Citizens and the State: The Problem Is Bigger Than You Think

The NSA scandal is the tip of the iceberg.


“This abuse of state power,” writes Chinese artist and dissident Ai Weiwei about the U.S. government’s surveillance of U.S. citizens, “goes totally against my understanding of what it means to be a civilized society.”

Weiwei has a better understanding of important things than Americans who find nothing wrong with the NSA’s domestic spying. According to last week’s polls, those Americans are in the majority. If you have done nothing wrong, many say, then you have nothing to hide. Really? We are supposed to believe the federal government does no wrong. If so, then by this logic we should declassify everything.

(There is some cold comfort in the poll, which shows that Democrats and Republicans support surveillance less when the other party holds the Oval Office. So some support for the NSA’s activities may have more to to with team-sports loyalty than deep-rooted conviction.)

The revelations about the extent of domestic surveillance have been a big story since they broke earlier this month. And the story keeps getting bigger: MSN reports that the IRS is “acquiring a huge volume of personal information on taxpayers' digital activities, from eBay auctions to Facebook posts and, for the first time ever, credit card and e-payment transaction records.” Soon it will have your health-insurance information, too.

Yet the tight focus on electronic surveillance keeps the bigger story out of the frame.

The bigger story concerns the increasingly asymmetric relationship between citizens and the state. The formerly secret program of domestic spying neatly illuminates one aspect of that asymmetry: The government knows, or can know, an awful lot about you. But you are not supposed to know even that it knows, let alone what it knows.

More of what the government does is classified than ever before. If you do not know what the government is doing then, obviously, you have no say over its activities. This flies in the face of the Declaration of Independence, which states that governments derive “their just powers from the consent of the governed.” How can you consent to something you know nothing of?

The principle animating democratic and republican government is accountability to the governed. Yet more and more government action lies beyond the citizens’ reach. As law professor Jonthan Turley explained in a Washington Post piece that appeared before the surveillance leaks, “our carefully constructed system of checks and balances is being negated by the rise of a fourth branch of government, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.” (Viz., the NSA.)

The “vast majority of laws,” he continues, “are not passed by Congress but issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats.” In 2007, he writes, “Congress enacted 138 public laws, while federal agencies” â€" there are now 69 of them â€" “finalized 2,926 rules.”

The administrative state is taking over not only the legislative function, but also the judicial: Turley reports that “a citizen is 10 times more likely to be tried by an agency than by an actual court.” And such agency creep, as it might be called, does not stop at the federal-state boundary.

Last month the Minnesota Supreme Court deferred answering a basic question of constitutional rights: Can the government enter your home without probable cause? A city ordinance in Red Wing, Minn., allows building inspectors with administrative warrants to enter rental units even when both the landlord and the tenant object. And as the Arlington-based Institute for Justice points out, they “do not require the government to have any evidence that there is anything actually wrong with a residence.”

If you were asked to name a country that routinely stockpiles its citizens’ private communications, keeps it in the dark about that activity and many others, tries citizens in extra-judicial proceedings for violations of edicts not passed by any legislature, and permits government agents to enter private domiciles at whim, you might say: China. Or Cuba. Or Saudi Arabia.

America is none of those places, of course. Not even close. But it is not a happy thing to note that the fourth branch of government â€" the administrative state against which Republican politicians rail â€" is largely impervious to elections. And that despite the uproar over domestic surveillance, an activity the election of Barack Obama was supposed to curtail, the general consensus seems to hold that such monitoring will continue unabated. Politicians come and go; autonomous agencies and mass surveillance are here to stay. Elections still matter a great deal in the U.S., but they matter now less than they once did â€" and less than they should.

NEXT: Brooklyn DA Will Have to Testify in Wrongful Conviction Case That Alleges Widespread Prosecutorial Misconduct

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  1. A. Barton Hinkle on Why the NSA Scandal Is Just the Tip of the Iceberg

    Just the tip. Just this once. Just to see what it feels like....really.

    We. Are. Doomed. (that's for John)

  2. If you have done nothing wrong, many say, then you have nothing to hide. Really? We are supposed to believe the federal government does no wrong. If so, then by this logic we should declassify everything.

    "Well, some wrongs may have been done unwittingly. Surely you don't object to hiding *them*."

    1. That's the least most...most least lie...whatever

    2. Well, they should reveal what they have done half wittingly.

  3. "our carefully constructed system of checks and balances is being negated by the rise of a fourth branch of government, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency."

    This is the knife at the throat of the Republic. No matter who wins the elections, no matter which way the deck chairs are rearranged, there is a permanently entrenched class of people in various pockets of America but concentrated in Washington D.C., whose sole job, and the manner in which they justify their pay, is by applying boots to faces.

    Repeal the Civil Service Act and return to the spoils system.

    1. What I wouldn't give to return to the days when the most we had to worry about was old-fashioned peculation.

  4. What disturbs me the most is the low level people who are willing to carry this stuff out. It doesn't seem that hard to find Brownshirts in America does it?

    1. This actually surprised me, I feel foolish now for ever believing there was an idea of liberty embedded in the American fabric that would make the recruitment of brown shirt types difficult. I thought the shame and societal backlash of being a government stooge would slow the growth. I thought wrong. They take pride in their bloody boots.

      1. The lamestream leftoid pseudo-intellectuals have been getting Americans ready for a Hitler for over a century. Their former idealistic zeal for collectivism has dropped its mask, revealing the essence of collectivism: fear of facing existence as a sovereign individual, and thus the imperative of controlling those who do at the point of a gun.

        But political collectivism draws its roots deeper into the morality of altruism, which virtually no one is willing to challenge. It is all about philosophy, Rand was right.

      2. Close to a million with access, several thousand (Admin level) according to reports with complete access.

        I'm not certain how many LEOs.

        So if you have nothing to hide, a perfect citizen, then they can take your right away.
        Furthermore, since you're perfect, they can take everyone elses right away as well, it's only fair no warrant is ever needed.

        Yeah, somehow simple logic was replaced with Ingsoc.

        If you object you're guilty, if you're innocent they can do it anyway. Thus, no one may rightfully object since rights do not exist.

    2. And the high level people responsible for ordering it.

      Don't forget the 1.4 billion hollow point rounds - 1,400,000,000 bullets - ordered by Obama. The use of such bullets is forbidden in warfare because they cause too much suffering. I wonder who they are going to be used on?

    3. "Hell, most Germans were Nazi's just like American's are Democrats and Republicans."

  5. I realize the commentary was from 2007, but it seems the list of federal agencies has expanded pretty significantly since then. At last count (unless I'm misunderstanding) there were 429 agencies - source:



  6. With very few exceptions every person I've ever met who works at an administrative agency is a douche.

    1. Double douche too.

  7. If you have nothing to hide from who?

    I mean as long as I could trust that the NSA was only ever going to use the data to catch actual real terrorists then no, I have nothing to hide. But we all know it won't work that way for long, next thing they'll be looking for drug cartels and money laundering operations, then pedophiles and child porn producers/consumers, then it will be opened up first to the FBI and later on to general law enforcement and after that a Lois Lerner clone will start using that information to squash political opponents of the current regiem and with this meaning criminal prosecutions means the effective beginning of a dictatorship as enemies of the state are singled out for prosecution for anything they can dig up and with the all seeing eye of the state they can always dig up something, and for any wishy washy supporters of the state well they know more than enough about their dirty laundry to blackmail them into complaince.

    1. As for squashing political opponents of whatever current regime, that regime might start changing less and less frequently over time. One of the valuable by-products of access to all kinds of private information is discrediting opponents -- of any party -- so as to sway elections. It happened in one senate race, where the challenger got access to his opponent's sealed divorce records so that he could use some of the information (that the couple had attended a swinger's club) to turn the tide of the election and win.

      1. Indeed, and who was the benificiary of that case?

        Barack Obama.

        A President who first rose to power on the back of leaked private information wanting the power to spy on everyone all the time, what could possibly go wrong?

  8. There is something else that I have been trying to get people to see, and that I have not heard mentioned by the media: the NSA requested ALL of the phone records from these companies. That means more than just who you called, when you called, how long you called, etc, bad as all that is. If your cell is in your pocket and on, it doesn't have to be in use; the phone companies know exactly where your phone was every second of every day. If the NSA requested all records of all phones, then that means that they can track the physical location of every American (or at least their phones) at all times. Do you remember where you were at 10AM on June 1st, 2013? No? Well don't worry, the NSA knows where you, and every other American was at any minute of any day covered by the records they have illegally seized.
    Big Brother IS here. Why isn't every American LITERALLY up in arms? This is absolutely unacceptable. This is OUR government, not theirs. They are supposed to work for us!

    1. Like the MSM/AP they didn't care until they were under fire.

      We have no example yet it seems, of Mr or Mrs innocent getting hammered, so no one really believes it is happening.

      I saw a lot of doubt that a word Snowden said was true. Most claimed at first he never worked for no such agency.

      So right now it's all a fairy tale to most. The MSM has even taken that view.

  9. Our government's spying on us with the approval of rubber stamp courts and people aren't rioting in the streets. We're finished if the SC doesn't put a stop to, or at least drastically curtail, the program.

    Mark my words, only meta data is being stored now because of limited capabilities. When the NSA is capable of storing massive numbers of actual calls they will.

    1. Already occurring. Georgia, Hawaii, Texas, Fort Meade - certainly many others.

      Bluffdale Utah will hold 7 years of everything (it's already online) - the entire world data and content set ( remember much is redundant so just a small marker is needed for lots of data designating who also has it, accessed it, etc.)

  10. The only viable way to reign in the "administrative state" is to sunset their authorization and demand that Congress debate and reauthorize, reform or remove government agencies and conscientiously and continually review mandates and regulations. The use of the phrase, "the Secretary of ___ shall create such regulations ...." should be banned from law writing.

  11. When in the Course of human events...

  12. The Administrative State was created by the acquiescence of SCOTUS to the laziness of Congress, by not invalidating Congress' delegation of law-making power to the various Departments and Agencies of the Executive.
    Both the Judiciary, and the Legislative, branches of our Government need to step up and stop this; first by the Courts invalidating any law/rule/regulation promulgated by the Executive that has not been voted upon by the Legislative Branch; and second, by the Congress starting to do its job of law writing (and I'm not talking about 2000+ page tomes like the Stimulus/ObamaCare/FrankenDodd acts), and holding the Executive agencies to account.

    When I wake up, please don't startle me.

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  14. One problem is the asymmetry between how citizens are held accountable by government employees, and how government employees are held accountable. Unfortunately, any attempt to hold government employees accountable, typically results in the foot of government stomping down on your for trying to do it in a method, other than voting.

    Look at Snowden, and all the whistle blowers Obama is prosecuting. Obama's Justice Dept. was able to indict Snowden in a matter of a week or so. But no one in the IRS has been indicted, no one from Fast & Furious was indicted, no one who failed to connect the dots and prevent 9/11 was fired, no one in the SEC who failed to stop Madoff earlier even when tipped off by analysts was fired, no one has been indicted or lost their job for lying to Congress. Government has become unaccountable.

    It's time to vote for politicians who will actually cut government spending significantly.

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