The politics of fear

You know something’s wrong with this Congress when a Democratic champion of privacy rights feels compelled to vote for Republican legislation that compromises those rights. That’s what California Sen. Dianne Feinstein did last week when she joined a stampede to approve a temporary “fix” sought by the Bush administration in a law governing electronic surveillance.

To be fair, Feinstein wasn’t alone in her party in succumbing to deadline pressure and voting for an overly sweeping change in the Foreign Intelligence Surveillance Act (though another prominent Democrat with intelligence expertise, Rep. Jane Harman of Venice, admirably refused to go along). As the clock ticked toward Congress’ August recess, Democrats were maneuvered by the administration into a politically perilous choice. At a time of increased intelligence “chatter” about possible terrorist attacks on the United States, they could either back the administration’s bill, which would allow too much leeway for electronic eavesdropping on Americans but would expire after six months, or leave unaddressed a loophole in FISA that everyone agreed should be closed.

The loophole in question, apparently created by a decision of a secret court that monitors electronic surveillance, prevented the National Security Agency from eavesdropping without a court order on telephone conversations and e-mails electronically routed through the United States even though both parties are abroad.

But both the administration bill and a more acceptable Democratic alternative went beyond solving the “foreign to foreign” problem. Both measures would have made it easier to monitor communications in which one party (the target of surveillance) was “reasonably believed to be located outside the United States.” This meant that the NSA could eavesdrop on Americans who were in contact with foreigners, terrorist or not.

Democrats, Feinstein included, are now talking about returning to the drawing board long before the six-month “sunset” of the law. Meanwhile, however, Americans will be ceding more of their privacy with only minimal judicial supervision.

That this flawed legislation was approved by a Democratic Congress is a reminder that many in the party are still fearful that they will be labeled “soft on terror” if they don’t give this administration what it wants when it wants it. But the party may be equally injured by the perception that it won’t stand up for what it believes.