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RL problem: Guantanamo. And that later Americans learnt that trying to imprison such people is so complicated from legal perspective that it is much less fuzz to just use drone. Later, the procedure was even improved further, so some inmates were released because of lack of evidence, immediately afterwards those "innocents" joined some terrorist organization just to be droned at first occasion. (I could point out a few more such cases from RL, but I think that with this the most people would be familiar with. It seems that in this case the applied solutions, even though more or less in accordance to law was neither specially practical or humanitarian)

(setting: near future, post-apo) The challenge is the following:

1) To have a rough idea for a law that would allow to imprison people who seem possess serious threat to society, while those people can not be proved yet of any specific crime. (just seem to be co-involved or planning something nasty)

2) The law should be actually really hard to be used against any peaceful opposition, even if they poses clear threat to wellbeing of the group in power.

3) There is not much public opinion left, so no problem about that. To the society such regulation is being advertised as reasonable solution in accordance with utilitarian ethics. Thus this regulation would have not to blatantly violate aim of society happiness maximization.

4) The idea is not to put a few very vague and harsh laws concerning conspiracy, being co-involved, failing to report crime, etc and use them selectively. But to drop whole idea of "guilty" and "punishment" and instead "threat" and "isolation". Actually, if that would not increase the cost too much, those arrested people may be treated nicely. (after all, it's nothing personal, and at least some of those people may indeed be innocent, so no reason to apply unnecessary cruelty)

5) The law is not written against any specific group, but more in general, there is no idea who next would be a threat, nor whether the threat would be from outside or inside.

6) The solution is based on law that actually allows that, and not unofficial gov policy to be reasonable in breaking its own law.

Any ideas how such regulation would look like?

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    $\begingroup$ You can't satisfy condition #1 without completely tossing condition #2 out the window. Even laws permitting incarceration on provable acts of violence, fraud, etc. can be abused so as to violate the second principle, so laws with even lower standards of evidence will be even more prone to abuse. $\endgroup$ – EvilSnack Oct 16 '16 at 21:53
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Unlikely

To develop a system of laws that satisfy the six requirments stated in the OP requires developing an authoritarian government and acceptance of law enforcement with broad powers of prosecution and imprisonment.

Discussion of "Threat"

Attempts to define 'threat' necessarily lead to 'threat to who'. Whether someone is a threat or not is highly subjective. A communist rebel leader may be zero threat to the common poor person but the ultimate threat to a capitalist.

Discussion of "Isolation"

As social creatures, isolation is one of the harshest punishments. An extreme example of isolation is solitary confinement which the New Yorker describes as torture. Prisoners who have endured solitary confinement describe themselves losing their minds and all of the symptoms of severe head trauma, even though they received no head trauma. It actually breaks human brains to not be around other humans.

Review of Requirements

  1. This describes the policing of Thoughtcrime. Trying to figure out what a person is planning on doing is incredibly difficult and prone to erroneous judgment calls. Modern society generally thinks this is a very bad thing as punishment of thoughtcrime usually shows up in the worst authoritarian regimes, Stalin, Mao, Khmer Rouge.

  2. Making the crime difficult to apply to peaceful protest conflicts with point one. All that's required to break up a peaceful protest is for the head of law enforcement to say he has evidence that the peaceful protest was a cover for violent demonstrations. With this assertion in hand, every single one of the protestors can be arrested, jailed or "disappeared".

  3. This sounds like a consistent media message of fear. Consider how quickly the American Patriot Act was passed because of the fear of terrorism, despite how much the Act tramples on basic rights.

  4. Humane treatment of prisoners directly depends on the culture of law enforcement and how evil the accused is made out to be. Humans have relatively little difficulty with treating another homo sapien with immense cruelty as long as they are different groups. It takes immense amounts of training and introspection to continue to treat prisoners humanly.

  5. The wording of the law may apply generically to all people, but the effects of the law may be applied to only a select group of people. For example, even though stop-and-frisk procedures can be applied to anyone of any race, the NYPD stops blacks and latinos far more than whites according to The Guardian. I don't know how you'd legistlate around this, especially if law enforcement isn't keen on enforcing it.

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And who decides who possesses serious threat? Joe stole my girlfriend, he's a closet terrorist preparing an attack.

Joke aside, if you abandon innocent until proven guilty you'll let anyone at the mercy of the state. Then any opposition is just a token opposition, anybody who could threaten regime power could be jailed on frivolous charges.

If the state could imprison you without proving your guilt, the law doesn't matter, since any politician will use it against it's enemies.

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This is actually really simple. So simple you can easily overlook it.

The legislation is simple: you declare that the government has the ability to do it.

That's it.

What you describe in part 1 is the ability to put someone in jail because "the government believes they did something." If you put limits on this, you come across exactly the kind of system we have now. However, if you don't put limits on it, you have something more akin to medieval law, which worked for quite a long time. The trick to it is that you need a magistrate who is ethical enough to understand the difference between someone who should be jailed and someone who should not.

The defining difference between a legal system that does what you want and our current system is that our current system is designed to operate with minimal assumptions of the judge's "goodness." Accordingly, if you want to be able to do this, the best first step is to abandon the modern Western legal system completely, and start from scratch elsewhere.

A completely radical solution would be to remove the concepts of innocent and guilty completely. Instead of a decision being made about whether they are innocent or guilty, and then the sentence is prescribed based on that information, what if the process is more continuous? What if they could jail you on suspicions of being a terrorist, but they had to steadily add to the argument that you are guilty to continue incarcerating you. If they ever stop, the process slowly frees you automatically.

Or is this so radical? This would be the difference between jail time and prison time in our current system. You are put in jail when a Police Officer declares that they believe you should be detained, and that's all it takes. You transition to prison only when the formal judicial system finds you guilty.

Of course, we have very very strict rules about how long you can be held in jail before the system has to ratify that decision (via pressing charges and a judge who refuses you bail). A system where it's less clear how long you can be held could start to look like what you want.

A system based on Facebook justice would also work. The government could imprison anyone they want, but if they do it wrong, half of the voting population riots before the charges are even filed. In such a system, we would be dependent on the people's willingness to yell and scream and do damage with little-to-no evidence to back up their actions to keep the government in check.

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  • $\begingroup$ "a magistrate who is ethical enough to understand the difference between someone who should be jailed and someone who should not" - but in this scenario there's no evidence of actual actions to convict someone, you're relying purely on personal prejudice. $\endgroup$ – pjc50 Apr 24 '17 at 12:45
  • $\begingroup$ @pjc50 It sounds like you have a very particular definition of who should be jailed and who should not, which is not supported by the particular desires of the question. I think it's quite obvious to say that modern Western legal theory is not going to support a scheme like the OP wants, which is expressly in conflict with habeas corpus. Once you give up that, and the concept of "beyond reasonable doubt" and other evidential terms, you are obliged to use other tools besides the things Western law would call "evidence." $\endgroup$ – Cort Ammon Apr 24 '17 at 15:44
  • $\begingroup$ As an example, a judge might demand that the accused look them in the eyes. There's a long standing opinion that the eyes are the windows to the soul. A judge might need to learn to find "evidence" in such strange places. And yes, that does involve creating a system which depends more on the goodness of individual judges than on the goodness of the laws. Doing so has its penalties, but those penalties are the price you must pay when you want the judicial system to do something for you that is expressly forbidden in Western law. $\endgroup$ – Cort Ammon Apr 24 '17 at 15:46
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Its easy to give the government the power how do you prevent its abuse?

You want something that will really hamper a possible terrorist but wont really effect a peaceful protester, or a journalist.

Limit by trade

There is some cost the government has to pay to any one they hold captive for suspicion. Maybe its free speaking time on public tv, maybe its 3x a day of the person's wages. If the police had real evidence not suspicion then you don't get these rewards. Publicity and money really help protest movements but are of less use to a terrorist. The cost will also keep the government for doing this to widely. The major down side is some people would try to get arrested on suspicion to get these rewards.

Its not prison its just surveillance

If you are reasonably suspicious (as ruled by a court) the police can put you under tighter surveillance. You can still protest under surveillance but this is a huge problem for journalists who need to protect sources.

Limit by time.

The police can hold anyone on suspicion for 48 hours at most 2 times a year. This would let the police stop some one who might be a threat but it is harder to abuse since it doesn't last very long, but it might be long enough to thwart an attack. But you could still make it a problem by arresting all antigovernment protesters the max 2 times a year.

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Allow imprisonment based on threat analysis

Just as you alluded to in your answer, the solution is probably to eschew strict, legal definition of a subversive crime, and instead to allow the imprisonment of a probable threat. Probable threats would be analyzed by a government agency, who would determine if the threat seemed credible. If credible, the individual would be imprisoned. This imprisonment would not be to punish the individual for committing a crime, but to protect society at large. Actually planning a crime or terrorist action would be unnecessary for imprisonment, unlike in the case of modern American practices.

Since the individuals being imprisoned would be held not for being criminals, but for being potentially dangerous, it would be important not to stigmatize them as being problematic elements of society. Prisons should be kept as comfortable as possible, with imprisoned individuals allowed to do most anything but leave or have unsupervised communications with the outside world.

Unfortunately, this kind of open ended government power is easy to abuse. For example, in a war against another country in which there exists a substantial minority population from that country, the government might decide to imprison the entire minority, as the US government did with the Japanese during WWII. If the government or the threat assessment agency actually upheld this sort of law in an optimal utilitarian fashion, it might be effective, but in practice human behavior usually gets in the way.

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Isn't this the plot of Minority Report?

Given the requirements as written, they're very hard to satisfy without clairvoyance. "There is no idea who next would be a threat, nor whether the threat would be from outside or inside", but "would allow to imprison people who seem possess serious threat to society, while those people can not be proved yet of any specific crime". This abandons not only evidence but actual causality itself.

The process is going to be completely opaque. Some people are declared to be future threats. There's no defence they can mount nor can their supporters bail them out - your case is built on what they might do in the future.

You might take the computerisation route in order to pretend it's impartial, at which point you end up with some kind of criminal risk credit score being applied to people. Certain actions or events will put a person over the threshold. People will cross the road or run a red light then find themselves jailed forever with no appeal, because their score has increased by 1 point - but they have no way of knowing what it is. (This essentially is similar to black comedy RPG system Paranoia).

Guantanmo was an acceptable gulag to the US public because it was tiny and distant. The "no-fly list" is much larger, and the "immigrant ban" larger still. Where does it end? Isn't everybody potentially a threat to security? Who among us is truly, involably honorable? Wouldn't the computer just end up jailing the whole society?

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