Three days after attacking Colorado Media Matters and asserting, “I'm awfully careful about my facts,” Newsradio 850 KOA host Mike Rosen falsely claimed that in the signing statement for the Foreign Intelligence Surveillance Act (FISA), then-President Jimmy Carter “said he's not ceding any of his constitutional power.” In fact, Carter's 1978 FISA signing statement said no such thing.

Rosen made his false claim while criticizing the federal district court ruling striking down the Bush administration's warrantless surveillance program as a violation of FISA and the First and Fourth Amendments to the Constitution. Rosen said Carter's signing statement was “particularly ironic because Bush is under pressure now from the ABA [American Bar Association] and a number of his critics on the left for these signing statements that accompany legislative acts.” Rosen was referring to a July 24 ABA report that objected to President Bush's “issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.”

From the August 18 broadcast on Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: It should be noted that President Carter signed the 1980 [sic] FISA statute that established the special court to approve domestic wiretaps even as the Carter administration declared it wasn't ceding any constitutional power. And this is particularly ironic because Bush is under pressure now from the ABA [American Bar Association] and a number of his critics on the left for these signing statements that accompany legislative acts. Well, President Carter had a signing statement regarding FISA in which he said he's not ceding any of his constitutional power.

FISA, enacted in 1978, “provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering,” according to a Congressional Research Service report from 2004. FISA generally requires the government to obtain a secret warrant from a special court in order to eavesdrop on “United States persons,” defined as U.S. citizens or lawfully admitted aliens residing in the United States.

Contrary to Rosen's false assertion, Carter's signing statement did not say that Carter “wasn't ceding any constitutional power.” Carter stated, “The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted.” He added that FISA “clarifies the Executive's authority to gather foreign intelligence by electronic surveillance in the United States,” and that FISA “will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person's communications are concerned, by a court order.”

In addition, President Carter's attorney general, Griffin Bell, at a 1977 hearing on the FISA proposal by a subcommittee of the Senate Select Committee on Intelligence, told senators that the administration believed it had the “inherent” authority to conduct warrantless electronic surveillance for foreign intelligence. However, at the same hearing, Bell stated that the administration saw as “particularly importan[t]” the “exclusive means” provision of the proposed FISA bill that eliminated any presidential authority to conduct wiretaps outside of the law's requirements. Bell, at the hearing, urged the committee to “swiftly enact[]” the bill into law.

From Carter's October 25, 1978, FISA signing statement:

The bill [FISA] requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive's authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism. It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person's communications are concerned, by a court order. And it will protect the privacy of the American people.

From Bell's July 19, 1977, statement to the Senate Select Committee on Intelligence Committee's Subcommittee on Intelligence and the Rights of Americans

Turning now to specific provisions of the bill of particular importance, I would like to point out the three specific areas in which this bill increases protections for Americans as against a similar bill proposed last year [by the Ford administration] (S. 3197).

First, the current bill recognizes no inherent power of the President to conduct electronic surveillance. Whereas the bill introduced last year contained an explicit reservation of Presidential power for electronic surveillance within the United States, this bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance, as defined in the bill, and the interception of domestic wire and oral communications may be conducted.