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CNN Poll on NSA Surveillance Program:
A new CNN poll suggests that public opinion on the NSA domestic surveillance program is roughly evenly divided: 50% think the President was right to authorize the surveillance, 46% think the President was wrong, and 4% have no opinion.
M.A. (mail):
I'm just wondering why nobody's done a poll that specifically addresses the issue -- it's not about whether they can do it, and it's not about whether they can do it without a warrant, but whether they can bypass FISA. I realize that the problem with asking that question is that the respondents won't know what FISA is or what it means, but there's got to be a way to poll on the actual issue.
1.10.2006 9:42pm
wooga:
Actually, the pol specifically asks "Question: Do you think the Bush administration was right or wrong in wiretapping these conversations without obtaining a court order?" As getting a court order (before or after) is the primary FISA violation levelled against Bush, this is probably the best question to get at the issue without rambling on so long as to confuse the listener. Plus, it assumes FISA binds Bush without using overly loaded language (such as: "was it okay for Bush to break the law?").

Politically, the other "Question: Do you think the Bush administration has gone too far, has been about right, or has not gone far enough in restricting people's civil liberties in order to fight terrorism?"
- resulted in 38% answering Bush had gone too far, 40% about right, and 19% not far enough. No party breakdown listed, unfortunately.
1.10.2006 10:01pm
M.A. (mail):
Ah, okay. The article made it sound like it was about warrants.

I'll also note that the article once again talks as though "Democrats" are the only ones criticizing the Bush wiretapping policy, ignoring Republicans like Specter, Brownback, Graham, Lugar, etc. News reports seem to want to turn everything into a political horserace (how will this help/hurt Democrats/Republicans?), but that's not what this is.

I find the too far/about right/not far enough breakdown pretty encouraging. It suggests that we are returning to, dare I say it, a September 10 mentality about these issues -- which is a hell of a lot better than the September 12 "let's freak out and let the government do whatever it wants" mentality.
1.10.2006 10:26pm
JonBuck:
The fact is that we live in a 9/12 world now. Why would we return to intelligence gathering methods that failed us? I don't see what we've done as "freaking out" in that context.
1.10.2006 10:57pm
jukeboxgrad (mail):
"The fact is that we live in a 9/12 world now."

That might be a good reason to change laws. It's not an excuse to break them.
1.10.2006 11:08pm
Apodaca:
JonBuck:
Why would we return to intelligence gathering methods that failed us?
What basis do you have for asserting that it was our collection methods that failed? The 9-11 Commission appears to conclude that the failure was instead a failure to share, integrate, and analyze the intel we in fact had:
The U.S. government has access to a vast amount of information. When databases not usually thought of as "intelligence," such as customs or immigration information, are included, the storehouse is immense. But the U.S. government has a weak system for processing and using what it has. In interviews around the government, official after official urged us to call attention to frustrations with the unglamorous "back office" side of government operations.

In the 9/11 story, for example, we sometimes see examples of information that could be accessed-like the undistributed NSA information that would have helped identify Nawaf al Hazmi in January 2000. But someone had to ask for it. In that case, no one did. Or, as in the episodes we describe in chapter 8, the information is distributed, but in a compartmented channel. Or the information is available, and someone does ask, but it cannot be shared.

What all these stories have in common is a system that requires a demonstrated "need to know" before sharing. This approach assumes it is possible to know, in advance, who will need to use the information. Such a system implicitly assumes that the risk of inadvertent disclosure outweighs the benefits of wider sharing. Those Cold War assumptions are no longer appropriate.
1.10.2006 11:20pm
Noah Klein (mail):


The problem with this issue is that it is so basic to our understanding of government that its hard to talk about in strictly a legal matter. So to continue politically, I have seen that the polls go back forth on the issue. The Rasmussen Poll has it at 64% that approves of wiretapping, but the question doesn't ask anything about a court order. The AP/IPSOS poll has 56% disapproving of the tap when asked "Should the Bush Administration be required to get a warrant from a judge before monitoring phone and internet communications between Americans citizens and suspected terrorists, or should the government be allowed to monitor such communications without a warrant?" But the demographics of the poll are terrible. The Cbs poll which asks about the court order has 49% approving and 48% disapproving. The Washington Post poll has 64% of Americans "[thinking that] federal are...intruding on some Americans' privacy rights." And 49% feel those intrusions are not justified.

Noah
1.10.2006 11:23pm
Apodaca:
By the way, for an analysis of how well-crafted/neutral the polls on the NSA program were, I plan to check Mystery Pollster over the next few days. He offers thoughtful and astonishingly informed commentary about the merits and pitfalls of sample selection, question wording and sequencing, and survey procedures (mail/phone/in-person), as well as the risks of uncorrected "response bias." A recent, typically deep-in-the-weeds analysis is here.
1.10.2006 11:33pm
Jamesaust (mail):
Perhaps a better question would have been:
"Did the President have a legitimate reason for failing to follow the law when ordering wiretaps without seeking a court warrant?"

(Affirmative follow up question: Can you tell us what that legitimate reason was?)
1.10.2006 11:49pm
Medis:
For poll questions about whether the President did the right or wrong thing, I think it is a little early yet.
1.11.2006 12:04am
Apodaca:
Medis, whether it's too early depends, methinks, on what one sees as the purpose of such polling. Is it to ascertain how fully informed the sample population is, or just to measure their "gut," however un- or imperfectly informed?

I'm confident that no matter how little the public at large -- or VC commentators, for that matter -- actually knows about the specifics of the NSA program, the current poll data is legitimately of interest to policymakers.
1.11.2006 12:16am
Noah Klein (mail):
Apodaca:

You are right, because they have an interest in knowing what public opinion is of the constitutionality of the NSA program. But this poll will not determine the next step in the process, which will be hearings. And it indicates that without a full knowledge of the facts somewhere between 46% to 56% of the American people believe the president acted possibly outside the law or at least in a manner that they do not believe is appropriate for the executive. For many who were saying, "O I hope the Democrats confront the president on this, because he will beat them down everytime" (Paraphrasing, but something to that effect). The president has someething to worry about, but Democrats and Republicans who are pursuing this issue have not yet convinced a consistent or predictable majority.

Noah
1.11.2006 1:18am
Dave:
I think Noah is right. There are a lot of people that are worried about this, even though at this point it's based on incomplete knowlege. Things could go either way as the public becomes more informed, but the public needs to get better informed, and hearings are probably the best way to do that.

Dave
1.11.2006 1:57am
Medis:
Apodaca,

I'm sure policymakers (and politicians) do find these polls interesting. My general guess is the same as Noah and Dave's--these polls will be enough to motivate aggressive hearings, but aren't enough to motivate any other course of action as yet.

But my point was just that whether or not the Administration did the "right" or "wrong" thing is a pretty comprehensive (and somewhat ambiguous) question. So, while this may indeed reflect a "gut" reaction, I'm not sure that "gut" reaction is going to be reflective of attitudes in the future (which could work either way, of course).
1.11.2006 7:44am
John (mail):
If, as seems probable to me, virtually none of the people polled have the foggiest idea what sort of surveillance is going on, or to what extent it is going on (who really does?), then the results actually suggest that more than half the people would OK just about any kind of anti-terror spying. When, and if, what I expect are the relatively benign NSA intrusions are revealed, one would accordingly expect the approval numbers to increase.
1.11.2006 8:18am
Medis:
John,

Or many people could just be trusting that the Bush Administration has not done anything too extreme. Similarly, many others (in the 46%) could be assuming that the Bush Administration was hiding something sinister. So, I'm not sure it is true that these people would approve or disapprove of anything respectively, because they could be taking their best guess about what is actually happening.

But I agree with you that the actual facts about the program will likely matter to a significant number of people on both "sides" of this poll.
1.11.2006 8:37am
John (mail):
Medis,

Points well taken. I guess a lot of polls that seek info on charged issues wind up just being the functional equivalent of presidential approval polls.
1.11.2006 8:56am
Neal Lang (mail):
I'm just wondering why nobody's done a poll that specifically addresses the issue -- it's not about whether they can do it, and it's not about whether they can do it without a warrant, but whether they can bypass FISA.

Perhaps a better poll question might be:
Can the Congress, by mere legislative act, force the Commander-in-Chief to turnover tactical control of wartime intelligence gathering to the unelected and none responsible Judical Branch without amending the Constitution?

I fail to see anything in Article III that extends such "war powers" to the Judiciary. So, obviously, to apply FISA in a "wartime" situation interferes with the prerogatives of the President, as Commander-in-Chief, to wit:
[Section 2.] The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

I imagine if the Framers thought the President should seek the "Advice and Consent" of the Courts before gathering "military intelligence", they would have added such a requirement to the first paragraph of Article II Section 2. I believe in the immediate case, as ordained in said paragraph, the Commander-in-Chief did seek and received, "Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices". All of whom, apparently, concurred that his "war powers" authority did extend to intercepting the communications between "foreign powers" at war with the US and their "agents" in the US, who were planning and attempting to execute attacks on our country, without seeking the "permission" of the FISC.
1.11.2006 11:20am
Medis:
Neal,

Article III, Section 2 provides "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made . . . ."

I don't see "except not those laws which have anything to do with war".
1.11.2006 12:06pm
Neal Lang (mail):
Perhaps a better question would have been:
"Did the President have a legitimate reason for failing to follow the law when ordering wiretaps without seeking a court warrant?"

Answer: Yes!
(Affirmative follow up question: Can you tell us what that legitimate reason was?)

Answer: Preventing another "9/11"-type attack under authority granted him in Congressional Joint Resolution Authorizing The Use Of Force Against Terrorists of September 14, 2001, to wit:
To authorize the use of United States armed forces against those responsible for the recent attacks launched against the United States.

Whereas, on Sept. 11, 2001, acts of despicable violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad, and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence, and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States,

Whereas the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.

Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled,

Section 1. Short Title

This joint resolution may be cited as the "Authorization for Use of Military Force"

Section 2. Authorization for Use of United States Armed Forces

(a) That the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements

Specific Statutory Authorization -- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

Applicability of Other Requirements -- Nothing in this resolution supersedes any requirement of the War Powers Resolution.
1.11.2006 12:30pm
Neal Lang (mail):
Article III, Section 2 provides "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made . . . ."

I don't see "except not those laws which have anything to do with war".

Fine! And when Usama bin Laden or one of his US-resident "foreign agents" henchmen sues in order to receive damages related to the President's "invasion of his privacy", I am sure the Federal Courts will have jurisdiction for the case. In the meantime, nothing in Article II nor III constitutionally mandates that the President seek Judicial approval to exercise his broad, "Congressionally Recognized" - authority as Commander-in-Chief.
1.11.2006 12:39pm
Medis:
Neal,

You say: "In the meantime, nothing in Article II nor III constitutionally mandates that the President seek Judicial approval to exercise his broad, 'Congressionally Recognized' - authority as Commander-in-Chief."

As an aside, the Fourth Amendment might have something to say on that subject. But in any event, holding aside the Fourth Amendment, it is a federal statute which requires the government to get a warrant before engaging in electronic surveillance. Hearing warrant applications is a traditional judicial role (I believe that the potential subject of the warrant is deemed adverse, even though they do not appear in court). Hence, these warrant hearings, because they arise under federal law, are within the jurisdiction of Article III courts.

So, I don't see an Article III jurisdictional problem here. And I don't see an Article I problem either, since Article I, Section 8 gives Congress several broad powers to regulate the armed forces and the conduct of war.
1.11.2006 3:03pm
Sydney Carton (www):
"Did the President have a legitimate reason for failing to follow the law when ordering wiretaps without seeking a court warrant?"

Trick question. There's a lot of dispute as to whether the "law" was violated.
1.11.2006 4:10pm
pwb (mail):
The question should also replace "suspected terrorists" with "US citizens" to be truly accurate.
1.11.2006 6:57pm
Neal Lang (mail):
As an aside, the Fourth Amendment might have something to say on that subject. But in any event, holding aside the Fourth Amendment, it is a federal statute which requires the government to get a warrant before engaging in electronic surveillance. Hearing warrant applications is a traditional judicial role (I believe that the potential subject of the warrant is deemed adverse, even though they do not appear in court). Hence, these warrant hearings, because they arise under federal law, are within the jurisdiction of Article III courts.

So, I don't see an Article III jurisdictional problem here. And I don't see an Article I problem either, since Article I, Section 8 gives Congress several broad powers to regulate the armed forces and the conduct of war.

I do! Please note that War trumps the courts, to wit:
Article I Section 9.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

I submit that it is impossible to get to the Federal Courts without "the Privilege of the Writ of Habeas Corpus". Hmmm! Do you suppose the Framers considered that the Commander-in-Chief's "war powers" did require micro-management by the lawyers and the courts?
You say: "In the meantime, nothing in Article II nor III constitutionally mandates that the President seek Judicial approval to exercise his broad, 'Congressionally Recognized' - authority as Commander-in-Chief."

Yep!
TITLE 10—ARMED FORCES
Subtitle A—General Military Law
PART I—ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 3—GENERAL POWERS AND FUNCTIONS

§ 121. Regulations

The President may prescribe regulations to carry out his functions, powers, and duties under this title.

Hmmm! Apparently Congress does, too!
1.13.2006 12:33am
Neal Lang (mail):
As an aside, the Fourth Amendment might have something to say on that subject. But in any event, holding aside the Fourth Amendment, it is a federal statute which requires the government to get a warrant before engaging in electronic surveillance. Hearing warrant applications is a traditional judicial role (I believe that the potential subject of the warrant is deemed adverse, even though they do not appear in court). Hence, these warrant hearings, because they arise under federal law, are within the jurisdiction of Article III courts.

Just where does the 4th Amendment refer to "surveillance", "electronic" or otherwise?
Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now perhaps if President Bush had authorized "warrantless physical searches" of "US Citizens" in the US, by Executive Order, you might have a case. But that was a different President at a time before the Congress declared the "War on Terror".
1.13.2006 12:47am
Neal Lang (mail):
The question should also replace "suspected terrorists" with "US citizens" to be truly accurate.

There is no evidence that the subjects of the "electronic surveillance" in question were, in fact, "US citizens" and not "suspected terrorists". Do you have proof that they were not "suspected terrorists" and were "US citizens"? If not, then why change the question, unless your object is to "push the poll"?
1.13.2006 12:57am
Neal Lang (mail):
The president has someething to worry about, but Democrats and Republicans who are pursuing this issue have not yet convinced a consistent or predictable majority.

Typically, no one "has anything to worry about", if they are doing their job. From the available evidence the President is doing his job and "the People" think so, too - despite the anti-Bush media spin.

Any "hearings" should be to find out what Democrats illegally disclosed this "Top Secret" program.

Giving judges and lawyers the final say in the war fighting operational matrix is nuts. Just look at what happened to the Able Danger "Intel" because of DoD lawyers making the decisions.
1.13.2006 1:13am