I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, December 29, 2005

Public opinion & Presidential law-breaking -- A few facts

One of the most absurdly formulated polls ever was released yesterday by Rasmussen Reports, and it purported to find that 64% "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." Without realizing the obvious flaw or realizing it but not caring, Bush defenders have jumped on this poll like a pack of dogs in heat, declaring that we should just immediately forget about this whole NSA law-breaking thing because it’s obviously not a popular scandal.

Many have already noted the rather fundamental and painfully obvious flaw in the poll: it doesn’t ask whether people support eavesdropping in violation of the law and/or without obtaining search warrants from a court, which happens to be what the scandal is about. As everyone knows by now (except for the Rasmussen pollsters), the scandal is not about whether the Administration should be eavesdropping in order to fight terrorism but about whether the Administration has the right to violate criminal laws by eavesdropping on American citizens without the warrants required by law. Aren’t we well passed the point where it is necessary to point out that distinction?

But beyond this specific, truly useless poll, there are several things worth noting about public opinion polls generally as they concern this scandal:

(1) It is quite amazing to watch these Bush defenders -- who relentlessly slogged on with Bill Clinton’s sex scandal impeachment in the face of immovable public opinion polls consistently showing strong pro-Clinton and anti-impeachment sentiments, but who piously told us again and again how polling doesn’t matter when it comes to the solemn duty to uphold the rule of law – now seize the very first public opinion poll they can get their hands on and parade around with it like celebrating munchkins declaring that the wicked scandal is dead. One Bush-defending celebrant even told us, with no apparent irony at all, that “a scandal without a scandalized public is pretty hard to pursue to impeachment.”

Is there some sort of new medication or surgical procedure which enables Bush defenders to simply forget everything they said, every "principle" they touted, during the eight years of the Clinton Presidency?

(2) There is a lot of talk about the proper oppositional role which a minority party ought to play, and there has been much debate within the Democratic Party specifically about whether a more aggressive posture is appropriate in opposing the Administration's actions.

Regardless of one's stance on those issues generally, surely everyone can agree that the Democratic Party must aggressively -- very aggressively -- pursue this Presidential law-breaking no matter what public opinion surveys show in the first instance, and even what they show thereafter. If the Democratic Party is going to meekly crawl away with a few peeps of impotent protest now that it has been revealed that George Bush has been deliberately and breezily violating laws enacted by Congress – and now that Bush himself has defiantly proclaimed his intent to continue to violate the law – what really would be the point of having an opposition party?

It cannot matter what public opinion polls show, particularly in these initial stages. The President violated the law. Repeatedly and deliberately. And he has vowed to continue to do so. The harm from allowing him to do so with impunity would be incalculable on almost every level. And if Democrats crawl away from this fight because of fear of polling data or a desire to appear “serious” as the Bill Kristol’s of the world manipulatively define that term, such a dereliction of duty will only bolster – and quite justifiably so – the devastatingly harmful image of Democrats as a weak-willed and spineless party with no courage and no soul.

(3) Scandals do not instantaneously change public opinion – almost ever. Perceptions of George Bush have been solidified after 5 years in office and two national elections, and they don’t just magically transform overnight because of a single New York Times article, the ramifications of which have yet to be fully explained to the public.

This scandal is a full two weeks old. Most of the relevant facts are still to be revealed. We know only bits and pieces – we only know those very limited facts which the Times scraped up enough courage to print, along with "facts" which have been leaked by the Administration. We are at the very beginning of this scandal, not in the middle or at the end. Any talk of “public opinion” regarding the illegal eavesdropping -- as though such opinion is dispositive or unmoveable – is absurd.

Watergate unfolded over the course of three years. Richard Nixon was re-elected with an overwhelming landslide in the middle of the scandal. It is highly instructive to recall the evolution of public opinion with regard to this Mother of all Presidential Law-breaking Scandals:

[I]t is worth remembering that Watergate, as a case against a presidency, was not built in a day, and the decision of most Americans to abandon their support of Nixon was not made overnight.

Shafts of light fell on Nixon's dark side in June 1972, when burglars were caught bugging the Democratic National Committee headquarters in the Watergate hotel-office complex. The few newspeople who went after the story began piecing it together that summer and fall: the program of dirty tricks and the illegal cash financing, the efforts to silence potential witnesses and shield the president.

While the revelations accumulated, the rest of the country tuned out. That November, Nixon carried 49 states in winning re-election. More than two months later, as the first Watergate defendants were going to court in January 1973, Nixon's numbers in the Gallup Poll were among the most robust of his presidency: 68 percent approval to 25 percent disapproval (a near match with Clinton's figures for late January 1998).

Of course, that was before Nixon began talking about invoking executive privilege to prevent White House aides from testifying about an alleged cover-up. When that key phrase, "executive privilege," became part of the discussion, Nixon's numbers started their descent.

In February, the Senate voted 70-0 to empanel an investigating committee of its own. Nixon's approval rating in the first week of April stood at 54 percent in the Gallup Poll. Most Americans were still withholding judgment.

Even after the April 30 speech in which Nixon announced the resignation of his closest aides, many Republicans continued to rally around the president. The Senate Republican leader, Hugh C. Scott of Pennsylvania, said the speech had proved that the president was "determined to see this affair thoroughly cleaned up." The governor of California, Ronald Reagan, said the Watergate bugging had been illegal but that "criminal" was too harsh a term because the convicted burglars were "not criminals at heart."

That same month, Republican state party chairmen meeting in Chicago adopted a resolution blaming "a few overzealous individuals" for Watergate and lending unequivocal support to the president.

Vice President Spiro T. Agnew accused the press of using "hearsay" and other tactics that were "a very short jump from McCarthyism." The same comparison was picked up by the man who had succeeded McCarthy in the Senate, Democrat William Proxmire of Wisconsin, who said the media had been "grossly unfair" to Nixon.

By then, however, the bleeding in the Gallup Poll had dropped Nixon to just 48 percent approval in the first week of May -- a drop of 20 percentage points since January. And that rating would keep on falling through the 25 percent level before Nixon's resignation in August 1974.

In the short two weeks since this scandal was disclosed, there have been all sorts of obfuscatory smoke screens thrown up by blindly loyal Bush defenders, who have paraded before the cameras and spewed forth all sorts of esoteric legalisms about “inherent authority” and the AUMF in order to cloud what is, in reality, an exceptionally clear issue.

But that smoke will clear as more facts are revealed. Americans will realize that Congress – with the agreement of the Executive Branch and the intelligence community – all agreed that eavesdropping on American citizens without a warrant should be and is a crime. And knowing that, Bush ordered his Government to do it anyway. He therefore broke the law, and is unrepentant about it. Once the smoke clears, those are not difficult concepts to grasp, and Americans -- thanks to Watergate -- have a visceral aversion to illegal White House eavesdropping and Presidents who claim the right to break the law. These are not difficult issues to explain.

Ultimately, the focus must remain on the fact that the President acted in violation of the law and brazenly claims the right to do so. Democrats and everyone else who care about the rule of law should be guided by their passion and anger over that fact. Everything else will follow from it.

UPDATE: This CNN/USA Today/Gallup poll (h/t Mike G.) from December 20 -- reporting that "[n]early two-thirds said they are not willing to sacrifice civil liberties to prevent terrorism, as compared to 49 percent saying so in 2002" -- is of much greater relevance to the NSA scandal than a poll regarding the general desirability of (legal) surveillance. But public opinion on the NSA scandal won't be known until a credible poll asks whether the public approves of the Bush Administration's eavesdropping on American citizens with no oversight and without obtaining judicial authorization as required by FISA.


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