On Monday, Sept. 11, this year, I flew back to Dulles International Airport from Minneapolis and had a déjà vu moment. Five years earlier, I had driven out to Dulles, scheduled to fly to Norfolk, Va., to talk to government ethics officers. When I checked in, the first plane had just hit the World Trade Center, with speculation that it was a small private plane that had lost its way. When the second plane hit and it became apparent that this was no accident or pilot error, we were quickly called back from the jetway.

Resident Scholar Norman J. Ornstein

As many readers know, I have written ad nauseam about the consequences of an attack or a disaster on Capitol Hill. But on the fifth anniversary of the Sept. 11, 2001, terrorist attacks, and with many readers of Roll Call new to Washington, D.C., since then, it seems appropriate to do a post-mortem of what has been done in the five years--five full years--since those terrorist attacks.

By the end of that day, we knew how narrowly we had dodged another bullet when United Airlines Flight 93 crashed in a field in Shanksville, Pa. The brilliant and harrowing movie “United 93” also makes it clear that the terrorists’ target was the Capitol, something that was reinforced by evidence presented at the trial of Zacarias Moussaoui that he was going to pilot a fifth plane headed for the White House. In “United 93,” one of the most chilling visuals is that of the terrorist pilot taping a picture of the Capitol to the controls so he will recognize and hit the intended target.

Thanks to the brave passengers on United 93, that disaster was averted. In the days after Sept. 11, a stunned nation was buoyed by the appearance of all Members of Congress on the steps of the intact Capitol singing “America the Beautiful” to underscore that the country was bloody but unbowed, and that its system of democratic institutions was intact and ready to respond to the brutal attacks on the nation.

In rapid order, Congress authorized the use of force by the president, made emergency appropriations for the aftermath at Ground Zero and the Pentagon, restructured the air transportation system and passed the USA PATRIOT Act, among other things. The authorization of the use of force included an explicit limitation on the president’s authority by underscoring the continuing enforcement of the War Powers Act; the PATRIOT Act, while it incorporated nearly all the elements of the attorney general’s wish list, also included a sunset provision requiring the act to be reauthorized so as to correct any overreaches or unintended consequences that might come to light after its implementation.

Those may have been modest checks and balances, but they were checks and balances nonetheless; they recognized the temptation by any president to seize unilateral power when faced with a crisis and underscored the need to have that power constrained in some fashion. Had there been no Congress, the martial law that would have followed might have been benign, but it still would have been martial law. And chances are, it would not have been all that benign, either.

By mid-afternoon on the day of the attacks, I realized United 93 likely had been headed for the Capitol, and I knew the implications if it had hit. Shortly thereafter, I wrote a column in Roll Call pointing out the holes in the Constitution when it comes to continuity in our governing institutions--holes the framers had no reason to think about at the time of the founding. But in an age of terrorism, with suitcase nuclear bombs or other weapons of mass destruction able to obliterate Congress or even behead all three branches (for example, if deployed at a presidential inauguration), the new realities demand new solutions.

My agitation--which was added to by that of Rep. Brian Baird (D-Wash.), who realized the problem at the same time I did--resulted in the creation of a bipartisan Commission on the Continuity of Government, co-chaired by the late, great former White House Counsel Lloyd Cutler and former Sen. Alan Simpson (R-Wyo.). The commission recommended a constitutional amendment to provide for emergency interim appointments to the House in the case of widespread death, and to both chambers in the case of widespread incapacitation--the only effective way of ensuring a fully functioning and fully representative Congress within days of a devastating terrorist attack on the Capitol complex. The commission also called for revision of the Presidential Succession Act of 1947, which is woefully out of date, and for a first-ever plan to replenish the Supreme Court if it falls well below its legal quorum of six.

Now, five full years after Sept. 11, each of these proposals remains unaddressed. Congress has given no attention at all to continuity of the courts or the presidency, and hardly any to its own plight if (and when) terrorists strike again. The panic in the House when there was a rumor that the anthrax attacks that hit the Senate might migrate over to their side was matched by near-anarchy when a small plane carrying Kentucky Gov. Ernie Fletcher (R) mistakenly drifted into the Capitol’s airspace. The best plan we have when terrorists seem to threaten Congress is, in effect, “Run for your life!”

The House of Representatives passed a poorly drafted and unworkable expedited-election plan that ignored constructive suggestions from election officials and lawmakers, and the House also jammed through a clearly unconstitutional unilateral change in the quorum requirements to exclude incapacitated Members, as defined by the Speaker of the House. The House then washed its hands of the whole matter. The Senate, despite penetrating hearings led by Sen. John Cornyn (R-Texas) when he headed the Judiciary Committee’s subcommittee on the Constitution, has done nothing at all.

The passengers on United 93 did not know for sure what landmark institution the terrorists were going to take out when they stormed the cockpit and triggered their own deaths. No doubt, they would have been proud that their actions saved the first branch of our government. And no doubt they would be horrified that five years later, the lawmakers they saved have ignored their heroism and done nothing to prevent the next catastrophe from reverberating in the worst possible way. Shame on Congress.
 
Norman J. Ornstein is a resident scholar at AEI.