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CLS Kritik

Notes
The thesis of the Kritik is to expose the states law as a
fraud.
Even if the plan is good and has good advantages it can
solve for it doesnt matter because the plan was built
upon fraudulent law. Which is only going to replicate the
oppressive law of the government.
The Kritik is critiquing the biopower in the state/law that
the affirmative is rooted in and how its biopower is
destructive and spreads its biopolitical control through
things like the affirmative. Not the biopower of the
affirmative case itself.

Neg

1NC Criticism
The reforms of the 1ac function as a mask to hide the
constant surveillance the government engages in,
propping up a system that is designed to invade privacy
and oppress citizens. This both turns the case and makes
oppression inevitable.
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,

"Congress is irrelevant on mass surveillance. here's what matters instead.",


https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/,7/1/15,AW)
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 bill and the anti-reform bill passed by the House. * * * * * 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 reformso that he
can give a pretty speech telling the world that he heard and
responded to their concernsbut 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.

This surrender to the inevitability of state power makes


war and genocide inevitable.
Beres, professor of international law at Purdue University, 1994
(Louis Rene, Self-Determination, International Law and Survival on Planet
Earth, Arizona Journal of International and Comparative Law, Spring,
LexisNexis, //PK@GDI)
The State requires its members to be serviceable instruments, suppressing
every glimmer of creativity and imagination in the interest of a plastic
mediocrity. Even political liberty within particular States does nothing to encourage
opposition to war or to genocide in other States. Since "patriotic self-sacrifice" is demanded

even of "free" peoples, the expectations of inter-State competition may include war and the mass killing of

war and genocide are made possible by the


surrender of Self to the State. Given that the claims of international law 35 are rendered
other peoples. In the final analysis,

impotent by Realpolitik, this commitment to so-called power politics is itself an expression of control by the

Without such control, individuals could discover authentic bases of


personal value inside themselves, depriving the State of its capacity to make
corpses of others.
herd.

Constant criticism and trashing of the legal system is


necessary to expose traditional legal thought the
liberation and fate of humanity is at stake
Hutchinson and Monahan in 84

(Allan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL


STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36
Stan. L. Rev. 199, Stanford Law Review, January, 1984, DOA 7/01/15, AMB@GDI)
No matter how cogent the CLSers' expose of traditional legal thought may be, they must still suggest some alternative. To
retain credibility, sustain allegiance, and mobilize support, they must offer their own tangible vision of the "good society."
If their work is not to be consigned to the dustbin of history, they must seek to translate their theories into some

attainable dimensions of human experience: "To nurture the seeds of social progress [there must be] . . . some concrete

any theory that the Critical


scholars provide must be capable of accommodating both their doctrine of
social contingency and the contradiction between community and individual.
conception of the soil in which they are intended to grow." n123 Moreover,

The CLSers must actively work to fulfill their self-appointed roles as creative mediators between the ideal of freedom and

The challenge is a supreme one, and the long term


prospects of the CLS movement are not all that hangs in the balance: If the
the actuality of a free world.

CLSers are right about the contingency of history and the


insuperability of the fundamental contradiction, the very "fate of
humanity"

n124

is at stake.

We do not mean to suggest that the extensive CLS critiques of existing law

and legal theory are purely negative and without constructive potential. Criticism can be a very creative therapy;

criticism can liberate and enlighten. By "unfreezing" the world as it now

[*228]
appears, the Critical scholars hope to enable individuals to imagine and attain new possibilities for self-development and
meaningful social interaction. For the CLSers,

criticism is an antidote to the social paralysis


induced and sustained by the existing hierarchical nature of society. n125 By
reassuring people that things need not always be as they now are, the CLS movement can inspire the
confidence necessary to reject prevailing arrangements. And because the CLSers believe
that "the strength to live with the sober truth will become general [only when]
the causes of untruth are removed," n126 "trashing" is viewed as a valid form
of legal scholarship. Indeed, to some of the Critical scholars, it is the "most valid form": n127
That trashing may reveal truth seems significant if one's mission as a scholar
is to tell the truth. If telling the truth requires one to engage in
delegitimation, then that is what one ought to be doing

The point of

delegitimation is to expose possibilities more truly expressing reality, possibilities of fashioning a future that might at least
partially realize a substantive notion of justice instead of the abstract, rightsy, traditional, bourgeois notions of justice that
generate so much of the contradictory scholarship. One must start by knowing what is going on, by freeing oneself from
the mystified delusions embedded in our consciousness by the liberal legal world view. I am not defending a form of
scholarship that simply offers another affirmative presentation; rather, I am advocating negative, Critical activity as the
only path that might lead to a liberated future.The

task of a scholar is thus to liberate people


from their abstractions, to reduce abstractions to concrete historical settings,
and, by so doing, to expose as ideology what appears to be positive fact or
ethical norm.

1NC Shell Reject

Be careful with this shell when choosing a link. You need to have
a link that is rooted in biopower. Not just a CLS link.
Reforms only push the surveillance further into the
shroud secrecy- Get watered down to point of
Ineffectiveness
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,

"Congress is irrelevant on mass surveillance. here's what matters instead.",


https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/,7/1/15,AW)
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

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.
argue, as Marcy Wheeler has with characteristic insight, that

The Senate bill rejected last night was basically a middle ground between that original, good bill and the anti-reform bill
passed by the House. * * * * * 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

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
and Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while

reformso that he can give a pretty speech telling the world that
he heard and responded to their concernsbut 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.

The biopower rooted in the affirmative make genocide and


WMD inevitable
Dean, 04 (Mitchell professor of sociology at the University of Newcastle (Mitchell, Four Theses on the Powers of
Life and Death, Contretemps 5, http://sydney.edu.au/contretemps/5december2004/dean.pdf, December 2004, DOA
7/2/15, AMB@GDI)

The possibilities for the manipulation of the very biological processes life are
not
limited to what has been called the genetic age made possible by molecular biology and human genetics. There are
advances in organ transplantation and in our medical capacities to sustain life. All of these processes of the manipulation
of life contain what we like to think of as ethical questions. Notions of brain death and the ensuing futility of further
attempts to restore normal life functioning redefine problems of euthanasia. Various forms of prenatal testing and
screening of pregnant women redefine the conditions of acceptability of abortions. Other such ethical questions concern
the harvesting of organs for transplantation, or of the maintenance of the integrity and diversity of biological species in
the face of genetically modified crops and seeds, etc. The capacity to manipulate our mere biological life, rather than
simply to govern aspects of forms of life, implies a biopolitics that contests how and when we use these technologies and
for what purposes. It also implies a redrawing of the relations between life and death, and a new thanatopolitics, a new
politics of death. 17 Contretemps 5, December 2004 At some distance from these advances in biomedicine and

the issues of life and death that are played in various arenas of
international politics and human rights. These concern the effects of the
break-ups of nation-states from Yugoslavia and the Soviet Union to Indonesia, the
subsequent movement, detention, expulsion, processing, and mass death of refugees and
illegal immigrants, and the conditions and forms under which military action ,
peacekeeping and humanitarian intervention are acceptable. They concern the international
coalition against the polycentric network of terrorism. Detention camps are again becoming
a feature of modern liberal-democratic states. On the one hand, the twentieth
century gave us a name for the death of a whole people or race, genocide. On the other, it
biotechnology are

sought to promote the universal rights of individuals by virtue of their mere existence as human beings.

Bio-politics and thanato-politics are played out in war, in torture, and in


biological, chemical and atomic weapons of mass destruction as much as in

declarations of human rights and United Nations peacekeeping operations. The potentialities for the care and
the manipulation of the biological processes of life and of the powers of death have never appeared greater than they do

issues of life and death


related to our conceptions of politics and political community to the way in
which we think about states and societies, and their futures? Are the ideas of powers of life and
today. But how do we consider this problem as a political problem? How are

death peculiarly modern, or do they lie at a deeper strata?My concern in this paper is to consider issues of life and death
as political issues, to locate a bio-politics, a politics of life, and a thanato-politics, a politics of death, within our ways of
thinking about and imagining politics. I follow two recent theorists, Michel Foucault and Giorgio Agamben, who are
convinced that not only must we consider how we exercise powers of life and death in modern politics but how the very
notion of politics and political community are intimately related to such issues. At issue is the power we call sovereign
power, and its relation to this politics of life and death. I shall in turn consider four possible theses that can be derived
from the work of these thinkers and from other twentieth century critical and legal theorists.

The alt is to vote negative in favor of critique before


actionwe accept power is inevitable, yet understand it
can be productive or destructive but only powerful
analysis of domination can challenge discourse we are
faced with and work as a pre-requisite to action
Flyvbjerg and Richardson 2

(Aalborg University, Department of Development and Planning AND


Department of Town and Regional Planning (Bent Flyvbjerg and Tim Richardson, Planning and Foucault In Search of the
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, nkj, DOA 7/2/15, AMB@GDI)

Instead of side-stepping or seeking to remove the traces of power from


planning, an alternative approach accepts power as unavoidable,
recognising its all pervasive nature, and emphasising its productive
as well as destructive potential . Here, theory engages squarely with policy
made on a field of power struggles between different interests, where
knowledge and truth are contested, and the rationality of planning is exposed
as a focus of conflict. This is what Flyvbjerg has called realrationalitt, or real-life rationality (Flyvbjerg
1996), where the focus shifts from what should be done to what is actually done. This analysis embraces the idea that
rationality is penetrated by power, and the dynamic between the two is critical in understanding what policy is about. It
therefore becomes meaningless, or misleading - for politicians, administrators and researchers alike - to operate with a
concept of rationality in which power is absent (Flyvbjerg 1998, 164-65). Both Foucault and Habermas are political
thinkers. Habermass thinking is well developed as concerns political ideals, but weak in its understanding of actual
political processes. Foucaults thinking, conversely, is weak with reference to generalised ideals--Foucault is a declared
opponent of ideals, understood as definitive answers to Kants question, What ought I to do? or Lenins What is to be
done?--but his work reflects a sophisticated understanding of Realpolitik. Both Foucault and Habermas agree that in

politics one must side with reason. Referring to Habermas and similar thinkers, however,
Foucault (1980b) warns that to respect rationalism as an ideal should never
constitute a blackmail to prevent the analysis of the rationalities really at
work (Rajchman 1988, 170).

Habermass main complaint about Foucault is what Habermas sees as Foucaults relativism. Thus Habermas (1987, 276)
harshly dismisses Foucaults genealogical historiographies as relativistic, cryptonormative illusory science. Such critique
for relativism is correct, if by relativistic we mean unfounded in norms that can be rationally and universally grounded .

Foucaults norms are not foundationalist like Habermass: they are expressed in a desire to
challenge every abuse of power, whoever the author, whoever the victims
(Miller 1993, 316) and in this way to give new impetus, as far and wide as possible,
to the undefined work of freedom (Foucault 1984a, 46). Foucault here is the Nietzschean democrat,
for whom any form of government - liberal or totalitarian - must be subjected to
analysis and critique based on a will not to be dominated, voicing concerns in
public and withholding consent about anything that appears to be
unacceptable. Such norms cannot be given a universal grounding independent
of those people and that context, according to Foucault. Nor would such grounding be
desirable, since it would entail an ethical uniformity with the kind of utopiantotalitarian implications that Foucault would warn against in any context, be it
that of Marx, Rousseau or Habermas: The search for a form of morality
acceptable by everyone in the sense that everyone would have to
submit to it, seems catastrophic to me
interpretation

(Foucault 1984c, 37 quoted in Dreyfus and Rabinow 1986, 119). In a Foucauldian

, such a morality would endanger freedom, not empower it .

Instead,

Foucault focuses on the analysis of evils and shows restraint in matters of commitment to ideas and systems of thought
about what is good for man, given the historical experience that few things have produced more suffering among humans
than strong commitments to implementing utopian visions of the good.

the socially and historically conditioned context, and not fictive


universals, constitutes the most effective bulwark against relativism and
nihilism, and the best basis for action. Our sociality and history, according to
Foucault, is the only foundation we have, the only solid ground under our
feet. And this socio-historical foundation is fully adequate.
Foucault, perhaps more than any recent philosopher, reminded us of the crucial importance of
power in the shaping and control of discourses, the production of knowledge,
and the social construction of spaces. His analysis of modern power has often been read by planning theorists
For Foucault

as negative institutionalised oppression, expressed most chillingly in his analysis of the disciplinary regime of the prison in Discipline and
Punish (Foucault 1979). However, it is

Foucaults explanation of power as productive

and local, rather than oppressive and hierarchical, that suggests


real opportunities for agency and change

(McNay 1994).

Whilst Foucault saw

discourse as a medium which transmits and produces power, he points out


that it is also a hindrance, a stumbling-block, a point of resistance and a
starting point for an opposing strategy. So, at the same time as discourse
reinforces power, it also undermines and exposes it, renders it fragile and
makes it possible to thwart it (Foucault 1990, 101). Foucault rarely separated
knowledge from power, and the idea of power/knowledge was of crucial importance: we should abandon
a whole tradition that allows us to imagine that knowledge can exist only
where the power relations are suspended and that knowledge can develop
only outside its injunctions, its demands and its interests ... we should abandon the
belief that power makes mad and that, by the same token, the renunciation
of power is one of the conditions of knowledge. We should admit rather that
power produced knowledge .. that power and knowledge directly imply one
another; that there is no power relation without the correlative constitution of
a field of knowledge ... (Foucault 1979, 27). For Foucault, then, rationality was contingent,
shaped by power relations, rather than context-free and objective.
According to Foucault, Habermass (undated, 8) authorisation of power by law is inadequate (emphasis deleted). [The juridical system] is
utterly incongruous with the new methods of power, says Foucault (1980a, 89), methods that are employed on all levels and in forms that go
beyond the state and its apparatus... Our historical gradient carries us further and further away from a reign of law.

The law,

institutions - or policies and plans - provide no guarantee of


freedom, equality or democracy. Not even entire institutional
systems , according to Foucault, can ensure freedom , even though they are
established with that purpose. Nor is freedom likely to be achieved by
imposing abstract theoretical systems or correct thinking. On the contrary, history has
demonstrated--says Foucault--horrifying examples that it is precisely those social systems which have turned freedom into
theoretical formulas and treated practice as social engineering, i.e., as an epistemically derived techne, that become most
repressive. [People] reproach me for not presenting an overall theory, says Foucault (1984b, 375-6), I am attempting, to the contrary apart
from any totalisation - which would be at once abstract and limiting - to open up problems that are as concrete and general as possible.

What Foucault calls his political task is to criticise the working of institutions which appear to be both neutral and
independent; to criticise them in such a manner that the political violence which has always exercised itself obscurely
through them will be unmasked, so that one can fight them (Chomsky and Foucault 1974, 171).
Foucauldian interpretation, would be seen as

This is

what, in a

an effective approach to institutional change,

including change in the institutions of civil society. With direct reference to Habermas,
Foucault (1988, 18) adds: The problem is not of trying to dissolve [relations of power] in
the utopia of a perfectly transparent communication, but to give...the rules of
law, the techniques of management, and also the ethics...which would allow
these games of power to be played with a minimum of domination. Here Foucault
overestimates his differences with Habermas, for Habermas also believes that the ideal speech situation cannot be established as a
conventional reality in actual communication. Both thinkers see the regulation of actual relations of dominance as crucial, but whereas
Habermas approaches regulation from a universalistic theory of discourse, Foucault seeks out a genealogical understanding of actual power

For
Foucault praxis and freedom are derived not from universals or theories.
Freedom is a practice , and its ideal is not a utopian absence of power.
relations in specific contexts. Foucault is thus oriented towards phronesis, whereas Habermass orientation is towards episteme.

Resistance and struggle, in contrast to consensus, is for Foucault the most


solid basis for the practice of freedom. Whereas Habermas emphasises procedural macro politics,
Foucault stresses substantive micro politics, though with the important shared feature that neither
Foucault nor Habermas venture to define the actual content of political action. This is defined by
the participants. Thus, both Habermas and Foucault are bottom-up thinkers as concerns the content of politics, but where
Habermas thinks in a top-down moralist fashion as regards procedural rationality having sketched out the procedures to be followed Foucault is a bottom-up thinker as regards both process and content. In this interpretation, Habermas would want to tell
individuals and groups how to go about their affairs as regards procedure for discourse. He would not want, however, to say anything about

Foucault would prescribe neither process nor outcome; he


would only recommend a focus on conflict and power relations as the most
the outcome of this procedure.

effective point of departure for the fight against domination.

It is because of his double


bottom-up thinking that Foucault has been described as non-action oriented. Foucault (1981) says about such criticism, in a manner that
would be pertinent to those who work in the institutional setting of planning:

Its true that certain people, such as those who work in the institutional setting of the prison...are not likely to find advice
or instructions in my books to tell them what is to be done. But my project is precisely to bring it about that they no
longer know what to do, so that the acts, gestures, discourses that up until then had seemed to go without saying
become problematic, difficult, dangerous (Miller 1993, 235). The depiction of Foucault as non-action oriented is correct to the extent
that Foucault hesitates to give directives for action, and he directly distances himself from the kinds of universal What is to be done?

Foucault believes that


solutions of this type are themselves part of the problem. Seeing
Foucault as non-action oriented would be misleading , however, insofar as Foucaults
genealogical studies are carried out only in order to show how things can be
done differently to separate out, from the contingency that has made us
what we are, the possibility of no longer being, doing, or thinking what we
are, do, or think (Foucault 1984a, 45-7). Thus Foucault was openly pleased when during a revolt in some of the
French prisons the prisoners in their cells read his Discipline and Punish. They shouted the text to other prisoners ,
formulas which characterise procedure in Habermass communicative rationality.

Foucault told an interviewer. I know its pretentious to say, Foucault said, but thats a proof of a trutha political and actual truth--

which started after the book was written (Dillon 1980, 5). This

is the type of situated action Foucault


would endorse, and as a genealogist, Foucault saw himself as highly action oriented, as a dealer
in instruments, a recipe maker, an indicator of objectives, a cartographer, a
sketcher of plans, a gunsmith (Ezine 1985, 14).
The establishment of a concrete genealogy opens possibilities for action by describing the genesis of a given situation and
showing that this particular genesis is not connected to absolute historical necessity . Foucaults genealogical studies of prisons,
hospitals and sexuality demonstrate that social practices may always take an alternative form, even where there is no basis for voluntarism or
idealism. Combined with Foucaults focus on domination, it is easy to understand why this insight has been embraced by feminists and
minority groups. Elaborating genealogies of, for instance, gender and race leads to an understanding of how relations of domination between
women and men, and between different peoples, can be changed (McNay 1992, Bordo and Jaggar 1990, Fraser 1989, Benhabib and Cornell

. Understanding how power


works is the first prerequisite for action, because action is the exercise of
power. And such an understanding can best be achieved by focusing on the
concrete. Foucault can help us with a materialist understanding of Realpolitik and Realrationalitt, and how these might be changed in
1987). The value of Foucaults approach is his emphasis on the dynamics of power

a specific context. The problem with Foucault is that because understanding and action have their points of departure in the particular and the
local, we may come to overlook more generalised conditions concerning, for example, institutions, constitutions and structural issues.
In sum, Foucault and Habermas agree that rationalisation and the misuse of power are among the most important problems of our time. They
disagree as to how one can best understand and act in relation to these problems. From the perspective of the history of philosophy and
political theory, the difference between Foucault and Habermas lies in the fact that Foucault works within a particularistic and contextualist
tradition, with roots in Thucydides via Machiavelli to Nietzsche. Foucault is one of the more important twentieth century exponents of this
tradition. Habermas is the most prominent living exponent of a universalistic and theorising tradition derived from Socrates and Plato,
proceeding over Kant. In power terms, we are speaking of strategic versus constitution thinking, about struggle versus control, conflict
versus consensus.

Links

Link: Reform Legislation


Reforms only push the surveillance further into the
shroud secrecy- Get watered down to point of
Ineffectiveness
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,
"Congress is irrelevant on mass surveillance. here's what matters instead.",
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/,7/1/15,AW)
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 bill and the anti-reform bill passed by the House. * * * * * 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 reformso that he
can give a pretty speech telling the world that he heard and
responded to their concernsbut 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.

Link: Generic Courts


Courts are ineffective in curtailing Surveillance- Cooption
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,
"Congress is irrelevant on mass surveillance. here's what matters instead.",
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/,7/1/15,AW)
For a variety of reasons, 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.

Link: FISC
FISC coopted by agency pressure- doomed to fail
Setty, Faculty at Western New England University School of
Law,15 (Sudah, 2015, Western New England University School of Law,

Surveillance, Secrecy, and the Search for Meaningful Accountability,


http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?
article=1305&context=facschol, 7/2/15, AW)
The FISC differs from Article III courts in numerous ways : Its statutory scope
is limited to matters of foreign intelligence gathering; its judges are appointed in
the sole discretion of the Chief Justice of the United States Supreme Court; its
proceedings are secret; its opinions are often secret or are published in heavily redacted form;
and its process is not adversarial as only government lawyers make
arguments defending the legality of the surveillance being contemplated. 70 Many of
these differences bring into doubt the legitimacy of the court , its ability to
afford adequate due process regarding civil liberties concerns, and its ability to
uphold the rule of law in terms of government accountability. Compounding this
legitimacy deficit is the FISC's own loosening of the relevance standard
under Section 215 of the PATRIOT Act such that the FISC has found that bulk data
collection without any particularized threat or connection to terrorism is
legally permissible. 71 Historically, the FISC has rejected NSA surveillance
applications too infrequently to be considered a substantial check on
government overreach as an ex ante matter. 72 As an ex post matter, it is unclear to what extent
the FISC's work guarantees any meaningful accountability over NSA surveillance activities. On the one

because the FISC lacks an adversarial process and has no independent


investigatory authority, the FISC only addresses ex post compliance problems when the
government itself brings the problem to the courts attention. 73 As such, FISC judges rely on
the statements of the government as to the government's own behavior and
lack the authority to investigate the veracity of the government's
representations. 74 For example, in 2011, the FISC found one aspect of the surveillance program
hand,

brought to its attention months after the program went into effece5 ~to be unconstitutional. 76
Additionally, in one declassified opinion, the FISC critiques the NSA's sloppy over-collection of metadata of
U.S. communications, and questions the efficacy of bulk data collection as a national security measure. 7
7 At one point, the FISC sanctioned the NSA for overreaching in saving all metadata and running daily
metadata against an "alert list" of approximately 17,800 phone numbers, only 10% of which had met
FISC's legal standard for reasonable suspicion. 78 On such occasions, the administration has modified
problematic aspects of the surveillance and continued forward without further impediment by the FISC

FISA Court is just rubberstamp for the NSA- Presidential


and legislative Coercion
Greenwald, Constitutional Lawyer, 13(Glenn, 6/18/13, The Guardian,
"FISA court oversight: a look inside a secret and empty process",
www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversightprocess-secrecy, 7/2/15, AW)
The GOP chairman of the House Intelligence Committee, Mike Rogers, told
CNN that the NSA "is not listening to Americans' phone calls . If it did, it is
illegal.

It is breaking the law." Talking points issued by the House GOP in defense of

the NSA

claimed that surveillance law only "allows the Government to acquire foreign
intelligence information concerning non-U.S.-persons (foreign, non-Americans) located outside
the United States." The NSA's media defenders have similarly stressed that the NSA's
eavesdropping and internet snooping requires warrants when it involves Americans. The
Washington Post's Charles Lane told his readers: " the government needs a court-issued
warrant, based on probable cause, to listen in on phone calls." The Post's David Ignatius told
Post readers that NSA internet surveillance "is overseen by judges who sit on the Foreign Intelligence
Surveillance Court" and is "lawful and controlled". Tom Friedman told New York Times readers that before
NSA analysts can invade the content of calls and emails, they "have to go to a judge to get a warrant to
actually look at the content under guidelines set by Congress." This has become the most common theme

But these claim are highly misleading, and in some


cases outright false . Top secret documents obtained by the Guardian illustrate what
the Fisa court actually does and does not do when purporting to engage in
"oversight" over the NSA's domestic spying. That process lacks many of the safeguards
that Obama, the House GOP, and various media defenders of the NSA are trying to lead the
public to believe exist. No individualized warrants required under 2008 Fisa
law Many of the reasons these claims are so misleading is demonstrated by the law itself.
for those defending NSA surveillance.

When the original Fisa law was enacted in 1978, its primary purpose was to ensure that the US
government would be barred from ever monitoring the electronic communications of Americans without
first obtaining an individualized warrant from the Fisa court, which required evidence showing "probable
cause" that the person to be surveilled was an agent of a foreign power or terrorist organization. That was

Bush, in late 2001, violated, when he secretly authorized


eavesdropping on the international calls of Americans without any warrants
from that court. Rather than act to punish Bush for those actions, the Congress, on
a bipartisan basis in 2008, enacted a new, highly diluted Fisa law the Fisa Amendments Act
of 2008 (FAA) that legalized much of the Bush warrantless NSA program. Under the
FAA, which was just renewed last December for another five years, no warrants are needed for
the NSA to eavesdrop on a wide array of calls, emails and online chats
involving US citizens. Individualized warrants are required only when the target of the surveillance
the law which George

is a US person or the call is entirely domestic. But even under the law, no individualized warrant is needed
to listen in on the calls or read the emails of Americans when they communicate with a foreign national
whom the NSA has targeted for surveillance. As a result, under the FAA, the NSA frequently eavesdrops on
Americans' calls and reads their emails without any individualized warrants exactly that which NSA
defenders, including Obama, are trying to make Americans believe does not take place. As Yale Law
professor Jack Balkin explained back in 2009: "The FISA Amendments

Act of 2008, effectively gives


the President - now President Obama - the authority to run surveillance
programs similar in effect to the warrantless surveillance program [secretly
implemented by George Bush in late 2001]. That is because New Fisa no longer requires individualized
targets in all surveillance programs. Some programs may be 'vacuum cleaner' programs that listen to a
great many different calls (and read a great many e-mails) without any requirement of a warrant directed
at a particular person as long as no US person is directly targeted as the object of the program. . . . "New
Fisa authorizes the creation of surveillance programs directed against foreign persons (or rather, against
persons believed to be outside the United States) which require no individualized suspicion of anyone
being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone
calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda." As the FAA
was being enacted in mid-2008, Professor Balkin explained that "Congress is now giving the President the
authority to do much of what he was probably doing (illegally) before".

Link: Congress
Congress is ineffective has no real power to stop the
surveillance state- clapper investigation proves
Setty, Faculty at Western New England University School of
Law,15 (Sudah, 2015, Western New England University School of Law,
Surveillance, Secrecy, and the Search for Meaningful Accountability,
http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?
article=1305&context=facschol, 7/2/15, AW)
The extent of congressional knowledge regarding the NSA Metadata Program
is not fully known to the public and has been the subject of significant
debate. Nonetheless, even assuming that Congress was sufficiently informed
as to the potential reach of the PATRIOT Act with regard to surveillance 5 9
and, therefore, that the statutory authority for the bulk data collection and
storage was sound, the ability of Congress to effect significant and
meaningful ex post oversight appears to be severely limited. Historically,
congressional hearings and investigations have been a powerful tool to rein in
executive branch overreaching. 60 However, it seems that the extreme
secrecy surrounding the NSA surveillance programs undermined the efficacy
of these oversight powers, to the point that they may have been reduced to
an ersatz form of accountability. One prominent example stems from a
Senate oversight hearing on March 12, 2013, in which Senator Ron Wyden
specifically asked Director of National Intelligence James Clapper if the NSA
was systematically gathering information on the communications of millions
of Americans. 61 Clapper denied this, yet subsequent revelations confirmed
that the broad scope of the data collection included metadata for telephonic
communications, as well as content data for emails, texts, and other such
writings. 62 After public discussion of the discrepancy in his testimony,
Clapper commented that he gave the "least most untruthful"
answer possible under the circumstances. 63 Senator Wyden expressed
disappointment and frustration that even while under oath at an oversight
hearing, Clapper misled the Senate. lack of ability to discuss publicly
whatever knowledge is shared with Congress. 66 In fact, it remains unclear
whether senators, including Dianne Feinstein, Chair of the Senate Intelligence
Committee, knew of the lapses in NSA procedure until after such information
was leaked to news sources. 67 Further revelations indicate that
administration statements made to Congress even after the Snowden
disclosures were not entirely accurate. 68 These examples are not
determinative, but taken together, they raise significant doubt to the extent
of accurate information regarding surveillance programs being made
available to congressional oversight committees, and whether the oversight
committees can function as effective accountability measures 69 without the
benefit of illegally leaked information such as the Snowden disclosures.

Link: Private Companies


Private companies put on a guise of Privacy Protection
but then give customer information to the government
without reservations.
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,
"Congress is irrelevant on mass surveillance. here's what matters instead.",
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/,7/2/15,AW)
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. Those
limitations are going to come fromare now coming from very different
places: 1) Individuals refusing to use internet services that compromise their
privacy. The FBI and other U.S. government agencies, as well as the U.K.
Government, are apoplectic over new products from Google and Apple that
are embedded with strong encryption, precisely because they know that such
protections, while far from perfect, are serious impediments to their power of
mass surveillance. To make this observation does not mean, as some deeply
confused people try to suggest, that one believes that Silicon Valley
companies care in the slightest about peoples privacy rights and civil
liberties. As much of the Snowden reporting has proven, these companies
dont care about any of that. Just as the telecoms have been for years, U.S.
tech companies were more than happy to eagerly cooperate with the NSA in
violating their users privacy en masse when they could do so in the dark. But
its precisely because they cant do it in the dark any more that things are
changing, and significantly. Thats not because these tech companies
suddenly discovered their belief in the value of privacy. They havent, and it
doesnt take any special insight or brave radicalism to recognize that. Thats
obvious. Instead, these changes are taking place because these
companies are petrified that the perception of their collaboration
with the NSA will harm their future profits , by making them vulnerable
to appeals from competing German, Korean, and Brazilian social media
companies that people shouldnt use Facebook or Google because they will
hand over that data to the NSA. Thatfear of damage to future business
prospectsis what is motivating these companies to at least try to convince
users of their commitment to privacy. And the more users refuse to use the
services of Silicon Valley companies that compromise their privacyand,
conversely, resolve to use only truly pro-privacy companies insteadthe
stronger that pressure will become. Those who like to claim that nothing has
changed from the NSA revelations simply ignore the key facts, including the
serious harm to the U.S. tech sector from these disclosures, driven by the
newfound knowledge that U.S. companies are complicit in mass surveillance.
Obviously, tech companies dont care at all about privacy, but they care a lot

about that. Just yesterday, the messaging service WhatsApp announced that
it will start bringing end-to-end encryption to its 600 million users, which
would be the largest implementation of end-to-end encryption ever. None
of this is a silver bullet: the NSA will work hard to circumvent this technology
and tech companies are hardly trustworthy, being notoriously close to the
U.S. government and often co-opted themselves. But as more individuals
demand more privacy protection, the incentives are strong. As The Verge
notes about WhatsApps new encryption scheme, end-to-end means that,
unlike messages encrypted by Gmail or Facebook Chat, WhatsApp wont be
able to decrypt the messages itself, even if the company is compelled by law
enforcement.

Link: War on nouns/Rhetoric of War


*This specifically talks about the transition of the war on drugs to terror and
how secret it was*

The Government uses the rhetoric of war to legitimize


mass surveillance
Lafrance, 15 (Adrienne, 4/8/15, The Atlantic, "Same Surveillance State,

Different War", www.theatlantic.com/technology/archive/2015/04/samesurveillance-state-different-war/389988/, 7/3/15,AW)


It's been a long 22 months since the first of thousands of classified
government documents became public in what has turned into a drumbeat of
astonishing revelations about the scope of mass surveillance carried out by
the United States government. On Tuesday evening, USA Today detailed a
massive surveillance operation, run by the intelligence arm of the Drug
Enforcement Agency, that began in 1992. The DEA revealed the existence of
the now-discontinued program back in January, and USA Today's account
offers remarkable details about how it worked. The program, which enabled
the United States to secretly track billions of phone calls made by millions of
U.S. citizens over a period of decades, was a blueprint for the NSA
surveillance that would come after it, with similarities too close to be
coincidental, according to USA Today. Officials didn't collect the content of
Americans' calls, the newspaper reports, but it gathered extensive data that
enabled agents to stitch together detailed communications records and "link
them to troves of other police and intelligence data" from the FBI, Customs,
and other agencies. The latest details are striking, not only because they
reveal new depths of secret government surveillance, but also for how they
reveal a continuum from the pre-9/11 War on Drugs to the post-9/11 War on
Terror. That connection emerged almost immediately after the terrorist
attacksand it wasn't just rhetorical, it was literal: "Since the start of their
bombing campaign [in Afghanistan]," The New York Times wrote in November
2001, "allied officials have tried to link the new war on terror to the old war
on drugs." Taxes on poppy farmers who supplied Afghanistan's opium trade
helped finance terrorist groups, the newspaper reported at the time. Since
then, both wars have become political shorthand. Both are brutally expensive
and arguably un-winnable. And in both cases, use of the word "war" is a
deliberate and calculated language choice. Americans are taught that a war
is something an entire nation must fight, and something that requires
sacrifice for the greater good. Considered in the context of government
surveillance, both "wars" are euphemisms for a specific kind of government
rationalization. The government has repeatedly tried to justify its spying
activities on national security grounds, but it turns out it was doing much the
same thing for years in aid of ordinary criminal investigations," said the ACLU
attorney Patrick Toomey in an email via a spokesperson Tuesday night.
"These new revelations are a reminder of how little we still know about the
government's surveillance activitiesincluding dragnet programs that
operated for decades in secret." We might actually be able to pinpoint the
momentsometime in 2002when the rhetoric switched from "drugs" to
"terror" as a reason officials gave to citizens who might question their
actions. Take a look at Google's count of published incidences of the phrase

"war on drugs" versus published incidences of the phrase "war on terror" over
a 50-year period.

Link: War on Terror/Terrorism


The threat construction of terrorism justifies the
strengthening of the surveillance
Balkin, Faculty at Yale Law School, 08 (Jack, 1/1/08, Yale Law School,

"The Constitution in the national surveillance state",


digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, 7/3/15, AW)
In the National Surveillance State, the government uses surveillance, data
collection, collation, and analysis to identify problems, to head off potential threats, to
govern populations, and to deliver valuable social services . The National
Surveillance State is a special case of the Information State-a state that tries to identify and
solve problems of governance through the collection, collation, analysis, and production of information.

The war on terror may be the most familiar justification for the rise of the
National Surveillance State,14 but it is hardly the sole or even the most
important cause. Government's increasing use of surveillance and data
mining is a predictable result of accelerating developments in information
technology. 15 As technologies that let us discover and analyze what is happening in the world
become ever more powerful, both governments and private parties will seek to use them. 16 The
question is not whether we will have a surveillance state in the years to
come, but what sort of surveillance state we will have. Will we have a government

without sufficient controls over public and private surveillance, or will we have a government that protects
individual dignity and conforms both public and private surveillance to the rule of law?

Link: The State


The State will always surveil the populace, it is a fixture of
governance
Balkin, Faculty at Yale Law School, 08 (Jack, 1/1/08, Yale Law School,

"The Constitution in the national surveillance state",


digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, 7/3/15, AW)
The National Surveillance State is a way of governing. It is neither the product
of emergency nor the product of war. War and emergency are temporary
conditions. The National Surveillance State is a permanent feature of
governance, and will become as ubiquitous in time as the familiar devices
of the regulatory and welfare states. 17 Governments will use surveillance,
data collection, and data mining technologies not only to keep Americans
safe from terrorist attacks but also to prevent ordinary crime and deliver
social services.' 8 In fact, even today, providing basic social services-like
welfare benefits-and protecting key rights-like rights against employment
discrimination-are difficult, if not impossible, without extensive data collection
and analysis. 19 Moreover, much of the surveillance in the National
Surveillance State will be conducted and analyzed by private parties. 20 The
increased demand for-and the in-creased use of-public and private
surveillance cannot be explained or justified solely in terms of war or
emergency. 21

Link: Oversight
Oversight fails, just appease the people with no real
change
Greenwald, Constitutional Lawyer, 14 (Glenn, 1/17/14, The Guardian,

"Obama's NSA 'reforms' are little more than a PR attempt to mollify the
public", www.theguardian.com/commentisfree/2014/jan/17/obama-nsareforms-bulk-surveillance-remains, 7/3/15, AW)
In response to political scandal and public outrage , official Washington
repeatedly uses the same well-worn tactic. It is the one that has been hauled out over
decades in response to many of America's most significant political scandals . Predictably, it is the
same one that shaped President Obama's much-heralded Friday speech to
announce his proposals for "reforming" the National Security Agency in the
wake of seven months of intense worldwide controversy . The crux of this
tactic is that US political leaders pretend to validate and even channel public anger
by acknowledging that there are "serious questions that have been raised ".
They vow changes to fix the system and ensure these problems never
happen again. And they then set out, with their actions, to do exactly the opposite: to
make the system prettier and more politically palatable with empty, cosmetic
"reforms" so as to placate public anger while leaving the system
fundamentally unchanged, even more immune than before to serious
challenge. This scam has been so frequently used that it is now easily recognizable. In the mid-1970s,
the Senate uncovered surveillance abuses that had been ongoing for decades, generating widespread

the US Congress enacted a new law (Fisa) which featured


two primary "safeguards": a requirement of judicial review for any domestic
surveillance, and newly created committees to ensure legal compliance by
the intelligence community. But the new court was designed to ensure that all
of the government's requests were approved: it met in secret, only the
government's lawyers could attend, it was staffed with the most progovernment judges, and it was even housed in the executive branch. As
planned, the court over the next 30 years virtually never said no to
public fury. In response,

the government . Identically, the most devoted and slavish loyalists of the National Security State
were repeatedly installed as the committee's heads, currently in the form of NSA cheerleaders Democrat
Dianne Feinstein in the Senate and Republican Mike Rogers in the House. As the New Yorker's Ryan Lizza
put it in a December 2013 article on the joke of Congressional oversight, the committees "more often treat
senior intelligence officials like matinee idols". As a result, the committees, ostensibly intended to serve
an overseer function, have far more often acted as the NSA's in-house PR firm. The heralded mid-1970s
reforms did more to make Americans believe there was reform than actually providing any,

shielding it from real reforms.

thus

Link: The Media


*This article references an interview with Glenn Greenwald a constitutional
lawyer for warrant debate purposes as an FYI*

The media will always support the surveillance by the


state, in order to appease their partisan viewership
Logiurato, 13 (Brett, Business Insider,"Glenn Greenwald: 'Slavishly Partisan'

Democrats in the media are cheerleading polices they used to hate",


www.businessinsider.com/glenn-greenwald-nsa-scandal-media-spyingsurveillance-leak-2013-6, 7/3/15,AW)
New revelations about the National Security Agency's surveillance programs
have divided members of Congress and of the media apart from the normal
partisan split. One person who isn't surprised about the lack of Democrats
and liberals in the media challenging the Obama administration, however, is
the man who has broken multiple stories based off leaks from former NSA
contractor Edward Snowden Guardian journalist Glenn Greenwald.
Greenwald told Business Insider late Tuesday night that he thinks some leftleaning members of the media such as Time magazine's Joe Klein and The
New Yorker's Jeffrey Toobin have shifted stances on surveillance and civil
liberties for "principle-free, hackish, and opportunistic" reasons. "I'm not
surprised," Greenwald said in an email. "I've been amazed and disappointed
for a long time at how the most slavishly partisan media Democrats who
pretended to care so much about these issues when doing so helped
undermine George Bush are now the loudest apologists and cheerleaders for
these very same policies. "If they started a club called Liberal Pundits to
Defend the National Security State, no auditorium in the country would be
large enough to accommodate them. "To call them principle-free, hackish,
and opportunistic is to be overly generous." Greenwald has a long history of
reporting on issues relating to privacy and surveillance, and he has been
especially critical of both the Bush and Obama administrations. Last week, he
said the U.S. wants to "destroy privacy and anonymity" around the world. The
depth of the unusual media divide on the NSA story has been illuminated
most clearly with Greenwald, who was a constant critic of the Bush
administration. This time, liberal critics have heaped more scrutiny on him.
MSNBC host Lawrence O'Donnell challenged Greenwald on Monday night. And
before that, "Morning Joe" co-host Mika Brzezinski and Greenwald got into a
testy exchange over the legality of the Obama administration's actions. At
one point, Greenwald accused her of reading "White House talking points.

Link: The 4th Amendment


*if you dont know the 4th amendment it is the part of the constitution that
protects Americans from unlawful search and seizure as well as due process if
I am not mistaken*

The 4th Amendment does nothing to protect americansgutted by courts


Balkin, Faculty at Yale Law School, 08 (Jack, 1/1/08, Yale Law School,
"The Constitution in the national surveillance state",
digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, 7/3/15, AW)

You might think the Fourth Amendment 70 would be the most important
constitutional provision for controlling and preventing abuses of power in the
National Surveillance State. But courts have largely debilitated the Fourth
Amendment to meet the demands of the Regulatory and Welfare States, the
National Security State, and the War on Drugs. 71 Much government
collection and use of personal data now falls outside the Fourth Amendment's
protection-at least as the courts currently construe it. The Supreme Court has
held that there is no expectation of privacy in business records and
information that people give to third parties like banks and other businesses;
72 in the digital age this accounts for a vast amount of personal information.
Most e-mail messages are copied onto privately held servers, making their
protection limited if not nonexistent. 73 Courts have also held that the Fourth
Amendment poses few limits on foreign intelligence surveillance, which is
largely regulated by FISA; 74 as a result, the executive branch has
increasingly justified domestic surveillance by asserting that it is a
permissible byproduct of foreign intelligence gathering.7 5 Currently,
governments are free to place cameras in public places like streets and parks
because there is no expectation of privacy there. 76 Governments can also
collect information that people leave out in the open, like their presence on a
public street; or abandon, like fingerprints, hair, or skin cells. 77 Moreover,
because the Fourth Amendment focuses on searches and seizures, it places
few limits on collation and analysis, including data mining. 78 The Fourth
Amendment does not require governments to discard any information they
have already lawfully collected. Digital files, once assembled, can be copied
and augmented with new information indefinitely for later analysis and
pattern matching. Finally, whatever constitutional limits might restrain
government do not apply to private parties, who can freely collect, collate,
and sell personal information back to the government free of Fourth
Amendment restrictions, effectively allowing an end-run around the
Constitution.

Impacts

Impact: Turns Case


Legalism and the current judicial system kills political
reform and civil liberties interests
Schlanger, professor of law at University of Michigan, 7 November
2014 (Margo, The Problem With Legalism in the Surveillance State,
Just Security, http://justsecurity.org/17163/problem-legalismsurveillance-state/, Accessed on 1 July 2015, //PK@GDI)
In addition, judicial review legitimates the American surveillance system .
That is why surveillance proponents immediately point to court supervision when they want to suggest

Court involvement is offered as evidence of both


legality and appropriateness; indeed, the two are conceptually merged. My point
that everything is fine.

is not that FISA Court legitimation is phony. In fact, judicial review has real if limited effects on the system.

the existence of judicial review makes


political change more difficult. The point is not that law accomplishes nothing for its
purported beneficiaries. If that were true, it could not legitimate. But gains from rights mayand in the
surveillance situation clearly domake gains from politics less available.
Yet the oversight gain carries with it a cost;

To sum up, neither the Constitution nor FISA aims to optimally balance security and libertyand wellunderstood difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill
that gap. Likewise the existing foundational Executive Order, 12333, is at the very least out-of-date.

intelligence legalism and its compliance mindset, cannot


achieve optimal policy. Its concomitant empowerment of lawyers is real and important, but
does not deputize a pro-civil-liberties force. Indeed, legalism actually both
crowds out the consideration of policy and interests (as opposed to law and
rights), and legitimates the surveillance state, making it less susceptible
to policy reform.
Accordingly,

Legalism cannot achieve optimal policy and legitimates


the surveillance state
Schlanger, professor of law at University of Michigan, 2015
(Margo, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, Harvard National Security Journal 112, SSRN, Accessed
on 3 July 2015, //PK@GDI)
The point is not, for Freeman (and the plentiful literature he adduced), that law accomplishes nothing for

[I]f law is to serve its


legitimation function, [the] ultimate constraints [that come from politics]
must yield up just enough autonomy to the legal system to make its
operations credible for those whose allegiance it seeks as well as those
whose self - interest it rationalizes. 331 But gains from rights may and in
the surveillance situation clearly do make gains from politics less available.
its purported beneficiaries. If that were true, it could not legitimate:

To sum up this Part, neither the Constitution nor FISA aims to optimally balance security and liberty and
frequently analyzed difficulties in congressional intelligence oversight mean that new statutes are unlikely
to fill that gap. Likewise the existing foundational Executive Order, 12,333, is at the very least out - of -

intelligence legalism, and its compliance mindset, cannot


achieve optimal policy. Its concomitant empowerment of lawyers is real and
important, but does not deputize a pro - civil liberties force. Indeed, legalism
date. Accordingly

actually both crowds out the consideration of policy and interests (as opposed
to law and rights), and legitimates the surveillance state, making it less
susceptible to policy reform. Are there, then, non - legalistic reforms that could play a productive
part? I turn next to this issue

Impact: State Power


Intelligence legalism in surveillance reforms reifies more
state power and closes the public debate on surveillance
Granick, director of civil liberties at Stanford Center of Internet
and Society, 13 November 2014 (Jennifer, The Surveillance States
Legalism Isnt About Morals, Its About Manipulating the Rules, Stanford
Center of Internet and Society,
http://cyberlaw.stanford.edu/publications/surveillance-state%E2%80%99slegalism-isn%E2%80%99t-about-morals-it%E2%80%99s-about-manipulatingrules, Accessed on 2 July 2015, //PK@GDI)
Margo Schlanger has written a great article forthcoming in the Harvard National Security Journal about

intelligence legalism, an ethical framework she sees underlying NSA


surveillance. Margo makes the case that NSA and the executive branch havent been
asking what the right surveillance practices should be, but rather what
surveillance practices are allowed to be. She takes the concept of legalism from political
theorist Judith Shklar: the ethical attitude that holds moral conduct to be a matter of rule following, and

In the model of legalism


that Margo sees the NSA following, any spying that is not legally prohibited is also
right and good because ethics is synonymous with following the rules . Her
critique of intelligence legalism is that the rules are the bare minimum, and merely following the
rules doesnt take civil liberties concerns seriously enough . My question is whether
moral relationships to consist of duties and rights determined by rules.

legalism serves as a moral code for US Intelligence Community (IC) leadership, or only as a smokescreen. I

the evidence shows that since 9/11,the IC, and specifically the NSA has not
followed the rules. Rather, the agency has resorted to legalistic justifications
in pursuit of other goalsnamely whatever might be useful in countering
terrorism. Before 9/11, the agency may have been focused on complying with FISA. But afterthat day,
believe

the NSAs approach was that it could circumvent federal statutes and the Constitution so long as there
was some visceral connection to looking for terrorists. In other words, since 9/11 ,

the moral center


of gravity in the surveillance world has focused on doing whatever is
necessary for hunting terrorists, not following the rules . Margo also argues that the
NSAs legalism equates to, for better or worse, the empowerment of lawyers. Sign-off
by lawyers is, as Margo says, an important part of the process. Lawyer opinions gave telecommunications
firms legal immunity for their cooperation with the government in conducting mass surveillance.

Lawyers were used to compel compliance from underlings within the


intelligence community. Theyve been used cynically for public relations purposes,
trading on the public trust in the actions of government lawyers to cloud the public debate over
legality. Theyve been used to marginalize the role of Congress in approving surveillance. The
decisions of lawyers inside the surveillance community have allowed
Americas spies to secretly expand their power as they develop classified capabilities and
practices that the public and Congress havent yet become aware of, and have not even begun to regulate.
But calling this empowerment is misleading. We see lawyers who object to policies that may harm civil
liberties bypassed in favor of handpicked counsel who give their bosses the answers they want. Lawyers
are ratifying surveillance decisions policy makers have already made.

Thats not empowerment,

its subservience.

State surveillance limits individual political and social


thought and creates discrimination
Richards, professor of law at Washington University in St. Louis,
20 May 2013 (Neil M., The Dangers of Surveillance, Harvard Law Review,

http://harvardlawreview.org/2013/05/the-dangers-of-surveillance/, Accessed
on 2 July 2015, //PK@GDI)
At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not.

surveillance is harmful because it can chill the exercise of our civil


liberties. With respect to civil liberties, consider surveillance of people when they are
thinking, reading, and communicating with others in order to make up their
minds about political and social issues . Such intellectual surveillance is especially
dangerous because it can cause people not to experiment with new,
controversial, or deviant ideas. To protect our intellectual freedom to think
without state over-sight or interference, we need what I have elsewhere called
intellectual privacy. A second special harm that surveillance poses is its effect on
First,

the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of

discrimination, coercion, and the threat of selective enforcement,


where critics of the government can be prosecuted or blackmailed for
wrongdoing unrelated to the purpose of the surveillance .
harms, such as

Surveillance in governance will consolidate private and


public regulatory power, transforming the state in to
transnational entity that uses surveillance as lawmaking
Backer, professor of law at Pennsylvania State University and
director of the Coalition for Peace & Ethics, 2008 (Larry Cata, Global
Panopticism: States, Corporations, and the Governance Effects of Monitoring
Regimes, Indiana Journal of Global Legal Studies Vol. 15 #1, Winter 2008,
JSTOR, //PK@GDI)

This article interrogates one critical aspect of complexity and fracture in regulatory power.1 Specifically, it
focuses on surveillance2 as a regulatory mechanism.3 I will explore some of the complexities of this
regulatory mechanism in emerging governance systems in which private entities are engaged in sovereign
functions and public entities participate in the market. The thesis of this article is fairly straightforward:

surveillance represents a complex of assumptions and objectives beyond


mere information gathering or observation. Surveillance serves both
instrumental and substantive purposes that affect the power relationships
among states, economic entities, and individuals.4 It is both technique and
the reification of norms that shape the specific character of the gaze .5
Surveillance is both ministerial the gathering of informationand
administrativethe elaboration of judgments of the importance of the actions
or individuals observed. Surveillance is also a function of its techniques.6 The technologies of
surveillance suggest the limits of the gaze and the scope of control through visibility. While virtually
everything can be monitored, power (and the limits of power) is a function of control over the way power is

the power to decide what parts of monitored


activity may be revealed, extracted, analyzed, judged, and relied on has
important consequences, consequences that themselves are the subject of further surveillance.7
Surveillance is one of the critical mechanisms of this expansion of
private power into what had been an exclusively public sphere. Increasingly,
public bodies are requiring, or permitting, private entities to monitor and
report on the conduct and activities of a host of actors. It increasingly serves
public bodies as a substitute for lawmaking. Surveillance is a flexible engine. It can
be used to decide what sorts of facts constitute information, to determine
what sorts of information ought to be privileged and which do not matter, to
gather that information, to empower people or entities to gather information,
and to act on the information gathered. In its domestic form it can be used to assign
understood, gathered, and used. Moreover,

authority over certain types of information to private enterprises and then hold those enterprises to

account on the basis of the information gathered.8 In its transnational form it can be used to construct a
set of privileged information that can be gathered and distributed voluntarily by private entities on the
basis of systems created and maintained by international public or private organizations as an alternative

Surveillance in
its various forms provides a unifying technique with which governance can be
effectuated across the boundaries of power fractures without challenging
formal regulatory power or its limits. It avoids the barrier between the public
and private spheres; it substantially increases the regulatory palette of states
without the complications of the usual limitations of public formal lawmaking
especially those of accountability and transparency . The consequences of
surveillance, particularly those consequences on the shape of governance, are to a great extent
a function of the character of the surveillance power elaborated.10 The principal effects will tend to
promote a further convergence of public and private regulatory power .11 This
to formal regulation and to provide a means of harmonizing behavior without law.9

convergence arises from a fracturing of traditional divisions of power.12 A sovereign is said to lose
its character as such when it acts, not as regulator of a market, but in the manner of a private player
within it.13 The reciprocal principle has not been accepted de jure; a private actor is not said to lose its
character as a private actor when it acts in the manner of a sovereign. Still, private players now are
required to play the role of regulator and have sought that role for themselves de facto.14 And,
increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the
conduct and activities of a host of actors.15 Surveillance, then, functions as more than a descriptor of

Surveillance is a new form of lawmaking through which the old


boundaries between the public and private, national and transnational, are
made irrelevant. The construction of complex systems of conscious and
permanent visibility, as both normative systems and bundles of specific
techniques, affects the power relationships among states, economic entities,
and individuals. It represents modalities of fractures and complications in
assertions of regulatory power, replicating its forms and effects throughout
society.16 Its privatization tends to complicate the distinction between private and public institutions
methodology.

and between assertions of private (market or personal welfare maximizing) and public (regulatory or
stakeholder welfare maximization). Surveillance cuts across bordersit embodies the techniques and

To understand
the complexities and vectors of surveillance is to grasp the shape of
converging public/private governance in this century
sensibilities of an essentially transnational response to problems of governance.17

Surrendering ourselves to the State results in extinction,


not security
Beres, professor of international law at Purdue University, 1994
(Louis Rene, Self-Determination, International Law and Survival on Planet
Earth, Arizona Journal of International and Comparative Law, Spring,
LexisNexis, //PK@GDI)
This, then, is an altogether different kind of understanding. Rather than rescue humankind by freeing
individuals from fear of death, this perspective recommends educating people to the truth of an

By surrendering ourselves to
States and to traditional views of self-determination, we encourage not immortality but
premature and predictable extinction. It is a relationship that can, and must, be more widely
understood. There are great ironies involved. Although the corrosive calculus of
geopolitics has now made possible the deliberate killing of all life, populations
all over the planet turn increasingly to States for security. It is the dreadful
ingenuity of States that makes possible death in the billions, but it is in the
expressions of that ingenuity that people seek safety . Indeed, as the threat of nuclear
incontestable relationship between death and geopolitics.

annihilation looms even after the Cold War, 71 the citizens of conflicting States reaffirm their segmented
loyalties, moved by the persistent unreason that is, after all, the most indelible badge of modern
humankind. As a result, increasing human uncertainty brought about by an unprecedented vulnerability to
disappearance is likely to undermine rather than support the education required. Curiously, therefore,

before we can implement such education, we will need to reduce the perceived threat of nuclear war 72
and enlarge the belief that the short-term goal of nuclear stability is within our grasp. To make this possible
we must continue to make progress on the usual and mainstream arms control measures and on the
associated strategies of international cooperation and reconciliation. In this connection, arms control [*25]
obligations must fall not only on nuclear weapon States, but also upon non-nuclear States that threaten
others with war or even genocide. "Death," says Norbert Elias, "is the absolute end of the person. So the
greater resistance to its demythologization perhaps corresponds to the greater magnitude of danger
experienced." 73 Let us, then, reduce the magnitude of danger, both experienced and anticipated. But let
us also be wary of nurturing new mythologies, of planting false hopes that offer illusions of survival in a
post-apocalypse world. Always desperate to grasp at promises that allay the fears of personal transience,

individuals are only too anxious to accept wish-fantasies of security in the


midst of preparations for Armageddon.

Prioritizing State power over that of the individual makes


war and genocide inevitable- the only solution is
individual agency
Beres, professor of international law at Purdue University, 1994

(Louis Rene, Self-Determination, International Law and Survival on Planet


Earth, Arizona Journal of International and Comparative Law, Spring,
LexisNexis, //PK@GDI)
Yet, this situation is enormously ironic. By its very nature, the self-determination of peoples and
nations undermines the self-determination of individuals. 6 Encouraging the
expanding fragmentation of the world into [*3] competing sovereignties, this right under
international law makes it nearly impossible for persons to see themselves as
members of a single human family. As a result, the presumed differences between peoples
are taken as critical and the essential similarities dismissed as unimportant. Not surprisingly, war 7
and genocide 8 are not only the legacy of the current century, but also the
most probable planetary future. Self-determination, of course, has its place. Under the United
Nations Charter, this principle is treated as an indispensable corrective to the crime of colonialism. Hence,
colonial peoples are granted an "inherent" right to struggle [*4] by all necessary means, 9 and United
Nations member States are instructed to render all necessary moral and material assistance to the
Yet, the cumulative effect of claims for selfdetermination is violence and death . Reaffirming individual commitments to life in the "herd,"
struggle for freedom and independence.

10

these claims contradict the idea of global oneness and cosmopolis. From identification as Moslem

individuals all over the world


surrender themselves as persons, being told again and again that meaning
derives from belonging. Not surprisingly, these individuals are too often
willing to do anything that the group commands -- even the mass killing of
other human beings, as long as the victims are "outsiders." [*5] What do we really seek in world
Azerbaijanis or Christian Armenians, as Croats or Serbs,

affairs? If it is authentic peace and an end to war crimes 11 and crimes against humanity, 12 then the
expectation of self-determination must be balanced against the needs of planetization, of a new world
order 13 in which the commonality and community of the entire human species takes precedence over the
lethal calls of separatism, ethnic rivalry, and militaristic nationalism. Poised to consider that national

individuals everywhere must


learn to affirm their significance outside the herd, as persons rather than as
members. The herd is always potentially dangerous, whether it be the herd of
a criminal band, a discontented nationality, or a State. 14 Before the residents of this
endangered planet can discover safety in world politics, they will have to
discover power and purpose within themselves . In the end, humankind will rise or fall on
liberation can itself be the source of armed conflict and murder,

the strength of a new kind of loyalty, one that recognizes the contrived character of national, religious, and
ethnic differences and the primacy of human solidarity. Although this kind of loyalty is certainly difficult to
imagine, especially when one considers that organization into and belonging within competitive herds still
offers most people a desperately needed sense of self-worth, there seems to be no alternative .
Whether we seek an accommodation of Palestinians 15 and Israelis 16 in the Middle East, of Catholics and
Protestants in Northern Ireland, or of different nationalities in Eastern Europe, in the former USSR, or in the

the only real hope lies in getting those involved to see


themselves as individuals.
former Yugoslavia,

Surrendering the Self to the State allows for continuous


war and genocide
Beres, professor of international law at Purdue University, 1994
(Louis Rene, Self-Determination, International Law and Survival on Planet
Earth, Arizona Journal of International and Comparative Law, Spring,
LexisNexis, //PK@GDI)
The State requires its members to be serviceable instruments, suppressing
every glimmer of creativity and imagination in the interest of a plastic
mediocrity. Even political liberty within particular States does nothing to encourage
opposition to war or to genocide in other States. Since "patriotic self-sacrifice" is demanded

even of "free" peoples, the expectations of inter-State competition may include war and the mass killing of

war and genocide are made possible by the


surrender of Self to the State. Given that the claims of international law 35 are rendered
other peoples. In the final analysis,

impotent by Realpolitik, this commitment to so-called power politics is itself an expression of control by the

Without such control, individuals could discover authentic bases of


personal value inside themselves, depriving the State of its capacity to make
corpses of others.
herd.

Impact: Rights
Mass surveillance violates human rights and is constantly
justified under the current system of legalism
Guild, professor at Queen Mary University of London, 12 May
2014 (Elspeth, What does mass surveillance do to Human Rights, Open
Democracy, https://www.opendemocracy.net/can-europe-make-it/elspethguild/what-does-mass-surveillance-do-to-human-rights, Accessed on 2 July
2015, //PK@GDI)
Two interconnected but separate human rights issues arise as regards mass
surveillance. The first, which is the most fundamental but the most frequently
ignored, is the right of every person to respect for his or her private and
family life. The second, which is generally the subject of more substantial
political and media noise is the duty of states to protect personal data. Those
political actors who have an interest in promoting the legality of mass
surveillance usually put forward two arguments. The first is that national and
international security is always an exception to both the duty of every state
to respect peoples privacy and the duty to protect personal data. This is the
most trenchantly defended of arguments as when this one falls away, those
actors seeking to justify mass surveillance find themselves on very weak
legal ground indeed. The second is that states obligations to protect personal
data are subject to very different rules and requirements according to the
political preferences of different states. Thus as there is no harmonization of
the specific rules as to what is acceptable data protection internationally,
states which are exercising their national and international security
prerogatives only need to fulfil their own national data protection rules.

The surveillance state eliminates privacy


Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance

State, Yale Law School,


http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
Equally important, the rise of the National Surveillance State portends the death of
amnesia. In practice, much privacy protection depends on forgetting. When people
display unusual or embarrassing behavior, or participate in political protests in public
places, their most effective protection may be that most people don't know
who they are and will soon forget who did what at a certain time and place.
But cameras, facial recognition systems, and location tracking systems let
governments and businesses compile continuous records of what happens at
particular locations, which can be collated with records of different times and places. The collation
and analysis of events al- lows public and private actors to create locational and temporal
profiles of people, making it easier to trace and predict their behaviors . 5 7
Older surveillance cameras featured imprecise, grainy images, and the recordings were quickly taped over.
New digital systems offer ever greater fidelity and precision, 5 8 and the declining cost of digital storage
means that records of events can be maintained indefinitely and copied and distributed widely to other
surveillance systems around the country or even around the globe. 5 9 Ordinary citizens can no longer
assume that what they do will be forgotten; rather, records will be stored and collated with other
information collected at other times and places. 6 0

The greatest single protector of

privacy- amnesia-will soon be a thing of the past. As technology improves and


storage costs decline, the National Surveillance State becomes the State that
Never Forgets. 6 1

The surveillance state denies guaranteed rights through


preventative law enforcement
Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance

State, Yale Law School,


http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
The National Surveillance State poses three major dangers for our freedom. Because the National
Surveillance State emphasizes ex ante prevention rather than ex post
apprehension and prosecution, the first danger is that government will create a
parallel track of preventative law enforcement that routes around the
traditional guarantees of the Bill of Rights. The Bush administration's military
detention practices and its NSA surveillance program are two examples. The
administration justified detaining and interrogating people -including American
citizens-in ways that would have violated traditional legal restraints on the
grounds that it was not engaged in ordinary criminal law enforcement . 6 2 It
sought intelligence that would prevent future attacks and wanted to prevent terrorists from returning to

the administration defended warrantless surveillance of


people in the United States by arguing that the President was not engaged in
criminal prosecutions but in collection of military intelligence designed to
fight terrorism. 6 4
the battlefield. 6 3 Similarly,

Impact: Police State


The surveillance state spurs the police state that imposes
restrictions on people outside the justice system
Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance
State, Yale Law School,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
The second danger posed by the National Surveillance State is that traditional
law enforcement and social services will increasingly resemble the parallel
track. Once governments have access to powerful surveillance and data
mining technologies, there will be enormous political pressure to use them in
everyday law enforcement and for delivery of government services. If data
mining can help us locate terrorists, why not use it to find deadbeat dads, or
even people who have not paid their parking tickets? 6 5 If surveillance
technologies signal that certain people are likely threats to public order, why
not create a system of preventive detention outside the ordinary criminal
justice system? 6 6 Why not impose sanctions outside the criminal law, like
denying people the right to board air- planes or use public facilities and
transportation systems? And if DNA analysis can identify people who will likely impose high costs

on public resources, why not identify them in advance and exclude them from public programs and other
opportunities? The more powerful and effective our technologies of surveil- lance and analysis become, the

the government will feel to route around warrant requirements and


other procedural hurdles so that it can catch potential troublemakers more
effectively and efficiently before they have a chance to cause any harm.
more pressure

The surveillance state eliminates democracy and


incorporates the individual as a tool in its militarysurveillance empire
Hickman, poet and philosophical speculator, 28 June 2015 (Steven
Craig, The Total Surveillance Society: The Endgame of Democracy, Dark
Ecologies, http://darkecologies.com/2015/06/28/the-total-surveillance-societythe-endgame-of-democracy/, Accessed on 2 July 2015, //PK@GDI)
This sense that we are all traceable, that we have become data to be marked and
inscribed in a system of traces: gleaned, stored, organized, dispersed, sorted,
analyzed and massaged; deconstructed and reconstructed into various modalities, pushed through
specialized filters and segmented off algorithmically for analytical appraisal, reanalyzed by specialized
knowledge-workers in the capitalist military-surveillance empire that then present their findings to higher

registered and formalized into various


linguistic traces and signifiers as adjuncts to the decisional apparatus of
global governance as a system of command and control itself. This is the new
world we live in, the merger of the military-industrial and securitysurveillance empire of global capital. And whether it is micromanaged on a local,
national, or global scale it is a part of a system of traces that are themselves traceable:
verified by those like Edward Snowden and others who have been able to free
those traces into the public eye for reappraisal and visibility on a global scale
using the only tool of freedom that can still capture the public mind or
echelons of this same global system to ultimately be

general intellect: the internet. Such acts of courage bring with them the truth
that our world is enmeshed in an invisible layer of technology and technics
that seek to trace every aspect of our affective (body) and intellectual (mind)
existence, to codify it in the ghost worlds of military-corporate shadowsystems that can be used as inscriptions to control not our actual lives but
our inscribed life as situated in the virtual. Our virtual life becomes a
potential tool that can then be activated by power as it sees fit: as a military,
commercial, or exclusionary tool of law.

The surveillance states uses every tool to extract


information from bodies- including torture
Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance

State, Yale Law School,


http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
The National Surveillance State seeks any and all information that assists
governance; electronic surveillance is not its only tool. Governments can also
get information out of human bodies, for example, through collection and
analysis of DNA, through locational tracking, and through facial recognition
systems. 4 9 The Bush administration's detention and interrogation practices
seek to get information out of human bodies through old-fashioned detention
and interrogation techniques, including techniques that are tantamount to torture. 5 0 In
the National Surveillance State, bodies are not simply objects of governance;
they are rich sources of information that governments can mine through a
multitude of different technologies and techniques.

Impact: Panopticon
The surveillance state transcends panoptic governance to
create links between the traces of every person
Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance
State, Yale Law School,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
Decades ago Michel Foucault argued that modern societies had become
increasingly focused on watching and measuring people in order to control
them, to normalize their behavior and to make them docile and obedient . 5 1
His famous example was Jeremy Bentham's idea of a Panopticon-a prison designed so that the prisoners

By making surveillance
ubiquitous, governments and private organizations could discourage behavior
they deemed unusual or abnormal. Today's National Surveillance State goes
beyond Foucault's Panoptic model. Government's most important technique
of control is no longer watching or threatening to watch. It is analyzing and
drawing connections between data. Much public and private surveillance occurs
without any knowledge that one is watched . More to the point, data mining
technologies allow the state and business enterprises to record perfectly
innocent behavior that no one is particularly ashamed of and draw
surprisingly powerful inferences about people's behavior, beliefs, and
attitudes. 5 3 Over time, these tools will only become more effective. We leave
traces of ourselves continually, including our location, our communications
contacts, our consumption choices-even our DNA.
could always be watched but would not know exactly when. 5 2

The normalizing effects of modern power the plan


espouses comes before any violence it solves- only this
prioritization creates the agency to oppose the state
Bevir, professor of political science at UC Berkeley, 1999 (Mark,

Foucault and Critique: Deploying Agency against Autonomy, University of


Newcastle, JSTOR, //PK@GDI)
A key question raised by my account of a composed Foucault's concept of governmentality is: what
constitutes a worthwhile form of agency? To appreciate just how vital this question now has
become for us, we need only to recall the strength of Foucault's critique of the
normalizing effect of modern power. Modern power is not violent since it
passes through the consciousness of the individual in a way that entails a
recognition of the other as an agent. Nonetheless, Foucault consistently argues that
individuals in modern society typically use their agency only to regulate
themselves in accord with social norms .34 Far from resisting the normalizing
effects of power, they act so as to promote them. Moreover, Foucault clearly regards this
as a bad thing, complaining, in particular, of the state having taken over the techniques of pastoral power.

the normalizing effects of modern power even leads him to


is worse - more damaging - than overt violence . After all, violence is at
least visible and honest, whereas modern power renders us insipid and
uniform while pretending to liberate our true, inner selves . Power might be preferable
Sometimes his distaste for
imply it

to violence in that it recognises the other as an agent, but if the strength of modern power is such that the
other uses his agency only to normalize himself, then perhaps we should prefer an honest violence to a

deceitful power. It is this possibility that gives urgency to the question of what constitutes a worthwhile

We need forms of agency that resist not only the overt violence so
often associated with the state, but, at least as importantly, the normalizing
effects of a pastoral-power taken over by the modern state . As Foucault insisted,
"the political, social, philosophical 16 problem of our days is not to try to
liberate the individual from the state, and from the state's institutions, but to
liberate us both from the state and from the type of individualization which is
linked to the state."35 His work on an ethic of care for the self provides us with suggestions as to
form of agency.

the types of resistance we need to develop in order to sustain such liberation.

Impact: Race
The surveillance state is inherently racist and cultivates
racism to legitimize itself to the public
Kudnani and Kumar 15 (Arun, professor at NYU, Deepa, associate

professor at Rutgers University, Race, Surveillance, and Empire,


International Socialist Review, Spring 2015, http://isreview.org/issue/96/racesurveillance-and-empire, Accessed on 3 July 2015, //PK@GDI)
In what follows, we argue that the debate on national security surveillance
that has emerged in the United States since the summer of 2013 is woefully
inadequate, due to its failure to place questions of race and empire at the
center of its analysis. It is racist ideas that form the basis for the ways
national security surveillance is organized and deployed, racist fears that are
whipped up to legitimize this surveillance to the American public, and the
disproportionately targeted racialized groups that have been most effective in
making sense of it and organizing opposition. This is as true today as it has
been historically: race and state surveillance are intertwined in the history of
US capitalism. Likewise, we argue that the history of national security
surveillance in the United States is inseparable from the history of US
colonialism and empire. The argument is divided into two parts. The first
identifies a number of moments in the history of national security
surveillance in North America, tracing its imbrication with race, empire, and
capital, from the settler-colonial period through to the neoliberal era. Our
focus here is on how race as a sociopolitical category is produced and
reproduced historically in the United States through systems of surveillance.
We show how throughout the history of the United States the systematic
collection of information has been interwoven with mechanisms of racial
oppression. From Anglo settler-colonialism, the establishment of the
plantation system, the postCivil War reconstruction era, the US conquest of
the Philippines, and the emergence of the national security state in the postWorld War II era, to neoliberalism in the post-Civil Rights era, racialized
surveillance has enabled the consolidation of capital and empire.

Impact: Bare Life For Reject Shell


The terminal impact of biopower is a state in which legal
order is the same bare life
Dean, 04 (Mitchell Dean, professor of sociology at the University of Newcastle (Mitchell, Four Theses on the

Powers of Life and Death, Contretemps 5, December 2004, http://sydney.edu.au/contretemps/5december2004/dean.pdf,


12/5/04, DOA 7/1/15, AMB@GDI)
Fourth thesis: Bio-politics captures life stripped naked (or the zo that was the exception of
sovereign power) and makes it a matter of political life (bios). Today, we seek the good life though the extension of the
powers over bare life to the point at which they become indistinguishable. In this formulation, the emergence of a
government over life in the eighteenth century does mark a rupture in forms of rule, which the search for an originary
structure of sovereignty cannot capture. For Foucault, the nature of this rupture is the displacement, articulation or reinscription of sovereignty within a peculiarly modern form of politics, bio-politics. However, this capture of the government
of the state by bio-powers is already present in the structure of sovereignty. It would be a mistake, in this sense, to view
Agambens quest for the structure of sovereignty, with its multiple thresholds, as ahistorical, that is, as insensitive to

the demonic character of


modern states lies in the possibility that the thresholds that maintained bare
life as a state of exception are breaking down . Zo is entering into a sphere of indistinction with
bios in modern politics. For Agamben the paradigm of modern politicsthe new Nomosis
not the liberal governing of freedom, but the concentration camp. The camp
is the material form of the stabilization of the state of exception , the excluded
inclusion, both inside and outside modern political and legal ordering. Because the camp is established by
law as a space of exception, it is subject to no order itself, only direct police
command. It is thus a space of ordered disorder in which bare life enters into
a zone of indistinction with legal order. While such views may appear to lead to a kind of radical
temporal thresholds. His thesis offers a kind of history of modernity. Here,

condemnation of many instances of bio-politics, such as the attempt to develop humane processing procedures for asylum
seekers, the idea of mapping zones of indistinction would seem to locate arenas of analysis and spheres of contestation

We have become used to a style of criticism in


which liberal notions of the individual citizen have been revealed to be
constituted through a series of exclusions (of women, the disabled, prisoners, the insane, the poor,
rather than a site of dogmatic rejection.

the indigene, the refugee, etc). Note that Contretemps 5, December 2004 28 bio-power today holds the promise of
extraordinary solutions to disability, criminality and insanity. The inclusion of women through their state of exclusion, also,
would appear to raise interesting questions concerning sovereign violence given womens historic biological relationship
to the reproduction and care of human life. This relationship, itself excepted under the universality of law, is thus
produced as bare life; and women are required to take responsibility for sovereign decisions. If we are to take Agamben

desire for inclusion may have the effect not simply of widening the
sphere of the rule of law but also of hastening the point at which the sovereign
exception enters into a zone of indistinction with the rule. Our societies would
then have become truly demonic, not because of the re-inscription of sovereignty within bio-politics,
but because bare life which constituted the sovereign exception begins to
enter a zone of indistinction with our moral and political life and with the
fundamental presuppositions of political community. In the achievement of inclusion in the
seriously, this

name of universal human rights, all human life is stripped naked and becomes sacred. Perhaps in a very real sense we are

what we have been in danger of missing is the way in which


the sovereign violence that constitutes the exception of bare lifethat which
can be killed without committing homicideis today entering into the very
core of modern politics, ethics, and systems of justice.
all homo sacer. Perhaps

The state of exception views individuals as the other


outside of the apparatus
Kusina 6 (Professor of Philosophy @ Bowling Green State University (Jeanne, The Wolf at the Door: Agamben's
State of Exception, http://iph.fsu.edu/interculture/pdfs/kusina%20lost.pdf, October 22, 2006, DOA 7/3/15, AMB@GDI)

In Schmitts formulation of the state of exception,

the sovereign decisively moderates the


temporary suspension of the law only to return it to its normal state of affairs
once the emergence has past (SE, 10). It is a process analogous to the werewolf of medieval folklore who,
having completed the transformation back into human form, knocks three times upon the door and is once again allowed

a distinctly different view, emphasized by Agamben and originally


rejects the claim that the state of
exception is a temporary condition. On Benjamins account, once the state of exception is created no
back into the city (HS 107-8). However,

presented by Walter Benjamin is his Philosophy is History,

movement is made to return it to an allegedly normal order. Having arrived at the position of the homo sacer, the

inhabitants of such zones seemingly exist in something of a timeless state of suspended animation . Attention shifts as
one crisis is inevitably followed by a new crisis close on its heels. Gradually, the exception has become the rule; moreover,
Agamben alleges,

this is not a situation limited to an unfortunate few but is instead


one with the potential to capture any and all within it. Take into consideration
the catastrophic situation created by Hurricane Katrina in 2005. Finding itself
woefully un-prepared to respond to such a natural disaster, the United States
governments response to the people of New Orleans was to declare a state
of emergency and urge evacuation. Most of those with financial means and
available transportation did evacuate, while thousands of people with limited
resources were unable to leave. Despite being unable to provide adequate food, water, shelter, or
medical support to the citizens that remained, the governments declaration of martial law initially prioritized protecting

As the severity of the situation escalated so did the violence;


and, amidst the swelling floodwaters, New Orleans became a lawless zone of
exception within which anyone, it seemed, could be killed at any time. Millions of people
businesses from looters.

watched the human drama unfold on television for several long, painful days, utterly dismayed by what appeared to be
the governments total lack of response to the horrific events that were unfolding. Contrary to the myths of sovereign
protection that so often motivate an acceptance of biopolitic regulation ,

Hurricane Katrina exposed the


paradigmatic structure of the camp by unmasking the law as being little more
than a technicality, a force that is felt only in its withdrawal and, ultimately,
its total abandonment. This permits us to once again speculate on the
temporal rhetoric of urgency that always seems so insistent on carving out an
isolated space of exception. The temporal element that was so fleeting prior to the exception appears to
metaphorically change speed again. For it seems as though often, once the state of exception is achieved, the call of
future history that was so desperately in need of action seems noticeably less pressing, perhaps even a distant possibility.
For example, by having gone through with the invasion of Iraq but in not being able to establish lasting order there, the
nation of Iraq came to mark a territory of exception. Curiously, the rhetoric of time employed by the Bush administration
also appeared to slow down considerably in concurrence with these events. Moving away from continuing to call upon
the American people to become the pre-emptive authors of their own history, within the next few years the President
would frequently make remarks that expressed longevity, perhaps even complacency, rather than urgency: Imagine a
world in which they were able to control governments, a world awash with oil and they would use oil resources to punish
industrialized nations If we allow them to do this, if we retreat from Iraq, if we don't uphold our duty to support those
who are desirous to live in liberty, 50 years from now history will look back on our time with unforgiving clarity, and
demand to know why we did not act.

Impact: Extinction For Reject Shell


The biopower rooted in the affirmative make genocide and
WMD inevitable
Dean, 04 (Mitchell professor of sociology at the University of Newcastle (Mitchell, Four Theses on the Powers of
Life and Death, Contretemps 5, http://sydney.edu.au/contretemps/5december2004/dean.pdf, December 2004, DOA
7/2/15, AMB@GDI)

The possibilities for the manipulation of the very biological processes life are
not
limited to what has been called the genetic age made possible by molecular biology and human genetics. There are
advances in organ transplantation and in our medical capacities to sustain life. All of these processes of the manipulation
of life contain what we like to think of as ethical questions. Notions of brain death and the ensuing futility of further
attempts to restore normal life functioning redefine problems of euthanasia. Various forms of prenatal testing and
screening of pregnant women redefine the conditions of acceptability of abortions. Other such ethical questions concern
the harvesting of organs for transplantation, or of the maintenance of the integrity and diversity of biological species in
the face of genetically modified crops and seeds, etc. The capacity to manipulate our mere biological life, rather than
simply to govern aspects of forms of life, implies a biopolitics that contests how and when we use these technologies and
for what purposes. It also implies a redrawing of the relations between life and death, and a new thanatopolitics, a new
politics of death. 17 Contretemps 5, December 2004 At some distance from these advances in biomedicine and

the issues of life and death that are played in various arenas of
international politics and human rights. These concern the effects of the
break-ups of nation-states from Yugoslavia and the Soviet Union to Indonesia, the
subsequent movement, detention, expulsion, processing, and mass death of refugees and
illegal immigrants, and the conditions and forms under which military action ,
peacekeeping and humanitarian intervention are acceptable. They concern the international
coalition against the polycentric network of terrorism. Detention camps are again becoming
a feature of modern liberal-democratic states. On the one hand, the twentieth
century gave us a name for the death of a whole people or race, genocide. On the other, it
biotechnology are

sought to promote the universal rights of individuals by virtue of their mere existence as human beings.

Bio-politics and thanato-politics are played out in war, in torture, and in


biological, chemical and atomic weapons of mass destruction as much as in
declarations of human rights and United Nations peacekeeping operations. The potentialities for the care and
the manipulation of the biological processes of life and of the powers of death have never appeared greater than they do

issues of life and death


related to our conceptions of politics and political community to the way in
which we think about states and societies, and their futures? Are the ideas of powers of life and
today. But how do we consider this problem as a political problem? How are

death peculiarly modern, or do they lie at a deeper strata?My concern in this paper is to consider issues of life and death
as political issues, to locate a bio-politics, a politics of life, and a thanato-politics, a politics of death, within our ways of
thinking about and imagining politics. I follow two recent theorists, Michel Foucault and Giorgio Agamben, who are
convinced that not only must we consider how we exercise powers of life and death in modern politics but how the very
notion of politics and political community are intimately related to such issues. At issue is the power we call sovereign
power, and its relation to this politics of life and death. I shall in turn consider four possible theses that can be derived
from the work of these thinkers and from other twentieth century critical and legal theorists.

Empirically biopolitical domination enables systematic


violence
Dean, 04 (Mitchell Dean, professor of sociology at the University of Newcastle (Mitchell, Four Theses on the

Powers of Life and Death, Contretemps 5, http://sydney.edu.au/contretemps/5december2004/dean.pdf, December 2004,


DOA 7/3/15, AMB@GDI)

modern powers are more


closely aligned to a bio-politics, a politics of life. This bio-politics emerges in the eighteenth century with
For Foucault, at least in the History of Sexuality and related texts,

the concerns for the health, housing, habitation, welfare and living conditions of the population. Such an observation leads
him to place his concerns with health, discipline, the body, and sexuality within a more general horizon. Again the notion

of bio-politics is quite complex. The idea of the population as a kind of species body subject to bio-political knowledge
and power operating in concert with the individual body subject to disciplinary powers would appear central.11 No matter

it is only
with the advent of this modern form of the politics of life that the same logic and
technology applied to the care and development of human life is applied to
the destruction of entire populations. The link between social welfare and
mass slaughters can at times appear to be a fairly direct one. Of one of its first
how bloody things were under the exercise of sovereign power with its atrocious crimes and retributions ,

manifestations in German police science, Foucault argues, it wields its power over living beings as living
beings, and its politics, therefore has to be a bio-politics .

Since the population is nothing


more than what the state takes care of for its own sake, of course, the state
is entitled to slaughter

it. So the reverse of bio-politics is thanato-politics.12 Despite such statements,

there is a hesitation, a point of indeterminacy, in this relation between bio-politics and thanato-politics. Foucault seems to
identify a puzzle or an aporia of contemporary politics, which he cannot resolve or which may itself be irresolvable. The
coexistence in political structures of large destructive mechanisms and institutions oriented to the care of individual life is
something puzzling, he states.13 But he immediately adds I dont mean that mass slaughters are the effect, the result,

the state has the obligation of taking care of


individuals since it has the right to kill millions of people. After proceeding through this set of
the logical consequence of our rationality, nor do I mean that

inconclusive negatives he avers, as if trying to defer the answer to the questions he poses: It is this rationality, and the
death and life game which takes place in it, that Id like to investigate from a historical point of view. One aspect of this
historical investigation occurred in Foucaults 1976 lectures. These lectures cover such concerns as the seventeenthcentury historical-political narrative of the war of the races, and the biological and social class re-inscriptions of racial
discourse in the nineteenth century.14 He concludes with the development of the biological state racisms and the
genocidal politics of the twentieth century, including a radical analysis of the Nazi state and of socialism. From this
perspective, there is a certain potentiality within the human sciences which, when alloyed to notions such as race, can
help make Contretemps 5, December 2004 20 intelligible the catastrophes of the twentieth century. Such lectures seem to
make the totalitarian rule of the twentieth century a capstone on the histories of confinement, internment and
punishment that had made up his genealogical work. This thesis is perhaps close to the work of the first generation of the

the one-sided development of


rationality and application of reason to man in the human sciences has the
consequence of converting instrumental rationality into forms of domination .
Bio-politics in this reading is the application of instrumental rationality to life. The dreadful
outcomes of the twentieth century then result from this kind of scientization
and technologization of earlier notions of race. There is also a similarity in this reading of
Frankfurt School and a certain reading of Max Weber. Here

Foucault and the work of Zygmunt Bauman.15 The latter presents the Holocaust as something that must
be understood as endogenous to Western civilization and its processes of rationalization rather than as an
aberrant psychological, social or political pathology.

Alternative

Criticism
Constant criticism and trashing of the legal system
exposes true legal thought the liberation and fate of
humanity is at stake
Hutchinson and Monahan in 84

(Allan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL


STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36
Stan. L. Rev. 199, Stanford Law Review, January, 1984, DOA 7/01/15, AMB@GDI)
No matter how cogent the CLSers' expose of traditional legal thought may be, they must still suggest some alternative. To
retain credibility, sustain allegiance, and mobilize support, they must offer their own tangible vision of the "good society."
If their work is not to be consigned to the dustbin of history, they must seek to translate their theories into some
attainable dimensions of human experience: "To nurture the seeds of social progress [there must be] . . . some concrete

any theory that the Critical


scholars provide must be capable of accommodating both their doctrine of
social contingency and the contradiction between community and individual.
conception of the soil in which they are intended to grow." n123 Moreover,

The CLSers must actively work to fulfill their self-appointed roles as creative mediators between the ideal of freedom and

The challenge is a supreme one, and the long term


prospects of the CLS movement are not all that hangs in the balance: If the
the actuality of a free world.

CLSers are right about the contingency of history and the


insuperability of the fundamental contradiction, the very "fate of
humanity"

n124

is at stake.

We do not mean to suggest that the extensive CLS critiques of existing law

and legal theory are purely negative and without constructive potential. Criticism can be a very creative therapy;

criticism can liberate and enlighten. By "unfreezing" the world as it now

[*228]
appears, the Critical scholars hope to enable individuals to imagine and attain new possibilities for self-development and
meaningful social interaction. For the CLSers,

criticism is an antidote to the social paralysis


induced and sustained by the existing hierarchical nature of society. n125 By
reassuring people that things need not always be as they now are, the CLS movement can inspire the
confidence necessary to reject prevailing arrangements. And because the CLSers believe
that "the strength to live with the sober truth will become general [only when]
the causes of untruth are removed," n126 "trashing" is viewed as a valid form
of legal scholarship. Indeed, to some of the Critical scholars, it is the "most valid form": n127
That trashing may reveal truth seems significant if one's mission as a scholar
is to tell the truth. If telling the truth requires one to engage in
delegitimation, then that is what one ought to be doing

The point of

delegitimation is to expose possibilities more truly expressing reality, possibilities of fashioning a future that might at least
partially realize a substantive notion of justice instead of the abstract, rightsy, traditional, bourgeois notions of justice that
generate so much of the contradictory scholarship. One must start by knowing what is going on, by freeing oneself from
the mystified delusions embedded in our consciousness by the liberal legal world view. I am not defending a form of
scholarship that simply offers another affirmative presentation; rather, I am advocating negative, Critical activity as the
only path that might lead to a liberated future.The

task of a scholar is thus to liberate people


from their abstractions, to reduce abstractions to concrete historical settings,
and, by so doing, to expose as ideology what appears to be positive fact or
ethical norm.

Criticism Solvency
Alt solves Criticism is key to challenging the surveillance
system
Setty, 15 (Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University
School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of International Law,
51 Stan. J Int'l L. 69, DOA 7/02/15, AMB@GDI)

The surveillance and data collection that are part of the NSA Metadata
Program have been largely validated by two forms of relatively weak judicial
review: Article III courts have, until recently, largely refused to hear the merits of cases challenging the government
surveillance, instead finding that plaintiffs are unable to satisfy the standing requirement, n28 or dismissing
suits at the pleadings stage due to invocations of the state secrets privilege
by the government. n29 The Foreign Intelligence Surveillance Court (FISC), tasked with determining the legality
of many of the government's surveillance requests, has largely acquiesced to the government's requests over the
years.

Cases litigated after the Snowden revelations of June 2013 suggest,


however, that the judicial deference offered to the government in many
previous counterterrorism cases may be curtailed in light of public attention
and critique of the NSA Metadata Program, as well as a [*76] reinvigorated
judicial embrace of the privacy protections embodied in the Fourth
Amendment. n31
n30

Critique alone leads to political action in the future


Hutchinson and Monahan in 84 (llan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL
STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal
Thought, 36 Stan. L. Rev. 199, Stanford Law Review, January, 1984, DOA 7/2/15, AMB@GDI)
The Critical scholars' radical challenge to traditional legal thought is unsettling. Unlike the in-house squabbles between

the debate between the Critical scholars and mainstream


legal theorists is not over matters of degree or emphasis. And because the
conflict is over something much more profound and elemental than legal
doctrine, the likelihood of cooptation is small. Further, the Critical scholars do not seek to
the Harts and the Fullers,

n192

displace traditional jurists from center stage merely to have the spotlight focused on themselves.Instead, they want to
revolutionize the whole theory and performance of the American legal drama. They do not simply wish to exchange the
scripts and the sentiments of Shakespeare for those of Brecht or Fugard.

The message and the medium

must change.

The focus of attention must shift from the artifacts of the juristic stage to the reality of the citizen
audience. The ultimate goal must be to [*244] promote "street theater," the spontaneous involvement of people in

The ambition of the Critical scholars is revolution, not


reform. For them, intellectual critique is merely a prelude to, and platform for,
political action. n194 Whether they will be able to move in from the threshold or will be relegated to
everyday situations. n193

jurisprudential limbo will depend, at least in part, on their response to some of the fundamental theoretical and practical
objections raised in this article.

Overcoming social heirarchies can only happen with a


shattering of the legal order bringing upon strength as a
right
Hutchinson and Monahan in 84 (Allan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL
STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36
Stan. L. Rev. 199, Stanford Law Review, January, 1984, DOA 7/2/15, AMB@GDI)

The distinctive feature of the CLS movement, therefore, is its desire to shatter
the limiting conceptions of the possibilities of human association and of social
transformation embodied in liberal legal thought. The CLSers' enterprise is to
complete the modern rebellion against the view that social arrangements are
natural or inevitable. They want to expose society as the vulgar and contingent product of interrupted
fighting. Their central strategy is to suggest that social order exists only because, at some arbitrary point, the struggle
between individuals was halted and truce lines were drawn up. These truce lines define the structure of a society's politics
and production. Although these truce lines initially are simply the product of an uneasy [*217] deal between combatants,

A sense of stability is generated by the insistence


that the truce lines represent more than the residue of interrupted fighting: Strength becomes
eventually they stabilize and become fixed.

right, obedience becomes duty, and the ad hoc nature of

hierarchical division in society is obscured .

n77 Inspired by a vision of the contingent

nature of all social worlds, the CLS project is to identify the role played by law and legal reasoning in the process through

By identifying and overturning the


extant forms of legal consciousness, the CLSers hope to liberate the
individual in society. Their method for exposing the distortion between the apparent order of the legal process
and the disorder of social life is to examine the intellectual devices that conceal this discrepancy . Whereas the Realists
which social structures acquire the appearance of inevitability.

exposed indeterminacy in legal doctrine, the Critical scholars abstract from legal materials the underlying premises that

By demonstrating that social life is much


less structured and much more complex, much less impartial and much more
irrational, than the legal process suggests, the interests served by legal doctrine and theory will
surface. n78 As a necessary precondition to the restructuring of society, the CLS
movement seeks to penetrate the surface of "social reality," to expose the
actual workings of society, to reveal particular interests that are identified
with universal claims, and to discover the process by which contradictions in
the world are denied and the status quo presented as a natural, rather than
contingent, state of affairs. It is the structuring of reality using elemental beliefs and assumptions that
combine to form a distinct way of looking at the world.

"ma[kes] a particular version of society stand in place of the indefinite possibilities of human connection." n79 The
potency of belief-structures or ideologies lies in their tendency to establish a dynamic of their own and to confer on legal
doctrine a false air of naturalness. For the Critical scholars, legal consciousness is a cerebral tool for the suppression of
time: It is a device to hide or deny the fundamental truth that everything is in a process of changing or becoming. n80

Rejection
The alt is to vote negative in favor of critique before
actionwe accept power is inevitable, yet understand it
can be productive or destructive but only powerful
analysis of domination can challenge discourse we are
faced with and work as a pre-requisite to action
Flyvbjerg and Richardson 2

(Aalborg University, Department of Development and Planning AND


Department of Town and Regional Planning (Bent Flyvbjerg and Tim Richardson, Planning and Foucault In Search of the
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, nkj, DOA 7/2/15, AMB@GDI)

Instead of side-stepping or seeking to remove the traces of power from


planning, an alternative approach accepts power as unavoidable,
recognising its all pervasive nature, and emphasising its productive
as well as destructive potential . Here, theory engages squarely with policy
made on a field of power struggles between different interests, where
knowledge and truth are contested, and the rationality of planning is exposed
as a focus of conflict. This is what Flyvbjerg has called realrationalitt, or real-life rationality (Flyvbjerg
1996), where the focus shifts from what should be done to what is actually done. This analysis embraces the idea that
rationality is penetrated by power, and the dynamic between the two is critical in understanding what policy is about. It
therefore becomes meaningless, or misleading - for politicians, administrators and researchers alike - to operate with a
concept of rationality in which power is absent (Flyvbjerg 1998, 164-65). Both Foucault and Habermas are political
thinkers. Habermass thinking is well developed as concerns political ideals, but weak in its understanding of actual
political processes. Foucaults thinking, conversely, is weak with reference to generalised ideals--Foucault is a declared
opponent of ideals, understood as definitive answers to Kants question, What ought I to do? or Lenins What is to be
done?--but his work reflects a sophisticated understanding of Realpolitik. Both Foucault and Habermas agree that in

politics one must side with reason. Referring to Habermas and similar thinkers, however,
Foucault (1980b) warns that to respect rationalism as an ideal should never
constitute a blackmail to prevent the analysis of the rationalities really at
work (Rajchman 1988, 170).

Habermass main complaint about Foucault is what Habermas sees as Foucaults relativism. Thus Habermas (1987, 276)
harshly dismisses Foucaults genealogical historiographies as relativistic, cryptonormative illusory science. Such critique
for relativism is correct, if by relativistic we mean unfounded in norms that can be rationally and universally grounded .

Foucaults norms are not foundationalist like Habermass: they are expressed in a desire to
challenge every abuse of power, whoever the author, whoever the victims
(Miller 1993, 316) and in this way to give new impetus, as far and wide as possible,
to the undefined work of freedom (Foucault 1984a, 46). Foucault here is the Nietzschean democrat,
for whom any form of government - liberal or totalitarian - must be subjected to
analysis and critique based on a will not to be dominated, voicing concerns in
public and withholding consent about anything that appears to be
unacceptable. Such norms cannot be given a universal grounding independent
of those people and that context, according to Foucault. Nor would such grounding be
desirable, since it would entail an ethical uniformity with the kind of utopiantotalitarian implications that Foucault would warn against in any context, be it
that of Marx, Rousseau or Habermas: The search for a form of morality
acceptable by everyone in the sense that everyone would have to
submit to it, seems catastrophic to me
interpretation

(Foucault 1984c, 37 quoted in Dreyfus and Rabinow 1986, 119). In a Foucauldian

, such a morality would endanger freedom, not empower it .

Instead,

Foucault focuses on the analysis of evils and shows restraint in matters of commitment to ideas and systems of thought
about what is good for man, given the historical experience that few things have produced more suffering among humans
than strong commitments to implementing utopian visions of the good.

the socially and historically conditioned context, and not fictive


universals, constitutes the most effective bulwark against relativism and
nihilism, and the best basis for action. Our sociality and history, according to
Foucault, is the only foundation we have, the only solid ground under our
feet. And this socio-historical foundation is fully adequate.
Foucault, perhaps more than any recent philosopher, reminded us of the crucial importance of
power in the shaping and control of discourses, the production of knowledge,
and the social construction of spaces. His analysis of modern power has often been read by planning theorists
For Foucault

as negative institutionalised oppression, expressed most chillingly in his analysis of the disciplinary regime of the prison in Discipline and
Punish (Foucault 1979). However, it is

Foucaults explanation of power as productive

and local, rather than oppressive and hierarchical, that suggests


real opportunities for agency and change (McNay 1994). Whilst Foucault saw
discourse as a medium which transmits and produces power, he points out
that it is also a hindrance, a stumbling-block, a point of resistance and a
starting point for an opposing strategy. So, at the same time as discourse
reinforces power, it also undermines and exposes it, renders it fragile and
makes it possible to thwart it (Foucault 1990, 101). Foucault rarely separated
knowledge from power, and the idea of power/knowledge was of crucial importance: we should abandon
a whole tradition that allows us to imagine that knowledge can exist only
where the power relations are suspended and that knowledge can develop
only outside its injunctions, its demands and its interests ... we should abandon the
belief that power makes mad and that, by the same token, the renunciation
of power is one of the conditions of knowledge. We should admit rather that
power produced knowledge .. that power and knowledge directly imply one
another; that there is no power relation without the correlative constitution of
a field of knowledge ... (Foucault 1979, 27). For Foucault, then, rationality was contingent,
shaped by power relations, rather than context-free and objective.
According to Foucault, Habermass (undated, 8) authorisation of power by law is inadequate (emphasis deleted). [The juridical system] is
utterly incongruous with the new methods of power, says Foucault (1980a, 89), methods that are employed on all levels and in forms that go
beyond the state and its apparatus... Our historical gradient carries us further and further away from a reign of law.

The law,

institutions - or policies and plans - provide no guarantee of


freedom, equality or democracy. Not even entire institutional
systems , according to Foucault, can ensure freedom , even though they are
established with that purpose. Nor is freedom likely to be achieved by
imposing abstract theoretical systems or correct thinking. On the contrary, history has
demonstrated--says Foucault--horrifying examples that it is precisely those social systems which have turned freedom into
theoretical formulas and treated practice as social engineering, i.e., as an epistemically derived techne, that become most
repressive. [People] reproach me for not presenting an overall theory, says Foucault (1984b, 375-6), I am attempting, to the contrary apart
from any totalisation - which would be at once abstract and limiting - to open up problems that are as concrete and general as possible.

What Foucault calls his political task is to criticise the working of institutions which appear to be both neutral and
independent; to criticise them in such a manner that the political violence which has always exercised itself obscurely
through them will be unmasked, so that one can fight them (Chomsky and Foucault 1974, 171).
Foucauldian interpretation, would be seen as

This is

what, in a

an effective approach to institutional change,

including change in the institutions of civil society. With direct reference to Habermas,
Foucault (1988, 18) adds: The problem is not of trying to dissolve [relations of power] in
the utopia of a perfectly transparent communication, but to give...the rules of
law, the techniques of management, and also the ethics...which would allow
these games of power to be played with a minimum of domination. Here Foucault
overestimates his differences with Habermas, for Habermas also believes that the ideal speech situation cannot be established as a
conventional reality in actual communication. Both thinkers see the regulation of actual relations of dominance as crucial, but whereas
Habermas approaches regulation from a universalistic theory of discourse, Foucault seeks out a genealogical understanding of actual power
relations in specific contexts. Foucault is thus oriented towards phronesis, whereas Habermass orientation is towards episteme.

For

Foucault praxis and freedom are derived not from universals or theories.
Freedom is a practice , and its ideal is not a utopian absence of power.
Resistance and struggle, in contrast to consensus, is for Foucault the most
solid basis for the practice of freedom. Whereas Habermas emphasises procedural macro politics,
Foucault stresses substantive micro politics, though with the important shared feature that neither
Foucault nor Habermas venture to define the actual content of political action. This is defined by
the participants. Thus, both Habermas and Foucault are bottom-up thinkers as concerns the content of politics, but where
Habermas thinks in a top-down moralist fashion as regards procedural rationality having sketched out the procedures to be followed Foucault is a bottom-up thinker as regards both process and content. In this interpretation, Habermas would want to tell
individuals and groups how to go about their affairs as regards procedure for discourse. He would not want, however, to say anything about

Foucault would prescribe neither process nor outcome; he


would only recommend a focus on conflict and power relations as the most
effective point of departure for the fight against domination. It is because of his double
the outcome of this procedure.

bottom-up thinking that Foucault has been described as non-action oriented. Foucault (1981) says about such criticism, in a manner that
would be pertinent to those who work in the institutional setting of planning:

Its true that certain people, such as those who work in the institutional setting of the prison...are not likely to find advice
or instructions in my books to tell them what is to be done. But my project is precisely to bring it about that they no
longer know what to do, so that the acts, gestures, discourses that up until then had seemed to go without saying
become problematic, difficult, dangerous (Miller 1993, 235). The depiction of Foucault as non-action oriented is correct to the extent
that Foucault hesitates to give directives for action, and he directly distances himself from the kinds of universal What is to be done?

Foucault believes that


solutions of this type are themselves part of the problem. Seeing
Foucault as non-action oriented would be misleading , however, insofar as Foucaults
genealogical studies are carried out only in order to show how things can be
done differently to separate out, from the contingency that has made us
what we are, the possibility of no longer being, doing, or thinking what we
are, do, or think (Foucault 1984a, 45-7). Thus Foucault was openly pleased when during a revolt in some of the
French prisons the prisoners in their cells read his Discipline and Punish. They shouted the text to other prisoners ,
formulas which characterise procedure in Habermass communicative rationality.

Foucault told an interviewer. I know its pretentious to say, Foucault said, but thats a proof of a trutha political and actual truth--

which started after the book was written (Dillon 1980, 5). This

is the type of situated action Foucault


would endorse, and as a genealogist, Foucault saw himself as highly action oriented, as a dealer
in instruments, a recipe maker, an indicator of objectives, a cartographer, a
sketcher of plans, a gunsmith (Ezine 1985, 14).
The establishment of a concrete genealogy opens possibilities for action by describing the genesis of a given situation and
showing that this particular genesis is not connected to absolute historical necessity . Foucaults genealogical studies of prisons,
hospitals and sexuality demonstrate that social practices may always take an alternative form, even where there is no basis for voluntarism or
idealism. Combined with Foucaults focus on domination, it is easy to understand why this insight has been embraced by feminists and
minority groups. Elaborating genealogies of, for instance, gender and race leads to an understanding of how relations of domination between
women and men, and between different peoples, can be changed (McNay 1992, Bordo and Jaggar 1990, Fraser 1989, Benhabib and Cornell

. Understanding how power


works is the first prerequisite for action, because action is the exercise of
power. And such an understanding can best be achieved by focusing on the
concrete. Foucault can help us with a materialist understanding of Realpolitik and Realrationalitt, and how these might be changed in
1987). The value of Foucaults approach is his emphasis on the dynamics of power

a specific context. The problem with Foucault is that because understanding and action have their points of departure in the particular and the
local, we may come to overlook more generalised conditions concerning, for example, institutions, constitutions and structural issues.
In sum, Foucault and Habermas agree that rationalisation and the misuse of power are among the most important problems of our time. They
disagree as to how one can best understand and act in relation to these problems. From the perspective of the history of philosophy and
political theory, the difference between Foucault and Habermas lies in the fact that Foucault works within a particularistic and contextualist
tradition, with roots in Thucydides via Machiavelli to Nietzsche. Foucault is one of the more important twentieth century exponents of this
tradition. Habermas is the most prominent living exponent of a universalistic and theorising tradition derived from Socrates and Plato,
proceeding over Kant. In power terms, we are speaking of strategic versus constitution thinking, about struggle versus control, conflict
versus consensus.

Generic
The alternative is keystatus quo is oppressed by
oppressive modernities
Flyvbjerg and Richardson 2Aalborg University, Department of Development and Planning AND
Department of Town and Regional Planning (Bent Flyvbjerg and Tim Richardson, Planning and Foucault In Search of the
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, DOA 7/3/15, AMB@GDI)

take a walk on the dark side.


Planning theorists (and other modernist thinkers) have tended to disregard Foucaults work as being
oppressive. His talk of the all-pervasiveness of power has been seen as crushing the life out of any possibility of empowerment, of
change, of hope. Yet this analysis seems to be based on a superficial reading of parts of
Foucaults major works, such as Discipline and Punish, rather than an attempt to understand
his overall project. Foucaults theory of power is exactly not about
oppressiveness, of accepting the regimes of domination which condition us,
it is about using tools of analysis to understand power, its relations
with rationality and knowledge, and use the resulting insights precisely to
bring about change. When it comes to portraying planners and planning, the
quest of planning theorists could be called the escape from power. But if
there is one thing we should have learned today from students of power, it is that there is no
escape from it. We wish to stress that the modern normative attitude - an attitude that has been dominant in
7. Conclusions:

planning theory throughout the history of this discipline - does not serve modernity, or planning theory, well. The ideals of
modernity, democracy and planning - ideals that typically are worth fighting for - are better served by understanding
Realrationalitt than normative rationality. Normative rationality may provide an ideal to strive for, but it is a poor guide to the

the
majority of planning theorists: they know where they would like to go but not
how to get there. The focus of modernity and of planning theory is on what
should be done. We suggest a reorientation toward what is actually done strategies23 and tactics needed for moving toward to the ideal. This, in our analysis, is the quandary of normative idealists, including

towards verita effettuale. In this way we may gain a better grasp - less idealistic, more grounded - of what planning is and what the strategies

and tactics that may help change it for the better. Foucauldian analysis unlike Habermasian normativism, offers a type of planning

theory which is more useful in understanding how planning is actually done, and offers better prospects for those
interested in bringing about democratic social change through planning. Habermas, among others, views conflict in society as
dangerous, corrosive and potentially destructive of social order, and therefore in need of being contained and resolved. In a Foucauldian

, suppressing conflict is suppressing freedom , because


the privilege to engage in conflict is part of freedom. The Foucauldian challenge
applies to theory too: perhaps social and political theories that ignore or
marginalise conflict are potentially oppressive. And if conflict sustains society,
there is good reason to caution against an idealism that ignores conflict and
power. In real social and political life self-interest and conflict will not give way to some all-embracing communal ideal like Habermass.
interpretation, conversely

Indeed, the more democratic a society, the more it allows groups to define their own specific ways of life and legitimates the inevitable
conflicts of interest that arise between them. Political consensus can never be brought to bear in a manner that neutralises particular group
obligations, commitments and interests. A more differentiated conception of political culture than Habermass is needed, one that will be more
tolerant of conflict and difference, and more compatible with the pluralisation of interests.24 A strong democracy guarantees the

existence of conflict. A strong understanding of democracy, and of the role of planning within it, must therefore be based
on thought that places conflict and power at its centre, as Foucault does and Habermas does not. We

suggest that
an understanding of planning that is practical, committed and ready for
conflict provides a superior paradigm to planning theory than an
understanding that is discursive, detached and consensus-dependent.
Exploring the dark side of planning theory offers more than a negative,
oppressive confirmation of our inability to make a difference. It suggests that
we can do planning in a constructive empowering way, but that we cannot do
this by avoiding power relations. Planning is inescapably about conflict:
exploring conflicts in planning, and learning to work effectively with conflict
can be the basis for a strong planning paradigm.

ATs

AT Perm
Perm failsthe aff would just be inserting power into their
already biopolitical methadologypure alt framing is
critical
Flyvbjerg and Richardson 02 (Aalborg University, Department of Development and Planning AND

Department of Town and Regional Planning (Bent Flyvbjerg and Tim Richardson, Planning and Foucault In Search of the
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, 2002, DOA 7/3/15, AMB@GDI)
Abstract
In this paper we argue that the use of the communicative theory of Jrgen Habermas in planning theory is problematic because it hampers an

power shapes planning. We posit an alternative approach based on the


power analytics of Michel Foucault which focuses on what is actually done, as opposed
to Habermass focus on what should be done. We discuss how the Foucauldian stance problematises planning, asking
difficult questions about the treatment of legitimacy, rationality, knowledge
and spatiality. We conclude that Foucault offers a type of analytic planning theory
which offers better prospects than does Habermas for those interested in understanding and bringing about
understanding of how

democratic social change through planning


1. Introduction

Power has become an inevitable question for planning theorists . John

Friedmann, reflecting on the progress of theory to date, identifies theorists ambivalence about power as one of the

to build relations of
power into their conceptual frameworks . But to bring power more closely into
planning theory, we need to consider carefully what is meant by power, a
concept which has long been the subject of philosophical discourse. For
power cannot be simply bolted on to existing planning theory. What lies
ahead is what John Friedmann has called the long trek of integrating discourses on
power with the still sanitised multiple discourses of planning theory (Friedmann
1997). We believe that along the way, emerging theoretical work will be subjected to difficult challenges about power. Power may
biggest outstanding problems in theorising planning (Friedmann 1997). He urges theorists

become the acid test of planning theory.

In this paper we take a few short steps of this long

trek, and find our progress blocked by an unresolved difficulty with one such emerging body of theory. We encounter an emerging paradigm
which asserts a new, Habermasian communicative rationality for planning (e.g. Innes 1995), which is just beginning to be subjected to
sustained critique on its treatment of power (e.g. Huxley 1998, Huxley and Yiftachel 1998).
Some planning theorists may feel they have already explored this route, and that the obstacles to a Habermasian paradigm have been

we argue that treatment of power in communicative


theory is compromised by the nature of the theory itself. We suggest that
further progress towards the integration of power can benefit from the work
of Michel Foucault, an oeuvre which has been cited already by many planning
theorists. We will argue that Foucaults work holds more promise, and is more relevant
to planning theory than seems to have been generally recognised.
The paper pursues its arguments by exploring some of the vexed differences between Habermas and Foucault. We attempt to show that
Foucauldian theory is not what has been described as a single minded
preoccupation with the politics of coercion (Friedmann 1997), but a sustained
analytics of power and rationality which we can use in productive ways to
support the empowerment of civil society. This productive interpretation of Foucaults work
removed. We disagree. In this paper,

appears to have been missed, or dismissed, which has facilitated the rejection of his theories in relation to planning.

communicative planning theory fails to capture


the role of power in planning. As a result, it is a theory which is weak in its capacity
to help us understand what happens in the real world; and weak in serving as
a basis for effective action and change. Because of these weaknesses, we believe that this
approach to theory building is highly problematic for planning.
Some theorists might contend that using Foucault, they have repaired the
weaknesses in communicative theory which are exposed by juxtaposition with
The position we are attempting to establish is that

Foucaults work. We believe, however, that this cannot be done convincingly . More importantly we are concerned that, in spite of
regular reference to Foucault in planning theory literature, there has not so far been a cogent exploration of the full import of his work for

Foucauldian planning theory addresses exactly


the weaknesses in the communicative paradigm, and makes effective
understanding (verita effettuale, in Machiavelli's words; Wirkliche Historie in Nietzsche's and Foucault's) and effective
action possible, something planners and planning theorists have typically said they want. It requires a turn towards the
planning. In turning to Foucaults work, we argue that

dark side of planning theory - the domain of power - which has been occasionally explored by planning theorists (e.g. Yiftachel 1994,
Flyvbjerg 1996, Roweis 1983, Marcuse 1976) but has been avoided by many others who see only oppression and coercion where power
operates.

AT No Link
The justifications of the affirmative plan are normalizing
the current state of bad biopower, where the surveillance
state makes reforms to be better able to hide their
abuses of power. This turns the case meaning that their
apparent solvency is just another ploy to subdue the
populace into complacency meaning that they arent able
to solve for the harms presented in the 1ac.

AT Floating PIKs Bad


PIKs Good
Negative Ground Strat:
1) PIKS allow the round to reveal the best methodology that the negative
can advocate for. Aff had infinite prep.

Education:

1) Depth is more prevalent with floating PIKs vs. debating only what is
presented in the 1NC

Real World:
1) In real world policies and plans always change to lead to better
development
Defensive Answers-

Predictability and Time:

1) The pik is in the 1NC meaning it is just as predictable anyother off case
argument.

Fairness:
1) Piks do not change the advocacy of the neg. It supports its claims on
the K with the correct methodology revealed through the round.
2) Piks can be answered with many of the same answers as any other CP
or kritik. To be what the affirmative calls fair that means we dont get
CPs or Ks which kills core negative ground

PIK Interpretation:

There are nothing wrong with floating piks if they solve the methodology we
are critiquing.

No voters reject the Argument not the team

Aff

Perm
Perm: do the plan while endorsing criticism exigencies
demand action in the face of criticism
Campbell 98 (David Campbell, Intl Relations Prof @ UM, National Deconstruction: Violence, Identity, and
Justice in Bosnia, Minneapolis: University of Minnesota Press, 1998, DOA 7/3/15, AMB@GDI)

The undecidable within the decision does not , however, prevent the
decision nor avoid its urgency. As Derrida observes, a just decision is always required
immediately, right away. This necessary haste has unavoidable consequences because the pursuit
of infinite information and the unlimited knowledge of conditions ,
rules or hypothetical imperatives that could justify it are unavailable in the crush of
time. Nor can the crush of time be avoided, even by unlimited time, because the moment of
decision as such always remains a finite moment of urgency and
precipitation. The decision is always structurally finite, it aalways marks the interruption of the juridicoor ethico- or politico-cognitive deliberation that precedes it, that must precede it. That is why, invoking
Kierkegaard, Derrida, declares that the instant of decision is a madness. The finite nature of the decision
may be a madness in the way it renders possible the impossible, the infinite character of justice, but
Derrida argues for the necessity of this madness. Most importantly, Derrida argues for the necessity of this
madness. Most importantly, although Derridas argument concerning the decision has, to this pint, been
concerned with an account of the procedure by which a decision is possible, it is with respect to the ncessity
of the decision that Derrida begins to formulate an account of the decision that bears upon the content of
the decision. In so doing, Derridas argument addresses more directly more directly, I would argue than is
acknowledged by Critchley the concern that for politics (at least for a progressive politics) one must

That undecidability resides


within the decision, Derrida argues, that justice exceeds law and calculation, that the
unpresentable exceeds the determinalbe cannot and should not serve as alibi for
staying out of juridico-political battles, within an institution or a
state, or between institutions or states and others. Indeed, incalculable justice requires
us to calculate. From where do these insistences come? What is behind, what is animating, these
provide an account of the decision to combat domination.

imperatives? It is both the character of infinite justice as a heteronomic relationship to the other, a
relationship that because of its undecidability multiplies responsibility, and the fact that left

to itself,
the incalculable and given (donatrice) idea of justice is always very close to
the bad, even to the worst, for it can always be reappropriated by the most perverse calculation.
The necessity of calculating the incalculable thus responds to a duty
that inhabits the instant of madness and compels the decision to
avoid the bad, the perverse calculation, even the worst. This is
the duty that also dwells with deconstructive thought and makes it
the starting point, the at least necessary condition, for the
organization of resistance to totalitarianism in all its forms. And it is
a duty that responds to practical political concerns when we
recognize that Derrida names the bad, the perverse, and the worst
as those violences we recognize all too well without yet having
thought them through, the crimes of xenophobia, racism, antiSemitism, religious or nationalist fanaticism.

Reforms Work/Perm
Distinguishing between authoritarian and democratic
information states solves privacy, freedom, and
democratic participation
Balkin, professor of constitutional law at Yale Law School,
1 January 2008 (Jack M., The Constitution in the National Surveillance
State, Yale Law School,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
If some form of the National Surveillance State is inevitable, how do we
continue to protect individual rights and constitutional government ? Today's

challenge is similar to that faced during the first half of the twentieth century, when government
transitioned into the Welfare State and the National Security State. Americans had to figure out how to
tame these new forms of governance within constitutional boundaries. It is no accident that this period
spawned both the New Deal-with its vast increase in government power-and the Civil Rights Revolution.

The more power the state amasses, the more Americans need constitutional
guarantees to keep governments honest and devoted to the public good. We
might begin by distinguishing between an authoritarian information state and
a democratic information state.6 8 Authoritarian information states are information gluttons
and information misers. Like gluttons they grab as much information as possible because this helps

Authoritarian states are information misers because they try


to keep the information they collect-and their own operations secret from the
public. They try to treat everything that might embarrass them or undermine their authority as state
maximize their power.

secrets, and they multiply secret rules and regulations, which lets them claim to obey the law without
having to account for what they do. In this way they avoid accountability for violating people's rights and
for their own policy failures. Thus, information gluttony and information miserliness are two sides of the
same coin: both secure governments' power by using information to control their populations, to prevent
inquiry into their own operations, to limit avenues of political accountability, and to facilitate self-serving

By contrast, democratic information states are information


gourmets and information philanthropists. Like gourmets they collect and
collate only the information they need to ensure efficient government and
national security. They do not keep tabs on citizens without justifiable
reasons; they create a regular system of checks and procedures to avoid
abuse. They stop collecting information when it is no longer needed and they
discard information at regular intervals to protect privacy . When it is impossible or
propaganda. 69

impractical to destroy information-for example, because it is stored redundantly in many different


locations-democratic information states strictly regulate its subsequent use. If the information state is
unable to forget, it is imperative that it be able to forgive. Democratic information states are also
information philanthropists because they willingly distribute much valuable information they create to the
public, in the form of education, scientific research, and agricultural and medical information. They allow
the public access to information about their laws and their decision-making processes so that the public
can hold government officials accountable if they act illegally or arbitrarily or are corrupt or inefficient.
They avoid secret laws and secret proceedings except where absolutely necessary .

Democratic
states recognize that access and disclosure help prevent governments from
manipulating their citizens. They protect individual privacy because
surveillance encourages abuses of power and inhibits freedom and
democratic participation. Thus being an information gourmet and an
information philanthropist are also connected: both help keep governments
open and responsible to citizens; both further individual autonomy and
democracy by respecting privacy and promoting access to knowledge.

Theory

PIKs Bad
A. Interpretation: Floating PIKS arent legitimate
B. Standards
Ground

1) Floating PIKS steal Aff ground. They cant advocate against the K if it
encompasses their entire case. This destroys the aff ground for
offense. This means that the neg can just moot the 1AC

Predictability
1) Piks let the neg be a moving target
2) Time skew

Fairness

1) Neg can change advocacy during the block which ruins 2AC answers
and skews 1AR
2) Impossible for the affirmative to effectively answer a floating PIK

Predictability
1) Piks let the neg be a moving target
2) Time skew

Education

1) No in round education when the negative team can just change the
debate mid round

C. Reject team to prevent further in round abuse

Criticism Alt Answers

Alt Fails 2ac


The alternative method fails, the extra- legal criticism
fails it just gives people false hope- legally coopted
Lobel 7 (Orly Lobel, Assistant Professor of Law, University of San Diego, THE PARADOX OF EXTRALEGAL ACTIVISM:

CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law Review, 2007, Vol. 120, February 2007,
DOA 7/02/15, AMB@GDI)

Both the practical failures and the fallacy of rigid boundaries generated by
extralegal activism rhetoric permit us to broaden our inquiry to the
underlying assumptions of current proposals regarding transformative politics
that is, attempts to produce meaningful changes in the political and socioeconomic landscapes. The
suggested alternatives produce a new image of social and political action. This vision rejects a
shared theory of social reform, rejects formal programmatic agendas, and
embraces a multiplicity of forms and practices. Thus, it is described in such terms as a
plan of no plan,211 a project of pro- jects,212 anti-theory theory,213 politics rather than goals,214
presence rather than power,215 practice over theory,216 and chaos and openness over order and
formality. As a result, the contemporary message rarely includes a comprehensive vision of common social

the
commonality of struggle and social vision that existed during the civil rights
movement has disappeared.217 There is no unifying discourse or set of values, but rather an
aversion to any metanarrative and a resignation from theory. Professor Handler warns that this move
away from grand narratives is self-defeating precisely because only certain
parts of the political spectrum have accepted this new stance: [T]he
claims, but rather engages in the description of fragmented efforts. As Professor Joel Handler argues,

opposition is not playing that game

. . . . [E]veryone else is operating as if there were

Grand Narratives . . . .218 Intertwined with the resignation from law and policy, the new bromide of
neither left nor right has become axiomatic only for some.219 The contemporary critical legal consciousness
informs the scholarship of those who are interested in progressive social activism, but less so that of those who are
interested, for example, in a more competitive securities market . Indeed, an interesting recent development has

been the rise of conservative public interest lawyer[ing].220 Although public interest law was originally
associated exclusively with liberal projects, in the past three decades conservative advocacy groups have
rapidly grown both in number and in their vigorous use of traditional legal strategies to promote their
causes.221 This growth in conservative advocacy is particularly salient in juxtaposition to the decline of
traditional progressive advocacy. Most recently, some thinkers have even suggested that there may be
something inherent in the lefts conception of social change focused as it is on participation and
empowerment that produces a unique distrust of legal expertise.222 Once again, this conclusion

Although the new


extralegal frames present themselves as apt alternatives to legal reform
models and as capable of producing significant changes to the social map, in
practice they generate very limited improvement in existing social
arrangements. Most strikingly, the cooptation effect here can be explained in terms of the most
reveals flaws parallel to the original disenchantment with legal reform.

profound risk of the typology that of legitimation. The common pattern of extralegal scholarship is to
describe an inherent instability in dominant structures by pointing, for example, to grassroots
strategies,223 and then to assume that specific instances of counterhegemonic activities translate into a

celebration of multiple micro-resistances seems to


rely on an aggregate approach an idea that the multiplication of practices will
evolve into something substantial. In fact, the myth of engagement obscures
the actual lack of change being produced , while the broader pattern of
equating extralegal activism with social reform produces a false belief in
more complete transformation. This

the potential of change . There are few instances of meaningful reordering of social and
economic arrangements and macro-redistribution. Scholars write about decoding what is really happening,
as though the scholarly narrative has the power to unpack more than the actual conventional experience
will admit.224 Unrelated efforts become related and part of a whole through mere reframing. At the same
time, the elephant in the room the rising level of economic inequality is left unaddressed and comes

to be understood as natural and inevitable.225 This is precisely the problematic process that critical
theorists decry as losers self-mystification, through which marginalized groups come to see systemic
losses as the product of their own actions and thereby begin to focus on minor achievements as
representing the boundaries of their willed reality. The explorations of micro-instances of activism are often
fundamentally performative, obscuring the distance between the descriptive and the prescriptive.

The

manifestations of extralegal activism the law and organizing model; the proliferation of
informal, soft norms and norm-generating actors; and the celebrated, separate nongovernmental sphere of

all produce a fantasy that change can be brought about through


small-scale, decentralized transformation. The emphasis is local, but the locality is
action

described as a microcosm of the whole and the audience is national and global. In the context of the
humanities, Professor Carol Greenhouse poses a comparable challenge to ethnographic studies from the
1990s, which utilized the genres of narrative and community studies, the latter including works on
American cities and neighborhoods in trouble.226 The aspiration of these genres was that each individual
story could translate into a time of the nation body of knowledge and motivation.227 In contemporary
legal thought, a corresponding gap opens between the local scale and the larger, translocal one. In reality,
although there has been a recent proliferation of associations and grassroots groups, few new localstatenational federations have emerged in the United States since the 1960s and 1970s, and many of the
existing voluntary federations that flourished in the mid-twentieth century are in decline.228 There is,
therefore, an absence of links between the local and the national, an absent intermediate public sphere,
which has been termed the missing middle by Professor Theda Skocpol.229

New social

movements have for the most part failed in sustaining coalitions or


producing significant institutional change through grassroots activism. The limits
of the law as a means of effecting social change have been a key focus of legal thinkers over the past several decades.
The aggregate impact of emerging schools of thought challenging the value of legal reform in producing social change has
been the development of a contemporary critical legal consciousness - a conventional wisdom [*939] about the relative

Critical claims go further than simply expressing disappointment


in the capacity of the legal system to achieve the desired goals of a social
movement. An argument that has become increasingly prevalent in legal
scholarship states that the law often brings more harm than good to social
movements that rely on legal strategies to advance their goals. The law
entices groups to choose legal strategies to advance their social goals but
ultimately proves to be a detrimental path. The negative effect is generally
understood as "legal cooptation" - a process by which the focus on legal reform narrows the causes,
inefficacy of law. n1

deradicalizes the agenda, legitimizes ongoing injustices, and diverts energies away from more effective and
transformative alternatives. Consequently, the argument proceeds, the turn to the law actually reinforces existing
institutions and ideologies. As they engage with the law, social reform groups become absorbed by the system even as
they struggle against it.

Alt Fails 1ar


External Criticism fails, the postmodern theory behind it
doesnt challenge the foundations of the legal system
Litowitz 00 (Douglas, Visiting Assistant Professor, Florida Coastal School of Law, "Postmodernism
without the 'Pomobabble'," 2 Fl. Coastal L.J. 41, Fall 2000, DOA 7/02/15, AMB@GDI)

postmodern theory has two major drawbacks: (1) it takes an


overly external perspective on law, and (2) it is too dismissive of foundations
to offer a program for reform. Postmodern theory offers an external critique of the
legal system because it refuses to speak in the language games and terminology which are used (often
unreflectively) by the officials inside the legal system. The external perspective differs greatly from the
internal viewpoint adopted in mainstream Anglo-American jurisprudence, especially in
the influential work of Ronald Dworkin, who has referred to the external perspective as
'perverse.' n132 Most legal scholars uncritically adopt the internal perspective
and then set about solving problems from within a closed universe of positive
law, thereby [*75] narrowing the professor's vision within the limits of the existing system. Postmodernism
eschews this in favor of an external perspective, which suffers from a different
problem, namely that the external perspective is very far removed from the
actual language games in which law is practiced . In other words, the practice of
law is approached from such a critical distance that it is left
Despite these benefits,

unchanged . For example, a postmodern deconstruction of property law does


little to help tenants who are abused by landlords, unless the deconstruction is wedded
to a larger vision for reform of the law. Even if the postmodernists are capable of reducing
the law to rhetoric or power relations, we still need to decide legal cases, to
push the law in a particular direction . And here is where postmodernism comes up
short, because its negative thrust renders it incapable of getting started on a program of reform, despite
its power as a critical tool. The failure of postmodernism to recommend a program for legal change is
related to a second problem--the rejection of all foundations, both metaphysical and contingent. As we saw
earlier, postmodern legal theory begins with a critique of Enlightenment concepts such as the autonomous legal subject,
natural law, and God, but when the postmodern critique of these foundations turns into a full-blown rejection,

postmodernism seems to nihilistically discount any basis on which to


ground a vision of a just political order.
postmodernism is not the type of intellectual movement that sets itself
the task of finding new foundations for the legal system. Perhaps the best understanding
Perhaps

of postmodernism is to see it as offering something along the lines of what Critical Theorist Theodor Adorno called
'negative dialectics,' n133 a ceaseless refusal to accept the limits of the materials that are given--in this case, a refusal to
accept the limits of the legal system as presently configured, and a desire to question its foundations, to imagine a better
system with new ideas about property, freedom, employment, liability, and criminal responsibility. Critical theorist Herbert
Marcuse once referred to this attitude as 'the Great Refusal,' n134 and it serves a valuable purpose, if only to make us less
comfortable with our existing beliefs and practices. Postmodernism does not, then, provide a blueprint for a better society
or a method for deciding cases, but rather serves as a critical tool for assessing the questionable assumptions and
methodologies that underlie much legal doctrine and scholarship. [*76] To be sure, postmodernism has its fringe
elements, and much postmodern theory is poorly written. But the task of the scholar is to look past the fringes and find

This element
of charity, so crucial for scholarly exchange, is missing in much of the recent
criticism of postmodernism. Postmodernism is many things, both positive and negative, but it is surely
the core of a movement, to depict a movement in its best possible light, and only then to criticize it.

something more than mere 'pomobabble.'

Examples of extralegal activism are exaggerated and


prove activist criticism fails cant produce substantive
change and risks cooption
Lobel 7 (Orly Lobel, Assistant Professor of Law, University of San Diego, THE PARADOX OF EXTRALEGAL ACTIVISM:

CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law Review, 2007, Vol. 120, February 2007,
DOA 7/02/15, AMB@GDI)

The explorations of micro-instances of activism are often fundamentally


performative, obscuring the distance between the descriptive and the
prescriptive. The manifestations of extralegal activism - the law and organizing model; the
proliferation of informal, soft norms and norm-generating actors; and the celebrated, separate nongovernmental sphere of

- all produce a fantasy that change can be brought about through smallscale, decentralized transformation. The emphasis is local, but the locality is described as a
action

microcosm of the whole and the audience is national and global. In the context of the humanities, Professor Carol
Greenhouse poses a comparable challenge to ethnographic studies from the 1990s, which utilized the genres of narrative
and community studies, the latter including works on American cities and neighborhoods in trouble. n226 The aspiration
of these genres was that each individual story could translate into a "time of the nation" body of knowledge and
motivation. n227 In contemporary legal thought, a corresponding gap opens between the local scale and the larger,
translocal one. In reality, although there has been a recent proliferation of associations and grassroots groups, few new
local-state-national federations have emerged in the United States since the 1960s and 1970s, and many of the existing
voluntary federations that flourished in the mid-twentieth century are in decline. n228 There is, therefore, an absence of
links between the local and the national, an absent intermediate public sphere, which has been termed "the missing
middle" by Professor Theda Skocpol. n229 New social movements have for the most part failed in sustaining coalitions or
producing significant institutional change through grassroots activism. Professor Handler concludes that this failure is due
in part to the ideas of contingency, pluralism, and localism that are so embedded in current activism.230 Is the focus on
small-scale dynamics simply an evasion of the need to engage in broader substantive debate? It is important for nextgeneration progressive legal scholars, while maintaining a critical legal consciousness, to recognize that not all extralegal
associational life is transformative. We must differentiate, for example, between inward-looking groups, which tend to be
self- regarding and depoliticized, and social movements that participate in political activities, engage the public debate,
and aim to challenge and reform existing realities.231 We must differentiate between professional associations and more
inclusive forms of institutions that act as trustees for larger segments of the community.232 As described above ,

extralegal activism tends to operate on a more divided and hence a smaller


scale than earlier social movements, which had national reform agendas. Consequently, within
critical discourse there is a need to recognize the limited capacity of small-scale action. We should question
the narrative that imagines consciousness-raising as directly translating into
action and action as directly translating into change. Certainly not every cultural description
is political. Indeed, it is questionable whether forms of activism that are opposed to programmatic reconstruction of a

when groups are situated in


opposition to any form of institutionalized power, they may be simply
mirroring what they are fighting against and merely producing moot
social agenda should even be understood as social movements. In fact,

activism that settles for what seems possible within the narrow space that is left in a rising convergence of
ideologies. The original vision is consequently coopted, and contemporary
discontent is legitimated through a process of self-mystification.
V. Restoring Critical Optimism in the Legal Field

The alternative fails the criticism isnt able to holistically


challenge the legal system- allowing the internal workings
to survive
Litowitz 98 (Douglass, Visiting Assistant Professor, Chicago-Kent College of Law, "INTERNAL VERSUS EXTERNAL
PERSPECTIVES ON LAW: TOWARD MEDIATION," http://www.law.fsu.edu/journals/lawreview/frames/261/litofram.html, Fall
1998, DOA 7/2/15, AMB@GDI)

The advantage of an externally oriented approach lies in its critical distance, in its ability to present before our eyes things
that happen behind our backs. Ideally, these external insights can be folded back into the internal practice to improve it.
For example, if a legal theorist can convince a judge that she has an unconscious class, race, or gender bias, this insight

might affect her future decisions. The external perspective also brings to light legal notions that are silently assumed in
the ordinary practice of law but which seem artificial and problematic when considered from a distance. For instance, law
students are essentially thrown into a system that they are forced to accept in order to function, such as the feudal
classifications that haunt contemporary property law, with its fee simple determinables, springing remainders, and the

the external perspective allows a comparison of the


existing system with alternative traditions from which we might borrow to
improve our legal system. Despite these advantages, external theory has two
major drawbacks: (1) its critique of the legal system is often so global that in
striving to undermine the entire system it actually accomplishes very little to
reform the system; and (2) it degenerates into behaviorism by reducing the
richly textured internal perspective to robot-like reflexes. As for totalizing
critiques of the law offered by external thinkers like Marx, Nietzsche, and Foucault, the intended
goal is to destabilize or criticize the entire legal systemor to at least
question an entire area of law, such as property law or criminal law. This approach can be seen
Rule Against Perpetuities. Lastly,

in Marx's claim that jurisprudence is a reflection of class interests,[46] in Nietzsche's claim that democracy

liberal
guarantees of freedom and autonomy are bogus. [48] These thinkers seem to
be saying that the entire legal tradition is rotten, that it is built on a faulty or deceptive edifice; so any
tinkering within the system that is short of a revolution will be as fruitless as rearranging
deck chairs on the Titanic. Paradoxically, this strategy often fails completely because
and equal rights constitute a type of "slave morality,"[47] and in Foucault's claim that the

the critique is so far removed from the practice of law that

it leaves the internal

workings of the legal apparatus untouched . As Wittgenstein said in a similar point


about philosophy, "It leaves everything as it is."[49] This point was captured in Michael Walzer's quip about
Michel Foucault: "[W]hen critical distance stretches into infinity, the critical enterprise collapses."[50] To
see this in more detail, consider Nietzsche's claim that the movement toward equal rights is a symptom of
"slave morality," a leveling down of great individuals into the herd.[51] This claim is certainly not going to
be of much immediate help to the players inside the legal system who must decide cases and enact laws.
Nietzsche's argument may be of some use to legislators in deciding whether to enact welfare laws or
affirmative action schemes,[52] for example, but Nietzsche's claim about "slave morality" is not couched in
the language games typically used by judges and legislators who speak about constitutional rights,
compelling state interests, and balancing tests. If Nietzsche's work is to affect the legal system, it must do
so in a very roundabout way, perhaps by functioning as a reminder that our push toward equality might
have a downside, or by causing legislators to stand back and take a globally critical perspective on the
legal system. In other words, Nietzsche's external critique must somehow be translated or mediated so
that it can affect the internal practice of the law, perhaps by forcing a rethinking of foundational notions in
the legal systemjustice, property, mercy, punishment, and the adversarial system. Although a

largescale critique of the legal system may have some romantic appeal, it is
difficult to see how any political or legal theoryapart from, say, anarchism
could be derived from such an attitude of distrust toward our practices and
traditions. Hilary Putnam summarized this point nicely: Many thinkers have fallen into Nietzsche's error
of telling us they had a "better" morality than the entire tradition; in each case they only produced a
monstrosity, for all they could do was arbitrarily wrench certain values out of their context while ignoring
others. We can only hope to produce a more rational conception of rationality or a better conception of
morality if we operate from within our tradition . . . .[53] While we must interrogate our traditions, there is
no sense in escaping them altogether because that would leave us homeless. As Richard Rorty is fond of
saying, " We

have to start from where we are ."[54] To paraphrase Putnam, we can


only hope to form a more rational legal system by working within the present
system without fetishizing it.[55] This point can be illustrated by looking at the failures and

successes of external feminist theory. When Catharine MacKinnon pronounces that "the state is male,"[56]
the critique is so total that it seems to leave no room for changing the system without displacing it entirely.
However, this position is belied by MacKinnon's undisputed efforts at reforming this "male" system from
within.[57] Feminist theory succeeds when it steps into legal doctrine and points out, for example, that the
legal definition of rape contains a male bias (in requiring physical resistance by rape victims) or that the
public-private split which runs through the law has traditionally left women in an unprotected private
realm.[58] Here, as elsewhere, external critics need to translate or mediate their message so that the

The second problem with external theory


is that it tends to be overly reductionistic and dismissive of the mental states
message can register on the internal side of the law.

of the actors within the legal system.

n59 In extreme cases, the internal perspective [*143] is


reduced to folly, confusion, and ignorance-judges are tools of the bourgeoisie, n60 modern day inquisitors, n61 or mere
conduits for reinforcing social hierarchies, such as corporate and administrative bureaucracies. n62 The problem here is
that the internal side of law is reduced to blind ideological reflexes, much as behaviorism reduced the inner experience of
human emotions to stimulus and response. The external characterization fails to capture the reality of legal practice in
which judges weigh policies and principles, struggle to achieve justice, and occasionally question the law and its
fundamental assumptions.

Alt cant solve


The CLS vision is another illegitimate form of domination
their author and same source
Hutchinson and Monahan in 84

(Allan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL


STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36
Stan. L. Rev. 199, Stanford Law Review, January, 1984, DOA 7/01/15, AMB@GDI)
One must step outside the liberal paradigm, into a realm where truth may be experiential, where knowledge resides in

While
such Critical activity may be indispensable, it can only be preparatory.
Moreover, trashing may itself prove to be an obstacle [*229] to the mapping
out of any future vision of society. n129 The object of trashing is to expose
and sweep away the prevailing structures of thought that persuade people
that present social arrangements are necessary and natural, rather than
arbitrary and contingent. n130 Yet, in line with this goal, CLSers must be careful to avoid foisting their own
world views that are themselves situated in history, where power and ideas do not exist separately. n128

structure of thought on others; to do so would open themselves to the same charges they so vigorously level at others.

Any attempt to offer its own vision of a reconstituted society would


merely result in the replacement of one form of consciousness with another;
"liberal consciousness" would simply be exchanged for "Critical
consciousness." The CLS vision would be equally illegitimate and would
amount to just another form of domination. The implication of this insight for the Critical scholars
n131

seems to be that each individual must be left to act alone, free from the constraints of any inhibiting consciousness.

Impact Turn: Surveillance Good


Turn- Surveillance eradicates all crimes and reduces
police brutality
Armstrong, research fellow at the Future of Humanity Institute at
Oxford University, 30 September 2013 (Stuart, Life in a Fishbowl,

Aeon, http://aeon.co/magazine/society/the-strange-benefits-of-a-totalsurveillance-state/, Accessed on 2 July 2015, //PK@GDI)


If calibrated properly, total surveillance might eradicate certain types of
crime almost entirely. People respond well to inevitable consequences, especially those that follow
swiftly on the heels of their conduct. Few would commit easily monitored crimes such
as assault or breaking and entering, if it meant being handcuffed within minutes. This kind
of ultra-efficient police capability would require not only sensors capable of
recording crimes, but also advanced computer vision and recognition
algorithms capable of detecting crimes quickly . There has been some recent progress on
such algorithms, with further improvements expected. In theory, they would be able to alert
the police in real time, while the crime was still ongoing. Prompt police
responses would create near-perfect deterrence, and violent crime would be
reduced to a few remaining incidents of overwhelming passion or extreme
irrationality. If surveillance recordings were stored for later analysis, other types of crimes
could be eradicated as well, because perpetrators would fear later discovery
and punishment. We could expect crimes such as low-level corruption to
vanish, because bribes would become perilous (to demand or receive) for those who are constantly
under watch. We would likely see a similar reduction in police brutality . There might
be an initial spike in detected cases of police brutality under a total surveillance regime, as incidents that
would previously have gone unnoticed came to light, but then, after a short while, the numbers would
tumble. Ubiquitous video recording, mobile and otherwise, has already begun to expose such incidents.

Turn- Surveillance reduces militaries and solves arms


races
Armstrong, research fellow at the Future of Humanity Institute at
Oxford University, 30 September 2013 (Stuart, Life in a Fishbowl,
Aeon, http://aeon.co/magazine/society/the-strange-benefits-of-a-totalsurveillance-state/, Accessed on 2 July 2015, //PK@GDI)
The military is another arm of state power that is ripe for a surveillance-inspired shrinking. If crossborder surveillance becomes ubiquitous and effective, we could see a
reduction in the $1.7 trillion that the world spends on the military each year .
Previous attempts to reduce armaments have ultimately been stymied by a
lack of reliable verification. Countries can never trust that their enemies arent cheating, and
that encourages them to cheat themselves. Arms races are also made worse by a psychological
phenomenon, whereby each side interprets the actions of the other as a dangerous provocation, while

With cross-border mass surveillance,


countries could check that others are abiding by the rules, and that they
werent covertly preparing for an attack. If intelligence agencies were to use
all the new data to become more sophisticated observers, countries might
develop a better understanding of each other. Not in the hand-holding, peace-and-love
sense, but in knowing what is a genuine threat and what is bluster or posturing .
interpreting its own as purely defensive or reactive.

Freed from fear of surprising new weapons, and surprise attacks, countries
could safely shrink their militaries. And with reduced armies, we should be
able to expect reduced warfare, continuing the historical trend in conflict reduction since the
end of the Second World War.

Turn- Mass surveillance solves pandemics which are the


biggest threat to humanity
Armstrong, research fellow at the Future of Humanity Institute at
Oxford University, 30 September 2013 (Stuart, Life in a Fishbowl,
Aeon, http://aeon.co/magazine/society/the-strange-benefits-of-a-totalsurveillance-state/, Accessed on 2 July 2015, //PK@GDI)
Of course, these considerations pale when compared with the potential for mass
surveillance to help prevent global catastrophic risks, and other huge
disasters. Pandemics, to name just one example, are among the deadliest dangers
facing the human race. The Black Death killed a third of Europes population in
the 14th century and, in the early 20th century, the Spanish Flu killed off between 50 and 100 million

smallpox buried more people than the two world wars


combined. There is no reason to think that great pandemics are a thing of the
past, and in fact there are reasons to think that another plague could be due
soon. There is also the possibility that a pandemic could arise from synthetic biology, the human
people. In addition,

manipulation of microbes to perform specific tasks. Experts are divided as to the risks involved in this new
technology, but they could be tremendous, especially if someone were to release, accidentally or

Mass
surveillance could help greatly here, by catching lethal pandemics in their
earliest stages, or beforehand, if we were to see one being created artificially.
It could also expose lax safety standards or dangerous practices in legitimate
organisations. Surveillance could allow for quicker quarantines, and more effective
treatment of pandemics. Medicines and doctors could be rushed to exactly the right places, and
malevolently, infectious agents deliberately engineered for high transmissibility and deadliness.

micro-quarantines could be instituted. More dramatic measures, such as airport closures, are hard to
implement on a large scale, but these quick-response tactics could be implemented narrowly and
selectively. Most importantly, those infected could be rapidly informed of their condition, allowing them to

With proper procedures and perfect surveillance, we could


avoid pandemics altogether. Infections would be quickly isolated and
eliminated, and eradication campaigns would be shockingly efficient . Tracking
seek prompt treatment.

the movements and actions of those who fell ill would make it much easier to research the causes and
pathology of diseases. You can imagine how many lives would have been saved had AIDS been sniffed out
by epidemiologists more swiftly.

Turn- Mass surveillance rapidly advances research in


economics and science
Armstrong, research fellow at the Future of Humanity Institute at
Oxford University, 30 September 2013 (Stuart, Life in a Fishbowl,

Aeon, http://aeon.co/magazine/society/the-strange-benefits-of-a-totalsurveillance-state/, Accessed on 2 July 2015, //PK@GDI)


Indeed, there are whole new bodies of research that could emerge from the
data provided by mass surveillance. Instead of formulating theories and
laboriously recruiting a biased and sometimes unwilling group for testing,
social scientists, economists and epidemiologists could use surveillance data
to test their ideas. And they could do it from home, immediately, and have
access to the worlds entire population. Many theories could be rapidly

confirmed or discarded, with great benefit to society. The panopticon would


be a research nirvana.

Turn- surveillance state key to welfare state that solves


social services and rights
Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance

State, Yale Law School,


http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
The National Surveillance State is a way of governing. It is neither the product
of emergency nor the product of war. War and emergency are temporary
conditions. The National Surveillance State is a permanent feature of
governance, and will become as ubiquitous in time as the familiar devices of
the regulatory and welfare states. 17 Governments will use surveillance, data
collection, and data mining technologies not only to keep Americans safe
from terrorist attacks but also to prevent ordinary crime and deliver social
services.' 8 In fact, even today, providing basic social services-like welfare
benefits-and protecting key rights-like rights against employment
discrimination-are difficult, if not impossible, without extensive data collection
and analysis. 19 Moreover, much of the surveillance in the National
Surveillance State will be conducted and analyzed by private parties. 20 The
increased demand for-and the in- creased use of-public and private
surveillance cannot be explained or justified solely in terms of war or
emergency. 2

Increased Accountability Solves


Increased accountability mechanisms in the NSA solves
civil liberties
Setty, professor of law at Western New England University, 2015
(Sudha, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful
Accountability, Stanford Journal of International Law 69, Winter, //PK@GDI)
Reliance on sporadic leaks to trigger genuine accountability is structurally
problematic. n107 Our reliance on leaks thus far should force us to reconsider
the extreme secrecy under which intelligence-gathering programs, like the
NSA Metadata Program, are administered, and to consider means by which
institutional actors can exert meaningful and regular oversight and control
over these programs. Such change would force politicians to take ownership over secret
counterterrorism programs, weighing their expediency against possible constitutional defects or the

An atmosphere in which accountability mechanisms are


not merely ersatz pending an illegal leak could provide space for genuine
public discourse and at least the possibility of greater protection of civil
liberties.
judgment of public opinion.

GAO oversight of the NSA solves


Brinkerhoff, writer for AllGov, 12 January 2014 (Noel, Government

Accountability Office Can Provide Oversight of NSAif Congress would just


Ask, AllGov, http://www.allgov.com/news/controversies/governmentaccountability-office-can-provide-oversight-of-nsaif-congress-would-just-ask140112?news=852142, Accessed on 3 July 2015, //PK@GDI)
Today, the justification for restoring the type of on-site, investigative oversight
of NSA that GAO could provide may be newly apparent though no one seems to have
noticed that GAO could actually provide it, Aftergood wrote. Not taking advantage of the
GAOs expertise and its historical knowledge of the NSA would seem to be a
lost opportunity on the part of Congress. If it were directed to conduct audits and
investigations on behalf of Congress, there is reason to believe the GAO could
add a valuable dimension to NSA oversight, Aftergood wrote.

Congressional Action Solves


Congressional Action is key to solving the intelligence
state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 20082009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers
Congress must pass new superstatutes to regulate the collecttion, collation,
purchase, and analysis of data. These new superstatutes would have three
basic features. First, they would restrict the kinds of data governments may
collect, collate, and use against people. They would strengthen the very
limited protections of e-mail and digital business records, and rein in how the
government purchases and uses data collected by private parties. They
would institutionalize government "amnesia" by requiring that some kinds of
data be regularly destroyed after a certain amount of time unless there were
good reasons for retaining the data. Second, the new superstatutes would
create a code of proper conduct for private companies that collect, analyze,
and sell personal information. Third, the new superstatutes would create a
series of oversight mechanisms for executive bureaucracies that collect,
purchase, process, and use information

Oversight Solves
Oversight of the executive branch is the most important
thing we can do to solve the intelligence state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 20082009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers
Oversight of executive branch officials may be the single most important goal
in securing freedom in the National Surveillance State. Without appropriate
checks and oversight mechanisms, executive officials will too easily slide into
the bad tendencies that characterize authoritarian information states. They
will increase secrecy, avoid accountability, cover up mistakes, and confuse
their interest with the public interest.

Judicial Independence Solves


Surveillance State
Judicial independence is key to solving the surveillance
state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 20082009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers
Judicial oversight need not require a traditional system of warrants. It could
be a system of prior disclosure and explanation and subsequent regular
reporting and minimization. This is especially important as surveillance
practices shift from operations targeted at individual suspected persons to
surveil lance programs that do not begin with identified individuals and focus
on matching and discovering patterns based on the analysis of large amounts
of data and contact information.81 We need a set of procedures that
translate the values of the Fourth Amendment (with its warrant requirement)
and the Fifth Amendment's Due Process Clause8 2 into a new technological
context. Currently, however, we exclude more and more executive action
from judicial review on the twin grounds of secrecy and efficiency. The Bush
administration's secret NSA program is one example; the explosion in the use
of administrative warrants that require no judicial oversight is another.8 3 Yet
an independent judiciary plays an important role in making sure that zealous
officials do not overreach. If the executive seeks greater efficiency, this
requires a corresponding duty of greater disclosure before the fact and
reporting after the fact to determine whether its surveillance programs are
targeting the right people or are being abused. Judges must also counter the
executive's increasing use of secrecy and the state secrets privilege to avoid
accountability for its actions. Executive officials have institutional incentives
to label their operations as secret and beyond the reach of judicial scrutiny.
Unless legislatures and courts can devise effective procedures for inspecting
and evaluating secret programs, the Presidency will become a law unto itself.

Executive oversight Solves


Surveillance State
Oversight of the executive branch is key to solving the
surveillance state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 20082009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers
Given the limits of legislative and judicial oversight, oversight within the
executive branch will prove especially crucial. Congress can design
institutional structures that require the executive to police itself and make
regular reports about its conduct. For example, if Congress wants to bolster
legal protections against warrantless surveillance, it might create a cadre of
informational ombudsmen within the executive branchwith the highest
security clearances-whose job is to ensure that the government deploys
information collection techniques legally and nonarbitrarily.8 4 Unfortunately,
the Bush administration has made extreme claims of inherent presidential
power that it says allow it to disregard oversight and reporting
mechanisms.85 Rejecting those claims about presidential power will be
crucial to securing the rule of law in the National Surveillance State