In a May 14 Associated Press article, staff writer Douglass K. Daniel reported that the Bush administration's warrantless domestic surveillance program allows “eavesdropping on phone calls to and from the United States when the calls involve al-Qaida and its operatives.” In fact, while the National Security Agency (NSA) program is officially described as targeting those suspected of having ties to terrorist groups, news reports have indicated that the operation has led to the surveillance of thousands of Americans with no ties to terrorism. Further, in reporting on the legal issues surrounding the NSA surveillance, Daniel falsely suggested that lawmakers' concerns were limited to the adequacy of the briefings provided to Congress. But Daniel ignored a central concern that lawmakers of both parties have articulated: the administration's apparent flouting of requirements imposed by Congress in the Foreign Intelligence Surveillance Act (FISA).

A separate May 11 AP article by staff writer Devlin Barrett described the NSA operation as a “terrorist surveillance program.” Media Matters for America has repeatedly noted the AP's uncritical use of this misleading label -- the White House's favored terminology for the NSA program (see here, here, and here).

Daniel's article -- headlined “Lawmakers Look to Query Hayden on Spying” -- focused on the upcoming confirmation hearings for Air Force Gen. Michael V. Hayden, President Bush's nominee for CIA director. Daniel wrote that “Hayden should expect sharp questioning” regarding his role in designing and implementing the NSA's controversial domestic surveillance programs. As USA Today revealed on May 11, since 2001, the agency has been collecting and analyzing the domestic call records of millions of Americans. Earlier, on December 16, 2005, The New York Times exposed the NSA's surveillance of the international communications of thousands of U.S. residents, in apparent violation of FISA.

Daniel described the NSA's domestic eavesdropping program as limited to those communications involving “al-Qaida and its operatives,” echoing the administration's defense of the NSA activities as "limited" and "focused on Al Qaeda." But as Media Matters has noted, various news reports indicate that the NSA surveillance is more wide-ranging than the White House has suggested and has ensnared thousands of Americans with no ties to Al Qaeda or other terrorist groups. For instance, a February 5 Washington Post article quoted “current and former government officials” saying that "[i]ntelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat." Further, a January 17 New York Times article noted the poor assessments of the domestic spying program among “current and former law enforcement and counterterrorism officials.” According to the Times, these officials “said the torrent of tips [from NSA wiretapping] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.”

Later in the May 14 article, Daniel reported that “Bush and others have stressed that they believe the programs are constitutional and have safeguards for privacy.” He then turned to the joint appearance by Sen. Arlen Specter (R-PA) and Rep. Jane Harman (D-CA) on the May 14 edition of CBS' Face the Nation. During their discussion with host Bob Schieffer, both lawmakers argued that the White House has failed to inform Congress of the NSA's domestic surveillance activities, as required by law. As Specter said, "[T]here really has to be in our system of law, of government, checks and balance, separation of powers and congressional oversight."

Harman further argued -- as Specter has on previous occasions -- that Bush violated the law in authorizing the NSA to sidestep FISA and conduct domestic surveillance without court approval. From the May 14 edition of CBS' Face the Nation:

HARMAN: I didn't like the claims of [national security adviser] Stephen Hadley in two respects. I agree with Arlen Specter that Congress has not been briefed as required by law. The entire intelligence committees need to be briefed, and I think he should be briefed, too, he and his ranking member, and maybe their full committees if they're going to be asked to change the law, which I don't think is necessary. But that's one thing.

The second point is: Hadley said that FISA, the Foreign Intelligence Surveillance Act, is not appropriate for this kind of thing. I couldn't agree more -- disagree more strongly. FISA, which was passed on a bipartisan basis by Congress in 1978, is the exclusive way to eavesdrop on Americans, and all aspects of this program -- many of us have been saying this -- all aspects of this program have to comply fully with FISA and the Fourth Amendment, and we need court warrants to do any aspect of this program.

SCHIEFFER: Do you think the law has been broken here?

HARMAN: Yes, I do. I think the administration is breaking the law. Its legal rationale that it offers, I think, is extremely shaky. To this White House, the Constitution starts with Article 2, which is the power of the executives. They skip over Article 1 totally; that's the legislature, and Article 3 is the courts. As Arlen Specter just said, that we have a system of checks and balances. Each branch checks the excesses of the other branches. This is a lawless White House out of control with respect to a program like this. Sure, we all want to catch terrorists, but I am against an effort to have the executive branch monitor itself.

But while Daniel reported the lawmakers' assertion that “the White House has not followed the law because it has not briefed all members of the Senate and House intelligence committees,” he omitted the more substantive legal argument articulated by Harman. Daniel even quoted Harman referring to the administration's “legal rationale” as “extremely shaky,” but failed to explain to readers the substance of this criticism:

Specter and Rep. Jane Harman, D-Calif., said the White House has not followed the law because it has not briefed all members of the Senate and House intelligence committees.

“I think the administration is breaking the law. Its legal rationale that it offers, I think, is extremely shaky,” said Harman, the ranking Democrat on the House committee.

“This is a lawless White House, out of control with respect to a program like this. Sure, we all want to catch terrorists, but I am against an effort to have the executive branch monitor itself,” Harman said.