The issue I have is that you seem willing to take off the brakes on a system you seem to say that… once it’s heading down the path “it’s hard to stop”. Knowing that I’d prefer we don’t let them head there without due diligence.

We all would like to have good laws and regulations. I see that one group is generally against any and all regulation and I see that we have had problems because of it. Perhaps the laws would have been overreaching and should have been adjusted but when the only change accepted is nothing. Things don’t move very far.

On your plane scenario, I think we all realize that there will be tradeoffs no matter what we are talking about but imagining an attempt to make them safer, I can hear “the Democrats want to create death planes or have a socialist takeover” no matter what they would try to introduce. That is what I meant with Law and Order – The whatever they’re for I’m against it mentality.

In the case of Reagan and Bush, the impeachment mechanism existed. So it’s not a failure of available mechanisms and regulations to curb over-reach by the unitary executive. Congress opted not to take that route. Impeachment did not occur because of choices by people.

The ones who shouldn’t be trusted take you places they shouldn’t have had the chance to. See Goldman, Enron, BP, Health Insurance Companies, Coal Mines and on and on. They see “use your best judgment” as a green light to every whim.

That’s always going to be the way in large organizations, and with humans. I look at these as failures of human nature. Many of the wrongs done by such folks are amply covered by rules, regulations, laws, and ethical standards. I’m never against trying to craft better ones, but not at all convinced humans can make their rules good enough to protect us from such human moral failings. Some people will continue to do whatever they can get away with. Quite quickly, we run into a dynamic like ” we can build a plane such that all passengers would survive a crash, but it would cost 20,000 for a ticket to Cleveland,”

That’s why a real world understanding of tolerance as “not too tight, not too loose” is so very important. Our systems of law, politics, business, and so on have to set their tolerances so that performance is optima; and that’s not the same as perfect. An optimally-running oil furnace burns at like 80%ish efficiency. Improvement in one area (like efficiency or safety) inevitably bring trade-offs in other areas (like cost and reliability).

Three people would have been dead here if the “law and order” crowd had their way, Of course your mileage may vary.

I’m of course glad that 3 folks who weren’t guilty did not get executed. But I think careerism and @ss-covering had as much to do with it as any “law and order” crowd. Your condemnation strikes me as too easy and overarching. I mean, folks generally do like to have law and order. It’s only once some folks start to one up each other that we run into problems. That a phenomenon I despise, when two candidates argue about which one is more strongly in favor of something that no one is actually against. No one is pro-crime or anti-education or anti-environment or anti-jobs, for example.

As to the specific case you brought up, I would like to call attention one more time to “Cruz and Hernandez had been telling demonstrably false tales about the murder for various reasons.” This obviously does not mean that either deserved to be convicted.

But it is worth noting that many cases of wrongful convictions begin with defendants lying. I am not by any means forgiving or excusing the actions of anyone else by noting this. I’m just noting it. This is so familiar a beginning of the story by now that its a stock-in-trade cliche of fiction writers. There’s a high-profile murder, the cops on the street are pressured to find someone who is “good for it,” some moron brags about his involvement or gets caught lying, and once the meat grinder gets turned on, it’s hard to stop.

I’m one who thinks if Reagan and Bush had been impeached Bush Cheney would likely have been more restrained, it’s what concerns me about “trusting” someone. The ones who shouldn’t be trusted take you places they shouldn’t have had the chance to. See Goldman, Enron, BP, Health Insurance Companies, Coal Mines and on and on. They see “use your best judgment” as a green light to every whim. Three people would have been dead here if the “law and order” crowd had their way, Of course your mileage may vary.

…and you call yourself a metalhead? :-)

Unfortunately, the only real viable alternative to granting careful discretion for people like the President and other folks in positions requiring time sensitive critical judgement is to force them to always go through a review process. Anyone sane knows that creative folks who bear malice towards America can hide in a sea of that stuff.

Without being familiar with the DA you mention, I can say that folks like him prove that people granted public trust will sometimes betray it. It’s a given that humans can be corrupt and greedy and selfishly overambitious and unscrupulous. But we probably can’t have a system that gets anything done if our only concern is to prevent all such occurrences of human failing. It’s a question of tolerance in the proper mechanical sense of not too tight and not too loose.

And we’ll each score on that particular judgement differently. My position is not that there is no reason for concern. I’m concerned, but I don’t feel the need to panic or even to take urgent corrective action. I think we’re doing as good as can be expected on the particular count of Presidential power. If there were an issue of civil liberty that I’d want people to panic on, it would probably be privacy in the face of modern technology and data collection and processing. And on that count I think civil libertarians have already lost. It’s over.

BTW, my wife and I enjoyed Songcatcher quite a bit. Thanks so much for the recommendation. That’s a good example of how participating in open threads can build a sense of community and good faith.

Strangely, :-) I find myself disagreeing. My reasoning– a DA in my county tried for a decade to execute three innocent people and to keep evidence that would cast doubt on their prosecution from the light of day. There was almost no blowback from it, he just ran for Governor again this past year. Bush/Cheney attacked the Constitution and instituted torture in the name of defending the people. It is easy to go over the edge and manipulate people into going along with anything and then say that anyone asking for restraint hates the country or is coddling criminals. It was played like a fiddle after 911. The issue isn’t that sometimes you have to color outside the lines, the issue is that the lines are being erased and being made in the eyes of the beholder. I can think of people like Cheney for instance whose judgment I would never trust and therefore I’d be against the change even for people I do trust. I think it’s the way the Founders saw things to. They distrusted concentrated power.

I don’t presume bad faith. In extreme circumstances, I am reluctantly willing to allow the President to exercise discretion. If I were the President, and the safety of the nation were at stake, I would want to be able to exercise discretion as a tool. The best way for a President to lose this tool would be to abuse this discretion. I feel confident that if abuses of this discretionary power are brought to light, that this power will be lost. Perhaps not how it plays in a summer movie thriller… .

I’d prefer that the president ask forgiveness (for breaking the law) than be given prior approval (having the law behind him). That system allows for action in extreme cases without the same abuse potential. There have already been enough abuses of the law AFAIAC. The president and the executive branch need to be reigned in, if anything, IMO. Abuses of discretionary powers have come to light, and the post is demonstrating the the abused powers do not appear to be subject to being lost any time soon, rather they appear, if anything, to be expanding.

The President can unilaterally decide which people are enemy combatants. The President can detain enemy combatants indefinitely without recourse. Enemy combatants are people. Therefore the President can detain people indefinitely without recourse.

That still makes it a matter of trust, and of reasonable sense. In theory, one can obviously presume bad faith on the part of the President…meaning that the President can detain someone as an enemy combatant even if they don’t deserve it in any meaningful sense.

So you are technically correct, if one presumes bad faith. Or wring one’s hands over the potential for future abuse.

I don’t presume bad faith. In extreme circumstances, I am reluctantly willing to allow the President to exercise discretion. If I were the President, and the safety of the nation were at stake, I would want to be able to exercise discretion as a tool. The best way for a President to lose this tool would be to abuse this discretion. I feel confident that if abuses of this discretionary power are brought to light, that this power will be lost. Perhaps not how it plays in a summer movie thriller… .

Of course, when I speak of abuse, I mean behavior and choices that appear to be abuse in the eyes of the majority of the general public. Regular folks’ opinions on the matter, in other words. That’s somewhat different than what a civil libertarian believes to be abusive.

And most regular folks are familiar with that gap on a variety of issues regarding civil liberty as measured against public safety. Regular folks are substantially less likely to be troubled by a variety of public safety policies than any number of civil libertarians who might HOWL about those policies. Probably a “boy who cried wolf” lesson in there somewhere, I imagine.

Fair disclosure. I lean towards being a civil libertarian myself. I could do with a little less safety and invasiveness and a little more freedom and privacy. At the same time, when I had occasion as a younger man to look into joining the ACLU, I was immediately turned off by the inflexible nature of its approach to advocacy. Perhaps that’s the way modern politics must work, that some organizations feel that they can only be effective advocates by being pure ideologues. Personally, I can’t stand that approach. It’s leaves far too little room for reasonable dialogue and careful critical thinking. That’s only my $.02.

So as that account suggests, it’s not exactly that I don’t care. I do care. But I’ve looked at the landscape and prioritized things based on my sense of how urgent given issues are. I’m not urgently concerned that America is on the cusp of becoming a police state. On a criterion-referenced scale, we’ve probably slid a bit, largely in response to 9/11 and technological advances. But on a normative scale, we’re at or near the top.

The massive increase in surveillance without warrants since GWB/Cheney is well documented on the ACLU site and elsewhere. Moreover it is increasing under the Obama administration.

This is not about whether Anwar al-Awlaki deserves killing. He does. As did Timothy McVeigh, Ted Bundy, John Wayne Gacy, and all murderers who were convicted in a court of law and executed as opposed to being ordered killed by executive fiat.

Indefinite detention without trial, surveillance without warrants, executive ordered executions – None of these powers were invested in the POTUS ten years ago. All are claimed to be in the President’s purview at the President’s discretion today.

There is a difference between rule of law and rule by executive fiat. We’ve crossed the line. This is not about Bush or Obama or Republicans or Democrats. It is about what kind of country we are becoming. My only hope is that the Supreme Court will eventually push the executive branch back over that line, since our bend over Congress won’t do it.

The only communications that can be monitored without warrant or recourse are international communications.

If you have any examples of any state enemies that Obama has ordered murdered, by all means let’s review those cases, because that sounds pretty awful.

* Detain people indefinitely without recourse to a court or opportunity to prove innocence

* Monitor American citizen’s communications without a warrant and with no judicial recourse

* Order the assassination of suspected enemies of the state (including American citizens)

… I suggest you read the linked ACLU report in full, or the linked Glenn Greenwald columns on the topic, both of which explain this better than me.

But only read it if you care about these things.

But I’d be confused if your own caring about this issue didn’t extend to some desire to make other folks besides myself care. Isn’t that sort of a big raison d’etre for blogging.

The suggestion I make in the 2nd graf of my previous post is an important editorial point about audience. Now perhaps you’re happy to confine the transmission of your thoughts on this issue to the comparatively small audience of folks who are already familiar with it and think it’s important to do something about it.

But if that’s not the case, then you’d be well served to provide a “why this matters” explanation that includes a few concrete examples for unfamiliar folks to hang their hats on.

I write about what I care about.

I don’t care that you don’t care.

But I do have an editorial tip. If you do care about it and thus want others to, you should probably come up with a compelling specific “fer instance” that helps to demonstrate why this trend is troublesome. Without it, your traction is pert near zero.