Dear Mark Penn: Is torture a question of "civil" rights?

by: Daniel De Groot

Sun Jul 11, 2010 at 15:07

Mark Penn has published a fairly interesting set of polling around the views of Americans on various constitutional questions (Poll slide show here).

In his write up at HuffPo, Penn writes the following bit of alarming interpretation on two questions in the poll:


In another contentious area, respondents rank protecting national security as slightly more important than protecting civil liberties by a margin of 44 to 39. And while 31 percent disagree, 56 percent of Americans can see circumstances in which the police should be allowed to violate civil liberties for national security -- giving support for the so-called ticking time bomb exception when extraordinary means might be sanctioned to secure needed information.

Wait, what?  Now, torturing someone is a violation of their civil liberties, but there are a lot of civil liberties violations that are significantly less severe than torture, and this strikes me as (at minimum) an extremely sloppy polling question on which to base an inference like Penn makes.
I realize that there is a long history on the subject of what exactly constitutes things like "civil" versus what I see as the more fundamental set of "human" rights (and the use of the term "liberties" instead of "rights" in the polling questions is worth noting too, they're not necessarily identical).  However, I can easily draft up a list of civil liberties which many people would support having suspending during emergencies that don't involve egregious personal violence to prisoners.  Anything from delaying access to lawyers, not reading Miranda or things like check points and personal searches without probable cause.

Any of these may or may not be argued as valid suspensions of civil liberties when justified against some type of national security or public safety scenario, but I doubt you will find many people who think that no civil rights can ever be suspended under some set of genuine emergency circumstances.  If you consider that the US Constitution explicitly spells out when a particularly vital civil right, that of habeas corpus can be suspended, and that there doesn't seem to be any big movement to try and  amend Article I, Section 9 it's surprising the question didn't net much higher support.

If that poll had contacted me, and I didn't read between the lines on how that question could be interpreted, I might have answered yes there are circumstances that Police can violate some civil liberties to protect national security.  I don't, however, support giving anyone the authority to employ torture.

So what gives?  Just a badly written question?  Poor analysis by Penn?  If the question wasn't meant to be about torture, what was the point?  If so, why not ask a more direct question, rather than leaving it to a much broader concept?
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