During a January 17 World News Tonight report on two recently filed lawsuits that challenge the legality of the warrantless domestic surveillance program conducted by the National Security Agency (NSA), ABC Justice Department correspondent Pierre Thomas failed to disclose that Bradford A. Berenson, the “legal scholar” he quoted to represent the position that “it's really questionable” whether the lawsuits can go forward, worked as a White House lawyer for President Bush and may have been involved in reviewing and approving the surveillance programs in question.

The lawsuits, filed by the Center for Constitutional Rights and the American Civil Liberties Union, allege that Bush illegally authorized the NSA's surveillance program and that the program violated the plaintiffs' constitutional rights.

In reporting on the lawsuits, Thomas asserted that "[s]ome legal scholars believe that potential victims will have to prove they were spied on, something the government is not likely to confirm." He then provided a quote from Berenson, identified on screen only as “former Associate White House Counsel,” who said, “It's really questionable whether the courts are going to allow a major lawsuit to go forward based on vague and speculative allegations like that.”

At no point did Thomas report that Berenson, in fact, worked for the current Bush White House; Thomas did not question Berenson on any role he may have played in advising Bush on the legality of the NSA program or whether Berenson has any interest in the outcome of the lawsuits, on whose chances of success he was opining. In fact, Berenson, currently a partner at the law firm of Sidley Austin LLP, worked on counterterrorism issues in the White House counsel's office just after September 11, 2001, the same time as the NSA program's legal justifications were drawn up and the president first authorized it, as The New York Times reported on December 16. Bush, in his December 17 radio address, said he reauthorized the NSA program every 45 days after a review that “includes approval by our nation's top legal officials, including the attorney general and the counsel to the president.” A March 3, 2003, Sidley Austin press release announcing Berenson's return to the law firm after his work in the White House counsel's office states that "[i]n the aftermath of the September 11 attacks, Berenson played a significant role in the executive branch's counterterrorism response."

Berenson's online biography elaborates further:

From January 2001 through January 2003, Mr. Berenson served as Associate Counsel to the President of the United States. In the White House, he worked on a wide variety of legal, legislative and policy issues associated with the Bush Administration's relations with Congress, its justice and domestic policy initiatives, and the war on terrorism. These included judicial selection, responses to congressional oversight and investigations, the USA Patriot Act, the Military Order authorizing the use of military commissions, detainee policy and anti-terrorism litigation, presidential action against terrorist financing, and the creation of the new Department of Homeland Security.

The USA Patriot Act amended the 1978 Foreign Intelligence Surveillance Act, the principal law that the president is accused of violating.

From the January 17 broadcast of ABC's World News Tonight:

THOMAS: But will these lawsuits hold up in court? Some legal scholars believe that potential victims will have to prove they were spied on, something the government is not likely to confirm.

BERENSON: It's really questionable whether the courts are going to allow a major lawsuit to go forward based on vague and speculative allegations like that.

THOMAS: Even those filing the lawsuits admit they have no hard evidence they were spied on, and want the government to provide the proof.

RACHEL MEEROPOL (Center for Constitutional Rights attorney): We want confirmation that we were wiretapped or else confirmation that we weren't.

THOMAS: Today, the Bush administration called these lawsuits baseless.

SCOTT McCLELLAN (White House press secretary): I think that the frivolous lawsuits do nothing to help enhance civil liberties or protect the American people.

THOMAS: Even if these lawsuits fail, expect critics of the NSA spy program to try other tactics to hold the government accountable.