Friday, January 28, 2011

Tie future spying power to past precedent of false positives and harm to real people's lives

An idea, related to "civil efficacian." If you continually have a record of accidental or deliberate false positives in the implementation of powers which are purportedly for anti-terror, you should be limited in continuing to do it over and over. The bottleneck in having evidence one way or the other could come from excessive classification used as a way to cover up a record of poor quality. I suppose this could be one way in which the Wikileaks release of the cables is important. Is the el-Masri case an instance of this problem? My understanding is that one of the cables said, hey Germans, you had better think twice about pursuing U.S. accountability over the el-Masri case, or it will affect the diplomatic relationship between the two countries. So now we *have* the datapoint on how accurately the rendition program was being carried out, and this should have an influence on comparable programs. And if black sites and rendition per se have been stopped, you have Obama's assertions about assassination. el-Masri is a great way to be somewhat empirical about these new claims, and say "look what happened last time - past precedent suggests there will be unacceptable accidents and the program should not be done based on past precedent *as well as* the fact that it is illegal." This is stronger than simply saying "the program should not be done because it is illegal" or that it is morally wrong, because the argument in favor has to do with the "one percent doctrine" and erring on the side of false hits to prevent even a single miss, which makes the illegal seem illegal, yet necessary.

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