Understanding the Debate on Domestic Surveillance

There's a significant development on the left of the spectrum on the FISA legisation that's pending in Congress.

Firedoglake and Glenn Greenwald have posts up trumpeting the big netroots push to demonize Members of Congress for the passage of domestic surveillance legislation that allegedly violates America's tradition of the rule of law. The leftists have taken out a full-page ad in today's Washington Post, which states:

The radicalism and lawlessness of the last seven years began with extremist theories of power adopted in secret by the Bush administration. It will culminate this week when the 2008 Congress formally embraces those theories and makes clear that the rule of law is only for common Americans, not for the Washington elite.

However, if there's truly any radicalism on this issue, it resides in the administration's opponents on the left. Notice how, really, the bulk of the federal government - both the executive and the legislative branches - is under indictment by the hardline FISA opponents.

Interestingly, just last Saturday, Nancy Soderberg, a former deputy national security advisor in the Clinton administration, argued that the FISA bill was good law, not perfect, but a decent compromise considering the stakes involved and the political volatility of the issues:

In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration's effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration's written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful."

We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power.

The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions. While that's tough for many of us to swallow, the compromise still strikes the right balance between protecting our rights and our national security.

It would force an administration to use FISA courts (FISA refers to the Foreign Intelligence Surveillance Act, which set up these courts in the 1970s) to obtain a court-approved, individual warrant for spying activity directed at an American citizen. The government would have to show "probable cause" that that person was engaged in terrorist activities or espionage against the United States.

These are strong measures to protect American civil liberties. More controversial is the bill's provision to allow in an emergency -- such as the aftermath of a terrorist attack -- the attorney general and the director of national intelligence to begin a surveillance project without a FISA warrant as long as they seek FISA approval within seven days....

Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it's necessary.

Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution. In the words of the Senate Intelligence Committee, the "possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation." That was a conclusion that reached across party lines, as does the compromise bill.

As Soderberg notes, the legislation represents "a rare bit of common sense" that furthers the goal of securing our nation while restoring the appropriate balance on surveillance and law enforcment between the president and Congress.

Indeed, public opinion bears this out, for example in 2006, after the surveillance program was first revealed, the public supported the administration's position:

"As you may know, starting in 2001 the FBI was given additional authority in areas like surveillance, wiretaps and obtaining records in terrorism investigations. Supporters said this was necessary to fight terrorism. Opponents said it went too far in compromising privacy rights. Do you think this additional FBI authority should or should not be continued?"
						.
		Should	Should Not	Unsure
		%	%	%
	3/2-5/06	62	37	1
	6/2-5/05	59	39	2

The public also considered the surveillance program a legitimate exercise of governmental power:

"As you may know, the National Security Agency has been investigating people suspected of involvement with terrorism by secretly listening in on telephone calls and reading e-mails between some people in the United States and other countries, without first getting court approval to do so. Would you consider this wiretapping of telephone calls and e-mails without court approval as an acceptable or unacceptable way for the federal government to investigate terrorism?"
						.
		Acceptable	Unaccep- table	Unsure
		%	%	%
	3/2-5/06	54	46	-
	1/23-26/06	56	43	1

Folks like Firedoglake, Glenn Greenwald, and others, routinely present themselves as representing the true mainstream of public opinion, but as these data show, the public found the administration's surveillance to be non-controversial.

Indeed, recent polls find the country "fairly evenly divided" on the appropriate balance between national security individual rights.

The fact is that it's the netroots hordes who are out of the mainstream. In reality, the antiwar left has very little interest in "peace" and "domestic liberties," and instead is determined to mount a radical struggle against "oppression" and imperialism" by distorting the issues at hand and by painting legitimate governmental participants of the executive and legislative processes as "above the law."
The folks speaking out against telecom immunity today are the same radicals who cheer the growing military successes of enemy terrorist organization such as Hezbollah.

So, yes, the American public should have real concerns about the scope of governmental power, but when the main opponents to domestic surveillance legislation are the same ones praising our enemies, it's good to keep the motives of these self-appointed "patriots" in mind.

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RELATED: "Online Movement Aims to Punish Democrats Who Support Bush Wiretap Bill."

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UPDATE: Morton Halperin, whose "home phone was tapped by the Nixon administration — without a warrant — beginning in 1969," indicates his support of the new FISA bill.