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.

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  1. Congress deserves the blame for this. They have the power to stop it and refuse to do so. They could stop all of this in a heart beat. People always obsess about impeaching the President. We need to drop that. And Congress needs to start firing and impeaching people in the Administration. Congress could impeach the head of the CIA, NSA and all of their political deputies in one stroke. Lois Lerner takes the 5th in front of Congress, Congress just puts a rider on the next budget that fires her, denies her her pension and band her from ever working in the federal government again. And there wouldn’t be a damn thing anyone could do about it. What we need is a real activist Congress. Make an example our of a few creatures like Lehner and make it clear to the bureaucracy that getting afoul with Congress will cost you your job and pension and to the politicals it will cost them their jobs, and this stuff would stop real quick.

    1. Then there’s the suit about Bills of Attainder being expressly forbidden in the Constitution that the now banned people have been ignoring, with a ‘No Ex ost Facto’ rider for punishing what were ‘lawful’ actions at the time.

      1. That wouldn’t be a Bill of Attainder.

        1. That would be an argument for the courts, and under precedent, it would land under the current US definition thereof.

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      2. Taking your pension is not punishing you for the purpose of ex post facto limits. You might not be able to take her pension since that is property right. But Congress can fire anyone they want. Indeed when the civil service reform of the late 19th century was first passed, that was the only way a civil servant could be fired.

        1. I’d like to point you to US V Lovett with regards to banning people from Civil Service and legislatively firing them. And the total package would be a penalty for past acts ‘legal’ at the time of commission.

          1. Good case. They certainly could not ban her. They could however I still think fire her for misconduct. This case could be distinguished from Lovett. In Lovett congress fired them and banned them from further federal service because of their political beliefs. IN this case, they would be doing so for misconduct. I think Congress would be on much firmer ground here. The woman refuses to cooperate with a Congressional inquiry and is guilty of pretty serious misconduct.

            1. I can still see the resultant suit leaving congresscritters hesistant to try to reuse the tactic, as it results in a lot of publicity that isn’t ‘look what I did for our district’. I’m not saying I can predict what the courts will rule, but the suit will follow those lines and get pretty nasty.

              1. For sure. I am a bit vindictive towards creatures like Lehner. So I would do it and if nothing else make her sue and go through years of stress to get her pension and job back. I always would want her marked for life as the vicious hack she is.

      3. Is a pension property that can be subject to attainder? Is it an obligation that has yet to be fulfilled as Lehrner is still on the government payroll?

  2. Even the sponsor of the law, Rep. James Sensenbrenner, R-Wis., was surprised to find out its hidden meaning.

    Legislators seldom seem to grasp the consequences of their actions, beyond perhaps the next election day. But I’m beginning to suspect that the enforcers of these laws Congress creates in its imagination vacuum have already thunk up creative applications for them by the time a president applies his John Hancock.

    1. Yeah the right wing radio guy yesterday was talking about how Sensenbrenner didn’t intend this, so obviously Obama was overstepping the bounds of the law.

      I’m like “fuck you idiot. You wrote the law, if you didn’t intend for this you should have written the law better.”

      1. the right-wing radio guys, by and large, remain willfully blind to any Repub contribution to this. It’s as though nothing happened prior to The Obama’s inaugural.

        1. Mark Levin is better than the rest on that count.

        2. My local station delays Hannity till 6, so there’s a local guy on between 3 and 6. He’s kinda libertarian, but hes only been in Richmond for a couple years, so I don’t know hes flip flopping or not.

  3. I’m not very interested in Democracy (voting). Democracies are usually short-lived and not particularly free by the end. I want liberty.

    1. Democracies blow. Most humans are stupid and short sighted. Losing liberty at the hands of a great many fools isn’t magically better than losing it to a single despot or a few.

      1. So what organizational schema would you recommend? I’m not sure how one avoids the malignancy of tyranny in any schema, or the violent removal of a schema unable to defend itself.

        1. A Republic with a government strictly limited by a Constitution? I would give it a try. It will work as long as the People are ready to hang politicians who overstep those Constitutional limits.

          1. As they said in the 1780s, “That sounds crazy, but it just might work”.

        2. Don’t see why a power structure schema unable to defend itself (as in retain its power) is such a bad thing…

          You need a system that does not consolidate power. One where there’s no central authority. One where people are free to choose. Basically competition.

          (Technically this is also the situation we already have today between nation states)

        3. Constitutional republic with representation with an automatic sunset clauses of 5 years tacked on to all laws.

          1. The Constitution limited military spending to two years to avoid a standing army. So they rubber stamp a defense authorization bill every two years.

            My guess is that every year they’d reauthorize all bills set to sunset that year with a big rubber stamp.

            There needs to be an incentive. Like in Heinlein’s book The Moon is Harsh Mistress where it is proposed that one house of congress has only the power to repeal. That’s all they can do. Then there would be a real incentive to get rid of bad legislation.

            1. How about no legislative branch and no voting. A constitution based on principle and a voluntary judicial system. Now new laws, only does your action fall in line with what is allowed under the constitution: no aggression, fraud, etc. no elected judges, only a voluntary pool like jurors. Pick an odd number and whichever side gets the majority wins. Then reparations or off to private run prison with the loser.

            2. Our congresscritters and their idiot wranglers don’t even know what they’re passing on a daily basis. I doubt they can keep track of what’s on the books now AND reauthorize every bill set to sunset in a particular year. What’s worse, they might have to sign their names to the Patriot Act every five years, especially have railing on how Bush was the DEBIL and used his evil DEBIL powers to get it passed with nearly unianimous votes from Congress.

        4. Freedom. If someone wants to start a company to defend my rights, let him tell me how much it costs and see if I want to sign up.

  4. Given politicians’ track records throughout history the odds that the increased powers given them by the Patriot Act wouldn’t be misused were not good. And if history is any kind of indicator of things to come, now that they’ve weaseled themselves these enormous new powers they’ll never give them up.

  5. Are you sure that the government did not already start installing a shower cam in every home?

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  6. I would think egregiously violating one’s Oath of Office would be sufficient grounds for dismissal.

    Silly me.

    1. Yup. Just starting impeaching political people. Go after the cabinet and even the lower tier appointees. That would take all of the fun out of this stuff

    2. Violating one’s Oath of Office like that should result in a few years behind bars for several counts of perjury.

      1. Fuck that. Execute the motherfuckers.

      2. Clapper should be the test case. He committed perjury and admitted that he did so regarding Senator Wyden’s surveillance question.

  7. http://news.investors.com/ibd-…..osques.htm

    NSA surveillance gets everyone but Muslims. If you want privacy, join a mosque, preferably a really radical one. That way there will be no danger of the FBI or NSA bothering you.

    1. It’s just a coincidence that they didn’t track Tsarnaev, even thought the FBI was explicitly warned by the Russian government.

  8. This is not a democracy. I wish people would stop saying that word. It is a Republic, in principle, if not in practice. Democracy invariably leads to the tyranny of the majority and to a dictatorship, which is where we are headed, if we are not there already.

    Presidents claiming they have a mandate from the voters instead of mandates of the law is democracy.

    1. This is indeed a democracy. A representative democracy anyway. It ceased to be a republic with the passage of the 17th amendment.

    2. It was supposed to be a Republic. We couldn’t keep it.

      1. North Korea is also a Republic, in name, just like us.

    3. This is not a lemon. I wish people would stop saying that word. It is a luxury automobile, in principle, if not in practice.

      /used car salesman

    4. I’m pretty sure right now it’s a People’s Democratic Republic.

      1. Damn….I hate Trabants and everything being Sovietsky Cement Style.

  9. Where’s my fucking opt out button. Opt out of all of this shit, where’s my libertopia?

  10. Wait — did Steve Chapman just make more sense than John Stossel? What day is it? I want to write this down.

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  12. Our Founding Fathers detested the idea of democracy, as it means ‘Mob Rule”. That’s why the USA was established as a Republic. Meaning We The People would vote for Representatives. That’s why the US Senate was established as check on the Demos as legislators appointed by States to balance the Federal Govt, voters, & States. Now, we are unbalanced by the public becoming uneducated as to why the 3 branches were set up the way the were. We only have ourselves to blame that an operative like Obama would come into power. Now, we need to re-establish the government in it’s original configuration to put the checks & balances back into place. It would help if the high Courts weren’t packed with party-line politicians who act as social engineers, instead of sticking to the Constitution. Only time will tell. But, all Libertarians must unite & not be so set on their way being the only way. This is our golden opportunity to apply Godly behavior to win the 2016 elections all over the USA.

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