Americans concerned that the anti-terrorism bill would trample civil liberties were dealt a swift—and somewhat surreptitious—blow Friday when the House rammed through a version of the bill in which the civil liberty safeguards of an earlier version had been omitted.
The original House version of the bill had contained a sunset provision that tempered the broad investigative powers the legislation gave the government with a sunset clause under which those powers would expire within two years. But the House pulled it’s version of the bill and instead rammed through a version similar to what the Senate had passed the day before. Some members of the House complained that they did not even have time to read the 180-page substitute bill, never mind have time to study its implications.
The House version, however, does include a provision that portions of the law would expire in five years. But even that provision is an abdication by Congress of its constitutional responsibility, letting the President control the actual duration of the law in violation of the separation of powers doctrine.
That sunset provision, which in the original House bill was two years on the entire legislation, is a compromise of sorts between the need for speed versus protection against potential long-term mistakes. The House and Senate now go to conference to determine whether the sunset provision will stay or go.
Attorney General Ashcroft proposed most of the Senate version, which could permanently damage certain liberties of innocent citizens. His rhetoric that terrorism will not sunset should not dissuade supporters of a sunset provision. The fact that the war on terrorism will probably last for years is no reason not to sunset the anti-terrorism legislation, especially since many of those who voted for the bill don’t even really know what its effects will be. A sunset provision forces Congress to review not only whether the law has detrimental affects on our freedoms, but whether it is actually effective at reducing terrorism.
The United States must take security measures given the apparent certainty of retaliatory strikes. The sunset provision simply ensures that mistakes made in the current climate do not become institutionalized.
The legislation does not just target terrorism. It amends the Federal Rules of Criminal Procedure, changes procedures for notice of execution of warrants, and eases the rules to collect wire, oral and electronic communications. It enables the government to collect both personal and business communications and records. All of these aspects of the bill, while passed under the guise of preventing terrorism, do in fact apply to non-terrorist activities, and may be used against innocent American citizens. So this is a matter of concern form more than just the ACLU and criminal defense attorneys.
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 sunset provision would, if nothing else, be wise.
The Constitution was created by people who experienced great crises on American soil. 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 it is our liberties that distinguish us from other nations and make us actually stronger.
Sunset legislation would provide a necessary safeguard against unintended consequences of legislation reactive to September 11. A sunset provision will help ensure that laws passed in response to September 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. 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 an attorney who writes on constitutional issues.