A CNN/USA Today/Gallup poll of 1,003 adults found that 50 percent of those polled believe it's OK to forego warrants when ordering electronic surveillance of people suspected of having ties to terrorists abroad.This poll tells us almost nothing meaningful at all. The fact that some folks think it's OK to spy on people when condition X applies is just fine and dandy. But how do we know if condition X applies? The reason it was clearly wrong and clealy illegal for Bush to circumvent FISA, is that the whole point of issuing a warrant is to give a disinterested body the power to decide if condition X applies. The demos as a whole may, with this system in place, also make decisions as to how to direct that given body as to when and if, certain conditions having been met, specific actions can be taken. My understanding of FISA, limited as it is, was that Congress was saying that the conditions to be met were somewhat minimal (almost all FISA requests have been granted) and the actions to be taken somewhat broad. For god's sake, it's a secret court that issues the warrants.
Thus, to ask individuals whether it's OK to spy on citizens who 'have suspected ties to terrorists' is merely to beg the question of how we know they have such ties. If a court looks at some evidence – even minimal evidence – and says, 'yep, there are terrorist links here, spy all you want', then I say fantastic. But this poll question is asking: 'is it OK to spy on citizens without court approval (even secret court approval), so long as X' under conditions in which X is unkown.
Even worse, the presentation of the poll 'results' is used to suggest that 50% of Americans think it's OK to have no court check on executive surveillance of American citizens, but I don't think that's what people thought they were answering. Because there are two different questions that the Bush administration is successfully smushing together in their moves in the political game. The questions are:
1. Is it OK to spy on US citizens without a warrant?
2. Is it OK to spy on US citizens who have ties to suspected terrorists?
The answer to #2 is almost certainly yes. The answer to #1 should be an unequivocal no. But the media is cooperating with Bush et al when they pose a poll question to Americans that collapses the two questions together.
All of this, by the way, has a lot to do with the conversation at Emery's over rule of law. Sorry I'm not coherent enough to make enough of the links there, but I will say this: I mostly side with Frances on this one. While I'm a big fan of MLK, I think he means something different by 'law' than we do when we refer more narrowly to 'rule of law'. In terms of rule of law, a law can be unjust. It's an external (though very powerful) argument that says an unjust law is no law at all, that 'injustice anywhere is a threat to justice everywhere'; it's an argument that shows us, rightly, in my opinion, that rule of law is not nearly enough. Right now, however, it seems to be more than we've got.