I would like to submit a brief on this matter as well.
The court must consider, in this case, both the specific matter that gave rise to this request for review, and also the general case - that is, it is tasked with not just determining whether things were handled correctly this time, but what an overall correct handling would look like. As such, I have a few points to touch on. Note that all bolding, footnoting, or other markup is mine unless otherwise indicated.
The question of ownership and official capacity first came up obliquely. In a decision on the judicial inquiry filed by Kiwi on the scope of FOIA requests, the Court held that
the FOIA law may only be used to request information belonging to the Executive branch.
It then expanded on this in a decision on the judicial inquiry filed by r3n on the ownership scope of the executive branch, holding that
the Vice Delegate has functions both inside and outside of the Executive Branch
the author of a post owns its content, and posts made while acting in one's capacity as a government official are owned, more broadly, by the respective branch of government within which that capacity falls.
The court went on to elaborate on this issue more, in a decision on the judicial inquiry filed by r3n on the meaning of "private citizen" with respect to the Freedom of Information Act. It stated,
Individuals do not cease to be accountable to the region simply because their term has ended, and posts which were governmental in nature when made retain that status. In reverse, posts which are non-governmental in nature do not suddenly become subject to FOIA when their author joins the Executive branch.
It is the status of the author and not the topic which determines whether a post is subject to FOIA. So long as the author is speaking in their capacity as an executive official, the law applies.
All posts made within areas of the forum which normally grant posting privileges only to members of the executive - excluding administrators and moderators from consideration - are inherently made in the author's capacity as an executive official. Such posts cannot be considered non-governmental. Posts which are made in areas of the forum more accessible to the public may be ruled non-governmental if such a determination is merited by their content and context.
In other words, the court has explicitly recognized that government officials are capable of acting, in different contexts and areas of the forum, in their capacity as that official, or
not in their capacity as such. This is additionally true for dual-classed officials, like the Vice Delegate, who has some duties in the security branch and some in the executive branch, as well as for citizens who hold more than one government official position.
It is also true that our legal documents do establish some restrictions on individuals in such positions. The Constitution states:
No person may simultaneously serve in government official positions in more than one of the executive, legislative, or judicial categories.[note]"Security" is notably absent from this list.[/note]
If a member of the line of succession assumes the duties of either position[note]The delegacy or vice-delegacy, as referenced earlier in the clause.[/note] while serving in, or having assumed the duties of, any other constitutionally-mandated elected office, they will be considered absent from that office.
However, the Constitution emphatically does not describe either situation as a "conflict of interest" for the relevant official. It steers clear of that language, focusing instead on what
specific duties and responsibilities[/i[ an individual can simultaneously hold. This is an incredibly important distinction to bear in mind, because the Legal Code does define "Conflict of Interest", in a way that is very specific and exclusive:
4. A conflict of interest occurs when a Justice or Hearing Officer has a vested interest in a matter before the Court, or when they are otherwise unable to rule in a fair and unbiased manner.
This simple definition is clear argument against the idea that there is any such thing as a conflict of interest - inherent or otherwise - outside of the bounds of judicial position and decision making. The phrasing is precise and unambiguous; it gives no room for interpretation that any such thing is intended or implied beyond what is specified in the law.
Not only is it the law, but in this case I think it is also very good policy. Justices hold a rather unique position in TNP: as the final arbiter of what is and is not legal and what is and is not criminal, with no (or very limited) legal structure for repeal or appeal once a court has made its ruling, it is critical that its members remain above reproach in all that they do. Simply the appearance of bias can taint the perceived legitimacy of a decision.
No other position in TNP holds such power. In every other case, appeal to a higher authority (the delegate, perhaps, or the RA, or even the courts) can redress a grievance and right a wrong. If an official acts improperly, they can be removed from office, or recalled, or have their actions overturned, or be subject to criminal prosecution. If a law or policy is illegal, it can be amended or overturned or vetoed. As long as such means of appeal exist - appeals outside the power structure which sparked the complaint - then the potential for bias does not rise to the level of a legal threat.
To illustrate with an example: Suppose a longtime antagonist/enemy of the legal delegate were to gather sufficient endorsements to just barely pass the vice delegate, and a member of the security council - a longtime friend of the delegate - stated that they received a telegram from that nation indicating its intent to take the delegacy.
Our delegate, in this situation, is not unbiased - they already dislike the would-be couper, and are preemptively inclined to believe the worst of them. Likewise, they are likely inclined to think the best of the SC member, and to take for granted that the SC member is telling the truth.
However, none of us expect our delegate in this situation not to act! They have a legal duty to perform, a responsibility to uphold, and we do not expect the delegate to shuffle performance of an ejection or ban off onto another nation simply because it's possible that the antagonist is innocent, and the SC member contrived to give them enough endorsements to rise above the VD and then made up a story about getting a telegram, and the delegate may not be the best person to assess, in an unbiased and clearheaded manner, who is telling the truth.
Why? Because that is what legal appeals are
for. In this situation, while an unnecessary removal from the region is unfortunate, any ejection or ban due to bias can be overturned by the court, and any connivance on the part of an SC member can result in their own loss of position or even criminal conviction. Anything
done can be
undone.
Not so, for the court. No body in TNP has the power to overturn a conviction, or to commute a sentence.[note]With the possible (theoretical) exception of the court itself, but only in a convoluted means that is not a standard appeals process.[/note] Even recall of all three justices does not change what the court has made law. At most, the RA can pass a new law that skirts around the ruling in a request for review... but it can do nothing for defendants hurt by biased justices. This is why we legislate on perceptions and interests for justices, but deal only with appropriate duties and responsibilities for the rest of the government.
To apply this broad principle to the issue at hand, that of classification of security council information: Bias on the part of a member of the SC is about as relevant as bias on the part of a delegate or a minister when it comes to information subject to the Freedom of Information Act - it isn't, because the information is[note]and very much was[/note] subject to court review, and the redacted information can be declassified if appropriate.
Secondly, I want to take a moment to stand up against the idea that the attorney general's role is to secure convictions at all costs, regardless of the truth or the evidence, and that they
de facto cannot be trusted to act appropriately with evidence. I think our laws do not view the AG this way, either; we recognize that not all cases should be prosecuted, and we give the AG the discretion to investigate and to determine what deserves to be brought to trial, and what does not. At no point, in our laws or in our culture, do we encourage the AG to adopt a "convictions-first" attitude. It is certainly not uncommon for an AG to decline to prosecute someone based on either insufficient evidence or insufficient wrongdoing, and exactly none of our legal documents normalize the idea that it's okay for them to take whatever steps are necessary, including lying, to get a conviction.
I understand that this is a thing that happens in real life. I understand that there are unscrupulous prosecutors who will suppress exculpatory evidence and push for higher conviction rates, at the expense of actual people and actual justice. I also understand that it is
always possible for our elected officials to act with bias, malice aforethought, or other impure motives.
However, I do not believe that the correct response to this is to regard our officials with deep-seated mistrust, and view their every action as potential evidence of wrongdoing or corruption. To do so would destroy any real sense of community we have. Rather, I think the appropriate response to the always-present possibility of some people being jerks is to build in safeguards against such potentialities; to create checks and balances, gives and takes, that minimize the damage someone can do.
I think we have that here, even if the specifics of this situation could stand to be improved - a more formalized process would not go amiss, for example, and I think it would be entirely reasonable for the court to establish one in its ruling on this. It's also certainly less than ideal that this all happened during last-minute crunch time for evidence submission, which left everybody's hands stuck in a pickle jar rather than able to carefully consider absolute best practices and precedent. But even with all of that, the specific necessary elements were met - the SC made a broad[note]Not unanimous, but supermajoritous (is that a word?)[/note] determination on what should be classified, the non-sensitive portions were made public, and the court reviewed the sensitive portions in private and made a determination on their classifiability. This works well!
I am sorry for ending so abruptly, but I loaded this page this morning intending to write my brief, and only just (ten minutes ago) reloaded it and saw that the briefing period I thought ended at 10 PM actually ends at 8 PM, which is now.
I have rather more to say - sorry - and I hope the court might be willing to let me do so.
