NYTimes Sues US Gov't To Know How It Interprets the PATRIOT Act 186
hydrofix writes "Techdirt has been following the story of the DoJ's classified interpretation of the PATRIOT Act. Specifically, it's all about Section 215, the so-called 'business-records provision,' which empowers the FBI to get businesses to turn over any records it deems relevant to a security investigation. Senators Ron Ryden and Mark Udall have been pushing the government to reveal how it uses these provisions to deploy 'dragnets' for massive amounts of information on private citizens 'without any connection to terrorism or espionage,' a secret reinterpretation that is 'inconsistent with the public's understanding of these laws.' After NYTimes reporter Charlie Savage had his Freedom of Information request denied, the NYTimes has now sued the government (PDF) to reveal how it interprets the very law under which it's required to operate."
Wyden not Ryden (Score:5, Informative)
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Sowwy.
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No, they misspelled Ron Raiden. Everyone knows he's part-Jewish and part-Japanese-shoot-'em-up.
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How it works (Score:3)
We'll take all your records then tell you if you've done something wrong*.
* After we've raided your offices and taken all your fun little computers out in boxes.
Due process (Score:3)
Doesn't the 5th amendment to the constitution require laws to be clear and fair?
Re:Due process (Score:4, Informative)
Our government doesn't give even half of a flying fuck about what the Constitution says any more.
what I find most illumunating (Score:5, Insightful)
is that we have to sue our own government in an attempt to force them to tell us about the laws they are enforcing against us. That alone indicates a huge problem with the system, regardless of the nature of the laws themselves.
If I could vote in one constitutional amendment right now, it would be "No Secret Laws". That alone would fix a great deal of evil by shining some light into the many dark corners of our government.
Re:what I find most illumunating (Score:5, Insightful)
Secret "laws" don't even make any damn sense. A law is an instruction they want you to follow.
If they don't tell the NYT what the rule is, it's not a law at all. It's just standard run-of-the-mill selective enforcement of the rulers' whims. A tyranny.
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Re:what I find most illumunating (Score:4, Insightful)
They aren't hiding the law. They're hiding their interpretation of the law. Anybody can look up the law and read it. The government just decided they think the law means something different than anybody else thinks it means, and they won't tell you what.
You and I know that, empirically, hiding how the law will be enforced is the same thing as hiding the text of the law itself. Either way, the public can not determine what actions are illegal. The difference is that while hiding the law itself is clearly wrong in a very objective, supreme-court overturnable sort of way, classifying the government's interpretation of the law is doubleplusgood.
In fact, if this does make it to the Supreme Court, the DoJ can just say that they have an alternate, classified interpretation of The Constitution, that the Supreme Court can not know about this interpretation due to it being classified, and that this interpretation makes it legal for the government to radically reinterpret laws and classifying those reinterpretations.
Catch 22, SCOTUS, what do you do now? Before you answer, remember that you're not the branch with a Commander In Chief.
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Catch 22, SCOTUS, what do you do now? Before you answer, remember that you're not the branch with a Commander In Chief.
The Supreme Court has asserted its authority over the President and Congress for over 200 years without the need of armed enforcement. If there's a conflict between two branches of government it is up to the people (who are the found of all power) to resolve it.
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Might want to read a bit more history. Specifically, the parts about Andrew Jackson's Presidency and interaction with the Supremes.
try looking up ACTA sometimes... (Score:5, Insightful)
oh, you can't. sorry about that...
Re:what I find most illumunating (Score:4, Interesting)
If I could vote in one constitutional amendment right now, it would be "No Secret Laws".
Then the courts would just declare a national security exemption. What's actually in the constitution doesn't matter, as long as the courts are willing to disregard it.
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Totally agree, but that may be just how messed up our system is. I think it's an example of why at least some of the money that traditionally went to newspapers was helpful. If the NY Times didn't do this I doubt there'd be a long line of bloggers and community news aggregators wit
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But if I, as a foreigner who's not really up to speed on the law or the legal system in the USA, has got this right, this particular law is not secret as such...
As I understand it, this is a law that mainly regulate how the government is allowed to act against the USA citizens.
The problem is that the USA government doesn't let the USA citizens know what it is or isn't allowed to do, so the citizens have no way of knowing if their government is breaking the law or not.
If the NY Times loose this lawsuit, it i
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It really ought to be illegal for any government to keep any secrets from it's citizens.
How about when the Allied Forces were planning D-Day in 1944? Should they have released the timetable of the invasion?
Rightly or wrongly, the US and other Western governments consider themselves to be involved in a War on Terror(ism) and in war time you often have to over-rule certain democratic freedoms.
Just saying.
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Wasn't that exactly what Hitler did to Germany? Whoopsy...
The secret operations that a government conducts is realy just that, but when a citizen doesn't have the right to know what he/she must/musn't do... Then guess what? The US government is at war with its own citizens.
If the USA was my country, I'd hustle so people on Facebook and go to the streets with an axe. Oh wait... That's 'terrorism'.
Get it?
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How about when the Allied Forces were planning D-Day in 1944? Should they have released the timetable of the invasion? Rightly or wrongly, the US and other Western governments consider themselves to be involved in a War on Terror(ism) and in war time you often have to over-rule certain democratic freedoms. Just saying.
Seriously, this crap again? No one has ever suggested that battlefield movements be immediately published in the New York Times. It is a straw man argument that completely sidesteps the very real issue of the government doing lord-knows-what and hiding behind some completely unsubstantiated National Security claim. And as far as the War on Terror(ism) goes, it is not "rightly or wrongly"; it's wrongly.
Unfortunately, my sig gets more spot-on every damn day...
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Possibly because there have been a few minor changes in the world since your Constitution was written? Like, for instance, women getting votes, slavery being abolished, and no one but retards believing in God any more.
And what does any of that have to do with ignoring the Constitution? Women voting, freedom of religion and the abolition of slavery are in the Constitution.
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Those rights only apply when there aren't big scary terrorists killing a tiny fraction of a percentage of our population.
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The 22nd catch to the constitution says they don't.
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Doesn't the 5th amendment to the constitution require laws to be clear and fair?
Indirectly, this is true. The 5th amendment to the US constitution guarantees the right to due process of law. And there is plenty of case law from the US Supreme Court making it clear that due process requires laws to be interpreted according to the language they contain. For example, "In deciding a question of statutory construction, we begin of course with the language of the statute." [Demarest v. Manspeaker, 1991].
The problem is when there is disagreement about what that language means. But that's for
Yes it does (Score:5, Informative)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
I highlighted the important part. The heart of the concept of "due process of law" is that no one will be punished until they have been declared guilty of breaking a law in a fair trial. If the meaning of a law is so vague that neither judge nor jury can reasonably ascertain who is guilty of the law and who is not, then the only fair ruling it to acquit everyone accused of it. If the Supreme Court decides that a law cannot be reasonably interpreted, then no other court in the land should attempt to do so. In this case the law is void due to being unconstitutionally vague.
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Also, even if the "Rule of Law" – the principle that all exercise of public powers must be based on Legislation – is not explicitly stated in the US Constitution (apart from Criminal Law as you quoted), the very meaning of a "Law" the drafters of the Constitution had in mind, was that a Law is a public document. If the government can reinterpret any law, and withhold this interpretation from the public, the whole purpose of any legislation becomes redundant, and the Congress is effectively strip
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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
I highlighted the important part. The heart of the concept of "due process of law" is that no one will be punished until they have been declared guilty of breaking a law in a fair trial. If the meaning of a law is so vague that neither judge nor jury can reasonably ascertain who is guilty of the law and who is not, then the only fair ruling it to acquit everyone accused of it. If the Supreme Court decides that a law cannot be reasonably interpreted, then no other court in the land should attempt to do so. In this case the law is void due to being unconstitutionally vague.
I'll highlight another important part. Americans are scary in interpreting person as citizen. There's the guy with the sig about impeaching Obama for ordering the murder of a citizen. Ordering the murder of anyone is as wrong.
It can be argued it wasn't murder as it is war time. Myself it seems as much as a war as the War on Drugs or the War on Poverty.
Anyways the point is that everyone deserves and has the right to due process, not just the good guys (in their mind anyways).
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Wrong guess,minus five.
No declaration of war, so no war.
The Constitution and the laws of the USA give the government a certain amount of latitude during time of declared war. Alas, that latitude doesn't apply just because we're fighting someone - it has to have the declaration of war to go with it.
And no, we don't have one with Yemen, Iraq, Afghanistan, or Al-Qaeda in general.
In any case, whatsisname was a US citizen, and absent him actually shooting
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Salt grain, exhausted. Please send dump truck full of salt.
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Just out of interest, do you think the average legally-untrained US citizen would be able to understand what you just wrote?
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Just out of interest, do you think the average legally-untrained US citizen would be able to understand what you just wrote?
I don't think so. But that's by design. Catholic Mass used to be conducted in Latin for a reason, and it wasn't just tradition.
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Just remember in law school they only teach you the government view of the law.
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Here's what Cornell Law School's website has to say about due process:
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Law student here, so take this with a grain of salt. The due process clause essentially purposes to prevent unfair service of process against people. For example, certain methods of process (i.e. serving someone), like mailing them a letter, may not be valid in certain circumstances. Due process takes into account primarily fairness in the service of process and whether the process is reasonably calculated to provide notice to the party being served.
So you must think that its ok for the government to kill Americans without trial, since "due process" only applies to process servers. Wonder why it says "deprived of life" in there? Is there much loss of life in the process server business you think?
Constitutional Law - you fail it.
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IANASOCL
That's fine, Obama is. We can trust him.
What? (Score:2)
Are you telling me US legislators don't have a clue of how the laws they passed are being interpreted?
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They'd have to read them first, so of course not.
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As Nancy Pelosi said we have to pass the law to find out what is in the law. I guess the new line should be you have to be charged with being a terrorist before you can find out how it is defined.
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I'm telling you that most US senators probably don't have a clue about much simpler things than the laws they make.
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Harry Reid once quipped that the US doesn't have GPS like the rest of the world. He's the guy running the Senate right now.
you know, most of them don't even bother to read (Score:2)
Most of the congress critters don't even read the bill that's being put up for a vote, assuming they bother to show up for the vote.
To be fair, most of the bills being put up for a vote are unnecessarily wordy and obscure, with six zillion unrelated amendments attached. All of which makes a very dry reading and makes layman's head spin (before exploding.)
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Most of the congress critters don't even read the bill that's being put up for a vote, assuming they bother to show up for the vote.
To be fair, most of the bills being put up for a vote are unnecessarily wordy and obscure, with six zillion unrelated amendments attached. All of which makes a very dry reading and makes layman's head spin (before exploding.)
So, all we need to do to fix this situation is force the congress critters to actually read these bills!!! Then, when their heads explode, we can replace them!
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Good luck with that, we can't even get /.ers to read TFAs most of the time.
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Salary: $174,000
Average cost of campaign for House: $1,000,000
Average cost of campaign for Senate: $4,300,000
so what do you mean by "paid for"?
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But that's what these critters are paid for, isn't it?
In theory yes, in practice no.
What blog can do this? (Score:5, Insightful)
Unfortunately, sometimes you need a real entity with some clout in order to bring this kind of information to light. It shouldn't be the case, but it is. And I just can't see a blog having the resources to do something like this, or discovering the wiretaps a few years back, or uncovering Watergate.
Most of the time, news is nothing special... stuff happens and it gets written about - but sometimes it takes significant resources, and I just don't see any news blogs being able to muster up that kind of force. Which is why you won't be finding me cheering the death of newspapers.
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Most of the time, news is nothing special... stuff happens and it gets written about - but sometimes it takes significant resources, and I just don't see any news blogs being able to muster up that kind of force. Which is why you won't be finding me cheering the death of newspapers.
This has nothing to do with "significant resources" and everything to do with significant access.
Newspaper Journalists do not have some magical ability to dig out information.
Their main superpower is the ability to protect the identity of their sources. That's it.
Everything else they do is about cultivating access to people with secrets.
As an example: Wikileaks doesn't have significant resources, all they have is a large public presence and a promise of anonymity.
People come to them
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You beat me to it. There are some VERY HARD PROBLEMS that need solving in the news business: the cost of copying someone else's content and distributing it to the world is effectively zero; there is always "somewhere else" to get the news, probably for free; lots of people don't care about non-celebrity-related news; and the entire print publishing industry has not done very well coping with the digital world. Plus there are big problems with the media as we know it today (as evidenced in the annual "top te
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Agreed on the 'shrinking' bit. There are *two* shitty papers in my 2-square-mile 7k-person hometown. They are being replaced by a hyper-local blog (which itself is big news... it was sorta the first), and that's not a bad thing. But NYT, WaPo etc aren't going anywhere, probably. And they're the ones that can break these kinds of stories, so it's probably not the end of the world just yet.
As for Watergate... yes, that's true in the broadest sense, but Woodward and Bernstein did a huge amount of research. Dee
and people still vote for Democrats or Republicans (Score:2)
a never ending trail of privacy and rights disasters yet people are played deftly by the parties so that a perpetual state of power is maintained.
To think that even Congressmen have to jump through hoops to find out how the system works speaks loudly that the system is horribly broke. When you have a system run by lawyers looking for every little hole instead of looking for the truth or the spirit of the law you end up with lawlessness incarnate.
The best solution is to vote out the current administration an
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Or they care, but not enough to do anything about it.
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and if we use your method we can be out of this mess in just 12 or more years.
I don't even like to wait 1/2 an hour for my pizza. Should I call another store?
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No, no, what we need is a new voting system.
http://www.dailymotion.com/video/xeblp8_steven-brams-on-approval-voting_people
Get rid of the single vote and get rid of the two dominating parties. Simple as that.
gov't response (Score:3)
The Constitution is MY "patriot" act, obey it!
My prediction. (Score:2)
According to our secret interpretation (Score:2)
We don't have to tell you that.
(Oh wait, that was too much information already; now we must kill you.)
I can't believe no one's posted The Trial yet. (Score:2)
The protagonist was arrested, tried, and sentenced to die under charges and laws he was never allowed to examine. First published in 1925 so maybe that's why it's not in much memory.
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
That will never happen, but I think we can make it less open to, shall we say, loose interpretation.
Make the spirit of the law explicit. The first part of the law should state "This is the problem we are trying to resolve."
Then let judges determine whether or not the executive (or a plaintiff) is using that law for that particular purpose. If they're trying to use it for another purpose, let them go to Congress to get a new law passed.
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
Yea, that will work.
Like the way many federal laws start with "...interstate commerce..." (one of the few federal powers, so it's the justification for many federal laws), and then go on to legislate on things which aren't interstate commerce, and the courts play along. Wickard v. Filburn, as a single egregious example.
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You don't have to be a Paulite to realize that Wickard v. Filburn was as badly decided as Dred Scott.
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
Many laws do have this kind of prelude and even those that don't have legislative history that may be helpful in ascertaining the purpose of the legislature in making the law.
That said, the law should be like open source code, freely available for anyone to read and analyze. Yes, it might be complicated and confusing to a non-lawyer, but computer code is complicated and confusing to a non-programmer. Even with that complicated nature, either can be analyzed with some study and effort, at least to some extent.
The real problem we have been having, starting with Bush's secret legal memos regarding due process free detention, and Obama's legal memo regarding due process free execution, is that the executive branch is essentially creating laws and keeping them secret making it impossible to know if what you are doing is something that will get you jailed or killed. That's a big deal, a dagger in the heart of what any free society is based upon, a shredding of the separation of powers, and ethically indefensible. There is no circumstance in which the rules of society ought to be secret.
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That said, the law should be like open source code, freely available for anyone to read and analyze.
How far to go? E.g. may I make a fork on a certain law and adjust it to my needs?
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If you maintain another country, absolutely. You are not allowed run a virtual machine.
VM is a bad analogy for this case (as bad as the Open Source is. Open Standards would have been more appropriate). ;)
Anyway, why don't you try a car analogy, I find easier to understand them
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Don't worry. They'll only go after the big, bad terrorists...
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Impeach Obama for the Extrajudicial Murder of US Citizens in Flagrant Violation of the 5th Amendment to the US Constitut
They got to you too, huh?
Bills often do that (Score:4, Insightful)
Even the Patriot Act is prefaced with
So although it was sold to the public as an anti-terrorism bill, it's right up front that they plan to use it for regular law enforcement too. A lot of other bills have a list of "whereas" in the beginning, listing the reasons and intent of the bill.
Of course none of this matters at all. The intent and history of the Second Amendment is brain-dead clear, but that doesn't stop people from trying to reinterpret it to rid themselves of a right they don't personally like. The 4th is pretty clear too, but it gets reinterpreted so that the contents of your cell phone aren't somehow equivalent to "papers and effects." And there's drug war property seizures in the face of the 5th's "nor be deprived of life, liberty, or property, without due process of law." You see, the legal action is against the property, not the person, so his rights don't come into play. I am not kidding, the cases read like "U.S. Government v. $10,000."
If the law or amendment is inconvenient to those currently in power, regardless of even the explicitly stated intent and clear history, they will simply reinterpret it so that it no longer is a problem for them.
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You'd think - what possibly can go wrong with 'civil rights' act yes? Hah! Everything has gone wrong with it. It created more unemployment among minorities, not less, because employers just lost a bunch of rights and got themselves a bunch of obligations and certain employees got a bunch of entitlements that these employers are supposed to provide. Should the employers fail in any way (even in an imaginary way) to provide those entitlements, they will be dragged to court.
This raised price of employing certain groups of individuals, and their unemployment has tripled since that time the act was passed.
Know how I know you're white?
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that's what property rights are about. With gov't out of business, there is no public property, everything is privately owned, and gov't is for protecting personal liberties and freedoms, property rights and border security. That's an expense item that does make sense.
So when a company owns part of the lake, other people own parts of it and properties adjacent to it. If they pollute it, that's what the court system is supposed to be for - protecting the right of individuals to their property, and gov't pow
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An interpretation is applying a logical system to specific real-world scenarios. It does not necessarily against a law, it might be just nontrivial to deduce. You can think of laws as axioms and interpretations as theorems. Although the analogy is bad as legal systems are not logical systems.
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It's easy to say things like this without any thought for the implications of what you propose. The fact is, there will always be at least ONE interpretation, and it will be this interpretation that will be followed. Even if you call it "black letter with no room for interpretation," it's still just one interpretation.
The same thing applies to code. There is no such thing as something independent of interpretation.
Re:Law should be like code. Not up for interpretat (Score:4, Insightful)
We have so many "weasel words" in the language of law that interpretation is up to the judge and jury. Its not like engineering at all. Its more like the language of statistics.
Every time I try to read a business contract, its like reading some newbies code where its full of undefined variables.
Drives me nuts.
Re:Law should be like code. Not up for interpretat (Score:4, Interesting)
That reminds me of these lines we put in our requirements.
1.3 Definitions
The following definitions are used throughout this document:
“Shall” defines a requirement that requires a waiver if not performed.
“Will” defines a function that is expected to be performed during the implementation of the Project’s Parts Program, however does not require a waiver when not performed.
“Should” defines a “best practice” and is strongly recommended but does not require a waiver when not performed.
I wrote a contract for a Company to build a test sled that would accelerate a 100 kg mass at 30m/s^2 in the horizontal and vertical orientation. They undersized the system so it could only do it in the horizontal orientation. They tried to claim that in the vertical it is already accelerating at 1g due to gravity.
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Yikes, what's the difference between "will" and "should" under those definitions? Yeah, yeah, "expected" versus "strongly recommended", but unless they have another section defining those terms, all I see is "does not require a waiver". It's like corporate Simon Says... you gotta listen real close for the shalls versus the wills.
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For your next project/requirements, you might be able to just refer to RFC 2119 [ietf.org] to define these terms.
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That's easily solved - just require all laws to be written in Lojban.
It also have a beneficial side effect of significantly raising the IQ of an average member of Congress (since Lojban proficiency would necessarily be mandated).
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I think you're wrongly assuming that members of Congress read laws
Re:Law should be like code. Not up for interpretat (Score:4, Insightful)
I think it's even worse than that. A "secret interpretation" doesn't even give us the basis for general expectations based on having an objective, available reference of the -same- code. This is more like having an entirely new spec with no necessary correspondence to the code available as the only means to characterize or evaluate it. Yet, it suggests the veneer of being like the objective reference by mere association with it.
It is, and it is not, this or any particular other thing at the sole discretion of those with access to the "secret" information that actually defines it. It seems like the very definition of institutionalized deception, that doesn't even acknowledge itself as such.
Like it's said... Mystery, mother of the abominations of the Earth...
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
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What a simpleton you are. You can't make it 'not open for interpretation' Not possible. You would need to know future event, and everyone would need to violate it under the exact same circumstance.
Think, think bigger.
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It depends on you point of view. As a citizen I would actually like to know what what the law actually means no matter how inconvenient it is to our rulers.
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Except that it will mean something else tomorrow, if they need for it to.
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Hear, hear! The truth of what you say should be obvious to everyone because as we all know, coded systems never have unintended consequences and can always account for every situation that comes up "in the field".
Additionally, your comparison is quite apt because as everyone knows code is not ever subject to interpretation when it is executed. That is why we use one code to express everything.
I am reminded of the invention of the first formal symbolic logics. Philosophers were rightly excited to have set
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Oh wait that would be if we actually lived in a republic. Never mind.
Yes, because rigidly codified law systems have no disadvantages whatsoever compared with a common law system.
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Laws will always be open to interpretation and that's a good thing. If the law was automatic like code we wouldn't need courts, because the executive could just apply the appropriate law and be done with it. This would open the doors to blatant abuse and achieve an effect opposite from your intent, namely, that the laws are arbitrarily interpreted by the executive.
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Here is how I see it. You shouldn't be convicted of a crime unless the law is specific. If someone slips through an exception in the law then it should be up to the legislators to close the exception not for the executive and judge to interpret.
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whats even more crazy is some jurisdictions won't just send you a copy of the laws, but require payment "for the time and costs of producing them"... so how someone would knows the laws so they could avoid violating them if they didn't have the money to pay is beyond me.. and is wrong on so many levels
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IRS laws are passed faster than they could be reasonably read by a regular person. As such, knowing the law is impossible.
If rich corporations and individuals didn't spend so much time and money on tax avoidance measures, the tax laws could be dramatically reduced in complexity.
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If the tax laws were dramatically reduced in complexity, rich corporations and individuals would be UNABLE to spend time and money on tax avoidance.
Face it, no loopholes means no avoidance. "You earned $50 million this year - send us $10 million" is pretty hard to argue with.
On the other hand, seven million pages of laws including 14 million exceptio
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The American legal system is so interesting to an outsider ... companies can sue you for patent infringement without telling you what patent was violated
Not entirely true. They can serve you notice of litigation without spelling out what patent you violated, but once it gets to trial they must say exactly what parts of which patent you violated.
The government can sue you based on a "secret" interpretation of the law..... if the law is secret how do I know if I have broken it? Doesn't ignorance of the law become a valid defense ?
The laws themselves are still public knowledge. It's the governments interpretation of them that's secret. Which I think is complet
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As soon as I read this bizarre plot I looked for the word "informant" and there it was:
The case began in May, when a Drug Enforcement Administration informant with ties to high-level leaders of Los Zetas told agents of a bizarre conversation
This looks like another entrapment case so the anti-terrorism squad can justify their existence. I find it really hard to imagine Iran getting involved with a used-car salesman to assassinate a diplomat.