Polling FISA

Obviously, the mere fact that the ACLU was able to commission a poll (that's via Matt Stoller) showing public support for its positions on surveillance has limited probative value. Advocacy groups can always pull that off. The question is, how did they need to frame the question to get their result:

It turns out that a fairly anodyne wording gets the civil libertarian result:

Traditionally, the law has required a warrant from a court for each individual the government wants to wiretap. Some people want to permanently change this law to allow courts to issue blanket warrants for wiretapping American citizens that would not have to name any specific individual. Do you favor or oppose allowing courts to issue these blanket warrants?

This probably shouldn't come as much of a surprise. A lot of people seem to have the idea that the American electorate is ruthlessly authoritarian and will punish any candidate who stands up for civil liberties. In reality, it seems to me that the reverse is true -- this is the country where you can't even do something sensible let have a national ID card or a national gun registration system without people freaking out. Combine that with the fact that the specific president who would be empowered with all this discretion is wildly unpopular, and I don't see any reason to think there's an unstoppable public opinion juggernaut here.

Comments

I'm not so sure how "anodyne" that wording is. It says nothing about the alleged purpose of the wiretap authority -- i.e., to investigate suspected terrorists. No, I don't suspected warrantless searches for no particular reason are going to be popular, but if you tell people that it's part of the War on Terra, I bet you'd get significantly different results.

I basically disagree with your assessment, MY: I think what's overblown is our purported American tradition of guarding our civil liberties. I think this country is and always has been ready to chunk those liberties far too easily at the slightest scare. I wish it were otherwise.

Posted by Glenn | October 16, 2007 3:47 PM

Doesn't seem like an anodyne description to me.

Posted by SomeCallMeTim | October 16, 2007 3:54 PM

Why use "permanently" to describe the change in the law? Any change made could be changed back. If you were polling a tax plan you wouldn't talk about a law "permanently" changing the highest marginal tax rate. I think including that word makes the change in the law sound even more extreme than it is (and it's plently extreme).

It would also be interesting to know if the respondents' views would change when told that the purpose of the change in law was to investigate terrorists, drug dealers, pedophiles, spies, etc.

Posted by Led | October 16, 2007 4:00 PM

I'll pile on Matt here too. The question is not neutral at all. It's phrased as though the law would be changed across the board to allow courts to issue "blanket warrants" covering anyone any time, which of course is not at all what is proposed. The change would apply in only very limited circumstances. The question has an erroneous premise so doesn't tell us anything meaningful about public opinion.

Posted by Richard Riley | October 16, 2007 4:15 PM

Matt,

Sometimes your word choice makes for cool reading...you've used 'anodyne' and 'atavistic' recently. But what I still don't get is the difference between 'proffer' and 'offer'.

Posted by Adi Nadimpalli | October 16, 2007 4:16 PM

Led, it's permanent as opposed to something that applies only during wartime, or something like the current law, which has a sunset provision.

Glenn, there was no "terrorist-only" provision in the FISA revision.

Posted by KCinDC | October 16, 2007 4:23 PM

Glenn, there was no "terrorist-only" provision in the FISA revision.

Never said there was, KC. My point was that the poll presents the negatives of the bill -- expanding warrantless wiretapping power -- without even mentioning the (supposed) benefits, which are at least allegedly all about terrorism interdiction. Look, I don't think those "benefits" justify the bill, but it does seem to me a fair discussion requires at least some mention of them. It's easy to be a civil libertarian when there's nothing at stake.

Posted by Glenn | October 16, 2007 4:32 PM

The ACLU's poll meshes very well with Rasmussen's Sept. 12 poll ( http://www.rasmussenreports.com/public_content/politics/64_agree_with_court_ruling_on_patriot_act ):

"Sixty-four percent (64%) of American adults agree that a search warrant should be required before the government can ask Internet providers to turn over customer records. A Rasmussen Reports national telephone survey found that just 16% disagree and 20% are not sure.

"Last week, a District Judge ruled that the provisions of the Patriot Act allowing such warrantless searches violated First Amendment constitutional guarantees and constitutional provisions concerning separation of powers. Thirty-one percent (31%) of adults say they followed news stories about the Court ruling Very Closely and another 34% followed it Very Closely."

Posted by Bruce Moomaw | October 16, 2007 4:34 PM

I don't think Matt is claiming that this is a neutral question. Very few poll questions are. The point is that you don't have to present much argument (much less misrepresent the facts, as many polls do on various subjects) to get people to support civil liberties.

Posted by KCinDC | October 16, 2007 4:42 PM

I wouldn't call registration of all Americans with guns "sensible" in the slightest. Registration has been the prelude to confiscation. Totally in the case of Jews in Germany, or partially in the case of "bad guns" not in the hands of approved people in Australia.

And in America, there is a problem or two with the Democrats dream of legislating away violence with more laws on top of existing laws:

1. Criminals will not register their weapons.
2. Legal gun owners will fear confiscation of valuable property and means of defense by government whim when half the people in power believe that "only armed, approved agents of the government have a right to firearms possession".
3. People who wish to ban guns forget how easily guns can be made from scratch by a good metalworker. (In Pakistan and some parts of the USA, guns are built from scratch from surplus auto parts)
4. Registration is always accompanied by fees and demands by bureaucrats for existing gun owners to prove they have a "need" for a gun...which usually translates out into only persons from a small elite of the connected and powerful (or their paid bodyguards) being granted permits.

Now, if the Supremes finally rule that is a right of the People, that the ACLU's opposition to one part of the Bill of Rights was specious...then law-abiding gun owners would breathe easier.
But still oppose having the government with selected databases of gun owners, Muslims, Jews, members of the ACLU, etc that it could act on with short notice.

*******************
The ACLU's poll question was loaded, conveying a message of "permanent "wiretapping" of ANY American without warrant". Lying crap when it is SIGINT, not wiretapping home phones, and it is to find terrorists, not build criminal cases against them in the USA without warrant.
The question is more accurately "Should we try to learn who terrorists are calling in other nations, and in the USA when we are trying to learn who they are, not trying to make a criminal case against known terrorists or teasonous US citizens working for them?"

In the past, the answer to that question has been 77-79% "hell, yes!"

Posted by Chris Ford | October 16, 2007 5:56 PM

How many people even know what FISA is? If you asked ten random strangers (no where near a court house or state house or newsparer office) I'm betting nine would be clueless. One or two people might even think you were talking about the Social Security tax. This is one of those insider beltway issues that just isnlt one ordinary people's radars.

Posted by Jonf | October 16, 2007 8:11 PM

How many people even know what FISA is? If you asked ten random strangers (no where near a court house or state house or newsparer office) I'm betting nine would be clueless. One or two people might even think you were talking about the Social Security tax. This is one of those insider beltway issues that just isn't on ordinary people's radars.

Posted by Jonf | October 16, 2007 8:11 PM

Chris Ford: "The ACLU's poll question was loaded, conveying a message of 'permanent wiretapping of ANY American without warrant'. Lying crap when it is SIGINT, not wiretapping home phones, and it is to find terrorists, not build criminal cases against them in the USA without warrant.

"The question is more accurately 'Should we try to learn who terrorists are calling in other nations, and in the USA when we are trying to learn who they are, not trying to make a criminal case against known terrorists or treasonous US citizens working for them?' In the past, the answer to that question has been 77-79% 'hell, yes!' "

(1) Glenn Greenwald ( http://www.salon.com/opinion/greenwald/2007/10/11/klein_fisa/index.html ):

"Last night, Time's Joe Klein tried to explain why he supports the 'Protect America Act' enacted by Congress in August that, in essence, allowed the administration to eavesdrop on all international telephone calls of Americans without warrants. This is what he said:

" 'I don't agree with those who believe the Democrats have "folded" by agreeing to support the modified FISA law -- even if it is called, in the Orwellian fashion of the Bush Administration, the Protect America Act. From the start, I've argued that the NSA's data-mining program is essential and easily made legal by updating the FISA law . . . .

" 'But the FISA law needed to be updated to reflect the technological advances since the late 1970's, including the use of data-mining, and this bill does that. Needless to say, no actual eavesdropping on conversations should be permitted without a FISA court ruling.'

" Truly bizarre. Klein says that 'no actual eavesdropping on conversations should be permitted without a FISA court ruling.' But the bill that Klein simultaneously says he supports allows exactly that -- it allows the Bush administration to eavesdrop, in essence, on any international calls it wants, including those to which a U.S. citizen, on U.S. soil, is a party. That is the whole point of the bill, the whole reason why it is such a travesty -- precisely because it allows 'actual eavesdropping on conversations without a FISA court ruling.'...

"...[M]anifestly, Klein also has no idea what he is talking about when he claims the administration is engaged in 'data mining.' The excuse that the administration's violations of FISA were necessitated by 'data mining' programs has even been expressly rejected by both Gen. Hayden ('Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about') and Mike McConnell ('Now there's a sense that we're doing massive data mining. In fact, what we're doing is surgical. A telephone number is surgical'). If Klein really does know what the NSA is doing -- rather than throwing around the phrase 'data mining' because it seems complicated and smart -- then he ought to write about it, since that would be a major scoop.

"Either way -- data mining or not -- none of these FISA amendments could coherently be justified on that basis. The changes demanded by the administration and enacted in August by Congress allow actual eavesdropping on the content of telephone conversations and e-mail communications without warrants. Regardless of how giddy and impressed someone is over all the super-modern 'data mining' innovations, they manifestly do not justify expansions of warrantless eavesdropping powers. One has nothing to do with the other."

Follow Lederman's hyperlinks (including his links to Marty Lederman on the actual legal nature of the Protect America Act).

(2) Benjamin Wittes ( http://www.tnr.com/doc.mhtml?i=w071008&s=wittes101207 ):

"[L]et's be clear: Under either approach [Bush's or the Democrats'], the National Security Agency will have the legal authority to listen to your calls without first going to the Foreign Intelligence Surveillance Act Court to get a warrant. As long as the agency is targeting people overseas who happen to call you, it'll be tough noogies. Under current law, which the administration wishes to make permanent, the FISA Court plays only a tiny retroactive role in approving procedures for overseas surveillance; under the House Democrats' proposal, it would play a slightly-less-tiny role in rubber-stamping programs. And except in those most general capacities, under neither system would it play any role in protecting either individual targets of those programs or those whose communications get swept up incidentally under them...

"This brings me to the major virtue of the Democratic bill. In this type of surveillance, accountability is a far more promising check on executive behavior that pre-surveillance approval. And the Democratic proposal contains important new reporting requirements, so that Congress would receive copies of the government's applications and the court's orders. It also contains a requirement that the Justice Department's inspector general audit the surveillance programs regularly and report to the Congress and the FISA court on such matters as the scope of surveillance under the programs and the number of Americans domestically whose communications have been tapped. It would also require an inspector general audit of the original Terrorist Surveillance Program. These and other reporting rules would create a significant threat of exposure of abuse. That is a far more substantial sword to dangle over the intelligence community's head than any pre-screening of the reasonableness of a surveillance program."

Posted by Bruce Moomaw | October 16, 2007 8:59 PM

http://www.nytimes.com/2007/08/06/washington/06nsa.html?ex=1344052800&en=5e759f53fc811cd7&ei=5090&partner=rssuserland&emc=rss :

"Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government's ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

"....For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.'s target is the person in London.

"Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign [technical] problem, potentially allowing the government to listen to Americans calling overseas.

"But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans. 'It's foreign, that's the point,' Mr. Fratto said. 'What you want to make sure is that you are getting the foreign target.'

"....The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court's only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored."

Kevin Drum ( http://www.washingtonmonthly.com/archives/individual/2007_08/011819.php ): "If I'm reading this right, the White House appears to be confirming that it believes the new law explicitly allows eavesdropping not just on foreigners talking to foreigners, but also on Americans talking to foreigners. All they have to do is claim that the real target is the foreigner and that a 'significant purpose' of the eavesdropping is related to intelligence gathering. Not terrorism, mind you, just 'intelligence' generically. What's more, they don't even have to go to the minimal trouble of making that claim to a court. They can just make it and approve it themselves. [Drum's references to 'significant purpose' and 'intelligence' are quotes from Marty Lederman's earlier analysis of the Act: http://balkin.blogspot.com/2007/08/senate-passes-administration-bill.html -- Moomaw.]

"So that's that. The government is now legally allowed to monitor all your calls overseas with only the most minimal oversight. But don't worry. I'm sure they'll never misuse this power. They never have before, have they?"
_______________________

Heavens, no. Nixon and J. Edgar Hoover certainly would not have done so.

Posted by BruceMoomaw | October 16, 2007 9:41 PM

"I'm not so sure how "anodyne" that wording is. It says nothing about the alleged purpose of the wiretap authority -- i.e., to investigate suspected terrorists.

If you look at the memo that Matt links to it shows a couple of charts where they presented arguments on both sides, including very strongly worded wingnut style arguments lie this:

"Other people say the U.S. Congress should give the President the legal power to wiretap the international phone calls and emails of American citizens without a warrant from a court. We are in a global war on terror against enemies who have vowed to destroy us. This is no time to tie the president’s hands with a lot of legal red tape. We cannot limit our ability to collect the intelligence that keeps us a step ahead of the terrorists and keeps us safe. And if an American is talking to a suspected terrorist, we should want to know why right away and not have to wait for the courts to act. In a time of war, Congress should not try to restrict the president’s power to wiretap those who want to attack us."

Bottom line: in a fair fight, with the ACLU's argument pitted against Bush's (up above there), the ACLU's argument kicks the Bush argument's ass 62% to 32% -- opposition to warrantless wiretaps actually increases! Same thing with blanket warrants.

Bush is little better than tinhorn banana republic dictator. He's an idiot dauphin with no respect for or understanding of the traditional political values that made this country great. He is squandering our birthright. Everything he touches turns to shit.

The average American has way more sense than George Bush or the band of extremist neocon Republican cretins around him.

Posted by Junius Brutus | October 16, 2007 10:09 PM

The main point that the ACLU left out of its question was that the warrantless surveillance only applies to the international calls of americans, not all their calls all the time. This is the relevant distinction that makes the wording misleading. I don't think that including the "reason" for wiretapping, i.e. terrorism, would have made the question more balanced. Like someone above said, there is no terrorism clause in FISA...

Posted by Seth | October 17, 2007 12:26 AM

Led, it's permanent as opposed to something that applies only during wartime, or something like the current law, which has a sunset provision.

Just for the record, the Democrats' bill in the House (at least the one that made it out of Judiciary) does in fact have a sunset provision, in 2009.

Posted by Jeff | October 17, 2007 12:35 AM

Seth said, "The main point that the ACLU left out of its question was that the warrantless surveillance only applies to the international calls of americans, not all their calls all the time."

Seth is completely wrong about this.

If you go to the link that Matt provides you can read the polling firm's memo to the ACLU about the poll. In it they provide lots of charts and graphs and the text of the questions that were asked.

The first time they ask about warrantless wiretaps, they specifically ask about wiretapping "conversations U.S. citizens have with people in other countries".

The second time they ask about it, they ask, "Should the U.S. government have to get a warrant from a court before wiretapping the international conversations U.S. citizens have".

Posted by Junius Brutus | October 17, 2007 6:39 AM

Ok, so as long as this question followed those,then I guess respondents can get the international part from context. But if I were just evaluating the wording of this question (which is what this post was all about), then clearly not mentioning it explicitly is a problem.

Seth

Posted by Seth | October 17, 2007 1:40 PM

I find it "interesting" that the party that ranted against "jack booted thugs" has such low opposition numbers and high favor numbers. I assume that when Hillary, Obama Hussein or any Democrat for that matter, is in the White House that this will change.

Posted by ET | October 17, 2007 1:46 PM