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Monday, January 30, 2006

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.


Blogger Mr. Twinklebones said...

I can answer your leading monologue masquereding as a poll question. You call the wiretaps "unjustified" and you include in your so called poll question a reference to the wiretaps being "like Nixon". I won't even address your unfounded stretch to Nixon. Your statement of "unjustified" has no place in a poll question. Why not have poll questions like, "Is perjury a crime?" ,...question #2 "Should we tolerate Bill Clinton commiting crimes?". That would be leading, but at least it would be based on undeniable facts.

The wire taps are not illegal or unjustified nor was Bush under the impression that he was knowingly breaking the law. He clearly vetted the decision internally and briefed congress as a courtesy. If he thought he was breaking the law he would not have brought in Pelosi and the gang as his accomplices.

These wire taps are surveilance of foreign agents who are unequivocally attempting to murder you and every one of your fellow countrymen. The President would be breaking his word and derelict in the duty he has as a result of his constitutional oath of office to protect and defend.

If you want to quote laws from '78, '47, or '92, they are all trumped by the constitution of the US which is the Highest law of the land. Nowhere in the constituion does it make this illegal. Bill Clinton was briefed in the 90s on the same basis for searching Aldrich Ames' house in Florida. It may be even less apllicable in the Clinton case. He was an American citizen acting on behalf of a foreign enemy. Clinton did a warrentless search and Carter did them too, So Nixon had a lot of company for your topic of consideration.

In this case, Bush is using surveilance to observe hostile enemies from foreign lands that want to destroy our country. If Mohammed Atta's brother is calling Aldrich Ames, Jose Padilla, or any other american citizen, a tap on Atta is perfectly legal and there is nothing in the Constitution to forbid that. In fact, since you have not mentioned why it is not illegal, let's look at the 4th amendment and never mind his rights as commander in chief for now. The 4th says, "protected from....."UNREASONABLE searches". That clearly means that if there are unreasonable searches, that their are reasonable ones. The next issue refering to warrentless searches is not connected to the first part of the sentance with a "suchas". The framers are smarter than you think and the American people are too. Do you think the democrats would be running for cover right now if they thought a constitutional showdown would endup with anything other than egg on their face. The framers did that on purpose. If Al Qaeda is calling from a VOIP phone with rapidly changing trunks and numbers and they are talking to their agent on the ground in Baltimore to detonate a suitcase nuke in downtown, I want our President to be listening and the framers would consider that "reasonable". The fact that Bush alerted the Pelosi posse was a courtesy not a constituional requirement. These powers are awesome and thats why elections matter, because when we are at war our commander in chief needs them to save your butt. He doesn't need them to steal FBI files of political enemies like Clinton did his first months in office.

1/30/2006 9:08 PM  
Anonymous Anonymous said...

Mr Twinklebones,

Two Questions:
1) Is there any situation where a search could be considered illegal after the President has deemed it necessary and reasonable? I gather from your post that you believe the president can do anything that he declares to be legal.

2) Is there any reason for the FISA court to exist?

1/31/2006 9:15 AM  
Blogger Jonah B. Gelbach said...

mr. twinklebones:

first, most of your comment involves question-begging (or perhaps more accurately, question-ignoring). i don't see any real point to responding to those parts of your comment.

however, i will point out that my use of the word "unjustified" in my suggested poll question occurs as part of a description of what many legal scholars and members of congress have, in fact, said (your contention to the contrary does not change this easily observed fact).

my question also repeats the claims that the president has (disingenuously, in my view) made regarding the nsa program. so what's your beef with my question? are you just opposed to polling questions that provide both sides of an issue in the terms their proponents use?

lastly, props to anonymous for asking precisely the right questions in response to mr. twinklebones.

1/31/2006 9:58 AM  
Blogger Mr. Twinklebones said...

Jonah, The fact that you give a tip of the hat to anonymous, for "asking the right questions in response..." and then refer to your own non response as "question ignoring" illustrates perfectly how weak your position is. Your defense of the "unjustified" phrase is that many legal scholars and members of congress say it is so. Using the "genius-by proxy" technique and then proping up the congress as your proof of a constitutional issue is a non effort to explain your point. Many people in congress think Elvis is still alive, that doesn't make it so. Give me a fact now and then.

Your question about my "beef" with a polling question that shows both sides, is still nonsense, because the point of my prior post was that by refering to the President's actions as unjustifiable in a poll question is by definition, not unbiased or showing both sides. Furthermore you have not provided even an effort to refute the legality of the terrorist surveliance program.

To respond to anonymous, his second question first: No FISA is not only a joke, but it is poorly written, probably unconstitutional and hasn't changed much since it was written in the late 70s. Clinton altered FISA by Presidential edict in 1995 in an effort to make it easier for him to do warrentless searches. FISA is just one more example of 1970s benign efforts to cripple our military and foreign ploicy efforts.

To his other question: His question was "1) Is there any situation where a search could be considered illegal after the President has deemed it necessary and reasonable? I gather from your post that you believe the president can do anything that he declares to be legal."

My answer is of course any President might hypothetically consider a search reasonable and legal and later be challenged and found illegal. Take it to court and see if its constitutional if you want to. The left seems to think the congress can legislate anything away. The left will respond that it is too hard to catch a president spying without FISA. Well, when a cop runs a red light, is it not illegal? It was clearly illegal when Clinton confiscated FBI files on James Baker and 1000s of other Republican operatives for 100% dirty tricks, privacy invasion, 4th amendment violating, searches. He would have been charged, but the fact that the President "IS" the oversight in that domestic case, they didn't bother charging him. It was illegal regardless of whether Clinton thought he would get caught or not.

Now we are talking about a foreign intelligence survellance program, a constitutionally protected search by a war time president and Bush has every right to do it. There are checks on it, but no convenient ones. Our forefathers fully intended it that way. That is why elections matter, because these powers are awesome and Bush has them, and antiwar opponents might want to impede his efforts in war or foreign policy, but our forefathers have built the system, so that THEY CAN NOT easily impede his execution of the war. If that frustrates antiwar activists, it does not make it unconstitutional,...its just frustrating. Thank your founding fathers for that.

Republicans didn't like that joke of a war in Kosovo that provided air cover for Al Qaeda in Eastern Europe, but he was our commander in chief. We were frustrated, but our respect for the constitution, meant we had to live with it.

If you want to protest our government's treatment of the monsters that murdered thousands of our brothers and sisters in cold blood, pick up a sign and go for it. If you want to show compassion for your fellow human beings, those killed on 911 and those that will be killed if we do nothing (as the left advocates), support the war, fight the terrorists and support George Bush.

2/01/2006 2:50 PM  
Blogger Jonah B. Gelbach said...


i guess we will have to agree to disagree. or i will have to agree to disagree with you, or whatever. i have other more important unimportant things to do besides respond to your comment.


2/01/2006 3:33 PM  
Blogger Mr. Twinklebones said...

Dear Jonah,
As with all liberals, you only desire to preach to other liberals, because your argument is so weak, that it can not withstand a debate. I guarantee that Bush's terrorist surveilance program will continue, it will not be succesfully challenged on constitutional grounds and to top it off the already strong polling support for the program will continue.

All that because, he is right and you are wrong.

Rather than just disagree, reread your argument and apply facts and then hopefully you can show some compassion for your brothers and sisters by supporting freedom like your leader, George Bush.

It's been fun

2/02/2006 11:58 PM  
Blogger Jonah B. Gelbach said...


for the record, the reasons i didn't reply to your second comment are:

(1) There's no argument in it. An argument involves using logical reasoning together with empirically falsifiable claims to come to a conclusion. Your 2nd comment is simply a statement that something is true followed by a lot of words that also say it's true.

(2) Your 2nd comment involves all sorts of unnecessary, overheated rhetoric that can only obscure real points of honest disagreement that people have with each other.

As for your latest comment, well I'm sure if you thought about it you could see why a person interested in real debate but uninterested in shouting matches would decline to engage with you: As with all liberals, you only desire to preach to other liberals is a fairly clear opening salvo.

For the record, you might consider looking thru some of CCM's archives. You'll see that after having lots of debates in the comments with my conservative friend Peter that I added him as a co-poster. His handle is Bu$h Ate My Baby (in case you don't get it, the handle is a sarcastic dig at liberals who use overheated rhetoric, your brethren across the proverbial aisle). I mention this not because I care what you think of me in particular, but rather because (as I wrote when I added Peter to the contributors list) I'd like to live in a society where reasoned debate were more common than the sorts of demonstrably false axioms and invective that you've spewed on CCM's cyberpages.

Feel free to keep commenting. If you're willing to engage in actual reasoned argument, I'll be happy to respond (subjective to some rather binding time constraints I have these days). If not, I'll let the ad hominem stuff speak for itself.


2/03/2006 7:54 AM  

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