Monday, June 17, 2013

We don't need Morphine, we have Asprin????

One in a while I see people complaining about the problems of major bulwarks of our civil defense, often using the existence of other, relatively minor legal protections as an excuse to get rid of our most important rights.  For example some claims that we don't need the fifth amendment because we have laws against torture and unreasonable punishment.

But you see, the rules against torture are actually rather weak  I would call them paper thin..  Government torture happens all the time.   I am not just talking about being water boarded by the CIA, I am talking about police officers routinely using pain on criminals.  Part of the problem is that the line between torture and other, reasonable activities is rather blurry.  Hit a guy?  Is it torture, self defense, or an accident?   Or perhaps you were trying to get him to obey a reasonable order.

The fifth amendment however is a huge giant wall, one or the strongest protections we have. Punish a guy for not answering a question, that's a fifth amendment violation.  We easily see that and know it is wrong.

Lets talk a bit more about the thin line between torture and legal activities.  Cops love Tasers and they don't restrict them to preventing violence.    In fact, the very famous line "Don't Tase me Bro."  came from such an incident.  The guy was not a danger to anyone, he simply was refusing to cooperate with the police.  He wouldn't leave an event, and wouldn't give up the microphone.  (Source)

The cops tased him not because he was a threat, but to force him to obey.  They caused him pain and physically controlled him.  Some would say that is torture.  They hurt him to convince him to obey.   They didn't put hand cuffs on him first, they made no attempt at all to control him without pain, they moved directly to pain.  

Torture is not used just to get information.  As per the US legal definition:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

Tasers are supposed (i.e the company says their purpose is to) to be used not to obtain compliance, but to deal with dangerous situations.  As per Wikipedia:

"Tasers were introduced as non-lethal weapons to be used by police to subdue fleeing, belligerent, or potentially dangerous people, who would have otherwise been subjected to more lethal weapons such as a firearm."

Instead, they are often used as 'pain compliance' devices.  The difference between pain compliance and torture?   If you are under the control of the cop, it is torture.  If you are not yet under their control, it is pain compliance.  Who decides if you are under their control?  The cop.  With no second judging of his decision.
Torture is a relative word.  Hence the controversy under George Bush where moronic lawyers tried to argue that water boarding is not torture.   But there are many circumstances where torture is perfectly legal.   It is easy and COMMONPLACE for cops to claim you were resisting arrest and therefore use pain compliance.

They can even make that claim if you are already arrested, in handcuffs, in prison, and on the floor crying. They just have to claim you were not complying.

The fifth amendment is the big gun.  It is the brick wall.  Other laws are the small arms, the velvet rope.  We can't depend on the rope line to hold back the cops, we need the brick wall.

In part because if we have the brick wall, as opposed to just a rope line, it lets the cops slam you up against the brick wall, without worrying about going over it by mistake.  If we have just a rope line, then cops will mistakenly cross it.

You don't demolish the brick wall because we have a velvet rope.  You don't get rid of morphine because we have aspirin.  The Fifth Amendment, which protects US citizens from self-incrimination is the strong protection and we must keep it that way.

It doesn't just stop torture, it stops many other problems caused by the police.  For example it stops the government from punishing you for not revealing something that you don't know (no matter how much they THINK you know it.  It also helps stop the government from learning things they have no right to know - such as your sexual orientation, accidentally or on purpose.  
Similarly, laws against excessive prosecution are not enough.   We need some ways to incentive criminals, some discretion by the government.   Given that we want to the cops to be able to talk to the criminals, and even bribe/punish them, we need strong laws that stop them from going too far.   If the cops won't even let you remain silent, that's going too far.  Honestly, if we really need the information, we can always offer immunity.

If immunity is not worth the trade, then don't demand they speak.

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