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12.28.2005

Popping the Wrong Question (35 comments )

We may be hearing more about a Rasmussen poll showing that "[s]ixty-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." Prominent warblogger Instapundit as well as the first of what undoubtedly will be several minor wing-nut sites are already trumpeting this as showing that the public supports what Bush has done and the Democrats are barking up the wrong tree.

Notice anything missing from the question? How about the part that the wiretapping is done without a warrant, although there is a court set up to consider the evidence and issue just such warrants. There is no doubt that the FISA Court would issue a warrant to listen to calls between "terrorism suspects in other countries and people living in the United States." All the government needs is some articulable basis for the suspicion. Apparently that is what it did not have.

If the polling question asked was "do you think that the government should be able to listen secretly to any international phone calls to the United States that it wants to on the approval of a shift supervisor at the National Security Agency without a warrant or any court or legislative supervision whatsoever," the numbers would be very different.

Note the Kaus referred to by Instapundit is my brother, not me, but I am not sure what he was right about.

Update There undoubtedly is something to the point that people are happy to hear that Bush is doing anything, even somethibng illegal, to actually fight terrorism. Given the massive ineptitude of the Katrina effort, the documented disaster that is the Department of Homeland Security and the lack of any discernable security benefit from the war in Iraq, even an illegal effort could be seen as at least a sign of life.

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Posted Comments :

also if they asked, is it okay to listen to YOUR international calls?, there would be a much different answer.

Posted by: cranbot on December 28, 2005 at 06:54pm
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Even the right question is the wrong question -- because we don't put fundamental constitutional liberties to a vote.

Posted by: RatIV on December 28, 2005 at 06:54pm
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Good to see that the sane and, clearly, the smart Kaus brother is posting here at HuffPost.

Posted by: bedobe on December 28, 2005 at 07:18pm
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It's not just "people living in the United States". it's American citizens.

Posted by: james55 on December 28, 2005 at 07:21pm
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Somebody tell me! Why does anyone think the monitoring of telephone calls and e-mail is restricted to "international" calls. We just haven't got proof yet that all calls and emails are snooped. I hate to get even more paranoid, but why would anyone think the US mail isn't opened? Heck, if the Bush is gonna break laws why restrict the searches? Can't be any more illegal.

Posted by: spencer911 on December 28, 2005 at 07:49pm
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Not only are they listening to and reading everything they are keeping it. Someone with access can go into storage and mine whatever they want.
Some freedom we have here.

Posted by: SamEllison on December 28, 2005 at 08:13pm
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"With liberty and justice for all."

Well, most.

Okay, some.

Alright, a few.

Actually, not very many at all.

Posted by: ChicagoBob on December 28, 2005 at 10:25pm
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There are a few whack jobs that respond to these posts. But I haven't worn a tin-foil hat in years, and I'm telling you this is one scary-ass time to be an American. Our Gov appears to be controlled by the invisible Megacorp interests(I think they call that facsism). It seems that our foreign policy only serves Big Oil and their buddies. America has gone from the white hat hero to a slimy, moustache twisting Oil-can Harry.
I may be getting as nutty as all those ditto-heads, but I do believe "they" are listening.

The whole art of government consists in the art of being honest.
--President Thomas Jefferson

Matthew 5:9

Posted by: Squid25 on December 28, 2005 at 10:32pm
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Wisdom and independent spirit shown here notwithstanding, the Bushie spin (the poll) has already succeeded. They've shaped the debate from "warrantless" to "wiretap". They win.

Based on this observation and the pathetic reaction (or should I say lack of) from democratic leadership, I'm now even more pessimistic about the state of this once-great country.

Bunch of cowards you are, eager to sell your precious and hard-fought liberty because of a relatively minor tragedy.

And hold off your barking. Have some perspective, read world history. And I ran down 30 flights in WTC on 9/11 and have friends who perished there.

Pathetic.

Posted by: bp on December 28, 2005 at 10:33pm
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I'd imagine that this is just one of their efforts. It's just that someone got indignant about it and leaked it.

I remember a charge a few years ago that the US was re-routing the traffic for one of the Internet backbones through the UK so the NSA could legally monitor it. I'm not sure it was ever substantiated, but it would be in their MO. Everyone started putting key words in their email to trigger the program.

Posted by: DonsBlog on December 28, 2005 at 11:28pm
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Darn good point, Stephen. Brings to light how questions are formed regarding public confidence, job approval, etc.

Posted by: Dogvane on December 28, 2005 at 11:33pm
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Yowza! When I first saw the name Kaus on HuffPo, I thought, oh shit, what's that asshole doing here. Never suspected you could be kin. Was he born that way, or did you deprive him of oxygen for several minutes one summer at the lake. Go smack some sense into him.

Posted by: BlueinTheFirstRedState on December 28, 2005 at 11:44pm
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Actually, 64% sounds really low. I think this is a very bad number for Bush.

Posted by: ponchoandlefty on December 28, 2005 at 11:46pm
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I don't get it. Why is the Rasmussen poll the only poll being quoted? What happened to all the other pollsters, like NBC/WSJ, Zogby, etc., etc.

It's very eerie how quiet they are. I need more information, because I am not going to believe one pollster that supposedly might be a Republican hack.

Posted by: cheeky on December 29, 2005 at 12:01am
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If the question had been worded: Does the government have the right to listen in on your private conversations? people might finally realize what is at stake.

Posted by: Ellroon on December 29, 2005 at 12:11am
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34% believe that terrorism suspects should not be wire tapped? Wow. Even I, a devoted left wing, criminal defense lawyer believe that they should -- with a warrant. It looks like the worm has turned.

Posted by: indianaesquire on December 29, 2005 at 12:18am
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This is just another example of the "Big Brother"overstepping it's bounds,but if Americans do'nt step up to the plate and do something about this it can only get worse. That's why we have a court in the first place,the administration has gotten so far to the "right" they think they're above the law,and you know what I believe they are.

Posted by: withinreason on December 29, 2005 at 12:25am
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It's a good job that 'Constitutional Law Professor' Glenn Reynolds keeps telling his readers that he's a libertarian, because it'd be damned hard to tell from the content of his posts, and his willingness to defend authoritarianism at its most blatant, as long as it carries the Bush imprimatur.

Posted by: ahem on December 29, 2005 at 12:29am
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This country has got so far to the "right"
that the administration feels itself above the law,this is logical of a one party rule,read a little history.

Posted by: withinreason on December 29, 2005 at 12:31am
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You have to remember that wingnuts are hateful scared people. They will change their tune if a Democrat is ever elected President again.

Posted by: gusallen on December 29, 2005 at 02:29am
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Bwahahahahahaha

Polls are unreliable?

Bwahahahahaha

I remember just a few months ago a bunch of lefties saying the election had been stolen and cited exit polls as proof that Kerry actually won Ohio!

Bwahahahahaha Bwahahahahahahaha

And then there is the "Gore rule". It is forbidden (unlawful) to use government office to solicit campaign contributions. Gore raised campaign contributions from his Executive Office Building. When caught, he said that he was "talking to donors in other states", so that meant he was actually soliciting donations in those states (Arkansas for instance or Tennessee), not from his offices since his voice was exiting the phone in the donors office, not in his office.

Kind of like when the NSA intercepts phone calls or emails that are going overseas. Since they are outside the country, the "Gore rule" applies, doesn't it?

Bwahahahahaha Bwahahahahahaha Bwahahaha

Posted by: laughingalltheway on December 29, 2005 at 08:46am
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Yowza! You mean 36% DO NOT think that we should be intercepting international calls of "terrorism suspects"? I seem to run almost exclusively in lefty circles, and I don't know anyone who is against protecting us from future attacks. This is BAD BAD news for Bush, and indeed America, if 36% of the population does would prefer that we NOT listen to those conversations. But as pointed out numerous places since this poll appeared, if that what's the government is REALLY doing (as opposed to blanket wiretapping of ALL international calls to and from the 'States), then we have a system (FISA) already set up to ensure that rights are protected, and that the gathered evidence is not tainted and can be used in future prosecutions....

Posted by: rebmarks on December 29, 2005 at 08:50am
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Yowza! You mean 36% DO NOT think that we should be intercepting international calls of "terrorism suspects"? I seem to run almost exclusively in lefty circles, and I don't know anyone who is against protecting us from future attacks. This is BAD BAD news for Bush, and indeed America, if 36% of the population does would prefer that we NOT listen to those conversations. But as pointed out numerous places since this poll appeared, if that what's the government is REALLY doing (as opposed to blanket wiretapping of ALL international calls to and from the 'States), then we have a system (FISA) already set up to ensure that rights are protected, and that the gathered evidence is not tainted and can be used in future prosecutions....

Posted by: rebmarks on December 29, 2005 at 08:54am
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The warrantless wiretaps are an attempt to get around the rule of law regarding 'US persons'-this means anyone, citizen or not, who is currently in the US. The "US person" is meant as a protection of our liberty against the government's power. There is a reason the 'founding fathers' (as the conservatives like to say) decided not to concentrate power in one branch of the government -contrary to Cheney's logic. These guys pay lip service to the Constitution and regard your freedom as expendable. This is far worse than anything a terrorist has done to us.

Posted by: Ponty on December 29, 2005 at 09:20am
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Remember, a portion of those stating they do not agree with the practice were likely thinking of the recent scandal involving Bush. Even if it is not worded that way, some likely took away that aspect. In fairness, a percentage of those who said it was fine were thinking the same thing. And, of course, there will always be those who do not trust the government to do anything, who fear their every move. These people likely do not trust warrant searches either. On the other side, there are those who are frightened enough to give up all of their civil rights for the perception of safety.

In the end, we can't know people's true feelings on this subject based on this poll. The fact that the question excludes the most fundamental issue at stake, that of warrants, taints all of the results and allows us to draw no firm conclusions.

Posted by: jimmytripps on December 29, 2005 at 09:52am
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In all the objections to this spying, I have never seen anyone explain that we are depending on Bush's word that we are only spying on "known terrorists". the fear we should have is that NO OONE knows who is being watched and what is happening to that information, because the courts aren't involved. This is a big step in the movement to thought control.

Posted by: bailcon on December 29, 2005 at 10:47am
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And one other thought...
Does anyone else connect the dots between the disclosure of domestic spying, and the announcement that Hubbel disovered another ring around Uranus?

Posted by: bailcon on December 29, 2005 at 10:48am
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Was this a phone survey? Maybe 64 percent of Americans are worried about who repercussions of giving the "wrong" answer.

Posted by: eggman on December 29, 2005 at 12:32pm
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"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. "

-http://caselaw.lp.findlaw.com/data/constitution/amendment04/
the fourth amendment clearly makes the statement against "unreasonable" search and seizure. In fact, what it really says is that a warrant can not be issued without reason, and does nowhere prohibit warrantless searches. Don't beleive me? Try findlaw.com again
" Valid Searches and Seizures Without Warrants

While the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as ''exceptional,'' 1 it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants. The Reporters of the American Law Institute Project on a Model Code of Pre- Arraignment Procedure have noted ''their conviction that, as a practical matter, searches without warrant and incidental to arrest have been up to this time, and may remain, of greater practical importance'' than searches pursuant to warrants. ''[T]he evidence on hand . . . compel[s] the conclusion that searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws.'' 2 Nevertheless, the Court frequently asserts that ''the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specially established and well-delineated exceptions.'' 3 The exceptions are said to be ''jealously and carefully drawn,'' 4 and there must be ''a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.'' 5 While the record does indicate an effort to categorize the exceptions, the number and breadth of those exceptions have been growing."

Did you all get that????
"it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants"
"This is from WSJ:

"Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded."

"The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power.""Mr. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President's Intelligence Oversight Board, 1982-84.


-Mr. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President's Intelligence Oversight Board, 1982-84.
Get that "Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches"
This is at it's heart a constitutional powers matter, hint, they don't impeach presidents for constitutional power questions. Especially when precedent is overwhelmingly in his favor. Bush will not be impeached. The constitution was not violated.

Posted by: jrr on December 29, 2005 at 01:53pm
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Huray - Another lawyer lecturing us.

This site may be called the "Huffington Post" but really it is the:

celebrity/actor/writer/essayist/lawyer Post.

Posted by: Champlain13 on December 29, 2005 at 02:58pm
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If you are anxious about what might be violations of the 4th amendment, you should understand that it specifies what the government must not do, and also what they CAN do. It states that 'the people' are to be secure in their persons, etc. Not 'people', but 'THE people'. That is taken to refer to the preamble of the Constitution: "We, the people of the United States...", not to 'people' in general. So, the 4th amendment protects US citizens, and permits the government to treat non-citizens less politely. The Constitution is not so straightforward as it seems. The lawyers among us appreciate this, no doubt. I admit that the FISA law seems to cause trouble for GWB, but it also is ambiguous, with respect to efforts to 'detect' suspicious activity.

Posted by: Doofus on December 29, 2005 at 03:58pm
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And one other thought...
Does anyone else connect the dots between the disclosure of domestic spying, and the announcement that Hubbel disovered another ring around Uranus?
Posted by: bailcon on December 29, 2005 at 10:48am

Okay! I guess I forgot my tinfiol hat today. Fill me in Bailcon, Just what the hell is the conspiracy here. Wait! let me guess Those are "Spy Rings" right ? or ooo ooo ooo I know the urainians are trying to tip us off that Bush was spying on americans cause you know according to some of the posts around here Bush is actually Ming the Magnificient! and we gotta tell Buck Rogers right away cause Bush is like a threat to the whole galaxy!

Posted by: redstateidiot on December 29, 2005 at 04:48pm
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the Bushie spin (the poll) has already succeeded. They've shaped the debate from "warrantless" to "wiretap". They win... And I ran down 30 flights in WTC on 9/11 and have friends who perished there.

Posted by: bp



First off, bless you for still being here. These fools who invoke 9.11 to advance neocon empire, have worn you people like a coat. And most of you hate Bush's guts. Hell, we're New Yorkers. We get it. Fuck 'em if THEY don't.

But I do take issue that they've "shifted" the debate, as Karl is so wont to do when necessary. He may have WANTED to shift the debate, but I really don't think the rubber's hitting the road, this time around. It doesn't appear to be going away.

And I ditto what someone else just said, that you can't put the Constitution up for a People's Choice Award. Them Founding Dudes... they got it, too.

Posted by: BChamplain on December 29, 2005 at 05:17pm
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I was called the other night and took part in that poll and boy was it fixed. the first thing I said to my husband after I got off the phone was, they forgot to include the words "without warrants!"

I know they think we are all abunch of Stupheads. I think that mistake will come back and bite them!I was called the other night and took part in that poll and boy was it fixed. the first thing I said to my husband after I got off the phone was, they forgot to include the words "without warrants!"

I know they think we are all abunch of Stupheads. I think that mistake will come back and bite them!

Posted by: nanakat on December 29, 2005 at 05:28pm
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Maybe the right question is why "terrorism" (or more specifically "terrorism" by Muslims) deserves more government resources than the stuff that actually kills serious numbers of Americans every year. OK, 9/11 had great visuals, but its death toll was less than 4,000. Cars kill 40,000 Americans every year. Do we spend the "terrorism" equivalent on anything that kills less than 4,000 Americans a year? Of course not. So why is Muslim terrorism different? Suggestion: it's the best excuse for doing away with our Constitution, which is what W and his co-conspirators want.

Posted by: malcolm on December 29, 2005 at 10:51pm
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