It is not too early to anticipate that in the rush to deal with terrorism, Congress will pass some legislation that may do long-term harm to our society. It would be wise, therefore, for Congress to put a sunset provision on all legislation enacted in response to September 11.
The anger, pride and passions arisen on September 11 have led to a national resolve about destroying terrorism. But those very same emotions may cloud the judgment of those eager to enact laws to deal with terrorism.
Over the past week, many members of Congress have expressed the need for balance between constitutional protections and giving law enforcement officials tools to do what they need. Pressure to act quickly may nonetheless create mistakes – harming the very liberties that terrorists seek to destroy.
There is no harm in limiting the effective length of legislation to a period of, say, two years, because any good legislation may be extended by vote when it is about to expire. Article I, Section 8[12] of the U.S. Constitution uses a limitation of two years on any appropriation of money to raise and support armies, and that may serve as a wise guideline for other legislation.
The reason why sunset legislation is particularly wise is that power, once ceded to a governing body, is difficult – if not practically impossible – to take back. As a minor example, during the Spanish-American War, the United States enacted a phone tax for the specific reason of helping to pay for the war. That tax existed decades later.
Congress will be addressing issues giving federal authorities wider latitude in wiretapping and other proposals that, under more peaceful times, would be viewed with more skepticism and considered with more debate. But even in times of less emotion, mistakes occur and bad laws make their way onto the books.
A sunset provision on legislation will ensure that mistakes do not become embedded in our institutions like ticks. America might trust President Bush, as his current approval ratings topping 90 percent demonstrate, with expanded power. But would Democrats want another Nixon, or would Republicans want another Clinton, using all the powers that will be handed over to this administration?
And let us put September 11 into proper context. Senator Tom Daschle said this weekend that we are facing “emergency circumstances nobody could have imagined two weeks ago.” That is simply not true, and facts will be brought to the public’s attention showing that there were credible threats and repeated warnings to U.S. government officials of the potential for attacks. Perhaps the timing and the method were not known in advance, but there were warnings of what may be even more disastrous types of attacks.
It is clear that changes must be made in our foreign and internal security. Let us ensure, however, that the terrorists do not achieve a single objective. Hindsight in two years will give us the benefit of both more knowledge of the facts and the experience of living with new restrictions on our basic freedoms.
Mark J. Fitzgibbons is a constitutional lawyer.
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