Discretion please, not rulebooks

("One Nation under CCTV," an illustration contributed to the Boing Boing Flickr pool by Tom Blackwell)

I'm writing this on a plane, having just passed through Security at Heathrow airport. An obviously nice young mother was distraught because she wasn't allowed to take on board a tub of ointment for her little girl's eczema. The security man was polite but firm. She wasn't even permitted to spoon a reduced quantity into a smaller jar. I couldn't quite grasp what was wrong with that helpful suggestion, but the rule book was implacable. All the official could do was offer to fetch his supervisor. The supervisor came and, equally polite but firm, she too was regretfully bound by the rulebook's hoops of steel.

There was nothing I could do, and it was no help that I recommended a website where a knowledgeable chemist explains, in delightfully comedic detail, what it would take to manufacture a workable bomb from binary liquid ingredients, working for several hours in the aircraft loo, using copious quantities of ice, in relays of champagne coolers helpfully supplied by the cabin staff.

The prohibition against taking more than very small quantities of liquids or unguents on planes is demonstrably ludicrous. It started as one of those "Look at us, we're taking decisive action" displays, the ones designed to cause maximum inconvenience to the public in order to make the dimwitted Dundridges who rule our lives feel important and look busy.

Same with having to take our shoes off (another gem of official wallyhood that must have Bin Laden chuckling triumphantly into his beard) and all those other classic exercises in belated stable door shutting. But let me get to the general principle. Rulebooks are themselves put together by human judgments. Often bad human judgments, but in any case judgments by humans who were probably no wiser or better qualified to make them than the individuals who subsequently have to put them into practice out in the real world.

No sane person, witnessing that scene at the airport, seriously feared that this woman was planning to blow herself up on a plane. The fact that she was accompanied by children gave us the first clue. Supporting evidence trickled in from the brazen visibility of her face and hair, from her lack of a Koran, prayer mat or big black beard, and finally from the manifest absurdity of the notion that her little tub of ointment could ever, in a million years, be alchemically magicked into a high explosive - certainly not in the cramped laboratory facilities afforded by an aircraft loo. The security official and his supervisor were human beings who obviously wished they could behave decently, but they were powerless: stymied by a rulebook. Nothing but a rulebook, which, because it is made of paper and unalterable ink rather than of flexible human brain tissue, is incapable of discretion, compassion or humanity.

This is just a single example, and it may seem trivial. But you, reader, can list half a dozen similar cases from your own experience.

Last week the father of a friend was the victim of a callous rule book enforcement. His wife needed an operation to save her leg, which had suffered a damaging loss of blood owing to a heart condition. There was a good chance that, when the surgeons investigated, they would decide to remove her foot, or even her whole leg, and her very survival was not guaranteed. Her husband went home during the lengthy operation and the family waited anxiously by the telephone for the result. When he telephoned the hospital, he was told he had to come in person: they would not inform him of the result of the operation by telephone. Can you imagine the dark thoughts this must have triggered in his worried mind, thoughts that accompanied him on the whole journey to the hospital? When he finally arrived after nearly an hour's journey, he was greeted with the joyful news that the operation was a complete success: his wife, and her leg, were saved. Why wouldn't they tell him on the telephone? He could only presume it was because of some ridiculous rule, no doubt drawn up by some pen-pushing lawyer. Once again, no discretion, no human kindness.

Talk to any doctor or nurse, and hear their frustration with having to spend a substantial proportion of their time filling in forms and ticking boxes. Who sincerely thinks that is a good use of expert, valuable time, time which could be spent caring for patients? No human being, surely, not even a lawyer. Only a mindless book of rules.

How often does a dangerous criminal walk free, not because evidence has been examined but simply because of a 'technicality'? Perhaps the arresting officer fluffed his lines when delivering the official 'caution'. Decisions that will gravely affect a person's whole life can turn on the powerlessness of a judge to exercise discretion and reach a simple conclusion which every single person in the court, including the lawyers on both 'sides', knows is just.

It isn't quite as simple as that, of course. Discretion can be abused, and rulebooks are important safeguards against that. But the balance has shifted too far in the direction of obsessive reverence for rules. There must be ways to re-introduce intelligent discretion and overthrow the unbending tyranny of going-by-the-book, without opening the door to abuse. We should make it our business to find them.


  1. Spot-on! of course, until one appreciates that politicians don’t listen to independent scientists or unpaid experts at all. They first listen to contributors (corporations), then to their party, then to the strident voices the media covers or the equivalent highly dubious polling agencies.

    Consequently the best (sad) bet would be to get the maker of the eczema ointment (likely a big-pharma) to complain to the politician they are currently puppeting.

  2. Very reasonable suggestions. The only problem is that they’re reasonable suggestions.

    It seems to me — in the US, at least — the inflexibility started in the 70’s with the “get tough on crime” movement, which was largely driven by the emotional manipulation created by a press who found big money in manipulation via anecdote.

    These days I don’t see things getting any better — sometimes it seems that all we have are anecdotes. Ever hear a politician not spent 3/4 of his or her speech engaged in the telling of anecdotes and stories? As humans, we’re story-telling animals, and we eat that stuff up.

    (Fun little irony: you argue for reason by telling stories :) ).

  3. Yes! I agree with every bit of this! But where do you start with a problem this big? For example, complaining even the slightest bit over preposterous security measures at the airport has a way of getting you sent to the Trouble Dungeon.

  4. Great post. I’d like to say as a baby lawyer, however, that the law itself observes such antiquated notions as ‘reasonableness’ and ‘proportionality’ as regards the decision-making of public authorities. The problem is when a) the person setting policy is a dullard or b) the organisation does not take actual legal advice on policies, but sets them based on some crazed idea of liability prevention they heard on a course once. Generally about the Data Protection Act.

    A lot of the time a) and b) coincide. It’s a failure in public understanding of the law, as much as anything else; it’s got to the point where a research programme aimed at improving that understanding seems nearly as vital as promoting the public understanding of science. Especially when you take into account the derangement of our legislative bodies since 2001.

  5. I am pleased to report that the TSA is keeping the public safe from the threat of unauthorized toothpaste. Subjecting me to a random bag check at SJC, the agent gleefully informed me that my 5 oz. tube of toothpaste didn’t pass muster. My protests that the tube was less than half full and therefore were clearly less than the prescribed 3 oz. limit fell on deaf ears, for the prohibition is on CONTAINERS with capacities greater than 3 oz. The inspector helpfully extended the offer to have the offending tube transported as checked luggage. An offer I regretful had to decline, as I was perilously close to missing my flight. Curious that the inspector had no problem with my 16 oz. bottle of liquid soap.

  6. While I agree with the general thrust of the post, in some specific instances having rigidly adhered-to rules is only prudent. The specific example you provide of nurses and doctors having to fill out endless forms and make exhaustive notes is a system that has developed over many many years. The problem is that health care professionals working in hospitals are often overworked, exhausted and subject to a serious amount of stress. In this environment, it is all too easy to administer 50mg of medication rather than 500mg, or vice versa. Human error is alive and well, and in a hospital it will kill. Checks and double-checks reduce–but not eliminate–simple human error significantly. This isn’t opinion, there are a number of peer-reviewed studies that back this fact up with hard data gathered over a significant period.

    In another example, would you suggest that airline pilots shouldn’t be required to go through their pre-flight checklist because it’s too much trouble and doesn’t allow enough discretion? It’s a ludicrous example, I know, but in my opinion relevant to the discussion.

    Should police be allowed to arrest people if they feel in their gut that the person has done something wrong, even if there’s no actual evidence? Most people would say no.

    1. I don’t think anybody is arguing against proper medical documentation. The problem is with all the other paperwork that is not medically necessary but still required.

      Reams of paper for medical purposes = good
      Reams of paper for insurance busywork = bad

      Rules are like any tool. They can be beneficial when used appropriately or harmful when used incorrectly. You can’t just say “all rules are optional suggestions” any more than you can say “all rules must be enforced regardless of the circumstances”. Rules should be subject to a cost/benefit analysis before being instituted. If the negative side effects of the rules themselves are worse than the issue the rules are designed to prevent, then they shouldn’t be instituted.

      1. The trouble there is, a cost benefit analysis by whom, for whom?
        The person writing the rules? Enforcing them? Subject to them?

        Ridiculous rules can be quite profitable to the people writing them. Many costs are easily externalized.

    2. mkultra, your excuses for rigidity aren’t any different from those of the TSA. You are just saying humans are incapable of taking responsibility and therefore some big man with a dogma will force them to Do The Right Thing.

    3. right on mkultra! I wonder how many ppl laud D’s loose logic merely because he, Richard, wrote it? As a Iibertarian, I can hardly endorse “rules” and “directions” a thinking, rational person can/would follow for reasons based on experience and scientific method and of his/her own accord.

      And the knee-jerk reactionary rules spawned out of the ‘weakest link losers’ (e.g, the shoe bomber and subsequent shoe checks) are of insane proportions. Ludicrous.

      Assumptions, however, like ‘she has kids, she’d never be a terrorist’, ‘he deserves to know about his wife over the phone because surely WE KNOW it is in fact the actual husband on the line’ are loose if not sexist, if not out of tune for the need for privacy.

      Reverence for anything is absurd. Religiousity surely rules, reigns and rots this world. But so does misuse of intellect. Biologist as political analysist is just kind of annoying. Especially knowing Rich’s socialist bias. It’s like when Einstein gave his view on marriage. Really?! OK.

      It’s clear ppl need others to think for them. Sigh.

  7. I kept nodding and agreeing with this, until the thing with the criminal walking free.

    Of course I’d be upset if a criminal walks free on a technicality. But that particular rule is of utmost importance: It protects all the innocent folks from overeager police. Please don’t include it into the same set of examples of security theatre.

  8. I agree with most of what you are saying here, but I wouldn’t take “lack of a Koran, prayer mat or big black beard” as evidence that someone is not a threat. Racial/Religious profiling is a slippery slope.

  9. Supporting evidence trickled in from the brazen visibility of her face and hair, from her lack of a Koran, prayer mat or big black beard…

    I’m with your general point Professor Dawkins’ general point here but he should be smarter than this statement.

    First, not all terrorists are Muslims. Second, the ones that are don’t make a big show of being so when preparing to hijack or blow up an airliner full of westerners. The 9/11 terrorists, Richard Reid, etc. weren’t wearing Taliban-approved robes and kneeling toward Mecca just before going into action.

    1. That’s a hazard of trying to talk reasonably about an unreasonable situation. Of course the logic breaks down somewhere, because the logic of the situation itself is skewed. Truly a looking-glass situation, where a half-empty container is more dangerous than a full one half the size, and the most suspect people are the ones who don’t look suspicious at all.

    2. Thank you. That one point stuck out like a sore thumb to me too.

      Regarding discretion/human error vs rulebooks/authoritative wisdom, I think it simply involves understanding that rulebooks aren’t (and should never be considered as) infallible and that they’re always open to modification. A more scientific approach, experimenting with changes, observing, reporting, refining. And it appears that this is actually how things work in many places.

      Unfortunately with seriously low-probability events like terrorist attacks or unexpected post-op complications, this sort of process just wouldn’t work: there won’t be enough data to understand patterns that can be abstracted away from the specifics of the incident. In that case, deference to the rulebook is simply a method of deflecting (probably unreasonable) blame away from oneself towards the collective judgment that gave rise to the rules.

      How can one change this? By not tossing around blame for unpredictable outcomes, one can reduce the tendency for rule-enforcers to feel like they should constantly be covering their asses. But there’s money in being accusatory: for individuals and corporations in the form of litigation settlements, for media organizations in the form of drawing outraged viewers. And I don’t know how one could possibly change this.

  10. I like the writing, but I can’t say I agree. Do we really want TSA agents to have more discretion? I don’t. I don’t trust the individual discretion of potentially power drunk security appointees.

    I want the eradication of unreasonable searches and prohibitions. Simple as that. That won’t come from allowing TSA security to make exceptions based on whom they like to think is a terrorist.

    1. No, it won’t come from giving the TSA more latitude.

      It will happen when we get rid of the TSA, and the draconian overlords at the Department of Homeland Security.(which it isn’t)

  11. Supporting evidence trickled in from the brazen visibility of her face and hair, from her lack of a Koran, prayer mat or big black beard…

    While I agree with the main argument, this is a concerning point. Conservatives have been arguing police and security guards should be able to use their discretion about such things, and it almost always ends up less part of a proper threat assessment, and more a way to harrass blacks or Arabs. On occasion, the rulebook is there because you actually can’t count on the people who use it not to be bastards.

    I would argue this same thing is the case for criminals getting off on technicalities, too. If whether police respect people’s rights didn’t change the outcome of trials, what incentive would they have to do so? This is nearly the only thing that closing ranks can’t protect them from.

    You have of course said there should be balance, but in real life it is always impossible to get exactly, and you have to err on one side or the other. We have gone too far in it, but these examples remind why we’ve picked the side we did.

  12. I agree with your view on airport theatre bullshit. It’s very easy to see it’s a thin veiled attempt to appease everyone by pissing off everyone.

    However, if a hospital/doctor only ever gave out good news over the phone and never any bad news, then there would be little point withholding the bad news.

  13. Hmm. I’m torn on this. I agree with the thrust, and with the idea that airport security is largely about being seen to do something, but I have a problem with the “obviously nice” bit. What if she looked a bit shifty and agitated? What if she looked, obviously, nice, but was wearng a headscarf? A burqa?

    I don’t give much credence to the idea that liquids suddenly get dangerous when in quantities over 200ml, but sometimes a stupid rule fairly enforced is better than a sensible rule enforced by someone with poor or biased judgement.

  14. While I agree with you that most of the TSA activities are worthless theater, I agree with mkultra that records and checklists are vital for complex tasks. Atul Gawande’s work with surgical checklists that include items like having all members of the surgical team agree out loud what surgery they are going to perform and the identity of the patient, while it may sound silly, prevent a significant amount of injury and death in hospitals. Here is an NPR story link: http://www.npr.org/templates/story/story.php?storyId=122226184

  15. Reification seems to be key feature of this culture. Discretion appears to be an indication of habits, rather than laws. Good post, thanks.

  16. I think your point stands, Brainspore, regardless of whether you mangled your first sentence or not.

    We can all agree here, in our presumably liberal choir, about how ridiculous the security theater of flying has become, but we better not let anti-Muslim comments like Mr. Dawkins’ slip past. That kind of systemic accepted ethnocentrism is exactly the kind of thing perpetrated by the same people who won’t bend the rulebook.

  17. Could we start by publishing “the rulebook”? We shouldn’t have to distill a series of press releases, blog posts, and “tips for travelers” to guess what is required of us in order to avoid having our movement restricted by airport security guards, then throw ourselves at the mercy of whoever is working the TSA checkpoint when we arrive at it.

    TSA refuse to publish the rules they require passengers to follow. How can we ensure our compliance? How can we determine if their policies are constitutional? How can we know when one of their airport security guards tells us something that he or she is not simply making it up?

  18. Prof. Dawkins, I was with you until you referred to “from her lack of a Koran, prayer mat or big black beard”. The second deadliest terrorist attack on US soil (Oklahoma City) was committed by a white, average looking military vet, and if you think that it will do to keep people from “flying while Muslim”, it’s simple enough to find people who would not match the stereotype. Maybe the bad guys could find some Anglo-Jamaican guy with a nice Western name. Like, say, “Reid”.

  19. “Supporting evidence trickled in from the brazen visibility of her face and hair, from her lack of a Koran, prayer mat or big black beard…”

    Would a headscarf have made her fair game for a cavity search?

    I’m a fellow atheist and I’m cringing. Not funny and not cool, Dr. D.

  20. I can see a good reason for the hospital not wanting to give out the information over the phone. They probably don’t want to give out bad news about a diagnosis, outcome of an operation, etc. without having specialists or grief counselors there to talk to the person. And if they made it a policy to only give out good news over the phone, then anyone who they refused to talk to would know that it’s bad news, so…

  21. Annoying rules are so much better than selective profiling. How do we not all know this?

    Would you really want that same woman to have been denied her daughter’s eczema cream because she had a Koran?

    Enforcing the same rule on everyone is absolutely necessary.

    What needs to change are the rules themselves, not how strictly they’re followed.

  22. Last week I flew from London Gatwick to Marseille en route home. The first screener allowed me to take the tiny bit of hummus I had brought with me (to eat in the waiting area). But the xray attendant wouldn’t let me have it after all. The reason given was that the little tub it was in wasn’t marked as being 100 mg or less.

    Had the first guy said no, I would have waited and eaten it outside the secure area. Dammit, that was good hummus.

    Would to god this stupid “security” kabuki crap would go away instead of intensify as time passes.

  23. Professor Dawkins, your predictable lapse into Islamophobia and racism in the middle of this weighty piece is evidence of why discretionary powers are limited.

    Maybe stick to science?

  24. Professor

    Not sure if you will return to read this but with regard to your friend with the wife being operated on “Why wouldn’t they tell him on the telephone?”

    No rules written by lawyers there, just ones driven by logic and compassion. We WILL NOT give you bad news over the phone for what are hopefully good and obvious reasons. The only way to do this is to refuse to give ANY news over the phone else we end up in a situation where you can work out that the news is “bad” because we refuse to tell you it.

    Besides driving while euphoric is probably no safer than hysteric.

    Despite the above I agree with the your article

    1. I was about to post the same thing. 100% agree. If you tell the success cases that everything is fine, then “I can’t talk about it on the phone” necessarily becomes “I have some very bad news for you”.

  25. Ah, clever Prof. Dawkins leads us into the fallacy of his final example by some subtle misdirection.

    Yes, our bogus airport security arrangements were hastily drafted and are knee-jerk, over-specific reactions.

    Yes, our hospital administrators make rules based on fear of litigation and insurance claims.

    But no, our rules of jurisprudence that have evolved over centuries to protect the individual from injustice are not the same thing at all.

    Prof. Dawkins is playing with you, people.

  26. Boy, Dawkins can’t seem to log in a BB post without generating a bunch of kerfluffle! I don’t know whether his Koran comment was sarcastic (I truly hope it was, though), but his main point is valid: Inflexible rule-following is Bad.

    IMO, the “why” behind this is historical: Through most of history, there *was* a lot of discretion allowed in the enforcement of rules. This allowed the rule makers to be hardasses and allowed the enforcers to be merciful.

    Now, with lawsuits-a-plenty (or lack of reelection, or public vilification) waiting for anyone who can’t document that they did everything “by the book”, there’s no more room for merciful enforcers. Unfortunately, hardassed rulemakers haven’t changed things to accomodate this, so we’re left with a society full of “I’d like to help you, but…” rules that leave ointments in airport trash bins and minor drug offenders in years-long prison sentences.

    We either need to restore the discretion to the enforcers or, better yet, force the rulemakers to confront the fact that their rules are going to be absolutely enforced.

      1. “Merciful enforcers are not the trend I noticed in my history books. What have you been reading?”

        It’s the *exceptions* that make the news & history books.

        Granted that there have always been overzealous enforcers and people on power trips. But the majority of enforcers (and I’m talking about everything from local cops to religious officials to justices of the peace to keepers of medical records) have historically been members of their community, with individual connections to the people in that community. This connection, along with fewer negative personal consequences for allowing rules to be bent, resulted in a greater flexibility in rule enforcement than we’re seeing today.

        Yes, that flexibility also had a negative side. Sometimes fatally so. But overall, my point is that there *was* flexilbility and it *did* result in the harsh edges of the rules being softened in very many cases.

  27. RE: everyone complaining about the “headscarf sentence”

    He is obviously stating why different types of people would/wouldn’t fear this woman and her ointment.

    Rational person: “99.999999% of women aren’t going to sacrifice their child unnecessarily while blowing up an airplane.”

    Somewhat misguided Uhmurrrricuhn type person (Heathrow, i know): “Well, she’s not Muslin, nuthin’ tuh see hurrr.”

    Scientist with applicable explosives knowledge: “If you think that could in any way down an airplane, you’re frackin’ NUTS”

    POINT: “No sane person, witnessing that scene at the airport, seriously feared that this woman was planning to blow herself up on a plane.”

    ….or maybe Richard Dawkins is an unapologetic racist

    1. He is obviously stating why different types of people would/wouldn’t fear this woman and her ointment.

      He is. At the same time, it gives a good example of how discretion can fail: a somewhat misguided Uhmurrrrican type person would wave this woman through at the expense of every single person after her with a Middle Eastern sounding name. We want them following the rules, just not stupid rules.

  28. And what’s with the “dangerous criminals are walking free because of trivial technicalities!” wheeze?

    Is Dawkins an undercover agent for the Daily Mail now? Is this a test of our ability to notice misleading arguments that subtly lead us to facism?

  29. I think part of the reason doctors are not allowed to give information over the phone has to do with the fact that your identity cannot be (fully) confirmed, therefore the risk exists that information could be given to someone not entitled to it (correct me if i’m wrong). In an ironic twist, however, results can be sent by fax (although I’m not sure whether that’s only from one doctor to another).

    1. “What’s your full name? Your date of birth? Your house number?”

      Or do hospitals require photo ID now?

      1. Anyone in your household could answer those questions. A lot of people in this thread are referring to “inferring bad news,” but I think privacy and protection of health information is more the issue there, though I haven’t found anything in PHIPA or the Bundesdatenschutzgesetz directly referring to phoning. PHIA in Manitoba, however, has an exception allowing hospitals to contact family if someone is injured, provided they can’t inform their family themselves. It seems to be variably regulated.

  30. He has a point, but these situations Richard uses are not at all analogous. Sacrificing all privacy to give the illusion of security is not the same thing as obstinately protecting privacy, and is not the same thing as someone exploiting legal safeguards meant to keep innocent men out of jail. The matter’s not as simple as encouraging more discretion. Some rules need to be enforced rigidly, others need to be seen as guidelines only, and THAT is the difficult bit.

    There must be ways to re-introduce intelligent discretion and overthrow the unbending tyranny of going-by-the-book, without opening the door to abuse. We should make it our business to find them.

    There is one: we kill all the lawyers. And insurance men. And lobbyists. And gesture threateningly at the handful of politicians left to go about their business.

  31. If my wife was having any surgery (especially a risky one) I would not leave the hospital. I would drink lots of coffee and deal with the wait. I’m horrified at the thought that your friend’s father may have felt inconvenienced because he was required to drive back to the hospital to check on his wife’s wellbeing.

  32. There’s a legal principle of “good faith”, which protects officers of the law if they take action they believe they’re empowered to do. For example, if a warrant states that they can search a private airfield, and they find evidence in a building on that airfield, the defence can’t successfully argue that that evidence is inadmissible because the building wasn’t specifically named: the airfield itself is in plain sight, so no warrant is required, so it’s natural to assume a warrant is needed because because the buildings thereon are to be searched, and search warrants by default include language to convey that.

    And flubbing Mirandizing someone only counts if they then make a confession before they can be given the proper Miranda warning, and it only makes the confession inadmissible. If a confession given while in custody is all that stands between a conviction and someone walking, they should walk. I don’t care if the police are all saints and angels, that’s a state of duress.

    So the government has plenty of leeway to use its judgement against us, they should be able to use it for us, too. Besides, surely harassing the innocent, confiscating hummus and toothpaste and feeling up cancer patients and assault victims is emotionally draining? Wouldn’t a crafty terrorist send a bunch of people who’d be waved through with a little discretion just to wear out the security personnel and improve his chances of slipping his tools past their tired minds and eyes? Wait, no, a crafty terrorist would just blow up the security line.

  33. The surgery result thing must be a UK phenomenon. It’s quite normal in the US to call family members and give them the results. Possibly because it’s pretty common to have your next of kin be 3,000 miles away.

    1. Yeah Antonius

      One of the consequences of having a fifth of the population of the USA shoved into an area about the size of Louisiana. Pretty much everyone is within a days drive of everyone else.

      1. Apparently, you could send an overnight letter anywhere within England in Jane Austen’s time.

    2. The Canadian medical profession doesn’t give results on the phone either. Although we’re told it is so bad news is never given or inferred on the phone, it may well be as much as anything to force patients to come in for a billable visit.

  34. I, too, would often like to see people given discretionary powers, namely when it benefits myself.
    But it didn’t benefit me when the Bush Administration declared the Geneva Conventions “quaint.” It doesn’t benefit me when jurors convict people on very little to no evidence (see West Memphis Three, for example) because they just feel confident they can determine guilt based on gut reactions. It didn’t benefit me when Andrew Jackson overruled a Supreme Court decision and forced the Cherokee to move.
    I agree that there are times when individuals’ inability to use discretion is maddening. But also look at the dangers of discretion. I would really love to see some kind of “middle way” like Dawkins proposes, but I just can’t determine where it lies. My own guideline is to tend in the direction of mercy, to act in such a way that we don’t directly cause human suffering. But people have such radically different worldviews that it is hard to imagine a successful “rule” of discretion. Intentional or not, Dawkins’ example of racial profiling brings out the problems in the ideas he advocates. To some, profiling is a safe discretion. To others, it can be the very root of the problem it seeks to eradicate.

  35. Oh man, I read the article by Thomas C. Greene you linked to and – of course – had to look up dimethylmercury and Karen Wetterhahn.

    I don’t think I’ll be sleeping well tonight. Save us TSA!!1


  36. During the hot Australian summer there are dozens of outdoor music festivals. In recent times the security people at some festivals have enforced a ‘no liquids’ policy, presumably to prevent smuggling of contraband. Amongst the liquids confiscated was sunscreen, so hundreds of kids were sunburned and the festival organisers didn’t supply sunscreen on site.

  37. Another law student here. I think that we can all agree that mindless security theater and clinging to the letter of the law at the expense of justice is a bad thing. Nevertheless, every single “ridiculous rule” drawn up by some “pen-pushing lawyer” directly corresponds to at least one outrageous incident where someone was badly hurt. These rules are not arbitrary power trips, they are based on decades or centuries of bitter experience.

    – Everyone must be subject to the same security procedures, ideally meaningful procedures, because, historically, certain groups suffered discrimination and abuse when screeners held unchecked discretion.

    – Health care providers must be scrupulous with the information they share because it actually happened that some doctors somewhere shared sensitive records with strangers who used that information to harm the patient.

    – As noted in previous comments, doctors and nurses must keep detailed records because medicine is so complicated that it is tragically easy for the new kid on the hospital floor to negligently render contraindicated treatment unless everything is written down. Medical errors kill people every day and data collection is an important part of reducing medical error.

    – I Agree with you there on compulsory sentences for certain crimes. Especially for non-violent drug offenses, removing judicial discretion in favor of politically driven mandatory sentences is terrible.

    – Lastly, and most importantly, “legal technicalities” are not easter eggs for criminal defense lawyers. “Technicalities” arise out of the fundamental liberties specifically contemplated in the Bill of Rights. There are countless instances where police arrested people without probable cause or extracted confabulated confessions from suspects without telling them that they were legally entitled to say nothing until their lawyer arrived or that they were entitled to a lawyer at all.

    A defective Miranda warning, which violates a suspect’s due process rights, might not be a harmless error if a suspect consequently waives a fundamental right he did not knowingly intend to waive. Evidence uncovered as a result of due process violations is not reliable and should not be used to deprive someone of their liberty. Scientists scrutinize adherence to procedure because sloppiness risks error. The same is true in the law.

    1. Nevertheless, every single “ridiculous rule” drawn up by some “pen-pushing lawyer” directly corresponds to at least one outrageous incident where someone was badly hurt.

      What was the outrageous incident where someone was badly hurt by liquids on an airplane? I remember an old episode of “The People’s Court” where some dude was trying to sue because a flight attendant spilled coffee in his lap but I don’t think that’s what you meant.

    2. Nevertheless, every single “ridiculous rule” drawn up by some “pen-pushing lawyer” directly corresponds to at least one outrageous incident where someone was badly hurt. These rules are not arbitrary power trips, they are based on decades or centuries of bitter experience.

      Every day, 1,000 Americans go to emergency rooms with dogs bites. Why haven’t we driven that species to extinction? Those furry little fuckers make terrorists look like Mother Teresa.

      1. Forgive me, I was imprecise. The “ridiculous rules” I had in mind were rules that are not a priori obvious but which are actually based in reality, such as prohibiting racial profiling, HIPAA privacy rules, and due process under the law.

        Banning fluids on airplanes and its regulatory ilk is just cargo cult security and silly law. Ridicule away.

        And about those dog bites… http://www.animallaw.info/articles/qvusdogbiteslstatutes.htm

      2. Every day, 1,000 Americans go to emergency rooms with dogs bites. Why haven’t we driven that species to extinction? Those furry little fuckers make terrorists look like Mother Teresa.

        Hey, that’s my hobbyhorse! ;)

        Seriously, though, well said. America’s tolerance for millions of dangerous dogs (which are created, of course, by bad owners) is amazing, considering our lack of tolerance in general.

          1. Well, today, I don’t need a weapon to kill a dog. As I get older I suppose I’ll have to start carrying a gun, but honestly I find weapons that leave the hand aesthetically displeasing.

            And when I was mauled by dogs as a child, I wasn’t yet big enough to use a gun safely anyway.

            And my childhood pet, which was torn to pieces in my back yard by a neighborhood dog, didn’t have a trigger finger.

            And when the neighbor’s pit bull tried to attack my toddler, she wasn’t old enough to understand that the doggie wasn’t her friend.

            Guns aren’t the answer to every problem, or America would be a wonderland, eh?

  38. Well, mindless security screening is almost completely pointless (does stop random crazy people). There are plenty of explosives that can be brought in, including clear liquids (as per John Carmak of Id Software (Doom, Quake, etc) and Amarillo Aerospace) pure hydrogen peroxide with a low (1-10%) methel alcohol goes bang quite nicely, and can be set off with a good shake). The OSS had an explosive that looked like flour, and you could bake bread with it, and it would still explode nicely.

    And aside from 9/11, quite a few people have been killed by white male terrorists. Chechen women make up a fair % of the suicide bombers the Russians have to deal with.

    Oh, and Navy Seal Team 6 (US commando team, counter terror) carried handguns and no special ID in the early 1980s when ever they flew, so that they would be practiced if they ever needed to for a mission. They never once got caught, and I’ve yet to see anything that would make me think things have changed.

  39. dragonfrog was spot on with the Daily Mail comparison. Why can’t potential threats just be assessed ad hoc by airport staff on the basis of common sense?. It’s procedural correctness gone mad!

    Now, that point about the scientific implausibility of generating explosives from “binary liquids” seems to be a much more promising angle for Professor Dawkins to approach this from, but that relates to the quality of the rules – a completely different issue.

    On an unrelated note, I wonder why this post bears ATHEISM and RELIGION tags, unless the whole piece is intended as some sort of obscure analogy…

  40. I think the main thrust of Dawkins’ complaint is that rule books rely on simple binary logic – if these conditions apply, this is forbidden – type of statements. As rational beings we have more powerful tools of thought to use at our disposal. There’s nothing intrinsically wrong with codifying successes and failure – indeed this is how our civilisation has progressed so far – but equally we should not do so rigidly and eliminate freedom of action as turning us all into robots freezes us into our current state with no ability to respond and grow. The trouble with the TSA is that as an organisation it treats its staff as mindless automata who cannot be trusted to make any decision not in the 3 ring binder, which means they have to act like mindless automata and treat us like mindless automata – and that naturally and rightfully pisses us off.

    1. Triskele wrote, “I think the main thrust of Dawkins’ complaint is that rule books rely on simple binary logic – if these conditions apply, this is forbidden – type of statements.”

      That’s generally how laws work. Either you are in compliance or you are not. Sometimes judges need to interpret them. The problem (in the United States, at least, and I believe our airline security policy is influential in the EU), is that airport security polices are not law. Policies are left up to entry-level government staff to apply, and sometimes to create, as they see fit.

      We’ve put these security guards in charge of the deciding who will be allowed to travel via commercial air — which in the United States is a right not a privilege — and who will be barred from flying. When we request the policies that guide the actions of these public employees, TSA tell us that they are secret and we cannot read them.

      If we need to keep water bottles out of airport terminals, then let’s make it unlawful to bring them in, and prosecute those who seem to have done so.

      When I go to the airport, I want to know what is required of me, and I want agents of my government to leave me alone unless it seems that I’ve violated the law.

      1. That’s generally how laws work. Either you are in compliance or you are not.
        Not really. There’s no little process monitoring you going “legal… legal… illegal…”. Police might observe what they consider a violation, but they still have to prosecute. You might feel aggrieved about someone and bring a prosecution. Depending on your jurisdiction, the prosecutors then decide if there is a case to answer and bring it to court. Unlike TSA agents, judges, prosecutors and police can act on the intent of the law (except when they are intentionally being arses and follow the letter of the law). This can lead to very different and much more reasonable outcomes.

  41. With regard to phone info from hospitals.
    Most emergency workers over the years have experienced the misuse and confusion of honestly given information.
    Distressed people hear little after “cancer” or “bad accident”, and often misinterpret.
    Disreputable media slugs regularly impersonate family from “far away”.
    We routinely explain to families (early on) why we give little information over the phone….little more than “no change” “stable” etc. and apologise in advance…..I would like to offer this apology and explanation to you all here.

  42. In Taiwan, as in most of East Asia, administrators do not trust people, only paper. This results in a very confusing dual reality in which the self on paper is often unrecognisable to the self doing dishes or watching TV.

  43. Regarding the paragraph about criminals released on a technicality, technicalities are generally good for the police. Before Miranda in the US, there was a searching fairness inquiry into confessions and access to an attorney. Lots of interrogations are currently allowed, because of Miranda waivers, that would have been excluded under the more discretionary test. The police LOVE Miranda, which is why they routinely file amicus briefs in support of it when it comes before the Supreme Court. The police can interrogate you for hours and hours without an attorney if you have “waived” your Miranda rights or failed to affirmatively state that you refuse to answer their questions. Provided the police read you Miranda – a few short sentences – the presumption is that anything you said was voluntary. This is a ridiculous proposition. More (judicial) discretion may let more criminals, whose rights have been violated, go free.

    Conversely, in the airport security context, the rigid rules act as a check, theoretically, on over-intrusive searches. Too much (executive) discretion is worrying in that context, because, in theory, if everyone is subjected to searches, then they are more likely to change the rules politically. If searches are discretionary, then they are likely to target a disfavored minority with no real opportunity for political relief. If it weren’t that 1) people are unreasonably scared out of their minds about terrorism and 2) many people fly so rarely that their lived aren’t really impacted, it is hard to believe that current airport security would be tolerated. Discretion, in this context, is likely to breed even more invasive searches of the politically weak.

    It’s easy to argue for more discretion, but don’t over generalize. Few things are more terrifying than the unbridled discretion of the executive. Ask anyone who spent time in Guantanamo.

  44. Interesting bit of smoke and mirrors here, using an example of a rule that he demonstrated was pointless and shouldn’t exist to illustrate the unrelated proposal that more discretion should be allowed.

    No, we need to strip back pointless rules, and refine the rules we keep to allow as much flexibility as is required. When you start giving out discretionary powers to officials, it’s a slippery slope to wide scale corruption.

    1. I agree.

      The discretion of the Magistrate is the short route to tyranny.

      Legalize marijuana completely: and you’ll see much more respect for the remaining Laws amongst a wide segment of the population.

      The mechanical application of unjust laws and the infliction of excessive punishments for petty matters, while great frauds go unpunished and un-investigated is a time-tested path to civil unrest and unhappiness.

      Why are the leaders of the USA apparently so intent on following it?

      Who benefits?

    1. Calm down, Drama Llamas. “Same as it ever was.” There is little difference between now and 50 years ago except the fears are different.

      People were more likely to follow authority then. WWII required citizens to sacrifice, and restricted goods and commodities. Some foods and products were rationed.

      Post WWII had the Cold War paranoia, and authority was comforting to a degree. With WWII you had an influx of men who were used to some degree of discipline and respect for authority. Thus you had a sort of group think with many issues, where voices of authority were trusted as truth. Thus you have the Comics Code, and McCarthy convincing America of a Commie under every bush.

      People like to romanticize the past, but they quickly forget the complexities and contradictions.

      1. Calm down, Drama Llamas.

        No, I won’t calm down. I won’t step down. You be weak all you want to. I have self respect.

        Pull down your pants, gimp. Do what you’re told, gimp. Get in line, gimp. OBEY.

        You like that, don’t you?

  45. I think we’re trying to move too quickly as a culture. We’re getting too competitive and aggressive to carry on, so the wheels are starting to fall off now. We’ve invented a lot of great technology along the way, but now we find ourselves at a point where we’re moving so fast that we can’t even think anymore, so we don’t. We let the bureaucratic systems define our reality, where such systems ought to be little more than FAQs to be consulted when sizing-up a challenging situation (not to be confused with our most essential laws regarding violent crimes, human rights and so on).

    I would say the rulebooks themselves, due to the human error Dawkins mentioned, ought to be given as fluid an interpretation as you’d apply to any living, breathing human colleague from whom you’ve asked advice on a matter. Unfortunately, that just isn’t how the culture works right now. Because the professional world is so cutthroat, nobody wants to be responsible for anything that could potentially end their career, so they just stick to the letter of the boss’s rulebook and remain as much an unthinking functionary as possible. Given the labor market today, I understand.

    Still, just as an automatic coffeemaker saves you from having to wake up earlier and wait for coffee, bureaucratic compliance saves you from having to wake up at all and approach reality from with the rational judgment of a competent adult.

  46. General agreement here, other than the rather stupid idea that terrorists would all look like Mulims are supposed to look. (Not even all Muslims look like Muslims are supposed to look, and to conflate terrorism and Islam is a cheap shot not worthy of your intelligence.)

    I do wonder if the subtext of your argument isn’t that because you have given examples of bad rules, overenthusiastically enforced — we are supposed to decry all rigid rules?

    As others have pointed out, there are circumstances where rigid rules are needed. Is the problem here that there are rules that are being enforced too literally, or that the rules themselves are silly? I would suggest the latter.

  47. As to why there’s no published guidelines for what you can bring on, I theorise it’s three parts FUD and one part security through obscurity.

    [reasoning]If all travellers are afraid when passing through, then so are the people who seek to cause mischief (deterrent/Panopticon); if we publish what will trigger a search, the passengers and mischief makers will reorganise themselves to pass straight through the gaping holes in the defence (we’re kind of shit, but we don’t want them to know).[/reasoning]

    The problem I have with treating everyone as a potential terrorist is obvious – you’re terrorising everyone.

    Plus, I’m a strongly-accented Northern Irish man and the last two times I’ve flown out of Belfast I had my bag checked for explosives. Coincidence? I hope so, but that didn’t stop me from feeling horribly humiliated and fearful as a cold-eyed security guard ran a little paper disc over everything I owned and consulted his mysterious machine to see whether I was permitted to exist.

  48. There are good reasons for the “no medical results by phone rule.” Let’s say that the operation had gone tragically, and that the man’s wife died. Giving him that result over the phone is basically saying, “I’ll wait here on the line while you go to your gun locker and off yourself.” It’s better to give such results in person, where a grief counselor is immediately available, and it’s harder to make rash decisions.

    So, why not just give out bad results in person, and give good results over the phone? The flaw in that idea is pretty obvious, but I will leave its discovery as an exercise for the reader.

  49. Suggested rules for airport carry-on luggage:

    1) No weapons. (A weapon shall be defined as something that is has a primary function that would give me an advantage in a fight. My nail scissors are not a weapon, even if they are *really* sharp. Your baseball bat might be, and that should be decided by a court of law.)

    2) The onus is on the security staff to prove that an item fits (1); not on the passenger to prove that it does not. (If you can show that my baby milk is in fact one component of a binary explosive, by all means impound it — or, better yet, just arrest me.)

    3) Pilot is exempt, since he can crash the plane whenever he likes. (For fairness’ sake it might be best to have him comply, though.)

    (I challenge anyone who thinks these rules are too lenient to show a single case where random inspection of carry-one stopped a terrorist.)

  50. The problem is not the lack of discretion, but rather the insanity of the rule books. The airport rule books are INSANE. They need to be changed.

    Regardless of the impression given, that airport supervisor *could* have allowed the cream. This is the SUPERVISOR. Who is going to question it?

    When I was young and lived in a kinder gentler world, I believed that the police were actually there to serve and protect. Last Year’s #G20 protests in Toronto put the last nail in the coffin of that misguided belief.

    Although I am not a lawyer, it appears to me that the discretionary aspects of law enforcement are the reason why Toronto security consultant Byron Sonne has spent 8 months and one day incarcerated while our Prime Minister’s friend Tom Flanagan who “counsel[ed] other persons to commit offences” on Canada’s CBC public television network in clear contravention of Canadian law, has not even been charged.

    For the medical profession, proper record keeping may be tedious but it is an important part of the job. Medical notes on procedures, treatment, drugs given, allergies, reactions etc. are part of the job. When improperly done the doctor/nurse cannot properly do the job. The smartest doctor can’t retain every detail of your history in their head. The most brilliant surgeon can easily remove the wrong organ without proper records. Bad or incomplete records are a danger to patients and an invitation to malpractice. Discretion doesn’t enter into it.

    But most of all, I have to say I was incredibly bothered by the absurd stereotypical assumptions Mr. Dawkins includes in this paragraph:

    No sane person, witnessing that scene at the airport, seriously feared that this woman was planning to blow herself up on a plane. The fact that she was accompanied by children gave us the first clue. Supporting evidence trickled in from the brazen visibility of her face and hair, from her lack of a Koran, prayer mat or big black beard, and finally from the manifest absurdity of the notion that her little tub of ointment could ever, in a million years, be alchemically magicked into a high explosive – certainly not in the cramped laboratory facilities afforded by an aircraft loo.

    Is Mr. Dawkins really foolish enough to believe a terrorist can be identified in this manner or is he suffering from a delusion?

    The absurdity of the ointment as a weapon is the only issue here. Which again goes to the heart of the problem: granting additional discretion to ‘authorities’ who already have far too much capacity to mess with citizens will only make it worse.

    What needs to change is the erosion of human rights and dignity that are being accepted without question on the face of fear based ‘rules’ being imposed.

    The problem is not the lack of discretion, but rather the insanity of the rule books. The airport rule books are INSANE.

  51. “There must be ways to re-introduce intelligent discretion and overthrow the unbending tyranny of going-by-the-book, without opening the door to abuse. We should make it our business to find them.”

    What the crap?

    Let me rephrase that for you: “People are stupid. There must be ways to make them less stupid. We should make it our business to find them.”

  52. The problem here (and in many other places) is the fact that we allow rulebooks to be phrased in the form “Thou shalt not …” rather than “Thou shalt not … because …”.
    By separating the justification from the prohibition, we create a situation where even if the prohibition was initially sensible, we then lose sight of the point in time at which it ceases to make sense.
    It’s not the rulebook per se that is a problem, but a rulebook full of incorrect or no longer correct rules.

  53. Richard Dawkins in this commentary makes a populist case against the rule of law and for arbitrary use of power. Have we learned nothing? That we are all subject to the hamfistedness of the rules is a GOOD thing, if we were not, and only, say the people who look muslim were, there would be no end to the indignities the government would subject them to(and in the process showing them that we consider them second to fourth class citizens), but as long as we all are, this impulse will be tempered by our own knowing what it feels like.

    1. Yeah, when my kid was nailed under “zero tolerance” one of the other parents said it was OK that he was being deprived of an education for a crime that harmed none, because “what if it was a black kid?”

      So, apparently we have to treat white kids badly since we can’t give up treating black kids badly.

      Fuck that. I’m with the Egyptians.

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