Sunset Can Put a Halt to Twilight of Liberty

Atty. Gen. John Ashcroft has proposed that Congress approve sweeping changes in our surveillance system. As many as 40 statutory protections for civil liberty could be eliminated in a single blow.

And no serious debate is in the offing. Perhaps some senator will insist on one or another change, for better or for worse. But Congress won’t take the chance that terrorists will strike again while it is talking the Ashcroft proposal to death. The president will get more or less what he wants, when he wants it.

This is entirely understandable, but it is not too soon to think about what happens afterward. It is one thing to pass emergency legislation; quite another to make it a permanent part of our law. Any congressional enactment should come with a sunset provision, requiring the law to lapse after two years unless it is reenacted. During the interim, Congress should create a bipartisan commission to consider the fundamental questions at stake. Then, we can consider more permanent legislation after the initial panic has subsided.

We have used similar devices in the past. The recent Bush tax cut came with a 10-year sunset provision; all the tax breaks will expire in a decade unless Congress reenacts them. This sensible provision reflects uncertainty about the long-run implications of the initiative.

Congress took a similar approach when it created the independent counsel’s office to investigate misbehavior in the executive branch. It placed a five-year sunset on the statute in light of the risk that the new official might disrupt the traditional system of checks and balances between the legislature and the executive. After the tenure of independent counsel Kenneth W. Starr, few of us mourned the statute when it automatically expired and Congress refused to reauthorize the constitutional experiment.

This time, our tradition of civil liberties is being placed at risk, and there are special reasons that make a sunset provision even more appropriate. The most obvious is the rush with which the legislation is being pushed through Congress. A two-year termination clause simply recognizes the proposal as an emergency measure that deserves sober second thought before it becomes a permanent part of our legal tradition.

Caution also is required by the amorphous and open-ended character of the terrorist threat. Calling it a “war” diverts attention from a salient difference: When a classic war ends, Congress always embarks on a housecleaning effort to rid the statute books of wartime legislation that no longer makes sense in the new era of peace.

But the war against terrorism will never come to such a definitive resolution. While risks can and should be reduced, our countermeasures will never prevent the occasional bomb from going off. There will never be the equivalent of a V-J Day when we all celebrated the definitive victory over Japan and moved on to reconsider the emergency measures taken against Japanese Americans during the war.

Without a sunset provision, it will be difficult for some future Congress to reassess the Ashcroft legislation seriously. Nobody will ever be in a position to say that the terrorist threat has come to an end. Just when we think that we have won, another terrorist act will bring us back to reality.

The rise of terrorism undoubtedly requires a serious debate over the proper balance between liberty and security in the 21st century. But Congress should not provide permanent answers when we have not even begun to ask the right questions.