I think this draft is coming along nicely.

I mentioned this someplace else, but I would prefer that it was a joint situation between the CRS and the Cabinet. That would mean we'd have a standing group involved, but also there would be some representational power so an elected group couldn't dominate things.

Thanks Tsu. I actually did address this in the notes on the last draft, here:

After some consideration, I have not implemented Tsu's suggestion to involve the Cabinet in security risk and security threat declarations. I think it is important to maintain the Cabinet's role as a check on these powers in 2(2), and that would make little sense if the Cabinet is also involved in exercising these powers in the first place. Again, I also took into account concerns others had raised earlier in the discussion in regard to Cabinet involvement with imposing security threat declarations.

Basically, I think it's more important to maintain the Cabinet as part of the checks and balances on this power after a security threat declaration, rather than during the investigation and security threat declaration process. Additionally, there were others who were uncomfortable with the Cabinet being involved in the process of declaring someone a security threat because they were concerned that would introduce a political aspect into the process.

(This post was last modified: 03-14-2017, 05:21 PM by Cormac.)

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I have a suggestion for your draft, @Cormac. Currently, there's no requirement that an investigation question the person being investigated. I think the CRS should have that person to give classified testimony.

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Very nice draft @Cormac
I like the idea of checks and balances via the Cabinet.My only question on that is how long does the Cabinet have to recommend the Assembly rescind the designation?

Also, I wonder if we need to write in the part about the Court only interpreting the cause for the designation, and not the actions taken in proportion?

Semi-Unretired

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I have a suggestion for your draft, @Cormac. Currently, there's no requirement that an investigation question the person being investigated. I think the CRS should have that person to give classified testimony.

Good suggestion. I'll include language related to that in the next draft.

Very nice draft @Cormac
I like the idea of checks and balances via the Cabinet.My only question on that is how long does the Cabinet have to recommend the Assembly rescind the designation?

Also, I wonder if we need to write in the part about the Court only interpreting the cause for the designation, and not the actions taken in proportion?

I think, as I've thought the process through anyway, that the Cabinet should be able to recommend that the Assembly rescind a security threat declaration at any time after it is implemented. That's why there currently isn't any time frame included in the draft.

I don't think we actually need to write what the Court can't do into the legislation, as it's clear that there is only one specific thing the Court can do -- determine whether reasonable cause existed for a security risk or security threat declaration. That's all the Court would be empowered to do, and for the Court to do anything else would mean engaging in judicial activism. My concern in regard to legislating what the Court can't do is it could then be argued that the Court can do anything we didn't specifically legislate that it couldn't do -- which would open the door to the Court being able to do more than we intend, if we miss something.

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I have a suggestion for your draft, @Cormac. Currently, there's no requirement that an investigation question the person being investigated. I think the CRS should have that person to give classified testimony.

Good suggestion. I'll include language related to that in the next draft.

Very nice draft @Cormac
I like the idea of checks and balances via the Cabinet.My only question on that is how long does the Cabinet have to recommend the Assembly rescind the designation?

Also, I wonder if we need to write in the part about the Court only interpreting the cause for the designation, and not the actions taken in proportion?

I think, as I've thought the process through anyway, that the Cabinet should be able to recommend that the Assembly rescind a security threat declaration at any time after it is implemented. That's why there currently isn't any time frame included in the draft.

I don't think we actually need to write what the Court can't do into the legislation, as it's clear that there is only one specific thing the Court can do -- determine whether reasonable cause existed for a security risk or security threat declaration. That's all the Court would be empowered to do, and for the Court to do anything else would mean engaging in judicial activism. My concern in regard to legislating what the Court can't do is it could then be argued that the Court can do anything we didn't specifically legislate that it couldn't do -- which would open the door to the Court being able to do more than we intend, if we miss something.

What about the next elected Cabinet, or the next after that, etc. Is it open ended?

Semi-Unretired

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What about the next elected Cabinet, or the next after that, etc. Is it open ended?

It is intended to be open-ended, yes. I do recognize that people can be fickle and have short memories, but the Cabinet's only role is to recommend that a security threat declaration be rescinded and explain in their recommendation why the individual is no longer a threat. After that, it would take a three-fifths vote of the Assembly to actually rescind the security threat declaration, and that would be a debate and vote in which the CRS members and others who remember why the individual was a threat could participate as well. So it would still be a deliberative process.

I do think having a strong check on this power is necessary. It would be peculiar to have such a significant power unchecked after a certain point, because throughout the other constitutional laws significant powers are generally accompanied by significant checks and balances.

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A suggestion was raised on Discord yesterday that instead of requiring a three-fifths vote in the Assembly to rescind a security threat declaration upon the Cabinet's recommendation, we allow the Cabinet to rescind a security threat declaration and require a three-fifths vote if the Assembly wants to continue it. This was proposed as a compromise to gain support from those uncomfortable with the broad powers this legislation would grant to the CRS.

Thoughts on that compromise?

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I think I can see both sides. One the one hand we don't want people to be able to change a security threat declaration simply because a new wave of people pile in and vote to do so. This keeps the Assembly from politicizing security threats?

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It also prevents a minority keeping a security threat designation in place of the cabinet wishes to lift it.

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I'm not going to be able to make a new draft today, sorry folks. There should be one up tomorrow.

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