WASHINGTON - January 25 - Following is a memo from Media Matters for America:
In the past three days, numerous media outlets have -- without challenge -- cited Gen. Michael V. Hayden's January 23 claim that the Bush administration's decision to bypass the Foreign Intelligence Surveillance Act (FISA) court to monitor domestic phone conversations is legal because the program has targeted only phone calls that the National Security Agency (NSA) has a "reasonable basis to believe involve Al Qaeda or one of its affiliates." Some media have repeated the more specific claim by Hayden, a deputy director for national intelligence and former head of the NSA, that the program is legal because the Fourth Amendment requires that the government have only a "reasonable basis" for the surveillance, rather than meet the stricter "probable cause" standard required for a FISA warrant.
But as attorney and blogger Glenn Greenwald noted on January 24, even as the administration was already bypassing FISA in 2002, the Justice Department issued a statement opposing proposed legislation by Sen. Mike DeWine (R-OH) to loosen the standard for such surveillance under FISA from "probable cause" to "reasonable basis." The administration argued in the statement that lowering the standard was likely unnecessary and possibly unconstitutional. In light of this revelation, which contradicts 1) Hayden's suggestion that the stricter "probable cause" requirement under FISA was inhibiting crucial intelligence gathering and 2) the administration's claim that Congress had tacitly authorized the administration's circumvention of FISA in conducting its secret surveillance program, will the media outlets that repeated Hayden's defense of the program's legality under the Fourth Amendment now report the facts undermining that defense?
Media Matters' full report on the 2002 Justice Department statement and the significant contradictions in the Bush administration's defense of warrantless domestic wiretapping can be found here: http://mediamatters.org/items/200601250001
Media Matters for America is a Web-based, not-for-profit, progressive research and information center dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media. Media Matters for America is the first organization to systematically monitor the media for conservative misinformation every day, in real time. For more information, visit http://www.mediamatters.org.