In a May 10 National Review Online article, Adam White, a former clerk on the U.S. Court of Appeals for the D.C. Circuit, falsely claimed that Media Matters for America was among a variety of groups to accuse former National Security Agency director Gen. Michael V. Hayden of misrepresenting the Constitution in asserting in defense of the administration's warrantless domestic surveillance program that the Fourth Amendment requires that the government meet only a reasonable basis standard rather than a “probable cause” standard in conducting searches. In fact, in the item to which White links, Media Matters did not “den[ounce]” Hayden for claiming that the Fourth Amendment does not require probable cause for a search. Rather, Media Matters raised the question of whether the media, in repeating Hayden's legal defense of the administration's warrantless surveillance program, would note that the administration, in a 2002 statement, appeared to express a different view of what the standard should be, at least with regard to Foreign Intelligence Surveillance Act (FISA) warrants.

White wrote:

Hayden was right and his critics were wrong. The next CIA director's understanding of the Fourth Amendment entirely comports with the text of the amendment and with the Supreme Court's interpretation of it.

In his January speech, Hayden was confronted by Knight-Ridder's Jonathan Landay over the protections of the Fourth Amendment. The exchange, reprinted Monday on Editor & Publisher's website, bears reprinting in full:

[...]

Hayden's critics unanimously sided with Landay; sharp (often mocking) denunciations quickly appeared on Media Matters, Daily Kos, Countdown with Keith Olbermann (“Well, maybe they have a different Constitution over there at the NSA”), and elsewhere.

White linked to a January 24 Media Matters item, excerpted below. But, contrary to White's claim, Media Matters did not accuse Hayden of falsely asserting that the constitutional standard for government surveillance is “reasonable basis” rather than “probable cause.” Media Matters did note that Hayden's January 23 claim that the NSA program's use of a “reasonable basis” standard was necessary to expedite intelligence collection was inconsistent with the Bush administration's past arguments against lowering the standard of proof required for obtaining a warrant for electronic surveillance from “probable cause” to “reasonable basis.” A 2002 Justice Department statement noted that such a change -- proposed by Sen. Mike DeWine (R-OH) -- might not be constitutional or necessary. From Media Matters' January 24 item:

In the past two days, numerous media outlets have -- without challenge -- cited Gen. Michael V. Hayden's January 23 claim that the Bush administration's decision to bypass the Foreign Intelligence Surveillance Act (FISA) court to monitor domestic phone conversations is legal because the program has targeted only phone calls that the National Security Agency (NSA) has a “reasonable basis to believe involve Al Qaeda or one of its affiliates.” Some media have repeated the more specific claim by Hayden, a deputy director for national intelligence and former head of the NSA, that the program is legal because the Fourth Amendment requires that the government have only a “reasonable basis” for the surveillance, rather than meet the stricter “probable cause” standard required for a FISA warrant.

But as attorney and blogger Glenn Greenwald noted on January 24, even as the administration was already bypassing FISA in 2002, the Justice Department issued a statement opposing proposed legislation by Sen. Mike DeWine (R-OH) to loosen the standard for such surveillance under FISA from “probable cause” to “reasonable basis.” The administration argued in the statement that lowering the standard was likely unnecessary and possibly unconstitutional. In light of this revelation, which contradicts 1) Hayden's suggestion that the stricter “probable cause” requirement under FISA was inhibiting crucial intelligence gathering and 2) the administration's claim that Congress had tacitly authorized the administration's circumvention of FISA in conducting its secret surveillance program, will the media outlets that repeated Hayden's defense of the program's legality under the Fourth Amendment now report the facts undermining that defense?

As indicated in the excerpt, Media Matters did raise the question of whether, in reporting on Hayden's claims regarding the constitutionality of the program's purported “reasonable basis” standard, the media would also note that the Bush administration had expressed a different view on the need for a lower standard and had raised questions about the constitutionality of changing the standard under certain circumstances.

Media Matters also noted in subsequent items that Hayden later contradicted himself on the NSA program's standard of proof. In his January 23 speech, he described the “reasonable basis” standard as “a bit softer than it is for a FISA warrant,” and directly acknowledged that the NSA program adopted a “lower standard” than required under FISA. On the February 5 edition of Fox Broadcasting Co.'s Fox News Sunday, however, he claimed that the NSA program's “reasonable basis” standard “is in that probable cause range” established by FISA.