The Executive Branch Is Growing More Powerful at Democracy's Expense

We still have a democracy in America. It's just not connected to anything.

"And so the charges of the hysterics are revealed for what they are: castles in the air. Built on misrepresentation. Supported by unfounded fear. Held aloft by hysteria. On this and every other tool provided in the Patriot Act, charges of abuse of power are ghosts unsupported by fact or example."

– Attorney General John Ashcroft, Sept. 18, 2003 

George W. Bush took a lot of grief from civil libertarian critics about the terms of the Patriot Act, passed shortly after 9/11, and his use of it. Today, it's clear the critics were wrong. The way the law has been applied is not as bad as they said. It's way worse.

The revelation that the National Security Agency has been collecting records of virtually every phone call made in this country since 2006, while prying into the contents of emails and calls of foreigners, makes it clear the feds have done everything short of installing a shower cam in every home. It also raises the question of whether the tools of democracy can possibly restrain presidents who are hell-bent on doing whatever they damn well please.

After the 9/11 attacks, Bush and Ashcroft pushed through the Patriot Act, which they claimed was essential to keeping us safe from al-Qaida. One of the most controversial parts was Section 215, the "library records" provision. It allows the FBI to get "books, records, papers, documents and other items" from anyone deemed related to a terrorism investigation.

The fear was that with this new authority, the government might snoop into the reading habits of innocent people. "We believe that what you read is nobody's business but your own," said Judith Krug of the American Library Association, who noted that "just because someone reads how to build a bomb doesn't mean you're a bomber."

Ashcroft scoffed at such concerns in that 2003 speech, assuring listeners that the FBI had never used it to obtain library records. Today, that fear sounds comically trivial. It turns out that section of the law was used for something much bigger: getting the records of all phone calls, year after year.

When I called Leslie Harris, who back then represented the ALA as a lawyer and now runs the Center for Democracy and Technology, she said, "I have to admit, my imagination was not big enough to envision how they would use it. We were always worried about fishing expeditions, but we didn't imagine that the fish included everyone in the country."

The Patriot Act was passed with a general consensus on what it meant. Supporters didn't disagree with opponents about what it would allow. The argument was whether that was good or bad. Only 12 years later did we learn that the law Congress thought it had passed is very different from the one the executive branch—not just under Bush but under Barack Obama—has implemented.

Even the sponsor of the law, Rep. James Sensenbrenner, R-Wis., was surprised to find out its hidden meaning. In his view, "both the administration and the FISA court are relying on an unbounded interpretation of the act that Congress never intended."

This is not the only time Congress acted only to find out that its actions are irrelevant. In 2002, the Pentagon outlined a program called Total Information Awareness that, The New York Times explained, would "provide intelligence analysts and law enforcement officials with instant access to information from Internet mail and calling records to credit card and banking transactions and travel documents, without a warrant."

This set off alarms, with the Electronic Privacy Information Center in Washington predicting it would create "a system of national surveillance of the American public." Congress responded by voting overwhelmingly to cut off funding—a decision the American Civil Liberties Union hailed as "a resounding victory for individual liberty."

A lot of good it did. Last week, we found out that the feared system of surveillance came about over the express objection of our elected representatives. We also learned that Director of National Intelligence James Clapper lied to Congress about it.

When lawmakers approved the Patriot Act as it was understood then, and when they rejected Total Information Awareness, they were fooling themselves into thinking they had a say. Americans were equally deluded when, in 2008, they elected a president who promised a new era of transparency and respect for privacy.

We still have a democracy in America. It's just not connected to anything.