Turning against warrantless searches

January 24, 2006

Gauging public opinion on Bush’s warrantless-search program has been tricky. The story broke over the holiday season when the public was less engaged and at least one oft-cited poll was worded so poorly, it didn’t offer anything of substance to anyone.

The latest poll from USA Today/CNN/Gallup, however, not only offers useful data, it also points to an interesting trend.

A new USA TODAY/CNN/Gallup Poll shows that 51% of Americans say the administration was wrong to intercept conversations without a warrant. The poll also showed that 58% of Americans support appointment of a special prosecutor to investigate the issue.

After about a month of public debate and news coverage, the public is still fairly divided, but a majority believe Bush went too far — and that number is growing as time goes on. According to this new poll, 69% of the country have been following this story “closely” (about a third said “very closely”), and the public isn’t on board with what they’ve seen.

Two weeks ago, a USA Today/CNN/Gallup poll found that 50% thought Bush has done the right thing with this program, while 46% thought he was wrong. Now those numbers are reversed.

The White House obviously hoped for the opposite — the initial story would surprise people, but as the Bush gang started spinning, people would agree with the president’s message. This obviously hasn’t happened. Granted, this poll was taken over the weekend, before the president’s new “campaign” on behalf of the NSA program began, but it’s not like the Bush gang has been sitting on their hands for the last month. The White House spin machine has been in full gear.

Also, with 58% of the public supporting the idea of a special prosecutor to investigate the controversy, Dems have public support for a proposal that hasn’t generated much in the way of attention.

Stay tuned.

One of the amusing talking points of the administration is that they couldn’t get FISA amended to make such searches warrantable because they would be giving the enemy too much information about our methods.

But the fact is that both the 108th and 109th congress have been proposing amendments all along. There is no reason to suppose the administration could not have gotten any language they felt they needed into such an amendment and then gone to the FISA court for a warrant.

  • the fact is, the various talking points the administration has issued do not all align: general hayden, for instance, didn’t in the slightest make it sound like there was some special methodology involved. he just said the FISA court wouldn’t find “probable cause.”

    now, the bush administration lies like it breathes: in order to sustain itself. who knows what’s really going on?

    but the notion that they were looking for an opportunity to exert the divine right of commanders-in-chief again seems increasingly plausible.

  • Maybe, just maybe, after the Social Security campaign faired so poorly, the public is begining to realize that a Bush PR campaign means bad news for most Americans. Seeing the White House fan out to support domestic spying must have the public curious as to why, if the program was so damn good in the first place, the administration would have to waste it’s time selling it to everyone.

    Of course, rule of law and public opinion are two very different things. It may be that Bush comes down on the wrong side of both of these now.

  • Somewhat related to the Bush defense, several rightwing blogs have picked up this statement from a WSJ column written by Pete DuPont to defend Bush:

    In 1982 a federal court of appeals ruled that “the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agent.”

    It’s the Abdeen Jabara lawsuit ruling made back in 1982, as DuPont mentions. I did some digging, and the truth isn’t so simple. Here is a copy of the court decision: http://tinyurl.com/cqk7a

    The lawsuit was not filed claiming that any provisions of FISA were violated. Jabara cited these grounds for the lawsuit:

    One cause of action alleged was that Jabara’s fourth amendment rights were violated as a result of NSA’s interception of his “communications by means of warrantless electronic surveillance and/or disclosed summaries of these interceptions to the Federal Bureau of Investigation.” 1 Another cause of action alleged was that the defendants violated a provision of the Privacy Act, 5 U.S.C. § 552a(e)(7), by maintaining records with respect to Jabara’s exercise of his first amendment rights.

    FISA isn’t mentioned in the text of this ruling at all.

    Yet Jabara names the NSA among others in the lawsuit. Isn’t it odd that the lawsuit did not cite any of the provisions or requirements of FISA? Has that statute been amended since then to specify who needs warrants and who doesn’t, as it reads now? It’s one of the worst rulings I’ve seen by an appeals court, primarily because the appeals court refused to consider Jabara’s protest that the government did not prove he was a “foreign agent” (which the lower district court had agreed with) and a warrant should have been issued by the FBI with this as their grounds to get the NSA information about Jabara. The case was remanded to the district court and I don’t know what happened to it after than.

    Republican defenders of Bush are beginning to cite this case as the basis for Bush’s warrantless wiretapping of American citizens who are on “one end” of overseas calls, the Bush talking point.

    Can anybody make more sense of that ruling and how it applies or doesn’t apply to what Bush has done than I have?

  • Anne:

    Thanks for the heads-up. I am reviewing the case now*, but if this is what the gov’t is hanging its hat on, I think the opposition will have some good points. From my initial review:

    – The issue in the Jabara case involved an understanding of the NSA’s work as interception of international communications in a broad sweep, then refined through “watch lists” defined as “lists of words and phrases designed to identify communications of intelligence interest.” The criticism with BushCo is that they were intercepting domestic transmissions, so the case is no help there.
    – Jbarra was not making a case against the NSA in any event, but against the FBI for using the NSA intercepted transmissions. Again, that’s not the issue with BushCo.
    – In the Jabara case the FBI had specifically requested surveillance of Jabara because of his dealings with terrorist/criminal suspects. Again, BushCo is in the position of having to justify massive sweeps of domestic citizens with no specific target, so Jabara is no help.
    – This was a 1982 case in the 9th Circuit: you remember, the same 9th circuit that conservatives love to hate as overreaching judicial activists. Oh, the tangled webs they weave. . .

    If I were appearing on a political show this weekend, my response to any reference to this case might go something like, “Please explain how targeted surveillance of a single suspect’s international calls specifically requested by the FBI comports with a broad power for the president to monitor innocent American’s communications in violation of the 4th Amendment?” But angry.

    * Disclaimer: I am a first year law student. Still, this case doesn’t work at all. If the Dems don’t respond to this point, we should fire the whole lot of ‘em. Who the heck do they have working for them? Children?

  • I am not at all optimistic that the Republican echo chamber won’t be able to set up a shrill reverberation that drowns out the strong criticism in this scandal, but the thought of Bush embarking on another sales tour like that for “Social Security Reform” is encouraging. The more he talked, the less support he got. I think it was partly because his sales pitched enabled people to raise questions, but it was also because there was a pretty strong pushback that did get an airing. The problem is that everyone knows they may be relying on Social Security at some point, if not for themselves then for a family member. Bush was asking them to take a risk and it seems to me that Americans right now are very risk averse (think about how support for the war was high when it was sold as an attempt to preempt a risk, but plummeted when it was presented as an idealistic, divine mission to spread democracy). In this case he will be presenting himself as refusing to ask Americans to risk being blown up because a terrorist connection was overlooked. My sense at the moment (and I’m a political novice, so take this for what it is) is that the counterpunch needs to emphasize the fact that the NSA wiretapping program puts us at risk—by diverting crucial resources to wild goose chases (FBI overload, DOD domestic spying on peaceful protests), by granting unrestrainable power to an individual who can have you carted away without explanation, etc. I fear the pushback this time will be more difficult and I hate to fearmonger, but this is truly frightening stuff and must be fought agressively.

  • eadie,

    Thanks for responding to my confusion. May I offer an even more humble disclaimer: I’m not an attorney at all.

    I think what the Republican defenders of Bush are hanging their hats on is Bush’s avowal that the only calls of Americans being monitored without warrants are calls of Americans involving foreign countries/destinations that the Bush administration claims are America’s enemies. Jabara did fit that scenario (though the district court did NOT think the government proved he was a “foreign agent” which they claimed as their defense), and that’s the only scenario that Bush has recently owned up to or is likely to admit.

    But monitoring even those calls is a problem. If you’ll check the ACLU website and the news about their lawsuit just filed pursuant to American citizens’ overseas calls being monitored, I believe a couple of the plaintiffs are attorneys representing detainees at Guantanamo and/or elsewhere who believe their calls to their clients’ families and to possible witnesses in other countries are being monitored under this program. These calls fit that scenario of “domestic to foreign-country-that-may-not-be-friendly” that Bush has owned up to monitoring. This is particularly alarming because that means the attorneys and their clients have lost the confidential character of their communications if the government is able to monitor those calls. I’ve no doubt they’d be VERY interested in the contents of those conversations in developing their own defense.

    As far as domestic to domestic calls go, I don’t know if anyone has come forward with enough information to make a case on that basis. They may have – I just don’t know.

    But anyway, I don’t know how much this old case will be cited as a basis for Bush’s actions by the administration, but I wouldn’t be surprised to see it used for just that while Bush continues to insist that the only calls being monitored without warrants are calls of Americans involving foreign countries/destinations that the Bush administration claims are America’s enemies.

    I can’t do any more research tonight, but I want to look for the original lawsuit that was handled at the district level and see if FISA is referred to in that one.

    My thinking is that if the Jabara case didn’t include the FISA provisions at all as its grounds, then the administration can’t say the Jabara appeals court ruling has anything at all to do with what Bush has been doing. He’s still stuck out on a limb. We’ll just have to see if Pete DuPont is representing the government view. The RW blogs are running with it, though. To see those who’ve picked it up, you can Google his comment (or part of it):

    In 1982 a federal court of appeals ruled that “the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agent.”

    Then if the government is requesting and receiving domestic to domestic call/email information, Bush is even further up the creek.

    And BTW, you know Bush ordered this warrantless monitoring to be done BEFORE 911 occurred, don’t you? It wasn’t a reaction to 911, no matter what the administration and its supporters claim.

    I hope this administration goes down in flames for what it’s doing to America.

  • Alan

    Another BIG problem for the Bush administration is the Abramoff mess. There’s just no way Americans will be affected by any “talking points” by the administration if it turns out to be even half as bad as it appears to be. It is essentially a Republican crisis, and there’s no way the entire party won’t be tainted, unfortunately for those who aren’t involved.

    I imagine they’re very busy at the WH lately with Rove running out of ideas and trying to juggle some very big party and administration public-perception problems all at the same time, just with lawbreakers, bribes, and illegal wiretapping, much less the continuing disintegration of Iraq, as the magnitude of these problems only continue to increase.

  • eadie

    Just a followup on the Jabara case. There’s NO way the administration can use it as the justification for today’s wiretapping. Jabara was being monitored before FISA was ever passed, though the final appeals court ruling was made in 1982 when FISA was in effect. It’s very odd that neither the judge nor Jabara’s attorneys applied the principles of FISA to the case, even though the law wasn’t retroactive. But FISA was passed to preclude the government from using NSA and other surveillance information in just the way it was used in the Jabara case.

    Here’s a pretty good summary:

    http://www.ameu.org/printer.asp?iid=167&aid=211

    Scroll down until you reach this section:

    Expanding Government Surveillance: Jabara v. Webster

    Excerpts:

    From 1967 to 1975, the Detroit attorney was the unsuspecting target of an intensive FBI investigation which included telephone taps, mail intercepts, and monitoring his writings and speeches. As revealed in court records, it was part of a massive surveillance campaign—code named Operation Boulder, inaugurated by the Nixon Administration in Autumn 1972 allegedly to uncover Arab “terrorist” operations in the United States. Headed by Secretary of State William Rogers, the operation was coordinated with the FBI, INS, the Central Intelligence Agency, the Internal Revenue Service and Transportation Department.

    Central to Operation Boulder was the gathering of political information. Clearly, U.S. authorities wanted to learn peoples’ political beliefs and the political positions of the various Arab or Arab-American organizations on the Palestine conflict. As in Jabara’s subsequent lawsuit against the FBI would reveal, much of this information was shared with Israeli intelligence.

    Jabara first heard of the investigation when his bank advised him of a FBI request for all his past account records. Following five years of lawsuits to gain access to his government files, Jabara determined the extent of the seven-year surveillance and investigation by various U.S. Government intelligence agencies. Most surprising was that surveillance continued even after the Government concluded that he was innocent of any criminal activity. Federal Judge Ralph Freeman observed that the factual “record is devoid of any evidence linking (Jabara) to the commission or anticipated commission or anticipated commission of any specific crime, and concluded that “the investigation was not wholly prompted by legitimate or good faith national security concerns.”

    Once the FBI recognized that Jabara posed no threat to the U.S., it turned to the political ideas and movements of Jabara and his friends. . .

    The district court in which Jabara brought suit found the FBI “preoccupied” with Jabara’s political views and his encouragement that Arabs mount legal challenges to FBI investigation. It also recognized that the Palestine conflict was central to the FBI’s intelligence gathering. Observed Judge Freeman, “the presence of FBI informants at meetings and discussions attended by Jabara does not appear to have resulted solely from an investigatory interest in Jabara. Included in information regarding Jabara is data which the FBI has received from Zionist sources.” Evidence outside the legal record suggests that many Jewish college and community organizations spied on Jabara and other pro-Arab activists. The district court cryptically noted that the FBI shared information concerning Jabara with “17 government agencies and three foreign governments.”

    One aspect of this international intelligence gathering included a FBI request to the National Security Agency to target, record and transmit to the FBI all of Jabara’s overseas telephone conversations. The NSA, the U.S. Government’s largest and most secret intelligence agency whose principal duty is to intercept and record all worldwide electronic communications, forwarded at least six such communications.

    Jabara challenged the NSA action as a violation of his Fourth Amendment rights, arguing that his right to be free from illegal searches and seizures was violated when the NSA turned over his “seized” overseas telephone conversations to the FBI without a warrant. Permitting the warrantless transfer of information concerning a private U.S. citizen by the NSA to another government agency, his attorneys reasoned, would create a loophole in Fourth Amendment protection.

    District Court Judge Freeman accepted Jabara’s arguments in a precedent-setting opinion, holding that the FBI and NSA violated Jabara’s Fourth Amendment rights. The judge first found that Jabara had a well-based expectation of privacy when he made his overseas telephone calls. Next, the court found that because the FBI evidence failed to tie Jabara or domestic organizations he was affiliated with to a foreign agent or to collaboration with a foreign power, the FBI should have sought a warrant before asking the NSA to “seize” his telephone calls. Finally, the court held that the NSA too should have sought a warrant before it transmitted a person’s telephone calls to another agency. For the first time, a federal court demanded that the NSA be held to the same Constitutional regulations that restrain America’s other intelligence organizations.

    The FBI and NSA immediately appealed the District Court’s decision. And again, in a precedent-setting opinion, the Sixth Circuit reversed the decision, finding that the NSA did not need a warrant to “seize” and give to another U.S. agency an American citizen’s overseas telephone conversations. The Sixth Circuit held that the NSA in its normal intelligence gathering operations did not need a warrant to seize a citizen’s telephone communications.

    Second, the court concluded that even though Jabara may have had a subjective expectation of privacy when he made his telephone calls, that “expectation must be one that society is prepared to accept as reasonable.” But in these circumstances, the court reasoned, Jabara did not have a reasonable expectation of privacy. He should have known that once his messages were lawfully in the hands of the NSA, it was reasonable to assume that such information would be passed, without warrant to other government agencies. That Jabara did not know that NSA had intercepted his messages, concluded the court, was “irrelevant.”

    The American Civil Liberties Union who represented Jabara said in response that it was “difficult to imagine a more sweeping judicial approval of a governmental action in violation of Constitutional rights than the decision of the panel in this case.” The U.S. Supreme Court refused to review Jabara’s appeal.

    So now we know what DuPont’s talking point in defense of Bush is worth.

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