Milbank repeated as fact Bush's misleading explanation for 2004 comments denying conduct of warrantless wiretaps

On the January 31 edition of MSNBC'S Countdown with Keith Olbermann, Washington Post columnist Dana Milbank echoed President Bush's misleading explanation of a 2004 statement in which Bush said that "[a]ny time you hear the United States government talking about wiretap, it requires ... a court order" and that "[w]hen we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Critics have pointed to the 2004 statement to accuse Bush of falsely suggesting that the administration would not conduct domestic surveillance without a warrant. Rather than address the actual words of Bush's 2004 statement, Milbank simply repeated Bush's own claim this year that his 2004 comments referred only to roving wiretaps authorized under the USA Patriot Act and did not constitute an acknowledgment -- in contradiction of what the Bush administration is now known to have been doing -- that the government must obtain a warrant for all domestic surveillance. Milbank asserted that while Bush's 2004 comments were "technically" true, they could nonetheless be "exploited politically," presumably a suggestion that those making an issue of the apparent contradiction between the 2004 comments and Bush's warrantless eavesdropping program would be doing so for political gain, and not because they believed that Bush had not been telling the truth.

But while Bush's 2004 statement was indeed made in the context of defending the Patriot Act's authorization of roving wiretaps for which warrants are obtained, the actual words he used encompassed all wiretapping activities -- not just those authorized under the Patriot Act. Bush said in 2004 -- without any qualification -- that a court order is required "[a]ny time you hear the United States government talking about wiretap." Bush added, again without qualification: "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." At no point during his 2004 speech did Bush suggest that the requirement that the government get a warrant to undertake domestic surveillance applied only to roving wiretaps or other Patriot Act programs.

Shortly after the September 11, 2001, terrorist attacks, Bush authorized the National Security Agency to carry out warrantless eavesdropping on the communications of U.S. residents -- an apparent violation of the Foreign Intelligence Surveillance Act (FISA). Yet, at an April 20, 2004, "conversation on the USA Patriot Act" in Buffalo, New York -- after the warrantless eavesdropping program had been in effect for at least two years -- Bush stated:

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.

At a January 1 press conference, a reporter asked Bush if he was "in any way misleading" when he stated in 2004 that wiretaps require warrants. Bush responded that he "was talking about roving wiretaps ... involved in the Patriot Act," which, he said, is "different from the NSA program":

QUESTION: In 2004, when you were doing an event about the Patriot Act, in your remarks you had said that any wiretapping required a court order, and that nothing had changed. Given that we now know you had prior approval for this NSA program, were you in any way misleading?

BUSH: I was talking about roving wiretaps, I believe, involved in the Patriot Act. This is different from the NSA program. The NSA program is a necessary program. I was elected to protect the American people from harm.

On Countdown, Olbermann played Bush's 2004 remarks, noting that the comments "would seem to be problematic for the president at this point." Without addressing Bush's actual statement, Milbank simply repeated Bush's misleading January 1 defense, without noting that he was doing so. Milbank insisted that "technically, what the president said there [in 2004] was true." He added that Bush "was not talking about these international wiretaps. He was talking about these roving wiretaps, which are domestic, under the Patriot Act. Now, so, technically, what he said may very well have been true."

Milbank then said that even though Bush's statement was "technically" true, "that does not mean that it could not be exploited politically, or that others wouldn't exploit it politically." He later noted that "[Sen.] Dick Durbin [D-IL] mentioned it, almost sort of off-handedly, the other day" -- a reference to a January 25 press conference in which Durbin correctly stated:

DURBIN: This is a quote from President Bush in April of 2004, as direct and clear as it could be. He said, in Buffalo, New York, "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." How could it be any clearer? The president stated the law, as of April 2004. And now, we are hearing from the administration that that isn't the law, that a court order isn't necessary, that somehow this president is above the law.

Milbank told Olbermann that Democrats are "not really pouncing on" Bush's 2004 comments, adding, "Maybe they do have some compunctions about saying, 'Well, it's technically not what he was talking about.' "

From the January 31 edition of MSNBC's Countdown with Keith Olbermann:

OLBERMANN: Let me play you a sound bite from a speech in Buffalo, April 20, 2004.

BUSH [video clip]: 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.

OLBERMANN: You know, that would seem to be problematic for the president at this point. Is that going to come up at some point in the speech, or in the week ahead, in politics in Washington?

MILBANK: Well, you'd think it would, and it might, in a different environment. Now, let's say, technically, what the president said there was true. He was not talking about these international wiretaps. He was talking about these roving wiretaps, which are domestic, under the Patriot Act. Now, so, technically, what he said may very well have been true. But that does not mean that it could not be exploited politically, or that others wouldn't exploit it politically. It remains to be seen how they do that.

OLBERMANN: Why aren't the Democrats, by the way, all wearing T-shirts that have a picture of the president's picture -- the president from Buffalo that day, and then it's emblazoned with the words, "When we're talking about chasing down terrorists, we're talking about getting a court order before we do so"? Why haven't they done that?

MILBANK: You know, it beats me. The -- Dick Durbin mentioned it, almost sort of off-handedly, the other day. They're not really pouncing on it. Maybe they do have some compunctions about saying, "Well, it's technically not what he was talking about." But if the Democrats have learned anything in politics, they should realize that you and I can get up and say, "Yes, that's incorrect." But in terms of forming a public impression, that doesn't fly at all. So they could clearly make hay out of a statement like that.