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CIRCUMVENTION

Yes Circumvention
Megan/Jonathan/Sukriti/Anshul/Joanna/Eric

Federal

President
Executive will circumvent the NSA- FDR wire tapping
proves
Katyal and Caplan 08 (The Surprisingly Stronger Case for the Legality
of the NSA Surveillance Program: FDR Precendent,
http://scholarship.law.georgetown.edu /cgi/viewcontent.cgi?
article=1058&context=fwps_papers, accessed 7-15-2015, EHS MKS)
This Article explains why the legal case for the recently disclosed National Security
Agency surveillance program turns out to be stronger than what the
Administration has advanced. In defending its action, the Administration
overlooked the details surrounding one of the most important
periods of presidentially imposed surveillance in wartime President
Franklin Delano Roosevelts (FDR) wiretapping and his secret endrun around both the wiretapping prohibition enacted by Congress
and decisions of the United States Supreme Court. In our view, the argument
does not quite carry the day, but it is a much heftier one than those that the Administration has put forth
to date to justify its NSA program. The secret history, moreover, serves as a powerful new backdrop

we believe that compliance with


executive branch precedent is a critical element in assessing the
legality of a Presidents actions during a time of armed conflic t. In
the crucible of legal questions surrounding war and peace, few
judicial precedents will provide concrete answers. Instead, courts
will tend to invoke the political question doctrine or other prudential
canons to stay silent; and even in those cases where they reach the
merits, courts will generally follow a minimalist path. For these and other
against which to view todays controversy. In general,

reasons, the ways in which past Presidents have acted will often be a more useful guide in assessing the

as Presidents face pressures on security


unimaginable to any other actor outside or inside government . At the
legality of a particular program,

same time as Presidents realize these pressures, they are under an oath to the Constitution, and so the
ways in which they balance constitutional governance and security threats can and should inform practice
today

Executive has circumvented Surveillance- no proof it wont


happen again
Eric Sandberg-Zakian 2011 (L/N-Harvard National Security Journal, 2
Harv. Nat'l Sec. J. 491, Beyond Guantanamo: Two Constitutional Objections
to Nonmilitary Preventive Detention, Covington & Burling, LLP, Washington,
D.C. J.D. Yale Law School, 2010. B.A. Yale University, 2007, Accessed 7/15/15,
EHS MKS)
At home, no less than abroad, the state turned its massive resources to
preventing terrorist attacks. Just months after September 11th, for
example, Congress had already overhauled the federal government's
counterterrorism powers with the USA PATRIOT Act, [n41] the Department of
Justice had announced that it would shift its focus from crime prosecution to terrorism prevention, [n42]

Bush had ordered the National Security Agency to


conduct electronic surveillance of certain U.S. persons without first
obtaining a court order, circumventing the Foreign Intelligence
and President George W.

Surveillance Act . [n43] Congress continued its restructuring of the executive branch's national
security wing, creating the Department of [*501] Homeland Security in 2002 n44 and the Office of the
Director of National Intelligence in 2005. n45

Obama circumvents all the time- 7 specific times


Amy Payne 2014 (7 Times Obama Ignored the Law to Impose His Executive Will, February 14,
2014, http://dailysignal.com/2014/02/14/7-times-obama-ignored-law-impose-executive-will/, Accessed
7/15/15, EHS MKS)
President Obamathe imperial President, the Ive got a pen and Ive got a phone President who cant wait to show us
his year of actiononce vowed to do exactly the opposite. The biggest problems that were facing right now have to do
with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And
thats what I intend to reverse when Im President of the United States of America. That was candidate Obama back in
2008. This comment somehow slipped under the radar for the past few years and resurfaced this week. Proving the
absurdity of this campaign promise, Heritages legal experts have put together a list of seven illegal actions the Obama

If it seems like there


should be more than seven, youre on to something . Its more complicated than
Administration has taken in the Presidents unilateral drive for executive power.

you think to tell whats illegal or unconstitutional when it comes to presidential power. Heritages Elizabeth Slattery and
Andrew Kloster explain: While it might not be possible to define in all instances precisely when an action crosses the line
and falls outside the scope of the Presidents statutory or constitutional authority, what follows is a list of unilateral actions

1. Delaying Obamacares
employer mandate The Administration announced that Obamacare
wont be implemented as it was passed, so employers with 50 or
more employees dont have to provide the mandated health
coverage for at least another year (and longer if they play their cards right). Slattery and
taken by the Obama Administration that we think do cross that line.

2.
Giving Congress and their staffs special taxpayer-funded subsidies
for Obamacare It was uncomfortable for Members of Congress when they realized that, through Obamacare,
Kloster observe that The law does not authorize the President to push back the employer mandates effective date.

they had kicked themselves and their staffs out of the taxpayer-funded subsidies they were enjoying for health coverage.
But the Administration said no problem and gave them new subsidies. In this case, the Administration opted to stretch

Trying to fulfill the If you like your


plan, you can keep it promiseafter it was broken When Americans started
the law to save Obamacareat the taxpayers expense. 3.

getting cancellation notices from their insurance companies because Obamacares new rules were kicking in, the
Presidents broken promise was exposed. He tried to fix things by telling insurance companies to go back to old plans that
dont comply with Obamacarejust for one year. Slattery and Kloster note that The letter announcing this non-

4. Preventing layoff notices from going out just


days before the 2012 election Theres a law that says large employers have to give employees 60
enforcement has no basis in law.

days notice before mass layoffs. And layoffs were looming due to federal budget cuts in 2012. But the Obama
Administration told employers to go against the law and not issue those noticeswhich would have hit mailboxes just
days before the presidential election. The Administration also offered to reimburse those employers at the taxpayers
expense if challenged for failure to give that notice.

5. Gutting the work requirement from

welfare reform

The welfare reform that President Bill Clinton signed into law in 1996 required that welfare
recipients in the Temporary Assistance for Needy Families program work or prepare for work to receive the aid. The
Obama Administration essentially took out that requirement by offering waivers to states, even though the law expressly
states that waivers of the work requirement are not allowed. Despite [the laws] unambiguous language, the Obama

6.
Stonewalling an application for storing nuclear waste at Yucca
Mountain This was another case where the Administration simply refused to do what was required by law. An
Administration continues to flout the law with its revisionist interpretation, write Slattery and Kloster.

application was submitted for nuclear waste storage at Yucca Mountain, but Despite the legal requirement, the Obama

7. Making recess appointments that


were not really recess appointments Slattery and Kloster explain that In January 2012,
Administration refused to consider the application.

President Obama made four recess appointments to the National Labor Relations Board (NLRB) and Consumer Financial
Protection Bureau, claiming that, since the Senate was conducting only periodic pro forma sessions, it was not available to
confirm those appointees. The catch: The Senate wasnt in recess at the time. Courts have since struck down the
appointments, but the illegitimate appointees already moved forward some harmful policies.

Executive circumvented FISA once- no proof that it wont


happen again
NYT 07 ( Spies, Lies and FISA, October 14 2007,
http://www.nytimes.com/2007/10/14/opinion/14sun1.html?_r=0, Accessed
7/16/15)

As Democratic lawmakers try to repair a deeply flawed bill on electronic eavesdropping, the White House is
pumping out the same fog of fear and disinformation it used to push the bill through Congress this
summer. President Bush has been telling Americans that any change would deny the government critical
information, make it easier for terrorists to infiltrate, expose state secrets, and make it harder to save
American lives. There is no truth to any of those claims. No matter how often Mr. Bush says otherwise,
there is also no disagreement from the Democrats about the need to provide adequate tools to fight
terrorists. The debate is over whether this should be done constitutionally, or at the whim of the president.

or FISA, requires a warrant to


intercept international communications involving anyone in the
United States. A secret court has granted these warrants quickly nearly every time it has been
asked. After 9/11, the Patriot Act made it even easier to conduct
surveillance, especially in hot pursuit of terrorists. But that was not good
The 1978 Foreign Intelligence Surveillance Act,

enough for the Bush team, which was determined to use the nations tragedy to grab ever more power for

Bush ignored the FISA law and ordered the


National Security Agency to intercept phone calls and e-mail
between people abroad and people in the United States without a
warrant, as long as the target was not in this country. The
president did not announce his decision. He allowed a few lawmakers to be briefed
but withheld key documents. The special intelligence court was in the dark
until The Times disclosed the spying in December 2005. Mr. Bush still
refused to stop. He claimed that FISA was too limiting for the
Internet-speed war against terror. But he never explained those limits and rebuffed
lawmakers offers to legally accommodate his concerns. This year, the administration found
an actual problem with FISA: It requires a warrant to eavesdrop on
communications between foreigners that go through computers in
the United States. It was a problem that did not exist in 1978, and it had an easy fix. But Mr.
its vision of an imperial presidency. Mr.

Bushs lawyers tacked dangerous additions onto a bill being rushed through Congress before the recess.
When the smoke cleared, Congress had fixed the real loophole, but also endorsed the idea of spying
without court approval. It gave legal cover to more than five years of illegal spying. Fortunately, the law is
to expire in February, and some Democratic legislators are trying to fix it. House members have drafted a
bill, which is a big improvement but still needs work. The Senate is working on its bill, and we hope it will
show the courage this time to restore the rule of law to American surveillance programs. There are some
red lines, starting with the absolute need for court supervision of any surveillance that can involve
American citizens or others in the United States. The bill passed in August allowed the administration to
inform the FISA court about its methods and then issue blanket demands for data to communications
companies without any further court approval or review. The House bill would permit the government to
conduct surveillance for 45 days before submitting it to court review and approval. (Mr. Bush is wrong
when he says the bill would slow down intelligence gathering.) After that, ideally, the law would require a
real warrant. If Congress will not do that, at a minimum it must require spying programs to undergo
periodic audits by the court and Congress. The administration wants no reviews. Mr. Bush and his team say
they have safeguards to protect civil liberties, meaning surveillance will be reviewed by the attorney
general, the director of national intelligence and the inspectors general of the Justice Department and the
Central Intelligence Agency. There are two enormous flaws in that. The Constitution is based on the rule of
law, not individuals; giving such power to any president would be un-American. And this one long ago
showed he cannot be trusted. Last week, The Times reported that the C.I.A. director, Gen. Michael V.
Hayden, is investigating the office of his agencys inspector general after it inquired into policies on
detention and interrogation. This improper, perhaps illegal investigation sends a clear message of
intimidation. We also know that the F.B.I. has abused expanded powers it was granted after 9/11 and that
the former attorney general, Alberto Gonzales, systematically covered up the presidents actions with

Mr. Bush says the law should give immunity to


communications companies that gave data to the government over
the last five years without a court order. He says they should not be
punished for helping to protect America, but what Mr. Bush really
deliberately misleading testimony.

wants is to avoid lawsuits that could uncover the extent of the


illegal spying he authorized after 9/11. It may be possible to shield these companies
from liability, since the government lied to them about the legality of its requests. But the law should allow
suits aimed at forcing disclosure of Mr. Bushs actions. It should also require a full accounting to Congress
of all surveillance conducted since 9/11. And it should have an expiration date, which the White House
does not want. Ever since 9/11, we have watched Republican lawmakers help Mr. Bush shred the
Constitution in the name of fighting terrorism. We have seen Democrats acquiesce or retreat in fear. It is
time for that to stop.

The executive can circumvent via national security letters


Sanchez 15
(Julian Dont (Just) Let the Sun Go Down on Patriot Powers, May 29, 2015,
http://motherboard.vice.com/read/dont-just-let-the-sun-go-down-on-patriot-powers)
Also permanent are National Security Letters or NSLs, which allow the FBI to obtain a more
limited range of telecommunications and financial records without even needing to seek
judicial approval. Unsurprisingly, the government loves these streamlined tools, and used

them so promiscuously that the FBI didnt even bother using 215 for more than a
year after the passage of the Patriot Act. Inspector General reports have also made clear that
the FBI is happy to substitute NSLs for 215 orders when even the highly
accommodating FISC manages a rare display of backbone. In at least one case, when
the secret court refused an application for journalists records on First Amendment grounds,
the Bureau turned around and obtained the same data using National Security
Letters.

The president fails trumanites write their own orders


Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Put differently, the question whether the President could institute a complete
about-face supposes a top-down policy-making model. The illusion that
presidents issue orders and that subordinates simply carry them out is
nurtured in the public imagination by media reports of Obamas policies or
decisions or initiatives, by the Presidents own frequent references to my
directives or personnel, and by the Trumanites own reports that the President
himself has ordered them to do something. But true top-down decisions
that order fundamental policy shifts are rare.369 The reality is that when the
President issues an order to the Trumanites, the Trumanites themselves
normally formulate the order.370 The Trumanites cannot be thought of as
men who are merely doing their duty. They are the ones who determine their
duty, as well as the duties of those beneath them. They are not merely
following orders: they give the orders.371 They do that by entangling372
the President. This dynamic is an aspect of what one scholar has called the
deep structure of the presidency.373 As Theodore Sorensen put it,
Presidents rarely, if ever, make decisionsparticularly in foreign affairsin
the sense of writing their conclusions on a clean slate . . . . [T]he basic
decisions, which confine their choices, have all too often been previously
made.374

Justice Douglas, a family friend of the Kennedys, saw the Trumanites


influence first-hand: In reflecting on Jacks relation to the generals, I slowly
realized that the military were so strong in our society that probably no
President could stand against them.375 As the roles of the generals and CIA
have converged, the CIAs influence has expandedaided in part by a
willingness to shade the facts, even with sympathetic Madisonian sponsors. A
classified, 6,000-word report by the Senate Intelligence Committee reportedly
concluded that the CIA was so intent on justifying extreme interrogation
techniques that it blatantly misled President George W. Bush, the White
House, the Justice Department and the Congressional intelligence committees
about the efficacy of its methods.376 The CIA gets what it wants,
President Obama told his advisers when the CIA asked for authority to expand
its drone program and launch new paramilitary operations.377
Sometimes, however, the Trumanites proceed without presidential approval.
In 1975, a White House aide testified that the White House didnt know half
the things intelligence agencies did that might be legally questionable.378
If you have got a program going and you are perfectly happy with its results,
why take the risk that it might be turned off if the president of the United
States decides he does not want to do it, he asked.379 Other occasions arise
when Trumanites in the CIA and elsewhere originate presidential
directivesdirected to themselves.380 Presidents then ratify such
Trumanite policy initiatives after the fact.381 To avoid looking like a bystander
or mere commentator, the President embraces these Trumanite policies, as
does Congress, with the pretense that they are their own.382 To maintain
legitimacy, the President must appear to be in charge. In a narrow sense, of
course, Trumanite policies are the Presidents own; after all, he did formally
approve them.383 But the policies ordinarily are formulated by Trumanites
who prudently, in Bagehots words, prevent the party in power from going
all the lengths their orators propose[].384 The place for presidential
oratory, to the Trumanites, is in the heat of a campaign, not in the councils of
government where cooler heads prevail.385
The idea that presidential backbone is all that is needed further presupposes
a model in which the Trumanites share few of the legitimacy conferring
features of the constitutional branches and will easily submit to the President.
But that supposition is erroneous. Mass entertainment glorifies the military,
intelligence, and law enforcement operatives that the Trumanites direct. The
public is emotionally taken with the aura of mystery surrounding the drone
war, Seal Team Six, and cyber-weapons. Trumanites, aided by Madisonian
leaks, embellish their operatives very real achievements with fictitious
details, such as the killing of Osama bin Laden386 or the daring rescue of a
female soldier from Iraqi troops.387 They cooperate with the making of
movies that praise their projects, like Zero Dark Thirty and Top Gun, but not
movies that lampoon them, such as Dr. Strangelove (an authentic F-14 beats
a plastic B-52 every time).388 Friendly fire incidents are downplayed or
covered up.389 The public is further impressed with operatives valor as they
are lauded with presidential and congressional commendations, in the hope

of establishing Madisonian affiliation.390 Their simple missionfind bad guys


and get them before they get usis powerfully intelligible. Soldiers,
commandos, spies, and FBI agents occupy an honored pedestal in the
pantheon of Americas heroes. Their secret rituals of rigorous training and
preparation mesmerize the public and fortify its respect. To the extent that
they are discernible, the Trumanites, linked as they are to the dazzling
operatives they direct, command a measure of admiration and legitimacy
that the Madisonian institutions can only envy.391 Public opinion is,
accordingly, a flimsy check on the Trumanites; it is a manipulable tool of
power enhancement. It is therefore rarely possible for any occupant of the
Oval Office to prevail against strong, unified Trumanite opposition, for the
same reasons that members of Congress and the judiciary cannot; a nonexpert president, like a non-expert senator and a non-expert judge, is
intimidated by expert Trumanites and does not want to place himself (or a
colleague or a potential political successor) at risk by looking weak and
gambling that the Trumanites are mistaken. So presidents wisely choose to
go along.

The president cant control drone policy


Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
The drone policy has been a case in point. Nasr has described how the
Trumanite network not only prevailed upon President Obama to continue its
drone policy but succeeded in curtailing discussion of the policys broader
ramifications:
When it came to drones there were four formidable unanimous voices in the
Situaton Room: the CIA, the Office of the Director of National Intelligence, the
Pentagon, and the White Houses counterterrorism adviser, John Brennan.
Defense Secretary Robert Gates . . . was fully supportive of more drone
attacks. Together, Brennan, Gates, and the others convinced Obama of both
the urgency of counterterrorism and the imperative of viewing Americas
engagement with the Middle East and South Asia through that prism. Their
bloc by and large discouraged debate over the full implications of this
strategy in national security meetings.392

Executive Branch - Generic


Government officials will continue surveillance regardless
and even if <INSERT PlAN ACTOR> stops surveillance,
other agencies are capable of replacing that actor
Bernstein, 2015
(Leandra is an author for a world renowned news organization called Sputnik. The article cites a former FBI
agent disclosure. Former FBI agent: Government Likely to Continue Domestic Surveillance
http://sputniknews.com/us/20150703/1024143850.html#ixzz3fsjk9IPBhttp://sputniknews.com/us/2015070
3/1024143850.htmlFormer Date Accessed- 7/14/15. Anshul Nanda.)

Federal Bureau of Investigation agent Coleen Rowley claims that the US


government will likely continue its pattern of domestic surveillance .
WASHINGTON (Sputnik), Leandra Bernstein The US government will likely continue its pattern of
domestic surveillance following the Monday court ruling to temporarily extend bulk data collection,

if
the past is any predictor of the future, that US government officials will
find yet another way around any legal restrictions to continue their Total
Information Awareness project, Rowley said. On Monday, the Foreign Information
Surveillance Act (FISA) Court issued a ruling upholding the National
Security Agency (NSA) to continue bulk collection of metadata, a
whistleblower and former Federal Bureau of Investigation agent Coleen Rowley told Sputnik. I think,

program that was supposed to be ended with the passage of the USA Freedom Act in May 2015. The
ruling was based on a motion filed by civil libertarian groups demanding an immediate end to the
metadata collection program, which was deemed unconstitutional by a US federal appeals court in May
2015. Asked what the Monday ruling means for the future of government surveillance reform, Rowley
stated, I think the Judge [Michael Mosman] probably answered this in his Plus ca change, plus c'est la
meme chose [the more things change, the more they stay the same] quote. The new portion of the
classified files published by The Intercept now reveals how easily it can be done: as easy as typing a few
words in Google. FLICKR/ DON HANKINS NSA Spies Can Hack Any Computer in 'A Few Mouse Clicks'
The FISA decision to take advantage of the five-month period to continue mass surveillance did not come
as a surprise based on the past record of illegal government spying, Rowley explained. The FISA Court
authorizes surveillance carried out by the US intelligence community. The Court is permitted to operate in
secret, due to the classified activity it oversees. Following the September 11, 2001 terrorist attacks, the
George W. Bush administration proposed the implementation of a massive data-mining program called the

developed by the Department of


Defense research agency to be capable of analyzing private
communications, commercial transactions and other data
domestically and abroad in order to identify and classify potential
terrorist threats. While the program was never officially implemented, multiple
programs across the intelligence community accomplished a similar
effect, as was revealed in classified documents leaked by NSA whistleblower Edward Snowden in 2013.
Total Information Awareness. The program was

Read more: http://sputniknews.com/us/20150703/1024143850.html#ixzz3fsinxkHH

Agencies circumvent power that was given to them


through the Congress all the time
Ackerman, 2015
(Spencer Ackerman is an editor/ reporter for the US News in New York. Full Date: June 1, 2015. Fears NSA
will seek to undermine surveillance reform; Privacy advocates are wary of covert legal acrobatics from the
NSA similar to those deployed post-9/11 to circumvent congressional authority
http://www.lexisnexis.com/hottopics/lnacademic/. Date Accessed- 7/15/15. Anshul Nanda)

National Security Agency will attempt to weaken new


restrictions on the bulk collection of Americans' phone and email
records with a barrage of creative legal wrangles, as the first major reform of
Privacy advocates fear the

US surveillance powers in a generation looked likely to be a foregone conclusion on Monday. Related:

Bush-era surveillance powers expire as US prepares to roll back NSA power The USA Freedom Act, a bill
banning the NSA from collecting US phone data in bulk and compelling disclosure of any novel legal
arguments for widespread surveillance before a secret court, has already been passed by the House of
Representatives and on Sunday night the Senate voted 77 to 17 to proceed to debate on it. Between that
bill and a landmark recent ruling from a federal appeals court that rejected a longstanding government
justification for bulk surveillance, civil libertarians think they stand a chance at stopping attempts by
intelligence lawyers to undermine reform in secret. Attorneys for the intelligence agencies react scornfully
to the suggestion that they will stretch their authorities to the breaking point. Yet reformers remember that
such legal tactics during the George W Bush administration allowed the NSA to shoehorn bulk phone
records collection into the Patriot Act. Rand Paul, the Kentucky senator and Republican presidential
candidate who was key to allowing sweeping US surveillance powers to lapse on Sunday night, warned that
NSA lawyers would now make mincemeat of the USA Freedom Act's prohibitions on bulk phone records
collection by taking an expansive view of the bill's definitions, thanks to a pliant, secret surveillance court.
"My

fear, though, is that the people who interpret this work at a


place known as the rubber stamp factory, the Fisa [court] ," Paul said on the
Senate floor on Sunday. Paul's Democratic ally, Senator Ron Wyden, warned the intelligence agencies and

intelligence
committee has taught me to always be vigilant for secret
interpretations of the law and new surveillance techniques that
Congress doesn't know about," Wyden, a member of the intelligence committee, told the
Guardian. "Americans were rightly outraged when they learned that US intelligence agencies
relied on secret law to monitor millions of law-abiding US citizens. The
American people are now on high alert for new secret
interpretations of the law, and intelligence agencies and the Justice
Department would do well to keep that lesson in mind." The USA Freedom
the Obama administration against attempting to unravel NSA reform. "My time on the

Act is supposed to prevent what Wyden calls " secret law ". It contains a provision requiring congressional
notification in the event of a novel legal interpretation presented to the secret Fisa court overseeing

US government permitted the NSA to


circumvent the Fisa court entirely. Not a single Fisa court judge was
aware of Stellar Wind, the NSA's post-9/11 constellation of bulk
surveillance programs, from 2001 to 2004. Energetic legal tactics followed to fit the programs
surveillance. Yet in recent memory, the

under existing legal authorities after internal controversy or outright exposure. When the

continuation of a bulk domestic internet metadata collection


program risked the mass resignation of Justice Department officials
in 2004, an internal NSA draft history records that attorneys found a different legal rationale that "

essentially gave NSA the same authority to collect bulk internet metadata that it had ". After a New York
Times story in 2005 revealed the existence of the bulk domestic phone records program, attorneys for the
US Justice Department and NSA argued, with the blessing of the Fisa court, that Section 215 of the Patriot
Act authorized it all along - precisely the contention that the second circuit court of appeals rejected in

NSA
lawyers will undermine surveillance reform. Robert Litt, the senior lawyer for
May. Despite that recent history, veteran intelligence attorneys reacted with scorn to the idea that

director of national intelligence, James Clapper, said during a public appearance last month that creating a
banned bulk surveillance program was " not going to happen ". "The whole notion that NSA is just evilly
determined to read the law in a fashion contrary to its intent is bullshit, of the sort that the Guardian and
the left - but I repeat myself - have fallen in love with. The interpretation of 215 that supported the bulk
collection program was creative but not beyond reason, and it was upheld by many judges," said the

referring to Section 215 of the Patriot


Act. This is the section that permits US law enforcement and surveillance
agencies to collect business records and expired at midnight, almost two
former NSA general counsel Stewart Baker,

years after the whistleblower Edward Snowden revealed to the Guardian that the Patriot Act was secretly
being used to justify the collection of phone records from millions of Americans. With one exception, the
judges that upheld the interpretation sat on the non-adversarial Fisa court, a body that approves nearly all
government surveillance requests and modifies about a quarter of them substantially. The exception was
reversed by the second circuit court of appeals. Baker, speaking before the Senate voted, predicted: "I
don't think anyone at NSA is going to invest in looking for ways to defy congressional intent if USA
Freedom is adopted." The USA Freedom Act,

a compromise bill, would not have an


impact on the vast majority of NSA surveillance. It would not stop
any overseas-focused surveillance program, no matter how broad in
scope, nor would it end the NSA's dragnets of Americans'

international communications authorized by a different law . Other bulk


domestic surveillance programs, like the one the Drug Enforcement Agency operated,
would not be impacted. The rise of what activists have come to call "bulky" surveillance, like
the "large collections" of Americans' electronic communications records the FBI gets to collect under the
Patriot Act, continue unabated - or, at least, will, once the USA Freedom Act passes and restores the Patriot
Act powers that lapsed at midnight on Sunday. Related: FBI used Patriot Act to obtain 'large collections' of
Americans' data, DoJ finds That collection, recently confirmed by a largely overlooked Justice Department
inspector general's report, points to a slipperiness in shuttering surveillance programs - one that creates
opportunities for clever lawyers. The Guardian revealed in 2013 that Barack Obama had permitted the
NSA to collect domestic internet metadata in bulk until 2011. Yet even as Obama closed down that NSA

FBI was already


collecting the same "electronic communications" metadata under a
different authority. It is unclear as yet how the FBI transformed that
program, the Justice Department inspector general confirms that by 2009, the

authority, passed by Congress

for the collection of "business records", into large-scale

similar
power to for the FBI gather domestic internet metadata, obtained
through non-judicial subpoenas called "National Security Letters" , also
collection of Americans' email, text, instant message, internet-protocol and other records. And a

exists in a different, non-expiring part of the Patriot Act. Jameel Jaffer, the deputy legal director of the
ACLU, expressed confidence that the second circuit court of appeals' decision last month would effectively
step into the breach. The panel found that legal authorities permitting the collection of data "relevant" to
an investigation cannot allow the government to gather data in bulk - setting a potentially prohibitive
precedent for other bulk-collection programs. "We don't know what kinds of bulk-collection programs the

conduct
bulk collection of internet metadata, phone records, and financial
records. If similar programs are still in place, the ruling will force the
government to reconsider them, and probably to end them ," said Jaffer,
government still has in place, but in the past it's used authorities other than Section 215 to

whose organization brought the suit that the second circuit considered. Julian Sanchez, a surveillance
expert at the Cato Institute, was more cautious. "The second circuit ruling establishes that a 'relevance'
standard is not completely unlimited - it doesn't cover getting hundreds of millions of people's records,
without any concrete connection to a specific inquiry - but doesn't provide much guidance beyond that as
to where the line is," Sanchez said. "I wouldn't be surprised if the government argued, in secret, that
nearly anything short of that scale is still allowed, nor if the same Fisa court that authorized the bulk
telephone program, in defiance of any common sense reading of the statutory language, went along with
it."

Curtailing surveillance in specific areas will just cause


agencies to literally surveil areas outside/around itmosque surveillance tactics prove
Goldman et. al, 12

(Adam and Matt are editors for the Associated Press. NYPD Defends Tactics
Over Mosque Spying; Records Reveal New Details On Muslim Surveillance.
http://www.huffingtonpost.com/2012/02/24/nypd-defends-tacticsover_n_1298997.html. Date Accessed- 7/13/15. Anshul Nanda)
NEW YORK -- The New York Police Department targeted Muslim mosques
with tactics normally reserved for criminal organizations, according to
newly obtained police documents that showed police collecting the license plates of
worshippers, monitoring them on surveillance cameras and cataloging
sermons through a network of informants. The documents, obtained by The Associated Press, have
come to light as the NYPD fends off criticism of its monitoring of Muslim
student groups and its cataloging of mosques and Muslim businesses
in nearby Newark, N.J.The NYPD's spokesman, Paul Browne, forcefully defended the legality of
those efforts Thursday, telling reporters that its officers may go wherever the public goes and collect
intelligence, even outside city limits. The new documents, prepared for Police Commissioner Raymond

paid informants monitored conversations


and sermons inside mosques. The records offer the first glimpse of
what those informants, known informally as "mosque crawlers,"
gleaned from inside the houses of worship. For instance, when a Danish newspaper
published inflammatory cartoons of Prophet Muhammad in September 2005, Muslim
communities around the world erupted in outrage. Violent mobs
took to the streets in the Middle East. A Somali man even broke into the cartoonist's
Kelly, show how the NYPD's roster of

house in Denmark with an ax. In New York, thousands of miles away, it was a different story. Muslim
leaders preached peace and urged people to protest lawfully. Write letters to politicians, they said. Some
advocated

boycotting Danish products, burning flags and holding


rallies. All of that was permissible under law and protected by the First Amendment to the
Constitution. All was reported to the NYPD by its mosque crawlers and made its
way into police files for Kelly. "Imam Shamsi Ali brought up the topic of
the cartoon, condemning them. He announced a rally that was to take place on Sunday
(02/05/06) near the United Nations. He asked that everyone to attend if possible and reminded everyone
to keep their poise if they can make it," one report read. At the Muslim Center of New York in Queens, the
report said, "Mohammad Tariq Sherwani led the prayer service and urged those in attendance to

When one Muslim leader


suggested planning a demonstration, one of the people involved in the discussion
about how to get a permit was, in fact, working for the NYPD. "It seems horrible to me that
the NYPD is treating an entire religious community as potential
terrorists," said civil rights lawyer Jethro Eisenstein, who reviewed some of the documents and is
participate in a demonstration at the United Nations on Sunday."

involved in a decades-old class-action lawsuit against the police department for spying on protesters and

lawsuit is known as the Handschu case, and a court


order in that case governs how the NYPD may collect intelligence .
political dissidents. The

Eisenstein said the documents prove the NYPD has violated those rules. "This is a flat-out violation,"
Eisenstein said. "This is a smoking gun." Browne, the NYPD spokesman, did not discuss specific
investigations Thursday but told reporters that, because of the Handschu case, the NYPD operates under
stricter rules than any other department in the country. He said police do not violate those rules. His
statements were intended to calm a controversy over a 2007 operation in which the NYPD mapped and
photographed all of Newark's mosques and eavesdropped on Muslim businesses. Newark Mayor Cory
Booker said he was never told about the surveillance, which he said offended him. Booker and his police
director accused the NYPD of misleading them by not revealing exactly what they were doing. Had they
known, they said it never would have been permitted. But Browne said Newark police were told before and

the police commissioner, and


Mayor Michael Bloomberg have been emphatic that police only
follow legitimate leads of criminal activity and do not conduct
preventive surveillance in ethnic communities. Former and current law
after the operation and knew exactly what it entailed. Kelly,

enforcement officials either involved in or with direct knowledge of these programs say they did not follow
leads. The officials spoke on condition of anonymity because they were not authorized to discuss the
secret programs. But the documents support their claims. The effort highlights one of the most difficult
aspects of policing in the age of terrorism. Solving crimes isn't enough; police are expected to identify
would-be terrorists and move in before they can attack. There are no universally agreed upon warning
signs for terrorism. Terrorists have used Internet cafes, stayed in hostels, worked out at gyms, visited
travel agencies, attended student groups and prayed at mosques. So the NYPD monitored those areas. In
doing so, they monitored many innocent people as they went about their daily lives. Using plainclothes
officers from the squad known as the Demographics Unit, police swept Muslim neighborhoods and
catalogued the location of mosques. The ethnic makeup of each congregation was logged as police fanned
out across the city and outside their jurisdiction, into suburban Long Island and areas of New Jersey.
"African American, Arab, Pakistani," police wrote beneath the photo of one mosque in Newark.
Investigators looked at mosques as the center of Muslim life. All their connections had to be known. David

NYPD's top intelligence officer, wanted a source inside every


mosque within a 250-mile radius of New York, current and former officials said.
Though the officials said they never managed to reach that goal,
documents show the NYPD successfully placed informants or
undercovers - sometimes both - into mosques from Westchester County,
N.Y., to New Jersey. The NYPD used these sources to get a sense of the sentiment of worshippers
whenever an event generated headlines. The goal, former officials said, was to alert police to
Cohen, the

potential problems before they bubbled up. Even when it was clear there were no
links to terrorism, the mosque informants gave the NYPD the ability to
"take the pulse" of the community, as Cohen and other managers put it. When New
York Yankees pitcher Cory Lidle and his flight instructor were killed on Oct. 11, 2006, when their small
plane crashed into a Manhattan high-rise apartment, fighter planes were scrambled. Within hours the FBI
and Homeland Security Department said it was an accident. Terrorism was ruled out. Yet for days after the
event, the NYPD's mosque crawlers reported to police about what they heard at sermons and among
worshippers. (View the PDF documents on Danish cartoons, mosque targeting and summaries of plane
crash.) At the Brooklyn Islamic Center, a confidential informant "noted chatter among the regulars
expressing relief and thanks to God that the crash was only an accident and not an act of terrorism," one
report reads. "The worshippers made remarks to the effect that `it better be an accident; we don't need
any more heat,'" an undercover officer reported from the Al-Tawheed Islamic Center in Jersey City, N.J. In

NYPD put cameras on light poles and trained them on


mosques, documents show. Because the cameras were in public space,
police didn't need a warrant to conduct the surveillance . Police also
wrote down the license plates of cars in mosque parking lot s,
documents show. In some instances, police in unmarked cars outfitted with
electronic license plate readers would drive down the street and
record the plates of everyone parked near the mosque , former officials
some instances, the

recalled. "They're viewing Muslims like they're crazy.

Intelligence Community will coopt reform


Greenwald, 2014
(Glenn is a constitutional Lawyer and an author of a best selling book on politics and Law called No Place to
Hide. Congress is Irrelevant on Mass surveillance. Here is what matters instead..
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/.
Date Accessed- 7/15/15. Anshul Nanda)
there is a real question about whether the defeat of this bill is good, bad, or irrelevant. To begin with, it

sought to change only one small sliver of NSA mass surveillance


(domestic bulk collection of phone records under section 215 of the
Patriot Act) while leaving completely unchanged the primary means
of NSA mass surveillance, which takes place under section 702 of the FISA Amendments Act,
based on the lovely and quintessentially American theory that all that matters are the privacy rights of
Americans (and not the 95 percent of the planet called non-Americans). There were some mildly positive
provisions in the USA Freedom Act: the placement of public advocates at the FISA court to contest the
claims of the government; the prohibition on the NSA holding Americans phone records, requiring instead
that they obtain FISA court approval before seeking specific records from the telecoms (which already hold
those records for at least 18 months); and reducing the agencys contact chaining analysis from three
hops to two. One could reasonably argue (as the ACLU and EFF did) that, though

woefully

inadequate, the bill was a net-positive as a first step toward real reform, but one could also
reasonably argue, as Marcy Wheeler has with characteristic insight, that the bill is so larded
with ambiguities and fundamental inadequacies that it would
forestall better options and advocates for real reform should thus
root for its defeat. When pro-privacy members of Congress first unveiled the bill many months
ago, it was actually a good bill: real reform. But the White House worked very hard in partnership with
the House GOPto water that bill down so severely that what the House ended up passing over the
summer did more to strengthen the NSA than rein it in, which caused even the ACLU and EFF to withdraw
their support. The Senate bill rejected last night was basically a middle ground between that original, good

the
most important point from all of this: the last place one should look
to impose limits on the powers of the U.S. government is . . . the
U.S. government. Governments dont walk around trying to figure out
how to limit their own power, and thats particularly true of empires. The
entire system in D.C. is designed at its core to prevent real reform .
This Congress is not going to enact anything resembling fundamental
limits on the NSAs powers of mass surveillance. Even if it somehow did, this
bill and the anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me,

White House would never sign it. Even if all that miraculously happened, the fact that the
U.S. intelligence community and National Security State operates with no
limits and no oversight means theyd easily co-opt the entire reform process.
Thats what happened after the eavesdropping scandals of the mid1970s led to the establishment of congressional intelligence
committees and a special FISA oversight courtthe committees were
instantly captured by putting in charge supreme servants of the intelligence community like Senators
Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while the
court quickly became a rubber stamp with subservient judges who operate in total secrecy.

No checks on executive abuses


Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
National security policy in the United States has remained largely constant from the Bush Administration to
the Obama Administration. This continuity can be explained by the double government theory
of 19th-century scholar of the English Constitution Walter Bagehot. As applied to the United States,

theory suggests that U.S. national security policy is defined by the


network of executive officials who manage the departments and agencies
responsible for protecting U.S. national security and who, responding to
structural incentives embedded in the U.S. political system, operate largely
removed from public view and from constitutional constraints . The public believes
Bagehots

that the constitutionally-established institutions control national security policy, but that view is mistaken.

Judicial review is negligible; congressional oversight is dysfunctional; and


presidential control is nominal. Absent a more informed and engaged electorate, little
possibility exists for restoring accountability in the formulation and execution of national security policy.

The dual government system guarantees circumvention


Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Obama Administration has also continued, and in some ways expanded, Bush-era
surveillance policies. For example, the Obama Administration continued to intercept the
The

communications of foreign leaders; 26 further insisted that GPS devices may be used to keep track of
certain citizens without probable cause or judicial review27 (until the Supreme Court disapproved28);
continued to investigate individuals and groups under Justice Department guidelines re-written in 2008 to
permit assessments that require no factual basis for FBI agents to conduct secret interviews, plant
informants, and search government and commercial databases;29 stepped up the prosecution of
government whistleblowers who uncovered illegal actions,30 using the 1917 Espionage Act eight times
during his first administration to prosecute leakers (it had been so used only three times in the previous
ninety-two years);31 demanded that businesses turn over personal information about customers in
response to national security letters that require no probable cause and cannot legally be disclosed;32
continued broad National Security Agency (NSA) homeland surveillance;33 seized two months of phone
records of reporters and editors of the Associated Press for more than twenty telephone lines of its offices
and journalists, including their home phones and cellphones, without notice;34 through the NSA, collected
the telephone records of millions of Verizon customers, within the United States and between the United
States and other countries, on an ongoing, daily basis under an order that prohibited Verizon from
revealing the operation;35 and tapped into the central servers of nine leading U.S. internet companies,
extracting audio and video chats, photographs, emails, documents, and connection logs that enable
analysts to track foreign targets and U.S. citizens.36 At least one significant NSA surveillance program,
involving the collection of data on the social connections of U.S. citizens and others located within the
United States, was initiated after the Bush Administration left office.37 These and related policies were

formulated and carried out by numerous high- and mid-level national security officials who served in the
Bush Administration and continued to serve in the Obama Administration.38 Given Senator Obamas

Why
does national security policy remain constant even when one President is
replaced by another who as a candidate repeatedly, forcefully, and eloquently
promised fundamental changes in that policy? I. Bagehots Theory of Dual Institutions A
powerful criticism of such policies before he took office as President, the question,39 then, is this:

disquieting answer is provided by the theory that Walter Bagehot suggested in 1867 to explain the
evolution of the English Constitution.40 While not without critics, his theory has been widely acclaimed and
has generated significant commentary.41 Indeed, it is something of a classic on the subject of institutional
change generally, and it foreshadowed modern organizational theory.42 In brief, Bagehots notion was as
follows. Power in Britain reposed initially in the monarch alone. Over the decades, however, a dual set of
institutions emerged.43 One set comprises the monarchy and the House of Lords.44 These Bagehot called
the dignified institutionsdignified in the sense that they provide a link to the past and excite the public
imagination.45 Through theatrical show, pomp, and historical symbolism, they exercise an emotional hold
on the public mind by evoking the grandeur of ages past.46 They embody memories of greatness. Yet it is
a second, newer set of institutions Britains efficient institutionsthat do the real work of governing.47
These are the House of Commons, the Cabinet, and the Prime Minister.48 As Bagehot put it: [I]ts dignified
parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part .
. . is decidedly simple and rather modern . . . . Its essence is strong with the strength of modern simplicity;
its exterior is august with the Gothic grandeur of a more imposing age.49 Together these institutions
comprise a disguised republic50 that obscures the massive shift in power that has occurred, which if
widely understood would create a crisis of public confidence.51 This crisis has been averted because the
efficient institutions have been careful to hide where they begin and where the dignified institutions end.52
They do this by ensuring that the dignified institutions continue to partake in at least some real
governance and also by ensuring that the efficient institutions partake in at least some inspiring public
ceremony and ritual.53 This promotes continued public deference to the efficient institutions decisions

These dual institutions,


one for show and the other for real, afford Britain expertise and experience in
the actual art of governing while at the same time providing a faade that
generates public acceptance of the experts decisions . Bagehot called this Britains
double government.55 The structural duality, some have suggested, is a modern
reification of the Noble Lie that, two millennia before, Plato had thought necessary to insulate
and continued belief that the dignified institutions retain real power.54

a state from the fatal excesses of democracy and to ensure deference to the golden class of efficient
guardians.56 Bagehots theory may have overstated the naivet of Britains citizenry. When he wrote,
probably few Britons believed that Queen Victoria actually governed. Nor is it likely that Prime Minister
Lord Palmerston, let alone 658 members of the House of Commons, could or did consciously and
intentionally conceal from the British public that it was really they who governed. Big groups keep big
secrets poorly. Nonetheless, Bagehots enduring insightthat dual institutions of governance, one public
and the other concealed, evolve side-by-side to maximize both legitimacy and efficiencyis worth
pondering as one possible explanation of why the Obama and Bush national security policies have been
essentially the same. There is no reason in principle why the institutions of Britains juridical offspring, the
United States, ought to be immune from the broader bifurcating forces that have driven British institutional
evolution. As it did in the early days of Britains monarchy,

power in the United States lay

initially in one set of institutionsthe President, Congress, and the courts. These are Americas
dignified institutions. Later, however, a second institution emerged to safeguard the
nations security. This, Americas efficient institution (actually, as will be
seen, more a network than an institution) consists of the several hundred
executive officials who sit atop the military, intelligence, diplomatic, and law
enforcement departments and agencies that have as their mission the
protection of Americas international and internal security . Large segments of the
public continue to believe that Americas constitutionally established,
dignified institutions are the locus of governmental power ; by promoting that
impression, both sets of institutions maintain public support. But when it comes to defining and protecting

the publics impression is mistaken. Americas efficient


institution makes most of the key decisions concerning national security,
removed from public view and from the constitutional restrictions that check
national security,

The United States has, in short, moved beyond a mere


imperial presidency to a bifurcated systema structure of double governmentin
which even the President now exercises little substantive control over the
overall direction of U.S. national security policy . Whereas Britains dual institutions
Americas dignified institutions.

evolved towards a concealed republic, Americas have evolved in the opposite direction, toward greater
centralization, less accountability, and emergent autocracy.

Executive Branch Circumvent Courts


The Judicial Branch is possibly the worst actor for the
plan- it endorses to liberty destroying theories
Greenwald, 2014
(Glenn is a constitutional Lawyer and an author of a best selling book on politics and Law called No Place to
Hide. Congress is Irrelevant on Mass surveillance. Here is what matters instead..
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/.
Date Accessed- 7/15/15. Anshul Nanda)

U.S. federal judge already ruled that the NSAs


domestic bulk collection program likely violates the 4th
Amendment, and in doing so, obliterated many of the governments
underlying justifications. Multiple cases are now on appeal, almost certainly headed
U.S. court proceedings. A

to the Supreme Court. None of this was possible in the absence of Snowden disclosures. For a

when it comes to placing real limits on the NSA, I


place almost as little faith in the judiciary as I do in the Congress
and executive branch. To begin with, the Supreme Court is dominated
by five right-wing justices on whom the Obama Justice
Department has repeatedly relied to endorse their most extreme
civil-liberties-destroying theories. For another, of all the U.S. institutions that
have completely abdicated their role in the post-9/11 era, the federal judiciary has
probably been the worst, the most consistently subservient to the
National Security State. Courts have no power over agencies
Glennon 14, Professor of International Law, Fletcher School of Law and
variety of reasons,

Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National


Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Normally, of course, courts proceed in public, hear arguments from opposing
counsel, and issue opinions that are available for public scrutiny. Not so with
the FISC. All of its proceedings are closed to the public.298 The adversarial
system integral to American jurisprudence is absent. Only government
lawyers appear as counsel, unanswered by any real or potential adverse
party.299 The FISC has pioneered a two-tiered legal system, one comprised of
public law, the other of secret law. FISC opinionseven redacted portions of
opinions that address only the FISCs interpretation of the constitutional
rights of privacy, due process, or protection against unreasonable search or
seizureare rarely available to the public.300 Nancy Gertner, a former
federal judge in Massachusetts, summed up the court: The judges that are
assigned to this court are judges that are not likely to rock the boat . . . . All of
the structural pressures that keep a judge independent are missing there. Its
one-sided, secret, and the judges are chosen in a selection process by one
man.301 The Chief Judge of the FISC candidly described its fecklessness.
The FISC is forced to rely upon the accuracy of the information that is

provided to the Court, said Chief Judge Reggie B. Walton. The FISC does not
have the capacity to investigate issues of noncompliance, and in that respect
the FISC is in the same position as any other court when it comes to enforcing
[government] compliance with its orders.302 The NSAs own record proved
him correct; an internal NSA audit revealed that it had broken privacy rules or
overstepped its legal authority thousands of times since 2008.303
The judiciary, in short, does not have the foremost predicate needed for
Madisonian equilibrium: a will of its own.304 Whatever the court, judges
normally are able to find what appear to the unschooled to be sensible,
settled grounds for tossing out challenges to the Trumanites projects.
Dismissal of those challenges is couched in arcane doctrine that harks back
to early precedent, invoking implicitly the courts mystical pedigree and an
aura of politics-transcending impartiality. But challenges to the Trumanites
projects regularly get dismissed before the plaintiff ever has a chance to
argue the merits either before the courts or, sometimes more importantly,
the court of public opinion. Try challenging the Trumanites refusal to make
public their budget 305 on the theory that the Constitution does, after all,
require a regular statement and account of the receipts and expenditures of
all public money;306 or the membership of Members of Congress in the
military reserve307 on the theory that the Constitution does, after all,
prohibit Senators and Representatives from holding any office under the
United States;308 or the collection of phone records of the sort given by
Verizon to the NSA on the theory that the law authorizing the collection is
unconstitutional.309 Sorry, no standing, case dismissed.310 Try challenging
the domestic surveillance of civilians by the U.S. Army311 on the theory that
it chills the constitutionally protected right to free assembly,312 or the
Presidents claim that he can go to war without congressional approval313 on
the theory that it is for Congress to declare war.314 Sorry, not ripe for review,
case dismissed.315 Try challenging the introduction of the armed forces into
hostilities in violation of the War Powers Resolution.316 Sorry, political
question, non-justiciable, case dismissed.317 Try challenging the Trumanites
refusal to turn over relevant and material evidence about an Air Force plane
accident that killed three crew members through negligence,318 or about
racial discrimination against CIA employees,319 or about an extraordinary
rendition involving unlawful detention and torture.320 Sorry, state secrets
privilege, case dismissed Sometimes the courts have no plausible way of
avoiding the merits of national security challenges. Still, the Trumanites win.
The courts eighty years ago devised a doctrinethe non-delegation
doctrinethat forbids the delegation of legislative power by Congress to
administrative agencies.322 Since that time it has rarely been enforced, and
never has the Court struck down any delegation of national security authority
to the Trumanite apparatus.323 Rather, judges stretch to find implied
congressional approval of Trumanite initiatives. Congressional silence, as
construed by the courts, constitutes acquiescence.324 Even if that hurdle can
be overcome, the evidence necessary to succeed is difficult to get; as noted
earlier,325 the most expert and informed witnesses all have signed

nondisclosure agreements, which prohibit any discussion of classifiable


information without pre-publication review by the Trumanites. As early as
1988, over three million present and former federal employees had been
required to sign such agreements as a condition of employment.326 Millions
more have since become bound to submit their writings for editing and
redaction before going to press. And as the ultimate trump card, the
Trumanites are cloaked in, as the Supreme Court put it, the very delicate,
plenary and exclusive power of the President as the sole organ of the federal
government in the field of international relationsa power which does not
require as a basis for its exercise an act of Congress.327 The basis of their
power, the Court found, is, indeed, not even the Constitution itself; the basis
of Trumanite power is external sovereigntythe membership of the United
States in the community of nations, which confers extra-constitutional
authority upon those charged with exercising it.328

FISA Rubber Stamps


The FISA court is just a rubber stamp Only rejected .03%
of requested warrants in the past 33 years
Eichelberger 13 (Erika Eichelberger is a reporter in Mother Jones'
Washington bureau. She has also written for The Nation, The Brooklyn Rail,
and Tom Dispatch, FISA Court Has Rejected .03 Percent Of All Government
Surveillance Requests, Mon Jun. 10, 2013 1:30 PM EDT,
http://www.motherjones.com/mojo/2013/06/fisa-court-nsa-spying-opinionreject-request)

After last week's revelations extensive National Security Agency surveillance


of phone and internet communications, President Barack Obama made it
a point to assure Americans that, not to worry, there is plenty of
oversight of his administration's snooping programs. "We've got
congressional oversight and judicial oversight," he said Friday,
referring in part to the Foreign Intelligence Surveillance Court
(FISC), which was created in 1979 to oversee Department of Justice requests
for surveillance warrants against foreign agents suspected of espionage or
terrorism in the United States. But the FISC has declined just 11 of the
more than 33,900 surveillance requests made by the government in
33 years, the Wall Street Journal reported Sunday. That's a rate of .
03 percent, which raises questions about just how much judicial
oversight is actually being provided. "The FISA system is broken,"
Marc Rotenberg, executive director of the Electronic Privacy Information
Center, told the Journal. "At the point that a FISA judge can compel
the disclosure of millions of phone records of US citizens engaged in
only domestic communications, unrelated to the collection of foreign
intelligencethere is no longer meaningful judicial review." But
according to Timothy Edgar, a top privacy lawyer at the Office of the Director
of National Intelligence and the National Security Council under Bush and
Obama, it's not quite as simple as the FISC rubber stamping nearly every
application the government puts in front of it. The reason so many orders
are approved, he said, is that the Justice Department office that manages the
process vets the applications rigorously... [S]o getting the order approved by
the Justice Department lawyers is perhaps the biggest hurdle to approval.
"The culture of that office is very reluctant to get a denial," he [told the
Journal]. Still, the entire process is closed. The FISC court hears
evidence for surveillance applications presented solely by the
Department of Justice. The court does not have to release its
opinions or any information regarding such hearings. In February,
Sens. Dianne Feinstein (D-Calif.), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.),
and Mark Udall (D-Colo.), wrote a letter to the FISC asking the court to
consider releasing portions of its opinions to the public by "writing summaries
of its significant interpretations of the law in a manner that separates the
classified facts of the application under review from the legal analysis, so as
to enable declassification." After the revelations on the spying programs last
week, Sen. Al Franken called the same thing. In response to the senators'
letter, the FISA court's presiding judge, Reggie B. Walton, said in March that it

would be very difficult to release summaries of the court's opinions to the


public, because the legal analysis in most opinions is "inextricably
intertwined" with classified information. This post has been corrected. A
commenter pointed out that a previous version stated that the FISA court has
rejected .0003 percent of all government surveillance requests. The correct
percentage is .03. Apologies for the bad math.

FISA freely allows and renews NSA programs regardless of


how controversial they are
VOLZ 15 (DUSTIN VOLZ is a reporter for the National Journal, NSA Spying
Wins Another Rubber Stamp, February 27, 2015,
http://www.nationaljournal.com/tech/nsa-spying-wins-another-rubber-stamp20150227 - JD)
A federal court has again renewed an order allowing the National Security
Agency to continue its bulk collection of Americans' phone records, a decision
that comes more than a year after President Obama pledged to end the
controversial program. The Foreign Intelligence Surveillance Court
approved this week a government request to keep the NSA's mass
surveillance of U.S. phone metadata operating until June 1,
coinciding with when the legal authority for the program is set to
expire in Congress. The extension is the fifth of its kind since Obama
said he would effectively end the Snowden-exposed program as it
currently exists during a major policy speech in January 2014. Obama
and senior administration officials have repeatedly insisted that they will not
act alone to end the program without Congress. "While the administration
waits for the Congress to act, it has continued to operate the program with ...
important modifications in place," White House press secretary Josh Earnest
said in a statement released late Friday. More than a year's worth of
efforts to reform the NSA stalled last year, as the Senate came two
votes short of advancing the USA Freedom Act in November. The
measure failed to overcome a filibuster by Republicans, many of
whom warned any limitation imposed on the NSA could bolster
terrorist groups like the Islamic State. It is widely expected that
lawmakers will reintroduce versions of the Freedom Act in the new Congress,
but no bill has emerged so far. Core parts of the post-9/11 Patriot Act will
sunset on June 1, including Section 215, which grants the NSA legal authority
to conduct its controversial dragnet surveillance program. Amid the
congressional inaction, the FISA Court has now renewed the NSA's most
controversial spying program five timesin March, June, September,
December and now Februarysince Obama delivered his pledge to end it in
its current form. "Congress has a limited window before the June 1 sunset to
enact legislation that would implement the President's proposed path forward
for the telephony metadata program, while preserving key intelligence
authorities," Earnest said in his statement. "The administration continues to
stand ready to work with the Congress on such legislation and would
welcome the opportunity to do so." Some NSA critics and even some
lawmakers, such as Rep. Adam Schiff, the top Democrat on the

House Intelligence Committee, have called for Obama to end the


program unilaterally. The intelligence community, under Obama's
direction, has implemented some changes to how it stores and collects U.S.
and foreign communications data, but privacy advocates have repeatedly
insisted those tweaks are not enough. It remains unclear if there is a path
forward for substantial NSA reform in Congress, leaving surveillance critics to
worry lawmakers may ultimately pass a clean reauthorization of the Patriot
Act.

The FISA court passes warrants without a second thought


and can be circumvented by the executive branch Bush
Administration empirically proves
Greenwald 13 (Glenn Greenwald is a fomer columnist on civil liberties and US national
security issues for the Guardian. An ex-constitutional lawyer, he was until 2012 a contributing
writer at Salon. He is the author of How Would a Patriot Act? (May 2006), a
critique of the Bush administration's use of executive power, The bad joke called 'the FISA
court' shows how a 'drone court' would work, Friday 3 May 2013,
http://www.theguardian.com/commentisfree/2013/may/03/fisa-court-rubber-stamp-drones)

From the start, the Fisa court was a radical perversion of the judicial
process. It convened in total secrecy and its rulings were classified.
The standard the government had to meet was not the traditional
"probable cause" burden imposed by the Fourth Amendment but a
significantly diluted standard. There was nothing adversarial about
the proceeding: only the Justice Department (DOJ) was permitted to be
present, but not any lawyers for the targets of the eavesdropping request,
who were not notified. Reflecting its utter lack of real independence, the
court itself was housed in the DOJ. And, and was totally predictable, the
court barely ever rejected a government request for eavesdropping.
From its inception, it was the ultimate rubber-stamp court, having
rejected a total of zero government applications - zero - in its first 24
years of existence, while approving many thousands. In its total 34
year history - from 1978 through 2012 - the Fisa court has rejected a
grand total of 11 government applications, while approving more
than 20,000. Despite how obedient and compliant this court always was,
the Bush administration decided in late 2001 that it would have its
National Security Agency (NSA) intercept the calls and emails of
Americans without bothering to obtain the Fisa court approval
required by the criminal law, claiming - with a straight face - that
complying with the law was "too cumbersome" in the age of
Terrorism. Once this lawbreaking was revealed by the New York Times in
late 2005, the response from the DC political class was not to punish the
responsible government officials for their lawbreaking, but rather to enact a
new law (called the Fisa Amendments Act of 2008) that, in essence, simply
legalized the warrantless eavesdropping scheme of the Bush administration.
That new Fisa law vested vast new surveillance powers in the US
government to spy on the communications of Americans without the
annoyance of obtaining permission from the Fisa court. It requires
warrants from the Fisa court only in the narrowest of circumstances:
the ones most susceptible to abuse. Although candidate Obama

pretended to have serious concerns about the law (when he voted for it) and
vowed to rein in its excesses, his administration last year demanded the
renewal of this law with no reforms, and Congress, on a fully bipartisan basis,
complied. One of the provisions of the new Fisa law requires the DOJ annually
to disclose to Congress the number of eavesdropping applications it files and
the number approved and rejected by the Fisa court. Earlier this week, that
disclosure was provided to Senate Majority Leader Harry Reid for the year
2012, and this is what it reported: fisc Public domain Let's repeat that: "of
1,789 applications, the FISA court did not deny any applications in
whole or in part." What fantastic oversight (1789 is, ironically, the year the
Constitution was ratified). The court did "modify" 40 of those
applications - less than 3% - but it approved every single one. The
same was true of 2011, when the DOJ submitted 1,676 applications
and the Fisa court, while modifying 30, "did not deny any
applications in whole, or in part".

The FISA court is nothing but a rubber stamp they even


circumvent the supreme court
Masnik 14 (Mike is the founder and CEO of Floor64 and editor of the
Techdirt blog. FISA Court Rubber Stamps Continued Collection Of Metadata
On Every Single Phone Call, Oct 11th 2013,
https://www.techdirt.com/articles/20131011/16065524845/fisa-court-rubberstamps-continued-collection-metadata-every-single-phone-call.shtml)
This won't come as a huge surprise, I would imagine, but the
telephony metadata dragnet collection that has to be renewed every
few months "expired" today and was promptly reapproved by the
FISA court, because "fuck you, that's why." That's not quite what they said,
but consider it the bureaucratic-speak equivalent, coming from the Director
of National Intelligence: Previously on several occasions, the Director of
National Intelligence declassified certain information about this telephony
metadata collection program in order to provide the public with a more
thorough and balanced understanding of the program. Consistent with his
prior declassification decision and in light of the significant and continuing
public interest in the telephony metadata collection program, DNI Clapper
has decided to declassify and disclose publicly that the government filed an
application with the Foreign Intelligence Surveillance Court seeking renewal
of the authority to collect telephony metadata in bulk, and that the court
renewed that authority. The administration is undertaking a declassification
review of this most recent court order. Of course, it's true that last month,
the previous order rubber-stamping this approval was declassified
and revealed. Even though the same thing has been rubber stamped
every few months for at least the past seven years, this time there
was an attempt at a full justification for why it made sense. Of
course, since it was a one-sided situation, without any adversarial
hearing or opinion, it allowed the FISA court to make up its own
rules and completely contradict the Supreme Court (to whom it's
supposed to listen). It seems highly doubtful that the eventual declassified
version of this rubber stamp will be any different than the last one. Of
course, in the last three months, we've also learned that this program of

collecting data on every phone call in the US has been necessary to


stop precisely zero attacks in the US -- but it did apparently lead them
to a taxi driver sending some money to some not very nice people in Somalia.
And, because of that, the NSA gets to keep track of everyone's phone calls.
As has been explained repeatedly, this seems to go against not just the
spirit and intended purpose of the 4th Amendment, but the plain
language of that same Amendment. But, the FISA court has earned
its rubber stamp reputation for a reason, and apparently it's not
about to give up on it.

AT: Public Accountability Solves


Less surveillance means diminished public accountability
Marc Rotenberg 2002 [Marc Rotenberg is an Executive Director, Electronic Privacy
Information Center (EPIC), and Adjunct Professor, Georgetown University Law Center. Former Counsel,
Senate Judiciary Committee (Senator Patrick Leahy). Symposium: Modern Studies in Privacy Law PRIVACY
AND SECRECY AFTER SEPTEMBER 11June 2002. Minnesota Law Review. 86 Minn. L. Rev. 1115 JC ]

One of the consequences of the expanded secrecy is clearly


that public accountability is diminished . This has consequences both large and small. In
the context of electronic surveillance
the USA PATRIOT Act,

it means that targets of government

have been notified that they were subject to government

told . n49 It

undertaken pursuant to the new powers created by

[*1126]

searches who might previously

surveillance will not be so

means that public reporting of the use of

surveillance authority by federal investigators will be less detailed


and less useful than reports on similar activities in the past.

And on large

open questions, like who was responsible for the dissemination of deadly anthrax spores in the nation's capital in midOctober,

the government can continue to make representations about

the status of the case with little opportunity for the public to probe
the government's claims because information associated with the
investigation remains secret.

Less surveillance means diminished public accountability


Marc Rotenberg 2002 [Marc Rotenberg is an Executive Director, Electronic Privacy
Information Center (EPIC), and Adjunct Professor, Georgetown University Law Center. Former Counsel,
Senate Judiciary Committee (Senator Patrick Leahy). Symposium: Modern Studies in Privacy Law PRIVACY
AND SECRECY AFTER SEPTEMBER 11June 2002. Minnesota Law Review. 86 Minn. L. Rev. 1115 JC ]
What we have witnessed since September 11 is both the diminishment of personal privacy and the expansion of
government secrecy. Now this is a significant development that bears some exploration however we may feel about the
specific steps taken in the wake of September 11. It is my aim at this point to look more closely at the interplay of these
two trends and to see if the traditions in privacy law help us understand the transformation taking place since September
11. Should it surprise us that as personal privacy is diminished, government secrecy expands? We can begin with the
observation of some commentators that

privacy and openness.

there is a tradeoff between


According to this view

privacy and transparency or

privacy stands in opposition to

these values, and we may give up some privacy to gain greater


public accountability.

The communitarian scholar Amitai Etzioni, for example, has argued that

privacy must be balanced against competing interests.


11 Etzioni has endorsed a number [*1127] of proposals to expand

n51 Since September

surveillance , including adoption of a National

ID card and new airport screening procedures. n52 It is Etzioni's view that these

measures will promote

public safety and reduce the risk of future terrorist acts . n53 David Brin,
author of The Transparent Society, argued in similar fashion that

privacy should give way to

other social interests, particularly the need for greater openness


and transparency that characterizes democratic society.
argued since September 11 for greater tracking and monitoring procedures.

n54 Brin has also

AT: Civil Suits Solve


Civil Suits ineffective against telecom companies
Mike Wagner, 2009 [Mike Wagner, AB, Villanova University; JD, The George Washington
University. Mike Wagner is an associate in the Washington office of Covington & Burling LLP, where he
counsels government contractors on issues arising at all phases of the public procurement process and
handles complex white collar investigations involving allegations of fraud and corruption. Prior to joining
Covington, he served as a law clerk on the U.S. Court of Appeals for the Third Circuit and the U.S. District
Court for the District of Maryland. A graduate of GW Law, he was an Articles Editor on the George
Washington Law Review and received the 2010 Scribes Law Review Writing Award for best student-written
article. November 2009, Warrantless Wiretapping, Retroactive Immunity, and the Fifth Amendment. The
George Washington Law Review, 78 Geo. Wash. L. Rev. 204. JC]

Although he could not have known it at the time, Klein 's observations and
subsequent decision to blow the whistle on his employer would soon make
him the star witness in a class-action suit filed against AT&T for its role
in the government's warrantless domestic surveillance program . n8
This action, brought pursuant to a federal statutory provision
authorizing civil suits against any person who engages in
warrantless wiretapping , n9 appeared poised to provide a measure
of relief to those U.S. citizens subjected to such government
surveillance. The FISA Amendments Act of 2008 ("FISAA"), n10
however , an unprecedented law granting retroactive immunity from civil
suit to telecommunications providers like AT&T, effectively eliminates this
claim and others like it . n11 This Note argues that Congress should
amend FISAA to remove its retroactive grant of immunity because it
unconstitutionally infringes on the rights guaranteed in the Fifth Amendment
of the Consitution. First, FISAA violates the Fifth Amendment's Due Process
Clause n12 because it retroactively abrogates [*206] a right of action which
had already accrued to a claimant. Second, FISAA contravenes the Fifth
Amendment's Takings Clause n13 by eliminating accrued tort claims without
providing just compensation.

Civil suits are empirically ineffective against federal


officers
Mike Wagner, 2009 [Mike Wagner, AB, Villanova University; JD, The George Washington
University. Mike Wagner is an associate in the Washington office of Covington & Burling LLP, where he
counsels government contractors on issues arising at all phases of the public procurement process and
handles complex white collar investigations involving allegations of fraud and corruption. Prior to joining
Covington, he served as a law clerk on the U.S. Court of Appeals for the Third Circuit and the U.S. District
Court for the District of Maryland. A graduate of GW Law, he was an Articles Editor on the George
Washington Law Review and received the 2010 Scribes Law Review Writing Award for best student-written
article. November 2009, Warrantless Wiretapping, Retroactive Immunity, and the Fifth Amendment. The
George Washington Law Review, 78 Geo. Wash. L. Rev. 204. JC]

Carr v. United States, n103 another case rejecting a due process challenge to a
law immunizing a defendant from tort liability, is likewise unpersuasive
because it too involved a case in which the prospective elimination of a cause
of action. The plaintiff in Carr, a federal employee , was injured in a car
accident due to the driving of his colleague, also a federal employee, in 1965.

n104

The plaintiff initiated a civil suit against his co-worker, but the

Federal Drivers' Act of 1961 abrogated any civil suits against


federal employees acting within the scope of their employment and
substituted the United States in their place. n105 The plaintiff challenged
the abrogation of his cause of action as a violation of the Fifth Amendment's
Due Process Clause, but the Fourth Circuit rejected this argument: "The
accident occurred over four years after the enactment of the Drivers Act.
Therefore, ... [the plaintiff] had no interest entitled to constitutional
protection." n106 Just as in Ducharme, due process concerns were not
implicated because the plaintiff's cause of action, which accrued after the
adoption of the immunity provision, was abrogated prospectively by statute.
This distinction is crucial to understanding why the laws were upheld in
Ducharme and Carr but not in Ettor or Richmond Screw. In light of this
precedent, the importance of determining whether FISAA acts
retroactively or prospectively is plain. If the causes of action
eliminated by FISAA had accrued prior to its passage, then FISAA
would operate retroactively and the plaintiffs' property would be
eligible for due process protections . Because tort actions generally
accrue at the time of injury, n107 the cause of action in the suits abrogated by
FISAA accrued when the NSA, with the help of AT&T and other
telecommunications firms, began improperly monitoring the plaintiffs'
telephone and Internet lines soon after the September 11 [*220] attacks. n108
Thus, as Professor Anthony Sebok explains, by the time Congress passed
FISAA several years later, the plaintiffs' claims had already vested.

FBI Fusion Centers

Generic No Regulations
Fusion centers guarantee profiling will continue post-plan
Constitution Project 12 The Constitution Project (8/15/12, The
Constitution Project, RECOMMENDATIONS FOR FUSION CENTERS,
http://www.constitutionproject.org/pdf/fusioncenterreport.pdf)
2. Reports of Political, Racial and Religious Profiling
Despite these constitutional principles, there have been numerous anecdotal
reports of incidents in which fusion centers have targeted individuals in the
United States for surveillance and investigation based solely on beliefs and
characteristics that are protected by the First and Fourteenth Amendments.
Although federal guidance to fusion centers cautions against profiling, these
incidents demonstrate that significant additional guidance, training and
oversight are crucial to ensure that fusion centers and other law enforcement
agencies do not engage in racial, religious and political profiling.41
Recent reports from across the country bear testament to the
potential for problematic profiling at fusion centers, particularly
regarding bulletins and intelligence reports circulated by fusion
centers. These are a few examples:
The February 2009 Prevention Awareness Bulletin, circulated by a
Texas fusion center, described Muslim lobbying groups as providing
an environment for terrorist organizations to flourish and warned that
the threats to Texas are significant.
The bulletin called on law enforcement officers to report activities such as
Muslim hip hop fashion boutiques, hip hop bands, use of online social
networks, video sharing networks, chat forums and blogs.42
A Missouri-based fusion center issued a February 2009 report describing
support for the presidential campaigns of Ron Paul or third party candidates,
possession of the iconic Dont Tread on Me flag and anti-abortion activism
as signs of membership in domestic terrorist groups.43
The Tennessee Fusion Center listed a letter from the American Civil
Liberties Union (ACLU) to public schools on its online map of
Terrorism Events and Other Suspicious Activity. The letter had
advised schools that holiday celebrations focused exclusively on
Christmas were an unconstitutional government endorsement of
religion.44
The Virginia Fusion Centers 2009 Terrorism Risk Assessment
Report described student groups at Virginias historically black
colleges as potential breeding grounds for terrorism and
characterized the diversity surrounding a military base as a
possible threat.45

Fusion centers do what they want


German and Stanley 7, German is on the Policy Counsel for National
Security, ACLU Washington Legislative Office; Stanley is the Public Education
Director, ACLU Technology and Liberty Program (December 2007, Michael
German and Jay Stanley, American Civil Liberties Union, WHATS WRONG
WITH FUSION CENTERS?,
https://www.aclu.org/files/pdfs/privacy/fusioncenter_20071212.pdf)

Ambiguous Lines of Authority. The participation of agencies from


multiple jurisdictions in fusion centers allows the authorities to
manipulate differences in federal, state and local laws to maximize
information collection while evading accountability and oversight
through the practice of policy shopping.
Private Sector Participation . Fusion centers are incorporating privatesector corporations into the intelligence process, breaking down the arms
length relationship that protects the privacy of innocent Americans who are
employees or customers of these companies, and increasing the risk of a
data breach.
Military Participation . Fusion centers are involving military personnel in
law enforcement activities in troubling ways.
Data Fusion = Data Mining . Federal fusion center guidelines encourage
whole sale data collection and manipulation processes that threaten privacy.
Excessive Secrecy . Fusion centers are hobbled by excessive secrecy,
which limits public oversight, impairs their ability to acquire essential
information and impedes their ability to fulfill their stated mission, bringing
their ultimate value into doubt.

Their inherently local nature makes regulation impossible


ONeil 8 political science graduate student at the University of California

Los Angeles (UCLA) Previously, iobhan served as the analyst for domestic
security and intelligence at the Congressional Research Service (CRS). She
spent five years working in homeland security serving as the deputy chief of
the Intelligence Bureau of the New Jersey Office of Homeland Security and
Preparedness (OHSP) (April 2008, Siobhan, Homeland Security Affairs, The
Relationship between the Private Sector and Fusion Centers: Potential Causes
for Concern and Realities, https://www.hsaj.org/articles/134)
Given that fusion centers are entities established by states and
localities to serve their own law enforcement, emergency response, and
homeland security needs, and compounded by the sensitivities
associated with federalism, the federal government is in a difficult
position of balancing its interests and respecting the local nature of
fusion centers. As such, the federal government has been
understandably hesitant to place requirements on fusion centers.
Instead, federal agencies have produced guidelines, which have not
been compulsory, to include the National Strategy for Information
Sharing and Fusion Center Guidelines. 8 While these documents address
some of the tactical and operational concerns related to fusion centers, they
are often vague to a fault and fail to provide the comprehensive
vision for fusion centers as part of the nations homeland security
posture.
Failure to create a consensus on the role, structural requirements,
and responsibilities for fusion centers is apt to increase the
potential for ineffectiveness, which threatens the viability of fusion
centers. If fusion centers fail to demonstrate their worth and strengthen and
augment our nations homeland security efforts, political support and
external agency engagement with these centers is likely to decline.
Moreover, potential civil liberties abuses could damage fusion centers

credibility and undermine their public support. It has rightfully been warned
that even rumors of impropriety and civil liberties abuses associated with a
single fusion center can cause irreparable damage to the reputation of all
fusion centers nationwide. This would be unfortunate given the potential for
fusion centers to provide public safety and homeland security benefits to
both local communities and the nation.

Fusion centers arent under federal jurisdictionlocalities


wont enforce rules
Price 13, Michael Price serves as counsel for the Brennan Centers Liberty
and National Security Program (12/10/13, Michael Price, Brennan Center for
Justice, National Security and Local Police,
https://www.brennancenter.org/publication/national-security-local-police)
The Brennan Center has identified three major reasons the system is
ineffective:
Information sharing among agencies is governed by inconsistent rules and
procedures that encourage gathering useless or inaccurate information. This
poorly organized system wastes resources and also risks masking crucial
intelligence.
As an increasing number of agencies collect and share personal data on
federal networks, inaccurate or useless information travels more widely.
Independent oversight of fusion centers is virtually non-existent,
compounding these risks.
Oversight has not kept pace, increasing the likelihood that
intelligence operations violate civil liberties and harm critical policecommunity relations.
According to a report by the Government Accountability Office, 95 percent of
suspicious activity reports are not even investigated by FBI. This is
unsurprising. In the past, police departments shared information only when
there was reasonable suspicion of criminal activity. This time-tested
standard ensured that police were focused on real threats and not acting on
their own biases or preconceptions. But with this crucial filter removed after
the attacks of 9/11, almost any behavior from photographing a landmark,
to stretching in the park, to attending a mosque can be viewed as
potentially suspicious, reported, and shared with thousands of other
government agencies. It is impractical to sift through and follow up on every
report, so important information can easily fall through the cracks. In some
instances, the practice has also undermined community trust in the police,
which is an essential element of domestic counterterrorism.
Efforts by the federal government to address this oversight gap have
been half-hearted. The system is not under federal government
control. Federal funds simply flow to state legislatures, which then
allocate them as they see fit no questions asked. State and local
governments have rarely stepped into the breach, allowing
intelligence activities to go unchecked and unsupervised .

Black Lives Matter/Profiling


Fusion centers view Black colleges as hotbeds for
extremists
Ford 9, Black Agenda report executive director (4/29/2009, Glen Ford,

Black Agenda Report, Black Colleges Profiled as Suspected Havens for


Extremists, http://www.blackagendareport.com/content/black-collegesprofiled-suspected-havens-%E2%80%9Cextremists%E2%80%9D)
Black Colleges Profiled as Suspected Havens for Extremists
A Black Agenda Radio commentary by Glen Ford
The Fusion Center appears to believe that Black colleges are by
definition hotbeds of militancy and rebellion.
Those deep thinkers in the Homeland Security Department are
paying good money for some very bad advice on what constitutes a
threat to American society. An inkling of the kind of madness that passes
for research at Homeland Security, is provided by a recent report to the
Virginia State Police. The report, which emanates from the basement offices
of something called the Virginia Fusion Center, claims that a wide
variety of terror or extremist groups" have ties to the Hampton
Roads region of the state. Specifically, the report claims that the
areas two historically Black universities are virtual magnets for
terrorists and extremists as are the two Black universities in the
Richmond area.
For those who are familiar with the four schools Norfolk State University,
Hampton University, Virginia State University in Petersburg and Virginia Union
University in Richmond the very thought of them as havens for extremist
politics is laughable. Political action is not what these schools are known for.
And thats too bad. But the Fusion Center, whoever they are, appears to
believe that Black colleges are by definition hotbeds of militancy and
rebellion. I wish that were true, but its not. It appears the researchers at
Virginias Fusion Center believe that Black institutions are inherently
suspect. The Homeland Security Department is paying these guys
millions of dollars a year to give vent to their own racist paranoia
and to sic the political bloodhounds on a bunch of apolitical Black
students.
The presumption seems to be that dangerous people are not white,
and white people are not dangerous.
The creeps at the Fusion Center see security dangers in diversity,
which they believe creates special national security perils. The
Hampton Roads region of Virginia has attracted a wide diversity of population
from all parts of the globe. The Fusion Center report says, While the
vast majority of these individuals are law-abiding, this ethnic
diversity also affords terrorist operatives the opportunity to
assimilate easily into society, without arousing suspicion." The
statement reveals the screaming racist posing as a researcher. Clearly the
reports authors believe that the safest communities, national security-wise,
are those that are uniformly white and English-speaking. Presumably, in such
surroundings its hard for the dangerous people to hide in a crowd. The
presumption seems to be that dangerous people are not white, and white

people are not dangerous. White communities are the ones that need
protecting, while the non-white or diverse communities represent some
degree of danger.
This is pure racist crap, and dangerous stuff to have circulating
among the police. The logic of the Fusion Report, if taken seriously,
would lead the State to aggressively infiltrate the student ranks at
Black colleges. They wouldnt discover much in the way of
subversive anything, but it is in the nature of the spy to invent what he cant
find.
Virginias crackpot Fusion Center is one of at least 58 such idiottanks that have sprung up around the country since 9/11, at a cost of
$250 million dollars in public funds. That quarter billion dollar investment has
led to the discovery of a single fact: Some white people are not comfortable,
in general, with diversity, and are still nervous as hell around Black people.

Fusion centers spy on black lives matter protests


BondGraham 14 (4/15/15, Darwin, East Bay Express, Counter-

Terrorism Officials Helped Track Black Lives Matter Protesters,


http://www.eastbayexpress.com/oakland/counter-terrorism-officials-helpedtrack-black-lives-matter-protesters/Content?oid=4247605)
On December 9, 2014, at 4:48 p.m., an internal email with the subject
line, "Reminder for Tonight and this week: Do Not Advise Protesters
That We Are Following Them on Social Media," circulated among
dozens of California Highway Patrol commanders. The message read:
"A quick reminder ... as you know, our TLO [Terrorism Liaison Officers] officers
are actively following multiple leads over social media." The note continued,
"this morning, we found posts detailing protesters' interaction with individual
officers last night. In the posts, protesters are stating that we (CHP) were
claiming to follow them on social media. Please have your personnel refrain
from such comments; we want to continue tracking the protesters as much as
possible. If they believe we are tracking them, they will go silent."
In recent years, police agencies throughout the United States have scoured
social media as part of criminal investigations. But the police are also
watching social media to spy on political protesters, especially those they
suspect will engage in acts of civil disobedience. During the recent Black
Lives Matter protests, local and state police agents monitored
protesters on social media and activist websites. Several hundred CHP
emails obtained by the Expressshow that social media is now a key source of
intel for the police when monitoring political protests.
But the emails raise serious questions, say civil libertarians and some of the
activists whose posts were harvested as intel. How do police monitor social
media? Do they store data or track particular people? Are agencies overreacting and wasting resources? And why are counter-terrorism police
involved?
The TLOs tasked by the CHP with monitoring Black Lives Matter protesters on
social media are employed by different local agencies and serve as points of
contact for matters regarding terrorism. The role was created after 9/11, and
the officers communicate through networks coordinated by fusion
centers, such as the Northern California Regional Intelligence Center, or

NCRIC, which connects police agencies from Monterey County to the Oregon
border.
"We don't know as much about the TLO program as we should," said Nadia
Kayyali, an activist with the Electronic Frontier Foundation. "We don't know
what their standards are, their policies with respect to limits and privacy."
"We are not the CHP," Matthew Hopkins the deputy commander of Cal STAC
told me. "There are CHP officers in the center, but it's a task force
environment. We assess threats. Transnational crime. Terrorism." Hopkins
said Cal STAC is a fusion center like NCRIC, except that its main focus is
assessing strategic threats to the state of California. Hopkins said he could
not comment on any emails sent by his subordinate because he hasn't seen
them.
"They've built this big network and they have tremendous
resources," said @domainawareness about the involvement of fusion
centers in monitoring the Black Lives Matter protests. "But they don't have
enough to do, so they're using this to watch political protesters. It's
mission creep."
said he is not surprised to see the extensive monitoring of social media by
the police. "I come out of Act Up in NYC," said Petrelis. "The cops came to our
meetings and they picked up all the lit.

Fusion centers rely on racial profiling


Cyril 15 Staff writer for The Progressive (April 2015, Malkia Amala Cyril,

The Progressive, Black America's State of Surveillance,


http://www.progressive.org/news/2015/03/188074/black-americas-statesurveillance)
They will use fusion centers. Originally designed to increase interagency
collaboration for the purposes of counterterrorism, these have instead
become the local arm of the intelligence community. According to
Electronic Frontier Foundation, there are currently seventy-eight on record.
They are the clearinghouse for increasingly used suspicious activity
reportsdescribed as official documentation of observed behavior
reasonably indicative of pre-operational planning related to terrorism or other
criminal activity. These reports and other collected data are often stored in
massive databases like e-Verify and Prism. As anybody whos ever dealt with
gang databases knows, its almost impossible to get off a federal or
state database, even when the data collected is incorrect or no
longer true.
Predictive policing doesnt just lead to racial and religious profiling
it relies on it . Just as stop and frisk legitimized an initial, unwarranted
contact between police and people of color, almost 90 percent of whom turn
out to be innocent of any crime, suspicious activities reporting and the
dragnet approach of fusion centers target communities of color. One
review of such reports collected in Los Angeles shows approximately 75
percent were of people of color.
This is the future of policing in America, and it should terrify you as
much as it terrifies me. Unfortunately, it probably doesnt, because my life is
at far greater risk than the lives of white Americans, especially those
reporting on the issue in the media or advocating in the halls of power.

One of the most terrifying aspects of high-tech surveillance is the invisibility


of those it disproportionately impacts.

Islamaphobia
Fusion centers monitor lawful religious activity
Patel and Price 12 Faiza Patel serves as co-director of the Brennan
Centers Liberty and National Security Program; Michael Price serves as
counsel for the Brennan Centers Liberty and National Security Program
(10/18/12, Faiza Patel, Michael Price, Brennan Center for Justice, Fusion
Centers Need More Rules, Oversight,
https://www.brennancenter.org/analysis/fusion-centers-need-more-rulesoversight)
Instead of looking for terrorist threats, fusion centers were monitoring
lawful political and religious activity. That year, the Virginia Fusion
Center described a Muslim get-outthe-vote campaign as
subversive. In 2009, the North Central Texas Fusion Center
identified lobbying by Muslim groups as a possible threat.
The DHS dismissed these as isolated episodes, but the two-year Senate
investigation found that such tactics were hardly rare. It concluded that
fusion centers routinely produce irrelevant, useless or
inappropriate intelligence that endangers civil liberties.
None of their information has disrupted a single terrorist plot. These
revelations call into question the value of fusion centers as currently
structured. At a minimum, they underscore the need for greater oversight
and clearer rules on what information fusion centers collect and disseminate.
Of course, effective information sharing is critical to national security. But as
the Senate investigation demonstrates, there is little value in distributing
information if it is shoddy, biased or simply irrelevant. When fusion centers
feed such information into the echo chamber of federal databases, they only
compound mistakes and clog the system.
The DHS has failed to create effective mechanisms or incentives for quality
control. Instead, fusion centers collect and share information
according to their individual standards, which vary considerably.
These rules often permit information to flow to federal agencies that
has no connection to criminal activity let alone terrorism. This creates
the risk that intelligence networks will become saturated with poor or
irrelevant information as well as lend undue credibility to inaccurate data.
The Senate report showed that these risks are not just theoretical.
Fusion centers need explicit and consistent rules. The DHS should
ensure that the information the centers collect and distribute is relevant,
useful and constitutional by requiring them to show some reasonable
suspicion that criminal activity is afoot.
This is not a particularly high bar to clear. The reasonable suspicion standard
is familiar to every police officer. The requirement would serve as an
important bulwark against privacy and civil rights violations, but it would also
keep meaningless information out of the system.
Without such well-defined and familiar standards, as the Senate report
demonstrates, fusion centers are left rudderless.
In addition, fusion centers must have active, independent oversight. While
Congressional inquiries are important for exposing problems, the Senate

should not have been the first governmental body to take a critical look at
fusion centers.
At the state and local level, there is often no mechanism to ensure that
fusion centers are generating useful information or complying with
the law. At the federal level, the DHS is responsible for verifying that the
data shared by fusion centers meet certain minimum standards. But the DHS
has delegated this responsibility to the centers themselves and has
not conducted independent audits.
DHS oversight has been so poor that the department could not even
say how much money it has spent on fusion centers, estimating the cost
at somewhere from $289 million to $1.4 billion.

Fusion centers guarantee profiling will continue post-plan


Constitution Project 12 The Constitution Project (8/15/12, The

Constitution Project, RECOMMENDATIONS FOR FUSION CENTERS,


http://www.constitutionproject.org/pdf/fusioncenterreport.pdf)
2. Reports of Political, Racial and Religious Profiling
Despite these constitutional principles, there have been numerous anecdotal
reports of incidents in which fusion centers have targeted individuals in the
United States for surveillance and investigation based solely on beliefs and
characteristics that are protected by the First and Fourteenth Amendments.
Although federal guidance to fusion centers cautions against profiling, these
incidents demonstrate that significant additional guidance, training and
oversight are crucial to ensure that fusion centers and other law enforcement
agencies do not engage in racial, religious and political profiling.41
Recent reports from across the country bear testament to the
potential for problematic profiling at fusion centers, particularly
regarding bulletins and intelligence reports circulated by fusion
centers. These are a few examples:
The February 2009 Prevention Awareness Bulletin, circulated by a
Texas fusion center, described Muslim lobbying groups as providing
an environment for terrorist organizations to flourish and warned that
the threats to Texas are significant.
The bulletin called on law enforcement officers to report activities such as
Muslim hip hop fashion boutiques, hip hop bands, use of online social
networks, video sharing networks, chat forums and blogs.42
A Missouri-based fusion center issued a February 2009 report describing
support for the presidential campaigns of Ron Paul or third party candidates,
possession of the iconic Dont Tread on Me flag and anti-abortion activism
as signs of membership in domestic terrorist groups.43
The Tennessee Fusion Center listed a letter from the American Civil
Liberties Union (ACLU) to public schools on its online map of
Terrorism Events and Other Suspicious Activity. The letter had
advised schools that holiday celebrations focused exclusively on
Christmas were an unconstitutional government endorsement of
religion.44
The Virginia Fusion Centers 2009 Terrorism Risk Assessment
Report described student groups at Virginias historically black
colleges as potential breeding grounds for terrorism and

characterized the diversity surrounding a military base as a


possible threat.45

Local Authorities/Citizens
General Local surveillance can break the law without
consequence they can they can cover it up with non
disclosure agreements
Fenton 15 (Justin Fenton, who joined The Sun in 2005, has covered the Baltimore Police
Department since 2008. His work includes an investigation into Cal Ripken Jr.'s minor league
baseball stadium deal with his hometown of Aberdeen and a three-part series chronicling a
ruthless con woman, Baltimore Police used secret technology to track cellphones in thousands
of cases, April 9, 2015, http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-cistingray-case-20150408-story.html#page=1 -JD)

The Baltimore Police Department has used an invasive and controversial


cellphone tracking device thousands of times in recent years while following
instructions from the FBI to withhold information about it from prosecutors
and judges, a detective revealed in court testimony Wednesday. The
testimony shows for the first time how frequently city police are using a cell
site simulator, more commonly known as a "stingray," a technology that
authorities have gone to great lengths to avoid disclosing. The device mimics
a cellphone tower to force phones within its range to connect. Police use it to
track down stolen phones or find people. Until recently, the technology was
largely unknown to the public. Privacy advocates nationwide have raised
questions whether there has been proper oversight of its use. Baltimore has
emerged in recent months as a battleground for the debate. In one case last
fall, a city detective said a nondisclosure agreement with federal authorities
prevented him from answering questions about the device. The judge
threatened to hold him in contempt if he didn't provide information, and
prosecutors withdrew the evidence. The nondisclosure agreement, presented
for the first time in court Wednesday, explicitly instructs prosecutors to drop
cases if pressed on the technology, and tells them to contact the FBI if
legislators or judges are asking questions. Detective Emmanuel Cabreja, a
member of the Police Department's Advanced Technical Team, testified that
police own a Hailstorm cell site simulator the latest version of the stingray
and have used the technology 4,300 times since 2007. Cabreja said he
had used it 600 to 800 times in less than two years as a member of the unit.
Nate Wessler, an attorney with the American Civil Liberties Union, said 4,300
uses is "huge number." He noted that most agencies have not released data.
The Florida Department of Law Enforcement says its officers have used the
device about 1,800 times. Police in Tallahassee say they have used it more
than 250 times; police in Tacoma, Wash., 170 times. Former U.S. Judge Brian
L. Owsley, a law professor at Indiana Tech, said he was "blown away" by the
Baltimore figure and the terms of the nondisclosure agreement. "That's a
significant amount of control," he said. Agencies have invoked the
nondisclosure agreement to keep information secret. At a hearing last year, a
Maryland State Police commander told state lawmakers that "Homeland

Security" prevented him from discussing the technology. Wessler said the
secrecy is upending the system of checks and balances built into the criminal
justice system. "In Baltimore, they've been using this since 2007, and it's
only been in the last several months that defense attorneys have learned
enough to start asking questions," he said. "Our entire judicial system and
constitution is set up to avoid a 'just trust us' system where the use of
invasive surveillance gear is secret."

Cant stop government data collection on companies


subpoena power can bypass the fourth amendment and
violate the rights of Americans
KRAVETS 15 (David Kravets is a WIRED senior staff writer and founder of the
fake news site TheYellowDailyNews.com. He's a dad of two boys and has been a
reporter since the manual typewriter days, We Dont Need No Stinking Warrant: The
Disturbing, Unchecked Rise of the Administrative Subpoena, 08.28.12,
http://www.wired.com/2012/08/administrative-subpoenas/ - JD)

But by law, utilities must hand over customer records which include any
billing and payment information, phone numbers and power consumption
data to the DEA without court warrants if drug agents believe the data is
relevant to an investigation. So the utility eventually complied, after losing
a legal fight earlier this month. Meet the administrative subpoena (.pdf): With a federal
officials signature, banks, hospitals, bookstores, telecommunications companies and even utilities
and internet service providers virtually all businesses are required to hand over
sensitive data on individuals or corporations, as long as a government agent
declares the information is relevant to an investigation . Via a wide range of laws,
Congress has authorized the government to bypass the Fourth Amendment
the constitutional guard against unreasonable searches and seizures that requires a probable-cause
warrant signed by a judge. In fact, there are roughly 335 federal statutes on the books (.pdf) passed by
Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena,
according to interviews and government reports. (.pdf) I think this is out of control. What has happened
is, unfortunately, these statutes have been on the books for many, many years and the courts have

federal officials
from a broad spectrum of government agencies issue them hundreds of
thousands of times annually. But none of the agencies are required to
disclose fully how often they utilize them meaning there is little, if any,
oversight of this tactic thats increasingly used in the war on drugs, the war
on terror and, seemingly, the war on Americans constitutional rights to
be free from unreasonable government trespass into their lives. Thats despite
proof that FBI agents given such powers under the Patriot Act quickly began to
abuse them and illegally collected Americans communications records,
including those of reporters. Two scathing reports from the Justice Departments
Inspector General uncovered routine and pervasive illegal use of
administrative subpoenas by FBI anti-terrorism agents given nearly carte
blanche authority to demand records about Americans communications with
no supervision. When the 9th U.S. Circuit Court of Appeals, perhaps the nations most liberal appeals
acquiesced, said Joe Evans, the utilitys attorney. Anecdotal evidence suggests that

court based in San Francisco, ordered Golden Valley to fork over the data earlier this month, the court said
the case was easily decided because the records were relevant to a government drug investigation.

DEA may then use further administrative


subpoenas to acquire the suspected indoor-dope growers phone records,
stored e-mails, and perhaps credit-card purchasing histories all to build a
case to acquire a probable-cause warrant to physically search their homes
and businesses. But the administrative subpoena doesnt just apply to utility
records and drug cases. Congress has spread the authority across a huge
swath of the U.S. government, for investigating everything from hazardous waste disposal, the
With the data the Alaska utility handed over, the

environment, atomic energy, child exploitation, food stamp fraud, medical insurance fraud, terrorism,
securities violations, satellites, seals, student loans, and for breaches of dozens of laws pertaining to fruits,
vegetables, livestock and crops. Not one of the government agencies with some of the broadest
administrative subpoena powers Wired contacted, including the departments of Commerce, Energy,
Agriculture, the Drug Enforcement Administration and the FBI, would voluntarily hand over data detailing
how often they issued administrative subpoenas. The Drug Enforcement Administration obtained the
power under the Comprehensive Drug Abuse Prevention and Control Act of 1970 and is believed to be
among the biggest issuers of administrative subpoenas. Its a tool in the toolbox we have to build a drug
investigation. Obviously, a much, much lower threshold than a search warrant, said Lawrence Payne, a
DEA spokesman, referring to the administrative subpoena generically. Payne declined to discuss individual
cases. Payne said in a telephone interview that no database was kept on the number of administrative
subpoenas the DEA issued. But in 2006, Ava Cooper Davis, the DEAs deputy assistant administrator, told
a congressional hearing, The administrative subpoena must have a DEA case file number, be signed by
the investigators supervisor, and be given a sequential number for recording in a log book or computer
database so that a particular field office can track and account for any administrative subpoenas issued by
that office. After being shown Davis statement, Payne then told Wired to send in a Freedom of
Information Act request, as did some of the local DEA offices we contacted, if they got back to us at all.
Would suggest a FOIA request to see whether you can get a number of administrative subpoenas. Our
databases have changed over the years as far as how things are tracked and we dont have access to
those in public affairs unfortunately, Payne said in an e-mail. He said the agency has never been asked
how many times it issued administrative subpoenas. Amy Baggio, a Portland, Oregon federal public
defender representing drug defendants for a decade, said DEA agents use these like a doctors
prescription pad on their desk. Sometimes, she said, they issue hundreds upon hundreds of them for a
single prosecution often targeting mobile phone records. They

are using them


exponentially more in all types of federal criminal investigations. Im seeing
them in every drug case now, Baggio said. Nobody is watching what they are
doing. I perceive a complete lack of oversight because there isnt any required.

SOD Surveillance uses illegal means to find suspects and


can get away with it This allows the DEA to circumvent
existing laws
Ungar 13 (Rick Ungar in addition to the pages of Forbes.com, can be found
me every Saturday morning on your TV arguing with my more conservative
colleagues on "Forbes on Fox" on the Fox News Network and at various other
times during the week serving as a liberal talking head on other Fox News
and Fox Business Network shows. He also serves as a Democratic strategist
with Mercury Public Affairs, More Surveillance Abuse Exposed! Special DEA
Unit Is Spying On Americans And Covering It Up, AUG 5, 2013,
http://www.forbes.com/sites/rickungar/2013/08/05/more-surveillance-abuseexposed-special-dea-unit-is-spying-on-americans-and-covering-it-up/ -JD)

As Americans sort through their feelings regarding the disclosure of the


massive collection of metadata by the National Security Administration, we
are now learning of what may be a far more insidious violation of our
constitutional rights at the hands of a government agency. Reuters is
reporting that a secret U.S. Drug Enforcement Administration branch has
been collecting information from intelligence intercepts, wiretaps,
informants and a massive database of telephone records and disseminating
the data to authorities across the nation to help them launch criminal
investigations of Americans. In this case, the Americans who are being
subjected to these investigations are suspected drug dealers. The unit of the
DEA that is conducting the surveillance is known as the Special Operations
Division (SOD) and is made up of a partnership of numerous government
agencies including the NSA, CIA, FBI, IRS and the Department of Homeland
Security. While there are suggestions that elements of the program may be
legal, there is obvious concern on the part of those running the programa
concern that has not prevented them from going ahead with the collecting
and using of covertly gathered datathat the surveillance effort may not be
entirely kosher. We know this to be true because, according to documents
reviewed by Reuters, DEA agents are specifically instructed never to reveal
nor discuss the existence and utilization of SOD provided data and to further
omit the SODs involvement from investigative reports, affidavits,
discussions with prosecutors and courtroom testimony. Agents are instructed
to then use normal investigative techniques to recreate the information
provided by SOD. The last line of the directive is particularly disturbing. By
instructing agents to use normal investigative techniques to recreate the
information provided by SOD, law enforcement is being instructed to flat out
lie when disclosing how they came across the tips or other information
provided by SOD leading to an arrest. These agents are directed to give
substance to the lie by fabricating a false source or method utilized to gain
information leading to an arrest. In law enforcement parlance, it is called
parallel construction. Accordingly to a former federal agent, the SOD tip
system works as follows: Youd be told only, Be at a certain truck stop at a
certain time and look for a certain vehicle. And so wed alert the state police
to find an excuse to stop that vehicle, and then have a drug dog search it.
When the SOD tip leads to an arrest, the agents then pretend that the drug
bust was the surprise result of pulling the vehicle over as a routine traffic
stop. So secretive is the program, SOD requires that agents lie to the judges,
prosecuting attorneys and defense attorneys involved in a trial of a defendant
busted as a result of SOD surveillancea complete and clear violation of
every Americans right to due process, even when that American is a low-life
drug dealer.

Agencies
Despite a desire to maintain squo policiessecurity
agencies will abide by the law
Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
The Trumanite network is as little inclined to stake out new policies as it is to
abandon old ones. The Trumanites grundnorm is stability, and their ultimate
objective is preservation of the status quo. The status quo embraces not only
American power but the Trumanites own careers, which are steadily elevated
by the conveyer belt on which they sit. Preoccupied as they are with
cascading crises, swamped with memos and email and overwhelmed with
meetings, Trumanites have no time to re-examine the cosmological premises
on which policy is based.179 Their business is reacting, day and night.
Working weekends and evenings is routine; theirs are 24/7 jobs180 that leave
no time for pondering big pictures. They are caught up in tactics;181 larger
ends are for memoirs. Reflecting on the fail[ure] to take an orderly, rational
approach to Vietnam decisionmaking, Robert McNamara wrote that we
faced a blizzard of problems, there were only twenty-four hours a day, and we
often did not have time to think straight. 182 His successors encountered an
equally frenetic environment.183 With the anger, frustration, emotion, and
the mental and physical exhaustion induced in working long hours under
crisis conditions, a pernicious but existing policy gradually comes to be seen
as the least bad choice. The status quo is preserved by minimizing risks,
which means no bold departure from the settled long-term policy trajectory.
Men who have participated in a decision, as James Thomson succinctly put
it, develop a stake in that decision.184 Slow is therefore best. The risk of
embarrassment is lower in continuing a policy someone else initiated than in
sponsoring ones own new one. If the policy fails, the embarrassment is
someone elses.
Trumanites are therefore, above all, team players. They are disinclined to
disagree openly. The further up you go, one prominent organization theorist
put it, the less you can afford to stick out in any one place.185 As one
seasoned adviser said, because there is a real team concept and where
money disputes are not usually the core, radically different views of the
direction to be taken by an administration can cause serious trouble.186 He
advises that a new president should take care that his key officials in foreign
policy all have a roughly similar outlook on the world and Americas place in
it.187 Accordingly, once a policy is final, Trumanites rally readily round it,
however much they might once have disagreed. Dissent shades into
disloyalty and risks marginalization, particularly in a policy group with high
esprit de corps. As Kissinger put it, [s]erving the machine becomes a more
absorbing occupation than defining its purpose.188 Little credit is gained by
advocating for an option that has earlier been rejected. Likelier than not,

ones superior, or his superior, was present at the creation of the policy and
takes pride in its authorship. In government it is always easier to go forward
with a program that does not work, David Halberstam wrote, than to stop it
altogether and admit failure.189 Even those immersed in the policy-making
process are often bewildered by its outcome. The Army chief of staff, Harold
Johnson, could think of no logical rationale to explain the militarys
continuing recommendations for incremental escalation of the U.S. war effort
in Vietnameven though the military had difficulty devising any persuasive
strategy to produce victory.190
The Trumanites commitment is therefore to process rather than outcome. It
is an inevitable defect, Bagehot wrote, that bureaucrats will care more for
routine than for results; or, as Burke put it, that they will think the substance
of business not to be much more important than the forms of it.191 Men so
trained, he believed, must come to think the routine of business not a
means but an endto imagine the elaborate machinery of which they form a
part, and from which they derive their dignity, to be a grand and achieved
result, not a working and changeable instrument.192 At a certain point,
policy within such a system reaches critical mass, and its gravitational pull is
too strong to escape even for political appointees, who are easily coopted.193 The vast bureaucratic mechanisms that emerge develop a
momentum and a vested interest of their own, Kissinger wrote.194 There is
a trend toward autarky.195 There thus emerges, as Goldsmith put it, a
persistence in the interests and outlook of the national security leadership
and especially of the national security bureaucracy.196

The intelligence agencies are separated from the rest of


the government
Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Neil Sheehan205 reflected on why nothing would happen. Sheehans Times
colleague Halberstam recalled that Sheehan came away with one impression:
that the government of the United States was not what he had thought it
was; it was as if there were an inner U.S. government, what he called a
centralized state, far more powerful than anything else . . . . It had survived
and perpetuated itself . . . . [I]t does not function necessarily for the benefit of
the Republic but rather for its own ends, its own perpetuation; it has its own
codes which are quite different from public codes.206
The Trumanite network has achieved, in a word, autonomy. 207 The
maintenance of Trumanite autonomy has depended upon two conditions. The
first is that the Madisonian institutions appear to be in charge of the nations
security. The second is that the Madisonian institutions not actually be in
charge.

Intel agencies run the showother institutions are just


figureheads
Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Although the Madisonian institutions seem to be in charge and, indeed, to be
possessed of power broad enough to remedy their own deficiencies, a close
look at each branch of government reveals why they are not. A more
accurate description would be that those institutions are in a state of entropy
and have become, in Bagehots words, a disguisethe fountain of honour
but not the spring of business.241 The Presidency, Congress, and the
courts appear to set national security policy, but in reality their role is
minimal. They exercise decisional authority more in form than in substance.
This is the principal reason that the system has not, as advertised, selfcorrected.242

Law Enforcement
Local law enforcement has been instructed to keep
surveillance capabilities a secret
Ham 14

Mary Katherine Ham, an American journalist. She is Editor-at-Large of Hot Air,


a contributing editor to Townhall Magazine, and a Fox News Channel
contributor, Most transparent administration ever telling local police to keep
surveillance secret, HOTAIR, http://hotair.com/archives/2014/06/16/mosttransparent-administration-ever-telling-local-police-to-keep-surveillancesecret/, 06/16/14//SRawal
This isnt a matter of an Obama administration official whispering in local law enforcements ears or sending a vague

The Obama
administration has been quietly advising local police not to disclose
details about surveillance technology they are using to sweep up
basic cellphone data from entire neighborhoods, The Associated Press has learned.
Citing security reasons, the U.S. has intervened in routine state public records
cases and criminal trials regarding use of the technology. This has resulted in
police departments withholding materials or heavily censoring
documents in rare instances when they disclose any about the
purchase and use of such powerful surveillance equipment. Federal
memo. Theyve been actively interfering in public records requests and lawsuits:

involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he
welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures

local law enforcement is well on its


way to becoming baby military forces, with MRAPs, riot gear galore, and firepower sometimes
akin to the U.S. Marine Corps. Now, we know theyre becoming baby NSAs, and
being just as secretive about it. What I find most discouraging about this story is that, if you
cant get any clear idea from your local government about where
and how it might be capable of spying on you, there is no chance
youre going to get any answers from the feds. And, if we cant be
assured that we can even have cellphone conversations without our
information being dragnetted, were not really free at all. This seems a rather low bar.
about classified federal surveillance programs. As we know,

Local surveillance can break the law without consequence


they can they can cover it up with non disclosure
agreements
Fenton 15 (Justin Fenton, who joined The Sun in 2005, has covered the Baltimore Police
Department since 2008. His work includes an investigation into Cal Ripken Jr.'s minor league
baseball stadium deal with his hometown of Aberdeen and a three-part series chronicling a
ruthless con woman, Baltimore Police used secret technology to track cellphones in thousands
of cases, April 9, 2015, http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-cistingray-case-20150408-story.html#page=1 -JD)

The Baltimore Police Department has used an invasive and controversial


cellphone tracking device thousands of times in recent years while following
instructions from the FBI to withhold information about it from prosecutors
and judges, a detective revealed in court testimony Wednesday. The
testimony shows for the first time how frequently city police are using a cell

site simulator, more commonly known as a "stingray," a technology that


authorities have gone to great lengths to avoid disclosing. The device mimics
a cellphone tower to force phones within its range to connect. Police use it to
track down stolen phones or find people. Until recently, the technology was
largely unknown to the public. Privacy advocates nationwide have raised
questions whether there has been proper oversight of its use. Baltimore has
emerged in recent months as a battleground for the debate. In one case last
fall, a city detective said a nondisclosure agreement with federal authorities
prevented him from answering questions about the device. The judge
threatened to hold him in contempt if he didn't provide information, and
prosecutors withdrew the evidence. The nondisclosure agreement, presented
for the first time in court Wednesday, explicitly instructs prosecutors to drop
cases if pressed on the technology, and tells them to contact the FBI if
legislators or judges are asking questions. Detective Emmanuel Cabreja, a
member of the Police Department's Advanced Technical Team, testified that
police own a Hailstorm cell site simulator the latest version of the stingray
and have used the technology 4,300 times since 2007. Cabreja said he
had used it 600 to 800 times in less than two years as a member of the unit.
Nate Wessler, an attorney with the American Civil Liberties Union, said 4,300
uses is "huge number." He noted that most agencies have not released data.
The Florida Department of Law Enforcement says its officers have used the
device about 1,800 times. Police in Tallahassee say they have used it more
than 250 times; police in Tacoma, Wash., 170 times. Former U.S. Judge Brian
L. Owsley, a law professor at Indiana Tech, said he was "blown away" by the
Baltimore figure and the terms of the nondisclosure agreement. "That's a
significant amount of control," he said. Agencies have invoked the
nondisclosure agreement to keep information secret. At a hearing last year, a
Maryland State Police commander told state lawmakers that "Homeland
Security" prevented him from discussing the technology. Wessler said the
secrecy is upending the system of checks and balances built into the criminal
justice system. "In Baltimore, they've been using this since 2007, and it's
only been in the last several months that defense attorneys have learned
enough to start asking questions," he said. "Our entire judicial system and
constitution is set up to avoid a 'just trust us' system where the use of
invasive surveillance gear is secret."

Racist Police
The aff does nothing to solve local surveillance rooted in
racism
APUZZO 15 (Matt Apuzzo is a reporter for the NYT, and Professor at

Georgetown University, and reported for Associated Press and the StandardTimes, Ferguson Police Routinely Violate Rights of Blacks, Justice Dept.
Finds, MARCH 3, 2015, http://www.nytimes.com/2015/03/04/us/justicedepartment-finds-pattern-of-police-bias-and-excessive-force-in-ferguson.html?
_r=0)
Ferguson, Mo., is a third white, but the crime statistics
compiled in the city over the past two years seemed to suggest that
only black people were breaking the law. They accounted for 85 percent of traffic
WASHINGTON

stops, 90 percent of tickets and 93 percent of arrests. In cases like jaywalking, which often hinge on police

The racial disparity in those


statistics was so stark that the Justice Department has concluded in
a report scheduled for release on Wednesday that there was only one
explanation: The Ferguson Police Department was routinely violating the
constitutional rights of its black residents. The report, based on a sixmonth investigation, provides a glimpse into the roots of the racial tensions
that boiled over in Ferguson last summer after a black teenager,
Michael Brown, was fatally shot by a white police officer, making it a
worldwide flash point in the debate over race and policing in America. It describes a city
where the police used force almost exclusively on blacks and
regularly stopped people without probable cause . Racial bias is so ingrained,
discretion, blacks accounted for 95 percent of all arrests.

the report said, that Ferguson officials circulated racist jokes on their government email accounts. In a
November 2008 email, a city official said Barack Obama would not be president long because what black
man holds a steady job for four years? Another email included a cartoon depicting African-Americans as

There are
serious problems here that cannot be explained away, said a law
enforcement official who has seen the report and spoke on the condition of anonymity because
monkeys. A third described black women having abortions as a way to curb crime.

it had not been released yet. Those findings reinforce what the citys black residents have been saying
publicly since the shooting in August, that the criminal justice system in Ferguson works differently for
blacks and whites. A black motorist who is pulled over is twice as likely to be searched as a white motorist,
even though searches of white drivers are more likely to turn up drugs or other contraband, the report
found. Minor, largely discretionary offenses such as disturbing the peace and jaywalking were brought
almost exclusively against blacks. When whites were charged with these crimes, they were 68 percent
more likely to have their cases dismissed, the Justice Department found. Ive known it all my life about
living out here, Angel Goree, 39, who lives in the apartment complex where Mr. Brown was killed, said
Tuesday by phone. Many such statistics surfaced in the aftermath of Mr. Browns shooting, but the Justice
Department report offers a more complete look at the data than ever before. Federal investigators
conducted hundreds of interviews, reviewed 35,000 pages of police records and analyzed race data
compiled for every police stop. The report will most likely force Ferguson officials to either negotiate a
settlement with the Justice Department or face being sued by it on charges of violating the Constitution.
Under Attorney General Eric H. Holder Jr., the Justice Department has opened more than 20 such
investigations into local police departments and issued tough findings against cities including Newark;
Albuquerque, N.M.; and Cleveland. But the Ferguson case has the highest profile of Mr. Holders tenure
and is among the most closely watched since the Justice Department began such investigations in 1994,
spurred by the police beating of Rodney King in Los Angeles and the riots that followed. While much of the
attention in Ferguson has been on Mr. Browns death, federal officials quickly concluded that the shooting
was simply the spark that ignited years of pent-up tension and animosity in the area. The Justice
Department is expected to issue a separate report Wednesday clearing the police officer, Darren Wilson, of

It is not clear what changes Ferguson could


make that would head off a lawsuit. The report calls for city officials
civil rights violations in the shooting.

to acknowledge that the police departments tactics have caused


widespread mistrust and violated civil rights. Ferguson officials have
so far been reluctant to do so , particularly as relations between the city and Washington
have grown strained. Mr. Holder was openly critical of the way local officials handled the protests and the
investigation into Mr. Browns death, and declared a need for wholesale change in the police department.
Ferguson officials criticized Mr. Holder for a rush to judgment and saw federal officials as outsiders who did
not understand their city.

Local Police police surveillance easily turns into violence


the Aff cannot solve
FRIEDERSDORF 15 (Conor Friedersdorf is a staff writer at The Atlantic,
where he focuses on politics and national affairs. He lives in Venice,
California, and is the founding editor of The Best of Journalism, a newsletter
devoted to exceptional nonfiction, Few Conservatives Take Police Abuses
Seriously, MAY 1, 2015,
http://www.theatlantic.com/politics/archive/2015/05/few-conservatives-takepolice-abuses-seriously/391886/)

Nearly a quarter century ago, the libertarian magazine Reason published an


essay on civil unrest suffused with an insight that movement conservatism
still hasn't grasped. Then-editor Virginia Postrel was writing in the wake of the
Los Angeles riots of 1992. "What caused the riots?" she asked. "How do we
prevent them from recurring?" She agreed with law-and-order voices of that
era that a dearth of conscience and empathy were factors. "Only people
without empathy could drag people out of their cars and beat them
within an inch of their lives," she wrote. "Only people without empathy
could burn and loot the lives and dreams of their neighbors." But she
went on to observe that a small criminal element preys on South Los
Angeles every day whereas riots occur once in a generation.
Rottenness may have been necessary to explain the beating of Reginald
Denny or the terror inflicted on small business owners, but it wasn't sufficient
to explain such mayhem. To turn rottenness into riots, she argued,
another necessary condition was widespread rage. "Black Angelenos,
black Americans, are very, very angry. Most did not riot; many saw
their stores burn, their dreams explode, their lives suddenly get
harder," she wrote. "Nor were all the rioters either black or angry: a
plurality of looters arrested were Latino; many in Hollywood and
downtown were white ... But rage did fuel these riots, at least at the
beginning. To violent people, the not-guilty verdictsand the rage they
engendered among the general publicprovided a signal to riot, to converge
at once on shops and passersby. Rage supplied cover for more venal
motivations. And it spurred the political apologies for the rioters." As well, the
attention paid to the riots gave the non-violent majority a chance to
peacefully voice their rage. "If you listen to what those people are actually
sayingoften in loud and angry voic
esyou will not hear the cliches of pundits and politicians," she wrote. "The
Great Society, pro or con, will not come up. Instead you will hear this: The
criminal justice system does not protect black Americans. It does not
make their streets safe from violence. It does not rally to the side of
black crime victims. It sees black people only as criminals, never as

citizens. It does not give them respect." The LAPD was not the only
contributing factor, but anyone hoping to understand the L.A. riots
had to contend with the city's policing.

Local law enforcement treats black lives matter like a


terrorist threat
Johnson 15 associate editor at AlterNet (4/29/15, Adam, Popular
Resistance, Government Treating #BlackLivesMatter Like A Terrorist Group,
https://www.popularresistance.org/government-treating-blacklivesmatter-likea-terrorist-group/)
We learned in the wake of the Occupy Wall Street movement that the
governments use of its anti-terror apparatus at a local and federal
level was both routine and pervasive. Thus far, the means with which
similar practices have been used on #BlackLivesMatter have been subtly
emerging thanks in large part to some truly intrepid journalism from
across the country. Here is a recap of the five of the worst examples:
1. NYPD and FBI uses counter-terror apparatus on #BlackLivesMatter
New York.
Though it was mostly taken for granted by those paying attention within the
activists community, official recognition that the NYPD and its FBI Joint Terror
Task Force were using their counter terror units on #BlackLivesMatter didnt
really come until a casual admission by the NYPD in the New York Post the
day before the announcement of the Eric Garner verdict in December of last
year:
They wore me out, said one counterterror expert who monitored the
protests. Their ability to strategize on the fly is something we havent dealt
with before to this degree.
A few weeks later, the New York Post would again be the forum with which
the NYPD would casually assert counter terror units were used on
#BlackLivesMatter, this time in connection to an alleged assault on an NYPD
officer: Linsker was nabbed by members of the Joint Terrorism Task Force
around 3:45 a.m., sources said.
Alex Kane reported for Vice:
How the NYPDs Counterterrorism Apparatus Is Being Turned on Protesters
The police wearing the counterterrorism jackets at protests are
perhaps the most palpable sign of the agencys transformation since
2001. Before 9/11 the NYPD had no counterterrorism bureau and the
Intelligence Division focused its resources on gang activity. After the
September 11 attacks, however, billions of dollars were poured into the
department to counter the threat of terrorism, as a 2011 60 Minutes report
showed. Critics of the NYPDs post-9/11 turn have been arguing that practices
devoted to fighting terrorism have violated the Constitution.
Now, they say, the NYPD is unleashing its counterterrorism tools on activists
against police brutality, conflating legitimate protest with the threat of
terrorism.
2. California Highway Patrol used counterterror units to monitor
#BlackLivesMatter in Bay Area.
A cache of emails revealed by Darwin BondGraham of the East Bay
Expresstwo weeks ago revealed the California Highway Patrol were

using its anti-terrorism apparatus, including fusion


centers like Northern California Regional Intelligence Center to
monitor #BlackLivesMatter activists on social media. As BondGraham
would lay out:
An email sent on December 12 illustrates how counter-terrorism officials
working out of fusion centers helped CHP monitor protesters. At 12:12 p.m.
that day, Elijah Owen, a senior intelligence advisor with the California State
Threat Assessment Center (Cal STAC) sent CHP officer Michael Berndl a copy
of a protest fliercalling for a speak-out and march against the CHP the next
day. Just so its on your folks radar, wrote Owen. Cal STAC officers appear
in other CHP emails as sources of information, or recipients of intel gathered
by the Oakland Police Department, Alameda County Sheriffs Office, and
other agencies.
Earlier this year, the California Highway Patrol would also
casually drop in the LA Times how they used fake twitter profiles to
monitor protesters:
Despite Wednesdays incident, Browne said he will continue to deploy
plainclothes officers to gather intelligence from protesters. Officers have also
been creating Twitter accounts, on which they dont identify themselves as
police, in order to monitor planned demonstrations.
Its unclear to what extent these two approaches using anti-terror apparatus
to monitor #BlackLivesMatter social media and the use of fake online profiles
to monitor #BlackLivesMatter- overlapped.
3. Massachusetts Counterterror fusion centers were used to monitor
#BlackLivesMatter protesters in Boston.
Similarly, fusion centers were used to monitor #BlacklivesMatter protests in
Massachusetts. As the ACLUs Kade Crockford noted last November:
Law enforcement officials at the Department of Homeland Security-funded
Commonwealth Fusion Center spied on the Twitter and Facebook accounts
of Black Lives Matter protesters in Boston earlier this week, the Boston
Herald reports.
The reference to the so-called fusion spy center comes at the very end of a
news story quoting Boston protesters injured by police in Tuesday nights
demonstrations, which was possibly the largest Ferguson related protest in
the country the day after the non-indictment of Darren Wilson was
announced.
The state police Commonwealth Fusion Center monitored social media, which
provided critical intelligence about protesters plans to try to disrupt traffic
on state highways, state police said.
Though it was buried at the end of the Boston Herald story, the use of
fusion centers deliberately set up for the purposes of stopping
terrorism are, once again, being used to monitor peaceful
domestic dissent.
4. FBI Joint Terror Task Force was used to track #BlackLivesMatter Minnesota.
Just as with the California Highway Patrol, internal emails between local police
departments and federal authorities revealed the extent to which the
counter-terror apparatus was casually and entirely turn-key used on
#BlackLivesMatter. The Intercepts Lee Fang revealed in March:
Why Was an FBI Joint Terrorism Task Force Tracking a BlackLives Matter
protest?

Members of an FBI Joint Terrorism Task Force tracked the time and location of
a Black Lives Matter protest last December at the Mall of America in
Bloomington, Minnesota, email obtained by The Intercept shows
The email from David S. Langfellow, a St. Paul police officer and member of
an FBI Joint Terrorism Task Force, informs a fellow task force member from the
Bloomington police that CHS just confirmed the MOA protest I was talking to
you about today, for the 20th of DEC @ 1400 hours. CHS is a law
enforcement acronym for confidential human source.
In other words, these emails revealed that not only was the FBI using its Joint
Terror Task Force an entity that exploded post-9/11 in the name of fighting
terrorism but also using paid informants who were undercover posing as
protestors. Once again, tactics and legal allowances created in the name of
stopping terrorism are being used, without any oversight or public debate,
on entirely peaceful domestic activism.
5. Emails reveal Missouri National Guard viewed Ferguson protestors as
enemy forces.
The most haunting revelation may just be the latest, from CNN:
Missouri National Guards term for Ferguson protesters: Enemy
forces
As the Missouri National Guard prepared to deploy to help quell riots in
Ferguson, Missouri, that raged sporadically last year, the guard used highly
militarized words such as enemy forces and adversaries to refer
to protesters, according to documents obtained by CNN.
CNNs use of military speak aside (quell riots), the report clearly shows
those in charge viewed both rioter and protester alike as enemy combatants
and Ferguson as a war zone.
What makes this, and the other above examples, so pernicious isnt just the
use of anti-terror language, legal authority, and apparatuses on peaceful
domestic activism, its the entirely casual nature with which its done. Beyond
a few PR tweaks, there doesnt seem to be, in any of these internal
documents, an ounce of doubt or hesitation as to whether or not using
systems set up ostensibly to combat al-Qaeda should be so quickly turned on
domestic activism. If all you have is a hammer, as the cliche goes, everything
looks like a nail. Weve given our hyper-militarized police and the FBI the
hammer of coordinated mass surveillance, infiltration, and monitoring in the
name of fighting a phenomenon that kills fewer people a year than bee
stings, It was only a matter of time, therefore, that mass protests would begin
to look like a nail in the eyes of our paranoid, over-equipped security officials.

Islamaphobia
Local Surveillance like the NYPD is Islamaphobic
Kane 13 (Alex Kane is an assistant editor for the news website Mondoweiss, which covers

the IsraelPalestine conflict, and the World section editor at AlterNet. His work has also
appeared in Salon, The Daily Beasts Open Zion blog, Vice, BBC Persian, +972 magazine, the
Electronic Intifada, Extra!, and Common Dreams, Kane is citing the book Enemies Within by
Matt Apuzzo and Adam Goldman, Alex Kane on Enemies Within : Inside the NYPDs Secret
Spying Unit and bin Ladens Final Plot Against America, October 24th, 2013,
http://lareviewofbooks.org/review/raking-the-coals-islamophobia-surveillance-targeting-andthe-nypds-secret-spying-unit)

Like the NYPD, the FBI has used its own power to pressure Muslims into
becoming informants in exchange for help. According to the American Civil
Liberties Union, the FBI has told Muslim-Americans trapped abroad because
of their inclusion on a no-fly list that they could get off easily by spying on
their own communities back home in the US. For all the oversight of the FBI
something the NYPD doesnt have to contend with parts of the federal
agency still view Muslims as targets for spying rather than partners in the
fight against terrorism. Far from an aberration in America's post-9/11
landscape, the NYPD is merely the most extreme example of a law
enforcement apparatus running roughshod over the rights of Muslim
Americans. What's also missing from Apuzzo and Goldmans otherwise
excellent expos of the NYPD is the larger political context in which
the spying took place. The NYPD's logic is Islamophobic at its core:
all Muslims are deemed potential terrorists until they're proven not
to be, an inversion of how law enforcement is supposed to work. Yet
there's little exploration of how Islamophobic discourse from the media and
elected officials contribute to the implementation and acceptance of spying
targeting Muslims. In the same year that Apuzzo and Goldman began
reporting on the NYPD's Intelligence Division, New York Republican
Peter King set up House hearings to probe radicalization among
Muslim-Americans a transparent attempt to cast aspersions on
one particular community. In 2010, anti-Muslim blogger Pamela Geller
worked the national media into a frenzy over what was inaccurately labeled
the Ground Zero mosque. King, Geller and other prominent figures
who demonized Muslims directly after 9/11 opened up space for
institutions with even more power, like the police, to move a
discourse of bigotry into policies of bigotry. In an atmosphere where
anti-Muslim sentiment largely went unchallenged, it's no surprise
that hardly an eye was batted when the NYPD hired CIA officials to
implement an intelligence collection program aimed at law-abiding
citizens. The book presents an undeniably damning portrait of the NYPDs
surveillance operation. Now, its up to the courts and lawmakers to decide
whether these operations are legal or prudent. Three federal lawsuits are
being pursued in reaction to Apuzzo's and Goldman's groundbreaking
investigations. The next New York City mayor will have to grapple with the
question of continuing or halting the spy operations. Judges and elected
officials will have a documented record on which to look back to decide these
weighty questions in the coming months: Enemies Within.

Surveillance is heavily biased It is assumed that Muslims


are terrorists
Khalek 14 (Rania Khalek is an independent journalist reporting on the underclass and
marginalized communities, How NSA Spying Impacts Muslim Communities and Cultivates
Islamophobia, January 26, 2014, http://raniakhalek.com/2014/01/26/how-nsa-spying-impacts-muslimcommunities-and-cultivates-islamophobia/ -JD)
RANIA KHALEK: Thats a really good point that you make and I actually want you to touch on that a little bit

the vilification and demonization of Muslims inside the


United States and foreign has really been used to justify this type of
mass surveillance and in some cases it seems to have worked. All
you have to do is say terrorist, Islamic terrorism and people are like,
oh okay. Could you talk a little bit about that? ABBAS: I agree wholeheartedly that the fear of
Islam, the fear of Muslims, is a notion I think has been cultivated by
policy choices at the federal level. The use of airport screenings, that
inevitably cultivates and reflects the bias that people have against
Muslims, has I think created space for an anti-Muslim movement to take
root. Right after September 11, you didnt have your Act for Americas, your David Yerushalmis, your
Center for Security Policysthis well-organized, well-financed movement
dedicated towards marginalizing Muslims and that gave rise to
essentially an engine of generating ant-Muslim sentiment that creates
this terrible and despicable cycle where now you have the overt argument being made
more about how

that Muslims are here in the United States to abrogate the US constitution, to overthrow the US
government and replace it with Sharia law, which couldnt be further from the truth. As the facts would
have it, the American Muslim community is a well-educated, well-integrated and looking to continue to do
so in the world. You cant identify an American Muslim radical voice in the United States, whereas if you go
to Europe, you can find people that have a platform that say despicable objectionable things. In the US,
thats just not the case. But we still have in the US, which is really exporting anti-Muslim sentiment to
other parts of the world especially Europe, we still have this fear of Islam that absolutely does give rise to
justify these surveillance policies. GOSZTOLA: So for people who are hearing this debate and they maybe
think its kind of abstract, weve been hearing people talk about collection of the information and then
weve been hearing about how the information is stored. And right now when were talking about the
program under the Patriot Act, the Section 215 program, which is the bulk records collection of the phone
records, its all about whos going to hold it, whos going to store it, and its kind of like were not talking
about the collection. Id like you to talk about why the collection would be really bad and I think a thing you
could address is how the collection of peoples information in Muslim communities in New York is a huge
deal for them and collecting that information is the beginning of the injustice. ABBAS: Absolutely. What we
know a lot about now regarding the NSAs surveillance programs is what is collected, some of the

we
really get to see in more granular detail with the NYPDs specifically
designed Muslim surveillance program is how indiscriminately
collected information gets utilized and what people in positions of
authority that can collect such information think is an appropriate
use of taxpayer dollars. And what we find is that the NYPD thought it was
absolutely worth taxpayer money to send their agents on camping
trips of 19 and 20-year-old college students. They thought it was
absolutely critical for them to map the Muslim community in Newark,
New Jersey, and beyond, identifying every halal grocery store, every
halal restaurant. These things are laughable when we see them up close and in granular detail
searching mechanisms that can be utilized to sift through the collected information. But what

and just like the PCLOB board has determined itself, a board that was authorized by Congress years ago,
that the sifting through everybodys information on an ongoing basis actually is not only objectionable in
itself but its not productive by any criteria. So you have for instance James Clapper arguing that theres
the piece of mind quotients that is part of the benefit of their surveillance program because were
monitoring everything. At the very least we know that nothing is happening. But this mentality that gave
rise to the NSA program is really the objectionable thing that needs to end because it gives rise to not only

indiscriminate collection of information automatically through these telecommunications companies, but


its also given rise to a network of 15,000 FBI informants that have saturated the Muslim community across
the country, that are sent to mosques without any type of criminal predicate just to collect information
because theres a sense that thats where the problem. And thats the inevitable result of indiscriminate
collection. Its always going to be the case that indiscriminate collectionin addition to not being productiv
will lead to despicable consequences. And Ill end my answer here. The saddest thing Ive ever heard

a young guy told me that


when he goes to the mosque to pray, his mom warns him to be
careful. And the mom warns him to be careful because theres an
understanding based on experience that the mosque is likely filled
with informants and infiltrators that are not there to make us any
safer but there to extract information from innocent Americans by
any means necessary.
as a CAIR staff attorney, and I hear lots of sad things, was when

The Public
Project Vigilant allows the government to use private
operatives information on citizens
Blain 10
Loz Blain, one of Gizmag's most versatile contributors since 2007. Joining the team as a motorcycle
specialist, he has since covered everything from medical and military technology to aeronautics, music
gear and historical artefacts, 8-2-2010, "Surveillance: two rare glimpses into who's watching you, and
how ," GIZMAG, http://www.gizmag.com/surveillance-whos-watching-and-how/15919//SRawal
Do yourself a favor and check out Glenn Greenwald's article at Salon.com, titled "Project Vigilant and the

how the United States


government neatly sidesteps any legal restraints that might prevent
it from gathering information on its citizens in this case, by accepting
dossiers from a network of private cyber-vigilantes that operates in
near-total secrecy and with no accountability to mechanisms like the
Privacy Act or the Freedom of Information Act. This group is
comprised of as many as 500 operatives, some of whom have
experience in data security and surveillance after leaving top-level
positions at organizations like the U.S. Department of Justice,
Homeland Security, the Pentagon, the NSA, the New York Stock
Exchange and they are exploiting loopholes in ISP contracts to mine
data on every step you take online. Project Vigilant is just one
further tool the U.S. government uses when it can't get what it
wants let's not forget that as the 'War on Terror' escalated, the NSA showed through its warrantless wiretapping
program that it believes that such privacy laws as there are stopping the
government from spying on its own citizens are at best flexible, or at
worst to be completely ignored. And it's not like the Obama administration has made amends in
this regard if anything, they've pushed the Bush agenda even further. So your online communications
including your browsing history, forum participation, social
networks, emails and transactions can all be considered to be laid
bare on the table, tracked back to your real-world identity and
locations, by whoever decides it's worth doing.
government/corporate destruction of privacy." In the article, he shows

The aff cannot stop Vigilantism the people will still


trigger the impact (SUBJECT TO CHANGE)
Eversley 15 (Melanie Eversley is a reporter on USA TODAY's Breaking

News desk and one of the bloggers for On Deadline. Over the years, she has
written about Congress, politics, civil rights and race relations, 9 dead in
shooting at black church in Charleston, S.C., June 19, 2015,
http://www.usatoday.com/story/news/nation/2015/06/17/charleston-southcarolina-shooting/28902017/)
CHARLESTON, S.C. Nine people have died in a shooting at a historic
black church in Charleston, S.C., police said early Thursday morning.
"I do believe this was a hate crime," Police Chief Gregory Mullen said. Eight
people died on the scene at the Emanuel African Methodist Episcopal
Church and one person was pronounced dead at a hospital, Mullen
said. The suspect, who remains on the loose, is a white male about
21 years old, officials said. The shooting took place at about 9 p.m. ET on

Wednesday. Charleston Police released photos of the suspect during a news


conference that started at 6 a.m. ET Thursday, and said he left the scene in a
black four door sedan. He is described as "armed and dangerous." Church
members were shot as they took part in shot at bible study, the
NAACP said. Dot Scott, president of the Charleston NAACP, said a female
survivor told family members that the gunman initially sat down in the church
for a while before opening fire, the Post and Courier reported. Scott added
that the gunman reportedly told the woman he was letting her live so she
could tell others what happened. Among the dead was the state senator
who was pastor of the church, Democrat Clementa Pinckney, said South
Carolina House Minority Leader Todd Rutherford, the Associated Press
reported. Pinckney, 41, was married with two children and had served in the
state Senate since 2000, according to online biographies. People were taking
part in a prayer meeting at the time of the incident, Mayor Joe Riley said
during the press conference. "This is inexplicable," Riley said. "It is the
most intolerable and unbelievable act possible ... The only reason
someone could walk into church and shoot people praying is out of
hate." Said Police Chief Mullen: "This is a tragedy that no community
should have to experience. It is senseless. It is unfathomable that
someone would walk into a church when people are having a prayer
meeting and take their lives."

The aff doesnt solve the murderous acts of vigilantes


even the police cant stop them
CNN WIRE 15 (As a partner of KTLA, the CNN Wire service provides
national and international coverage of breaking news, politics, health,
finance, entertainment and more. The syndication network includes regional
content from television stations and publications across the country, 4 Dead,
Including 2 Teens, in South Carolina Shooting; 8-Year-Old Boy Injured, JULY
15, 2015, http://ktla.com/2015/07/15/4-dead-including-2-teens-in-southcarolina-shooting-8-year-old-boy-injured/)
Four people were found shot dead Wednesday in Orangeburg
County, South Carolina, and authorities say they are looking for the
person responsible. A boy, about 8 years old, was injured, Sheriff Leroy
Ravenell told reporters. The childs condition was not immediately clear.
Ravenell said that authorities believe the shooting was an isolated
event and that they are following some good leads. We dont think that
we have anybody in this area thats still out actively committing crimes, the
sheriff said. He vowed police would not rest until we arrest the
person that killed these individuals. Three of the four people killed
were found inside a home, and have been identified. They are Tamara
Alexia Almeshia Perry, 14; Shamekia Tyjuana Sanders, 17; and Crystal Hutto,
28. The fourth victim, a black adult male, was found deceased in the
homes yard. All the victims suffered gunshot wounds. Police located
a vehicle believed to be connected to that home earlier Wednesday,
Ravenell said. It had been burned. The sheriff declined to answer a
number of questions, citing an ongoing investigation. We dont

want this lingering out there with the public not knowing whats
going on, he said.

It is easy and cheap to surveil mobile communications


anyone can do it
Blain 10
Loz Blain, one of Gizmag's most versatile contributors since 2007. Joining the team as a motorcycle
specialist, he has since covered everything from medical and military technology to aeronautics, music
gear and historical artefacts, 8-2-2010, "Surveillance: two rare glimpses into who's watching you, and how
," GIZMAG, http://www.gizmag.com/surveillance-whos-watching-and-how/15919//SRawal
And if you were under the misapprehension that your mobile communications were any safer, Chris Paget's recent

demonstration of cellphone tower spoofing showed just how easy


and inexpensive it is for anyone with the appropriate knowledge to
intercept and record your private phone calls as well. Paget's device simply
pretends to be a cellphone tower that delivers a closer and stronger
signal than a real tower. Mobile phones automatically connect to the
tower with the best signal, so they switch over to the spoofed tower,
which quietly records the conversation and sends the information on
to the real network. The user is completely unaware. Worse still, the equipment
Paget built for his demonstration, in which dozens of audience members' phones were
'hijacked,' cost him less than US$1500 most of which was for the laptop he ran the system
through. More about the demonstration at Paget's blog. So the ability to spy on your mobile
conversations is now so cheap to attain that it's no longer the sole
preserve of cashed-up government and law enforcement agencies
just about anyone can do it. And it's a glimpse at the kind of capability the NSA and other agencies
have almost certainly had since day one.

Businesses
Businesses sharing citizens information with the
government is a new privacy threat
Fang 15

Lee Fang, a journalist with a longstanding interest in how public policy is


influenced by organized interest groups and money, 04/01/15, "How Big
Business Is Helping Expand NSA Surveillance, Snowden Be Damned,"
Intercept, https://firstlook.org/theintercept/2015/04/01/nsa-corporateamerica-push-broad-cyber-surveillance-legislation//SRawal
For all its appeal to corporations, CISA represents a major new privacy threat to
individual citizens. It lays the groundwork for corporations to feed
massive amounts of communications to private consortiums and the
federal government, a scale of cooperation even greater than that revealed by Snowden. The law
also breaks new ground in suppressing pushback against privacy
invasions; in exchange for channeling data to the government, businesses are granted broad legal immunity from
privacy lawsuits potentially leaving consumers without protection if companies break privacy promises that would
otherwise keep information out of the hands of authorities .

Ostensibly, CISA is supposed to


help businesses guard against cyberattacks by sharing information
on threats with one another and with the government. Attempts
must be made to filter personal information out of the pool of data
that is shared. But the legislation at least as marked up by the Senate Intelligence Committee
provides an expansive definition of what can be construed as a
cybersecurity threat, including any information for responding to or
mitigating an imminent threat of death, serious bodily harm, or
serious economic harm, or information that is potentially related to
threats relating to weapons of mass destruction, threats to minors,
identity theft, espionage, protection of trade secrets, and other
possible offenses. Asked at a hearing in February how quickly such
information could be shared with the FBI, CIA, or NSA, Deputy Undersecretary
for Cybersecurity Phyllis Schneck replied, fractions of a second. Questions persist on how to more narrowly define a
cybersecurity threat, what type of personal data is shared, and which government agencies would retain and store this
data. Sen. Ron Wyden, D-Ore., who cast the lone dissenting vote against CISA on the Senate Intelligence Committee,
declared the legislation a surveillance bill by another name. Privacy advocates agree. The

lack of use
limitations creates yet another loophole for law enforcement to
conduct backdoor searches on Americans, argues a letter sent by a coalition of privacy
organizations, including Free Press Action Fund and New Americas Open Technology Institute. Critics also argue that CISA
would not have prevented the recent spate of high-profile hacking incidents. As the Electronic Frontier Foundations Mark
Jaycox noted in a blog post, the JPMorgan hack occurred because of an un-updated server and prevailing evidence about

the intelligence community and


corporate America have this year unified behind the bill. For a look into the
the Sony breach is increasingly pointing to an inside job. But

breadth of the corporate advocacy campaign to pass CISA, see this letter cosigned by many of the most powerful

another letter, reported in the Wall


signed by general counsels of more than 30 different firms,
including 3M and Lockheed Martin Corp.
corporate interests in America and sent to legislators earlier this year. Or
Street Journal,

AT: Oversight
Oversight failsExecutive and agency interferencekills
the signal
Sullivan 14, Writer for the Associated Press, 3/19/14, Eileen Sullivan,
Huffington Post, CIA-Senate Accusations Complicate Oversight Of
Surveillance Programs, http://www.huffingtonpost.com/2014/03/19/ciasenate-surveillance_n_4995971.html
"We've

set the balance between public disclosure and the need for secrecy by
empowering the congressional intelligence committees," Robert Litt, general
counsel of the office of the director of national intelligence, said Wednesday. Litt was speaking to a
privacy oversight panel that has been reviewing some of the more controversial spy programs revealed

the executive branch interferes


with Congress. Sen. Dianne Feinstein, D-Calif., the chair of the Senate Intelligence Committee and
a longtime supporter of the NSA surveillance programs, has accused the government of this
type of interference. Feinstein said the CIA interfered with and then tried to intimidate
a congressional investigation into the agency's possible use of torture as it probed suspected
terrorists after the Sept. 11 attacks. "This is kind of a raw example of how things can go wrong in
congressional oversight," said David M. Barrett, a Villanova University professor who has studied
the history of Congress and the intelligence community. " Congressional oversight of
intelligence is going to be imperfect. It always is." Privacy advocates have been critical
of the congressional oversight of the NSA programs, raising concerns that lawmakers are too
close to the administration, hindering objective and effective oversight of the
secret programs. "Even when Congress tries to do some oversight, they're
thwarted by the administration," said Michelle Richardson of the American Civil Liberties Union.
"I don't think the public has faith in congressional oversight anymore."
last year. But that balance is suspect amid complaints that

Congress has no idea whats happening


Grayson 13, the United States Representative for Florida's 9th
congressional district, 10/25/13, Alan Grayson, Congressional oversight
of the NSA is a joke. I should know, I'm in Congress,
http://www.theguardian.com/commentisfree/2013/oct/25/nsa-no-congressoversight
Pike's investigation initiated one of the first congressional oversight debates for the vast and hidden
collective of espionage agencies, including the Central Intelligence Agency (CIA), the Federal Bureau of

Congress
was kept in the dark about them a tactic designed to thwart congressional
deterrence of the sometimes illegal and often shocking activities carried out
by the "intelligence community". Today, we are seeing a repeat of this professional voyeurism
Investigation (FBI), and the National Security Agency (NSA). Before the Pike Commission,

by our nation's spies, on an unprecedented and pervasive scale. Recently, the US House of
Representatives voted on an amendment offered by Representatives Justin Amash and John Conyers
that would have curbed the NSA's omnipresent and inescapable tactics. Despite furious lobbying by the
intelligence industrial complex and its allies, and four hours of frantic and overwrought briefings by the
NSA's General Keith Alexander, 205 of 422 Representatives voted for the amendment. Though the
amendment barely failed, the vote signaled a clear message to the NSA: we do not trust you. The vote also
conveyed another, more subtle message:

members of Congress do not trust that the

House Intelligence Committee is providing the necessary oversight. On the


contrary, "oversight" has become "overlook". Despite being a member of Congress
possessing security clearance, I've learned far more about government spying on me
and my fellow citizens from reading media reports than I have from
"intelligence" briefings. If the vote on the Amash-Conyers amendment is any indication, my
colleagues feel the same way. In fact, one long-serving conservative Republican told me that he doesn't
attend such briefings anymore, because, "they

always lie". Many of us worry that


Congressional Intelligence Committees are more loyal to the "intelligence
community" that they are tasked with policing, than to the Constitution . And the
House Intelligence Committee isn't doing anything to assuage our concerns. I've requested classified
information, and further meetings with NSA officials. The House Intelligence Committee has refused to
provide either. Supporters of the NSA's vast ubiquitous domestic spying operation assure the public that
members of Congress can be briefed on these activities whenever they want. Senator Saxby Chambliss
says all a member of Congress needs to do is ask for information, and he'll get it. Well I did ask, and the
House Intelligence Committee said "no", repeatedly. And virtually every other member not on the
Intelligence Committee gets the same treatment. Recently, a member of the House Intelligence Committee
was asked at a town hall meeting, by his constituents, why my requests for more information about these
programs were being denied. This member argued that I don't have the necessary level of clearance to
obtain access for classified information. That doesn't make any sense; every member is given the same
level of clearance. There is no legal justification for imparting secret knowledge about the NSA's domestic
surveillance activities only to the 20 members of the House Intelligence Committee. Moreover, how can
the remaining 415 of us do our job properly, when we're kept in the dark or worse, misinformed?

Checks from within the agencies fail


Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Indeed, intra-Trumanite checks have already been tried. When questions
arose as to whether Justice Department lawyers inappropriately authorized
and oversaw warrantless electronic surveillance in 2006, its Office of
Professional Responsibility commenced an investigationuntil its
investigators were denied the necessary security clearances, blocking the
inquiry.550 The FBI traditionally undertakes an internal investigation when an
FBI agent is engaged in a serious shooting; from 1993 to early 2011, FBI
agents fatally shot about seventy subjects and wounded about eighty others
and every one of those [shootings] was justified, its inspectors found.551
Following the NSA surveillance disclosures, President Obama announced the
creation of an independent panel to ensure that civil liberties were being
respected and to restore public confidencea panel, it turned out, that
operated as an arm of the Office of the Director of National Intelligence,
which oversees the NSA.552 Inspectors general were set up within federal
departments and agencies in 1978 as safeguards against waste, fraud,
abuse, and illegality,553 but the positions have remained vacant for years in
some of the governments largest cabinet agencies, including the
departments of Defense, State, Interior, and Homeland Security.554 The best
that can be said of these inspectors general is that, despite the best of
intentions, they had no authority to overrule, let alone penalize, anyone. The
worst is that they were trusted Trumanites who snored through everything
from illegal surveillance to arms sales to the Nicaraguan contras to Abu

Ghraib to the waterboarding of suspected terrorists. To look to Trumanite


inspectors general as a reliable check on unaccountable power would
represent the ultimate triumph of hope over experience.

Trumanites control congress


Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Like the courts, Congresss apparent power also vastly outstrips its real power
over national security. Similar to the Trumanites, its members face a
blistering work load. Unlike the Trumanites, their work is not concentrated on
the one subject of national security. On the tips of members tongues must be
a ready and reasonably informed answer not only to whether the United
States should arm Syrian rebels, but also whether the medical device tax
should be repealed, whether and how global warming should be addressed,
and myriad other issues. The pressure on legislators to be generalists creates
a need to defer to national security experts. To a degree congressional staff
fulfill this need. But few can match the Trumanites informational base,
drawing as they do on intelligence and even legal analysis that agencies
often withhold from Congress. As David Gergen put it, [p]eople . . . simply do
not trust the Congress with sensitive and covert programs.344
The Trumanites threat assessments,345 as well as the steps they take to
meet those threats, are therefore seen as presumptively correct whether the
issue is the threat posed by the targets of drone strikes, by weapons of mass
destruction in Iraq, or by torpedo attacks on U.S. destroyers in the Gulf of
Tonkin. Looming in the backs of members minds is the perpetual fear of
casting a career-endangering vote. No vote would be more fatal than one that
might be tied causally to a cataclysmic national security breakdown. While
the public may not care strongly or even know about many of the Bush
policies that Obama has continued, the public could and would likely know all
about any policy changeand who voted for and against itin the event
Congress bungled the protection of the nation. No member wishes to confront
the if only argument: the argument that a devastating attack would not
have occurred if only a national security letter had been sent, if only the state
secrets privilege had been invoked, if only that detainee had not been
released. Better safe than sorry, from the congressional perspective. Safe
means strong. Strong means supporting the Trumanites.
Because members of Congress are chosen by an electorate that is
disengaged and uninformed, Madisons grand scheme of an equilibrating
separation of powers has failed, and a different dynamic has arisen.346 His
design, as noted earlier,347 anticipated that ambition counteracting ambition
would lead to an equilibrium of power and that an ongoing power struggle
would result among the three branches that would leave room for no perilous
concentration of power.348 The governments several constituent parts

would be the means of keeping each other in their proper places.349 But
the overriding ambition of legislators chosen by a disengaged and
uninformed electorate is not to accumulate power by prescribing policy for
the Trumanites, as Madisons model would otherwise have predicted. Their
overriding ambition is to win reelection, an ambition often inconsistent with
the need to resist encroachments on congressional power. All members of
Congress know that they cannot vote to prescribeor proscribeany policy
for anyone if they lose reelection. It is not that Madison was wrong; it is that
the predicate needed for the Madisonian system to function as intended
civic virtueis missing.
As a result, Trumanite influence permeates the legislative process, often
eclipsing even professional committee staff. Trumanites draft national
security bills that members introduce. They endorse or oppose measures at
hearings and mark-ups. They lobby members, collectively and one-on-one.
Their positions appear on the comparative prints that guide members
through key conference committee deliberations. Sometimes Trumanites draft
the actual language of conference reports. They wait outside the chambers of
the House and Senate during floor debates, ready on-the-spot to provide
members with instant arguments and data to back them up. Opponents
frequently are blind-sided. Much of this activity is removed from the public
eye, leading to the impression that the civics-book lesson is correct; Congress
makes the laws. But the reality is that virtually everything important on which
national security legislation is based originates with or is shaped by the
Trumanite network.
Conversely, congressional influence in the Trumanites decisionmaking
processes is all but nil. The courts have, indeed, told Congress to keep out. In
1983, the Supreme Court invalidated a procedure, called the legislative
veto, which empowered Congress to disapprove of Trumanite arms sales to
foreign nations, military initiatives, and other national security projects.350
The problem with the concept, the Court said, was that it permitted Congress
to disapprove of executive action without the possibility of a presidential
veto.351 A legislative proposal thereafter to give the Senate Intelligence
Committee the power to approve or disapprove covert actions was rejected,
on the grounds that the Court had ruled out such legislative controls.352
Defenders of the process often claim that congressional oversight
nonetheless works.353 How they can know this they do not say.354
Information concerning the oversight committees efficacy remains tightly
held and is seldom available even to members of Congress, let alone the
general public. Today, James Bamford has written, the intelligence
committees are more dedicated to protecting the agencies from budget cuts
than safeguarding the public from their transgressions.355 Authorization too
often is enacted without full knowledge of what is being approved.356 Even
when intelligence activities such as the NSA surveillance are reported,
meaningful scrutiny is generally absent.357 Members of oversight
committees typically are precluded from making available to non-member

colleagues classified information that is transmitted to the committees.358


This is true even if the activities in question are unlawful. Following the NSA
surveillance leaks, for example, Senator Wyden said that he and colleagues
believed that additional, unnamed secret surveillance programs . . . go far
beyond the intent of the statute.359 The Senate Armed Services Committee
has seemed generally clueless and surprised about the legal standard360
applied by the Executive in construing the scope of its authority under the
AUMF.361 The 9/11 Commission was unambiguous in its own conclusions
concerning the reliability of congressional intelligence oversight; the word the
Commission used to described it was dysfunctional.362 The oversight
committees performance from the Iranian Revolution through the mining of
Nicaraguan harbors,363 the Iran-Contra affair,364 NSA surveillance,365 and
other similar episodes366 provides scant evidence to contradict the
Commissions conclusion.

AT: Fiat
Even if laws are passed, the NSA will shift resources to
other surveillance
Groll 6/4, Assistant editor for Foreign Policy (6-4-2015, Elias Groll, Foreign
Policy, "Congress May Have Passed the Freedom Act, But Mass Surveillance Is
Alive and Well", http://foreignpolicy.com/2015/06/04/congress-may-havepassed-the-freedom-act-but-mass-surveillance-is-alive-and-well/) EWimsatt
Onee useful way to think about the USA Freedom Act that President Barack
Obama signed into law on Tuesday night is as a lightning-rod for the National
Security Agency. By changing the way the NSA examines domestic phone
records, the agency is now able to make the argument that it has undergone
significant reforms in the aftermath of the Edward Snowden revelations. By
giving up the authority to collect all American phone records, the agency has
paid a small price and gotten rid of a program that it had come to consider
a burden, anyway to keep its most important authorities intact.

Agencies get around the rules


Rosenthal 6/12, reporter at Mother Jones (6-12-2015, Max J. Rosenthal,
Mother Jones, "America's secret surveillance court may be about to get a little
less secret", http://www.motherjones.com/politics/2015/06/usa-freedom-actfisa-court-transparency) EWimsatt
There are other procedural moves the government could use to limit what
information is made public. The court could simply issue summaries of
decisions that don't include their key parts, or the executive branch could
heavily redact them. "In theory, the executive branch could comply with this
part of the statute by redacting 99 percenteverything but one sentence,
essentiallyof an opinion," Goitein says.
She admits that specific tactic is unlikelyit would be an obvious and public
skirting of the law's intentbut stresses that even though the law makes
important progress in disclosure, there are still many loopholes that could cut
down on how much the public will get to see.
"I think the history strongly suggests that the intelligence establishment will
take every single little bit of rope it has," she says. "And then some."

Theres no enforcement mechanismand multiple legal


justifications
Vladeck 6/1, professor of law at the American University Washington
College of Law. (6/1/15, Stephen Vladeck, Foreign Policy, Forget the Patriot
Act Here Are the Privacy Violations You Should Be Worried About,
http://foreignpolicy.com/2015/06/01/section-215-patriot-act-expiressurveillance-continues-fisa-court-metadata/)

The governments defense, as weve come to learn, is flawed in two vital


respects: First, as several since-disclosed opinions from the FISA Court have
made clear, the governments minimization requirements under the 2008
statute were often too skimpy, allowing the retention and use of information
that both the statute and the Fourth Amendment prohibit. Second and
perhaps more importantly even where the minimization rules were legally
sufficient, there have been numerous instances in which government officials
violated them, with the FISA Court only discovering the abuses after they
were voluntarily reported by Justice Department lawyers. As a result, the
government collected and retained a large volume of communications by U.S.
citizens that neither Congress nor the Constitution allowed it to acquire.
More alarmingly, with regard to collection under Executive Order 12333, there
isnt any similar judicial review (or meaningful congressional oversight),
which means that it has entirely been up to the government to police itself.
As State Department whistleblower John Napier Tye explained last summer,
there is every reason to doubt that such internal accountability has provided
a sufficient check. In his words, Executive Order 12333 contains nothing to
prevent the NSA from collecting and storing all communications
provided that such collection occurs outside the United States in the course
of a lawful foreign intelligence investigation.
To put the matter bluntly, whereas the Section 215 debate has addressed
whether the government can collect our phone records, Executive Order
12333 and the 2008 FISA Amendments Act allow the government to collect a
lot of what were actually saying, whether on the phone, in our emails, or
even to our search engines. There is no question that from a privacy
perspective, these programs are far more pernicious than whats been
pegged to Section 215.There is also no question that such collection raises
even graver constitutional questions than the phone records program.
Whereas there is an open debate over our expectation of privacy in the
metadata we voluntarily provide to our phone companies, theres no doubt
that we have an expectation of privacy in the content of our private
communications.
Why, then, has all the fuss been around Section 215 and the phone records
program, while the far more troubling surveillance authorities provided by
Executive Order 12333 and the 2008 FISA Amendments Act have flown under
the radar?
Part of it may be because of the complexities described above. After all, its
easy for people on the street to understand what it means when the
government is collecting our phone records; its not nearly as obvious why we
should be bothered by violations of minimization requirements. Part of it may
also have to do with the governments perceived intent. Maybe it seems more
troubling when the government is intentionally collecting our phone records,
as opposed to incidentally (albeit knowingly) collecting the contents of our
communications. And technology may play a role, too; how many senders of
emails know where the server is located on which the message is ultimately

stored? If we dont realize how easily our communications might get bundled
with those of non-citizens outside the United States, we might not be worried
about surveillance targeted at them.
But whatever the reason for our myopic focus on Section 215, it has not only
obscured the larger privacy concerns raised by these other authorities, but
also the deeper lessons we should have taken away from Snowdens
revelations. However much we might tolerate, or even embrace, the need for
secret government surveillance programs, it is all-but-inevitable that those
programs will be stretched to and beyond their legal limits. Thats why
its important not only to place substantive limits upon the governments
surveillance authorities, but also to ensure that they are subject to
meaningful external oversight and accountability as well. And thats why the
denouement of Section 215 debate has been so disappointing.
This should have been a conversation not just about the full range of
government surveillance powers, including Executive Order 12333 and the
2008 FISA Amendments Act, but also about the role of the FISA Court and of
congressional oversight in supervising those authorities. Instead, it devolved
into an over-heated debate over an over-emphasized program. Congress has
tended to a paper cut, while it ignored the internal bleeding. Not only does
the expiration of Section 215 have no effect on the substance of other
surveillance authorities, it also has no effect on their oversight and
accountability
.

The surveillance data can come from foreign nations and


the private sector
Carr 6/3, Senior Lecturer in International Politics and the Cyber Dimension
at Aberystwyth University (6/3/2015, Madeline Carr, The Conversation, US
government clips NSA wings, but snooping is a global effort,
http://theconversation.com/us-government-clips-nsa-wings-but-snooping-is-aglobal-effort-42771)
The USA Freedom Act only applies to US citizens, which means the NSA is still
free to gather meta data on citizens of other nations. Meanwhile, other
governments are moving to hand greater powers to their intelligence
services.
Watching you around the world
In the UK, for example, GCHQ operates a similar program to the NSA. In early
2015, a consortium of civil rights organisations took GCHQ before the
Investigatory Powers Tribunal a British court set up to hear complaints
against the security services. The consortium argued that GCHQs mass
surveillance program as well sharing the results of that program with the
NSA was an abuse of human rights law. The tribunal found in favour of

GCHQ but the case is expected to proceed to the European Court of Human
Rights in Strasbourg later this year.
Left as it is, GCHQ can help to alleviate problems that the NSA will face in
collecting data on US citizens. As part of the Five Eyes intelligence sharing
arrangement that includes the US, UK, Australia, New Zealand and Canada,
GCHQ is perfectly positioned to collect and pass on communications data on
US citizens that the NSA may be prevented from collecting itself.
Whats more, in the wake of the British election, the UK government is
seeking once again to implement a law known as the Snoopers Charter. This
is essentially a data retention bill that would require telecommunications
companies and internet service providers to hold onto the meta data (but not
content) from their customers' emails, phone calls, texts and internet
browsing for 12 months.
Meanwhile, in the weeks following the Charlie Hebdo attacks in Paris, France
moved to introduce significantly strengthened data retention laws. Echoing
the US response to the 9/11 terrorist attacks, French Prime Minister Manuel
Valls suggested that an extraordinary situation calls for extraordinary
measures. This has implications for European negotiations over data
protection laws which have been implemented to shield EU citizens from the
NSA surveillance program.
Questions about the balance between privacy and security are ongoing and
to some extent, they define the times. With increasing intensity,
organisations have been racing to take advantage of personal data trail that
we now generate online. There can be little doubt that this provides
opportunities for use in law enforcement and intelligence.
Its worth remembering, though, that mass surveillance is not carried out by
the NSA or the FBI or even GCHQ. Its carried out by private corporations such
as Google and Facebook. Adequate oversight of the way intelligence agencies
access and use that data is extremely important but we have remarkably
little oversight of the way private companies deal with our data. And in many
cases, they operate with very little transparency themselves.
In February 2015, the Belgian Privacy Commission found that Facebook is
acting in violation of European law. A few months later, Apple CEO Tim
Cook launched an attack against the collection and monetisation of personal
data saying that Silicon Valley businesses are lulling their customers into
complacency about their personal information.
And as for telcos and ISPs, those that dont already retain our data arent
acting out of ethical concerns they dont keep the information because the
expense of storage currently outweighs the commercial value of the data.
So while US citizens have reasons to celebrate about the USA Freedom Act,
they should remember that the NSA has allies around the world who continue
to collect data on both their own citizens and those in the US.

The DEA bypasses its own oversight


Shackford 6/3, associate editor at Reason.com. (6/3/2015, Scott
Shackford, Reason, The DEA Bypasses Federal Oversight to Better Snoop on
Us All, http://reason.com/blog/2015/06/03/the-dea-bypasses-federaloversight-to-be)
It seems as though the Drug Enforcement Administration (DEA) has reversed
this dynamic, all in the name of more easily snooping on people. USA
Today has determined that the DEA has drastically increased its use of
electronic surveillance over the past decade by deliberately bypassing its
own federal oversight and turning to local prosecutors. The Department of
Justice (DOJ) has tougher requirements to permit eavesdropping than states
and local judges:
The DEA conducted 11,681 electronic intercepts in the fiscal year that ended
in September. Ten years earlier, the drug agency conducted 3,394.
Most of that ramped-up surveillance was never reviewed by federal judges or
Justice Department lawyers, who typically are responsible for examining
federal agents' eavesdropping requests. Instead, DEA agents now take 60%
of those requests directly to local prosecutors and judges from New York to
California, who current and former officials say often approve them more
quickly and easily.
Drug investigations account for the vast majority of U.S. wiretaps, and much
of that surveillance is carried out by the DEA. Privacy advocates expressed
concern that the drug agency had expanded its surveillance without going
through internal Justice Department reviews, which often are more
demanding than federal law requires.
Wiretaps which allow the police to listen in on phone calls and other
electronic communications are considered so sensitive that federal law
requires approval from a senior Justice Department official before agents can
even ask a federal court for permission to conduct one. The law imposes no
such restriction on state court wiretaps, even when they are sought by
federal agents.

LINKS TO AFFS

DEA
Regardless of what the plan does- agencies i.e. the DEA
will circumvent in order to catch high scale drug lords and
control operations dependent upon surveillance
Heath, 2015
(Brad is an analyst for the News Company USA Today. Full Date: June 3, 2015. Drug wiretaps triple in past
decade; Agents take majority of requests to local prosecutors, judges.
http://www.lexisnexis.com/hottopics/lnacademic/. Date Accessed- 07/15/15. Anshul Nanda)

U.S. Drug Enforcement Administration more than tripled its use of


wiretaps and other types of electronic eavesdropping over the past
decade, largely bypassing federal courts and Justice Department
lawyers in the process, newly obtained records show. The DEA conducted 11,681
electronic intercepts in the fiscal year that ended in September. Ten
years earlier, the drug agency conducted 3,394. Most of that ramped-up surveillance was
never reviewed by federal judges or Justice Department lawyers, who
typically are responsible for examining federal agents' eavesdropping requests. Instead, DEA agents
now take 60% of those requests directly to local prosecutors and
judges from New York to California, who current and former officials say often are
quicker to approve them. Drug investigations account for the vast majority of
U.S. wiretaps, and much of that surveillance is carried out by the DEA.
The

Privacy advocates expressed concern that the drug agency had expanded its surveillance without going
through internal Justice Department reviews, which often are more demanding than federal law requires.
Wiretaps -- which let the police listen in on phone calls and other electronic communications -- are
considered so sensitive that federal law requires approval from a senior Justice Department official before
agents can even ask a federal court for permission to conduct one. The law imposes no such restriction on
state court wiretaps, even when they are sought by federal agents. "That law exists to make sure that
wiretap authority is not abused, that it's only used when totally appropriate," said Hanni Fakhoury, an
attorney with the Electronic Frontier Foundation. "That's a burden. And if there's a way to get around that
burden, the agents are going to try to get around it." USA TODAY obtained the DEA's wiretapping statistics
under the Freedom of Information Act. The figures include every order authorizing or extending electronic
eavesdropping. Some orders could be counted more than once, if they include the collection of both voice
calls and text messages, for example. DEA Spokesman Joseph Moses said agents' increased use of
wiretaps reflects "the proliferation of communication devices and methods" used by the drug traffickers.

wiretaps have been critical for agents to penetrate networks


high-level traffickers use to control operations. The legal safeguards for
He said

wiretaps are supposed to be the same in both state and federal courts. To tap into communications, police
must persuade prosecutors and a judge that they have probable cause to think that the communications
will contain evidence of a crime, and that they have no other way to build their case. But how judges and
prosecutors interpret those requirements can vary among jurisdictions. "Within Justice, it was a rigorous
standard," said Stephen T'Kach, a former lawyer in the Justice Department office responsible for approving
wiretaps. "In the states, you have 50 different standards for what's going to be enough." Moses said DEA
agents were "making no attempt to circumvent federal legal standards and protections by instead

rapid growth of stateauthorized eavesdropping reflects local prosecutors' increased


willingness to take on complex wiretap investigations , which often involve
pursuing state wiretap authorizations." Instead, he said, the

teams of local police and federal agents. At the same time, he said, some federal prosecutors "may be
unable to support wire intercept investigations due to manpower or other resource considerations," so
agents take their cases to state officials rather than see them dropped. The DEA records do not indicate
which state courts have approved the ramped-up surveillance, but state court records and statistics
compiled by the federal courts' administrative office offer some indications. For example, judges in the
Los Angeles suburb of Riverside, Calif., authorized more wiretaps in 2013 than any other jurisdiction in the
country and significantly more than any federal court, according to records compiled by the Administrative
Office of the U.S. Courts. The number of wiretaps approved there nearly doubled between 2013 and 2014,
to 602, according to California's attorney general. John Hall, a spokesman for Riverside County's district
attorney, said he could not comment on whether the office had approved wiretaps for federal investigators
because the applications often are sealed. Court records there show prosecutors submitted some wiretap

applications at the request of the DEA. State court judges in Buffalo and San Diego also approved DEA
wiretap requests, according to court records. "There was always some heartburn in Justice when DEA was
going into state courts," T'Kach said. That was tempered, he said, because state wiretap laws must include
all of the safeguards federal law requires, and there was no suggestion that evidence gathered through
state-court wires was being thrown out of court later. How often that happens is difficult to measure.
Agents said many of the cases in which state judges authorize wiretaps end up being prosecuted in state
courts, where challenges to wiretap evidence are less common.

Local governements are stopping the war on drugsmeans cant solve through the national level
Ron Paul 14 (Ferguson: The War Comes Home, August 25, 2014 Monday,
L/N- Farmington Daily Times (New Mexico), Accessed 7/16/15, EHS MKS)

America's attention recently turned away from the violence in Iraq and Gaza toward the violence in
Ferguson, Missouri, following the shooting of Michael Brown. While all the facts surrounding the shooing
have yet to come to light, the shock of seeing police using tear gas (a substance banned in warfare), and
other military-style weapons against American citizens including journalists exercising their First

The increasing
use of military equipment by local police is a symptom of growing
authoritarianism, not the cause. The cause is policies that encourage police to see Americans as
Amendment rights, has started a much-needed debate on police militarization.

enemies to subjugate, rather than as citizens to "protect and serve." This attitude is on display not only in
Ferguson, but in the police lockdown following the Boston Marathon bombing and in the Americans killed
and injured in "no-knock" raids conducted by militarized SWAT teams. One particularly tragic victim of
police militarization and the war on drugs is "baby Bounkham." This infant was severely burned and put in
a coma by a flash-burn grenade thrown into his crib by a SWAT team member who burst into the infant's
room looking for methamphetamine. As shocking as the case of baby Bounkham is, no one should be
surprised that empowering police to stop consensual (though perhaps harmful and immoral) activities has
led to a growth of authoritarian attitudes and behaviors among government officials and politicians.

Those wondering why the local police increasingly look and act like
an occupying military force should consider that the drug war was
the justification for the Defense Department's "1033 program,"
which last year gave local police departments almost $450 million
worth of "surplus" military equipment. This included armored
vehicles and grenades like those that were used to maim baby
Bounkham. Today, the war on drugs has been eclipsed by the war on
terror as an all-purpose excuse for expanding the police state. We are all
familiar with how the federal government increased police power after September 11 via the Patriot Act,
TSA, and other Homeland Security programs.

Not as widely known is how the war on


terror has been used to justify the increased militarization of local
police departments to the detriment of our liberty. Since 2002, the
Department of Homeland Security has provided over $35 billion in
grants to local governments for the purchase of tactical gear,
military-style armor, and mine-resistant vehicles. The threat of terrorism is
used to justify these grants. However, the small towns that receive tanks and other
military weapons do not just put them into storage until a real
terrorist threat emerges. Instead, the military equipment is used for
routine law enforcement. Politicians love this program because it allows them to brag to
their local media about how they are keeping their constituents safe. Of course, the military-industrial
complex's new kid brother, the law enforcement-industrial complex, wields tremendous influence on
Capitol Hill. Even many so-called progressives support police militarization to curry favor with police

Reversing the dangerous trend of the militarization of local


police can start with ending all federal involvement in local law
enforcement. Fortunately, all that requires is for Congress to begin
following the Constitution, which forbids the federal government
from controlling or funding local law enforcement. However,
Congress will not restore constitutional government on its own ; the
unions.

American people must demand that Congress stop facilitating the growth of an authoritarian police state
that threatens their liberty.

Texas legislature is already solving in their state- Says


national level is only hurting
Frank Knaack 11 (A Glimmer of Hope in Texas' Approach to the War on
Drugs, JUNE 22, 2011 | 12:43 PM, https://www.aclu.org/blog/glimmer-hopetexas-approach-war-drugs, Accessed 7/17/15, EHS MKS)
June 2011 marks the 40th anniversary of President Richard Nixon's declaration of a "war on drugs" a war
that has cost roughly a trillion dollars, has produced little to no effect on the supply of or demand for drugs
in the United States, and has contributed to making America the world's largest incarcerator. Throughout
the month, check back daily for posts about the drug war, its victims and what needs to be done to restore

The federal government's failed "war on


drugs" has had a devastating impact on Texas. From the now infamous Tulia and
fairness and create effective policy.

Hearne drug arrest scandals, to the millions of dollars wasted through anti-drug trafficking programs,

Texas' drug policies have eroded our liberties and squandered our
tax dollars. But hope is not lost in Texas. While it's true that the state's close proximity to the horrific
"war on drugs"-related violence in Mexico has fueled the adoption of some "we must surrender our liberty
to ensure our security"-type legislation, there have been some positive changes as well. The cost of the
"war on drugs" has forced our legislators to look at alternatives to incarceration for nonviolent drug
offenders, and racial profiling scandals have forced needed changes in state laws governing criminal trials.
While we cannot count on a smart drug policy in Texas anytime soon, a glimmer of hope is finally on the
horizon. For starters, the need to rationally address Texas' massive corrections budget, in part fueled by
the large number of inmates sentenced for nonviolent drug offenses, has led to a number of positive
changes. The call for alternatives to incarceration, in Texas and across the country, has also benefited from
"a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat
their underlying addiction problems and can result in offenders cycling in and out of prisons for years."
Since

2003, the Texas Legislature has passed a number of bills aimed


at reducing the number of individuals incarcerated for nonviolent
offenses, including drug offenses. Instead of building new and costly prisons, the
legislature has increased the use of probation and provided
increased funding for nonviolent offenders to attend residential and
nonresidential treatment programs. And, as the numbers show, concerns about any
coinciding decrease in public safety are unfounded: as Right on Crime pointed out, " serious
property, violent, and sex crimes per 100,000 Texas residents have
declined 12.8 percent since 2003." And there's more good news! In response to drug
task force scandals in Tulia, Hearne, and elsewhere involving the falsifying of government records, witness
tampering, fabricating evidence, stealing drugs from evidence lockers, selling drugs to children, and largescale racial profiling, the Texas Legislature passed legislation that prohibits the conviction of people for
drug offenses based solely on the word of an undercover informant. Many of the innocent individuals
(mostly African-American men) in those cases were convicted based on testimony by sworn officers and
informants with checkered pasts (to put it nicely). So, while we still face the old and discredited zero-sum

progress has been made in Texas to reduce the


negative impact of the 40 year-old "war on drugs" for all Texans. Thus, hope is not lost!
security/liberty rhetoric, real

Cant stop government data collection on companies


subpoena power can bypass the fourth amendment and
violate the rights of Americans
KRAVETS 15 (David Kravets is a WIRED senior staff writer and founder of the
fake news site TheYellowDailyNews.com. He's a dad of two boys and has been a
reporter since the manual typewriter days, We Dont Need No Stinking Warrant: The
Disturbing, Unchecked Rise of the Administrative Subpoena, 08.28.12,
http://www.wired.com/2012/08/administrative-subpoenas/ - JD)

But by law, utilities must hand over customer records which include any
billing and payment information, phone numbers and power consumption
data to the DEA without court warrants if drug agents believe the data is
relevant to an investigation. So the utility eventually complied, after losing
a legal fight earlier this month. Meet the administrative subpoena (.pdf): With a federal
officials signature, banks, hospitals, bookstores, telecommunications companies and even utilities
and internet service providers virtually all businesses are required to hand over
sensitive data on individuals or corporations, as long as a government agent
declares the information is relevant to an investigation . Via a wide range of laws,
Congress has authorized the government to bypass the Fourth Amendment
the constitutional guard against unreasonable searches and seizures that requires a probable-cause
warrant signed by a judge. In fact, there are roughly 335 federal statutes on the books (.pdf) passed by
Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena,
according to interviews and government reports. (.pdf) I think this is out of control. What has happened
is, unfortunately, these statutes have been on the books for many, many years and the courts have

federal officials
from a broad spectrum of government agencies issue them hundreds of
thousands of times annually. But none of the agencies are required to
disclose fully how often they utilize them meaning there is little, if any,
oversight of this tactic thats increasingly used in the war on drugs, the war
on terror and, seemingly, the war on Americans constitutional rights to
be free from unreasonable government trespass into their lives. Thats despite
proof that FBI agents given such powers under the Patriot Act quickly began to
abuse them and illegally collected Americans communications records,
including those of reporters. Two scathing reports from the Justice Departments
Inspector General uncovered routine and pervasive illegal use of
administrative subpoenas by FBI anti-terrorism agents given nearly carte
blanche authority to demand records about Americans communications with
no supervision. When the 9th U.S. Circuit Court of Appeals, perhaps the nations most liberal appeals
acquiesced, said Joe Evans, the utilitys attorney. Anecdotal evidence suggests that

court based in San Francisco, ordered Golden Valley to fork over the data earlier this month, the court said
the case was easily decided because the records were relevant to a government drug investigation.

DEA may then use further administrative


subpoenas to acquire the suspected indoor-dope growers phone records,
stored e-mails, and perhaps credit-card purchasing histories all to build a
case to acquire a probable-cause warrant to physically search their homes
and businesses. But the administrative subpoena doesnt just apply to utility
records and drug cases. Congress has spread the authority across a huge
swath of the U.S. government, for investigating everything from hazardous waste disposal, the
With the data the Alaska utility handed over, the

environment, atomic energy, child exploitation, food stamp fraud, medical insurance fraud, terrorism,
securities violations, satellites, seals, student loans, and for breaches of dozens of laws pertaining to fruits,
vegetables, livestock and crops. Not one of the government agencies with some of the broadest
administrative subpoena powers Wired contacted, including the departments of Commerce, Energy,
Agriculture, the Drug Enforcement Administration and the FBI, would voluntarily hand over data detailing
how often they issued administrative subpoenas. The Drug Enforcement Administration obtained the
power under the Comprehensive Drug Abuse Prevention and Control Act of 1970 and is believed to be
among the biggest issuers of administrative subpoenas. Its a tool in the toolbox we have to build a drug
investigation. Obviously, a much, much lower threshold than a search warrant, said Lawrence Payne, a
DEA spokesman, referring to the administrative subpoena generically. Payne declined to discuss individual
cases. Payne said in a telephone interview that no database was kept on the number of administrative
subpoenas the DEA issued. But in 2006, Ava Cooper Davis, the DEAs deputy assistant administrator, told
a congressional hearing, The administrative subpoena must have a DEA case file number, be signed by

the investigators supervisor, and be given a sequential number for recording in a log book or computer
database so that a particular field office can track and account for any administrative subpoenas issued by
that office. After being shown Davis statement, Payne then told Wired to send in a Freedom of
Information Act request, as did some of the local DEA offices we contacted, if they got back to us at all.
Would suggest a FOIA request to see whether you can get a number of administrative subpoenas. Our
databases have changed over the years as far as how things are tracked and we dont have access to
those in public affairs unfortunately, Payne said in an e-mail. He said the agency has never been asked
how many times it issued administrative subpoenas. Amy Baggio, a Portland, Oregon federal public
defender representing drug defendants for a decade, said DEA agents use these like a doctors
prescription pad on their desk. Sometimes, she said, they issue hundreds upon hundreds of them for a
single prosecution often targeting mobile phone records. They

are using them


exponentially more in all types of federal criminal investigations. Im seeing
them in every drug case now, Baggio said. Nobody is watching what they are
doing. I perceive a complete lack of oversight because there isnt any required.

SOD Surveillance uses illegal means to find suspects and


can get away with it This allows the DEA to circumvent
existing laws
Ungar 13 (Rick Ungar in addition to the pages of Forbes.com, can be found
me every Saturday morning on your TV arguing with my more conservative
colleagues on "Forbes on Fox" on the Fox News Network and at various other
times during the week serving as a liberal talking head on other Fox News
and Fox Business Network shows. He also serves as a Democratic strategist
with Mercury Public Affairs, More Surveillance Abuse Exposed! Special DEA
Unit Is Spying On Americans And Covering It Up, AUG 5, 2013,
http://www.forbes.com/sites/rickungar/2013/08/05/more-surveillance-abuseexposed-special-dea-unit-is-spying-on-americans-and-covering-it-up/ -JD)

As Americans sort through their feelings regarding the disclosure of the


massive collection of metadata by the National Security Administration, we
are now learning of what may be a far more insidious violation of our
constitutional rights at the hands of a government agency. Reuters is
reporting that a secret U.S. Drug Enforcement Administration branch has
been collecting information from intelligence intercepts, wiretaps,
informants and a massive database of telephone records and disseminating
the data to authorities across the nation to help them launch criminal
investigations of Americans. In this case, the Americans who are being
subjected to these investigations are suspected drug dealers. The unit of the
DEA that is conducting the surveillance is known as the Special Operations
Division (SOD) and is made up of a partnership of numerous government
agencies including the NSA, CIA, FBI, IRS and the Department of Homeland
Security. While there are suggestions that elements of the program may be
legal, there is obvious concern on the part of those running the programa
concern that has not prevented them from going ahead with the collecting
and using of covertly gathered datathat the surveillance effort may not be
entirely kosher. We know this to be true because, according to documents
reviewed by Reuters, DEA agents are specifically instructed never to reveal

nor discuss the existence and utilization of SOD provided data and to further
omit the SODs involvement from investigative reports, affidavits,
discussions with prosecutors and courtroom testimony. Agents are instructed
to then use normal investigative techniques to recreate the information
provided by SOD. The last line of the directive is particularly disturbing. By
instructing agents to use normal investigative techniques to recreate the
information provided by SOD, law enforcement is being instructed to flat out
lie when disclosing how they came across the tips or other information
provided by SOD leading to an arrest. These agents are directed to give
substance to the lie by fabricating a false source or method utilized to gain
information leading to an arrest. In law enforcement parlance, it is called
parallel construction. Accordingly to a former federal agent, the SOD tip
system works as follows: Youd be told only, Be at a certain truck stop at a
certain time and look for a certain vehicle. And so wed alert the state police
to find an excuse to stop that vehicle, and then have a drug dog search it.
When the SOD tip leads to an arrest, the agents then pretend that the drug
bust was the surprise result of pulling the vehicle over as a routine traffic
stop. So secretive is the program, SOD requires that agents lie to the judges,
prosecuting attorneys and defense attorneys involved in a trial of a defendant
busted as a result of SOD surveillancea complete and clear violation of
every Americans right to due process, even when that American is a low-life
drug dealer.

Movements against the state


The FBI has a history of surveiling black activists- no
proof that they will stop post plan
NADIA KAYYALI 14 (The History of Surveillance and the Black Community,
FEBRUARY 13, 2014, https://www.eff.org/deeplinks/2014/02/historysurveillance-and-black-community, Accessed 7/16/15, EHS MKS)
Black History Month and that history is intimately linked with surveillance
by the federal government in the name of "national security." Indeed, the history of
February is

surveillance in the African-American community plays an important role in the debate around spying today
and in the calls for a congressional investigation into that surveillance. Days after the first NSA leaks
emerged last June, EFF called for a new Church Committee. We mentioned that Dr. Martin Luther King, Jr.,
was one of the targets of the very surveillance that eventually led to the formation of the first Church
Committee. This Black History Month, we should remember the many African-American activists who were
targeted by intelligence agencies. Their stories serve as cautionary tales for the expanding surveillance
state. The latest revelations about surveillance are only the most recent in a string of periodic public

This spying has often


targeted politically unpopular groups or vulnerable communities, including
anarchists, anti-war activists, communists, and civil rights leaders. Government
surveillance programs, most infamously the FBIs COINTELPRO, targeted Black
Americans fighting against segregation and structural racism in the
1950s and 60s. COINTELPRO, short for Counter Intelligence Program, was started in 1956 by the
FBI and continued until 1971. The program was a systemic attempt to infiltrate, spy on, and
disrupt activists in the name of national security . While it initially focused on the
Communist Party, in the 1960s its focus expanded to include a wide swathe of activists, with a strong
focus on the Black Panther Party and civil rights leaders such as Dr. Martin
Luther King, Jr. FBI papers show that in 1962 the FBI started and rapidly continued to gravitate
toward Dr. King. This was ostensibly because the FBI believed black organizing was being
influenced by communism. In 1963 FBI Assistant Director William Sullivan recommended
increased coverage of communist influence on the Negro. However, the FBIs goal in
targeting Dr. King was clear: to find avenues of approach aimed at
neutralizing King as an effective Negro leader, because the FBI was
concerned that he might become a messiah. The FBI subjected Dr. King to a variety
of tactics, including bugging his hotel rooms, photographic surveillance, and
physical observation of Kings movements by FBI agent s. The FBI's actions went
beyond spying on Dr. King, however. Using information gained from that surveillance,
the FBI sent him anonymous letters attempting to blackmail him into
suicide. The agency also attempted to break up his marriage by sending selectively edited personal
moments he shared with friends and women to his wife. T he FBI also specifically targeted
the Black Panther Party with the intention of destroying it . They infiltrated the Party
with informants and subjected members to repeated interviews. Agents sent anonymous
letters encouraging violence between street gangs and the Panthers in
various cities, which resulted in the killings of four BPP members and
numerous beatings and shootings, as well as letters sowing internal dissension in the Panther
debates around domestic spying perpetrated by the NSA, FBI, and CIA.

Party. The agency also worked with police departments to harass local branches of the Party through raids
and vehicle stops. In one of the most disturbing examples of this, the FBI provided information to the
Chicago Police Department that aided in a raid on BPP leader Fred Hamptons apartment. The raid ended

The FBI was not alone in targeting civil


rights leaders. The NSA also engaged in domestic spying that included Dr. King. In an
with the Chicago Police shooting Hampton dead.

eerily prescient statement, Senator Walter Mondale said he was concerned that the NSA could be used by
President 'A' in the future to spy upon the American people, to chill and interrupt political dissent.

Mann act
TVPA isnt going away- means the aff cant access
solvency
DONNA M. HUGHES 08
(Protecting trafficking victims, March 12, 2008
8:00 AM, http://www.nationalreview.com/article/223881/wilberforce-can-freeagain-donna-m-hughes, Accessed 7/16/15, EHS MKS)
Protecting trafficking victims. The nations most recent political sex scandal New York governor Eliot
Spitzers involvement with a high-end call-girl ring will doubtless provide much fodder for the late-night
comedy shows. But American prostitution is no laughing matter: The victimization of women and girls, and
sometimes men and boys, by pimps has been widely recognized throughout U.S. history. In the mid-1800s,
Congress passed a law criminalizing the importation of aliens for prostitution. In the early 1900s as part of
the first international movement against sex trafficking, Congress passed the Mann Act, a law criminalizing

Congress
passed the Trafficking Victims Protection Act (TVPA), making the pimping of
persons under the age of 18, or pimping by means of fraud, force, or
coercion, a serious federal felony. (Pimping is an informal term for what the
TVPA 2000 calls sex trafficking: The recruitment, harboring, transportation, provision, or
the act of transporting persons across state lines for the purpose of prostitution. In 2000,

obtaining of a person for the purpose of a commercial sex act.) And in 2006, the Adam Walsh Child
Protection and Safety Act created new federal anti-trafficking crimes and enhanced the penalties of the
Mann Act. In December, the House of Representatives passed the William Wilberforce Trafficking Victims
Protection Reauthorization Act by a vote of 405 to 2.

The legislation modernizes and


harmonizes existing federal laws against pimping to create a new set of
criminal statutes, which will make the prosecution of sex-trafficking offenses
easier and more efficient. It also creates a new international standard as a
model for other countries. THE ANTI- ANTI-TRAFFICKING MOVEMENT Now the bill is in the Senate,
where the same groups who opposed its passage in the House are rallying forces to derail it. Critics of the
House-passed Wilberforce Act allege that it will federalize anti-trafficking efforts. The Washington Post
claims it will send FBI agents on the trail of pimps, and sources in the story claim it will cause all
prostitutes to be considered victims of trafficking. Laurence E. Rothenberg, deputy assistant attorney
general at the Office of Legal Policy, made a related charge before the House Judiciary Committee: The

federal government cannot prosecute every prostitution case. None of these


objections holds water. In fact, FBI agents have been on the trail of pimps for
decades, bringing down major prostitution rings and arresting sexual predators, particularly those that
exploit children or work in organized networks. Last year, through the Department of Justices Innocence
Lost Initiative, which targets perpetrators of child sex trafficking, the FBI carried out 125 investigations that
resulted in 308 arrests, 55 indictments, and 106 convictions of sex traffickers who exploited children. Most
of these perpetrators were American pimps. Also, the reforms do not conflate pimping with prostitution.
They target sexual predators the recruiters and organizers of prostitution/sex trafficking operations who
routinely brutalize and destroy the lives of young women and corrupt local communities. The proposed bill
does not involve the federal government in non-pimping prostitution offenses. Sex-worker-rights groups
and pimps, not surprisingly, also oppose the act. The Sex Workers Outreach Project and the Erotic Service
Providers Union held a demonstration against the bill outside the office of Rep. Tom Lantos, the prime
sponsor of the bill in the House before his death earlier this year. Most of the debate and misunderstanding
of the Wilberforce Act is centered on the requirement of proving that force, fraud, and coercion

The TVPA severe form of trafficking


statute requires the use of force, fraud, or coercion on an adult victim, while
the Mann Act (the federal law against transporting a person across states
lines for purposes of prostitution) does not require that the perpetrator to use
force, fraud, or coercion. These statutes will be brought together in the criminal code to create
compelled victims to engage in commercial sex acts.

two levels of sex trafficking: sex trafficking (without force, fraud, and coercion) and aggravated sex
trafficking (with force, fraud, and coercion). Also, the Wilberforce Act will change the older Mann Act
statute by eliminating its transportation-of-victims requirement and substituting in the TVPAs in or
affecting interstate or foreign commerce requirement. When transportation across state lines is not

provable, prosecutors will no longer need to show brutality or acts of fraud, force, or coercion such acts
will increase the punishment of a pimp rather than being the sole basis of conviction. In addition, one of
the biggest challenges to prosecuting cases of sex trafficking is getting victims to cooperate or testify
against brutal pimps. These reforms will make it possible to bring multi-defendant cases against pimps.
THE MESSAGE WE SEND When sex trafficking is a federal crime only when there is proof of force, fraud,
coercion, or the exploitation of a minor, this encourages states in the U.S. and foreign governments to
require high standards of proof for trafficking convictions. This type of law is supported by those favoring

the TVPA sex-trafficking statute would be


acceptable in the Netherlands, where prostitution is legal, because recruiting and exploiting
the legalization of prostitution. Currently,

women and men in prostitution is allowed as long as the victim cant prove that force, fraud, or coercion
was used or the victim is not underage. By defining prostitute recruitment as sex trafficking, the
Wilberforce Act will send a message that all pimping-related activities are illegal. In addition, the
Wilberforce Act will create a new standard for the evaluation of countries performance in combating sex
trafficking. Called the demand standard, countries will be assessed on whether they are making efforts
to reduce the demand for commercial sexual activities. The Wilberforce Act doesnt introduce radical new
laws, but rather pulls together a century and a half of laws and approaches. It sets a new standard for the
U.S. and a model for the world to oppose all forms of pimping. A broad coalition of groups recognizes the

November, they organized a lobby day in the House


that conveyed to members of Congress the passion and commitment with
which they supported these measures. They are now preparing to campaign
in the Senate to ensure the passage of this important bill.
historic importance of this bill. In

Repealing the MANN act may solve on a national level but


everyday surveillance of women doesnt stop post plan
Chemaly,14 (Sexual Surveillance of Women is a Consequence of
Conservative Norms, Not Liberal Social Mores 11/13/2014 4:49
pm,http://www.huffingtonpost.com/soraya-chemaly/sexual-surveillance-ofwomen-is-a-consequence-of-conservative-norms_b_6141032.html, Accessed
7/16/15, EHS MKS )
We live in an increasingly voyeuristic culture that affects us all, but, it turns out that

girls and women are watched secretly, without their consent, for male
sexual pleasure, much more than most care to think about or admit. From girls
and women who are being abused by spouses or fathers to women who have no idea
at all who is watching them. It happens to women in their apartments; in

changing rooms; department store rest rooms; supermarket


bathrooms; on public stairways and subway platforms; in sports
arenas and locker rooms; in police stations and in classrooms while
they teach. Last Spring, a solider in the U.S. army faced charges for filming
women cadets in showers. In July, Johns Hopkins Health System agreed to pay
$190 million to 8,000 women and girls after it was revealed that a doctor, Dr. Nikita
Levy, had filmed women during gynecological exams. He was a doctor there for 25
years. He wore a pen-shaped camera and took more than 1,200
videos, including 62 cases involving minors. During the same month,
students at the University of Delaware, almost all female, were offered free

counseling after it was revealed that male student had hidden video cameras
in school bathrooms. He had more than 1,500 recordings. Last month, a man
in a caf secretly set up a camera in a neighborhood restaurant's bathroom.
Yesterday, it was a man arrested for secretly filming "people" on tanning beds in a
Planet Fitness gym. Taken to another arena, what do people think non-

consensual, invasive ultrasounds legally mandated for women by maledominated state legislatures are? These are pictures of women's bodies,

taken against their will, for no good reason, in the exercise of


traditional, paternalistic male power. That these images are recategorized so
that they are not considered coercive surveillance is a discriminatory slight of hand
that comes with power. Betrayals like the one Freundel is charged with are
particularly profound. As with cases involving sexual transgressions in the other

conservative faiths, the military, schools and families, these intimate


violations, perpetrated by a trusted authority figure, do particularly deep
harm, not just to individuals, but to an entire community.

Women are surveyed in everyday life all the timerepealing the MANN act will do nothing to overcome the
idea of the male gaze
AUTUMN WHITEFIELD-MADRANO 13 (Ill Be Watching You: NSA
Surveillance and the Male Gaze, June 18, 2013,
http://thenewinquiry.com/blogs/the-beheld/ill-be-watching-you-nsasurveillance-and-the-male-gaze/, Accessed 7/17/15, EHS MKS)
I would give readers a quick 101 on the NSA surveillance scandal before I go on to make my point, but the
fact is, Ive got no facts. I saw the headlines, heard the occasional bits of cocktail party buzz, and saw a
flurry of blog postswhich I skimmed at best, or skipped altogethercrop up in my RSS feed. And then, I
shrugged. Apathy doesnt seem like the greatest reason to tune out of something that, intellectually and
politically speaking, enrages meor at least should enrage me, if rage were a rational response that arose
upon provocation of our most deeply held beliefs. But there it is: In a country whose founding principles
include freedom of expression, learning that the government iswhat, reading our e-mails? listening to our
phone conversations?this citizens response is meh. The longer this story has remained in the news, the

the reason the NSA


activities didnt upset me more on a visceral level, as opposed to an
intellectual one, was that my default assumption of day-to-day experience
was that I was being watched. Watched by Big Brother? Not so much. But
being watched, observed, surveyed, seen? Yes. Welcome to what its like to
be a woman, gentlemen. Consider the headline of this excellent piece by Laurie Penny in New
Statesman, spurred by the NSA revelations: If you live in a surveillance state for long
enough, you create a censor in your head . Its an incisive, uncomfortable truth, and its
more bizarre my apathy seemed to me. Until it didnt. I began to wonder if

made all the more uncomfortable when coupled with one of my favorite passages from John Bergers Ways

A woman must continually watch herself. Whilst she is walking


across a room or weeping at the death of her father, she can scarcely avoid
envisaging herself walking or weeping . From earliest childhood she has been
taught and persuaded to survey herself continually. Men look at women .
of Seeing:

Women watch themselves being looked at. This determines not only most relations between men and

The surveyor of woman in herself is


male: the surveyed female. Thus she turns herself into an object and most
particularly an object of vision: a sight. To conflate Penny and Berger: If you spend a lifetime
women but also the relation of women to themselves.

housing your internal surveyor, you might not be terribly surprised when you find that there are external
surveyors you hadnt considered. Not that women walk through our days consciously considering that men
might be looking at us. In fact, thats part of the point: Being seen becomes such a default part of the way
you operate that it ceases to be something you need to be actively aware of. Not that the cold slap of Hey,
baby is ever so far away as to keep women truly unaware of the public dynamic surrounding gender. In
urban areas (and plenty of non-urban areas too), we deal with street harassment so frequently that it

The
triumphant joke of the tinfoil-hat crowd rings frightfully true in the light of the
NSA activitiesjust because youre paranoid, doesnt mean theyre not after
youis yesterdays news to women. Am I actually being looked atspecifically by men, and
begins to feel difficult to overestimate just how much were actually being observed by passersby.

specifically as a womanevery time I leave my house? Probably not. But the expectation or possibility of
being seen has been there as long as I can remember. And the minute I think Ive slipped out of the
observation zoneby wearing a dowdy outfit that conceals my body, or simply by being in my own world
for a momenttheres a catcall there to remind me that even if Im not paranoid, that doesnt mean
theyrenot afterme (I hope!). But there, watching. Im trying to think of how Id process the news that our
for the people, by the people government can invade our privacy anytime it damn well pleases, if I
hadnt ever internalized the sensation of being observed. I imagine Id be more surprised, for starters, but I
also wonder if Im asking the wrong question here. As humans, we love little more than to watch each

Men are
observed toodifferently than women are, but its not like men are entirely
unaware that theyre being seen by others. Here I turn to Robin James, Ph.D., associate
other in a variety of ways (is TV anything other than controlled people-watching?).

professor of philosophy at UNC Charlotte: Im thinking that (properly masculine, i.e. white, etc.) men
experience surveillance in profoundly enabling ways, she wrote to me when I asked her to expand on a
Twitter exchange we had. [B]eing watched by someone who you know is your equal (that is, you watch
them, they watch you in return) is what reaffirms both of your statuses as equals, as subjects, etc. If your
gaze isnt returned in kind, that means youre not considered an equal, that youre not seen as a real

The point isnt that women


dont observe men, or that men dont observe one another, but that the
quality of the gaze is different. I dont walk down the street and feel like I have less cultural
weight than my male peers. But when youre 12the age I was when I heard my first
catcall from an adult man, and my young age here is hardly unusualyou do
have less cultural weight, you do have less power. You learn early on to
associate being observed for your femininity with powerlessness, and thats
not an easy mind-set to shed. (Which is exactly why street harassment has long been an
effective tool of oppression, but thats another story.) Broad strokes here: Men dont have that
experience. Rather, they didnt until it came out that the National Security
Agencya greater power than virtually every man in the countrycould
watch you whenever they pleased. Here are a few of the things that may result for women
member of society. All emphasis there is mine, and for a reason:

from objectification, whether it comes from others or internally as a result of being objectified by others:
Depression. Limiting ones social presence. Temporarily lowered cognitive functioning. (Of course, there are
also suggestions that self-objectification may boost some womens well-being. Another day, another post.)
When I look at these effects and compare them with where Im at intellectually about the NSA privacy
invasionsa shrinking of oneself versus righteous outward angerIm troubled. Would I feel more
righteous anger if I hadnt learned to absorb, possibly to my personal detriment, the effects of
objectification and tacitly accepted surveillance as something that just happens? And more importantly:
Has the collective energy of women been siphoned into this realm, leaving us less energy for, as they say,
leaning in? Im not saying that just because women might be used to being watched by men means that
were inherently blas about being watched by governmental bodies; in fact, Im guessing some women
are more outraged than they would be if they were male, even if theyre not directly connecting that
outrage with womanhood. (Also, I dont believe the male gaze to be wholly responsible for my indifferent
reaction here; its just the one thats relevant.) Lets also not forget that 56% of Americans deem phone
surveillance as an acceptable counterterrorism measure. And Im certainly not saying that we shouldnt be

not only are women more used to


being watched, we also have a worldwide history of dealing with our
governments jumping in where they dont belong. It feels invasive whether
that space is our phone line or our uterus. It just might not feel all that
surprising.
concerned about the NSA revelations; we should. But

Zero day
BACKDOOR CARDS WORK FOR THIS TOO
Only businesses can solvegovernment solutions take too
long
Spink Adrian Spink No date (What are Java Zero-Day Attacks and How Can
They Affect You?, NO DATE, http://www.findtheedge.com/general/what-arejava-zero-day-attacks-and-how-can-they-affect-you, accessed 7/16/15)
Secuity-Measures-NeededRecent months have seen a procession of Java zeroday attacks impact a wide variety of organisations. Simply put, zero-day
attacks occur when a problem with a piece of software is discovered and
exploited before the developer is even aware that there is an issue. Facebook,
Apple, Twitter and Microsoft have all recently disclosed compromised
computers, and many more firms have been hit but not gone public with the
information. The very nature of a zero-day attack means your systems could
be vulnerable in the period between the exploit being identified and the
patch being deployed by Oracle, the owners of Java. Its unlikely weve seen
the last of these exploits; Javas rich programming language wasnt designed
for a hostile Internet environment, so its likely more vulnerabilities will be
uncovered. There are also many other products running on our desktops that
could be susceptible to this style of attack, as has been shown by the recent
Internet Explorer zero-day issues. Traditional anti-virus and perimeter security
techniques do not offer complete protection for this reason, organisations
need to review their risk exposure, and plan their responses accordingly. So
what practical advice can we offer: 1. Remove Java? While many security
experts recommend the seemingly straightforward solution of disabling or
removing Java from browsers, but this is not always practical. Some firms will
be dependent on Java to run both internal and third party applications. For
large organisations, the cost and logistics of ensuring Java is disabled for
every browser may be prohibitive. Many browsers now offer the ability to
control how Java is handled, however, and the latest version of Java has
enhancements to the control panel settings that may offer you a solution with
a little tweaking. 2. Maximise your end-point security Anti-virus solutions will
protect you from the most common exploits once they have been identified,
but its even more important to ensure: You have full coverage across all your
end-points Security updates are installed on all endpoints quickly You have
zero-day and Host Intrusion Prevention features enabled 3. User Awareness
Educating your users about the potential risks, and how to avoid phishing
attacks, is a great way to reduce your exposure. 4. Protect your critical
information assets In the longer term, advanced persistent threats are likely
to increase. Firms need to ask themselves while making the assumption
that their network will be breached at some point in the future what
additional measures could be taken to protect critical information assets in
advance, and limit damage. Summary Zero day attacks are inevitable, so
buisnessess need to take steps to protect their data and systems well ahead
of time. Its tempting to put off thinking about these issues, but this is only

likely to magnify the amount of damage caused if your system is targeted in


the future.

NSA
Reforms fail the NSA will circumvent
Greenwald 14 (Glenn, lawyer, journalist and author he founded the
Intercept and has contributed to Salon and the Guardian, named by Foreign
Policy as one of the Top 100 Global Thinkers of 2013, CONGRESS IS
IRRELEVANT ON MASS SURVEILLANCE. HERES WHAT MATTERS INSTEAD,
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/)
All of that illustrates what is, to me, the most important point from all of this:
the last place one should look to impose limits on the powers of the U.S.
government is . . . the U.S. government . Governments dont walk around
trying to figure out how to limit their own power, and thats particularly
true of empires. The entire system in D.C. is designed at its core to
prevent real reform . This Congress is not going to enact anything
resembling fundamental limits on the NSAs powers of mass surveillance.
Even if it somehow did, this White House would never sign it. Even if all
that miraculously happened, the fact that the U.S. intelligence community
and National Security State operates with no limits and no oversight
means theyd easily co-opt the entire reform process . Thats what
happened after the eavesdropping scandals of the mid-1970s led to the
establishment of congressional intelligence committees and a special FISA
oversight courtthe committees were instantly captured by putting in
charge supreme servants of the intelligence community like Senators Dianne
Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch
Ruppersberger, while the court quickly became a rubber stamp with
subservient judges who operate in total secrecy. Ever since the Snowden
reporting began and public opinion (in both the U.S. and globally) began
radically changing, the White Houses strategy has been obvious. Its vintage
Obama: Enact something that is called reform so that he can give a
pretty speech telling the world that he heard and responded to their concerns
but that in actuality changes almost nothing, thus strengthening the
very system he can pretend he changed. Thats the same tactic as
Silicon Valley, which also supported this bill: Be able to point to something
called reform so they can trick hundreds of millions of current and future
users around the world into believing that their communications are now safe
if they use Facebook, Google, Skype and the rest. In pretty much every
interview Ive done over the last year, Ive been asked why there havent
been significant changes from all the disclosures. I vehemently disagree with
the premise of the question, which equates U.S. legislative changes with
meaningful changes. But it has been clear from the start that U.S.
legislation is not going to impose meaningful limitations on the
NSAs powers of mass surveillance, at least not fundamentally.

Private surveillance industry will continue post-plan


Mead, 2013
(Derek is an editor-in-chief for the Motherboard- a news company. Mass
Surveillance Is Big Business: Corporations Are as Good at Spying as
Governments. http://motherboard.vice.com/blog/mass-surveillance-is-bigbusiness-corporations-are-as-good-at-spying-as-governments. Date
Accessed- 7/14/15. Anshul Nanda.)
Data is the currency of surveillance, and it's not just the NSA and
GCHQ looking to cash in. As a newly released cache of documents and
presentation materials highlights, the private surveillance industry
is booming. More shocking is that many firms claim in their own corporate
PowerPoints that they've got capabilities that rival that of the government
giants. The document trove, called the Surveillance Industry Index (SII) and
released by Privacy International, and contains 1,203 documents from 338
companies in 36 countries, all of which detail surveillance technologies. Some
advertised capabilities are astounding: A firm named Glimmerglass, which
produces monitoring and repair equipment for undersea cables, touts in a
brochure that its equipment enables "dynamic selection and distribution of
signals for analysis and storage." Another firm, Elaman, advertises its line of
FinFisher IT intrusion products in another brochure. It reads like any other
brochure for tech products, with Elaman stating that the "FinFisher product
suite [aids] government agencies in collecting critical IT information from
target computers." The system is designed for anyone to use, the company
says; all users have to do is insert a USB dongle into a target computer and,
after a "short period of time," it will "extract information like usernames and
passwords, e-mails, files, and other critical system and network information
from Windows systems." That private companies are developing
advanced data-gathering and monitoring technology should come as
no surprise, especially when the NSA's reliance on private contractors
in the development of its own surveillance tech is well documented.
The surveillance industry, like many other sectors of the massive private
industry that supports law enforcement and governments worldwide, is
driving the state of the art forward. But what is surprising is how open the
industry actually is. As Privacy International notes in its
announcement of the SII, much of its documents are from its
"collection of materials and brochures at surveillance trade shows
around the world," as well as information from Wikileaks and Omega
Research Foundation. Surveillance companies are businesses, too, and like
weapons manufacturers who try to drum up business at major weapons
expos like Sofex, the surveillance industry has its fair share of trade shows
and glossy, superlative-laden promo materials. A screenshot from one linked
document Of course, that world isn't open to average consumers, which is
why SIIand previously, Wikileaks' Spy Files, among othersis eye-opening.
What's even more concerning than systems that guarantee "complete data
inflow from all networks" is who's buying it. And while all the brochures I've

read so far are careful to specify that surveillance tech is only for legal data
collection, "legal" is a very fluid term worldwide. Governments have
increasingly relied on data collection to hold onto power, and as our
own Meghan Neal detailed a few months ago, the surveillance needs of
dictators continue to be served by American companies despite embargoes.
During the Arab Spring, surveillance and internet control were major
tools used by governments to try to control dissent; most recently,
Sudan hit the internet kill switch in order to limit the spread of antigovernment info online. The flip side of that control is preemptive
surveillance and data collection. And while data-driven law enforcement
is currently in vogue in the Westa privacy battle all its ownthe
capabilities available on the thriving private surveillance market are
also available for regimes worldwide to crush encroachment in their
power. There's a very good reason that the UN High Commissioner called
privacy a human right earlier this year: The vast tools available to people
with enough money and network access are more capable of accessing
private information than ever before. And unless local laws say otherwise
what laws that haven't been circumvented or changed, that isthere's no
oversight of what someone might monitor. "There is a culture of impunity
permeating across the private surveillance market, given that there
are no strict export controls on the sale of this technology, as there
on the sale of conventional weapons," Matthew Rice, a research consultant
with Privacy International, told The Guardian. "This market profits off the
suffering of people around the world, yet it lacks any sort of effective
oversight or accountability. So when a company advertises that its
technology can rip phone call content straight off a cell network, it's doing so
with a sense of agnosticism. A firm might not sell tech to some guy off the
street, but when a guy like Moammar Gadhafi wants to pick up a bunch of
surveillance tech, foreign markets say yes. Again, aside from economic
embargoes and the like, the use of such technology is regulated by local
laws, and spying on political rivals or everyday folks may be legal, depending
on where it's used. It's a nice sentiment for firms looking to profit off of
surveillance. But for private citizens worldwide, and especially those living
under the most oppressive governments, the elimination of privacy is surely a
dangerous trend.

Legislation limiting surveillance provides cover to


continue surveillance- Freedom Act proves
Groll 15
Elias Groll, an assistant editor at Foreign Policy. A native of Stockholm,
Sweden, he received his undergraduate degree from Harvard University,
where he was the managing editor of The Harvard Crimson, Congress May
Have Passed the Freedom Act, But Mass Surveillance Is Alive and Well,
FOREIGN POLICY, http://foreignpolicy.com/2015/06/04/congress-may-havepassed-the-freedom-act-but-mass-surveillance-is-alive-and-well/,
06/04/15//SRawal

One useful way to think about the USA Freedom Act that President Barack Obama signed into law on Tuesday night is as a

By changing the way the NSA examines


domestic phone records, the agency is now able to make the
argument that it has undergone significant reforms in the aftermath
of the Edward Snowden revelations. By giving up the authority to
collect all American phone records, the agency has paid a small price
and gotten rid of a program that it had come to consider a burden,
anyway to keep its most important authorities intact. The full measure of
those powers were on prominent display in the New York Times on Thursday, when the paper reported that the
agency has expanded its warrantless surveillance of Americans
international Internet traffic to search for evidence of malicious
computer hacking. The NSA, the paper reported, has also partnered with the
FBI to provide federal investigators with intelligence about computer
intrusions carried out by foreign powers, according to documents provided by Snowden.
lightning-rod for the National Security Agency.

There is no evidence of outright wrongdoing in Thursdays reports, but they signal another expansion of the NSAs
authorities to collect data on the Internet. Sen. Patrick Leahy, the Vermont Democrat and ranking member of the Judiciary
Committee, said Thursdays report underscores the critical importance of placing reasonable and commonsense limits on
government surveillance in order to protect the privacy of Americans and that Congress should have an open,
transparent and honest debate about how to protect both our national security and our privacy. Jonathan Mayer, a
cybersecurity researcher, told the Times that FBI use of NSA data to combat cybercrime threatens to conflate the latters
intelligence gathering role with the formers law enforcement mandate. Thats a major policy decision about how to
structure cybersecurity in the U.S. and not a conversation that has been had in public, he said. In short, the Times report,

the NSA has directed some of its


most powerful tools toward cracking down on state-sponsored
hackers online. The agency now has the power to search the data
streams it has access to for snippets of code and other identifying
information to spot hackers and track their activities. It is doing so by relying on
one of its most important tools: Its position atop the global Internet infrastructure. The NSA has risen to
become the worlds most powerful intelligence agency in no small
part because a huge amount of the worlds Internet traffic flows
through the United States. Fiber optic cables carry large amounts of Internet data from one part of
which was published in conjunction with ProPublica, reveals that

the world to another, and when that traffic arrives in the United States, the NSA is there to have a look at it. Section 702
of the FISA Amendments Act governs parts of the NSAs relationship with U.S. telecommunications companies, and it is
through such companies that the NSA is able to access enormous troves of data for terrorism and foreign intelligence
purposes.

The NSA justifies increased surveillance based on secret


law- impossible to stop circumvention
Ackerman 15
Spencer Ackerman, national security editor for Guardian US. A former senior
writer for Wired, he won the 2012 National Magazine Award for Digital
Reporting, 6-1-2015, "Fears NSA will seek to undermine surveillance reform,"
Guardian, http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillancepatriot-act-congress-secret-law//SRawal
advocates fear the National Security Agency will attempt to
weaken new restrictions on the bulk collection of Americans phone
and email records with a barrage of creative legal wrangles , as the first
Privacy

major reform of US surveillance powers in a generation looked likely to be a foregone conclusion on Monday. The USA
Freedom Act, a bill banning the NSA from collecting US phone data in bulk and compelling disclosure of any novel legal
arguments for widespread surveillance before a secret court, has already been passed by the House of Representatives
and on Sunday night the Senate voted 77 to 17 to proceed to debate on it. Between that bill and a landmark recent ruling
from a federal appeals court that rejected a longstanding government justification for bulk surveillance, civil libertarians
think they stand a chance at stopping attempts by intelligence lawyers to undermine reform in secret. Attorneys for the

intelligence agencies react scornfully to the suggestion that they will stretch their authorities to the breaking point .

Yet
reformers remember that such legal tactics during the George W
Bush administration allowed the NSA to shoehorn bulk phone
records collection into the Patriot Act. Rand Paul, the Kentucky
senator and Republican presidential candidate who was key to
allowing sweeping US surveillance powers to lapse on Sunday night,
warned that NSA lawyers would now make mincemeat of the USA
Freedom Acts prohibitions on bulk phone records collection by
taking an expansive view of the bills definitions, thanks to a pliant, secret
surveillance court. My fear, though, is that the people who interpret this work at a place known as the
rubber stamp factory, the Fisa [court], Paul said on the Senate floor on Sunday. Pauls Democratic ally, Senator Ron
Wyden, warned the intelligence agencies and the Obama administration against attempting to unravel NSA reform. My

time on the intelligence committee has taught me to always be


vigilant for secret interpretations of the law and new surveillance
techniques that Congress doesnt know about, Wyden, a member of
the intelligence committee, told the Guardian. Americans were
rightly outraged when they learned that US intelligence agencies
relied on secret law to monitor millions of law-abiding US citizens.
The American people are now on high alert for new secret
interpretations of the law, and intelligence agencies and the Justice
Department would do well to keep that lesson in mind. The USA Freedom Act
is supposed to prevent what Wyden calls secret law. It contains a provision requiring congressional notification in the
event of a novel legal interpretation presented to the secret Fisa court overseeing surveillance. Yet in recent memory,

the US government permitted the NSA to circumvent the Fisa court


entirely. Not a single Fisa court judge was aware of Stellar Wind, the
NSAs post-9/11 constellation of bulk surveillance programs, from
2001 to 2004. Energetic legal tactics followed to fit the programs under existing legal authorities after internal
controversy or outright exposure. When the continuation of a bulk domestic internet metadata collection program risked

an internal NSA draft history


records that attorneys found a different legal rationale that
essentially gave NSA the same authority to collect bulk internet
metadata that it had
the mass resignation of Justice Department officials in 2004,

Body Cavity Searches

No Enforcement/Legal Redress
No enforcement in prisonssexual violence allowed to
continue
Buchanan 07
Kim Shayo Buchanan, Associate professor of Law and Gender Studies at USC Gould
School of Law who specializes in constitutional law, international and comparative
human rights law, prisoners rights, reproductive rights, race, gender and sexuality,
Impunity: Sexual Abuse in Womens Prisons, HARVARD LAW REVIEW,
http://www.law.harvard.edu/students/orgs/crcl/vol42_1/buchanan.pdf, Vol 42, 2007,
pp. 44-48//SRawal

sexual abuse by guards in womens prisons is so


notorious and widespread that it has been described as an
institutionalized component of punishment behind prison walls. 1
Women in prisons2 across the United States are subjected to diverse
and systematic forms of sexual abuse: vaginal and anal rape; forced
oral sex and forced digital penetration; quid pro quo coercion of sex
for drugs, favors, or protection; abusive pat searches and strip
searches; observation by male guards while naked or toileting;
groping; verbal harassment; and sexual threats.3 Guards and prisoners openly joke
In the United States,

about prisoner girlfriends and guard boyfriends. Women prisoners become pregnant when the only men they have
had contact with are guards and prison employees; often they are sent to solitary connementknown as the holeas
punishment for having sexual contact with guards or for getting pregnant. 4

Such open and obvious


abuses would seem relatively easy for a prison administration to
detect and prevent if it chose to do so. Prisons owe an afrmative
legal duty to protect their inmates against abuse.5 Congress and
forty-four states have criminalized all sexual contact between
guards and prisoners, regardless of consent.6 Nonetheless, within
womens prisons guards routinely commit serious sexual offenses
against the women in their custody. Government administrators
know that such abuse is occurring7 and acknowledge their duty to prevent it.8 However,
they have generally neglected to do much about it, as most prisons
have failed to adopt institutional and employment policies that
effectively prevent or reduce custodial sexual abuse.9 In most workplaces, an
employee who had sex on the job would be red. In prison, a report of custodial sexual abuse
is more likely to result in punishment or retaliation against the
prisoner than in disciplinary consequences for the guard. 10 One
might expect the law to furnish incentives for prisons to control such
unlawful acts by their employees, as it does for other civil defendants. It does not.11
Instead, as I demonstrate in this Article, a network of prison law rulesthe Prison Litigation Reform Act of 1995
(PLRA),12 governmental immunities, and constitutional deference work together to confer near-complete immunity
against prisoners claims. In the United States, both male and female prisoners are stereotyped as black;13 more than two
thirds of women in U.S. prisons are African American or Latina.14 In this Article, I consider how the gendered racialization
of women prisoners informs legal and institutional indifference to their treatment in prison. Like black women under

women in contemporary prisons are subjected to


institutionalized sexual abuse, while the law refuses to protect them
or provide redress.
slavery,15

No enforcement of prison reform laws- video-taping strip


searches and inadequate mental health services prove
Trounstine 14
Jean Trounstine, author/editor of five published books and many articles,
professor at Middlesex Community College in Massachusetts, and a prison
activist, 9-10-2014, "Videotaping Strip Searches in Jail Is Not Reform,"
Truthout, http://www.truth-out.org/opinion/item/26098-videotaping-stripsearches-in-jail-is-not-reform#//SRawal
Much has been written about Sheriff Michael J. Ashe of Hampden County as a heralded criminal justice reformer. Most
recently the Massachusetts Attorney General candidate, Warren Tolman, claimed support of Ashe with these words,Sheriff
Ashe

has been a leader in the Commonwealth on finding ways to


rehabilitate, treat mental illness and be proactive in instituting
criminal justice reforms. Even Judge Michael Ponser, the judge who ruled that Sheriffs Ashes
deplorable policy of videotaping strip-searches in the womens prison in
Chicopee was unconstitutional, also noted that Ashe has a good reputation running the
countys jails in the Conclusion to his Decision. But Debra Baggett, the plaintiff in the class-action case for 178
former and current detainees at the Chicopee jail has much to say about the place where
274 strip searches were videotaped. The lawsuit was filed by the law offices of Howard
Friedman in 2011 against Sheriff Michael J. Ashe and Assistant Superintendent Patricia Murphy of the Western
Massachusetts Regional Correctional Center in Chicopee and it contended that the searches violated the Fourth

These tapes, began in


mid-September 2008, and according to the suit, 68 percent of them show some or all
of the womens genitals, buttocks, or breasts. Per Friedmans law office website,
From September 15, 2008 to May 20, 2010, males held the camera for about 70% of
the strip searches. And the gender of the camera holder is not irrelevant in spite of the fact that men
Amendment which protects citizens from unreasonable searches and seizures.

were supposed to have their backs to the prisoners during the videotaping. As the judge pointed out, If youre going to

The jail contended that these


videotapes were used for safety reasons and to document a
potentially dangerous move from general population to the segregation unit. But as David
videotape something, its awfully hard not to view it.

Milton, an attorney for the women, said of the jail, in a telephone interview, No one couldnt identify a single place in the

the policies at
Chicopee certainly didnt look so progressive. She explained that Seg or the
Segregation Unit was multi-function; in other words, it was used
to isolate women with behavioral issues and supposedly to prevent
those with mental health issues from suicide. Baggett said to me, imagine being a
country that videotaped strip searches. Baggett, who is now living in Alabama, said that to her,

woman who had just lost her daughter or someone who had been raped a few hours before her arrestboth cases which
occurred during her jail stay in Segand imagine how distraught you might be. Then imagine a jail that decides to handle
such women with strip searches after they have been transferred from general population to Seg. From Think Progress,
These searches required a woman to run her fingers through her hair, remove dentures if she wore them, raise both
arms, lift her breasts, lift her stomach for visual inspection if she had a large mid-section, and remove any tampon or pad
if she were menstruating. She was then required to turn around, bend over, spread her buttocks, and cough. Then

Videotaped, because the jail contended


this was a necessity to stop possible infractions. In two phone interviews, Baggett
was very open about the fact that a Mental Health person was almost nonexistent in her experience in Seg. She never once saw a psychiatrist while she was
there. She said that medication for her mental health issues was taken
away when she entered WCC and she had a severe withdrawal from
being without it that led to restraints and pepper spray. She said
this kind of treatment exacerbated the issues that she suffered
from.
imagine being videotaped during those searches.

Abuses will continue- prisoners cant effectively access


legal redress
Buchanan 07
Kim Shayo Buchanan, Associate professor of Law and Gender Studies at USC Gould
School of Law who specializes in constitutional law, international and comparative
human rights law, prisoners rights, reproductive rights, race, gender and sexuality,
Impunity: Sexual Abuse in Womens Prisons, HARVARD LAW REVIEW,
http://www.law.harvard.edu/students/orgs/crcl/vol42_1/buchanan.pdf, Vol 42, 2007,
pp. 70-73//SRawal
With few, if any, exceptions, prisoners civil claims against correctional authorities for toleration of sexual abuse have
succeeded only when a large number of women testify to widespread abuses, and some guard witnesses break ranks to
corroborate the prisoners accounts that severe custodial sexual abuse was both widespread and publicly known within
the prison.199 When prison administrators seek to restrict male guards access to women prisoners in order to protect the
prisoners against sexual abuse, courts generally have upheld these institutional policies against guards employment

when a prisoner brings civil


claims on her own behalf, they are generally screened out or
rejected.202 Indeed, one commentator argues that juries are so reluctant
to award any damages to prisoners that they will not on basis that
prisoner was not credible because she had formed a plan to get
a transfer by reporting sexual activity with corrections officers; the
court found some of this activity not to have happened because it was uncorroborated, and stated that
other activity could only reasonably be described as consensual
discrimination claims,200 at least at the appellate level.201 However,

because the prisoner never tried to caught [the guards] off, scream, or yell). 70 Harvard Civil Rights-Civil Liberties Law
Review [Vol. 42 do so unless they believe the defendant has acted with such malice that punitive damages are
appropriate.203 Even when prisoners are able to prove that they have been raped, juries may tend to lowball prisoners
nonwage damages as an expression of disregard for them.204 For example, in Morris v. Eversley, 205 a jury convicted a

A civil jury awarded the


prisoner only $500 in compensatory damages and $7,500 in punitive
damages.206 The district court judge found the verdict generally inadequate, and ordered a new trial. The new
guard of sexually assaulting a female prisoner based on DNA evidence.

jury awarded $1,000 for compensatory damages and $15,000 for punitive damages. The judge, apparently frustrated by

the second jury


did not award much more. It is hard to imagine that Morris could be
made whole for the damages she suffered, including the loss of her
dignity, by a mere $500 or $1,000 in compensatory damages. . . . [A]
prisoner, even a former prisoner, is unable to recover a fair measure of
damages.207 Such inadequate jury awards reect the discredited
prejudicial racial and gender stereotypes by which low-status
women, especially black women, prostitutes, and prisoners, are
viewed as less likely to be harmed by sexual assault . Outside of the prison
context, damage awards for sexual assault are typically much higher . A recent survey of civil
actions for sexual assault resolved in state appellate courts between
2001 and 2004 found that damage awards in sexual assault cases
outside prison can range from nothing to well over one million
dollars. But in cases involving institutional liability, a signicant number of cases award compensatory damages of
this paltry award, wrote: I was bafed that the rst jury awarded such low amounts, and yet

$100,000 to $200,000. Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil As Bublick observes,
[i]nadequate damage awards may be a particular issue when the victim and the assailant are acquaintances or

The Prison Litigation


Reform Act The Prison Litigation Reform Act209 (PLRA) was
expressly designed to deter prisoner lawsuits. It was introduced in 1995 to respond to
partners, as they are by denition in cases of custodial sexual abuse 1.

congressional concern about the dramatic increase in prisoner litigation between 1980 and the mid-1990san increase
that, as commentators have noted, coincided with a dramatic increase in the incarcerated population in the United

The PLRA was not intentionally designed to block lawsuits for


custodial sexual abuse; rather, it was designed to address the
perceived problem of jailhouse lawyers who brought frivolous
lawsuits. In 1995, during the Senate debate over the bill, Senator Bob Dole cited a notorious prisoner lawsuit in
States.210

which a prisoner complained that the prison served chunky, rather than creamy, peanut butter.211 Numerous other
frivolous suits, such as claims arising from an unsatisfactory prison haircut and a desire for a particular brand of sneakers,
were also used during the PLRA debates as examples of the pressing need for special barriers to prisoner litigation.212
During the congressional debates, Senator Joe Biden pointed out that the PLRA would erect too many roadblocks to
meritorious prison lawsuits.213 He urged Congress not to lose sight of the fact that some of these lawsuits have merit
some prisoners rights are violated.214 Senator Biden pointed out that hundreds of women prisoners had been sexually
abused by dozens of guards, openly and for years, in Washington, D.C., prisons. He noted that this practice changed only
after their class action was successful.215 Despite Senator Bidens warnings, no amendment was adopted to protect the
right of prisoners to sue in the event of sexual abuse by guards. The PLRA is a status-based law that excludes almost all
prisoner claims from the courts.216 Like historical doctrines designed to deter rape average sentence given to Black
womens assailants is two years. The average sentence given to white womens assailants is ten years. Crenshaw, Sexual
Harassment, supra note 44, at 1471. complainants, black witnesses, and married women from bringing white men to
court, the PLRA establishes unique hurdles that are nearly impossible for prisoner plaintiffs to overcome. The most
damaging hurdle imposed by the PLRA is its grievanceexhaustion requirement.217 Like the marital privacy doctrine that
excluded wives claims from the courts in order to protect family government,218 this provision values the peace of

The grievance-exhaustion
provision requires inmates to exhaust internal prison grievance
procedures before they may bring their claims to an outside
authority, even if the procedures are complex, inefcient, unfair, or
incapable of offering a remedy for the prisoners claim.219 If the
prisoner has failed to do so, the litigation is dismissed . Thus a prison
is virtually insulated from prisoner litigation to the extent that its
grievance process is complex and time-consuming, its deadlines for
ling a grievance are brief,220 and the threat of retaliation deters
prisoners from using the process at all. In practice the grievance-exhaustion requirement
mind of those in power over the safety of those who are in their custody.

invites technical mistakes resulting in inadvertent noncompliance with the exhaustion requirement, and bar[s] litigants
from court because of their ignorance and uncounselled procedural errors.221 Unreasonably quick grievance deadlines
evoke the fresh complaint requirements of traditional rape doctrine.222 In New York, for example, the Department of
Corrections imposes a fourteen-day limit for ling any prisoner grievance, unless the grievance authority determines that

prisoner is in a consensual sexual


relationship with a guard, she is unlikely to express a grievance until
well after the guard becomes threatening or abusive, thus missing
the deadline.224 If she misses the grievance deadline, her litigation is dismissed. Furthermore,
prison grievance procedures offer no prospective relief to protect
the prisoner before she is raped. If a guard has merely threatened to assault the prisoner, offered
mitigating circumstances justify the delay.223 If a

a quid pro quo for sex, or groped her or if she did not think to preserve a DNA sample during her rapethe grievance

the PLRA still


requires the prisoner to report the abuse to her abusers colleagues
through an often-humiliating disciplinary procedure 226 that is likely
to result in retaliation. In addition to its grievance-exhaustion requirement, the PLRA further
hinders prisoner litigation by prohibiting any prisoner lawsuit
without a prior showing of physical injury.227 Some courts have raised this barrier
process will do nothing.225 Even though ling a grievance is futile in such circumstances,

even further by requiring that the physical injury be at least as serious as an injury that would meet the Eighth

Presumably, vaginal or anal rape would


sufce.229 On its face, however, the physical injury requirement appears to bar
prisoner claims for sexual abuse if no physical injury results.230 For
Amendments de minimis harm requirement.228

example, the text of this provision appears to bar claims that a prisoner was forced to perform or submit to oral sex, was
digitally penetrated, or was coerced into sexual compliance through threats or inducements without a beating.

Drones

No Enforcement
***There is no enforcement of drone regulation
Kinane 15
Ed Kinane, activist with the Upstate Drone Action, 2-17-2015, "Concerns over
domestic drones: spying, civil liberties abuse & accidents," RT English,
http://www.rt.com/op-edge/233043-commercial-drones-intelligence-agenciesabuse//SRawal
I think we should be very concerned about the abuse of the drones for
surveillance. Already we have US intelligence agencies like the FBI, NSA
gathering enormous amounts of surveillance data with very little control over
them. And weve seen that our intelligence agencies dont necessarily
respect out laws regarding these matters. Trying to enforce regulations is
very difficult especially when you go up against the NSA, the National
Security Administration, or the FBI, or Homeland Security. There is very little
in the way of enforcement. The FAA, the Federal Aviation Administration, is
already stretched very thin. And its not their function to be enforcing the
rules and regulations, and they dont have the means to do it. It is a very
risky situation were going intoWe would have many drones in the air
probably... how do we know which ones are doing what? It would give very
good cover to spy drones because were just used to spy drones because
were just used to seeing drones in the air. So we dont think of it when we
see drones that really are performing functions that are very inappropriate for
them.

Local Police will Use


Drone use would continue- local police and commercial
drones
Nelson 15
Steven Nelson, reporter at U.S. News & World Report, 2-24-2015, "FAA Wants
Local Cops to Be Drone Police," US News & World Report,
http://www.usnews.com/news/articles/2015/02/24/faa-wants-local-cops-to-bedrone-police//SRawal
See this peeking in your window? You can't shoot it, a federal official said Tuesday.

State and federal


officials droned on Tuesday about rules for increasingly popular
unmanned aircraft. Federal Aviation Administration official Mark Bury told dozens of state attorneys general
at an event in the nation's capital that his agency needs help enforcing federal rules on drones. Were hoping
that moving forward well be able to enlist the assistance of local
law enforcement in gathering information about operations of
unmanned aircraft that violate our regulations, said Bury, the FAAs assistant chief
counsel for regulations, during a panel discussion. We simply dont have the manpower," he
said. Last week, the FAA released proposed rules for commercial drones under 55 pounds. If adopted , the rules
would require licenses issued after knowledge tests and valid for
two years to use the aircraft and mandate that operators keep the
drones within eyesight and under 500 feet. Some rules are already in place that affect
use of small drones. Temporary air restrictions above stadiums hosting large
events, for example, already apply. Drones can perform an ever-expanding list of tasks, and
safeguards for privacy and public safety are only now catching up. Many possible applications of
drones aren't regulated. Mississippi Attorney General Jim Hood, who repeatedly solicited new hunting
buddies during this weeks National Association of Attorneys General meeting, asked about using the aircraft to pursue

Bury told Hood the FAA considered the issue but doesn't have a
strong regulatory interest. From [the FAAs] perspective, if
installation of a weapon, camera, whatever if safe operation is not
implicated, we dont really have an interest, he said.
prey.

Other Aerial Surveillance


Plan fails- law enforcement would move to powerful aerial
surveillance cameras
Timberg 14
Craig Timberg, national technology reporter for The Post, 2-5-2014, "Get the feeling
youre being watched? These eyes in the sky can track every person, vehicle in an
area for hours.," Washington Post,
http://www.washingtonpost.com/business/technology/new-surveillance-technologycan-track-everyone-in-an-area-for-several-hours-at-a-time/2014/02/05/82f1556e-876f11e3-a5bd-844629433ba3_story.html//SRawal
DAYTON, Ohio Shooter and victim were just a pair of pixels, dark specks on a gray streetscape .

Hair color,
bullet wounds, even the weapon were not visible in the series of
pictures taken from an airplane flying two miles above . But what the images
revealed to a degree impossible just a few years ago was location, mapped over time .
Second by second, they showed a gang assembling, blocking off access
points, sending the shooter to meet his target and taking flight after
the body hit the pavement. When the report reached police, it included a picture of
the blue stucco building into which the killer ultimately retreated , at
last beyond the view of the powerful camera overhead. Ive witnessed 34 of these, said Ross McNutt, the genial
president of Persistent Surveillance Systems, which collected the images of the killing in Ciudad Jurez, Mexico, from a
specially outfitted Cessna. Its like opening up a murder mystery in the middle, and you need to figure out what
happened before and after. As Americans have grown increasingly comfortable with traditional surveillance cameras ,

a
new, far more powerful generation is being quietly deployed that
can track every vehicle and person across an area the size of a small
city, for several hours at a time. Although these cameras cant read license
plates or see faces, they provide such a wealth of data that police,
businesses and even private individuals can use them to help
identify people and track their movements. Already, the cameras have been flown above
major public events such as the Ohio political rally where Sen. John McCain (R-Ariz.) named Sarah Palin as his running
mate in 2008, McNutt said. Theyve been flown above Baltimore; Philadelphia; Compton, Calif.; and Dayton in
demonstrations for police. Theyve also been used for traffic impact studies, for security at NASCAR races and at the
request of a Mexican politician, who commissioned the flights over Ciudad Jurez .

Defense contractors
are developing similar technology for the military, but its potential
for civilian use is raising novel civil liberties concerns. In Dayton,
where Persistent Surveillance Systems is based, city officials balked
last year when police considered paying for 200 hours of flights, in
part because of privacy complaints.

The police keeps the new powerful aerial surveillance


secret
Smith 14
Ms. Smith, 4-15-2014, "Record and rewind: Cops quietly test aerial
surveillance to track crime," Network World,
http://www.networkworld.com/article/2226742/microsoft-subnet/record-andrewind--cops-quietly-test-aerial-surveillance-to-track-crime.html//SRawal

aerial surveillance only


works if it is "looking at the right spot," cops have been testing a
new wide-area surveillance system that can watch, record and
rewind every outdoor activity that happens in a city, every person,
every car and every crime. It "is something of a time machine - the entire city is filmed and recorded
Because America apparently isn't enough of a surveillance society, and

in real time," reported The Center for Investigative Reporting (CIR). "Imagine Google Earth with a rewind button and the
ability to play back the movement of cars and people as they scurry about the city." Retired Air Force veteran Ross

McNutt previously helped build a wide-area surveillance system that


provided the military with a "360-degree eye in the sky " to "hunt down
bombing suspects in Iraq and Afghanistan." Although it wouldn't seem like there's a huge need to hunt down terrorists

decided law
enforcement in the U.S. also needed such "gaming-changing"
surveillance capabilities. Instead of needing such powerful surveillance to track suspected terrorists,
the Los Angeles County Sheriff's Department used it to track
necklace-snatchers, thieves similar to purse-snatchers, except they
were stealing necklaces. PSS high-resolution surveillance cameras were fitted to the belly of small
plane, giving the police the power to literally watch the entire city of Compton, CA. CIR said of the sample image :
"Persistent Surveillance Systems technology captures in real time a
necklace snatching and the getaway car that was involved." Those aerial
from above in the United States, McNutt, the creator of Ohio-based Persistent Surveillance Systems,

cameras can "record a 25-square-mile patch of Earth constantly-for up to six hours." Although the aerial surveillance isn't
as powerful as the unblinking, all-seeing 1.8-gigapixel camera of DARPA's ARGUS-IS, McNutt believes that in a few years,

technology will be able to cover an area about "as large as the


entire city of San Francisco." He told Gizmodo that his PSS system is like a "live version of Google
the

Earth, only with TiVo capabilities." "Our whole system costs less than the price of a single police helicopter and costs less
for an hour to operate than a police helicopter," McNutt told CIR. "But at the same time, it watches 10,000 times the area

L.A.
County Sheriff's Sgt. Doug Iketani told CIR, "The system was kind of
kept confidential from everybody in the public. A lot of people do
have a problem with the eye in the sky, the Big Brother, so in order
to mitigate any of those kinds of complaints, we basically kept it
pretty hush-hush."
that a police helicopter could watch." Why hadn't the citizens of Compton heard of the aerial surveillance?

Businesses sell info


Businesses will use drones for surveillance
Ray Henry, 7-6-2015, "Utility companies look to use drones for
surveillance, equipment inspection," SecurityInfoWatch,
http://www.securityinfowatch.com/news/14026747/utility-companies-look-touse-drones-for-surveillance-equipment-inspection
Power companies across the United States are testing whether small
drones can spot trouble on transmission lines or inspect equipment deep
inside hard-to-reach power plant boilers. That's just for starters. Researchers
and industry executives predict the drones could provide security
surveillance to deter vandalism on remote gear and make it safer for utility
workers to climb poles and towers. One of the country's largest power
companies, Southern Co., says it hopes drones can eventually identify
storm damage in the Southeast and allow it to increase its routine
inspections. About a dozen utility or service companies have sought
permission to use drones for similar purposes.

Business use drones


Whitlock 14
Craig Whitlock, covers the Pentagon and national security. He has reported for The
Washington Post since 1998, 10-16-2014, "FAA rules might allow thousands of
business drones," Washington Post, https://www.washingtonpost.com/world/nationalsecurity/faa-releases-proposed-rules-for-domestic-drone-use/2015/02/15/6787bdceb51b-11e4-a200-c008a01a6692_story.html//SRawal

Thousands of businesses could receive clearance to fly drones two


years from now under proposed rules that the Federal Aviation
Administration unveiled Sunday, a landmark step that will make automated flight more
commonplace in the nations skies. Meanwhile, the White House on Sunday issued presidential directive that will require
federal agencies for the first time to publicly disclose where they fly drones in the United States and what they do with the

the FAA regulations and the White


House order provide some basic rules of the sky that will govern who
can fly drones in the United States and under what conditions, while
attempting to prevent aviation disasters and unrestrained
government surveillance. The FAAs draft rules would make it
relatively simple for real estate agents, aerial photographers, police
departments, farmers and anyone else to fly small drones for work
purposes. Operators would need to pass a written proficiency test, register the drone and pay about $200
in fees but would not have to obtain a regular pilots license or
demonstrate their flying skills. The long-awaited regulations the FAA had been
drawing them up for several years are expected to lead to a
revolution in commercial aviation. But they must first undergo a lengthy period of public review
and comment that is projected to take at least until early 2017. Once the rules are finalized, the FAA
estimates that more than 7,000 businesses will obtain drone permits
within three years.
torrents of data collected from aerial surveillance. Together,

And these businesses and corporations will sell the info to


the government
Boghasian 03
Heidi Boghosian, executive director of the National Lawyers Guild and co-host of the
civil liberties radio show Law and Disorder, "The Business of Surveillance, Vol. 39,
No. 3, AMERICAN BAR PUBLICATION- Human Rights,
http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39
/may_2013_n2_privacy/the_business_of_surveillance.html, 2003//SRawal

Corporations routinely and readily hand over customers private


personal data, absent warrants, to government agencies often
without legal justification or beyond what was requested. The NSA
has collected records of phone calls of millions of individuals with
data provided by AT&T, Verizon, and BellSouth. Despite reports citing abuses of the
Patriot Act from the Justice Department Office of the Inspector General, su ch data collection is
authorized by legislation signed by Presidents Bush and Obama. Bush
issued an executive order authorizing the NSA to monitor phone calls, e-mails, Internet activity, text messaging, and other
communication involving any party believed by the NSA to be outside the United States, even if the other end of the
communication lies within the United States, without a warrant or other express approval. This executive order was issued
pursuant to congressional passage of the Authorization for Use of Military Force, presumably on the grounds that if the

Several
former officials and telecommunications workers have indicated that
the NSA program extends beyond the surveillance of those
suspected to be linked to foreign terrorists. A significant disclosure
came in 2005 when former technician Mark Klein revealed that AT&T
was cooperating with the NSA. The firm had installed a fiber optic
splitter at a San Francisco facility that made copies of Internet traffic
to and from AT&T customers, and gave them to the NSA.
president can order targeted assassinations, there is no reason why lesser intrusions should be limited.

SPOT (TSA Airports)

Agencies will use Racial Profiling


The aff does nothing The CBP, TSA, and ICE will still be
allowed to use racial profilingHorwitz 14
Sari Horwitz, covers the Justice Department and criminal justice issues nationwide for
The Washington Post, where she has been a reporter for 30 years, 12-5-2014, "Racial
profiling will still be allowed at airports, along border despite new policy," Washington
Post, http://www.washingtonpost.com/politics/racial-profiling-will-still-be-allowed-atairports-along-border-despite-new-policy/2014/12/05/a4cda2f2-7ccc-11e4-84d47c896b90abdc_story.html//SRawal

DHS officials pushed the White House and Justice Department to allow major
exclusions for prominent DHS agencies such as the TSA, Immigration
and Customs Enforcement, and Customs and Border Protection,
officials said. CBP, for instance, will still be allowed to use racial
profiling when conducting inspections at the countrys ports of
entry and interdictions of travelers at the border, officials said .
Some DHS officials also questioned the Justice Departments
authority to set policies for a separate federal agency. DHS Secretary
Jeh Johnson made the case in a series of high-level meetings,
arguing that while his department did not condone profiling,
immigration and customs agents and airport screeners needed to
consider a variety of factors to keep the nation safe, according to
officials familiar with his personal efforts. TSA officials, meanwhile, argued
that they should not be covered by the new limits on the grounds
that the TSA is not a law enforcement agency. We tend to have a very
specific clientele that we look for, said one federal official involved in immigration enforcement, who spoke
In recent months,

on the condition of anonymity to discuss internal deliberations. If you look at numbers, the vast majority of people we
deal with are Hispanic. Is that profiling, or just the fact that most of the people who come into the country happen to be
Hispanic?

Racial profiling in these agencies is still legally allowedMuslims will be targeted


Rhodan 14
Maya Rhodan, Web Reporter at Time Magazine, 12-8-2014, "New Federal
Racial Profiling Guidelines Worry Civil Rights Groups," TIME,
http://time.com/3623851/justice-department-racial-profiling-muslims-sikhsaclu//SRawal
carve-outssuch as screenings and inspections by the
Transportation Security Administration and U.S. Customs and Border
Protectionhave raised eyebrows among groups including the
American Civil Liberties Union, Muslim Advocates and the Sikh
Coalition. Its baffling that even as the government recognizes that
bias-based policing is patently unacceptable, it gives a green light
for the FBI, TSA, and CBP to profile racial, religious and other
But some

minorities at or in the vicinity of the border and in certain national


security contexts, and does not apply the Guidance to most state and local law enforcement, said Laura
Murphy, the director of ACLUs Washington legislative office. Muslim Advocates, a faith-based legal and
educational advocacy organization, echoed those sentiments. While these changes
are welcome, a statement reads, it is difficult to see how the guidance will
improve the lives of law-abiding American Muslims who are singled
out and targeted based on their faith, not evidence of wrongdoing, by the FBI,
Customs and Border Protection, and other law enforcement
agencies. The Department of Justice guidelines do not apply to
activities conducted by military, intelligence or diplomatic personnel .
Border screening activities are also not covered, which has been of particular concern to civil rights groups. After 9/11,
sweeping counterterrorism efforts were imposed that led Arab and Muslim Americansand some perceived to be Muslim
or Arabic such as South Asians and Sikhsto feel singled out and profiled by the federal government. A 2009 ACLU and

Arabs, Muslims and South Asians have been


disproportionately victimized through various government
initiatives including FBI surveillance, questioning, airline profiling
and no-fly lists.
Rights Working Group report found that

Other programs result in racial profiling


Leadership Conference 11
The Leadership Conference, coalition charged by its diverse membership of more
than 200 national organizations to promote and protect the civil and human rights of
all persons in the United States, The Reality of Racial Profiling,
http://www.civilrights.org/publications/reports/racial-profiling2011/the-reality-ofracial.html?referrer=https://www.google.com/, 2011//SRawal
-

Operation front line


Lower standard from probable cause to reasonable suspicion
Terrorists screening center

Another example of a federal program that involves racial profiling is


Operation Front Line (OFL). The stated purpose of OFL,47 which was instituted just prior to the
November 2004 presidential election, is to "detect, deter, and disrupt terror operations."48 OFL is a covert
program, the existence of which was discovered through a Freedom
of Information Act lawsuit filed by the American-Arab AntiDiscrimination Committee and the Yale Law School National Litigation Project.49 According to the 2009
ACLU/Rights Working Group report, data regarding OFL obtained from the Department of Homeland Security show that :
an astounding seventy-nine percent of the targets investigated were
immigrants from Muslim majority countries . Moreover, foreign nationals from Muslimmajority countries were 1,280 times more likely to be targeted than similarly situated individuals from other countries.
Incredibly, not even one terrorism-related conviction resulted from the interviews conducted under this program. What did
result, however, was an intense chilling effect on the free speech and association rights of the Muslim, Arab and South
Asian communities targeted in advance of an already contentious presidential election.50 Lists of individuals who

Inasmuch as
the overwhelming majority of those selected were Muslims, OFL is a
clear example of a federal program that involves racial profiling .
registered under NSEERS were apparently used to select candidates for investigation in OFL.51

Moreover, because OFL has resulted in no terror-related convictions, the program is also a clear example of how racial
profiling uses up valuable law enforcement resources yet fails to make our nation safer.52 Although Arabs and Muslims,

those presumed to be Arabs or Muslims based on their


appearance, have since 9/11 been targeted by law enforcement
and

authorities in their homes, at work, and while driving or walking,53


airports and border crossings have become especially daunting . One
reason for this is a wide-ranging and intrusive Customs and Border Patrol (CBP) guidance issued in July 2008 that states,
"in

the course of a border search, and absent individualized


suspicion, officers can review and analyze the information
transported by any individual attempting to enter . the United
States."(Emphasis added)54 In addition, the standard to copy documents belonging to a person seeking to enter
the U.S. was lowered from a "probable cause" to a "reasonable
suspicion" standard.55 Operating under such a broad and subjective
guidance, border agents frequently stop Muslims, Arabs, and South
Asians for extensive questioning about their families, faith, political
opinions, and other private matters, and subject them to intrusive
searches. Often, their cell phones, laptops, personal papers and books are taken and reviewed. The FBI's
Terrorist Screening Center (TSC) maintains a list of every person
who, according to the U.S. government, has "any nexus" to
terrorism.56 Because of misidentification (i.e., mistaking non-listed persons for listed persons) and overclassification (i.e., assigning listed persons a classification that makes them appear dangerous when they are not), this
defective "watch-list" causes many problems for Muslims, Arabs, and
South Asians seeking to enter the United States, including those
who are U.S. citizens.

No Enforcement
TSA regulation enforcement is ineffective- Sikh turbans
are still invasively searched despite better regulation
Leadership Conference 11
The Leadership Conference, coalition charged by its diverse membership of more
than 200 national organizations to promote and protect the civil and human rights of
all persons in the United States, The Reality of Racial Profiling,
http://www.civilrights.org/publications/reports/racial-profiling2011/the-reality-ofracial.html?referrer=https://www.google.com/, 2011//SRawal

Individuals wearing Sikh turbans or Muslim head coverings are also


profiled for higher scrutiny at airports. In response to criticism from Sikh
organizations, the Transportation Security Administration (TSA) recently
revised its operating procedure for screening head coverings at airports. The
current procedure provides that: All members of the traveling public
are permitted to wear head coverings (whether religious or not)
through the security checkpoints. The new standard procedures subject
all persons wearing head coverings to the possibility of additional security
screening, which may include a patdown search of the head covering.
Individuals may be referred for additional screening if the security
officer cannot reasonably determine that the head area is free of a
detectable threat item. If the issue cannot be resolved through a
pat-down search, the individual will be offered the opportunity to
remove the head covering in a private screening area.63 Despite this
new procedure, and TSA's assurance that in implementing it "TSA does not
conduct ethnic or religious profiling, and employs multiple checks and
balances to ensure profiling does not happen,"64 Sikh travelers report that
they continue to be profiled and subject to abuse at airports.65
Amardeep Singh, director of programs for the Sikh Coalition and a secondgeneration American, recounted the following experience in his June 2010
testimony before the Subcommittee on the Constitution, Civil Rights, and Civil
Liberties of the House Judiciary Committee: Two months ago, my family and I
were coming back to the United States from a family vacation in Playa Del
Carmen, Mexico. At Fort Lauderdale Airport, not only was I subjected to
extra screening, but so was [my 18 month-old son Azaad]. I was sadly
forced to take my son, Azaad, into the infamous glass box so that he could
[be] patted down. He cried while I held him. He did not know who that
stranger was who was patting him down. His bag was also thoroughly
searched. His Elmo book number one was searched. His Elmo book number
two was searched. His minimail truck was searched. The time spent
waiting for me to grab him was wasted time. The time spent going
through his baby books was wasted time. I am not sure what I am going
to tell him when he is old enough and asks why his father and grandfather
and soon himAmericans all threeare constantly stopped by the TSA
100% of the time at some airports.

Borders
Obama ignores the Immigration law- leads to detrimental
consequences
JAMES JAY CARAFANO 7/13/14 (Immigrants ignore U.S. immigration
laws because Obama won't enforce them, June 13 th, 2014,
http://www.washingtonexaminer.com/immigrants-ignore-u.s.-immigrationlaws-because-obama-wont-enforce-them/article/2550787, Accessed 7/16/15,
EHS MSK)
Today, the flood of unaccompanied minors illegally crossing the
border makes Napolitano's declaration look foolish. Last year, the
Department of Health and Human Services reported it had custody of about
2,000 minors who had entered illegally, without a parent. This year more than
52,000 unaccompanied children have been apprehended at the South Texas
border alone. Why the dramatic upsurge? It comes following the
president's 2012 declaration that his administration would defer,
virtually automatically, deportation of minors unlawfully present in the
U.S. Over the last year, coyotes have been using that promise as a
marketing tool for their people smuggling business. Coupling this
announcement with disastrous policies towards El Salvador, Honduras, and
Guatemala -- the three countries from which most of these children come -Obama has done much to undermine all the enforcement measures
that had stemmed the tide of illegal migration. Now Washington has
stepped in with three proposals to solve the problem. First, the president
has asked for $3.8 billion in emergency spending. That's a
laughable request intended mostly as a sound bite for the White
House to claim it is doing something. Little of the money would go
toward making the border more secure. A lot would go to hiring
immigration judges -- a two-year process that hardly qualifies as emergency
spending . If there are legitimate additional needs Congress should
just address them in the annual appropriations bill. Second, some
want to cut foreign aid to punish El Salvador, Honduras, and
Guatemala. But, Congress has to be careful not to gut programs that help
those nations battle the gangs and cartels that have made life there so
difficult. Indeed, by withholding security assistance funds over the last
few years, Washington has inadvertently fueled the problems many
Central Americans seek to flee. Third, there is a move to amend
current law to allow for expedited removal of minors from countries
that are noncontiguous with the United States. If done right, that
policy change would actually help over the long-term. Even under
expedited removal, U.S. officials must fully consider a childs safety in their
decision-making. After all, once the U.S. takes custody of a minor, its
responsible for that child. Today's border crisis offers an important lesson:

When an administration ignores the law or only pretends to enforce


it, no one pretends to obey it. The consequences are self-evident.

Arizona wont follow new border laws


Elizabeth Erwin 4/11 (Arizona lawmakers want to ignore President
Obama's executive orders, Mar 11, 2015 6:27 PM,
http://www.abc15.com/news/state/arizona-lawmakers-want-to-ignorepresident-obamas-executive-orders, Accessed 7/16/15,)
President Barack Obama has signed some big executive orders
lately. They've impacted guns and immigration, two issues Arizonans
clearly care about. But the approach some lawmakers are taking to keep us
from enforcing those rules has some questioning if the plan is even legal!
"The legislature wants to prevent enforcement of executive orders
and prevent enforcement of federal agency policy directives," said
attorney David Abner with Knapp & Roberts Law Firm. House Bill 2368 says
unless those orders have been voted on by Congress and signed into
law, Arizona wouldn't have to follow them. "It's political
grandstanding. There's nothing of substance to this. It's silly," Abner
said. "Well, unfortunately, it's a waste of time, somewhat ridiculous. In fact
very ridiculous," said House Minority Leader Bruce Wheeler. Wheeler voted
against the bill. He said the priorities of what gets floor time doesn't match
up with what Arizonans really need. "We ought to be addressing
education and jobs. Instead we're addressing these extremist bills,"
Wheeler said. Abner said even if this bill is signed into law there's no
way it would stand up in court. "If our state officials ignore federal law
they run the risk of prosecution by federal authorities," Abner said. ABC15
reached out to the bill's sponsors today for comment. We have not heard
back yet.

Decryption

Loopholes
Loopholes exist for the FBI and NSA
Cushing 14
Tim Cushing, Techdirt contributor, 12-5-14, "Ron Wyden Introduces Legislation
Aimed At Preventing FBI-Mandated Backdoors In Cellphones And Computers,"
Techdirt., https://www.techdirt.com/articles/20141204/16220529333/ronwyden-introduces-legislation-aimed-preventing-fbi-mandated-backdoorscellphones-computers.shtml//SRawal
the actual wording of the backdoor ban [pdf link], which has a couple of
loopholes in it. (a) IN GENERAL.Except as provided in subsection (b), no agency may mandate that a manufacturer,
Here's

developer, or seller of covered products design or alter the security functions in its product or service to allow the
surveillance of any user of such product or service, or to allow the physical search of such product, by any agency.

Subsection (b) presents the first loophole , naming the very act that Comey is
pursuing to have amended in his agency's favor . (b) EXCEPTION.Subsection (a)
shall not apply to mandates authorized under the Communications Assistance
for Law Enforcement Act (47 U.S.C. 1001 et seq.). Comey wants to alter CALEA or, failing
that, get a few legislators to run some sort of encryption-targeting legislation
up the Congressional flagpole for him. Wyden's bill won't thwart these efforts and it does leave
the NSA free to continue with its pre-existing homebrewed backdoor efforts -the kind that don't require mandates because they're performed off-site
without the manufacturer's knowledge.

They will still have access- government can still influence


companies
Newman 14
Lily Hay Newman, 12-5-2014, "Senator Proposes Bill to Prohibit GovernmentMandated Backdoors in Smartphones," Slate Magazine,
http://www.slate.com/blogs/future_tense/2014/12/05/senator_wyden_propose
s_secure_data_act_to_keep_government_agencies_from.html//SRawal
It's worth noting, though, that the Secure Data Act doesn't actually prohibit
backdoorsit just prohibits agencies from mandating them. There are a lot of
other types of pressure government groups could still use to influence the
creation of backdoors, even if they couldn't flat-out demand them. Here's the
wording in the bill: "No agency may mandate that a manufacturer, developer,
or seller of covered products design or alter the security functions in its
product or service to allow the surveillance of any user of such product or
service, or to allow the physical search of such product, by any agency."

Financial Surveillance

Banks can break the law


Will be circumvented by banks- ineffective SEC
enforcement
Kwak 11
James Kwak, An Associate Professor At The University Of Connecticut School
Of Law, Is Co-Author Of White House Burning, 12-14-2011, "Too Big to Stop:
Why Big Banks Keep Getting Away With Breaking the Law," Atlantic,
http://www.theatlantic.com/business/archive/2011/12/too-big-to-stop-why-bigbanks-keep-getting-away-with-breaking-the-law/249952//SRawal
Move along, nothing to see here. That's been the Wall Street line on the financial
crisis and the calamitous behavior that caused it, and that strategy has been
spectacularly successful. Since Spring 2010, financial institutions' predatory practices
have fallen off the front pages of newspapers, replaced by manufactured
fears of over-regulation and -- thanks to an assist from the European continent -- an Orwellian belief that
government debt lies at the root of our economic problems. Occasionally, a news event brings the need for financial
reform momentarily into the partial spotlight, like last week when Judge Jed Rakoff rejected a proposed settlement
between the SEC and Citigroup over a complex security called a CDO (actually, a CDO-squared) that the bank
manufactured and pushed onto investor clients solely so it could bet against it. In April 2010, when the SEC sued Goldman
over similar behavior, that was big-time news for weeks. But Citigroup's behavior in "Class V Funding III" was far worse.
The issue in the Goldman case was whether the bank properly disclosed that John Paulson, a hedge fund manager, was
involved in the selection of securities for the deal, because he wanted to bet against them. This time, Citigroup's own
proprietary "trading desk" asked its CDO "structuring desk" to create a debt instrument that it could bet against. The
trading desk came up with a list of securities to include in the new CDO and passed it on to the structuring desk, which in
turn sent it to a supposedly independent third party that would manage the CDO itself, called CSAC. In one email, the
person on the structuring desk overseeing the deal wrote, "This is [the CDO trading desk]'s prop trade (don't tell CSAC).
CSAC agreed to terms even though they don't get to pick the assets" (SEC complaint against Brian Stoker, paragraph 32.)
Half of the eventual CDO was based on securities chosen by Citi's trading desk (paragraph 42). (Yves Smith has more,
from the SEC's order against CSAC--which, by the way, is part of Credit Suisse, another big bank.) Of course, the
structuring desk didn't do this just as a favor to the trading desk: "On November 14, 2006, Stoker's immediate supervisor
informed Stoker that Stoker should take action to ensure that the structuring desk received 'credit for [the trading desk's]
profits' on Class V III" (complaint, paragraph 33). As is common in these cases, the SEC and Citi negotiated a settlement in
which the bank would pay $285 million ($190 million for its profits plus a $95 million penalty) but neither admit nor deny
the allegations. Judge Rakoff (who previously gave the SEC a hard time over a settlement with Bank of America over the
closing of the Merrill Lynch acquisition) refused to approve the settlement, saying that it offered no factual basis on which
to even decide whether it was fair, adequate, reasonable, and in the public interest (pp. 13-14). CAPTURED! The absence
of a factual basis is a decent legal argument, but I think what Rakoff is really taking aim at is the problem of regulatory
capture. For Citi, the settlement boiled down to two things: a $95 million penalty and a promise not to break the law in the
future. Anyone who can do basic arithmetic can see that it's worth it to break the law under those terms so long as you
have a two-thirds chance of getting away with it (and who thinks the SEC is catching more than one-third of all
violations?). And earlier in the case, Rakoff asked the SEC how often it has actually enforced the promise by a bank not to
violate the law in the future. The answer: never, at least not in the past ten years (pp. 22-23).In short, a settlement like
this seems to have exactly zero value as a deterrent. The SEC argues that it could lose at trial, but that doesn't justify a
settlement that is worth nothing to begin with. It argues that its resources are better spread across more cases, but many
times zero is still zero. So the real question is why the SEC wants these settlements so badly. Rakoff's take: after calling
the settlement, at most, "a mild and modest cost of doing business" for Citigroup, he continues, "It is harder to discern
from the limited information before the Court what the S.E.C. is getting from this settlement other than a quick headline"

Regulatory capture can occur for many reasons: outright bribery


and the hope of future job offers are possibilities, but so are ideological
conformity and the desire for good relationships and a peaceful life. The
result is the same, however: an agency that cannot or does not enforce the
public interest against powerful private actors . In that case, the only hope the public has is
(p. 11 in his order).

private lawsuits--hence Rakoff's desire for facts on the record that can help those suits proceed and his impatience with

The SEC seems to have taken this construction to


the height of absurdity in this week's settlement with Wachovia, which
neither admits nor denies rigging the market in municipal bond derivatives-even though it admitted criminal violations in a parallel settlement with the
Justice Department.
the "neither admit nor deny" convention.

Banks bend laws- government tries and protects economy


Packin 14
Nizan Geslevich Packin, Assistant Professor of Business Law, Zicklin School of Business, Baruch
College, City University of New York, Breaking Bad? Too-Big-To-Fail Banks Not Guilty As Not
Charged, Washington University Law Review,
http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6085&context=law_lawreview,
2014, Vol. 91 Issue 4, pp. 1092-1093//SRawal

In the years following the financial crisis, the media reported on largescaled
scandals in which the biggest banks were illegally involved. Nevertheless,
even after it had learned about these scandals, the U.S. government only
fined rather than prosecuted the relevant banks. This approach, which was
nicknamed too-big-to-jail, caused a great deal of anger and frustration.20
Trying to justify this policy, Attorney General Holder explained that the DOJ
cannot indict big financial institutions because doing so might harm the
economy. Holder, testifying before the Senate Judiciary Committee, said that
he is concerned that the size of some of these institutions becomes so large
that it does become difficult for us to prosecute them when we are hit with
indications that if we do prosecuteif we do bring a criminal chargeit will
have a negative impact on the national economy, perhaps even the world
economy.21 Some have argued that this declaration is unsurprising given
that in 1999, as Deputy Attorney General, Holder instructed prosecutors to
consider collateral consequences when determining whether or not to
prosecute corporations.22

Gets circumvented- Obama has waived punishments for


financial institutions
Sirota 14
David Sirota, an In These Times senior editor and syndicated columnist, is a staff writer at
PandoDaily who graduated from Northwestern Universitys Medill School of Journalism9-192014, "Is Obama Going Easy On Banks That Break the Law?," In These Times,
http://inthesetimes.com/article/17182/credit_suisse_wall_street_banks_above_the_law//SRawal

the Obama administration announced its proposal to waive


some of the possible sanctions against Credit Suisse. The little-noticed waiver, which was
Yet earlier this month,

outlined in the Federal Register, comes amid criticism that the Obama administration has gone too easy on major financial

Credit
Suisse operated an illegal cross-border banking business that knowingly and
willfully aided and assisted thousands of U.S. clients in opening and
maintaining undeclared accounts and in using sham entities to hide money .
Under existing Department of Labor rules, the conviction could prevent Credit Suisse from
being designated a Qualified Professional Asset Manag er. That designation exempts firms
from other federal laws, giving them the special status required to do business with many pension funds. The
Obama administration is proposing to waive those anti-criminal sanctions
against Credit Suisse, thereby allowing Credit Suisse to get the QPAM
designation needed to continue its pension business. The waiver proposal follows a larger
institutions that break the law. In its announcement outlining the waiver, the Department of Labor notes that

pattern. In June, Bloomberg News reported that federal prosecutors have successfully pushed U.S. government agencies
to allow Credit Suisse to avoid many regulatory sanctions that could have accompanied its criminal conviction. The

New York Fed said last month that the bank can continue handling
government securities as a so-called primary dealer, reported the news service. The
SEC let the firm continue as an investment adviser while the agency
considers a permanent waiver. Pensions and Investments magazine has reported that despite
Department of Labor assurances of tough enforcement of its sanctions
against convicted financial firms, the agency has granted waivers for all 23
firms seeking individual waivers since 1997. Critics say that by using such maneuvers, the
Obama administration is effectively cementing a too big to punish doctrine .
That criticism intensified in 2012 and 2013, when top Justice Department officials defended the administration's
reluctance to prosecute banks by publicly declaring that the government considers the potential economic impact of such
prosecutions. Those declarations echoed an earlier memo by Attorney General Eric Holder, which stated that officials
could take into account collateral consequences when deciding whether to prosecute major corporations. Why is the
Obama administration reducing sanctions on Credit Suisse? The administration says it is a decision based on pragmatism,
not favoritism. The Federal Register announcement, for instance, notes that Credit Suisse has assets of nearly $1 trillion,
and argues that if the anti-criminal provisions were enforced, the bank would lose its ability to offer investment products
to pension funds. The announcement also argues that the Credit Suisse entities that specifically conduct pension business
are independent of and not influenced by Credit Suisse AGs management and business activities. What the

employees
of Credit Suisse have given President Obama's campaigns more than
$376,000. That's particularly relevant in light of an April study of SEC data
from London Business School professor Maria M. Correia. That analysis
showed that politically connected firms are on average less likely to be
involved in enforcement action and face lower penalties if they are
prosecuted.
administration did not mention, of course, is that according to data compiled by the Sunlight Foundation,

FACTA
CIA can collect info about international money transfers
Gorman et al 14
Siobhan Gorman, Devlin Barrett and Jennifer Valentino-Devries, Gorman is a reporter
for The Wall Street Journal covering terrorism, counter terrorism, and intelligence and
Barett is staff reporter for the Wall Street Journal covering federal law enforcement
and security, Devries works on special projects for the Investigations group at The
Wall Street Journal, 1-25-2014, "CIA's Financial Spying Bags Data on Americans.
WSJ,
http://www.wsj.com/articles/SB10001424052702303559504579198370113163530//S
Rawal

The Central Intelligence Agency is building a vast database of international


money transfers that includes millions of Americans' financial and personal
data, officials familiar with the program say. The program, which collects
information from U.S. money-transfer companies including Western Union, is
carried out under the same provision of the Patriot Act that enables the
National Security Agency to collect nearly all American phone records, the
officials said. Like the NSA program, the mass collection of financial
transactions is authorized by a secret national-security court, the Foreign
Intelligence Surveillance Court. The CIA, as a foreign-intelligence agency, is
barred from targeting Americans in its intelligence collection. But it can
conduct domestic operations for foreign intelligence purposes. The CIA
program is meant to fill what U.S. officials see as an important gap in their
ability to track terrorist financing world-wide, current and former U.S. officials
said. The program serves as the latest example of blurred lines between
foreign and domestic intelligence as technology globalizes many activities
carried out by citizens and terrorists alike. The CIA program also
demonstrates how other U.S. spy agencies, aside from the NSA, are using the
same legal authority to collect data such as details of financial transactions.

SWIFT gives foreign bank information to the CIA and FBI


Lichtblau and Risen 06
Eric Lichtblau and James Risen, Lichtblau an American journalist and Washington bureau reporter for The New York Times
and Risen is an American journalist for The New York Times who previously worked for the Los Angeles Times 6-23-2006,
"Bank Data Is Sifted by U.S. in Secret to Block Terror," New York Times,
http://www.nytimes.com/2006/06/23/washington/23intel.html?pagewanted=1&_r=1&adxnnl=1&adxnnlx=1437145270dW19y5TsMerwdeYBVsXS9w

Data from the Brussels-based banking consortium, formally known as the


Society for Worldwide Interbank Financial Telecommunication, has allowed
officials from the C.I.A., the Federal Bureau of Investigation and other
agencies to examine "tens of thousands" of financial transactions, Mr. Levey
said. While many of those transactions have occurred entirely on foreign soil,
officials have also been keenly interested in international transfers of money
by individuals, businesses, charities and other groups under suspicion inside

the United States, officials said. A small fraction of Swift's records involve
transactions entirely within this country, but Treasury officials said they were
uncertain whether any had been examined.

CIA collects Americans financial information


RT 13
Russia Times, CIA monitors Americans' financial activities, RT English,
http://www.rt.com/usa/cia-monitors-americans-finances-796/, 11-1513//SRawal
The Central Intelligence Agency is collecting bulk records of international
money transfers, including the financial and personal data of millions of
Americans. Citing officials familiar with the programs, the Wall Street
Journal reported that the CIA and FBI collect financial information when
international transactions are filed through numerous money-transfer
companies, including MoneyGram and Western Union. As with the National Security
Agencys surveillance efforts, the CIAs actions are authorized under the 2001 Patriot Act and overseen by the same
Foreign Intelligence Surveillance Court that has sanctioned the collection of millions of Americans phone records and

the CIA is only permitted to


target American citizens in connection to foreign activity . Officials told the WSJ that the
intent of the program is to help track the flow of money financing terrorist
organizations around the world. The CIA does not collect information on transfers that occur within the
digital data. As an agency that specializes in foreign intelligence gathering,

United States or on those that take place bank-to-bank. The majority of the transactions recorded take place entirely
outside of the United States, the newspaper said, but

some do involve cash that enters or leaves


the country. In some cases, Social Security numbers are used in an attempt to
connect the flow of money to a single individual.

No Circumvention

FISA Isnt a rubber Stamp


FISC isnt a rubber stamp Multiple reasons as to why
warrant approval rate is so high
Clarke 14 (Conor Clarke, J.D. Candidate, Yale Law School, Is the Foreign
Intelligence Surveillance Court Really a Rubber Stamp? Ex Parte Proceedings
and the FISC Win Rate, February 28, 2014,
http://www.stanfordlawreview.org/online/foreign-intelligence-surveillancecourt-really-rubber-stamp-ex-parte-proceedings-and-fisc-win)

The fact that ex parte proceedings are lopsided in a broad range of


contextsand that there are good reasons to expect them to be lopsided
has several implications for the current debate over the FISC. First,
it gives us reason to be skeptical of other explanations for why the
FISC approves so many requests. For example, former FISC Judge
James Carr has written that the low FISA standard of probable
causenot spinelessness or excessive deference to the government
explains why the court has so often granted the Justice
Departments requests.[28] But if this were correct, we should expect
different approval rates when the requesting party needs to clear a higher
barsay, by justifying the warrant (probable cause) and delayed notice
(necessity) in Title III cases. We dont see this. It also casts doubt on the
relationship between the lopsided win rate and the political
affiliation of FISC judgesa common media suggestion.[29] If
Republican deference to the executive produced the FISC win rate, we should
also expect to see variation in win rates based on political affiliation in the
Title III and delayed-notice contexts (where data on individual judges are
available). Again, we dont. A second set of conclusions involves consistency.
There are good reasons to be skeptical of ex parte proceedings: they
are in tension with basic norms of due processthe right to notice,
to a hearing, to confront adversaries, and so forth. But if the FISCs ex
parte proceedings are troubling to some critics, those critics should explain
whether and why that skepticism extends to the Title III and delayed-notice
contexts. The governments win rate cant help distinguish among these
cases. Third, thinking about the lopsided win rate as a general
consequence of ex parte proceedings, rather than as a specific
problem of the FISC, offers perspective on the current FISC reform
proposals. In January 2014, President Obama suggested creating an
adversarial process for significant cases heard by the FISC[30]a
proposal that mirrors roughly similar proposals under consideration in
Congress.[31] These proposals highlight an important difference between the
FISCs ex parte work and the ex parte work of federal courts responding to
delayed-notice and Title III requests: FISC cases sometimes generate
precedent on novel questions of law. But these cases are also rareit has

been said that novel legal questions come before the FISC only [o]nce in a
very great while.[32] If this proposal is adopted, critics of the FISC
should be at peace with the fact that the judges will probably
continue to approve the vast majority of the executives routine
requests; in other words, adding an occasional adversary for the
most significant cases is unlike to affect the win rate. But the simplest
lesson of this analysis is that public discourse should stop focusing on
the rate with which the FISC approves applications. Ultimately, we
should care about the substance of what the court approves, not the
frequency with which it does so. And if the substance of what the
court does affects how the government selects applications, theres
no reason to think FISC reforms will change the win rate. Even an ex
parte process that has satisfied the FISCs most fervent critics might
continue to produce an outcome in which the government always
wins.

FISA could be reformed via a special advocate


Carr 13 (JAMES G. CARR, a former judge on the FISA Court, A Better Secret
Court, JULY 22, 2013, http://www.nytimes.com/2013/07/23/opinion/a-bettersecret-court.html)

OLEDO, Ohio CONGRESS created the Foreign Intelligence


Surveillance Court in 1978 as a check on executive authority. Recent
disclosures about vast data-gathering by the government have
raised concerns about the legitimacy of the courts actions. Congress
can take a simple step to restore confidence in the courts
impartiality and integrity: authorizing its judges to appoint lawyers
to serve the public interest when novel legal issues come before it.
The court is designed to protect individual liberties as the government
protects us from foreign dangers. In 1972, the Supreme Court ruled that the
Nixon administration had violated the Fourth Amendment by conducting
warrantless surveillance on a radical domestic group, the White Panthers,
who were suspected of bombing a C.I.A. recruiting office in Ann Arbor, Mich.
In 1975 and 1976, the Church Committee, a Senate panel, produced a series
of reports about foreign and domestic intelligence operations, including
surveillance by the F.B.I. of suspected communists, radicals and other
activists including, notoriously, the Rev. Dr. Martin Luther King Jr. The
Foreign Intelligence Service Act set up the FISA Court in response. To obtain
authority to intercept the phone and electronic communications of
American citizens and permanent residents, the government must
only show probable cause that the target has a connection to a
foreign government or entity or a foreign terrorist group. It does not
have to show, as with an ordinary search warrant, probable cause
that the target is suspected of a crime. For decades, the court worked

under the radar. That changed after 2005, when The New York Times
disclosed a National Security Agency program of surveillance of e-mail to and
from foreign countries. Though the surveillance was conducted outside of
FISA (Congress later specified that FISA court approval was required), the
disclosures brought the court to the publics attention. Criticism of the
court (on which I served for six years after 9/11, while the caseload grew
enormously) revived recently after revelations that the N.S.A.,
without court orders specifying individual targets, gathered troves
of data from companies like Google and Facebook. Critics note that
the court has approved almost all of the governments surveillance
requests. Some say the court is virtually creating a secret new body
of law governing privacy, secrecy and surveillance. Others have called
for declassified summaries of all of the courts secret rulings. James
Robertson, a retired federal judge who served with me on the FISA court,
recently called for greater transparency of the courts proceedings. He has
proposed the naming of an advocate, with high-level security clearance, to
argue against the governments filings. He suggested that the Privacy and
Civil Liberties Oversight Board, which oversees surveillance activities, could
also provide a check. I would go even further. In an ordinary criminal case,
the adversarial process assures legal representation of the defendant.
Clearly, in top-secret cases involving potential surveillance targets, a lawyer
cannot, in the conventional sense, represent the target. Congress could,
however, authorize the FISA judges to appoint, from time to time,
independent lawyers with security clearances to serve pro bono publico
for the publics good to challenge the government when an application for
a FISA order raises new legal issues. During my six years on the court,
there were several occasions when I and other judges faced issues
none of us had encountered before. A staff of experienced lawyers
assists the court, but their help was not always enough given the
complexity of the issues. The low FISA standard of probable cause
not spinelessness or excessive deference to the government explains
why the court has so often granted the Justice Departments
requests. But rapid advances in technology have outpaced the
amendments to FISA, even the most recent ones, in 2008. Having
lawyers challenge novel legal assertions in these secret proceedings
would result in better judicial outcomes. Even if the government got
its way all or most of the time, the court would have more fully
developed its reasons for letting it do so. Of equal importance, the
appointed lawyer could appeal a decision in the governments favor to the
Foreign Intelligence Surveillance Court of Review and then to the Supreme
Court. No opportunity for such review exists today, because only the
government can appeal a FISA court ruling. One obvious objection:
judges considering whether to issue an ordinary search warrant hear only
from the government. Why should this not be the same when the government
goes to the Foreign Intelligence Surveillance Court? My answer: the court is
unique among judicial institutions in balancing the right to privacy against
the presidents duty to protect the public, and it encounters issues of

statutory and constitutional interpretation that no other court does or can.


For an ordinary search warrant, the judge has a large and well-developed
body of precedent. When a warrant has been issued and executed, the
subject knows immediately. If indicted, he can challenge the warrant. He can
also move to have property returned or sue for damages. These protections
are not afforded to FISA surveillance targets. Even where a target is indicted,
laws like the Classified Information Procedures Act almost always preclude
the target from learning about the order or challenging the evidence. This
situation puts basic constitutional protections at risk and creates doubts
about the legitimacy of the courts work and the independence and integrity
of its judges. To avert these dangers, Congress should amend FISA to give the
courts judges the discretion to appoint lawyers to serve not just the interests
of the target and the public but those of the court as well.

FISA is not the problem It is the process


NPR 13 (Dina Temple-Raston reporting for NRP citing Joel Brenner, the
former general counsel at the National Security Agency, Mike German is with
the American Civil Liberties Union, FISA Court Appears To Be Rubber Stamp
For Government Requests, JUNE 13, 2013,
http://www.npr.org/2013/06/13/191226106/fisa-court-appears-to-berubberstamp-for-government-requests)

LINDA WERTHEIMER, HOST: It's MORNING EDITION, from NPR News. I'm Linda
Wertheimer. RENEE MONTAGNE, HOST: And I'm Renee Montagne. The NSA
leaks revealing the broad extent of U.S. surveillance programs are also
putting a spotlight on the special court that oversees them. It's called the
Foreign Intelligence Surveillance Court. Created by Congress in 1978 to
ensure the government doesn't abuse its surveillance powers, it operates in
secret. NPR's Dina Temple-Raston has this report on how the court works.
DINA TEMPLE-RASTON, BYLINE: The criticism of the Foreign Intelligence
Surveillance Court is simple: that it's a rubber stamp, and that the
government always gets what it wants. And here's a number that seem
to support that: 1,856. That's the number of applications presented to the
court by the government last year. And it's also the number that the court
approved: 100 percent success. But Joel Brenner, the former general counsel
at the National Security Agency, says this is not proof that the FISA court is a
rubber stamp. JOEL BRENNER: I can tell you that that court has taken a
wire brush to certain applications that have come before it. The idea
that somehow they put their stamp on everything the government
puts before them couldn't be farther from the truth. TEMPLE-RASTON:
To understand why every application seems to be approved, you have to
understand how the process works. The government goes to the FISA court
with a proposition. It tells the judge, for example, that the NSA wants to track
the phone calls and emails of someone they say is vital to an international

terrorism investigation. Basically, according to Brenner, the government


says... BRENNER: Here's what we'd like to do, and there follows a back and
forth and a discussion with a FISA judge, who, in many cases, has serious
questions about what is being done or how it's being done. TEMPLE-RASTON:
That FISA judge is a regular federal judge who presides over day-to-day
criminal and civil cases. In a FISA case, that judge is supposed to question the
government's case. Mike German is with the American Civil Liberties Union,
and he says that isn't enough. MICHAEL GERMAN: These are federal judges,
and deserve some respect. But it's the process that's broken. TEMPLERASTON: German is a former FBI agent, and now the ACLU's senior policy
counsel. GERMAN: I don't think it's necessarily a rubber stamp, but it's
just that it suffers from these fatal flaws. TEMPLE-RASTON: There are
two fatal flaws, according to civil liberties groups. The first is that
the court is secret. To get an idea of how secret, the leaked
document about the NSA asking to collect Verizon phone records
was a FISA order. One had never been seen publicly before. The
second problem, the ACLU's Mike German says, is that the process isn't
adversarial. There isn't the equivalent of a defense attorney to
challenge the prosecution's version of events. It's just the
prosecution talking to the judge - a little like the grand jury process.
GERMAN: You have a prosecutor who goes in a room with 23 grand
jurors to indict somebody, but the process - because it isn't
adversarial - often doesn't come to the right result. JENNIFER DASKAL:
There are certain things that just can't be adversarial. They don't work that
way. TEMPLE-RASTON: Jennifer Daskal teaches at Georgetown Law School
and used to be a lawyer with Human Rights Watch. She also worked at the
Department of Justice. DASKAL: What you have, I think, is an incredible
amount of secrecy about how the court works - often for good
reason. But as a result, there is this misperception and fear and
assumptions that the executive always gets what it wants, and that
the executive is always overreaching, and overreaching more and
more with time. TEMPLE-RASTON: It may be there are other ways to
measure whether the government gets what it wants from a FISA court. The
Justice Department says it presented 212 requests to conduct surveillance in
the U.S. to the FISA court last year. It says the court modified 200 of them
before they were approved. The problem: the public doesn't know why these
orders from the government were modified or how they were changed. This
week, senators introduced legislation that would declassify significant FISA
court rulings. Dina Temple-Raston, NPR News.

The FISA court is not a rubber stamp Lack of oversight is


the problem
http://www.cbsnews.com/news/former-judge-admits-flaws-with-secret-fisacourt/

A former federal judge who served on a secret court overseeing the


National Security Agency's secret surveillance programs denied
Tuesday that the judges act as "rubber stamps." But James Robertson
said the system is flawed because of its failure to allow legal
adversaries to question the government's actions. "Anyone who has
been a judge will tell you a judge needs to hear both sides of a case ,"
Robertson, a former federal district judge based in Washington who served on the secret Foreign
Intelligence Surveillance Court, said during a hearing of the federal oversight board directed by President

Robertson questioned whether the


secret FISA court should play the role of providing legal approval for
the surveillance programs, saying the court "has turned into
something like an administrative agency." Much of the NSA's
surveillance is overseen by the FISA court, which meets in secret
and renders rulings that are classified. Many of these rulings also likely been
Barack Obama to scrutinize government spying.

disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the
spying program. After Snowden began exposing the NSA's operations in June, Obama instructed the board
to lead a "national conversation" about the secret programs. The board has been given several secret
briefings by national security officials and it plans a comprehensive inquiry and a public report on the
matter. The board's chairman, David Medine, had told The Associated Press in advance of Tuesday's
hearing that "our primary focus will be on the programs themselves. Based on what we've learned so far,
further questions are warranted." Robertson, who said he asked to join the FISA court "to see what it was
up to," had previously played a central role in national security law. Robertson was the judge who ruled
against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the
U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld

Robertson said Tuesday that FISA court judges


have been scrupulous in pushing back at times against the
government, repeatedly sending back flawed warrants. But he
warned that Congress' 2008 reform of the FISA system expanded the
government's authority by forcing the court to approve entire
surveillance systems, not just surveillance warrants, as it previously handled.
by the Supreme Court in 2006.

Robertson said the system needed the presence of a legal adversary to act as a check on the
government's programs. "This

process needs an adversary," Robertson said,


suggesting that the oversight board itself might play that role in
the secret legal setting.

Civil Suits Solve


Civil suits can deter spousal surveillance
Camille Calman 2005

[Camille Calman is a litigator who has handled a range of matters,


including false advertising cases under the Lanham Act and before the National Advertising Division; libel
defense; copyright; and trademark; for clients in media, technology, financial services, consumer products,
and other industries. She has performed internal investigations for clients in the financial services industry.
She works closely with the entertainment transactions group, in particular with respect to theater and
performing arts, on rights clearance issues, claims and demands, litigation, and settlement. She also
counsels clients on libel and other issues related to newsgathering and publishing; advertising, promotions,
and sweepstakes law; and copyright fair use., November 2005, SPY VS. SPOUSE: REGULATING
SURVEILLANCE SOFTWARE ON SHARED MARITAL COMPUTERS Columbia Law Review, 105 Colum. L. Rev.
2097 JC]

A more pressing question is what society might hope to achieve by


regulating surveillance software. Regulating technology is unlikely to change
marital behavior. Certainly some spousal spies will be deterred by the
prospect of civil suits and monetary damages. But it is unrealistic to
presume that a law can stop adultery or jealousy altogether. Perhaps it is
paternalistic to expect that the state can improve marital relations by
banning a form of software. Putting such a law on the books could ,
however, have an important expressive effect .

n228

Jealousy would

still exist, but perhaps the existence of the statute would reinforce,
and increase awareness of, the social norm that frowns on spying .
Spouses, recognizing the possibility of surveillance thanks to the statute's
existence, might be more cautious. Discouraging snooping might
n229

encourage other means of solving problems within marriages, such


as seeking counseling and increasing honest communication.

Civil suits are effective against Telecom providers without


court authorization
Mike Wagner, 2009

[Mike Wagner, AB, Villanova University; JD, The George Washington


University. Mike Wagner is an associate in the Washington office of Covington & Burling LLP, where he
counsels government contractors on issues arising at all phases of the public procurement process and
handles complex white collar investigations involving allegations of fraud and corruption. Prior to joining
Covington, he served as a law clerk on the U.S. Court of Appeals for the Third Circuit and the U.S. District
Court for the District of Maryland. A graduate of GW Law, he was an Articles Editor on the George
Washington Law Review and received the 2010 Scribes Law Review Writing Award for best student-written
article. November 2009, Warrantless Wiretapping, Retroactive Immunity, and the Fifth Amendment. The
George Washington Law Review, 78 Geo. Wash. L. Rev. 204. JC]

Subject to certain narrowly defined exceptions, n20 electronic government


surveillance on U.S. soil is prohibited unless the FISC first determines that
there is probable cause to believe that the target is an agent of a foreign
power and that the place at which the surveillance is directed is being used

by a foreign power or its agent. n21 If the government ignores this warrant
requirement and engages in electronic domestic surveillance anyway, it will
be found to have violated FISA. n22 In such a case, FISA creates a direct private
cause of action for anyone "who has been subjected to ... electronic
surveillance" in violation of FISA. n23 Interestingly, FISA specifically
contemplated the potential civil liability of private
telecommunications providers assisting in government surveillance,
but the Act made clear that such private carriers would be
protected from civil suit only when they assisted the government
"in accordance with the terms of a court order , [*208] statutory
authorization, or certification" in writing from the Attorney General .
n24

Past civil suits have proved to change FISA and improve


government surveillance regulation
Trevor Rush, 2008 [Lieutenant Commander Trevor Rush, JAGC, USN, Judge Advocate General's Corps, U.S. Navy.
Presently assigned as Vice Chair and Associate Professor for the International and Operational Law Department at The Judge
Advocate General's Legal Center and School, Charlottesville, Va. 2008 Mayfield, FISA, and the Fourth Amendment Naval Law
Review, 56 Naval. L. Rev. 87 JC]

At the time of these events, Brandon Mayfield was an American citizen born in
Oregon and reared in Kansas. n6 He was married with three children, a former U.S. Army
officer with an honorable discharge, and a practicing Oregon lawyer. n7 In what became integral
to the Mayfield family's civil suit against the U.S. Government, Mr. Mayfield was also a
practicing Muslim . n8 The Mayfield family alleged that their religion and ties to the local
Muslim community caused the Government to mishandle the case and violate the family's civil
rights. These allegations had merit because the U.S. Government
would ultimately pay a settlement and apologize to Brandon
Mayfield, who was completely innocent of any connection to the
terrible events in Madrid . However, before his innocence could be
shown, the Government turned the Mayfield family's world upside
down by using all the tools of counter-intelligence, national
security, criminal investigation, and prosecution. As a result of the
Mayfield family's civil suit, a federal court declared portions of the
Foreign Intelligence Surveillance Act [hereinafter FISA ], n9 to be unconstitutional
under the Fourth Amendment of the United States Constitution . n10
This article examines Mayfield v. United States and concludes that the court erred. The story of
the Mayfields is the epitome of the old adage that "bad facts make bad law." Mr. Mayfield was an
innocent man that the Government accused of being a terrorist and in the process invaded his
privacy and freedom. In a society that treasures both liberty and justice, it is tragic when the

Government accuses an innocent person of an offense he did not commit. In this particular case, it
is distressing to suspect that Mr. Mayfield's religion [*89] played a role in that tragedy. The end
result was that the Madrid terrorists succeeded not just in their immediate objectives of death and
destruction, but also in tarnishing the criminal justice system of the United States, a country they
did not directly attack. Whether through its individual agents or the totality of the justice system,
the U.S. Government failed the Mayfield family, and the resulting financial settlement with the
Mayfields is appropriate. Nothing in this article is meant to detract from that result.

Oversight

Effective
Congress has power over agencies
Michaels 8, Acting Professor, UCLA School of Law. Law Clerk to the Hon.
David H. Souter, U.S. Supreme Court, 2005-06. Law Clerk to the Hon. Guido
Calabresi, U.S. Court of Appeals for the Second Circuit, 2004-05. J.D., Yale Law
School, 2003. (August 2008, Jon D. Michaels, CALIFORNIA LAW REVIEW, All
the President's Spies: Private-Public Intelligence Partnerships in the War on
Terror, 96 Calif. L. Rev. 901, Lexis)
Armed with data far more detailed and more timely than what it currently
receives, n227 Congress could decide to hold hearings (in camera, if
necessary to preserve classified information) to investigate programs that it
suspects are misguided, insufficiently attentive to privacy concerns, overly
burdensome to the corporations, or exploitative of the status differentials that
make it legally easier for the private sector to collect information and give it
to the government than for the intelligence agencies to obtain the data in the
first place. n228 Congress could also hold up confirmation votes on nominees
as leverage to force the Executive to make concessions. n229 Or, it could defund a given [*954] program, which it has previously done when it
disapproved of an intelligence or national-security operation. n230 (It should
be underscored, of course, that even a minority within Congress can wield
tremendous influence, by insisting on various amendments to critical bills, by
itself trying to hold up nominees, or, at least in the Senate, by filibustering.)
The appropriations power n231 may be particularly potent in the intelligence
budgetary arena. Intelligence budgets are treated differently from much of
the rest of the overall federal budget, n232and to the extent intelligence line
appropriations can remain classified yet be subject to programmatic-level
revisions, Congress would have both the dexterity and political cover to
exercise aggressively its co-ordinate powers over intelligence policy. That is,
the ability to tinker with funding streams on a regular basis gives the
legislature a means of acting promptly upon its concerns.n233 What is more,
the concomitant opportunity to appropriate in a manner largely occluded
from the public gives lawmakers the political freedom to challenge imprudent
intelligence policies with less fear of being harshly punished at election time
for their so-called "soft-on-terrorism" vote - a fear that routinely prevents
many a member from voting against (publicly recorded) military-spending
bills. When a vote to deny military appropriations is taken as an article of
disloyalty, as it often is, representatives lose perhaps the most
straightforward and valuable means of influencing foreign policy. n234 None
of this is, of course, to say that Congress [*955] will need to scrutinize every
penny spent on intelligence matters. Most operations, like most expenditures
in the larger budget or, say, most military promotions requiring Senate
confirmation, will be approved as a matter of course. n235 But the option to
affect funding when necessary to redirect misguided policy is not an
inconsequential one.

Congress has power over surveillancefunding,


jurisdiction, and leaks
Riley and Schneider 10 John Riley is an Assistant Professor at the
Political Science Department at Kutztown University. Mary Kate Schneider is a
research assistant; Mary Kate Schneider is a Ph.D. Candidate, Political
Science, University of Maryland, Keith Gregory Logan is the editor of the
book, He is an Assistant Professor in the Department of Criminal Justice at
Kutztown University (April 2010, John Riley and Mary Kate Schneider, Praeger
Security International, Book Title: Homeland Security and Intelligence,
Chapter Title: Congressional Oversight of U.S. Intelligence, p.173)
Legislative Leverage: how Congress Influences the Intelligence Community
There are three key mechanisms through which Congress can exert leverage
over the IC. Foremost, Congress controls the flow of resources from the U.S.
government to the intelligence agencies, is responsible for reviewing the
agencies budgets, and appropriates and authorizes funds through the annual
Intelligence Authorization Act. Thus, Congress can threaten to withhold funds
from the IC, and the intelligence community is obligated to justify its
expenses to Congress. Although this sometimes smacks of
micromanagement,1 such leverage is a powerful tool in ensuring
accountability, serving as both carrot and stick.
A second mechanism through which Congress influences the intelligence
community is legalthat is, Congress has both the power and the obligation
to pass legislation that authorizes, constrains, or otherwise affects the
operations of intelligence agencies. Additionally, Congress is charged with
the responsibility to monitor the ICs adherence to these laws and to the U.S.
Constitution.
Third, Congress can shape the actions of the IC through the power to go
public2 Although leaking classified information would appear to be a threat
to national security, S. Res. 400 (the resolution that created the Senates
intelligence oversight committee) includes provisions through which Congress
can declassify information despite opposition from the executive branch.3
Congress has never exercised these formal procedures, but at least one
former director of central intelligence (DCI) has been accused of leaking
information after a congressional hearing and then blaming the leak on
congress.4

The church committee proves congressional effectiveness


Langston 15 Law Clerk to Chief Special Master Denise K. Vowell, U.S.
Court of Federal Claims in Washington, D.C.(Spring 2015, Marc B. Langston,
TEXAS A&M LAW REVIEW, REDISCOVERING CONGRESSIONAL INTELLIGENCE
OVERSIGHT: IS ANOTHER CHURCH COMMITTEE POSSIBLE WITHOUT FRANK
CHURCH?, Lexis)

Church led the Church Committee to conduct an unprecedented investigation


of intelligence agencies, yielding myriad controversial secrets. His experience
in opposing the executive branch over issues such as the Vietnam War
encapsulated his requests for cooperation with a formidable coating of
confidence. Just as Watergate had provided the political will to create the
Church Committee, Church harnessed the secrets of the intelligence agencies
to precipitate sweeping reforms and ensure permanent
congressional intelligence oversight.
By reviewing this Article's brief summary of Church's political background and
key aspects of the Church Committee's work, one hopefully gleans a model
for congressional intelligence oversight that is a persuasive alternative to the
status quo, wherein congressional intelligence oversight committees defer
heavily to the executive branch and offer few protections against government
misconduct. As Church $=P487 envisioned, "Congress being a political animal
will exercise its surveillance with whatever diligence the political climate of
the time makes for." n401 The recent shortcomings of
congressional intelligence oversight committees may spawn a renewed
interest in returning to a less-deferential posture.

War powers prove congressional effectiveness


Pitt 15, J.D. Candidate, 2016, Fordham University School of Law (April 2015, Celdon Pitt, Fordham Law
Review, FAIR TRADE: THE PRESIDENT'S POWER TO RECOVER CAPTURED U.S. SERVICEMEMBERS AND THE

Congress repeatedly has tried to check


the President's ability to wage war, using assorted means to at least oversee - if
not attempt to seize outright control of - the executive branch's conduct of military operations. n135
RECENT PRISONER EXCHANGE WITH THE TALIBAN, Lexis)

The White House has offered various reactions to these methods, ranging from unchallenged acceptance,

n136 Two primary methods, appropriations riders


and the [*2853] implementation of requirements for congressional notification
and consultation, have emerged as both the most effective and the most
popular congressional tools for checking the President's war powers . This section
to grudging acquiescence, to blatant disregard.

will describe several of the ways in which Congress has used these tools to attempt to shape national
security policy. 1. Appropriations Riders As a Means of Congressional Oversight: The Boland Amendments

Appropriations riders, which contain specific conditions on


the grant of funds and are inserted as amendments to large spending bills,
give Congress an opportunity to more narrowly tailor the use of federal
money. n137 As one scholar notes, this dimension of the power of the purse has been
"one of the major factors in shaping and restricting presidential decision
making with respect to the commitment of forces abroad ." n138 Congress has
traditionally given the President much more discretion over the use of funds
during times of emergency or conventional war than under circumstances of
indefinite conflict or terrorist threat. n139 Riders to defense spending bills therefore have
and the Iran-Contra Affair

become more common over the last fifty years, as Congress has sought to exercise more control over
small wars and covert activity. n140 The Iran-Contra Affair combined all of these elements and sparked a
broader debate about the role of "restrictive national security appropriations" in shaping defense policy.

n141 The Reagan Administration's attempts to overthrow the Communist Sandinista regime in
Nicaragua in the early 1980s were scandalous for several reasons. n142 Congress, concerned
over reports that the White House was raising and training the anti-Sandinista
Contra movement without appropriate oversight, passed an initial spending
restriction in 1982. n143 This amendment to the DOD Appropriations Act prohibited the use of

funds for military equipment, training, or other activities in support of any group not part of the Nicaraguan

n144 Under the leadership of House Intelligence Committee Chair Edward Boland,
Congress gradually tightened funding restrictions over the next [*2854] several years.
n145 Congress eliminated all funding by 1984, declaring that no money designated for intelligence
armed forces.

activities "may be obligated or expended for the purpose or which would have the effect of supporting,
directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization,

n146 President Reagan signed these provisions into law without objection.
n147 Despite these restrictions, staff members of the National Security Council (a group known as "the
movement, or individual."

Enterprise") channeled money to the Contras as part of a larger scheme to also free U.S. hostages being
held in Lebanon by Iranian-backed forces. n148 The Iran-Contra Affair prompted Congress to initiate an
investigation into the executive branch's apparent deceit and resolve potential constitutional issues.

n149 The congressional committee concluded that the Enterprise executed a covert Contra aid program
by raising "private and non-appropriated money[] and without the accountability or restrictions imposed by
law on the CIA." n150 Moreover, this was a program "that Congress thought it had prohibited." n151
Aside from the conviction of one member of the Enterprise for the commission of several minor offenses,
no legal consequences stemmed from the Iran-Contra Affair. n152 Congress issued a series of
recommendations at the end of its report, reminding the White House that "Congress is the partner, not
the adversary of the executive branch, in the formulation of policy" and calling for a more rigid system of

n153 2. Consultation and Notification Requirements A


second method of congressional control over defense policy is the enactment
of consultation and notification requirements, either through attachment to a
spending bill or as stand-alone legislation . n154 When the political system is functioning
presidential findings related to covert action.

as designed, the formal framework of consultation and notification is often complemented by a less rigid,
more ad hoc consultative process between the executive and legislative branches that is "an essential
unwritten ingredient in the national security process." n155 [*2855] Congress also must strike a balance
between fulfilling its role as a representative body and observing the need for limited transparency in the
national security context. n156 This section will examine two recent efforts by Congress to control
presidential discretion through the use of reporting requirements. a. The War Powers Resolution Spurred

the War Powers Resolution was "the


product of almost four decades of bipartisan effort to recapture legislative
authority that had drifted to the President." n157 The resolution declared that any
foreign introduction of U.S. armed forces without a declaration of war would
require the President to submit a report to congressional leaders within fortyeight hours. n158 The report must contain details about, at a minimum, the circumstances leading to
by the mission creep of U.S. involvement in Vietnam,

the deployment, the constitutional and legislative authority under which the President is conducting the
military operation, and an estimation of the involvement's scope and duration. n159 This reporting
requirement remains in effect for the duration of the engagement, during which the President must submit

n160 Furthermore, the engagement must cease after sixty days


n161 The War
Powers Resolution was controversial during its enactment and has been applied unevenly since. n162
updates at least every six months.

unless Congress has declared war, been incapacitated, or voted to delay the deadline.

The first test came in 1975, when President Gerald Ford initially sought authorization to evacuate the
remaining U.S. personnel from Cambodia and South Vietnam, but, after growing impatient with
congressional delays, unilaterally approved the evacuations under his executive authority to protect
American lives. n163 Two missions to recover captured Americans, from the Mayaguez commercial ship
under President Ford and the U.S. embassy in Iran under President Carter, have complied with the
reporting requirements in letter but not in spirit. n164 In both cases, the White House circumvented
[*2856] congressional input by waiting to file the report until after the engagement had either ceased or

n165 b. Intelligence Oversight Congress possesses similar


tools for oversight of the intelligence community. n166 Passed in the wake of
revelations about counterproductive covert actions in Latin America and Southeast Asia, the
Intelligence Oversight Act of 1980 n167 prohibits the President from
authorizing a covert action without first making a formal determination that
"reached the point of no return."

"such an action is necessary to support identifiable foreign policy objectives


of the United States and is important to the national security of the United
States." n168 This finding must be submitted in writing to the congressional
intelligence oversight committees prior to the initiation of the covert action ,
unless the President determines that "it is essential to limit access to the finding to meet extraordinary
circumstances affecting vital interests of the United States." n169 In that case, the President may inform
only the chairs and ranking minority members of each intelligence committee, as well as the majority and
minority leaders in both the House and the Senate, as long as he provides a written justification for doing
so.

n170 If the President complies with neither of these options, he still must inform the intelligence
n171

committees "in a timely fashion," along with providing justification for not notifying them earlier.

Agencies listen to congress


Rosenbach and Peritz 9 Eric Rosenbach is the Assistant Secretary of
Defense for Homeland Defense and Global Security, earlier worked at the
Harvard Kennedy S;chool as the Executive Director of the Belfer Center for
International Affairs. He managed the Center's operations, taught graduatelevel classes; Aki J. Peritz is an Associate at the Belfer Center for Science and
International Affairs at the Harvard Kennedy School of Government.
(7/18/2009, Eric Rosenbach and Aki J. Peritz, Belfer Center at Harvard,
Confrontation or Collaboration? Congress and the Intelligence Community,
http://belfercenter.ksg.harvard.edu/files/IC-book-finalasof12JUNE.pdf)
Although the Constitution gives the executive branch preeminence in dealing with intelligence matters,
Article I nevertheless provides Congress with an important oversight role. However, Congressional
oversight into intelligence issues is a complex task, requiring a sophisticated understanding of the issues.
The floor debate for the FISA Amendments Act of 2008 provided a clear example of the difficulties
Congress faces when trying to modify intelligence legislation. Members, for reasons of classification or
technical complexity, did not share a common understanding of the law, let alone how it should be

Congresss most important source of


leverage is the power to authorize programs and appropriate funds . During the
adjusted.

Authorization and Appropriation:

authorization and appropriations process, Congress can signal its intelligence and policy priorities through
both the allocation of funds and the inclusion of non budget-related clauses in the authorization and

the ICs top leaders, including the Director of


National Intelligence and the CIA Director, are nominated by the President
and confirmed by the Senate. This sometimes grueling process forces the White
House to carefully select its nominees and provides an opportunity for Senate
input on both the individuals and issues related to intelligence policy. In recent
appropriations bills. Nominations: Many of

years, the Senate has withheld confirmation until the executive branch agreed to share additional
information on key areas of congressional oversight of intelligence activities. Congressional Hearings:

Congress invitesand, in some cases, compelshigh-ranking members of the executive


branch to appear before Congress to ask them targeted questions intended to
create more transparent and effective IC operations. As noted previously, however, the
power of this tool depends in large part on Congresss awareness of IC activities.

Investigations:

Congress has responded to perceived intelligence abuses or failures by


forming committees and mandating commissions to determine what went
wrong and how it might be corrected. In the 1970s, the Church and Pike Committees
served this function. More recently, the SSCI conducted extensive investigations
on prewar intelligence relating to Iraq. Treaty Ratification: Treaty ratification is a constitutional
power of the Senate. Although few treaties relate directly to intelligence matters, members of the

SSCI can use the treaty ratification process to indirectly press related national
security policy issues. Government Accountability Office (GAO): The GAO is the
investigative arm of Congress, particularly focused on budget-related issues.
As a non-partisan, objective audit and evaluation agency, the GAO gives
financial oversight capabilities to Congress . However, classification and security clearance
hurdles set by the White House may limit the power of the GAO to investigate intelligence-related topics.

President
The president complies with congressional authority
Dellapenna 6, Professor of Law, Villanova University School of Law;
B.B.A., University of Michigan (1965); J.D., Detroit College of Law (1968);
LL.M. in Public International & Comparative Law, George Washington
University (1969); LL.M. (Environmental Law), Columbia University (1974).
(Fall 2006, Joseph W. Dellapenna, ILSA Journal of International & Comparative
Law, PRESIDENTIAL AUTHORITY AND THE WAR ON TERROR, Lexis)
Presidential exercises of unilateral authority did not end with Youngstown
Sheet and Tube, but Presidents thereafter tended to involve Congress in their
more controversial actions. In Vietnam, the Presidents did not claim sweeping
authority independently of Congress, although they came to be accused of
abusing the powers conferred by Congress n93 and of lying to Congress to
obtain authorization for the war. n94 Unity between the political branches did
not hold. Congress repealed the authorization in 1971 n95 and took steps to
bar continuation of the War. n96 Congress also enacted legislation to limit the
exercise of presidential authority as commander-in-chief (the War Powers
Resolution of 1973 n97) and to assure judicial and congressional oversight of
intelligence gathering within and without the United States (the Foreign
Intelligence Surveillance Act n98). Presidents have never been happy with
these restraints, consistently [*38] insisting that they are not bound by
them, n99 yet Presidents have complied with them. n100 President Bush's
report to Congress on the actions taken to respond to the 9/11 attacks
exhibits the typical Presidential posture: compliance with the War Powers
Resolution's procedures while insisting that he is not bound by it:

Enforces law
Congress can guarantee the executives abide by the law
Welling 12 assistant-professor at Groningen University. (August 2012,
George M. Welling, Oversight Powers of Congress,
http://www.let.rug.nl/usa/outlines/government-1991/the-legislative-branchthe-reach-of-congress/oversight-powers-of-congress.php)
Congress' oversight function takes many forms: committee inquiries and
hearings; formal consultations with and reports from the executive; Senate
advice and consent for executive nominations and treaties; House impeachment proceedings and
subsequent Senate trials; House and Senate proceedings under the 25th Amendment in the event that

informal meetings
between legislators and executive officials; congressional membership on governmental
commissions; and studies by congressional committees and support agencies
such as the Congressional Budget Office, the General Accounting Office or the
Office of Technology Assessment -- all arms of Congress. The oversight power of
Congress has helped to force officials out of office , change policies and provide
new statutory controls over the executive. In 1949, for example, probes by special
Senate investigating subcommittees revealed corruption among high officials
in the Truman administration. This resulted in the reorganization of certain agencies and the
formation of a special White House commission to study corruption in the government. The Senate
Foreign Relations Committee's televised hearings in the late 196Os helped to
mobilize opposition to the Vietnam War . Congress' 1973 Watergate
investigation exposed White House officials who illegally used their positions
for political advantage, and the House Judiciary Committee's impeachment
proceedings against President Richard Nixon the following year ended his presidency.
Select committee inquiries in 1975 and 1976 identified serious abuses by
intelligence agencies and initiated new legislation to control certain
intelligence activities. In 1983, congressional inquiry into a proposal to
consolidate border inspection operations of the U.S. Customs Service and the
U.S. Immigration and Naturalization Service raised questions about the
executive's authority to make such a change without new legislation. In 1987,
oversight efforts disclosed statutory violations in the executive branch's
secret arms sales to Iran and the diversion of arms profits to anti-government forces in Nicaragua,
known as the contras. Congressional findings resulted in proposed legislation to
prevent similar occurrences. Oversight power is an essential check in
monitoring the presidency and controlling public policy .
the president becomes disabled, or the office of the vice president falls vacant;

Oversight controls agencies-CIA proves


Knott 5 Assistant Professor at the Miller Center of Public Affairs, University of Virginia - See more at:
http://historynewsnetwork.org/article/380#sthash.hQ6e0msn.dpuf (8/8/2005, Stephen F. Knott, History News
Network, Congressional Oversight and the Crippling of the CIA, http://historynewsnetwork.org/article/380)
The story of how the executive branch lost its control over the CIA is well known, but deserves a retelling, since it is often
presented incompletely. In the aftermath of Vietnam, Watergate, and revelations of CIA assassination plots and domestic
spying, Congress

moved in the mid-1970s to reassert its role in shaping American foreign policy,
including the most controversial tool of that policy, covert action. Secrecy was seen as antithetical to the American

Proponents
of congressional intelligence oversight argued that openness and accountability were the
cornerstone of a legitimate foreign policy, and it was believed that Congress, due to its
diversity of opinion, possessed greater wisdom than the executive branch . Spurred on by the
way, and there was widespread agreement that rogue agencies such as the CIA were a threat to liberty.

sensational revelations of the Church Committee hearings in the Senate and the Pike Committee in the House, both bodies
established permanent intelligence committees.
It is still widely believed that the Church and Pike reforms were an attempt to cure a cancerous growth on the
Constitution that had developed during the Cold War, an era which witnessed an increasing reliance on executive secrecy
and the creation of a private army for the president in the form of the CIA. Senator Frank Church and his allies claimed
that an assertive legislative role would bring the United States back to the genius of the Founding Fathers. This assertion
was made despite the fact that American presidents from 1789 to 1974 were given wide latitude to conduct clandestine
operations they believed were in the national interest. President Washington, in his first annual message to Congress in
1790, requested a Contingency Fund, or secret service fund, as one member of Congress described it. Washington was
given this fund, in the amount of $40,000, a sizable sum in the early 1790s. The president was not required to report how
he spent this money, he merely had to divulge the amount of money spent, without revealing to whom or for what reasons
it had been spent. Thomas Jefferson, James Madison, Andrew Jackson, and Abraham Lincoln, all authorized clandestine
operations out of this fund, and did not report the details to Congress. This pattern persisted until the mid-1970s with
little or no change, other than the increasing size and bureaucratization of the nations intelligence apparatus in the
twentieth century. The real aberration occurred in the mid-1970s when the United States granted its legislative branch the
greatest control over intelligence matters of any Western nation, and overturned the system which had prevailed in the
United States since the Founding. The damage

done to the CIA by this congressional oversight


regime is quite extensive. The committees increased the number of CIA officials subject to
Senate confirmation, condemned the agency for its contacts with unscrupulous characters, prohibited any further
contact with these bad characters, insisted that the United States not engage or assist in any coup which may harm a
foreign leader, and overwhelmed the agency with interminable requests for briefings (some 600 alone in 1996). The
committees exercised line by line authority over the CIAs budget and established an Inspector Generals office within the
agency, requiring this official to share his information with them, causing the agency to refrain from operations with the
slightest potential for controversy. The CIA was also a victim of the renowned congressional practice of pork barrel
politics. The intelligence committees forced the agency to accept high priced technology that just happened to be
manufactured in a committee members district. On some occasions, members of Congress

threatened to leak
information in order to derail covert operations they found personally repugnant. Leaks are a
recurring problem, as some member of Congress, or some staff member, demonstrated in the aftermath of the
September 11th attack. President Bushs criticism of members of Congress was fully justified, despite the protests from
Capitol Hill. Leaks have occurred repeatedly since the mid-1970s, and in very few cases has the offending party been
disciplined. One of the Founding Fathers of the new oversight regime, former Representative Leo Ryan, held that leaks
were an important tool in checking the secret government. In the wake of the September 11th terror attack, some
legislators are now proclaiming their commitment to unleashing the CIA and rebuilding its human assets. Just a short
while ago these same legislators were leading the charge to curtail the agency. One such convert is the chairman of the
Senate Foreign Relations Committee, Joseph Biden. The Delaware Democrat was one of seventeen Senators who voted in
1974 to ban all covert operations, and proudly noted during his 1988 campaign for president that he had threatened to go
public with covert action plans by the Reagan administration, causing them to cancel the operations. Hopefully Senator
Biden, and other congressional converts, are undergoing a genuine epiphany. Perhaps they now realize, as Henry
Kissinger once observed about the Church Committee, that it is an illusion that tranquility can be achieved by an abstract
purity of motive for which history offers no example. It is precisely this illusion which has prevailed in congressional
circles since the heyday of Frank Church and Otis Pike. As Church himself once argued, the United States should not fight
fire with fire . . . evil with evil. Another convert is Senator Robert Torricelli of New Jersey, who led the charge in the mid1990s to prevent the CIA from hiring unsavory characters. Torricelli rallied to the defense of State Department employee
Robert Nuccio, who leaked classified material dealing with CIA operations in Guatemala to Torricelli, who in turn held a
press conference and revealed the information to the media. It was these revelations that led to congressional restrictions
on the ability of agents in the field to deal with bad people. Torricelli is now calling for a thorough inquiry into what he
calls the intelligence communitys stunning failure. There is almost universal agreement that the CIA remains overly
reliant on technological tools in gathering information on very human, very political, problems. Yet Congress is partly
responsible for this, for the intelligence committees (with the support of some in the executive branch, particularly in the
Carter and Clinton administrations) were determined to keep Americas hands clean. Technology was safer -- it kept us at
a distance from the dirty stuff. The sad reality is that a CIA operative with any hope of infiltrating a terrorist cell would
need to demonstrate his bona fides in any number of reprehensible ways. These are unpleasant thoughts to contemplate,
and they certainly do not fit our conception of the way the world ought to work. But America cannot have it both ways -- it
cannot expect to deter an Osama bin Laden and keep its hands clean at the same time. Presidents need options short of
war to handle this type of threat. While the old CIA may have been noted for the cowboy swagger of its personnel, the

new CIA is, in the words of one critic, composed of cautious bureaucrats who avoid the
risks that come with taking action, who fill out every form in triplicate and put the

emphasis on audit rather than action. Congressional meddling is primarily responsible


for this new CIA ethos, transforming it from an agency willing to take risks, and act at times in a Machiavellian manner,
into just another sclerotic Washington bureaucracy. This cautious, legalistic attitude has crippled the agencys
effectiveness and will not change unless the oversight committees of Congress acknowledge the uniquely executive
character of intelligence and covert operations, and start to dismantle the cumbersome oversight apparatus erected during
the last twenty five years.

COURTS

NEG COURTS CP COURTS


GOOD
Ryan Lee / Matthew Emerson / Melinda Wong / Sam Hayes

Courts Solve

Courts Will Solve - Precedent


Theres precedent to overturn the NSA- heres a solvency
advocate
Marc Rotenberg and Alan Butler 14, , 6-26-2014, "Symposium: In Riley v.
California, a unanimous Supreme Court sets out Fourth Amendment for digital
age," SCOTUSblog, http://www.scotusblog.com/2014/06/symposium-in-riley-vcalifornia-a-unanimous-supreme-court-sets-out-fourth-amendment-for-digitalage/
The Courts unanimous decision in the cellphone privacy cases brought the Fourth Amendment into the
digital age. The opinion by the Chief Justice rests on a simple truth: Cell phones differ in both a
quantitative and a qualitative sense from other objects that might be kept on an arrestees person. The
outcome follows logically from the text of the Fourth Amendment: get a warrant before searching a cell
phone seized after an arrest. But that is only the starting point.

The Courts opinion is Riley v.


California signals a Court more prepared to engage in the challenges of the
digital age ahead. The Courts conclusion that data is different will affect not
only digital search cases, but also the NSAs bulk record collection program,
access to cloud-based data, and the third-party doctrine . If the sheer volume of
sensitive data stored on cellphones makes them different in kind than physical notes or address books, the
same can be said about laptops, tablets, and servers. The Second Circuit has already held that officers
must delete seized data that is not within the scope of a search warrant, and the reasoning in Riley
supports that conclusion. The Court identified several quantitative differences that underscore the decision
to afford cell phones and other digital containers greater Fourth Amendment protection than their
physical analogs. First, the immense storage capacity of cellphones allows millions of pages of text,
thousands of pictures, or hundreds of videos to be stored and transported. Second, cellphones facilitate
the collection and aggregation in one place of many distinct types of information, as well as data dating
back to the purchase of the phone, or even earlier. Chief Justice Roberts explained, there is an element

it was not just the


quantity of records at issue in Riley that justified increased Fourth
Amendment protection, it was also a qualitative difference in the digital
records created and stored on cell phones. This data includes private
information never found in a home in any form. The Eleventh Circuit reached
a similar conclusion when it held recently that cellphone location records are
protected by the Fourth Amendment. The Court also notes that cellphones
are not only a repository of sensitive personal data, they are also a portal to
private records stored on remote servers . The physical container analogy used by the
of pervasiveness that characterizes cell phones but not physical records. But

Government to justify the search-incident-to-arrest rule crumbles entirely when a cell phone is used to
access data located elsewhere, at the tap of a screen. And this problem is compounded by the fact that
[c]ell phone users often may not know whether particular information is stored on the device or in the
cloud, and it generally makes little difference. See Brief for Electronic Privacy Information Center in No. 13132, at 12-14, 20. The Court rejected outright the governments proposal that agencies develop
protocols to address concerns raised by cloud computing .

The Chief Justice stated plainly


that the Founders did not fight a revolution to gain the right to government
agency protocols. No doubt that sentence will be quoted in the current
challenges to the NSAs bulk collection program, which the government has
defended based on its own, self-imposed privacy safeguards. The Courts
analysis of the qualitative differences with data implies (1) that files stored in
the cloud are deserving of the same (if not more) protection than physical
papers and effects, and (2) that certain types of information are deserving
of special protection. This should not be surprising, since we have already given heightened
protection to one special category of information: the contents of communications. But in Riley the

Court also explicitly rejected the governments argument that call logs and
other metadata are not deserving of Fourth Amendment protection. The
Courts argument takes clear aim at the third-party rule that non-content
records like call logs, location data, and other metadata held by third parties
can be collected by the government without a warrant. Like the data stored on cell
phones, metadata can reveal an individuals private interests and concerns can also reveal where a
person has been and there is an element of pervasiveness in the collection of all metadata records
about an individual. Citing Justice Sotomayors concurrence in United States v. Jones, the GPS tracking case
from the October Term 2011, the Chief Justice wrote: Although the data stored on a cell phone is
distinguished from physical records by quantity alone, certain types of data are also qualitatively different.
An Internet search and browsing history, for example, can be found on an Internet-enabled phone and
could reveal an individuals private interests or concernsperhaps a search for certain symptoms of
disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has
been. Historic location information is a standard feature on many smart phones and can reconstruct
someones specific movements down to the minute, not only around town but also within a particular

This does not bode well for the government in the continued litigation
over the NSAs surveillance of Americans. In defending the NSAs massive
collection of the telephone records of all Americans, the government has
argued that the collection of this metadata is materially indistinguishable
from the collection of a single telephone number permitted by the Court in
Smith v. Maryland, a case decided in the era of the rotary dial phone.
Addressing the governments claim that there is little difference between the
search of cellphone data and the physical search the Court had previously
allowed following an arrest, Roberts said, That is like saying a ride on
horseback is materially indistinguishable from a flight to the moon. Both are
ways of getting from point A to point B, but little else justifies lumping them
together. The Smith issue was not squarely presented because the government did not argue in either
building.

case that a search had not occurred. But Roberts did point to the distinguishing facts when that case is
squarely presented: Moreover,

call logs typically contain more than just phone


numbers; they include any identifying information that an individual might
add, such as the label my house in Wuries case. A brief field trip to
Bluffdale, Utah, the home of the NSAs new massive computing facility, will
no doubt reveal that we are long past the era of horseback and also the
rotary phone. The Riley decision also points to a reconceptualization of searches in the digital age that
may move the home from the center of the Fourth Amendment universe. As the Court explained, Indeed,
a cell phone search would typically expose to the government far more than the most exhaustive search of
a house: A phone not only contains in digital form many sensitive records previously found in the home; it
also contains a broad array of private information never found in a home in any form unless the phone is.

Court decisions set a precedent for congressrecent case


proves
Dustin Volz, 5-7-2015 "Federal Appeals Court Rules NSA
Spying Illegal," nationaljournal,
http://www.nationaljournal.com/tech/federal-appealscourt-rules-nsa-spying-illegal-20150507
A federal appeals court ruled Thursday that the National Security Agency's
bulk collection of billions of U.S. phone records is illegal, dealing a startling blow to the
program just as Congress is weighing reforms to the government's expansive surveillance authorities. A three-judge panel
of the 2nd Circuit U.S. Court of Appeals deemed that

dragnet collection of American call data

does not constitute information relevant to terrorism investigations under


Section 215 of the Patriot Act. The controversial program, exposed publicly nearly two years ago by
Edward Snowden, "exceeds the scope of what Congress has authorized," Judge Gerard Lynch wrote in his decision. Two
other appeals courts have in recent months heard arguments considering the
legality of the NSA bulk telephone program, but neither has issued a ruling
yet. Any split among the courts likely will prompt a Supreme Court review. The NSA's domestic surveillance of phone
metadatathe numbers, time stamps, and duration of calls, but not their contentcame under intense scrutiny following

The decision comes as


Congress is weighing legislation that would reform several aspects of the
NSA's surveillance regime, including an effective end to the bulk data
program. That legislation, the USA Freedom Act, would instead allow the government to ask telecom companies for
the program's disclosure by Snowden, a former NSA contractor, in June 2013.

phone records on an as-needed basis after obtaining judicial approval for each query. Lynch did not order an immediate
cessation of the surveillance program. Instead, Lynch noted that the congressional debate will likely resolve the issue one
way or another. Congress must act in some fashion before June 1, when Section 215 is due to sunset, or let the authority
which the NSA uses to justify the programexpire completely."If Congress decides to institute a substantially modified
program, the constitutional issues will certainly differ considerably from those currently raised," Lynch wrote. "If Congress
fails to reauthorize [Section 215] itself, or reenacts [Section 215] without expanding it to authorize the telephone
metadata program, there will be no need for prospective relief, since the program will end, and once again there will be
time to address what if any relief is required in terms of the data already acquired by the government." Responding to the
court ruling during a Senate hearing Thursday, new Attorney General Loretta Lynch said Section 215 "has been a vital tool
in our national security arsenal." She added, "We are reviewing that decision, but given the time issues we are also

But Congress is locked in a


standoff over howor whetherto reform the NSA's surveillance authorities .
The House is expected to easily pass the Freedom Act next week, but Senate
Majority Leader Mitch McConnell has introduced a bill that would extend
Section 215 of the Patriot Act unchanged for another five and a half years,
until December 2020. McConnell has said there is likely not enough time to deal with the matter before June 1
working with this body and others to look for ways to reauthorize Section 215."

except by passing some sort of clean reauthorization. His top deputy, Majority Whip John Cornyn, has indicated a far
shorter extension may be offered. But the surveillance deadline is getting wrapped up into broader congressional fights

Senate Minority Leader Harry Reid


has said he will block a vote on the trade deal before Congress acts on
surveillance and highway funding, both of which face deadlines at the end of
the month. McConnell, in response, has indicated that he will not budge from
demanding a vote first on the trade deal, which represents a rare alliance between the White
over an international trade deal and highway infrastructure funding.

House and Republicans. Rep. Jim Sensenbrenner, the original author of the post-9/11 Patriot Act, has insisted since the
Snowden revelations emerged that Congress never intended to grant the government the authority to scoop up U.S.
phone data in bulk. "Today's court decision reaffirms what I've been saying since the Snowden leaks came to light .

Congress never intended Section 215 to allow bulk collection, " Sensenbrenner said in a
statement. "This program is illegal and based on a blatant misinterpretation of the law. It's time for Congress to pass the
USA Freedom Act in order to protect both civil liberties and national security with legally authorized surveillance." The
Freedom Act, which Sensenbrenner helped author to undo that "misinterpretation," passed the House Judiciary Committee
last week on a 25-2 vote. The government has long argued that the Patriot Act's language supporting collection of records
deemed "relevant" to a national security investigation justifies mass surveillance. But Judge Lynch took extreme issue with
that interpretation. "The government takes the position that the metadata collecteda vast amount of which does not
contain directly 'relevant' information, as the government concedesare nevertheless 'relevant' because they may allow
the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected
up to that point, to identify information that is relevant," Lynch wrote. "We agree with appellants that such an expansive
concept of 'relevance' is unprecedented and unwarranted." But Lynch did potentially leave an out for McConnell and
others who would prefer a reauthorization of the Patriot Act. A post-Snowden renewal of the law, perhaps with slight
modifications, would amount to a tacit endorsement of the program as it currently exists, Lynch suggested. "The text of
[Section 215] cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone
metadata program," Lynch wrote. "We do so comfortably in the full understanding that if Congress chooses to authorize
such a farreaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously." )

Lawmakers suggested the court decision could have a direct impact on how
Congress decides to move forward with surveillance authority in the coming
weeks. "For those who have been pushing for restrictions or different
provisions on Section 215, the bulk collection, it's going to be easier to justify
now," said Sen. Jeff Flake, an Arizona Republican who voted against the

Freedom Act when it fell two votes short of advancing in the Senate in
November. "It has some immediate application for FISA and some of the other
things we are grappling with," Sen. Tim Kaine, D-Va., said Thursday morning.
"I'm actually kind of heartened by that ruling." Sen. Rand Paul, a vocal critic of NSA spying who
is running for president, quickly cheered the decision on Twitter.

Will Solve - Mosques


The Supreme Court solves for mosque surveillance
Fisher 4 (Linda E. Fisher, Associate Professor of Law and Director, Center
for Social Justice, Seton Hall Law School of Religious Worship, Guilt by
Expressive Association: Political Profiling, Surveillance and the Privacy of
Groups, Arizona Law Review, Winter 2004, (LEXIS)
http://www.lexisnexis.com/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T22334451343&format=GNBFI&sort=RELEVANCE
&startDocNo=1&resultsUrlKey=29_T22334451347&cisb=22_T22334451346&
treeMax=true&treeWidth=0&selRCNodeID=8&nodeStateId=411en_US,1&doc
sInCategory=363&csi=140710&docNo=2)
The FBI recently has admitted surveilling mosques in nine U.S. cities, and to
keeping certain Muslims in the U.S. under intensive surveillance. n20 Agents have
[*626] insisted that certain mosques provide them with lists of worshippers. n21 In February of 2004, the
Justice Department subpoenaed university records concerning peaceful on-campus meetings of local
antiwar activists. n22 In 2003, the New York City Police Department questioned arrestees at antiwar
demonstrations about their political affiliations and entered the information into a database. n23 Months
later, the media reported that the FBI was collecting extensive information on the antiwar movement, in a

Moreover, the FBI has continued to question political


demonstrators across the country, while the Justice Department has
approved an FBI tactic of encouraging local police to report suspicious
behavior at political and antiwar demonstrations to counterterrorism units . n25
search for "extremists." n24

In 2002, Chicago Police infiltrated five protest groups, including the American Friends Service Committee.
n26 Although information concerning the full extent and nature of current surveillance is not available,

absent meaningful restrictions, politically motivated


surveillance will increase, as the Church Committee concluded. n27 The Supreme Court's
expansive construction of the First Amendment-based right of association, as
originally defined in NAACP v. Alabama, n28 and delineated most recently in
Boy Scouts v. Dale, n29 can protect groups engaged in First Amendment
conduct from unjustified political or religious surveillance that causes them
cognizable harm. Because privacy in association is fundamental to the First
Amendment, because political surveillance causes significant harm to
expressive association, and because a group's conception of the conduct that
would interfere with its expression must be taken into account, the right of
association may outweigh the State's interest in appropriate instances. [*627]
history demonstrates that,

While limitations on surveillance cannot unduly restrict the Government's ability to conduct necessary

requiring a reasonable suspicion of criminal activity before


investigating First Amendment activity can help achieve a suitable balance
between national security interests and associational rights . n30 This evidence of
intelligence-gathering,

criminal activity supplies the compelling state interest that justifies narrowly tailored investigations. Thus,

protection of national security can coexist with civil liberties, and political
profiling can be eliminated when investigations are premised upon a
legitimate law enforcement purpose, rather than on protected beliefs. In fact, the thesis of
this Article is that the Constitution should prohibit domestic surveillance of U.S. persons' First Amendment

Politically motivated
investigations are not permissible, since the mission of law enforcement is to
enforce the criminal laws, not to monitor political or religious expression. The
history and purposes of the constitutional right of association corroborate this
activity n31 in the absence of a reasonable suspicion of criminal activity. n32

conclusion. n33 A consent decree that essentially adopts the approach I endorse was recently entered
in a political surveillance lawsuit against the Denver Police Department. n34 In addition, the reasonable
suspicion standard should be adopted - or retained - in legislation, regulations, and guidelines that apply to
the FBI and other law enforcement agencies. This standard remains for police departments accepting
federal aid. n35 The FBI's guidelines on domestic terrorism investigations employed the standard, or its
substantial equivalent, for twenty-six years, before severely curtailing its use. n36 The Church Committee

In
light of the Supreme Court's current conception of the constitutional right of
association, the legal arguments favoring restraints on political surveillance
are stronger than ever. Those legal restraints should now be strengthened,
rather than removed.
Report recommended [*628] employing the standard in terrorism investigations as early as 1976. n37

Will Solve Border / Generic Privacy


The Supreme Court has jurisdiction over border
surveillance and Fourth Amendment violations
Stewart 73 (Associate Justice Potter Stewart of the United States Supreme
Court, in the majority concurring opinion on Almeida-Sanchez v. United
States, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, USSC, https://scholar.google.com/scholar_case?
case=6933260753627774699) //RL

It is undoubtedly within the power of the Federal Government to exclude


aliens from the country. Chae Chan Ping v. United States, 130 U. S. 581, 603604. It is also without doubt that this power can be effectuated by routine
inspections and searches of individuals or conveyances seeking to cross our
borders. As the Court stated in Carroll v. United States: "Travellers may be
so stopped in crossing an international boundary because of national self
protection reasonably requiring one entering the country to identify himself
as entitled to come in, and his belongings as effects which may be lawfully
brought in." 267 U. S., at 154. See also Boyd v. United States, 116 U. S. 616.
Whatever the permissible scope of intrusiveness of a routine border search
might be, searches of this kind may in certain circumstances take place not
only at the border itself, but at its functional equivalents as well. For 273*273
example, searches at an established station near the border, at a point
marking the confluence of two or more roads that extend from the border,
might be functional equivalents of border searches. For another example, a
search of the passengers and cargo of an airplane arriving at a St. Louis
airport after a nonstop flight from Mexico City would clearly be the functional
equivalent of a border search.[4] But the search of the petitioner's
automobile by a roving patrol, on a California road that lies at all points at
least 20 miles north of the Mexican border,[5] was of a wholly different sort.
In the absence of probable cause or consent, that search violated the
petitioner's Fourth Amendment right to be free of "unreasonable searches
and seizures." It is not enough to argue, as does the Government, that the
problem of deterring unlawful entry by aliens across long expanses of
national boundaries is a serious one. The needs of law enforcement stand in
constant tension with the Constitution's protections of the individual against
certain exercises of official power. It is precisely the predictability of these
pressures that counsels a resolute loyalty to constitutional safeguards. It
274*274 is well to recall the words of Mr. Justice Jackson, soon after his return
from the Nuremberg Trials: "These [Fourth Amendment rights], I protest, are
not mere second-class rights but belong in the catalog of indispensable
freedoms. Among deprivations of rights, none is so effective in cowing a
population, crushing the spirit of the individual and putting terror in every
heart. Uncontrolled search and seizure is one of the first and most effective

weapons in the arsenal of every arbitrary government." Brinegar v. United


States, 338 U. S. 160, 180 (Jackson, J., dissenting). The Court that decided
Carroll v. United States, supra, sat during a period in our history when the
Nation was confronted with a law enforcement problem of no small
magnitudethe enforcement of the Prohibition laws. But that Court resisted
the pressure of official expedience against the guarantee of the Fourth
Amendment. Mr. Chief Justice Taft's opinion for the Court distinguished
between searches at the border and in the interior, and clearly controls the
case at bar: "It would be intolerable and unreasonable if a prohibition agent
were authorized to stop every automobile on the chance of finding liquor and
thus subject all persons lawfully using the highways to the inconvenience and
indignity of such a search. Travellers may be so stopped in crossing an
international boundary because of national self protection reasonably
requiring one entering the country to identify himself as entitled to come in,
and his belongings as effects which may be lawfully brought in. But those
lawfully within the country, entitled to use the public highways, have a right
to free passage without interruption or search unless there is 275*275 known
to a competent official authorized to search, probable cause for believing that
their vehicles are carrying contraband or illegal merchandise." 267 U. S., at
153-154. Accordingly, the judgment of the Court of Appeals is Reversed.

Executive will follow


Executive agencies follow court decisions- theyd rather
avoid conflict
Wheeler 8 (Darren A. Wheeler, Assistant Professor, Dept. of Political
Science and Public Admin., The Univ. of North Florida, ACTOR PREFERENCE
AND THE IMPLEMENTATION OF INS v. CHADHA, 2008, BYU JOURNAL OF
PUBLIC LAW, (LEXIS)
http://www.lexisnexis.com/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T22334277369&format=GNBFI&sort=RELEVANCE
&startDocNo=1&resultsUrlKey=29_T22334277373&cisb=22_T22334277372&
treeMax=true&treeWidth=0&csi=167225&docNo=3)
A handful of scholars have studied the relationship between courts and administrative agencies in the

It is the duty of the legislative branch to


pass laws and the job of the executive branch of government, often via
executive agencies, to carry out those laws. Executive branch agencies often
do this with a great deal of discretion. n53 Often it is the courts that determine
when executive branch agencies have abused this discretion. n54 When courts
rule on statutory or constitutional matters relating to executive agency
actions, these agencies are expected to comply . n55 Although one might initially think
context of implementing judicial decisions. n52

that agencies automatically comply with court decisions, Martin Shapiro warns that "the student of judicialadministrative politics must be prepared for a world of mutual influences rather than sovereign
commands." n56 Shapiro notes that courts typically allow agencies to do as they please and that when

Furthermore, while courts and


agencies influence each other, they rarely press their claims in an effort to
force confrontation. James Spriggs argues that general absence of executive
agency defiance of Supreme Court decisions is a result of the highly
interdependent relationship between the two . n58 These actors must deal with
each other on a repeated basis, so it is in the interest of both to maintain a
non-confrontational relationship. n59 Because of this desire for inter-branch comity, the
study of the relationship between courts and administrative agencies is
mostly a study of marginal cases. n60 Despite this generally non-confrontational relationship,
they do act they are only one political actor among many. n57

tension can result when court opinions run contrary to an agency's mission or goals. n61 As early as 1970,
Stephen Wasby hypothesized that "compliance is more a function of norms in affected organizations than it
is of Supreme Court rulings." n62 Agency goals and preferences can [*91] color responses to judicial
decisions

Congress cannot circumvent


Congress cant circumvent the Courts- repeat decisions
Dorf 11 (Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell
University Law School, Newt Gingrich Is Right That Judicial Supremacy Has
Been Challenged Before, but Wrong to Try to Turn Back the Clock, DECEMBER
28, 2011, https://verdict.justia.com/2011/12/28/newt-gingrich-is-right-thatjudicial-supremacy-has-been-challenged-before-but-wrong-to-try-to-turnback-the-clock)
The rubber meets the road for departmentalists when political actors want to
take the very action that the courts have already ruled unconstitutional . At that
point, departmentalism can undermine judicial independence. To see why, consider what happens when a

Suppose that
Congress disagrees with a Supreme Court ruling invalidating a law, as
Congress disagreed with the 1989 ruling in Texas v. Johnson that the First
Amendments protection for freedom of speech includes the right to burn an
American flag. Congress responded by passing a new law banning flag
burning, acting on its different interpretation of the First Amendment . One way
we can understand the new federal law is as an effort by Congress to persuade the
Court to change its mind. In this instance, the Court accepted the invitation to
reconsider but then reaffirmed the Johnson holding in United States v.
Eichman. Congress then took no for an answer and stopped enacting statutes
that it knew would be struck down. Some members of Congress proposed amending the
state legislature, Congress, or the President attempts to act on a departmentalist view.

Constitution to ban flag-burning, but those efforts failed, even after they were repeatedly renewed.

the issue died because Congress was not willing to insist on an allout confrontation with the Court. According to Gingrich, Congress threw in the towel much too
Eventually,

early. It could, he says, have summoned the Justices who voted in the majority in Johnson and Eichman to
appear before Congress. It could have stripped the courts of jurisdiction to hear constitutional challenges
to laws forbidding flag-burning. It could have impeached judges and Justices who did not bow to its will.
And, even without impeachment, it could have abolished the judgeships and seats on the Supreme Court
that were held by jurists who disagreed with Congress. A Gingrich campaign position paper argues that
Congress should not be afraid to use these tools.

Lower courts follow


Supreme Court precedent is binding on lower federal and
state courts
TWC 4 (Georgetown Writing Center 2004, WHICH COURT IS BINDING?*
Mandatory vs. Persuasive Cases,
http://www.law.georgetown.edu/academics/academic-programs/legal-writingscholarship/writing-center/upload/which_court_is_binding_painter-and-mayerfinal.pdf)
First, higher courts bind lower courts within their particular state or circuit . With
the exception of the U.S. Supreme Court, courts of appeals and state courts do not bind courts outside the

a federal Supreme Court decision is


mandatory on all lower federal courts, both courts of appeals and district
courts. A federal circuit decision is mandatory on all federal courts within its circuit, but not federal
state or circuit in which they are located. That is,

courts in other circuits. For example, a 9th Circuit decision binds the U.S. district courts within the 9th
Circuit, but not federal courts in any other circuit. However, a district court or trial court decision would not
bind higher courts. A state supreme court decision is mandatory on all appeals courts and trial courts in
that state, but not on state courts in other states, and a state court of appeals decision binds state trial
courts in that state. Second, federal courts usually bind only other federal courts, not state courts.
Similarly, state courts usually bind only other state courts. Thus, a decision by the U.S. Ninth Circuit Court
of Appeals, a federal court, mandatory on federal courts within the boundaries of the Ninth Circuit. It is not
mandatory on California state courts, even though California is geographically within the Ninth Circuit.
Similarly, a California Supreme Court decision would bind other California state courts, but not the Ninth
Circuit or other state courts (like Nevada state courts). Finally, federal courts bind other federal courts only
when they interpret and apply federal law while state courts bind other state courts only when they
interpret and apply state law. Sometimes a federal court must apply a states law. In that case, the states

the federal court can still


decide whether the states interpretation is consistent with federal law.
Similarly, state courts must sometimes decide issues of federal law, but they
are not bound by federal courts except the U.S. Supreme Court. The U.S.
Supreme Court, a federal court, is mandatory on state courts when it decides
an issue of federal law, such as Constitutional interpretation. Other federal courts
interpretation of that law is mandatory on the federal court. Even so,

district and appellateare not mandatory on state courts.

Lower Courts will follow on to SCOTUS decisions


Wheeler 8 (Darren A. Wheeler, Assistant Professor, Dept. of Political
Science and Public Admin., The Univ. of North Florida, ACTOR PREFERENCE
AND THE IMPLEMENTATION OF INS v. CHADHA, 2008, BYU JOURNAL OF
PUBLIC LAW, (LEXIS)
http://www.lexisnexis.com/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T22334277369&format=GNBFI&sort=RELEVANCE
&startDocNo=1&resultsUrlKey=29_T22334277373&cisb=22_T22334277372&
treeMax=true&treeWidth=0&csi=167225&docNo=3)
Judicial scholars examining the relationship between the Supreme Court and
lower courts have often concluded that lower courts are constrained to some
degree by Supreme Court decisions and feel compelled, for a variety of
reasons, to abide by these decisions. Specific organizational approaches have included
tension, n34 bureaucratic inertia, n35 and principal-agent models. n36 The general approach
revolves around the idea that the hierarchy of courts is similar to

bureaucratic hierarchies in that the decisions of the higher element affect the
lower elements. n37 To the degree that this is correct, it may mean that the
implementation of judicial decisions is similar to that of the implementation of
policies within bureaucracies more generally and that there is some value in
looking at possible linkages between the two. n38 If lower court judges do feel somewhat
constrained by higher court decisions, why might this be the case? Organization theorists often
focus on the sense of professionalism that the vast majority of lower court
judges have. n39 This sense of professionalism usually guides the judicial
decision-making process rather than personal predilections about certain
decisions with which they disagree. n40 It also helps to maintain the integrity of the judicial
system. n41 No lower court judge likes to have [*89] decisions reversed by
higher courts and several scholars have concluded that there is evidence to
support the contention that the authority of higher courts is unusually strong
in judicial organizations. n42 In reality, higher courts have very few tools at their disposal when it
comes to sanctioning lower courts and judges. n43 It is persuasion, often via opinions, n44 that higher
courts usually use in their efforts to keep lower courts in line. n45 This relative freedom is largely due to
the insulation that most judges enjoy. Federal judges are subject to very few external sanctions. n46 This
gives them an exceptional amount of leeway in the performance of their duties, enough to lead some
judicial scholars to maintain that influence is a two-way street between upper and lower courts. n47
Despite these pressures to acquiesce to Supreme Court decisions, political scientist Lawrence Baum argues
that judicial policy preferences can result in non-compliance with higher court decisions. n48 Baum
contends that there is no reason to assume that policy preferences by those in the judicial system should
differ radically from actors in other organizations. n49 Judges may hold strong opinions or policy
preferences like any other organizational actor; such strong opinions may lead lower court judges to defy
higher court rulings. n50 There is some evidence to support this contention. n51

Precedent and summary decisions means lower courts


follow on
Masood et al 13 (Ali S. Masood, Benjamin J. Kassow, Donald R. Songer,
Department of Political Science University of South Carolina, The Impact of
Supreme Court Signals and Circuit Effects on Responses to Precedent, April 6,
2013, http://poseidon01.ssrn.com/delivery.php?
ID=6871010670081030210270270010780860900960550580470230430310
8800110908710902909102512106105300000003309705211607412403101
6109065009094010045014112126004116127079015001067043087097023
0201240831250940831041130820250961050070021101220670740081261
03090124&EXT=pdf&TYPE=2)
Our analysis makes several new and important contributions to the literature. First, we provide a
framework for aggregate lower court responses to Supreme Court precedent. We posit that given the finite
ability of the Supreme Court to review the large number of lower court decisions, justices of the Court
should primarily be interested in aggregate patterns of compliance in the form of citations and positive

precedents. We argue that four primary influences drive lower


court responses. These include ideology, precedent vitality, a signal by the
Supreme Court in the form of summary decisions that 22 cite a specific
precedent within the same term, and several circuit-level influences such as
circuit vitality and whether the precedent originates from the same circuit. Our
treatments to their

theory provides a novel account that the Supreme Court signals the breadth and wide applicability of a

We believe that the Courts use of


summary decisions, which the justices issue in reference to a plenary
precedent, rather than denying certiorari or consolidating cases, signals the
breadth and importance of the precedent. Furthermore, we offer that the originating circuit
precedent through the use of its summary decisions.

from which a Supreme Court precedent eventually emerges will more frequently cite and positively treat a
precedent than the other circuits. We argue that the decision of the Court to review a decision from a
particular circuit has important implications for that circuits precedent in that the Supreme Courts review

a direct
treatment of a circuits decision by the Supreme Court serves an important
signal to members of the circuit, which we expect will increase the likelihood
a circuit will cite and positively treat the resulting Court precedent . The empirical
of the circuits decision will affirm or overturn existing circuit precedent. We believe that

results provide robust support for our account. Our interesting findings hold important implications for
judicial research. Our finding on the impact of Supreme Court summary decisions in part confirms, but also
in many ways challenges, previous conceptions of our understanding of how the lower courts cite and

While the effect of precedent


vitality, especially circuit vitality, serves as an important influence on the
decision-making behavior of the lower courts, the effect of Supreme Court
summary decisions has a comparable substantive effect for a large portion of
our data. This finding is especially important given the decreasing plenary docket size of the U.S.
positively treat the legal and policy pronouncements of the Court.

Supreme Court, and the reality that summary decisions now make up a majority of decisions issued by the
Court (Masood and Songer 2013). While this point would be moot if Supreme Court summary decisions did
not have an impact on the courts below or on the law, increasing amounts of evidence strongly suggest
that summary decisions have an effect on how the lower courts deal with the pronouncements of the
Court.

State courts follow


No risk of circumvention from state courtstheyre one
step ahead on the question of surveillance.
Eli R. Shindelman November 2011 (Shidelman is a law associate with
a J.D. from Boston College) 2011 Boston College Law Review Lexis-Nexis

The use of current technological surveillance methods requires stronger


constitutional protections. n261 Current surveillance technology allows for surveillance over a prolonged
period of time and has reached a point beyond which the Court's current precedent in Knotts can properly address. n262
Courts forced to analyze the constitutionality of law enforcement's prolonged use of surveillance technology without a

Such a broad application would substantially


invade personal privacy and was not the intent of the Knotts Court . n264
warrant should not apply Knotts broadly. n263

Furthermore, for courts to equate short-term, intermittent surveillance, like the beeper used in Knotts, with prolonged,
advanced [*1937] monitoring would defy societal norms. n265 Advanced surveillance technology intrudes upon what has
historically been considered a "private enclave," and has increased awareness of the importance of privacy. n266
Surveillance technology no longer merely supplants or enhances human capabilities. n267 Instead, technological
development has given rise to completely new methods of surveillance that far exceeds human capabilities. n268 These
enhanced forms of surveillance track an individual's daily life for as long as they are used by law enforcement. n269
Additionally, because devices are monitored remotely, sometimes from offices worldwide, law enforcement agents no
longer need to be nearby receiving a signal through a transmitter. n270 This allows law enforcement to conduct indefinite
surveillance. n271 The information law enforcement is able to obtain as a result provides a full and detailed account of an
individual's life. n272 In this way, technology has provided the government the means to enact the once mythical

State
courts on the other hand have been more attuned to the pace at which
surveillance technology has and continues to progress . n274 Through "new
federalism," these courts have provided greater protection to individual
liberties than federal courts. n275 Where they saw Supreme Court precedent
lacking, States have turned to their own state constitutions . n276 Unwilling to analogize
current forms of surveillance technology with the beeper in Knotts, States have adopted their own,
more modern standards which more effectively protect a person's reasonable
expectation of privacy. n277 In so doing, state court decisions and [*1938]
subsequent state legislation have been responsive to what society is
prepared to recognize as a reasonable expectation of privacy. n278
Orwellian State, and current Supreme Court Fourth Amendment jurisprudence allows this to go unchecked. n273

Reviews ensure that state courts will follow the Supreme


Court
Michael E. Solomine 2002 Supreme Court Monitoring of State Courts in
the Twenty-First Century" 35 Ind. L. Rev. 33 http://heinonline.org/HOL/Page?
handle=hein.journals/indilr35&div=20&g_sent=1&collection=journals
As already stated, The Supreme Court has been reviewing decisions from
state courts for about two centuries. It is beyond dispute that the Supreme
Court is, and should be the final expositor of federal law (within the court
system, at least), as derived from the text and history of Article III of the
Constitution. To perform that role and to ensure uniformity of federal law, the
Supreme Court has from the beginning been statutorily empowered by
Congress to review decisions of state courts. The somewhat complicated
history of those provisions and the cases interpreting them need not concern
us here. The principal statute as it stands now, enacted in 1914, has been
interpreted to limit Supreme Court review to state court decisions based on

federal law, not those based on state law grounds. State courts have long
been deciding issues of federal constitutional and statutory law, and have, for
equally long, been rendering decisions interpreting their own state
constitutions as well. But only in the last three decades has state constitution
law, particularly regarding individual rights and liberties, been the special
focus of attention by judges, litigants, and commentators.

AT Activism DA
Non-unique gay marriage was judicial activism
Anderson 6/26 (Ryan Anderson, William E. Simon Senior Research Fellow
at The Heritage Foundation, His amicus brief was cited in Justice Clarence
Thomass dissenting opinion in Obergefell, Symposium: Judicial activism on
marriage causes harm: What does the future hold?, SCOTUSblog (Jun. 26,
2015, 4:28 PM), http://www.scotusblog.com/2015/06/symposium-ryananderson/) //RL

As the four dissenting opinions make abundantly clear, todays ruling in


Obergefell v. Hodges had nothing to do with the Constitution. This ruling
is perhaps as clear of an example of judicial activism as any we have seen in
recent years or are likely (hopefully) to see in the future. The majority of
the Court simply replaced the peoples opinion about what marriage
is with its own. Nothing in the Constitution supplies an answer to the
question What Is Marriage? And none of the purported rationales can justify
the Court redefining marriage everywhere.

Non-unique Obamacare was judicial activism and there


are perceived overreaches all the time
Burke 6/26 (Cathy, contributor to Newsmax, Betsy McCaughey:
Obamacare Ruling Clear Case of 'Judicial Activism', Newsmax, June 26 th,
2015, http://www.newsmax.com/Newsmax-Tv/betsy-mccaughey-supremecourt-obamacare/2015/06/26/id/652465/) //RL

The Supreme Court's decision to uphold the nationwide availability of


Obamacare tax subsidies was a blatant example of "judicial activism,"
wresting legislative control from Congress on the flawed national health care
law, former New York Lt. Gov. Betsy McCaughey tells Newsmax TV. In a panel
debate Friday led by "Newsmax Prime" host J.D. Hayworth, the health policy
expert said Justice John Roberts' argument that the Affordable Care Act was
poorly written should have prompted a decision to send it back to Congress
not interpret what it meant to say. "The Constitution was written by
framers who understood that the legislative branch would not always work
well," McCaughey said. "In fact, [James] Madison anticipated that there would
often be gridlock. The answer to that is not judicial activism. It's patience.
Laws are supposed to be difficult to make and difficult to change, but it is
not the role of the court to usurp the legislative function and that is
clearly what happened yesterday." Special: ADM Tronics returns to
profitability with revenues up 58% Story continues below video. Watch

Newsmax TV on DirecTV Ch. 349, DISH Ch. 223 and Verizon FiOS Ch. 115. Get
Newsmax TV on your cable system Click Here Now Special: New Probiotic
Fat Burner Takes GNC by Storm McCaughey also took exception to
constitutional scholar F.H. Buckley's assertion that because of "gridlock" in
Congress, Roberts "has come up with a rule of interpretation for a
government that doesn't work terribly well. At this point, conservatives are
going to have to move on." "The professor's argument is exactly the
argument made by the majority yesterday that the ends justifies the
means. It does not," McCaughey declared. "[T]he need for national
healthcare, whether you believe that or not, is irrelevant to yesterday's
decision," she added. "The administration lied to the court yesterday. The
lawyers for the administration lied and said that the lawmakers never
intended to distinguish between state exchanges and a federal exchange.
That was a lie." Editor's Note: Dementia or Forgetfulness? UCLA Survey
Reveals What Your Symptoms Mean. McCaughey charged Obamacare
architect Jonathan Gruber "was on tape just 20 days after the law was passed
explaining that subsidies would not be available in the states that failed to
set up exchanges." "But the lawyers for the president and the IRS lied to the
Supreme Court and denied that that was the case," she said. "This ruling is
based on that lie." Buckley said that although the decision set a dangerous
precedent, "there are dangerous precedents all the time," noting the
high court's decision to allow same-sex marriage in all 50 states was another
one. "There is no advantage in pushing a sure loser," he said.

AT Hollow Hope
The Courts are specifically better than Congress for
protecting minority groups and rights like privacy through
public policy
Sommer et al 13 (Udi Sommer, PhD, Victor Asal, PhD, Katie Zuber, PhD
Candidate, Jonathan Parent, PhD Candidate, 21 Feb 2013, Institutional Paths
to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws, Law &
Society Review, Volume 47, Number 2 (2013)) //RL
The goal of this study was to analyze the origins of policy change via different
institutional paths, comparing judicial and nonjudicial institutions. This
question, which has been crucially important in the study of public policy,
judicial politics, and social movements, was examined here for the first time
systematically in a cross-national framework over a period of several decades
and with respect to a question still on the agenda in numerous coun- tries,
namely the decriminalization of same-sex intimacy. While the debate in the
literature may still be unsettled, the theory developed here suggests that
policy change emanates from judicial as well as nonjudicial bodies. The key
message of this study, however, is not limited to the notion that courts create
policy change. Rather, we explain theo- retically, and then substantiate
empirically, that different sets of variables systematically explain policy
change via disparate institu- tional venues. Our findings clearly indicate that
legal precedent in a Common Law system limits the introduction of policy
change via the political branches more than via courts of last resort, and
particularly when such change proves contentious. At the same time, the
path-dependent nature of law in civil law countries makes it easier for policy
change to emanate from the legislature. Indeed, whereas legislative repeal
constitutes 97% of the cases where sodomy laws were revoked in Civil Law
countries, 6 in every 10 repeals in Common Law countries were judicial. Such
findings are significant not only to our understanding of law, but to a range
of Sommer, Asal, Zuber, & Parent 429 topics including legal development,
accountability, and the effects of religiosity on policy formation and change.
In addition, our findings lend support to the notion that political actors are
more constrained by legal status quo than their judicial
counterparts, and accordingly, that the effects of path dependence
on decisionmaking in supreme courts are commensurably weaker.
More broadly, this finding addresses a major criticism leveled against pathdependence scholars concerning their inability to explain policy change. We
contend that the judicial hierarchical structure enables courts of last
resort to produce policy change. Indeed, as Kahn (2006) suggests, such
courts may serve as important mechanisms of change, a relief valve of sorts,
in theories of path dependence. Furthermore, it is evident that political
institutions, such as accountability, entail closer proximity between the will of
constitu- ents and decision-making authorities in the political branches. At

the same time, we find courts are less affected than legislatures by
majoritarian elements including, for instance, political pressures
exerted by religious groups. Some forces at the domestic (e.g.,
democratic conditions) and global (e.g., globalization) levels affect repeal,
notwithstanding its institutional venue. In a subsample of democracies, the
effect of democratic conditions is diminished, but the effects of the other
predictors remain largely unaffected. There is also an important normative
element to this discussion concerning the legitimacy of unelected judges
altering the policy made by decision makers who are accountable to the
electorate. Indeed, this concern was expressed most famously by Bickel
(1962) who wrote of the counter-majoritarian difficulty and more recently
by Powers and Rothman (2002) who see the judiciary as ill-equipped to
resolve issues better left to legislatures. A number of responses have been
offered to this critique, ranging from empiri- cal studies demonstrating the
reluctance of the court to stray too far from public opinion (Barnum 1985;
Mishler & Sheehan 1993), to suggestions that lawmakers themselves create
conditions favorable to judicial policy making (Gillman 2002; Rogers 2001).
The theory proposed in this study (and the empirical support presented thereafter) directly engages this scholarship. As far as the protection of sexual
minorities is concerned, the findings in this study clearly indicate that
judicial institutions may well be the ones to extend legal protections
to minority populations. It is not always clear in such instances, however,
that judges are acting in a counter- majoritarian fashion. When the United
States Supreme Court handed down its decision in Brown, for example, only
17 states required segregation of public schools (Balkin 2008). Similarly,
when the Court decided on the constitutionality of sodomy prohi- bitions in
Lawrence, only 13 states still criminalized same-sex sodomy. Under the right
circumstances, policy change may 430 Institutional Paths to Policy Change
originate from courts of last resort, but such change does not necessarily run
contrary to popular will or to elected institutions.17 As far as predictors of
social change are concerned, and in particular in the context of the
rights afforded sexual minorities, the analytical advantage of
examining disparate institutional paths is clear. For instance, despite
failures to find effects for religiosity in past work (e.g., Frank & McEneaney
1999), our theory and empiri- cal tests illustrate the critical importance of
analytically treating disparate institutional paths in order to accurately assess
the effects of independent variables such as religious constituencies. The
political stars align differently in dissimilar jurisdictions. When Common Law
and strong religious constituencies are present in a polity, courts may be the
venue of choice for those seeking social change. Indeed, the Canadian and
South African cases described earlier are but two examples illustrating these
dynamics. Lastly, this work also offers some empirical predictions to be
further developed and tested in future work. Civil law systems tend to hold
case law to be subordinate to statutory law, which might also explain the
greater reliance on nonjudicial institutions. Testing this theoretical account
would complement the findings in this study. In addition, religious
constituencies beyond those studied here may influence policy output

(Campbell & Monson 2003; Wright, Erikson, & McIver 1987). A thorough
treatment of the dynamics of a broader range of religious groups and
consequent judicial and nonjudicial policymaking (with respect to gay rights
and otherwise) merits further study. With respect to institutional paths to
policy change, future work may wish to examine the introduction of other
policies (related to sexual minorities or otherwise) via disparate institutional
paths. The set of predictors offered in this article may account, for instance,
for the introduction of antidiscrimination policies in different countries. While
some accounts in the literature claim that, in Europe for instance, the mere
decriminalization of same-sex sex inexorably led to the introduction of
antidiscrimina- tion measures (e.g., Waaldijk 2000), the theory proposed here
offers an alternative analysis. Considering institutional paths of policy change
and their respective predictors including type of legal system, special
constituencies, democratic conditions, and glo- balization, our theory offers a
rich framework for scholars studying those processes. Moving beyond sexual
minorities, the findings here may serve future examinations of policy change
relevant to additional minority groups and policy domains.

Rosenbergs hollow hope thesis is wrong- misreads data


and experts
McCann 92 (Michael W. McCann, Professor of Political Science at University
of Washington and Gordon Hirabayashi Professor for the Advancement of
Citizenship, Autum 1992, Law & Social Inquiry, (JSTOR)
http://ry2ue4ek7d.scholar.serialssolutions.com/?
sid=google&auinit=MW&aulast=McCann&atitle=Reform+litigation+on+trial
&id=doi:10.1111/j.1747-4469.1992.tb00637.x&title=Law+
%26+social+inquiry&volume=17&issue=4&date=1992&spage=715&issn=0
897-6546)
Rosenberg's statistical data at times provide at
best shaky support for his conclusions . I cite two examples. First, his own data belies
his claim that civil rights organizations did not enjoy significant gains in
membership and money following the Brown decision. His table 4.3 (at 151) reveals
A second cause for skepticism is that

that NAACP income climbed from $391,000 in 1953 to over $1,000,000 by 1960, with the biggest jump in

The total for all civil rights groups, moreover, increased almost fivefold
from 1948 to 1958 and doubled between 1954 and 1957 . One need not cite Brown as
1954-57.

a sole cause-the murder of Emmett Till was important as well-to find plausible evidence of some causal

Rosenberg himself attributes the NAACP rise to an intensive


membership campaign (at 151), as if that could be separated from the legal
campaign and achievement. Statistics concerning the earnings gap in men's
and women's wages likewise are interpreted in questionable ways . Rosenberg is
linkages at stake.

correct that "women workers made a smaller percentage of their male counterparts' salaries in 1980 than

But this claim obscures his own data showing a dramatic


drop in women's wages from 1955 to 1961, when courts ignored sex
discrimination claims, and a steady climb back up again during the 1970s and
1980s (the gap in median wages closed by 8.9% between 1979 and 1989) when the courts accorded at
least minimal attention to sex discrimination in the workplace (at 209). Such a reading of the
they did in 1955!" (at 207).

data surely renders less conclusive Rosenberg's skeptical refutation that court
decisions had any positive impact . Most of the quantitative data in The Hollow Hope is
interpreted more convincingly, but the author's relentless commitment to
demonstrating limited judicial capacities at times leads him to rely on such
selective readings of the numbers. Finally, it is relevant to note that many of the
historians and social scientists Rosenberg invokes to support specific parts of
his argument do not support his overall interpretation about judicial
impotence. For example, Doug McAdam and Aldon Morris, two well-known authorities often cited by
Rosenberg to interpret the civil rights legacy, provides a rather different account than his. Indeed,
both sociologists accord the NAACP legal effort and Brown victory much
greater-partial and contingent, to be sure, but nonetheless much greatersignificance than does Rosenberg. On the combined impact of Supreme Court decisions and
federal executive policy from the 1930s to 1950s, for example, McAdam summarizes that "the symbolic
importance of the shift would be hard to overstate. It was responsible for nothing less than a cognitive
revolution within the black population regarding the prospects for change in this country's racial status

And this is one of Rosenberg's primary sources of data and alternative


interpretation! Similar conflicts with cited secondary sources were apparent
in the discussion of abortion, women's rights, and environmental policy. What
quo."10

are we to make of this? Specific examples of unconvincing data can be found in any study, of course. Nor
is it improper for an author to use evidence provided by other scholars who interpret its significance
differently. Nevertheless, Rosenberg's argument largely hinges on evidence regarding scores of discrete
causal connections.

The courts are as effective as any of the other branches


McCann 92 (Michael W. McCann, Professor of Political Science at University
of Washington and Gordon Hirabayashi Professor for the Advancement of
Citizenship, Autum 1992, Law & Social Inquiry, (JSTOR)
http://ry2ue4ek7d.scholar.serialssolutions.com/?
sid=google&auinit=MW&aulast=McCann&atitle=Reform+litigation+on+trial
&id=doi:10.1111/j.1747-4469.1992.tb00637.x&title=Law+
%26+social+inquiry&volume=17&issue=4&date=1992&spage=715&issn=0
897-6546)
Rosenberg puts so much weight on the comparative institutional
weakness of courts to formulate and implement bold reform policies deserves
some further comment. What is striking is that his argument hinges on assumptions
about comparative institutional capacity that are not well demonstrated . It
certainly is true that courts are limited in their capacities to deal with complex
social problems. But what institution is not highly limited , at least in domestic policy?
That

My reading of scholarly literature, and the newspapers for that matter, suggests an overwhelming

executive and legislative institutions at all levels have trouble


translating their will into effective social change. Rosenberg himself admits
early on that all bureaucratic institutions have limited capacities to
implement policy reforms. But that insight is lost in the rest of his analysis. Instead, the other
government branches often are romanticized as the heroic saviors of great
causes apparently botched by the feckless, hamstrung courts. In sum, to
demonstrate only that courts encounter "particular difficulties," in the
absence of detailed direct comparative institutional analysis, does not
establish their inferiority to other government actors, much less their nearly
absolute powerlessness. More important, this type of zero-sum comparative analysis itself
consensus that

obscures the fact that discrete institutions are almost never solitary organs of change in our political
system. Our system of mixed and shared powers usually requires cooperation, or at least consent, from all
branches for policy changes (at least major domestic policies) to even receive authorization, much less

After all, presidents, bureaucrats, and legislators


require deference from judges to be effective in most cases-recall the
manifold workplace regulations invalidated early in the Lochner era-as much
as judges need the others to advance change .'8 By ignoring cases where courts withheld
support-whether by inaction or op- position-for policy actions of other branches, Rosenberg thus
demonstrates little about such dynamics of institutional interaction and
interdependence. The result is a tendency to treat courts and other
institutions according to different standards: That judicial impact is
contingent on support from other branches is invoked to demonstrate the
weakness and dependence of courts, while the dependence of those other
branches on the courts is mostly ignored. In sum, the book's focus on courts as
generate significant social impacts.

independent agents of change involves an unrealistic test that every branch would fail.19

Rosenbergs constraints dont take into account lack of


judicial will and limited rulings
McCann 92 (Michael W. McCann, Professor of Political Science at University
of Washington and Gordon Hirabayashi Professor for the Advancement of
Citizenship, Autum 1992, Law & Social Inquiry, (JSTOR)
http://ry2ue4ek7d.scholar.serialssolutions.com/?
sid=google&auinit=MW&aulast=McCann&atitle=Reform+litigation+on+trial
&id=doi:10.1111/j.1747-4469.1992.tb00637.x&title=Law+
%26+social+inquiry&volume=17&issue=4&date=1992&spage=715&issn=0
897-6546)
My second reservation concerns Rosenberg's discussion of constraints that allegedly handicap the courts.

Rosenberg outlines at the start three intrinsic constraints on courts: the


limitations of rights (I), the lack of judicial independence (II), and the lack of
enforcement powers (III). But in both conception and application, these
constraints turn out to be problematic. As for the conceptual problem, constraint II is
rather vague in its explanatory significance. Courts are not independent, it is
true; the appointment process and larger culture do place limits on judicial
commitments. But it is not exactly clear why Rosenberg thinks this matters .
Sometimes he implies that dependence preempts bold judicial action, as judges defer to other branches or

this focus on institutional timidity and unwillingness to act merges


with constraint I (at 13-14). Other times, however, the author notes that judges do act boldly,
but this is in vain because those actions will be neutralized by opposition or
inertia from the other actors; this limitation thus merges with constraint III
(ibid.). All in all, the dynamics of constraint II are ambiguously defined as an explanatory tool: Is the
issue unwillingness to act or ineffectiveness of action? This uncertainty about
constraint II becomes especially important to the application of the model in
empirical case studies. The reason is that, while all three constraints are treated equally in the
public opinion;

theoretical development of the model, the empirical studies focus almost exclusively on constraint III (and
the construction of constraint II that links institutional dependence to limited enforcement powers) as the
key explanatory factor. The initial discussion hints at this, to be sure. Rosenberg writes early on about the
third constraint: "In many ways, this is the most difficult constraint to overcome" (at 31). But that turns out
to be an understatement. The bulk of the case studies involve policy areas where the court acted relatively
boldly-expanding beyond past precedents, often at odds with other government branches-but allegedly
produced little significant change due to lack of direct enforcement powers and persuasive moral

In short, Rosenberg's analysis in most of the cases is that constraint I


is weak and unimportant, while constraint III (and in part constraint II) is the
primary explanation for judicial "impotence." This inclination to focus
explanations on the lack of implementation capacity is often unconvincing.
The reason is that the author treats major decisions-Brown, Roe, etc.-as if
they gave reformers most, if not all, of what they wanted in principle. But this
is often not so. In most cases that he considers, the substance of the judicial
authority."I

decisions themselves, however bold, was usually quite limited in its transformative potential. Consider

While bravely declaring that separate schools cannot be equal, the


Court's choice (for the next 15 years) to make implementation voluntary
certainly had a lot to do with subsequent responses from both federal and
southern state officials. As Aldon Morris has written, "The position of the southern white power
Brown.

structure prevailed in the implementation ruling of May 1955 .... Predictably, white Southerners were

Was the
limited impact of Brown, we might ask, almost entirely a result of uniquely
weak judicial institutions, or the same weakness of will among the justices
that constrained other federal officials ?13 Doctrinal limitations loomed at least as large in
relieved. The Court had decided that school desegregation was a Southern problem."12

other areas. The Justices' choice to develop the privacy logic in abortion rulings reflected a moderate
ideological position that not only failed to guarantee government funding necessary to the exercise of that

Moreover,
the failure of sex discrimination rulings to greatly increase women's low
wages surely has something to do with the fact that the courts have always
treated sex discrimination less seriously than race discrimination, especially
in the workplace.15 The key point here is that Rosenberg's commitment to
demonstrating institutional weakness pushes him to slight recognition of
timid judicial will.16 More radical judicial edicts may not have generated more dramatic changes, to
be sure. But without serious critical analysis regarding the substance of the
opinions themselves, one cannot confidently conclude that "the problem is
not merely the Court's standard but the fact that it is the courts that are
pronouncing it. ... [T]he fault lies not merely with the message but with the messenger itself" (at 213;
right but actually invited restrictions on funding and other aspects of a woman's choice.14

emphasis in original). This is especially surprising in that Rosenberg acknowledges the constraint of rights
traditions early on but fails to link that constraint to both broader arguments about liberal ideological
biases and specific doctrinal limitations that progressive scholars-including especially Critical Legal Studies

Rosenberg's tendency to view


the often ambiguous, contradictory commitments of liberal judicial opinions
as "consistent," "forcefully" argued, progressive positions is likely to baffle
many legal critics. For the latter, what the Court has said in many cases accounts for far more of its
schol- ars-have developed over the past two decades.'7 Indeed,

limited impact than The Hollow Hope acknowledges.

The Supreme Court is the last and best chance for


surveillance and privacy concerns it can solve and its a
try-or-die
Harris 13 (Shane Harris is a senior staff writer at Foreign Policy, covering
intelligence and cyber security, The Supreme Court May Be the Best Hope to
Stop the NSA: Congress couldn't draw back the surveillance dragnet. But the
justices might., July 25th, 2013, http://foreignpolicy.com/2013/07/25/thesupreme-court-may-be-the-best-hope-to-stop-the-nsa/) //RL

Now that the House of Representatives has voted down an amendment that
would have significantly restricted what information the National Security
Agency can collect about Americans, the best hope of curtailing the spy
agencys powers lies with the courts. And while NSA critics have failed to
rein in the eavesdropping agency through legislative action, they may have
more luck with the third branch of government thanks to a leaked
classified document, a rare bit of good fortune for a leading civil liberties
group, and a sympathetic justice of the Supreme Court. The fact that more
than 200 lawmakers voted against a key NSA collection program, and one
authorized by the long-controversial Patriot Act, represents a victory of sorts
for surveillance critics. There has rarely been such a pronounced opposition
to surveillance authorities, and the fact that the Obama administration had to
mount a full court press to preserve the program, and still only eked out a
narrow win, may give opponents some hope that a legislative effort could be
mounted again with a different result. But there is no clear next step
legislatively. No bill or amendment on the table. Yet there is a path
forward on the judicial front. Challenges to the NSAs surveillance
programs have historically failed in large part because no one has been able
to prove he had his communications scooped up in the agencys electronic
dragnets. That information is an official secret. The American Civil Liberties
Union, one of the most stalwart opponents of the NSAs broad surveillance
authorities, failed to challenge the agencys operations in the Supreme Court
because of this Catch-22. It couldnt prove it had been spied upon, even
though the government acknowledged generally that such spying does
occur. But now, classified documents released by the ex-NSA contractor
Edward Snowden leave no doubt that at least one telecommunications
company, Verizon Business Network Services, has handed over bulk
telephone metadata to the NSA under a court order. The key for a new
challenge by the ACLU, which it filed last month, which it filed last month in
U.S. District Court, is that its a customer of Verizon Business Network
Services. Not just Verizon, but this particular division of Verizon. This is the
closest thing the group has had to a smoking gun, and conceivably it could be
sufficient to establish legal standing to bring the lawsuit. The case could end
up in the Supreme Court. But to succeed, the ACLU or any challenger
will have to convince jurists that the long-standing legal treatment of
metadata is outdated and needs to be changed. The NSAs collection of this
data is enabled by a 1979 Supreme Court ruling that telephone numbers are
not content, and therefore arent protected by the Fourth Amendments
prohibition on unreasonable searches. A telephone customer willingly hands
over his number to the service provider whenever he places a call, and
therefore cannot expect that the information is private, the court found. But
at least one justice has indicated it may be time to rethink this analysis, in
light of the fact that metadata is not only ubiquitous today, but can be
exceptionally revealing of an individuals communications patterns, his social
networks, and his movements. "This approach is ill-suited to the digital age,

in which people reveal a great deal of information about themselves to third


parties in the course of carrying out mundane tasks," Justice Sonia Sotomayor
wrote last year in concurrence with a ruling that said law enforcement
agencies must obtain a warrant before placing a GPS tracker on a suspects
car. The question of metadata wasnt before the court, but the balance
between privacy and security was. "I, for one, doubt that people would
accept without complaint the warrantless disclosure to the Government of a
list of every Web site they had visited in the last week, or month, or year,"
Sotomayor wrote. "But whatever the societal expectations, they can attain
constitutionally protected status only if our Fourth Amendment jurisprudence
ceases to treat secrecy as a prerequisite for privacy." The court may be
primed for a reinterpretation of its own rulings on metadata, which can be
even more revealing than content. But civil libertarians may not want to pop
the champagne too quickly. In that 2012 GPS case, the court also left the
door open to allowing broad surveillance with a different kind of technology:
drones. The police may need a warrant to put a tracking device on a
suspects car. But its not at all clear that they couldnt watch that individual
walking down the street using a camera on a remotely piloted aircraft. "It
may be that achieving the same result through electronic means, without an
accompanying trespass, is an unconstitutional invasion of privacy," Justice
Antonin Scalia wrote in a majority opinion. But that wasnt the question
before the court. The ruling left open the possibility that persistent aerial
surveillance of public places may, indeed, be constitutional. Congress has
shown little appetite for clarifying these issues, and has reliably voted to
expand, not limit, the surveillance powers of the executive branch. President
Barack Obamas position on the issues is not only a continuation of his
predecessors, but a change from the views he held as a candidate. In the
summer of 2008, amid another debate over the proper limits of the NSAs
spying powers, then-Sen. Obama voted in favor of a bill to allow the
interception of phone calls and emails without individual warrants. He had
initially opposed the changes, along with a provision that granted legal
immunity to telecommunications companies that participated in government
intelligence gathering. But as it became clearer that he would secure the
Democratic nomination for president, Obama changed his stance. "Given the
legitimate threats we face, providing effective intelligence collection tools
with appropriate safeguards is too important to delay," Obama said at the
time, making "a firm pledge that as president, I will carefully monitor the
program." Its not clear how carefully Obama has monitored the NSA, but he
and members of his administration have successfully, and vociferously,
defended it in Congress. The third branch of the government is now the
last, best chance for any attempt to reign in the intelligence agency
and change the legal underpinnings of how it operates.

AT Political Capital DA
Non-unique- ACA and same sex marriage were
controversial
Devaney 6/30 (Jason Devaney, writer for NewsMax, 30 Jun 2015, CNN Poll:
Majority of Americans Back Controversial Supreme Court Decisions,
https://www.newsmax.com/Newsfront/poll-majoirity-agree-supremecourt/2015/06/30/id/652942/)
The majority of Americans are in line with the Supreme Court's decisions last week regarding gay marriage

that 63 percent of
Americans felt the court was right in upholding the subsidies portion of the
Obamacare law, and 59 percent agreed that same-sex marriage should be a
Constitutional right across the country. Politically, Americans are more divided on the
polarizing cases. Seventy-nine percent of Democrats sided with the Supreme Court on the
Obamacare case, while 70 percent agreed with the court on same-sex marriage. Fifty-four percent
of conservatives, meanwhile, are against the court's ruling about Obamacare,
and 59 percent do not agree with the ruling on gay marriage . The same poll also
found that 37 percent of Americans feel the court is too liberal, the highest
figure in the history of CNN polls dating back to 1993 . Many view the Supreme Court
rulings of last week as a sign the court is moving to the left. Texas Sen. Ted Cruz, a Republican
candidate for president, called the court's decisions "lawless" Tuesday
morning. In a New York Times op-ed, Jeffrey Rosen argued that the rulings were not actually political
and the Affordable Care Act, according to a new survey. A CNN/ORC poll found

and instead were simply the product of the court looking at the cases with Congress' intent in mind.
Regarding the CNN poll, a similar survey taken in early June found that about half of Americans had at least
a moderate amount of trust in Supreme Court as it prepared to announce its decisions regarding same-sex

just 52 percent of Americans approved of the


Supreme Court's overall performance. Louisiana Gov. Bobby Jindal accused the court of not
marriage and Obamacare. Overall,

reading the constitution or the dictionary in the wake of the decisive rulings. "You now have a court that's
not reading the Constitution, not reading the dictionary," Jindal said.

The court is already seen as activist


Camp 7/3 (Frank Camp, writer for IJReview, 7/3/15 After Recent
Controversial Decisions, a Growing Number of Americans Say Ignore the
Supreme Court http://www.ijreview.com/2015/07/360640-scotuscontroversial-decisions-growing-number-americans-say-ignore-supremecourt/)
The Supreme Court ruling legalizing same-sex marriage in all 50 states was a watershed moment in United
States history. Whether or not that moment was positive or negative depends on your social and religious

the ruling has caused County clerks to resign in


multiple states, and a debate is raging about whether or not the Supreme
Court overstepped its bounds. Now, according to a new Rasmussen poll,
American resentment toward SCOTUS is building. Rasmussen reports: 33% of
Likely U.S. Voters now believe that states should have the right to ignore
federal court rulings if their elected officials agree with them. Thats up nine points from
24% when we first asked this question in February . Just over half (52%) disagree, down
from 58% in the earlier survey. While 33% may not seem like much, a rise of nine
beliefs. As IJReview previously reported,

points in just a few months is worth noting. The rise may be in response to
what conservatives are calling judicial activism on the part of the Supreme
Court. Many conservatives believe that the people should be the arbiters of
laws regarding marriage. This sentiment has bled into the presidential race. Senator Ted Cruz (RTX) has called for judicial retention elections, which would essentially allow the American people to judge
the Supremes every eight years. However, Ilya Shapiro of the Cato Supreme Court Review believes he has
a better answer: If we are going to tweak the Supreme Court because its not sufficiently responsive to
the people, adding an election element isnt the way to goIf the federal judiciary were to borrow a
structural element from the states, Id go with term limits rather than retention elections. The likelihood of
anything changing is slim-to-none, but the dramatic rise in American resentment toward SCOTUS could
play a big role in upcoming elections.

The Supreme Court has already made controversial


decisions with more to come- lethal injection,
redistricting, environmental regulations, affirmative
action, and abortion orders
Sherman 6/29 (MARK SHERMAN, Mark Sherman has covered the
Supreme Court for The Associated Press since 2006, Jun. 29, 2015 , Supreme
Court upholds use of controversial execution drug,
http://bigstory.ap.org/article/938fdd2e1bc74a0582b941fc125dff3d/justicesuphold-use-drug-implicated-botched-executions)
deeply divided Supreme Court upheld the
use of a controversial drug in lethal-injection executions Monday, even as two
dissenting justices said for the first time they think it's "highly likely" the
death penalty itself is unconstitutional . On their last day together until the fall, the
justices voted 5-4 in a case from Oklahoma that the sedative midazolam can
be used in executions without violating the Eighth Amendment prohibition on cruel
and unusual punishment. The court also divided 5-4 in cases upholding
congressional districts drawn by independent commissions and calling into
question first-ever limits on mercury emissions from power plants . In addition,
the justices also agreed to hear an important affirmative action case in the
fall and acted to keep Texas abortion clinics open amid a legal fight that
threatens to close most of them. In the dispute over the lethal-injection drug, midazolam was
WASHINGTON (AP) Trading sharp words, a

used in Arizona, Ohio and Oklahoma executions in 2014. The executions took longer than usual and raised
concerns that the drug did not perform its intended task of putting inmates into a coma-like sleep.

Justice Samuel Alito said for a conservative majority that arguments the drug
could not be used effectively as a sedative in executions were speculative
and he dismissed problems in executions in Arizona and Oklahoma as "having
little probative value for present purposes." In a biting dissent, Justice Sonia Sotomayor
said, "Under the court's new rule, it would not matter whether the state intended to use midazolam, or
instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake."
Alito responded, saying "the dissent's resort to this outlandish rhetoric reveals the weakness of its legal
arguments." In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate
whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer's opinion. "I
believe it highly likely that the death penalty violates the Eighth Amendment," Breyer said, drawing on
cases he has reviewed in more than 20 years on the Supreme Court bench. More than 100 death rowinmates have been exonerated, showing that the death penalty is unreliable, Breyer said. He said it also is
imposed arbitrarily, takes far too long to carry out and has been abandoned by most of the country. Last
year, just seven states carried out executions, he said. The two senior liberal justices joined retired Justice
John Paul Stevens, who was in the courtroom Monday, and Justice Harry Blackmun in late-career
pronouncements calling into question the use of the death penalty, although Breyer and Ginsburg stopped
short of declaring their outright opposition to capital punishment.

In 1972, the Supreme Court

struck down every state's death penalty laws. Some justices believed at the
time that this decision effectively would end capital punishment. Instead,
many states wrote new laws, and four years later the court reinstated the
death penalty, a decision in which Stevens joined. In an extremely unusual turn Monday, four justices
read their opinions from the bench in the lethal execution case. Justice Antonin Scalia, part of the court's
majority, read a brief reply to Breyer. "Welcome to Groundhog Day," Scalia said, noting that the court has
repeatedly upheld the use of capital punishment. Scalia used Breyer's own words to complain that the
liberal justices were willing to discard long-settled principles in a term in which the left side of the court
won most of the closely contested cases, though not the lethal injection dispute. "It is not often in the law
that so few have so quickly changed so much," Scalia said. Breyer employed those exact words several

The Oklahoma
case has been especially contentious from the start. The Supreme Court
became involved in January with an unusually public disagreement among
the justices over executions.
years ago at the end of a term in which the conservative justices frequently prevailed.

The court has already been particularly liberal


Goldstein 6/29 (Tom Goldstein, served as counsel in roughly 10% of all of
the Courts merits cases for the past 15 years personally arguing 35 and
teaches Supreme Court Litigation at Harvard Law School, June 29th, 2015,
The numbers on the extent to which this was a liberal Supreme Court
Term, http://www.scotusblog.com/2015/06/the-numbers-on-the-extent-towhich-this-was-a-liberal-supreme-court-term/)
There is a lot of commentary about the unusually liberal results of this Term . I
thought I would mention a few data points which back up that view of things. For present
purposes, I treat four Justices as sitting to the Courts left: Ruth Bader
Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. I treat four
Justices as sitting to the Courts right: Chief Justice John Roberts and Justices
Antonin Scalia, Clarence Thomas, and Samuel Alito. I treat Justice Anthony
Kennedy as the Courts center. I count 26 cases this Term that were both
close (5-4 or 6-3) and ideological (in the sense that they broke down principally on ideological
lines, with ideology seemingly an important factor). Of the 26 cases, the left prevailed in 19.
Those included the first 9 of the Term. The right prevailed in 7. In the 26, a Justice
on the left voted with the right a total of 3 times. In 2 cases, those votes determined the outcome and
produced a more conservative result, because Justice Kennedy or one of the conservatives voted for the
more liberal result. In the 26, a Justice on the right voted with the left 14 times. In 6 cases, those votes
determined the outcome and produced a more liberal result, because Justice Kennedy voted for the more
conservative result.

I also considered the 10 cases I consider most significant. Of


those, the left prevailed in 8. Those included the first 7 of the Term. (I mention
the early cases to give a sense of how the results must have appeared inside the Court as the Term went

The right prevailed in 2, both in the final sitting of the Term. In the 10,
no Justice on the left voted with the right; the four Justices on the left voted
together in every one of those cases. A Justice on the right voted with the left
4 times. Those votes determined the outcome in 2 cases, because Justice
Kennedy voted for the more conservative result. Note that the analysis above is skewed
along.)

against finding the Term particularly liberal by treating Justice Kennedy as the Courts center. That is true
ideologically, but he is certainly a conservative. If he were characterized that way for my analysis, the
number of defections to the left would be much higher. By that measure, a Justice on the right voted with
the left 25 times (compared with 3 times the reverse happened). That occurred in all 10 of the 10 major
cases (because no Justice on the left voted with the right in any of those cases), and determined the
outcome in all of them.

There is no single driver of the supreme court


Carrubba et al 11 (Cliff Carrubba, Associate Professor of Political Science
at Emory University, Barry Friedman Jacob D. Fuchsberg Professor of Law NYU
School of Law, Andrew D. Martin, Professor of Political Science and Law at
Washington University in St. Louis, Georg Vanberg Professor of Political
Science at UNC Chapel Hill, American Journal of Political Science April 2012,
Who Controls the Content of Supreme Court Opinions?,
http://onlinelibrary.wiley.com/store/10.1111/j.15405907.2011.00557.x/asset/j.1540-5907.2011.00557.x.pdf?
v=1&t=ic7sfpzw&s=02d340a84026718a7847a4c1f0529876aa533611)
Predominant academic and popular views hold that majority opinions of the Supreme Court reflect either

author. The argument we have


presented challenges both accounts and highlights the influence of the
median member of the signing coalition in shaping opinion content. This
result derives from taking account of two facets of judicial decision making
that have received little attention in previous models. One is that in crafting
legal rules, justices must resolve particular cases, and therefore may have preferences over which
party prevails in the dispute before them. The second is the fact that justices who
disagree with the rationale offered in an opinion are free to write
concurrences. Both features imply that justices who agree with the majority on
case disposition but are uncomfortable with the rationale offered in the
Courts opinion may not want toand need notswitch sides to the
minority. This undermines the credibility of a threat to defect and therefore reduces the median
justices bargaining power. Empirical analysis of the ideological position of Supreme
Court opinions (Clark and Lauderdale 2010) is consistent with this claim, as is
our empirical investigation of concurrence behavior. The conclusion that the
median of the signing coalition is particularly influential in shaping the
content of majority opinions has significant implications. For one, it implies that
the opinions issued by the Court are less centrist (with respect to the Court)
than generally believedopinions will be systematically drawn away from the Courts center to its
the preferences of the Courts median justice or of the opinions

wings. To illustrate the potential significance of these effects, consider the following illustration. For the
data included in our empirical test (the 19532005) terms, the median justice in the majority coalition
differs from the median justice of the Court in 65.3% of the cases. The average distance between the
median member of the majority coalition and the median justice in these cases is 0.66 on the Martin-Quinn
scale. Across terms, this average distance varies from a minimum of .25 to a maximum of 1.13. To put
these numbers into context, the difference in Martin-Quinn scores between justices Kennedy and Rehnquist
during the 2003 term was .60, and the difference between Kennedy and Roberts during the 2005 term was

who shapes the content of the opinions is likely to have


significant impact on decisions. This, in turn, implies that there may be less
consistency between opinions than we would expect if a single justice is in
the proverbial drivers seat: because the median of the signing coalition
can change from decision to decision, we may observe quite different
opinions within the same policy area even within the same natural Court. Moreover, the
argument has implications for relations within the judicial hierarchy. To the
extent that the rules announced by the Court are pulled away from the
Courts median justice, lower courts may find themselves in an awkward
position: faithful application of the legal rule (which is not located at the
position of the median) will result in a disposition that the median justice
.98. In other words,

does not favorand therefore result in a reversal if the lower courts decision
is reviewed. On the other hand, deciding the case at hand in a manner that
secures the disposition favored by the median justice of the Supreme Court
requires the lower court to announce a legal rule that is inconsistent with the
Courts prior decision.

AT: Court Stripping


Courts wont be stripped- voter unpopularity, interest
groups, and polarization
Devins 6 (Neal Devins, Goodrich Professor of Law and Professor of
Government, College of William and Mary, LINDQUIST & VENNUM
SYMPOSIUM: THE FUTURE OF THE SUPREME COURT: INSTITUTIONAL REFORM
AND BEYOND: Essay: Should the Supreme Court Fear Congress?, May, 2006,
Minnesota Law Review, (LEXIS)
http://www.lexisnexis.com/lnacui2api/api/version1/getDocCui?
oc=00240&hnsd=f&hgn=t&lni=4K3D-C620-00CW809G&hns=t&perma=true&hv=t&hl=t&csi=270944%2C270077%2C11059%
2C8411&secondRedirectIndicator=true)
Unlike the Warren era (where a potent coalition of lawmakers was truly upset
with Court decision making), today's Congress is not at all disappointed with
Rehnquist Court decision making. Its anticourt rhetoric, for reasons detailed in
Part II, is tied to lawmaker incentives to strengthen ties with their political
base. n118 Unless and until the goals of social conservatives are also acceptable to majorities in both
houses of Congress and the White House, the current wave of attacks against the
judiciary should be seen as symbolic politics. Indeed, even if the social conservative
agenda becomes the dominant agenda in Congress and the White House, there is good reason to
think that elected officials would steer away from jurisdiction-stripping
measures. n119 First, median voters [*1359] have historically backed judicial
independence. For example, although most Americans are disappointed with individual Supreme
Court decisions, there is a "reservoir of support" for the power of the Court to
independently interpret the Constitution . n120 Consequently, even though some
Supreme Court decisions trigger a backlash by those who disagree with the
Court's rulings, the American people nonetheless support judicial review and
an independent judiciary. n121 Indeed, even President George W. Bush and Senate majority
leader Bill Frist backed "judicial independence" after the federal courts refused to challenge state court

there is an additional cost to lawmakers


who want to countermand the courts through coercive court-curbing
measures. Specifically, powerful interest groups sometimes see an
independent judiciary as a way to protect the legislative deals they make. n123
factfinding in the Terri Schiavo case. n122 Second,

In particular, interest groups who invest in the legislative process by securing legislation that favors their
preferences may be at odds with the current legislature or executive (who may prefer judicial

Court-curbing measures "that


impair the functioning of the judiciary" are therefore disfavored because they
"impose costs on all who use the courts, including various politically effective
groups and indeed the beneficiaries of whatever legislation the current
legislature has enacted." n124 Third (and correspondingly), lawmakers who disapprove
of court decision making can usually express that disapproval without
pursuing court-curbing legislation. This is especially true of federalism rulings. Rather than
interpretations that undermine the original intent of the law).

foreclose democratic outlets, federalism rulings can be circumvented by both Congress [*1360] and the
states. n125 Congress can advance the same legislative agenda by making use of another source of

Interest groups, moreover,


need not rely exclusively on Congress. They can also turn to the states to
federal power and/or enacting a scaled-down version of the bill. n126

enact state versions of the very law that Congress could not enact. n127 Rightsbased rulings, in contrast, severely limit lawmaker responses. Consider, for example, abortion rights. After
Roe, neither federal nor state lawmakers could regulate abortion in the first trimester. n128 Likewise,
Supreme Court decisions on school busing and school prayer could not be nullified through legislation.

At the same time, rights-based rulings do not completely foreclose


democratic outlets. Congress can eliminate federal funding and otherwise
express its disapproval of the Supreme Court. n130 Fourth, jurisdictionstripping measures do not nullify Supreme Court rulings (or, for that matter,
any court ruling). Consequently, since proponents of court-stripping cannot
count on state courts to back their policy agenda, these bills may not
accomplish all that much. n131 Accordingly, interest groups may be better off pursuing their
n129

substantive agenda through funding bans, constitutional amendments, the enactment of related
legislation, and the appointment of judges and Justices. Court-curbing measures, in contrast, seem more a
rhetorical rallying call than a roadmap for change. [*1361] That the Roberts Court need not worry about
jurisdiction-stripping legislation is important, but ultimately does not answer the question of whether the
Court should fear Congress. Congress, after all, can slap the courts down in other ways. n132

changes in Congress over the past twenty years suggest that the
Roberts Court has less reason to fear Congress than did the Warren or Burger
Courts. As detailed in Part II, today's lawmakers are less engaged in constitutional
matters and less interested in asserting their prerogative to independently
interpret the Constitution. Correspondingly, lawmakers place relatively more
emphasis on expressing their opinions than on advancing their policy
preferences. Consequently, even though the Rehnquist Court invalidated more federal statutes than
Nevertheless,

any other Supreme Court, Congress did not see the Court's federalism revival as a fundamental challenge

Lawmakers, instead, preferred to appeal to their base


by speaking out on divisive social issues - launching rhetorical attacks against
lower federal courts and state courts
to congressional power. n133

Court-stripping isnt terminal defense lower courts


follow the Supreme Courts mandate anyway
Ronald Weich, October 2001, "Upsetting Checks and Balances,"
https://www.aclu.org/sites/default/files/FilesPDFs/ACF47C9.pdf
As a practical matter, court-stripping may be self-defeating. Such legislation
is typically motivated by congressional anger toward the content of certain
court rulings. But removing future jurisdiction over the issue may simply
serve to lock in bad precedent a conundrum even some critics of so-called
activist judging have acknowledged. Former Judge Bork notes that: Some
state courts would inevitably consider themselves bound by the federal
precedents; others, no longer subject to review, might not. The best that
Congress could hope for would be lack of uniformity. This is a far cry from
amending the Constitution or even overruling a case. While it may seem
preferable to some to lack uniformity on a particular issue rather than to have
a repugnant uniform rule, the government could not easily bear many such
cases and certainly could not long endure a complete lack of uniformity in
federal law. Thus there are practical limitations on excessive use of the
Exceptions Clause. More troublesome is that court-stripping defeats the spirit
of the Constitution. The Framers took care to create an independent judiciary

to safeguard individual liberty. Removing important issues from the purview


of the courts, especially those concerning the rights of unpopular minorities,
is a direct assault on these constitutional protections. By the same token,
Congress does great harm to the integrity of the federal judiciary when it
leaves issues before the courts, but attempts to manipulate how judges may
remedy violations of constitutional or statutory rights. Even scholars who
believe that the Constitution allows significant congressional control of
federal jurisdiction generally agree it would be unwise to invoke it over any
significant category of federal law or use it to achieve a desired substantive
outcome. Thus Professor Gerald Gunther, writing at the time Congress was
considering court-stripping bills in the early 1980s regarding abortion, busing
and school prayer, concluded I would urge the conscientious legislator to
vote against the recent jurisdiction-stripping devices because they are unwise
and violate the spirit of the Constitution, even though they are, in my view,
within the sheer legal authority of Congress. Put another way, [w]hat may
be conceivable in theory would be devastating in practice to the real world
system of checks and balances that has enabled our constitutional system to
function for 200 years.

No Court Stripping- its impossible to get a majority


Grove 12 (Tara Leigh Grove, Associate Professor, William and Mary Law
School, FEDERAL COURTS, PRACTICE & PROCEDURE: ARTICLE: A (MODEST)
SEPARATION OF POWERS SUCCESS STORY, April, 2012, Notre Dame Law
Review, http://www.lexisnexis.com/lnacui2api/api/version1/getDocCui?
oc=00240&hnsd=f&hgn=t&lni=5633-19X0-00CTS05R&hns=t&perma=true&hv=t&hl=t&csi=270944%2C270077%2C11059%
2C8411&secondRedirectIndicator=true)
The first barrier to jurisdiction-stripping legislation is the lawmaking process
of Article I, which requires all federal legislation to pass through two
chambers of Congress and be presented to the President. n30 These
lawmaking procedures effectively create a supermajority requirement for
every piece of federal legislation and [*1654] thereby give political factions even political minorities - considerable power to "veto" legislation . n31 Recent
social science research suggests that political actors have a strong incentive to use this
structural veto to block jurisdiction-stripping proposals. Political scientists assert that,
in our politically divided society, the overall content of federal court decisions is
generally favored by at least one major political faction . n32 Such political
supporters of the judiciary have good reason both to empower the federal
judiciary and to block court-curbing proposals. n33 Notably, this political
support is tied to the constitutional structure . The appointment and confirmation process
established by the Constitution (requiring both presidential and senatorial approval) effectively guarantees

Thus, our process


helps ensure that, at least at the outset, a judge's views on constitutional and
other legal issues align to some degree with those of political leaders . As social
that each federal judge has been selected by a dominant political group. n34

scientists concede, the fact that judges are chosen by a dominant political faction does not mean that
federal courts always issue decisions that accord with the views of that faction. n35 But this political group

does tend to favor the overall content of federal court decisions .

The selection process of


Article II thus gives a major political faction an [*1655] incentive to support
the relatively "friendly" judiciary that it put in place . For example, in the late nineteenth
century, the Republican Party was dominated by pro-business conservatives who sought to advance their
economic agenda through the federal judiciary.

The president will block court stripping


Grove 12 (Tara Leigh Grove, Associate Professor, William and Mary Law
School, FEDERAL COURTS, PRACTICE & PROCEDURE: ARTICLE: A (MODEST)
SEPARATION OF POWERS SUCCESS STORY, April, 2012, Notre Dame Law
Review, http://www.lexisnexis.com/lnacui2api/api/version1/getDocCui?
oc=00240&hnsd=f&hgn=t&lni=5633-19X0-00CTS05R&hns=t&perma=true&hv=t&hl=t&csi=270944%2C270077%2C11059%
2C8411&secondRedirectIndicator=true)
The Article I lawmaking process has thus proven to be an important
safeguard for the federal judiciary. Political factions have repeatedly used
their structural veto to block jurisdiction-stripping efforts. But there is an
additional structural safeguard: the executive branch . The executive has various tools
at its disposal to oppose constitutionally questionable legislation. The President can veto or
threaten to veto problematic legislation. n65 The executive can also use its
role in enforcing federal laws to ensure that laws are applied in a manner that
accords with constitutional values. n66 Social science research suggests that the
executive branch has a strong incentive to use this constitutional authority to
oppose efforts to curb federal jurisdiction . First, scholars have argued that the
President often advances his constitutional philosophy through litigation in
the federal courts. n67 Accordingly, the President has some incentive [*1660]
to defend the scope of federal jurisdiction over constitutional claims. The
President should have a particularly overriding interest in protecting the
Supreme Court's appellate jurisdiction, because its "decisions ... establish the
legal and ideological framework within which [the lower courts] ... operate."
n68 These presidential incentives are reinforced by the institutional incentives of the Department of

The Solicitor General is in charge of virtually all federal litigation in


the Supreme Court. n70 Thus, as former Solicitor General Drew Days put it, "once cases reach the
Justice. n69

Supreme Court, the Solicitor General plays an important role in the development of American law" and can
have a substantial "impact upon the establishment of constitutional and other principles." n71

This

institutional position gives the DOJ a strong interest in protecting the


Supreme Court's appellate review power. By defending the authority of the
Supreme Court, the DOJ can maximize its own power and influence over the
development of federal law. n72 [*1661] This social science research suggests that the
executive branch has a strong incentive to block the two types of jurisdictionstripping measures that most concern scholars: efforts to strip the Supreme
Court's appellate jurisdiction and federal jurisdiction over constitutional
claims.

AT-COURTS CP COURTS BAD

Wont Solve Precedent


Legal precedents are ineffective; debate is never-ending
Pierre Schlag, 1985, "Rules and Standards,"
https://lawweb.colorado.edu/profiles/pubpdfs/schlag/schlagUCLALR.pdf
Every student of law has at some point encountered the bright line rule and
the flexible standard. In one torts casebook, for instance, Oliver Wendell
Holmes and Benjamin Cardozo find themselves on opposite sides of a railroad
crossing dispute. They disagree about what standard of conduct should
define the obligations of a driver who comes to an unguarded railroad
crossing. Holmes offers a rule: The driver must stop and look. Cardozo rejects
the rule and instead offers a standard: The driver must act with reasonable
caution. Which is the preferable approach? Holmes suggests that the
requirements of due care at railroad crossings are clear and, therefore, it is
appropriate to crystallize these obligations into a simple rule of law. Cardozo
counters with scenarios in which it would be neither wise nor prudent for a
driver to stop and look. Holmes might well have answered that Cardozos
scenarios are exceptions and that exceptions prove the rule. Indeed, Holmes
might have parried by suggesting that the definition of a standard of conduct
by means of a legal rule is predictable and certain, whereas standards and
juries are not. This dispute could go on for quite some time. But lets leave
the substance of this dispute behind and consider some observations about
its form. First, disputes that pit a rule against a standard are extremely
common in legal discourse. Indeed, the battles of legal adversaries (whether
they be judges, lawyers, or legal academics) are often joined so that one side
is arguing for a rule while the other is promoting a standard. And this is true
regardless of whether the disputes are petty squabbles heard in traffic court
or cutting edge controversies that grace the pages of elite law reviews. As
members of the legal community, we are forever involved in making
arguments for or against rules or standards. This brings us to a second
observation: The arguments we make for or against rules or standards tend
to be pretty much the same regardless of the specific issue involved. The
arguments are patterned and stereotyped; the substantive context in which
the arguments arise hardly seems to influence their basic character. The
arguments are drearily predictable, almost routine; they could easily be
canned for immediate consumption in a Gilberts of legal reasoning. But if we
accept these two observations, the implications are far from dreary or
routine. On the contrary, it follows that much of legal discourse (including the
very fanciest law-talk) might be nothing more than the unilluminating
invocation of canned pro and con arguments about rules and standards.
This prospect is neither dreary nor routine; it is, however, somewhat
humbling. Lest undue humility get the upper hand, there are two major ways
of avoiding this vexing embarrassment. First, we can argue that the two
observations above are wrong. Unfortunately, I happen to think that they are
in some sense correct-and part of this Article is devoted to supporting this
contention. Second, we can argue that even if the observations are correct,

there is more wisdom or rationality or sense (or other good stuff) to the rules
v. standards dispute than first meets the eye. In other words, even if rules v.
standards disputes are stereotyped, almost caricatured, forms of argument,
there may be more substance to these arguments about form than we might
have guessed. But I dont think so: Ultimately, all the more promising
conventional ways of understanding the rules v. standards dispute will turn
out to be located within the bounds of that dispute. The conventional forms of
legal thought allow us no place outside of the rules v. standards dichotomy
from where we can make sense of the dispute. In the end, no explanation (or
all explanations) of the rules v. standards dispute is left standing. The
attempt to tie form to substance is just so much form.

Legal precedents ultimately fail due to debate


Pierre Schlag, 1985, "Rules and Standards,"
https://lawweb.colorado.edu/profiles/pubpdfs/schlag/schlagUCLALR.pdf
A conclusion in a law review article is usually a tidy summation of what has transpired during the course of
the reading. The virtue of a conclusion is that it ties together all the various strands of the article and
synthesizes the various parts into a sensible bit of legal wisdom, complete, finished, and, in appearance at
least, unassailable. There is something comical about this ritual. For if we are convinced of anything, it is

there are no conclusions, that things go on, and that everything will always be
revised. A conclusion here would be particularly ironic. After all, this Article is about a dialectic I claim is
that

omnipresent, yet bereft of any synthesis. What to say? Here are a couple of possibilities: The mainstream

much of our legal argumentation seems to track a dialectic that is


incapable of resolution. The steps in this argumentation are patterned and predictable. We
cannot be sure whether the argumentation reflects anything of substance or
not. Therefore, it behooves us to be on our guard when we find ourselves making these arguments and to
message is that

consider whether they truly do reflect concerns of substance or not. The danger of the dialectic is that we
may think we are discovering something about substance, when in fact we are only discovering something

Much of legal argument tracks


the dialectic. This dialectic cannot be anchored in matters of substance.
Indeed, the very attempt to explain this aspect of form in terms of substance
succeeds in doing quite the reverse: It puts us on the road to explaining
substance by means of form. The short of it is that much of legal
argumentation is simply an exercise in the formalistic mechanics of a
dialectic which doesnt go anywhere. The point of further study ought to be to ascertain why
about form. A less mainstream conclusion might go like this.

and how it is that we allow such silly games to have such serious consequences.

No legal weight behind precedents


Neil Duxbury, 10-28-2005, "The Authority of Precedent: Two Problems,"
https://www.mcgill.ca/files/legal-theory-workshop/Neil-Duxbury-McGillpaper.pdf
The proposition that laws bind, while unlikely to startle anybody, is one which
legal philosophers rightly accord serious attention. The binding force of legal
rules, the classical legal positivist claims, is attributable to the fact that they
are backed by sanctions emanating from a habitually-obeyed authoritative

source. Hans Kelsen repeatedly emphasized in process of developing his socalled Pure Theory of Law that these rules or norms are not moral norms:
morality merely condones conduct conforming to, and disapproves of conduct
contravening, its norms, whereas law is a coercive order which seeks to
attach sanctions to behavior which opposes its norms. In this respect, he
noted the Pure Theory of Law continues in the tradition of nineteenth-century
positivist legal theory the theory according to which, in the words of John
Austin, [t]he binding virtue of a law lies in the sanction annexed to it. It is
well known that this theory of law as coercive orders was dismantled by H. L.
A. Hart in The Concept of Law. Yet, before the theory had come under Harts
scrutiny, at least one of its shortcomings was starkly highlighted by the
doctrine of stare decisis. As any law student knows, stare decisis is the idea
that precedents ought to be adhered to when, in later cases, the material
facts are the same. The doctrine brings with it numerous difficulties not
least that of determining which cases are materially alike. But the difficulty
which stare decisis posed for classical legal positivism was very specific.
Though a decision of a court must (unless successfully appealed) be accepted
by the litigants, and though it may establish a precedent which is more
generally binding on the citizenry, it is not immediately clear what it means
to say even though we often do say that the decision binds future courts.
Cross and Harris, in Precedent in English Law, observe that [t]he peculiar
feature of the English doctrine of precedent is its strongly coercive nature.
English judges, unlike their counterparts in many other jurisdictions, must
have regard to the previous decisions of higher courts, and are sometimes
obliged to follow a previous case although they have what would otherwise
be good reasons for not doing so. As a piece of doctrinal description, this
statement is unremarkable. But from the perspective of classical legal
positivism, it poses a serious difficulty. For what does it mean to say that
precedents bind? The answer seems to be that precedents bind because
judges consider themselves to be bound by them.

No punishment for not following precedent


Neil Duxbury, 10-28-2005, "The Authority of Precedent: Two Problems,"
https://www.mcgill.ca/files/legal-theory-workshop/Neil-Duxbury-McGillpaper.pdf
Yet if precedents bind, must there not be an identifiable sanction applicable
to a judge who refuses to respect stare decisis? If a judge persistently and
vociferously declined to follow cases by which he was bound, Cross and
Harris reply, it is possible that steps would be taken to remove him from his
office, but it would be a mistake to think in terms of such drastic sanctions for
the judges obligation to act according to the rules of precedent. Those rules
are rules of practice, and, if it is thought to be desirable to speak of a
sanction for the obligation to comply with them, it is sufficient to say that
non-compliance might excite adverse comment from other judges. Needless
to say, there are not many examples of such comment in the law reports

because the obligation to follow a practice derives its force from the fact that
the practice is followed with a high degree of uniformity. The idea of the
doctrine of precedent creating an occasion for judicial lawbreaking is treated
by Cross and Harris with near bewilderment. The question of what ought to
be done about a judge who flagrantly abuses the doctrine does not tax them
for the simple reason that judges do not behave thus. Although a formal
sanction could be applied to a judge for eschewing precedent, the likelihood
of this occurring is remote because concerns about reputation and fear of
informal criticism motivate judges to treat precedents as binding upon them.
There is nothing nave about Cross and Harriss assessment. The rules of
precedent are prudential rules; judges apply them so as to maintain a system
of case-law rather than fear breaking them in case they are punished. Where
judges do not wish to follow a precedent it is commonly assumed that they
will either distinguish the precedent from the present case or, when
permissible, overrule the precedent on the basis of an especially compelling
reason or set of reasons. Neither judges nor jurists pay much attention to the
question of what should happen to the judge who is manifestly disrespectful
towards and neglectful of precedent, probably because that judge rarely if
ever exists outside fictional literature. For the classical legal positivist,
however, the idea that precedents bind future decision makers is intelligible
only if there is stipulated a sanction which will be prima facie applicable to
those decision makers when they ignore precedents.

Wont Solve NSA Compliance


NSA will not comply
Patrick

Toomey,, 6-10-2014, "Too Big To Comply? NSA Says Its Too Large, Complex to

Comply With Court Order," American Civil Liberties Union, https://www.aclu.org/blog/too-bigcomply-nsa-says-its-too-large-complex-comply-court-order

In an era of too-big-to-fail banks, we should have known it was coming: An intelligence agency too big to rein in and brazen enough to say
so. In a remarkable legal filing on Friday afternoon, the NSA told a federal court that its spying operations are too massive and technically

The NSA, in other words, now says that it


cannot comply with the rules that apply to any other
party before a court the very rules that ensure legal accountability because it is
too big. The filing came in a long-runninglawsuit filed by the Electronic Frontier Foundation challenging the NSA's warrantless
complex to comply with an order to preserve evidence.

collection of Americans' private data. Recently, the plaintiffs in that case have fought to ensure that the NSA is preserving relevant evidence
a standard obligation in any lawsuit and not destroying the very data that would show the agency spied on the plaintiffs' communications.

the NSA appears to believe it is exempt


from the normal rules. In its filing on Friday, the NSA told the court: [A]ttempts to fully comply with the
Yet, as in so many other instances,

Court's June 5 Order would be a massive and uncertain endeavor because the NSA may have to shut down all databases and systems that
contain Section 702 information in an effort to comply. For an agency whose motto is "Collect It All," the NSA's claim that its mission could be
endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is
known to process and warehouse for its own future use. The NSA also argued that retaining evidence for EFF's privacy lawsuit would put it in violation of other
rules designed to protect privacy.

But what the NSA presents as an impossible choice between accountability and privacy is actually a false one.

Surely, the NSA with its ability to sift and sort terabytes of information can devise procedures that allow it to preserve the plaintiffs' data
here without retaining everyone's data. The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how

the new
assertions continue the NSA's decade-long effort to
evade judicial review at least in any public court. For years, in cases
like the ACLU's Amnesty v. Clapper, the NSA evaded
review by telling courts that plaintiffs were
speculating wildly when they claimed that the agency
can a court ever test whether it is in fact complying with the Constitution? Perhaps most troubling,

had intercepted their communications. Today, of course, we know those claims


were prescient: Recent disclosures show that the NSA was
scanning Americans' international emails en masse all along. Now,
the NSA would put up a new roadblock claiming that it is unable to preserve the very evidence that would allow a court to fully and fairly
review those activities. As Brett Max Kaufman and I have written before, our system of oversight is broken this is only the latest warning

The NSA has grown far beyond the ability of its


overseers to properly police its spying activities. That
includes the secret FISA Court, which has struggled to
monitor the NSA's compliance with basic limits on its
surveillance activities. It includes the congressional oversight
committees, which operate with too little information
and too often appear captive to the interests of the
intelligence community. And, now we are to believe, it includes the
public courts as well.
sign flashing red.

NSA has historically ignored the law, will not follow


Thomas Gaist, 12-27-2014, "The Authority of Precedent: Two Problems,"
https://www.mcgill.ca/files/legal-theory-workshop/Neil-Duxbury-McGillpaper.pdf
The US National Security Agency (NSA) published a cache of transparency
reports on its web page Wednesday in response to a Freedom of Information
Act (FOIA) request submitted by attorneys for the American Civil Liberties
Union (ACLU). The internally generated NSA reports, covering the years 2001-2013 and
previously submitted to the Presidential Intelligence Oversight Board, show that
NSA agents have consistently violated US law and the agency's own internal regulations over the
past decade. The timing of the release, on Christmas Eve, was clearly designed
to ensure that the event could be buried by the US media. The reports show that
NSA agents have carried out a range of illegal activities, including electronic spying on US
persons (USP), stockpiling data that the agency is required by law to delete, continuing
surveillance against targets after they have been found to be USP, and disseminating data
acquired from surveillance against USP to other government agencies and entities. Agents
specifically targeted individuals not covered by any existing order from the Foreign Intelligence
Surveillance Court and used electronic surveillance technology to spy on significant others,
spouses, and other associates. Agents have failed to implement legally required minimization
procedures, which supposedly remove individuals who have been incidentally swept up in the

electronic dragnet from the agencys constantly expanding set of surveillance targets, frequently
neglecting to remove targets from surveillance lists even after they are known to the agency to be
USP or other unauthorized targets. The reports make clear that NSA agents have enormous
leeway to spy on targets of their choosing, and that the already minor restrictions on spying
stipulated by the Foreign Intelligence Surveillance Act are not seriously enforced. Making a
mockery of claims that the agency is implementing greater transparency,
huge portions of the reports are either redacted entirely or redacted to the
point of being completely unintelligible. In one report, immediately under the
heading Computer Network Exploitation, which refers to the US
governments hacking and electronic data mining programs, the first several
large paragraphs are completely redacted. All numbers referring to the
quantity of violations have been redacted. One report states, for instance,
that agents executed a REDACTED number of overly broad database
queries, which led to the unlawful targeting of USP. Ominous references to
the expansion of surveillance operations within the US appear in one of the
NSA reports, dated 2010. After a lengthy redaction, the report states, If
approved, this change [text containing referent completely redacted] would
align NSA/CSSs procedures with the Federal Bureau of Investigations (FBI)
procedures, which permit such searches. Brushing aside the overwhelming
evidence provided by Edward Snowdens leaks and substantiated in its own
reports, the NSA claims in a statement on the documents that the vast
majority of compliance incidents involve unintentional technical or human
error. The NSA goes to great lengths to ensure compliance with the
Constitution, laws and regulations, the official NSA statement reads. In
reality, the NSAs own documents further substantiate the mountain of evidence showing that
the agency is responsible for systematic crimes against US and international law.

NSA will fail to comply with legislature, historic examples


prove
David Lerman, 12-24-2014, "U.S. Spy Agency Reports Improper
Surveillance of Americans," Bloomberg,
http://www.bloomberg.com/news/articles/2014-12-24/spy-agency-to-releasereports-documenting-surveillance-errors
(Bloomberg) -- The National Security Agency today released reports on
intelligence collection that may have violated the law or U.S. policy over more
than a decade, including unauthorized surveillance of Americans overseas
communications. The NSA, responding to a Freedom of Information Act
lawsuit from the American Civil Liberties Union, released a series of required

quarterly and annual reports to the Presidents Intelligence Oversight Board


that cover the period from the fourth quarter of 2001 to the second quarter of
2013. The heavily-redacted reports include examples of data on Americans
being e-mailed to unauthorized recipients, stored in unsecured computers
and retained after it was supposed to be destroyed, according to the
documents. They were posted on the NSAs website at around 1:30 p.m. on
Christmas Eve. In a 2012 case, for example, an NSA analyst searched her
spouses personal telephone directory without his knowledge to obtain names
and telephone numbers for targeting, according to one report. The analyst
has been advised to cease her activities, it said. Other unauthorized cases
were a matter of human error, not intentional misconduct. Last year, an
analyst mistakenly requested surveillance of his own personal identifier
instead of the selector associated with a foreign intelligence target,
according to another report. In 2012, an analyst conducted surveillance on a
U.S. organization in a raw traffic database without formal authorization
because the analyst incorrectly believed that he was authorized to query due
to a potential threat, according to the fourth-quarter report from 2012. The
surveillance yielded nothing. The NSAs intensified communications
surveillance programs initiated after the Sept. 11, 2001, terrorist attacks on
New York and Washington unleashed an international uproar after they were
disclosed in classified documents leaked by fugitive former contractor Edward
Snowden last year. Congress has considered but not passed new legislation to
curb the NSAs collection of bulk telephone calling and other electronic data.
The Privacy and Civil Liberties Oversight Board, created by lawmakers under
post-Sept. 11 anti-terrorism laws, issued a 238-page report in January urging
the abolition of the bulk collection of Americans phone records. The fivemember board said the program has provided only minimal help in
thwarting terrorist attacks. The ACLU, which filed a lawsuit to access the
reports, said the documents shed light on how the surveillance policies of
NSA impact Americans and how information has sometimes been misused.
The government conducts sweeping surveillance under this authority -
surveillance that increasingly puts Americans data in the hands of the NSA,
Patrick C. Toomey, staff attorney with the ACLUs National Security Project,
said in an e-mail. Despite that fact, this spying is conducted almost entirely
in secret and without legislative or judicial oversight, he said. The reports
show greater oversight by all three branches of government is needed,
Toomey added. The ACLU filed suit to turn a spotlight on an executive order
governing intelligence activities that was first issued by President Ronald
Reagan in 1981 and has been modified many times since then. The order
allows the NSA to conduct surveillance outside the U.S. While the NSA by law
cant deliberately intercept messages from Americans, it can collect
messages that get vacuumed up inadvertently as part of its surveillance of
foreigners overseas.

NSA fails to comply with legislature, historic examples


proves
Charlie Savage and Scott Shane, 8-23-2013, "Surveillance Court castigated
NSA; Surveillance within US violated Constitution, judge said in 2011 rebuke"
The International Herald
A federal judge sharply rebuked the National Security Agency in 2011 for
repeatedly misleading the court that oversees its surveillance on domestic
soil, including a program that is collecting tens of thousands of domestic emails and other Internet communications of Americans each year, according
to a secret ruling made public this week. The ruling, by Judge John D. Bates,
then serving as chief judge on the Foreign Intelligence Surveillance Court,
involved an N.S.A. program that systematically searches the contents of
Americans' international Internet communications, without a warrant, in a
hunt for discussions about foreigners who have been targeted for
surveillance. The Justice Department had told Judge Bates that N.S.A. officials
had discovered that the program had also been gathering domestic
messages for three years. Judge Bates found that the agency had violated
the U.S. Constitution and declared the problems part of a pattern of
misrepresentation by agency officials in submissions to the secret court.
Wednesday's release of the ruling, the subject of a Freedom of Information
Act lawsuit, was the latest effort by the Obama administration to gain control
over revelations about N.S.A. surveillance prompted by leaks by the former
agency contractor Edward J. Snowden. The collection is part of a broader
program under a 2008 law that allows warrantless surveillance on domestic
networks as long as it is targeted at noncitizens abroad. The purely domestic
messages collected in the hunt for discussions about targeted foreigners
represent a relatively small percentage of what the ruling said were 250
million communications intercepted each year in that broader program. While
the N.S.A. fixed problems with how it handled those purely domestic
messages to the court's satisfaction, the 2011 ruling revealed further issues.
''The court is troubled that the government's revelations regarding N.S.A.'s
acquisition of Internet transactions mark the third instance in less than three
years in which the government has disclosed a substantial misrepresentation
regarding the scope of a major collection program,'' Judge Bates wrote. One
of the examples was redacted in the ruling. Another involved a separate
N.S.A. program that keeps logs of all domestic phone calls, which the court
approved in 2006 and which came to light in June as a result of leaks by Mr.
Snowden. In March 2009, a footnote said, the surveillance court learned that
N.S.A. analysts were using the phone log database in ways that went beyond
what the judges believed to be the practice because of a ''repeated
inaccurate statements'' in government filings to the court. ''Contrary to the
government's repeated assurances, N.S.A. had been routinely running
queries of the metadata using querying terms that did not meet the standard
for querying,'' Judge Bates recounted. He cited a 2009 ruling that concluded
that the requirement had been ''so frequently and systematically violated

that it can fairly be said that this critical element of the overall ... regime has
never functioned effectively.'' The Electronic Frontier Foundation, a free
speech and privacy rights group, sued to obtain the ruling after Senator Ron
Wyden, an Oregon Democrat who sits on the Senate Intelligence Committee,
fought last summer to declassify the basic fact that the surveillance court
had ruled that the N.S.A. had violated the Fourth Amendment of the
Constitution, which guards against unreasonable searches. In a statement,
Mr. Wyden - an outspoken critic of N.S.A. surveillance - said declassification of
the ruling was ''long overdue.'' He maintained that while the N.S.A. had
increased privacy protections for purely domestic and unrelated
communications that were swept up in the surveillance, the collection itself
''was a serious violation of the Fourth Amendment.'' Mark Rumold of the
Electronic Frontier Foundation praised the administration for releasing the
document with relatively few redactions, although he criticized the time and
the difficulty in obtaining it. But he also said the ruling showed the
surveillance court was not equipped to perform adequate oversight of the
N.S.A. ''This opinion illustrates that the way the court is structured now, it
cannot serve as an effective check on the N.S.A. because it's wholly
dependent on the representations that the N.S.A. makes to it,'' Mr. Rumold
said. ''It has no ability to investigate. And it's clear that the N.S.A.
representations have not been entirely candid to the court.'' A senior
intelligence official, speaking to reporters in a conference call, portrayed the
ruling as showing that N.S.A. oversight was robust and serious. He said that
some 300 N.S.A. employees were assigned to seek out even inadvertent
violations of the rules and that the court conducted ''vigorous'' oversight.

Hollow Hope DA
Even if the courts rule progressive, they will not and
cannot enact actual social change they will leave
loopholes and lower institutions will refuse to comply
legal history analysis proves litigation is a hollow hope
Rosenberg 5 (Dr. Gerald Rosenberg, Associate Professor of Political
Science and Lecturer in Law, University of Chicago, B.A., Dartmouth College,
1976; M.A., Oxford University, 1979; J.D., 1983, University of Michigan; Ph.D.,
1985, Yale University, Courting Disaster: Looking for Change in All the Wrong
Places, 54 Drake Law Review 795 (2005),
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?
article=2922&context=journal_articles) //RL

III. THE ILLUSION OF PROGRESS An obvious response to the discussion of the


historic role of the Court as a protector of privilege is that history is not
destiny. Merely because the Court has acted in defense of privilege for most
of its history does not mean it is destined to always so act. Indeed, many
people believe the role of the Court fundamentally changed in the post-World
War II era. The Court, many claim, became a great defender of the relatively
disadvantaged. While history may not determine the future, structural
constraints limit it. 86 That is, it is more likely than not that the Court will
consistently, over time, support conservative outcomes. This is the case for
four main reasons. First, the appointment process means that federal judges,
and particularly Supreme Court Justices, must be broadly acceptable.
Presidents are unlikely to nominate radical Progressives and the Senate is
even less likely to confirm such nominees. This is because Progressives lack
the political support that would make their appointments broadly acceptable.
Second, the Constitution is a conservative document. It protects private
control over the allocation and distribution of resources. It does not provide
for basic Progressive rights such as employment, health care, decent
housing, adequate levels of welfare, or clean air. Third, the Court is
constrained from pushing too far ahead of the positions of the other
branches because it needs their support to implement its decisions and is
susceptible to sanctions. Fourth, the Court lacks the power to implement its
decisions. Thus, even if it overcomes the first three constraints and issues an
opinion that furthers the Progressive agenda, that decision is unlikely to be
implemented. This point is illustrated with brief discussion of three important
cases. 86. argument. See ROSENBERG, supra note 4, at 9-41 for further
development of this [Vol. 54 HeinOnline -- 54 Drake L. Rev. 808 2005-2006
Courting Disaster A. The Victory That Wasn't: Brown v. Board of
Education 87 Brown v. Board of Education may be the most well-known
and widely celebrated case in Supreme Court history. 88 In declaring that

racial segregation of public schools was unconstitutional, the Court


repudiated its prior, pro-segregation approach to the Constitution. This was
clearly for the good but the question for Progressives is whether Brown made
a difference in ending race-based segregation in public schools in particular,
and racial discrimination more broadly. The answer is no. On the most
straight-forward level, public schools remained segregated after
Brown. A decade after Brown virtually nothing had changed for
African-American students living in the eleven states of the former
Confederacy that required race-based school segregation by law. For
example, in the 1963-1964 school year, barely one in one hundred (1.2%) of
these African-American children was educated in a nonsegregated school. 89
That means that for nearly ninety-nine of every one hundred AfricanAmerican children in the South a decade after Brown, the finding of a
constitutional right changed nothing.90 Change did come to the South, but
that occurred only after the Congress acted-providing monetary incentives
for desegregation and threatening to cut off federal funds if segregation was
maintained. 91 More subtly, there is little or no evidence that supports
the claims that Brown gave civil rights salience, pressed political
elites to act, pricked the consciences of whites, legitimated the
grievances of blacks, or inspired the activists of the civil rights
movement. What Brown did do was energize civil rights opponents and
channel resources away from building the civil rights movement.92 In the
wake of Brown, resistance to ending segregation increased in all areas, not
merely in education but also in voting, transportation, and the use of public
places. Brown "unleashed a wave of 87. Brown v. Bd. Of Educ., 349 U.S. 294
(1954). 88. For an extensive exploration of Brown's lack of efficacy, see
ROSENBERG, supra note 4, at 42-169. 89. Gerald Rosenberg, Substituting
Symbol for Substance: What Did Brown Really Accomplish?, PS: POLITICAL
SCIENCE & POLITIcs 205,205, Apr. 2004, at 205. 90. Id. 91. Id. at 205-06. 92.
Id. at 207. 2006] HeinOnline -- 54 Drake L. Rev. 809 2005-2006 Drake Law
Review racism that reached hysterical proportions."93 By stiffening
resistance to civil rights and raising fears before the activist phase of the civil
rights movement was in place, Brown may actually have delayed the
achievement of civil rights. Litigation may also have delayed the
achievement of civil rights by channeling resources toward litigation and
away from political organizing. Progressive reformers always have scarce
resources. There was great hostility over both fundraising and tactics
between the NAACP and the groups that led the activist wing of the civil
rights movement. As Martin Luther King, Jr. complained: "to accumulate
resources for legal actions imposes intolerable hardships on the already
overburdened. ' " 94 In sum, Brown's constitutional mandate that racial
segregation in public schools end confronted a culture opposed to that
change. The American judicial system, constrained by the need for both elite
and popular support, was unable to overcome this opposition. B. The
Decision That Didn't: Roe v. Wade 95 In many ways Roe fared better than
Brown. That is, the number of legal abortions increased in the years following
Roe-though at a slower rate-both numerically and percentage-wise, than in

the years immediately preceding the decision. But they did so unevenly, with
abortion services widely available in some states and virtually unobtainable
in others. What explains both the increase in the number of legal abortions
and the uneven availability of the constitutional right Roe proclaimed? The
number of legal abortions increased after Roe because there was public
support for legal access to abortion, and demand for the service. A national
abortion repeal movement was flourishing with widespread support among
relevant professional elites and rapidly growing public support. By the eve of
the Court's decisions, eighteen states had reformed their restrictive abortion
laws to some degree. Indeed, in 1972, the year before the decision, there
were nearly 600,000 legal abortions performed in the U.S.96 To the extent
that Roe increased women's access to legal 93. ADAM FAIRCLOUGH, To
REDEEM THE SOUL OF AMERICA: THE SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE AND MARTIN LUTHER KING, JR. 21 (1987). 94. MARTIN LUTHER
KING, JR., WHY WE CAN'T WAIT 157 (1963). 95. Roe v. Wade, 410 U.S. 113
(1973). For an extensive exploration of Roe's mixed record of efficacy, see
ROSENBERG, supra note 4, at 175-201. 96. ROSENBERG, supra note 4, at
180 tbl.6.1. [Vol. 54 HeinOnline -- 54 Drake L. Rev. 810 2005-2006 Courting
Disaster abortion it did so because a grass-roots political movement had won
many legislative victories and had dramatically influenced both elite and
public opinion. On the other hand, Roe faced the same problem as
Brown-the existing institutions necessary to implement the
decisions (hospitals in the case of abortion) refused to do so. Indeed,
the overwhelming majority of both public and private, short-term, nonCatholic hospitals, have never performed an abortion.97 Like public schools
and desegregation, the existing institutions ignored the law. Constitutional
rights were protected under law, but denied in practice. However, in
Doe v. Bolton,98 the companion case to Roe, the Court struck down Georgia's
requirement that all abortions be performed in accredited hospitals. 99 This
allowed market forces to meet the demand for abortion services by opening
abortion clinics. Pro-choice activists, feminists, and doctors, who wanted to
expand their practices, were relatively free to respond to the demand. Clinics
could and did open to implement the decision. The problem with market
mechanisms is that they implement rights unevenly. This is
principally because they are dependent on local beliefs and culture.
In places where political leaders or large segments of the population oppose
abortion, it is less likely that such clinics will open. Thus, the availability of
abortion services varies widely across the country. Considering that the Court
has held that women have a fundamental constitutional right to obtain
abortions, the drawbacks to the market mechanism as a way to implement
constitutional rights are important. The availability of a market mechanism
can help implement Court decisions, but cannot guarantee them. In addition
to only providing limited access to legal abortion, Roe, like Brown, appears to
have strengthened the losers in the case-the antiabortion forces-and
weakened the winners. The fledgling anti-abortion movement grew
enormously after Roe and the pro-choice movement that had been able to
change laws in eighteen states collapsed. One of the results of the collapse

was the lack of pressure on local institutions to provide abortion services.


This history suggests that if Roe is overturned there may be a massive
mobilization of pro-choice forces. While at least some states may prohibit
abortion, these are likely to be states where, under Roe, abortion services are
virtually impossible to obtain. 97. Id. at 190. 98. Doe v. Bolton, 410 U.S. 179
(1973). 99. Id. at 194. 2006] HeinOnline -- 54 Drake L. Rev. 811 2005-2006
Drake Law Review In sum, the finding of a constitutional right to terminate a
pregnancy has not guaranteed access to abortion for women. It derailed the
prochoice movement and energized its opponents. As the executive director
of a Missoula, Montana, abortion clinic destroyed by arson in 1993 put it: "It
does no good to have the [abortion] procedure be legal if women can't get
it."'' C. The Opinion That Backfired: Goodridge v. Department of Public
Health1 01 Goodridge, perhaps more than any other modern case, highlights
the folly of Progressives turning to litigation in the face of legislative hostility.
In Goodridge, the Supreme Judicial Court of Massachusetts held that the
state could not deny marriage licenses to same-sex couples. 0 This decision
followed an earlier decision of the Hawaii Supreme Court that the state's
refusal to recognize same-sex marriages, absent a compelling justification,
violated the state constitution's guarantee of equal protection of the
laws,103 and a decision of the Vermont Supreme Court that essentially
forced the Vermont legislature to enact civil unions. 14 The result of these
judicial victories has been nothing short of disastrous for the right to samesex marriage. The people of Hawaii effectively overturned their
court's decision by constitutional amendment. Then, in 1996, the U.S.
Congress passed the so-called Defense of Marriage Act denying all the
federal benefits of marriage to same-sex couples.10 5 Many states followed
suit, and as of the 2004 election, at least thirty-nine states had adopted
measures designed to prevent the recognition of samesex marriage. 106
Even worse, there was a movement to limit marriage to heterosexual couples
by amending both the federal and state constitutions. While a federal
amendment has yet to be passed by Congress, every constitutional
amendment presented to state voters has been approved-in 100. Gerald N.
Rosenberg, The Real World of Constitutional Rights: The Supreme Court and
the Implementation of the Abortion Decisions, in CONTEMPLATING COURTS
390, 417 (Lee Epstein ed., 1995) (quotation and emphasis omitted). 101.
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). For an
extensive exploration of the impact of the attempt to win the right to samesex marriage through litigation, see GERALD N. ROSENBERG, THE HOLLOW
HOPE (2d. ed. forthcoming 2007). 102. Goodridge, 798 N.E.2d at 948. 103.
Baehr v. Lewin, 852 P.2d 44, 67-68 (Haw. 1993). 104. Baker v. State, 744 A.2d
864, 867 (Vt. 1999). 105. 28 U.S.C. 1738C (2000). 106. See, e.g., ALA.
CODE 30-1-19 (LexisNexis Supp. 2005). [Vol. 54 HeinOnline -- 54 Drake L.
Rev. 812 2005-2006 Courting Disaster almost all cases by lopsided
majorities. As 2004 came to a close, more than one-third of all states,
representing close to one-quarter of the American population, had banned
same-sex marriage by constitutional amendment. With several constitutional
amendments on ballots in 2006, and perhaps in 2008, more states are likely

to join the list. What happened? The answer is simple. Same-sex marriage
proponents had not built a successful movement that could persuade their
fellow citizens to support their cause and pressure political leaders to change
the law. Without such a movement behind them, winning these court cases
sparked an enormous backlash. They confused a judicial pronouncement of
rights with the attainment of those rights. The battle for same-sex marriage
would have been better served if they had never brought litigation, or had
lost their cases. Now, they must either convince majorities in more than onethird of the states to remove the constitutional prohibitions on same-sex
marriage that have just been added or hope that the U.S. Supreme Court will
strike down prohibitions on same-sex marriage as unconstitutional. This is a
daunting task-one that ought not to have been faced. IV. WHEN WILL THEY
EVER LEARN? RETURNING TO PAST UNDERSTANDINGS The sad story of
the turn to litigation by same-sex marriage proponents illustrates
the current Progressive failure to understand that successful social
change requires building social movements. From Brown to Roe to
Goodridge the Progressive agenda was hijacked by a group of elite, welleducated and comparatively wealthy lawyers who uncritically believed that
rights trump politics and that successfully arguing before judges is equivalent
to building and sustaining political movements. Litigation is an elite,
class-based strategy for change. 107 It is premised on the notion
that it is easier to persuade similarly educated and wealthy lawyers
who happen to be judges of certain liberal principles than to
organize everyday citizens. That might be true but without broad
citizen support change will not occur. Litigation substitutes symbols for
substance. The collapse of the pro- 107. As Alexis de Tocqueville noted more
than a century and a half ago, lawyers are elitist by training. He wrote:
"hidden at the bottom of a lawyer's soul one finds some of the tastes and
habits of an aristocracy.... [American lawyers] conceive a great distaste for
the behavior of the multitude and secretly scorn the government of the
people." ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 243 (J.P. Mayer
& Max Lerner eds., George Lawrence trans., Harper & Row 1966) (1848).
20061 HeinOnline -- 54 Drake L. Rev. 813 2005-2006 Drake Law Review
choice movement after Roe is a perfect illustration as it remains the case
that for many women abortion services are difficult to find. Similarly, the
growing re-segregation of the nation's public schools is occurring at a time
when Brown has achieved almost mythical, symbolic status. The danger of
celebrating a symbol is that it can lead to a sense of self-satisfaction and
insensitivity to actual practice. Seen in this light, Brown is "little more than
an ornament, or golden cupola, built upon the roof of a structure found
rotting and infested, assuring the gentlefolk who only pass by without
entering that all is well inside. '10 8 Celebrating legal symbols encourages us
to look to legal solutions for political and cultural problems. Without political
support, court decisions will not produce social change. To valorize lawyers
and courts encourages reformers to litigate for social change. But if political
support is lacking, the effect of this vision is to limit change by deflecting
claims for reform away from substantive political battles, where success is

possible, to harmless legal ones where it is not. In this way, courts play a
deeply conservative ideological function in defense of the status quo. When
social reformers succumb to the "lure of litigation" they forget that deepseated social conflicts cannot be resolved through litigation. Today, there is
some hope that Progressives may be turning away from litigation as a
strategy for change. The cause, alas, is not a re-learning of historical lessons
and an understanding of the limitations on courts and the need for political
mobilization. Rather, it is a realization that the current Supreme Court is
unlikely to promote progressive principles. If this were the only effect of a
conservative Court it would be a good thing. The problem, of course, is that
even if courts are limited in their ability to help Progressives, they have more
room to do damage. Courts are not symmetrically constrained from
furthering both progressive and conservative change. This is because
typically Progressives are asking courts to require change while
Conservatives are supporting the status quo. Further, it is easier to dismantle
Progressive programs than to create them. For example, with Justice Alito
replacing Justice O'Connor, affirmative action plans may be found to be
unconstitutional. We are now in a position where courts can be an obstacle to
change. None of this means that law is irrelevant or that courts can never
further the goals of the relatively disadvantaged. For the civil rights 108.
Michael E. Tigar, The Supreme Court 1969 Term-Foreword: Waiver of
Constitutional Rights: Disquiet in the Citadel, 84 HARV. L. REV. 1, 7 (1970).
Tigar wrote these words specifically about the Warren Court's criminal rights
decisions but they are more generally applicable. [Vol. 54 HeinOnline -- 54
Drake L. Rev. 814 2005-2006 Courting Disaster movement, for example,
courts played an important role in keeping the sitin movement going, ending
the Montgomery bus boycott by providing the boycotters with leverage,
furthering school desegregation by threatening to cut off federal funds under
Title VI, and upholding affirmative action programs. But in each case courts
were effective because a political movement was supporting change. The
analysis does mean that courts acting alone, as in Brown or Goodridge, are
structurally constrained from furthering the goals of the relatively
disadvantaged. As Progressives look to the future, they must
understand that American courts are not all-powerful institutions.
They were designed with severe limitations and placed in a political
system of divided powers. To rely on litigation rather than political
mobilization, as difficult as it may be, misunderstands both the limits of
courts and the lessons of history. It substitutes symbols for substance and
clouds our vision with a naive and romantic belief in the triumph of rights
over politics. And while romance and even naivete have their charms,
they are no substitute for substantive change.

Specifically, the Supreme Court leans hard to the right on


surveillance and privacy protection empirical serial
policy failure proves that the plan will be fail
Rosenberg 5 (Dr. Gerald Rosenberg, Associate Professor of Political
Science and Lecturer in Law, University of Chicago, B.A., Dartmouth College,
1976; M.A., Oxford University, 1979; J.D., 1983, University of Michigan; Ph.D.,
1985, Yale University, Courting Disaster: Looking for Change in All the Wrong
Places, 54 Drake Law Review 795 (2005),
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?
article=2922&context=journal_articles) //RL

In the 1960s and 1970s, while government at all levels took steps to harass
civil rights and antiwar activists, the Court became somewhat more
protective of political dissent. 67 However, the level of protection must not
be overstated. It was also the case that the federal government engaged
in massive surveillance of the lawful political actions of countless
Americans, and the Supreme Court upheld the program in 1972 in
Laird v. Tatum. 68 Those who publicly dissented against the war in
Vietnam, and even those who did not-such as parents, relatives, and friends
of protesters-ran the risk of government surveillance and harassment. 69
One must also remember that it was not until 1965 that the U.S. Supreme
Court first invalidated a congressional act on First Amendment free speech
grounds.70 64. See Herbert H. Hyman, England and America: Climates of
Tolerance and Intolerance- 1962, in THE RADICAL RIGHT 227, 231 (Daniel Bell
ed., 1963) (writing about the United Kingdom, but his statements apply to
France as well). 65. Robert A. Dahl, Epilogue to POLITICAL OPPOSITIONS IN
WESTERN DEMOCRACIES 387,391 (Robert A. Dahl ed., 1966). 66. MARTIN
SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW
109 (1966). 67. See generally ROSENBERG, supra note 4 (examining social
change in the 1960s and 1970s and both the courts' role and governmental
reactions). 68. Laird v. Tatum, 408 U.S. 1 (1972); see generally Developments
in the Law: The National Security Interest and Civil Liberties, 85 HARV. L. REV.
1133, 1133 (1972) (discussing the extent of government surveillance). 69.
See INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS, S. REP. No.
94-755, at 165-82 (1976) (discussing the overbroad scope of domestic
intelligence gathering by the federal government). 70. Lamont v. Postmaster
Gen., 381 U.S. 301, 307 (1965) (invalidating an act requiring addressees to
affirmatively notify post office of their desire to receive foreign communist
political propaganda). [Vol. 54 HeinOnline -- 54 Drake L. Rev. 804 2005-2006
Courting Disaster And, of course, historically, the First Amendment
was entirely useless in protecting the speech rights of AfricanAmericans. 7 ' Given the Court's historic support of governmental
repression of dissident speech, how did criticism of the Vietnam War flourish,
and how has muted criticism of the War in Iraq been protected? The answer
is that both elites and regular citizens were divided over both wars,

increasing the political costs of repression. When elite elected officials


and media organizations (such as The New York Times and the
Washington Post) take up the cause of political dissent it is likely to
be better protected than when such elite support is missing. In such
situations there will be both fewer governmental attempts at repression and
less judicial support for them. This suggests, however, that it is political
support, not judicial action, which protects political dissent. Perhaps no
case more powerfully and poignantly illustrates the Court's
unwillingness to protect even the most fundamental civil liberties
and civil rights as Korematsu v. United States.72 In this World War II
era case, the Court upheld the conviction of Mr. Korematsu for remaining in
a military control area in violation of an executive order requiring all persons
of Japanese ancestry on the West Coast be evacuated from the area.73 As
commentators have repeatedly pointed out, none of the 112,000-120,000
people subject to the order, including approximately 70,000 U.S. citizens,
were charged with a crime. 74 No evidence was presented that they had
violated any laws and no hearings were held. Yet they were all shipped to
what were in essence prisoner-of-war camps, where they remained
throughout the war. It is hard to imagine a more blatant violation of civil
liberties. Indeed, in 1988 Congress agreed, enacting legislation giving all
living survivors of the camps a $20,000 payment.75 In addition, Congress
offered an apology: "For these fundamental violations of the basic civil
liberties and constitutional rights of these individuals of Japanese ancestry,
the Congress apologizes on behalf of the Nation. ' 76 71. See, e.g., Dred
Scott, 60 U.S. (19 How.) 393, 417 (1856) (declining to extend the privileges
and immunities of citizens to African-Americans because "it would give them
the full liberty of speech in public and in private upon all subjects"). 72.
Korematsu v. United States, 323 U.S. 214 (1944). 73. Id. at 215-16. 74. See
PERSONAL JUSTICE DENIED: REPORT OF THE COMMISSION ON WARTIME
RELOCATION AND INTERNMENT OF CIVILIANS 2-3 (1982); PETER IRONS,
JUSTICE AT WAR 297 (1983); Eugene V. Rostow, The Japanese American
Cases-A Disaster, 54 YALE L.J. 489, 496-97 (1945). 75. 50 U.S.C. app.
1989b-4 (2000). 76. 50 U.S.C. app. 1989a(a) (2000). 20061 805
HeinOnline -- 54 Drake L. Rev. 805 2005-2006 Drake Law Review As with civil
rights, this brief history shows that historically the Court has supported
repressive majorities against vulnerable minorities. Civil liberties have only
been protected when there was more than a minimum of elite and popular
support for them. Looking to the Court to protect core freedoms has not
worked historically. Elliott Richardson put the point well, writing more than
half a century ago: The great battles for free expression will be won, if they
are won, not in courts but in committee rooms and protest-meetings, by
editorials and letters to Congress, and through the courage of citizens
everywhere. The proper function of courts is narrow. The rest is our
responsibility

And the Supreme Court is specifically hard on immigration


Danielle Renwick and Brianna Lee 2-26-2015, "The U.S. Immigration
Debate," Council on Foreign Relations, http://www.cfr.org/immigration/usimmigration-debate/p11149
The uneven enforcement of immigration laws and the unclear boundaries
between federal and state jurisdiction have sent many debates over U.S.
immigration policy to the courts. In 2012, the Supreme Court struck down
three of the four major parts of Arizona's SB 1070 law, including provisions
that made it a state crime for undocumented immigrants to seek or perform work or fail to carry
registration papers, and a provision that allowed law enforcement to arrest them without
a warrant if there was "probable cause" that they committed a public offense.
However, in 2012 the court upheld the controversial "papers, please" provision allowing law enforcement
to ask for proof of citizenship, ruling that Arizona did not overstep its jurisdiction by enacting this portion of
the law. In 2014, the Obama administration dropped its case against Arizona, allowing the "papers, please"
clause to stand as Arizona ceased its efforts to reinstate the part of SB 1070 that made it a crime to harbor
undocumented immigrants. In February 2015, a federal judge in Texas ruled in favor of a suit brought by
Texas and twenty-five states against Obama's Immigration Accountability Executive Action, ruling that the
Obama administration had not followed legal procedures for changing federal rules. The administration has
said it would appeal the decision, and experts say the case will likely go to the Supreme Court. "It's a very
important setback, but it's not the last word on the subject," says Muzaffar Chishti, director of the think

"A case involving five


million people as potential beneficiaries of deferred action has never gone to
any court. Having said that, the Supreme Court has granted a lot of deference
to the federal government in exercise of enforcement of immigration laws."
tank Migration Policy Institutes office at New York Universitys School of Law.

Courts dont solve- inability to hear cases about the


underlying issue and decreasing public support
Rosenberg 08 (Gerald N. Rosenberg, Associate Professor of Political
Science and Lecturer in Law at UChicago, The Hollow Hope 2nd edition
published 2008 , Kindle location 231)
The view of courts as unable to produce significant social reform has a distinguished pedigree reaching
back to the founders. Premised on the institutional structure of the American political system and the

the conditions required


for courts to produce significant social reform will seldom exist . Unpacked, packed,
procedures and belief systems created by American law, it suggests that

the Constrained Court view maintains that courts will generally not be effective producers of significant

the limited nature of constitutional rights, the lack of


judicial independence, and the judiciary's inability to develop appropriate
policies and its lack of powers of implementation . The Limited Nature of Rights The
Constitution, and the set of beliefs that surround it, is not unbounded. Certain
rights are enshrined in it and others are rejected. In economic terms, private control
social reform for three reasons:

over the allocation and distribution of resources, the use of property, is protected (Miller 1968). "Rights" to

judicial discretion is
bound by the norms and expectations of the legal culture. These two
parameters, believers in the Constrained Court view suggest, present a
problem for litigators pressing the courts for significant social reform because
most such litigation is based on constitutional claims that rights are being denied.; An individual or
group comes into a court claiming it is being denied some benefit, fit, or
certain minimums, mums, or equal shares of basic goods, are not. Further,

protection from arbitrary and discriminatory action, and that it is entitled to


this benefit or that protection. Proponents of the Constrained Court view
suggest that this has four important consequences for social reformers . First,
they argue, it limits the sorts of claims that can be made, for not all social
reform goals can be plausibly presented in the name of constitutional rights.
For example, there are no constitutional rights to decent housing , adequate levels of
welfare, or clean air, while there are constitutional rights to minimal governmental interference in the use
of one's property. This may mean that "practically significant but legally irrelevant policy matters may
remain beyond the purview of the court" (Note 1977, 436). Further, as Gordon (1984, 111) suggests, "the
legal forms we use set limits on what we can imagine as practical outcomes ."

Thus, the nature of


rights in the U.S. legal system, embedded in the Constitution, may constrain
the courts in producing significant social reform by preventing them from
hearing many claims. A second consequence from the Constrained Court perspective is that,
even where claims can be made, social reformers must often argue for the
establishment of a new right, or the extension of a generally accepted right
to a new situation. In welfare rights litigation, for example, the Court was
asked to find a constitutional right to welfare (Krislov 1973). This need to push the courts
to read the Constitution in an expansive or "liberal" way creates two main difficulties. Underlying
these difficulties is judicial awareness of the need for predictability in the law
and the politically exposed nature of judges whose decisions go beyond the
positions of electorally accountable officials . First, the Constitution, lawyers, judges, and
legal academics form a dominant legal culture that at any given time accepts some rights and not others

Judicial discretion is bound by the


beliefs and norms of this legal culture, and decisions that stray too far from
them are likely to be reversed and severely criticized . Put simply, courts, and the
and sets limits on the interpretation and expansion of rights.

judges that compose them, even if sympathetic to social reform form plaintiffs, may be unwilling to risk

Second, and perhaps more important, is the


role of precedent and what Justice Traynor calls the "continuity scripts of the
law" (Traynor 1977, 11). Traynor, a justice of the California Supreme Court for twenty-five years, Chief
crossing this nebulous yet real boundary.'

Justice from 1964 to 1970, and known as a judge open to new ideas, wrote of the "very caution of the
judicial process" (1977, 7). Arguing that "a judge must plod rather than soar," Traynor saw that the
"greatest judges" proceed "at the pace of a tortoise that steadily makes advances though it carries the

Constrained by precedent and the beliefs of the


dominant legal culture, judges, the Constrained Court view asserts, are not
likely to act as crusaders. Third, supporters of the Constrained Court view note, as Scheingold
(1974) points out, that to claim a right in court is to accept the procedures and
obligations of the legal system. These procedures are designed, in part, to
make it difficult for courts to hear certain kinds of cases. As the Council for Public
Interest Law (CPIL) puts it, doctrines of standing and of class actions, the so-called political
question doctrine, the need to have a live controversy, and other technical
doctrines can "deter courts from deciding cases on the merits" (CPIL 1976, 355)
and can result in social reform groups being unable to present their best
arguments, or even have their day in court. Once in court, however, the legal process
past on its back" (1977, 7, 6).

tends to dissipate significant social reform by making ing appropriate remedies unlikely. This can occur,
McCann (1986, 200) points out, because policy-based litigation aimed at significant social reform is usually
"disaggregate(di ... into discrete conflicts among limited actors over specific individual entitlements."
Remedial decrees, it has been noted, "must not confuse what is socially or judicially desirable with what is

litigation seldom deals with "underlying


issues and problems" and is "directed more toward symptoms than causes"
(Harris and Spiller 1976, 26). Finally, it has long been argued that framing issues in legally
legally required" (Special Project 1978, 855). Thus,

sound ways robs them of "political and purposive appeal"

(Handler 1978, 33). In the


narrow sense, the technical nature of legal argument can denude issues of emotional, widespread appeal.

there is the danger that litigation by the few will replace political
action by the many and reduce the democratic nature of the American polity .
James Bradley Thayer, writing in 1901, was concerned that reliance on litigation would sap
the democratic process of its vitality. He warned that the "tendency of a
common and easy resort" to the courts, especially in asking them to
invalidate acts of the democratically accountable branches, would "dwarf the
political capacity of the people" (Thayer 1901, 107). This view was echoed more recently by
McCann, who found that litigation-prone activists' "legal rights approach to
expanding democracy has significantly narrowed their conception of political
action itself" (McCann 1986, 26). Expanding the point, McCann argued that "legal tactics not
only absorb scarce resources that could be used for popular mobilization ...
[but also] make it difficult to develop broadly based, multiissue grassroots
roots associations of sustained citizen allegiance " (McCann 1986, 200). For these
More broadly,

reasons, the Constrained Court view suggests that the nature of rights in the U.S. constrains courts from

Thus, Constraint I: The bounded


nature of constitutional rights prevents courts from hearing or effectively
acting on many significant social reform claims, and lessens the chances of
popular mobilization.
being effective producers of significant social reform.

Courts dont solve- lack of enforcement power


Rosenberg 08 (Gerald N. Rosenberg, Associate Professor of Political
Science and Lecturer in Law at UChicago, The Hollow Hope 2nd edition
published 2008 , Kindle location 266)
For courts, or any other institution, to effectively produce significant social
reform, they must have the ability to develop appropriate policies and the
power to implement them. This, in turn, requires a host of tools that courts, according to
proponents of the Constrained Court view, lack. In particular , successful implementation
requires enforcement powers. Court decisions, requiring people to act, are
not self-executing. But as Hamilton pointed out two centuries ago in The Federalist Papers (178788), courts lack such powers. Indeed, it is for this reason more than any other
that Hamilton emphasized the courts' character as the least dangerous
branch. Assuaging fears that the federal courts would be a political threat,
Hamilton argued in Federalist 78 that the judiciary "has no influence over
either the sword or the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution whatever . It may truly be
said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of

Unlike
Congress and the executive branch, Hamilton argued, the federal courts were
utterly dependent on the support of the other branches and elite actors . In
other words, for Court orders to be carried out, political elites, electorally
accountable, must support them and act to implement them . Proponents of the
the executive arm even for the efficacy of its judgments" (The Federalist Papers 1961, 465).

Constrained Court view point to historical recognition of this structural "fact" of American political life by
early Chief Justices John Jay and John Marshall, both of whom were acutely aware of the Court's limits.12
President Jackson recognized these limits, too, when he reputedly remarked about a decision with which he

the
unwillingness of state authorities to follow court orders, and the need to send
did not agree, "John Marshall has made his decision, now let him enforce it." More recently,

federal troops to Little Rock, Arkansas, to carry them out, makes the same
point. Without elite support port (the federal government in this case), the
Court's orders would have been frustrated . While it is clear that courts can stymie change
(Paul 1960), though ultimately not prevent it (Dahl 1957; Nagel 1965; Rosenberg 1985), the
Constitution, in the eyes of the Constrained Court view, appears to leave the
courts few tools to insure that their decisions are carried out. If the separation of
powers, and the placing of the power to enforce court decisions in the executive branch, leaves courts
practically powerless to insure that their decisions are supported by elected and administrative officials,
then they are heavily dependent on popular support to implement their decisions. If American citizens are
aware of Court decisions, and feel duty-bound to carry them out, then Court orders will be implemented.

proponents of the Constrained Court view point out that survey data
suggest that the American public is consistently uninformed of even major
Supreme Court decisions and thus not in a position to support them (Adamany
1973; Daniels 1973; Dolbeare 1967; Goldman and Jahnige 1976). If the public or political elites
are not ready or willing to make changes, the most elegant legal reasoning
will be for naught. This constraint may be particularly powerful with issues of
significant social reform. It is likely that as courts deal with issues involving contested values, as
issues of significant social reform do almost by definition , they will generate opposition. In
turn, opposition may induce a withdrawal of the elite and public support
crucial for implementation. Thus, proponents of the Constrained Court view suggest that the
contested nature of issues of significant social reform makes it unlikely that
the popular support necessary for implementation mentation will be
forthcoming.
However,

Increasing popular pressure lead to Brown v Board, not


the other way around
Rosenberg 08 (Gerald N. Rosenberg, Associate Professor of Political
Science and Lecturer in Law at UChicago, The Hollow Hope 2nd edition
published 2008, Kindle location 2413)
The spread of mass communication was having an impact as television and radio
By
the 1960s the media coverage of the brutality of segregation had a receptive
audience. The combination of all these factors-growing civil rights pressure
from the 1930s, economic changes, the Cold War, population shifts, electoral
concerns, the increase in mass communication-created the pressure that led
to civil rights. The Court reflected that pressure; it did not create it. Even Jack Greenberg, head of the
brought the talents of black entertainers or sports heroes like Jackie Robinson to all (Kluger 1976, 749).

NAACP Inc. Fund, admits that by the time of Brown there "was a current of history and the Court became

That current was growing in force and, as my


analysis has shown, the Court contributed little to it . So strong was the pressure for
change, argues Peltason, that "even if the Supreme Court had sustained segregation,
such a decision could not have long endured " (Peltason 1971, 249). Reflecting on the
part of it" (Greenberg 1977, 589).

growing social, political, and economic forces of the time, the government's civil rights litigator Elman put
it this way: "In

Brown nothing that the lawyers said made a difference. Thurgood


Marshall could have stood up there and recited `Mary had a little lamb,' and
the result would have been exactly the same " (Elman 1987, 852). But I need not engage
in historical speculation. All I need to show is that there is evidence that the
changes in civil rights could plausibly have happened without Supreme Court
action. For if they could have, then my finding that the courts contributed little to civil rights does not

while there is no way to be certain, the


lack of evidence for the contribution of the courts, and the evidence of the
strength of social, economic, and political change, go a long way toward
establishing causal connections.
violate the skeptic's concern for causation. And

Courts empirically fail to solve sexism- wage


discrimination
Rosenberg 08 (Gerald N. Rosenberg, Associate Professor of Political
Science and Lecturer in Law at UChicago, The Hollow Hope 2nd edition
published 2008, Kindle location 2917)
Fortunately for the analysis, but unfortunately for America, there has been uneven improvement in the
position of American women in the key areas of income and jobs .

Despite Court and


government action prohibiting sex discrimination, there has been "little
discernible progress in the relative labor market status of women " (Johnson and
Solon 1986, 183). And in the places where change has occurred, students trace it to
congressional and executive branch action, not Court action. A particularly
depressing measure of the lack of progress is the difference between the
salaries of men and women. Table 7.1 presents the figures of the "earnings gap." As can be seen
clearly from the table, year-round full-time women workers made a smaller percentage of their male

after nearly two decades of


Court and government action, the relative position of men and women in
terms of income was about the same as it was over thirty years earlier ." "Even
when adjustments are made for education and occupation," the U.S.
Commission mission on Civil Rights (USCCR) found in 1978, "women earn
less than men" (USCCR 1978, 9).12 Other studies, controlling for factors such as age, work
counterparts' salaries in 1980 than they did in 1955! Even by 1987,

experience, and education still find a large gap (Reskin and Hartmann 1986, 10-11, 70-73, 123; Blau 1984,
133-39). In terms of education, the Women's Bureau found that "in 1974 women with 4 years of College
had lower incomes than men who had only completed the 8th grade" and "fully employed women high
school graduates (no college) had less income on the average than fully employed men who had not

By the 1980s, little had changed, with


one study concluding that in 1984, among all workers, "male high school
graduates have median incomes one and one-half times greater than women
with college and graduate degrees" (Tan-Whelan 1984, 3). With full-time workers, in 1985
completed elementary school" (USDL 1976b, 2-3).

female college graduates made less than male high school graduates and women with graduate education
made less than male college dropouts! (The American Woman 1988, 389). And a recent study by the Rand
Corporation found that if "current trends continued women would earn only 74 percent of men's income by

Any contribution of the Court to ending sex


discrimination is not found in the area of wage discrimination . 1 I . A 1984 study by
the year 2000" ("Women's Pay" 1984, 16).

a senior official of the Census Bureau found that the wages of white women entering the job market in
1980 were further behind the wages of comparable white men than they were in 1970 (Pear 1984). 12.

This 1978 study corroborated one done by the commission in 1974 which
found the gap remaining large even when age, skill level, race, and part-time
work were controlled for (USCCR 1974c, 5). The lack of Court efficacy also holds in the area of
comparable worth. Despite litigation, where comparable worth policies have been
instituted, they have been the result of collective bargaining and state
government action, not litigation. From California and Washington to Minnesota, comparative
worth policies have been instituted "through the legislatures and private negotiation," not courts (Clauss

"long before the courts" became involved, "state and


local governments began identifying and attacking the problem of wage
discrimination against women" (Blumrosen 1984, 111 n.5). In other words, "even before
1986, 8). Blumrosen found that

Gunther there had been considerable activity in the states, which themselves were under pressure from
unions and women's groups" (Blumrosen 1984, 111). As of September, 1983,

Political Capital DA
<<PLAN UNPOPULAR / CONTROVERSIAL>>
Supreme Court justices have finite political capital
controversial decisions will be followed by moderate
decisions and avoidance of other major issues
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 1998
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey
Mondak, Professor of Political Science @ U of Illinois, 1998, Do attitudes toward
specific supreme court decisions matter? The impact of Webster and Texas v Johnson
on Public Confidence in the Supreme Court Political Research Quarterly, vol. 51 no 3
633-54 September1998)
The existence of a strong link between basic values and diffuse support does
not necessarily preclude a role for specific decisions, particularly when we
seek to understand how support comes to change over time (e.g., Caldeira
and Gibson 1992: 658-61). We believe that any claim that the Supreme
Court is fully immune to backlash against controversial decisions
can be rejected on a prima facie level. First, consider the extreme
case. Were the Supreme Court to make its occasional
blockbusters-Brown v. Board of Education, Roe v. Wade, Texas v.
Johnson, etc.-the norm by routinely ruling on the thorniest social

questions, we see it as implausible that such actions would


bring no cumulative impact on how people view the Court. Second,
the Supreme Court's typical mode of operation suggests that justices
themselves view institutional support as an expendable political
capital (Choper 1980). That is, the Court recognizes its own political
limitations, and thus justices pick their spots carefully when
approaching potentially controversial cases. From this perspective, the
apparent dominance of democratic values as a determinant of institutional
support (e.g., Caldeira and Gibson 1992) means not that the Court is
insulated from backlash, but that strategic justices tread cautiously so
as to keep backlash to a minimum. Consequently, how and where we
examine whether public response to Supreme Court decisions affects
institutional support may shape what answer we find.

This paves the way for unchecked human rights violations


in lower courts, including racialized and class-based
incarceration controversial issues are rejected out of
hand regardless of import and the Supreme Court has the
only power on these matters
Katz 8 (Josh, Staff Attorney at Simpson Thacher & Bartlett LLP, Supreme
Court Rejects Controversial Case of Troy Davis, FindingDulcinea, October

14th, 2008, http://www.findingdulcinea.com/news/Americas/October08/Supreme-Court-Rejects-Controversial-Case-of-Troy-Davis-0.html) //RL

The U.S. Supreme Court rejected Troy Davis' last appeal today, the Los
Angeles Times reports, permitting Georgia to proceed with the death penalty.
The justices left no explanation for their decision. Davis conviction and
his death sentence have generated a great deal of controversy. Nine
witnesses testified to Davis guilt during his trial in Georgia. Since then, seven
of them have recanted their testimony. Davis attorneys say that the real
culprit was Coles, who was one of the witnesses who testified against Davis,
according to the Associated Press. "The Supreme Court's decision is truly
shocking, given that significant evidence of Davis' innocence will never have
a chance to be examined," said Larry Cox, executive director of Amnesty
International USA. "Faulty eyewitness identification is the leading cause of
wrongful convictions, and the hallmark of Davis' case." According to the Los
Angeles Times, the justices may have concluded that the prior guilty
judgements from the state of Georgia were correct. Georgia was scheduled
to execute Troy Davis by lethal injection on Sept. 23, but the Supreme Court
intervened and granted a stay of execution with less than two hours to spare.
Davis had been convicted for shooting and killing 27-year-old off-duty police
officer Mark MacPhail in a clash in a Burger King parking lot in 1989. MacPhail
allegedly approached Davis and Daviss friend Sylvester Red Coles after the
two got into a skirmish with a homeless man, the Associated Press reports.
The trial lacked physical evidence and no weapons had been discovered, CNN
reports. The witnesses who retracted their statements said that they were
mistaken, they feared retribution from the man they say actually killed
MacPhail or that police pressured them into fingering Davis, according to
CNN. Former President Jimmy Carter, South African Archbishop
Desmond Tutu, Pope Benedict XVI and Rev. Al Sharpton have all
called on the state of Georgia to spare the life of Davis, and have
called for a new trial. Celebrities including Susan Sarandon, Harry
Belafonte and the Indigo Girls, Congressman John Lewis, D-Ga., and former
U.S. lawmakers Bob Barr and Carolyn Moseley Braun have also stood in
support of Davis. Amnesty International has coordinated rallies inside and
outside of the United States in Daviss defense, CNN reports. Sources in this
Story Los Angeles Times: Supreme Court clears way for Georgia execution
The Atlanta Journal-Constitution: Supreme Court issues stay of execution for
Davis Associated Press: Georgia set to execute man for officer's death CNN:
High court to rule whether convicted cop killer dies Georgia Supreme Court:
Davis v. the State Atlanta Journal-Constitution: Troy Davis may be innocent
The American Prospect: NO JUSTICE FOR TROY DAVIS. Reason: Is Georgia
About to Execute an Innocent Man? findingDulcinea: On this Day: Illinois
Governor Commutes 167 Death Sentences Death Penalty Information Center:
Causes of Wrongful Convictions But the prosecutors claim that the evidence
still points to Davis culpability. Anneliese MacPhail, the mother of the fallen
police officer, said, Troy Davis was judged by his peers. All the courts have

found him guilty. It was proven he was guilty. Please let us have some peace.
Let Mark rest in peace. Let justice be done. The Georgia Supreme Court has
turned down Davis insistence for a new trial twice, and rejected his appeal
by a 6-1 vote to stay the execution before the U.S. Supreme Court
intervened, according to the AP. Since 1973, the state of Georgia has
executed 42 other inmates. Opinion & Analysis: Davis fate The Georgia
Supreme Court had refused to grant Davis a stay, citing evidence from the
trial that appeared to pinpoint Davis as the man who murdered MacPhail.
According to the court, evidence from the trial indicated that MacPhail chased
after Davis and Coles. Coles then allegedly stopped, and MacPhail continued
to chase Davis. Davis then reportedly shot MacPhail, stood over the police
officer smiling and fired again. The state Supreme Court rejected the
argument of Davis lawyers that the execution should be stayed because so
many of the trial witnesses have recanted their testimony. According to the
Court, such Declarations made after the trial are entitled to much less
regard than sworn testimony delivered at the trial, because, among other
reasons, memory is more likely to change over time. Davis lawyers argued
that his situation was extraordinary, but the Court called that argument
unpersuasive. A number of op-ed pieces disagreed with the Georgia
Supreme Courts opinion. Cynthia Tucker of the Atlanta Journal-Constitution
argues that this case is less about justice and more about the state of society:
If Troy Anthony Davis had occupied a higher rung on the social
ladder, he probably would not have been convicted of murder in the
August 1989 shooting death of a Savannah police officer. She
accuses the Savannah police of pressuring witnesses to give them the
testimony they needed. Tucker also cites data indicating that More than 75
percent of the people exonerated by DNA evidence had been falsely
convicted by bad eyewitness testimony in their original trials. Adam Servwer
of the American Prospect makes a similar argument, claiming in strong words
that race has directly played into the Davis case. This is the logical
extension of holding black people accountable for urban crime, rather than
the individuals themselves. In this scheme of thought , as long as a black
man pays for the crimeany one will do. This is, quite plainly, a
lynching, of the decidedly more fatal low-tech variety. Radley Balko
of Reason magazine does not know whether Davis is truly guilty, and he
asserts the court cannot be sure either, because of the recent recantations.
It looks as if theres at least enough doubt that we cant say for sure, says
Balko. And that ought to be more than enough doubt to hold off on the
execution.

Link
Anthony Kennedy is the only vote on the Supreme Court
that matters and recently hes made some risky liberal
decisions
Hasen 7/7 (Richard L. Hasen is a professor of law and political science at
University of California Irvine, Richard L. Hasen: More than ever, it's a
Kennedy court, The Morning Call, July 7th, 2015,
http://www.mcall.com/opinion/mc-supreme-court-justice-kennedy-infleneceyv-0708-20150707-story.html) //RL

Forget the debate over whether the Supreme Court has taken a liberal turn. It
is not a liberal court or a conservative court. It's a Kennedy court. On
major constitutional and statutory questions, Justice Anthony M.
Kennedy's views matter more than anything else. Liberals do have
more to celebrate this term than in the recent past, from the same-sex
marriage and Obamacare decisions, to a major housing discrimination case,
to a surprising win for minority plaintiffs in a voting rights lawsuit. In those
cases, Kennedy was in the majority, and all but one Obamacare were
decided 5 to 4. But there were some victories for conservatives as well. The
court blocked a key environmental rule on mercury pollution. It upheld
Oklahoma's lethal injection method. And it rejected an attempt to put a Texas
voter identification law on hold, even though a federal court found that the
legislature intended to discriminate against minority voters. Kennedy was in
the majority in these rulings. Indeed, there were only a handful of important
cases this term in which Kennedy was on the losing side of a 5-4 split, such as
the Williams-Yulee case, in which Chief Justice John G. Roberts Jr. sided with
the four liberals against Kennedy and three conservatives to uphold Florida's
ban on judicial candidates personally soliciting campaign contributions.
cComments Got something to say? Start the conversation and be the first to
comment. ADD A COMMENT 0 Looked at over the long run, Kennedy's
influence seems even greater. Think of the Supreme Court's 5-4 decision in
the 2010 Citizens United case striking down the ban on corporate spending in
elections, which has opened the floodgates to super PACs and big money in
politics. Or consider the court's 5-4 decision in the 2013 Shelby County case,
which eviscerated a key provision of the Voting Rights Act. Kennedy was in
the majority in each instance. His power won't lessen any time soon.
Last week, the court said it would review a case that could kill public sector
unions, overturning long-standing precedent. Kennedy will probably cast the
crucial fifth vote. And, no doubt, the court's upcoming decision on how far
states can go in restricting abortion will depend on Kennedy's view of what
constitutes an "undue burden" on a woman's right to choose. It is no
surprise, as professor Nan Hunter of Georgetown Law School
remarked, that Supreme Court advocates often write their briefs for
an audience of one: Kennedy.

Impact
Empirically proven multiple legal loopholes allow the
Supreme Court to throw out cases, especially those that
have to do with minority rights
Kloppenberg 01 (Lisa A. Kloppenberg is Dean of the Santa Clara
University School of Law, Playing It Safe : How the Supreme Court Sidesteps
Hard Cases and Stunts the Development of Law, In Critical America.New
York : NYU Press. 2001, p.25-31) //RL
compil
Despite the time, money, and energy invested in the litigation over eight
years, the Court threw Yniguez out because it determined that the immediate
parties no longer had a live controversy over what Yniguez could say on the
job. This ruling was consistent with its mootness prece- dents and could
have been avoided if Ms. Yniguezs lawyers had filed the suit as a class action
composed of numerous state employees as plaintiffs, some of whom still
worked for Arizona at the time the case reached the Supreme Court. But their
client did not want to file a class action suit be- cause she did not want to
turn the English-Only issue into one of His- panics versus the English
speakers of Arizona. Moreover, class actions are not easy to pursue. They
require special procedural knowledge and often can be more expensive and
burdensome than ordinary litigation. Finally, the Supreme Court took the
unusual step of vacating the ear- lier Yniguez opinions, effectively erasing the
findings that the law was un- constitutional and destroying the prior victories
of those who opposed the English-Only law. Without much explanation, the
Court concluded that vacating the opinions was appropriate because the case
presented federalism concerns and exceptional circumstances. Many
people reacted strongly to the Courts decision. The mootness ruling, on the
heels of the long, complicated history of the Yniguez case, caused much
confusion and frustration among Arizona voters and others concerned with
the English-Only issue. As one editorial writer put it, Eight years after voting
to do the states business in English, Arizonans still dont know whether their
own judgment about how their own em- ployees should behave at work will
be allowed to become law by judges who dont pay a dime of Arizona taxes.
And they likely wont know for another couple of years.18 He continued:
Sadly, this decision did noth- ing to end the legal chaos. It only shifted the
battleground to the state courts . . . and left open a distinct possibility of
having to fight the war again in the federal court. Many Californians had
closely watched the lit- igation, in light of litigation challenging their own
recent anti-immigrant measure, Proposition 187. This measure, entitled Save
Our State, denied state services such as education and health care to those
suspected of being undocumented immigrants. After voters approved the law
in 1994, it soon faced court challenges. In 1996, Californians had also
enacted an initiative that limited affirmative action in public contracting,

employ- ment, and education. In 1986, California voters had approved by


direct democracy an English-Only law, but the law required legislative
approval for enforcement and the legislature never approved it. One senator
com- plained: They left it up to the Legislature, and when you leave anything
up to the Legislature, nothing happens. He indicated that the Supreme
Courts mootness ruling could put political pressure on a balky Califor- nia
Legislature.19 When we await the Courts pronouncements on the
constitutionality of an important new law, avoidance can be at best
frustrating and at worst dangerous. One of the problems of avoidance
through procedural rulings like mootness (and even refusals to hear a case by
denying certio- rari) is that the public often misconstrues avoidance rulings as
victories. It is not surprising that some observers viewed the rejection of
Yniguezs challenge as a signal on the merits of the dispute. The English-Only
law was not displaced; indeed, the lower court opinions overturning it were
erased. Mauro Mujica, chairman of U.S. English, triumphantly declared, This
should be a clear indication to the lower courts that it is inappro- priate to
tamper with the will of the people after they have exercised their vote within
the democratic process.20 The Courts mootness ruling delighted
states rights advocates who say such an approach may blunt other
constitutional attacks, including the pending challenge to
Californias [anti-affirmative action mea- sure].21 The Supreme Court
did encourage the lower federal courts to certify the dispute over how
narrowly to construe the English-Only law to the Arizona courts to try to save
the statute. Although an amicus brief highlighted the question of how much
deference courts owe direct democracy measures, the Court did not tackle
that issue directly. Never- theless, some judges are likely to read Yniguez as
mandating a cautious approach to direct democracy controversies.
Subsequently, for example, a federal trial judge found that the California
measure conflicted with the federal Constitution. Three Ninth Circuit judges,
relying on the Courts admonitions in Yniguez, expressed concern that if the
trial judge had in- correctly interpreted the Constitution, he thwarted the will
of 4,736,180 voters with a single stroke of a pen. But rather than certifying
the mea- sure to the California state courts, the Ninth Circuit interpreted the
state law itself. The judges reached the merits and found that it did not
offend the Constitution. The U.S. Supreme Court avoided the controversy
when it denied certiorari, leaving the Ninth Circuits invalidation intact.
Others expressed frustration with the Yniguez Courts focus on byzan- tine
technicalities and the lack of guidance from the Court on the merits of
language restrictions. A California state senator said, I wish they had
decided this on the merits, instead of just saying it was a moot question.22 When the Supreme Court avoids constitutional issues, the rest of the
country can only guess at the likely outcomes when it does address them,
years later. Some justices view this as fostering debate and not fore- closing
options, allowing a pluralistic society to live with deep differences of
opinion.23 But the Courts avoidance techniques often do not foster de- bate.
Politicians are still reluctant to tackle difficult and controversial is- sues,
particularly those that are not a significant concern to a majority of voters.

Frequently, the persons or groups most likely to suffer from these unresolved
differences are members of political, racial, cultural, sexual, or religious
minority groups. The lack of guidance from the Court on constitutional law is also disturbing. When the Court does not promote
uni- form national constitutional interpretation, the content of Equal
Protec- tion or First Amendment rights will vary with a citizens
locale. Avoidance through Certification and the Avoidance Canon The Court
in Yniguez went beyond a simple mootness ruling, which it could have
completed in a few paragraphs, and gave a long lecture on how the lower
federal courts should have disentangled themselves from this volatile
controversy earlier. Justice Ginsburg, one of the Courts liber- als, wrote the
unanimous opinion. As a former Civil Procedure teacher, she is an expert on
jurisdictional technicalities. The Courts disdain for what it viewed as
procedural mistakes by the lower federal courts in this suit is thinly
disguised. The Court warned other federal courts to avoid federal
constitutional issues by sending novel state law issues like the interpretation
of the Ari- zona law to the state court system through certification.
Certification statutes allow a federal court to send state law issues to a
states highest court. In Yniguez, certification would mean that the Arizona
Supreme Court would have to figure out whether the English-Only law applies
only to official documents and acts like judicial opinions or more broadly to
government-employee speech. After a state supreme court ruling, the parties
return to the federal system for rulings on federal law issues. The opinion
closed on a hopeful note, awaiting the Ruiz decision, which the Court said
might greatly simplify the federal constitutional questions presented. In
Yniguez, the Supreme Court also reminded the lower federal courts
how certification can interact with the avoidance canon to deflect
diffi- cult constitutional controversies presenting federalism
concerns. The avoidance canon is a rule of statutory construction that
encourages judges to determine whether a law can be read in a narrow way
to contain it within constitutional bounds. The Yniguez Court implied that if
the lower federal courts or, preferably, the Arizona Supreme Court on certification had found the states narrowing interpretation persuasive, the litigants could have relied on that interpretation in federal court, and the law
could have been upheld on federal constitutional grounds. If, on certification, the Arizona court refused to apply the canon and read the law
broadly, only then would the federal courts need to face the constitu- tional
challenges. Of course, this reasoning contains interpretations of the
Constitution: it hints that a narrow reading of the English-Only law would not
offend the First Amendment or other constitutional provi- sions and that a
broader reading might. Those hints are not binding precedent. However, they
are an indirect way of expressing the constitu- tional thinking of some of the
justices and can thus constrain other courts without clearly changing the
content of the Courts constitutional precedents. The Court frequently shapes
the direction of constitutional law with such quasi-constitutional rulings. In
urging avoidance through certification, the Court highlighted the po- tential
importance of the English-Only issue for Arizona, the unsettled state law

question of the meaning of the new law, the attorney generals narrow- ing
construction, and the primary sponsors belated agreement with that
construction as reasons for avoidance. The Court concluded that the more
cautious approach of certification was better than a ruling on the merits,
particularly because of the federalism concerns posed. Federalism is the balance of powers between the national and state or local governments. The
Rehnquist Court in the 1990s went to great lengths to enlarge and protect the
areas in which states have autonomy to operate without federal over- sight,
as chapter 7 details. The Yniguez Court meant that the federal courts could
have avoided friction between the two court systems and potential error on
the state law issue through certification. The Court did not elaborate much
on how certification would build a cooperative judicial federalism, but it
probably reasoned that the lower federal courts could have shown more
respect for Arizonas legal, social, and political predicament by allowing the
Arizona court a chance to agree that the attorney generals narrow
construction of the English-Only law was the correct one. This might have
saved the statutes constitution- ality while also taking away much of its force
appeasing both sides of the controversy. Additionally, the Court wanted the
lower federal courts to avoid friction-generating error by construing the law
one way and then facing potential embarrassment and inconsistent rulings if
the Ari- zona court construed it differently. By giving the Arizona court the
first opportunity to speak, the Court hoped to foster Arizonas authority in this
controversy while also relieving the federal courts of pressure and
responsibility. Sixty years before Yniguez, the Court created an
abstention doctrine in order to avoid an Equal Protection challenge
brought by a railroad com- pany and black Pullman porters to a
Texas law which favored white con- ductors. As described in the
Introduction, the Court preferred that Texas courts first review the
state law issues, hoping to avoid federal constitu- tional rulings in
the socially sensitive area of race and gender rela- tions.24 The
Yniguez Court conceded the errors of Pullman abstention. It acknowledged
that this kind of abstention proved protracted and expen- sive in practice,
for it entailed a full round of litigation in the state-court system before any
resumption of proceedings in federal court. The Yniguez Court insisted that
certification will work better than abstention because it only requires one
round of litigation (in the states highest court) before proceedings resume in
federal court. Certification certainly might save the federal courts time,
energy, and resources. But the Court does not mention that certification still
imposes additional cost and delay on the litigants, as compared to remaining
in federal court and allowing the federal court to construe the scope of the
English-Only law. More- over, certification adds work to the state courts. Thus,
litigants may face long waits or hostility to certification requests in some
courts. Busy state courts do not always appreciate having controversies
delegated to them. For example, the Arizona Supreme Court put the related
Ruiz litigation on hold while Yniguez was pending. It did not have to do so; it
chose to await the federal systems outcome to discourage forum shopping
(when litigants shop around for the court, judge, jury, or law which they be-

lieve will be most favorable for them). The Arizona court also sought to
encourage uniform state and federal court interpretation of the English- Only
law by awaiting the outcome of the U.S. Supreme Courts ruling. If it was
anxious to rule definitively on the state law issues, the Arizona court could
have ruled on the laws construction (and even on its consti- tutionality)
before the U.S. Supreme Court issued its opinion. Indeed, the state supreme
court gets the last word on state law issues such as the scope of a state law
(assuming a court does not construe a law narrowly solely to evade federal
court review). So, even if the federal courts had all construed the law broadly,
the Arizona court could diverge on the state law question of interpretation
and find the attorney generals narrow construction persuasive after a federal
court ruling. The state supreme court could even have the last word on state
law after a ruling from the U.S. Supreme Court. Thus, any error in construing
state law made by a federal court is easily correctable. Further, the Yniguez
Court ignored that state supreme courts do not always welcome the
additional political pressure when sensitive issues are certified to them. The
Arizona court did not discuss this political concern when it put Ruiz on hold,
but few judges would think it appropriate to ac- knowledge that type of
pressure. Nevertheless, in an era of increasing at- tacks on judicial
independence and increasing use of initiatives for con- troversial lawmaking
in nearly half of our states, many elected state judges feel the pressure.
Although both state and federal judges face criti- cism for their unpopular
rulings, federal judges enjoy life tenure and are much more protected than
most state court judges. State judicial election and retention campaigns are
becoming more expensive and contentious. State judges have come under
attack for their rulings in criminal cases and for rejecting popular direct
democracy enactments. In such an at- mosphere, many judges try to avoid
appearing activist.25 It is easy to understand why supporters of the
English-Only law might read into Yniguezs cautionary warnings a
philosophy of federal court judicial restraint . The Courts unstated
premise seems to be that controversies that present federalism concerns are
best decided by the more politically responsive state court judges, not by
their life-tenured federal counterparts. Perhaps the justices reason that
Arizona voters would resent the judicial system less if their state courts
(rather than the federal courts) limited or voided the English-Only law.
Moreover, if vot- ers disagree with the Arizona Supreme Courts interpretation
of the English-Only law or their conclusion about its constitutionality, the vot-
ers will have redress at the polls. In other cases, the Supreme Court has been
explicit about basing avoidance techniques in part on the impor- tance of
protecting the federal courts from charges of interference with the will of the
voters or the products of the majoritarian political process. Thus, not only can
certification save the federal courts a lot of work, it can take some political
heat off the federal system by transfer- ring it to state courts. In Yniguez, if
certification had worked as the Court envisioned, the federal courts could
have saved a narrow version of the English-Only law, attributing the narrow
reading to state courts. Of course, the federal courts also could have done
that without the cost and delay of certification by using the avoidance canon

to adopt the states narrowing construction. As explained shortly, the lower


federal courts chose not to use that option because the construction was so
im- plausible and conflicted so greatly with voter intent. The Supreme
Courts avoidance through certification strategy poses problems
similar to those that courts and litigants struggled with under
Pullman abstention. Certification may be a little less harsh than
Pullman abstention, but it still imposes additional costs and delay
for the parties and places additional burdens on the state courts.
And, not surprisingly, the Court chooses a controversy strikingly
similar to the Pullman case in which to substitute certification for
abstention. Once again, the Court promotes a deferral device in a racially
charged, socially sensitive, politi- cally heated setting without even
mentioning the racial or cultural ten- sions in the English-Only dispute or any
of the real-life significance of the controversy. Under the Courts reasoning,
the more significant and controversial a state law is, the more risk of friction
between the state and the federal court system. Thus, federal judicial review
is deemed most ap- propriate where it is least needed: for state laws that do
not present seri- ous constitutional problems and for state laws that are not
important or controversial. The Yniguez Court approved so heartily of
avoiding federal constitu- tional issues that it also suggested to the Arizona
Supreme Court that it use its own version of the avoidance canon to construe
the English-Only law narrowly. But the Arizona Supreme Court declined to
follow the U.S. Supreme Courts avoidance advice. In Ruiz, the Arizona court
found that its own attorney generals narrowing construction was implausible
and conflicted with the voters intent, and it struck down the broad EnglishOnly law as a violation of the federal First Amendment.

Politics Links to Courts

Elections
The next presidential election will replace four Supreme
Court justices even if they dont retire, natural factors
and mathematical models prove their seats will be
vacated anyway most recent analysis proves the link to
politics
Cilliza 7/14/15 (Chris Cillizza writes The Fix, a politics blog for the
Washington Post. He also covers the White House for the newspaper and Web
site. Chris has appeared as a guest on NBC, CBS, ABC, MSNBC, Fox News
Channel and CNN to talk politics, The massive stakes in the 2016 election, in
1 graphic, The Washington Post, July 14th, 2015,
http://www.washingtonpost.com/blogs/the-fix/wp/2015/07/14/a-reminder-ofthe-stakes-in-the-2016-election-in-1-graphic/) //RL
There has been considerable speculation -- and even some urging by
Democrats -- that Ginsburg and Stephen Breyer, who is 76, should retire
before President Obama's term expires, a move that would allow him to
appoint their replacements rather than wait until the uncertain outcome of
the 2016 election. That's not a new argument. Here's Randall Kennedy, a law
professor at Harvard University, making the case for retirement way back in
April 2011 in a New Republic piece: Justices Ruth Bader Ginsburg and
Stephen Breyer should soon retire. That would be the responsible thing for
them to do. Both have served with distinction on the Supreme Court for a
substantial period of time; Ginsburg for almost 18 years, Breyer for 17. Both
are unlikely to be able to outlast a two-term Republican presidential
administration, should one supersede the Obama administration following
the 2012 election. Seth Masket, writing in the Pacific Standard in 2014,
sounded a similar note: In short, Ginsberg and Breyer are on the left of a
sharply divided Court and they are not young. Ginsburg, in particular, is in
her eighties, has already suffered through a cancer battle, and has
experienced a range of injuries. What's more, the current partisan
arrangement allowing Democrats to dominate the justice selection process
may not last long. Democrats have around a 50 percent chance of holding
the Senate this year, and probably roughly similar odds of holding the White
House in 2016. Should the justices step down now, they could be replaced by
people of similar ideological persuasions. Waiting longer holds out a real
chance that they would be replaced by people well to the right of
them, tipping the Court's precarious balance on such issues as
abortion rights. The older justices, for their part, are generally tight-lipped
about their retirement plans. (They are, of course, tight-lipped about almost
everything.) Im concerned about doing the job full steam, Ginsburg told
MSNBC's Irin Carmon in February. Once I sense that I am slipping, I will step
down. This is a very intense job. "Ill know when Im not hitting on all eight
cylinders," Justice Antonin Scalia told New York magazine's Jennifer Senior in
2013. Whether or not they talk about it, the law of averages would
suggest that a few retirements at the Court are coming some time

soon. The average age at which Justices retire from the Supreme Court is
78.7, according to a 2006 study by the Harvard Journal of Law and Public
Policy. Ginsburg, Scalia and Anthony Kennedy are already past that average;
Breyer will be by the time the next presidential term begins. Looking at the
most recent departures from the Court provides a mixed bag. John Paul
Stevens left in 2010 at age 90. David Souter retired in 2009 at 70. Sandra
Day O'Conner stepped aside at 75. While the Court does much to promote
the idea that it is entirely separate from politics and political concerns, there's
some evidence that planning retirements based on the party affiliation of the
president does happen. "I think certainly its natural and an appropriate thing
to think about your successor," Stevens acknowledged in a 2014 interview.
Notice that I said "some evidence" in the paragraph above. Here's why: From
1953 to 2010, 46 percent of exiting Supreme Court justices left during a
presidency that shared their partisanship, according to a 2011 study from the
Quinnipiac Law Review. That means 54 percent didn't. (Math!) In the more
hyper-partisan political environment in which the Court (and all of us) now
reside, it's hard to imagine that the outcome of the 2016 election won't have
some impact on the go/no-go decisions of the likes of Breyer, Kennedy, Scalia
and Ginsburg. Given that, the stakes of the 2016 election are
remarkably high. Who wins the White House will not only shape the
country over the following four years but could well leave an impact
on the Court that stretches decades beyond that.

Its the largest issue of 2016 and tips the balance of


governmental power
Berry 7/15 (Conor, Longtime newspaper reporter in New York, Vermont
and Massachusetts, covering everything from politics and marine science
issues to crime and courts, Of politics & punditry: why the 2016 presidential
election is all about the Supreme Court, The Republican, July 15 th, 2015,
http://www.masslive.com/politics/index.ssf/2015/07/punditry.html) //RL

According to political oddsmakers, however, the 2016 presidential election


may boil down to one big domestic issue: the Supreme Court. Pundits, the
self-anointed prophets of politics, say the desire and ability of the
president to tilt the court to the left or right is potentially the biggest item on
our next leader's plate. Because controlling the country's high court helps
control the political tenor and trajectory of the nation as a whole, future
appointments to the big bench may help cement a president's legacy and
change the sociopolitical history of the U.S. The odds are "quite high" that
the next president will be able to leave the Supreme Court with a strong
majority leaning toward his or her ideology, columnist and blogger Paul
Waldman writes in The American Prospect. "That kind of shift hasn't
happened in decades; the last time a retiring justice was replaced by
someone appointed by a president from the other party was in 1991, when

Clarence Thomas replaced Thurgood Marshall," Waldman says. "Presidents


Clinton, Bush, and Obama only got the chance to replace a justice they liked
with another justice they liked, leaving the court's balance unchanged," he
says. "But that streak will probably be broken by the next president. And the
results for the country will be at least as profound as anything else the
president does." William Falk, editor of The Week and a former Newsday
staffer who was part of two Pulitzer Prize-winning reporting teams at the Long
Island daily, says the Supreme Court has essentially "become the most
powerful branch of government, making decisions that polarized voters and a
gridlocked Congress and president cannot." Filling a court vacancy is now the
president's most consequential domestic decision." ~ William Falk After all,
the high court has decided presidential elections and, with the sweep of a
hand, seemingly has ended decades-long debates over social issues that
have proven too weighty for mere mortals to sort out. "It's the court that
decides whether gay couples can marry, how campaigns are financed,
whether to pull the plug on ObamaCare or the death penalty, and even who
wins contested presidential elections," writes Falk. "Since justices serve for
life, filling a court vacancy is now the president's most consequential
domestic decision. The next president may replace up to four justices and
utterly reshape the court." Yes, it's true ... the Supremes are very likely to
lose some of their graying members over the next few years. By Inauguration
Day 2017, Justices Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy
will all be in their 80s, and Stephen Breyer will be 78. If a Democrat were to
appoint replacements for all four of them, the court would swing to a 6-3
liberal majority, according to Falk. If a Republican replaces all four, the hawks
would likely gain a 7-2 edge over the doves. "Even if there are just two
replacements, the court and the country will very likely take a sharp left or
right turn and stay on that path for decades," Falk says. "No wonder there are
growing murmurs about changing the lifetime tenure of justices to 18-year
terms. Only czars and popes should expect to rule for life." One of the
biggest problems, however, is predicting whether left- and right-leaning
appointees to the court will stay the course. The bankability factor is no
longer what it used to be: bankable. Take the case of Chief Justice John
Roberts, "once a darling of the right," according to Ken Walsh, blogger,
columnist and writer for U.S. News. But Roberts has since become "the target
for special scorn" from the right, says Walsh. Most recently, he upset
conservatives with his support for Obamacare's constitutionality as part of a
6-3 ruling, in which Roberts was in the majority. Following recent Supreme
Court decisions affirming a constitutional right to same-sex marriage and
upholding the validity of the Affordable Care Act, Sen. Ted Cruz, R-Texas,
decried the rulings as "the latest in a long line of judicial assaults on our
Constitution and Judeo-Christian values." To underscore his displeasure with
the rulings, Cruz is proposing a constitutional amendment that would subject
Supreme Court justices to periodic judicial retention elections. According to
law professor Erwin Chemerinsky, Ted Cruz is right: The Supreme Court needs
term limits. But mere "retention elections" would endanger the independence
of the court, not bolster it, Chemerinsky writes in NewRepublic.com. What's

truly deserving of thoughtful consideration is implementing actual term


limits, he says. "In a year in which both liberals and conservatives have had
plenty of decisions to cheer for and to criticize, term limits appropriately does
not favor either political party or any ideology and has strong bipartisan
support," Chemerinsky writes. "There are many ways to accomplish term
limits, but the best idea is that each justice should be appointed for an 18year, non-renewable term, thus creating a vacancy every two years." Calls
for reform aside, others view Supreme Court nominations as a black and
white issue (read: Democrats vs. Republicans). Depsite grumbling from the
left, Democrats must support Hillary Clinton if she ends up getting her party's
nod, Mark E. Anderson writes in DailyKos.com. "If she is the nominee, we
must support her whether or not we think she is the establishment candidate
or the corporate candidate. Why? The U.S. Supreme Court. The next president
will likely nominate several Supreme Court justices," says Anderson. "If we
fail to turn out on Election Day ... and the Democratic nominee loses, the
Supreme Court will tilt right for the foreseeable future. If we do turn out, and
the Democratic nominee wins, we can change the current makeup of the
court and it will lean to the left," he says. "We already know what damage a
right-leaning court can do just think about Citizens United and Bush v. Gore,
and then imagine if America gets one more conservative justice," says
Anderson.

Prez PC
Presidents expend PC to get their nominees into the
Supreme Court
Johnson and Roberts 4 (Timothy R. Johnson is assistant professor of
political science, University ofMinnesota, Minneapolis, MN 55455
(tjohnson@polisci.umn.edu). Jason M.
Roberts is assistant professor of political science, University of Minnesota,
Minneapolis, MN 55455 (jroberts@polisci.umn.edu), Presidential Capital and
the Supreme Court Confirmation Process, The Journal of Politics, Vol. 66, No.
3, August 2004,
http://www.polisci.umn.edu/~tjohnson/MyPapers/JOP2004.pdf) //RL

On September 4, 2003, after seven failed cloture votes on his nomination,


Estrada withdrew his name from consideration. Despite the fact that the
battle is now over, it is seen by many as a harbinger of things to comeas
there is open speculation that President G. W. Bush would like to ultimately
nominate Estrada to the U.S. Supreme Court.34 The important point for our
analysis is that, despite the successful filibuster waged by the Senate
Democrats, the White House never backed down, and continued to apply a
great deal of public pressure on the Senate until the bitter end. As Dewar
(2003) points out, President Bush personally went public on several
occasions accusing Senate Democrats of shameful politics and declaring,
fairness demands that he receive an up or down vote on the Senate floor [as
quickly as possible].35 In short, President Bush responded to the Senate
filibuster as our model predictsrather than accepting the apparent reality
that there were not enough votes to break the filibuster on Estrada, he
continued to exert public pressure on the Senate in hopes of changing
votes. We have provided evidence that is consistent with the Bush
administrations current strategy. That is, we provide a general explanation of
how and when presidents choose to exercise their political capital by going
public to support their nominations to the United States Supreme Court.
This comports with, and adds to, Malteses argument that presidents have
developed: ... their own strategic resources to help secure confirmation of
their judicial nominees, resources used to sell their Supreme Court
nominees. Presidents now have an unprecedented ability to communicate
directly with the American people, to mobilize interest groups, and to lobby
the Senate. (1995, 11) We confirm Malteses argument by demonstrating
that, at least since 1970, presidents have effectively used public statements
to pressure the Senate by publicly selling their nominees. At the same time,
our findings add to the recent empirical works that seek to explain how
presidents choose the ideology of nominees to the United States Supreme
Court (Moraski and Shipan 1999). Moraski and Shipan show how presidents

often win confirmation battles by nominating individuals whom the Senate


will not object to ideologically. What they do not determine, however, is
when presidents will actually invoke their political resources in a public
manner to fight for their chosen nominees. The findings in this paper do so.
At the end of the day, most presidents probably feel the way President Nixon
did when he faced a hostile Senate, and most senators probably believe
what Senator Leahy argued after the Pickering nomination process. What we
demonstrate is that while the Senate does advise and consent on Supreme
Court nomi- 680 Timothy R. Johnson and Jason M. Roberts 34 Judiciary
Committee Chairman Orrin Hatch made this point bluntly arguing, They
(Democrats) know he (Estrada) is on the fast track for the Supreme Court,
and thats what they are worried about. 35The Presidents full comment was
that Miguel Estrada is highly qualified, extremely intelligent. He has the
votes necessary to be confirmed. Yet a handful of Democrats in the Senate
are playing politics with his nomination, and its shameful politics (Dewar
2003). nations, presidents will do anythingincluding going public to
support their nomineesin an attempt to make the consensual aspect of
the Senates role much more likely

Court Stripping

1NC
Congress is against curtailing surveillance
Trevor Timm, 3-14-2015, "Congress won't protect us from the surveillance
state they'll enhance it," Guardian,
http://www.theguardian.com/commentisfree/2015/mar/14/congress-wontprotect-us-from-the-surveillance-state-theyll-enhance-it
The same Senator who warned the public about the NSAs mass surveillance
pre-Snowden said this week that the Obama administration is still keeping
more spying programs aimed at Americans secret, and it seems Congress
only wants to make it worse.
In a revealing interview, Ron Wyden often the lone voice in favor of privacy
rights on the Senates powerful Intelligence Committee told Buzzfeeds John
Stanton that American citizens are being monitored by intelligence agencies
in ways that still have not been made public more than a year and a half after
the Snowden revelations and countless promises by the intelligence
community to be more transparent. Stanton wrote:
Asked if intelligence agencies have domestic surveillance programs of which
the public is still unaware, Wyden said simply, Yeah, theres plenty of stuff.
Wydens warning is not the first clue about the governments still-hidden
surveillance; its just the latest reminder that they refuse to come clean about
it. For instance, when the New York Times Charlie Savage and Mark Manzetti
exposed a secret CIA program collecting bulk records of international money
transfers handled by companies like Western Union into and out of the
United States in 2013, they also reported that several government officials
said more than one other bulk collection program has yet to come to light.
Since then beyond the myriad Snowden revelations that continue to pour
out the public has learned about the Postal Services massive
database containing photographs of the front and back of every single piece
of mail that is sent in the United States. There was also the Drug Enforcement
Administrations mass phone surveillance program wholly separate than the
NSAs in which phone records were retained even if there was no evidence
the callers were involved in criminal activity, according to the New York
Times. And recently, the Justice Departments national database to track in
real time the movement of vehicles around the US, reported by the Wall
Street Journal.
That there are still programs aimed at Americans that the Obama
administration is keeping secret from the public should be a front page
scandal.
Instead of exposing and informing these programs, however, Congress seems
much more intent on giving the intelligence agencies even more power. On
the same day that Wyden issued his warning, the Senate Intelligence
Committee passed its latest version of CISA, a supposed cybersecurity bill

that allows companies to hand over large swaths of personal information to


the government without any court order at all and gives the companies
immunity from any privacy lawsuits that may result.

When Congress is bypassed, they strip courts of their


jurisdiction
Donald S. Dobkin, 2007 (Donald S. Dobkin is a lawyer with a Masters
degree in law from Northwestern University), "Court Stripping and Limitations
on Judicial Review of Immigration Cases,"
http://cdm16501.contentdm.oclc.org/cdm/ref/collection/federal/id/30

Congressional court stripping, or the attempt to take jurisdiction away from


courts to review matters of all types, is not new. Jurisdiction-stripping
proposals were advanced in Congress as early as 1830. Between 1953 and
1968, over sixty bills were introduced into Congress to restrict federal court
jurisdiction over particular topics. The 1970s and 1980s saw efforts to strip
the courts of jurisdiction in busing, abortion, and school-prayer cases. Sen.
Jesse Helms once proposed a bill to strip the federal courts of jurisdiction to
review school-prayer cases. Barry Goldwater, upon learning of the Helms bill,
dismissed the proposal as the equivalent of outlawing the Supreme Court.
Congress has for years attempted to strip courts of their jurisdiction to review
actions of federal law-enforcement agencies and state courts in order to
reverse decisions they do not like, punish judges, or even avoid future rulings
they may not like. Federal courts, which have been essential in expanding
and preserving individual rights, are now being barraged by congressional
attempts to strip the courts of their power to review. Congresss decisions
about the courts jurisdiction, including appellate jurisdiction, have
considerable effects on their caseloads, although not always in ways that
might have been anticipated. Nowhere has this trend been more apparent
than in Congresss legislation in the immigration area. With the enactment of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
a Republican Congress and the Clinton administration fundamentally altered
judicial review of immigration matters. Despite this legislation restricting
judicial review, the caseload at the U.S. Court of Appeals has risen markedly,
so much so that immigration cases now comprise 18 percent of the federal
appellate civil docket.

Court Stripping leads to the collapse of the judicial


system
Michael J. Gerhardt, Summer 2005, " The Constitutional Limits to Court
Stripping," http://law.lclark.edu/live/files/9695-gerhardtpdf
Referring to the Courts decision in Martin v. Hunters Lessee, Justice Oliver
Wendell Holmes remarked, I do not think the United States would come to
an end if we [judges] lost our power to declare an Act of Congress void. I do
think the Union would be imperiled if we could not make that declaration as
to the laws of the several States. Without the authority to review state court
judgments on federal law recognized in Martin (and ever since), there would
be no means by which to ensure uniformity and finality in the application of
federal law across the United States. This would be particularly disastrous for
constitutional law. Federal rights, for instance, would cease to mean the same
thing in every state. States could dilute or refuse to recognize these rights
without any fear of reversal; they would have no incentive to follow the same
constitutional law. Indeed, many state court judges are subject to
majoritarian pressure to rule against federal rights, particularly those whose
enforcement would result in a diminishment of state sovereignty. The
Fourteenth Amendment would amount to nothing if Congress were to leave to
state courts alone the discretion to recognize and vindicate the rights
guaranteed by the Fourteenth Amendment. Judicial review within the federal
courts is indispensable to the uniform, resolute, and final application of
federal rights protected by the Fourteenth Amendment. However, this Act,
limiting jurisdiction over the Defense of Marriage Act, allows the highest
courts in each of the fifty states to become the courts of last resort within the
federal judicial system for interpreting, enforcing, and adjudicating certain
claims under the Fifth and Fourteenth Amendments. The Act allows different
state courts to reach different conclusions regarding the viability of various
claims differently, without any possibility of review in a higher tribunal to
resolve conflicts among the states. Thus, the Act precludes any finality and
uniformity across the nation in the enforcement and interpretation of the
affected rights. An equally troubling aspect of this Act is its implications for
the future of judicial review. The Constitution does not allow Congress to vest
jurisdiction in courts to enforce a law, but prohibit it from considering the
constitutionality of the law that it is enforcing. The Task Force of the Courts
Initiative of the Constitution Project unanimously concluded that the
Constitutions structure would be compromised if Congress could enact a law
and immunize that law from constitutional judicial review. For instance, it
would be unconstitutional for a legislature to assign the courts to enforce a
criminal statute but preclude them from deciding the constitutionality of the
law. It would be equally unlawful to immunize any piece of federal legislation
from judicial review. If Congress could immunize its laws from the Courts
power of judicial review, then Congress could use this power to insulate every
piece of federal legislation from Supreme Court review. If Congress could
immunize all federal laws from federal judicial review, it would eviscerate the

Courts power to say what the law is with respect to the constitutionality of
those laws. And, if Congress had the power to immunize all of its laws from
judicial review, it is unclear why it then could not also immunize all or some
state laws from judicial review by the Supreme Court. The end result would
be the destruction of the Supreme Courts power of judicial review. In
addition, courts must have the authority to enjoin ongoing violations of
constitutional law. For example, Congress may not preclude courts from
enjoining laws that violate the First Amendments guarantee of freedom of
speech. If an Article III court concludes that a federal law violates
constitutional law, it would shirk its duty if it failed to declare the
inconsistency between the law and the Constitution and proceed accordingly.
Proposals to exclude all federal jurisdiction would, if enacted, open the door
to another, equally disastrous constitutional resultallowing Congress to
command the federal courts on how they should resolve constitutional
questions. In United States v. Klein, the Supreme Court declared that it seems
to us that it is not an exercise of the acknowledged power of Congress to
make exceptions and prescribe regulations to the appellate power . . . . What
is this but to prescribe a rule for the decision of a cause in a particular
way? . . . Can we do so without allowing that the legislature may prescribe
rules of decision to the Judicial Department or the government in cases
pending before it? We think not. . . . We must think that Congress has
inadvertently passed the limit which separates the legislature from the
judicial power.

2NC
Weakening domestic security leads to Court Stripping;
9/11 Proves
Ronald Weich, October 2001, "Upsetting Checks and Balances,"
https://www.aclu.org/sites/default/files/FilesPDFs/ACF47C9.pdf
Throughout American history, threats to domestic security have triggered
unjustified assaults on civil liberties. Today the most basic civil liberty of all
the right to judicial review of executive authority is uniquely vulnerable.
Anti-terrorism laws passed by Congress in 1996 and again in 2001 reflect
growing hostility to the role of judges in our constitutional system. This
report, planned long before September 11, focuses on the laws enacted five
years ago rather than the USA-PATRIOT Act signed into law by President Bush
last Friday. But enactment of the most recent anti-terrorism legislation
provides new urgency for considering a theme common to all these laws: the
role of the judiciary in curbing the excesses of executive authority in pursuit
of politically popular goals. The USA-PATRIOT Act has antecedents stretching
back to the earliest days of the Republic. The Alien and Sedition Acts of 1798,
criminal restrictions on speech during World War I, the internment of
Japanese-Americans following the attack on Pearl Harbor, and the blacklists
and domestic spying of the Cold War are all instances in which the
government was granted (or assumed) summary powers in a moment of
crisis, to the inevitable regret of later generations. The diminution of liberty
that accompanied these episodes was later understood as an overreaction to
frightening circumstances; each is now viewed as a shameful passage in the
nations history. After the immediate danger passed, it was recognized that
the government had already possessed ample powers to address the threats
at hand; the new tools were unnecessary at best and dangerous at worst.
Only rarely have the courts intervened to curb government authority during
periods of genuine insecurity, even though many Americans now wish they
had. In Schenck v. U.S. the Supreme Court unanimously upheld a World War Iera conviction for printing leaflets that urged Americans to resist the draft. In
the infamous case of Korematsu v. United States the Court declined to
overturn evacuation orders that led to the detention of thousands of
Japanese-Americans during World War II. Yet in Watkins v. United States and
related cases, the Court played a crucial role in limiting and eventually
discrediting the reach of Cold War-era red-baiting tactics. In any event, it was
a vital sign of Americas constitutional democracy that such court challenges
could be brought even in times of war and other perceived crises. Judicial
review is a cornerstone of our system of government. But the unbearably
tragic September 11 attacks, which toppled many cornerstones and caused
others to tremble, have led to enactment of an anti-terrorism bill that
undercuts the role of the judiciary in scrutinizing executive actions. Many
provisions of the USA-PATRIOT Act limit judicial review of law enforcement
activities altogether, or create the illusion of judicial review while
transforming judges into mere rubber stamps: Section 203 permits the

disclosure of sensitive information about American citizens obtained through


grand jury investigations and wiretaps to intelligence agencies without
judicial review of the justification for such disclosure; Section 216 minimizes
judicial checks on electronic surveillance by permitting the police to obtain
information about private Internet communications under a meaningless
standard of review; and Section 358 allows law enforcement and intelligence
agencies to obtain sensitive personal information without judicial review,
while section 508 permits access to student records based on a mere
certification by the law enforcement agent that the records are relevant to an
investigation; Under many of these provisions the judge exercises no review
function whatsoever; the court must issue an order granting access to
sensitive information upon mere certification by a government official. The
Act reflects a distrust of the judiciary as an independent safeguard against
abuse of executive authority.

Bypassing Congress through the courts leads to Court


Stripping, which ravages the legal system
Ronald Weich, October 2001, "Upsetting Checks and Balances,"
https://www.aclu.org/sites/default/files/FilesPDFs/ACF47C9.pdf
As a practical matter, court-stripping may be self-defeating. Such legislation
is typically motivated by congressional anger toward the content of certain
court rulings. But removing future jurisdiction over the issue may simply
serve to lock in bad precedent a conundrum even some critics of so-called
activist judging have acknowledged. Former Judge Bork notes that: Some
state courts would inevitably consider themselves bound by the federal
precedents; others, no longer subject to review, might not. The best that
Congress could hope for would be lack of uniformity. This is a far cry from
amending the Constitution or even overruling a case. While it may seem
preferable to some to lack uniformity on a particular issue rather than to have
a repugnant uniform rule, the government could not easily bear many such
cases and certainly could not long endure a complete lack of uniformity in
federal law. Thus there are practical limitations on excessive use of the
Exceptions Clause. More troublesome is that court-stripping defeats the spirit
of the Constitution. The Framers took care to create an independent judiciary
to safeguard individual liberty. Removing important issues from the purview
of the courts, especially those concerning the rights of unpopular minorities,
is a direct assault on these constitutional protections. By the same token,
Congress does great harm to the integrity of the federal judiciary when it
leaves issues before the courts, but attempts to manipulate how judges may
remedy violations of constitutional or statutory rights. Even scholars who
believe that the Constitution allows significant congressional control of
federal jurisdiction generally agree it would be unwise to invoke it over any
significant category of federal law or use it to achieve a desired substantive
outcome. Thus Professor Gerald Gunther, writing at the time Congress was

considering court-stripping bills in the early 1980s regarding abortion, busing


and school prayer, concluded I would urge the conscientious legislator to
vote against the recent jurisdiction-stripping devices because they are unwise
and violate the spirit of the Constitution, even though they are, in my view,
within the sheer legal authority of Congress. Put another way, [w]hat may
be conceivable in theory would be devastating in practice to the real world
system of checks and balances that has enabled our constitutional system to
function for 200 years.

Congress can strip courts of authority; even Supreme


Court agrees
Martin J. Katz, Summer 2009, " GUANTANAMO, BOUMEDIENE,
AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE
IMPERIAL COURT,"
http://www.law.du.edu/documents/directory/publications/Jurisd_Strip_2009_02
02.pdf
A. Stripping Jurisdiction from Lower Federal Courts: The first question in
the jurisdiction-stripping debate is whether Congress can restrict
the jurisdiction of the lower federal courts (district courts and circuit courts)
to hear a particular type of case. This question assumes that only the lower
federal courts are closed - that the Supreme Court's original and
appellate jurisdiction remains intact. Proponents of allowing this form
of jurisdiction-stripping point to the text of Article III, which gives Congress
the power to "ordain and establish" lower federal courts. The argument is
that (1) the Ordain and Establish Clause gave Congress discretion over
whether to create lower federal courts, and (2) if Congress could decline to
create lower federal courts, then Congress can limit such courts' jurisdiction.
Most commentators today seem to accept the basic idea that the Ordain and
Establish Clause permits Congress to restrict or even eliminate
the jurisdiction of the lower federal courts. Some of these commentators
have also suggested that there might be limits on this power. For example,
nearly all commentators have suggested that the "ordain and establish"
power is limited by substantive provisions elsewhere in the Constitution, such
as the Equal Protection Clause; so Congress could not, for example,
preclude jurisdiction only over cases brought by African Americans or
Catholics. n19 Also, as noted above, most of the commentators who believe
Congress has the power to limit lower federal court jurisdiction assume that
some alternative court would remain open to hear the cases in question - an
assumption which is likely incorrect in a case like Boumediene. But subject to
these two potential limits, n21 the "traditional view" is that Congress can
exercise its "ordain and establish" power to close lower federal courts. The
courts, too, n23 seem largely to accept the "traditional view" - that Congress
has the power to restrict lower federal court jurisdiction. The Supreme Court
has, on at least five occasions, suggested that Congress can limit lower

federal court jurisdiction pursuant to the Ordain and Establish Clause.


However, none of these cases appears to have tested the
potential [*384] limits on the exercise of this power. As I will discuss below,
Boumediene suggests such a limit. B. Stripping the Supreme Court's
Appellate Jurisdiction: The second question in the jurisdiction-stripping debate
is whether Congress can strip the Supreme Court of its
appellate jurisdiction. This question assumes that the lower federal courts, as
well as the Supreme Court's original jurisdiction, remain open. The idea that
Congress can strip the Supreme Court of its appellate jurisdiction flows
primarily from the text of Article III, which gives Congress the power to make
"Exceptions, and ... Regulations" to the Supreme Court's
appellate jurisdiction. At least some commentators have gone beyond this
simple textual argument to suggest a structural purpose underlying this
textual provision: that the Framers included this language to
provide [*385] Congress with a means to check the power of the Supreme
Court. Most commentators accept the idea that the Exceptions Clause
permits Congress to exercise such control over the Supreme Court's
appellate jurisdiction. However, some notable commentators have suggested
that there might be some limits on this power. For example, Professor Hart
argued that Congress cannot use this power to destroy the "essential
functions" of the Supreme Court, which include maintaining the supremacy
and uniformity of federal law. Others have suggested that, at least in certain
types of cases, Congress cannot use its Exceptions Clause power in a way
that would foreclose all avenues to the Supreme Court. As with the issue of
lower court jurisdiction-stripping, the Supreme Court has only occasionally
weighed in on the issue of Supreme Court appellate jurisdictionstripping. The Court has said several times that Congress can use its
Exceptions Clause [*386] power to restrict the Court's
appellate jurisdiction. However, in repeated dicta, the Court appears to have
endorsed one limit on this power: Congress may need to leave open some
avenue by which certain types of cases can be litigated in federal court (and
possibly the Supreme Court). But the Court never actually struck down a law
limiting its appellate jurisdiction on these grounds - until Boumediene.

Court Stripping works retroactively, preventing


enforcement of laws
Tom Wicker, 4-24-1981, " In The Nation: Court Stripping,"
http://www.nytimes.com/1981/04/24/opinion/in-the-nation-courtstripping.html
The ''Court-stripping plan'' of the Mssrs. Helms, Crane et al actually goes
further. Eliminating the Supreme Court's jurisdiction over whole classes of
cases would mean that the Court could not even enforce rulings already
made in those areas. Thus, Court-stripping would work retroactively, not just
on future cases. This is not an idle threat. No one should discount Jesse
Helms's power. Even in the last Congress, the Senate passed his stripping bill

on school prayer; it missed coming to the House floor by only 32 votes (on a
petition to discharge it from the Judiciary Committee). In the new, more
conservative Congress, and with the tacit support - so far at least - of
President Reagan, that particular bill's chances of passage are ominous. So,
probably, are those of stripping bills on school busing and abortion. But won't
the Supreme Court itself declare such measures unconstitutional? Probably,
but if by the time they reach the Court Mr. Reagan has appointed one or two
new ''conservative'' justices, who can tell? And in the meantime, severe
damage could be done to what people have thought were constitutional
rights. Court-strippers make a constitutional argument, of sorts, based on
Article III, Section 2, which makes Supreme Court jurisdiction subject to ''such
exceptions ... as the Congress shall make.'' They say the framers adopted this
language precisely for situations where the Court might have ''usurped''
power or misinterpreted the Constitution. If so, nobody explained that
intention in the Federalist papers or other writings of the time. Most
constitutionalists, including many conservatives, believe the provision was
intended for lesser ''housekeeping'' purposes and deny that it gives Congress
authority to prevent the Court from making constitutional interpretations.
Representative Robert Kastenmeier of the House Judiciary Committee points
out that ''to do so would make (members of Congress) the sole judges of
what the Constitution is.'' And former Solicitor General Robert Bork of the Yale
Law School says the exceptions clause would have been an ''odd way for the
framers to have provided for Congressional revision of Court decisions,'' since
it would ''create chaos.'' It would do so by leaving state court decisions on
constitutional matters unreviewed by the Supreme Court. Thus, if the states
ruled variously on, say, abortion, American citizens in one state could have
constitutional rights not enforced in another. And any time Congress didn't
like Supreme Court rulings in some area - on gun legislation, for example - it
could strip the Court of jurisdiction in that field. In fact, of course, the
motivation for Court-stripping is political, not constitutional. Strippers like Mr.
Helms and Mr. Crane want to prohibit abortion and school busing and
overturn a 17-yearold ruling of the Court on school prayer. But they fear they
do not have the votes to pass a constitutional amendment on any of those
issues. So they are attempting to muscle their way through a back door
Congress has never before been willing to open - not when the same
disingenuous arguments were made for Court-stripping during the era of
McCarthyism, or when they were put forward after the landmark school
desegregation case of 1954. True conservatives should be first among those
opposed to this radical power grab.

EXECUTIVE ORDER
COUNTERPLAN

NEG EXECUTIVE ORDER CP

1NC Shell
The president of the United States should
Executive can take action to curtail surveillance
Straw 14 (Joesph Straw-Published: Friday, January 17, 2014, 6:58 AM
Updated: Saturday, January 18, 2014, 1:01 AM Obama calls for modest
constraints on NSA surveillance programs
http://www.nydailynews.com/news/politics/obama-calls-constraints-nsasurveillance-article-1.1582758 )
Regardless of how we got here, Obama said, the task before us now is
greater than simply repairing the damage done to our operations or
preventing more disclosures from taking place in the future. National
Security Agency leaker Edward Snowden revealed last year that the
government legally but secretly forces phone companies to turn
over billions of records on Americans calls and stores them. Obama
said the NSA will continue to vacuum up billions of U.S. phone call logs,
but the government will set up a new, outside entity to store the data.
We have to make some important decisions about how to protect
ourselves and sustain our leadership in the world while upholding the
civil liberties and privacy protections our ideals and our Constitution
require, he said in a speech at Justice Department headquarters.
Among his proposals: - Require the government to get approval from a
judge before it searches the data, except in emergencies. - Continue
NSA monitoring of foreign terror suspects email accounts, but with
protections for the privacy of data on innocent Americans caught in the
dragnet. - Establish a panel of public advocates, who would argue
before the secret Foreign Intelligence Surveillance Court to protect civil
liberties in high-profile cases. Obama asked Congress to approve the
establishment of the advocate panel. He would pursue the remainder of
his plans by executive order, he said, but welcomed Congress to make
his proposals law. Responding to one of Snowden's most embarrassing
revelations that the NSA has eavesdropped on the personal cell
phones belonging to close allies like German Chancellor Angela Merkel
Obama said that friendly leaders phones will not be tracked except
when doing so is critical to national security.

Prez Power NB
Executive orders increase presidential power
Risen 4 [Clay, Managing editor of Democracy: A Journal of Ideas, M.A. from
the University of Chicago The Power of the Pen: The Not-So-Secret Weapon
of Congress-wary Presidents The American Prospect, July 16,
http://www.prospect.org/cs/articles?article=the_power_of_the_pen]

In the modern era, executive orders have gone from being a tool largely
reserved for internal White House operations -deciding how to format
agency budgets or creating outlines for diplomatic protocol -- to a
powerful weapon in defining, and expanding, executive powe r. In
turn, presidents have increasingly used that power to construct and
promote social policies on some of the country's most controversial
issues, from civil rights to labor relations to reproductive health .

Presidential power is critical to sustain the vital functions of


American leadership
Mallaby 2K (Sebastian, Member, Washington Posts Editorial Board, Foreign
Affairs, Jan/Feb)
Finally, some will object that the weakness of the presidency as an
institution is not the main explanation for the inadequacies of
American diplomacy, even if it is a secondary one. The ad hominem
school of thought argues instead that Bill Clinton and his advisers have
simply been incompetent. Others make various sociological claims that
isolationism or multiculturalism lies at the root of America's diplomatic
troubles. All of these arguments may have merit. But the evidence cited by
both camps can be better explained by the structural weakness of
the presidency. Take, for example, one celebrated error: President Clinton's
declaration at the start of the Kosovo war that the Serbs need not fear NATO
ground troops. This announcement almost certainly cost lives by encouraging
the Serbs to believe that America was not serious about stopping ethnic
cleansing. The ad hominem school sees in this example proof of Clinton's
incompetence; the sociological school sees in it proof of isolationist pressure,
which made the option of ground troops untenable. But a third explanation,
offered privately by a top architect of the Kosovo policy, is more plausible.
According to this official, the president knew that pundits and Congress would
criticize whichever policy he chose. Clinton therefore preemptively took
ground troops off the table, aware that his critics would then urge him on to a
ground war -- and also aware that these urgings would convince Belgrade
that Washington's resolve would stiffen with time, rather than weaken. The
president's stand against ground troops was therefore the logical, tactical

move of a leader feeling vulnerable to his critics. Other failings of


American diplomacy can likewise be accounted for by the advent of
the nonexecutive presidency. Several commentators, notably Samuel
Huntington and Garry Wills in these pages, have attacked the arrogance of
America's presumption to offer moral leadership to the world. But American
leaders resort to moral rhetoric largely out of weakness. They fear that their
policy will be blocked unless they generate moral momentum powerful
enough to overcome domestic opponents. Likewise, critics point to the
hypocrisy of the United States on the world stage. America seeks U.N.
endorsement when convenient but is slow to pay its U.N. dues; America
practices legal abortion at home but denies funds to organizations that do the
same abroad. Again, this hypocrisy has everything to do with the weak
executive. The president has a favored policy but is powerless to
make Congress follow it. Still other critics decry American diplomacy as a
rag-bag of narrow agendas: Boeing lobbies for China trade while CubanAmericans demand sanctions on Cuba. Here, too, presidential power is the
issue. A strong presidency might see to it that America pursues its
broader national interest, but a weak one cannot. This is why Clinton
signed the Helms-Burton sanctions on Cuba even though he knew that these
would do disproportionate harm to U.S. relations with Canada and Europe.
What if America's nonexecutive presidency is indeed at the root of its
diplomatic inadequacy? First, it follows that it is too optimistic to blame
America's foreign policy drift on the weak character of the current president.
The institution of the presidency itself is weak, and we would be unwise
to assume that a President Gore or Bradley or Bush will perform much better.
But it also follows that it is too pessimistic to blame America's foreign policy
drift on cultural forces that nobody can change, such as isolationism or
multiculturalism.

Prez Powers key to check global hotspots


South China Morning Post 2K (South China Morning Post
12/11/00 ProQuest [Newspaper] Position of Weakness)
A weak president with an unclear mandate is bad news for the rest of
the world. For better or worse, the person who rules the United States
influences events far beyond the shores of his own country. Both the
global economy and international politics will feel the effect of political
instability in the US. The first impact will be on American financial
markets, which will have a ripple effect on markets and growth across
the world. A weakened US presidency will also be felt in global hotspots
across the world. The Middle East, the conflict between India and
Pakistan, peace on the Korean peninsula, and even the way relations
between China and Taiwan play out, will be influenced by the authority
the next US president brings to his job. There are those who would
welcome a weakening of US global influence. Many Palestinians, for
example, feel they would benefit from a less interventionist American

policy in the Middle East. Even within the Western alliance, there are
those who would probably see opportunities in a weakened US
presidency. France, for example, might feel that a less assertive US
might force the European Union to be more outward looking. But the
dangers of having a weak, insecure US presidency outweigh any
benefits that it might bring. US global economic and military power
cannot be wished away. A president with a shaky mandate will still
command great power and influence, only he will be constrained by his
domestic weakness and less certain about how to use his authority. This
brings with it the risks of miscalculation and the use of US power in a
way that heightens conflict. There are very few conflicts in the world
today which can be solved without US influence. The rest of the world
needs the United States to use its power deftly and decisively.
Unfortunately, as the election saga continues, it seems increasingly
unlikely that the next US president will be in a position to do so.

Solvency

Generic
Obama willing to push through an order-XO inevitable
Kumar 13
(March 19, 2013 Anita Kumar Obama turning to executive power to get what
he wants http://www.mcclatchydc.com/news/politics-government/whitehouse/article24746896.html)
President Barack Obama came into office four years ago skeptical of pushing the power of the White

as he launches his
second term, Obama has grown more comfortable wielding power to try to
move his own agenda forward, particularly when a deeply fractured, oftenhostile Congress gets in his way. Hes done it with a package of tools, some of which date to
House to the limit, especially if it appeared to be circumventing Congress. Now,

George Washington and some invented in the modern era of an increasingly powerful presidency. And hes
done it with a frequency that belies his original campaign criticisms of predecessor George W. Bush, invites
criticisms that hes bypassing the checks and balances of Congress and the courts, and whets the appetite
of liberal activists who want him to do even more to advance their goals. While his decision to send

his use of
executive orders and other powers at home is deeper and wider . He delayed the
drones to kill U.S. citizens suspected of terrorism has garnered a torrent of criticism,

deportation of young illegal immigrants when Congress wouldnt agree. He ordered the Centers for Disease
Control and Prevention to research gun violence, which Congress halted nearly 15 years ago. He told the
Justice Department to stop defending the Defense of Marriage Act, deciding that the 1996 law defining
marriage as between a man and a woman was unconstitutional. Hes vowed to act on his own if Congress
didnt pass policies to prepare for climate change .

Arguably more than any other


president in modern history, hes using executive actions, primarily orders, to
bypass or pressure a Congress where the opposition Republicans can block
any proposal. Its gridlocked and dysfunctional. The place is a mess, said
Rena Steinzor, a law professor at the University of Maryland. I think
(executive action) is an inevitable tool given whats happened. Now that
Obama has showed a willingness to use those tactics, advocacy groups,
supporters and even members of Congress are lobbying him to do so more
and more.

Executive orders are faster and more efficient than


normal means
Mayer 1(Kenneth, Professor at the University of Wisconsin-Madison,
Princeton University Press, "With the Stroke of a Pen", 2001,
http://press.princeton.edu/chapters/s7095.pdf, Accessed 7/23/2012)
The second presidential advantage in the institutional setting is the ability to act first, leaving it up to other institutions to
reverse what presidents have done. Whether presidents have effective plenary executive authority or not (an open

there is no doubt that they can take action faster and more efficiently
than either Congress or the courts.Congress as a collective organization takes definitive
action through the legislative process, which is cumbersome, difficult to
navigate, and characterized by multiple veto points. Even when Congress can create and
sustain majorities at the subcommittee, committee, floor, and conference stages, the president can
use the veto power to raise the bar from a simple majority to a two-thirds
majority necessary to enact legislation over the presidents objection. The
question),

president, at the same time, has a trump card of great consequence in his struggle against Congress for control of

He can act unilaterally in many matters of structure. 118 The


president, in effect, can often make the first move in these disputes, forcing
Congress to take positive action to undo what the president has created.
government.

Similarly, the judiciary can overturn executive actions (as it did in rejecting Clintons 1995 replacement worker executive
order), but must wait for controversies to come to it, and definitive resolution can take years. Moreover, even after the
judicial decision, enforcement is a matter for the president. This theoretical perspective offered by the new institutional
economics literature provides a way of making sense of the wide range of executive orders issued over the years, and is

executive
orders are an instrument of executive power that presidents have used to
control policy, establish and maintain institutions, shape agendas, manage
constituent relationships, and keep control of their political fate generally. 128 Within the boundaries set by
statute or the Constitution, presidents have consistently used their executive power
often manifested in executive ordersto shape the institutional and political context in which
the centerpiece of my approach. The common theme I find in significant executive orders is control:

they sit. There are, to be sure, limits on what presidents can do relying solely on executive orders and executive power,

the president retains


significant legal, institutional, and political advantages that make executive
authority a more powerful tool than scholars have thus far recognized.
and presidents who push too far will find that Congress and the courts will push back. Yet

Executive Emergency Response


The executive currently has the ability to act quickly to
war because it doesnt have to consult congress. ISIL
proves.
Scott Roehm 15, Scott Roehm is Senior Counsel at The Constitution
Project, 7-9-2015, "Isil, War Powers, And The Constitution," Washingtion
Times, http://www.washingtontimes.com/news/2015/jul/9/celebrate-libertymonth-isil-war-powers-and-the-co/
On July 11, 2014, Representative Jim McGovern rose on the House floor in
support of a resolution to prohibit President Obama from going to war against
the Islamic State of Iraq and the Levant absent specific authorization from
Congress. Now, Mr. Speaker, is the time to debate our new engagement in
Iraq, he said. Now, before the next addition of more troops takes place
Now, Mr. Speaker, before we are forced to fire our first shots or drop our first
bombs. The longer we put off carrying out our constitutional
responsibilities, he warned, the easier it becomes to just drift along. The
House passed the resolution overwhelmingly. And yet, a year later, abetted
by the Obama administrations acrobatic lawyering, Congress remains adrift.
Save for a few notable exceptions, members have stood by while the
President unilaterally embarks on a large-scale, long-term military campaign
against ISIL that has already involved more than 5,000 airstrikes and multiple
troop deployments. President Obama has said repeatedly that he would
welcome congressional approval for the ISIL war, but emphasizes that he
does not need it. Both branches are failing the Constitution. Article I, Section
8 of the Constitution vests Congress with the power to decide on war. The
executives role is to wage war once authorized, but only within the
parameters that Congress sets. There are good reasons for this division of
responsibilities. War is in fact the true nurse of executive aggrandizement,
James Madison explained. No single person should be entrusted with the
awesome power to decide the question of war or peace, because the
temptation would be too great. So, the Framers insisted that the decision to
use military force be reached through collective judgment. This check on the
executive ensures that our elected representatives are politically accountable
when young Americans are put in harms way. It gives those who ultimately
bear the costs of war the American people a voice in that decision. The
Obama administration has circumvented these constitutional rules in two
ways. First, the President continues to claim authority as commander in chief
and pursuant to his foreign affairs powers to conduct aspects of the ISIL war
without congressional approval. (The extent of President Obamas Article II
claim remains unknown because the administration has not publicly
explained it). To be sure, the Constitution permits the executive to act alone
in narrow circumstances to defend the country against an actual or
imminent attack, and arguably to rescue American hostages. But the military
campaign against ISIL long ago surpassed those very limited exceptions.
Second, and perhaps more troubling, the President maintains that Congress

already signed off on the ISIL war twice. In a letter to Congress last
September, he stated that he was acting on the basis of a 13 year-old law
that authorized using force against the perpetrators of the September 11
attacks and those who harbored them, and a 12 year-old law that authorized
the invasion of Saddam Husseins Iraq. Remarks by administration officials
over the last year, along with a recently revealed White House document that
reads like a set of talking points, have added scant analytical meat to the
bones of that claim. The administration has produced no evidence that
Congress intended to authorize, or even foresaw, the ISIL war back in 2001
and 2002, because there isnt any. Unfortunately, Congress has not
meaningfully pushed back. A handful of members in both the House and
Senate have tried hard to force a debate and vote on the ISIL war, but neither
chamber has followed through despite what appears to be a majority in favor
of military action. Disagreements over the scope of the mission, some
members seeming desire to avoid accountability, and a general very
troubling sense that congressional authorization would have little practical
effect in light of the administrations claims of pre-existing authority, have all
entrenched the status quo.

In times of crisis the executive needs to surveil quickly to


prevent homeland attacks WWI proves.
Banks 2k (William, EXECUTIVE AUTHORITY FOR NATIONAL
SECURITY SURVEILLANCE, October 2000, The American
University Law Review,
http://www.lexisnexis.com/hottopics/lnacademic/, HL)
As the war progressed, the industrial might of the United States engaged in
feeding the belligerents. n144 In reality, however, since Great Britain
controlled the seas, our industrial might fueled only the allied na-tions - a fact
that the Axis meant to change. n145 Operations by Germany in the United
States were neither extensive nor appreciably [*22] effective, but sabotage,
intelligence and propaganda operations did oc-cur. n146 Without an adequate
legal structure to address these issues, operational requirements and
remedial measures continued to flow exclusively from the authority of the
President. n147 The specter of German subversion far surpassed reality, but
the result, nevertheless, was reminiscent of the Alien and Sedition Acts. n148
Enacted on June 15, 1917, the Espionage Act authorized the government to
confiscate property, wiretap, search and seize private property, censure
writings, open mail and restrict the right of assembly. n149 Vague regulations
took their aim not at German spies, but at agitators, while legions of
informers, private investigators and federal agents combined to root out
subversive elements. n150 One significant concern of the era was the threat
of subversion in the armed forces. n151 An early an-ti-draft movement
prompted an initial concern, which evolved into a larger concern over German
and Aus-tro-Hungarian aliens in the military. n152 The concern was not

unfounded as German agents were uncovered in the U.S. Army. n153 Of


greater significance was the beginning of the "red scare." n154 Revolutionary
unrest in Europe dominated the political scene abroad and industrial
disruption in the United States added to the fear of socialism. n155 [*23]
When a spy scare swept the nation near war's end, the Justice Department's
four hundred Bu-reau of Investigation agents, who had assumed domestic
counter intelligence responsibilities, were quickly overwhelmed with
investigative requirements. n156 Reacting to the constraint on resources,
Attorney General Gregory accepted an offer of assistance from the American
Protective League (APL), an army of unpaid volunteers. n157 After each
volunteer was given a badge similar to a police shield, the APL waged a
zealous campaign against disloyalty in any form. n158 Acting without police
powers, volunteers conducted arrests, searches and seizures, tapped
telephones and conducted "slacker raids" to root out draft dodgers. n159
World War I also brought with it the "concept of a continuing war with an
internal enemy composed of civilians who could no longer be trusted, even in
peacetime[.]" n160 Although protests over the "slacker raids" reached the
President's desk, he was assured by Attorney General Gregory that the
breaches of the law oc-casioned by the raids were necessary. n161 Sparked
by the Bolshevik revolution in 1917 and the eventual urging by the Bolshevik
leaders that workers everywhere revolt against capitalism in favor of a
socialist state, the U.S. Military Intelligence Division (MID) developed War
Plans White, contingency plans for a war at home. n162 MID believed that the
radical labor movement was allying itself with foreign ethnic groups
sympathetic to [*24] the Russian revolution. n163 The end of the war implied
to General Churchill, Director of Washington's MID, that groups such as MID
would be disbanded. n164 However, executive branch officials encouraged
Congress to continue funding MID at a reduced level. n165 After racial
violence erupted in Washington, D.C. and Chicago in 1919, Con-gress
determined that "radicals" caused the unrest and permitted expanded MID
domestic activities. n166 MID began to issue "weekly situation reports" in
which it gathered and presented information about dissident groups. n167 As
delusions about an imminent attempt to overthrow the government
continued to guide army intelligence and the thinking of new Assistant
Attorney General J. Edgar Hoover, MID engaged in raids on suspected radical
groups and continued surveillance of a wide array of citizens. n168 Wilson's
last Attorney General, A. Mitchell Palmer, conducted a vigorous anti-Red
campaign. n169 "Slacker raids" were displaced by "Palmer Raids" that
targeted Communists and Communist labor parties across the United States.
n170 Thousands of individuals were arrested without probable cause. n171
The Palmer Raids were the first [*25] instance of a presidentially approved,
even if tacitly so, campaign against domestic subversion. n172 Protests
existed, but they were few and the perceived red threat loomed larger than
life. n173 Extra-legal processes were employed with confidence, but in the
climate of the day, they surely seemed less a governmental excess than they
would today. n174 In retrospect, despite the threats to protected
constitutional liberties posed by the early intelligence in-stitutions,

dismantling the intelligence services was a significant error of policy. n175


Three international forces were building. First, of course, was the Bolshevik
revolution. n176 The second, largely unrecognized at first, was the Fascist
ascendancy in Europe. n177 Third, and largely ignored, was Japanese
hegemonic milita-rism. n178 When these forces began to threaten U.S.
interests, intelligence became a primary need and the pattern of extra-legal
government activity and public acquiescence was repeated. Through the
1920s and 1930s, domestic intelligence became increasingly important.

Legality
XOs legal and Obama ready to act on domestic issues
Savage 12 (Charlie Savage April 22, 2012 Shift on Executive Power
Lets Obama Bypass
Rivalshttp://www.nytimes.com/2012/04/23/us/politics/shift-onexecutive-powers-let-obama-bypass-congress.html?_r=0)
Mr. Obama has issued signing statements claiming a right to bypass a
handful of constraints rejecting as unconstitutional Congresss
attempt to prevent him from having White House czars on certain
issues, for example. But for the most part, Mr. Obamas increased
unilateralism in domestic policy has relied on a different form of
executive power than the sort that had led to heated debates during his
predecessors administration: Mr. Bushs frequent assertion of a right to
override statutes on matters like surveillance and torture. Obamas not
saying he has the right to defy a Congressional statute, said Richard H.
Pildes, a New York University law professor. But if the legislative path is
blocked and he otherwise has the legal authority to issue an executive
order on an issue, they are clearly much more willing to do that now
than two years ago. The Obama administration started down this path
soon after Republicans took over the House of Representatives last year.
In February 2011, Mr. Obama directed the Justice Department to stop
defending the Defense of Marriage Act, which bars federal recognition of
same-sex marriages, against constitutional challenges. Previously, the
administration had urged lawmakers to repeal it, but had defended their
right to enact it. In the following months, the administration increased
efforts to curb greenhouse gas emissions through environmental
regulations, gave states waivers from federal mandates if they agreed
to education overhauls, and refocused deportation policy in a way that
in effect granted relief to some illegal immigrants brought to the country
as children. Each step substituted for a faltered legislative proposal.

President shouldnt be constrained by DOJ or OLC-already took illegal actions


Pildes 12 [Richard H., Sudler Family Professor of Constitutional Law, NYU School of
Law and Co-Director, NYU Center on Law and Security. 2/27/12 BOOK REVIEWS LAW
AND THE PRESIDENT THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC.
By Eric A. Posner and Adrian Vermeule. New York, N.Y.: Oxford University Press. 2010.
Pp. 249 $29.95. New York University Public Law and Legal Theory Working Papers]

Similarly, Posner and Vermeule believe presidents should not feel substantially constrained to follow the legal conclusions of the Department
of Justice, including those of the Office of Legal Counsel (OLC), even
though OLC was specifically organized and structured to provide authoritative legal analysis that binds the executive branch. During debates
over whether the War Powers ]) required President Obama to receive
congressional approval to continue beyond sixty days the United States
involvement in the NATO military operations against the Gaddafi

government in Libya, it was reported that OLC concluded the law did require congressional approval (which Congress never gave) in which
case the WPR also required the President to withdraw the uses of
military force the WPR lawyers from other parts of the execu- tive
branch, including the legal advisor to the State Department and the
White House Counsel, concluded that the WPR did not terms, the legal
question was whether the President was waging an illegal war (or, put
differently, conducting illegal military hostilities). And, when leaks
revealed the internal executive branch deliberative process through
which these issues were resolved, the President received a good deal of
criticism on both procedural and substantive grounds for not properly respecting OLCs role in determining the legal constraints that should
govern executive branch conduct. Applying the framework developed in
their book, Posner and Vermeule assert that these criticisms were
fundamentally misconceived. As they put it: A president need not have
or consult any legal advisers at all; nothing prevents Obama from
shutting down OLC and the other executive branch legal offices
altogether and deciding the administrations legal positions for other
words, according to Posner and Vermeule, no good reason exists that
presidents should be presumptively bound by OLCs le- gal conclusions
or that the public should be concerned about the processes by which the
President decides whether to follow OLC.

Congress Ineffective
Congress is weak on domestic surveillance, specifically
phone surveillance and internet surveillance, and has
little to no influence on domestic surveillance policies.
William Bendix and Paul J. Quirk, William Bendix is an assistant
professor of political science at Keene State College. His research focuses on
Congress, legislative deliberation, and homeland security and civil liberties
policies; Paul J. Quirk is the Phil Lind Chair in U.S. Politics and Representation
at the University of British Columbia and a former research associate at the
Brookings Institution. His work focuses on debate and deliberation in
Congress and the mass public. Secrecy and negligence: How Congress lost
control of domestic surveillance March 2, 2015
In enacting the USA PATRIOT Act just weeks after the 9/11 terrorist attacks,
Congress sought to enhance investigations against specific, named persons
suspected of terrorism. As voluminous documents leaked by whistleblower
Edward Snowden have revealed, however, the president and the National
Security Agency (NSA) have relied on that law to authorize the daily,
ongoing capture of all U.S. communication records. These documents
make clear that the Bush and Obama administrations ignored
statutory constraints to authorize exceptionally broad intelligencegathering programs. But from our review of legislative hearings and
debates on the PATRIOT Act over the last five years, along with numerous
declassified documents on surveillance, we find that unilateral action by the
executive branch was only partly to blame for unrestrained domestic spying.
After the relatively balanced and cautious provisions of the 2001 PATRIOT
Act, Congress virtually absented itself from substantive decision
making on surveillance. It failed to conduct serious oversight of
intelligence agencies, ignored government violations of law, and
worked harder to preserve the secrecy of surveillance practices than
to control them. Even after the Obama administration made the
essential facts about phone and email surveillance available in
classified briefings to all members, Congress mostly ignored the
information and debated the reauthorizations on the basis of
demonstrably false factual premises. Until the Snowden revelations, only
a handful of well-briefed and conscientious legislatorstoo few to be
effective in the legislative processunderstood the full extent of domestic
intelligence gathering. We describe and explain Congresss deliberative
failure on phone and Internet surveillance policy. We show that along
with a lack of consistent public concern for privacy, and the
increasing tendency toward partisan gridlock, Congresss
institutional methods for dealing with secret surveillance programs
have undermined its capacity to deliberate and act effectively with
respect to those programs. Although the current political environment is
hardly conducive to addressing such problems, we discuss long-term goals for
institutional reform to enhance this capacity. We see no easy or decisive

institutional fix. But without some structural change, the prospects look dim
for maintaining significant limitations on investigatory intrusion in an era of
overwhelming concern for security.

Congress inability to impose constraints and restrictions


on domestic surveillance policy leads to unmatched power
of the executive branch on these issues.
William Bendix and Paul J. Quirk, William Bendix is an assistant
professor of political science at Keene State College. His research focuses on
Congress, legislative deliberation, and homeland security and civil liberties
policies; Paul J. Quirk is the Phil Lind Chair in U.S. Politics and Representation
at the University of British Columbia and a former research associate at the
Brookings Institution. His work focuses on debate and deliberation in
Congress and the mass public. Secrecy and negligence: How Congress lost
control of domestic surveillance March 2, 2015
During the last five years of legislative debates over the PATRIOT
Act, Congress has failed to define or control surveillance policy. Prior
to the Snowden leaks, most members had little awareness of NSA
activities and Congress had little capacity to impose constraints. Now,
more than 18 months after Snowden exposed the mass seizure of
phone records, not much has changed. To a great extent, the source of
difficulty has been the inadequacy of the institutional arrangements for
legislative deliberation on secret programs. Some members have declined
opportunity to learn about domestic-spying practices, while others
have opposed placing restrictions on the NSA for fear of giving terrorists any
tactical advantage. ...[A]long with a lack of consistent public concern for
privacy, and the increasing tendency toward partisan gridlock, Congresss
institutional methods for dealing with secret surveillance programs have
undermined its capacity to deliberate and act effectively with respect to
those programs. Secrecy and negligence 3 If Congress had conducted
thorough, informed deliberations at all stages, we suspect it would have
endorsed extensive collection of communication records, but it would have
also imposed limitations and constraints to minimize the harm to privacy
interests. Instead, it gave the executive branch essentially unfettered
authority to operate a massively intrusive program.

Congress fails to defend the privacy interests of


Americans with their inability to control domestic
surveillance.
William Bendix and Paul J. Quirk, William Bendix is an assistant
professor of political science at Keene State College. His research focuses on
Congress, legislative deliberation, and homeland security and civil liberties

policies; Paul J. Quirk is the Phil Lind Chair in U.S. Politics and Representation
at the University of British Columbia and a former research associate at the
Brookings Institution. His work focuses on debate and deliberation in
Congress and the mass public. Secrecy and negligence: How Congress lost
control of domestic surveillance March 2, 2015
Our account of the development of the metadata surveillance
programs centers on Congress and its interactions with several
institutionsthe president, the FISA Court, and the Justice
Department, among othersand proceeds through several phases. We
begin with brief theoretical remarks on the central institutional properties
that drive the account. We argue that Congress as an institution has
great difficulty acting in any consistent, balanced way to protect
privacy interests on surveillance issues. On one hand, when setting
broad priorities in general terms, it attaches considerable weight to privacy
interests. On the other hand, when faced with specific issues of
investigatory authority, it readily makes sweeping, indiscriminate
sacrifices of those same interests (privacy)even without distinct
evidence of serious threat. The lack of consistency in defending
privacy interests has several sources. Most fundamental, legislators reflect
the attitudes and demands of their constituencies. The American public has
generally been quite willing to surrender privacy rights for the sake of
enhanced security, against even unspecified, highly indefinite terrorist
threats.1 In addition, there are generally no well-organized, powerful
constituencies for privacy interests.

Congress is extremely ineffective with dealing with


domestic surveillance policies that use advanced
technological methods because they are under-informed
due to confidentiality. This leads to the deference of their
power to the executive branch and even worse, the
agencies themselves.
William Bendix and Paul J. Quirk, William Bendix is an assistant
professor of political science at Keene State College. His research focuses on
Congress, legislative deliberation, and homeland security and civil liberties
policies; Paul J. Quirk is the Phil Lind Chair in U.S. Politics and Representation
at the University of British Columbia and a former research associate at the
Brookings Institution. His work focuses on debate and deliberation in
Congress and the mass public. Secrecy and negligence: How Congress lost
control of domestic surveillance March 2, 2015
Finally, and very important, Congress has particular difficulties with
policies that must be decided in secretsuch as those for controlling
technologically advanced surveillance methods. To prevent profuse
leaks, Congress and the executive have imposed severe restrictions

on members access to information. When the full House or Senate


decides policy, however, the restricted information encourages some
members to opt out of serious participation, degrading the intelligence
of deliberation and promoting deference to the executive. Lacking any
settled disposition on surveillance issues, Congress will respond to
the leadership, and sometimes merely the political cover, provided
by other institutionsespecially the president, the intelligence
agencies, and the FISA Court. It may take cues from the Justice
Department or other executive agencies, and it will defer to rulings by the
regular federal courts. In the end, Congresss performance in protecting
privacy may depend on the design of the legislative arrangements for dealing
with secret programs and on the structures and missions of relevant
administrative and judicial institutions.

A2: Congressional Backlash


Obama Executive orders have bipartisan support in
Congress and outside of Congress
Lydia Wheeler, (Political reporter and journalist), 06/23/15 01:59 PM,
Dems to Obama: Issue executive order on campaign spending,
thehill.com
Democrats in both chambers of Congress are calling on President Obama to
finalize an executive order that would force federal contractors to disclose
their political spending. The letter from members of the House was signed by
104 lawmakers, including Reps. Anna Eshoo (D-Calif.), Steve Israel (D-N.Y.),
Michael Capuano (D-Mass.) and Donna Edwards (D-Md.), and asks Obama to
re-propose and finalize a draft executive order that dates back to 2011.
Taxpayers have a right to know where their money is spent and you have
the power to ensure that the American people can obtain this information,
the letter said. With public funds come public responsibilities, and any
company receiving federal tax dollars should be required by Executive Order
to fully disclose their political spending in a timely and accessible manner.
The draft executive order, titled Disclosure of Political Spending by
Government Contractors, would have required any entity bidding for a
federal contract to full disclose its political spending. The lawmakers said in
the two elections since the draft was released, nearly half a billion dollars of
undisclosed money has flooded into U.S. elections. Reviving the executive
order wouldn't solve the problem, but 26 Senate Democrats argued in a
separate letter to Obama that it would be a step in the right direction.
Political spending by government contractors is a problem you can address
without congressional authorization," said the letter led by Sen. Sheldon
Whitehouse (D-R.I.). You would be on solid legal ground if you were to issue
an executive order requiring disclosure of political spending by entities that
have been awarded government contracts and their senior leadership. New
York Attorney General Eric Schneiderman is also calling on Obama to end the
secret payments from federal contractors seeking to sway our elections once
and for all" this week. In an op-ed in Politico on Monday, Schneiderman said
the campaign finance system was improving until the Supreme Court stuck
down limits on third-party spending on campaigns and candidates in the case
known as Citizens United v. FEC. The Center for Responsive Politics
estimates that dark money accounted for more than $600 million in spending
in the last three federal elections, he said. We know that industrial giants,
military suppliers and other major government contractors spend
disproportionately on lobbying and political action committees for good
reason. Schneiderman said from 2000 to 2013, the top 10 federal
contractors netted $1.5 trillion from the federal government. Though PAC
contributions, lobbying fees and federal contracts are public record, he said
dark money is not. A coaliton of 50 organizations has also called on Obama
to finalize the executive order. The White House pushed the draft executive
order, which sparked outcry from GOP leaders, to the backburner in 2012 and

has yet to reconsider the issue. Republicans have been largely against further
campaign disclosure rules.

POLITICS DOESN'T LINK

A2: PC links to PTX


XOs dont cost political capital --- even if it causes
controversy it doesnt affect the agenda
Sovacool and Sovacool, 9 [Dr. Benjamin K., Research Fellow in the
Energy Governance Program at the Centre on Asia and Globalization, Kelly E.,
Senior Research Associate at the Lee Kuan Yew School of Public Policy at the
National University of Singapore, Preventing National-Electricity-Water Crisis
Areas in the United States, Columbia Journal of Environmental Law, pg. lexis]
Executive Orders also save time in a second sense. The President
does not have to expend scarce political capital trying to persuade
Congress to adopt his or her proposal. Executive Orders thus save
presidential attention for other topics. Executive Orders bypass
congressional debate and opposition, along with all of the horsetrading and compromise such legislative activity entails.292
Speediness of implementation can be especially important when
challenges require rapid and decisive action. After the September 11,
2001 attacks on the Pentagon and World Trade Center, for instance, the Bush
Administration almost immediately passed Executive Orders forcing
airlines to reinforce cockpit doors and freezing the U.S. based assets of
individuals and organizations involved with terrorist groups.293 These
actions took Congress nearly four months to debate and subsequently
endorse with legislation. Executive Orders therefore enable
presidents to rapidly change law without having to wait for
congressional action or agency regulatory rulemaking.

A2: Bipart Links to PTX


Obamas base and moderates love XOs
Daniels, 10 [Dr. Ron, President of the Institute of the Black World
21st Century and Distinguished Lecturer at York College City
University of New York, Lessons from the 2010 Elections,
http://freespeech.org/blog/lessons-2010-elections]
President Obama has also been terribly inattentive to the liberalprogressive wing and major constituencies within the Democratic
Party. As a general proposition, progressives would have felt much better if he had fought first
and compromised later on key issues like the Stimulus package, health care, the foreclosure crisis
and financial regulatory reform. I start from the premise that one of the responsibilities of the
President as head of a political party is to articulate a vision/philosophy and advance a policy agenda
that enhances the influence, capacity and power of the base constituencies and allies of your party.
This is precisely what Bush and Cheney did over an eight-year period. Obama not only refused to
advance a more liberal/progressive position on the issues enumerated above, the Freedom of Choice
Act (labor), immigration policy reform (Latinos/Caribbeans), "Don' Ask Don't Tell" (Lesbian and Gay)
and targeted jobs/economic programs (Blacks) were de-prioritized or given only lukewarm support.

The Dream Act which would have inched the immigration reform
agenda forward was only brought up as an amendment in the final hours before Congress
adjourned in order to help the beleaguered campaign of Harry Reid. The amendment was
defeated. Like other initiatives of importance to liberals and progressives, Obama signaled
willingness to weaken the Freedom of Choice Act before it even began to be seriously considered.
When Congress refused to take up Don't Ask Don't Tell, progressives
wondered why the President simply didn't end it by Executive Order.
And, there has been an ongoing frustration among Black leaders that
Obama simply refuses to embrace the idea that the "state of
emergency" in urban Black communities across the country can be
ameliorated by targeting jobs and economic programs to address
the crisis. If you want your base to be "enthusiastic," you can't take
it for granted or admonish your supporters to "stop whining" when
they complain about the lack of attention to its agenda. You have to
feed the base to keep it "fired up."

Patrio Act
Non-unique. USA Freedom bill passage would trigger the
link.
Mike Debonis 15, 6-2-2015, "Congress Turns Away From Post-9/11 Law,
Retooling U.S. Surveillance Powers," Washington Post,
http://www.washingtonpost.com/politics/senate-moves-ahead-with-retoolingof-us-surveillance-powers/2015/06/02/28f5e1ce-092d-11e5-a7adb430fc1d3f5c_story.html
Congress on Tuesday rejected some of the sweeping intelligence-gathering
powers it granted national security officials after the 9/11 terrorist attacks,
with the Senate voting to end the governments bulk collection of private
telephone records and to reform other surveillance policies. The bill, known
as the USA Freedom Act, passed on a 67-to-32 vote, against the will of Senate
Republican leaders who wished to preserve existing spy programs. The
opposition to the bill, led by Majority Leader Mitch McConnell (R-Ky.),
prompted an intraparty standoff that exposed sharp splits along philosophical
and generational lines, and between the two chambers on Capitol Hill. The
standoff led to a two-day lapse in the legal authority for those programs. The
bill passed by a wide margin in the House last month but languished as those
who sought to maintain the status quo, led by McConnell, tried to stare down
Sen. Rand Paul (R-Ky.) and the other senators who supported either ending or
reforming the most controversial provisions of the surveillance programs

Patriot Act expiration symbolic


Resnikoff 15 (Ned Resnikoff 7/1/15 Sunsetting of Patriot Act will not
draw curtain on mass surveillance
http://america.aljazeera.com/articles/2015/6/1/patriot-act-sunset-leavesexpansive-spying-powers-in-place.html)
The NSAs surveillance and data collection powers remained alive and
well Monday despite the largely symbolic sunsetting of three Patriot
Act provisions under which the agency had extended its reach, experts
warned. The measures expired after Sen. Rand Paul, R-Ky., on Sunday
blocked an attempt to speedily pass an extension before the midnight
deadline. His move affects one of the Patriot Acts most contested
passages, Section 215, which formed the basis for the National Security
Agencys bulk record collection program. A measure providing for the
surveillance of unaffiliated lone-wolf suspects also expired, as did a
provision allowing the NSA to conduct roving wiretaps, across multiple
devices using the same court order. Privacy activists supported the
sunsetting of the three provisions, with ACLU legal director Jameel Jaffer
describing the expiration of Section 215 as a sensible first step towards
broader reform of the surveillance laws. But applause for Sundays
victory has been relatively muted by recognition that much of the NSAs

surveillance program remains intact, aside from a temporary lapse in


some of the formal authorizations. The sunset of a few weeks or even
a month is not going to make an operational difference, really, said
Julian Sanchez, a senior fellow at the libertarian-leaning Cato Institute.
The federal government still has a range of instruments for obtaining
phone and electronic records, including but not limited to Foreign
Intelligence Surveillance Act (FISA) court warrants and national security
letters. The FISA court conducts its proceedings in secret and tends to
rule in favor of the intelligence community. The court reportedly
approves 99 percent of the warrant requests it receives, although in
2013 FISA judge Reggie Walton defended the court to the Senate by
saying it demanded substantive changes to about a quarter of
requests. As for bulk data collection, the NSA started winding that
program down in late May, anticipating that Congress might not renew
Section 215 authorization in time for the June 1 deadline. The bulk call
record program, at least as it functions under Section 215, looks like its
been temporarily halted, ACLU legislative counsel Neema Singh Guliani
told Al Jazeera. Independent studies of bulk collection have cast doubt
on its effectiveness as a counterterrorism strategy, as opposed to the
more targeted intelligence gathering that is still authorized. As a result,
said Sanchez, the expiration of Section 215 and the other two provisions
is largely symbolic. In prior years, the White House was able to assure
Patriot Act reauthorization by waiting until shortly before expiration
deadlines, then urging speedy renewal to avoid compromising national
security.

Congressional actions doesnt matter-FISA reinstating


bulk telephone data collection
Macri 15 (Giuseppe Macri -reporter for InsideSources. 5/26/15 NSA
Phone Spying Is Winding Down But Its Not Ending
http://www.insidesources.com/nsa-phone-spying-is-winding-down-butits-not-ending/)
Foreign Intelligence Surveillance Court set the stage this weekend to
restart the National Security Agencys bulk telephone surveillance
program, originally left to expire by Congress along with several Patriot
Act spying authorities last month. In the opinion dated June 17 and
released Friday, the secret court charged with approving surveillance
warrants for U.S. intelligence agencies asserted Congress passage of
the USA Freedom Act gave the court a green light to restart the program
until the reforms outlined in the legislation are put in place, despite the
expiration of the Patriot Act authority underpinning the program days
before. The Senate passed the USA Freedom Act days after the upper
chamber allowed several provisions of the Patriot Act to expire, including
Section 215 the legal justification for NSAs bulk collection and
retention of virtually all Americans landline telephone metadata

records. The agency finished the process of shutting down the program
hours before the sunset deadline on June 1. According to the FISCs
reasoning, the intention of the Freedom Act was to renew the existing
program prior to its expiration until the reforms to the program set forth
in the act could be adopted a process NSA Director Michael Rogers
told the Senate should take no longer than six months. Based on that
interpretation, the court said the program should be allowed to restart
and continue until the reforms reducing its scope are in place, though
the FISC has yet to actually issue the approval. Although the statutory
framework is somewhat tangled, the choice before the court is actually
very clear and stark: as described below, it can apply well-established
principles of statutory construction and interpret the USA Freedom Act in
a manner that gives meaning to all of its provisions, or it can ignore
those principles and conclude that Congress passed an irrational statute
with multiple superfluous parts, the court said in the brief. Basically,
the court reasoned, the interpretation of the USA Freedom Act reforms
dont make sense in the context of the post-expired program, and to
interpret and apply the reforms as they were intended in the drafting of
the bill, the court must recognize and renew the program as it
functioned prior to the expiration of Patriot Act Section 215.

Prez Powers DA

Uniqueness
Presidential powers high now. Recent supreme court
decision proves.
David Orentlicher 15, (6-19-2015, "Orentlicher: Court failed to check
presidential power," Indianapolis Star,
http://www.indystar.com/story/opinion/2015/06/19/orentlicher-court-failedcheck-presidential-power/28978857/, HL)
Once again, the Supreme Court has abdicated its role as a check on the
presidents foreign policy power. Indeed, in the recent case of Zivotofsky v.
Kerry, the court not only refused to limit presidential power, it chose to
expand it. In an era of presidential excesses (secret spying on U.S. citizens,
military interventions without congressional authorization, and approval of
torture), we need a Supreme Court that corrals broad assertions of executive
power rather than giving them a green light. Zivotofsky involved statutory
provisions that called for recognition of Jerusalem as the capital of Israel in a
few ways relocation of the U.S. Embassy in Israel from Tel Aviv to
Jerusalem, identification of Jerusalem as Israels capital in U.S. government
documents, and listing Israel as the place of birth in passports for U.S.
citizens born in Jerusalem who request such a listing. Congress passed these
provisions in 2002 as part of a bigger bill. While President George W. Bush
approved the main parts of the bill and therefore signed it, he issued a
signing statement claiming that the Jerusalem provisions interfered with his
constitutional authority over foreign policy. The Zivotofsky case arose when
parents of a U.S. citizen born in Jerusalem asked that Israel be recorded as
their sons place of birth on his passport, just as Congress said that it could.
The Department of State refused, taking the position that the presidents
foreign policy power overrides the 2002 law and that the status of Jerusalem
should be settled by the Middle East peace process. The court sided with
presidential power, on the ground that the Constitution gives the president
sole authority on the recognition of foreign countries. But the Court relied
on a misreading of constitutional history. Whats the misreading? As the
courts 6-3 majority acknowledged, the constitutional drafters did not believe
they were giving presidents sole authority to decide matters involving the
recognition of foreign countries. Indeed, the founding fathers did not believe
they were giving presidents sole authority on any matters of foreign policy.
Congress and the president share the war powers, with Congress deciding
when to go to war and presidents deciding strategy and tactics as
Commander in Chief. The treaty-making power also is shared, with presidents
negotiating and the Senate ratifying treaties. And to the extent that the
Constitution speaks to recognition of foreign countries, it envisions a sharing
of power presidents appoint ambassadors with the advice and consent of
the Senate. If the constitutional drafters meant to give presidents sole
authority to recognize foreign countries, they would have said so. How then
did the Court explain its decision? It cited a constitutional provision that
assigns to the president the responsibility of receiving ambassadors from

foreign countries. But that is a presidential obligation, not a presidential


power. A duty to meet with foreign officials does not equal an authority to
decide which foreign countries to recognize. The court also observed that
presidents have asserted a recognition power in the past, and that
Congress and the Courts have generally though not always gone
along. But asserting a power doesnt make it constitutional even when
Congress and the courts acquiesce. The court should stand by the
Constitution and reject presidential power-grabs. Our system of governance is
premised on congressional policymaking, and it is critical that Congress fulfill
its policymaking role. Even if the justices think presidents do a better job than
Congress on foreign policy, the answer is to amend the Constitution, not to
have the Supreme Court rewrite it. Of course, the Zivotofsky case was not
only about the recognition power. It also was about the highly charged issue
of Israeli-Palestinian relations. No doubt politics loomed large in everyones
thinking about the case. But the court could have preserved the status quo
on Jerusalem without getting into the question of how the recognition power
should be allocated between the executive and legislative branches. The
court could have promoted our Constitution and our foreign policy, and that is
what it should have done.

Prez powers high


Reuters, 9
5/1/09
(Obama
revelling
in
U.S.
http://uk.reuters.com/article/idUKTRE5406CF20090501)

power

unseen

in

decades,

Reuters,

Barack Obama is revelling in presidential power and influence unseen in


Washington for decades. Barely 100 days in office, the U.S. president and his
Democratic Party have firm control over the White House and Congress and
the ability to push through ambitious plans. Now, with the coming retirement of a Supreme Court justice clearing the way

Obama already is assured a legacy at the top of all


three branches of government -- executive, legislative and judicial.
On the corporate front, the federal government's pumping of billions of dollars
in bailout money into banks and auto companies has given Obama
the power to force an overhaul in those industries, a remarkable intervention in
for him to appoint a successor,

capitalist industries by the state. Americans are giving him leeway as well. His job approval ratings are well over 60

the Republicans,
are in disarray, reduced in numbers and engaged in an internal struggle over how to recover from devastating
election losses in 2006 and last year. Experts speak of Obama in the same league as such
transformational presidents as Democrat Franklin Roosevelt , who led the
United States through the Great Depression and World War Two, and Republican Ronald Reagan,
percent, giving him political capital to undertake big challenges. His political opponents,

"I cannot in my memory remember a


time when a president of the United States has had more
influence," said Democratic strategist Doug Schoen, who worked in the Clinton White House. "Not only is it his
who led the country to victory in the Cold War.

it is a level of influence and power for a president that is


literally unprecedented from any time since the New Deal and Franklin Roosevelt. If he handles it right,
it could be his century.
moment,

Prez powers high now but fragile.


Peter Baker 15, 2-25-2015, "Assessing the Balance of Power in an Era of
Widespread Mistrust," New York Times,
http://www.nytimes.com/2015/02/26/us/a-back-and-forth-view-of-thepresidents-executive-power.html
WASHINGTON For President Obama, this has been a week to guard his
power. He went to court to defend his executive action on immigration while
fighting an effort by lawmakers to reverse it. And he vetoed legislation that
would have stripped him of his authority to decide the fate of the muchdebated Keystone XL pipeline. Yet this is also a week when Mr. Obama is
seeking to circumscribe his own power as lawmakers take up his request for
retroactive endorsement of his war against the Islamic State. Mr. Obama
proposed that he not be allowed to send large-scale ground forces and that
the authorization expire in three years, although he left room to get around
that if need be. Continue reading the main story RELATED COVERAGE
President Obama spoke during a town-hall-style meeting at Florida
International University in Miami on Wednesday.Visiting Miami, Obama
Presses Republicans on Homeland Security FundingFEB. 25, 2015 President
Obama retains the authority to approve the pipeline on his own timeline.
Obama Vetoes Bill Pushing Pipeline Approval FEB. 24, 2015 President Obama
spoke with Secretary of State John Kerry, Vice President Joseph R. Biden Jr.
and Defense Secretary Chuck Hagel before his remarks at the White House
on Wednesday

Presidential powers high now affordable care act and


dodd-frank act prove.
Eric A. Posner 14, 2-3-2014, "The Presidency Comes With Executive Power.
Deal With It.," New Republic,
http://www.newrepublic.com/article/116450/obama-use-executive-powerunexceptional
This was not a smooth process. The rise of executive power sometimes hurt
important interests and always rubbed against the republican sensibilities
that Americans inherited from the founders. From time to time, Congress
reaped political benefits from thwarting the president. But today Congress
reacts rather than leads. It investigates allegations of corruption in the
executive branch. It holds hearings to torment executive officials. It certainly
doesnt give the executive the budget he always wants, or pass every new
law that he believes that he needs. But existing laws and customs almost
always give the president the power he needs to govern. And when they
dont, Congress will sooner or later give him the power he wants. Witness the
Dodd-Frank Act and the Affordable Care Acttwo massive expansions of
executive power. In monarchies, the official position was that the king made

policy but everyone understood that his ministers did. In our system, the
official story is that Congress makes policy and the president implements it
such is the inertia of history. But the reality is that the president both makes
policy and implements it, subject to vague parameters set down by Congress
and to its carping from the sidelines. Presidents can defy the official story and
assert the reality if they want. That is what the George W. Bush
administration did, to its eventual sorrow. In hindsight, the broad assertions of
executive power by Bush administration lawyers in signing statements,
executive orders, and secret memos were nave. They described, with only
some exaggeration, the actual workings of the government, but their account
conflicted with the official narrative and thus played into the hands of critics,
who could invoke tyranny, dictatorship, and that old standby, the imperial
presidency.

Link
Weak presidency tempts challenge and escalation
Bolton 9 (John R. Bolton, former U.S. ambassador to the United
Nations, is a senior fellow at the American Enterprise Institute 10/18/09
The danger of Obama's dithering
http://articles.latimes.com/2009/oct/18/opinion/oe-bolton18) Weakness
in American foreign policy in one region often invites challenges
elsewhere, because our adversaries carefully follow diminished
American resolve. Similarly, presidential indecisiveness, whether
because of uncertainty or internal political struggles, signals that the
United States may not respond to international challenges in clear and
coherent ways. Taken together, weakness and indecisiveness have
proved historically to be a toxic combination for America's global
interests. That is exactly the combination we now see under President
Obama. If anything, his receiving the Nobel Peace Prize only underlines
the problem. All of Obama's campaign and inaugural talk about
"extending an open hand" and "engagement," especially the multilateral
variety, isn't exactly unfolding according to plan. Entirely predictably, we
see more clearly every day that diplomacy is not a policy but only a
technique. Absent presidential leadership, which at a minimum means
clear policy direction and persistence in the face of criticism and
adversity, engagement simply embodies weakness and indecision.

Loss of credibility leads to conflict- Korean and Cuba


prove
National Review 13 (The Ediotr National Review Online 9/3/13 Yes
to U.S. Action in Syria
http://www.nationalreview.com/article/357473/yes-us-action-syriaeditors)
He is asking Congress to choose between unpalatable options. One is to
green-light an attack on Syria that, as far as anyone can tell, is
unconnected to any larger strategy, besides expressing a forlorn hope
for a diplomatic solution to the war. The other is to turn him down and
destroy the presidents credibility, and hence the nations, in the Middle
East for at least the next three years. Obama would join David Cameron
as the neutered leader of a country that was once feared and respected;
Franois Hollande would practically look like a giant in comparison.
Credibility can seem an elusive commodity and one not worth firing
shots over, but it is the coin of the realm in international relations,
especially for a great power. When we eroded our deterrent with illadvised statements or acts of weakness, we got the Korean War, the
Cuban Missile Crisis, and the Iraqi invasion of Kuwait. When our
deterrent was at a high ebb in the immediate aftermath of our toppling
Saddam Hussein, Libya gave up its nuclear program and, evidently, Iran

temporarily stopped its uranium production. If we dont act in this case,


after all this windup, Iran and Hezbollah will take note of how little our
admonitions to not acquire or use weapons of mass destruction really
mean. We cant know exactly what would come of our self-inflicted
humiliation, but it would be nothing good. For that reason, we would
vote yes on the authorization, although we think reasonable people
can disagree, and we urge Congress to push the president to enunciate
a Syria strategy beyond punishing it for its chemical-weapons use.

FISA intervention directly hinders the executives ability to


collect information quickly and efficiently.
Shults 11 (Anthony M. Shults,THE "SURVEIL OR KILL"
DILEMMA: SEPARATION OF POWERS AND THE FISA
AMENDMENTS ACT'S WARRANT REQUIREMENT FOR
SURVEILLANCE OF U.S. CITIZENS ABROAD, November
2011, New York University Law Review, Accessed 7/15/15)
The Supreme Court's holding in Keith firmly establishes that the executive
lacks the authority to engage in unilateral surveillance of domestic threats;
n83 however, owing to the unique threat posed by foreign pow-ers and their
agents, "restrictions upon the President's power which are appropriate in
cases of domestic se-curity" - including the requirement of "some form of
prior judicial approval" - can "become artificial in the context of the
international sphere." n84 Although imposing a warrant requirement would
have "salutary ef-fects," such as ex ante judicial scrutiny to ensure "that the
Executive was not using the cloak of foreign in-telligence information
gathering to engage in indiscriminate surveillance of domestic political
organiza-tions," it would burden the executive's duty to "secretly and quickly"
obtain foreign intelligence infor-mation. n85 Such a result would "seriously
fetter the Executive in the performance of his foreign affairs du-ties." n86 The
procedural hurdles imposed by a requirement of prior judicial approval are
thus inconsistent with the needs for secrecy, speed, and flexibility when
countering foreign threats to national [*1609] security. n87 In establishing the
foreign intelligence exception, the courts of appeals have stressed the executive's experience, resources, and "unparalleled expertise." n88 Above all else,
however, the courts have justi-fied application of the exception based on the
constitutional preeminence and inherent authority of the President in foreign
affairs. n89 The foreign intelligence exception developed amongst the courts
of appeals mostly prior to the passage of FISA in 1978. n90 As mentioned
above, Congress used FISA to repeal the provision of Title III that dis-claimed
any congressional intent to limit the constitutional power of the executive to
obtain foreign intelli-gence information, demonstrating its desire to alter the
constitutional landscape of foreign intelligence gath-ering. n91 It is

significant, then, that the FISCR has shown a willingness to embrace the
foreign intelligence exception even in the post-FISA constitutional framework.
In its 2002 decision in In re Sealed Case, n92 the FISCR took "for granted"
that the executive had the inherent constitutional authority to conduct
warrantless foreign intelligence surveillance n93 and held that foreign
intelligence electronic surveillance under FISA complied with the Fourth
Amendment without determining whether a FISA order served as a
constitution-ally valid warrant. n94 In effect, the FISCR upheld the electronic
surveillance at issue solely on reasonable-ness grounds, implicitly supporting
the proposition that the Warrant Requirement did not apply. n95 Six years
later in In re Directives, n96 the FISCR expressly [*1610] adopted the foreign
intelligence exception to the Warrant Requirement by upholding surveillance
under the PAA. Specifically, the FISCR held that "a for-eign intelligence
exception to the Fourth Amendment's Warrant Requirement exists [at least]
when surveil-lance is conducted to obtain foreign intelligence for national
security purposes and is directed against for-eign powers or agents of foreign
powers reasonably believed to be located outside the United States." n97
Indeed, the FISCR has stressed that the government's compelling interest in
protecting the nation from for-eign threats is "particularly intense" n98 and
constitutes a special need "distinguishable from 'ordinary crime control.

Increased congressional authority over surveillance


infringes on the executives constitutional rights and kills
presidential powers.
Shults 11 (Anthony M. Shults,THE "SURVEIL OR KILL" DILEMMA:
SEPARATION OF POWERS AND THE FISA AMENDMENTS ACT'S WARRANT
REQUIREMENT FOR SURVEILLANCE OF U.S. CITIZENS ABROAD, November
2011, New York University Law Review, Accessed 7/15/15)
Some critics condemned the New FISA regime as an unconstitutional
expansion of executive authority that intrudes upon individual liberty and
privacy. n4 However, New FISA also contains a significant civil liberties
giveback: The legislation extends statutory protection to U.S. citizens located
overseas - a class of persons completely unprotected under the Traditional
FISA regime - from unilateral warrantless surveillance undertaken by the
executive for foreign intelligence purposes. While litigation over New FISA's
programmatic surveillance regime and its potential violation of individual
rights is currently pending, n5 this Note examines potential constitutional
concerns with the legislation from a different perspective. Specifically, this
Note argues that the provisions in New FISA that establish special
protections for U.S. citizens abroad constitute an unconstitutional
infringement of the President's inherent authority to engage in
warrantless foreign intelligence surveillance overseas . I use the term
"inherent authority" to refer to the "core" of executive power directly
delegated to the President in the Constitution. Under Article II, "the executive
Power shall be vested in [the] President of the United States of America," n6

who "shall be Commander in Chief." n7 This exclusive grant of authority


means that the President possesses certain inherent powers over matters
that, in Justice Robert Jackson's words, are "within his domain and beyond
control by Congress." n8 I argue that the President's power to surveil
individuals (including U.S. citizens) overseas for foreign intelligence purposes
falls within this exclusive domain of executive authority and is therefore
restricted only by the limits imposed directly by the Constitution - specifically,
the Fourth Amendment's requirement that such surveillance be "reasonable."
n9 If Congress were to impose limitations that go beyond the Fourth
Amendment's requirement of reasonableness, [*1593] it would impermissibly
encroach on inherent presidential authority and violate a formal
understanding of the separation of powers established by the constitutional
design. n10 This Note proceeds in three parts. Part I sets forth the statutory
framework governing foreign intelligence surveillance both inside the United
States and abroad. It explores the history of and motivations for the
Traditional and New FISA regimes and examines their relevant provisions. Part
II introduces the constitutional framework governing intelligence gathering,
focusing on the general applicability of the Fourth Amendment to electronic
surveillance, judicial recognition of a "foreign intelligence exception" to the
Fourth Amendment's Warrant Requirement, and extraterritorial application of
the Warrant Requirement to surveillance of U.S. citizens abroad. Applying a
formal separation-of-powers approach, Part III analyzes the President's
inherent authority under the Constitution to engage in warrantless
surveillance for foreign intelligence purposes and the potential infringement
by Congress through the FAA of the executive's core Article II powers
regarding foreign intelligence gathering.

2NC Nuclear Terror Module


Prez power key to stop nuclear terrorism
Taylor and Thomas, writers for Newsweek Magazine, 2009
Stuart Taylor Jr and Evan Thomas, Writers for Newsweek Magazine, Obamas Cheney
Dilemma 1-10-09, http://www.newsweek.com/id/178855

In times of war and crisis , as presidents such as Lincoln and Franklin


Roosevelt discovered, the nation needs a strong chief executive.
The flaw of the Bush-Cheney administration may have been
less in what it did than in the way it did itflaunting
executive power, ignoring Congress, showing scorn for
anyone who waved the banner of civil liberties. Arguably, there
has been an overreaction to the alleged arrogance and heedlessness of Bush
and Cheneyespecially Cheney, who almost seemed to take a grim
satisfaction in his Darth Vader-esque image. The courts, at first slow to

respond to arrogations of executive power after September


11, have pushed back. Many federal officials have grown
risk-averse, fearing that they will be prosecuted or dragged
before a congressional committee for fighting too hard
against terrorism. (A growing number of CIA officials buy insurance
policies to cover legal fees.) Obama, who has been receiving intelligence
briefings for weeks, already knows what a scary world it is out
there. It is unlikely he will wildly overcorrect for the Bush
administration's abuses. A very senior incoming official, who refused to
be quoted discussing internal policy debates, indicated that the new
administration will try to find a middle road that will protect civil liberties
without leaving the nation defenseless. But Obama's team has some strong
critics of the old order, including his choice for director of the CIA, Leon
Panetta, who has spoken out strongly against coercive interrogation
methods. In Obama's spirit of nonpartisanship, the new crowd
would do well to listen to Jack Goldsmith, formerly a Bush Justice
Department official, now a Harvard Law School professor. At Justice,
Goldsmith was the head of an obscure but critically important unit
called the Office of Legal Counsel. OLC acts as a kind of lawyer for the
executive branch, offering opinionsclose to bindingon what
the executive branch can and cannot do. It was an OLC lawyer,
John Yoo, who in 2001 and 2002 drafted many of the memos that first gave
the Cheneyites permission to do pretty much whatever they wanted in the
way of interrogating and detaining suspected terrorists (and eavesdropping
on Americans to catch terrorists). Goldsmith, who became head of OLC in
2003, quietly began to revoke some of these permissions as illegal or
unconstitutional. The revolt of Goldsmith and some other principled Justice
lawyers was a heroic story, kept secret at the time. Now Goldsmith

worries about the pendulum swinging too far, as it often does


in American democracy. "The presidency has already been
diminished in ways that would be hard to reverse" and may
be losing its capability to fight terrorism, he says. He argues

that Americans should now be "less worried about an out-ofcontrol presidency than an enfeebled one."

Nuclear terrorism causes extinction


Sid-Ahmed,4
(Al-Ahram Weekly political analyst, "Extinction!" 8/26,
http://weekly.ahram.org.eg/2004/705/op5.htm)

What would be the consequences of a nuclear attack by


terrorists? Even if it fails, it would further exacerbate the
negative features of the new and frightening world in which we
are now living. Societies would close in on themselves, police
measures would be stepped up at the expense of human rights,
tensions between civilisations and religions would rise and
ethnic conflicts would proliferate. It would also speed up the arms
race and develop the awareness that a different type of world order is
imperative if humankind is to survive. But the still more critical
scenario is if the attack succeeds. This could lead to a third
world war, from which no one will emerge victorious. Unlike a
conventional war which ends when one side triumphs over
another, this war will be without winners and losers. When
nuclear pollution infects the whole planet, we will all be losers.

Amend 12333
Amending XO 12333 stops bulk data collection
Stepanovich 14 (Amie Stepanovich Access, Coalition to President:
Reform Surveillance
Nowhttps://www.accessnow.org/blog/2014/09/02/access-coalition-topresident-reform-surveillance-now)
Access, joined by members of Congress, former government officials,
and dozens of civil society groups and private companies, has urged the
Obama Administration to reform surveillance practices under Executive
Order 12333, which authorizes mass surveillance by NSA and other
intelligence agencies with no meaningful limits. In a letter to the
president and to the Privacy and Civil Liberties Oversight Board, we also
called for the declassification of current and future legal opinions
interpreting this sweeping surveillance authority. President Obama has
the power to unilaterally reform this Executive Order to stop the
unaccountable and unjustifiable bulk collections of millions of users
data. Current practices are unlawful under international treaties, to
which the U.S. is a party, and out of touch with long-accepted principles
of privacy and human rights. The signers include Representatives John
Conyers, Zoe Lofgren, Rush Holt, and Alan Grayson; former government
officials John Tye (former U.S. State Dept.), Ed Felton (former FTC Chief
Technologist), and Ian Schuler (former U.S. State Dept.); and dozens of
organizations including the American Civil Liberties Union, Electronic
Frontier Foundation, Amnesty International, and Silent Circle. Executive
Order 12333 allows intelligence agencies to conduct surveillance that
profoundly violates the basic rights of internet users in the U.S. and
abroad. Unlike Section 215 of the Patriot Act, this Reagan-era policy not
only allows for the bulk collection of metadata, but also the content of
our communications all via secret interpretations of a decades-old
executive order. Secret laws are a threat to American democracy. For
decades, the NSA and other intelligence agencies have used authority
purportedly granted in Executive Order 12333 to spy on millions of users
without any meaningful limits. The president can and must stop these
gross violations of our rights that continue without any oversight or
accountability

12333 means US citizens data can be collected


Tye 14 (John Napier Tye sectionchiefforInternetfreedomintheState
DepartmentsBureauofDemocracy,HumanRightsand Labor from January 2011
to April 2014. He is now a legal director of Avaaz, a global advocacy
organization.July 18, 2014 Meet Executive Order 12333: The Reagan
rule that lets the NSA spy on
Americanshttp://www.washingtonpost.com/opinions/meet-executiveorder-12333-the-reagan-rule-that-lets-the-nsa-spy-on-

americans/2014/07/18/93d2ac22-0b93-11e4-b8e5d0de80767fc2_story.html
Unlike Section 215, the executive order authorizes collection of the
content of communications, not just metadata, even for U.S. persons.
Such persons cannot be individually targeted under 12333 without a
court order. However, if the contents of a U.S. persons communications
are incidentally collected (an NSA term of art) in the course of a lawful
overseas foreign intelligence investigation, then Section 2.3(c) of the
executive order explicitly authorizes their retention. It does not require
that the affected U.S. persons be suspected of wrongdoing and places
no limits on the volume of communications by U.S. persons that may be
collected and retained. Incidental collection may sound insignificant,
but it is a legal loophole that can be stretched very wide. Remember
that the NSA is building a data center in Utah five times the size of the
U.S. Capitol building, with its own power plant that will reportedly burn
$40 million a year in electricity. Incidental collection might need its
own power plant.A legal regime in which U.S. citizens data receives
different levels of privacy and oversight, depending on whether it is
collected inside or outside U.S. borders, may have made sense when
most communications by U.S. persons stayed inside the United States.
But today, U.S. communications increasingly travel across U.S. borders
or are stored beyond them. For example, the Google and Yahoo e-mail
systems rely on networks of mirror servers located throughout the
world. An e-mail from New York to New Jersey is likely to wind up on
servers in Brazil, Japan and Britain. The same is true for most purely
domestic communications.Executive Order 12333 contains nothing to
prevent the NSA from collecting and storing all such communications
content as well as metadata provided that such collection occurs
outside the United States in the course of a lawful foreign intelligence
investigation. No warrant or court approval is required, and such
collection never need be reported to Congress. None of the reforms that
Obama announced earlier this year will affect such collection. Without
any legal barriers to such collection, U.S. persons must increasingly rely
on the affected companies to implement security measures to keep their
communications private. The executive order does not require the NSA
to notify or obtain consent of a company before collecting its users
data. The attorney general, rather than a court, must approve
minimization procedures for handling the data of U.S. persons that is
collected under 12333, to protect their rights. I do not know the details
of those procedures. But the director of national intelligence recently
declassified a document (United States Signals Intelligence Directive 18)
showing that U.S. agencies may retain such data for five years.

Obama can unilaterally stop surveillance through 12333

Reitman 15(January 26, 15 Rainey Reitman served as Director of


Communications for the Privacy Rights Clearinghouse, a nonprofit advocacy
and education organization promoting consumer privacy. She earned her BA
from Bard College in Multidisciplinary Studies: Creative Writing, Russian &
Gender Studies." EFFs Game Plan for Ending Global Mass Surveillance
https://www.eff.org/deeplinks/2015/01/effs-game-plan-ending-global-masssurveillance
Most people havent even heard of it, but Executive Order 12333 is the
primary authority the NSA uses to engage in the surveillance of people
outside the U.S. While Congress is considering much-needed reforms to
the Patriot Act, theres been almost no debate about Executive Order
12333. This executive order was created by a stroke of the pen from
President Ronald Reagan in 1981. President Obama could undo the
worst parts of this executive order just as easily, by issuing a
presidential order banning mass surveillance of people regardless of
their nationality.

AFF AT-EXECUTIVE ORDER CP

Solvency

General
Congress exercises full control over domestic surveillance programs.
Erica Werner, The Associated Press Published Wednesday, June 3, 2015 5:58AM EDT

WASHINGTON -- Congress approved sweeping changes Tuesday to


surveillance laws enacted after the Sept. 11 attacks, eliminating the
National Security Agency's disputed bulk phone-records collection
program and replacing it with a more restrictive measure to keep
the records in phone companies' hands. Two days after Congress let the
phone-records collection and several other anti-terror programs expire, the
Senate's 67-32 vote sent the legislation to President Barack Obama,
who signed it Tuesday night. "This legislation will strengthen civil
liberty safeguards and provide greater public confidence in these
programs," Obama said in a statement. Officials said it could take at least
several days to restart the collection. The legislation will revive most of the
programs the Senate had allowed to lapse in a dizzying collision of
presidential politics and national security policy. But the authorization will
undergo major changes, the legacy of agency contractor Edward Snowden's
explosive revelations two years ago about domestic spying by the
government. In an unusual shifting of alliances, the legislation passed
with the support of Obama and House Speaker John Boehner, R-Ohio,
but over the strong opposition of Senate Majority Leader Mitch McConnell.
McConnell failed to persuade the Senate to extend the current law
unchanged, and came up short in a last-ditch effort Tuesday to amend the
House version, as nearly a dozen of his own Republicans abandoned him in a
series of votes. "This is a step in the wrong direction," a frustrated McConnell
said on the Senate floor ahead of the Senate's final vote to approve the
House version, dubbed the USA Freedom Act. He said the legislation "does
not enhance the privacy protections of American citizens. And it surely
undermines American security by taking one more tool form our warfighters
at exactly the wrong time." The legislation remakes the most
controversial aspect of the USA Patriot Act -- the once-secret bulk
collection program that allows the National Security Agency to
sweep up Americans' phone records and comb through them for ties
to international terrorists. Over six months the NSA would lose the power
to collect and store those records, but the government still could gain court
orders to obtain data connected to specific numbers from the phone
companies, which typically store them for 18 months. It would also continue
other post-9-11 surveillance provisions that lapsed Sunday night, and which
are considered more effective than the phone-data collection program. These
include the FBI's authority to gather business records in terrorism and
espionage investigations and to more easily eavesdrop on suspects who are
discarding cellphones to avoid surveillance. In order to restart collection
of phone records, the Justice Department will need to obtain a new
order from the Foreign Intelligence Surveillance Court. "This

legislation is critical to keeping Americans safe from terrorism and


protecting their civil liberties," Boehner said. "I applaud the Senate for
renewing our nation's foreign intelligence capabilities, and I'm pleased this
measure will now head to the president's desk for his signature." The
outcome capped a dramatic series of events on Capitol Hill that saw a
presidential candidate, GOP Sen. Rand Paul of Kentucky, defy fellow
Republicans and singlehandedly force the existing law to lapse Sunday at
midnight, leading to dire warnings of threats to America. The suspense
continued Tuesday as McConnell tried to get the Senate to go along with
three amendments he said would make the House bill more palatable. But
House leaders warned that if presented with the changes the House might
not be able to approve them. The Senate denied McConnell's attempts, an
embarrassment for the leader six months after Republicans retook Senate
control. The changes sought by McConnell included lengthening the phaseout period of the bulk records program from six months to a year; requiring
the director of national intelligence to certify that the NSA can effectively
search records held by the phone companies; and making phone companies
notify the government if they change their policy on how long they hold the
records. Most controversially, McConnell would have weakened the power of
a new panel of outside experts created to advise the Foreign Intelligence
Surveillance Court.

Congress is bipartisan on domestic surveillance policy,


and is willing to curtail surveillance.
Reuters June 2, 2015 4:42 pm WASHINGTON (Reuters), (Reporting by
Patricia Zengerle; Editing by Sandra Maler)
The U.S. Senate passed a bill on Tuesday that ends spy agencies
bulk collection of Americans telephone records, a vote that reversed
national security policy that had been in place since shortly after the
September 11, 2001, attacks. After weeks of often angry debate over how to
balance concerns about privacy with worries about terrorist attacks, the
Senate passed the USA Freedom Act by a vote of 67-32, with support
from both Democrats and Republicans. Because the House of
Representatives passed the bill last month, the Senate vote sends
the bill to the White House, where President Barack Obama has promised
to sign it into law. The measure replaces a program in which the National
Security Agency sweeps up data about Americans telephone calls with a
more targeted system.

The president fails trumanites write their own orders


Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
Put differently, the question whether the President could institute a complete
about-face supposes a top-down policy-making model. The illusion that

presidents issue orders and that subordinates simply carry them out is
nurtured in the public imagination by media reports of Obamas policies or
decisions or initiatives, by the Presidents own frequent references to my
directives or personnel, and by the Trumanites own reports that the President
himself has ordered them to do something. But true top-down decisions
that order fundamental policy shifts are rare.369 The reality is that when the
President issues an order to the Trumanites, the Trumanites themselves
normally formulate the order.370 The Trumanites cannot be thought of as
men who are merely doing their duty. They are the ones who determine their
duty, as well as the duties of those beneath them. They are not merely
following orders: they give the orders.371 They do that by entangling372
the President. This dynamic is an aspect of what one scholar has called the
deep structure of the presidency.373 As Theodore Sorensen put it,
Presidents rarely, if ever, make decisionsparticularly in foreign affairsin
the sense of writing their conclusions on a clean slate . . . . [T]he basic
decisions, which confine their choices, have all too often been previously
made.374
Justice Douglas, a family friend of the Kennedys, saw the Trumanites
influence first-hand: In reflecting on Jacks relation to the generals, I slowly
realized that the military were so strong in our society that probably no
President could stand against them.375 As the roles of the generals and CIA
have converged, the CIAs influence has expandedaided in part by a
willingness to shade the facts, even with sympathetic Madisonian sponsors. A
classified, 6,000-word report by the Senate Intelligence Committee reportedly
concluded that the CIA was so intent on justifying extreme interrogation
techniques that it blatantly misled President George W. Bush, the White
House, the Justice Department and the Congressional intelligence committees
about the efficacy of its methods.376 The CIA gets what it wants,
President Obama told his advisers when the CIA asked for authority to expand
its drone program and launch new paramilitary operations.377
Sometimes, however, the Trumanites proceed without presidential approval.
In 1975, a White House aide testified that the White House didnt know half
the things intelligence agencies did that might be legally questionable.378
If you have got a program going and you are perfectly happy with its results,
why take the risk that it might be turned off if the president of the United
States decides he does not want to do it, he asked.379 Other occasions arise
when Trumanites in the CIA and elsewhere originate presidential
directivesdirected to themselves.380 Presidents then ratify such
Trumanite policy initiatives after the fact.381 To avoid looking like a bystander
or mere commentator, the President embraces these Trumanite policies, as
does Congress, with the pretense that they are their own.382 To maintain
legitimacy, the President must appear to be in charge. In a narrow sense, of
course, Trumanite policies are the Presidents own; after all, he did formally
approve them.383 But the policies ordinarily are formulated by Trumanites
who prudently, in Bagehots words, prevent the party in power from going
all the lengths their orators propose[].384 The place for presidential

oratory, to the Trumanites, is in the heat of a campaign, not in the councils of


government where cooler heads prevail.385
The idea that presidential backbone is all that is needed further presupposes
a model in which the Trumanites share few of the legitimacy conferring
features of the constitutional branches and will easily submit to the President.
But that supposition is erroneous. Mass entertainment glorifies the military,
intelligence, and law enforcement operatives that the Trumanites direct. The
public is emotionally taken with the aura of mystery surrounding the drone
war, Seal Team Six, and cyber-weapons. Trumanites, aided by Madisonian
leaks, embellish their operatives very real achievements with fictitious
details, such as the killing of Osama bin Laden386 or the daring rescue of a
female soldier from Iraqi troops.387 They cooperate with the making of
movies that praise their projects, like Zero Dark Thirty and Top Gun, but not
movies that lampoon them, such as Dr. Strangelove (an authentic F-14 beats
a plastic B-52 every time).388 Friendly fire incidents are downplayed or
covered up.389 The public is further impressed with operatives valor as they
are lauded with presidential and congressional commendations, in the hope
of establishing Madisonian affiliation.390 Their simple missionfind bad guys
and get them before they get usis powerfully intelligible. Soldiers,
commandos, spies, and FBI agents occupy an honored pedestal in the
pantheon of Americas heroes. Their secret rituals of rigorous training and
preparation mesmerize the public and fortify its respect. To the extent that
they are discernible, the Trumanites, linked as they are to the dazzling
operatives they direct, command a measure of admiration and legitimacy
that the Madisonian institutions can only envy.391 Public opinion is,
accordingly, a flimsy check on the Trumanites; it is a manipulable tool of
power enhancement. It is therefore rarely possible for any occupant of the
Oval Office to prevail against strong, unified Trumanite opposition, for the
same reasons that members of Congress and the judiciary cannot; a nonexpert president, like a non-expert senator and a non-expert judge, is
intimidated by expert Trumanites and does not want to place himself (or a
colleague or a potential political successor) at risk by looking weak and
gambling that the Trumanites are mistaken. So presidents wisely choose to
go along.

Legislative action is key to creating cultural change.


Executive action doesnt engage the public enough.
Stoddard 97 Thomas B. Stoddard, attorney and adjunct professor at the
New York University School of Law
New York University Law Review
November, 1997 72 N.Y.U.L. Rev. 967 ESSAY: BLEEDING HEART:
REFLECTIONS ON USING THE LAW TO MAKE SOCIAL CHANGE
Changes that occur through legislative deliberation generally entail greater
public awareness than judicial or administrative changes do. Public
awareness is, indeed, a natural concomitant of the legislative process. A

legislature-- any legislature--purports to be a representative collection of


public delegates engaged in the people's business; its work has inherent
public significance. Judicial and administrative proceedings, by contrast,
involve private actors in private disputes. Those disputes may or may not
have implications for others, and they are often subject to the principle of
stare decisis, but they are not public by their very nature. (Administrative
rulemaking is a different animal, akin--at least in theory--to legislative
activity, but it is still typically accorded less attention than the business of
legislatures.) Legislative lawmaking is, by its nature, open, tumultuous, and
prolonged. It encourages scrutiny and evaluation. Thus, it is much more likely
than other forms of lawmaking to promote public discussion and knowledge.
For that reason alone, such lawmaking possesses a special power beyond
that of mere rulemaking. Indeed, the real significance of some forms of
legislative lawmaking lies in the debate they engender rather than the formal
consequences of their enactment. Between 1971 and 1986, the New York City
Council had before it every year a bill that would amend the city's human
rights laws to protect lesbians and gay men from discrimination in
employment, housing, and public accommodations. The bill failed each year
until 1986, principally because of the personal opposition of the council's
majority leader. (In 1986, the majority leader retired, and the election of a
new majority leader allowed the measure to emerge from committee and
then attain the approval of the entire council.) As a perennial lobbyist for the
gay rights bill, and a gay man to boot, I publicly bemoaned the bill's failure
year after year. However, in hindsight, I am not unhappy that enactment of
the bill took fifteen years. Over those fifteen years, the city council and the
citizens of New York more generally had to confront continually the issue of
discrimination against lesbians and gay men. They had to hear again and
again the assertions made by my colleagues and by me that gay people
exist; that gay people encounter constant scorn, disapproval, and prejudice;
and that gay people deserve protection from discrimination in the basic
necessities of life. The city council, for a full decade and one-half, became a
city-wide civic classroom for a course on sexual orientation discrimination--an
intracity teach-in, if you will. If we had our platform during the fifteen years of
the bill's pendency, so did our opponents, but in many ways the other side's
comments (especially the more rancorous observations) bolstered our
advocacy, for the comments prolonged the discussion--and also helped to
demonstrate our claims of the existence of prejudice. Immediate passage of
New York City's gay rights bill as early as 1971 or 1972 would have afforded
immediate political gratification to me and my colleagues (I would have been
very gratified indeed), but immediate passage would also have deprived the
city and its residents of the extended exploration of the subject of gay people
and their rights. And, I am now convinced, it is the city-wide debate of the
subject, rather than mere passage itself, that has helped to open eyes and
hearts. Mere passage would have added up to "rule- shifting" when "cultureshifting" is what this controversial and often misunderstood issue really
required. Mere passage would have given lesbians and gay men who suffered
discrimination (and who could prove their assertions) a form of redress, and it

would probably have led some especially principled employers to adopt


implementing guidelines, but enactment of the gay rights bill would have
eluded the attention of many, if not most, non-gay New Yorkers. The fifteen
years of struggle, however, made the subject ultimately inescapable to New
Yorkers--and led to genuine and deep "culture-shifting." [FN24] From my
experience on the gay rights bill, and my experience as an activist more
generally, I harbor a bias in favor of legislative reform. Legislative reform
makes real change--"culture-shifting"--more probable, since it is much more
likely than other forms of lawmaking to engage the attention of the public.
"Rule-shifting" has its merits and advantages, but it is simply less potent than
"culture-shifting" in accomplishing the things I want to accomplish.

FISA

Congress creates and controls federal courts


Jennifer Mueller-Bachelor of Arts in political science from the University of North Carolina at
Asheville and a Juris Doctor from Indiana University Maurer School of Law.
(http://classroom.synonym.com/three-responsibilities-congress-respect-federal-courts17943.html)
Article III, Section 1 of the Constitution creates the Supreme Court and provides that Congress
may establish other federal courts below it. Congress has used this power to create 89 district
courts organized in 13 circuits. Each circuit has its own court of appeals. Congress not only
creates the courts themselves, but also determines what types of cases they will hear. The
Constitution specifies that the Supreme Court has original jurisdiction over certain types of cases,
such as those involving other countries or disputes between two states. However, Congress
reserves the power to limit the appellate jurisdiction of the Supreme Court and all other federal
courts. While Congress does not have the power to create state courts, it can pass legislation
allowing them to decide certain types of cases.

Prez Powers

Congressional Power
Domestic surveillance is congressional authority not
presidential
Kitrosser,8 Heidi Kitrosser, Associate Professor, University of Minnesota
Law School. I am grateful to the organizers of the symposium for which this
paper was written, particularly David Gans, Michael Herz, and Kevin Stack. I
also owe many thanks to former Vice President Walter Mondale for a
fascinating and inspiring discussion about congressional oversight of national
security activities. Finally, I am very grateful to Professor Suzanne Thorpe of
the University of Minnesota Law Library for her research assistance and to
University of Minnesota co-deans Guy Charles and Fred Morrison for their
continued support. January, 2008, 29 Cardozo L. Rev. 1049
Opponents of the warrantless surveillance program dispute the
administration's statutory and constitutional points. On the statutory front,
opponents argue that the general language of the AUMF does not override
FISA's specific requirements for electronic surveillance. n23 They further note
that FISA provides a fifteen-day exemption from its requirements following a
congressional declaration of war and that FISA was amended several times
after the AUMF's passage. Both the fifteen-day exemption and the post-AUMF
amendments would be superfluous, opponents argue, had the AUMF
implicitly overridden FISA. n24 On the constitutional points, opponents argue
that Congress and the President share powers in both military and domestic
affairs, that domestic surveillance falls well within Congress'
legislative powers, and that the President thus must conduct any
operations within FISA's parameters. n25

Uniqueness
Recent decisions about executive appointments already
kill presidential powers
SHEAR, MICHAEL. "Decision by Justices Opens a New Debate on the Limits
of Presidential Power." The New York Times. (June 27, 2014 Friday ): 1005
words. LexisNexis Academic. Web. Date Accessed: 20 15/07/17.
Thursday's decision by the Supreme Court to curb President Obama's ability
to make recess appointments opened a new debate in the nation's capital
about the proper limits of presidential power in an era of intense partisan
gridlock. Republicans hailed the ruling as a repudiation of what they called
Mr. Obama's abuse of his constitutional power when he tried in 2012 to fill
vacancies at two federal agencies without Senate confirmation. But Mr.
Obama and his allies noted that the decision stopped short of severely
undermining the broader appointment power of the presidency, as an appeals
court had ruled earlier. White House officials had worried that the court's
more conservative members might emerge victorious with a far more
restrictive view of presidential power. They did not. ''We're, of course, deeply
disappointed in today's decision,'' Josh Earnest, the White House press
secretary, said. ''We are, however, pleased that the court recognized the
president's executive authority as exercised by presidents going all the way
back to George Washington.'' Mr. Obama had tried to maneuver around
longstanding Republican efforts to block his appointments to the National
Labor Relations Board by seating members during pro forma sessions of the
Senate when almost all of the senators were at home in their districts and no
legislative business was conducted. The court ruled that the president's
action violated the Constitution and said that the Senate and House have the
ultimate power to block such recess appointments by scheduling the minisessions when they want to. But the justices for the first time recognized the
basic right of the president to make appointments without the consent of the
Senate when the Congress is in an extended recess during a two-year
session, as it often is during the summer, around Christmas and in the spring.
Republicans said the decision amounted to a rebuke of the president at a
time when they are arguing that Mr. Obama is repeatedly exceeding his
authority to get around a Congress that does not do what he wants it to. ''He
picks and chooses what parts of the Constitution and duly passed legislation
he wants to enforce or follow,'' said Representative Kevin McCarthy of
California, the incoming majority leader in the House. ''The president's
attempt at illegitimate administrative appointments is a prime example of
overreach. This bolsters the case for the House to take further action to
ensure our laws are properly executed and our freedoms are protected.''
Representative Darrell Issa, a California Republican and chairman of the
House Oversight and Government Reform Committee, said the court's
decision made it clear that ''President Obama acted without any legitimate
authority.'' The decision comes a day after Speaker John A. Boehner said he
would seek legislation allowing the House to sue Mr. Obama over the

president's use of executive actions. Republicans say Mr. Obama has


exceeded his authority, pointing to the president's delaying of some parts of
the Affordable Care Act and his granting of deportation deferrals to some
immigrants who are in the country illegally. White House officials have
dismissed Mr. Boehner's threats of a lawsuit as a stunt, saying that Mr.
Obama's executive actions are based on the president's well-established
powers. They argue that the president has the right to act on behalf of the
American people where he can.

Link
Establishing non-congressional legislative bodies kills
presidential review and skews checks and balances
Ronald A. Cass 15, Ronald A. Cass is Dean Emeritus of Boston University
School of Law, President of Cass & Associates PC, and author of The Rule of
Law in America., 7-8-2015, "Out Of Control: Separation Of Powers And
Encroaching Delegations," The Washington Times,
http://www.washingtontimes.com/news/2015/jul/8/celebrate-liberty-monthout-of-control-separation-/
Separation of powers as a tool for limiting discretionary official power is the
foundation stone of our Constitution and the rule of law. No institutional
device does more to protect liberty. James Madison called separation of
powers the first principle of a free government and helped craft a
Constitution that divides government power between national and state
governments and between different branches of government. In Federalist
51, Madison explained the related concept of checks and balances, saying
that the great security against a gradual concentration of government
power (once separated) consists in giving those who administer each
department, the necessary constitutional means and personal motives, to
resist encroachments of the others. Not all encroachments, however, have
been resisted. A decision in the recently concluded U.S. Supreme Court term
highlights one type of encroachment that has grown out of control.
Department of Transportation v. Association of American Railroads asked
whether granting Amtrak power to help frame regulations that apply to
private railroad enterprises violates the Constitution. The primary complaint
was that this grant of power breaches the non-delegation doctrine. When
the Supreme Court passed that issue back to the lower court, Justices Alito
and Thomas thoughtfully described considerations that should guide further
review. The essence of the non-delegation doctrine is that Congress cannot
give its legislative power to others. The vesting clauses of the Constitution
assign different powers to each of the three branches, stating, for example,
that All legislative powers herein granted shall be vested in a Congress of
the United States before going on to state how the Congress will be
composed, what powers it will have, and what processes it must observe in
passing laws. The Constitution similarly vests executive power in the
Presidents hands and judicial power in the courts created under Article III.
The divisions of power among the branches and the processes established to
govern each are essential protections against tyranny; they are the
mechanisms that check expansion of discretionary official power. The
Supreme Court has been fairly vigilant in preventing exercise of judicial
power by officials not appointed and tenured in accord with Article IIIs
commands or assignments of executive power that do not observe
constitutional requirements respecting appointment and control of executive
officers. Its record with respect to congressional efforts to outplace legislative
authority, however, has been far weaker. Basic policy choices on rules that

regulate the behavior of others have to be made by Congress: it cant


empower any other official or body to make those rulesessentially to enact
lawsbypassing democratic election of the officials, bicameralism (different
constituencies, criteria, and terms of office for House and Senate),
presentment to and approval by the President, and other procedural
protections built into the Constitutions design. Language from
Supreme Court opinions in the late 1800s and 1920s, however, laid the
groundwork for judicial acceptance of laws authorizing broad policy-making
by executive officials (outside fields of independent, constitutionally-assigned
executive power)

The new republican controlled congress threatens to take


down presidential powers.
PARKER, By JEREMY. "On War and Immigration, Obama Faces Tests of
Authority From Congress." The New York Times. (December 5, 2014 Friday ):
1083 words. LexisNexis Academic. Web. Date Accessed: 20 15/07/17.
WASHINGTON -- Congress moved on two fronts Thursday to test the limits of
presidential authority, with a surprising maneuver in the Senate to begin
debating President Obama's war powers against the Islamic State and a vote
in the House to prohibit him from enforcing his executive action on
immigration. With the two parties in a perpetual state of dispute, the actions
represented a rare, if unplanned, shared view among liberals and
conservatives: Through Congress's passivity or its inability to compromise, it
has ceded too much authority to an executive branch more than willing to
step into the void. Mr. Obama has angered Republicans on Capitol Hill by
announcing that he would use his executive authority to shield millions of
undocumented immigrants from deportation, a decision conservatives
condemn as an abuse of his constitutional powers. And lawmakers in both
parties have rebuked the president for executing a war in the Middle East that
many believe has not been properly authorized by Congress. The
simultaneous moves in the two chambers demonstrated a strong desire to
wrest some of that power back. ''The executive gets more powerful the more
dysfunctional Congress gets,'' said Senator Christopher S. Murphy, Democrat
of Connecticut, who supported forcing a vote to revisit the president's war
authority. ''So there's a natural transition of power away from the legislature
to the executive when nothing can happen here.'' The action on Capitol Hill
focused on two of the most urgent and divisive issues of the moment -immigration and war policy -- and foreshadowed the kinds of debates likely to
dominate the new Congress after it is sworn in next month. Adding more
volatility to the mix will be the frenzied politics of a presidential campaign,
which is likely to feature several members of Congress. The dynamics of the
2016 campaign were on display as senators on the Foreign Relations
Committee unexpectedly found themselves confronting the question of war

against the Islamic State. It began with procedural sleight of hand by Senator
Rand Paul of Kentucky, who is expected to seek the Republican nomination
for president and has positioned himself as a less hawkish alternative to the
other potential candidates in his party. Mr. Paul used a routine meeting over
an unrelated issue -- clean water -- to force his colleagues to schedule a vote
on authorizing force against the Islamic State. The committee agreed to
move forward, though only after dissent from Republicans like Senator John
McCain of Arizona who take a more traditional interventionist approach. Mr.
McCain called Mr. Paul's proposal, which would prohibit the use of ground
forces in most cases and set strict time limits on the conflict, ''crazy.'' A vote,
on either Mr. Paul's plan or a similar one, could happen as early as Tuesday. If
a plan is approved, it would get a floor vote before the end of the year if
Majority Leader Harry Reid agreed to put it at the top of a crowded Senate
calendar. At issue is the administration's position that it is justified in
engaging in military activity today because of two acts of Congress that are
now more than a decade old: a 2001 authorization passed after the Sept. 11
attacks, and a 2002 authorization sought by President George W. Bush for the
Iraq war. ''Thirteen years later, we are still working off a 2001 authorization
that has led us to many places well beyond the Afghanistan-Pakistan border,''
said Senator Robert Menendez, Democrat of New Jersey and the Foreign
Relations Committee chairman. Across the Rotunda, House Republicans
turned their attention to the pressing matter of preventing a government
shutdown when federal spending authority runs out on Dec. 11. The House
on Thursday voted 219 to 197 in favor of a resolution by
Representative Ted Yoho, Republican of Florida, to halt
implementation of the president's order stopping the deportations
of millions of unauthorized immigrants. Three Democrats supported the
measure, and three Republicans voted present. But the vote was largely
symbolic, enabling angry House Republicans to express displeasure with the
president for altering the nation's immigration policy without congressional
approval. Mr. Reid has already made clear that he will not take up the House's
measure. With immigration politics caught up in the fight over government
spending, Thursday's vote was part of a two-step strategy by House
Republican leaders to corral their more conservative members and pass a
broad spending bill so the government does not close on Dec. 11. Next week,
House Speaker John A. Boehner and his leadership team plan to bring to the
floor legislation that would fund almost all of the government through the
next fiscal year, while funding the Department of Homeland Security -- the
agency primarily charged with executing the president's immigration policy -only into early next year. At that point, Republicans will control both
chambers of Congress and believe they will have more political
might to chip away at the president's order. Many Republicans see
the new Congress as an opportunity to curtail presidential power. ''I
think he's abusing the powers of the presidency and he is setting a whole
new bar in terms of executive overreach that this country has never seen
before,'' said Representative Steve Daines, Republican of Montana, who was
elected as a senator last month. But Republicans face their own divisions.

Many of the more conservative members pushed Mr. Boehner to take a


harder line against the president. Mr. Boehner instead is prepared to go
around them and rely on Democrats to pass his bill. Both Mr. Boehner and
Representative Nancy Pelosi of California, the minority leader, believe the bill
could pass with bipartisan support, but there are some policy differences to
be bridged. The decision by the Republican leadership to rely on Democrats
has frustrated many of the House's more conservative members.
Representative Matt Salmon, Republican of Arizona, said Thursday's vote was
toothless. ''I think it would be a lot cheaper and cost-effective and quicker to
send the president a Hallmark card,'' he said. Some Republicans have urged
Mr. Boehner to retaliate by canceling the president's State of the Union
address to Congress. When asked if the State of the Union invitation was in
jeopardy, Mr. Boehner responded with a laugh. ''The more the president talks
about his ideas, the more unpopular he becomes,'' he said. ''Why would I
want to deprive him of that opportunity?''

AT POLITICS
Obama has bipartisan support to fight terrorism,
executive order is not necessary
JEREMY W. PETERS, Obama to Seek War Power Bill from Congress, to
Fight ISIS, Peters is a reporter for the NY Times in Washington, FEB.
10, 2015, New York Times
WASHINGTON The Obama administration has informed
lawmakers that the president will seek a formal authorization
to fight the Islamic State that would prohibit the use of enduring
offensive ground forces and limit engagement to three years. The
approach offers what the White House hopes is a middle way
on Capitol Hill for those on the right and left who remain
deeply skeptical of its plans to thwart extremist groups. The
request, which could come in writing as early as Wednesday morning,
would open what is expected to be a months long debate over
presidential war powers and the wisdom of committing to another
unpredictable mission in the Middle East while the nation is still
struggling with the consequences of two prolonged wars. Congress has
not voted to give a president formal authority for a military operation
since 2002 when it backed George W. Bush in his campaign to strike
Iraq after his administration promoted evidence, since discredited, that
Saddam Husseins government possessed unconventional weapons.
The new request to conduct military operations would repeal that
authorization. But it would leave in place the broad authority to
counter terrorism that Congress granted Mr. Bush in 2001 after
the Sept. 11 attacks, which many Democrats now believe is being
interpreted too broadly to justify military actions that were never
intended. After more than a decade of war and 7,000 American military
lives lost in Iraq and Afghanistan, President Obama will face doubts not
only from Democrats who want stricter limitations set on where he can
send troops and how long his authority will last, but also from
Republicans, who are dubious of the administrations strategy for
defeating the Islamic State extremist group. The White House has
tried to address concerns by drafting a resolution that tries to
be both circumscribed and flexible. It would explicitly disallow
extended use of combat forces, lawmakers and aides who are familiar
with the plan said Tuesday. That language is intended as a compromise
to ease concerns of members in both noninterventionist and
interventionist camps: those who believe the use of ground forces
should be explicitly forbidden, and those who do not want to hamstring
the commander in chief. The resolution also requests authority to wage

battle beyond the fight against the Islamic State to include associated
forces. It would contain no geographic limitations. Both are sticking
points for many Democrats, who expressed concern that the president
was setting the country up for another open-ended conflict. Those
tensions surfaced on Tuesday as Mr. Obamas chief of staff, Denis
McDonough, visited the Capitol to present Democrats with the outlines
of the language the White House plans to send to Congress. By most
accounts, he faced a skeptical audience. Senator Richard Blumenthal,
Democrat of Connecticut and a member of the Armed Services
Committee, said as he left the meeting that he had grave
reservations and that he had yet to be convinced. Senator Joe
Manchin III, Democrat of West Virginia, echoed the concerns of many
lawmakers who are worried that giving the president approval would
only reward a decade of mismanagement in the Middle East. If money
or military might would change that part of the world, wed be done a
long time ago, he said. In West Virginia, we understand the definition
of insanity. The Obama administration has insisted that it does not need
Congress authority to continue its military campaign. But an affirmative vote
from Congress would bolster the legitimacy that the president already claims
as commander in chief in the battle against the Islamic State, which is also
known as ISIS or ISIL, and confer a stronger legal underpinning for his actions.
Many Republicans, despite opposing Mr. Obama on almost every other issue,
seem willing to give him that authority. I have disagreements with the

presidents conduct of foreign policy and what hes done, said Senator
Jeff Flake, Republican of Arizona and a member of the Foreign Relations
Committee. But in this instance, we need an Authorization for the Use
of Military Force. Our enemies and our allies need to know that we
speak with one voice.

Backlash
Backlash means Executive Orders crush pres powers
PCAP 08 (Presidential Climate Action Project, Nonpartisan Project at the
University of Colorado Denver, Climate Action Brief: The Use of Presidential
Power, 2008 is the last date cited,
http://www.climateactionproject.com/docs/briefs/Climate_Brief_Presidential_P
ower.pdf)

Among the issues the Bush Administration will leave for the next president is
a continuing controversy about the use of presidential power. A number of President Bushs
actions among them his order directing warrantless domestic surveillance and his use of
signing statements as a virtual line-item veto of Congressional intent have led to
protests that the President has violated the boundaries of executive authority. The
American Bar Association criticized President Bushs use of signing statements as contrary to the rule of law and
our constitutional system of separation of powers. i This legacy could lead the Congress, the
courts and the voters to push the presidential power pendulum to the
opposite extreme, handcuffing the executive branch even in areas where its
powers are clear. Yet the 44th President will need all the tools he or she commands to
deal with the serious problems the next administration will have to tackle, including global climate change.

Congress backlash from XO-immigration proves


Snell 15 Kelsey Snell, , 7-8-2015, "Republicans again propose blocking
Obamas immigration orders," Washington Post,
http://www.washingtonpost.com/news/powerpost/wp/2015/07/08/republicansagain-propose-blocking-obamas-immigration-orders/
The House Appropriations Committee on Wednesday released a draft
Homeland Security funding bill that includes language that would prevent the
Obama administration from enforcing executive actions on immigration he
issued in November 2014 until a court decides if the orders are legal. This
bill rejects the Presidents attempt to undermine our laws and uses the tax
payers dollars in a fiscally responsible manner, Homeland Security
Subcommittee Chairman John Carter (R-Texas) said in a statement. The bill
would require the Homeland Security Department to enforce all immigration
laws as written and disregard any executive actions that have not been
approved by Congress. If enacted, the measure would have no immediate
impact on DHS activities because a federal judge has already ordered the
agency not to act on the executive order until the court process is complete.

Perm do Both
Perm have the executive and congress work together.
Unilateral executive action on surveillance kills separation
of powers and leads to tyrannical rule.
Glenn Harlan 14, 2-10-2014, "NSA spying undermines separation of
powers: Column," USA TODAY,
http://www.usatoday.com/story/opinion/2014/02/10/nsa-spying-surveillancecongress-column/5340281/
Most of the worry about the National Security Agency's bulk interception of
telephone calls, e-mail and the like has centered around threats to privacy.
And, in fact, the evidence suggests that if you've got a particularly steamy
phone- or Skype-sex session going on, it just might wind up being shared by
voyeuristic NSA analysts. But most Americans figure, probably rightly, that
the NSA isn't likely to be interested in their stuff. (Anyone who hacks my email is automatically punished, by having to read it.) There is, however, a
class of people who can't take that disinterest for granted: members of
Congress and the judiciary. What they have to say is likely to be pretty
interesting to anyone with a political ax to grind. And the ability of the
executive branch to snoop on the phone calls of people in the other branches
isn't just a threat to privacy, but a threat to the separation of powers and the
Constitution. As the Framers conceived it, our system of government is
divided into three branches -- the executive, legislative and judicial -- each of
which is designed to serve as a check on the others. If the president gets out
of control, Congress can defund his efforts, or impeach him, and the judiciary
can declare his acts unconstitutional. If Congress passes unconstitutional
laws, the president can veto them, or refuse to enforce them, and the
judiciary, again, can declare them invalid. If the judiciary gets carried away,
the president can appoint new judges, and Congress can change the laws, or
even impeach. But if the federal government has broad domestic-spying
powers, and if those are controlled by the executive branch without
significant oversight, then the president has the power to snoop on political
enemies, getting an advantage in countering their plans, and gathering
material that can be used to blackmail or destroy them. With such power in
the executive, the traditional role of the other branches as checks would be
seriously undermined, and our system of government would veer toward
what James Madison in The Federalist No. 47 called "the very definition
of tyranny," that is, "the accumulation of all powers, legislative,
executive, and judiciary, in the same hands." That such widespread
spying power exists, of course, doesn't prove that it has actually been
abused. But the temptation to make use of such a power for self-serving
political ends is likely to be very great. And, given the secrecy surrounding
such programs, outsiders might never know. In fact, given the
compartmentalization that goes on in the intelligence world, almost everyone
at the NSA might be acting properly, completely unaware that one small
section is devoted to gather political intelligence. We can hope, of course,

that such abuses would leak out, but they might not. Rather than counting on
leakers to protect us, we need strong structural controls that don't depend on
people being heroically honest or unusually immune to political temptation,
two characteristics not in oversupply among our political class. That means
that the government shouldn't be able to spy on Americans without a warrant
a warrant that comes from a different branch of government, and requires
probable cause. The government should also have to keep a clear record of
who was spied on, and why, and of exactly who had access to the information
once it was gathered. We need the kind of extensive audit trails for access to
information that, as the Edward Snowden experience clearly illustrates, don't
currently exist. In addition, we need civil damages with, perhaps, a waiver
of governmental immunities for abuse of power here. Perhaps we should
have bounties for whistleblowers, too, to help encourage wrongdoing to be
aired. Is this strong medicine? Yes. But widespread spying on Americans is a
threat to constitutional government. That is a serious disease, one that
demands the strongest of medicines.

Patriot Act
Congress curtail surveillance through changing Patriot Act
Harper 15 (Casey Harper 6/2/15Heres Everything You Need
To Know About The Patriot Act Changes

http://dailycaller.com/2015/06/02/heres-everythingyou-need-to-know-about-the-patriot-act-changes/)
Majority Leader Mitch McConnell suffered a serious embarrassment over
the weekend when Congress let certain key provisions of the Patriot Act
expire at 12:01 a.m. Monday morning. At the end of a chaotic weekend
and with a new bill likely to pass in the next few days addressing the
vast and complex federal surveillance infrastructure, its hard to know
exactly whats happening and what it means. Heres everything you
need to know about the changes so far. The Patriot Act was passed
shortly after the Sept. 11, 2001 terror attacks to give the federal
government the authority to track suspects and potential terrorists. The
program quickly expanded and began taking in large amounts of
information from American citizens, including huge amounts of
telephone metadata from communications companies. Now, three
major parts of the law that required reauthorization before June 1 have
expired: Section 215 The most consequential thing to happen was
the expiration of the infamous Section 215 of the Patriot Act, the
provision that allowed for bulk collection of private phone data from
millions of Americans not suspected of any crime and the most decried
section by privacy advocates. The provision allows the government to
bulk collect metadata, which is what time a calls is made, how long
the conversation lasted, and what phone numbers sent and received
that call. Section 215s expiration only means that rather than
collecting the data first-hand, the Agency will eventually have to go to
the communications companies themselves in a more targeted
manner. Lone Wolf This provision allowed the federal government to
track a lone wolf, someone who could be a terrorist threat but is not
connected to any group like ISIS. The Feds say theyve never had to use
this provision and that it is not for use on U.S. citizens but still stress its
importance. Roving Wiretap This provision allows the NSA to track
people on multiple electronic devices without getting individual approval
for each one. The Feds claim this is rarely used and needs an approval
from a federal court.

CONSTITUTIONAL
AMENDMENT
Process of amendment card

NationalArchives 15 , The U.S. National Archives and Records


Administration The Constitutional Amendment process,
http://www.archives.gov/federal-register/constitution/] Achal Patel
The authority to amend the Constitution of the United States is derived from
Article V of the Constitution. After Congress proposes an amendment , the
Archivist of the United States, who heads the National Archives and Records Administration
(NARA), is charged with responsibility for administering the ratification process
under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial
duties associated with this function to the Director of the Federal Register. Neither Article V of the
Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of
the Federal Register follow procedures and customs established by the Secretary of State, who performed
these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA

The Constitution provides that an


amendment may be proposed either by the Congress with a two-thirds
majority vote in both the House of Representatives and the Senate or by a
constitutional convention called for by two-thirds of the State legislatures.
None of the 27 amendments to the Constitution have been proposed by
constitutional convention. The Congress proposes an amendment in the form
of a joint resolution. Since the President does not have a constitutional role in
the amendment process, the joint resolution does not go to the White House
for signature or approval. The original document is forwarded directly to NARA's Office of the
assumed responsibility as an independent agency in 1985.

Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint
resolution and publishes it in slip law format. The OFR also assembles an information package for the
States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip

The Archivist submits


the proposed amendment to the States for their consideration by sending a
letter of notification to each Governor along with the informational material
prepared by the OFR. The Governors then formally submit the amendment to
their State legislatures. In the past, some State legislatures have not waited to receive official
notice before taking action on a proposed amendment. When a State ratifies a proposed
amendment, it sends the Archivist an original or certified copy of the State
action, which is immediately conveyed to the Director of the Federal Register.
law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the
documents are found to be in good order, the Director acknowledges receipt and maintains custody of

The OFR retains these documents until an amendment is adopted or


fails, and then transfers the records to the National Archives for preservation .
them.

Discussions on Amendments for security and surveillance


card
NCC Staff 13 [National Constitution center, June 17, 2013, The Next 10 Amendments:
Do we need more laws to protect privacy? http://news.yahoo.com/constitutional-amendmentprotect-privacy-133028314.html] Achal Patel

The furor in the past two weeks over government eavesdropping on the
media and citizens has raised a lot of questions related to the First Amendment and the Fourth
Amendment. Government actions to monitor the phone records of the
Associated Press and track the activities of a Fox News reporter started a
debate about the First Amendment. And last weeks revelations about widespread
government collection of phone call datafollowed by broader claims about
data collection involving the Internetstarted a whole new argument about the Fourth
Amendment. Those are just a few of the issues about privacy that have been debated over the past year. Theres also the pesky issue
of drones and other forms of technology that can do much good, but also
cause massive privacy invasions in the wrong circumstances. And theres the
issue of when and how police can enter your home . As for the government
surveillance programs, the Obama administration and Congress members say
the activities of the National Security Agency are approved and monitored by
all three government branches, in accordance with the Constitution. In past court
decisions, the Fourth Amendment has been applied to support privacy rightsto learn more about the evolution of privacy rights, National Constitution Center president
Jeffrey Rosen suggests the five must-read books about privacy issues that are now all too contemporary.

Amendments best solve for broad-written rights for


people (soft left aff solvency)
Ehling 12
Matt Ehling | 10/04/12 Minnesotans need to better evaluate
when (and why) to amend their constitution
https://www.minnpost.com/community-voices/2012/10/minnesotans-needbetter-evaluate-when-and-why-amend-their-constitution

Rights can either be granted by statute (through legislative action) or through a


constitution's provisions. The former tend to be more specific in nature, and can change
with social needs and desires. The latter tend to be broader philosophical statements that
guarantee individual rights by permanently restraining governmental powers. There has been just
one amendment made to the U.S. Constitution that has exclusively constrained individual conduct, and it was short-lived. The most durable
and stable constitutional amendments have been those that have secured broad-based
rights for the people. One can recognize this by looking to the earliest history of the U.S. Constitution. As originally
written, the federal Constitution contained almost no guarantees of individual rights, save
for the "privilege of the writ of habeas corpus." Because of this, a political struggle
ensued, and the Constitution was ratified under the terms of a brokered deal that added 10
rights-based amendments to the original text. These amendments constituted the Bill of
Rights a group of amendments that has survived for over 200 years because of its close
correlation to our nation's guiding philosophy of securing individual liberty.

Constitutionality Amendment CP
Immense bipartisan support for a new amendment in the
case of privacy/surveillance
Ashland, 2014(Lana is an analyst and editor for The Daily Independent in Ashland, Ky. Massie's secure data amendment
excluded in omnibus. http://www.lexisnexis.com/hottopics/lnacademic/. Date Accessed- 7/16/15. Anshul Nanda.)
Dec. 17--ASHLAND -- U.S. Rep. Thomas Massie, R-Vanceburg, was disappointed Thursday when he realized an amendment he has
advocated for the past half year regarding "backdoor" surveillance of private data were excluded from last week's omnibus bill. The
continuing resolution/omnibus, also known as CRomnibus legislation, is a bundle of bills more than 1,600 pages long that covers $1.1
trillion in finance legislation. It was unveiled Tuesday and passed by Congress Thursday. Massie, along with Reps. Jim
Sensenbrenner, R-Wis., and Zoe Lofgren, D-Calif., introduced an amendment, which passed the House of Representatives
with a "veto-proof

majority," a sign of immense bipartisan support. The


amendment sought to ensure Americans' privacy and protect data security by
prohibiting government surveillance agencies from requiring surveillance
"backdoors" in products and services. In a story on the Massie-Sensenbrenner-Lofgren amendment published in June, Massie
said support for the amendment showed privacy and security was important for
all Americans "regardless of party affiliation." C-SPAN showed the bill passing 293-123-1. An
amendment was attached as a rider to a defense spending bill. Riders are bills or amendments attached to
larger, more widely supported bills so that when the larger bill is passed, its
riders also become approved.The defense spending bill was to be included in the omnibus, along with spending
bills for other governmental agencies that needed to be funded before the end of 2014. Though the Massie-Sensenbrenner-Lofgren
amendment was passed in the House by a 293-123 majority, it was somehow omitted from the final CRomnibus legislation that passed
Thursday. When asked why the amendment was suddenly dropped, a representative from Massie's office said he wasn't sure because
the amendment was excluded without their input. The Lewis County congressman's office is frustrated that a widely supported bill
was not passed. Congressmen Sensenbrenner, Massie and Lofgren introduced a new bill, the Secure Data Act of 2014, in response to
the amendment's exclusion from the omnibus. The Secure Data Act

was introduced with the intention to


protect Americans' privacy and data security by prohibiting surveillance agencies from requiring
compelling surveillance "backdoors" in products and services. A statement on behalf of both Sensenbrenner and Massie's office read:
"Thus far, Congress has failed to rein in the (Obama) administration's surveillance authorities and protect Americans' civil liberties.
Nevertheless, the Massie-Sensenbrenner-Lofgren amendment established an important record in the full House of Representatives -an overwhelming

majority will no longer tolerate the status quo." An email from Massie's
Washington office said he will continue advocating for the bill in the next Congress. The
Massie-Sensenbrenner-Lofgren amendment was inspired by the USA Freedom Act, which was also passed earlier this year. Massie,
along with Sensenbrenner and Lofgren, proposed the amendment after a bill

to reform the National Security


Agency came out as a "watered-down version " and Massie and others dropped support. The
amendment required "probable cause" be established and issuance of a search
warrant before launching private data searches. Before, entities like the NSA could comb through
private data on platforms like computers and cellphones without warrants, which Massie claims is a violation of the Fourth
Amendment. The increase of cloud-based technology has heightened chances for back-door searches, especially when data is routed
through other countries during the transmission of text messages, emails and other types of correspondence. For example, an email to
someone outside the U.S. could be collected, as could a message from one person in the U.S. to another person in the U.S. that is first
routed through another country before it reached its destination. According to Massie, his amendment would close that loophole and
eliminate "backdoors," altogether. LANA BELLAMY can be reached at lbellamy@dailyindependent.com or (606) 326-2653. For
Twitter updates, follow @lanabellamy_DI. ___ (c)2014 The Daily Independent (Ashland, Ky.) Visit The Daily Independent (Ashland,
Ky.) at www.dailyindependent.com Distributed by Tribune Content Agency, LLC ACC-NO: 20141217-KA-Massie-s-secure-dataamendment-excluded-in-omnibus-1217-20141217

Technological advances in privacy/surveillance unpopular


now
Williams, 99 (Julie Williams works for an agency called the American Banker. Ignore Privacy Concerns at Your
Own Risk. http://www.lexisnexis.com/hottopics/lnacademic/. Date Accessed- 7/17/15. Anshul Nanda. )

It would require an extraordinary set of blinders not to recognize that American

consumers are increasingly


privacy-conscious. Survey data bear out that consumers are concerned about threats to their privacy and about whether they have lost
control of information they consider personal and private. When a privacy issue-identity theft-is the premise for a hit movie starring Sandra Bullock,
"The Net," I do not think it is productive to continue to debate whether privacy is a major consumer issue, or to suggest that customer concerns are
merely "anecdotal." The question must be, rather,

how the issue can be credibly addressed , and how fast

that can be done. Against this backdrop-this increasingly charged atmosphere where each new reported invasion of personal privacy
triggers a visceral, public reaction-I would like to reflect on the topic of privacy and its business challenges. In part, we have arrived at this point in the
privacy debate because of the explosion of information technology. Technological

advances have greatly


facilitated the collection, dissection, and transfer of vast amounts of personal
data. Information can be sliced, diced, and shared at a level of personal detail that was never before possible. These new capabilities have turned
personal information into a marketable commodity. They cause consumers-when they learn about it-to question whether highly personal medical and
financial information should be in the hands of, and exploited by, third parties. Congress is considering legislation that would enhance the ability of
different types of financial services companies to affiliate, thereby increasing the potential for gathering and using financial and medical information
about the company's customers. One key rationale for these combinations is that resulting companies will be able to "warehouse" data on an expanded
customer pool and "mine" that data to design an increasing array of targeted and profitable product and service offerings. Affiliations among diverse
sectors of the financial services industry are intended to create new synergies and opportunities for cross-marketing. Again, this ability is heavily reliant
on sharing and pooling data. The sheer magnitude of these data warehouses and the sensitivity of the information fuels public skepticism and anxiety and
propels Congress to devise safeguards to protect against the misuse of the data. That gets us to the heart of the privacy debate-both the perception and the
reality that individuals are losing control over their personal information. When the information is highly sensitive, such as medical and financial
information, consumer concern about who has control over its disposition is compounded. Curiously, given the importance and value of information as a
business asset, the financial services industry has been more defensive than proactive in its reactions to customer privacy issues. The attitude of at least
some industry representatives has been "show me the harm, show me the complaints." The problem with this is that, in many instances, individuals may
not realize-and have no way of forcing disclosure of-just how their personal information is being handled. However, as daylight begins to shine on firms'
practices for handling customers' personal information, the public appears ready to make a stink about the shortcomings they see. Any company that
ignores or fails to understand the tinderbox of public sentiment waiting to ignite on privacy, acts at its peril. I commend the banking trade groups for
promulgating privacy principles and urging their members to adapt and adopt such principles. Many, many banks have heeded the call. More and more
banks are posting privacy policies on their Web sites. It is essential, however, that these steps be more than window-dressing. Privacy policies are
meaningful only if they reflect an organizational commitment, are adhered to, are stated in terms customers can readily understand, and meet legitimate
customer expectations about the handling of their information. Congress has pending many bills concerning the treatment of personal information-most
of which are aimed squarely at the financial services industry.

In the last Congress, discussions of privacy


were at the periphery of the debate over modernizing the financial services
industry. Privacy legislation affecting the industry that was either enacted or came close to passage in the last Congress was aimed at data
security-such as curbing identity theft, which is now law, or punishing pretext callers who obtain confidential information from banks under false
pretenses. The

dynamics have shifted dramatically over the course of this year. In


and vigorous debate over an amendment
offered by a freshman congressman that would have required banks to notify customers about
their information-sharing with third parties and would have given them an
opportunity to opt out of that sharing. Members reacted viscerally to descriptions of current practices and the limited
March, the House Banking Committee had an unexpectedly long

reach of existing privacy laws. But by the next day, after committee members were "educated" by the industry, many had set aside their gut reactions and
spoke about operational difficulties and the unknown consequences of increased restrictions on the transfer of customer information. The amendment
failed, and in its place, the committee adopted an amendment requiring disclosure of privacy policies. When the Senate considered its financial
modernization bill, in early May, privacy amendments were generally fended off. A number of pro-privacy senators announced that the issue should be
considered separate and apart from the bill. That view largely prevailed. But

just weeks ago, the issue resonated


when the House Commerce Committee considered the House version of that
legislation. A Commerce subcommittee adopted a measure mandating that financial services companies disclose their information-sharing
practices to customers. However, by June, a growing clamor to address existing and potential privacy abuses resulted in the passage of an
amendment that requires financial services companies to provide their
customers with the opportunity to opt out of all types of sharing
arrangements with unaffiliated and affiliated third parties . It remains to be seen whether some
type of enhanced privacy protection will be retained in financial modernization legislation. But it is evident that the marketplace has already begun to
recognize the significance of distinctions in privacy protections afforded consumers. There is evidence that-when information is available-market forces
will take privacy issues into account. Just last week, a large bank announced that it was taking an "industry-leading" privacy position by ceasing the
sharing of customer information with third- party marketers. In doing so, the bank said that "customer privacy is one of our highest priorities." That
brings me to my last point: Where do we go from here? The financial services industry is just beginning to realize the potential of the Internet and the
business opportunities made available by technology. But these very developments increase the potential for intrusions on personal privacy and facilitate
the transfer of personal data. As more information becomes available about how customer information is collected and used, market forces increasingly
will take privacy consequences into account. I would offer one suggestion for how the financial services industry can approach this challenge. It is not a
solution, but rather an attitude, drawn from Justice Louis Brandeis' eloquent description more than 70 years ago of the concept of privacy. He called it
"the right to be left alone-the most comprehensive of rights, and the right most valued by a free people." These words capture an issue central to
treatment of privacy concerns in the new information age. Privacy as an individual right implies that to some degree personal and private information
about an individual is the property of that individual. It also implies that when a customer gives that property to another for one express purpose, he or
she is not implicitly giving it for whatever other purposes the recipient may want to use it. My suggestion is to think of personal information from your

customers' perspective, as something they feel belongs to them. In developing and implementing privacy policies, think about how your customers would
react if you gave them a full description of how much of their information you collect, what you do with it, whether you transfer it, to whom you transfer
it, and what then happens to it. Would you be embarrassed? Would your customers feel they had been treated fairly? Structure your privacy policies-and
implement them- accordingly. Copyright c 1999 American Banker, Inc. All Rights Reserved. http://www.americanbanker.com

The plan is ineffective because past attempts prove that


the government will expand surveillance rather than
curtail it- means the perm fails
Kim, 2007 (Sam Kim is an author/analyst/editor for the Center for Effective Government. Congress Reforming Government
Surveillance Authority http://www.foreffectivegov.org/node/3526. Date Accessed- 07/17/15. Anshul Nanda.)

Legislation to reform expansive surveillance authority moved forward in both


the House and the Senate recently. (The House passed the RESTORE Act (H.R. 3773), which would reform the Protect
America Act (PAA), passed in haste before Congress's August recess. The Senate Judiciary Committee narrowly passed the FISA Amendments Act of
2007 (S. 2248) without telecom immunity provisions that were included in the Senate Intelligence Committee bill, setting up a confusing situation that
makes it unclear which version will be sent to the Senate floor for consideration. PAA granted the government the authority to wiretap anyone, including
U.S. citizens, without court approval as long as the "target" of the surveillance is reasonably believed to be located outside the country. The bill is
scheduled to sunset in less than three months, but the House and Senate leadership agreed to reform the bill before then. The Responsible Electronic
Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (RESTORE Act) was introduced by Reps. John Conyers (D-MI), chairman of the
House Judiciary Committee, and Silvestre Reyes (D-TX), chairman of the House Intelligence Committee. The RESTORE Act would require a finding of
probable cause for surveillance targeting American citizens, including Americans located overseas. The legislation

would also
permit a blanket order for surveillance of multiple foreign targets to be
granted by the Foreign Intelligence Surveillance Court. However, the Justice
Department Inspector General must regularly report on the use of blanket
orders and the number of U.S. persons' communications collected in the
orders' use. The Justice Department Inspector General would also be required to audit the Terrorist Surveillance Program and other
warrantless surveillance programs. The bill faced resistance from House Republicans when it was pulled from the floor in October but passed with
bipartisan support on Nov. 15 with a 227-189 vote. The White House immediately issued a statement saying, "This evening House Democrats passed
legislation that would dangerously weaken our ability to protect the Nation from foreign threats." Chairman Reyes, however, characterized the
RESTORE Act as helping to "restore the balance between security and liberty." In a statement issued after the vote, Reyes explained, "The RESTORE
Act puts the FISA Court back in the business of protecting Americans' constitutional rights after the President and Vice President put that court out of
that business six years ago." The Senate Judiciary Committee voted S. 2248 out of committee on a narrow 10-9 party-line vote. When the Senate
Intelligence Committee passed the same bill in October, it included a provision that would provide immunity for any telecommunications company that
assisted in illegal counterterrorism operations after Sept. 11, 2001. The Senate Judiciary Committee rejected an amendment by Sen. Russ Feingold (DWI) to strip out the immunity provision by a vote of 10-7, with two Democrats, Sens. Dianne Feinstein (D-CA) and Sheldon Whitehouse (D-RI), joining
the Republicans. In a quick turnabout, Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee, offered a motion to move the bill to the Senate
floor without the immunity provisions. It passed on a 10-9 vote. Senate Majority Leader Harry Reid (D-NV) will now have to decide which version of
the FISA bill to bring to Senate floor, the Judiciary Committee version without immunity for the telecommunications companies, or the Intelligence
Committee version with immunity. Since there will inevitably be an amendment to either strip immunity or add it, Reid also needs to decide whether this
type of amendment will require 60 votes to kill a potential filibuster or a simple majority. Recently confirmed Attorney General Robert Mukasey and the
Director of National Intelligence Mike McConnell issued a statement opposing the bill and said that they would recommend that President Bush veto it.
They stated that the Senate Judiciary Committee bill "would not provide the intelligence community with the tools it needs effectively to collect foreign
intelligence vital for the security of the Nation." The battle over telecom immunity is likely to occur on the Senate floor. Sen. Arlen Specter (R-PA) is
already drafting a compromise which would substitute the government for the telecommunications companies as defendants in the forty-plus lawsuits
currently moving through the courts. This would allow the cases to be heard but would hold the government liable for damages if any of the plaintiffs
prevail. The Senate is expected to vote on S. 2248 before the close of session.

<Great Solvency Takeout to the Aff IF Executive Branch


Actor> <IF Executive Branch> Only a Congressional
Amendment has the ability to spillover and get access to
solvency of the affirmative
<IF General USFG Actor> The only way that Congress can
spillover to other branches and the rest of the country is
if they pass an amendment to the Constitution
Serwer 14
(Adam Serwer is a reporter and analyst at MSNBC. Surveillance reform is up to Congress. http://www.msnbc.com/msnbc/nsa-reform-congressobama. Date Accessed- 07/17/15. Anshul Nanda)

Though billed by his advisers as a series of sweeping changes to surveillance policy, President Barack Obamas Friday speech on surveillance largely
leaves the big decisions in Congress hands with little guidance as to how they should proceed. I think it was an
important first step for him to recognize that there is a danger in the government collecting this information in the first place, says Michelle Richardson
of the American Civil Liberties Union. He didnt go as far as his own review group recommended. From now on, the National Security Agency will be
able to query only phone records it collects with permission from the foreign intelligence surveillance court, and the scope of its searches will be smaller.
Thats not an end to bulk collectionat least not yetits shrinking the size of the bulk. ANDREA MITCHELL REPORTS, 1/17/14, 2:06 PM ET Are the
NSA changes enough? Ultimately hes leaving the door open to continued bulk collection of information, both for U.S. persons and non-U.S. persons,
said Cynthia Wong of Human Rights Watch. The U.S. government hasnt made the case for why bulk collection is necessary. Obama has said the
government should no longer hold telephone records, but did not say whether communications companies should hold onto those records or whether they
should be held by a third party. The

president also left unsaid what would happen if Congress


fails to come up with a solution. For privacy advocates, mandating that private companies retain the information or
allowing a third party to do so is a distinction without a difference, and would amount to continued bulk collection by another name. But Geoffrey
Stone, a law professor at the University of Chicago who served as a member of the presidents surveillance policy review board, said thats exactly what
they recommended. I think the civil liberties groups are wrong on that: bulk collection can be a critical tool for keeping the nation safe, said Stone.
The trick here was to preserve that, while at the same time ensuring privacy and civil liberties are protected, and on that score he accepted our
recommendations which we think strikes the right balance. The report said the metadata program was not essential to fighting terrorism, but that it
could be useful in the future. Stone added that calling for an end to government possession of the metadata was the single most important thing that he
could have done today. Lawmakers in the presidents own party, including longtime critics of government surveillance policy, praised the presidents
speech. Democratic Senators Ron Wyden of Oregon, Mark Udall of Colorado, and Martin Heinrich of New Mexico called the speech a major milestone
in our longstanding efforts to reform the National Security Agencys bulk collection program. Vermont Democratic Senator Patrick Leahy, whose joint
surveillance reform proposal with Wisconsin Republican Rep. Jim Sensenbrenner has garnered major bipartisan support in the House, said Obama was
helping to restore the nations historic role as a beacon of individual freedoms, under the rule of law. Republican lawmakers were less effusive.
Michigan Republican Rep. Justin Amash, whose proposal to end the NSAs bulk collection program came within a handful of votes of passing the House
last summer, said Obama had refused to end

the unconstitutional violation of Americans privacy,


stop the suspicionless surveillance of our people, and close the era of secret
law, and he called on Congress to act. Congress was always going to be the
most important player here. Congress is going to have to decide whether to
reauthorize [Section 215] in its current form , whether to reauthorize it with changes, or whether to reauthorize
it at all, said Stephen Vladeck, a law professor at American University. In that regard, the biggest takeaway from the speech is how little of a thumb the
president is placing on that particular scale. Sensenbrenner, in his reaction to the speech, praised Obamas good intentions but emphasized that
Congress must make significant changesand not just to the metadata program, or but other significant surveillance authorities that the presidents speech
didnt address. The bottom line is real reform cannot be done by presidential fiat,
Sensenbrenner said in his statement. Democratic California Rep. Adam Schiff, who has also proposed legislation curtailing some of the NSAs powers,
said it was up to Congress to implement many of these changes, as well as others, and to ensure that they are durable across future Administrations.
Beyond the metadata program, other crucial surveillance matters remain in the aftermath of Obamas speech. The presidents surveillance policy review
board called for judicial oversight of national security letters, which the government can use to acquire business records without a warrant, but Obama
rejected that proposal. There was a lot of pushback from the FBI, and he accepted that pushback, Stone said. The FBI was resisting that very
strongly. While the presidents proposed changes to how the NSA accesses telephone metadata are significant, other kinds of records can be accessed
under Section 215 of the Patriot Act. Obama didnt address larger changes to the law, as opposed to the NSAs metadata program itself. Other privacy
advocates are concerned that the president failed to address the NSAs alleged weakening of encryption standards. Obama did leave the door open for

Congress to walk right through if they wanted to be more assertive , Richardson said.
It still leaves us with a lot of work to do.

Government surveillance Unpopular now


Gross, 2015
(Grant Gross covers technology and telecom policy in the U.S. government for the IDG News Service, and is based in Washington, D.C. Survey finds
most US residents want changes to Patriot Act surveillance. http://www.csoonline.com/article/2923484/privacy/survey-finds-most-us-residents-wantchanges-to-patriot-act-surveillance.html. Date Accessed-07/17/15. Anshul Nanda)

U.S. residents have major problems with government surveillance , and six in 10 want to
see the records collection provisions of the Patriot Act modified before Congress extends it, according to a survey commissioned by a civil rights group.
amtrak derailment Business continuity and disaster recovery planning: The basics Good business continuity plans will keep your company up and
running through interruptions of any kind: READ NOW Just 34 percent of survey respondents said they'd like to see the Patriot Act preserved as a way

Sixty percent
either strongly or somewhat agreed with a statement saying Congress should
modify the Patriot Act to "limit government surveillance and protect
Americans' privacy." The section of the Patriot Act that the National Security Agency has used to collect U.S. telephone records in
to keep the U.S. safe from terrorists, according to the survey commissioned by the American Civil Liberties Union.

bulk expires on June 1. Last week, the U.S. House of Representatives voted to limit the scope of the NSA's phone and business records collection inside
the U.S., but Republican leaders in the Senate are pushing to extend the surveillance law without any changes. Some civil liberties groups have criticized
the USA Freedom Act as too weak, with the ACLU calling it "modest" reform. MORE ON CSO: 6 products that will protect your privacy

Support for amending the Patriot Act cut across party lines and age groups.
Fifty-eight percent of Democrats, 59 percent of Republicans, and 71 percent
of independent voters expressed support for changes to the law. Changes in the Patriot
Act have strong support across the political spectrum, and politicians should take notice, said Neema Singh Guliani, the ACLU's legislative counsel.
There's a "large divide" in Congress about whether to modify, kill, or renew the Patriot Act without changes, Guliani said. The polling numbers show
"how disconnected members of Congress are from the feelings of a lot of the public," she said. Another 82 percent of the 1,001 likely voters in the
survey said they were extremely, very or somewhat concerned that the U.S. government is collecting "personal information" like phone records, emails
and bank statements. Section 215 of the Patriot Act allows the NSA to collect any U.S. business records relevant to an antiterrorism investigation. The
survey went beyond the current Patriot Act debate and asked questions about other surveillance programs, including the NSA's surveillance of overseas
email and other electronic communications. Tens of thousands of U.S. residents' communications are swept up in that program every year, according to
some lawmakers, and the FBI can search the content of those U.S. communications. Seventy-nine

percent of
respondents said they found an argument for more privacy protections very
or somewhat convincing because the government reportedly has access to
personal conversations between husbands and wives, doctors and patients
and pastors and congregants. "The government has no business interfering in these relationships," reads the statement that
most people found convincing. "There was real concern about what the government was accessing in your personal life," said Greg Strimple, pollster
with G Public Strategies, one of the firms that conducted the survey. Another 83 percent found it extremely, very or somewhat concerning that the
government has access to any of their personal communications without a judge's permission. The same number found it concerning that the government
uses information collected without a warrant for things other than stopping terrorist attacks. The U.S. Office of the Director of National Intelligence
didn't immediately respond to a request for a comment on the survey. The survey, conducted between April 6 and 12 by the Democratic Global Strategy
Group and the Republican-aligned G, has a margin of error of 3.1 percent.

2AC vs. Constitutionality CP


Fast track amendments i.e. the 1NC are ineffective in
solving for large scale impacts
Malcolm 2015
(Jeremy Malcolm works for the global NGO Consumers International, coordinating its program Consumers
in the Digital Age. Jeremy graduated with degrees in Law (with Honours) and Commerce in 1995 from
Australia's Murdoch University. Fast Track Amendments Are Too Little Too Late to Salvage the TPP
Agreement. https://www.eff.org/deeplinks/2015/05/fast-track-amendments-are-too-little-too-late-salvagetpp. Date Accessed- 07/17/15. Anshul Nanda)

As part of the congressional to-and-fro over the pending Fast Track bill , senators with
concerns about the process and substance of trade negotiations have been putting forward some proposed
amendments. None of these amendments would alter the substance of what Fast Track isa bill to
authorize the President to enter into binding trade agreements such as the Trans-Pacific Partnership (TPP)

As such, even if
they were to be adopted, the amendments do not address our most
fundamental concerns with the bill. Nevertheless, they do hone in on a couple of the most
without proper congressional oversight over these secretive, industry-led deals.

egregious problems with Fast Track and with the trade deals that it enables, including the TPP and Trans-

Perhaps the issue that has received the


most attention has been that of investor-state dispute settlement (ISDS); which
Atlantic Trade and Investment Partnership (TTIP).

gives foreign corporations a free pass to overturn or receive compensation for the effects of
democratically-enacted laws that negatively affect their business. Senators Elizabeth Warren and Heidi

have tabled an amendment that would


exclude access to the Fast Track procedure [PDF] for any trade agreement
that contains an ISDS clause. As things stand, that would include both the TPP and the TTIP,
Heitkamp, with support of 13 other senators,

which means that both of those agreements would have to come before Congress before the United States
signs themwhich in turn would probably defeat the agreements. A second amendment, from Sens.
Blumenthal, Brown, Baldwin, and Udall, addresses the lack of transparency of the agreement, and would
require all formal proposals advanced by the United States in negotiations for a trade agreement to be
published on the Web within five days of those proposals being shared with other parties to the
negotiations. This would bring the United States up to the same level as the European Commission, which

Sooner or
later, these sorts of reforms are inevitable, as pressure for the U.S. Trade
Representative to adopt them is echoing from all sides . Apart from its own senators,
has already begun publishing its own TTIP position papers and text proposals to the public.

multiple calls for the U.S. to improve the transparency of trade negotiations and to reject ISDS have issued
from law professors [PDF], economists, pro-trade think tanks, businesses and users. EFF has also proposed
that standards of transparency and participation in trade negotiations be incorporated into the next set of
commitments that the United States adopts under the Open Government Partnership. From Congress on

there has never been such a broad consensus that secretive trade
negotiations and ISDS processes must be condemned as illegitimate. Thus, we
down,

do not think it is a question of whether these will ultimately be rejected, but when. However, time is not on
our side. With the TPP negotiations widely tipped to conclude this year (if they conclude at all), the time to
take a stand against these undemocratic processes is now. And our best opportunity to do so is by not
merely amending Fast Track, but rejecting it, and the TPP along with it. Tell your representative to do that
now.

Solvency Deficit- passing amendments take longer and


dont usually have that bipartisan support that legislation
has
Vitka 14

(Sean Vitka is the federal policy manager at the Sunlight Foundation. He holds a J.D. from Boston College Law School. This
Meaningful Surveillance Reform Had Bipartisan Support. It Failed Anyway.
http://www.slate.com/blogs/future_tense/2014/12/10/massie_lofgren_surveillance_reform_amendment_fails_despite_bipartisan_supp
ort.html. Date Accessed- 07/17/15. Anshul Nanda)

At a time when Americans are frustrated over legislative gridlock, Congress

has outdone itself.


Congressional leadership is has killed the rarest of birds: legislative reform of
surveillance with overwhelming bipartisan support . At issue is an anti-surveillance amendment
that passed the House of Representatives in June by a vote of 293 to 123an overwhelming, veto-proof
majority. It was the most significant post-Snowden reform to pass either the House of Representatives or Senate. Now, after
ongoing secret leadership negotiations, its been switched out for a replicant that does littleif anythingbut restate the status quo.

The original Massie-Lofgren amendment would have instituted two of the


many reforms needed to rein in dragnet surveillance. First, it would have defunded warrantless
backdoor searches, which occur when the government searches already-harvested emails and other information. While the government
has to do some extra work to target Americans specifically, it sweeps up vast swaths of our information through bulk (and bulky)
surveillance anyway. When it searches that database for anyone communicating about, say, Osama Bin Laden, it returns the
Americans information, including email messages themselves, with the other, non-American results. The

intelligence
community can retain, examine, and make use of the information in a broad
variety of situations. As the Guardian reported in 2013, the Foreign Intelligence Surveillance Act Court allows the
government to [r]etain and make use of inadvertently acquired domestic communications if they contain usable intelligence,
information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information
relevant to cybersecurity. The amendment

would also have, via defunding, stopped the


government from forcing companies to insert security vulnerabilities that
make surveillance easierno matter who is doing it. The amendment was written as a defunding because it was
attached to the Defense Appropriations billgenerally considered a must-pass piece of legislation. Needless to say, activists were
thrilled when the amendment made it through the House. Its reforms are particularly important given that the USA FREEDOM Act,

another surveillance reform effort, failed to move through the Senate in


November amid concerns that it didnt do enough, sacrificed too much, and
did too much. These varied disagreements show how extraordinary this amendments strength and success wereand why
its so disturbing that secret dealing by leadership in Congress ripped the reform out of existence. Heres why the amendment died:
The so-called CRomnibus, a comprehensive bill to fund the government, supplants other spending legislation, including the Defense
Appropriations bill to which this amendment was attached. And the CRomnibus did not contain amendment. Reps. Jim Sensenbrenner,
Thomas Massie, and Zoe Lofgren put out a statement Wednesday in response to the exclusion from the CRomnibus, saying, Thus far,
Congress has failed to rein in the Administrations surveillance authorities and protect Americans civil liberties. Nevertheless, the
Massie-Sensenbrenner-Lofgren amendment established an important record in the full House of Representativesan overwhelming
majority will no longer tolerate the status quo. The three representatives also introduced a bill last week that would accomplish some
of what the amendment did, by prohibiting agencies from mandat[ing] companies change their products security for the purposes of
making surveillance easier (outside of the Communications Assistance for Law Enforcement Act). That would be a good step for all of
our privacy (and the tech industrys bottom line), but it doesnt include the ban on backdoor searches of Americans information, and
its unclear whether it applies to non-mandatory agreements to weaken security, which weve seen before. So why wouldnt such a
popular measure automatically be included? Omnibus funding bills are negotiated by leadership and tend to be later-stage efforts to
merge all of the various funding bills and their compromises, resulting in something both parties can whip up support for. In doing so,
they save time from being lost to deliberation about each individual deal and each individual amendment. It also ensures that poison
pills, or amendments that render a bipartisan bill unacceptable to a critical component of House members, dont make it onto the
floor. Majority and minority leadership have tremendous procedural powers in Congress, which enable them to effectively say, Its
our way or the highway. Democracy-be-damned, leadership doesnt want to enact any reform. So, even though both the MassieLofgren amendment and the 2015 Defense Appropriations Bill passed overwhelmingly through the House months ago, the Senate still
hasnt considered the measures, and right now it looks like this surveillance reform will never pass the finish line, even after winning
the race. All of this is reminiscent of Rep. Justin Amashs attempt to broadly defund bulk surveillance shortly after the Snowden leaks
began. That measure failed at the finish line, 205 votes to 217. That failure came thanks almost entirely to aggressive, united lobbying
by House Speaker John Boehner and House Minority Leader Nancy Pelosi. The Massie-Lofgren amendment also couldnt be added
to the CRomnibus because leaderships procedural power also allows them to agree to bring bills up for consideration under closed
rule, which prevents members from proposing amendments on the floor. Considering how contentious funding the government can be,
thats the expected path for the CRomnibus. The moral of the story? Surveillance reformers cant succeed even when they have
enough allies inside Congress to override the president, bolstered by allies on the outside from across the political spectrum. Not as
long as party leadership remains the same.