Comments on: Why Not Give Immunity? http://www.infiniteinjury.org/blog/2008/02/19/why-not-give-immunity/ Good Analysis, Bad Grammar Thu, 09 Feb 2012 05:02:30 +0000 hourly 1 http://wordpress.org/?v=3.0.4 By: TruePath http://www.infiniteinjury.org/blog/2008/02/19/why-not-give-immunity/comment-page-1/#comment-873 TruePath Sat, 23 Feb 2008 13:40:26 +0000 http://www.infiniteinjury.org/blog/2008/02/19/why-not-give-immunity/#comment-873 <p>The point I was making is that in fact we virtually <strong>never</strong> just 'enforce the law.' Having just served on a jury I can report first hand evidence that we virtually always color our enforcement of the law with our feelings about the goodness or badness of what happened.</p> <p>Basically I think the question is whose call should it be to bend/break the law. THAT person should face serious consequences for choosing to do so without huge risk but it should also be someone who will be in a position to make an informed decision about it.</p> The point I was making is that in fact we virtually never just ‘enforce the law.’ Having just served on a jury I can report first hand evidence that we virtually always color our enforcement of the law with our feelings about the goodness or badness of what happened.

Basically I think the question is whose call should it be to bend/break the law. THAT person should face serious consequences for choosing to do so without huge risk but it should also be someone who will be in a position to make an informed decision about it.

]]> By: Richard http://www.infiniteinjury.org/blog/2008/02/19/why-not-give-immunity/comment-page-1/#comment-871 Richard Wed, 20 Feb 2008 16:30:47 +0000 http://www.infiniteinjury.org/blog/2008/02/19/why-not-give-immunity/#comment-871 <p>One more thing: the oddest thing about your post, I think, is this notion that holding companies to the law means granting them discretion to make a judgment call as to whether the law is worth breaking or not. This is entirely backwards. The simple no-discretion route is not to have the companies do whatever the executive asks. It's to have them <i>obey the law</i>.</p> <p>Cf. <a href="http://ideas.4brad.com/whose-call-it-say-whats-legal" rel="nofollow">Brad Templeton</a>: '<I>If, as the law requires, the phone company says “come back with a warrant” this puts the question of whether the program is legal in the hands of a judge. The phone company is saying, “this is not our call to make — let’s ask the right judge.”</I>'</p> <p>This shouldn't be a controversial issue.</p> One more thing: the oddest thing about your post, I think, is this notion that holding companies to the law means granting them discretion to make a judgment call as to whether the law is worth breaking or not. This is entirely backwards. The simple no-discretion route is not to have the companies do whatever the executive asks. It’s to have them obey the law.

Cf. Brad Templeton: ‘If, as the law requires, the phone company says “come back with a warrant” this puts the question of whether the program is legal in the hands of a judge. The phone company is saying, “this is not our call to make — let’s ask the right judge.”‘

This shouldn’t be a controversial issue.

]]> By: Richard http://www.infiniteinjury.org/blog/2008/02/19/why-not-give-immunity/comment-page-1/#comment-870 Richard Tue, 19 Feb 2008 21:48:59 +0000 http://www.infiniteinjury.org/blog/2008/02/19/why-not-give-immunity/#comment-870 <p>[Damn computer ate my comment. Let's try that again...]</p> <p>I agree that the priority should be holding the executive to account. But I'm not sure why we should want to make executive overreach any easier than it already is. They can easily get a warrant if "national security" is really at stake. To let them skip this step, and have companies cooperate with any old executive order (no matter how blatantly illegal) seems unmotivated. (I mean, the executive is clearly motivated by the hope of sidestepping judicial oversight. But there's no reason for the rest of us to accept this.)</p> <p>You effectively seem to recommend granting the executive absolute power, and only hold them to account for how they (ab)use it after the fact. I would think it wiser to check their power right from the start; and that means upholding the rule of law.</p> [Damn computer ate my comment. Let's try that again...]

I agree that the priority should be holding the executive to account. But I’m not sure why we should want to make executive overreach any easier than it already is. They can easily get a warrant if “national security” is really at stake. To let them skip this step, and have companies cooperate with any old executive order (no matter how blatantly illegal) seems unmotivated. (I mean, the executive is clearly motivated by the hope of sidestepping judicial oversight. But there’s no reason for the rest of us to accept this.)

You effectively seem to recommend granting the executive absolute power, and only hold them to account for how they (ab)use it after the fact. I would think it wiser to check their power right from the start; and that means upholding the rule of law.

]]>