Under the Patriot Act, executive power has been increased dramatically. The justification for this expansion has been the need to preserve a unitary executive branch which can efficiently and expeditiously act in matters of national security.
There can be little argument about whether executive powers have been increased. The existence of 30,000 National Security Letters which have been used to demand records testifies to this increase. The usefulness of the data obtained by these methods is another matter. The executive branch has reserved the right to keep this information from Congress and the courts. In a signing statement which accompanied the reauthorization of the Patriot Act on March 9, 2006, the President said,"'The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information . . . ".
This signing statement effectively nullifies the provisions that were included, which demanded reports by the executive branch to Congress regarding the use of the Act. If a court challenge was contemplated, it would be difficult for Congress to even know which documents to demand. The targets of surveillance under the Act would have sufficient standing to challenge these methods in court, except that these targets do not know that they are targets, because of the secrecy and gag orders that have been imposed.
At the present time, there is no shared responsibility between the three branches of government regarding Patriot Act provisions. The executive branch has assumed sole power and responsibility for actions taken in the war against terrorism. The success or failure of these actions may never be known and there is no means to independently determine the necessity for these actions. Critical feedback and independent evaluation are elements missing from the implementation of the Patriot Act and this is largely due to the assumption of new powers by the executive branch. It is reasonable to think that the lack of knowledgeable coordination between governmental branches may actually be hindering progress in the war on terror. It may be impossible for future generations to strip the executive branch of these powers, but they need not be granted any further ones.