On the January 4 edition of Fox News' Special Report with Brit Hume, Fox News chief Washington correspondent Jim Angle reported that warrantless eavesdropping on domestic communications would not violate the Foreign Intelligence Surveillance Act (FISA) “if the intelligence were gathered overseas and an overseas person were targeted.” The following day, Angle used comments by former Bush National Security Council deputy counsel Bryan Cunningham to support his claim, offering it as an explanation for “why President Bush did not seek the approval of the FISA court” in connection with his authorization allowing the National Security Agency (NSA) to eavesdrop on communications to and from Americans. While Angle's hypothetical claim is debatable, it is also irrelevant, as it does not reflect the reported reality of Bush's controversial NSA program.

FISA's warrant requirements kick in only if an eavesdropping program falls under the FISA definition of “electronic surveillance.” Under 000-.html#f">one definition in FISA, a warrant is required for the following:

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States...

Depending on the particular circumstances, Angle's claim -- that warrantless wiretapping would not violate FISA “if the intelligence were gathered overseas and an overseas person were targeted” -- may be true. However, that is not the conduct for which legality is currently in question.

The conduct that has touched off the current furor is the reported gathering of intelligence domestically, involving surveillance of people in the United States. New York Times reporters Eric Lichtblau and James Risen reported in a December 24 article that “according to current and former government officials,” the NSA “has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity.” They said that the communications were “collected by tapping directly into some of the American telecommunication system's main arteries.”

Lichtblau and Risen reported that as part of Bush's program, “the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.” Lichtblau and Risen further noted that “the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.”

FISA further 000-.html#a">specifies that the attorney general may authorize warrantless electronic surveillance only after certifying under oath that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a 000-.html#i">United States person (a U.S. citizen or permanent legal resident) is a party." In their December 16 article, which first revealed Bush's surveillance program, Risen and Lichtblau reported that “according to the officials familiar with the N.S.A. operation,” Bush authorized “some warrantless eavesdropping on those inside the United States -- including American citizens, permanent legal residents, tourists and other foreigners.”

Despite The New York Times' reporting, in a conversation with host Brit Hume on January 4, Angle defined the issue in a misleading manner: "[I]f the intelligence were gathered overseas and an overseas person were targeted, that would not require a FISA warrant." Angle did not tell viewers that this scenario conflicted with actual reports about Bush's program.

On the following day's Special Report, Angle elaborated further on this hypothetical scenario. Introducing Angle's January 5 report, Hume claimed: “Some clarity is beginning to emerge tonight about why President Bush may have decided to authorize the National Security Agency to eavesdrop without warrants on some international communications that had one end in the U.S.”

Following Hume's introduction, Angle reported: “Some intelligence experts say there are many circumstances that simply do not require such a warrant.” Angle then played Cunningham's taped comments:

CUNNINGHAM: If, for example, the communications were monitored overseas, say, with a satellite over Afghanistan, or if the calls of the -- if the communications of the people in the United States were not, quote, unquote, “targeted for collection.”

Angle added: “So if the U.S. were listening to a phone used by [Osama] bin Laden and they heard a call he made to someone in the United States, several intelligence sources say that does not require a warrant.”

An onscreen graphic noted that Cunningham formerly served as deputy counsel for the National Security Council but did not reveal that he held this position under Bush from 2002-2004 -- while the administration was conducting its surveillance program. (During the Clinton administration, Cunningham served as assistant general counsel at the Central Intelligence Agency, then as a trial attorney and special assistant United States attorney in the Justice Department.)

Angle's hypothetical example, in which overseas intelligence-gathering might not require a FISA warrant, not only conflicts with the Times' reporting of what has actually occurred, it also appears to be inconsistent with a Bush administration admission about the eavesdropping program. At a December 19 press conference, principal deputy director of national intelligence Lt. Gen. Michael V. Hayden -- who was serving as NSA director at the time Bush approved the program -- acknowledged that the program goes beyond what is authorized under FISA. Hayden stated: “We understand that this is a more -- I'll use the word 'aggressive' -- program than would be traditionally available under FISA.”

From the January 4 edition of Fox News' Special Report with Brit Hume:

ANGLE: But if you get into legal arguments, there are several circumstances under which what the president -- what we believe the president did and authorized NSA to do -- would not require a warrant. For instance, if the intelligence were gathered overseas and an overseas person were targeted, that would not require a FISA warrant. I asked Senator [Russell] Feingold [D-WI] --

HUME: Even if the phone call was coming into the U.S.?

ANGLE: Yes. Even if it were coming into the U.S. I asked Senator Feingold about that today. He says if one end of that conversation is in the U.S., then it does require a warrant. Now, intelligence experts insist that is not correct. So, there is an argument over what the law actually says, much less over what the president did.

From the January 5 edition of Fox News' Special Report with Brit Hume:

HUME: Some clarity is beginning to emerge tonight about why President Bush may have decided to authorize the National Security Agency to eavesdrop without warrants on some international communications that had one end in the U.S. Fox News chief Washington correspondent Jim Angle reports.

[begin video clip]

ANGLE: One of the key unanswered questions in the NSA controversy is why President Bush did not seek the approval of the FISA court, which acts in secret to issue warrants for eavesdropping. Some intelligence experts say there are many circumstances that simply do not require such a warrant.

CUNNINGHAM: If, for example, the communications were monitored overseas, say, with a satellite over Afghanistan, or if the calls of the -- if the communications of the people in the United States were not, quote, unquote, “targeted for collection.”

ANGLE: So if the U.S. were listening to a phone used by bin Laden and they heard a call he made to someone in the United States, several intelligence sources say that does not require a warrant.

[end video clip]