Greasing the Slippery Slope

At the same time that the Bush administration attacks its critics for exaggerating the threat that anti-terrorism measures such as the PATRIOT Act pose to privacy and liberty, it validates one of the critics' main concerns: that legal exceptions made for certain special cases tend to be expanded.

The president himself, in his speech yesterday, defended the Justice Department's proposal for denying bail in terrorism cases by noting that bail already can be denied in certain drug cases. "The disparity in the law makes no sense," he said. "If dangerous drug dealers can be held without bail in this way, Congress should allow for the same treatment for accused terrorists."

Likewise, Bush defended the Justice Department's request to obtain private records through administrative subpoenas, without any need for approval from a judge or a grand jury, by noting that such subpoenas have been used in investigations of health care fraud. "If we can use these subpoenas to catch crooked doctors," he said, "the Congress should allow law enforcement officials to use them in catching terrorists."

I'm not sure about the bail proposal, but I think it's already too easy for the FBI to snoop through the records of innocent people. Whatever the merits of these proposals, defending them is much easier when you can cite precedent, whether or not the existing exceptions were justified to begin with. The rhetorical power of the status quo is one reason why organizations like the ACLU are reflexively suspicious of new law enforcement powers. Even if the proposal at hand is not so bad, it is apt to be cited in defense of worse things later on.

For more (a lot more) on the dynamics of slippery slopes, see Eugene Volokh's provocative analysis, published last fall in the Harvard Law Review. The debate over the PATRIOT Act and its possible sequels is a good opportunity to spot illustrations of the mechanisms he describes.

Comments

[cdunlea]

...and after all, if drug dealers and terrorists can be denied bail, how can murderers be entitled?

...or rapists?

...or arsonists?

...or burglars?

...or jaywalkers?

...or the guy who took a book from the library on fertilizer who's probably trying to make a bomb??

[Thorley Winston]

The president himself, in his speech yesterday, defended the Justice Department's proposal for denying bail in terrorism cases by noting that bail already can be denied in certain drug cases. "The disparity in the law makes no sense," he said. "If dangerous drug dealers can be held without bail in this way, Congress should allow for the same treatment for accused terrorists."

Frankly I think denying bail in terrorism cases is probably a good idea just as it would be for a murderer in many cases. I realize that the thing which set you off is the drug dealer analogy but let's have some perspective here. It's not going to help those who wish to make the case for relegalization if its proponents are seens as having a knee-jerk defense of drug dealers. I know the WoT makes it harder to argue against the WoSD but frankly, it seems to me that you're picking the wrong battle here.

Just my $0.02.

[Ray]

Yes yes, lets pick our battles wisely lest we be seen as a party whose signature issue is the legalization of pot.

Whoops, we're already there. Awfully difficult to have a serious discussion with my co-workers on the importance of individual rights when the entire subject has been co-opted by the pot lobby.

As we choose our battles, lets remember that most of those in jail right now for drug offences are criminals who happened to pick drugs as their speciality.

[Ray]

And cdunlea seems to be drawing the conclusion that all crimes are to be treated equally.

This would mean manslaughter would carry the same consequences as premeditated mass murder.

Hmmmm, .... I guess that is the enlightened view.

[Russ D]

Thank you for writing this, Jacob. More succinct than I could have done.

I was resisting the urge to ream Ramesh Ponnuru on another thread for this same reason (the post would have been over 3000 words); I found it interesting that his NRO archive contains basically NOTHING about drug laws. To use drug law as a valid precedent for anything means you have a duty to examine those precedents and their validity in the guise of liberty, as well as their effectiveness.

The typical response to ineffective laws of course is to pass even more laws until the desired effect is achieved. And the unintended consequences are rarely examined. In other words, intellectual laziness and dishonesty.

[Kevin Carson]

The tendency is always to "rationalize" discrepancies upward. So any statist and unAmerican power granted to law enforcement in one area of crime is soon advocated for other areas.