Reidblog [The Reid Report blog]

Think at your own risk.

Thursday, December 29, 2005

The Rasmussen boobie poll

Update 3, 12/30, 11:54 a.m.: More of Rob's response to my response, plus a guy called Carrick who points myself and others to Article II of the Constitution. Duly noted, but I say they're applying the Constitutional war powers in the wrong place -- we're talking about domestic intelligence collection and wiretapping persons on U.S. soil -- possibly including Americans, both of which are expressly disallowed under the FISA rules. (And yes, guys, even a "wartime president" is sworn to uphold United States law. An no, Carrick, there is no universal agreement that Congress' force authorization green-lighted Bush on the wiretaps, else, what are the upcoming hearings for? The Congress' health???)

One thing Rob and I seem to agree on, though, is that Congress went way too far and was much too vague in giving Bush a blank check "use of force authorization" which Bush has stretched into unlimited war-making powers both abroad and at home. Time for Congress and the courts to step up and check this guy, as the Constitution intended...

One very useful link by Carrick, but one in which I can find no support for his arguments, this case law on the Fourth Amendment (protecting against unlawful searches and seizures). Here's a clip:

The Berger and Katz Cases.--In Berger v. New York,140 the Court confirmed the obsolesence of the alternative holding in Olmstead that conversations could not be seized in the Fourth Amendment sense.141 Berger held unconstitutional on its face a state eavesdropping statute under which judges were authorized to issue warrants permitting police officers to trespass on private premises to install listening devices. The warrants were to be issued upon a showing of ''reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded.'' For the five-Justice majority, Justice Clark discerned several constitutional defects in the law. ''First, . . . eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the 'property' sought, the conversations, be particularly described.

''The purpose of the probable-cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed is thereby wholly aborted. Likewise the statute's failure to describe with particularity the conversations sought gives the officer a roving commission to 'seize' any and all conversations. It is true that the statute requires the naming of 'the person or persons whose communications, conversations or discussions are to be overheard or recorded. . . .' But this does no more than identify the person whose constitutionally protected area is to be invaded rather than 'particularly describing' the communications, conversations, or discussions to be seized. . . . Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the con versations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits. . . extensions of the original two-month period--presumably for two months each--on a mere showing that such extension is 'in the public interest.'. . . Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. . . . Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.''142

Both Justices Black and White in dissent accused the Berger majority of so construing the Fourth Amendment that no wiretapping- eavesdropping statute could pass constitutional scrutiny,143 and in Katz v. United States,144 the Court in an opinion by one of the Berger dissenters, Justice Stewart, modified some of its language and pointed to Court approval of some types of statutorily-authorized electronic surveillance. Just as Berger had confirmed that one rationale of the Olmstead decision, the inapplicability of ''seizure'' to conversations, was no longer valid, Katz disposed of the other rationale. In the latter case, officers had affixed a listening device to the outside wall of a telephone booth regularly used by Katz and activated it each time he entered; since there had been no physical trespass into the booth, the lower courts held the Fourth Amendment not relevant. The Court disagreed, saying that ''once it is recognized that the Fourth Amendment protects peo ple--and not simply 'areas'--against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.''145 Because the surveillance of Katz's telephone calls had not been authorized by a magistrate, it was invalid; however, the Court thought that ''it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place.''146 The notice requirement, which had loomed in Berger as an obstacle to successful electronic surveillance, was summarily disposed of.147 Finally, Justice Stewart observed that it was unlikely that electronic surveillance would ever come under any of the established exceptions so that it could be conducted without prior judicial approval.148

This doesn't sound like much of a defense of Bush's unlimited domestic surveillance powers under Article II to me...

Update 2: 9:11 p.m.: Ezra Klein has more rewording suggestions for the crack researchers (no pun in... never mind...) at Rasmussen...

Update 5:30 p.m.: Rob at Say Anything takes issue with criticisms from myself and other bloggers about the wording of the Rasmussen poll (see below) while conceding the question should have included the fact that the searches were done without warrants. Well, Rob misses the point. True, Rasmussen didn't bother to ask about the warrants issue, but that's neither here nor there, since most Americans probably don't really understand the warrant concept anyway, nor do many of them care when it comes to terrorism, so the results would have been the same.

Rasmussen has succeeded only in testing support for the generalized concept of federal eavesdropping on terrorist suspects -- something all but the most savvy civil libertarians would probably support. What is at issue here is not wiretapping, per se, or even the warrants -- it is the president's ignoring the law about wiretapping and warrants. Let Rasmussen test that and then we'll talk.

On the question of "people living in the U.S. " vs. "Americans" -- actually, Rob, that phrasing makes quite a bit of difference, since people will naturally have a different reaction to out of the box things being done to "foreigners on U.S. soil" versus American citizens. Researchers are supposed to take such things into account. And Rob's assertion that "we don't know who was tapped sow polsters can't ask" is spurious. Again, it is the president's going around the law and the court that matters here. He could have wiretapped his mama for all I care, so long as he obtained a FISA warrant as the law requires. Had he obtained the warrants, there would be no story.

Original post: Rasmussen polls have been called "crack for weak people" (during the election cycle they come out every day, luring you to go back to the site for another hit.) Well Sistah Toldjah and others on the "spy on me!" right are scrambling to get their fix of the latest Rasmussen street product, which assures them that:

Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree.

Furthermore:

Sixty-eight percent (68%) of Americans say they are following the NSA story somewhat or very closely.

Just 26% believe President Bush is the first to authorize a program like the one currently in the news. Forty-eight percent (48%) say he is not while 26% are not sure.

And the coup de gras:

Eighty-one percent (81%) of Republicans believe the NSA should be allowed to listen in on conversations between terror suspects and people living in the United States. That view is shared by 51% of Democrats and 57% of those not affiliated with either major political party.

All-righty then, putting aside the fact that supposedly the right doesn't believe in "dem biased damned polls," let's have a closer look at the Rasmussen product, for those who haven't been involved in polling before. Lesson number one: it's all about the question. If I asked you "do you believe George W. Bush should be authorized to place a bug in your phone?" I'd get a much different response from you than if I asked "do you believe George W. Bush should be able to place a bug in the phone of an American suspected of conspiring with al-Qaida...?"

That's essentially what Rasmussen asked. Here's the way they worded their Big Question:

"Should the National Security Agency be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States?"

To which they got the predictable 64-23 answer spread. Then they asked:

"Is President Bush the first President to authorize a program for intercepting telephone conversations between terrorism suspects in other countries and people living in the United States?"

And since two-thirds of respondents claimed they were "following the story" which is thoroughly infected with the GOP's Clinton-Carter talking point meme (debunked here, by Andrea Mitchell, no less...) 48 percent of respondents dutifully answered "no."

But wait -- shouldn't the president be allowed to intercept telephone conversations between Qaida members and "persons" -- who may or may not be Americans even -- living in the United States? What, were the 23 percenters on methamphedamine? Of course he should! Investigating and preventing terror attacks is a clear responsibility of law enforcement, and the president is the chief law enforcement officer of the United States. But note, clever Rasmussen, that that's not what the president is accused of doing. The FISA law (assuming you folks on the right still care about laws, since you obviously believe the president can take them or leave them...) states that the president, the NSA and other agencies cannot intercept phone calls placed from one domestic phone to another -- NSA only is able to collect intelligence "exclusively between or among foreign powers" (which by extension includes "agents of foreign powers," which is why the Clinton administration was able to monitor communications between Aldrich Aimes and his foreign handlers -- with warrants...) In other words, had Bush only authorized the agency to monitor phonecalls coming into the United States from a foreign power or from al-Qaida to foreign agents in the U.S., he'd be A.O.K. Had the FBI been surveilling suspected terrorists on U.S. soil, he'd be OK there, too.

But Bush did more than that -- he authorized electronic eavesdropping that resulted in taps on domestic and international calls originating in, and in some cases, terminating in, the U.S. -- violating both the FISA law and his own ground rules for the NSA surveillance.... For that, he neeeded FISA warrants. And he chose not to get them, because getting the warrants -- even after the fact -- inconvenienced him. As such, Bush probably ordered the NSA participants to commit a crime. What's worse, Bush's electronic dragnet swept in almost every U.S. phonecall -- not just those between "terr'rists," and since all of this was done in secret, we simply don't know what calls they were listening to -- including he secretly used "The Program" to spy on political foes, anti-war protesters and the like. We simply don't know, because the president has declared all of the information secret, "for national security purposes." After all, he had the Pentagon and FBI watching American anti-war and environmental activists, too... On what do we base the "good faith" that the president didn't abuse this new power he and Tricky Dick found for him?

(Of course, the right doesn't mind being snowed in this manner, because we're at war, and the president should do whatever God tells him is best, and keep errything secret... so the terr'rists won't hear ... shhhhh!!!...)

So here's another way Rasmussen could have framed the Big Question:

"Should the president be allowed to bypass the law requiring court warrants to monitor domestic phonecalls for what he deems are national security purposes?"

If 64 percent of Americans still answer "yes" to that, then thank God the Founders and their constitution protect me from the civics-challenged majority.

Update: Here's Zogby's crack (no pun intended) at the same question:

A narrow plurality of likely voters nationwide believe President Bush acted within his Constitutional powers when he authorized the interception of international communications without the approval of a federal judge, but the public is closely divided on the issue, a new Zogby Interactive poll shows.

Nearly half – 49% - said they think he has the power to authorize the intercepts, while 45% said he does not, the survey showed.

The interactive survey of 1,929 likely voters nationwide, conducted Dec. 20-21, carries a margin of error of plus or minus 2.3 percentage points.

Asked if the President’s actions made Americans more safe or less safe, 50% said the nation was safer because of his actions, while 18% said the actions put the country more at risk and 26% said it made no difference in our level of safety.

However, 44% said they were concerned that the communication intercepts were a step toward stripping Americans of their privacy. Another 23% said they believe the secret intercepts are important in rare cases to fight terrorism, and 29% said they were necessary to combat enemies.

...Which tells me that just over half of those respondents aren't clear on what the president's powers are, or on the law. There, I fault the lazy media (Norah O'Donnell, you're first on my list) who have failed to explain the law or make the matter plain (excepting Andrea Mitchell, who's been surprisingly un Bush-bot lately...)

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