On the April 2 edition of Fox Broadcasting Co.'s Fox News Sunday, host Chris Wallace offered up a series of false or misleading statements regarding President Bush's authorization of a warrantless domestic wiretapping program conducted by the National Security Agency (NSA), in apparent contravention of the Foreign Intelligence Surveillance Act (FISA), which requires that warrants be obtained for the surveillance of U.S. persons:

• Wallace claimed that the Bush administration “brief[ed] members of Congress more than a dozen times” on the wiretapping program. But, as Media Matters for America has previously noted, several members of Congress have said that the briefings they received did not constitute written reports about the program required by law. Additionally, many of the Democrats who said they had been informed about the program contend that they were not told about its actual nature or extent.

• Wallace suggested that “congressional leaders” were “complicit in the lawbreaking” under the wiretapping program because they “said no” to changes in the program. In fact, Attorney General Alberto R. Gonzales has stated that it was the Bush administration that dismissed the idea of changing the FISA law to allow the domestic eavesdropping.

• In keeping with a pattern on Fox News, Wallace cropped a quote by Rep. Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, to suggest that she had not criticized the program. Wallace omitted a portion of her remarks, in which she stated that she was “concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.”

Wallace claimed Congress was briefed on the wiretapping program

Wallace interviewed Sen. Russ Feingold (D-WI) regarding his proposed resolution to censure Bush over the wiretapping program. Noting that Feingold had called John Dean, a former White House counsel to President Richard Nixon and current FindLaw columnist, as a witness during a Senate committee hearing on the censure proposal, Wallace asked Feingold: “Did President Nixon brief members of Congress more than a dozen times before and during Watergate?” When Feingold countered that “President Bush broke the law when he did not brief the entire Intelligence Committee,” Wallace reiterated:

WALLACE: [T]he fact is, President Bush briefed the congressional leaders, both House and Senate, Republican and Democrat, also the leaders of the Intelligence Committee, Republican and Democrat, both House and Senate, more than a dozen times before and during this NSA wiretap program. Isn't that a big difference [between the wiretapping and Watergate]?

But as Media Matters has previously noted, several members of Congress have said that the briefings they received were not as extensive as required by law, and many of the Democrats, who said they had been informed about the program, contend that they were not told about its actual nature and extent.

Former Sen. Bob Graham (D-FL), chairman of the Senate Intelligence Committee at the time Bush first authorized the wiretapping program, and Rep. Peter Hoekstra (R-MI), the Republican chairman of the House Intelligence Committee -- along with aides to Sen. John D. Rockefeller IV (D-WV) and Senate Democratic Leader Harry Reid (D-NV) -- have all said that the briefings they received did not constitute written reports about the program, which are required of the White House under the National Security Act of 1947 (as amended in 2001). (Hoekstra subsequently said that the Bush administration's limited briefings to the heads of the House and Senate intelligence committees were in compliance with the law.) Additionally, a January 18 report by the nonpartisan Congressional Research Service concluded that the Bush administration's limited notification of Congress about the domestic surveillance program “appear[s] to be inconsistent with the law.”

In a December 21, 2005, statement, Harman said that she was “deeply concerned by reports that this [wiretapping] program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.” Former Senate Majority Leader Tom Daschle (D-SD) also said there were “omissions of consequence” in the briefings he received in 2002 and 2004. Additionally, Graham has claimed that he was never even informed “that the program would involve eavesdropping on American citizens.” Further, a December 23, 2005, New York Times article noted that Reid -- along with Harman and Graham -- “have all suggested in recent days that they were not provided with a complete accounting of the program, and that they might have raised objections if they had understood its scope.”

Wallace claimed congressional leaders were “complicit in the lawbreaking” because they “said no” to changes in the program

During his interview with Feingold, Wallace also suggested that “congressional leaders” were “complicit in the lawbreaking” under the wiretapping program. In support of this suggestion, Wallace stated that "[i]t has been reported" that, before instituting the program, “the White House suggested perhaps there should be some legal changes made to the program, and the congressional leaders said no, because if so, the program would be leaked.” During a later interview with Sen. Lindsey Graham (R-SC), Wallace falsely attributed this assertion to Feingold, stating: “Senator Feingold says that if Congress doesn't stand up for itself, you become complicit in the lawbreaking.”

But Wallace's claim that “congressional leaders” were “complicit in the lawbreaking” appears to refer to statements the Bush administration made about changing the FISA law to permit the program, not about changing the program to make it conform to FISA. For example, at a December 19, 2005, press briefing, Gonzales stated that the Bush administration “had discussions with members of Congress” about “get[ting] an amendment to FISA” to bring the wiretapping program within the scope of the law, but that the administration was told that changes to the law were “not something we could likely get, certainly not without jeopardizing the existence of the program.” As a result, Gonzales said, “a decision was made that because we felt that the authorities [supporting the legality of the program] were there, that we should continue moving forward with this program.” Gonzales did not state, as Wallace claimed, that the Bush administration offered to make changes to the wiretapping program but that congressional leaders “said no.”

From the December 19, 2005, White House press briefing:

QUESTION: If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Moreover, Bush has stated that he would “resist” attempts by Congress to change the law to bring the program in compliance because such attempts might “expose the nature of the program.” In a January 26 White House press conference, Bush stated:

BUSH: So, as I stand here right now, I can tell the American people the program is legal. It's designed to protect civil liberties, and it's necessary. Now, my concern has always been that in an attempt to try to pass a law on something that's already legal, we'll show the enemy what we're doing. And we have briefed Congress -- members of Congress. We'll continue to do that, but it's important for people to understand that this program is so sensitive and so important, that if information gets out to how it's -- how we do it, or how we operate, it will help the enemy. And so, of course, we'll listen to ideas. But, John, I want to make sure that people understand that if it -- if the attempt to write law makes this program -- is likely to expose the nature of the program, I'll resist it. And I think the American people understand that. Why tell the enemy what we're doing if the program is necessary to protect us from the enemy?

Wallace cropped Harman's quote to suggest she had not criticized wiretapping program

Moments after claiming that “almost two dozen members of Congress have been briefed in detail about the program” and that congressional leaders were “complicit in the lawbreaking” because they did not call for changes to the program, Wallace criticized members of Congress -- including Feingold -- for speaking out against the program without being fully briefed on it. Wallace claimed that the members of Congress who were “briefed in detail about the program” have not “criticized the program in public.” He then selectively quoted a statement from Harman, in which she called the program “essential to U.S. national security.”

But in keeping with a pattern on Fox News (documented by Media Matters here), Wallace omitted a portion of Harman's statement, in which she stated that she was “deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.” As Media Matters documented, a December 22, 2005, Los Angeles Times article reported Harman's full statement:

Among those briefed on the spy program was Rep. Jane Harman (D-Venice), the House Intelligence Committee's top Democrat, who said Wednesday that she approved of the program as it was described to her, but that she had new reservations.

“I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities,” Harman said. “Like many Americans, I am deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.”

Moreover, shortly after the NSA program was revealed, Harman expressed concerns. On December 17, 2005, the day after The New York Times broke the story, Harman and other congressional Democrats reportedly sent a letter to Bush expressing concern that media accounts “have gone beyond what the administration” had briefed congressional leaders. Harman also signed off, along with five other House Democrats, on a letter requesting that Speaker of the House J. Dennis Hastert (R-IL) “take steps immediately to conduct hearings on the scope of Presidential power in the area of electronic surveillance.” The letter also stated that the signatories “believe that the President must have the best possible intelligence to protect the American people, but that intelligence must be produced in a manner consistent with our Constitution and our laws, and in a manner that reflects our values as a nation.”

From the April 2 edition of Fox Broadcasting Co.'s Fox News Sunday:

WALLACE: Senator, in a hearing this week, you said that the president's wiretap program is -- and I quote -- “one of the greatest attempts to dismantle our system of government in history;” and you called John Dean as a witness, who said that this is worse than Watergate. Senator, do you really believe there is any comparison?

FEINGOLD: Actually, I do think this is worse. Not in terms of personal misconduct. Our greatest priority in this country is fighting the terrorist elements that attacked us on 9-11. But when the president breaks the law and doesn't admit that he's broken the law, and then advances theories about being able to override the law on torture and having a preemptive doctrine of war, what he's trying to do is change the nature of our government.

He's trying to turn our presidency into an imperial presidency. So, this is one of the greatest challenges in our history, to Congress to stand up and make sure we still have the rule of law and checks and balances. That's why it's actually more significant than the various serious events that occurred at Watergate.

WALLACE: Well, Senator, let me explore that comparison with you if I can. Did President Nixon brief members of Congress more than a dozen times before and during Watergate?

FEINGOLD: Certainly not, and that's not the point. In fact, President Bush broke the law when he did not brief the entire Intelligence Committee in this case, but that's not the --

WALLACE: But wait, wait, wait. That's not -- but Senator, I mean the fact is, President Bush briefed the congressional leaders, both House and Senate, Republican and Democrat, also the leaders of the Intelligence Committee, Republican and Democrat, both House and Senate, more than a dozen times before and during this NSA wiretap program. Isn't that a big difference?

FEINGOLD: Well, Chris -- Chris, where I come from here in Wisconsin, if you break the law and you go tell people you're breaking the law, that doesn't make it OK. If you're breaking the law, you're breaking the law. In this case, the president does not have a legal leg to stand on.

[...]

WALLACE: Senator, I want to go back to the briefing of congressional leaders, because, as I say, he did brief congressional leaders of both parties more than a dozen times. It has been reported that when he set up the program, before he had actually started it, that the White House suggested perhaps there should be some legal changes made to the program, and the congressional leaders said no, because if so, the program would be leaked. In that sense, aren't the congressional leaders complicit in the lawbreaking?

FEINGOLD: Well, of course, they're limited in terms of what they can say about it because of the rules in terms of the members of the “gang of eight” [which includes House and Senate leaders, as well as the heads of the congressional intelligence committees] and the Intelligence Committee people. And I want to remind you that the president broke the statute from 1947 by not fully informing the entire Intelligence Committees. So, he didn't even achieve the -- a legal basis there. That's not the main point, but to somehow suggest that the president of the United States gets off the hook because he briefed a few members who couldn't talk about it is to miss the point.

[...]

WALLACE: Senator, let's talk about what's at the basis of all this, which is the NSA warrantless wiretap program that the president authorized. Have you been briefed on the program?

FEINGOLD: I've been briefed to some degree, but certainly not completely. I am on the Senate Intelligence Committee, and we got somewhat more information than other senators get, but then the full briefing is only being given to a sub-portion of the Intelligence Committee, and that's one of the reasons I decided it was time for the censure resolution, because it became clear that there was not going to be the kind of investigation that had to happen to find out exactly what this program is all about.

WALLACE: Do you know how the NSA decides whom to wiretap? Do you have any evidence that the civil liberties of any innocent Americans have been violated?

FEINGOLD: I know some things about it, but I'm not able to talk about it. What I can tell you is this -- is that I am absolutely convinced, after five hearings, three in the Judiciary Committee, two in the Intelligence Committee, that there is no legal basis for this. I may not know all the details, but it's clear from everything we've heard that you can't sort of create a new law or a new statute or a new constitutional provision.

[...]

WALLACE: Well, let me ask you about that, Senator, because almost two dozen members of Congress have been briefed in detail about the program, members of the House and Senate Intelligence Committee. None of them, after those detailed briefings, have criticized the program in public, and I want to put up the comments of two Democrats who have been briefed. Senator Dianne Feinstein said: “I think it's a very impressive program.” Congresswoman Jane Harman, the top Democrat on House Intelligence, said: “I believe the program is essential to U.S. national security.”

Senator, it seems that the people who are criticizing this program are the ones who know the least about it.

FEINGOLD: Of course it's essential to national security. All we have to do is bring it within the Foreign Intelligence Surveillance Act, and I know that Congresswoman Harman has said specifically that she does not believe we need to change the law in this area, that it can be done within the Foreign Intelligence Surveillance Act. So, the very member of Congress that you've cited has said we all think this program is important, but it can be done within the law. That's the point. The White House keeps acting as if we don't want them to be able to do this. Of course we do. We just need a court check and balance. That's what the Foreign Intelligence Surveillance Act is all about, to make sure that the White House doesn't run amuck, or somebody doing this doesn't abuse the law.

So, there's no dispute about whether we should have it. And those very senators, including Senator Levin himself, have certainly not said publicly that it's essential that we go outside of the law to do this. I've heard none of them say this, and none of them will say that.

[...]

WALLACE: Joining us now to talk about immigration, Iraq and more, Republican Senator Lindsey Graham, who comes to us from his home state of South Carolina. Senator, welcome back to Fox News Sunday.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Thank you for having me yet again.

WALLACE: Let's start with Senator Feingold's censure motion. You have expressed doubts about the legal basis for the president's NSA wiretap program. Senator Feingold says that if Congress doesn't stand up for itself, you become complicit in the lawbreaking.