On TV and in print, Time claimed, despite contradictory evidence, that Bush has "put the NSA story to bed"

On the air and in print, Time assistant managing editor Michael Duffy and White House correspondent Mike Allen both claimed that President Bush successfully deflected criticism of his recently disclosed warrantless domestic surveillance program, conducted by the National Security Agency (NSA) and authorized by the White House. However, neither Duffy nor Allen offered much evidence to justify that assessment of Bush's handling of the controversy; moreover, in reaching that conclusion, they apparently dismissed numerous examples of contradictory statements offered by administration officials to defend the program, ignored mounting evidence -- consolidated by Newsweek in an article released the same day as Allen's -- of bitter dissent within the Bush administration over the program, and overlooked polling that shows the American public divided in its view of the program but with a majority favoring appointment of a special prosecutor to investigate possible violations of the law. On the January 29 edition of the NBC-syndicated The Chris Matthews Show, Duffy, without justification, said that Bush has "put the NSA story to bed." In an article in the February 6 edition of Time, Allen claimed that the domestic surveillance controversy has given Bush a "foothold" and ignored the administration's various legal problems and rhetorical inconsistencies regarding the surveillance issue.

From the January 29 edition of the NBC-syndicated The Chris Matthews Show:

MATTHEWS: Can he [Bush] shape the battlefield that effectively? Can he say, "The issue here is NSA surveillance?" No questions, by the way, this week at the press conference on Iraq. That's just sort of off the table. But the other thing is, can he say, on things like Katrina aftermath, and interviewing [former Federal Emergency Management Agency director] Michael Brown, and all that argument about executive privilege, can he say -- and also about these [former lobbyist Jack] Abramoff photos the White House apparently has -- can he just say, "That's small potatoes, I'm talking about the big stuff"?

DUFFY: Well, I'm not sure he can clear the table, but when it comes to almost all the security stuff, on terror, I think he's won it. I think he's put the NSA story to bed.

Duffy offered no justification for this argument, though it was expanded in Allen's Time article, to which Duffy contributed. From the Time article:

But the eavesdropping controversy turned out to offer a foothold. "If somebody from al-Qaeda is calling you, we'd like to know why," Bush declared, while polls showed Americans weren't particularly concerned about warrantless wiretapping if authorities were using it to fight terrorism. When a new threat on tape from Osama bin Laden emerged, Bush was set up to return to the stage as Protector in Chief, the Republicans' award-winning role in the past two elections.

Starting Feb. 6, the Senate will plunge ahead with hearings on eavesdropping, and Bush could face trouble if facts come out indicating he has described the program inaccurately or incompletely. After Bush delivered his war-on-terrorism defense of the program, however, Democrats seemed to have lost their stomach for battle. "I'm not sure that's a winning issue for Democrats," party strategist Harold Ickes said. Senate Democratic leader Harry Reid preferred to focus on Medicare snafus and what he called G.O.P. corruption.

Allen's claim that Bush "could face trouble if facts come out indicating he has described the program inaccurately or incompletely" ignored the fact that Bush and other members of his administration already have given contradictory arguments in defense of the program, and already have been accused of describing the program inaccurately and incompletely. As Media Matters for America noted, the administration's explanations for refusing to support a 2002 bill by Sen. Mike DeWine (R-OH) that would have loosened the standards for conducting domestic surveillance, as set forth by the 1978 Foreign Intelligence Surveillance Act (FISA), contradict its current justifications for the program. Specifically, DeWine proposed lowering the threshold for obtaining a FISA warrant to conduct electronic surveillance on "non-U.S. persons" from "probable cause" to "reasonable suspicion." At the time, the Justice Department refused to support the legislation, expressing concerns that changing FISA in such a way might not "pass constitutional muster" and asserting that such changes were likely unnecessary.

Justice Department spokeswoman Tasia Scolinos was quoted in a January 26 Washington Post article explaining that the administration refused to support DeWine's 2002 bill because the bill would have lowered the standard for obtaining warrants in certain cases to "reasonable suspicion." By contrast, Scolinos said, the operative standard for NSA surveillance is "reasonable basis," which she said was a higher standard than "reasonable suspicion" and "essentially the same" as FISA's requirement for "probable cause." But on January 23, Gen. Michael V. Hayden, deputy director for national intelligence and former head of the NSA, said something very different about how the two standards of "reasonable basis" and "probable cause" compare. Contrary to Scolinos, who claimed that they were essentially the same standard, Hayden made clear there was a difference, attempting to justify the domestic surveillance program by claiming that the Fourth Amendment stipulates that the NSA needs only a "reasonable basis" for engaging in surveillance, and is not bound by the "probable cause" standard established by FISA. Moreover, contrary to Scolinos's assertion that "reasonable basis" was a stricter standard than "reasonable suspicion," Bush himself has blurred the distinction between the "reasonable basis" championed by the White House and the "reasonable suspicion" advocated by the DeWine bill, as Media Matters has noted.

Additionally, as Washington Post staff writers Dan Eggen and Walter Pincus noted in a January 27 article: "Before the program's existence was revealed, several administration officials also emphasized in testimony and public statements that the NSA was prohibited from engaging in domestic surveillance -- even as the agency was clearly doing so under the authority of Bush's secret order that established the program." Bush himself claimed in an April 20, 2004, speech:

BUSH: Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Beyond the contradictions in the administration's description of the program and the standards used to determine who becomes a target of surveillance, other facts have "come out indicating that he has described the program" both inaccurately and incompletely. As Media Matters previously noted, members of Congress have accused the administration of giving incomplete and misleading descriptions of the program. The Congressional Research Service noted that the Bush administration's limited notification of Congress about the domestic surveillance program "appear[s] to be inconsistent with the law." And, as Media Matters has noted, White House senior adviser Karl Rove has attempted to smear Democrats by claiming that "some important Democrats disagree" that "if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why." In fact, no member of the Democratic leadership in Congress, no Democratic governor, and no Democratic party official has said that it is not in our interest to know whom Al Qaeda is calling, but numerous Democrats (and some Republicans and conservatives) have said they are opposed to the warrantless surveillance of Americans -- the program that Bush has reportedly authorized. Several media outlets repeated Rove's mischaracterization of opponents' position and his implicit mischaracterization of the program.

Allen's assertion also ignores the issue at the heart of the controversy -- presumably to be considered by the Senate Judiciary Committee and possibly by the courts -- of whether Bush violated the law in authorizing the program. As noted in the February 6 edition of Newsweek, senior officials at the Justice Department such as former deputy attorney general James B. Comey, objected strenuously to the program and to vast expansions of executive power to conduct the "war on terror." As Media Matters noted prior to the Newsweek article's release, Comey, while serving as acting attorney general while then-Attorney General John Ashcroft was hospitalized in 2002, refused to reauthorize the surveillance program. Comey's refusal reportedly prompted White House chief of staff Andrew H. Card Jr. and then-White House counsel Alberto R. Gonzales, now the attorney general, to visit Ashcroft in the hospital to obtain Department of Justice approval. Newsweek reported: "In pain and on medication, Ashcroft stood by his No. 2. A compromise was finally worked out. The NSA was not compelled to go to the secret FISA court to get warrants, but Justice imposed tougher legal standards before permitting eavesdropping on communications into the United States."

Moreover, Duffy's claim that Bush "put the NSA story to bed" ignored polling showing that the public is, and continues to be, concerned about the controversy.

A CBS News/New York Times poll conducted January 20-25 -- partially after Bush began a concerted defense of the program with a speech on January 23 -- showed little or no change in public opinion on the domestic surveillance program from a CBS poll taken earlier in the month. The CBS/Times poll found that the percentage of respondents who "approve of Bush authorizing wiretaps to fight terrorism" was "similar to those [results] seen nearly three weeks ago, soon after news reports about the wiretaps appeared"; that the amount of confidence respondents expressed in the government correctly choosing which calls to monitor "ha[s] changed little from earlier this month"; and there was an increase of two percentage points in both the number of respondents concerned that the government will "[n]ot make laws strong enough" to combat terrorism and the number of respondents who fear the government will "go too far in restricting civil liberties." The largest change in public opinion in the latest CBS/Times poll actually bolstered the argument for those who oppose the domestic surveillance program: it indicated an increase of five percentage points in respondents who are "very concerned about losing civil liberties because of Bush administration's anti-terror measures," and a corresponding decrease in the percent who are "somewhat" or "not very/not at all" concerned.

Additionally, a CNN/USA Today/Gallup poll conducted January 20-22 showed that a majority of Americans -- 58 percent -- think that a special prosecutor should be appointed to investigate the matter. While this polling was conducted before Bush began this media blitz, Duffy's and Allen's praise of Bush for defusing this issue appears not to be wholly deserved, especially when just one week earlier, nearly 60 percent of Americans were concerned enough to think it deserves serious investigation.