4 ms·

I agree on the importance of the rule of law in criminal investigations. I just wanted to point out, from a bird's eye perspective, the silliness of this situat

by rtl49 11y ago

I agree on the importance of the rule of law in criminal investigations. I just wanted to point out, from a bird's eye perspective, the silliness of this situation. Because of the rigid insistence on legal standing, the only way to curtail the FAA on this issue is to release a person who has displayed a tendency for mass violence. It would seem that there should be a better way to organize our legal system so society isn't faced with dilemmas of this sort.

AnthonyMouse 11y ago
> Because of the rigid insistence on legal standing, the only way to curtail the FAA on this issue is to release a person who has displayed a tendency for mass violence. You're seeing an interaction between two rather unintuitive rules. Standing is required because legislature is supposed to make the law, not the courts. The courts only "make law" when they're forced to because there is already a "case or controversy" and it has to be decided under the law in effect when the events occurred, not whatever Congress might decide to pass tomorrow. Only then do the courts decide what the ambiguous, vague, contradictory text Congress passed actually means. Then that decision stands as precedent and effectively becomes the law until the legislature disagrees in the form of passing contrary legislation (or a constitutional amendment). But the thing you're really objecting to is the exclusionary rule. Letting bad people go free is the mechanism by which the exclusionary rule operates, because it's something the police don't want, which means it can be used as punishment for the police when they break the rules. The exclusionary rule is weird. When you see it in operation your instinct is to think that something is malfunctioning, but that's how it's supposed to work. You think it isn't working because you want the same thing as the police and its method of operation is to do something the police don't want. The problem is the exclusionary rule does what it's designed to do surprisingly well in practice, and the alternatives don't.
- rtl49 11y ago
  As usual, perhaps I have not made myself clear. And before I go further, I should clarify that I've only taken one law school class, and I am not a lawyer. The issue I'm referring to is that no one is in a position to challenge this component of the FAA without demonstrating that they personally have sustained harm, meaning their rights as an individual have been violated. In other words, the issue is that there must be a "case or controversy" to test a legal hypothesis. If there were a means of challenging the constitutional validity of a law, or an interpretation of the law, without the burden of proving that one has personally sustained harm, then the public would be able to challenge this component of the FAA in situations other than one where a possibly dangerous person stands a chance of being released. I think few would be prepared to argue his case were it not for its legal significance. Correct me if I'm mistaken; you seem to be more educated on the subject.
  - AnthonyMouse 11y ago
    You're not actually arguing against the standing rule. If the government is violating your constitutional rights then you have standing. The problem is you may not be able to prove it. The government could have trivially helped everyone out simply by admitting that they're spying on all these people, and then the issue could have been decided before it was important to a real criminal case, under circumstances where nobody bad is let out of prison if the government loses. But then the person whose rights are violated in the deciding case ends up being a highly sympathetic journalist or civil rights leader instead of some highly unsympathetic terrorist wannabe. The government doesn't want that (because they don't want to lose), so instead they purposely try to force the situation in which bad people go free if the courts rule against the government.
- dnr 11y ago
  Right, and if it were possible for a "good person" to prove that they have been the target of illegal surveillance, they would have standing and they could challenge the law without creating any unfortunate situations. The problem is that by the nature of surveillance and what the government does with the results (uses the tastiest bits as evidence and hides the rest), only "bad people" will ever be able to prove that they were the target of illegal surveillance. Thus the unfortunate situation.
- SapphireSun 11y ago
  Side note: If the exclusionary rule was a punishment, it's a rather bad one as it allows police to toe right up to the line and if they cross it the worst they get is they lose the piece of evidence they wanted. It's merely a bright line that encourages a muscular police force to toe right up to the boundary. If police were punished (e.g. fined, fired, jailed, lose the entire case, etc) for violating someone's constitutional rights, they would go nowhere near the line.
  - makomk 11y ago
    The problem with jailing the police is that the prosecutors who'd have to file charges against them are on the same side as them and have an interest in encouraging them to push the rules. We can barely get charges filed against police officers who kill someone in cold blood a lot of the time, what chance do we stand of doing the same over minor things like constitutional violations?
    - DennisP 11y ago
      So we need a different set of prosecutors for going after abusive police.

by rtl49 11y ago

AnthonyMouse 11y ago

> Because of the rigid insistence on legal standing, the only way to curtail the FAA on this issue is to release a person who has displayed a tendency for mass violence. You're seeing an interaction between two rather unintuitive rules. Standing is required because legislature is supposed to make the law, not the courts. The courts only "make law" when they're forced to because there is already a "case or controversy" and it has to be decided under the law in effect when the events occurred, not whatever Congress might decide to pass tomorrow. Only then do the courts decide what the ambiguous, vague, contradictory text Congress passed actually means. Then that decision stands as precedent and effectively becomes the law until the legislature disagrees in the form of passing contrary legislation (or a constitutional amendment). But the thing you're really objecting to is the exclusionary rule. Letting bad people go free is the mechanism by which the exclusionary rule operates, because it's something the police don't want, which means it can be used as punishment for the police when they break the rules. The exclusionary rule is weird. When you see it in operation your instinct is to think that something is malfunctioning, but that's how it's supposed to work. You think it isn't working because you want the same thing as the police and its method of operation is to do something the police don't want. The problem is the exclusionary rule does what it's designed to do surprisingly well in practice, and the alternatives don't.

rtl49 11y ago
As usual, perhaps I have not made myself clear. And before I go further, I should clarify that I've only taken one law school class, and I am not a lawyer. The issue I'm referring to is that no one is in a position to challenge this component of the FAA without demonstrating that they personally have sustained harm, meaning their rights as an individual have been violated. In other words, the issue is that there must be a "case or controversy" to test a legal hypothesis. If there were a means of challenging the constitutional validity of a law, or an interpretation of the law, without the burden of proving that one has personally sustained harm, then the public would be able to challenge this component of the FAA in situations other than one where a possibly dangerous person stands a chance of being released. I think few would be prepared to argue his case were it not for its legal significance. Correct me if I'm mistaken; you seem to be more educated on the subject.
- AnthonyMouse 11y ago
  You're not actually arguing against the standing rule. If the government is violating your constitutional rights then you have standing. The problem is you may not be able to prove it. The government could have trivially helped everyone out simply by admitting that they're spying on all these people, and then the issue could have been decided before it was important to a real criminal case, under circumstances where nobody bad is let out of prison if the government loses. But then the person whose rights are violated in the deciding case ends up being a highly sympathetic journalist or civil rights leader instead of some highly unsympathetic terrorist wannabe. The government doesn't want that (because they don't want to lose), so instead they purposely try to force the situation in which bad people go free if the courts rule against the government.
dnr 11y ago
Right, and if it were possible for a "good person" to prove that they have been the target of illegal surveillance, they would have standing and they could challenge the law without creating any unfortunate situations. The problem is that by the nature of surveillance and what the government does with the results (uses the tastiest bits as evidence and hides the rest), only "bad people" will ever be able to prove that they were the target of illegal surveillance. Thus the unfortunate situation.
SapphireSun 11y ago
Side note: If the exclusionary rule was a punishment, it's a rather bad one as it allows police to toe right up to the line and if they cross it the worst they get is they lose the piece of evidence they wanted. It's merely a bright line that encourages a muscular police force to toe right up to the boundary. If police were punished (e.g. fined, fired, jailed, lose the entire case, etc) for violating someone's constitutional rights, they would go nowhere near the line.
- makomk 11y ago
  The problem with jailing the police is that the prosecutors who'd have to file charges against them are on the same side as them and have an interest in encouraging them to push the rules. We can barely get charges filed against police officers who kill someone in cold blood a lot of the time, what chance do we stand of doing the same over minor things like constitutional violations?
  - DennisP 11y ago
    So we need a different set of prosecutors for going after abusive police.