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There have been a few stories lately that have all combined to make a few key points crystallize in my mind, concerning various legal powers and the way that some people view them. It starts with an excellent article from Trevor Timm in which the title lays out the issue: Imagine Obama's national security policies in Trump's hands
. After all, this is the guy who hasn't been shy in promising to settle scores
if he's elected.
Trump’s abhorrent daily pronouncements about what he would do as president come at such a rate that we have become numb to them. We’ve lost count of the amount of times he’s claimed he’ll bring back waterboarding, or some forms of torture that are “so much worse” (something that would constitute a war crime). Or that he’ll not only kill terrorists, but members of their families as well – another war crime. (After some backlash for these statements, Trump claimed on Friday that he would still “obey the law”.)
Trump’s list of enemies could make Nixon, who saw no problem in using the NSA to spy on American dissidents and his political opponents, look tame in comparison. While one of the NSA’s mass surveillance programs was curtailed (but not eliminated) by the USA Freedom Act, there remain myriad programs that touch on vast numbers of Americans’ communications. The FBI still has carte blanche to look at NSA’s international intercepts for Americans caught up in its net, and just last week the New York Times reported that the NSA plans to remove key privacy protections from much of its surveillance data, so that it can be shared with other federal agencies without any administrative protections. Are these the types of powers we want in the hands of a Trump administration?
But the larger point of Timm's piece is not so much to freak out about a potential Trump presidency, but rather to highlight the ridiculous hypocrisy of basically every Presidential administration and their own party apparatus and supporters, who freak out about certain laws and powers when the other guy
is in power, but gleefully make use of them when they
are in power. It's the sort of "benevolent dictator" fallacy, in which people think that it's okay for them
to make use of these laws, because surely "my guy" or "my team" won't abuse them and only use them for good purposes. But everyone thinks that -- and eventually the people in power won't be your team. In fact, it may be people who scare you.
Take, for example, the issue of extrajudicial executions via drones ("murder from the sky"). The Obama administration embraced this strategy gleefully, after it was started by the previous administration of George W. Bush. However, once Obama came into power it was expanded massively with no public debate or discussion
and, importantly, with no guidelines for how and when it could be used
. In fact, somewhat ridiculously underlining the point of this very post, during the heat of the 2012 campaign, when there was a chance that Mitt Romney might beat Obama in the election, the Obama administration finally put together "explicit rules" that would limit when Presidents could use drones to murder people. But once Romney lost, the administration suddenly lost interest
in those guidelines. And while a few rules were eventually put in place, they seem to be arbitrarily applied
This is just one example of why our laws should be designed to function as if the people we trust least are in power
. Because eventually, the other side will be in power. And for all the trust you had in your team, think about how someone you don't trust might use it.
And we have plenty of examples of this. Just this weekend, the NY Times had an article about how South Korea has been aggressively using defamation laws to crack down on government dissent
Last year, the United Nations Human Rights Committee warned against South Korea’s “increasing use of criminal defamation laws to prosecute persons who criticize government action.” Freedom House, a rights group based in Washington, criticized “the increased intimidation of political opponents” under Ms. Park, who took office in 2013.
“The government is especially sensitive about defending the personal reputation of the president,” said Park Kyung-sin, a professor of law at Korea University who has researched the issue.
This is the same South Korea that just embraced a right to be forgotten
concept. Just think how that
might be abused as well.
And think about South Korea when you hear Donald Trump talk about "opening up" defamation laws
And, of course, this can apply to lots of other concepts as well. There's been a big push around the world for laws against "hate speech" -- which, in a vacuum, may sound like a good thing. However, what may sound like a good thing, if you assume that "hate speech" will be defined in a reasonable manner, can sound quite different in other contexts. As we've noted, historically, hate speech laws are used most frequently as a way for governments to punish people they don't like
. And, just to drive this point home, look at how some people have been claiming that Mitt Romney's anti-Trump speech last week was a form of hate speech
And, of course, this applies to areas like copyright as well. When I talk about the ways in which copyright can be abused for censorship
, many supporters of the copyright system like to mock me, claiming I'm just "supporting piracy" or some sort of nonsense like that. But copyright is frequently and regularly abused to censor people, and with power in the wrong hands it can be abused even further. Remember how Vladimir Putin (who Trump has repeatedly expressed admiration for
as a "strong leader, a powerful leader") used copyright law to suppress government dissent
, raiding the offices of advocacy groups and opposition publications, claiming they were just there to check their computers for pirated software?
And of course, there's the big debate over encryption and whether or not Apple should be forced to provide the DOJ with the tools to hack its own systems. Are you really comfortable with that kind of power -- to force companies to hack into systems, to do forced updates that secretly remove security features -- in the hands of a President who has stated that those who disagree with him need "to be very careful"?
There are lots of reasons why we should be careful in passing laws -- including potential unintended consequences. But, even more to the point, we should be concerned about how those laws will be used by the people we trust the least. Because these are not theoretical concerns we're talking about. And it's distressing that those in power always seem to argue along with this when they're not in power, but forget it when they are. Remember how the Democrats dropped civil liberties
from their official platform in 2012 after being a big part of the platform in 2008? I wonder why...
So, yes, perhaps the example of a possible Trump victory makes this clearer for some:
Guantanamo Bay prison, a symbol of torture and indefinite detention which should have been closed years ago, remains open. While Obama still says he wants to close it, his administration has enshrined the concept of indefinite detention into our system, and no matter who is president next has the opportunity to exploit that. Trump has vowed to expand Guantanamo, and according to a leaked memo obtained by CNN, his campaign even said he would detain American Isis “sympathizers” (whatever that means). This would of course be illegal and unconstitutional in a variety of ways, but given that Gitmo remains open and the last two administrations have faced no consequences for their unprecedented policies, how far could Trump go before he’s stopped?
But it should be a concern for everyone, even when
their own friends are in power. Because we should always design laws in a manner that we'll still respect and trust in them
even if the people we distrust the most are using them.
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