Arbitrary enforcement, secrecy, self-interest, and the loss of government legitimacy

August 26, 2013
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The drug war and the national security scandals have overlapped in so many ways, not the least of which is a growing sense of the erosion of the very foundation of legitimacy of government.

Certainly in a Democracy at the very least, the citizens must be able to give informed consent regarding core governmental authority, with some system of accountability for government action, and without arbitrary actions by the government against its citizens. Yes, it’s true that this is a Representative Democracy, so that each decision is not micromanaged by the populace, but we’re talking about day-to-day decisions, but rather the very foundation.

When a government acts to prevent an informed citizenry, avoids accountability, and acts in arbitrary ways that benefit those with power at the expense of those without power, then that government has lost its legitimacy.

In marijuana policy, the confusing smoke signals continue to burn

Here’s just one of many little symptoms of the problem…

This article talks about how the government is moving to seize a building from a family who rented space to a marijuana dispensary in California, without proper notice, and in a totally arbitrary manner that makes no sense regarding enforcement of laws or justice, has the effect of harming a completely innocent person, and enriches the agency doing the seizing.

But why not stop with the mixed signals, end the winless and costly war on drugs, and legalize, regulate and tax marijuana, which is nowhere near as big a social or medical problem as perfectly legal alcohol?

And if we’re not yet ready for that, can’t the feds simply shut an “illegal” pot dispensary rather than steal an entire building from a law-abiding landlord?

That’s the big question. If the goal is enforcement of the law, then seizing that building, or the Caswell Motel, or Camp Zoe make little sense (but lots of profit). Follow Americans for Forfeiture Reform for loads of instances where forfeiture is the arbitrary act of profit-seeking governmental entities and individuals.

State Officials: DOJ Has Given ‘Tacit Approval’ for Legalized Marijuana

Colorado officials say they believe they have “tacit approval” from the U.S. Justice Department to implement voter-approved laws legalizing marijuana.

“We seem to have tacit approval at this point,” State Sen. Pat Steadman, a Democrat who co-sponsored two bills establishing the state’s regulations for recreational marijuana, told TPM in a phone interview Tuesday.

Another source directly involved in conversations with Justice, who asked not to be named to speak freely about private discussions, agreed with that characterization.

“They’re well aware of what we’ve been up to,” the source told TPM. “I do think that it’s fair to say that we have their tacit approval at this point.” [...]

U.S. Attorney General Eric Holder said back in February that the Justice Department was in the “last stages” of reviewing the initiatives and guidance should be coming “relatively soon.” But there has been no further information from the department since then.

How pathetic is this? This should be a major scandal! The top officials in a state go to Washington, DC to ask the federal government for clarification regarding a major change in the laws that sets up a conflict between state and federal laws, and they get nothing. They can’t ignore the state law and they get no help from the feds, so they have to go with the “tacit approval” validation, meaning they’ll set up legal systems knowing full well that federal agents could arbitrarily swoop in at any time and arrest people or seize assets.

What kind of government is that? Limbo is not a system of justice.

There’s a judicial concept called Void for Vagueness:

In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. There are several ways, senses or reasons a statute might be considered vague. In general, a statute might be called void for vagueness reasons when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. Criminal laws which didn’t state explicitly and definitely what conduct is punishable for example are void for vagueness. A statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.

Of course, this is specific to lawmaking, but the concept should apply to enforcement as well. When laws are interpreted in secret by the government, and no guidance is given other than vague, pleasant-sounding platitudes by the Attorney General while the DEA, FBI, NSA and federal attorneys mount offensives, what is the citizenry to do?

And the secrecy in government has become extremely pervasive…

Government Confirms That It Has Secret Interpretation of Patriot Act Spy Powers

The government has just officially confirmed what we’ve long suspected: there are secret Justice Department opinions about the Patriot Act’s Section 215, which allows the government to get secret orders from a special surveillance court (the FISA Court) requiring Internet service providers and other companies to turn over “any tangible things.” Just exactly what the government thinks that phrase means remains to be seen, but there are indications that their take on it is very broad.

Is that not Kafkaesque? There are laws you must follow, but we’re not going to tell you what they are, or our interpretation of what they mean, but you must follow them anyway, and we’re going to gag you so you can’t talk about these laws you must follow, and if you try to take it to court, we’re going to invoke national security and say that the courts can’t be allowed to discuss it, plus since it’s secret it doesn’t exist anyway.

Think that’s an overstatement? Put yourself in the shoes of the founder of Lavabit:

Feds Threaten to Arrest Lavabit Founder for Shutting Down His Service

Power corrupts, and without good accountability, too many of those in government will use that power arbitrarily and destructively (even when their intentions are good). A compliant and disengaged citizenry is the fuel for widespread government corruption. It is our job to make sure everyone is engaged and aware. These corrupt practices cannot continue in the light.

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Pete Guither is the editor of drugwarrant.com

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