Fox's Megyn Kendall falsely suggested that those briefed on NSA warrantless spying program "don't see any problem" with itDecember 15, 2006 4:15 PM EST ››› BEN ARMBRUSTER
On the December 13 edition of Fox News' The Big Story, Fox News general assignment reporter Megyn Kendall reported that, during a December 13 speech at the Georgetown University Law Center, Sen. Patrick Leahy (D-VT) criticized the National Security Agency's (NSA) warrantless domestic eavesdropping program, even though, she later claimed, he "doesn't know that much about" it because, she suggested, "he is not ... one of the lawmakers who's been briefed in detail on the program." Without offering a direct rebuttal quote from a Bush administration official, Kendall claimed that the administration "would say he [Leahy] doesn't know what he's talking about," because, she added, falsely, "those who have been briefed on the program don't see any problem" with it. In fact, while the full House and Senate intelligence committees were reportedly briefed on the program, several members of those committees have criticized it, and, as recently as December 1, Rep. Jane Harman (D-CA), who is currently the ranking member of the House Permanent Select Committee on Intelligence, noted that the program might violate the law.
In addition, Kendall did not mention that the lack of knowledge of the warrantless wiretapping program among legislators might be attributable to the Bush administration's stonewalling. The Los Angeles Times noted on February 7, (purchase required) that, during Senate Judiciary Committee hearings on the NSA spy program with Attorney General Alberto R. Gonzales, Leahy criticized Gonzales and the Bush administration for not providing adequate information on the program to Congress:
Several Democrats argued that if the use-of-force resolution could be read to authorize warrantless electronic surveillance, it could open the way to warrantless physical searches of homes, people or property.
"If the president has that authority, does he also have the authority to wiretap Americans' domestic calls and e-mails under this authority if he feels it involves Al Qaeda activity?" asked Sen. Patrick J. Leahy (D-Vt.).
"I've said that that presents a different legal question, a possibly tough constitutional question," Gonzales replied. "And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional."
Leahy pressed him: "Are you doing that?"
"I can't give you assurances," Gonzales said. "That is not what the president has authorized for this program."
Leahy noted that the Foreign Intelligence Surveillance Act had been amended repeatedly since 2001 at the administration's request.
"We have given you five amendments under FISA because you requested them. But you never came to us with this," Leahy said. "At least we have a press that tells us what you are doing, because you are not telling us."
Additionally, The New York Times reported (subscription required) that, during the hearings, Leahy told Gonzales: ''Of course, I'm sorry, Mr. Attorney General, I forgot you can't answer any questions that might be relevant to [the NSA eavesdropping program].''
The New York Times also noted that both the House and Senate intelligence committees were briefed on the NSA program by the Bush administration on May 17. Contrary to Kendall's assertion that the administration "would say" that "those who have been briefed on the program don't see any problem" with it, in an article on the May 23 Senate Select Intelligence Committee vote on whether to confirm Gen. Michael V. Hayden as CIA director, The Washington Post reported that Democratic committee members Evan Bayh (IN), Russell Feingold (WI), and Ron Wyden (OR) voted against Hayden because they "objected mainly to what they called the administration's failure to justify adequately the National Security Agency's warrantless wiretaps of Americans' international calls," as "Hayden headed the NSA when the program was launched, soon after the Sept. 11, 2001, attacks."
Further, as recently as December 1, in a speech given to the American Bar Association Standing Committee on Law and National Security, Harman -- who, as ranking member of her committee would likely have received at least as much, if not more, information on the program as Bayh, Feingold, and Wyden -- questioned the legality and implementation of Bush's domestic eavesdropping program:
HARMAN: Missed opportunity number two: the NSA domestic surveillance program. It's been almost a year since that program was first revealed. When the program was established, the administration provided what I would call "drive-by Power Point presentations" for the so-called "Gang of Eight" in Congress. I became a member of that Gang of Eight in early 2003 as ranking member on intelligence and so, I participated in those presentations after the first year of the program. Those of us in the room, usually the Situation Room in the White House, had no opportunity to consult with our staff, outside lawyers or even keep our own notes. After the president was forced to acknowledge the program's existence, I fought to get the full intelligence committees briefed. The president finally agreed because the Senate Intelligence Committee threatened to hold up General Mike Hayden's nomination to be director of the Central Intelligence Agency. Without that stick, I'm not sure they ever would have given in.
Let me be clear: I want the intelligence community to intercept the communications of terrorists, but it is not exempt from following the law and the Constitution. As one of the few people outside the White House and the NSA briefed on into this program, I assure you that the program can be conducted pursuant of the Foreign Intelligence Surveillance Act. To this day, the administration has refused to provide a copy of the authorization the president signed to allow the NSA to conduct the program, nor have they provided that legal analysis except for post-hoc justifications that justified the president's decision to start the program.
On August 17, a federal judge ruled the warrantless NSA eavesdropping program unconstitutional
After reporting Leahy's criticism of the warrantless domestic spy program, Kendall noted that "[s]ome conservatives were quick to react," quoting Janet LaRue from Concerned Women for America as saying that Leahy's speech laid a "cracked foundation [to] push the left's political agenda through Congress. What a joke."
From the December 13 edition of Fox News' The Big Story with John Gibson:
GIBSON: Now, today's other big security story: The start of the new Democratic-controlled Congress could mean the end of President Bush's NSA surveillance program. As the soon-to-be chair of our Senate Judiciary Committee says, he plans to consider a way to pull back the program and put oversight on it. Is this really a good way to go when it comes to our national security? Fox's Megyn Kendall joins us live from Washington with that story. Hi, Megyn.
KENDALL: Hey there, John. Yeah, Senator Patrick Leahy explained today, saying that this election in his view was an intervention by the American people who, he believes, want change on everything from the war in Iraq to judicial nominees to the warrantless surveillance program.
Now, bills to authorize the wiretap program, which targets the communications of suspected terrorists, stalled in the last Congress. Leahy is not one of the lawmakers briefed on the program in detail but nonetheless says it is an erosion of privacy, and he says the White House must be held accountable.
LEAHY [video clip]: -- has refused to answer the questions of either Republicans or Democrats and has acted outside the law to wiretap Americans without warrants -- outside the law.
KENDALL: Leahy says he may call Attorney General Alberto Gonzales in to testify again about the program and says if he doesn't get the answers he wants, he will subpoena them. Some conservatives were quick to react, saying: "Leahy spent 99 percent of his speech bashing the president in order to lay a cracked foundation for pushing the left's political agenda through Congress. What a joke."
GIBSON: Megyn, does Leahy sound as though listening to phone calls is permissible in any circumstances?
KENDALL: He didn't get specific. All he did in referencing the warrantless wiretap program was to say that it's an erosion of privacy, that the administration has been given a pass on it for far too long, and that now that he's in charge of this committee, he wants to take another hard look at that program to dial back what he considers -- I mean, he said it outright -- an illegal program.
GIBSON: But would he be willing to change the warrant requirements so they're not as evidently onerous as they are at the moment?
KENDALL: He just didn't get that specific, John, and that could be because he is not, as I pointed out in the report, one of the lawmakers who's been briefed in detail on the program, which is, you know, arguably part of the problem. He [Leahy] doesn't know that much about it. So one might query why he's this agitated over it.
His statements, as he said today, were based on reports he's seen in the press, i.e., The New York Times. So, he's sort of -- he would say he's fighting with one hand behind his back; the administration would say he doesn't know what he's talking about because those who have been briefed on the program don't see any problem. John.
GIBSON: Megyn Kendall in Washington. Megyn, thank you.
KENDALL: You bet.