On January 16, Attorney General Alberto R. Gonzales took to the airwaves and repeatedly denounced former Vice President Al Gore for a January 16 speech that was highly critical of President Bush's authorization of warrantless domestic espionage in apparent violation of the Foreign Intelligence Surveillance Act (FISA). Gonzales claimed that in criticizing the administration, Gore was taking a position that was “inconsistent” with the policies of the Clinton administration, which Gonzales accused of having done essentially the same thing. But the examples Gonzales cited in support of his accusation do not demonstrate that the Clinton administration also acted contrary to the law. In fact, Clinton's use of warrantless physical searches, which Gonzales cited, did not violate FISA because FISA, at the time, did not cover physical searches.

And yet, news outlets such as the Associated Press, CNN, and CBS News repeated Gonzales's comments without challenge. MSNBC's onscreen “ticker” claimed that Gonzales “shot down Al Gore's criticism” and noted his claim that the former vice president's comments were “inconsistent with policy during the Clinton administration.” Further, in a news report on the speech, Fox News chief Washington correspondent Jim Angle cast Gore's position as hypocritical. Additionally, Fox News host Sean Hannity alleged that a “double standard” existed between the Clinton administration's activities and those of the Bush White House.

On the January 16 edition of CNN's Larry King Live, Gonzales characterized Gore's speech as “inconsistent” with both the Clinton administration's use of warrantless physical searches in the Aldrich Ames espionage case and then-deputy attorney general Jamie Gorelick's 1994 testimony that the president had the “inherent authority” to conduct such searches:

KING: General, Al Gore said today that President Bush repeatedly and persistently broke the law with the NSA domestic spying program and he wants a special counsel named to investigate. What are your thoughts?

GONZALES: Well, I didn't see the speech of the former vice president. What I can say is that this program from its inception has been carefully reviewed by lawyers throughout the administration, people who are experienced in this area of the law, experienced regarding this technology. And we believe the president does have legal authorities to authorize this program.

I would say that with respect to comments by the former vice president, it's my understanding that during the Clinton administration there was activity regarding the physical searches without warrants; Aldrich Ames as an example. I can also say that it's my understanding that the deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant, and so those would certainly seem to be inconsistent with what the former vice president was saying today.

But the warrantless physical searches conducted by the FBI in the Ames case occurred in 1993, before the 1995 FISA amendment requiring warrants for physical searches, as Media Matters for America has noted. Moreover, there is ample evidence that the Clinton administration's investigation of Ames did comply with the FISA statutes governing wiretapping -- the very laws that the Bush administration chose to ignore.

As with the Ames case, Gorelick's congressional testimony does not prove that the Clinton administration believed it had the authority to bypass FISA regulations. Physical searches were still not covered by FISA when she asserted the authority to conduct them in July 1994. Gorelick did not claim that this authority pre-empted future congressional action requiring FISA approval for such activities. To the contrary, she endorsed amending FISA to cover physical searches. In October of that year -- with Clinton's support -- Congress passed such an amendment. From that point on, the Clinton administration never argued that any “inherent authority” pre-empted FISA.

But despite the false basis for Gonzales's argument, the AP repeatedly presented his rebuttal without challenge. In a January 17 article headlined "Gonzales Rejects Gore's Criticism," reporter Larry Margasak wrote:

Attorney General Alberto Gonzales defended the administration's actions and said Gore's criticism is inconsistent with Clinton administration policy.

On CNN's “Larry King Live,” Gonzales said, “It's my understanding that during the Clinton administration there was activity regarding physical searches without warrants.”

Gonzales also said that it was his understanding that, “the deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant. And so, those would certainly seem to be inconsistent with what the former vice president was saying today.”

In a separate January 17 AP article, "White House Accuses Gore of Hypocrisy," reporter Nedra Pickler included the identical Gonzales quote and further noted that White House press secretary Scott McClellan repeated the claims of “hypocrisy” at his January 17 press briefing:

McClellan said the Clinton-Gore administration had engaged in warrantless physical searches, and he cited an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. He said Clinton's deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants.

“I think his hypocrisy knows no bounds,” McClellan said of Gore.

[...]

On CNN's “Larry King Live,” Gonzales said Gore's comments were inconsistent with Clinton administration policy.

“It's my understanding that during the Clinton administration there was activity regarding physical searches without warrants,” Gonzales said. “I can also say it's my understanding that the deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant. And so, those would certainly seem to be inconsistent with what the former vice president was saying today.”

On the January 17 edition of CNN's American Morning, White House correspondent Suzanne Malveaux presented without challenge both Gonzales' argument and Republican National Committee chairman Ken Mehlman's view of the Gore speech:

MILES O'BRIEN (host): The Republican National Committee says the former vice president is just trying to get attention. Suzanne Malveaux at the White House is on. Suzanne, what's the administration saying this morning?

MALVEAUX: Well, Miles, really, the criticism was swift and harsh from Ken Mehlman, the head of the Republican National Chair [sic: Committee], saying essentially Gore will say or do anything to get attention, including misrepresenting the law and the facts. Attorney General Alberto Gonzales was a little bit more measured, a little bit more tempered in his response on Larry King Live last night. He, of course, is referring the administration in this debate, because he was the president's counsel at the time. And again, they make the strategy, they make the case here, that the president has a legal authority to carry out this domestic spy program through the Constitution and also through that congressional resolution authorizing the president to go after Al Qaeda after September 11th. Another key part of their strategy, however, is to argue that under Gore's watch, the Clinton administration, they did it, too.

GONZALES (video clip): It's my understanding that during the Clinton administration, there was activity regarding the physical searches without warrants; Aldrich Ames as an example. I can also say it's my understanding that the deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant, and so those would certainly seem to be inconsistent with what the former vice president was saying.

MALVEAUX: So, Miles, we'll see if that argument actually holds up before congressional hearings that is [sic] going to be held by Republican Arlen Specter of Pennsylvania. He also has questioned whether or not the president has the authority to carry out that domestic spy program.

On the January 17 edition of CBS' The Early Show, White House correspondent Bill Plante repeated Gonzales' line that Gore's position is “inconsistent” and aired his claim regarding the Ames case:

PLANTE: The attorney general fired back. During an interview last night, Alberto Gonzales called Gore's charges inconsistent with policy during the Clinton years.

GONZALES (video clip): It's my understanding that during the Clinton administration there was activity regarding the physical searches without warrants; Aldrich Ames as an example.

In a news segment on the January 16 edition of Fox News' Special Report with Brit Hume, Angle used the Ames case to misleadingly suggest Gore's speech was hypocritical:

ANGLE: Gore was pointing to the president's authorization of the National Security Agency to eavesdrop on the calls and emails of terrorists overseas, even if one end of the conversation is in the U.S. Though Gore acknowledges not knowing the details, he referred to them as wholesale invasions of privacy, and argued there is no question they're illegal.

GORE: What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently.

ANGLE: Gore did not mention that President Clinton authorized the FBI to search and wiretap the home of Aldrich Ames, a suspected spy, all without a warrant, and asserted the presidential power to do so.

Gonzales also appeared on the January 16 edition of Fox News' Hannity & Colmes, where he cited the Ames and Gorelick examples and repeated his characterization of Gore's speech as “inconsistent.” During his one-on-one interview with the attorney general, co-host Hannity described a purported “double standard between the people that are criticizing the president's policy ... and their own practices.” In a subsequent discussion with several political strategists, Hannity complained, “It's OK if Gore and Clinton do it, but it's not OK for Bush to do it”:

HANNITY: How do you respond specifically to what the former vice president said?

GONZALES: Well, I didn't see the former vice president's speech. I will say to the American people, however, that under the Clinton administration, the department -- I mean, the administration was engaged in physical searches without a warrant. Aldrich Ames is an example, where his house was searched without a warrant. And the deputy attorney general testified before Congress that the president of the United States does have the inherent authority to engage in physical searches in order to collect foreign intelligence.

[...]

HANNITY: Are you at all concerned about a double standard between the people that are criticizing the president's policy here -- more specifically, Al Gore and the Clinton administration -- and their own practices? Do you see any hypocrisy that you're willing to discuss publicly?

GONZALES: Well, again, what I can say is that there have been examples under the previous administration where there were physical searches conducted without warrants in order to gather up foreign intelligence. And as I indicated earlier, the deputy attorney general in the previous administration did testify that the president does have the inherent authority under the Constitution to engage in warrantless physical searches for purposes of gathering up foreign intelligence. And so that would appear to be inconsistent with what former Vice President Gore was talking about today.

[...]

HANNITY: It's OK if Gore and Clinton do it, but it's not OK for Bush to do it. I love you Clinton people.

Furthermore, throughout the afternoon of January 17, MSNBC's scrolling onscreen text repeatedly informed viewers that Gonzales had “shot down” Gore's criticism of Bush's domestic wiretapping program and repeated his claim that the speech was “inconsistent” with the Clinton administration's policies:

ATTORNEY GENERAL ALBERTO GONZALES SHOT DOWN AL GORE'S CRITICISM ABOUT THE BUSH ADMINISTRATION'S DOMESTIC SPYING PROGRAM.

GORE SAID THE PROGRAM IS A “THREAT TO THE VERY STRUCTURE OF OUR GOVERNMENT.”

GONZALES SAID GORE'S COMMENTS ARE INCONSISTENT WITH POLICY DURING THE CLINTON ADMINISTRATION.