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""If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR. Of course, that's kin

by sedev 15y ago

""If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR. Of course, that's kind of the point." I have to echo Ars there: that's the damn point. I'd like that lawyer fired and pilloried for making such a gobsmackingly idiotic statement. "Innocent until proven guilty" is far superior to the Napoleonic-law opposite, and I can't muster any sympathy for US law enforcement agencies until at the very least they stop enforcing corporate policy over law and face some accountability for how often they shoot and kill citizens.

ggchappell 15y ago
I agree with your basic point; however, I think we can and should leave the emotional arguments out of this particular issue. The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated. If no law enforcement agency enforces corporate policy over individual rights, do they all then get the right to invade privacy without a warrant? No, they don't. My "should" above, is because it leads to polarization. Lots of people are not sympathetic to police, but lots of people are, and we don't want to nudge the latter in the direction of downplaying constitutional safeguards. In my ideal world, law enforcement would never violate the standards they are bound by, and everyone would say, "I am sympathetic toward law enforcement agencies." And everyone would also say, "I do not grant them the right to invade privacy without a duly issued warrant."
- sedev 15y ago
  I think that your clarification and amplification is a very good one overall, but I have a disagreement. "The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated." However, that's clearly not the only thing that they're bound by: there's an evolving discourse of law, and it's especially evident in the FBI lawyer's statement that many in the law enforcement community have a fundamental conflict - that they want to be Judge Dredd, not Sergeant Joe Friday. Law enforcement officers are bound by multiple and conflicting directives, and that means that they have no choice but to choose, to exercise discretion about which of those is most important. That's normal for most professions, but I argue that we should hold to far higher standards the people who get to legally use force. My favorite example is micro-scale: speeding isn't actually very dangerous among the things you can get ticketed for while driving, but it makes up the lion's share of the tickets handed out because it's easy to enforce. You can point to a specific number from a mechanical device and say "there: that proves that this person was speeding." Other driving behaviors, often more dangerous, can't be so directly quantified, and so are more of a pain in the ass to enforce - and are enforced less. The conflicting directives result in a sub-optimal outcome. Law enforcement officers in the US are not bad people: they're normal people, like you'd expect. The problem is that when you give normal people power without accountability, evil results. As the FBI shows in the linked article, they vigorously resist any effort at making them accountable - which is why it's so critical to heap on the accountability. Further, bringing me back to agreeing with you, the standards that they're bound by and accountable to, should be as clear as possible. The fuzz in the directives is part of the expanding power of law enforcement agencies, and we should acknowledge and actively work to counter that tendency towards expanding power without expanding accountability.
  - newman314 15y ago
    Some law enforcement officers are not bad people. FTFY. Just like some of the general populace are not bad people. Given that the police is a profession that enables the use of deadly force, they absolutely need to be held to higher standards. But at the same time, it's almost a fundamentally flaw premise. Look at it this way, police have incentive for crime to continue (hence the neverending war on drugs). It allows them to get paid more, argue for more budget etc. Unfortunately, expanding accountability at this point is far too little too late as organizations have been pretty much doing whatever they want in the name of security (Exhibit A: TSA). The system really needs a major reset in order to get back some semblance of actual balance.
- mindslight 15y ago
  Except once you're in their sites, "law" enforcement agencies are basically paid to casually ruin your life as their day job, while you must expend considerable money and time to even defend yourself - never mind the other damages they cause without recourse. When the innocent victims of their antics are fully compensated as a matter of course (ie they stop externalizing the costs of their overzealousness), then perhaps said agencies will be worthy of respect.
smokeyj 15y ago
I think it's clear the Constitution is a threat to national security and must be abolished for the sake of safety.
lmkg 15y ago
> I'd like that lawyer fired and pilloried for making such a gobsmackingly idiotic statement. Like it or not, ours is an adversarial legal system. To a first approximation, this case is an issue of civil liberties vs security, and as a lawyer representing the side of security, it's his responsibility to stand up for security. I agree with the ACLU's position on this matter 100%, but I don't fault the lawyer for stating that position. Security is one of the several, contradictory responsibilities in the Constitution[1], along with personal liberties. It's something the government is supposed to ensure, and it's not wrong for a lawyer to mention the potential repercussions of a ruling towards their ability to fulfill that responsibility. Now, if it were a judge making that statement, I'd flip my shit. It's a judge's duty to balance the competing concerns, and it's the lawyers' place to advocate for one or the other. The lawyer did his job, stating the resultant effect on the issue he was advocating. And the judge did his job, deciding that despite that result, other competing concerns were more important. [1] For a partial list of such responsibilities, check the Preamble to the Constitution, which enumerates at least 6: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
- Drbble 15y ago
  Note: the FBI lawyer is representing the FBI, not "security".
- wisty 15y ago
  Well then, have the CIA and NSA run black ops, and don't tell anyone about it. (Or, exchange intelligence with allies if they run black ops in the US, because the CIA and NSA can't spy on American soil ... assuming this doesn't already happen). As long as they keep everything top secret, except when they stumble on something big (then tip off the FBI), who's going to complain?

by sedev 15y ago

ggchappell 15y ago

I agree with your basic point; however, I think we can and should leave the emotional arguments out of this particular issue. The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated. If no law enforcement agency enforces corporate policy over individual rights, do they all then get the right to invade privacy without a warrant? No, they don't. My "should" above, is because it leads to polarization. Lots of people are not sympathetic to police, but lots of people are, and we don't want to nudge the latter in the direction of downplaying constitutional safeguards. In my ideal world, law enforcement would never violate the standards they are bound by, and everyone would say, "I am sympathetic toward law enforcement agencies." And everyone would also say, "I do not grant them the right to invade privacy without a duly issued warrant."

sedev 15y ago
I think that your clarification and amplification is a very good one overall, but I have a disagreement. "The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated." However, that's clearly not the only thing that they're bound by: there's an evolving discourse of law, and it's especially evident in the FBI lawyer's statement that many in the law enforcement community have a fundamental conflict - that they want to be Judge Dredd, not Sergeant Joe Friday. Law enforcement officers are bound by multiple and conflicting directives, and that means that they have no choice but to choose, to exercise discretion about which of those is most important. That's normal for most professions, but I argue that we should hold to far higher standards the people who get to legally use force. My favorite example is micro-scale: speeding isn't actually very dangerous among the things you can get ticketed for while driving, but it makes up the lion's share of the tickets handed out because it's easy to enforce. You can point to a specific number from a mechanical device and say "there: that proves that this person was speeding." Other driving behaviors, often more dangerous, can't be so directly quantified, and so are more of a pain in the ass to enforce - and are enforced less. The conflicting directives result in a sub-optimal outcome. Law enforcement officers in the US are not bad people: they're normal people, like you'd expect. The problem is that when you give normal people power without accountability, evil results. As the FBI shows in the linked article, they vigorously resist any effort at making them accountable - which is why it's so critical to heap on the accountability. Further, bringing me back to agreeing with you, the standards that they're bound by and accountable to, should be as clear as possible. The fuzz in the directives is part of the expanding power of law enforcement agencies, and we should acknowledge and actively work to counter that tendency towards expanding power without expanding accountability.
- newman314 15y ago
  Some law enforcement officers are not bad people. FTFY. Just like some of the general populace are not bad people. Given that the police is a profession that enables the use of deadly force, they absolutely need to be held to higher standards. But at the same time, it's almost a fundamentally flaw premise. Look at it this way, police have incentive for crime to continue (hence the neverending war on drugs). It allows them to get paid more, argue for more budget etc. Unfortunately, expanding accountability at this point is far too little too late as organizations have been pretty much doing whatever they want in the name of security (Exhibit A: TSA). The system really needs a major reset in order to get back some semblance of actual balance.
mindslight 15y ago
Except once you're in their sites, "law" enforcement agencies are basically paid to casually ruin your life as their day job, while you must expend considerable money and time to even defend yourself - never mind the other damages they cause without recourse. When the innocent victims of their antics are fully compensated as a matter of course (ie they stop externalizing the costs of their overzealousness), then perhaps said agencies will be worthy of respect.

smokeyj 15y ago

I think it's clear the Constitution is a threat to national security and must be abolished for the sake of safety.

lmkg 15y ago

> I'd like that lawyer fired and pilloried for making such a gobsmackingly idiotic statement. Like it or not, ours is an adversarial legal system. To a first approximation, this case is an issue of civil liberties vs security, and as a lawyer representing the side of security, it's his responsibility to stand up for security. I agree with the ACLU's position on this matter 100%, but I don't fault the lawyer for stating that position. Security is one of the several, contradictory responsibilities in the Constitution[1], along with personal liberties. It's something the government is supposed to ensure, and it's not wrong for a lawyer to mention the potential repercussions of a ruling towards their ability to fulfill that responsibility. Now, if it were a judge making that statement, I'd flip my shit. It's a judge's duty to balance the competing concerns, and it's the lawyers' place to advocate for one or the other. The lawyer did his job, stating the resultant effect on the issue he was advocating. And the judge did his job, deciding that despite that result, other competing concerns were more important. [1] For a partial list of such responsibilities, check the Preamble to the Constitution, which enumerates at least 6: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Drbble 15y ago
Note: the FBI lawyer is representing the FBI, not "security".
wisty 15y ago
Well then, have the CIA and NSA run black ops, and don't tell anyone about it. (Or, exchange intelligence with allies if they run black ops in the US, because the CIA and NSA can't spy on American soil ... assuming this doesn't already happen). As long as they keep everything top secret, except when they stumble on something big (then tip off the FBI), who's going to complain?