Abuse Of Power: Laws Should Be Designed As If The People We Distrust The Most Are In Power
from the thinking-this-through dept
There have been a few stories lately that have all combined to make a few key points crystallize in my mind, concerning various legal powers and the way that some people view them. It starts with an excellent article from Trevor Timm in which the title lays out the issue: Imagine Obama’s national security policies in Trump’s hands. After all, this is the guy who hasn’t been shy in promising to settle scores if he’s elected.
Trump?s abhorrent daily pronouncements about what he would do as president come at such a rate that we have become numb to them. We?ve lost count of the amount of times he?s claimed he?ll bring back waterboarding, or some forms of torture that are ?so much worse? (something that would constitute a war crime). Or that he?ll not only kill terrorists, but members of their families as well ? another war crime. (After some backlash for these statements, Trump claimed on Friday that he would still ?obey the law?.)
Trump?s list of enemies could make Nixon, who saw no problem in using the NSA to spy on American dissidents and his political opponents, look tame in comparison. While one of the NSA?s mass surveillance programs was curtailed (but not eliminated) by the USA Freedom Act, there remain myriad programs that touch on vast numbers of Americans? communications. The FBI still has carte blanche to look at NSA?s international intercepts for Americans caught up in its net, and just last week the New York Times reported that the NSA plans to remove key privacy protections from much of its surveillance data, so that it can be shared with other federal agencies without any administrative protections. Are these the types of powers we want in the hands of a Trump administration?
But the larger point of Timm’s piece is not so much to freak out about a potential Trump presidency, but rather to highlight the ridiculous hypocrisy of basically every Presidential administration and their own party apparatus and supporters, who freak out about certain laws and powers when the other guy is in power, but gleefully make use of them when they are in power. It’s the sort of “benevolent dictator” fallacy, in which people think that it’s okay for them to make use of these laws, because surely “my guy” or “my team” won’t abuse them and only use them for good purposes. But everyone thinks that — and eventually the people in power won’t be your team. In fact, it may be people who scare you.
Take, for example, the issue of extrajudicial executions via drones (“murder from the sky”). The Obama administration embraced this strategy gleefully, after it was started by the previous administration of George W. Bush. However, once Obama came into power it was expanded massively with no public debate or discussion and, importantly, with no guidelines for how and when it could be used. In fact, somewhat ridiculously underlining the point of this very post, during the heat of the 2012 campaign, when there was a chance that Mitt Romney might beat Obama in the election, the Obama administration finally put together “explicit rules” that would limit when Presidents could use drones to murder people. But once Romney lost, the administration suddenly lost interest in those guidelines. And while a few rules were eventually put in place, they seem to be arbitrarily applied.
This is just one example of why our laws should be designed to function as if the people we trust least are in power. Because eventually, the other side will be in power. And for all the trust you had in your team, think about how someone you don’t trust might use it.
And we have plenty of examples of this. Just this weekend, the NY Times had an article about how South Korea has been aggressively using defamation laws to crack down on government dissent:
Last year, the United Nations Human Rights Committee warned against South Korea?s ?increasing use of criminal defamation laws to prosecute persons who criticize government action.? Freedom House, a rights group based in Washington, criticized ?the increased intimidation of political opponents? under Ms. Park, who took office in 2013.
?The government is especially sensitive about defending the personal reputation of the president,? said Park Kyung-sin, a professor of law at Korea University who has researched the issue.
This is the same South Korea that just embraced a right to be forgotten concept. Just think how that might be abused as well.
And think about South Korea when you hear Donald Trump talk about “opening up” defamation laws.
And, of course, this can apply to lots of other concepts as well. There’s been a big push around the world for laws against “hate speech” — which, in a vacuum, may sound like a good thing. However, what may sound like a good thing, if you assume that “hate speech” will be defined in a reasonable manner, can sound quite different in other contexts. As we’ve noted, historically, hate speech laws are used most frequently as a way for governments to punish people they don’t like. And, just to drive this point home, look at how some people have been claiming that Mitt Romney’s anti-Trump speech last week was a form of hate speech:
reminder to people who support hate speech bans: you never know who will be in charge of defining hate speech pic.twitter.com/eVhvmFIi8Z
— Sarah McLaughlin (@sarahemclaugh) March 3, 2016
And of course, there’s the big debate over encryption and whether or not Apple should be forced to provide the DOJ with the tools to hack its own systems. Are you really comfortable with that kind of power — to force companies to hack into systems, to do forced updates that secretly remove security features — in the hands of a President who has stated that those who disagree with him need “to be very careful”?
There are lots of reasons why we should be careful in passing laws — including potential unintended consequences. But, even more to the point, we should be concerned about how those laws will be used by the people we trust the least. Because these are not theoretical concerns we’re talking about. And it’s distressing that those in power always seem to argue along with this when they’re not in power, but forget it when they are. Remember how the Democrats dropped civil liberties from their official platform in 2012 after being a big part of the platform in 2008? I wonder why…
So, yes, perhaps the example of a possible Trump victory makes this clearer for some:
Guantanamo Bay prison, a symbol of torture and indefinite detention which should have been closed years ago, remains open. While Obama still says he wants to close it, his administration has enshrined the concept of indefinite detention into our system, and no matter who is president next has the opportunity to exploit that. Trump has vowed to expand Guantanamo, and according to a leaked memo obtained by CNN, his campaign even said he would detain American Isis ?sympathizers? (whatever that means). This would of course be illegal and unconstitutional in a variety of ways, but given that Gitmo remains open and the last two administrations have faced no consequences for their unprecedented policies, how far could Trump go before he?s stopped?
But it should be a concern for everyone, even when their own friends are in power. Because we should always design laws in a manner that we’ll still respect and trust in them even if the people we distrust the most are using them.
Filed Under: abuse of power, copyright, defamation, donald trump, encryption, laws, politics, power
Comments on “Abuse Of Power: Laws Should Be Designed As If The People We Distrust The Most Are In Power”
You may have the problem that law enforcement decide to accept any power he grants them, and ignore the courts.
Plan for the worst to keep it from happening
In the same way that when creating encryption the only reasonable assumption is that the enemy has everything but the ‘key’, laws should be written under the assumption that your worst enemy will be in a position to make full use of it the second the vote is over and it enters the books.
If you wouldn’t feel comfortable or safe having your worst enemy in possession of the power and authority you’re about to create that’s a pretty good indication that you shouldn’t be created it in the first place, because eventually they will get it, and they will make use of it.
Re: Plan for the worst to keep it from happening
One of the worst things that could happen to us is not a question of if, but when. The Sun will eventually die. I can imagine Trump, or someone like him issuing an Executive Order for it to NOT die, and expecting it to comply.
Meanwhile they will argue about moving out of the neighborhood because look at all those assets we would no longer have.
My team
And to what extent are we naive about what our team does. Does information have to “leak” for citizens to know?
I have an immense gratitude to the heroes that risk everything to let us citizens know and help save the democracy!
Re: My team
oh, we’re saving it now, are we ? ? ?
i thought we were just whistling past the graveyard…
Enforcement
No argument with the premise, but who the hell are we going to get to enforce such laws, should we be able to actually get them enacted?
It’s funny to me how this is posed as a hypothetical.
I thought the people we distrusted the most already were in power.
People seem to be unable to look past their own bellybutton generally speaking. If you are Republican during Bush era you could say “no, I trust the Government, abuses will not happen with this broadly written, unconstitutional law because our President is awesome” and then have it come back right in your face as the Democrat Obama greatly expands and thoroughly abuses these mechanisms. Or you can be the Democrat saying there’s no way the Govt will abuse these unconstitutional, almost absolute powers because Obama is black and is our bro or something” and then comes Trump and.. You got the point. Even if your team is all good and winning you should expect the next to be the exact opposite. Because if you prepare to the worst case you’ll be safe at any point.
Or you can be one of those whatevers, average_joes etc of the world and live in denial until they come for you.
Re: Re:
Wow, what an ignorant collection of insults. Low by even your meager standards!
What you need to understand is many, many laws are found to be unconstitutional. Constitutional challenges are almost a part of the process in the US because the country runs on a set of bizarre absolutes set by hundreds of years of marginal SCOTUS rulings. It’s why a woman can only just barely get an abortion (in some states) but almost everyone can carry a handgun. Yet, every year laws are enacted against both of these things and generally SCOTUS ends up shutting them down at some point.
Politicians aren’t elected to manage. They are elected because of their platforms, which really is an agenda. They will do whatever they can to meet that agenda. That often means crafting and passing laws that they either know won’t hold up to a constitutional challenge, or at least they are sure there will be a huge challenge over them.
The real fault lays with the electorate who continue to elect and re-elect the same bums to office. They keep sending back the same congress critters and then expect them to do something other than what they have been doing for the last 30 years. They knowingly vote for people who don’t respect the rights of others, because they ideas meet up with those of their particular god or diety and the mystical writings from 2000 years ago.
I tend to disagree with Mike’s premise here. There is no designing laws for anything if you keep sending the wrong people to do the job. They won’t write laws to make it harder for themselves to get what they want. The US is so screwed up now that it’s almost impossible to pass a budget, elect a judge, or get anything done. Even if a law passes, certain groups will push to “defund” things so that they cannot be applied. Expecting these people to write laws restrictive of their own power is stuff that Cheech and Chong might have come up with in a movie.
Re: Re: Re:
I gave you an Insightful vote despite your petty baiting of Ninja because you happen to be right about this; the people need to become more engaged instead of trotting out to vote every few years, then slouching back to their sofas to watch Honey Boo Boo, or whatever other tripe entertains them.
Re: Re: Re:
“They will do whatever they can to meet that agenda”
Hahahahahaha – what a gullabull
“The real fault lays with the electorate “
Bullshit – some choice the electorate has, doesn’t matter who it is still all your fault. I did not request those assholes to be corrupt mofos.
Drones
> Take, for example, the issue of extrajudicial executions
> via drones (“murder from the sky”). The Obama
> administration embraced this strategy gleefully, after it
> was started by the previous administration of George W.
> Bush.
How in the hell was this started by George Bush? We’ve been bombing enemy targets from the air since the invention of military aircraft, for gawd’s sake.
There is *no* legal or moral difference in dropping a bomb on the enemy via drone than there is dropping that same bomb on that same enemy from a fighter plane. The only difference is where the pilot is sitting when it happens, and that has zero relevance to the operation’s legality or morality.
A bombing sortie on the enemy conducted via F-16 doesn’t suddenly become “murder from the sky” when done via drone.
And yes, operations conducted in the theater of combat are by definition extrajudicial. That’s hardly the bad thing your tone implies. The last thing we need or want is our military commanders hamstrung by having to run to a judge to plead their case and get a warrant before being able to strike an enemy target. And more to the point, such silliness is required nowhere in the Constitution. The judiciary has *no* place whatsoever in military combat operations.
Re: Drones
“The only difference is where the pilot is sitting when it happens, and that has zero relevance to the operation’s legality or morality.”
I strongly disagree, but the ethical connection is not direct. I think like this: one of the things that helps to limit levels of aggression that are unethical is the expense of conducting that aggression. Drones dramatically reduce that expense, which means that one of the factors encouraging military restrain is reduced or eliminated.
Unless restraint can be restored in some other way, drones just make the use of force too cheap, easy, and invisible to the American people. So the use of that technology in the current circumstance encourages bad behavior. So it is unethical.
Re: Re: Drones
Re: Re: Re: Drones
Okay, fine, but at least attack the correct targets, leave civilians alone!
Re: Re: Re: Drones
Yes, war is unfair. That’s why there are a minimum of rules, including declaring actual war on a country before killing people there. It doesn’t matter how justified you feel.
In this case, US tasks about “war on terrorism”, which is not really war in the legal sense, then goes around killing people, terrorists and civilians alike. That is – or would be if anyone bothered suing the US government – a war crime quite similar to what terrorist do.
When your actions are so very similar to your enemies’, you can’t argue morals, human rights or whatever. You’re only allowed to pretend at fighting for survival… In which case morals don’t apply, but the international rules still do. At least when you’re not one of the most dangerous countries on earth.
Re: Drones
I agree with your analysis of the lack of legal or moral difference between an airplane with a pilot aboard and a drone. There is none.
There is a problem assuming drone strikes and some of our other current overseas campaigns as being classified as war. Just because some spin doctor slaps the ‘war’ moniker on something does NOT make it a war. War needs to be declared by Congress. Because certain of our current enemies are not sovereign nations makes it difficult to declare that war, from a constitutional view point.
That lack of war declaration by Congress is exactly what puts these ‘murders from the sky’ in judges laps. And not secret courts like FISA, which is an abomination along with all the secret concepts that support it and other atrocities of our government. And accusations do not make for probable cause. Nor is collateral damage an acceptable loss.
Re: Drones
Obama used it against a U.S.citizen. Bush never did.
Re: Re: Drones
Re: Re: Re: Drones
I couldn’t give a good goddam what passport they are carrying.
Neither could Trump.
Re: Re: Re:2 Drones
Re: Re: Re: Drones
Nope, your right do not disappear just because you left the country.
You are advocating a police state where government gets to just make up any reason they want to murder you while telling the “Concerned Citizens” some fucking made up lie.
I hope you get Droned as a terrorist the next time you make a trip abroad… maybe you would get it then… but then you would be dead wasting the lesson. Hopefully that lesson teach another fucking idiot like yourself that trusting a governments word on which citizen is worthy of death or not should be something decided in the courts, not a made up battlefield.
Re: Re: Re:2 Drones
Nope, your right do not disappear just because you left the country.
The courts disagree with you. Their opinion probably carries more weight than yours.
Re: Re: Re:3 Drones
The courts were not consulted. That’s what the perpetual “states of emergency” the U.S. government coquettes with are for.
Re: Re: Re:2 Drones
Re: Re: Re: Drones
You don’t want to be droned from the sky while you’re sitting with ISIS in a trailer in California plotting how to kill your fellow Americans? There’s an absolutely foolproof way to keep that from ever happening to you: Don’t go to California and sit in a trailer with ISIS and plot how to kill your fellow Americans.
Re: Re: Re:2 Drones
Posse comitatus.
Re: Re: Re:3 Drones
Posse comitatus.
National Guard.
Homeland Security.
Re: Re: Drones
no worries Bush has been charged with war crimes for other stuff
Re: Drones
…The last thing we need or want is our military commanders hamstrung by having to run to a judge to plead their case and get a warrant before being able to strike an enemy target…
While this is a sensationalized scenario the US military has been hamstrung over the years by “rules of engagement” issued by political leadership clueless as to the purpose of a military force.
If the decision is made to deploy a military force the political leadership needs to understand what that force can do, and more importantly, what it cannot do. As an example the US Vietnam campaign had lots of tactical successes but the overall strategic objective turned into a failure not only due to poor understanding but also due to failure to sell the American people on the need and reason(s). The US failed hostage rescue in Iran was not only due to lack of capable equipment (helicopters specifically) but also due to failure to allow the force to train as one due to political leadership’s insistence on ‘operational security’; there can be too much security. On the other hand the Grenada and Desert Storm operations are examples of clear objectives and clear understanding of what the military can and cannot do, plus the political leadership was ‘hands off’ once operations started.
And don’t get me started about Lebenon. Ordering troops to patrol with unloaded weapons goes beyond stupid.
Re: Drones
This isn’t about war. It’s about actions outside of a declared war. That’s the problem
Re: Re: Drones
Re: Drones
The last thing we need or want is our military commanders hamstrung by having to run to a judge to plead their case and get a warrant before being able to strike an enemy target.
Or the police. Remember, enemies can be inside US borders as well. We don’t want to hamstring the brave police that are putting their lives on line in the war on terrorism, do we? Terrorist should be killed wherever they are found.
Re: Re: Drones
More fun when those dropping the bombs are the same ones that define what a terrorist is. be it a political opponent, a protester or a violent individual.
Re: Re: Drones
Re: Re: Re: Drones
“Posse comitatus.”
What about it?
Trust = Broken
Wherever a given system of checks and balances (e.g., separation of powers, accrual accounting, encryption protocols, etc.) at any point relies solely on trust, it is by definition, broken.
Trust in personal relationships is at the individuals discretion. However, if your bank, merchant, or government is requiring that you trust them, you can be certain the system they are using is broken and ripe for abuse.
Well I’m glad at least the the alternative to Trump from the other party is someone we can trust completely!!
you have heard of regulatory capture
Perhaps (it appears so), that we also have executive capture. As soon as a new president is sworn into office, things change immediately
after the new president is debriefed.
I suspect the US is being controlled via
nuclear blackmail.
Unfortunately even those that AREN’T in power will still vote to give power to their enemies in hopes that eventually they’ll have the power and be able to use it for themselves.
This is why the founding fathers hated political parties. The president would have MUCH less power if legislators with no hope of becoming president themselves didn’t still have a stake in who was. Unfortunately, the founders had no idea WHY parties formed and so did nothing to prevent them from forming or accommodate their existence, and ended up forming parties before the ink was dry on the Constitution.
Soo...
After the likes of Bush & now Obama… we are talking about this because of Trump?
It looks like We American would rather be republican or democrat and NOT American.
This is what George Washington warned about and will be what destroys America.
Dear American fucktards, you will trust this kind of power with either Bush or Obama but become afraid if Trump gets into power?
The president is not the fucking king! This is a sign that far, far too many people know nothing about how the American government operates.
All nice and legal now.
Trump has vowed to expand Guantanamo, and according to a leaked memo obtained by CNN, his campaign even said he would detain American Isis “sympathizers” (whatever that means). This would of course be illegal and unconstitutional in a variety of ways…
Not according to the courts. The courts have ruled that constitutional protections even for US citizens don’t apply outside of the US. So as long as people are transported out of the US, he can do whatever he pleases with them. Thanks, Supreme Court!
Re: All nice and legal now.
Yep the supreme court gets it wrong again. They have been very busy destroying the US constitution.
They have even granted a 100 mile border constitution free zone around the entire US which effectively places over 1/2 of citizens in the constitution free zone.
Trump’s list of enemies could make Nixon, who saw no problem in using the NSA to spy on American dissidents and his political opponents
Or how about the time that Obama used the IRS to target conservative groups.
I have been saying this for a long time but especially with Obama in office. All sides need to put a stop to executive orders and overreach. Unfortunately congress has abdicated its powers to the executive branch so the point almost seems moot.
Re: Re:
You don’t understand.
They are okay with the abuse, as long as that abuse fits into their political views.
They only disagree when it works against them.
We first need to rid our selves of the politician and social corruption that allowed this trash to start to begin with.
Re: Re:
You mean the one that has been debunked many times?
There is already waterboarding being used, as well as targeting the families of “suspected terrorists”, not to mention using drone strike double taps. You know the missile strikes where they target emergency first responders to the initial drone attack.
Evrything that you are worried about has been happening for at least the last decade you are rather late to be concerned about America becoming an evil warmongering country.
To be fair, South Korea has never been the fair, open culture that us in the west want to believe. It has always been just marginally less autocratic than its northern neighbor.
The Ronald mcDonald
The concern over Trump becoming president is way overblown. Would he be a good president? No. Would he be a bad president? Not if by bad, the standard is Bush. I really don’t think he believes in doing some of the shit he says he wants to do, but assume the worst and assume that he believes his own bullshit. His abilitybto actually do things like torture people and build a giant wall (not to mention getting Mexico to pay for it) are zero. I mean, presidents get away with breaking the law, but the subtlety and finesse required to ignore a parking ticket aren’t Donald’s long suit and the crazier shit he is pedaling doesn’t lend itself to just a little finesse to squeak by the people who will stand in his way.
On a number of things that matter, (e.g., tpp, decimating the reactionary wing of the republican party), he’s got the right idea. He’s hated by Ted Cruz and Mitt Romney, so how bad could Donald be? I’m a lot more worried about what Hillery could actually do as president than Donald. Hillery is a closet republican trying to appeal to democrats, while Donald is a closet democrat trying to appeal to republicans. Gotta love the irony in this election. Unfortunately, Bernie doesn’t look like a shoe in and Hillary is not the next closest thing.
power corrupts...
power corrupts, absolute power corrupts absolutely.
perhaps the issue is less one of abuse, and more one of consolidation. at the centre is inequality.
all according to plan
Good becomes bad, dogs sleep with cats, no one knows what is real.
Could be worse – here in the UK we’re facing the prospect of Boris Johnson possibly becoming prime minister – this is the kind of guy who could be tricked into ratifying TTIP by the old ‘could I get your autograph’ ruse!
I watched the first episode of colony the other day, that’s pretty much how I envisage Trumps USA – only with yellow-hats instead of red-hats.
our laws should be designed
I think you mistaking result for procedure. Does it matter what the law says if the execution and authorship of it is opaque?
IMHO 4/5th of the legislative sillyness gets resolved by changing U.S. parliamentary procedure to something more like modern software design practices. In a nutshell these systems (typically referred to as AGILE systems) are intended to mitigate occasional incompetence, ego and hubris.
How about we let real people do real work in full disclosure, and let the debutantes have their balls too. It isn’t like Congress actually reads the legislation they vote on anyway. So how about we stop pretending, and make it more about having a broader cultural understanding of the law, and less about crusty old white guys running for prom queen?
It isn’t a matter of designing restrictively, it is a matter of restrictively designing.
Trump Trump Trump Trump Trump Trump Trump
Trump. What about creating a GRIEFER Mob? Just pursue this idiot ceaselessly on all his Social Media.
Trump really does consider himself a “New Prince“, and he has shown all his cards without revealing he has no tangible, existing policy excepting that which gets the most attention for the least amount of effort – money included.
Trump’s mentioned twenty-five times here, and I guess I’m 33, 34, and 35.
Free of charge baby!
Click
“Insightful” for the article itself.