Democrats May Argue Liberties to Their Peril

Times Staff Writer

Leading Democrats are challenging President Bush’s record on civil liberties across a wide front, inspiring a Republican counterattack that even some Democratic strategists worry could threaten the party in this year’s elections.

From Bush’s authorization of warrantless surveillance by the National Security Agency to renewal of the Patriot Act, the president and his critics are battling more intently than at any time since the Sept. 11 terrorist attacks over the proper balance between national security and personal liberty.

In each of these disputes, prominent Democrats -- joined by a few Republicans -- accuse Bush of improperly expanding presidential power and dangerously constricting the rights of Americans. Bush and his allies have fired back by escalating charges that Democrats would weaken America’s security by imposing unreasonable restraints on the president.

These exchanges establish contrasts familiar from debates over law enforcement and national security throughout the 1970s and ‘80s, with most Republicans arguing for tough measures and many Democrats focusing on the defense of constitutional protections.


That emerging alignment worries some Democratic strategists, who believe it may allow Bush to portray Republicans as stronger than Democrats in fighting terrorism, as he did in the 2002 and 2004 campaigns.

“If Democrats want to be the party of people who think [the government] is too tough and the Republicans are the party of people who are tough, I don’t see how that helps us,” said one senior Democratic strategist who asked not to be identified while discussing party strategy.

Other Democrats say that because it is often unpopular to defend civil liberties during wartime, doing so would allow the party to demonstrate strength and conviction.

“There’s a Washington consensus that this is politically bad news,” said Eli Pariser, executive director of the political action committee associated with, the online liberal advocacy group. “My read is that more than any given position, people want to see that their leaders are principled and that they stand up for what they believe in, and it seems to me [these fights] signal precisely that.”

The differences between the two parties will be on display today, when the Senate begins debate over the Supreme Court nomination of Samuel A. Alito Jr. In unanimously opposing Alito on Tuesday, several Democrats on the Senate Judiciary Committee echoed comments by Sen. Russell D. Feingold (D-Wis.), who said the federal appellate judge’s “record and testimony strongly suggest that he would ... defer to the executive branch in case after case at the expense of individual rights.”

Similarly, Senate Democrats charged Bush last month with eroding civil liberties as they helped block reauthorization of the Patriot Act. And Bush’s two Democratic opponents in his presidential races -- Al Gore in 2000 and Sen. John F. Kerry of Massachusetts in 2004 -- recently have called for a special counsel to investigate whether Bush broke the law in authorizing the NSA to monitor domestic phone calls and e-mails from those suspected of having links to Al Qaeda.

Jeffrey Rosen, a law professor at George Washington University, said the Democratic emphasis on civil liberties marked a shift not only from party attitudes after the Sept. 11 attacks, but also from efforts by President Clinton to expand government’s law enforcement power after the 1995 Oklahoma City bombing.

Rosen said that in the last several weeks, Bush has invited greater Democratic opposition by defending the surveillance program so unapologetically, even after independent analysts such as the nonpartisan Congressional Research Service had questioned its legality.


“The boldness of the administration’s response has escalated the fight and made it more difficult for fair-minded Democrats to step back from the brink,” said Rosen, author of “The Naked Crowd,” a book on security and civil liberties.

The White House has signaled that it was comfortable with, and even eager for, this debate.

In an aggressive series of speeches this week, Bush and other administration officials have portrayed the controversial surveillance program as not only legal but essential to national security.

Also, Democratic Senate aides say the White House has taken a hard line against negotiating changes in the reauthorization of the Patriot Act. A short-term extension of the law expires next week, and if no agreement is reached, that deadline could provoke another confrontation between Bush and congressional Democrats.


In a speech to the Republican National Committee last week, Karl Rove, Bush’s chief political advisor, made it clear that he would encourage Republican candidates to use these disputes -- along with Democratic criticism of the Iraq war -- in the election to portray Democrats as weak on national security.

“At the core, we are dealing with two parties that have fundamentally different views on national security,” Rove said. “Republicans have a post-9/11 worldview, and many Democrats have a pre-9/11 worldview.”

Political analysts interpreted the speech as evidence that the White House wanted to replicate its 2002 strategy, when Bush used a dispute over union rules for the Department of Homeland Security to picture Democrats as soft on security concerns.

But some Democrats see key differences from 2002. Bush’s current approval rating is about 20 percentage points lower than it was then. That means he enters the argument with fewer voters leaning in his direction.


Public attitudes about the balance between civil liberties and security also have shifted since 2002, according to nationwide polls. More Americans now express concern that the government will restrict civil liberties too much in the fight against terrorism, and fewer say the average American needs to relinquish civil liberties to protect the country.

Although results vary depending on the wording of poll questions, most Americans generally say they place a higher priority on pursuing terrorists than protecting civil liberties.

On the NSA surveillance program, opinion seems closely divided and fluid. Three national surveys in early to mid-January found that slightly more Americans supported than opposed the program; a CNN/USA Today/Gallup survey conducted Friday through Sunday found that a slight majority opposed it.

The White House faces another difficulty in forging its arguments into a partisan weapon for 2006: Some Republican lawmakers, and many prominent conservative activists, have joined Democrats in opposing Bush in the recent disputes.


For instance, four Republican senators backed the filibuster that blocked renewal of the Patriot Act. Other leading Republicans, including Sens. Arlen Specter of Pennsylvania and John McCain of Arizona, have questioned Bush’s claim of legal authority to launch the NSA program.

Some key Democrats also insist that public anxiety about the continuing violence in Iraq will make it tougher for Republicans to use security arguments this year.

“When we talk about national security, we are going to go right to what happened to the men and women in uniform,” said Rep. Rahm Emanuel (D-Ill.), chairman of the Democratic Congressional Campaign Committee.

Yet even with these new factors, most Republicans remain confident that disputes over national security and civil liberty issues will strengthen their hand this fall, just as they did in 2002 and 2004.


“I think the Democrats are picking a fight that really plays to Republican strengths, and I think that’s why the president is fighting back so strongly,” said Sen. John Cornyn (R-Texas).