People, Privacy, and Fear
The American people often prove to be more sophisticated about themselves, their rights, and their government than they get credit for. Even if they can't enumerate the clauses, most people know the Bill of Rights is designed to restrict the government's ability to curb their speech or religious practice; take their weapons; search their persons or property without a warrant; make them incriminate themselves; deny them a lawyer, a speedy trial, and a jury of their peers; or set excessive bail. Some people know that at least in peacetime, the Army can't live in your house without your permission.
But they're not absolutists about it.
Even after the discovery that the Federal Government has been collecting voluminous data -- including aggregated information on credit card usage, e-mails, telephones and EZ-passes -- on American citizens, the Pew Research Company found that 56% of Americans consider it "acceptable" for the NSA to get "secret court orders to track calls of millions of Americans to investigate terrorism," while 41% said it was not. In addition, 62% say, "it is more important for the government to investigate possible terrorist threats, even if that intrudes on personal privacy," while 34% reject government intrusion, "even if that limits its ability to investigate possible terrorist threats."
That's the good news. The NSA metadata program is of real value in tracking the movements and conversations of those who would do us harm, and to end it would be a deliberate decision to drop our defenses.
But, on the other hand, another Pew poll finds that the trend line of Americans thinking the Federal Government "is a threat to your personal rights" has been rising over the past decade. In 2002, 63% believed the government was NOT a threat to personal rights; in 2003 it was 54%; in 2010 it was 50%, and in 2013 only 43% said the government was not a threat to their personal rights. The numbers believing the government was, indeed, a threat climbed the ladder: 32%, 45%, 47% and 53%.
At the same time, "trust in government" has eroded. Gallup posits, "I trust the government to do what is right," with the choices, "most of the time/always" or "some of the time." "Never" could be volunteered, but was not asked by the pollster. Those trusting the government "most of the time/always" hit a low of 17% in 1992, rose to 60% in 2002, and declined to its current 19% in 2012. "Some of the time/never" was at 75% in 1992, peaked at 82% in 1994, dropped to its low of 39% in 2002, and is near its peak again with 81% in 2012.
The swing in the last decade: positive trust fell 60% to 19%; negative trust rose from 39% to 81%.
The numbers are deliberately not broken out for Republicans or Democrats, and don't relate specifically to either presidential opinion polls or trust in the legislative branch. They are a broad indicator of how Americans feel about government, trust and civil liberties.
Trust has taken a beating lately. Americans pay taxes and are supposed to trust the IRS to determine the tax status of groups and individuals impartially and with respect for privacy. (Never mind that the IRS doesn't "trust" us to declare our income and expenses.) They read the newspapers and are supposed to trust that the reporters aren't being spied on in an effort to chill the press and squelch unpopular questions. They enter the military or the Foreign Service and are supposed to trust that the government will make every effort to provide for their protection. Four Americans died in Benghazi and Americans are supposed to trust the government to tell the truth about it.
Hah! The IRS was totally politicized and harassed people of particular political persuasions; reporters were threatened with espionage charges; the request for additional security in Benghazi by people serving on the ground was denied by people observing from Washington; the video story was known by the administration to be a lie when it was promulgated. And like Charlie Brown, Lucy and the football, Americans are being asked to trust the government again.
But maybe, in this case, they appear to, and perhaps they should -- the FISA Court and the NSA are as close as the U.S. can come to joint operations in government. The Executive Branch seeks information about terrorists and their associations. But Congress passed the laws under which the warrants are sought and can amend them (if they haven't, the problem is different). The bipartisan House and Senate Intelligence Committees are entitled to information (if they haven't sought it, the problem is different). The laws have met the Judiciary Branch's requirements for constitutionality and there is judicial review of the FISA warrants by judges appointed by both Democratic and Republican presidents.
It's not perfect, but would be much harder for the Executive Branch to subvert the FISA Court process for political gain than it would be to subvert agencies that are entirely under Executive Branch control.
That should be of some comfort to the public, which appears to have concerns about President Obama's own commitment to American civil liberties. In a recent Huffpost/Yougov survey (which one might reasonably assume skews liberal) 44% of Americans say President Obama has done an "excellent/good" job of protecting the country from terrorism; 49% call it "fair/poor." However, asked whether the president is protecting Americans' constitutional rights, only 34% said he was doing an "excellent/good" job; a full 60% said he is doing a "fair/poor" job.
Since the president takes an oath specifically to "preserve, protect and defend the Constitution of the United States," that number should worry him, as Americans find him failing in his essential obligation. As for the public, it appears once again to be able to separate its concerns about governance -- which can be fixed by electing civil libertarians and un-electing them if they fail to maintain the peoples' trust -- from its understanding of the threats the country faces.
Shoshana Bryen is Senior Director of The Jewish Policy Center