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.

Friday, May 12, 2006

Polling hysteria and the NSA program

Somehow, The Washington Post -- on the very same day most people learned about the new NSA data-collection program -- managed to conduct a poll which purports to show that "63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism." The reaction is painfully predictable. Bush followers are celebrating with glee, as though the issue is resolved in their favor and they won, while some Democrats are quivering with caution, urging that this issue be kept at arm's length lest they take a position that isn't instantaneously and overwhelmingly popular.

I didn't even read about this story until yesterday morning and it took awhile to process the various issues and implications. I'm still doing that. I have a hard time believing that less than 24 hours after this program was first revealed by USA Today, most Americans had informed themselves about what this program is, why it is a departure from past practices, and what are its potential dangers and excesses -- let alone had an opportunity to hear from those who are opposed to the program explain why they are opposed to it.

The whole point of having political leaders and pundits is to articulate a point of view and provide support for that view in order to persuade Americans of its rightness. That process changes public opinion on every issue, all of the time, often dramatically. None of that has occurred here. Let's have a few days of debate over whether Americans actually want the Government to maintain a permanent data base of every call they make and receive -- to their girlfriends and boyfriends, their doctors and lawyers, their psychiatrists and drug counselors. And let's have a debate about whether the law prohibits this program. And then let's see where public opinion is.

When the NSA eavesdropping scandal was first disclosed, Rasmussen Reports quickly issued a blatantly flawed poll purporting to show 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. " The question mentioned nothing about warrants. It mentioned nothing about FISA. And it specified that the Government would be eavesdropping only on conversations "between terrorism suspects."

The only surprise with the results was that only 64% favored that. One would think that virtually everyone would favor eavesdropping on terrorism suspects. Nonetheless, since that was the first poll, it was held up by Bush followers as proof that the NSA scandal was political suicide for Democrats; the media repeated this theme; and many Democrats were scared by it.

As the debate over the NSA scandal became more informed and more Americans understood the issues at stake, virtually every poll thereafter showed that a majority or plurality of Americans oppose warrantless eavesdropping and/or believe the President broke the law, and some even show that a plurality favors the Censure Resolution. Opinions change when people stand up and explain why what the Government is doing is wrong and dangerous, and Americans respect politicians who are willing to do that even when -- especially when -- they are not guaranteed by the consulting class ahead of time that they will win.

All other issues aside, there is nothing for Bush opponents to lose here by pursuing this issue. Nobody who has abandoned George Bush is going to again become a supporter of his because he is keeping track of the telephone calls of every single American. There is no question that some of his supporters will be opposed to this and that will contribute to the shakiness of their support, but nobody is going to become a George Bush fan again because he's compiling these records.

We go through the same empty rituals and are subjected to the same worthless warnings over and over and over from the same know-nothing, pompous pundits. When the NSA scandal first broke, and Bush's popularity rating showed a slight bump upwards (well within the margin of error) in a Rasmussen poll, uber-snarky geniuses like Mickey Kaus spat out oh-so-knowing warnings like this:

Bush hits 50% on Rasmussen. ... Another spy scandal and he'll be at 60%!

I recall those days all too well. The NSA scandal was going to be Bush's political salvation. It would shift the debate back to terrorism, where they always win. Americans are too simplistic and stupid to care about the rule of law or privacy. They only want to cheer on the swaggering, sometimes-reckless Cowboy as he smashes the Bad Guys with machismo and grit.

Meanwhile, in the real world, ever since the NSA scandal was revealed, the President's approval rating has done nothing but plummet. That, of course, does not demonstrate a causal relationship, but it certainly proves that scandals of this type do not remotely help the President in any way. All of those frightened Beltway Democrats who were anonymously screeching that Russ Feingold's Censure Resolution played right into Karl Rove's omnipotent hands, that it destroyed the Grand Democratic Plan, that it would allow the President to recover by forcing the debate back onto his turf -- how wrong were they, as always? After five months of the NSA scandal and increasing debates over the administration's lawlessness, Bush's approval rating today fell to 29% -- a full 4% higher than Richard Nixon when he resigned in disgrace.

Maybe we should listen to the Mickey Kaus's and his friends at The New Republic and in the old Clinton consultant buddy clubs as they meekly urge that we not talk about these data collection programs because -- to use Kaus' very prescient words: "Another spy scandal and he'll be at 60%!"

The danger here is that Bush followers are attempting to instill as permanent conventional wisdom that the "vast majority of Americans" favor this program, something the national media stars (who love polls -- at least poll results -- because they're really easy to understand and explain) will be only too happy to pass along. This only works because Bush opponents allow it to work. They so often internalize this notion, too - "oh, boy - we better stay away from that issue. Most Americans are against us on this. They won't like it if we speak out." And then they run away from the issue, never articulate or advocate the other side, and then point to the fact that that position is a minority view as proof that they were right to run away from it.

It was just revealed yesterday that the NSA is trying to build a data base showing every single call that every single American makes or receives. It is not that hard to explain why that is so dangerous, how powers of this type have been continuously abused in our history by administration's of both parties, and why oversight is therefore critical in both preventing abuse and in ensuring that we engage in aggressive and effective anti-terrorist efforts. It's hard to fathom that Democrats are going to leap at this insta-poll and conclude that it's just too "risky" to take a stand on this issue, and just run away from it. I've seen signs that some of them intend to do just that, but I also believe that many of them view this program as simply too much -- finally over the line -- and will throw some caution to the wind and act on their passion and beliefs. One can hope.

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