Edge of Chaos is a political podcast starring Joe Ryan and Neurotoxin. Its aim is to have a free-flowing discussion of news and current events that also examines the empirical outcomes of public policy, avoiding biases based on ideology and policy intentions. Listener discretion is both advised and encouraged.

Wednesday, July 10, 2013

Due Process

In light of the Adam Kokesh situation, let's discuss due process. I've been guilty in the past of getting too emotional on this subject and will do my best to remain objective; but the widespread lack of understanding of the importance of this principle quite frankly gives me the creeps.

Firstly, "due process" refers to the laws and constitutional provisions that govern law enforcement, judicial proceedings, and incarceration.

In the years since 9/11, the US has engaged in a very disturbing trend of shirking due process to expedite law enforcement - allegedly to make it more effective and pursue public safety. I fully understand that most Americans who submit to or believe in this do so in good conscience, thinking due process is cumbersome and the red tape may obstruct the apprehension of a dangerous criminal or the derailing of a terrorist plot. However, scientifically speaking, shirking due process to expedite law enforcement is NEVER a good idea. Public opinion may disagree, but objective science makes a logically impeccable case for this with heaps of historical evidence and there is virtually no counter-argument to be found. If 60% of Americans disagreed with gravity, things would still fall to the Earth at an acceleration rate of 9.8m/s/s.

A common sense way to explain this is there is 0 reason to believe people will just follow rules. Those who want effective law enforcement presumably do so because they understand a significant number of people will not simply obey laws because they are told to. Well, public officials and law enforcement officers are people too, and as prone to breaking the rules as anyone else. By the same logic, due process is a necessity to make them obey the laws governing their jobs - they will not do so simply because they are supposed to.

At first, forgetting due process may seem to make law enforcement more effective, as diligent professionals celebrate their increased capacity to do their jobs and make a difference. But over time, egregious and costly abuses of power are an inevitable outcome. Just as most people who ignore laws do so simply because obeying them is cumbersome and inconvenient - the same temptation to save time and resources overtakes even the most honest law enforcement agencies when the threat of repercussions is removed. The resulting organizational cultures of "just do it, we're the police" open the door for massive increases in corruption and fraud, and ultimately brutality and complete disregard for citizens' rights; simply because law enforcement is not motivated to work diligently.

After 12 years of the Patriot Act providing law enforcement, especially Federal, ample avenues for shirking due process - this effect is beginning to creep in from all sides. We witnessed this after the Boston marathon bombing. Of course the perpetrators needed to be caught, and I understand the temptation to cheer and salute law enforcement professionals chasing down murderous lunatics that caused so much pain and suffering. But WHERE in the Constitution does it say any level of government has the authority to order Americans that haven't committed a crime to stay in their homes? WHERE does it authorize warrantless searches and demands of identification by law enforcement? We witnessed the same thing last night with Adam Kokesh. Driven by activism or not, the man committed a number of Federal felonies and in law enforcement terms - it would have been totally acceptable to go to his house and arrest him. However, Federal law enforcement opted to use Patriot Act provisions to label him a terrorist and conduct an armed raid in full combat gear against a group of people that offered 0 resistance. We have witnessed similar practices in a number of manhunts and even with certain weather emergencies.

Despite an intelligence-insulting barrage of speculation often engaged in by politicians like John McCain and Mike Rogers, there is 0 evidence any of this is necessary or makes law enforcement work better. Tsarnayev, for example, was spotted by a citizen shortly after the shelter-in-place orders were lifted. Kokesh has been arrested several times and has never put up a fight or hurt anyone. Spun as "for your own safety", authorities simply code anything they find challenging using vague terms found in the Patriot Act to ease their jobs at the expense of civil liberties, and with the occasional ulterior motives such as opportunities to use big, expensive toys; or intimidating activists that oppose their practices. I'm sure someone can find a case somewhere that shirking due process actually helped do something positive, but what I'm saying is there is 0 reason to believe this practice is beneficial overall - and as I'm about to present, the costs are enormous.

I will not get into how these conditions are conducive to the erosion of democracy and the rise of dictatorial police states. They are, but they're nevertheless not sufficient and I don't think we are at great risk for that as a country. However, the existing results of unaccountable law enforcement are all around us and we needn't go far to find them - from the frequency of police brutality aimed toward the mentally ill and other difficult-to-deal with individuals they encounter, to the 2 innocent women that were shot by overzealous cops during the LA manhunt for the rogue officer, to the crowded and abysmal conditions of our prison system and the rampant exploitation of prison labor. Then of course there's the political spillover. It doesn't quite qualify for comparisons to Stalinism, but law enforcement is typically not fond of protesters and activists because they create excess and cumbersome work - and hence even completely peaceful protesters like the opponents of the Keystone XL pipeline have been harassed and placed on terrorism watch lists, simply because law enforcement dislikes them and is allowed to get away with this. Finally, like most costs associated with government ineffectiveness, these fall disproportionately on the backs of the poor and minorities - contributing to the increase in likelihood of the disadvantaged being victimized by a justice system already notorious for discrimination.

Even without the real but often overstated possibility of the rise of an Orwellian state, a government allowed to ignore due process is infinitely more dangerous and costly than any criminal or threat it apprehends by doing so. I acknowledge that due process can be cumbersome and that some regulations do become obsolete and ineffective over time. However, just as advocates of law and order often tell me that dumb laws should still be respected to preserve peace and safety until the democratic repeals them - I offer these people the same argument for due process. There are legally prescribed ways of changing that system as well, such as Constitutional Amendments, that are intended to make law enforcement more effective without throwing out due process as a whole because it's cumbersome. These ways are slow precisely because the Founding Fathers understood that due process is too fragile to be trusted to simple majority rule and protected it from being altered easily and quickly. What we are witnessing currently as a result of its partial dismissal for a decade is all the evidence necessary to demonstrate they were right.


No comments:

Post a Comment