Time's Gibbs uncritically reported that Hayden was "credited with so effectively defending" warrantless domestic surveillance

In a profile of Gen. Michael V. Hayden, President Bush's nominee for director of the CIA, for the May 22 edition of Time magazine, senior editor Nancy Gibbs wrote that Hayden "was credited with so effectively defending the National Security Agency's no-warrant wiretapping program after it was exposed in December that he helped turn a simmering scandal into a political win for the Administration." However, Gibbs's reporting on Hayden's defense of the Bush administration's warrantless domestic surveillance program omitted a key point: In defending the program, Hayden made statements that were mutually inconsistent and that contradicted those of other administration officials. Indeed, the media's failure to note Hayden's contradictory statements may have contributed to a perception -- advanced by Gibbs -- that Hayden was a highly effective defender of the program.

In her profile of Hayden, Gibbs wrote:

"He speaks in lucid, well-constructed sentences," observes former Senator Bob Graham, who was chairman of the Senate Intelligence Committee until 2003. "And then he pauses as if to give the listener a chance to assimilate what he has just said." It is clear when Hayden goes to Capitol Hill that he has studied his audience carefully. "He's a great PowerPoint briefer, and he speaks at their level," says a congressional intelligence staffer who has seen the general in action with lawmakers. "He has that wonderful quality of being quite likable and unpretentious. And he would work those members assiduously." In fact, he was credited with so effectively defending the National Security Agency's no-warrant wiretapping program after it was exposed in December that he helped turn a simmering scandal into a political win for the Administration -- to a degree that President George W. Bush might have hoped for another assist when he nominated Hayden to replace Porter Goss as CIA director. "In personal appearance, [Hayden] kind of invites you to underestimate him," says a former national-security official who knows him. "Do not underestimate this guy."

In a January 23 speech, Hayden, the deputy director of national intelligence, explained that the warrantless domestic surveillance program operated under a "reasonable basis" standard of proof, which he said was "a bit softer" than the 1978 Foreign Intelligence Surveillance Act's (FISA) "probable cause" requirement for a warrant to conduct domestic electronic surveillance. According to Hayden, the program used this allegedly lower standard of proof to facilitate intelligence collection:

HAYDEN: You know, the 9-11 Commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with Al Qaeda with one end in the United States. The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates.

However, as Media Matters for America noted, Hayden had testified in October 2002 before a joint congressional committee that a "person inside the United States becomes a U.S. person under the definition provided by the FISA Act" and therefore "would have protections as what the law defines as a U.S. person." When asked by then-Rep. Goss (R-FL) whether we could "apply all our technologies and all our capabilities" against a suspected terrorist located in the United States, Hayden replied that he "would have no authorities" to do so. As the weblog Think Progress noted, the NSA's domestic eavesdropping program was active in October 2002. Therefore, at the same time he was telling Congress that the administration recognized FISA's restrictions on surveillance of people in the U.S. legally, Hayden was "pursuing U.S. persons at the direction of the President outside of the FISA statute."

Media Matters also noted that Hayden's claim regarding the program's operating standard was inconsistent with the Bush administration's. In a January 26 Washington Post article, Department of Justice (DOJ) spokeswoman Tasia Scolinos asserted that the standard used by the NSA was no different from that required under FISA. Scolinos explained that the operative standard for NSA surveillance is "reasonable basis," which she said was "essentially the same" standard as FISA's requirement for "probable cause."

In subsequent comments, Hayden contradicted his own claim that the warrantless surveillance program's "reasonable basis" standard of proof was lower than FISA's "probable cause standard." On the February 5 broadcast of Fox Broadcasting Co.'s Fox News Sunday, Hayden claimed that in order to undertake domestic surveillance without a warrant, the NSA must have evidence in the same "probable cause range" that FISA requires to obtain a warrant.