Sunsetting the

Politics of Terror

By Daniel Schuman


Last sunday night’s sunset of the 9/11-era USA PATRIOT Act is an example of the Congress working properly and a repudiation of the politics of terror. After the 9/11 attacks, national security hardliners stampeded the Congress into enacting broad surveillance legislation without much opportunity for our elected officials to think through the legislation or to address competing interests of privacy, programmatic effectiveness, transparency, return on investment, and so on. The only saving grace was that legislators tacked on a sunset — a legislative expiration date — that would force future congresses to reconsider some provisions of the legislation when passions had cooled.

The purpose of a sunset is twofold. First, it puts the burden on proponents of legislation to justify the need for its existence. Second, it uses the structure of Congress itself as a procedural protection to make sure there is broad agreement that controversial legislation is necessary.

As it turns out, Congress re-upped provisions of the USA PATRIOT Act every four years, under great pressure from hardliners and in contrived circumstances that undermined reform. In the meantime, evidence piled up that expiring provisions of the USA PATRIOT Act were ineffective, counterproductive, and implemented by the administration in ways that violated the law.

This time around, proponents of reauthorization had no credibility when they made their case for an extension. Passions had cooled, and many members of Congress had not voted on the original legislation in 2001. But proponents included members of leadership in the House and in the Senate, and they tried to ram legislation through anyway. That is where the structure of Congress itself came into play. When surveillance hardliners overplayed their hand, Congress’s system of checks and balances provided just enough procedural protections that the rank-and-file from both parties were able to capitalize on their longstanding reform efforts, join together, and prevent a power play.

There’s no doubt that when the shoe is on the other foot and privacy advocates wish to enact legislative reforms, they will have a tremendous uphill fight. But last week’s filibuster, the refusal of pro-privacy senators to acquiesce to legislation that extends the USA PATRIOT Act, and the House’s strong actions in favor of reform all served to box in surveillance hardliners. They were prevented from reaching their goal of a straight reauthorization or enacting faux-reform legislation.

The fight is not over. Surveillance hardliners still have many opportunities to use Congress’ arcane procedural mechanisms to sneak or push through surveillance legislation. But now that several provisions of the USA PATRIOT Act have sunset, the landscape has shifted and Congress will be even more reluctant to go along. In addition, with this defeat, the aura of legislative invincibility enjoyed by hardliners has dissipated. It is now possible for many members of Congress to envision a path towards real reform.

{ Like this? You may also like The Grassroots and the Battle Over Encryption, What Our Mass Surveillance Debate Gets Wrong, and Senate Torture Report: The Senate Speaks }