Herseth-Sandlin, spying and civil liberties

A brief deviation into the political because it reflects some of the societal and legal ramifications of post-9/11 thought in America.

I’ll admit I’m a bit behind on this, simply noting the vote when it occurred. But Sam Hurst, a RCJ citizen columnist , prompted me with his thoughts on U.S. Rep. Herseth-Sandlin’s vote on domestic spying and what it means. Among other things, because she was one of 41 House Democrats to vote for the bill, Hurst concludes that she actually is a “proud conservative.” While my friend Kevin Woster doesn’t necessarily agree, anyone who’s read this blog knows I’ve long held Hurst’s view. But that tends to be a diversion from Hurst’s main concern, one that I believe is far more important and which he deserves credit for addressing.

What was Herseth-Sandlin’s rationale for her support of expanding surveillance powers with reduced oversight? Hurst says her office claims “there was an overwhelming, immediate need to act before Congress adjourned for recess” because “al Qaeda [was] making noise about another terrorist attack prior to 9/11/07.” It speaks volumes that Congress would rather rush a bill into law directly relevant to both national security and civil rights and liberties rather than lose any of its August recess.

As the NYT pointed out this weekend, not only is there questions whether Congress fully understood the ramifications of the legislation, it may have actually given the administration more power than it sought. The fact Congress may not have understood the ramifications of what it was doing is not as frightening as the ramifications themselves. The law exempts a wide variety of electronic surveillance from court approval and also may allow “without court approval — certain types of physical searches on American soil and the collection of Americans’ business records.” That is because to be exempt from court approval, the government need only assert that surveillance is “directed at a person reasonably believed to be located outside of the United States.”

It is apparently irrelevant if all persons in the surveillance are U.S. citizens as long as it is “directed at” someone “reasonably believed to be located outside” the U.S. The phrase “directed at” is “plenty ambiguous, and plenty vast.” For example, does the law prohibit spying on two U.S. citizens in the U.S. as long as that effort is “directed at” obtaining information about someone believed to be outside the U.S.? The broad and open to interpretation language of the bill hands the executive branch a certain carte blanche. Granted, the amendment has a 180-day “sunset” provision. But we all recall what happened and how long it took when the Patriot Act came up for its sunset review. Add to this the “new” approach to terrorism cases the DoJ is using, what one analyst calls a charge “that is one step away from a thought crime.”

Some may label this as a knee jerk reaction by a liberal who is blind to the threat of terrorism and sees bogey men in everything the Bushies do. Still, there is some truth within the adages about freedom and security, whether it be the 250-year-old one attributed to Ben Franklin (“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety”) or the variation by Chris Hitchens in 2003 (“The trade-off between freedom and security, so often proposed so seductively, very often leads to the loss of both”). Moreover, isn’t it more likely that both are going to be lost when our leaders rush in rather than act with thoughtful consideration.

Thus, regardless of whether you consider our Congresswoman a Blue Dog Democrat, a moderate, or a conservative in moderate’s clothing, her vote is emblematic of the failings of Congress on this legislation. Sadly, political cover again took precedence over the public interest.

Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.

The 9/11 Commission Report

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