The Paradox of Counterterrorism Sunset Provisions

63 Pages Posted: 20 Sep 2012 Last revised: 17 Oct 2012

See all articles by Emily Berman

Emily Berman

University of Houston Law Center

Date Written: September 19, 2012

Abstract

Since 9/11, legislators and commentators alike have hailed expiration dates — or “sunset provisions” — as a means to moderate the government’s tendency to curtail individual freedoms in response to security crises. Sunsets’ advocates explain that they provide Congress with an opportunity to reevaluate counterterrorism legislation after the crisis atmosphere has passed, enabling legislators to adjust any policy whose infringement on civil liberties appears, in retrospect, unjustified by its benefits.

This article demonstrates that, rather than guarding against the long-term entrenchment of overly robust security measures, sunsets have the opposite effect. The article begins by illustrating that Congress’s high expectations for counterterrorism sunsets have not been borne out by their impact. It then explains that the failure of sunsets to prompt meaningful reevaluation of post-crisis counterterrorism measures stems from two sources. First, optimism over sunsets’ potential relies on several inaccurate assumptions about how the state of the world will change between the time a statute is enacted and its sunset date. And second, it fails to account for the President’s outsized role in counterterrorism policymaking. Finally, the article identifies sunsets’ hidden cost: paradoxically, by insisting on including sunset provisions, legislators concerned about overzealous counterterrorism legislation actually facilitate the enactment of such statutes. And as sunsets do not subsequently correct overzealous policy, they enable the long-term entrenchment of the very policymaking errors they are designed to prevent. The article concludes that citizens and legislators concerned about the civil liberties costs of counterterrorism policy should reject claims that sunsets are an effective answer to those concerns.

Keywords: counterterrorism, legislation, sunset provisions, national security

Suggested Citation

Berman, Emily, The Paradox of Counterterrorism Sunset Provisions (September 19, 2012). 81 Fordham L. Rev. (2013 Forthcoming); Brooklyn Law School, Legal Studies Paper No. 307. Available at SSRN: https://ssrn.com/abstract=2149011

Emily Berman (Contact Author)

University of Houston Law Center ( email )

100 Law Center
Suite 210 TUII
Houston, TX 77204-6060
United States

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