ABC, NBC continued pattern of ignoring Hayden's misleading 2002 testimony

On May 18, reports by both ABC's World News Tonight and NBC's Nightly News about the Senate hearing on Gen. Michael Hayden's nomination to be Director of Central Intelligence aired Sen. Ron Wyden's (D-OR) comment that he had "a difficult time with [Hayden's] credibility." But neither network mentioned the reasons cited by Wyden to explain his concern, including Hayden's misleading statement to Congress in 2002 that the National Security Agency did not have the authority to electronically eavesdrop on U.S. residents without a warrant -- even as the NSA was reportedly conducting such surveillance. And while NBC's report merely provided no specific context for viewers to assess Wyden's charge, the ABC report, by chief Washington correspondent George Stephanopoulos, further misrepresented the exchange by juxtaposing it with Senate Select Committee on Intelligence chairman Pat Roberts's (R-KS) assertion that Democrats "had not objected to the program in more than two dozen classified briefings." This juxtaposition falsely suggested that Wyden's concerns about credibility were based on his objections to the administration's domestic surveillance program, not on the specific issue of Hayden's truthfulness to Congress.

As Media Matters has noted, in 2002, Hayden testified before a joint congressional committee investigating the September 11 terrorist attacks that surveillance by the NSA on any citizen or legal resident could be conducted only pursuant to the Foreign Intelligence Surveillance Act (FISA). But, Wyden said, at the time Hayden testified, White House lawyers had already told Hayden that the NSA could conduct electronic surveillance on people in the United States without obtaining FISA warrants. Media Matters for America has noted examples of the media ignoring Hayden's 2002 testimony here and here.

Hayden's 2002 testimony was the first example that Wyden presented at the May 18 hearing to justify his concerns about Hayden's credibility. But neither ABC nor NBC aired Wyden's reference to the 2002 testimony or to the other example Wyden cited as the basis for his concern about Hayden's credibility. ABC instead juxtaposed it with questioning of Hayden by Roberts, which took place approximately two hours later:

WYDEN: In your opening statement, you said that under your leadership, the CIA would act according to American values. So we're not talking about a law here, but we're talking about values. For me, values are about following the law and doing what you say you are going to do.

When it comes to values, credibility is at the top of my list. Now, General, having evaluated your words, I now have a difficult time with your credibility. And let me be specific.

On the wiretapping program in 2001, you were told by the president's lawyers that you had authority to listen to Americans' phone calls. But a year later, in 2002, you testified that you had no authority to listen to Americans' phone calls in the United States unless you had enough evidence for a warrant. But you have since admitted you were wiretapping Americans.

Let me give you another example. After you admitted you were wiretapping Americans, you said on six separate occasions the program was limited to domestic-to-international calls. Now the press is reporting that the NSA has amassed this huge database -- that we've been discussing today -- of domestic calls.

So with all due respect, General, I can't tell now if you've simply said one thing and done another, or whether you have just parsed your words like a lawyer to intentionally mislead the public. What's to say that if you're confirmed to head the CIA we won't go through exactly this kind of drill with you over there?

HAYDEN: Well, Senator, you're going to have to make a judgment on my character. Let me talk a little bit about the incidents that you brought up.

The first one, I believe, is testimony in front of the combined HPSCI [House Permanent Select Committee on Intelligence] and SSCI [Senate Select Committee on Intelligence], the joint inquiry commission on the attacks of 9-11. And in my prepared remarks, I was trying to be very careful because we were talking not in closed session in front of the whole committee, but in front of the whole committee in totally open session. I believe -- and I haven't looked at those remarks for a couple of months now -- I believe I began them by saying that I had been forthcoming in closed sessions with the committee. Now, you may quibble that I've been forthcoming in closed sessions with some of my information with the leadership of the committee or with the entire committee, but that the language of the statute you referred to earlier does allow for limited briefings in certain circumstances. And I know there'll probably be questions on what are those legitimate circumstances.

If anyone in the U.S. government should be empathetic to the dilemma of someone in the position I was in, it should be members of this committee who have classified knowledge floating around their left and right lobes every time they go out to make a public statement. You cannot avoid in your responsibilities talking about Iran, or talking about Iraq, or talking about terrorist surveillance. But you have classified knowledge. And your challenge and your responsibility is to give your audience at that moment the fullest, most complete, most honest rendition you can give them, knowing that you are prevented by law from telling them everything you know.

That's what I did while I was speaking in front of the National Press Club. I chose my words very carefully because I knew that some day I would be having this conversation. I chose my words very carefully because I wanted to be honest with the people I was addressing. And it wasn't that handful of folks downtown. It was looking into the cameras and talking to the American people.

[...]

ROBERTS: There was, as I recall, a conversation unto the necessity of, perhaps, to fix FISA -- if that's not an oxymoron -- to improve FISA, to reform FISA. And that is an ongoing discussion in this committee and in the Judiciary Committee.

And my memory is that it was members of Congress who gave you advice not to do that. Is that correct?

HAYDEN: Sir, that was in the large group in March of 2004. And there were discussions. FISA was considered to be one of the ways ahead. And my memory of the conversation is that there were concerns, I would say, almost universally raised, that it would be very difficult to do that and maintain the secrecy which was one of the advantages of the program.

ROBERTS: There was in fact, during these briefings, pretty much a unanimous expression of support. Is that correct?

HAYDEN: Sir, again, I'm reluctant to characterize members. But, again, the issues raised, any concerns answered, questions answered -- we all left knowing we had our jobs to do. And I came away with no course corrections.

From the May 18 broadcast of ABC's World News Tonight:

ELIZABETH VARGAS (anchor): Now, to the man President Bush wants to lead the Central Intelligence Agency. A Senate committee put General Michael Hayden on the hot seat today. His confirmation hearing began after weeks of controversy about government surveillance of Americans in the search for terrorists. ABC's chief Washington correspondent, George Stephanopoulos, joins us now with more. George?

STEPHANOPOULOS: Elizabeth, that program was the focus today. But General Hayden disarmed the committee by promising to crack down on leaks, train better spies and obey the law.

STEPHANOPOULOS: From the start, the four-star general appeared to be among friends.

ROBERTS: General Hayden is no stranger to this committee.

STEPHANOPOULOS: And he promised to fix a CIA under fire.

HAYDEN: CIA needs to get out of the news, as source or subject, and focus on protecting the American people by acquiring secrets and providing high-quality, all-source analysis.

STEPHANOPOULOS: Democrats wasted no time grilling Hayden on the controversial warrantless wiretapping program he ran at the National Security Agency, especially recent allegations that the NSA collected records of billions of American phone calls.

SEN. CARL LEVIN (D-MI): Would you say there are privacy concerns involved in this program?

HAYDEN: I could certainly understand why someone would be concerned about this.

LEVIN: But that's not my question, General. It's a direct question.

HAYDEN: Sure.

LEVIN: In your judgment, are there privacy --

HAYDEN: You want me to say yes --

LEVIN: No, I want you to say whatever you believe.

HAYDEN: Clearly, the privacy of American citizens is a concern constantly.

WYDEN: I now have a difficult time with your credibility.

HAYDEN: Well, Senator, you're gonna have to make a judgment on my character.

STEPHANOPOULOS: But the committee's chairman charged that Democrats had not objected to the program in more than two dozen classified briefings.

ROBERTS: There was, in fact, during these briefings, pretty much a unanimous expression of support. Is that correct?

HAYDEN: I came away with no course corrections.

STEPHANOPOULOS: Hayden resisted calls from some senators to retire from the military.

HAYDEN: The fact I have to decide what tie to put on in the morning doesn't change who I am.

STEPHANOPOULOS: But he also promised to stand up to the Pentagon when necessary.

SEN. ORRIN HATCH (R-UT): There are two messages for you. One is from [former] Ambassador [and director of national intelligence John] Negroponte and the other one is from Secretary [of Defense Donald H.] Rumsfeld. Whose call are you going to return first?

HAYDEN: Yes, sir, that's pretty straightforward.

HATCH: That's straightforward, yeah.

HAYDEN: Yes, sir. I work for the ambassador. So, I would return his call.

STEPHANOPOULOS: That was the right answer. The committee went into closed session after the public hearing. And they're expected to confirm General Hayden next week. Elizabeth?

VARGAS: All right, George. Thanks so much.

From a report by NBC chief foreign affairs correspondent Andrea Mitchell on the May 18 broadcast of NBC's Nightly News:

MITCHELL: General Hayden aggressively defended warrantless eavesdropping and a second program to track telephone numbers as legal.

OFFSCREEN VOICE: -- the truth, so help you God.

MITCHELL: Under fire about government surveillance from committee Democrats, Hayden wouldn't back down.

HAYDEN: It's clear the privacy of American citizens is a concern constantly, and it's a concern in this program, it's a concern in everything we've done.

MITCHELL: He insisted the National Security Agency targets Al-Qaeda, not ordinary Americans. Most committee members were not briefed on the secret programs until late yesterday, a last-minute White House effort to blunt today's questions. It didn't completely work.

SEN. RUSSELL FEINGOLD (R-WI): I came away from that briefing yesterday more convinced than ever, first, that the program is illegal.

WYDEN: Having evaluated your words, I now have a difficult time with your credibility.

HAYDEN: Well, Senator, you're going to have to make a judgment on my character.

MITCHELL: At one point, Hayden claimed that if they had been tracking calls before 9-11, they would have caught Khalid al-Mihdhar and Nawaf al-Hazmi, two of the hijackers who flew into the Pentagon. But according to the 9-11 Commission report and a Senate inquiry, the CIA did know about the two men and didn't tell the FBI.