Photo - child stalked by vulture

I agree with everything Bill says in post #118. These are exactly the points I was prepared to make but refrained for doing so in favor of getting clarification on my understanding of Jon's arguments.

Regards,
--
Jeff

Post 121

Tuesday, August 7, 2007 - 11:33pm

In post #118 Bill writes:

> Quoting Rand in Atlas Shrugged, "Force is proper only in retaliation and only against the man who
> initiates its use." Yes, she was referring to a normal context, not an emergency situation.

Bill, I don't think you need to qualify Rand's quote with regard to emergency situations. In both emergency and non-emergency situations the retaliatory use of force is always directed against the initiator. The difference in emergency situations is that the circumstances tend to produce unfortunate collateral consequences (e.g., property damage, injury or death) that may not occur under more normal circumstances. As we have discussed many times before, the responsibility for these consequences falls on the initiator of force and not on those who must then take retaliatory action.

The principle that must guide those using retaliatory force is to make a reasonable effort to minimize these undesirable collateral consequences while still operating within the context of doing what is necessary to restore order. While there will always be some disagreement in defining what is a "reasonable effort", if this is done, then those using retaliatory force have done everything possible within the bounds of reality to act morally.

Regards,
--
Jeff

Post 122

Tuesday, August 7, 2007 - 11:47pm

Hi Bill,

�In prosecuting a suspect, however, the agents of the criminal justice system are not in an emergency situation in which their very lives are at risk.�

No, their lives are not at risk, the falsely accused defendant�s life is at risk.

�The fact that the defendant�s case cannot properly be adjudicated without the testimony of a witness who refuses to come forward does not give the government the right to coerce him into testifying�

You mean the fact that a victim of aggression (the falsely accused is the victim, the aggressor is the true murderer) will be victimized to death does not give the government the right to coerce another? Then why does the fact that a victim of aggression (a defender from invasion) will be killed give the government the right to coerce a landowner on a battlefield context?

(Edited by Jon Letendre on 8/08, 12:00am)

Post 123

Wednesday, August 8, 2007 - 12:09am

�What is the difference between compelling testimony in a court of law [in] order to protect people's rights and drafting young men and women to become police officers in order to protect people's rights? If force is proper in the one case, why isn�t it proper in the other?� [Bill]

The difference is that one and only one individual is the target of the subpoena, as only that one individual possesses the information required. The comparison is absurd. Compelling �young men and women� to provide testimony wouldn�t work. And the subject of the subpoena is not compelled to give testimony �[in] order to protect people's rights.� Rather, the information he possesses is being sought in a process of discovery in the service of justice in response to a PARTICULAR initiation of force.

It�s as though you object to entering someone�s property to mount a defense with the question: What �s the difference between doing that and entering everyone�s property to mount a defense?

If emergency is a magic wand when commandeering a property owner�s land, (the government can employ force against a LANDOWNER in defense of the innocently aggressed,) then it�s a magic wand in the case of compelling a person possessing evidence, (the government can employ force against a WITNESS in defense of the innocently aggressed.) What�s the difference?

(Edited by Jon Letendre on 8/08, 12:50am)

(Edited by Jon Letendre on 8/08, 12:56am)

Post 124

Wednesday, August 8, 2007 - 6:16am

"Force is proper only in retaliation and only against the man who initiates its use."

I think that's too narrow. Consider an abettor of crime, e.g. the driver of a get-away car in an armed robbery or a relative who harbors a criminal. Both cases would fall under "pursuit of justice."

Post 125

Wednesday, August 8, 2007 - 8:54am

Justice Doesn't Kill People...

Given the existence of probable cause, and the good faith and responsible use of the executive legal authority, none of the incidental byproducts of the pursuit of justice can be characterized as an initiation of force by authorized government agents against innocent third parties. Rand's principle of rejecting moral blackmail lays the blame from beginning to end for all the actions of the legal system solely and entirely at the foot of the criminal alone, and never against any authority prosecuting the law with due process.

If a criminal threatens to kill a hostage if his demands are not met, the proper response, if necessary (i.e., if the murderer cannot be resisted) is to refuse to submit to his demands or to accept any guilt for the killer's actions.

This same principle applies in the entire process of justice. If an innocent bystander is killed in a shoot-out between police and a criminal, the blame lies solely with the criminal. If a third party is killed in hot pursuit, the blame lies solely with the criminal. If an innocent person reasonably fitting the description of a suspect is arrested, the blame lies solely with the criminal. If, to protect the rights of the victims or those who must be presumed innocent until proven guilty, a third party is inconvenienced by a subpoena issued upon reasonable grounds, the blame lies solely with the criminal. If, to protect the rights of the victims or those who must be presumed innocent until proven guilty, a jury of one's peers is inconvenienced, the blame lies solely with the criminal. If an innocent man is convicted due to innocent human error, the blame lies solely with the criminal. If an innocent man is executed due to innocent human error, the blame lies solely with the criminal.

Of course prosecutorial misconduct, perjurious testimony, police fabrication of evidence, and judicial corruption can lead to a miscarriage of justice. But again, we have a further criminal act, and the blame for the consequences of these crimes lie solely with those criminals.

The justice system is perhaps one of the most complex of human undertakings. It requires the full conceptual focus of all the agents involved, including the jury and the citizenry. If one attempts to deal with any part of the legal system on a perceptual level mentality, one gets such miscarriages of justice as the O.J. Simpson murder trial. President Clinton's eternal shame lies not in a stained blue dress but in willful subversion of the justice system by the highest officer of the law. One cannot drop the full context of the entire system of the law for even one moment. If one does, one falls into the trap of the gun-control advocate of blaming the tool for the actions of the agent.

Justice doesn't initiate force, criminals do.

Ted Keer

Post 126

Wednesday, August 8, 2007 - 9:46am

Merlin I would agree, anyone who is contributing to that crime, whether it be through explicit action or refusal to cooperate in the discovery process (ommission giving commission) is part of that crime and furthering its injustice.

Post 127

Wednesday, August 8, 2007 - 10:17am

I wrote, �In prosecuting a suspect, however, the agents of the criminal justice system are not in an emergency situation in which their very lives are at risk.�

Jon replied, "No, their lives are not at risk, the falsely accused defendant�s life is at risk."

True, but the falsely accused defendant is not the one initiating force. The argument here is that the initiation of force is justified for the purpose of saving your own life in an emergency (since your life is your highest value), but not for the purpose of saving the lives of others.

I wrote, �The fact that the defendant�s case cannot properly be adjudicated without the testimony of a witness who refuses to come forward does not give the government the right to coerce him into testifying."

Jon replied, "You mean the fact that a victim of aggression (the falsely accused is the victim, the aggressor is the true murderer) will be victimized to death does not give the government the right to coerce another? Then why does the fact that a victim of aggression (a defender from invasion) will be killed give the government the right to coerce a landowner on a battlefield context?"

The initiation of force is justified in order to protect the lives of the soldiers themselves. If the initiation of force were justified in order to protect the lives of others, then why wouldn't the military draft be justified, if not enough people volunteered?

I wrote, �What is the difference between compelling testimony in a court of law [in] order to protect people's rights and drafting young men and women to become police officers in order to protect people's rights? If force is proper in the one case, why isn�t it proper in the other?�

Jon replied, "The difference is that one and only one individual is the target of the subpoena, as only that one individual possesses the information required. The comparison is absurd. Compelling �young men and women� to provide testimony wouldn�t work."

No, no. You're missing the point. My question was, why isn't drafting police officers justified in order to protect people from the initiation of force? Say there's a crime wave, and we need more police officers to counteract it. Why wouldn't it be proper to draft people in order to serve as police in that situation?

You continue, "And the subject of the subpoena is not compelled to give testimony �[in] order to protect people's rights.� Rather, the information he possesses is being sought in a process of discovery in the service of justice in response to a PARTICULAR initiation of force."

But I thought your argument was that an innocent man would be victimized -- i.e., his rights would be violated or his life taken unjustly -- if key testimony wasn't provided. That was your argument wasn't it? If that's the reason it's okay to force someone to testify, then why isn't it okay to force me to become a deputy if my services are needed to help fight crime or to draft me to serve in the military if not enough people volunteer? If I don't provide my services, innocent people will die who otherwise could be saved. Why is it wrong in that case to force me to serve the cause of justice, but okay to force me to provide testimony in the case of a crime?

- Bill

Post 128

Wednesday, August 8, 2007 - 10:27am

Ted:

Everything you say in post #125 is true. However, the specific form that the justice system takes and the methods it uses are still the responsibility of those of us interested in pursuing justice. I am arguing that you cannot properly pursue justice for one person by violating the rights of another. You may argue, like Jon, that compelling someone to testify is not a rights violation, but I cannot see the distinction between this and drafting someone to serve in the military which Objectivism clearly identifies as a violation of individual rights. I've read Jon's arguments regarding this issue in post #123, but I'm afraid I do not understand them.

In post #126 John writes:

> I would agree, anyone who is contributing to that crime, whether it be through explicit action or refusal to cooperate
> in the discovery process (omission giving commission) is part of that crime and furthering its injustice.

John, does this mean you also support Good Samaritan laws that require people to come to the aid of others and allow them to be jailed for failure to do so? And if so, where do the limits of the responsibility to aid another lie? If a person is being robbed, under what circumstances are you required to intervene? If a person is starving to death and you have expendable cash, is there a requirement to prevent them from dying by feeding them? I am interested in these questions because I am unable to see the distinction between them and the situation of being forced to provide aid in a court case.

And for the record I'll state again that I am completely aware of the distinction between what I believe an individual should morally do in these situations versus what I believe the state should be able to compel a person to do. Here I am concerned only with the latter case.

Regards,
--
Jeff

Post 129

Wednesday, August 8, 2007 - 10:31am

Bill, because a refusal to give testimony or evidence is participation in covering up a crime or preventing the discovery to take place. Whether that participation be through explicit action or passive refusal.

If we knew a terrorist in custody had information of a future planned terrorist attack, a plan he did not directly participate in but had knowledge of it, which that attack could lead to widespread death, is his refusal to come forward with information not worthy of punishment? That terrorist did not initiate force, did not directly participate in the planning or execution of the crime he has knowledge of, but you would expect others to sit passively by and await their own destruction?

It seems you don't give any culpability to that individual. But why?

Post 130

Wednesday, August 8, 2007 - 10:40am

Jeffery,

I do see a vague similarity between the draft and the justice system but in the justice system one is dealing with specific individuals who are involved in the crime as either aggressor, victim or witness. Only the jury could be said to be playing a role anywhere close to that of a drafted army. Yet even then, jurors are compensated, can get exemptions for cause, and they are not at risk of life and limb. (I believe that jurors should be able to serve behind screens so that they cannot be intimidated and so that the lawyers cannot play up to them.) In the military situation, only wars of aggression require drafts. No military action by the US has ever truly required a draft except for the Vietnam War, and only in its latter stages. The draft applies indiscriminately to young (men) simply because they are young and politically uninfluential. In a time of war, all should bear the tax burden, but it was the military itself that long petitioned for an end to the draft and it was that notorious war-monger Nixon who put an end to it. The draft was never sound military policy, it was always a political ploy.

The only analogy I could possibly draw would be conscription under martial law during actual invasion - which I am not supporting here, and which I don't believe would ever be necessary. In that case one might chose to place the blame on the invaders as necessitating the draft. I'm just trying to be generous in putting your argument in its strongest form - and I don't think it's strong enough.

And I am glad that you concede that all my points in #125 were true. I'd hate to be perceived as a liar.

:)

Ted

(Edited by Ted Keer on 8/08, 10:52am)

Post 131

Wednesday, August 8, 2007 - 10:50am

Jeffrey:

John, does this mean you also support Good Samaritan laws that require people to come to the aid of others and allow them to be jailed for failure to do so?

If it risks their own life and property I would think no. But notifying police does neither unless they were suffering from duress? (as in the perpetrators of the crime threatened others not to talk) If need be (actually the govt does do this) a witness can receive police protection and sometimes compensation for their testimony. I argued they should always be compensated.

If a person is starving to death and you have expendable cash, is there a requirement to prevent them from dying by feeding them?

Bill has used this one before and I don't get the comparison. It's a sneaky trick but it's not at all remotely similar. The impoverished are not victims of a criminal's act. Whereas an individual who passively refuses to participate in the discovery process when asked is sanctioning the crime. He is in effect to me now an accomplice to that crime 'after the fact'.

Post 132

Wednesday, August 8, 2007 - 11:29am

In post #129 John writes:

> It seems you don't give any culpability to that individual. But why?

John:

I realize you are addressing Bill here, but let me take a crack at answering this.

I do hold a person who withholds evidence of a crime morally culpable and complicit in some degree. Taking your example, if we assume that evidence could be gathered that showed that an individual had prior knowledge of the 9/11 attacks but withheld this information, then I believe it would be wholly appropriate to put this individual on trial for their complicity. In other words, I fully support treating this type of action (inaction in this case) as a very serious crime.

However, I remain opposed to compelling this same individual to testify in a trial against their will, as this clearly violates their right to personal sovereignty. This is an application of the same right that underlies the fifth amendment protecting a person from being compelled to testify against themselves and should be extended consistently to cover all forms of testimony.

So, if we agree that withholding evidence is a criminal act, then what is the problem with going ahead and compelling testimony? The answer is that once you violate the right of personal sovereignty in this situation, then, in practice, the right is lost in total. And this is clearly demonstrated by the fact that we can be compelled in this country to serve on juries or be conscripted into the armed services, to name just two of the more egregious violations of our personal sovereignty which flow from the same error underlying subpoena laws. Violating a right (i.e. a principle) in a given circumstance is not just some theoretical slippery-slope exercise, it is a problem with horrible consequences that is demonstrated in practice through many aspects of our daily lives.

Clearly, an entire book should be written on this important subject, but I hope these brief comments makes it clear that my argument against subpoena power is all about protecting human rights and has nothing to do with non-initiation of force. I also hope it further clarifies that there is no conflict with serving justice while at the same time fully respecting rights.

With regards to Rand's comments on this matter, I am convinced that she was dead wrong. I also believe that presented with the argument above, she would agree with the analysis and have changed her mind regarding subpoenas. How's that for hubris!

Regards,
--
Jeff

Post 133

Wednesday, August 8, 2007 - 11:31am

No, Bill, the aggressed party in an invasion is not the soldier. The aggressed party is the citizenry of the country being attacked.

Government is charged with protecting it�s citizenry from the initiation of force, right? So when the country is under attack, it is the government�s responsibility to retaliate, including repelling the attack. The landowner who refuses access to his land where a defense must be made can be pushed aside by force, you�ve agreed to this. You agree force may properly be used against the landowner, even though he has not himself used any force against anyone.

To recap:
Initiation of force: The invaders.
Aggressed: The citizenry of the attacked nation.
Retaliation: Aimed at saving the lives of the aggressed.
Retaliation may properly include: Using force against a party who has not used force himself, if that is required to fulfill the responsibility to retaliate in such way as to protect the aggressed.

Compare that to the subpoena situation we are discussing:
Initiation of force: The murderer.
Aggressed: 1) The dead victim and 2) the citizen, wrongly accused, on trial for his life.
Retaliation: Aimed at saving the life of the aggressed.
Retaliation may properly include: Using force against a party who has not used force himself, if that is required to fulfill the responsibility to retaliate in such way as to protect the aggressed.

No analogy is perfect, but I can see no essential difference in principle between these two cases.

You have raised emergency, claiming it is present in the first case, absent in the second. But it isn�t absent in the second. The innocently accused is a victim of initiation of force, why is his exposure to risk of death not to be respected while the same exposure to risk of death on the part of the citizens in the first case is? I can see no reason. Government�s responsibility to seek justice for parties aggressed by initiations of force should be the same in both cases. Why can eggs be broken in the first case but not the second?

I�m repeating myself a lot at this point, I don�t want to go �round and �round. So if I don�t respond it�s only because I am happy with my argument as it stands.

Post 134

Wednesday, August 8, 2007 - 12:12pm

Jeff:

John:

I realize you are addressing Bill here, but let me take a crack at answering this.

I do hold a person who withholds evidence of a crime morally culpable and complicit in some degree. Taking your example, if we assume that evidence could be gathered that showed that an individual had prior knowledge of the 9/11 attacks but withheld this information, then I believe it would be wholly appropriate to put this individual on trial for their complicity. In other words, I fully support treating this type of action (inaction in this case) as a very serious crime.

However, I remain opposed to compelling this same individual to testify in a trial against their will, as this clearly violates their right to personal sovereignty. This is an application of the same right that underlies the fifth amendment protecting a person from being compelled to testify against themselves and should be extended consistently to cover all forms of testimony.

Compelling a third party to give testimony or evidence does not violate the fifth amendment right to be free from self-incrimination because the third party is not accused of a crime (only until they refuse to cooperate). You are confusing two different instances of a crime. The crime doesn't happen until the individual refuses to give knowledge of a crime that happened, only at that point is the person considered a criminal due to his passive action of contributing to the cover-up of a previous crime, and should that indivdual be put on trial he doesn't have to self-incriminate himself. Since the burden of proof is on the government, the accused are always afforded the right to remain silent (the accused, not witnesses, only the accused).

So, if we agree that withholding evidence is a criminal act, then what is the problem with going ahead and compelling testimony? The answer is that once you violate the right of personal sovereignty in this situation, then, in practice, the right is lost in total.

This seems to suggest to me you are saying personal sovereignty can never be forfeited. Why not claim a murderer's personal sovereignty is violated when he is incarcerated for his crime? It's false dichotomy of either we always have personal sovereignty no matter what our actions may be, or we never have personal sovereignty no matter what our actions may be. It precludes any judgement on a person's actions and pretends to say we can't make intellectual distinctions on types of actions.

Post 135

Wednesday, August 8, 2007 - 12:23pm

Jeff wrote, "If a person is starving to death and you have expendable cash, is there a requirement to prevent them from dying by feeding them?"

John replied,

"Bill has used this one before and I don't get the comparison. It's a sneaky trick but it's not at all remotely similar. The impoverished are not victims of a criminal's act.
I was asking that question in response to a different argument -- that the initiation of force is justified in order to save someone else's life.
Whereas an individual who passively refuses to participate in the discovery process when asked is sanctioning the crime. He is in effect to me now an accomplice to that crime 'after the fact'."

So you're arguing that by refusing to provide needed testimony, a potential witness is defending the criminal from being prosecuted and therefore acting as his accomplice. This argument can also be used to justify invading a landowner who refuses to allow police or soldiers onto his property to defend against an aggressor. The landowner is acting as the aggressor's accomplice by protecting him from retaliatory force. So the force that is used in this case is not the initiation of force, but retaliatory force against someone who has no right to deny the police or military access to his land.

This is a persuasive argument, and a lot more plausible than simply to argue that an innocent person's life will be jeopardized unless force is initiated to protect him. What you are arguing is that compulsory testimony is not the initiation of force at all, but retaliatory force against someone who, by withholding evidence or otherwise protecting a rights violator, is acting as his accomplice or defender.

Someone who refuses to volunteer for the police or military, on the other hand, is not acting as an accomplice to a rights violation. Nor, by the same token, is someone who refuses to serve on a jury or to pay taxes. So, military conscription, compulsory jury duty and coercive taxation can still be considered a violation of rights, even if the subpoena of witnesses, the invasion of someone's land who is protecting the enemy, or the required disclosure of relevant evidence is not.

Would you say that this is a fair characterization of your argument? If it is, then I would say that it has a lot more going for it than some of the other arguments I've seen on this thread.

- Bill

Post 136

Wednesday, August 8, 2007 - 12:27pm

Bill I think that's a fair characterization. I admit I am going through the discovery process of my own rationale here and could get it wrong in some cases.

Post 137

Thursday, August 9, 2007 - 3:02am

Aaron, good points in post 92. If the goal is simply justice, ie compensation, for the victim of wrongful imprisonment (and this should be the goal), then monetary reparations are a good step, however, where would the money come?

Post 138

Thursday, August 9, 2007 - 7:31am

Jonathan, an honest error in judgment is not a moral crime. In the case of the wrongfully imprisoned victim, if he was wrongfully imprisoned because of an honest mistake, only compensation for damages (restitution) ought to be required, not retribution against the entity that imprisoned the victim. Talks of locking up police officers and charging them for kidnapping whenever a suspect is later acquitted or released are absurd. I can't even imagine what justification there would be for that unless there was intentional malice on the part of the police officer. And to Aaron, to say that the police are "essentially above the law" is also a dishonest statement. How do you justify the validity of that? Police officers who act outside of the legal boundaries of due process are themselves held accountable and charged with a crime. They are not essentially "above the law" they are essentially "equal before the law". Of course you can always quip back with instances of a miscarriage of justice where a police officer got away with abusing a citizen, but so too can we point to instances where a criminal that got away with his crime was a miscarriage of justice and the criminal acted "above the law". As you imply in the phrase "essentially" we would have to look at what was a matter of practice and not what were exceptions to the rule.

Post 139

Thursday, August 9, 2007 - 10:06am