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Legitimate governmental invasion of property

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FluxCapacitor
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I think though currently with our federal laws on search and seizures in shambles. I wonder if the Senate or anyone else has the courage to fix some of the problems in it. Like what the DEA does. If you didn't know your plane or vehicle had someone stash some narcs onto it. The DEA will still take the property and even sell it later, on the grounds of the cost of the 'investigation.' What utter tripe!

-- Bridget

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I think though currently with our federal laws on search and seizures in shambles. I wonder if the Senate or anyone else has the courage to fix some of the problems in it. Like what the DEA does. If you didn't know your plane or vehicle had someone stash some narcs onto it. The DEA will still take the property and even sell it later, on the grounds of the cost of the 'investigation.' What utter tripe!

In a proper society drugs should not be illegal and the DEA should not exist.

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Such as putting a criminal in jail against his will.  That's a rights violation as well.  As the nature and application of government power is always negative, the application of government power to protect individual rights is often going to be rights violations.    Frequently, the only way that function (the protection of individual rights) can be carried out is by use of subpoena, a negative power like all the rest of its powers.  Some "rights violations" are necessary and proper actions by the government, but they are always negative.

As has also been stated, and with which I agree, the government has not initiated this force on the witness, the criminal did when he committed the crime.  Ideally, and in reality it is sometimes the case, judges take into account the rights violation of the witnesses in his determination of punishment of the offender.  Most judges and courts recognize the inconvenience caused to people by having to have them attend court to testify.

Now, from a practical aspect based on my experience in my jurisdiction, usually "hostile" witnesses are not made to testify (with murder trials being the most frequent exception to that). One type of hostile witness is someone who just does not want to testify.  When you put people on the stand who don't want to be there, they can, and sometimes do, wreck the prosecution.  This is wrong, but it happens. Proving perjury is frequently very difficult (if not impossible), and it's rare that people actually get punished for refusing to testify.

It is not a rights violation to put a criminal in jail against his will. The criminal has forfeited his rights by committing a crime (assuming that the law or laws he broke are objective and proper).

An innocent bystander has not comitted a crime and thus has not forfeited his rights.

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I honestly don't know. I still have a hard time seeing how it can be justified to force someone who has not comitted any crime to divulge knowledge, testify, etc.

Is not such a person an innocent bystander who did nothing wrong? What would then give anyone the right to force him to do something agaist his will?

I agree that the moral thing for the witness to do would be to testify, what I am unable to grasp how such a thing ought to be legally required.

I think the argument essentially is that the police must be able to investigate in order to perform their proper function, and proper subpoena power is a necessary tool for a proper investigation and subsequent administration of justice.

(As an aside, note that your "innocent bystander" frequently is involved in proper police activities, whether he wants to be or not. For instance, if the police are chasing a criminal do they have to stop and ask your "innocent bystander" for permission to cross his front lawn during the pursuit? Such a pursuit is part and parcel of the police exercising their proper function and the "innocent bystander" cannot just choose to disallow the police access. Would you argue that the property rights of the "innocent bystander" are being violated and that the police should not be able to cross front lawns in pursuit of a criminal unless they first ask permission of each "innocent bystander.")

I agree that subpoena power is necessary for the proper function of a judicial system. However, this strikes me as a violation of the person's rights who is being summoned.

For the same reasons, I understand that police need to pursue criminals even on private property, yet I see it as also a violation of the property owner's rights.

So I am left with a contradiction. Perhaps I am starting with the wrong premises? Dropping context?

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So I am left with a contradiction. Perhaps I am starting with the wrong premises

I think that perhaps you are not distinguishing carefully enough between the initiation of force and its retaliatory use. Any violation of rights lies at the feet of the criminal who initiates force, not with the retaliatory force required by the police to perform their proper functions.

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It is not a rights violation to put a criminal in jail against his will. The criminal has forfeited his rights by committing a crime (assuming that the law or laws he broke are objective and proper).

That was a bad example on my part. I admit my error. I was thinking of it in terms of being a "justifiable rights violation".

Let me provide a more appropriate example. If proper, objective evidence exists to support probable cause that person A committed a crime, the police arrest him. They have violated A's rights at that point, but have done so justifiably as the law provides the police the opportunity to apprehend suspected criminals and bring them before a judicial body for trial. Person A may have done absolutely nothing wrong, an innocent bystander if you will but it is a proper and necessary (though negative) power that the government be able do this in order to protect individual rights. It is necessary because it is usually unreasonable or impossible to determine the suspect's actual innocence or guilt at the time suspect is encountered.

The power of subpoena is also a negative but necessary power the government must retain in order to protect individual rights. The government cannot reasonably or possibly obtain the necessary evidence needed in many instances to provide for a proper trial without the ability to force witnesses (even innocent bystanders) into the courtroom. This is an unfortunately crucial instrument in the government's attempt to provide proper justice and the protection of individual rights.

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That was a bad example on my part.  I admit my error.  I was thinking of it in terms of being a "justifiable rights violation".

Let me provide a more appropriate example.  If proper, objective evidence exists to support probable cause that person A committed a crime, the police arrest him.  They have violated A's rights at that point, but have done so justifiably as the law provides the police the opportunity to apprehend suspected criminals and bring them before a judicial body for trial.  Person A may have done absolutely nothing wrong, an innocent bystander if you will but it is a proper and necessary (though negative) power that the government be able do this in order to protect individual rights.  It is necessary because it is usually unreasonable or impossible to determine the suspect's actual innocence or guilt at the time suspect is encountered.

The power of subpoena is also a negative but necessary power the government must retain in order to protect individual rights.  The government cannot reasonably or possibly obtain the necessary evidence needed in many instances to provide for a proper trial without the ability to force witnesses (even innocent bystanders) into the courtroom.  This is an unfortunately crucial instrument in the government's attempt to provide proper justice and the protection of individual rights.

This makes sense to me.

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I think I am implicitly taking the idea that "it is wrong to initiate force" out of context, as almost axiomatic. I am then proceeding deductively to the conclusion that any initiation of force is wrong under any circumstances.

Example:

The initiation of force is always wrong

Subpoena power is an initiation of force

Subpoena power wrong

Am I to understand that it is proper to initiate force against others in certain contexts? If so then what is the standard to determine when it is proper and when it isn't?

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I think I am implicitly taking the idea that "it is wrong to initiate force" out of context, as almost axiomatic. I am then proceeding deductively to the conclusion that any initiation of force is wrong under any circumstances.

Example:

The initiation of force is always wrong

Subpoena power is an initiation of force

Subpoena power wrong

Am I to understand that it is proper to initiate force against others in certain contexts? If so then what is the standard to determine when it is proper and when it isn't?

Again, I think you are not carefully distinguishing between the intiation of force and its retaliatory use. Subpoena power is not an initiation of force by the authorities, but rather a retaliatory use in response to the intiation of force by the criminal.

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This makes sense to me.

I'm glad I could help. Technically speaking, I have never arrested a guilty man. :yarr:

Am I to understand that it is proper to initiate force against others in certain contexts? If so then what is the standard to determine when it is proper and when it isn't?

The distinction that Stephen ( and others I think) made, and properly so, is that the government is not the entity initiating force when it issues the subpoena. The force (and it's resulting consequences, the necessity of arrest, trial etc.) was initiated by the criminal at the time he committed the crime.

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I agree with Stephen’s and RationalCop’s moral evaluations and the (short-run, at least) practical value of forcing witnesses to testify, but I cannot see how this does not violate the witnesses’ rights. You can’t get around the fact that the government is physically forcing innocent people to testify by blaming it on the criminal, and you certainly can’t justify violating rights by pragmatism.

The basic issue here is that the government is forcefully extracting a value from an innocent party. As with all involuntary transactions, this gives the government the incentive to “over-invest” in witnesses because the fixed cost is artificially low.

So, for example, the police are not as worried about the inconvenience they cause a witness as they would if they had to pay the full cost. This may seem absurd with a leading witness in a murder trial, but realize that a typical trial may have dozens of minor witnesses who waste an entire day getting to the courthouse and waiting to testify. There may be cases where the discomfort to a witness is greater than the potential benefit to the prosecutor, but outside of a market, it is impossible to know when. The police also have less incentive to protect the security of a witness when they can force him to testify regardless of the risk to his life or his moral convictions. (Today, I might go to jail if I refused to testify against someone accused of insider trading, as I probably would.)

The solution to this dilemma is simply to pay witnesses for their work. This gives the state the correct incentives to minimize inconvenience (by using teleconferences, for example) and allows the state to send the right signal to the crucial witnesses by offering a greater reward. Of course, there is also the value of social stigma when a witness refuses to testify for no good reason.

Finally, realize that the enmity between the police and the public that is so common today is a consequence of the regulatory-welfare state. A free market would have no mafia, no drug dealers, no business regulations, no morality police, and therefore few situations which put the interests of while communities against those of the police, as they do in today’s inner cities, for example. This would put the social stigma on those who refuse to testify rather than those who do.

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I agree with Stephen’s and RationalCop’s moral evaluations and the (short-run, at least) practical value of forcing witnesses to testify, but I cannot see how this does not violate the witnesses’ rights.  You can’t get around the fact that the government is physically forcing innocent people to testify by blaming it on the criminal, and you certainly can’t justify violating rights by pragmatism.

Your every word here ignores the distinction that has been repeatedly made, that the government is using retaliatory force in pursuing its proper function against the initiation of force by the criminal. Subpoena power is retaliatory force, not the initiation thereof, and any violation of rights lies at the feet of the criminal. (I wonder, do you also object to our army killing the innocent people in a country with whom we are at war? Is that too an example of something that "certainly can’t justify violating rights by pragmatism?")

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You can’t get around the fact that the government is physically forcing innocent people to testify by blaming it on the criminal, and you certainly can’t justify violating rights by pragmatism. 

No rights exist in reality apart from a means of implementing them. A prerequisite to any rights being implemented is the government's ability to protect those rights. The ability to gain the necessary information (subpoena power) is required to protect rights.

Rights cannot exist (in reality--as opposed to a rationalistic universe in the sky) unless the government has subpoena power.

The fact that this subpoena power violates a right is a direct result of the criminal's initiation of force--and is the proper and necessary retaliatory use of force (as Stephen has mentioned already) required to protect individual rights.

Subpoena power is required for rights to exist--the violation of rights (use of force) is justified by the fact that it is a requirements of any rights existing (retaliatory force against a criminal). The blame still lies on the criminal, because it is his action that required this force.

This doesn't make subpoenaing a person a good thing--it is bad that a criminal has initiated force and this violation of rights is required. But it is necessary, and is the proper retaliatory use of force by the government. That witnesses are recompensated for their time is all the government can do to make up for the necessary damage testifying may cause.

If essential subpoenaed witnesses have very important plans for certain days for the case being tried, it would be proper for the government to work with the witness in choosing an appropriate court date (within a specific timeline) and minimize damages to the witness. The token payment for his time may not make up fully for damages--just as financial compensation awarded to victims of crimes may not be able to make up for the loss of irreplaceable values. When force is initiated [by the criminal], nobody wins.

[edit="by the criminal"--so as not to imply that it is the government initiating force here (it is retaliatory)]

Edited by jedymastyr
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Yea, sorta my view too. But would it be said by that token when the government uses force to rectify an error[the criminal's act of force/fraud] that it is counter-point? Or would it be reactionary, and thus there would still be an imbalance due to the intial event of the criminal?

-- Bridget

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Your every word here ignores the distinction that has been repeatedly made, that the government is using retaliatory force in pursuing its proper function against the initiation of force by the criminal. Subpoena power is retaliatory force, not the initiation thereof, and any violation of rights lies at the feet of the criminal. (I wonder, do you also object to our army killing the innocent people in a country with whom we are at war? Is that too an example of something that "certainly can’t justify violating rights by pragmatism?")

Saying that the government is using retaliatory force does not make it so. The situation is not analogous to, for example, a hostage situation, since the harming the harm to the innocent bystander is done by the government, not the criminal.

A war zone is not a valid comparison to a criminal case, since the very definition of a war zone is that no civil authority exists to protect individual rights.

Aside from this, moral principles have practical consequences, as my post explained, and coerced testimonies ultimately corrupt individual rights - and an oppressive government requires coerced testimonies.

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No rights exist in reality apart from a means of implementing them.  A prerequisite to any rights being implemented is the government's ability to protect those rights.  The ability to gain the necessary information (subpoena power) is required to protect rights....

Rights are a necessary condition of man’s existence of society – but the possession of a right is not tied by a government’s ability to enforce them. In certain situations, I can act to protect my rights independently of and sometimes contrary to the government. But this is besides my point.

It’s true that in order to protect rights, the police must use force against potentially innocent civilians - such as arresting and interrogating suspects. My point is using subpoenas against clearly innocent bystanders encourages abuse and is only made necessary by statist governments.

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The solution to this dilemma is simply to pay witnesses for their work.  This gives the state the correct incentives to minimize inconvenience (by using teleconferences, for example) and allows the state to send the right signal to the crucial witnesses by offering a greater reward.  Of course, there is also the value of social stigma when a witness refuses to testify for no good reason.

The federal government does pay a witness to testify, even to law enforcement officers surprisingly, but it is a relatively small amount. I testified in a federal hearing once and made a whooping $40.00 extra that day. :P Not sure if it may have increased by now though.

The practical issue I see with paying any substantial amount is the potential creation of the unscrupulous "professional" witness. Testimony for profit. Sure, it actually already exists to some degree in terms of "expert" witnesses like doctors, psychatrists, etc. for the defense. However, one would hope that most expert type witnesses are professional enough to be concerned with credibility issues, false or invented testimony, etc. Many times, police can sort out credible witnesses from those who have an agenda. But my concern would be that a monetary incentive to testify may create a more lucrative agenda. I know many folks out there who would love to sit in court and make money to buy their booze and dope.

I'm not sure which I think is scarier, the defense "buying" a favorable decision or the prosecution "buying" a favorable decision.

I'm not dismissing the idea, but I think it potentially creates additional problems.

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The practical issue I see with paying any substantial amount is the potential creation of the unscrupulous "professional" witness. Testimony for profit.

But this can be a problem in any information transaction between two parties. Actually, a witness faces much closer scrutiny than a common exchange, since he faces the opposition and harsh consequences for perjury.

There is a complication because a witness has a monopoly on the information, but this is not unique, and there are established ways around it. (Such as pre-established rates.)

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It’s true that in order to protect rights, the police must use force against potentially innocent civilians - such as arresting and interrogating suspects. My point is using subpoenas against clearly innocent bystanders encourages abuse

That is why the subpoena power is severely restricted by law and abuses can lead to punishment of the government officials (and private individuals in civil cases) responsible for the abuse.

and is only made necessary by statist governments.

Whoa!

Subpoena power is made necessary by the fact that life, liberty, and property should not be restricted without due process of law. Due process requires that all the relevant facts are taken into account -- even when the person who knows them might be unwilling to reveal them.

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Saying that the government is using retaliatory force does not make it so....

Neither does denying the fact make it otherwise. If you have not been convinced by all the arguments presented here, I am not sure what will convince you right now. Perhaps hearing it from Ayn Rand might help. There was an interview tape in which she once discussed this issue, though briefly. I will try to locate the reference and I will give it to you when I do.

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I’ve already explained why subpoenas of bystanders (a) are not necessary (b.) lead to abuses no matter how “severely restricted” they are and (c.) are only made necessary by a statist government.

I haven’t given this issue any thought until yesterday, so I might be wrong, but I haven’t seen any responses to the points I made either.

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I’ve already explained why subpoenas of bystanders (a) are not necessary (b.) lead to abuses no matter how “severely restricted” they are and (c.) are only made necessary by a statist government. 

I haven’t given this issue any thought until yesterday, so I might be wrong, but I haven’t seen any responses to the points I made either.

Well, frankly, I stopped reading your long posting -- in which, I suppose, those points were made -- after reading this sentence in the first paragraph:

"You can’t get around the fact that the government is physically forcing innocent people to testify by blaming it on the criminal."

This indicated to me that you had not followed the essence of the argument and if you truly thought this then whatever followed did not matter. I do not mean this disrespectfully, just my assessment of the facts. Perhaps someone else can be more successful in getting the idea across to you. In fact, perhaps you might bring this up on HBL to get some more perspective from a few philosophers and a few scholars of law.

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(To GreedyCapitalist): Perhaps hearing it from Ayn Rand might help. There was an interview tape in which she once discussed this issue, though briefly. I will try to locate the reference and I will give it to you when I do.

The following is taken from the interview called "Objectivism in Brief: The Raymond Newman Journal," which should be available from The Ayn Rand Bookstore (whose web site seems to be down at the moment):

==================================================

Q: Miss Rand, Article Six of the Bill of Rights gives individuals the right to subpoena witnesses to testify in their favor, and people who don't respond to those subpoenas are subject to contempt citations and possible fines and imprisonment. Does this deny the freedom of the witness if he chooses not to testify?

AR: No, not really. I'm in favor of those laws, because if it's a court case, then somebody presumably has been hurt. The witness has knowledge that's relevant to the issue; and if he refuses to testify, he is the one who is then violating the rights of the defendant (or whoever is involved). If either party needs the information which you have, you couldn't have a rational or an honest reason for refusing that information, because you're interfering with justice, then: you're in effect saying, "the court may decide otherwise without me, but I don't want to testify." I don't think that that's legitimate.

===================================================

(Thanks to Alex for so quickly locating the tape and transcribing this segment.)

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