Lehrer failed to challenge Rep. Wilson's claim that Hayden had been candid about domestic spying program

During an interview with Rep. Heather Wilson (R-NM) on the May 8 edition of PBS' The NewsHour, host Jim Lehrer failed to challenge Wilson's claim that Air Force Gen. Michael V. Hayden, President Bush's nominee to be CIA director, had been "very, very candid about the [Bush administration's warrantless domestic surveillance] program, its authorities, how it operates, and so forth." In fact, Hayden has defended the program with shifting and contradictory explanations and failed to answer questions regarding whether it has been used to spy on U.S. residents with no ties to terrorism. Moreover, in 2002 testimony, Hayden misled Congress about the existence of the warrantless eavesdropping program.

To discuss Bush's May 8 nomination of Hayden, Lehrer hosted two members of the House Intelligence Committee, Wilson and Rep. Anna Eshoo (D-CA). Throughout the segment, Wilson extolled Hayden's abilities, calling him a "great leader," "a good leader of the people," and "a people-oriented leader." When questioned about his involvement in the Bush administration's warrantless domestic surveillance program, Wilson said: "[W]hen he was given the green light, Mike Hayden came up and was very, very candid about the program, its authorities, how it operates, and so forth. And in my book, he gets some credit for that."

As head of the National Security Agency (NSA) from 1999 until 2005, Hayden designed and implemented the domestic surveillance program secretly authorized by Bush shortly after the terrorist attacks of September 11, 2001. Under the president's authorization, the NSA routinely intercepted the international communications of U.S. residents without warrants, in apparent violation of the Foreign Intelligence Surveillance Act (FISA), which requires court approval for such surveillance.

In fact, notwithstanding Wilson's assertions, Hayden was far from candid with members of Congress in testimony he gave in 2002. Moreover, after the program's public disclosure, Hayden made a number of contradictory and evasive statements about its implementation.

Yet, Lehrer missed numerous opportunities to challenge Wilson's claim that Hayden was "very, very candid" in his role as the program's chief defender.

Some possible follow-up questions include:

• Rep. Wilson, you said that Hayden was "very candid about the program, its authorities, how it operates, and so forth." But he has repeatedly been asked whether the NSA's warrantless domestic surveillance operation has targeted political opponents of the Bush administration -- at a January 23 press conference and on the February 6 editions of both ABC's This Week and Fox Broadcasting Co.'s Fox News Sunday. In each case, he has appeared to dodge the question and neglected to offer a blanket denial of such activities. Does this meet your definition of candid?
• In his early remarks on the NSA's domestic eavesdropping, Hayden asserted that the program employs a lower standard of proof than required under FISA. He said on February 23, "The trigger is quicker and a bit softer than it is for a FISA warrant." Shortly thereafter, the Department of Justice (DOJ) declared that the operative standard for NSA surveillance -- "reasonable basis" -- was no different than FISA's requirement for "probable cause." And in a subsequent interview, Hayden repeated this explanation -- that the evidentiary standard used by the NSA "is in that probable-cause range" -- thereby contradicting his earlier statement. How do you explain Hayden's contradictory statements, in light of your assessment of his candor and independence?

Further, Lehrer could have pointed out a question surrounding Hayden's October 17, 2002, testimony before a joint congressional committee investigating the September 11 attacks:

• Testifying before Congress in 2002, Hayden stated unequivocally that that any citizen or legal resident of the United States targeted for surveillance by the NSA would be subject to protection under FISA, which requires the government to obtain warrants to conduct surveillance of "U.S. persons." But at the same time that he told Congress that the NSA was complying fully with FISA in conducting surveillance on people in the United States, Hayden was overseeing the Bush administration's domestic surveillance program, which circumvented the FISA statute. Do you believe that Hayden misled Congress in doing so?

In endorsing Hayden's response to the uproar over the warrantless domestic spying, Wilson stated that she "was one of the ones that called for greater oversight by Congress on the president's program," referring to her February 7 demand that Congress launch a full , "painstaking" investigation into the NSA operation. She proceeded to respond to Eshoo's argument that the program is illegal. "[Y]ou know, Anna has the view that this program is not legal," she said. "There is another point of view that says it's fully within the president's authority." Wilson then suggested she does not concern herself with those questions. Rather, she said, "I try to focus on: What does the nation need? ... [T]his argument about whether it was or wasn't legal and whose lawyers are best is not the perspective that I come at this at."

But Wilson did not simply call for "greater oversight" of the NSA program shortly after its public disclosure, as she now says. She also reportedly questioned the administration's claimed legal basis for the warrantless surveillance. Indeed, in a February 11 article, New York Times reporter Sheryl Gay Stolberg quoted Wilson challenging the White House's argument that it derives authority to conduct the program from the Authorization for the Use of Military Force resolution approved by Congress shortly after Sept. 11:

''I think the argument that somehow, in passing the use-of-force resolution, that that was authorizing the president and the administration free rein to do whatever they wanted to do, so long as they tied it to the war on terror, was a bit of a stretch,'' she said. ''And I don't think that's what most members of Congress felt they were doing.''

In light of these earlier remarks, Lehrer could have challenged Wilson's claim that her concerns regarding the NSA program did not pertain to the legal "perspective":

• You previously argued that the administration's asserted legal basis for the surveillance program, the Authorization for the Use of Military Force resolution, was not legitimate. Now you claim all you wanted was more oversight of the program, and that Hayden has satisfied you on that front. How can you say now that you were merely concerned with oversight when you actually questioned the administration's legal basis for the program and said it ran counter to what Congress had intended?

From the May 8 edition of PBS' The NewsHour with Jim Lehrer:

WILSON: I think he's a great leader with a great background in intelligence matters. And, like I said, I don't think it's a big surprise to people that we grow great leaders in the Air Force.

LEHRER: All right. The other major point that Congresswoman Eshoo has made is his involvement in the National Security Agency surveillance program. Does that give you any trouble, Congresswoman Wilson?

WILSON: I was one of the ones that called for greater oversight by the Congress on the president's program for surveillance. And to his credit, when he was given the green light, Mike Hayden came up and was very, very candid about the program, its authorities, how it operates, and so forth. And in my book, he gets some credit for that.

LEHRER: So you don't -- it's not a negative from your point of view?

WILSON: No. And, you know, Anna has the view that this program is not legal. There is another point of view that says it's fully within the president's authority. I try to focus on: What does the nation need? And do we need to change the Foreign Intelligence Surveillance Act to make sure we can spy on our enemies, and keep this country safe, and protect civil liberties, within the communications technologies of the 21st century? But this argument about whether it was or wasn't legal and whose lawyers are best is not the perspective that I come at this at.