the January 4 edition of Fox News' Your World with Neil Cavuto, Fox News political contributor and former Speaker of the House of Representatives Newt Gingrich (R-GA) asserted that the Democratic Party's constituency "is, frankly, much more tolerant of corruption." Gingrich argued that the current corruption scandal regarding former Washington lobbyist Jack Abramoff is "much more dangerous for the Republican Party because we're the natural party of reform."

In her January 5 column on OpinionJournal.com, Wall Street Journal contributing editor Peggy Noonan, a presidential speechwriter during the Reagan and first Bush administrations, made a similar claim, contending that "the public expects the party that loves big government to be pretty good at finagling government, playing with it, using it for its own ends," as opposed to "the anti-big-government party" which "isn't supposed to be so good at it [finagling government]."

From the January 4 edition of Fox News' Your World with Neil Cavuto:

CAVUTO: Do you see a situation at all where this becomes the defining issue of the midterm elections?

GINGRICH: I think there'd have to be an awful lot more revelations. We went through the Abscam scandal in the early 1980s. It wasn't defining. We went through [former House] Speaker [Jim] Wright resigning. That wasn't defining. We went through the post office scandals. That wasn't really defining. You can have a lot these kind of problems and it makes people disgusted with Congress, but by itself, it's not defining. But it's much more dangerous for the Republican Party because we're the natural party of reform. Our base is the working, tax-paying American who doesn't like big government, doesn't particularly like Washington, and doesn't like this kind of behavior. And so, I think, we run a much bigger risk in these kind of scandals than do the Democrats whose base is, frankly, much more tolerant of corruption.

From Peggy Noonan's January 5 OpinionJournal.com column:

There's a lot of talk among Republicans that since the Abramoff scandal involves politicians and staff on both sides of the aisle, the public will not punish the Republicans. This assertion is countered by the argument that while the public will likely see the story as one of government corruption, Congress and the White House are run by Republicans, so Republicans will pay the price. I think this is true, but I think it misses a larger point: In some rough way the public expects the party that loves big government to be pretty good at finagling government, playing with it, using it for its own ends. That's kind of what they do. They love the steamroller, of course they love the grease that makes it run. But the anti-big-government party isn't supposed to be so good at it, so enmeshed in it. The antigovernment party isn't supposed to be so good at oiling the steamroller's parts and pushing its levers. And so happy doing the oiling and pushing.

A January 5 New York Times article reported that President Bush and other Republican lawmakers were moving to donate to charity or return campaign contributions by Washington lobbyist Jack Abramoff in the wake of Abramoff's plea agreement, the carrying out of which, the lobbyist said, could implicate as many as 60 lawmakers and staff, according to The Wall Street Journal. However, the Times article omitted any reference to the more than $100,000 Abramoff reportedly raised in his capacity as a Bush-Cheney '04 campaign "Pioneer," which the Republican National Committee (RNC), apparently speaking for the Bush campaign, reportedly said the campaign has no plans to donate or return. White House press secretary Scott McClellan said that the RNC will donate to the American Heart Association the $6,000 contributed directly by Abramoff, his wife, Pam, and a single Abramoff client; McClellan directed questions about the $100,000 bundled contributions to the RNC. In contrast to the Times article, reports in The Washington Post and Newsweek.com mentioned Abramoff's Pioneer status in the campaign and Bush's refusal to relinquish the funds Abramoff raised.

Anne E. Kornblut and Abby Goodnough wrote in the Times:

President Bush and senior Republican lawmakers moved on Wednesday to dump thousands of dollars in campaign donations from Jack Abramoff, the former lobbyist, hastily distancing themselves as he pleaded guilty to two more criminal counts under his agreement with prosecutors.

Mr. Bush will donate $6,000, the amount he received from Mr. Abramoff, Mr. Abramoff's wife and a lobbying client in his re-election campaign in 2004, to the American Heart Association, a spokesman said.

However, The Washington Post reported that the Bush-Cheney campaign has no plans to similarly discharge the bundled contributions raised by Abramoff, the sum total of which is reportedly well over $100,000, and quoted RNC spokeswoman Tracey Schmitt as saying, "At this point, there is nothing to indicate that contributions from those individual donors represents anything other than enthusiastic support for the [Bush-Cheney] re-election campaign."

As the Post reported on May 16, 2004, Abramoff was one of 64 lobbyists in a group of more than 300 Pioneers and Rangers who bundled individual contributions for Bush's 2004 presidential campaign. To earn Pioneer status, individuals raised $100,000 or more for the campaign.

Bush's campaign first organized a bundling system in 1998 as a way of formalizing a process whereby individuals could take credit for raising sums of money far beyond the then-$1,000 individual contribution limits set by campaign finance law. Individuals could raise additional contributions from friends and associates and bundle those contributions together and forward them to the campaign. The system expanded significantly in 2004, with the implementation of a four-digit ID code for each prospective Pioneer or Ranger. Individuals were credited only for checks carrying their individual ID numbers.

Abramoff told The New York Times in July 2003 -- more than a year before the election -- that he had already raised at least $120,000 for Bush. Though his final bundled total has not been released by the Bush-Cheney campaign, his status as Pioneer would indicate that it was less than $200,000, the threshold for Ranger status.

From the January 5 Washington Post article:

Abramoff raised more than $100,000 for the Bush-Cheney reelection campaign, making him an honorary Bush "Pioneer." But the campaign is giving up only $6,000, which came directly from Abramoff, his wife and one of the Indian tribes the lobbyist represented. The money will be donated to the American Heart Association.

The gesture was criticized by the watchdog group Public Citizen, which called for an accounting of all the money that Abramoff had raised for the campaign.

"President Bush needs to ... reveal just how much money Abramoff raised for him and who that money came from," said Frank Clemente, director of Public Citizen's Congress Watch.

But McClellan contested any suggestion that Abramoff's fundraising had won him any special favors or access.

"If someone thinks that money is coming in with strings attached, it doesn't get in the door," he said.

From a January 4 Newsweek.com commentary by Richard Wolffe and Holly Bailey:

Yet the Bush-Cheney campaign is returning only a fraction of the campaign contributions it received with Abramoff connections. During the 2004 campaign, Abramoff was a top fund-raiser for the Bush re-election effort, raising more than $100,000 for the campaign. While exact figures on how much he raised for the campaign aren't known, Abramoff told The New York Times in July 2003 -- months before active fund-raising began -- that he had already raised $120,000 for the Bush-Cheney campaign. "And I haven't even started making phone calls," the lobbyist told the Times. An Orthodox Jew, Abramoff was considered an important intermediary between Jewish groups and the Bush campaign, which worked heavily to make inroads with the voting bloc. When fund-raising began for Bush's re-election effort, Rabbi Daniel Lapin, a prominent Seattle radio host and activist, urged friends and colleagues to steer campaign checks to Bush via Abramoff.

For now, the Bush-Cheney campaign has no plans to donate or return funds raised by Abramoff from other individuals. "At this point, there is nothing to indicate that contributions from those individual donors represents anything other than enthusiastic support for the [Bush-Cheney] re-election campaign," RNC spokeswoman Tracey Schmitt said.