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.