Earlier this month, America commemorated the 20th anniversary of 9/11. As such, the upcoming months will mark the 20th anniversary of the resulting unprecedented expansion of executive authority and government surveillance that still threatens our constitutional rights today.

The 20th anniversary should be an inflection point to reckon with the legal legacy of 9/11, which is proving even more enduring than the two wars that followed the attacks. This reckoning couldn’t come at a more critical time as calls for domestic terrorism legislation in the wake of the January 6th insurrection increase. We have to ask, what have we learned from the last 20 years, and will Congress and the executive branch apply the lessons of 9/11?

In the days and weeks following the attacks of Sept. 11, 2001, Congress was asked to vote on a wide range of legislation to grant the executive branch sweeping new authorities – many of which could embolden the worst tendencies of overzealous law enforcement.

What became very clear to me early on was that many of the authorities that the FBI and our intelligence agencies were asking for were less about 9/11 and more about riding on the tails of 9/11. The USA PATRIOT Act (also known as the PATRIOT Act), which was introduced within weeks of the attacks, granted far-reaching new powers to law enforcement agencies. The Act, for example, made it easier to collect tangible records of Americans from third parties, including doctors, libraries, and internet service providers (Section 215). It dramatically expanded the government’s surveillance authority of phone and internet communications, including “roving wiretaps” that permit broad surveillance to follow communication trails of suspects. It also enabled the government to “sneak and peak” when conducting property searches by allowing delayed notification of search warrants. Too many of these authorities had been on the wish list of law enforcement for years. Congress had consistently rejected them up until then. I distinctly recall prominent conservative commentators giving similar warnings at the time.

In my conversations with law enforcement and the Bush administration about potential legislation during this period, I still remember my concerns about constitutionalism and civil rights being quickly minimized. Dismissed, for example, were concerns about Section 215 being used to seek the library records of innocent citizens and concerns that so-called “sneak and peak” searches would be used for domestic drug cases entirely unrelated to international terrorism. Put simply, fear and public trauma were manipulated to convince senators of both parties that urgency trumped due diligence. When the Senate voted on the USA PATRIOT Act just 44 days after 9/11, I ended up being the lone senator to vote against it.

Many of my concerns about the PATRIOT Act have unfortunately come to pass. These include the disproportionate impact of expanded surveillance powers on marginalized communities, including Muslim Americans, people of color, and activists. Past, it turns out, is prelude here. When I voted against the PATRIOT Act, I was thinking of the Palmer Raids against socialists and union organizers during the first Red Scare in 1919-1920, and former FBI Director J. Edgar Hoover’s “Cointelpro” surveillance of and assault on the civil rights and anti-war movements of the 1960s.

As it turned out, many of the provisions included in the PATRIOT Act were subsequently used in cases that had nothing to do with terrorism. In the years following the bill’s passage, it became all too apparent that much of the PATRIOT Act had more to do with domestic drug enforcement than with international terrorism.

The apparent urgency that defined the immediate post-9/11 period drowned out our history’s warning. The last two decades have underscored just how difficult it is to walk back expanded executive authority once it’s granted.

The USA FREEDOM Act, enacted 14 years after 9/11, did put some new constraints on how the government could obtain records and required the intelligence community to be a bit more transparent about how much data it was collecting. However, it also extended the “lone wolf” provision of the Intelligence Reform and Terrorism Prevention Act – which allows close monitoring of foreign nationals without requiring that they be linked to a foreign power or terrorist organization, and the “roving wiretap” provision of the PATRIOT Act, perpetuating the new normal in government surveillance.

Fortunately, the House’s and Senate’s inability to reach agreement on the reauthorization of the USA FREEDOM Act last year presents an opportunity to take a step back and determine what is actually needed 20 years after 9/11.

Today, our country is in the turbulent midst of winding down the second of two wars launched in response to 9/11 – although lingering questions of whether a state of perpetual war will remain have yet to be answered. The authorizations for the use of military force that were used to conduct both wars are still in place and have been abused by Republican and Democratic administrations alike to justify a litany of other military actions not linked to 9/11.

Additionally, 39 men are still being held by the executive branch at Guantanamo Bay – some having never been charged with a crime. This is 13 years after the U.S. Supreme Court ruled that the government does not have the power to detain people indefinitely and arbitrarily there without adequate judicial review.

The past 20 years of executive overreach correlate with Congress willingly stepping back from its oversight responsibilities. Congress, in effect, legislated away its constitutional role in national security decisions.

The time is overdue for Congress to reassert its national security authority and to determine which components of the 9/11 legal authorities are still necessary versus those being sustained through inertia.

This truth-telling is particularly important in the wake of January 6th insurrection at the U.S. Capitol. We should not confuse the need to respond forcefully to the insurrection with the need for new laws and authorities. We conflated these two in the wake of 9/11 to our great detriment.

The House Select Committee on the January 6th insurrection is well poised to not only discern the truth about how the insurrection managed to be pulled off like it was, but also to advise about what, if any, additional legislation is necessary. What if Congress had held off voting on the PATRIOT Act until after the 9/11 Commission had completed its work, as Congress did when it came to reforming and restructuring the intelligence agencies?

Learning from the legal legacy of 9/11, any new legislation, whether in response to January 6th or to renew provisions of the USA FREEDOM Act, needs to be as narrowly tailored as possible and include sunsets to require that Congress reconsider its continued need on a recurring basis.

Both Democratic and Republican administrations and majorities in Congress have perpetuated the legal legacies of 9/11. President Biden and Congress now have an opportunity to heed the lessons of history and shape a legal regime that reflects 2021 realities and not 2001 legacies. They should seize it.

Image: (L-R) Rep. Liz Cheney (R-WY), Rep. Adam Kinzinger (R-IL), and Rep. Jamie Raskin (D-MD) listen to testimony from DC Metropolitan Police Department Officer Michael Fanone before the House Select Committee investigating the January 6 attack on US Capitol on July 27, 2021 at the U.S. Capitol in Washington, DC. (Photo by Bill O’Leary-Pool/Getty Images)