It's total bullshit. The politicians who created this system should be prosecuted for subverting the constitution, but there is no conceivable way for that to happen.
An intelligence agency can probably figure out that someone is associated with terrorists before evidence is available to convict them beyond reasonable doubt. Maybe it’s even appropriate that the legal standard to get secondary physical screening during air travel is lower than the legal standard to get thrown in jail? I welcome any opinions on that question - I feel it’s in the background of the original post and this discussion.
[1] https://www.google.com/amp/s/www.eastbayexpress.com/oakland/...
No. That's a subversion of due process and politicians who support such systems are enemies of the American people.
Perhaps the evidence our suspect bombed a plane wasn’t quite strong enough for “beyond reasonable doubt”, but they did lose a civil case from the victim’s families under “preponderance of evidence”. Whence cometh the opinion that “beyond a reasonable doubt” must be the standard of evidence before someone is searched before boarding a plane?
When attempting to board an airplane, where different levels of physical screening take different amounts of time and resources to perform, and it’s not practical to fully screen everyone, we ought to apply the same legal standards of a criminal conviction to differentiate different levels of screening? Even if there’s “clear and convincing” evidence the person bombed a plane before, we ought to let them through anyway without even patting them down? Do we need a jury of peers at the ready at every checkpoint to make this determination? Would you also apply this same standard before someone could be restricted from admittance to the halls of congress, to Fort Knox, or to a warehouse in a major city storing many tons of seized fertilizer?
For reference, here’s a full list of the standards of evidence in the US, ordered from weakest to strongest:
1. Some evidence
2. Reasonable indications
3. Reasonable suspicion
4. Reasonable to believe
5. Probable cause
6. Some credible evidence
7. Preponderance of the evidence
8. Clear and convincing evidence
9. Beyond reasonable doubt
Sure, a trained person can probably kill with dental floss, but nowadays between the armored cockpits and the willingness of passengers to swarm a bad guy the risks of anything but a bomb are pretty low.
What if they have illegal evidence that you’re dangerous and can’t arrest you because it wouldn’t hold up? What if they’re not ready to arrest because they think you might lead them to people higher up in your organization?
Think mafia. Sure the thug did illegal crap and you know it, but he isn’t worth arresting. You want the boss.
Or to use a more scifi spin: Data science says you are 99% likely to blow up a plane. But you have done nothing illegal yet. Now what?
edit: for the record I don’t think any of this is a good idea, I’m exploring what the reasoning might be
So basically you watched Minority Report and thought it was a great idea? I think you missed the point.
> Think mafia. Sure the thug did illegal crap and you know it, but he isn’t worth arresting
If there is evidence somebody might blow up or hijack a plane and they must therefore be kept off that plane, then that person should be arrested. Do you think forbidding them from boarding the plane but letting them walk free without being arrested won't tip off the rest of their organization? Give me a break.
Also I’m pretty sure you can’t arrest people for something you have evidence they might do if they haven’t done it yet.
If “might do” means actually planning to commit a crime and then taking some material action to further that plan, then they can be charged with attempt.
Then that is a civil rights violation right there. Police shouldn't have illegally gathered evidence. Police should not be making decisions based on illegally gathered evidence. Police should not be making an endrun around the courts to apply punishments (such as forbidding travel) based on illegally gathered evidence.
I think the point of disallowing evidence found those ways is to discourage investigators from using those ways. If they can use it, they will seek it.
>Data science says you are 99% likely to blow up a plane. But you have done nothing illegal yet. Now what?
Totally off topic, but my proposal: a social worker should reach out to you and help with whatever problems you have. Very few people harm others just for the thrill of harming others. There's usually some other cause (revenge, poverty, desire to be heard).
I can't imagine a scenario where blowing up an airplane full of civilians would fall into the category of "not worth arresting".
> Or to use a more scifi spin: Data science says you are 99% likely to blow up a plane.
That's fiction for a reason--there's no possible way to know that from "data science". In the real world, you can know that from things like direct evidence that this person is involved in a plot to blow up an airplane, which is something they can be arrested for.
If you are confident in your ability to stop them at the checkpoint if they actually try to board a plane, why arrest immediately when you can try to obtain more leads?
People don't blow up planes by accident. You're either planning to blow up a plane, in which case you have already done a number of illegal things, or you're not, in which case you're 0% likely to blow up a plane.
Fun thing I learned recently in a Netflix documentary: It used to be legal to be a mafia boss because you weren’t the one doing illegal things. Someone had to fight real hard in the 70’s to create a new law that made it illegal to tell others to commit crimes.
It was legal to own C4 that doesn’t smell until 1996. A new law after a series of bombings made it illegal.
https://www.atf.gov/explosives/plastic-explosives-reminder
I wonder what’s legal now that will be obviously illegal in 20 years because it leads to future crimes?
The theater of everything right now is absurd, but there are reasons for using identity to narrow more narrowly search people who may have some probable cause. My concern with the TSA is that we search everyone, regardless of probable cause.
Then they shouldn't have resorted to illegal means to gain that evidence. Using it to prevent someone from flying or to subject them to "advanced screening" is no more justifiable than using it in court.
> What if they’re not ready to arrest because they think you might lead them to people higher up in your organization?
They would share responsibility for whatever additional crimes you end up committing in the meantime because they failed to act on the evidence which they had. Until they actually bring the matter up in court, however, you remain a free citizen and ought not be subjected to special restrictions or mistreatment without a trial on the basis of secret evidence.
It's interesting that you bring up mafia in a conversation about the federal government. The federal government collaborated with the mafia dueing WWII and afterwards. So, no, that is not the government that should have power to manufacture evidence and pretend it was legally obtained.
I think your argument is that the government simply cannot be justified in restricting someone who hasn't been convicted of any crime.
Wouldn't that reasoning also apply to restraining orders and personal protective orders? They do not require a trial, and the burden of proof is pretty low.
You could make a distinction based on how broad or narrow the restrictions are. Not being able to fly anywhere is more restrictive than staying 100 yards away from one particular person. But that's a different argument than there being something fundamentally wrong with the concept.
You have to present evidence before a judge, evidence that could be admissible in court. Yes, the bar for most restraining orders is low (often simply the sworn word of the requestor plus some other evidence like police reports or testimony of others), but so is the level of restraint. The key fact is the subject of said order can fight it in open court and the claims or evidence raised by the requestor can be challenged.
One can reasonably argue as to the merits and drawback of such a system but at least they interlock with due process.
But a secret no fly list based on classified or otherwise inadmissible evidence is a completely unrelated and immoral thing.
But it would still be possible (with judicial review) to put people on a no-fly list who the government nevertheless has no grounds to arrest for anything, just as it is possible today to issue restraining orders for people who the government has no grounds to arrest.
That specific argument against the no-fly list is really the only thing I was trying to take issue with.
Restraining orders and personal protective orders are court ordered according to the constitutional framework. They aren't things that are randomly assigned by airport employees.