Polling and Reporting on the NSA Program

What's the worst thing about media coverage of the Bush Administration's illegal wiretapping program? To my mind, the answer is obvious: every poll question I've seen discussed, and virtually all the resulting framing by reporters, involves the issue of whether or not Americans support "warrantless wiretapping". Given the administration's overwhelming saturation of the media with the claims that (i) this program is absolutely necessary, in unmodified form, to protect national security, and (ii) this program is absolutely legal in unmodified form, I am not surprised by the poll results (actually, I'm surprised the administration doesn't get more support).

Of course people support a program that they are repeatedly told is necessary to their safety and is legal. But that's not the issue. The issue is that there are strong reasons to believe that the program is a flagrant violation of duly enacted laws. It's tedious to repeat it. But in America we don't let the president do whatever he likes without regard to laws. We have a set of procedures for modifying laws where necessary or desirable. First someone who has been elected to congress introduces legislation, then there is a vote---and so on.

So far, the arguments advanced by the White House, the DOJ, and their apologists in Congress and the media for the legality of this program have been underwhelming at best. Many of these arguments fly in the face of plain facts (like the specific statutory language of FISA or the fact that FISA was heavily amended by the USA Patriot Act just weeks after the---clearly-in-retrospect way too broadly worded---AUMF was approved in September, 2001). Those that don't---especially the claims about the president's inherent authority under Article II---are subject to what, with apologies to the Latin teacher I never had, I like to call extendio ad absurdum: carry these arguments to their logical conclusion, and you find that if the president simply declares an action necessary to his commander-in-chief powers, he would be able to---legally---do anything he likes.

If only Richard Nixon had thought of this idea. Actually, Nixon is a useful reference here, since (as I understand things) much of the motivation for FISA's (mild) restrictions on wiretapping derives from political abuses of the national security apparatus by those in holding executive power in the Nixon years. So here we have a statute specifically meant to forestall the very actions that the President has taken, and the President's position is that he can ignore it....just because. Not much of a check, and not much resulting balance. Which is where the absurdum part comes in: why go to the trouble of designing a constitutional system if the president can simply disregard it whenever he---however disingenuously---is willing to say he'd like to?

Which brings me back to media coverage and polls. Someone really needs to get 1,000 or so people on the phone and ask half of them the usual question and the other half of them this one:

For several years, President Bush has directed the National Security Agency to eavesdrop on telephone and email contacts without warrants or any other judicial oversight. The President says this program is necessary to protect national security, and that following the usual legal procedures would be too difficult. Many legal scholars and members of Congress say that these actions violate laws set up to allow the government to protect national security while also protecting citizens from unjustified surveillance by the government like that done in the Nixon years. Do you approve or disapprove of the President Bush's warrantless wiretapping?

Comparing the results from such a poll to those from the currently conducted polls (which look suspiciously similar to the President's approval-disapproval numbers) would give us a real window on the importance of both framing in politics and the real state of public opinion when the costs and benefits of the NSA program are both highlighted at the time the question is asked.

Moreover, it's easy to imagine all sorts of useful follow-up questions ("If you don't approve, would you approve if Congress changed the law?", "If you are opposed to the program, is your opposition to the wiretapping itself, or to the possibly illegal nature of it?", and so on).

The polls that have been done so far, and the uncritical, unilluminating regurgitating of them by many reporters, tell us relatively little besides the fact that the President and his supporters are really good at convincing people that all sorts of false things are true.

What's the Point??

Based on the snippets of the Alito hearing that I've watched or read about, I've learned that SCOTUS nominees must not comment on

• Issues that might come before the Court
• Issues that have come before the Court
• Issues related to hypothetical situations in which all details have not been specified

Which leaves.....NOTHING. So what, in fact, is the point of having hearings?

Of course, nominees including Alito disregard each of the three proscribed sorts of issues listed above. It is bizarre that the JC allows them to then appeal at will to their choice of these three excuses when they desire. (Actually, I recall hearing that Scalia wouldn't even comment on Marbury v. Madison. So at least he was consistent.)

Message to Snarlin' Arlen:

Hold your NSA Hearings First, and then run the Alito hearing.

There are two basic reasons for this plan:

1. Justice O'Connor still sits on the SCOTUS and will continue to do so until her replacement is confirmed. Thus filling her seat is not exigent in the way it would be if she had stepped down already (the concern then would be that the Court might deadlock 4-4 in important cases, which would automatically uphold the relevant appellate court decision and allow for different controlling law in different circuits).
   
   
2. More importantly, if Specter wants to have any leverage at all for his NSA hearings, he needs a lever. Once Alito is through Judiciary, he won't have one. What will provide the incentive for the administration to cooperate? Nada.

   This administration's principals regard governmental secrecy and aggrandizement of executive power as virtual sacraments. They will simply stonewall if there is no cost to so doing. Remember Ashcroft's testimony shortly after the torture memo was leaked? He refused to answer Senators' questions, and he also declined to explain why -- he wouldn't even say that he was relying on executive privilege.

   Principals of this administration do not seem to believe they are subject to the rule of law, provided that they parrot the words "Commander in Chief" loudly enough. They will not cooperate with any oversight on the NSA matter unless they are forced to, and no court can practically force them to do so.

   Since the House seems unlikely to begin impeachment proceedings (the ultimate imposition of political accountability available to the legislative branch), and since the Senate would be unlikely to convict in any case, senators who want to break their five-year streak of oversight-free behavior will have to find another way. Which means they will have to find some leverage.

   Justice O'Connor has characteristically provided something for everyone in her recent jurisprudence on executive power but has not been an administration pushover. What possible source of leverage could be more valuable in this context than a credible, open-ended threat to keep her on the bench?