Poll after poll suggests that Americans support the NSA's surveillance tools. But, as demonstrated in a new poll from the Washington Post and ABC News this morning, we are also aware that there are significant details about the programs which remain unclear — 65 percent of Americans want public hearings on their use. Which raises two questions: Could we actually learn more? And: Who do we trust to give us new information?
The Post/ABC poll found, as have others previously, that a majority of Americans support the collection of phone records and specific online content related to investigations. A quarter of Americans feel strongly supportive of the program; a quarter, strongly opposed. If you look at the demographic breakdown, you see that Democrats are more supportive than other political groups, though all demonstrate a majority of support.
But the more interesting (and unique) question comes in regards to the desire for "public hearings" on surveillance. Nearly two-thirds want to see such a program; opponents of doing so largely sync with those who support the programs.
Polls being polls, there's no information about why someone would oppose a public hearing on an issue like this. Perhaps they feel as though it would undermine the programs' effectiveness; perhaps they think such hearings would undermine the president. But it's hard to have an effective representative democracy — one built on the idea that voters have a clear understanding of what they're voting for — without voters understanding what they might be voting for. As an editorial in The Economist put it, "spying in a democracy depends for its legitimacy on informed consent, not blind trust." Or, in the words of Sen. Al Franken of Minnesota during a Senate hearing today: "It's hard for Americans to debate the merits of the law, when the law is secret."
Bringing us back to the first of our two original questions: Could such hearings actually tell us any more? Since the leak of information about how the government collects and analyzes communications data, there have been three public hearings on Capitol Hill about the programs. One in the Senate was an accident of timing, noteworthy for the chairperson's efforts to steer the conversation away from discussion of the NSA tools. Yesterday, NSA director Keith Alexander testified before an obsequious House Intelligence Committee; last week, FBI chief Robert Mueller spoke with the House Judiciary.
In each case, we learned more about the programs, but within very closely defined parameters: how many attacks were stymied, the robust protections of Americans' civil liberties, the deeply essential nature of the tools. Everything we have learned from Congressional hearings has been broadly supportive of their use. These were public hearings, as requested, but asymmetric ones. It is the nature of the issue at-hand that we cannot know all of the details. During the first Senate hearing, last week, there were repeated mentions by senators of the need for additional information which they were told would be conveyed in a closed session. (The Senate held such a session on Thursday; fewer than half attended.) During Tuesday's interview of Alexander, he assured the House panel that he would, in a private conversation, provide explicit details on the "over 50" terror attacks that the NSA's tools had interrupted, all the while assuring the Congressmembers that a massive — even intrusive! — process of oversight ensured that his agency didn't cross legal lines. It must be pointed out that those lines have certainly be crossed; the secret court that authorizes the use of the NSA's systems found at least one violation of the Fourth Amendment.
Again: No one would dispute that there are secrets the government should keep, but few would dispute that the government uses that necessarily blurry line to its political advantage. Raising the second question: Who do we trust to give us new information? Informed democratic consent is an ideal we don't really even try to make. Our obsession with polls of public opinion aside, our system of government is a republic, in which we task representatives to make decisions on our behalf. We elect members of the House and Senate who are allowed access to information which we are not. So far, those members of Congress have shown little inclination to question how the NSA is behaving.
Isolated members at the public hearings questioned the NSA, but were easily mollified with assurances or denials. Others have levied critiques. Rep. Jim Sensenbrenner of Wisconsin — the man who led the charge for the Patriot Act — excoriated the Department of Justice earlier this month for its overly broad interpretation of that rule, but he may have missed briefings at which that interpretation was discussed. We are left to ask where Congressional accountability falls flat. Have members of Congress not paid enough attention to what the intelligence agencies were doing? Or have those agencies stretched lines, hoping no one would notice? Or — perhaps the most likely option — both? And, with only 16 percent of Americans approving of Congress, do we trust them to actually do their jobs?
After the September 11th attacks, the government created a Privacy and Civil Liberties Oversight Board, a part of the executive branch. Ideally, this group would have the ability to assess and review how the government uses tools that might toe close to the line of violating civil rights. As has been noted, that board got its first chairperson only last month.
It's easy to be cynical about how Americans respond to complex political situations. In this one, we appear to be inclined to give the government the benefit of the doubt, while wishing we had more information. In response, that first inclination has been embraced and the second responded to with, "we're doing all we can." Time will tell if those responses are adequate.