Herseth Sandlin flinched on constitutionality of FISA vote

By Sam Hurst, Journal columnist | Monday, August 20, 2007

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I admit it. I’ve been seduced by her charm.

 She has extraordinary energy. She was educated at one of the nation’s great law schools. She’s a hard-headed pragmatist. There’s a lot to appreciate about Congresswoman Stephanie Herseth Sandlin. But I guess it’s time to face facts. She’s a proud conservative. Democrats will just have to live with it.

Two weeks ago, without fanfare or comment, the congresswoman quietly walked onto the House floor and voted to give President Bush unprecedented power to monitor the private phone and Internet communications of American citizens without any court supervision.

The New York Times wrote a blistering editorial chastising the Democratic majority for crumbling before the imperial presidency.

“It was appalling to watch over the last few days as Congress — now led by Democrats — caved in to yet another unnecessary and dangerous expansion of President Bush’s powers.”

What would you expect from the liberal media of Gotham City? They’re so predictable, those whiney liberals, always defending the rights of the individual. Don’t they get it?

Only 41 of 202 Democrats in the House supported President Bush’s power grab, but the 41 (mostly Blue Dog conservatives like our Congresswoman) were enough to give the White House a chest thumping, patriotic, victory. Why did she do it?

Fear mongering has always been a Bush-Cheney bullwhip against Democrats. They frame every problem of national security in the breathless language of imminent attack.

The Secretary of Homeland Security announces that he has a “gut feeling” that the nation will be terrorized this summer. They take to the campaign stump with the shrill invocation that terrorists will be more likely to attack if a Democrat is elected president. Then they tell Congress that the only way to contain the threat is to give the President’s agents authority to monitor the private conversations of citizens without judicial warrant or oversight.

There’s more going on here than the War on Terror. This is a philosophy of power.

The congresswoman’s staff told me, “...there was an overwhelming, immediate need to act before Congress adjourned for recess in order to ensure that the federal government had this tool available during the next several months as it works to prevent and disrupt terrorist activities. This was a particularly urgent need with al Qaeda making noise about another terrorist attack prior to 9/11/07.”

Wow. There it is, the haunting spectre of imminent attack. The president couldn’t have written it better himself. Her logic is twisted, but powerful.

The hallmark of an imperial presidency is to constantly demand more power but never take responsibility for the power he has. If his policies fail it is never because he has recklessly abused the power entrusted to him. It’s always because he doesn’t have enough power. This is the logic of divine, absolute authority...gods and kings, emperors and popes, and George Bush.

In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA) to establish guidelines for electronic surveillance of our enemies. The nation was recovering from Richard Nixon’s paranoid penchant for spying on anyone he considered a political enemy, and then claiming that he had to do it because of threats to the national security.

In an effort to balance the need for timely intelligence against the constitutional rights of citizens, Congress authorized a federal court to issue warrants, and supervise the process. It worked.

After 9/11, President Bush tried to assert the authority of the president to spy without a warrant or court supervision. A federal court slapped him down. But in the 30 years since 1978, memories of Nixon have faded, and the technology of global communication has changed. It turned out there was a glitch in the FISA law small enough to patch, but big enough to drive a new imperial presidency through.

The original law protected American citizens inside the U.S., but it did not limit the ability of federal agencies to spy on international communications from a terrorist in Syria to a terrorist in Iraq. But these days, many of those communications are routed through the United States, and once they electronically cross the border the question arises, “Can they be monitored without a FISA warrant or not?”

It was fixable. But President Bush used the technical glitch to shove through a complete re-write of the FISA law. Since he couldn’t win his case on its merits, he ramped up the fear mongering, and left every weak-kneed conservative Democrat, all 41 of them, with the choice of supporting the Constitution or an imperial presidency.

 That’s when Congresswoman Herseth Sandlin flinched.

In the last six years President Bush has fused national security and the War on Terror with expanded presidential power. Despite the well-articulated intentions of the Founding Fathers and the explicit language of the Constitution, he has steadily pushed to reduce the authority of Congress and the judiciary, and increase the power of the presidency.

 He is not the first president to do so. His calculated cynicism is that in times of national crisis war trumps the Constitution.

But why would a young member of Congress, trained at law, take the bait? Perhaps her own cynical calculation is that we value our liberties so little that she can trade them for her own job security.

It just goes to show...you can learn what’s in the Constitution at Georgetown Law School. But you can’t learn how to defend it.

Sam Hurst lives in Rapid City. Write to samhurst@rushmore.com