Listen to Me

According to a recent Zogby Interactive poll, just under half of Americans (a thin plurality) believe the NSA eavesdropping authorized by the president to have been lawful. I called Zogby and got the exact wording of the question:

President Bush said this week that he authorized the interception of international communication among people with ties to terrorist groups without the approval of a federal judge, but with the knowledge of top Democrats and Republicans in Congress and the Attorney General. Do you believe he acted within the scope of his powers, or do you believe he broke the law?

A minor quibble is that "suspected ties to terrorist groups" or "believed to have ties to terrorist groups" would probably have been more accurate—the reporting on the story has suggested that in at least some cases, those ties were "dubious." But what really struck me, given how much hay has been made of the poll in conservative media, was how ill-suited this question is for polling. Asking people whether they approve of the wiretaps is one thing; this amounts to asking people to render a spot opinion on the fairly complicated interaction of the FISA statutes, the president's Article II powers, and Fourth Amendment case law. Orin Kerr isn't sure, and I can't think of anyone offhand with a better understanding of the law of electronic searches. Sure, an educated layman might form a reasonable opinion on the basis of exchanges like this one [PDF] or this one, but how many people are really following it that closely?

Addendum: A commenter notes that "international communication" might well be understood as referring to communications occuring entirely outside the U.S., when in fact what's at issue is eavesdropping on calls and emails from U.S. persons to parties located abroad. Given that plenty of apolitical old friends I spoke to over the holidays were only vaguely aware of this story, I wouldn't be surprised if some respondents made that error.

Meanwhile, The Carpetbagger Report notes that a Rasmussen poll purporting to show 64 percent support for NSA eavesdropping managed to leave the most important part out of their question:

Should the National Security Agency be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States?

Well, of course they should. With a warrant—a bit of nuance absent from the question.

Comments

[joshua corning]

"authorized the interception of international communication"

umm isn't this the definition of spying?

I don't think this is what happended and I think Bush probably listened in on americans...but on its face i have really no problem with the US government spying out side the US.

Do i have to turn in my libertarian decoder ring now?

[andy]

I'd be willing to bet that there'd be virtually a perfect correlation between peoples' responses to this question and their responses to the question (presumably not asked) "Do you approve of the president's actions?" Especially among laypersons.

[biologist]

...how many people are really following it that closely?

Julian, people are busy with the holidays and thinking about the new season of American Idol. can you stop bothering them with these pointless questions about freedom, liberty, constitutionality, health of the republic, and civic responsibility? thanks

[Ruthless]

So long as the word, "terror" or "terrorist" is in the question, most people will agree with anything that seems to be "anti-terror."
And you know why: because the terrorists have won!

[SR]

Why do poorly worded poll questions hate America?

[SR]

Why do poorly worded poll questions hate America?

[SR]

And to apologize for the double post: Why does the Reason server hate the posters?

[Warren]

SR
The squirrels are conducting warrantless intercepts of H&R comments.

[Umbriel]

I think the "minor quibble" Julian noted really gets at the root of the issue in the minds of most of the public: A large segment of the public believes that there's nothing wrong with spying on, detaining, torturing, or doing pretty much anything else to "terrorists". Addressing the problem of determining who the terrorists are -- the idea that there should be some sort of due process, judicial review, or other checks on that determination, lest the enforcers abusively or negligently apply it -- seems like a burdensome technicality to them.

This is the same issue that has been eroding civil liberties in a domestic law enforcement context for upwards of 30 years now (see the old Reason "Dirty Harry" article). 9/11 just gave the whole issue a shot of adreneline.

[NSA guy]

Can we hear you now?

Good.

[joshua corning]

A large segment of the public believes that there's nothing wrong with spying on, detaining, torturing, or doing pretty much anything else to "terrorists"Addressing the problem of determining who the terrorists are -- the idea that there should be some sort of due process, judicial review, or other checks on that determination, lest the enforcers abusively or negligently apply it -- seems like a burdensome technicality to them.

my minor quible...so long as those terrorists are not caught on american soil and are not american citizens. and even if the terrorists are caught on american soil do you honestly want a system that requires "due proceeses" in order for us to engage an invading force?

I also really don't think we should have "judicial review" for wars in forign lands. Does a platoon leader now need to precure a warrent before attacking a mechine gun nest?

[andy]

do you honestly want a system that requires "due proceeses" in order for us to engage an invading force?

A person who may have had some sort of contact (often unknowingly) with a "terrorist organization" (ie, whatever group our government designates as such, however whimsically) does not necessarily qualify as an "invading force," at least in my book.

[joshua corning]

A person who may have had some sort of contact (often unknowingly) with a "terrorist organization" (ie, whatever group our government designates as such, however whimsically) does not necessarily qualify as an "invading force," at least in my book.

It would depend on what that contact was...and in a time of war who do you think should determine the quility of that contact? The military? the Judiciary?

My point is that at what point do a threat become a viable threat that would allow for suspention of constitutional garantees? Look at this way if tanks from another nation are on our soil i think it is fair to say that at least some of our constitutional garanatees will be suspended and even here among us libertarians we probably wouldn't care much...we would be more worried about getting those tanks off our soil.

On the other extreem we have some guy who may have had contact with another guy who may have been a terrorist.

The constitution does not draw that line for us. What it does tell us is the executive branch has exclusive authority in such matters.

[citizengnat]

joshua

"The constitution does not draw that line for us. What it does tell us is the executive branch has exclusive authority in such matters."

Surely you do not mean by this that the president gets to draw this line? If what you mean is that protection from foreign military threats, including terrorism, is the job of the executive to enforce then I see your point.

[andy]

"What it does tell us is the executive branch has exclusive authority in such matters."

I suppose it comes down to whether or not one believes that the terrorist threat is great enough to warrant an unrestrained and unaccountable executive branch. While I certainly am not privy to much of the information that the executive branch is, my personal instinct is that the POTUS is taking too many liberties (pun duly intended).

[joshua corning]

Surely you do not mean by this that the president gets to draw this line? If what you mean is that protection from foreign military threats, including terrorism, is the job of the executive to enforce then I see your point.

I think i do. I may not like it but I think with my understanding of the constitution and how it has worked in the past that that is how it works.

need i remind you of the whisky rebelion. 🙂

anyway my main problem was with this comment:

A large segment of the public believes that there's nothing wrong with spying on, detaining, torturing, or doing pretty much anything else to "terrorists". Addressing the problem of determining who the terrorists are -- the idea that there should be some sort of due process, judicial review, or other checks on that determination, lest the enforcers abusively or negligently apply it -- seems like a burdensome technicality to them.

and my main problem with it is our governement does need a way to defend itself. Umbriel goes to far by not being specific and destingushing between what Bush did and what a president should have the power to do.

we are also a bit off topic in that the article was ment to show how the pollsters asked thier questions so badly that any idea of what the public really thinks is lost.

the poll questions were similar to "Is it ok for the US to defend itself durring war and is it ok for the US to spy during war?" and then taking results from that poll and saying that in the public's view Bush's actions were justified. obsured.

[TallDave]

This violates Rule #1 of How to Avoid Doing Stupid, Useless Polling:

Do not base an opinion poll on a factual question.

Example of bad question: Is pi approximately 22/7?

Example of good question: Is pie delicious?

[TallDave]

to warrant an unrestrained and unaccountable executive branch.

That's the most amusing meme being tossed around in the wake of this story, as though people are claiming Bush's actions were totally immune from both judicial review and congressional impeachment proceedings. The argument seems to be "Why, he could order all Democrats arrested and shot tomorrow and there would be nothing anyone could do to stop him!"

[TallDave]

Well, of course they should. With a warrant?a bit of nuance absent from the question.

Bah, you can play that game forever, Julian. Lefties will insist it also say "even if that violates civil rights," righties would insist on adding "which spying has saved American lives," both would insist their additions are necessary nuance.

[Umbriel]

Joshua Corning --

I didn't really intend to address the truly extraterritorial aspects of the issue in my comment -- just the ones involving US nationals and cross border communications and activities.

On re-reading the original post and Julian's comment, though, I see your point. The question was framed simply as "international communications", which as stated sounds like it means, for example, phone calls between Paris and Tehran. I personally don't believe that US constitutional protections apply to foreign nationals outside US borders -- any alleged abuses or misconduct would be disputes between those governments and ours, covered by treaty, not the constitution.

[thoreau]

First, we don't have foreign tanks on our soil.

Second, Bush has insisted that he is not subject to judicial oversight, hence he didn't even go to the secret FISA court.

Third, impeachment should not be the only check available. Maybe there should also be laws. Like, say, FISA.

[Ruthless]

TallDave,
It really doesn't matter what the question is, because polls are like sports or obituaries or horoscopes: just blah to fill the news hole.

[TallDave]

Second, Bush has insisted that he is not subject to judicial oversight

And he isn't, in cases involving a foreign threat to national security. Judicial oversight is not the same as juidicial review; the courts can review the legality of the order. There's a fight I'd love to see.

Maybe there should also be laws.

Then let Congress pass a law making this illegal. And then the judiciary decide whether it's a Constitutional infringement on the judiciary's ability to protect Americans from terrorists.

I'd love to have both those public fights too. Love to.

[TallDave]

Second, Bush has insisted that he is not subject to judicial oversight

And he isn't, in cases involving a foreign threat to national security. Judicial oversight is not the same as juidicial review; the courts can review the legality of the order. There's a fight I'd love to see.

Maybe there should also be laws.

Then let Congress pass a law making this illegal. And then the judiciary decide whether it's a Constitutional infringement on the judiciary's ability to protect Americans from terrorists.

I'd love to have both those public fights too. Love to.

[TallDave]

CORRECTED

Second, Bush has insisted that he is not subject to judicial oversight

And he isn't, in cases involving a foreign threat to national security. Judicial oversight is not the same as juidicial review; the courts can review the legality of the order. There's a fight I'd love to see.

Maybe there should also be laws.

Then let Congress pass a law making this illegal. And then the judiciary decide whether it's a Constitutional infringement on the executive's's ability to protect Americans from terrorists.

I'd love to have both those public fights too. Love to.

[Steve]

Then let Congress pass a law making this illegal.

They did, and it was called FISA. Did you read Kerr's analysis?

[joe]

TallDave,

Bring it on.

Give me liberty or give me death.

[Pro Libertate]

TallDave, I'm on record several times saying that there's precedent for Bush's claims about his unchecked authority in national security matters. However, you might want to think through the implications of us all quietly accepting that claim. It's not some crazed liberal notion to want all government power subject to a realistic check, after all. Impeachment isn't really that kind of check, and, by asserting that the NSA decision is purely a presidential perogative, Bush is saying that neither Congress nor the Supreme Court can limit his actions (other than through impeachment or a Constitutional amendment).

Honestly, as much as I want us to deal with the terrorist threat, which I certainly agree is a legitimate one, I don't see why we have to bend and twist the rules. I'm sure some sort of FISA compromise was possible, and Congress probably would've gone along with any reasonable expansions of FISA required to deal with data mining or whatever. But the administration chose to avoid all of that. Doesn't that bother you? Let's get real here--we're powerful enough in intelligence and military strength to combat terrorists without cutting legal corners. Besides, the next president may be a Democrat--do you really want to give him or her the power you want to give to Bush? 😉

joe, I have that slogan on my front license plate (it's the Culpepper Minuteman flag). I've had a few people think that that means I'm some sort of crazed militia member or something, not realizing that it's a Revolutionary War flag. How a moderate, nonanarchic libertarian gets pegged with "right of Attila the Hun" statements is beyond me.

[layer3addict]

Poll??? Who gives a rats ass about polls??? They can be manipulated just like our maintstream media. I mean for crying out loud... how long did the New York Times sit on this story in the first place, and at who's request??? I trust polls, like I trust this lying administration.

Impeach GB and his VP!

[CTD]

Left out of the original post is that the poll question referred to "terrorism suspects", not "random people that even FISA wouldn't approve".