O'Reilly falsely claimed ACLU lawsuit against warrantless wiretapping tried "to overcome" congressional statute

››› ››› RAPHAEL SCHWEBER-KOREN

Bill O'Reilly falsely asserted that the ACLU's lawsuit over the Bush administration's warrantless domestic wiretapping program "was basically an attempt ... to try to overcome a law which was passed by Congress, through the courts." In fact, the ACLU's lawsuit claimed, in part, that the program was in violation of several, as O'Reilly put it, "law[s] ... passed by Congress," including the Foreign Intelligence Surveillance Act of 1978, and asked that the courts enforce those laws by ordering the program shut down.

On the February 19 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly falsely asserted that the American Civil Liberties Union's (ACLU) lawsuit over the National Security Agency's (NSA) warrantless domestic wiretapping program "was basically an attempt ... to try to overcome a law which was passed by Congress, through the courts." In fact, the reverse is true: The ACLU's lawsuit claimed, in part, that the then-operational NSA program was in violation of several, as O'Reilly put it, "law[s] ... passed by Congress," including the Foreign Intelligence Surveillance Act of 1978 (FISA), and asked that the courts enforce those laws by ordering the program shut down.

As Circuit Judge Alice Batchelder wrote in her July 6, 2007, opinion dismissing the case for lack of standing:

The plaintiffs filed suit in the Eastern District of Michigan, seeking a permanent injunction against the NSA's continuation of the [Terrorist Surveillance Program (TSP)] and a declaration that two particular aspects of the TSP -- warrantless wiretapping and data mining -- violate the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act ("APA"), Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"), and the Foreign Intelligence Surveillance Act ("FISA").

Earlier on February 19 the Supreme Court declined to review the U.S. Court of Appeals for the Sixth Circuit's dismissal of the ACLU's lawsuit. FISA was not mentioned during O'Reilly's discussion of the case with his guest, Fox anchor Megyn Kelly, during the segment, titled "Is it legal?"

Currently, FISA requires that the government, under most circumstances, obtain a warrant to eavesdrop on communications either intercepted in the United States or acquired by intentionally targeting the communications of a particular, known U.S. person who is in the United States. On January 17, 2007, then-Attorney General Alberto R. Gonzales announced that the Bush administration would not reauthorize the warrantless domestic wiretapping program and had received authorization from the FISA Court to conduct surveillance within its jurisdiction. The Bush administration did not, however, abandon the argument that it has the authority to conduct warrantless wiretaps despite Congress' prohibitions. Thus, contrary to O'Reilly's claim, it is the White House -- not the ACLU -- that has sought to "overcome a law which was passed by Congress."

From the February 19 edition of Fox News' The O'Reilly Factor:

O'REILLY: Now, the appeals court, the 6th Circuit, said that you can't, ACLU, produce any victims here. That was the --

KELLY: Right.

O'REILLY: -- crux of the matter, right?

KELLY: And that's the problem. If the ACLU knows this, it's like first-year law student fodder, when you learn that you have to have what's called standing in order to bring a lawsuit. You have to be injured. You have to prove injury to yourself. We don't allow people who don't --

O'REILLY: And they couldn't come up with anybody who was injured.

KELLY: Right. And they say, "Hey, look, that's not our fault, because the government keeps it secret who they're wiretapping and who they're not." Well, that's the law. We don't generally reveal our national security facts to anybody for the asking.

O'REILLY: Right. And so it was basically an attempt to embarrass the Bush administration and to try to overcome a law which was passed by Congress, through the courts, which is what the ACLU does all the time.

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