The Problem with Anti-Terrorism Laws

By Tim O'Shea

Nine Eleven was a crisis. No one will dispute that. But the only thing more important and lasting than a crisis is the reaction. Not only how it addresses the problem, but also how it checks itself from being too expansive, irrational, or emotionally driven. And America’s reaction to the threat of terrorism has been all of the above.
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The first issue is always going to happen. Crises and the ensuing panic, paranoia, and anxiety can drive people to pursue options that they would not have considered had the crisis not driven them in to such a state. Psychologist Daniel Goleman wrote that the part of the brain that controls fear, the amygdala, can inhibit decision-making processes should it react strongly enough. While this may be harmless on the individual level, using those reactions to craft policies that will persist long after the fear has subsided makes the problem much more permanent.
The second issue is one much more caused by the American legal and political system than to fear. Simply put, laws will only expand their ground. As new boundaries of laws are tested and upheld, the laws can find themselves covering much more than previously anticipated. U.S. counterterrorism efforts using drones led to the killing of Anwar Al – Awlaki, a U.S. citizen, setting up precedent for the United States to indiscriminately kill U.S. citizens without any kind of constitutional protection. Moreover, the newly revealed domestic surveillance operations done by the National Security Agency have been justified through the expansion of the ground of the PATRIOT Act to include operations like the ones the NSA conducts. Thus if it’s clear that this relentless expansion of ground is occurring, the next question is why.

One culprit may be the political incentives behind anti – terrorism laws. Politicians often portray themselves as defenders of the people when they pass a law designed to stop terrorists. However, this makes it politically harmful to repeal the laws, even if they may be frightfully ineffective or misallocated. Furthermore, laws that are ineffective themselves but represent a widely supported political movement may be difficult to resist because going against the law can be misconstrued as going against the root value of the law. Finally, if a law persists for long enough, such as the case of the PATRIOT Act, its measures become the norm, causing any repeal to appear as a scaling back of the “normal” levels of security.

While it may seem that unchangeable human behavior is to blame for the expansionary trends in anti – terrorism laws, easy legal augmentations pose a solution. For instance, “sunset” provisions ensure that provisions of laws will expire after predetermined periods of time absent extension. For instance, the PATRIOT Act had fourteen permanent provisions, but three contained sunset provisions that will cause them to expire in 2015 absent action. While failure to extend the laws can encounter the same political costs and obstacles as repealing them, it still offers an easier option that allows conflicted politicians to end a measure passively rather than actively voting against it. Furthermore, simple control can offer an even greater solution. While emotional reactions in the event of catastrophe are understandable, it’s important to think about the long term before shouting for changes. Politicians still have to please the people, and if the people can measure their reactions and expectations in a way that doesn’t create incentives for such irreversible actions, the problem will be cut off at the source.

The expansionary nature of anti – terrorism laws is neither a reason to stop passing them nor a reason to repeal any faulty law. But when certain laws mean so much for both civil liberties and national security while simultaneously being so emotionally charged, much care must be administered when evaluating them in order to check steps that could create consequences for years to come.

1.http://harvardnsj.org/2013/07/the-nsa-surveillance-controversy-how-the-ratchet-effect-can-impact-anti-terrorism-laws/
2.http://www.theguardian.com/commentisfree/2013/jun/09/abuse-patriot-act-must-end