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DonAthos

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  1. I'm going to leave alone re: "analogy" for the moment. There seems to be something missing from your final sentence here, so I'm not entirely certain I understand your point. Regardless, we aren't discussing "epistemic standards," we are discussing the initiation of the use of force. Whether you believe you're comparing some aspect of law enforcement to something found in science, or otherwise relating them in a... somehow non-analogous fashion, you're not addressing the matter at hand. What we're discussing does not apply to science and its "investigation of the unknown." (Unless scientists are stopping people at the border to study them; or unless the objects of scientific inquiry, say photons, have been assigned individual rights.) I acknowledge fallibility. Whatever standards we devise will be subject to fallibility. Yet it is not the case that we only use force when we believe we have determined an individual to be guilty of some crime, howsoever we might be mistaken -- rather, we employ force against those whom we acknowledge may well be innocent, and on that point we are as yet indeterminate. We recognize this informally when we say that someone is "innocent until proven guilty," but formally we have a process wherein we determine the guilt of individuals... after we have employed force against them! This is to say, we recognize that some of the people we "suspect" or charge for crimes will be found not guilty, will in fact be innocent: this is why we have a trial. That we use force against people we later determine to have been innocent is not an "error"; it is the very system itself, functioning precisely as designed. This is why I contrasted it against the notion that we could try people first, before employing force against only those found guilty. You've dismissed this and refused to consider it and strawmanned it (as it has nothing whatever to do with infallibility), but I don't see why, or why you would prefer warrants and "probable cause." Why do you prefer that? But table that for a moment. Let me bring the parenthetical from my quote to the fore: "And furthermore being 'somehow involved with a crime' does not make you criminal. There are plenty of people involved with a crime who did not themselves commit any crime -- and these people are often subject to the use of force, as in the case of a subpoena. Yet they have not initiated the use of force." Suppose a man suspected of stealing... a necklace. Let us say that, prior to his arrest, he was spotted entering a bank and leaving a short while later. An interview with the clerk turns up that the suspected thief rents a safe deposit box at the bank. Consulting with the district attorney's office, the police determine that it will be hard to prove any theft in court without being able to show that the thief wound up in possession of the necklace. So, the police would like to inspect the suspect's safe deposit box... but the bank refuses to cooperate; they do not wish to violate their customers' privacy. Would you have the police seek a warrant/use of force against the bank? If so, how would you characterize this? I do not have to look at literally every single person crossing the border to be sure that law enforcement can do their job; that is law enforcement doing their job. Gaining this information -- as for instance, whether anyone in the territorial jurisdiction of the United States has a warrant out for their arrest -- is part and parcel to law enforcement. I don't know whether this would serve to muck things up further, or cut to the chase, but imagine that we had the technology to scan the face of the planet such that law enforcement could know with precision who everyone is and where everyone is, at all times, along with all relevant, associated criminal data. (And let us stipulate that this has no other byproduct; that the scan itself is utterly harmless and unintrusive.) Given that all other law upholds and protects individual rights the world over, what would you make of such a scan? Is that a marvelous technology that would help us to better protect individual rights? Is it, in and of itself, the violation of rights? Or something else?
  2. It boggles me a bit that I'm stopping to address this, but even if the same principles are involved, it would still be an analogy... i.e. "law enforcement is analogous to science in that they share the same epistemic standards," or what have you. As to "epistemic standards" and the best practices of "investigating the unknown" (which is such a broad and saturated phrase as to be practically useless), they must be guided by experts in the field and with great attention to specific context. I am not in the position to prescribe to professional scientists what the best manner of "investigating the unknown" would be in any given instance, and what I would have to say with respect to the philosophical underpinnings of such would be again so broad and general as to be both obvious and practically useless. Insofar as I know you, I think you're in much the same position. And I feel confident in saying that neither one of us has any standing to comment on law enforcement practice, as such -- whether a border stop is an effective use of law enforcement resource, or setting up a scanner, or etc. Regardless, the question before us is not to do with "epistemic standards," but politics, individual rights, and the use of force. What is there to rebut that I have not already done? Here's your response (from not so very long ago -- it's dated from 9/29): "Because of warrants, with some means of inferring that you have a good reason to search someone, and that the person is somehow involved with a crime or threat of a crime. In that way, nobody you search would be innocent. Of course, you might be mistaken, and it turns out the person didn't know anything. In that case, I think it would still be a violation, but not from malicious intent or disregard for rights." I've bolded the part where you acknowledge the initiation of force (for that is what a "violation" of individual rights consists of). Do you send mixed messages by claiming that "nobody you search would be innocent" in the same paragraph? Of course. And my refutation of that notion came directly: "The police absolutely search innocent people. You can be accused of a crime, or suspected of a crime -- and be 100% innocent of that crime. (And furthermore being "somehow involved with a crime" does not make you criminal. There are plenty of people involved with a crime who did not themselves commit any crime -- and these people are often subject to the use of force, as in the case of a subpoena. Yet they have not initiated the use of force.)" So yes, by defending warrants and probable cause, you are advocating the initiation of the use of force by your own accounting -- and to belabor this a bit (because by now I'm sure we all recognize it is necessary), you are advocating using force against people who have not themselves used force. Forgive me, Eiuol, but I want to see proof that you understand the text before I grant you some power to infer subtext. Speaking for myself, if you gave me an answer that truly satisfies me, I would expect to be satisfied.
  3. I'm not entirely certain how you would ask for documents without some level of "detention," though I have proposed a futuristic scanner that would eliminate the need for any kind of stop at all -- but you're not satisfied with that, either. I don't know if you want some different standard than I do. I have constantly asked you to articulate a standard -- and you have yet to provide one (though in its place you've provided an analogy to science, and you've gestured towards established law/authority, and you've drawn -- and subsequently disavowed -- distinctions between "active" and "inactive," and etc.). My standard is that we must do that which is necessary (i.e. required in reality, in context) to enforce the law, because "individual rights," whatever else that entails, requires the enforcement of law. This further requires information to be gathered (prior to the stage of "probable cause"; it is on the basis of information that one may arrive at something like probable cause) and is inclusive of both "warrant" and stops at the border. The particular nature of a border stop accounts to the particular nature of a border, and the change in jurisdiction it represents. When you're presented some clear standard, then we can see whether our standards align or where they diverge. The argument has been presented from the first. The argument that supports border stops without first requiring warrants is that border stops are necessary to enforce the law. Judges recognize this and do not require warrants for border stops. There's the water. Drink up. Because you are talking about probable cause and warrants. You think probable cause and warrants are acceptable, despite the fact that they entail the use of force against those who have not themselves initiated the use of force. And as you have left me guessing as to whatever "standard" provides the foundation of your views, I'd guess that it is just that sort of thing that you'd like to avoid with border stops. So, I'd like to know how and why you justify using force against the innocent in one case but not in the other. It isn't that 1% have committed crimes, as such; it's that 100% are coming from a separate legal jurisdiction, and so we need to stop 100% to get that information. And if we mean to be protected against "unreasonable search and seizure," then we have no disagreement, because a border stop is not an unreasonable search and seizure.
  4. You invented an argument to refute -- that I was calling for "infallibility." You did not address my actual argument at all. I don't doubt the value of probable cause (and there is value, too, in a border stop). However, I believe that both probable cause and warrants are susceptible to the same principled critiques offered regarding border stops. As presented, they both "violate rights," yet you endorse one and reject the other. But why should we allow rights violations in the case of a warrant/probable cause? Can you defend that which you advocate? I don't. I think that a border stop does not require "suspicion." Suspicion, or "probable cause," is one good reason to stop a person. Crossing a national border is another.
  5. But Eiuol, we do start with perception. You see the person approaching the border, you stop them: that starts with perception. You would like some individualized reason to stop a particular person -- but I still do not see why. Your standard of "probable cause" is not the strict use of retaliatory force, not in all cases and probably not in most. "Suspicion," is not a terrifically high hurdle to clear, after all, and when I suggested a higher one (e.g. trial by jury), better designed to avoid violating rights, you rejected it without reason. But the fact remains, you're willing to stop people though you understand that some of them will not have initiated the use of force. I'm willing to do that, too -- not "arbitrarily," but when they cross the border, for the purpose of gaining information (i.e. information which allows for law enforcement). That information is required specifically at a border crossing because the border crossing represents an individual crossing from one legal jurisdiction (where their records are kept, where evidence of crime is gathered, where warrants are issued, etc.) into another. Everything that supports both "probable cause" and "warrant" in terms of reasonableness and necessity also supports a border stop, though it is a different instrument with a different threshold. That you embrace one such instrument, one such threshold, while rejecting all others is clear -- but what isn't clear is whether you have any principled reason for doing so.
  6. Because Eioul imagines that this initial "suspicion" will fall free, like manna from the heavens. He believes that wanted criminals will drive around with bloody arms sticking out of their windows. Or he needs to believe this, at any rate, to avoid the conclusion that his approach to law enforcement would utterly fail to enforce the law (against all but the egregiously stupid, perhaps). Indeed. Eiuol's imagination fails him utterly in this regard -- which is ironic, given that it is often one of his strengths. But, since psychologizing has been de rigueur in this thread, I'll again speculate that this is actually a self-defense mechanism, in that it allows him to maintain his position without seeing the flaws inherent to it. No license plates... tinted windows... private roads... I find myself wondering where the police are to find any handholds at all.
  7. I didn't say to convict "before you have any information." I said that you could not use force before a conviction. I.e., you may not detain, arrest, search, seize, etc. You can gather information without using force, right? Isn't that what you've been saying all along? No, nothing here is suggesting infallibility. A trial conviction is not guaranteed to be infallible with respect to innocence (and there are people who are currently convicted of crimes... yet are innocent); it is only a more stringent, higher standard. But isn't a more stringent, higher standard to be preferred in the defense of our rights? Would you like to know how your position re: border stops strikes me...? But sometimes we have to discuss even things or aspects of a situation that strike us as silly, or what-have-you, in order to discuss a subject effectively. There is obviously a disconnect between our positions, and we've been talking a bit in circles, so I'm hoping that this will help us to target that disconnect more precisely. I believe that's because you're not allowing yourself truly to engage my questions. You keep deflecting with notions like "infallibility" which you are yourself supplying. Let all that go and just let yourself respond honestly to the matter I've raised. I charge that "probable cause" violates rights, and you appear to have agreed with me. If we adopted instead a standard whereby force may only be used against people convicted of crimes, we would violate fewer people's rights in that manner (and probably far fewer). Given this, how can you defend the use of "probable cause" as against the superior standard I've introduced?
  8. Let's pursue this. Nowhere is the proposed standard demanding infallibility. I'm proposing a trial, and that someone be found guilty at said trial, before any use of force is authorized. (You may take this trial to have all of the features of our current system; trial by jury, "beyond a reasonable doubt," etc., apart from any authorized use of force.) You've said that "probable cause" violates rights where "it turns out the person didn't know anything." So we can work to reduce those violations by a more stringent (not infallible) standard. So, you on board with this? Or do you have a defense to offer for probable cause?
  9. Is this an Abbott and Costello routine? The above is the very opposite of what you've been saying. You've been saying that you're not permitted to learn who the random person at the border is -- because he's a random person at the border. If you know he's Gus Fring and that there's a warrant out for his arrest, sure, you can stop him... to... determine that he's Gus Fring and that there's a warrant out for his arrest. But if you don't know he's Gus Fring and that there's a warrant for his arrest, you can't stop him to find out who he is, or whether there's any warrant for his arrest, or anything at all. If you don't know who he is -- and you don't, because all of that information resides in the country of his former jurisdiction -- then you have no means of finding it out. He started out a random person and he remains that way. If he's holding up a sign that reads, "I'm a criminal -- ask me how!" then you're permitted to question him. If not, then he's free and clear to Topeka (or Albuquerque). On the basis of what? People crossing the border start at zero -- they're unknown to us practically by definition, until we get particular intelligence. The information which could potentially provide a warrant exists in the country they're exiting. We only know to request/access that information after we know who they are, which we currently accomplish with a border stop/passport. If you had an argument in response which I have not yet addressed, I didn't grok it. I know you've drawn distinctions between "aided" versus "unaided," and 2046 has talked about "active," etc., but these kinds of ad hoc semantic dichotomies do not an argument make as to why there is an essential difference in kind between looking at someone with one's eyes versus the use of a mechanical device to do the same process -- with respect to individual rights or the initiation of force. You drew an analogy with science, which I criticized in the specific (observing that we do use tools to explore the unknown), but more to the point, we generally use tools to investigate something in more depth with (what is analogous to) "probable cause" because that is (usually) a more efficient use of resources. As to whether use of a scanner would be an efficient use of police resource, to gather information -- well, that's a decision that has to be made by people with expertise in that field. But that's not an argument as to moral right, vis a vis the initiation of the use of force. And you have also invoked "privacy," but I don't think you've offered anything substantive about that idea, other than that it seems to be set against information gathering... for some unspecified reason. So if I've missed something, please direct me to it, or restate it here. Otherwise, I don't yet see any real difference between a police officer looking at a person's face versus scanning that person's face -- not as respects individual rights or the initiation of force. All right, fine. I'm not going to go pulling quotes to show you where I got that idea... if you say you aren't arguing against the collecting of information, I'll take you at your word. But now tell me why the manner of collection, specifically a police officer scanning my face, violates my rights. Tell me the harm it does me -- describe the loss I suffer. Just for a little context, there is no need of a warrant for a border stop, currently. Warrants are a particular device, and they represent a judge's opinion that some police action is... well, warranted. But the same corpus of jurisprudence that has given us things like "warrant" and "probable cause" has also allowed for actions that do not require those particular devices: like a border stop. You have a good reason to stop someone at the border, too, which is why judges allow this without the need for a warrant. Heh, no, sorry, that's not how anything works. The police absolutely search innocent people. You can be accused of a crime, or suspected of a crime -- and be 100% innocent of that crime. (And furthermore being "somehow involved with a crime" does not make you criminal. There are plenty of people involved with a crime who did not themselves commit any crime -- and these people are often subject to the use of force, as in the case of a subpoena. Yet they have not initiated the use of force.) All right then, to avoid (or reduce, at least) such violations why not adopt the standard I'd suggested -- why not insist that a person be proven guilty, by trial, before any authorization of force, as in search, seizure, etc.? If you argue that a border stop is a violation of rights, then why can't I make the very same claim for warrant/probable cause? Certainly. And it is both reasonable and necessary to stop people at the border -- so much so, that judges don't even require warrants. Why wouldn't it matter what you say? Don't you have a good argument to make? But at the moment, no, I don't find it problematic that when I drive from Vancouver, BC to Washington, I have to present my passport. I find it reasonable and supportive of the rule of law. If I'm being violated in that process, I'm unaware of the nature of that violation -- and not that it's an argument in itself, but generally speaking, I'm pretty sensitive to the idea of my own rights. If you searched the forum, you'd find me fairly critical of abuse of police power -- and starkly so on this forum, where so many are dedicated to "law and order" at seemingly any cost. But knowing my name? Yes, I allow the government this much and I don't call it an abuse.
  10. Eiuol might. His other investigative idea was to look for bloody arms hanging out of cars -- but I'm thinking that the more sophisticated criminal elements might manage to stay one step ahead of him... No, the question isn't, "can the police do just any old thing." That's one of your straw men, not the question. Rather, the question is whether the police can stop people at the border for the purpose of gathering information. My answer to that is yes, because people crossing that border are leaving one jurisdiction, where the government has information regarding them -- including, potentially, a warrant -- to another. The police cannot do "just any old thing," but they have to be able to do what is both reasonable and necessary to enforce the law.
  11. LOL, this discussion is a nutty carousel. You can have suspicion about an individual -- let's say that your intelligence sources have told you that "Gus Fring" is the man responsible for a series of assassinations -- but without knowing which man in a group crossing the border is Gus Fring, or any ability to learn who is who, that suspicion, that evidence, that "probable cause" gets you precisely nowhere. You can't expect him to wear a name tag. Yes. Normally we streamline this process in various ways -- that is, for instance, what passports are for. Binswanger argues that we ought not have passports or border stops at all. He allows for an unexplored (and I believe ad hoc) exemption in times of war and disease outbreak, but it's completely unclear as to how he would manage such a thing. If we were at war with Paraguay, what precisely would he have us do at the Mexican border -- stop the Paraguayans and only them, without knowing who comes from where? And with no supporting infrastructure like passports, no less? The broader point is: you can't make these sorts of decisions or distinctions without information. And even if I propose some relatively non-invasive form of information-gathering, like a scanner, you balk. I disagree that asking for identification is sensibly a "search" (let alone "unreasonable" at a border), but if a facial scan is a search, then so too is looking at a person; the facial scan is only arguably more effective or powerful for being tool-assisted, but it is not different in kind. It does the very same essential thing. Now, we should be sensitive to the question of whether there is some violation of rights even in the proper enforcement of law. But parallel to the discussion you've had elsewhere about radio signals and such, I propose that any genuine violation of rights has some appreciable damage. If I use "your space" in such a way as you're unaware of my usage, and unharmed in any demonstrable fashion, I have not harmed you. And if I scan you, assuming that the procedure is benign (and the same goes for radio waves), I have not harmed you. It is arguable that the delay in a border crossing is a species of harm, albeit minor -- and I would agree -- but some of these kinds of harms are currently unavoidable in the enforcement of law. Yet your arguments show that you're not really at issue with the minor inconvenience of a stop; you think that the collection of information itself is a violation of right. That's nonsense. Police work without information (and hence, information-gathering) is impossible. Frankly, I'm not sure that you have understood me. So let's try again: you have supported the idea of "probable cause." I would like you to support that idea with respect to principles. Suppose we agree that we seek, through government, to eliminate "the initiation of the use of force." Agreed? Okay, but someone who is suspected of a crime to any degree -- yet not proven to be a criminal -- may not have initiated the use of force at all. Allowing for such a possibility is the very basis of a "trial." I can suppose at least one alternative, for comparison's sake: Why not, instead, require law enforcement to prove an individual's guilt or criminality before any stop, search or seizure may be made against him -- by trial, in absentia if necessary? So, given that probable cause will sometimes mean the initiation of force against the innocent -- which is unjust -- how can you support it? True. It isn't even clear whether you're suggesting a "standard," as such, at all. If the standard is "that which a judge/justice deems appropriate or reasonable in a given circumstance," which is what a "warrant" represents, then we're golden: judges and justices seem to concur that stops at a border are both appropriate and reasonable. Yes: this exactly describes the position of US law enforcement with respect to people outside of their jurisdiction. They completely lack any information. That's not what makes a border stop unjustified; it is what makes a border stop necessary.
  12. I've also enjoyed Sowell. But Objectivism is an individualist philosophy: we do not treat people as units of culture, or representatives of some group, but as individuals.
  13. Off the top of my head, The Count of Monte Cristo The Hunchback of Notre Dame Tess of the D'Urbervilles War and Peace It Ender's Game East of Eden 1984 The Princess Bride Watership Down
  14. But Eiuol, in the case of crossing a border, the government needs to know who you are in order to know whether there is explicit suspicion that you have committed a crime. That's why we require a full stop. All right. Let's roll with this for a moment, and I'm going to ask you to stretch your imagination just a touch. We have a tradition which includes "probable cause" and "warrants," but taking these things for granted -- or imagining that they're the only possible tradition -- is itself a bias, and I don't see that it is completely justified. So let's say that "an individual has the right to be left alone, even if they might possibly somehow potentially perhaps be a criminal." And let's say that, accordingly, our legal tradition affirms that there is no such thing as "probable cause." You have evidence, like a witness testimony, that someone has maybe, possibly committed a crime? So what? That's not cause to stop the person or arrest him, or search him or seize his things -- an individual has the right to be left alone, after all, even if they might possibly somehow potentially perhaps be a criminal. Let us say, instead -- as the learned Lord Snuffbox himself opined -- that you may only arrest a fellow when he has been tried and convicted of a crime by a jury of his peers. (This may be done in absentia, or he may participate in his trial, as is his right, but none may compel his participation.) Suspicion of a thing is not proof of it, and you can suspect a person of something all you'd like -- but mere suspicion is no cause to violate the rights of a person who may, after all, very well be innocent. We therefore only use force against those proven guilty. Now, you might protest that it would be wickedly difficult to prove very much at all if the person against which we have some initial shred of evidence cannot be interviewed against his will, cannot have his effects searched, cannot be followed, etc., etc., as, absent a guilty verdict, all of these things would be violations of his rights. (And no mere judge's opinion, a so-called "warrant," can change this fact.) And sure, it might make it a little harder -- but so what? Detectives just have to do a better job, to prove a murder potentially without a murder weapon, or DNA evidence, or etc. If you'd argue that we need to make an arrest without proving guilt first, because effective law enforcement requires that we have access to those sorts of things (and as a preventative against evidence tampering/destruction, or flight, or further crime, or etc.), I would just remind you, "someone would say that [letting such a person remain free] might be threatening because the person *could* be a criminal, but that isn't individual rights." In our world, in our reality, all of the police powers we grant in such cases -- the very basis of "probable cause" itself -- is not because we know someone has initiated the use of force, or otherwise committed a crime, but because the effective enforcement of law requires the police to gather information such that we can make that eventual determination. This is also the fundamental basis for a border stop, the specific necessity of which being precipitated by the fact of jurisdiction, and how the legal entity an individual is leaving may have evidence of his guilt (and a warrant for his arrest) while the legal entity he's entering will not.
  15. I believe that I do understand about probable cause and warrants -- but as to your argument, I agree that I might not understand it very well, because I have found the argument you've presented in this thread to be confused and scattershot. Are you basing your argument in the idea that one may not initiate the use of force, and that a stop at the border is the initiation of the use of force? If so, then I'd refer you to the argument(s) I've made that any proper administration of justice will involve some use of force against those who are potentially innocent, and sometimes later proven to be (and who are factually innocent all the while, and have not initiated the use of force). The existence of a "warrant" -- that whatever action is undertaken with a judge's permission -- does not change this fact. But if a judge's permission or evaluation that some action is reasonable given a set of circumstances makes some difference for us, in the case where some individual's "lawn is bruised," then the border question is perhaps satisfied by the fact that general stops at a border are seemingly allowed by judicial opinion in both the US and UK -- and perhaps everywhere else, as well. Besides which, I have made the case, at length, that a border stop is both "reasonable" and also necessary for the effective administration of law in a world where countries maintain separate jurisdictions, separate repositories of information, and etc. As to all of the rest of it, Eiuol's "aided" versus "unaided" (do glasses count?), "active" versus "passive," etc., etc., I believe it reflects an attempt to justify those things that strike you yourself as reasonable, like examining license plates (even in an "arbitrary" manner) against those things that strike you differently for whatever reason, like facial recognition technology. Yet I don't think these proposed distinctions represent anything real or meaningful with respect to the protection of individual rights. And while I respect the existence of preexisting law and doctrine, and legal opinion, the fact of them does not really settle the question for me of what ought to be, which does rely on our actual arguments and understanding. I'm not so interested in what Lord Snuffbox thought, per se, as I am in the reasons for his position, and comparing them against reality as I understand it.
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