Today, October 26th, is the 10th anniversary of the Patriot Act. I’m pretty surprised that no one seems to care.

Whatever you think of the merits of the law (P.L. 107-56; reauthorizations in P.L. 109-177,  P.L. 109-178, P.L. 111-142, P.L. 112-14), I don’t think there’s any doubt that it’s the symbol of America’s public security response to 9/11 (although I guess if you wanted to argue for TSA, I’d have to at least listen).

What’s a sensible libertarian to think of all this? Three thoughts:

1) As with the “war on terror,” much of the Patriot Act has become utterly normalized. This is absolutely the saddest part of the whole post-9/11 experience for me. The various trade-offs of liberty for increased security was, by all accounts and on all sides of the debate, a temporary measure in response to an acute problem. And I’m no conspiracy theorist or weak-kneed liberal on this; in the post-9/11 environment, I don’t think it was inherently unreasonable to statutorily increase the ability of federal law enforcement to aggressively pursue terrorists. I wasn’t crazy about the law at the time, but I could see the arguments in its favor and I was willing (at the time) to accept that it was necessary in the face of the potential risk.

But I think the basic feedback loop of a democracy doesn’t work well with policies like this one: the vast majority of citizens never have any actual contact with the Patriot Act: virtually none of them ever get detained or are even suspects, and any surveillance of their communications is not something they know about. So, in effect, the entire implementation of the policy is hidden from view. Except when one of its provisions helps law enforcement do its job. Then everyone hears about it. Like many issues of liberty, it’s an abstraction that people can’t viscerally relate to and often don’t want to think about. That is a sub-optimal context for any public policy, and a dangerous one for any trade-off regarding the 4th amendment. It effectively allows the law to ingrain itself as the status quo without a whole lot of public consternation. And it puts the burden of explanation on people who want to repeal it. And then it just becomes something that’s always been there.

Everyone always talks about how kids who were born in the last 15 years will have no memory of how different America was before 9/11. And when they say it, they usually means things like “you could go to the gate at the airport to pick someone up” or “you were carefree in the sense that you never thought about buildings blowing up.” I’m more worried about the things that don’t seem to have changed at all, but have actually changed drastically. Like the idea that someone is sitting in jail in America today, indefinitely detained but without any charges filed against them now or perhaps ever. There’s only two possibilities: either the Patriot Act has been an utterly smashing success as a law enforcement tool, or the danger of international terrorism was not quite as great as we thought in Fall 2001. The truth is probably somewhere in the middle. But laws like the Patriot Act are still predicated on the unknowns of October 2001, perhaps justified at the time, but now surviving in no small part on the inertia of normalization.

2) It’s a good thing much of it was sunset, but even that is a very small escape hatch. Congress was smart to sunset many of the provisions of the Patriot Act, because it’s quite dangerous to statutorily hand unending power to the executive branch. And that’s for two reasons: first, regardless of ideology or party, all presidents prefer to have more power than less power. Even if they have no intention of using statutory powers handed to them by Congress, the last thing they are going to do is hand them back. The second reason is structural: because Congress can hand the executive power by majority vote but can only repeal those powers by supermajority (because of the veto), there’s a ratcheting-up effect. The president can almost always summon 1/3 of Congress to his defense, simply because partisans have less concerns about power under their president and often simply do not want to make their man look bad. And so Congress has trouble ending statutory grants of authority to the president.

Luckily, there’s an easy solution that was implemented with much of the Patriot Act: sunsets. So long as the authority expires, then Congress can always choose to extend or end the statutory power by majority vote. In fact, I think sunsets on presidential power are so important that they should be installed on all grants of power to the executive, and should never last more than a Congress. That way, no Congress can bind a future one into a situation where a clear majority rejects the grant of power, but cannot undo it. It wouldn’t be hard to implement: on the first day or in the first week of each new Congress, a bill could be brought forward that was the “presidential power package,” which would contain all the  presidential powers that were about to expire (the laws could be written to have them expire, say, a month into the new Congress). Congress could then re-pass all the powers they wished the president to statutorily retain (perhaps most, or all, of them), while excluding the ones they wanted to end. And this could all be done by majority vote. Sure, there would be veto-bargaining and filibuster issues, but at least that would get people talking and debating the issues; right now, no one even contemplates undoing some of the presidential powers because it’s simply impossible.

Even with sunsets, statutory executive power is a tough thing to undo. The politics of security almost always play toward conservatism, and with presidents almost always pressing to keep or expand the powers, opponents have an uphill fight. This is, of course, better than no sunsets. But it also speaks to their necessity: without them, it’s not an uphill fight, it’s just game over.

3) I worry that the Obama administration has done for security what Ike did for the New Deal.  People tend to forget, but there was a fair number of Republicans in the late 40’s and early 50’s who were still of the mindset that the New Deal policies of the Roosevelt years could be undone in a favorable political environment. Eisenhower’s disinterest or unwillingness to engage in such policies was not only a disappointment to orthodox conservatives at the time, but it was also the nail in the coffin for their cause (at least for a while…). Such cross-party acceptance of a controversial set of policies is pretty common, I think, and tends to be what fundamentally solidifies policy development in much of American history.

My guess is that the Obama administration has done the same for the enhanced security powers of the executive branch. It was always my conclusion that liberals were deluding themselves in ’08 if they thought that just getting their man into the office would solve the problems of Bushism; as I believed then and still believe now, the problem wasn’t just the president, the problem was the presidency. Of course, we’re unlikely to see a Whig in the White House anytime soon, someone who will just hand back power under a theory of legislative supremacy. But at least that debate seemed plausible under Bush. Sometimes I wonder if the conservatives would have put up a better fight on civil liberties had Gore been president for 9/11. Perhaps, although perhaps the solidification of the new era would have just been that much quicker. But it’s utterly clear to me that the modal liberals are mostly done with the issue, as is the median voter.