The Lawless Executive Branch and the Irrelevance of Congress

Despite Congress’s decision, in response to a huge backlash on the internet and in Silicon Valley, not to pass SOPA last week, the executive branch shows that it essentially has all the powers in that legislation already—the power to accuse a website of deliberately facilitating “piracy” and shut it down and confiscate its assets all on the basis of unsubstantiated allegations. As with detainee policy, Congress’s legislation, while frightening in that it often codifies dictatorial executive power, is ancillary to that power, seeing as how in this country the president and his minions get away with exercising despotic prerogative in virtually every area of private and commercial life.

As an aside, the government’s crackdown on Megaupload is just the latest indication of where we are headed with federal intellectual property enforcement. What’s next? Youtube? This potentially spells disaster for one of the great blessings of modern civilization—the free-flow of information. Another scary indication is in last week’s Supreme Court decision that “upheld Congress’s right to extend copyright protection to millions of books, films and musical compositions by foreign artists that once were free for public use.” A 1994 law removed art by Picasso, Russian compositions like Peter and the Wolf, and other such works from the public domain. Only Ginsburg and Alito dissented from the rest of the Court and the Obama administration’s position on this law.

But what’s just as unsettling is what this tells us about today’s American government. Glenn Greenwald puts it very well:

The U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine. That is not hyperbole. Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient. And now here is Megaupload being completely destroyed—its website shuttered, its assets seized, ongoing business rendered impossible—based solely on the unproven accusation of Piracy.

Anthony Gregory is a former Research Fellow at the Independent Institute and author of the Independent books American Surveillance and The Power of Habeas Corpus in America.
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