Orwell Would Be Proud: NSA Defender Explains How Even Though NSA Spies On Americans, It's OK To Say They Don't

from the try-that-again? dept

Benjamin Wittes of the Brooking Institution has become the go-to non-government NSA apologist. One of his most recent articles is a true work of rhetorical artistry, in which he tries to explain why saying "the NSA doesn't spy on Americans" is acceptable shorthand for the fact that the NSA spies on pretty much every American. It's a master class in political doubletalk. First, it's the law's fault. The law, you see, is too complicated for mere mortals not working for the NSA to understand, so that makes it okay to lie:
The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.

Any effort to summarize the relevant law necessarily ignores themes sufficiently important to its architecture that the reductionism will partake of serious inaccuracy. The person who told my friend that NSA does not spy on Americans was not lying. He or she was highlighting a crucially-important limitation on NSA’s authority vis a vis US persons. The law and the relevant regulations all contain significant territorial restrictions and significant protections for US persons overseas as well—all designed to separate the foreign intelligence mission of NSA from both domestic intelligence and domestic law enforcement. It’s a sincere and pervasive effort. “We don’t spy on Americans” is a common shorthand for a wealth of law and practice that really and meaningfully keeps the agency out of the business of being a covert domestic intelligence agency.
Got that? Because there are some limitations on all the spying they do on Americans, and it's too complicated to understand those limitations, so it's okay to lie and say they don't spy on Americans. Of course, in the very next paragraph, Wittes tries to effectively brush away the massive amount of surveillance done on Americans.
NSA, after all, does spy on individual Americans with an order from the FISC. It does, moreover, capture all domestic telephony metadata. And most importantly, it does routinely capture communications between Americans and the targets of its surveillance and incidentally capture other material its systems scoop up overseas—subject to rules that limit the retention and processing of US person information. In other words, to say that NSA does not spy on Americans emphatically does not mean, as a reasonable student or citizen might expect it to mean, that the agency does not regularly acquire and process the communications of Americans.
Of course, as Jameel Jaffer from the ACLU points out, this is all nonsense because it's a simple fact that the NSA does do surveillance on Americans, and to claim otherwise is not acceptable shorthand. It's a lie. And while Wittes then tries to obfuscate things even more by trying and purposely failing to come up with a concise way of summarizing what the NSA does, Jaffer helps out with a few workable suggestions:
This is nonsense. Perhaps Ben’s right that it’s difficult to come up with a single sentence, or even a single paragraph, that clearly and comprehensively describes the nature and extent of the NSA’s surveillance of Americans. (Can you describe any federal agency’s functions in a single, comprehensive paragraph?) But it’s not difficult to come up with a sentence more accurate than “The NSA doesn’t spy on Americans.” Try this one: “The NSA spies on Americans.” Or this one: “The NSA collects a huge amount of information about Americans’ communications and in many contexts it collects the communications themselves.” Or this one: “The NSA is sometimes described as a foreign-intelligence agency but this label should not obscure the fact that a large part of the agency’s energy is dedicated to collecting and analyzing information about Americans.”
Jaffer further points out that Wittes's suggestion that those who claim the NSA doesn't spy on Americans are really trying to tell the truth through shorthand, is actually misleading. As Jaffer points out:
Any official who says the NSA isn’t spying on Americans is seeking to mislead.
And anyone defending that statement is trying to support that fundamental attempt to mislead.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ninja (profile), Feb 6th, 2014 @ 7:30am

    The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.

    Really. So why isn't the law written in less pompous language so the common folk won't face a complex pandemonium of words? If the common folk can't understand the law because lawmakers and lawyers made it freaking complexly written so they can pretend they are something better than the average citizen then how can you reasonably expect such common folk to follow it and on top of it say that "lack of knowledge on the law does not exempt one from following it"????

    BRING THE LAWS BACK TO A LEVEL WHERE IT WILL BE NATURAL BEHAVIOR TO FOLLOW THEM. People don't kill not only because there's a law but also because we generally accept that killing is bad. We also generally accept that a Government should not be able to abuse its position of power over the regular citizen to spy him/her or do whatever it pleases without the check of a judicial warrant. The list goes on and on. If the law is complex then it is wrong. Plain simple.

     

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  2.  
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    John Fenderson (profile), Feb 6th, 2014 @ 9:12am

    My new pet peeve

    "The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process. "

    I see this a lot from NSA defenders, even from many of the ones that comment here. This has become my new pet peeve because the statement (just like the "it's all legal" defense) completely misses the point, is irrelevant, and is an attempt to distract from the essential objection.

    In short -- it doesn't matter whether or not the law recognizes these activities as spying. When I say they're spying, I'm talking about the cold, hard reality, not some arcane interpretation of law.

    If you're keeping tabs on me, if you're collecting information about me without my consent (whether you ever look at it or not), then you're spying on me. Period.

     

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  3.  
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    Chris-Mouse (profile), Feb 6th, 2014 @ 9:16am

    The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.

    Perhaps what is needed is a requirement that the laws must be written in a form the average citizen can understand.

     

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  4.  
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    Anonymous Coward, Feb 6th, 2014 @ 9:33am

    Re:

    Also require that the laws should fit into a single volume that the average citizen can read. This would require that old laws are pruned as new one are written.

     

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  5.  
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    krolork (profile), Feb 6th, 2014 @ 9:33am

    We need a revolution.

     

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  6.  
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    John Fenderson (profile), Feb 6th, 2014 @ 9:37am

    Re: Re:

    I've advocated for years that all laws should have an expiration date and require review & renewal every so often.

     

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  7.  
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    Anonymous Coward, Feb 6th, 2014 @ 9:40am

    Consise statements...

    How about this one...

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

     

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  8.  
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    Anonymous Coward, Feb 6th, 2014 @ 9:42am

    Re: Consise statements...

    Also, if that's your idea of dense and complicated, then maybe you shouldn't be in the discussion as it seems pretty simple and straight forward for everybody else.

     

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  9.  
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    AricTheRed (profile), Feb 6th, 2014 @ 9:46am

    Re: Re:

    How about, a new law should fit in to a single volume that the average citizen could lift. If this were the case then the ongoing decline of the physical fitness of Americans would be an ally of liberty.

     

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  10.  
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    AricTheRed (profile), Feb 6th, 2014 @ 9:47am

    Re: Re: Consise statements...

    I'm so gonna email Benjamin Wittes those last two commnets!

     

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  11.  
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    jackn, Feb 6th, 2014 @ 9:49am

    The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.

    There should be a name for this defense, like a new category of logical fallacies.

     

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  12.  
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    edpo, Feb 6th, 2014 @ 9:51am

    Lawfare

    Benjamin Wittes is either a moron or a liar.

    I used to read Lawfare regularly and couldn't believe some of the crap I was reading: poorly articulated explanations of the law, misrepresentations, failures to account for actual and accepted evidence that contradicted Lawfare claims, etc. And much of the content is written by temporary law school interns, who have little experience in any aspect of the areas on which they were writing as supposed authorities, often with glaring errors.

    Maybe they think their readers are neither intelligent nor lawyers who can see through the obfuscation. I don't know. But I finally just unsubscribed from the RSS feed and deleted the bookmark as it was a complete waste of time.

     

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  13.  
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    That One Guy (profile), Feb 6th, 2014 @ 9:52am

    Talk about a short memory...

    This statement...

    'The person who told my friend that NSA does not spy on Americans was not lying.'

    Would seem to be rather directly contradicted by this...

    'NSA, after all, does spy on individual Americans with an order from the FISC. It does, moreover, capture all domestic telephony metadata. And most importantly, it does routinely capture communications between Americans and the targets of its surveillance and incidentally capture other material its systems scoop up overseas—subject to rules that limit the retention and processing of US person information.'

    So, 'The NSA absolutely does not spy on americans and their communications... except for when they do'. With that kind of argument thrown out to 'defend' the NSA, it's no wonder no one believes anything they say, they can't even keep their lies straight in a single interview.

     

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  14.  
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    That One Guy (profile), Feb 6th, 2014 @ 9:54am

    Re:

    I think he's going for the Chewbacca Defense actually, baffle them with nonsense and hope they don't realize the truth(exploded heads optional).

     

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  15.  
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    Anonymous Coward, Feb 6th, 2014 @ 9:56am

    Re: Re: Consise statements...

    Furthermore, if the law is dense and complicated that is only because lawyers and legal scholars like Wittes weasel word things to twist it so much that they make it that way.

     

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  16.  
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    Anonymous Coward, Feb 6th, 2014 @ 9:58am

    Re: Consise statements...

    tl;dr


    but seriously, their use of 215 to spy on us citizens is, at the very least, downright unamerican (and i believe it is illegal). nsa and their ilk should be ashamed of themselves, but money makes people overlook lots of things.

     

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  17.  
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    Anonymous Coward, Feb 6th, 2014 @ 10:01am

    Here's a less complicated law that the NSA should follow...

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

     

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  18.  
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    Lurker Keith, Feb 6th, 2014 @ 10:06am

    Re:

    Why not start w/ Congress actually reading the Bill before voting on it, & making it easy enough to read that they can read it w/o a staff member assisting them?

    Then we can go on & make sure the Law can be understood at least by the Average Citizen.

     

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  19.  
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    Anonymous Coward, Feb 6th, 2014 @ 10:08am

    If, as he contends, the people who criticize the NSA over their programs and misunderstand that the NSA isn't really spying on Americans because the law is too dense and complicated for them to understand, then I would have to ask him, what about Wyden and Udall or the lawyers with the ACLU and EFF that have studied the law at length? Is it too dense and complicated for them to understand? Is he saying that Wyden just wasn't smart enough to understand Clapper's answer to his question and that is why it supposedly wasn't a lie? Really? How elitist of him.

     

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  20.  
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    Anonsters, Feb 6th, 2014 @ 10:20am

    Re: Lawfare

    I also used to read it daily, but it has become so pro-NSA in its position I just couldn't take it. It's one thing to present both sides of an argument in an even-handed way, then come down on one side or another (giving reasons for why you're doing so, of course). It's something completely different to be a shill for one side to a debate, and that's what Lawfare has become. I figure they'll be adding Stewart Baker to their roster of contributors in the near future.

     

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  21.  
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    Anonymous Coward, Feb 6th, 2014 @ 10:29am

    Re: The unobtainium defense....

    It worked in the movies, I'm sure Congress could get a great deal on licensing the term from their buddies in Hollywood....

     

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  22.  
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    Mason Wheeler (profile), Feb 6th, 2014 @ 10:31am

    Re:

    I've always favored the solution proposed by Gulliver's Travels: Any law containing more words than there are letters in the alphabet is automatically deemed unconstitutional.

     

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  23.  
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    Anonymous Coward, Feb 6th, 2014 @ 10:32am

    For ages and a day it seems, judges have often in court made the comment that ignorance is no excuse for breaking the law. Yet here we see that yes it is an excuse. You have the FISA court making laws the citizen can not know about and yet be held accountable for.

    When it comes to the government suddenly everything that a citizen is held responsible for is thrown out the window as not being applicable. The government can and does use malware to infect your personal computer and it is ok, they are only spying. You do it and face years in prison over it.

    There is a reason that the American people hold both congress and the government in such low esteem. Both have proven not to be working for the interests of the people but more times than not working against them. Yet they need these same people to vote them into office.

    I see no good ending to all this as it doesn't look like anyone in the government is listening to the people with any intention of making right the wrongs with very few exceptions. With the rich sucking in all the money this doesn't have much longer in time frame before all hell breaks loose. All it's going to take is a large portion of the population no longer able to afford food and utilities. We are not far off from that now.

     

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  24.  
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    John Fenderson (profile), Feb 6th, 2014 @ 10:34am

    Re: Re: Lawfare

    Actually, I have no problem with a site taking a specific side on an issue and arguing for that side. That's entirely legit.

     

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  25.  
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    Ragnarredbeard, Feb 6th, 2014 @ 10:41am

    Having served in the USAF for 24 years as an intelligence specialist, and having worked as an analyst, trainer, collector and disseminator, I can say without hesitation that NSA spies on Americans.

    We need to reform the system, but the people we have elected are not up to the job.

     

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  26.  
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    Crusty the Ex-Clown, Feb 6th, 2014 @ 10:43am

    It's time to play "Spot The Loony"

    ...and I think we've got him first try. Unless he's a dweeb, or a mere academician, or some other form of pointy-headed intellectual who thinks book learning is all you need. Reminds me of somebody-or-another's law:

    In theory, there's no difference between theory and practice; however, in practice it turns out there is.

     

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  27.  
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    Sunhawk (profile), Feb 6th, 2014 @ 10:58am

    Re: Re:

    That would lead to some quite amusing attempts to fit a law down to the word count, no doubt.

     

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  28.  
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    Anonymous Coward, Feb 6th, 2014 @ 11:02am

    As long as you don't know we're lying...

    ...we're not. Where have I heard *that* "style" of reasoning before? Oh, right.

     

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  29.  
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    DannyB (profile), Feb 6th, 2014 @ 11:03am

    Re: My new pet peeve

    > In short -- it doesn't matter whether or not the law
    > recognizes these activities as spying.

    In short -- it doesn't matter whether or not the law
    recognizes systematic gassing and execution of certain people as murder or genocide.


    Seriously. I am not Gowdin'ing this thread. I'm not accusing anyone of being a Nazi. Just using the horrors as an example along a gradient of distortions of language.


    But this comparison works well for the quote in the article.
    The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.
    Well, that quote works equally well here, doesn't it? So just say that murdering six million people isn't murder or killing because the nuances of the rationalization are too complicated.

     

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  30.  
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    Anonymous Coward, Feb 6th, 2014 @ 11:05am

    Ignore paid apologists. We are past the pont of writing polite letters with this massive criminal activity.

    Natural selection will apply even in wild capitalism.

     

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  31.  
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    DannyB (profile), Feb 6th, 2014 @ 11:11am

    We're not Spying is like saying We're not Torturing

    Wouldn't it be accurate to say that the US does not torture? After all, the nuances of the limitations are so complicated that the average citizen could not understand it. So we'll just say "we don't torture".

    We'll call it Enhanced Interrogation Techniques.

    Or Skinny Puppy private listening sessions.

    And the facility that does this is not a secret prison camp outside the US, it is called The Ministry Of Love.

     

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  32.  
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    Anonymous Coward, Feb 6th, 2014 @ 11:12am

    Re:

    wasn't that an unspoken rule of the day? started with the constitution, and the bill of rights, etc. They wanted everyone to understand why they were upset, and how they were going to fix it. they used simple common language to purposefully not miss the point.

    overtime, the new "bosses" (not leadership) decided that it would better serve to employ a dual-vernacular linguistics pattern to obfuscate the derived meaning of the intended law. Ergo and effortlessly, the law could be utilized for deterring the nefarious and revolting actions of the people.

    and, i refer to them as bosses, not leadership because a leader wouldn't lead their people into legal boobie-traps on purpose.

     

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  33.  
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    Mason Wheeler (profile), Feb 6th, 2014 @ 11:23am

    Re: Re: Re:

    Including the Bill of Rights?

    The current administration would just love that...

     

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  34.  
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    NAProtector, Feb 6th, 2014 @ 11:23am

    In other words

    The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.

    In other words, he is saying that all citizens are stupid.

     

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  35.  
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    John Fenderson (profile), Feb 6th, 2014 @ 11:39am

    Re: Re: Re: Re:

    Ok, Mr. Pedant. :) All laws passed by the government, then.

     

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  36.  
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    Anonymous Coward, Feb 6th, 2014 @ 11:40am

    Re: In other words

    Most but not all Citizens are stupid... but despite the stupidity of the average American this can be changed. Remove all of the things that are designed to hold peoples hands. Do provide necessary information freely, but do not complicate things so much that a lawyer is necessary to "buy" protection from the asshole of the law!

    If any law is so dense and complicated that a citizen cannot accurately summarize it (within reason), then that law needs to be abolished and rewritten until it can be.

    It is not acceptable to punish people for things they cannot possibly understand.

     

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  37.  
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    Anonsters, Feb 6th, 2014 @ 12:04pm

    Re: Re:

    "wasn't that an unspoken rule of the day? started with the constitution, and the bill of rights, etc. They wanted everyone to understand why they were upset, and how they were going to fix it. they used simple common language to purposefully not miss the point."

    Not so much. They very much used terms of art and deliberately vague terms. "Due process" was a term of art in English law. "Cruel and unusual punishment" is a deliberately vague term. Examples can be multiplied.

    The Founders were by and large the American equivalent of aristocrats. They weren't populists who just wanted to give the little people a chance.

     

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  38.  
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    Anonymous Coward, Feb 6th, 2014 @ 12:04pm

    "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."
    -Thomas Jefferson

    "The more corrupt the state, the more numerous the laws."
    -Tacitus

    "The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process."
    -Benjamin Wittes

     

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  39.  
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    Anonymous Coward, Feb 6th, 2014 @ 12:05pm

    Re: Re: Re: Re: Re:

    Is your contention that because Constitutional amendments have to be ratified by the states that they then are not "passed by the government"? If so are not the state governments that handle this ratification process also considered part of "the government"? And if so then should your statement then be amended (see whst I did there) to read as follows...

    "All laws passed by the federal government, then."

    :)

     

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  40.  
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    Anonsters, Feb 6th, 2014 @ 12:07pm

    Re: Re: Re: Lawfare

    I agree, it is totally legit. It's not totally legit to "argue for that side" by ignoring all contrary evidence, refusing to deal squarely with the objections people present to that side, and generally deploying demagoguery to wave the banner for your side.

    Of course, that's also legit, in a way. Far be it from me to tell people what they can and can't write on their own website. But it's also legit for me to call shenanigans and stop reading their website.

     

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  41.  
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    Anonymous Coward, Feb 6th, 2014 @ 12:11pm

    Re: Re: Re: Re: Lawfare

    Sure it's perfectly legit for him to write such nonsense just as it is perfectly legit for the rest of us to roast him for it.

     

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  42.  
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    Anonymous Coward, Feb 6th, 2014 @ 12:15pm

    Re: Re:

    so you are saying we should write laws our in unicode?

     

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  43.  
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    Anonymous Coward, Feb 6th, 2014 @ 12:18pm

    Re: Re: Re: Re: Re: Re:

    and this, ladies and gentlemen, is exactly why laws are written in complex doublespeak. common language is far too loose to nail down definitions accurately.

     

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  44.  
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    John Fenderson (profile), Feb 6th, 2014 @ 12:35pm

    Re: Re: Re: Re: Re: Re:

    Touche!

     

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  45.  
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    John Fenderson (profile), Feb 6th, 2014 @ 12:39pm

    Re: Re: Re: Re: Re: Re: Re:

    It is an example, but in a different way than you suggest. The problem is, as with the above comment thread, when people are intentionally trying to twist the clear meaning of the original statement. This is what is called "legal weaseling," I believe.

    However, as I learned the hard way with drafting contracts, attempting to plug all the ways that words can be twisted is fruitless -- the more complex and comprehensive the language, the easier it is to find loopholes.

    The only actual solution -- and it's a really difficult one -- is to find a way to get actual integrity in government.

    For my personal contract lessons, I learned that the length I want a contract to be is inversely proportional to how much I trust the other party, and if that contract exceeds a certain size, I'm much better off just not doing the deal at all.

     

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  46.  
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    alternatives(), Feb 6th, 2014 @ 1:05pm

    Re:

    The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process. .... Really. So why isn't the law written in less pompous language

    At this stage of the game Language has little to do with the density and complication.

    Its the damn layers that make "law" which are the problem.

    The Constitutions are simple enough.

    Then you have the Statutes written by CON-gress and signed by the executive. Now some of these are no fun to read but they tend to be understandable.

    From here you have what the regulatory bodies have opted to claim the law is and what the Judges have decided what law is. Then you have a layer of the people with the guns and the keys to the jailhouse.

    So for any "law" you have the local yahoo with the badge or the authorization to act as a enforcer of some code/rule/regulation. If the "law" in question is a criminal matter - you have the DA's who've set themselves up as the gatekeeper and try to block access to Grand Juries. Then that "law" is subject to what a Judge has said in the past.

     

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  47.  
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    alternatives(), Feb 6th, 2014 @ 1:11pm

    Re:

    Perhaps what is needed is a requirement that the laws must be written in a form the average citizen can understand.

    Take some time - read your State's Constitution. Then pick a chapter or 2 from the State Statutes. (Criminal Procedure so you have an inkling of what is supposed to happen and doesn't so you have a shot and getting charges dropped if you get nailed for something)

    Most States have a guide to drafting Statues - and they have a 8th grade reading level target.

     

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  48.  
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    Anonymous Coward, Feb 6th, 2014 @ 1:25pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    So if you are saying that the lawyers that twist the laws self-servingly to make them mean something other than they intended are the pedantic little twats that cause our laws to be "dense and complicated" such that they are difficult for people to understand, I completely agree.

     

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  49.  
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    Anonymous Coward, Feb 6th, 2014 @ 1:26pm

    Re: Re:

    Layers? What layers? The law is more like spaghetti than it is lasagna. :)

     

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  50.  
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    Anonymous Coward, Feb 6th, 2014 @ 1:44pm

    Re: Re: Consise statements...

    Really? My comment was tl;dr?

    Ok I'll make it even more concise for you.

    Stop violating the 4th amendment you, dipshits!

     

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  51.  
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    tracker1 (profile), Feb 6th, 2014 @ 2:07pm

    One change to the constitution...

    If I had a time machine, I'd make an effort to convince the founding fathers that any and all votes by congress and signing into law by the president any federal law, said voter/signer would need to be present for an oral reading of a given bill before being permitted to vote on it.

    No twelve thousand page laws would be voted in...

     

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  52.  
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    wec, Feb 6th, 2014 @ 2:16pm

    If you can not tweet the law it is too complicated.

     

    reply to this | link to this | view in thread ]

  53.  
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    That One Guy (profile), Feb 6th, 2014 @ 2:29pm

    Re: Re: Re: Consise statements...

    I believe the comment was meant to be a joke, since apparently that 'lengthy' amendment is too long for the various government agencies and courts to be able to read and understand.

     

    reply to this | link to this | view in thread ]

  54.  
    identicon
    Anonymous Coward, Feb 6th, 2014 @ 2:58pm

    Re: Re: Re: Re: Consise statements...

    Yeah. I missed that.

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Anonymous Coward, Feb 6th, 2014 @ 3:06pm

    "The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process."

    Well seing as EVERYONE happens to be a "citizen", then that means NOBODY can "reasonably process", which basically means, its broken

    Unless offcourse you view our "leaders" as some sort of ......elite class or sumthin........maybe their "special"

     

    reply to this | link to this | view in thread ]

  56.  
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    beltorak (profile), Feb 6th, 2014 @ 3:41pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    > It is an example, but in a different way than you suggest. The problem is, as with the above comment thread, when people are intentionally trying to twist the clear meaning of the original statement.

    It is exactly what i meant. (i dunno why this particular browser keeps purging my cookie :-/) And you are absolutely right. The only real solution is for people to deal honestly with each other.

     

    reply to this | link to this | view in thread ]

  57.  
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    That One Guy (profile), Feb 6th, 2014 @ 6:58pm

    Re: Re: Re: Re: Re: Consise statements...

    No worries, everyone has 'hindsight moments' like that occasionally.

     

    reply to this | link to this | view in thread ]

  58.  
    icon
    nasch (profile), Feb 6th, 2014 @ 10:29pm

    Re: Re: Re:

    "Cruel and unusual punishment" is a deliberately vague term.

    I think they used vague terms not to obfuscate but to be broad. For this example, they didn't want to specifically describe what is cruel and unusual for fear that someone in the future would come up with some terrible thing to do to another person that doesn't meet the definition. And they were certainly right.

     

    reply to this | link to this | view in thread ]

  59.  
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    nasch (profile), Feb 6th, 2014 @ 10:34pm

    Re: Talk about a short memory...

    So, 'The NSA absolutely does not spy on americans and their communications... except for when they do'.

    More like "The NSA does not spy on Americans even though they do": "to say that NSA does not spy on Americans emphatically does not mean... that the agency does not regularly acquire and process the communications of Americans."

    Is it possible for anyone to actually believe that "spying" is emphatically not "acquiring and processing information"? He's just bullshitting, right? Does he ever say what activities would qualify as spying on Americans? Does it have to involve actually looking into our windows?

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    henry, Feb 7th, 2014 @ 2:06am

    DEA teaches agents to recreate evidence chains to hide methods

    Another use for the hoover

     

    reply to this | link to this | view in thread ]

  61.  
    identicon
    Anonymous Coward, Feb 7th, 2014 @ 2:48am

    Re:

    Why not make laws that it's natural to follow?

    Like: Don't harm, and : don't steal.

    Also, after those, you need zero laws. ZERO. NONE. No harm, no theft : you're a secure little hairless money. Now go cooperate with your kind to build things.

     

    reply to this | link to this | view in thread ]

  62.  
    identicon
    Anonymous Coward, Feb 7th, 2014 @ 3:08am

    Re: Re: Re:

    I've advocated for years that all laws should have an expiration date and require review & renewal every so often.

    Good call!

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    Pragmatic, Feb 7th, 2014 @ 3:11am

    Re: Re: Re: Re: Re: Lawfare

    ^This.

     

    reply to this | link to this | view in thread ]

  64.  
    identicon
    Pragmatic, Feb 7th, 2014 @ 3:16am

    Re:

    That's down to political tribalism and that old chestnut, "You must be a liberal socialist!" if you break ranks on the party line. I get it all the time as a moderate conservative because I'm not frothing at the mouth, dissing the poor and calling down fire and brimstone on dissenters.

    Some of the funniest encounters I've had of that nature involve complete denial that their side is even capable of doing wrong. The best so far came from someone who trotted out a truckload of party talking points, then told me to think for myself!

    So the real problem is not that our representatives aren't fit for purpose, but that we keep voting them in for fear that the other team might win. "Yay team!" is not a good enough reason to ever vote for anyone.

     

    reply to this | link to this | view in thread ]

  65.  
    icon
    ThomasBean (profile), Feb 7th, 2014 @ 3:32am

    I wrote the US DOJ OIG complaint that Thomas Tamm reported to James Risen

    I wrote the complaint that landed near enough to Thomas Tamm at DOJ HQ, to rip open the NSA TSP scandal.

    Believe me when I say, "...the written laws and their interpretations are irrelevant when law enforcement and contract surveillance does not have to fear investigation or prosecution...".

    Prior to The Enabling Laws passed after 9/11, the surveillance state was protected by county, municipal, state, and federal law enforcement. Torture, mind control, sneak and peak, warrantless eavesdropping, and the illegal dissemination of that tainted evidence was always hidden and used going back at least to 1986.

    The real hot issue for CIA-FBI-DOJ was ignored: OPERATION SLAMMER (so called "non consensual human experimentation").

    This is how the power elite running the secret corporate privatized surveillance state created Manchurian candidates like me. The CIA contracted out the "involuntary mind control chipping" of me, after I signed and sent my DOJ OIG Complaint back in 2004. Then, CIA-FBI tortured me in my home using the chip and other "sources and methods" hidden behind the bogus assertion that "state secrets" prevents review or investigation of numerous murders and attempted murders (including the attempted murder of SD US Sen Tim Johnson after I visited his Sioux FAlls, SD, congressional office).

    There is a lot more info in my second complaint...but Glen Greenwald and others "did not want to talk to me". Not even The ACLU Nat Sec Division will interview me for five minutes?

     

    reply to this | link to this | view in thread ]

  66.  
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    ThomasBean (profile), Feb 7th, 2014 @ 3:37am

    Re: Re: Talk about a short memory...

    You have to understand that anyone deemed a terrorist is no longer considered a US citizen (citizenship is stripped unilaterally and extra judicially).

    Anyone criticizing the Gov, is also a terrorist.

    Anyone advocating civil rights...is...you guessed it...a terrorist.

    Since terrorists "aiding and abetting Al Qaeda" on a global battlefield without limitations...are not US citizens any more (citizenship taken away secretly and covertly)...therefore...THE NSA DOES NOT MONITOR OR SURVEIL US CITIZENS.

    You have to follow the press releases...and put the puzzle together because the logic is so strained that NSA apologists are afraid to "give up the scam" to prevent notice required to challenge the policy and practices in Fed courts.

     

    reply to this | link to this | view in thread ]

  67.  
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    ThomasBean (profile), Feb 7th, 2014 @ 3:42am

    Re: Re: My new pet peeve

    I get the feeling that our NSA Apologist...did not read the law (like Congress did not read or understand what they were voting on).

    No matter what.....the written laws don't matter if you don't have actual and explicit notice of "who, what, when, why, and how" to satisfy Fed Judges demanding that a litigant prove standing (party in interest, actual harm analysis).

    How can anyone challenge NCTC and FBI-CIA assassinations of my known associates....when it's all "state secrets" used to protect "sources and methods"????

     

    reply to this | link to this | view in thread ]

  68.  
    icon
    ThomasBean (profile), Feb 7th, 2014 @ 3:46am

    Re: Re:

    Prosecutors in Sioux Falls, SD, at the county, state, and federal levels all joined a conspiracy to violate the federal and state criminal codes when they aided and abetted The NSA TSP contract surveillance directed at me, Dr Mark Gordon, Rich Gordon (murdered), John Kabieseman (murdered), YPD Sgt Mark Defenbaugh (murdered), SD US Sen Tim Johnson and his Sioux FAlls Office staff (Johnson brain stroked with DEW), Omaha attorney Leroy Rogers (brain stroked with DEW), and others.

    It's all in my second US DOJ Civil Rights complaint...that Holder and James Comey known about...but will not investigate or even conduct a five minute interview?

     

    reply to this | link to this | view in thread ]

  69.  
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    ThomasBean (profile), Feb 7th, 2014 @ 3:50am

    The War Commissions Act legalized "Entrapment"?

    The WCA legalized "Entrapment".

    What does that mean?

    Entrapment was always used by overzealous cops and prosecutors...so, uh...hmmmm...why legalize it?

    With entrapment...Brady Ruling still applies...but, ahem...whose gonna prosecute the prosecutors at the county, state, and fed levels when they join conspiracies to entrap (what does that mean?) while also refusing to admit "just exactly how did they entrap someone"?

    "Entrapment" was legalized but not defined so that a "good faith defense" existed so that prosecutors did not have to investigate or file charges for outrageous civil rights violations in which "CIA Non Consensual Experimentation" could focus on "mind control" and "subliminal programming" as part of Operation Slammer.

    Go ask FBI HQ what they know about being briefed on Operation Slammer by whistleblower Julianne McKinney?

     

    reply to this | link to this | view in thread ]

  70.  
    icon
    btrussell (profile), Feb 7th, 2014 @ 4:22am

    Re:

    Thank-you Ninja, well said. Not being a typist, I would have stopped here:
    "The law is so dense..."

     

    reply to this | link to this | view in thread ]

  71.  
    icon
    btrussell (profile), Feb 7th, 2014 @ 4:29am

    Re: My new pet peeve

    And a thank-you to you too!

     

    reply to this | link to this | view in thread ]

  72.  
    icon
    Jeremy Lyman (profile), Feb 7th, 2014 @ 4:41am

    Re:

    I don't think these laws really are all that complicated and unintelligible. It's the loopholes and secret rulings and rationalizations they've had to do so they could (not?) violate the law that are hard to understand.

    The NSA doesn't spy on citizens. Boom, simple.
    Except that they have been, and since the Government "can't" break the law there must be some way that somehow that was "allowed".

    I'll tell you how to rectify the conflict. The Government didn't break the law, but people did. Throw them in jail.

     

    reply to this | link to this | view in thread ]

  73.  
    icon
    nasch (profile), Feb 7th, 2014 @ 7:27am

    Re: Re: Re: Talk about a short memory...

    You have to understand that anyone deemed a terrorist is no longer considered a US citizen (citizenship is stripped unilaterally and extra judicially).

    Got a reference for that?

     

    reply to this | link to this | view in thread ]

  74.  
    identicon
    GreyEagle, Feb 7th, 2014 @ 8:32am

    REVOLUTION

    Based on the reading of history, tyrants never give up their power peacefully to the people. With regret it takes force by the people ( The American & French). No one likes this part, but it's reality.

    Just read this great book on decent Americans taking a stand against federal tyranny. I recommend it cause it's about each of us defending the U.S. Constitution for the future generations.

    www.booksbyoliver.com

    Fisher Ames once said, after the American Revolution, that 'we need to hang all the lawyers'. Well, the new NSA laws (NDAA) are so complicated that average Americans don't understand them.

    The complete U.S. Constitution was only 3 1/2 pages & written in terms the PEOPLE could understand.

     

    reply to this | link to this | view in thread ]

  75.  
    identicon
    DJ, Feb 7th, 2014 @ 8:36am

    Why Would Orwell be proud

    George Orwell Wrote 1984 as a WARNING AGAINST surveillance...so he WOULD NOT be happy with the American surveillance state. You are misrepresenting him.

     

    reply to this | link to this | view in thread ]

  76.  
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    btrussell (profile), Feb 8th, 2014 @ 12:11am

    Re: Re: Re: Re: Talk about a short memory...

    No fly list.
    Or would you feel like a free american if you were told you were on a no fly list?
    Because they are suspicious of you.
    No proof of fuck all, just a feeling they have about the way you turned your head and averted your eyes, while he shoved his cock, I mean hand, up your ass. No US citizen rights being violated, just their anus.

     

    reply to this | link to this | view in thread ]

  77.  
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    ThomasBean (profile), Feb 12th, 2014 @ 1:17pm

    Re: DEA teaches agents to recreate evidence chains to hide methods

    It's called "The Hand Off Method" of illegally laundering and disseminating illegally obtained info: I know because it was done to me and Dr Mark Gordon to make misdemeanor arrests and plea bargains by SFPd and Minnehaha Cty States Attorneys.

    Hiding the sources and methods was rationalized by the bogus assertion "state secrets" on a global battlefield.

    I put this in my first DOJ OIG complaint that Glen Fine and FBI HQ obstructed.

    Why ACLU won't interview me....is anyone's guess???

    I'm the most important client they could have in a long time......yet....ACLu has never responded to my communications.

     

    reply to this | link to this | view in thread ]

  78.  
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    ThomasBean (profile), Feb 12th, 2014 @ 1:21pm

    Re: Re: Re: Re: Talk about a short memory...

    No reference because it is a secret policy.

    Secret DOJ memos hiding strained interpretations of "void for vagueness" enabling laws.

    Everything is a secret.....you have to piece together the policy from statements made by police state enablers....and guess correctly what the secret policy and practices are with no access to any definitive statement or challenge of practices that are hidden after arrest and charges are litigated.

     

    reply to this | link to this | view in thread ]

  79.  
    icon
    ThomasBean (profile), Feb 12th, 2014 @ 1:23pm

    Re:

    HLS made a press statement that "championing civil rits" makes you a terrorist suspect.....thus......your rights can and will be secretly subverted by police state actors.

     

    reply to this | link to this | view in thread ]

  80.  
    icon
    ThomasBean (profile), Feb 12th, 2014 @ 1:34pm

    Re: REVOLUTION

    Without notice of sources and methods and strained interpretations of laws that are never made available to arrestees.......plea bargains are expedient and promoted by county, state, and federal prosecutors.

    Imagine what it costs to litigate civil liberties....and what do you accomplish when badges-prosecutors-judges do not and will not police themselves or any other police state actor????!!!!!

    Exposure in the form of litigation......is not a prosecution resulting in jail.

    In 1986, the Patriot act and EIT were used on me to run Operation Slammer .......and...no US ATTY or FBI agent in Sioux Falls, SD,...ever...ever...ever conducted a prelim inquiry into my allegations after FBI HQ and FBI OPR had access to my DOJ OIG complaint?!!!

    The problem is not bad law.....it's bad police state actors who will not uphold their fiduciary duty.

     

    reply to this | link to this | view in thread ]

  81.  
    icon
    nasch (profile), Feb 12th, 2014 @ 1:43pm

    Re: Re: Re: Re: Re: Talk about a short memory...

    No fly list.
    Or would you feel like a free american if you were told you were on a no fly list?


    Didn't notice before, but in case you're still watching, the claim was " anyone deemed a terrorist is no longer considered a US citizen (citizenship is stripped unilaterally and extra judicially)". The no fly list doesn't match that claim.

     

    reply to this | link to this | view in thread ]

  82.  
    icon
    nasch (profile), Feb 12th, 2014 @ 1:44pm

    Re: Re: Re: Re: Re: Talk about a short memory...

    No reference because it is a secret policy.

    Perhaps the statement of the policy, if it exists, is secret. But it would be impossible to secretly revoke someone's citizenship, and if this is happening every time anyone is designated a terrorist I think someone would have figured it out and published something about it.

     

    reply to this | link to this | view in thread ]

  83.  
    icon
    nasch (profile), Feb 12th, 2014 @ 1:45pm

    Re: Re:

    HLS made a press statement that "championing civil rits" makes you a terrorist suspect.

    Who is HLS?

     

    reply to this | link to this | view in thread ]

  84.  
    icon
    The Wanderer (profile), Feb 24th, 2014 @ 4:02pm

    Re:

    Perhaps what is needed is a requirement that the laws must be written in a form the average citizen can understand.

    The trouble with that is the people who will go looking for loopholes.

    In order to avoid leaving loopholes to be exploited and abused, or at least to be very clear about where those loopholes are and are not, it is necessary to word the law very precisely - well beyond the limits of the precision used in ordinary day-to-day discourse.

    Phrasing things precisely very quickly comes to involve phrasing them in ways which are complex, abstruse, and otherwise hard to understand - and there we have the roots of what is called "legalese".

    (Try it sometime; try to phrase something so that there is no possible way that anyone could misinterpret it, or take it - or part of it - out of context to mean something else. It's far harder than you might think, beyond a few relatively simple cases, and the resulting phraseology bears a striking resemblance to legalese.)

    And then people start intentionally extending legalese to obfuscate things further for their own purposes, which is indeed abusive and should be avoided, and things snowball from there. Everything before that point, however, is not only not an inherently bad thing, but is in fact necessary to avoid other bad things.

     

    reply to this | link to this | view in thread ]


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