O'Reilly baselessly claimed judge who struck down warrantless wiretapping "would oppose every anti-terror measure the Bush administration would put in just because they are the Bush administration"

››› ››› JULIE MILLICAN

Bill O'Reilly baselessly claimed that the federal judge who struck down the Bush administration's warrantless domestic wiretapping program "would oppose every anti-terror measure the Bush administration has put in just because they are the Bush administration." In fact, the judge made a ruling in the administration's favor, dismissing the claim that the National Security Agency's "data-mining practices" are unconstitutional.

On the August 21 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly baselessly asserted that U.S. District Court Judge Anna Diggs Taylor, who recently struck down the Bush administration's warrantless domestic wiretapping program, was an "activist, far-left jurist" who "would oppose every anti-terror measure the Bush administration has put in just because they are the Bush administration." In fact, while Taylor's August 17 ruling found the Bush administration's surveillance of U.S. persons without a warrant to be unconstitutional, Taylor made a ruling in the administration's favor, dismissing the American Civil Liberties Union's (ACLU) claim that the National Security Agency's (NSA) "data-mining practices" are unconstitutional. Taylor ruled that the ACLU could not present evidence to show the government violated the law without impermissibly relying on "state secrets."

O'Reilly also suggested Taylor "want[s] Americans to die" and "want[s] dead people in the street here in America." He further baselessly called the NSA program "very effective." As Media Matters for America has noted, The New York Times reported that "law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks" and that "current and former officials" insisted the program almost always "led to dead ends or innocent Americans": Further, the Times and The Washington Post have reported that according to current and former intelligence officials, of the thousands of individuals who were reportedly at one time under surveillance, only a few have merited further investigation.

On August 17, Taylor rejected the Bush administration's legal defense of the domestic surveillance program -- which since 2001 has authorized the NSA to eavesdrop on the international communications of U.S. persons without court orders required by the Foreign Intelligence Surveillance Act of 1978 (FISA). Taylor ruled that the program violates FISA, as well as the First and Fourth Amendments, and ordered that the program be halted. The complaint, ACLU vs. NSA, was brought by the ACLU on behalf of a group of Michigan-based "journalists, scholars, attorneys, and national nonprofit organizations who frequently communicate by telephone and email with people outside the United States, including in the Middle East and Asia."

However, contrary to O'Reilly's claim that Taylor "would oppose every anti-terror measure the Bush administration has put in just because they are the Bush administration," Taylor did rule in the Bush administration's favor with respect to the use of "data mining." In its complaint, the ACLU alleged that:

[T]he NSA engages in wholesale datamining of domestic and international communications. It uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time. One purpose of this datamining is to identify individuals for targeted surveillance.

The ACLU made clear that its data-mining claim was separate from its warrantless wiretapping claims in subsequent briefs. Taylor ruled that the government's "state secrets privilege" required the court to dismiss claims by the ACLU related to data-mining because the plaintiffs could not establish their case "without the use of privileged information" and that further litigation "would force the disclosure" of privileged information.

By contrast, Taylor ruled that the "state secrets privilege" did not apply to the NSA's warrantless wiretapping program because the government has not only acknowledged the existence of the program but has, on multiple occasions, publicly discussed details of the program.

O'Reilly also baselessly called the NSA program "a very effective anti-terror program." But, as Media Matters has repeatedly noted, the domestic surveillance program has reportedly been largely ineffective. According to a February 5 Post article, which cited "current and former government officials," "nearly all" of the people whose calls were monitored under the NSA program were later "dismissed ... as potential suspects after hearing nothing pertinent to a terrorist threat." The Post further noted that "[f]ewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well." Though it is unknown how many individuals have been arrested and charged in connection with the warrantless wiretapping program, as a January 17 Times article reported on the effectiveness and utility of the program:

The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. "There were no imminent plots -- not inside the United States," the former F.B.I. official said.

The Times article also cited "current and former officials" who insisted the program almost always "led to dead ends or innocent Americans":

In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

Additionally, while discussing Taylor's ruling with Investor's Business Daily senior writer Tom McArdle, O'Reilly repeatedly asked, "Does she [Taylor] want Americans to die?" "Does she want people to die?" and "Does she want dead people in the street here in America?" For his part, McArdle asserted that Taylor "has a long history as a left-leaning political operative," claimed she was "in the pocket of the ACLU," and asked whether Taylor "really wish[es] ill will upon our forces" or whether her ruling is "some kind of pacifistic naiveté." Noting that Taylor "helped set up the Mississippi office of the National Lawyers Guild [NLG]," McArdle stated that the NLG, "throughout its long, sordid history, has had connections to the Communist Party and has been on the side of every enemy of America you can think of, over the years, whether you're talking about the Sandinistas in Nicaragua or Fidel Castro in Cuba." Concluding, McArdle declared: "Anna Diggs Taylor is not just trying to shut down the NSA's program, she is dropping a nuclear bomb on the program."

From the August 21 edition of Fox News' The O'Reilly Factor:

O'REILLY: Coming right back with a federal judge saying no to a very effective anti-terror program. Right back with it.

[...]

O'REILLY: In the "Unresolved Problem" segment tonight, as you know, federal judge Anna Diggs Taylor says the NSA surveillance program that is listening to conversations without warrants is unconstitutional and illegal. Her decision is being appealed. The Bush administration is saying there is no criminal aspect to the program, it's purely about national defense and intelligence, and thus entirely legal. The Supreme Court will probably decide.

Joining us now from Myrtle Beach, South Carolina, is Tom McArdle, a senior writer at Investor's Business Daily, which has criticized Judge Taylor.

See, I don't understand Judge Taylor. Maybe you can help me. Does she want Americans to die? There isn't any criminal proceeding in this case. This is an overarch to try to get intelligence information from calls to suspected Al Qaeda overseas, not domestic. Does she want people to die?

McARDLE: Well, we at Investor's Business Daily exposed Anna Diggs Taylor more than two months ago, and it's really no mystery what's going on here. She has a long history as a left-leaning political operative. Of course, she was appointed to the federal bench by President Carter in 1979. But going back to 1964, she helped set up the Mississippi office of the National Lawyers Guild.

The National Lawyers Guild, throughout its long, sordid history, has had connections to the Communist Party and has been on the side of every enemy of America you can think of, over the years, whether you're talking about the Sandinistas in Nicaragua or Fidel Castro in Cuba. And she has been also in the pocket of the ACLU on a number of rulings, whether we're talking about national --

O'REILLY: But say she is -- and I do believe this, I know her background -- she is an activist, far-left jurist. OK. Say that's true.

McARDLE: Right.

O'REILLY: Does she want dead people in the street here in America? Because I'm sure that she would not only oppose the NSA program, she would oppose coercive interrogation, profiling at the airports. She would oppose every anti-terror measure the Bush administration has put in just because they're the Bush administration. But the unintended consequences of the opposition is death.

McARDLE: That's right. That's right. Well, I don't have a crystal ball, and none of us do as far as looking into this woman's mind and seeing what her motivation is. Does she really wish ill will upon our forces, or is it some kind of pacifistic naiveté?

All you can do is observe her behavior over the years. And she's -- as I said -- as I said -- been in the pocket of the ACLU in a number of different areas --

O'REILLY: OK, let's talk about the ACLU. You know, in my upcoming book, Culture Warrior, I label them as the most dangerous organization in the country.

McARDLE: Absolutely.

O'REILLY: I think you concur.

McARDLE: Absolutely.

O'REILLY: Again, do these people at the ACLU want the terrorists to win? Do they want another attack on America? What is it behind it?

McARDLE: Well, you just have to look at what they've been doing over the years. They're always on the side of America's enemies. Just this year in Florida, they are trying to stop a school district from preventing elementary school children from being indoctrinated by what essentially are children's books with pro-Castro communist propaganda.

I mean, I don't know if these people are dream-walking or if they really do wish ill will. You just have to look at their behavior, and there's no doubt about it. You look at this decision, I mean she's -- Anna Diggs Taylor is not just trying to shut down the NSA's program, she is dropping a nuclear bomb on the program.

O'REILLY: But she'll -- it'll be overturned. I believe it will be. Mr. McArdle, thanks very much. We appreciate it.

Plenty more ahead as the Factor moves along this evening. This man is accused of exploiting the deaths of American military people. We'll confront him. Moments away.

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