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So who's going to jail for violating constitutional rights?

JumpCrisscross 3y ago
> who's going to jail for violating constitutional rights? Why does someone always have to go to jail? Just stop the program. Once it’s clearly illegal you can start adding to our list of incarcerated.
- doublerabbit 3y ago
  Why not both?
  - JumpCrisscross 3y ago
    > Why not both? Because if I do what my boss told me to do, what has been done for ages without consequence, and you’re going to pass a law putting me in jail for it, I will expend every effort to thwart it. If, on the other hand, you’re saying “stop it,” my give-a-shit factor is lower. The broader public is indifferent about the Fourth Amendment. Polling and elections and listening to phone calls from constituents shows this. Activating a concentrated mass of political energy against yourself, in this context, is not a bright idea. Also, it’s wild how cavalierly we’re willing to contemplate taking away someone’s freedoms in a conversation about other freedoms.
    - JoeAltmaier 3y ago
      This was supposed to be an important freedom; a pivotal one in fact. It deserves more protection than "oopsie! Ok we promise to stop violating the rights of untold thousands". I think it shows considerable restraint, to ask for the incarceration of a handful of offenders, compared to the flagrant abuse of the rest of everybody.
      - JumpCrisscross 3y ago
        > was supposed to be an important freedom It is. But that’s not how voters see it. Electorally, pushing for incarceration is a few steps behind “defund the police.”
    - some_furry 3y ago
      > Also, it’s wild how cavalierly we’re willing to contemplate taking away someone’s freedoms in a conversation about other freedoms. When someone abuses power and privilege in order to take away freedoms from the powerless, the powerless wanting to take away the freedoms of the powerful is to be expected. Even if you take this one capability away from the privileged and powerful, they will remain privileged and powerful. They've demonstrated a willingness to abuse their position to hurt others. In contrast with removing only one capability from their arsenal, it would be better if the abusers would also be stripped of their power and privilege for having abused one of said powers and privileges. That doesn't necessarily require incarceration, logically speaking. Sure, the wounded may feel better if it did, but the goal of policy in this situation isn't to please. But at least the individuals who violated constitutional rights are no longer trustworthy.
      - JumpCrisscross 3y ago
        > Even if you take this one capability away from the privileged and powerful, they will remain privileged and powerful I’m all for firing the people and banning them from public service. I just don’t see the benefit of putting them in jail. From their perspective, what they’re doing is legal. Moreover, it’s deeply precedented. And again, it’s a false economy. Threaten to put people in jail around a freedom that ranks low in voters’ minds and you’ll wind up with nothing.
        DangitBobby 3y ago
        I think our criminal justice system is overly punitive, but I see violating a fundamental right as much much worse than e.g. dealing drugs which I'd possibly spend years in jail for. Is spending years in jail for that reasonable? No. It's a mind bogglingly disproportionate punishment. But violation of fundamental rights is a heinous crime and I'd expect the punishment for it to be greater than the punishment for drug crime. Hence a call for jail time.
    - godelski 3y ago
      > Because if I do what my boss told me to do Because we have explicit laws set up that already say this isn't an excuse. If your boss tells you to rob his neighbor, that won't save you. If your boss tells you to drive drunk you'll still get arrested for drunk driving. The agency is yours. The question is if a reasonable person would know this a violation of the fourth amendment and I'm pretty confident the answer is definitively yes. And we're talking about cops, who are trained professionals. Who are supposed to be trained in the law. They should know more than a reasonable person. > The broader public is indifferent about the Fourth Amendment. You're confused. The broader public is jaded. They've given up hope after decades of abuse. Losing hope is not the same as being indifferent. Even ambivalent would be a better word but I'd still say jaded. We're tired. We're exhausted. Depressed. Worn out. But not indifferent.
- layer8 3y ago
  If no one risks going to jail, there is little incentive to stop the program.
- Analemma_ 3y ago
  This is precisely the logic behind qualified immunity: "you can only jail them if they knew it was illegal, otherwise they get a slap on the wrist and politely asked to stop". It sounds nice in theory, but the inevitable result in practice has been total immunity for all lawbreaking, because of a compliant court system which sets the bar for "should have known it was illegal" to be impossibly high. Maybe at one point before we knew this it was possible to argue for QI in good faith, but now we empirically know it's an unworkable standard and should be scrapped. Besides, civilians get the "ignorantia juris non excusat" [0] principle, and the rule of law means that everybody, including government officials and law enforcement, should be held to the same standard. [0]: https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat
tremon 3y ago
The journalists reporting on this are first in line.
twoodfin 3y ago
I don’t think under current Constitutional precedent a warrant is required to retrieve information exchanged with a third party voluntarily from that third party. Smith v. Maryland is probably the most relevant case: https://supreme.justia.com/cases/federal/us/442/735/ https://supreme.justia.com/cases/federal/us/442/735/
- salawat 3y ago
  Third Party Doctrine is the legal parlance to find more on it.
wutwutwat 3y ago
ha, that's a good one! Nobody. Here's an example of why that won't happen from another post awhile back: > The NSA has built a surveillance network that has the capacity to reach roughly 75% of all U.S. Internet traffic. > An internal NSA audit from May 2012 identified 2776 incidents i.e. violations of the rules or court orders for surveillance of Americans and foreign targets in the U.S. in the period from April 2011 through March 2012, while U.S. officials stressed that any mistakes are not intentional. > The FISA Court that is supposed to provide critical oversight of the U.S. government's vast spying programs has limited ability to do so and. > A legal opinion declassified on August 21, 2013, revealed that the NSA intercepted for three years as many as 56,000 electronic communications a year of Americans not suspected of having links to terrorism, before FISA court that oversees surveillance found the operation unconstitutional in 2011. https://en.m.wikipedia.org/wiki/2010s_global_surveillance_disclosures https://en.m.wikipedia.org/wiki/2010s_global_surveillance_di... This part right here: > it must trust the government to report when it improperly spies on Americans The courts told them to watch themselves and to self incriminate if they do crimez. An honor system. Which naturally, they did not snitch on themselves to the courts, because why would they.

> who's going to jail for violating constitutional rights? Why does someone always have to go to jail? Just stop the program. Once it’s clearly illegal you can start adding to our list of incarcerated.

doublerabbit 3y ago
Why not both?
- JumpCrisscross 3y ago
  > Why not both? Because if I do what my boss told me to do, what has been done for ages without consequence, and you’re going to pass a law putting me in jail for it, I will expend every effort to thwart it. If, on the other hand, you’re saying “stop it,” my give-a-shit factor is lower. The broader public is indifferent about the Fourth Amendment. Polling and elections and listening to phone calls from constituents shows this. Activating a concentrated mass of political energy against yourself, in this context, is not a bright idea. Also, it’s wild how cavalierly we’re willing to contemplate taking away someone’s freedoms in a conversation about other freedoms.
  - JoeAltmaier 3y ago
    This was supposed to be an important freedom; a pivotal one in fact. It deserves more protection than "oopsie! Ok we promise to stop violating the rights of untold thousands". I think it shows considerable restraint, to ask for the incarceration of a handful of offenders, compared to the flagrant abuse of the rest of everybody.
    - JumpCrisscross 3y ago
      > was supposed to be an important freedom It is. But that’s not how voters see it. Electorally, pushing for incarceration is a few steps behind “defund the police.”
  - some_furry 3y ago
    > Also, it’s wild how cavalierly we’re willing to contemplate taking away someone’s freedoms in a conversation about other freedoms. When someone abuses power and privilege in order to take away freedoms from the powerless, the powerless wanting to take away the freedoms of the powerful is to be expected. Even if you take this one capability away from the privileged and powerful, they will remain privileged and powerful. They've demonstrated a willingness to abuse their position to hurt others. In contrast with removing only one capability from their arsenal, it would be better if the abusers would also be stripped of their power and privilege for having abused one of said powers and privileges. That doesn't necessarily require incarceration, logically speaking. Sure, the wounded may feel better if it did, but the goal of policy in this situation isn't to please. But at least the individuals who violated constitutional rights are no longer trustworthy.
    - JumpCrisscross 3y ago
      > Even if you take this one capability away from the privileged and powerful, they will remain privileged and powerful I’m all for firing the people and banning them from public service. I just don’t see the benefit of putting them in jail. From their perspective, what they’re doing is legal. Moreover, it’s deeply precedented. And again, it’s a false economy. Threaten to put people in jail around a freedom that ranks low in voters’ minds and you’ll wind up with nothing.
      - DangitBobby 3y ago
        I think our criminal justice system is overly punitive, but I see violating a fundamental right as much much worse than e.g. dealing drugs which I'd possibly spend years in jail for. Is spending years in jail for that reasonable? No. It's a mind bogglingly disproportionate punishment. But violation of fundamental rights is a heinous crime and I'd expect the punishment for it to be greater than the punishment for drug crime. Hence a call for jail time.
  - godelski 3y ago
    > Because if I do what my boss told me to do Because we have explicit laws set up that already say this isn't an excuse. If your boss tells you to rob his neighbor, that won't save you. If your boss tells you to drive drunk you'll still get arrested for drunk driving. The agency is yours. The question is if a reasonable person would know this a violation of the fourth amendment and I'm pretty confident the answer is definitively yes. And we're talking about cops, who are trained professionals. Who are supposed to be trained in the law. They should know more than a reasonable person. > The broader public is indifferent about the Fourth Amendment. You're confused. The broader public is jaded. They've given up hope after decades of abuse. Losing hope is not the same as being indifferent. Even ambivalent would be a better word but I'd still say jaded. We're tired. We're exhausted. Depressed. Worn out. But not indifferent.
layer8 3y ago
If no one risks going to jail, there is little incentive to stop the program.
Analemma_ 3y ago
This is precisely the logic behind qualified immunity: "you can only jail them if they knew it was illegal, otherwise they get a slap on the wrist and politely asked to stop". It sounds nice in theory, but the inevitable result in practice has been total immunity for all lawbreaking, because of a compliant court system which sets the bar for "should have known it was illegal" to be impossibly high. Maybe at one point before we knew this it was possible to argue for QI in good faith, but now we empirically know it's an unworkable standard and should be scrapped. Besides, civilians get the "ignorantia juris non excusat" [0] principle, and the rule of law means that everybody, including government officials and law enforcement, should be held to the same standard. [0]: https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat

tremon 3y ago

The journalists reporting on this are first in line.

twoodfin 3y ago

I don’t think under current Constitutional precedent a warrant is required to retrieve information exchanged with a third party voluntarily from that third party. Smith v. Maryland is probably the most relevant case: https://supreme.justia.com/cases/federal/us/442/735/ https://supreme.justia.com/cases/federal/us/442/735/

salawat 3y ago
Third Party Doctrine is the legal parlance to find more on it.

wutwutwat 3y ago

ha, that's a good one! Nobody. Here's an example of why that won't happen from another post awhile back: > The NSA has built a surveillance network that has the capacity to reach roughly 75% of all U.S. Internet traffic. > An internal NSA audit from May 2012 identified 2776 incidents i.e. violations of the rules or court orders for surveillance of Americans and foreign targets in the U.S. in the period from April 2011 through March 2012, while U.S. officials stressed that any mistakes are not intentional. > The FISA Court that is supposed to provide critical oversight of the U.S. government's vast spying programs has limited ability to do so and. > A legal opinion declassified on August 21, 2013, revealed that the NSA intercepted for three years as many as 56,000 electronic communications a year of Americans not suspected of having links to terrorism, before FISA court that oversees surveillance found the operation unconstitutional in 2011. https://en.m.wikipedia.org/wiki/2010s_global_surveillance_disclosures https://en.m.wikipedia.org/wiki/2010s_global_surveillance_di... This part right here: > it must trust the government to report when it improperly spies on Americans The courts told them to watch themselves and to self incriminate if they do crimez. An honor system. Which naturally, they did not snitch on themselves to the courts, because why would they.