Improving Scrutiny Part II

The Purpose of Checks and Balances

At the heart of any human system maintaining it's function is the realization that we aren't dealing with machines. Machines function as designed, or not. When they don't function as designed they are broken and either need to be fixed, patched or discarded. Humans, at their best, don't always function as designed. The virtue of a machine is that it is a tool that does something. The virtue of humans is that we use tools to do things. The vice of our tool use is that we can use those tools for good or ill, for selfish purposes or as intended. People use drugs recreationally that intended to treat pain. People steal from their businesses. The purpose of checks and balances is to keep ourselves in line. The principles are to prevent abuse and to mitigate its occurrence.

Separation of powers has two purposes:

1. To reduce the temptation to abuse power.
2. To provide a glass barrier that leaves a record when folks break the rules
3. Irregularities must be recorded and audited periodically
4. Infractions must be punished according to set and regular rules
5. Those entrusted with separated powers must not be allowed to defeat the rules.

Break the Glass Protections

A lot of security rules include "break the glass" protections. Sometimes, you have to trust people to do their jobs. But that means letting them go places where they can be tempted to do wrong. "Break the glass protections" ensure there is a record when someone breaks the rules they can be caught.

Using Separation of Powers Principles to control drug use, Doctors can write a prescription for a patient, but not for themselves. Access to the drug cabinet is recorded and the Doctor might have a key but he is prohibited from accessing the cabinet himself. Any drug taken from the drug cabinet is counted and recorded. The quantity of pills is periodically counted and checked against the quantities prescribed and withdrawn and the accounts audited. Under "break the glass rules," The doctor writes the prescription, but is not allowed to remove the drugs from the drug cabinet. He might have a key but if he accesses the cabinet, he had better have a really good explanation. Separation of powers ensures that nobody misuses the drugs in the cabinet when it is enforced. Many hospitals have a problem, and it usually traces to the hospital not enforcing such procedures or clever drug addicts figuring out how to defeat the process.

Breaking the Rules

Other examples of "break the glass" protections might include body and dashboard cams. These ensure that any action a police officer takes is recorded. Of course in order for such protections to work, they have to be enforced. It has to be a fire-able offense to turn off the dash-cam or body-cam.

The Rules

The rules of government should always be the same:

• No person should be judge, jury and executioner.
• The executive should have only so much power as he needs to accomplish his duties.
• Legislative, Executive and Judicial powers should be in separate hands.
• No person should be a judge, prosecutor or juror in his/her own case.
• The Legislative should have the power to compel testimony, do oversight and
• A judge and jury should determine guilt or innocence. And no one should be punished except on a verdict in an ordinary court. Those are basic rules of any government agency that has power to enforce rules. The rule making should be thru a legislatures.

Enforcing the rules

Of course bad police officers will do it anyway, finding some plausible reason for doing so. Then it becomes incumbent on other persons and other separation of powers to enforce the rules. Normatively an Inspector General should look at the abuse reports and take them seriously. One might get away with turning off the camera once, but in a policing department with integrity, the third time would no longer allow an excuse like "it broke" and the officer would be fired.

Audit Trails

In order for separation of powers to work there must be enforcement and audit trail records. When someone slips up they must be punished immediately. If they have a habit of breaking rules and harming people they must be removed from office. If someone is fired for an offense, they need to be able to prove that they are reformed before being reinstated and an audit trail maintained. "Fool me once shame on you. Fool me twice shame on me." is also part of how separation of powers and good process are informed. Humans are fallible, but reckless people stay reckless unless they are forced to confront their behavior and learn lessons.

Scrutiny

Congress was assigned by our congress, the duty of overseeing judges and the executive. There are issues with this assigment that always show at the very times these need scrutiny most.