Responding on his August 31 broadcast to a Colorado Media Matters item, Newsradio 850 KOA host Mike Rosen said he made a “mistake” in falsely claiming that President Jimmy Carter's signing statement for the Foreign Intelligence Surveillance Act (FISA) “said he is not ceding any of his constitutional power.” Rosen said he received “maybe 20 emails” about his false claim from Colorado Media Matters readers.

As Colorado Media Matters noted, Rosen made the false claim on his August 18 show 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.

At the time, Rosen claimed 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.”

In fact, Carter's signing statement did not say that Carter “wasn't ceding any constitutional power.” Rather, 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.” Carter 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.”

Acknowledging that he was “wrong about the signing statement,” Rosen said he had received “maybe 20 emails” asking for a correction. Rosen said that "[t]hese are people who frequent a new website called Media Matters for Colorado." Rosen said Colorado Media Matters “is a left-wing media-watchdog group, just as the Media Research Center and Accuracy in Media are conservative media-watchdog sites.” Rosen added, “So the Media Matters larger organization which is funded indirectly by George Soros has created a Colorado chapter, and they are going to monitor conservatives in the media -- people like me -- and be the truth squad. They are going to expose our factual misstatements.”

Rosen has previously asserted that Colorado Media Matters' “hope here is to intimidate people like me,” adding, “Excuse me while I yawn. I'm awfully careful about my facts.”

Explaining his false claim about Carter's signing statement, Rosen said on August 31, “I had incorrectly recalled a conversation I had with [University of Virginia law professor] Robert Turner back in January." As Rosen noted, Turner wrote in a December 28, 2005, Wall Street Journal op-ed that “while the Carter administration asked Congress to enact the FISA statute in 1978, Carter's attorney general, Griffin Bell, emphasized that the law 'does not take away the power of the president under the Constitution.' ” Rosen added, “So it wasn't Carter in his signing statement who said that, it was his attorney general, Griffin Bell.”

Though Rosen did not say so in admitting his inaccuracy, the original Colorado Media Matters item also cited congressional testimony given by Bell. At a 1977 Senate Select Committee on Intelligence subcommittee hearing on the FISA proposal, Bell said the Carter 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 provision of the proposed FISA bill that made it the “exclusive means by which electronic surveillance” could be conducted. At the hearing, Bell urged the committee to “swiftly enact[]” the bill into law.

From Bell's July 19, 1977, statement to the Senate Select Committee on Intelligence 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.

From the August 31 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: Here is something that I wanted to mention. I've gotten, oh, maybe 20 emails from people who have asked me to correct something that I said on this show a couple of weeks ago about something Jimmy Carter said, that I asserted he said, in a presidential signing statement. And these are, how does -- what does Rush Limbaugh -- what term does he use? Seminar callers. These were seminar emailers. These are people who frequent a new website called Media Matters for Colorado. It's a left-wing media-watchdog group, just as the Media Research Center and Accuracy in Media are conservative media-watchdog sites. So, the Media Matters larger organization, which is funded indirectly by George Soros, has created a Colorado chapter, and they're going to monitor conservatives in the media -- people like me -- and be the truth squad. They're going to expose our factual misstatements. This one to which I am referring about Carter's signing statement is supposed to be a big “I gotcha” thing. So fair enough. Let me respond to it.

I was interviewing a guest, Edward Whelan, who was the former deputy in the office of legal counsel during the George W. Bush first term. Whelan had written a piece in The Weekly Standard, which I read, defending Bush from an attack by Michael Greco, who was then-president of the American Bar Association. Michael Greco -- very liberal. This was on the subject of presidential signing statements accompanying congressional bills. Bush has been criticized by many on the left for issuing these signing statements, in which he clarifies his position and indicates where he disagrees with something that's passed the House and the Senate that he signs. Whelan explained that this is a common practice dating back as far as Andrew Jackson in 1830 and that the president is obliged by his oath of office to uphold the Constitution. And if the president believes one element of an otherwise good bill, a bill that he likes, is unconstitutional, he has the option of signing the bill rather than vetoing the whole thing and throwing the baby out with the bathwater. He can sign the bill, clarifying his position and explaining how he will instruct the executive branch, supposedly under his control, to deal with that provision that he finds constitutionally objectionable. Congress, of course, has recourse. They can take it to court. They can attempt to impeach the president, or they can modify the provision in subsequent legislation. Or they can do nothing.

During that interview, the subject came up of President Bush's authorization of intelligence agency monitoring of electronic communications between overseas terrorists and people in the United States -- phone calls, emails, whatever -- and whether the president could do this without a warrant under the 1978 Foreign Intelligence Surveillance Act, referred to as FISA. Well, there's a debate over this. The ACLU [American Civil Liberties Union] and many Democrats say that a warrant is necessary. Conservatives, Republicans, and people like Ed Whelan, who was my guest, say a warrant isn't necessary. I happen to agree with Whelan.

Well, Jimmy Carter as president signed that FISA statute into law in 1978. And this is where apparently I was in error saying that Carter explained in his signing statement that he was not ceding his inherent powers as president to authorize certain warrantless wiretaps in the name of national security. It turns out Carter didn't say that in his signing statement. My mistake. I had incorrectly recalled a conversation I had with Robert Turner back in January. Turner is a law professor; he is co-founder for the Center for National Security Law at the University of Virginia. And he also served as counsel to the president's intelligence oversight board under Ronald Reagan. Well, Robert Turner had written a piece in The Wall Street Journal in December 2005 that I read, and after that we had Turner on the program. And in that Wall Street Journal piece, Turner said, quote, that “while the Carter administration asked Congress to enact the FISA statute in 1978, Carter's attorney general, Griffin Bell, emphasized that the law 'does not take away the power of the President under the Constitution.' ” So it wasn't Carter in his signing statement who said that, it was his attorney general, Griffin Bell. Robert Turner also noted that in 1994 when the Clinton administration invited Congress to expand the Foreign Intelligence Surveillance Act, FISA, to cover physical as well as electronic searches, his associate attorney general, Bill Clinton's associate attorney general, testified before Congress, quote: “Our seeking legislation in no way should suggest that we do not believe we have inherent authority under the Constitution. We do.” End quote. So I was wrong about the signing statement. Mea culpa.