On the February 6 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly claimed that the law requiring a court order for domestic eavesdropping for foreign intelligence purposes -- the Foreign Intelligence Surveillance Act (FISA) -- was “set up to prevent ... criminal abuses.” He then argued that the warrantless domestic surveillance conducted by the National Security Agency (NSA) and authorized by the Bush administration is, by contrast, a “military matter” and asserted that the government has a right to intercept “any kind of communication ... without a warrant in a war.” But contrary to O'Reilly's argument, FISA contains specific provisions addressing the conduct of foreign intelligence surveillance during wartime.

O'Reilly addressed FISA's scope while discussing Attorney General Alberto R. Gonzales's February 6 testimony before the Senate Judiciary Committee. "[H]ere's my argument," O'Reilly said to Fox News political contributor and former Speaker of the House Newt Gingrich (R-GA). “And this is a winner all day long. The wiretap laws are set up to prevent criminal abuses, investigating criminal cases. This [the NSA program] is a military matter. ... You can intercept anything you want, any kind of communication you want without a warrant in a war.”

But as Media Matters for America has noted, Section 1811 of FISA clearly addresses the law's application during wartime. Titled "000-.html">Authorization during time of war," this section grants the president a 15-day window after a congressional declaration of war to conduct foreign intelligence electronic surveillance without a court order. This 15-day period was intended to “allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency,” according to the legislative report accompanying the 1978 law (H.R. CONF. REP. NO. 95-1720, at 34, 1978).

In the February 6 hearing, Gonzales argued that it was the Bush administration's position that the Authorization of the Use of Military Force (AUMF) that was passed by Congress on September 14, 2001, “complement[ed]” the FISA requirements. He noted that FISA prohibits government conduct of domestic surveillance for foreign intelligence purposes "000-.html">except as authorized by statute" and claimed that the AUMF represents such a statute. Committee chairman Arlen Specter (R-PA) said Gonzales's assertion “just defies logic and plain English”:

SPECTER: I don't think you can use principle of avoiding a tough constitutional conflict by disagreeing with the plain words of the statute. Attorney General Gonzales, when members of Congress heard about your contention that the resolution authorizing the use of force amended the Foreign Intelligence Surveillance Act, there was general shock.

GONZALES: We've never asserted that FISA has been amended. We've always asserted that our interpretation of FISA, which contemplates another statute and we have that here in the authorization to use force, those complement each other. This is not a situation where FISA has been overwritten or FISA has been amended. That's never been our position.

SPECTER: That just defies logic and plain English.

From the February 6 edition of Fox News' The O'Reilly Factor:

O'REILLY: OK. Gonzales. Here's what I don't understand: Seventy-two hours, you can get a tap warrant from the FISA court. Why didn't they do it?

GINGRICH: It beats me. It strikes me that this is a fight they don't need. I actually agree that we should be wiretapping any of these calls. I think their lawyers told them they didn't need a wiretap because they were international calls and because they had a Supreme Court decision. And the fact is, I think, the people surrounding the president all came out of a period after Watergate, where they saw the presidential powers shrink, and they are now actively trying to expand the president's national security powers. And I think their bias in 2001 was to push the envelope. My only point for the Congress is if you don't think the president has this power, you ought to find a way to give it to him because the last thing you want is to have the United States not able to eavesdrop if a terrorist organization is making calls into the U.S.

O'REILLY: Well, the ACLU doesn't want that, but here's my argument. And this is a winner all day long. The wiretap laws are set up to prevent criminal -- criminal abuses, investigating criminal cases. This is a military matter. It's a military matter.

GINGRICH: Right.

O'REILLY: You can intercept anything you want, any kind of communication you want without a warrant in a war. And that's it. And that's what they should do.