During CNN's January 9 live coverage of the Senate Judiciary Committee confirmation hearings regarding Judge Samuel A. Alito's Supreme Court nomination, CNN legal analyst Jeffrey Toobin claimed that “the Democrats may be looking for trouble” in criticizing the Bush administration's recently disclosed warrantless domestic surveillance program. According to Toobin: "[I]t is an issue where a lot of Americans think, 'We're spying on Al Qaeda? Good. The more the better.' And I think defining the issue as civil liberties, not protecting us from Al Qaeda, that's a difficult challenge for the Democrats." However, by framing the issue as a choice between national security and civil liberties, Toobin set up precisely the false debate Bush administration officials have advocated when defending the program and attacking its critics. Moreover, polling indicates that a majority of Americans believe the Bush administration should be required to obtain a warrant before monitoring communications involving people inside the United States.

As Media Matters for America noted when NBC host Katie Couric and NBC chief foreign affairs correspondent Andrea Mitchell framed the domestic surveillance debate in a similar fashion, the false “national security versus civil liberties” dichotomy plays right into statements by administration officials such as Vice President Dick Cheney, who claimed: “It's the kind of capability -- if we'd had before 9-11 -- might have led us to be able to prevent 9-11.”

Also, Toobin's claim that “a lot of Americans think” we should be “spying on Al Qaeda” misrepresented the crux of the debate surrounding the domestic surveillance program: whether the monitoring of communications involving persons within the U.S. without a warrant -- which the Bush administration has acknowledged doing -- is legal. According to an Associated Press/Ipsos Public poll conducted January 3-5, most Americans believe the administration should be required to obtain a warrant before engaging in this sort of surveillance. According to the poll, when asked: “Should the Bush administration be required to get a warrant from a judge before monitoring phone and internet communications between American citizens in the United States and suspected terrorists, or should the government be allowed to monitor such communications without a warrant?” 56 percent of respondents said the administration should be required to obtain a warrant, compared with 42 percent that believed a warrant is unnecessary.

From CNN's special January 9 edition of The Situation Room with Wolf Blitzer:

TOOBIN: The executive power -- I think the Democrats may be looking for trouble on this issue, because it is an issue where a lot of Americans think, “We're spying on Al Qaeda? Good. The more the better.” And I think defining the issue as civil liberties, not protecting us from Al Qaeda, that's a difficult challenge for the Democrats, and it will be interesting to see how they try to do that.