No One Ever Said It Would Be This Hard

Several times I've heard the argument that it's okay to give the government broad powers to detain/imprison/torture people because they'll only do it to bad guys. The nuanced version deals with the possibility of innocent victims by arguing that it's worth it. I can't really argue against that, because I never took Math 53: Cost Benefit Analysis Without Actual Calculations, but I do think this argument misses something.

Specifically, it's nearly pointless to restrain someone with terms that he gets to define. So for instance, if murder suspects get to define the term "malice," they can define it in such a way that they are always innocent ("Judge, I did not commit this crime with bananas aforethought"). This is too obvious to belabor, but it also reaches the crux of the problem. If the only check on the government's ability to detain and/or torture people is that those people are terrorists, then it's crucial for someone other than the executive to decide who is a terrorist and who isn't. If the executive makes that determination, then it will be legal to detain absolutely anyone, so long as the executive has the audacity to define that person as a terrorist.

Now, I admit that it's tricky figuring out how to structure a legal system to avoid this kind of problem. The traditional saying is "Who will police the police?" to which the answer is clearly the one Homer Simpson gave: the Coast Guard. Another answer would be, "Whoever will do the job" or "Whoever has the incentive to do the job." Incentives are tricky, but that's our task if we want to enjoy the rule of law. Nobody said it was easy.