This Friday, the House pulled its version of the anti-terrorism legislation and rammed through the version that the Senate had passed the day before--holding on, however, to the key provision of the House bill that the law would expire in two years.
That sunset provision is a compromise of sorts between the need for speed versus protection against potential long-term mistakes. The House and Senate will now go to conference to determine whether the sunset provision will stay or go.
Rhetoric from Attorney General Ashcroft, who proposed most of the Senate version which would permanently damaged certain liberties of innocent citizens, should not dissuade supporters of a sunset provision. The fact that the war on terrorism will last longer than two years is no reason not to sunset the anti-terrorism legislation. With a sunset provision, Congress must review in two years not only whether the law has detrimental affects on our freedoms, but whether it is effective or not at actually reducing terrorism.
The United States must take security measures given the apparent certainty of retaliatory strikes. The two-year sunset simply ensures that mistakes made in the current climate do not become institutionalized.
History has shown that in times of crisis, Americans lose liberties that would not otherwise be lost and are never quite taken back from the government. Therefore, our Constitution needs its greatest protection in times of crisis, and the two-year sunset would, if nothing else, be wise. The Constitution, created by people who experienced great crises on American soil, establishes both the means to deal with threats of attack and checks on power to maintain our freedoms. Viewed in its entirety and as stated in its Preamble, the Constitution was designed for both the common defense and to secure the blessings of liberty for posterity. Those purposes are not incompatible, and the framers warned against eschewing liberty for safety because liberty makes us stronger.
While certain members of Congress have tried to ensure protections of our liberties, sunset legislation would provide an added safeguard against unintended consequences of legislation reactive to Sept. 11. It allows for speedy legislation. Although speed appears to be warranted, panic is not.
While we are in uncharted territory, Sept. 11 must nonetheless be viewed in context. United States officials were aware of the potential for terrorist attacks even more calamitous than what happened. We needed better security before September 11, as all of us now know in hindsight. But on Sept. 10, who would have been willing to sacrifice our liberties for more security?
A sunset provision will help ensure that laws passed in response to Sept. 11 are not so disruptive to our liberties, commerce and way of life—even if such disruptions are unintended—that we are better off without them. We may now see the need to take steps that we should have before September 11, but let’s not cede our ways of life in a panic to enact legislation. Congress should force itself to review in two years what it has done so that the public can later support the good laws—and reject the bad ones—after some experience of living with them.
Mark Fitzgibbons is a lawyer and writer on constitutional matters.