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:
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.
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.
posted by Jonah B. Gelbach at 11:31 AM
4 Comments:
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?
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.
twinkly
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.
jonah
tb
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.
Jonah
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