During an interview with Vice President Dick Cheney on the February 7 edition of PBS' The NewsHour with Jim Lehrer, anchor Jim Lehrer missed numerous opportunities to challenge assertions Cheney made in defense of the Bush administration's domestic surveillance program, in which the National Security Agency (NSA) eavesdrops on calls involving parties in the United States without court-approved warrants.

Below are suggestions for how Lehrer could have followed up on some of Cheney's assertions:

Cheney claimed administration has “all the legal authority we need” to conduct warrantless domestic surveillance

LEHRER: Is the president willing to work with Congress to settle some of the legal disputes about the NSA surveillance program?

CHENEY: We believe, Jim, that we have all the legal authority we need. He indicated the other day he's willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest. We'd have to make a decision as an administration whether or not we think it would help and would enhance our capabilities. But as I say, we believe firmly that based on the Constitution, based on the authorization for the use of force Congress passed in the immediate aftermath of 9-11, that we have all the legal authority we need with respect to the NSA program.

Possible follow-up: Lehrer could have noted that numerous lawmakers and legal scholars of all political stripes question the administration's assertion that it has the legal authority to bypass the Foreign Intelligence Surveillance Act (FISA) to conduct warrantless wiretapping.

Even conservative lawmakers and legal scholars have criticized the administration's legal argument. For example, Bruce Fein, former associate deputy attorney general under President Reagan, recently said that the administration's justifications for the program's constitutionality “would permanently shift the political and constitutional landscape towards one-branch government contrary to the intent of the Founding Fathers.” Senate Judiciary Committee chairman Arlen Specter (R-PA) similarly stated that no “fair reading” of the 2001 resolution would justify the surveillance and that the administration's interpretation of FISA “just defies logic and plain English.” The nonpartisan Congressional Research Service (CRS) published a January 5 report concluding that, according to a January 7 Washington Post article's description of the report, the Bush administration's legal justification for the program “conflicts with existing law and hinges on weak legal arguments.” *

Cheney claimed administration did not seek legislation altering FISA because of “consensus” that such action “would disclose the program in ways that would potentially be damaging to it”

LEHRER: There were two Republican senators at the Senate Judiciary Committee hearing yesterday who made the strong point -- Senator [Mike] DeWine of Ohio and Senator Lindsey Graham of South Carolina said it would be in the interests of the country, interests of the president and interests of everybody involved for Congress and the president to sort this out and get it behind it, get it off the table. You don't agree with that?

CHENEY: Well, I don't think it would necessarily be in the interests of the country, especially if we get into a situation where the legislative process leads to the disclosure of sensitive operational matters with respect to this program. If we end up destroying the effectiveness of the program by broadcasting far and wide operational details that would allow our enemies to in effect negate it or neutralize its effectiveness, that's not in anybody's interests. That clearly is not in the national interest, and the concern in the past when we had had discussions with those members of Congress that had been briefed into the program about the possible amendment, if you will, or additional legislation on this issue, there was a consensus that, in fact, proceeding to do that would disclose the program in ways that would potentially be damaging to it.

So there was a consensus between those of us in the administration who were involved as well as the leaders on Capitol Hill that were briefed on the program that legislation would not be helpful.

Possible follow-up: Lehrer could have noted that, contrary to Cheney's version of events, Attorney General Alberto R. Gonzales initially claimed that the administration did in fact seek legislation altering FISA, but that it was rebuked by Congress. As The New York Times noted on February 7:

Mr. Gonzales also clarified again a statement he made on Dec. 19, a few days after the spying program was disclosed by The New York Times. At the time, he said the administration had not sought an amendment to the 1978 law because “certain members of Congress” had “advised that that would be difficult, if not impossible.” Since then Mr. Gonzales has said the real problem is that such legislation could not be enacted without compromising the program.

Lehrer also could have mentioned that, even as it was already bypassing FISA in 2002, the Bush administration resisted a congressional effort to amend FISA to make it easier to obtain warrants. As Media Matters for America has noted, the Justice Department issued a statement opposing proposed legislation by Sen. Mike DeWine (R-OH) to loosen the standard for surveillance under FISA from “probable cause” to “reasonable basis” for non-U.S. persons, who are not entitled to the same constitutional protections as U.S. persons. The Justice Department statement noted that the change was likely unnecessary and, even with the bill's limitation to surveillance of non-U.S. persons, possibly unconstitutional.

Cheney claimed that Justice Dept. assessment of legal authority for spy program was “thoroughly exhausted”

LEHRER: But there has not been any new conversations about that with Congress just in the last two or three days since this thing has really mushroomed into a controversy?

CHENEY: Not that I've been -- not that I've been involved in. But some of the controversy -- Jim, again let me emphasize here, when we briefed the chairman and ranking members of the committee on this program which we've done at least a dozen times -- I presided over most of those briefings -- there was no great concern expressed that somehow we needed to come get additional legislative authority. In fact, the program has operated for four years, Congress has been informed, a few members of Congress, informed throughout that period of time, and everything was fine until there was publicity in The New York Times. Somebody leaked the program to The New York Times, then there was public disclosure of it, and at that point now we've had some members head for the hill, so to speak, and forget perhaps that they were in the briefings and fully informed of the program.

But in terms of the legal authority, there is a very solid analysis that includes the Office of Legal Counsel in the Justice Department, the counsel in the White House, the attorney general of the United States, and this has been reviewed 30 times now, more than 30 times, because it's had to be renewed every 45 days since we started the program. So the legal issues have been thoroughly exhausted.

Possible follow-up: Lehrer could have asked Cheney about reports that indicate there was not universal support for the domestic surveillance program within the Justice Department. As Newsweek reported on February 6, then-deputy attorney general James B. Comey, who was serving as acting attorney general while then-Attorney General John Ashcroft was in the hospital, was one of several Justice Department officials who objected strenuously to the continuation of the program, prompting White House chief of staff Andrew H. Card Jr. and then-White House counsel Gonzales to visit Ashcroft's hospital room to obtain Department of Justice approval.

Lehrer also could have mentioned that even conservatives such as Fein and former Rep. Bob Barr (R-GA) have questioned whether Gonzales could provide an independent legal analysis of the program from the White House. From a February 4 Times report:

Some legal experts see Mr. Gonzales as little more than a surrogate for President Bush, whom he has served in a variety of capacities since 1997, when Mr. Bush was governor of Texas.

“Nothing in Al Gonzales's public statements, legislative proposals or anything else suggests that this is an individual who operates outside of the political gyroscope of President Bush,” said Bruce Fein, an associate deputy attorney general in the Reagan administration.

Bob Barr, a former Republican House member from Georgia, said Mr. Gonzales's role in developing and defending the program “does raise questions about what is the role of attorney general.”

“Clearly,” Mr. Barr added, “people know his testimony reflects the same view as the White House counsel, and that it's not so much reflecting anything approaching an independent legal analysis. He's there as a lawyer for the president, as opposed to being an advocate for the Constitution and the laws of the country. It's a fine line, and I'm not so sure in his current capacity he has a great deal of credibility.”

Cheney claimed Hamdi case provides “ample precedent” for warrantless domestic surveillance

LEHRER: What do you make of Senator Graham's argument that he made yesterday in public to the attorney general, which is using the force resolution which is one of the legal justifications, you decided and it has been decided by the administration -- said if you go down that road, the future when the next president or this president or the next president comes and asks for a force resolution from Congress, there could be all kinds of exceptions -- you can do this, this and this, but you can't wiretap, you can't do this, you can't do that -- and he said if we don't settle this issue now, you will open up a difficult situation for the future. You don't agree with that?

CHENEY: I think people are straining here to try to find an issue to some extent. Remember what's happened since the authorization of the use of force was approved in the aftermath of 9-11, and we've used it extensively in Afghanistan and so forth. We also had a Supreme Court decision in the Hamdi [v. Rumsfeld] case, where the court in effect found that there was implicit in the authorization of the use of force, the authorization for the president to hold an American citizen, and clearly that's a more intrusive, if you will, use of power and authority than surveillance of the enemy.

Incident to the authorization of the use of force, military force, clearly I would expect would be a decision that that implies as well the ability to intercept the communications of the enemy. That's an inherent part of warfare. There's ample precedent we believe on the books based on the Supreme Court decision, based on the statute, based on the president's constitutional authorities, for us to do exactly what we're doing.

Possible follow-up: Lehrer could have noted that numerous legal scholars have expressed strong objections to Cheney's claim that the high court affirmed in Hamdi presidential authority to eavesdrop on the international communications of U.S. citizens without a warrant.

As Media Matters has documented, Robert A. Levy, a senior fellow in constitutional studies at the libertarian Cato Institute and member of the conservative Federalist Society, has noted that the Supreme Court's plurality opinion in Hamdi imposed numerous limitations on the powers originally sought by the Bush administration. Moreover, in a February 2 letter to Democratic and Republican congressional leaders, 14 legal experts noted that in Hamdi, the Supreme Court stated that the administration's authority to detain enemy combatants is broader than it is on issues that Congress has explicitly considered and addressed -- such as the circumstances under which the government can intercept communications involving U.S. persons. The scholars wrote that a specific provision of FISA, which limits authorization for warrantless surveillance to 15 days after war is declared, “plainly distinguishes” warrantless surveillance from the detention issue, which “Congress had not specifically regulated” for U.S. citizens during wartime.

A January 5 CRS report similarly noted that “the Court [in Hamdi] appears to have relied on a more limited interpretation of the scope of the AUMF [the use of force resolution] than that which the Administration had asserted in its briefs.”

Cheney claimed Rockefeller “never had any questions that weren't answered” and that the “process of briefing just a few members of Congress is well established”

LEHRER: What about the points that were made yesterday that all the things you just outlined are all within the executive branch with the exception of the members of Congress, these eight members, four Democrats, four Republicans, one of whom wrote you a letter afterward raising concerns about, Senator Rockefeller.

CHENEY: Wrote a letter three years ago and never raised any concerns after that, sat through numerous briefings, never had any questions that weren't answered.

LEHRER: And nobody else of those eight -- none of those other eight did either?

CHENEY: Correct.

LEHRER: So what's going on here, do you think?

CHENEY: Well, I think a lot of people decided after it became public that they wanted to take a different position than they had in private. This process of briefing just a few members of Congress is well established, Jim. I've been involved one way or another in the intelligence operations of our government going back 30 years to the Ford administration, or when I was on the Intelligence Committee myself in the '80s, or when I was secretary of defense in the early '90s. The practice of the president deciding to brief only a few members of Congress on really sensitive programs is well established. We've operated that way now for a very long time, and this program was treated in that fashion. It's important we preserve that capability.

Possible follow-up: Lehrer could have noted that Sen. John D. Rockefeller IV (D-WV) has disputed Cheney's claim that Rockefeller “never had any questions that weren't answered” about the spy program. Lehrer also could have mentioned that the limited briefings that the administration provided to Congress, which Cheney described as “well established,” are in apparent violation of the law.

In a letter to Cheney dated July 17, 2003, Rockefeller wrote that the surveillance program “raise[s] profound oversight issues” and that he was “unable to fully evaluate, much less endorse” the program until he received more information about how the program functioned and the nature of its legal underpinnings. Upon publicly releasing the letter on December 19, 2005, Rockefeller said that “these concerns were never addressed, and I was prohibited from sharing my views with my colleagues.''

A January 18 CRS report concluded that “limiting congressional notification of the NSA program to the Gang of Eight,” which includes the majority and minority leaders and intelligence committee chairmen and ranking members of both the Senate and House of Representatives, “appear[s] to be inconsistent with the law.” Even those members of Congress who were briefed on the program may not have been briefed to the extent required by law. As Media Matters has noted, Rockefeller, Graham, Rep. Peter Hoekstra (R-MI), and Senate Democratic Leader Harry Reid (D-NV) have all stated that they did not receive written reports from the White House on the surveillance operation, as required by the National Security Act of 1947, although Hoekstra has since criticized CRS for concluding that the congressional intelligence committees were not adequately informed of the program.

Cheney claimed “reason to believe that it's Al Qaeda related” is a “very important and very clear-cut” criterion for what calls are monitored under NSA program; claimed he's “never seen as much care and caution exercised” as in NSA program

LEHRER: As vice president of the United States, can you assure any American who's out there, an innocent American who has no connections to Al Qaeda, absolutely none, that his and her rights are not being violated by this NSA surveillance program?

CHENEY: I can.

LEHRER: In any way whatsoever?

CHENEY: Let me emphasize again: People call it domestic surveillance; no, it's not domestic surveillance. The requirements for this authorization to be utilized are that one end of the communication has to be outside the United States, and one end of the communication has to involve reason to believe that it's Al Qaeda related or affiliated or part of the Al Qaeda network. Now those are two very important and very clear-cut criteria, and for this presidential authorization to be used in this way, those two conditions have to be met.

LEHRER: Do you understand why some average Americans might say, wait a minute, whose definition is it of an Al Qaeda possibility or whatever, that they would ask serious questions and want accountability?

CHENEY: Well, I can assure them that the program is operating in a very cautious and prudent manner. As I said, I've been involved off and on for more than 30 years in various aspects of the government's intelligence business as a consumer, as somebody who was responsible for part of the community at one time. I've never seen as much care and caution exercised as there is in this program. It has been done with immaculate concern to guarantee that we protect the civil liberties of the American people, but at the same time that we're able to collect intelligence that will allow us to defend the country against further terrorist attacks.

Possible follow-up: Lehrer could have noted that almost all of the communications intercepted by the domestic surveillance program have reportedly led to innocent Americans, not terrorist suspects, according to intelligence and national security officials cited in investigative reports by The Washington Post and The New York Times. Lehrer also could have asked Cheney about the administration's contradictory statements about whether the NSA program requires a lower standard of proof to conduct surveillance than that required by FISA.

Citing “current and former government officials and private-sector sources with knowledge of the technologies” used to conduct the eavesdropping, the Post reported on February 5 that out of thousands of Americans whose communications have been monitored by the NSA without a court order, “fewer than 10” U.S. citizens or residents “aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well.” The Post report followed a December 17, 2005, article by the Times, which noted that “virtually all” of the phone conversations monitored by the NSA have “led to dead ends or innocent Americans,” according to "[m]ore than a dozen current and former law enforcement and counterterrorism officials."

As Media Matters has documented, while the Justice Department has maintained that the operative standard required for the NSA to conduct warrantless surveillance is “essentially the same” as the “probable cause” standard required under FISA, Gen. Michael V. Hayden previously stated that the standard of proof under the NSA program is “a bit softer than it is for a FISA warrant,” and directly acknowledged, in response to a question from a reporter, that the warrantless domestic surveillance had adopted a “lower standard” than required under FISA. Hayden is the former head of the NSA and was the first official put forth by the administration to defend the program.

Cheney claimed that the “vast majority of the American people support this program”

CHENEY: I think, Jim, that I'd make a couple of more points. I think the vast majority of the American people support this program, and I also think when ultimately the history is written about this period, the relevant reaction of the Congress will be the reaction of the leadership when we briefed them into the program in years past, and they signed up to it, and they agreed that it was an extraordinarily important program, and they urged us to continue.

Possible follow-up: Lehrer could have noted that polls have consistently shown that public opinion is, and continues to be, split over the domestic surveillance program.

Most recently, a January 30 NBC/Wall Street Journal poll found that a slight majority of Americans support the Bush's administration use of warrantless wiretaps to date but, by a slightly greater margin, also believe the administration should be required to get a court order to do so:

As you may know, since 2002, the Bush administration has been using wiretaps to listen to telephone calls between suspected terrorists in other countries and American citizens in the United States without getting a court order to do so. Do you approve or disapprove of the Bush administration's approach on this issue?

Approve

51

Disapprove

46

Not sure

3

Do you think that the Bush administration should conduct wiretaps of American citizens who are suspected of having ties to terrorists without a court order, or do you think that the Bush administration should be required to get a court order before conducting these wiretaps?

Should be able to wiretap without court order

41

Should be required to get a court order before wiretapping

53

Depends (VOL)

4

Not sure

2

* This item originally attributed the phrase “conflicts with existing law and hinges on weak legal arguments” to the January 5 Congressional Research Service report. In fact, this text appears in The Washington Post's January 7 analysis of the report but not in the report itself. The relevant quote from the CRS report is as follows: “Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.” We regret the error.