[Spying, Polls]

Poll: Americans Don't Understand Constitutional Law.

The Washington Post has committed (a fairly common) polling crime: they gathered useless information that, far from measuring people's understanding of an issue, actually contributes to their misunderstanding. Oh, and inserted themselves into the middle of the politics of the issue. In findings released today, the Post found that people think the government spying on them is totally kosher.

The new survey found that 63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism, including 44 percent who strongly endorsed the effort. Another 35 percent said the program was unacceptable, which included 24 percent who strongly objected to it.

A slightly larger majority--66 percent--said they would not be bothered if NSA collected records of personal calls they had made, the poll found.

My central concern with polls like this is that they unneccesarily politicize a legal question. Americans have a woeful understanding of why their own rights are valuable (following 9/11, polls showed they felt the First Amendment afforded them too many privileges). Fortunately, we don't decide Constitutional law based on majority opinion. In fact, much of Constitutional law is designed to protect the rights of the minority. (See Jewish minority in 1930s Germany.) So, if the democracy is functioning properly, it really doesn't matter if a scared housewife in Scranton wants her phone tapped.

Beyond that, I find enough ambiguity in the questions that, even if the 502 random Americans they spoke to were all constitutional scholars, the results would be meaningless. For example:

It's been reported that the National Security Agency has been collecting the phone call records of tens of millions of Americans. It then analyzes calling patterns in an effort to identify possible terrorism suspects, without listening to or recording the conversations. Would you consider this an acceptable or unacceptable way for the federal government to investigate terrorism? Do you feel that way strongly or somewhat?

Respondents found this strongly acceptable. But what if they understood that the practice, not itself necessarily illegal, was conducted illegally. Would they support it then? Would they have no opinion on how the surveillance was conducted, which is the actual issue at hand? Another:

If you found out that the NSA had a record of phone numbers that you yourself have called, would that bother you, or not? IF YES: Would it bother you a lot, or just somewhat?

First off, I don't think respondents were given adequate information in the question to make a judgment. But again, the real question isn't the practice itself, but it's legality. How about a third follow-up on this: "What if you knew that the program, while itself possibly legal, was conducted illegally. Would you support it 'a lot' ..."

Finally, this last question really kills me:

Do you think it is right or wrong for the news media to have disclosed this secret government program?

By now I've made the case that the question is one of legality, not policy, so this question about freedom of the press depends on a high level of respondent sophistication. Even still, a majority (56%) thought the press had the right. But what if the question had been phrased this way: "Do you think it is right or wrong for the news media to reveal secret, illegal government programs?"

That's a biased question, but no less so, in my mind, than the one the Post asked. Everyone in America knows the spooks run secret spying, and thanks to the cold war, we're all pretty happy they do. The question, to sound my same note one last time, is whether these programs have been conducted legally. This poll sheds no light on that, but it does give Bush political cover. Which in turn will likely make it more difficult to answer the real question.

(Incidentally, the go-to guy on polling is Mystery Pollster, who does reflect on the poll this morning. He does not reflect on the poll's utility, sadly, but does point out how it strengthens Bush's hand.)