Ashcroft Targets U.S. Cybercrime

[Bill Stewart]

I'm not sure which of the >s are Petro, Schliesser, Measl, or others,


> >> >> We still live in a country that has laws, and we *should* expect 
> the LEAs
> >> >to enforce all laws that are on the books.

I think this was Petro, who I think was a Marine, and therefore should know 
better.
The Uniform Code of Military Justice *requires* soldiers to
refuse to obey illegal orders.
Police generally are required to uphold the Constitution,
and no amount of weaseling about "I'm not the departmental legal counsel,
I'm the guy with the blue suit" relieves them of that responsibility.
There are substantial differences between these two situations -
usually an illegal order to a soldier involves shooting people,
while an unconstitutional action by a cop involves arresting people
or serving warrants on them, which can be argued about later,
so it's far more critical that a soldier individually do the right thing,
even though an inappropriate refusal by a soldier can result in lots of
dead people, while an incorrect refusal or inaction by a cop
only results in somebody not getting arrested or the
city's insurance company paying a bunch of lawyers for a lawsuit.

> >> >> If you have a problem with the laws, it's not the LEAs fault, it's the
> >> >legislature and the Executive branch.

It's both.  And enforcement of laws typically has a huge latitude -
the DMCA doesn't say anything about refusing to give Dmitri a bail hearing,
or whether to take every piece of electronics in a "hacker's" house.
The "I know it when I see it" test for obscenity is very broad.
And the property-forfeiture-for-drugs laws may allow police to
steal anything nailed down or not if they think they can make a case
that there might have been drugs around that the victim won't have
the resources to successfully defend against, but don't require it,
and enforcement seems suspiciously correlated with which police
departments make a profit from doing it.

> >>      In the grand scheme of things, Ashcroft believes (or appears to)
> >> in the Constitution. He may have some differences of opinion with many
> >> or most on this list, but he believes in it.
> >>      That is better than we've had in at least 6 years, probably more.

Certainly Janet Reno and Louis Freeh were a bad lot and we're well rid of them,
but Ashcroft's belief in the Constitution certainly appears not to
include the First Amendment.  We'll see how much he likes the others
as he goes along.

>         My point, which I obviously did not make clearly enough,
>is that Ashcroft appears, unlike at least his immediate predecessor,
>to believe in rule of law, rather than rule by force.



>         Another point you bring up is that a LEO should not enforce laws 
> that "clearly" violate the constitution.
>
>         A LEO cannot do that *and still be a LEO*. He can refuse by 
> resigning, but if he simply takes the position that he will only enforce 
> laws he thinks are constitutional he causes a violation of one of the 
> fundamental underpinnings of the constitution, that all people are equal 
> under the law, and that the law is supposed to be equally applied.

I strongly disagree.
Let's start with a terminology rant -
Cops used to call themselves "peace officers".  Sure, it was propaganda,
but the point is that they're there to "serve and protect"  (at least for 
the upper classes.)
Or they claimed they were in the "Justice" business.
Now they're calling themselves "Law Enforcement", trying to use the
culture's leftover respect for "law" as a protection of individual rights,
rather than its current meaning of "whatever the legislature writes",
whether that's special-interest support like the DMCA or
religious/cultural preferences like the laws against some drugs,
and trying to use this to justify the use of however much force it takes
to force people to obey.  No different from what an invading army does.

If a cop believes that a law is unconstitutional or unjust,
then if anything his job is not to resign and let someone else enforce it,
but to prevent its enforcement, at least through inaction
if not through active reorganization of the police force.
If equal application of the law has a part to play here,
it's in getting other cops NOT to impose injustice,
not in copping out by imposing injustice himself or quitting.



>         That may be less than clear, let me try it another way:

It was clear, just wrong - but go ahead :-)

>         One of the fundamental features of a society that is built around 
> the concept of "rule of law" is that the law is knowable by the people, 
> and that they have a reasonable expectation of the consequences should 
> they break that law. When you have a situation where you give carte 
> blanche to LEOs to decide for themselves what is constitutional, you 
> violate that. What one LEO may decide is perfectly constitutional, 
> another may believe is unconstitutional resulting in even more uneven 
> application of the law than we have today.

         [Example 1 - people don't know if they'll be pulled over by Good 
Cop or Bad Cop, especially near town border.]
         [Example 2 - Good Sheriff replaced by Officer Hardass. ]

It's still wrong to enforce unjust laws, and also to enforce 
unconstitutional ones.
If a law's on the books, the citizens have to decide individually whether 
to obey them.
The examples given involved concealed handguns and searches for same -
if police are doing unconstitutional searches, there are problems anyway.
Problems with differing laws at borders are difficult anyway,
but having a location where laws are enforced less strictly is certainly
no risk for the neighbors, and we've already got enough laws that you're
probably violating some of them without even realizing it.

A friend of mine has a button that says "if the public were required to
*know* all the laws, and not merely to obey them, there'd be a revolution 
tomorrow"....