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MisterSwig
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I would like to try to focus in a bit on my argument:

Imagine a person wanted for murder in Paraguay. There is probable cause to stop such a man, in or out of Paraguay -- there is physical evidence implicating him, a witness, or whatever we imagine required for such a warrant. (It should be noted that this does not guarantee his guilt; he may yet be innocent, yet if he were, would we argue that it is the initiation of the use of force for the police in Paraguay to detain him?)

However, accounting to the current division of government/jurisdiction, the knowledge of this man and the extant cause to stop him resides in the country of his crime, Paraguay. Should he go to another jurisdiction, for instance the United States, the authorities there will have no idea of the warrant for his arrest. No knowledge of him whatever.

Ideally, then, should the man go from Paraguay to the United States, the government would transfer whatever relevant data to the US authorities, so then the US authorities would be aware of the existence of the crime, the evidence of his guilt, the probable cause to arrest him and thereafter (again, accounting to current divisions, and practical realities) transfer him back to Paraguay for trial.

However, if no authority has knowledge of this man's travel from Paraguay to the United States, this information cannot be transferred. And this provides the rationale -- and the "reasonableness" -- of the stop at the border, to allow for this gathering and transfer of information, as a person moves from one jurisdiction to another. It is reasonable because it is required for the effective enforcement of law.

I have thus far declined to argue whether stopping someone for information constitutes a "search," and have agreed to treat it as such, but I also find that there are people who also consider a facial recognition scan a "search," and so it's worth a moment of reflection...

If the technology existed such that people traveling across the border were automatically scanned in a non-intrusive fashion (like passing through a gigantic, benign scanner, perhaps) such that their information could be transferred from one jurisdiction to another without the inconvenience of a stop, any questioning, or demonstration of identification (like a passport), then this would serve the core purpose just fine. Yet I suspect that this would still run afoul of what some here consider to be an "unreasonable search."

But why? What is the case for preventing law enforcement from having information -- information that is necessary for the very enforcement of law? I have great sympathy for the idea that we must be careful to empower law enforcement when the law itself is immoral, even in part. And in Nazi Germany, one hopes that the law is generally powerless and incompetent -- or at least to the extent that it upholds that portion of the law which characterizes the regime. (Even in Nazi Germany, I suppose one would hope to prevent or redress quotidian murder, robbery, etc.).

But if we are discussing the ideal system towards which we want to work, where laws are designed to prevent/redress the initiation of the use of force and thereby uphold individual rights, then I don't know why we want to limit the police in their access to information, the very information needed to do this work. Work which is foundational to the whole system.

So long as I'm not a murderer, why should I care whether the authorities know if I'm crossing the border from Mexico to the US? That process of gathering information is precisely what would allow them to address the murderers who actually threaten my life.

58 minutes ago, Eiuol said:

Sorry if that was an unfair characterization of what you meant to say.

This reply just came up as I was finishing the above; so I may not respond to everything here, now, but in brief:

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When I read about stopping "all those who cross", that sounds like random searches to me. Well, maybe not literally random people since it is everyone, but if it isn't selective, it's arbitrary.

It is selective and not arbitrary in any sense: it is predicated on the change in jurisdiction. That's a based-in-reality discriminator.

58 minutes ago, Eiuol said:
16 hours ago, DonAthos said:

Sure. So suppose the DEA has a list of names, or even faces, of high-powered Mexican cartel figures. What then?

Then it would be selective, and then I'm fine with it. That is, a systematic and selective way to decide who to stop is perfectly fine to me. I feel like I'm missing something about your question.

Because they have Fring's name and face, but they don't know what car he is in. Because no car is stopped, no faces are looked at, no information is processed. They can't decide who to stop because they don't know who is out there, at all.

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The failure isn't the border to stop everyone who crosses. Yeah, stopping everyone who crosses the border would solve the problem, but so would data sharing and communication.

But that's just it: the stop at the border is the very thing that allows for that data sharing and communication. Data sharing/communication itself has to be targeted, if it is to be effective. Otherwise it's just noise. We can't simply ask every police agency in the world to send all of their information to Topeka, in hopes that one of its officers will one day just happen to notice a Paraguayan murderer lounging in a coffee shop -- and without facial recognition technology, no less! :)

It's like, imagine that you find a student wandering the halls of the school. You check his hall pass and now you know what classroom he comes from: you can talk to the teacher in that classroom and confab about his activities. Now imagine that he has no hall pass. Are you going to go classroom to classroom, asking every teacher? Now imagine that the student has a teleporter (and no hall pass): he may have originated from any classroom in any school on the globe, or maybe he's homeschooled. I suppose it means overtime, which is nice, but good luck in tracking him down.

I don't know that it's right to call something a "failure" in law enforcement if we're asking the impossible.

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It's not the process of checking that matters I think. Talking about the initial information that is perceptually available to you. Cameras would probably be appropriate because it's still basically the perceptual stuff you do. But facial scanning is not even close to what you do perceptually because it takes into account things you literally are unable to note on your own.

And why shouldn't we want to take into account things we're unable to note otherwise? Why isn't this a good thing -- the better for police to stop murderers?

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That's how you get prior justification by the way. You make simple observations to start. Science works the same way. You don't start with complex procedures that take hours to do by hand or done by a computer.

I well know your penchant for rabbit holes, Eiuol, so I'm leery of going too far down this one... but... with regards to science, don't we in fact create tools to measure/monitor systems in ways that we are unable to do with our bare, physiological perception? Isn't that the very basis of microscopes and telescopes and Geiger counters and so forth?

If you're suggesting that we don't simply point a telescope into space without knowing precisely what we're looking for -- well, don't we?

And with respect to criminology, we do have some broad idea of what we're looking for: we know that criminals exist, and we have information on specifics (albeit stored separately, according to jurisdiction; in a One World Government scenario, this discussion changes... but maybe, then, we wouldn't sensibly have "borders," either). Still, we need to look at people, "randomly," to be able to make use of that information. Police officers on the street look at people as they pass them by, "arbitrarily," I suppose, but it has to start somewhere.

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In the case of a border, maybe you see a bloodied arm hanging out the back of a car. That's a very blatant example, but that's the sort of thing I'm thinking about.

If there's a bloodied arm hanging out the back of a car, there's no need to suppose a border...

So that's your plan to catch Fring...? Wait until we find him literally red-handed?  And with the Parguayan murderer, I suppose we wait until he strikes again in Topeka...

Edited by DonAthos
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Just a separate post on the side issue of perceptual observation versus aided observation: Although it's a currently debated issue as to what is the way to apply 4A, what rights to privacy are, etc., I don't see it primarily in terms of aided vs unaided. I see it in terms active versus passive.

The original castle doctrine that the Earl of Camden discovered (if anyone actually read my wall of text) frames the issue in terms of "trespass," that the government may not even "bruise my lawn." Clearly there is some sort of active intrusion that is essential differentiating feature. Even if I'm sitting there with infrared detection scanning crowds of passersby, I'm not trespassing. IR is passive receiving of emitted radiation. But if I scan you with some sort of active device, something that is not just receiving but transmitting, in order to gain access to your person, papers, effects, etc., I'd say that constitutes a search and requires a warrant.

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4 hours ago, 2046 said:

Just a separate post on the side issue of perceptual observation versus aided observation: Although it's a currently debated issue as to what is the way to apply 4A, what rights to privacy are, etc., I don't see it primarily in terms of aided vs unaided. I see it in terms active versus passive.

The original castle doctrine that the Earl of Camden discovered (if anyone actually read my wall of text) frames the issue in terms of "trespass," that the government may not even "bruise my lawn."

How seriously am I meant to take this? Suppose that an innocent person is suspected of some crime -- such that there is probable cause for his arrest (if you grant that such a thing might sometimes happen, even in an otherwise ideal justice system). There is search, seizure, and incarceration, though the target of all of these has not initiated the use of force.

I'd say it is a lawn fairly bruised, but can we design a system without this as an unfortunate sometimes byproduct? Or there is the further question of something like subpoena power over witnesses.

If we say that a stop at a border is the bruising of a lawn (and I grant that it is) in the delay of however-so-long it might take, what about the delay incurred when the police make an otherwise justified stop, and traffic snarls behind it? Having a justice system and giving it the necessary power to function as a free society requires does not come cost-free. Some lawns will inevitably be bruised in the process, even as we work to minimize whatever burden innocent citizens might suffer when empowering law enforcement to do their job.

For the purpose of the creation of a just society, I think that a crucial distinction must be drawn between bearing the burdens of unjust law versus the burdens of enforcing just law.

4 hours ago, 2046 said:

Clearly there is some sort of active intrusion that is essential differentiating feature. Even if I'm sitting there with infrared detection scanning crowds of passersby, I'm not trespassing. IR is passive receiving of emitted radiation. But if I scan you with some sort of active device, something that is not just receiving but transmitting, in order to gain access to your person, papers, effects, etc., I'd say that constitutes a search and requires a warrant.

But even if we were to take "bruised lawns" as the standard, I don't see how a scan qualifies. I don't see what lawn is bruised. It neither picks my pocket nor breaks my leg for the police to have information about my identity or whereabouts.

And as for "active" versus "passive," I don't know that such a distinction does us any favors. Is entering a license plate number "active" or "passive"? How much closer does that bring us to resolving the actual issue?

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3 hours ago, DonAthos said:

How seriously am I meant to take this? Suppose that an innocent person is suspected of some crime -- such that there is probable cause for his arrest (if you grant that such a thing might sometimes happen, even in an otherwise ideal justice system). There is search, seizure, and incarceration, though the target of all of these has not initiated the use of force.

If you have probable cause you can get a warrant. If you don't understand this, you have no hope of understanding any argument involving 4A.

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12 hours ago, 2046 said:

If you have probable cause you can get a warrant. If you don't understand this, you have no hope of understanding any argument involving 4A.

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.

Edited by DonAthos
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On 9/14/2019 at 4:27 AM, DonAthos said:

And so it is with crossing a border (whether international or, say, between states): an individual has every right to do this, yet there may be some kind of delay at a crossing reflecting the real procedural change between one legal jurisdiction and another -- to ensure, again, that the person involved isn't a wanted criminal, or a known terrorist, or etc.

Well, here is Binswanger's essay.

 

The main bit that got me was when he pointed out that our government has no right to start bothering random people on a bus or on the street, checking to see that everyone can prove their citizenship somehow. I agree with that: such a policy would be a gross perversion of all the proper procedures for actually protecting individual rights. Well, if we have the right to be free of that anywhere inside of America then presumably anyone trying to cross the border has that same right to be left alone (as long as they aren't obviously carrying bodies or bombs with them).

As I've mentioned more than once, I'm not entirely comfortable with the implication that we should just be letting anyone cross in either direction, and trying to take care of the actual threats after-the-fact. But whether I'm comfortable with it or not isn't what's supposed to count here, and his logic does seem pretty solid to me.

 

And yeah; it's completely a procedural question. But as near as I can tell the just procedure would be totally and completely open borders.

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On 1/25/2019 at 3:29 PM, MisterSwig said:

Now, just replace pornography with Nazism or socialism, and you have a perfect application of Rand's principle of protecting people from seeing or hearing things that they find loathsome. According to her philosophy, it is entirely justified for a society to establish rules for public procedure or etiquette. If we want to keep socialists from advocating in public places, we have that right.

But not from writing or selling books about their (truly offensive) ideas, nor teaching it to their own kids (and those of any other consenting adults) nor talking about it online with anyone who's willing to listen.

So not only would it do us very little good to ban "public collectivism" on such grounds, it would add that air of mystique to such ideas (I believe it's called the Streisand effect) and in today's culture would be much more likely to get our ideas banned from the public, instead of theirs.

 

Honestly, your defense by the horrors of "what'll happen if enough people start taking them seriously" was so much stronger.

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On 9/13/2019 at 9:41 AM, MisterSwig said:

You're conflating two separate issues. First, there is the issue of border control: do we have the right to stop people at the border and question them? My justification for that is based on property rights and our need to protect the people inside the border from objective threats attempting to enter the country. Second, there is the issue of socialist activists already within the country, let's make them citizens of this nation demonstrating and espousing their beliefs on a public street corner. My justification for banning such activity on public property has to do with the taxpayer's ownership of that property and our right to democratically establish and enforce public codes of etiquette, per Ayn Rand's argument for banning pornographic displays in public. See my post on that here.

Yeah but you have argued for banning socialist ideas on the basis that they're objectively dangerous. It was a much stronger case than "we should ban them because they're offensive"; they are actually dangerous ideas.

And both cases boil down to "but what if X happens", which is not the proper question to ask.

On 9/13/2019 at 9:41 AM, MisterSwig said:

So you would need to argue against our right to control the border, not our right to enforce laws. Prove that such laws are wrong

I believe Harry Binswanger already did.

 

On 9/14/2019 at 4:27 AM, DonAthos said:

The appropriate procedural delay I discuss above has nearly nothing to do with modern or historical immigration policy, which is usually a mish-mash of xenophobia, economic protectionism and various other assorted collectivist ideas. If the border checkpoint were delimited to what I've briefly outlined, it would look far, far different than our own border today.

And what you outlined is the best argument I've heard so far for having a somewhat-controlled border. I'll have to chew on that while I'm at work today.

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On 9/14/2019 at 4:52 PM, 2046 said:

And it also doesn't really matter if want to start calling things "a special case," or just subjectively want to say you consider it reasonable and proper, or say hey it's just minimal. All of these arguments are question begging.

Really?

I'm still reading through that last page (and I'm actually more inclined to agree with you about this than with Don Athos) but subjectively feel like considering this a special case???

Citation very much needed, sir.

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On 9/15/2019 at 2:48 PM, 2046 said:

No warrantless screening happens. If you want to say the border is special, you need some reason that's not circular or a double standard.

I think that's where "access to criminal records" comes in. If you move from one state to another, it is generally possible for the police in your new state to find out about anything you've been convicted of in the previous one; not necessarily so with Mexico or Uruguay.

 

Of course, this seems to imply that all the data our government currently keeps on every single one of us is proper. I'm not saying whether it is or it isn't (frankly, there have been a number of recently made points I still need to chew on a bit); only that it does seem to be a part of it.

Because if it is right for our government to keep tabs on every single one of us (right down to our unique "social security numbers") then it would be wrong to just let people into the country for whom we don't have that information. But I think a case could be made that we shouldn't be keeping such close track of our own citizens, in the first place.

 

I really don't know. But "double standard" probably isn't applicable and "circular" most certainly isn't.

Edited by Harrison Danneskjold
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On 9/16/2019 at 12:59 PM, DonAthos said:

So that's your plan to catch Fring...? Wait until we find him literally red-handed?  And with the Parguayan murderer, I suppose we wait until he strikes again in Topeka...

Well, yeah. I said I wasn't entirely comfortable with where Binswanger's logic leads, but that is precisely it.

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On 9/14/2019 at 9:32 PM, DonAthos said:

Here's the rub. There may well be evidence that a given man is a criminal, or even actively on the run from law enforcement, but accounting to a transfer of jurisdiction, that evidence may not be immediately available (as it would otherwise be when a man goes from New York to Connecticut).

When Binswanger writes that a man does not have to satisfy "the government," it elides the fact that there are two distinct governments involved. A criminal ought not have a "home base" by crossing the border, where he is thereafter safe, and must commit fresh crimes before he can bear investigating. He remains responsible for the crimes he has already committed. But law enforcement in this new jurisdiction, if it is to hold him responsible for the crimes he has committed in the other, must be able to access that sort of information. And it cannot do so instantaneously with respect to everyone who might cross the border, nor would it even know to do so if it does not know who crosses the border at all.

Binswanger argues against an "indiscriminate subjection of everyone to a screening process," but a border screening process is not indiscriminate: it is alone for those who cross the border, and accounting to the fact that law enforcement agencies in different jurisdictions have different information. So when someone enters the new jurisdiction, there must be an opportunity to gain access to that information, so that criminals can be stopped and law-biding citizens can pass without further delay.

And presumably this would apply equally to American citizens and foreigners, alike? For instance, if I take a vacation to Cancun then the Mexican government should stop me on the way there and my own government should stop me on the way back (just in case I took up murdering random strangers while I was there)?

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7 hours ago, DonAthos said:

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.

4A argument 1: You need probable cause to get a warrant. You need a warrant to perform a search. Being an immigrant is not probable cause. It's a violation of rights to search immigrants without a warrant.

4A argument 2: You can perform stops and search with reasonable suspicion of involvement in criminal activity. Immigration isn't criminal activity. Therefore it's a violation of rights to stop and search someone for being an immigrant.

If that's confusing to you, I can't help you.

Let's review your argumens:

You argued that changing jurisdiction was a reason to perform a search. But I change jurisdictions all the time and still 4A applies to both jurisdictions. Nobody thinks I can be stoped and search just for changing jurisdictions. It seems like you're just making an exception for immigrants.

You argued that it would be impossible to get any information and enforce any laws. But 4A applies and people can get information and laws are investigated and enforced, even between US and Mexico and Canada. This is just factually false.

You argued that it's okay because we can posit sometimes we might have probable cause even though a person be innocent. This doesn't show why you can search someone without a warrant or why probable cause or reasonable suspicion shouldn't be required. 

All in all, seems bad. Seems like you just don't agree with 4A. Or don't think 4A should apply to immigrants.

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I wonder if unreasonable search and seizure is not becoming a red herring. After all, a physical "search" at the border isn't the real point; what IS the "need to know" by immigration officials, is: "Who are you?" The minimum requirement for an individual rights-affirming nation ought to be identification of the unknown individual. Then would follow the question, do you have any objection to a check run into your past records? I argue, this is not "unreasonable" information to "search" for.* His/her answer, at the very least, would display the good intentions of a prospective immigrant. If he grants his permission, he is implicitly proclaiming he has nothing to hide: he's prepared BY HIS FREE WILL**, to undertake the process leading to citizen status. The value of immigrants and of one's benevolence to incoming citizens, isn't arguable. But I caution not to be naive and intrinsicist about "who" and what some people can be in reality. (And individual rights are "objective" rights, not intrinsic rights).

*Checked this once, and assiduously, I'd think the gratuitous and unpleasant harassment of random people in public could mostly be avoided and stopped.

**What about those citizens now present, who'd earlier got away from authoritarian states, or organized crime and gangs, or Sharia laws, and so on? Does their "free will" count less than that of the illegal migrants (whose free will Yaron Brook admired)? Their rights, safety and peace of mind, from the identical threats they once knew, and seeing the same bad aspects of their native land following them 'here' -- seems to be overlooked.

Edited by whYNOT
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6 hours ago, whYNOT said:

After all, a physical "search" at the border isn't the real point; what IS the "need to know" by immigration officials, is: "Who are you?"

This is the point of the 4A. The government doesn't need to know who you are, unless there is explicit suspicion that you have probable cause to commit a crime, or did commit a crime. Full stop. If you don't like that, then you don't like the 4A. That right isn't granted by the US government (if it were, that would be a procedural right), but rather, it's a right that all people have because they aren't on desert islands (intrinsic would mean all people have rights even on desert islands). 

Yeah, individual rights really do entail that the government doesn't need to know you are, doesn't need to ask you questions, doesn't need to tell you what to do, doesn't need to figure out who deserves anything. All the government is supposed to do is intervene if your rights are violated or are being threatened. I imagine someone would say that crossing a border might be threatening because the person *could* be a criminal, but that isn't individual rights. It doesn't matter if it doesn't make sense to you why someone refuses to be asked questions or searched; it doesn't matter if you have good intentions when you ask to check their papers and records; it doesn't matter if the public feels uncomfortable or you feel uncomfortable. An individual has the right to be left alone even if they might possibly somehow potentially perhaps be a criminal 

All that up there is also intended for DA. Continuing on, building on that...

On 9/16/2019 at 1:59 PM, DonAthos said:

Should he go to another jurisdiction, for instance the United States, the authorities there will have no idea of the warrant for his arrest. No knowledge of him whatever.

And they don't need to find out either if they have no prior suspicion or justification to check that person. You're suggesting to me that the government just can't wait, it just isn't safe. The random person crossing the border could be a murderer, so we need to detain them until we can check! 

But is this really any different than saying your phones need to be wiretapped because we can't be too careful? That random person could sending an encrypted email could be as doing something very dangerous, we need to intercept their message before we can let it go through. You know, just in case. They might be a murderer from Paraguay who slipped through the cracks because authorities had no idea of the warrant for their arrest. The authorities still have no idea, but hey, you never know, they might discover probable cause after the fact. Then it will be all okay. And if the authorities find nothing, not a big deal, people don't have a right to privacy.

It should go the other direction. Authorities should know what they're looking for, and I like the distinction of passive that 2046 used. First, the governments or law enforcement create an agreement to share data. It might include a list of wanted criminals, or criminals who have disappeared. With that list in mind, they might be observant of people who fit a specific description, or a license plate. If something matches, a search is justified! From there, you go on to asking questions, or searching their car. This isn't some ideal system. This is very basic data sharing. You suspect that this is impossible or near impossible, when in fact it is already done in countless industries. What makes law enforcement different in its ability here?

On 9/16/2019 at 1:59 PM, DonAthos said:

It is selective and not arbitrary in any sense: it is predicated on the change in jurisdiction

You said neither random nor selective. If you mean "kind of" selective, okay, I grant you that. The procedure is selective, that is, you are searching only people at the border. But you didn't advocate for anything more in being selective about the individuals. Your standard for picking individuals to question or detain is arbitrary other than they are foreigners (because you are not advocating anything similar for people crossing between New York and New Jersey). Something as vague as "he looked like a man". 

https://www.youtube.com/watch?v=YzVF7rFtHIA

I understand your concern is having proper information, not "to get the foreigners", but you end up targeting them the same way. 2046 went over that basically.

On 9/16/2019 at 1:59 PM, DonAthos said:

They can't decide who to stop because they don't know who is out there, at all.

Well, too bad. There are other procedures to use if the DEA are certain of the imminent risk he poses. There are other ways to attain the information necessary to catch Fring. You asked me what my plan would be, the really want me to answer? That's an exercise of creativity, and a test of my detective skills. I don't know, maybe I would go back to talk to my informants? All you really said here is that I would be making it difficult. A little, maybe, but violating rights is always "easy". Everything is harder in comparison.

On 9/16/2019 at 1:59 PM, DonAthos said:

Data sharing/communication itself has to be targeted, if it is to be effective.

You misunderstand. Data is shared and communicated by agreement between two institutions. That's how it works anywhere. If people ask for data as needed, it just doesn't even work well. I'm not even sure what you're saying is impossible.

On 9/16/2019 at 1:59 PM, DonAthos said:

with regards to science, don't we in fact create tools to measure/monitor systems in ways that we are unable to do with our bare, physiological perception?

I like the distinction between active and passive better. But aided versus unaided can help determine if some form of search is passive or active. Looking with your eyes and jotting something down isn't active, and doesn't require extracting something private. Still, I stand by saying that we start with basic perceptual information first if you want to do good science. The timescale is much different, but only because I don't develop a science about DonAthos. 

So yeah, is perfectly fine to look at people arbitrarily and sometimes notice something important. Your case about the Paraguayan murderer assumes that law enforcement hasn't even noticed anything, though. Authorities would be beginning with an active search procedure by asking for documents, asking questions about the destination, and so on.

On 9/16/2019 at 1:59 PM, DonAthos said:

If there's a bloodied arm hanging out the back of a car, there's no need to suppose a border...

Yeah, because there is very obvious probable cause. 

Edited by Eiuol
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2 hours ago, Eiuol said:

The government doesn't need to know who you are, unless there is explicit suspicion that you have probable cause to commit a crime, or did commit a crime. Full stop.

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.

Quote

An individual has the right to be left alone even if they might possibly somehow potentially perhaps be a criminal

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.

Edited by DonAthos
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1 hour ago, DonAthos said:

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 what I am denying! The suspicion comes first, then needing to know who you are.

You have been suggesting to detain the person until the authorities have the proper documentation from Paraguay, just in case this person is a wanted fugitive. From the perspective of the US, that's all that the information we have. So I say go the other direction, start by having US law enforcement exchange data with the law enforcement of Paraguay, then keep an eye out for specific people while using passive information gathering. Should Topeka check with Paraguay? No, it would be on the FBI to tell Topeka that there is a wanted individual heading to Topeka in a green pickup truck. Something like that.

If I follow your thought experiment, you are saying that I can imagine my position as an impossible standard. I'm not even requiring some high standard to meet. If US law enforcement completely lacks any information at this moment, they are not justified in detaining people until that information is acquired. If information is needed from Paraguay, the US law enforcement has to get that much earlier. This expectation not only respects the right to privacy that all individuals have, but also a vast improvement in procedure with modern technology.

 

Edited by Eiuol
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1 hour ago, DonAthos said:

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.

Yeah so like the argument uses 4A as a premise. If you don't like 4A, then you won't like the argument. But I also, in my original post, argued for 4A itself. 4A is based on the Virginia and Massachusetts Declarations of Rights. Those, in turn, are based on the common law caste doctrine. That, in turn, is based on individual rights.

How? It seems like individual rights can be violated even when someone says they're only enforcing them. You have the rights you have, but you also have "procedural rights," which is to say, the right to have your rights-claims decided upon in an epistemically reliable manner. One principle that implies is the burden of proof. If anyone can just claim you might possibly have done something at any point for any arbitrary reason, just on the authorities' say so, then you don't really have any rights. So that's why the government has to meet certain thresholds. 

Of course there's much more to be said and can be said about this. But at no point was the argument that 4A should just be taken for granted or that it's the only possible tradition. 

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20 hours ago, Eiuol said:

This is the point of the 4A. The government doesn't need to know who you are, unless there is explicit suspicion that you have probable cause to commit a crime, or did commit a crime. Full stop. If you don't like that, then you don't like the 4A. That right isn't granted by the US government (if it were, that would be a procedural right), but rather, it's a right that all people have because they aren't on desert islands (intrinsic would mean all people have rights even on desert islands). 

Yeah, individual rights really do entail that the government doesn't need to know you are, doesn't need to ask you questions, doesn't need to tell you what to do, doesn't need to figure out who deserves anything. All the government is supposed to do is intervene if your rights are violated or are being threatened. I imagine someone would say that crossing a border might be threatening because the person *could* be a criminal, but that isn't individual rights. It doesn't matter if it doesn't make sense to you why someone refuses to be asked questions or searched; it doesn't matter if you have good intentions when you ask to check their papers and records; it doesn't matter if the public feels uncomfortable or you feel uncomfortable. An individual has the right to be left alone even if they might possibly somehow potentially perhaps be a criminal 

 

National Rights

A nation, like any other group, is only a number of individuals and can have no rights other than the rights of its individual citizens. A free nation—a nation that recognizes, respects and protects the individual rights of its citizens—has a right to its territorial integrity, its social system and its form of government. [...]

Such a nation has a right to its sovereignty (derived from the rights of its citizens) and a right to demand that its sovereignty be respected by all other nations.

 

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1. "...a nation that recognizes, respects and protects the individual rights of ITS CITIZENS [...]"

2. ...has a right to demand that its sovereignty be RESPECTED by all other other nations."

"All other nations"-  by the same formulation that a nation "is only a number of individuals" - means, as well:  all individuals who are presently citizens of other nations. The nation they're applying for immigration to, therefore has the right to ~demand~ that its sovereignty be respected, Rand put it. I read that as individuals not crossing borders illegally.

If you're sensitive about ~perceived~ xenophobia and (mostly) unwarranted suspicion of outsiders, Eioul, you could bear in mind that this immigration process is and should be one of mutual respect and value-trade. 

Candor about one's basic identity is also important. ["Who are you?"]. The same way one approaches a stranger at a social gathering: "Hi, I'm Johnny. Who would you be?" Hi Johnny. I'm the US Government"...

That indicates good will, openness and respect, the apposites and demolisher of distrust.

Frankly, if that basic information is not voluntarily forthcoming from a prospective immigrant, why admit him? From obligation and dutifulness? This is where the trepidation of several countries of appearing racist (-collectivist) has been concealing altruist self-sacrifice. Both, equally, are the culprits of bad immigration policies.

For the nation and "its citizens", they most definitely are owed the obligation by government, of this basic identification of immigrants; to repeat, the lack of it is what causes societal unease and that is NOT racism (- while it naturally does promote xenophobia). I related a friend's tragedy, how an undocumented illegal managed to escape capture and commit several shootings for a long while - the consequence of being anonymous. When an applicant becomes a citizen is when his rights under the 4th are secured, not before. I'd believe.

(BTW, even those early immigrants off the ships at NY Harbor had to show some identification).

Edited by whYNOT
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49 minutes ago, whYNOT said:

ITS CITIZENS 

if your emphasis here means that you think that noncitizens don't require their rights to be respected, you are dreadfully confused. I feel that I've wasted enough time explaining things to you now and in the past, so I don't want to explain it.

49 minutes ago, whYNOT said:

From obligation and dutifulness?

Because who the hell cares? That's the point. It doesn't matter why someone keeps something private. They have that right. 

49 minutes ago, whYNOT said:

That indicates good will, openness and respect, the apposites and demolisher of distrust.

Unless you want to speak with goodwill and openness about why you haven't immigrated, then I don't care what you have to say on that topic. 

 

Edited by Eiuol
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1 hour ago, Eiuol said:

if your emphasis here means that you think that noncitizens don't require their rights to be respected, you are dreadfully confused. 

 

 

These particular "rights to be respected" are (according to you) not being required to volunteer their names (under the 4th Amendment).

So tell me: do you have to divulge your name to get a driver's licence there? A ...anything? Maybe you plead the 4th?

And when did I say non-citizens don't have any rights? 

 

Edited by whYNOT
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1 hour ago, Eiuol said:

 

Unless you want to speak with goodwill and openness about why you haven't immigrated, then I don't care what you have to say on that topic. 

 

Non sequitur. None of your business.

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Then you leave a self-contradiction behind. The Traffic Department (of your State) can insist on knowing your name and address if you want a licence, but such information cannot be asked by immigration officials of an immigrant? Dumb. 

We should be honest. We all here know what are the fundaments of this debate. Despite a history of several previous Admins battling the same problem, this has resurfaced - lately - with a vengeance, and out of all prior proportion -- because now it is Leftist-propagandist driven. And that agenda is ALL about thwarting this president and frustrating his electorate. And believe me - from my experience with lefties and socialists, like I saw in Zimbabwe - not very much is about kindness and concern for others...They need to advertise their altruist virtues to others much more than they act - the least part - to actually help migrants. Pure power lust and sacrifice of others, and the illegals are just a tool.

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