restrict presidential war powers controversy paper

Presidential War Powers 1

Restoring the Balance: Restricting Presidential War Powers

A controversy paper proposal for the 2013-14 CEDA season

Dr. Kelly Young, Wayne State (OSOs)

John Koch, Wayne State (Drones/UAV)

Bruce Najor, Wayne State (Detention)

Al Hiland, Minnesota (Covert Ops)

Jacob Justice, Wayne State (Wiretapping)

Brad Meloche, Wayne State (Preventive Intervention)

Talya Slaw, Wayne State (UN/NATO Operations)


Table of Contents

Executive Summary…………………………………………………………………………………………………………………………………3

I. Introduction……………………………………………………………………………..…………………………………………………5

II. The Status Quo and the Central Controversy

A. The Status Quo & Uniqueness……………………………………………………………………………………….7

B. Stakes of the Controversy………………………………………………………………………………………………9

III. Mainstream options for policy change –Limitations/Restrictions on War Powers

A. Statutory Limitations or Restrictions as a Mechanism……………………………………………………………….12

B. Broad Statutory Approaches to Restrict the Use of War Powers………………………………….16

C. Specific Approaches to Restrict the Use of War Powers

1. UAV/Drone Strikes…………………………………………………………………………………………..17

2. Offense Cyber Operations……………………………………………………………………………….25

3. Indefinite Detention………………………………………………………………………………………..29

4. Warrantless Wiretapping…………………………………………………………………………………39

5. DOD Covert Operations…………………………………………………………………………………..46

6. Approval for UN/NATO Action…………………………………………………………………………52

7. Unilateral Preventive Military Operations……………………………………………………….57

D. Critical Approaches to Limiting Presidential Powers

1. Local/National focus and critique of presidentialism……………………………………….62

2. Psychoanalytic/anti-capitalist analysis……………………………………………………………..64

3. Critical examination of the National Security State………………………………………….65

4. Critical interrogations of specific technologies/war powers…………………………...66

IV. Unique educational opportunities…………………………………………………………………………………………………….66

V. Core Negative Ground

A. Leadership/hegemony DA…………………………………………………………………………………………….70

B. Terrorism Credibility DA……………………………………………………………………………………………….73

C. International Peacekeeping/Human Rights Enforcement DA……………………………………...74

D. Modeling Das……………………………………………………………………………………………………………….76

E. Politics DA…………………………………………………………………………………………………………………….76

F. Counterplans………………………………………………………………………………………………………………..78

G. Negative Critical Arguments…………………………………………………………………………………………84

VI. Potential directions for wording papers……………………………………………………………………………………………87

VII. Recommendation of the authors…………………………………………………………………………………………………….92


Executive Summary

We know that there will be a number of excellent controversy papers offered for the 2013-2014

season. Careful consideration of these proposals is always difficult as the school year ends and summer

camp work begins. We apologize in advance for submitting a rather lengthy controversy proposal.

However, the length of this paper does not reflect the unmanageable size of the topic (indeed, the topic

could easily be made to be rather narrow in scope if desired) but rather the wealth of excellent

arguments and evidence that exist on this topic that would make it enjoyable for an entire season. We

were rather exuberant in our desire to provide an in-depth discussion of this controversy.

To assist you, we have streamlined our reasons to support this controversy here. The

subsequent sections offer more depth and evidence of these claims. We propose that the 2013-2014

debate resolution examines the restriction of presidential war powers.

• The controversy is timely but not too timely – the news is dominated by unchecked presidential

war powers such as UAV drone strikes, warrantless wiretaps, and preventive war powers.

However, in the wake of the 9-11 attacks, Congress and the Courts have abdicated their

constitutional duties as checks to executive authority and allowed unconstrained presidential

war authority in the fight against terror. As a result, there is little chance that the status quo will

change any time soon and guarantees that the plan will make a significant change from the

status quo.

• Clearly defined controversy with clear uniqueness – Recent CEDA forums discussions of

controversies and debate topics have maintained that controversy papers should require a large

degree (or quality) of change by the affirmative, have solid uniqueness that does not allow the

affirmative to argue that their change is similar to some action being taken in the status quo,

and that there be a clearly identifiable “disadvantage to the resolution.” We believe this

controversy paper includes all three of those elements. First, there is no chance that Congress or

the Courts will limit the president’s war powers in the status quo, thus making the action taken

significant and controversial. Second, there is a clear disadvantage to the topic – constraining

presidential war powers undermines U.S. ability to respond to emerging rogue nation and non-

state threats.


• It is a legal controversy without being solely a courts topic -

Issues surrounding presidential constitutional authority as commander in chief implicate many

of the most contested issues in constitutional law. As such, the controversy raises a number of

important legal questions and requires students to engage legal literature to research the

debate. However, what is nice about this controversy is that it does not have to be a courts

topic. The advantage of this is that we can debate important liberal legal issues without having

to debate Courts Politics, Legitimacy, or Activism DAs. While there is nothing inherently wrong

with these arguments, they have a tendency to dominate legal debate topics. Our proposal

allows us to access the educational benefits of a legal topic without having to debate the typical

set of generic legal strategies.


“…comprehensive and undefined presidential powers hold both practical advantages and grave dangers

for the country” – Supreme Court Justice Robert Jackson, 1952.

I. Introduction

On March 7, Senator Rand Paul (R-Ky.) began a 13-hour long filibuster of President Obama’s

nomination of John Brennan as head of the CIA. The purpose of the filibuster was to “dra[w] attention to

deep concern on both sides of the aisle about the administration’s use of unmanned aerial vehicles

(UAVs) in its fight against terrorists and whether the government would ever use them in the United

States.”1 While the filibuster eventually ended and Brenan was successfully nominated, Paul’s efforts

received somewhat surprising bipartisan praise, especially from conservative and libertarian critics and

civil-liberties-minded liberals and progressives. For example, Senator Jeff Merkley (D-OR), praised Paul

for his “fight for an important ideal”2 ACLU senior legislative counsel Christopher Anders was hopeful

that the filibuster was “part of Congress reasserting its constitutional role of checks and balances

between the president and the Congress. For too long on national security issues we’ve had congress

out to lunch.”3

Anders highlights the central controversy surrounding the Obama administration’s use of UAVs

and definition of “enemy combatants”: the ever expanding scope of presidential war powers. While

Anders holds out hope that this act will restore the constitutional checks and balances between the

legislative and executive branches over national security and war powers, several trends suggest that

this rare congressional criticism against the deployment of executive authority will not be sustained. For

instance, senior GOP leaders such as Senators John McCain (R-AZ) and Lindsey Graham (R-SC) quickly

rebuked Paul, arguing that expansive presidential powers are necessary for the president to effectively

fight the War on Terror.4 This response is not surprising, as it continues a long trend of Congress

abdicating its Constitutional responsibility in restraining excessive presidential power.5 In the last four

decades, over 100 military actions were taken by the president without significant congressional

1 Ed O’Keefe and Aaron Blake, “Paul’s filibuster in opposition to Brennan, drone policy ends after nearly 13 hours,”

Washington Post, March 7, 2013, http://www.washingtonpost.com/politics/rand-paul-conducts-filibuster-in-

opposition-to-john-brennan-obamas-drone-policy/2013/03/06/1367b1b4-868c-11e2-9d71-

f0feafdd1394_story.html 2 Z. Byron Wolf, “Rand Paul Wins Applause From GOP and Liberals,” ABC News, March 7, 2013,

http://abcnews.go.com/blogs/politics/2013/03/rand-paul-wins-applause-from-gop-and-liberals/ 3 ibid

4 Richard Stevenson and Ashley Parker, “A Senator’s Stand on Drones Scrambles Partisan Lines,” New York Times,

March 7, 2013, http://www.nytimes.com/2013/03/08/us/politics/mccain-and-graham-assail-paul-filibuster-over-

drones.html?pagewanted=all&_r=0 5 Peter Irons, War Powers: How the Imperial Presidency Hijacked the Constitution, New York: Metropolitan Books,

2005.


opposition6, leading noted historian Arthur Schlesinger Jr. to contend that the growth in presidential

national security and war powers occurred “as much a matter of congressional acquiescence as of

presidential usurpation.”7

As former U.S. senator and Secretary of the Navy, Jim Webb notes in 2013, congressional

abdication of its role in balancing ever expanding presidential powers has grown worst overtime and is

in clear opposition to the Framers’ intent:

Jim Web, “Congressional Abdication,” National Interest, March-April 2013,

http://nationalinterest.org/article/congressional-abdication-8138?page=1

IN MATTERS of foreign policy, Congress, and especially the Senate, was designed as a hedge against the

abuses exhibited by overeager European monarchs who for centuries had whimsically

entangled their countries in misguided adventures. America would not be such a place. The Constitution would protect our

governmental process from the overreach of a single executive who might otherwise succumb to the impulsive temptation to unilaterally risk our country’s blood, treasure and

international prestige. Congress was given the power to declare war and appropriate funds, thus

eliminating any resemblance to European-style monarchies when it came to the presidential

war power. Importantly and often forgotten these days, Article I, Section 8 of the Constitution was also carefully drawn to give Congress, not the president, certain

powers over the structure and use of the military. True, the president would act as commander in chief, but only in the sense that he would be executing policies shepherded

within the boundaries of legislative powers. In some cases his power is narrowed further by the requirement that he obtain the “Advice and Consent” of two-thirds of the

Senate. Congress, not the president, would “raise and support Armies,” with the Constitution limiting appropriations for such armies to no more than two years. This was a clear

signal that in our new country there would be no standing army to be sent off on foreign adventures at the whim of a pseudomonarch. The United States would not engage in

unchecked, perpetual military campaigns. Congress would also “provide and maintain a Navy,” with no time limit on such appropriations. This distinction between “raising” an

army and “maintaining” a navy marked a recognition of the reality that our country would need to protect vital sea-lanes as a matter of commercial and national security,

confront acts of piracy—the eighteenth-century equivalent of international terrorism—and act as a deterrent to large-scale war. Practical circumstances

have changed, but basic philosophical principles should not. We reluctantly became a global

military power in the aftermath of World War II, despite our initial effort to follow historical patterns and demobilize. NATO was not

established until 1949, and the 1950 invasion of South Korea surprised us. In the ensuing decades, the changing nature of

modern warfare, the growth of the military-industrial complex and national-security policies

in the wake of the Cold War all have contributed to a mammoth defense structure and an

atrophied role for Congress that would not have been recognizable when the Constitution was

written. And there is little doubt that Dwight D. Eisenhower, who led the vast Allied armies on the battlefields of Europe in World War

II and who later as president warned ominously of the growth of what he himself termed the “military-

industrial complex,” is now spinning in his tomb. Perhaps the greatest changes in our defense

posture and in the ever-decreasing role of Congress occurred in the years following the

terrorist attacks on U.S. soil of September 11, 2001. Powers quickly shifted to the presidency as the call

went up for centralized decision making in a traumatized nation where quick, decisive action

was considered necessary. It was considered politically dangerous and even unpatriotic to question this shift, lest one be accused of impeding national

safety during a time of war. Few dared to question the judgment of military leaders, many of whom were untested and almost all of whom followed the age-old axiom of

continually asking for more troops, more money and more authority. Members of Congress fell all over themselves to prove they were behind the troops and behind the wars.

Besides this general relinquishment of its constitutional responsibilities, Congress tends to hold a

“situational” view of constitutionalism, which supports and expands executive powers when one’s party

resides in the White House or in times of emergency and crisis.8 Thus, while Paul’s stand against the

6 Gene Healy, “10. Reclaiming the War Power,” Cato Handbook for Policymakers, 7th edition, 2009,

http://www.cato.org/cato-handbook-policymakers/cato-handbook-policymakers-7th-edition-2009 7 Cited in ibid.

8 Ibid.


executive’s expansion of war powers was newsworthy, it is rather unlikely to radically alter the long

trend growth in presidential powers.

II. The Status Quo and the Central Controversy

A. The Status Quo & Uniqueness

What interested us in crafting a presidential war powers proposal in the first place was that the

central controversy surrounding the topic dominates the news today. Countless libertarian and

progressive critics have attacked Obama’s unchecked use of drone attacks, expansion of terrorist

targeting policy, and maintenance of the Guantanamo Bay detention center ever since he took office.

Despite hopes that the Obama administration would reverse a number of Bush Administration war on

terror (WoT) policies that massively increased the scope of presidential authority without congressional

oversight, Obama has merely tinkered with some details of those policies while increasing the use of

others.

Jack Goldsmith, Henry L. Shattuck Professor of Law at Harvard University, The

Accountable Presidency, THE NEW REPUBLIC (Feb. 1, 2010), http://www.tnr.com/article/books-

and-arts/the-accountable-presidency

The increasingly powerful but increasingly law-bound presidency is the key to understanding the remarkable extent to which

President Obama has continued the counterterrorism policies of his predecessor. Obama has cut

back the Bush program on interrogation and black sites, though not as much as most people

think. He has supported tiny congressional modifications to military commissions, but he has

persisted in their use. He has controversially insisted on a civilian trial for Khalid Shaikh

Mohammed, but this is less of a change than critics suggest, as the Bush administration often

used civilian trials for terrorists, including the September 11 plotter Zacarias Moussaoui, the Al Qaeda agent José

Padilla, the “shoebomber” Richard Reid, and the “American Taliban” John Walker Lindh. Obama has replicated Bush’s

legal arguments concerning detention, habeas corpus, and state secrets. And he has

embraced, and indeed ramped up, the Bush approach to targeted killing and rendition.

Because of the Obama administration’s embrace of expanded presidential powers, the status quo

remains strongly in favor of high executive authority. Additionally, it remains highly unlikely that any

meaningful action will be taken in the status quo to reduce presidential powers. In Congress, there is

widespread fear that any opposition to the President will be highly unpopular with the public and that

Congress will be held accountable for any future security problems or failures. Even when highly

controversial policies like Guantanamo Bay, Abu Ghraib, and “black” detention sites are discussed in

Congress, little to no meaningful action was taken in response.9 Additionally, in 40 years, federal courts

have consistently refused to side either way in these War Power Resolution (WPR) balance of power

9 Christopher Schroeder, “Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in

Chief,” Indiana Law Journal, Fall, 2005, pp. LN.


disputes.10 Even recently, when the Supreme Court made three decisions – Hamdi v. Rumsfeld, Rumsfeld

v. Padilla, and Rasul v. Bush – that examined the Bush administration’s claim that Commander in Chief

powers allowed the administration to ignore congressional limitations on executive powers, these

decisions either did not reject the Bush administration’s justification or they simply turned aside the

question without reason why. As a result, the Court’s decisions have had little impact on the balance of

power regarding war powers.11

And this is part of a long historical trend. As Peter Coffman, an attorney for the US Department

of Justice, summarizes the issues involved (which highlight the broad advantage and disadvantage

ground of the topic – democratic balance of powers vs. strong presidency acting swiftly on national

security matters) and the uniqueness of the debate about Commander-in-Chief powers, the debate

between proponents and opponents12 of strong presidential powers has not been resolved and the

uniqueness question is rather clear for this topic:

Peter D. Coffman, attorney, US Depart of Justice, 1995, BOOK REVIEW: POWER AND DUTY:

THE LANGUAGE OF THE WAR POWER War and Responsibility: Constitutional Lessons of Vietnam

and its Aftermath. By John Hart Ely, Cornell Law Review, May, pp. LN.

Since the Korean War, voices inside and outside of government have decried presidentially

initiated military action in Haiti, Somalia, the Persian Gulf, Panama, the Gulf of Sidra, Lebanon, the Dominican Republic,

Indochina, and elsewhere n1 as encroachments on Congress's "Power ... to declare War." n2 Others

perceive not presidents actively usurping legislative power but rather an acquiescent Congress

"sitting back and letting the President act in its place." n3 On the other hand, proponents of

presidential power have argued that the President holds, through practice or necessity, an

inherent power to [*1237] initiate war in a variety of circumstances, and that an aggressive

Congress treads on that right. n4 As Justice Jackson noted in 1951, the boundary dispute between

Congress and the President in foreign affairs is not a recent development: A century and a half

of partisan debate and scholarly speculation yields no net result but only supplies more or less

apt quotations from respected sources on each side of any question. They largely cancel each

other. And court decisions are indecisive because of the judicial practice of dealing with the

largest questions in the most narrow way. n5 Neither side has moved the dispute substantially

closer to a resolution in succeeding years. n6 Congressional proponents continue to rely upon

the specific constitutional grant of the "decisional" n7 war power and the record of debates

upon this grant at the Constitutional Convention. n8 Supporters of presidential initiative

counter with the textual grants of the Executive power and the Commander-in-Chief role to

the President, buttressed with realist arguments about the necessity of [*1238] a strong

10

Ibid. 11 David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman, Visiting Professor of Law,

Georgetown University Law Center, “THE COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM,

DOCTRINE, AND ORIGINAL UNDERSTANDING,” Harvard Law Review, January 2008, pp. LN. 12

Some review of the debate between strong president proponents/opponents is found Robert Bejesky, “WAR

POWERS PURSUANT TO FALSE PERCEPTIONS AND ASYMMETRIC INFORMATION IN THE "ZONE OF TWILIGHT", St.

Mary’s Law Journal, 2012, pp. LN.


Presidency in the modern world. n9 Supreme Court jurisprudence has not conclusively placed

any of these argumentative gambits off limits. n10 As a result, ample numbers of intelligent lawyers continue to

hold each position on the basis of "respected [legal] sources on each side of [the] question."

Consequently, the controversy is both timely and involves a broad range of potential affirmative ground

advocated by both the staunchest of conservative constitutionalists to ultra-liberal critics of the security-

state. The negative is dominated by national security hawks and advocates of a strong presidency who

demand that any and all action be taken to counter contemporary threats of global terrorism and

weapons of mass destruction (WMD) proliferation. As such, there is a clear, robust, and distinct

controversy that has a consistent status quo and uniqueness.

B. Stakes of the Controversy

The heart of the controversy is whether or not we should have a strong executive branch that

can execute foreign policy and war decisions in a rapid and unhindered manner or if we should have a

stronger balance of powers between the executive, legislative, and judicial branches over these matters.

According to Andru Wall, Senior Associate with Alston & Bird LLP and former senior legal advisor for U.S.

Special Operations Command Central in 2011, the debate about the scope of presidential authority

remains highly controversial because it involves many of the most contentious constitutional issues:

This Constitutional separation or balancing of power between the President and Congress with respect to war powers sparked

intense debate nearly as soon as the Constitution was ratified. Discussions of the President's constitutional

authority as commander in chief implicate "some of the most difficult, unresolved, and

contested issues in constitutional law." n31 This debate is perhaps best pictured as a Venn

diagram: some assert a circle of "inherent" Presidential power, some favor a circle of

Congressional checks on "imperial" Presidential power, while others see a Constitutional

overlap or balancing of powers between the two branches. One scholar astutely observes that "[w]riters

on the relative powers of the presidency versus the Congress almost invariably lapse into

advocacy when they comment on the textual, historical or functional bases of war powers." 13

As Wall notes, central to this debate is the appropriate constitutional balance of power between the

executive and legislature. Beginning with executive actions taken during Thomas Jefferson’s Barbary

Wars, James Madison’s War of 1812, and the Civil War, there has been a constant struggle between the

executive and congress over the appropriate balance between the two branches in foreign and war

policy.14 Following World War II, Congress largely acquiesced to the continued expansion of presidential

power that lead to the Korean and Vietnam wars. However, as a result of the Vietnam War, Congress

13

“Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert

Action,” Harvard National Security Journal, http://harvardnsj.org/wp-content/uploads/2012/01/Vol.-3_Wall1.pdf. 14

Daniel C. Diller & Stephen H. Wirls, “Chapter 4: Commander in Chief,” in Powers of the Presidency (2nd

ed.),

Washington, D.C.: Congressional Quarterly, 1997, p. 166-169.


enacted the War Powers Resolution (WPR)15 (HJ Res. 542, PL 93-148) in November 1973, overriding

President Nixon’s veto, in order to “reassert its constitutional prerogative to authorize all significant

military engagements.”16 As the “centerpiece of Congress’s effort to claim a role in foreign policy,” the

WPR,

requires the Executive to consult with Congress prior to the use of military force and to report to

Congress within forty-eight hours of the start of hostilities. More importantly, the WPR requires

the Executive to terminate the use of force (1) after sixty days if Congress has not subsequently

ratified that use of force, or (2) even earlier if Congress passes a resolution requiring

termination.17

Yet, even this joint resolution was opposed by both conservatives and liberals. Liberal critics maintained

that the WPR enhanced rather than restricted presidential power by given the president sanction to use

military power for almost any use for up to ninety days.18 Conservatives argued that the WPR restricted

presidential foreign policymaking too much, reducing necessary flexibility in a constantly changing

strategic environment.19 Even today, almost 40 years after its enactment, the WPR remains a source of

constant controversy over presidential authority. As Richard Grimmett, specialist in international

security, explains in 2012,

Richard Grimmett, 2012, “The War Powers Resolution: After Thirty-Eight Years,” Congressional

Research Service, Sept 24, www.fas.org/sgp/crs/natsec/R42699.pdf.

The record of the War Powers Resolution since its enactment has been mixed, and after 30 years it

remains controversial. Some Members of Congress believe the Resolution has on some occasions

served as a restraint on the use of armed forces by Presidents, provided a mode of communication, and

given Congress a vehicle for asserting its war powers. Others have sought to amend the

Resolution because they believe it has failed to assure a congressional voice in committing

U.S. troops to potential conflicts abroad. Others in Congress, along with executive branch officials, contend

that the President needs more flexibility in the conduct of foreign policy and that the time

limitation in the War Powers Resolution is unconstitutional and impractical. Some have argued for

its repeal.

Thus, debates about reducing presidential power would provide a critical examination of one of the

most fundamental controversies in government policymaking and constitutional checks and balances.

15

The WPR is often referred to as the War Powers Act, the name of the Senate legislation that was passed, even

though it was passed as a Joint Resolution that became the WPR. 16

Diller & Wirls, 177. 17

Michael Benjamin Weiner, 2007, “A Paper Tiger with Bite: A Defense of the War Powers Resolution,” Vanderbilt

Jrnl of Transnatl Law, pp. LN. 18

Diller & Wirls, 179. 19

Richard Grimmett, 2012, “The War Powers Resolution: After Thirty-Eight Years,” Congressional Research Service,

Sept 24, www.fas.org/sgp/crs/natsec/R42699.pdf.


Given that presidential powers over foreign policy and war have steadily increased since the

founding of this country, what is the danger of the contemporary expansion of authority since 9-11? At

a broad level, the entire system of checks and balances and separation of powers between the three

federal branches that serve as a check to tyranny, unlimited federal power, and imperial ambition.20

These unchecked powers threaten due process, the nation’s democratic design, and risk a never ending

state of warfare. As von Hoffman explains,

Constantine von Hoffman, February 07, 2013, “Secret Wars—Cyber or Otherwise—

Destroy Democracies,” http://blogs.cio.com/security/17782/secret-wars%E2%80%94cyber-or-

otherwise%E2%80%94destroy-democracies

What both the drone assassinations and cyberwar powers have in common is a total lack of

outside review. The administration claims U.S. citizen Anwar al-Awlaki was given "due

process" before being killed in a drone strike. There is no definition of due process that fits the

policies described in the just-released legal rationalization. No one—not the courts, not

Congress—got to review the decision, even ex post facto. We should never forget that strike killed two American

citizens. The other was Abdulrahman al-Awlaki, Anwar’s 16-year-old son. He was guilty of riding in a car with his father. The

cyberattack capabilities are at a similar level of lethality, The Times tells us: "One senior American official said

that officials quickly determined that the cyberweapons were so powerful that—like nuclear weapons—

they should be unleashed only on the direct orders of the commander in chief." Again, without

any advice or consent from what used to be known as our elected representatives. As James

Madison wrote: "In no part of the constitution is more wisdom to be found, than in the clause

which confides the question of war or peace to the legislature, and not to the executive

department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation

would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may

be expected in the ordinary successions of magistracy." I found that quote in an incredible post by Charlie Pierce on Esquire’s politics

blog. It ends by describing the other cost of assassinations and secret cyberwars: "Government secrecy

and deception blurs the line between genuine fears over the decline of civil liberties, and the

wild-assed fantasies of the black-helicopter crowd. If you want to see the true destructive

power of Droneworld in this country, look deeply into the Id of the democratic political

imagination. There are angry, feral creatures in there, stalking the ruins, howling for blood.

Particularly in a post 9-11 world, these powers allow for constant preemptive strikes and perpetual

warfare because “there is no clear point when hostilities cease, no clear boundary to the battlefield, no

clear set of combatants….prone to…[a] hasty decision to forestall some emergency.”21 As a result, the

risk of a permanent and unchecked state of war and emergency is very real, which accesses a great

number of policy and critical literature impacts.22

20

Donald R. Wolfensberger, “The Return or the Imperial Presidency?” The Wilson Quarterly, Vol. 26, No. 2 (Spring,

2002), pp. 36-41, JSTOR 21

Andrew Rudalevig, Associate Professor of Political Science, Dickinson College, 2005, The New Imperial

Presidency, Ann Arbor, U of Mich Press, p. 272. 22

Jack Goldsmith, “Obama: Counterterrorist-in-Chief,” Defining Ideas, July 19, 2012,

http://www.hoover.org/publications/defining-ideas/article/122876


Overall, the stakes of the controversy – both the advantage and disadvantage (the disadvantage

is outlined in more detail later in the document) –are best summarized by Seth Weinberger:

Seth Weinberger, Assistant Professor in the Department of Politics and

Government at the University of Puget Sound, “Balancing War Powers in an Age of

Terror,” The Good Society, Volume 18, Number 2, 2009 (Proquest)

The question of allocating war powers between the president and Congress is a critical one. If

too much power is concentrated in the hands of the executive, the country risks undermining

basic constitutional protections of individual freedoms and eroding the democratic nature of

the republic; if too much of a role is given to Congress, the country may not be able to

effectively develop policies to protect itself. And when there is no clear theory guiding the actions of the

government, policy muddles along, with the executive branch taking the lead by putting an idea into action and hoping that it will

withstand judicial scrutiny. Thus there is a need for a balanced theory of war powers that respects the constitutional allocation of

power and heeds the advice of President Ford.

III. Mainstream options for policy change –Limitations/Restrictions on

Presidential War Powers

A. Statutory Limitations or Restrictions as a Mechanism

The literature on reducing presidential war powers outlines two basic approaches to limiting the

use of these powers: (1) create new limitations or restrictions on the president’s war powers (or new

judicial interpretation of existing statutes); and (2) use Congress’s power of the purse to eliminate

funding for unauthorized presidential military operations. Because eliminating funding is at best

reactionary (although it might serve as potential counterplan ground), we focus on the first approach –

creating new statutory limitations on presidential power. While this will be discussed more at length in a

later discussion about agents, we largely focus on congressional action for simplicity and because much

of the literature discusses this agent. But this in no way should be read to exclude judicial

interpretations of statutory limitations that would limit presidential war powers. Indeed, we contend

that a potential resolution should allow for both congressional and judicial response.

There is a very healthy debate in peer-reviewed journals about structural limits on executive war

powers and legal experts come down fairly strongly both for and against these restraints.23 A debate

focused on the mechanism of increasing statutory regulations on presidential war powers does not

23

A fascinating part of the controversy is simply the broader solvency debate about whether structural limits,

when actually put into place, actually constrain presidential action. E.g., arguing that structural limits do not work,

see Deborah Pearlstein, Visiting Scholar, Woodrow Wilson School for Public and International Affairs, Princeton

University; Director, U.S. Law and Security Program, Human Rights First, 2005 “Finding Effective Constraints on

Executive Power: Interrogation, Detention, and Torture,” Indiana Law Journal, Fall, 2005, pp. LN. For arguments

that structural limitations succeed, see Matthew Fleischman, “A FUNCTIONAL DISTRIBUTION OF WAR POWERS,”

New York University Journal of Legislation and Public Policy, 2010, pp. LN.


challenge the president’s inherent authority to respond to national security matters. However, it does

raise an important debate about how to appropriate share and regulate military and foreign affair duties

between the executive and legislative branches. As Neil Kinkopf contends,

Neil Kinkopf, Associate Professor, Georgia State University College of Law, 2005,

“The Statutory Commander in Chief,” Indiana Law Journal, Fall, pp. LN.

The first constitutional question one must ask when interpreting the extent of presidential

power over military and foreign affairs is how to read the Constitution's allocation of powers

between the President and Congress. There are two possible [*1170] approaches: one focuses on

the way the Constitution divides power among the branches and reads those powers as

separate and distinct--call this the exclusivity model; the other focuses on the way the

Constitution contemplates that power will be shared among the branches--the reciprocity

model. For example, the Constitution grants the President some powers relating to war--notably the commander-in-chief power--and grants others to Congress, such as

the power to make rules for the regulation and government of the land and naval forces. The exclusivity view reads these as separate and distinct powers, which means that

Congress may not make rules and regulations that burden the President's ability to act as commander in chief. The reciprocity model views these

powers as components of a shared war power. The Constitution, on this view, means for the

President and Congress each to wield aspects of the war power, which means that the powers should be understood in a

way that accommodates the exercise of each and recognizes that they overlap and interrelate. While debate over these competing conceptions stretches back to our early

constitutional history, n2 the reciprocity model has come to be accepted as the appropriate way to

approach questions of power. n3 The model has its most famous articulation in Justice Jackson's concurring opinion in Youngstown Sheet & Tube. n4

"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins

upon its branches separateness but interdependence, autonomy but reciprocity." n5 The reciprocity model follows from James Madison's formulation of the principle of

separation of powers. Those opposing the ratification of the Constitution argued that the document mingled powers among the President and Congress, thus violating the

principle. Madison rejoined that this objection misapprehends the separation of powers principle. The separation of powers principle does not forbid the blending of power

between the branches: [Montesquieu] did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his

own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is

exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. n6 [*1171] Nevertheless,

the exclusivity model occasionally rears its head. Most notoriously, the Department of Justice employed this model in its original Torture Memo. n7 In that memorandum, the

Office of Legal Counsel (OLC) opined that the anti-torture statute could not prohibit the President from ordering the use of torture in interrogations of enemy combatants,

because such a prohibition would violate the President's constitutional powers. OLC opined that the Constitution assigns the war power to the President. n8 It failed even to cite

to Justice Jackson's seminal opinion from Youngstown. This is no mere violation of citation etiquette, for it led OLC to fail to acknowledge that Congress has any relevant

authority whatsoever. Had OLC employed Justice Jackson's framework, OLC would have been unable to avoid recognizing Congress's relevant powers, including the power to

make rules to govern the military and to define and punish violations of the law of war. As there is no plausible interpretation that these powers are irrelevant to the validity of

the prohibition on torture, the application of the correct interpretive model--reciprocity rather than exclusivity--has decisive significance. Despite the apparent resolution in

favor of the reciprocity model, OLC has continued to apply the exclusivity model. Although the Department of Justice eventually withdrew the Torture Memo, n9 OLC continues

to invest the dispute with significance by following the exclusivity model. The memorandum withdrawing the Torture Memo rescinds the section dealing with the President's

commander-in-chief power only because it regards the discussion to have been unnecessary. n10 The withdrawing memo, however, does not repudiate or even question the

substance of the Torture Memo's reasoning on the issue of presidential power. Moreover, contemporaneous OLC opinions--which have been neither repudiated nor withdrawn-

-continue to employ the exclusive approach to presidential power. The continuing salience of the controversy over how to

construe the President's powers relating to foreign and military affairs has been most recently

highlighted in the debate over the legal validity of President Bush's domestic surveillance

program. The particulars of the program remain secret, but the broad parameters pose the issues quite starkly. The President has authorized the National Security

Agency (NSA) to engage in domestic surveillance by wire-tapping communications between persons within the United States (including, but not limited to, United States citizens)

and persons outside the United States where one party to the communication is "linked to al Qaeda or related terrorist organizations." n11 The Justice

Department has taken the position that [*1172] the President has "inherent constitutional

authority" to engage in surveillance designed to protect national security. n12 This much is, or

should be, uncontroversial. It is widely accepted that the President holds a protective power

n13 to respond to emergencies that threaten national security. What is controversial is the

claim that this power is exclusive and not subject to regulation or limitation. This assertion was

the foundation of the Torture Memo n14 and underlies the Justice Department's defense of the

domestic surveillance program. The domestic surveillance program directly implicates the

controversy over the nature of the President's inherent constitutional powers because it runs

afoul of a specific statutory prohibition , the Foreign Intelligence Surveillance Act (FISA). FISA is a

comprehensive regulation of electronic surveillance within the United States. FISA requires that the government acquire a warrant from a special court (the Foreign Intelligence

Surveillance Court) before undertaking any electronic surveillance within the United States. n15 By the terms of the act, FISA is the "exclusive means by which electronic

surveillance . . . may be conducted." n16 FISA sets forth several categories of exception to the warrant requirement, and the nature of these exceptions underscores FISA's

comprehensive scope. For example, FISA specifically addresses itself to the context of wartime surveillance, authorizing warrantless searches for a fifteen-day period after war is

declared. n17 Moreover, FISA provides that in an emergency situation, surveillance may commence before a warrant is obtained, as long as a warrant application is made within


seventy-two hours after surveillance is initiated. n18 If the President's inherent authority to engage in national security

surveillance is exclusive, in that it is not susceptible to statutory regulation , then FISA is

unconstitutional in requiring that such surveillance be conducted only pursuant to a warrant.

If, on the other hand, the President's inherent power is not exclusive, Congress retains power

to impose regulations that apply to the President's exercise of his authority . Here, Congress

has authority to regulate the instrumentalities of interstate and foreign commerce, which

paradigmatically include lines of communication such as cell phones, telephones, and email. n19

Moreover, the agencies that the President would deploy to conduct the surveillance are created and structured by Congress pursuant to its substantive powers generally under

Article I, Section 8, and especially under the [*1173] Necessary and Proper Clause. n20 Congress is empowered by these authorities to determine how those agencies will and

will not operate. Under a reciprocal understanding of constitutional power, the appropriate inquiry is suggested by Justice Jackson's concurring opinion in Youngstown Sheet &

Tube Co. v. Sawyer. "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only

upon his own constitutional powers minus any constitutional powers of Congress over the matter." n21 The Supreme Court refined this inquiry

in Morrison v. Olson, asking whether the statute in question "disrupts the proper balance

between the coordinate branches by preventing the Executive Branch from accomplishing its

constitutionally assigned functions." n22 Given the secrecy of the NSA surveillance program, it is impossible to offer a definitive conclusion to

this question. Nevertheless, none of the Bush Administration's burgeoning attempts to defend the program would satisfy the standard. n23

While Article II, Section Two of the U.S. Constitution establishes the broad parameters of presidential

war powers, they are not defined with much specific detail. For instance, the Commander in Chief

powers are described as: “The President shall be Commander in Chief of the Army and Navy of the

United States, and of the Militia of the several States.” Because of this, statutes are what define the full

extent and limits of presidential authority. As Kinkopf continues,

Neil Kinkopf, Associate Professor, Georgia State University College of Law, 2005,

“The Statutory Commander in Chief,” Indiana Law Journal, Fall, pp. LN.

This symposium asks us to consider the scope and limits of presidential power in the context of war and terrorism. This question

strongly suggests a constitutional focus. n1 Because the Constitution establishes the presidential office and sets forth its powers and

duties, it is the appropriate starting point for considering this question. The Constitution alone, however, does not get us very far.

A wide range of statutes bear on the President's power in this realm and serve to define the

extent and limits of his power . As a practical matter, then, the question of presidential power in the

context of war and terrorism is one of statutory interpretation. Recognizing the centrality of statutory

interpretation in this crucial area, a number of scholars have turned their attention to this question. From

their writings, a consensus appears to be emerging on some important foundational points. First,

these scholars claim that the President is entitled to deference. Second, where assertions of presidential power

implicate individual constitutional rights, these scholars claim that the President's assertion

must be founded on a statute that includes a clear statement of authority.

Courts can apply statutory restrictions by interpreting laws in ways to now apply to current war powers.

David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman,

Visiting Professor of Law, Georgetown University Law Center, 2008, “THE

COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND

ORIGINAL UNDERSTANDING,” Harvard Law Review, January, pp. LN.

4. Judicial Enforcement of Implied Statutory Restrictions. - The way the Supreme Court

approaches war powers generally, when combined with the increased mass of potentially

relevant legislative restrictions on the conduct of this military conflict, further increases the


likelihood that the "lowest ebb" issue will be joined in the future. Principles of deference to executive

authority tend to dominate academic discussion of statutory interpretation and war powers. As we have indicated, however,

Hamdan, Youngstown, and other modern war powers cases demonstrate that the Court cannot be counted on to give the President

the benefit of the doubt. And in many war powers cases, the Court has been perfectly willing to

construe ambiguous statutory language against certain background rules that it presumes

Congress intended to honor, n84 including a presumption that the Executive must [*719] comply with the laws of war.

n85 This general and longstanding judicial willingness to find implied limitations in ambiguous

texts concerning the use of military force and national security powers is sometimes

controversial. But whether justified or not, such an interpretive approach is of particular import now,

given the sheer mass of preexisting statutes potentially applicable to the conflict with al

Qaeda and the likelihood that this body of law will grow. Executive branch lawyers may be hard-pressed to advise their client

agencies that creative construction can overcome the apparent statutory restrictions, at least if there is a reasonable prospect of

judicial review (as there often will be in the war on terrorism due to its peculiar domestic connections). Instead, the prospect of

judicial review will impel these lawyers to advise that the courts could well construe the potentially restrictive

language to impose hard constraints on the Executive's preferred course of conduct - and that only

the assertion of a superseding constitutional power of the President could, possibly, overcome such limits. Thus, the relatively weak

deference the Court has long shown the President in many war powers cases, when combined with the relatively high likelihood in

the war on terrorism of the applicability of restrictive but ambiguous statutory language and a justiciable case to hear, make

constitutional assertions of preclusive executive powers a more likely occurrence than war powers scholarship typically assumes.

Although the status quo has a number of statutory limitations on presidential war powers, these

restrictions are ineffective due to political compromises made during their crafting. This is why an

academic debate about what should be the limits on presidential power rather than what would they be

is worthwhile.

Christopher Schroeder, Charles S. Murphy Professor of Law and Professor of

Public Policy Studies, Director of the Program in Public Law, Duke University,

2005, “Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in

Chief,” Indiana Law Journal, Fall, pp. LN.

When Congress has the political will to take a more proactive approach to problems in the

areas of foreign and military affairs, it often does not fare much better in establishing parity in

any supposed partnership with the President. As already noted, legislation is the product of

compromises, and Presidents almost always have supporters within the legislative chambers

who will work with the President's forces to push for such compromises. Occasionally, political

stars may align to produce a genuinely reciprocal arrangement, as they did when the Foreign Intelligence

Surveillance Act (FISA) was enacted with the full support of President Carter and his Attorney General, Griffin Bell. n28 Such

moments, however, are extremely rare. Much more common are situations like enactment of

the War Powers Resolution. n29 Because [*1330] presidential opposition prompted

compromises, the Resolution did not accomplish its objective (whatever one might think of its merits),

namely to "put the pressure where it should be--on the [P]resident to start thinking about removing armed forces sixty days after he

has committed them to a hostile situation;" instead it "puts pressure on Congress to declare that United States forces are 'in

hostilities' in order to trigger the sixty-day clock for troop removal." n30

B. Broad Statutory Approaches to Restrict the Use of War Powers

More specific statutory limitations that can be placed on the use of executive war authority will

be discussed in more detail after this section of the paper. However, we would like to begin by listing

what some broad proposals to limit the use of presidential war powers would look like. While the


examples here are in the context of reforming the WPR, they also represent most of the mainstream

policy options for limiting presidential war powers.

1) Return to the original Senate version of the WPR and eliminate the delay before presidential

notification or declaration of war. This would require prior notification to and authorization by

Congress to any use of U.S. military forces without a declaration of war except to prevent a

direct attack on the U.S. or its forces abroad. In particular, noted foreign policy experts Leslie

Gelb and Anne-Marie Slaughter, among others, suggest this option.24

2) Shorten the Time Limitation before Consultation. Rather than eliminating the time period over

which the president can maintain forces in a conflict without congressional approval, some

scholars call for shortening that time period from 60 to 30 days.25

3) Increase oversight/create a permanent consultation group in Congress for war powers issues.

Senators Byrd, Nunn, Warner, and Mitchell have proposed such an option.26 In the specific

context of UAV drone strikes, mainstream proposals for change include creating a “drone court”

with the federal judiciary or a permanent congressional committee, like the oversight created by

the Foreign Intelligence and Surveillance Act (FISA), to review executive decisions about drone

targets and deployment.27

4) Create legal standing for members of Congress to sue the executive for violations of the WPR.

This option would allow any member of Congress to bring an action in the U.S. District Court for

the District of Columbia for judgment and injunctive relief on the grounds that the President or

U.S. forces have violated the WPR. In the status quo, courts routinely reject such cases on the

grounds that they lack standing to sue.28

5) Repeal parts or all of PL 107-40, the 2001 Authorization for Use of Military Force (AUMF), the

congressional consent to the Bush and now Obama administration to use all necessary military

force to fight the War on Terror. The AUMF has been used to as evidence of congressional

consent for most of the presidential powers discussed in this paper. For instance, Representative

Barbara Lee (D-CA) introduced H.R. 198, a measure to repeal the AUMF.29 Our discussion of

UAVs/drones also discusses this as a solvency mechanism. Parts or the entirety of this AUMF can

be revised or repealed.

24

“Declare War: It's time to stop slipping into armed conflict,” Foreign Affairs, Nov 2005,

http://www.theatlantic.com/magazine/archive/2005/11/declare-war/304301/. Also see Gene Healy, “10.

Reclaiming the War Power,” Cato Handbook for Policymakers, 2009, 7th edition, http://www.cato.org/cato-

handbook-policymakers/cato-handbook-policymakers-7th-edition-2009 25

Grimmett. 26

Ibid. 27

E.g., Carlo Munoz, “Sens. Feinstein, Leahy push for court oversight of armed drone strikes,” The Hill, Feb 10,

2013, http://thehill.com/blogs/defcon-hill/policy-and-strategy/282033-feinstein-leahy-push-for-court-oversight-

of-armed-drone-strikes- 28

Grimmet. 29

Norman Solomon, “Congress: End Endless War and Stop Becoming “the Evil That We Deplore,” Truth-Out, Feb

24, 2013, http://truth-out.org/news/item/14755-congress-end-endless-war-and-stop-becoming-the-evil-that-we-

deplore


This is obviously not an exhaustive list of options, merely a sampling of the types of reforms

recommended. The next sections provide more specific suggestions for each area we explore.

C. Specific Approaches to Restrict the Use of War Powers

1. Deploy offensive forces - UAV/Drone Strikes

The use of UAV drone strikes is a highly controversial area that could produce excellent debates.

As David Adler writes, “The ongoing controversies surrounding President Barack Obama's use of drones

to target ‘enemies’ of the United States raises anew the question of the president's legal authority to

conduct the war on terror.”30 Moreover, “it has broad implications…for the constitutional allocation of

war powers and the responsibilities of Congress and the president in the management and conduct of

this, or any, war.”31 These were among the reasons cited by presidential candidate Obama for the need

to reform Bush’s counterterrorism practices. However, despite these promises President Obama has

expanded Bush’s War on Terrorism, especially the usage of drones.32 This increased use of drone

technology has led to a number of questions about the constitutional and legal basis for the

commander-in-chief to unilaterally kill suspected terrorists.33 Overall, the president has been given this

type of authority because Congress has abdicated its duty to check the executive branch and in some

instances, as with authorization of the 2001 AUMF, have actually voted to expand the president’s

power. The problem is not the president, but Congress’ inability to constrain the office.34

Given this historical precedent, what can Congress do to limit the power of the presidency in

regards to drones? Affirmative cases would likely focus on overall drone policy or a more narrow focus

on the targeting of American citizens. In both cases, the most effective solvency mechanism would be

for Congress to pass a new AUMF.

Crowley 4/1/13 (Michael, Writer for Time, http://www.time.com/time/printout/0,8816,2139176,00.html)

Those activities probably include drone strikes. But one reason Obama's drone campaign is under pressure is that it is increasingly

straining against its legal authority. The legal basis for Obama's targeted-killing operations (which can also

involve strikes from manned airplanes, among other tactics) is the 2001 Authorization for Use of Military

Force (AUMF), a law passed by Congress three days after 9/11. The AUMF was as broad in meaning as it was concise in

language--a 395-word measure whose key passage empowered the President "to use all necessary and appropriate force against

those nations, organizations, or persons he determines planned, authorized, committed, or aided" the Sept. 11 attacks.¶ For years,

only a handful of critics questioned whether the drone campaign begun by George W. Bush and Cheney and accelerated by Obama

was operating outside the law. Now members of Congress and legal scholars are asking whether it

30

http://www.idahostatesman.com/2013/03/14/2490377/congress-needs-to-restrict-presidents.html 31

Ibid. 32

Michael Boyle, The Guardian, June 11, 2012, http://www.guardian.co.uk/commentisfree/2012/jun/11/obama-

drone-wars-normalisation-extrajudicial-killing 33

Ibid. 34

Charles Sanders 5/29/12, Esquire, http://www.esquire.com/blogs/politics/obama-kill-list-9257224)


makes sense for U.S. counterterrorism policy to be guided by language hastily drafted as the

wreckage of the World Trade Center still burned. "I believe most everybody thought--certainly I thought--it was

limited in time and space," says Jane Harman, a former Democratic Congresswoman from California with expertise in intelligence

issues. "I never imagined it would be around 12 years later." In a speech last year, Johnson warned that the law "should not

be interpreted to mean ... that we can use military force whenever we want, wherever we

want."¶ But sometimes that's how it looks. In recent years, Administration lawyers have decreed that international law permits

the U.S. to target "associated forces" of al-Qaeda. That has allowed for strikes against a broad range of individuals, most of whom

have no real connection to the Sept. 11 attacks and may not even openly threaten the U.S. In some cases, U.S. drone strikes have

targeted militants in Pakistan and Yemen who mainly threatened the governments of those countries. As Brooks puts it, "The enemy

is inchoate and expanding ... We've gotten further and further from any sense of what, exactly, is the threat."¶ A new AUMF

would clarify, both legally and politically, whom we should be killing and why. It might also

help reassure other nations that the U.S. has some sense of limits. Legal debates aside, a big practical

problem with the drone war is that the rest of the world hates it. Drone strikes and the unintended deaths of innocents they

sometimes cause have fanned severe anti-Americanism in places like Pakistan. (One would-be terrorist, Faisal Shahzad, who was

plotting to bomb New York City in 2010, even cited U.S. drone strikes as a motivator.) A 2012 Pew Research Center poll of

international opinion found that American drone strikes are deeply unpopular around the world, not only in Muslim countries but

also in such nations as Germany, Russia, Japan and China. "We're losing the argument," Harman says. In January, a U.N. special

investigator from Britain kicked off a nine-month official inquiry into U.S. drone strikes to determine "whether there is a plausible

allegation of unlawful killing."

Completely scraping the AUMF is certainly one solvency mechanism for solving drones, but its complete

repeal would likely implicate other issues in the War on Terrorism. However, there are narrower ways to

solve for drones, such as amending the AUMF.

Hayden 3/11/13 (Tom, Nation Institute's Carey McWilliams Fellow, http://www.thenation.com/article/173289/threat-

imperial-presidency)

Drone attacks clearly are acts of war as defined by the War Powers Resolution, although the WPR

was written mainly to contain the deployment of American ground forces. The drone war rests more squarely on

the 2001 Authorization for Use of Military Force (AUMF), the underlying legal rationale for the

“global war on terrorism.”¶ The challenge of reform, as opposed to emergency tinkering, will

require prolonged efforts to amend and clarify both the WPR and AUMF. Allowing any president a

sixty-day period before seeking congressional authorization, as the WPR does, makes no sense in drone warfare. Instead, the

president should be required to seek congressional permission if he wishes to target a clearly

definable “enemy,” and be required to issue public guidelines, including necessary disclosure,

governing the use of force he contemplates. That means:¶ First, Congress should establish a

special inspector general, like the SIGUR created for Iraq and Afghanistan, to define, monitor and determine

civilian casualties (“collateral damage”) from drone strikes. Currently that information is collected by the CIA,

which has a conflict of interest, not to mention a curtain of secrecy.¶ Second, Congress will need to draft guidelines

sharply narrowing—or even banning—the use of “signature strikes,” which permit drone

attacks against targets profiled according to identity, such as young males of military age (which

could be civilians, participants in a wedding or funeral, etc.).¶ Third, Congress or the courts will have to restore

the open-ended concept of “imminent threat” to its traditional meaning, as an immediate

operational threat aimed at American citizens, US territory or facilities. Under the elastic formulation

employed by Brennan and others, the simple fact of ill-defined jihadists holding meetings anywhere on the planet is an “imminent

threat” justifying military action. And according to the CIA interpretation, the threat is a “continuous” one, carrying over from war to

war. But if every “potential” threat is defined as “imminent,” and all the threats are continuous, the CIA, Special Forces and

American military will be spread thin indeed from the jungles of the Philippines to the ghettos of Britain.

Congress could also formally declare war, which would override the 2001 AUMF and limit the scope of

where drones could be used and whom could be targeted by the commander-in-chief.


Calabresi 2/14/13 (Massimo, Writer for Time, http://swampland.time.com/2013/02/14/checking-obamas-assasination-

power-a-drone-court-is-just-one-way/)

The authority of the commander in chief to kill Americans who have joined an enemy in war is (nearly) undisputed. But Congress

has ceased performing its constitutional duty as the only branch of government given the

authority to declare war under the Constitution. A better guarantee of a protection of citizen’s

rights in the war against al Qaeda might be for Congress to declare war under its

constitutional authority (rather than issue a vague Authorization for the Use of Military Force, as it did in 2001); define

the battlefield (downtown Karachi?); the nature of the organization against whom the commander in

chief had the authority to wage war (a network, not a nation state); and conduct regular oversight. To

restrain the executive branch, Congress could explicitly empower the courts to deliberate on

damages for Americans hurt or killed by drone strikes in that war (as Stephen Vladeck argues here).¶

Another idea is to follow the precedent of executive branch courts (including military commissions) and

establish a “court-like” process for adjudicating whom the president can put on the targeted

killing list. That too could be subject to Congressional oversight. That approach has been advanced by

former acting Solicitor General and the lead lawyer in the Hamdan case, Neal Katyal. “The notion that a generalist federal court is

going to sit to review drone strikes is simply implausible and unwise,” Katyal says. “However, there are some very good reasons why

the Executive Branch should employ an internal process that resembles a court in some ways, but that would be staffed by experts.”

One of the most talked about potential affirmatives would be the establishment of a drone court. The

court would certainly have jurisdiction over cases involving American citizens; however, some are

pushing for it to also have jurisdiction over foreign agents as well.

Berger 2/11/13 (Judson, Fox News, http://www.foxnews.com/politics/2013/02/11/us-

senators-propose-assassination-court-to-screen-drone-targets/#ixzz2Pp5zTLnM)

But U.S. senators are now floating the idea of an assassination court as a way to rein in the

ever-expanding drone program -- a secretive operation that, as it is, sounds like thriller fiction, but isn't. ¶ The idea was

bandied about during Thursday's confirmation hearing for CIA director nominee John Brennan, who fueled the talk by saying he thinks the concept is "worthy of discussion." The nominee, as a vocal supporter of the targeted-killing program, has come under scrutiny for what

some lawmakers see as the administration's unchecked power to kill, even if the target is an American citizen. ¶ Sen. Dianne

Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee, said as part of an effort to regulate the

killing, she wants to review proposals to create something similar to the Foreign Intelligence

Surveillance Court -- which reviews requests for wiretaps against suspected foreign agents --

for drone strikes. ¶ Sen. Angus King, I-Maine, is pushing the idea the hardest. ¶ According to his vision, the drone court

would be an avenue for U.S. officials to argue in secret before a judge why an American citizen

should be targeted for death. He said it would be like "going to a court for a warrant" and

proving probable cause. ¶ Except in this case, the judge would be ruling not on a search warrant or a wiretap -- but a missile

strike from thousands of feet in the air, and thousands of miles away.

As can be seen then, there are several potential and nuanced solvency mechanisms for the affirmative

to defend.

Additionally, the literature points to several potential advantages to limiting the use of drones.

For instance,


Boyle 6/11/12 (Michael, Writer for The Guardian, http://www.guardian.co.uk/commentisfree/2012/jun/11/obama-drone-

wars-normalisation-extrajudicial-killing) But such a portrayal conflates a tactical victory (killing one al-Qaida commander) with a strategic success (that is, dampening the

growth of extremist movements in Afghanistan and Pakistan). It also rarely looks at the other side of the ledger

and asks whether the drone strikes have jeopardized the stability of the governments of

Pakistan and Yemen, possibly risking more chaos if they are overthrown.¶ During his first presidential

campaign, Obama promised to control counterterrorism operations and to put them in their

proper place as one piece of a wider set of relationships with other governments. But he has

done the opposite, allowing short-term tactical victories against terrorist networks to

overwhelm America's wider strategic priorities and leave its relations with key governments in

a parlous state. His embrace of drones and his willingness to shoot first may also be policies

that the US comes to regret when its rivals, such as China begin to develop and use their own

drones.¶ Beyond simply failing to live up to campaign promises, the real tragedy of Obama's counterterrorism policy is that he has

squandered an unprecedented opportunity to redefine the struggle against al-Qaida in a way that moves decisively beyond the Bush

administration's mindset. Instead, he has provided another iteration of that approach, with a level of cold-blooded ruthlessness and

a contempt for the constitutional limits imposed on executive power that rivals his predecessor.

There is also strong evidence suggesting that the United States needs to set a precedent for use of

drones before other countries, such as China, develop the technology and use them in as loose a

manner as we have in the last decade.35 This drone technology proliferation could cause India to attack

suspected terrorists in Kashmir, China to strike Uighur separatists, or Iran to attack Baluchi nationalists

in Pakistan.36

Drones fuel dangerous anti-American sentiment and destroy our human rights and U.S. soft-

power credibility.

Morely 6/12/2012 (Jefferson, Salon Staff and Former Washing Post World News Editor,

http://www.salon.com/2012/06/12/hatred_what_drones_sow/)

The biggest danger that the United States now faces as a result of the drone war is not an al-

Qaida attack on U.S. civilians (though that remains a possibility) but a Pakistani defection from the U.S. war on

the Taliban as the U.S. prepares to withdraw from Afghanistan in 2014. In Pakistani public discourse, Obama’s America is fast replacing India as the country’s leading

enemy. When Defense Secretary Leon Panetta said in India last week that the United States was reaching the “limits of its patience” with Pakistan, the pro-American Dawn

newspaper in Islamabad responded that the feeling was mutual: The language the secretary has used, in the locations he has chosen to use it, only runs the risk

of making Pakistan’s security establishment more intransigent and paranoid and will become

fodder for right-wing forces propagating anti-India and anti-America opinions. All of which will

only make it tougher for the Pakistani government to cooperate with the U.S. That’s a polite way to put it.

Less polite Pakistanis are talking about shooting down a U.S. drone — an act of war against the United States. As Slate explained last week, “Pakistan talks about shooting down

a drone but never does.” In December, Pakistan’s Army Chief of Staff Gen. Ashfaq Pervez Kayani let it be known that he had issued multiple directives to shoot down U.S. drones,

which did not happen. In February, populist presidential contender Imran Kahn said his government would shoot down drones, a promise that doesn’t seem to worry U.S.

officials yet. Last week, Dr. Abdul Qadeer Khan, a national hero for founding Pakistan’s nuclear program, said that U.S. drones could be shot down with a Hamza missile, a staple

of Pakistan’s air arsenal. Americans may dismiss all of this as bluffing, and so far it has been. But we have seen many examples of “green on blue” violence where U.S.-trained

Afghan soldiers have turned their guns on their putative American friends with deadly results. The Obama administration seems to assume the Pakistanis, individually or

collectively, will not do such a thing because it would jeopardize U.S. military aid. But with Panetta (and Congress) saying U.S. aid to Pakistan is already in jeopardy, that

assumption is growing more dubious. Obama’s drone war has made this dysfunctional relationship more

35

Micah Zenko “Reforming U.S. Drone Strike Policies,” Council on Foreign Relations Special Report, Jan 2013,

http://www.cfr.org/wars-and-warfare/reforming-us-drone-strike-policies/p29736 36

Paul Waldman, American Prospect, 2/14/2013, http://prospect.org/article/game-drones


dangerous. If the U.S. drone war is blue, Pakistan is green, and the possibilities for misunderstanding and betrayal are evident.

Moreover, the literature also points to the potential for drones to increase the threat of terrorism.37 The

implication of this is that it undermines the war against terrorism and puts the world at risk. For

instance, drone strikes cause the U.S. to lose the hearts and minds of local citizens and fuel extremism in

target nations. Additionally, in countries like Yemen, our drone strategy allows nations like Iran to

interfere and gain greater regional influence.38 Thus, affirmatives can claim that drones cause

unnecessary civilian deaths, fuel anti-American sentiment, and create dangerous precedent for drone

technology proliferation.

It should also be noted that there is literature that supports the idea that constraining

presidential power and usage of drones solves these advantages. In other words, affirmatives do not

need to necessarily defend the end of drone strikes in order to solve their advantages, as constraining

the executive is potentially sufficient enough.39

There are also a wide number of critical implications for drone affirmatives. Depending on

whether the affirmative ends drone strikes, or merely makes them more legitimate, these critical

arguments could also be ran on the negative. There is a clear link between drones and Judith Butler’s

arguments about precarious life. Another line of critical inquiry is provided by Douglas Kellner, who

makes the connection between postmodernism, concepts of reality, and war.

Kellner 8 (The Ideology of High-Tech/Postmodern War vs. the Reality of Messy Wars. Douglas

Kellner is George Kneller Chair in the Philosophy of Education at UCLA and is author of many

books on social theory, politics, history, and culture,

www.gseis.ucla.edu/faculty/kellner/essays/pomowar.pdf, 6-22-10)

The postmodernization of war thus pertains to the increasing displacement of humans by

technology, and the next phase of technowar will probably reveal more "smart machines"

supplementing and even replacing human beings. The 1991 Gulf intervention, the 1999 NATO war against Serbia, the 2001 Afghan

war, and second Iraq war of 2003, still raging despite Bush’s claim of “Mission Accomplished in May 2003, saw a widespread exploiting of drones, pilotless planes engaged as

decoys and as instruments of surveillance, in addition to Cruise missiles and other “smart” weapons. The U.S. military is developing "unmanned" technologies for ground, air,

and undersea vehicles. Smart tanks are already under production and as Chris Hables Gray (1989, 54) notes in Les Levidow and Kevin Robin’s book Cyborg Worlds: There are

projects to create autonomous land vehicles, minelayers, minesweepers, obstacle breachers, construction equipment, surveillance platforms, and anti-radar, anti-armor and

anti-everything drones. They are working on smart artillery shells, smart torpedoes, smart depth charges, smart rocks (scavenged meteors collected and then 'thrown' in space),

smart bombs, smart nuclear missiles and brilliant cruise missiles. Computer battle-managers are being developed for AirLand battle, tactical fighter wings, naval carrier groups,

and space-based ballistic-missile defense.... the Army even hopes to have a robot to “decontaminate human remains, inter remains, and refill and mark the graves." By now the

concept of postmodern war is widespread in the media and public sphere like the Internet. For instance, a 1999 ABC news program on "Postmodern War" indicated a profound

reorganization process in the military that is undergoing changes from heavy, slow, and largescale machinery, such as 70 ton tanks, to smaller, lighter, faster, and more flexible

vehicles. These are equipped with more accurate "smart" weapons and better mapping and sensor technologies which demand less "manpower" (see abcnews.com, 11/03/99).

37

Owen Bowcott, “Drone strikes threaten 50 years of international law, says UN rapporteur”, Guardian, 2012,

http://www.guardian.co.uk/world/2012/jun/21/drone-strikes-international-law-un 38

Ibrahim Mothana, Yemeni Democracy Activist and Opponent of Al Queda, NY Times, 06/14/2012,

http://www.nytimes.com/2012/06/14/opinion/how-drones-help-al-qaeda.html?_r=0) 39

Paul Harris, “Drone attacks create terrorist safe havens, warns former CIA official”, 2012,

http://www.guardian.co.uk/world/2012/jun/05/al-qaida-drone-attacks-too-broad


Exotic high-tech military devices include MEMS (Micro Electrono-Mechanical Systems) that will produce tiny airplanes or insect-like devices that can gather intelligence or attack

enemies. MARV (Miniature Autonomous Robotic Vehicle) technologies and various other automated military systems would guide robot-ships, disable land-mines and

unexploded arms, and provide more effective sensors, stabilization, navigation, control, and maintenance devices. These technologies would ultimately construct cyborg soldiers

who will incorporate such devices into their own bodies and equipment. Such miniature machines and cyberwarriors would be capable of gathering information, processing it,

and then acting upon it, thus carrying through a technological revolution based on new intelligent machines. Indeed, military strategists and capability builders claim that the

next generation of Armed forces will be "Net-ready," as in the U.S. Army development of a battlefield digitization project while it develops and fields a new family of lightweight,

easily deployable combat vehicles, which will have digital technology built into them, rather than bolting it on as the Army has had to do with older tanks and Bradley Fighting

Vehicles. Cyborg soldiers are also utilizing the Global Positioning Satellite system (which can be accessed from a computerized helmet) for precise mapping of the "enemy" and

terrain. With the complex communications systems now emerging, all aspects of war -- from soldiers on the ground and thundering tanks to pilotless planes overhead -- are

becoming networked with wireless computers providing information and exact locations of all parties. Robot scouts can roam the terrain sending back data instantaneously to

commanders. SIPE (Soldier Integrated Protection Ensemble) is an army software program designed to merge all military digital technologies into one integrated data system.

Even the physical state of the soldier can be monitored by computers, and one can imagine surgeons operating on wounds from continents away by using robots and the

technology of "telemedicine." Hence, phenomenal new military technologies are being produced in the Third Millennium, described as the instruments of an emergent

postmodern warfare, and envisaged earlier by Philip K. Dick and other SF writers. These military technologies, described in Messy Wars, are changing the nature of warfare and

are part of a turbulent technological revolution with wide-ranging effects. They are helping to engender a novel type of highly intense "hyperwar," cyberwar, or technowar,

where technical systems make military decisions and humans are put out of the loop, or are forced to make instant judgments based on technical data. As computer programs

displace military planners and computer simulations supplant charts and maps of the territory, technology supersedes humans in terms of planning, decision making and

execution. On the level of the battlefield itself, human power is replaced by machines, reducing the soldier to a cog in a servomechanism. These developments are alarming and

led French theorist Paul Virilio (1989, 84) to comment in War and Cinema: The disintegration of the warrior's personality is at a very advanced stage. Looking up, he sees the

digital display (optoelectronic or holographic) of the windscreen collimator; looking down, the radar screen, the onboard computer, the radio and the video screen, which

enables him to follow the terrain with its four or five simultaneous targets; and to monitor his selfnavigating Sidewinder missiles fitted with a camera of infra-red guidance

system . The autonomization of warfare and ongoing displacement of humans by technology

creates the specter of technology taking over and the possibility of military accidents, leading

to, Virilio warns us, the specter of global catastrophe. There is a fierce argument raging in military circles between those who

want to delegate more power and fighting to the new "brilliant" weapons opposed to those who want to keep human operators in charge of technical systems. Critics of

cyberwar worry that as technology supplants human beings, taking humans out of decision-making

loops, the possibility of accidental firing of arms at inappropriate targets and even nuclear war

increases. Since the 1980s, Virilio criticized the accelerating speed of modern technology and indicated

how it was producing developments that were spinning out of control, and that, in the case of

military technology, could lead to the end of the human race (see Virilio and Lotringer’s Pure War 1983). For Virilio, the

acceleration of events, technological development, and speed in the current era unfolds such that "the new war machine combines a double disappearance: the disappearance

of matter in nuclear disintegration and the disappearance of places in vehicular extermination" (Virilio 1986: 134

Stephen Graham, Professor of Cities and Society at the Global Urban Research Unit, makes a similar

arguments about our obsession with technology and the implications for what he calls automated killing

systems, such as drones.40

On the flip side of this controversy, there are a number of potential negative arguments against

limiting the president’s status quo ability to use drones. First, there are several potential counterplans.

The most obvious would be for the president to act on his/her own. While we later discuss how the

affirmative can make a number of arguments against this counterplan (including object fiat arguments),

this counterplan also calls into question the need for Congress/Courts to act, which is a core area of

debate. The community will have to decide the question of object fiat, but absent that argument cards

exist both ways to support a substantive debate on who needs to act to restrain the executive branch.

Here is a card that calls for the president to act:

NY Times 5/30/12 (http://www.nytimes.com/2012/05/31/opinion/too-much-power-for-a-president.html?_r=1&)

A unilateral campaign of death is untenable. To provide real assurance, President Obama

should publish clear guidelines for targeting to be carried out by nonpoliticians, making

assassination truly a last resort, and allow an outside court to review the evidence before

40

Stephen Graham Centre for the Study of Cities and Regions, Department of Geography Cities and the ‘War on

Terror’ Volume 30.2 June 2006 255–76 International Journal of Urban and Regional Research,

http://www3.interscience.wiley.com/cgi-bin/fulltext/118603050/PDFSTART


placing Americans on a kill list. And it should release the legal briefs upon which the targeted killing was

based.

Also, Congress could create a court that would award damages to those who suffered in wrongful drone

attacks. This action does not curtail the president’s ability to use drones, but would likely result in a

more careful approach to their use.41

There is also good evidence to support the idea that we do not need to restrain the power of

the presidency, but instead require transparency.

Pearlstein 3/26/13 (Deborah, Professor of Public and International Affairs at Princeton,

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/03/congress_shouldn_t_give_president_obama_new_power

_to_fight_terrorists.html)

Despite this, Leiter and others seem convinced that Congress should pass a new law authorizing

force. Strangely, these calls for Congress to delegate new power to the executive branch seem

animated less by an articulated security strategy or identified target than by a sense that this

will actually help constrain the use of presidential power. As the argument goes, the president—any

president—will want the option at some point of using force against some terrorist group. If Congress legislates, it can establish

limits on the scope of the president’s authority by setting the rules for him to exercise it. The search for meaningful

constraints on power is indeed the central challenge of our constitutional system. But

Congress has an abysmal track record of successfully reining in presidential uses of force

overseas. And there is little cause for hope it will succeed here. Consider the recent history. Congress

decided in the days after 9/11 to authorize the use of force against a limited set of targets responsible for the attacks of 9/11, and

two presidents have now used that authority to its fullest. But such broad congressional authority has not stopped President Obama,

just like his predecessors, from asserting that he retains inherent authority to use force in self-defense under Article II of the

Constitution, above and beyond what Congress authorizes. Congress can authorize whatever new wars it

wishes; the president can still use force against imminent threats without it. This is hardly to

say the president’s decision to use force operates under no constraint at all. Using force is

expensive, it is alienating, it is provocative, and it may create greater threats to the American

people than it prevents. Presidents have to convince the American public that war is worth

fighting. This has even been true when they respond to acts of terror in self-defense. When President Reagan ordered strikes

against Libya following the bombing of the civilian airliner over Lockerbie, Scotland, he made a speech from the Oval Office. Ditto for

President Clinton when he bombed Sudan in response to al-Qaida’s attacks on the U.S. Embassies in Kenya and Tanzania. Mission

details were rightly few, but both presidents explained who we had targeted and why. And the public, if

they were displeased, could hold accountable the president or his party.¶ Today, it is this lack

of transparency—not Congress’ relative apathy—that has boosted executive power and

threatened the legitimacy of current drone operations. If Congress wants to do something

about this, it should start by beefing up its own oversight efforts. Current federal laws require the

president to notify the intelligence committees of all covert actions carried out by CIA (after the fact if need be). Congress should

also require the same degree of notification of the Senate and House Armed Services Committees for operations carried out by the

military’s Joint Special Operations Command, an active participant in U.S. targeting operations. The much maligned War Powers

Resolution has been modestly effective in requiring the White House to report the introduction of military forces into hostilities. In

the age of drones, Congress should explore strengthening that reporting requirement further.¶

If a terrorist group poses a threat to the United States that is truly imminent, the president of course retains his power to respond

with force in self-defense. If and when a new terrorist group emerges that poses the kind of profound threat to the American people

al-Qaida posed in the years leading up to 9/11, the president should seek authorization from Congress to use force against that

group. New authority to use force is unlikely to diminish the president’s power. Neither does it

41

Steve Vladeck, http://www.lawfareblog.com/2013/02/whats-really-wrong-with-the-targeted-killing-white-

paper/


ensure the public will be told who the United States attacks or why. Absent either, the case

for new use-of-force legislation is impossibly thin.

In addition to counterplans, there is also substantive literature from which to draw arguments for

disadvantages. First, changing drone policy would alter our current military strategy, which would result

in military overstretch, budget problems, and continued reliance on our nuclear deterrent. Also, the

affirmative would reduce our ability to decrease our troop presence and close bases in Europe. Any of

those ideas present a feasible basis for a disadvantage that could outweigh those of the affirmative.

Alexander and Stewart 1/6/12 (David and Phil, Reuters Staff, http://www.reuters.com/article/2012/01/06/us-

usa-military-obama-idUSTRE8031Z020120106)

President Barack Obama unveiled a defense strategy on Thursday that would expand the U.S. military

presence in Asia but shrink the overall size of the force as the Pentagon seeks to slash spending by

nearly half a trillion dollars after a decade of war.¶ The strategy, if carried out, would significantly

reshape the world's most powerful military following the buildup that was a key part of President George W.

Bush's "war on terrorism" in Iraq and Afghanistan.¶ Cyberwarfare and unmanned drones would continue to grow

in priority, as would countering attempts by China and Iran to block U.S. power projection capabilities in areas like the South

China Sea and the Strait of Hormuz.¶ But the size of the U.S. Army and Marines Corps would shrink. So

too might the U.S. nuclear arsenal and the U.S. military footprint in Europe.Troop- and time-

intensive counter-insurgency operations, a staple of U.S. military strategy since the 2007

"surge" of extra troops to Iraq, would be far more limited.¶ "The tide of war is receding but the question

that this strategy answers is what kind of military will we need long after the wars of the last decade are over," Obama told a

Pentagon news conference alongside Defense Secretary Leon Panetta.

Along these same lines, a change in drone policy could affect our ability to leave Afghanistan.

CBS New 2/5/13 (http://www.cbsnews.com/8301-250_162-57567793/congress-looks-to-limit-drone-strikes/)

The Pentagon is also considering basing surveillance drones in Niger to monitor on burgeoning extremist violence in North Africa,

but it's not clear if they will be armed. Scaling back the use of drones also would hamper war plans in

Afghanistan after combat troops are scheduled to withdraw in 2014. Drones represent a

major thrust of the post-troops campaign to help the limited number of special forces units

that remain there keep the Taliban from regrouping.

These are a few of the more drone policy specific disadvantages. For those whose bread and butter is

the politics disadvantage, the controversial nature of drone policy should also allow this argument to

flourish on this topic.

Vlahos 4/10/13 (Kelley, Editor for the American Conservative Magazine,

http://original.antiwar.com/vlahos/2013/04/09/beware-lawyers-bearing-aumf-fix/)

The authors — Benjamin Wittes (co-director of Harvard Law School-Brookings Project on Law and Security), Robert Chesney

(law professor, Texas University School of Law), Jack Goldsmith (Bush II-era Assistant Attorney General, Office of Legal Counsel, as

well as Department of Defense attorney), and Matthew Waxman (law professor at Columbia University and director of that school’s

neoconservative-funded Program on Law and National Security) – recommend congress should pass fresh

statutory language authorizing the White House to identify and “list” new enemies that would

be covered by an updated AUMF, adding and removing names of targeted terror entities as it


sees fit:¶ One model to draw on, with modifications, is the State Department’s Foreign Terrorist Organization designation process.

Under this process, the Secretary of State pursuant to specific statutory standards, in consultation with other departments, and

following a notification period to Congress designates particular groups as terrorist organizations and thereby triggers statutory

consequences for those groups and their members.Here is what the current State Department list of designated terrorist

organizations looks like today. The first thing that comes to mind when suggesting a similar template

for the use of military force is the politics, which would be inevitable when you are inviting

various levels of bureaucracy and congress to participate in designating targets. Take the

recent State Department de-listing of the Mujahedin e-Khalq (MEK), which came after an

audacious public relations blitz that involved millions in shadowy money, A-list campaigners

and spokespersons, and a guerilla media war. Is this the kind of theater we are to expect as

new terror groups cross the radar of competing Washington interests, or will groups pop on and off with

little notice (until of course, their “associates” are flattened one day by a hellfire missile from the sky)?

And, lastly, as we suggest earlier, the core disadvantages on the topic are U.S. hegemony and terrorism

credibility. Eliminating a core element of current anti-terrorism responses would harm both.

Carafano 2/27/13 (James, VP for Defense and Foreign Policy Studies at Heritage Foundation,

http://www.heritage.org/research/commentary/2013/2/drone-of-battle)

Drone strikes and other covert operations clearly serve a military purpose: defending the U.S.

against real, legitimate threats of armed violence. Yet, the president's drone wars raise some

serious concerns. They have become this administration's primary means for battling transnational terrorism - and they

are inadequate.¶ Al Qaeda is not simply about attacking the U.S. That is just a means to an end. The

terrorist organization is part of a global Islamist insurgency, dedicated to seizing power and

territory and ruling in a manner that is contrary to the vital national interests of this nation. It

will rule without humanity or prudence, bringing war and crushing freedom wherever its shadow can spread.¶ So even

though we are preventing them from attacking our homeland, it doesn't mean we are

winning. Al Qaeda and its affiliates are making progress on other fronts - in the Caucuses, the

Middle East, North Africa and South Asia.¶ Further, just killing its leadership won't stop al Qaeda. This organization is

a human web. Killing a few nodes in the web - just like cutting a few strands in a real web - won't take it down.¶ Worrying

about the legality of drone wars is distracting concern from what Washington really ought to

be worried about: the very real possibility that it may be losing the larger war against radical

Islamism.

In conclusion, this area of the controversy is vibrant and provides a good division of ground for both

sides of the controversy. The affirmative has several different solvency mechanisms from which to

choose from and varied advantages that provide them immediate and big impacts. However, the

negative also has plenty of ground to support counterplans that do not curtail the power of the

president, but still potentially solve the affirmative.

2. Deploy offensive forces – Offense Cyber Operations

Leading up to the 2011 military intervention in Libya, President Obama and his staff considered

using a new military strategy to disable and confuse Libyan military command: Offensive Cyber

Operations. Although the administration opted not to use these operations in Libya, reporters

discovered in June 2012 that the United States and Israel developed the Stuxnet worm, which was


deployed to assault the computer systems in Iran’s nuclear enrichment facilities. This attack marked

“America’s first sustained use of cyberweapons”.42

The use of Offense Cyber Operations (OSO) poses interesting challenges for the constitutional

limits of presidential war powers. Building off its expanded war powers authorized by the 2001 AUMF,

the Obama administration is developing new OSO policies, with legal support from secret executive

memos, to justify offensive cyber-warfare powers. The “legal justification for this sweeping war-making

power does not exist in public, and therefore its basis in the Constitution–or lack of any such basis–

cannot be analyzed and debated.”43

What are the implications of this expanded authority to use OSO? First, this new offensive

strategy risks provoking a global cyber-arms race that would be detrimental to the U.S. Tom Gjelten

notes how OSOs will cause an arms race:

Tom Gjelten, Jan/Feb 2013, “First Strike: US Cyber Warriors Seize the Offensive,” World

Affairs, http://www.worldaffairsjournal.org/article/first-strike-us-cyber-warriors-seize-offensive

In addition, there are policy questions raised by the escalating government investment in

offensive cyber war capabilities. One fear is that each new offensive cyberweapon introduced into

use will prompt the development of an even more lethal weapon by an adversary and trigger

a fierce cyber arms race. A hint of such an escalatory cycle may be seen in the confrontation

with Iran over its nuclear program. US officials suspect the Iranian government was

responsible for the recent wave of cyber attacks directed against Aramco, the Saudi oil

company, and may also have been behind a series of denial-of-service attacks on US financial

institutions. Such attacks could be in retaliation for the Stuxnet worm.

In addition to creating an arms race, OSOs will cause China and Russia to seek to constrain our ability to

use such operations, which will undermine overall US cyber superiority and threatens to cause

overregulation of free expression and information on the internet.

Tom Gjelten, Jan/Feb 2013, “First Strike: US Cyber Warriors Seize the Offensive,” World

Affairs, http://www.worldaffairsjournal.org/article/first-strike-us-cyber-warriors-seize-offensive

Some writers foresee a dangerous new world, created by the United States and Israel with the

deployment of Stuxnet. Misha Glenny, writing in the Financial Times, argued that the tacit US admission of

responsibility for Stuxnet will act “as a starting gun; countries around the world can now

argue that it is legitimate to use malware pre-emptively against their enemies.” One danger is that

US adversaries, notably including Russia and China, may now cite the use of Stuxnet to

support their argument that an international treaty regulating the use of cyberweapons may

42

Tom Gjelten, “First Strike: US Cyber Warriors Seize the Offensive,” World Affairs, Jan/Feb 2013,

http://www.worldaffairsjournal.org/article/first-strike-us-cyber-warriors-seize-offensive 43

Lyle Denniston, “Constitution Check: Is the War Powers Clause a dead letter in the Cyberspace Age?,”

Constitution Daily, , Feb 2013, http://blog.constitutioncenter.org/2013/02/constitution-check-is-the-war-powers-

clause-a-dead-letter-in-the-cyberspace-age/


be needed. The United States has long opposed such a treaty on the grounds that it would

undermine its own technological advantages in cyberspace and could also lead to efforts to

regulate the Internet in ways that would harm freedom of expression and information.

The arms race and potential retaliatory strikes from multiple unknown asymmetrical sources would

harm the U.S. worse than it would our adversaries.

DAVID E. SANGER, JOHN MARKOFF and THOM SHANKER, April 27, 2009, “U.S. Steps Up

Effort on Digital Defenses,” New York Times,

http://www.nytimes.com/2009/04/28/us/28cyber.html?pagewanted=all&_r=0

But in cyberwar, it is hard to know where to strike back, or even who the attacker might be.

Others have argued for borrowing a page from Mr. Bush’s pre-emption doctrine by going into foreign computers to destroy

malicious software before it is unleashed into the world’s digital bloodstream. But that could amount to an act of war,

and many argue it is a losing game, because the United States is more dependent on a constantly

running Internet system than many of its potential adversaries, and therefore could suffer

more damage in a counterattack.

Scholars contend that given the costs of these policies – including the devastating harm they could cause

to adversaries – we must treat OSOs the same as military operations with proper congressional

oversight through WPR application.

Jason Healey & AJ Wilson, February 2013, Jason Healey is the director of the Cyber

Statecraft Initiative at the Atlantic Council. A.J. Wilson is a visiting fellow at the Atlantic Council,

“Cyber Conflict and the War Powers Resolution: Congressional Oversight of Hostilities in the

Fifth Domain,” Atlantic Council Issue Brief,

papers.ssrn.com/sol3/papers.cfm?abstract_id=2017036

Involving the legislative branch in cyber conflict decisionmaking in this gradated manner—which,

as the table shows, is easily transposed to the physical realm—need be neither unreasonable nor

disproportionate. After all, transparency is required of those who govern open societies. Especially in this information age, we

as citizens are right to expect it. The United States needs the capacity to carry out offensive operations in

cyberspace, but the Executive branch must accept that the same checks and balances that

apply to physical hostilities apply also to cyber conflict. Future cyber attacks may have the

ability to destroy or degrade an adversary’s critical infrastructure, cripple its economy, and

seriously compromise its ability to defend itself. They may cause physical injury or even death.

Their strategic consequences—not to mention their fiscal and economic costs—may be just as significant as a physical attack. This is,

indeed, why the Pentagon has rightly decided to treat cyberspace as the fifth domain. But it must, by the same token, accept that

logical forms of presence matter in cyberspace in the same way that physical forms matter in the kinetic space, and therefore it

must apply the War Powers Resolution accordingly. The Founding Fathers could not have

imagined a world in which weapons made of information travel around the globe at the speed

of light; but they did know how to distribute power to encourage restraint in its application.

Even in cyberspace, there is a voice for both branches.

Oversight can maintain strategic flexibility while providing necessary transparency and review.

Eric Lorber, March 1, 2013, “Executive Warmaking Authority and Offensive Cyber

Operations: Can Existing Legislation Successfully Constrain Presidential Power?” University of


Pennsylvania Journal of Constitutional Law, Vol. 15, No. 3, pp. 961, 2013

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017036

Should these statutes be adjusted (or new ones created) that give Congress additional

oversight in this area? Two competing desiderata suggest that oversight should be increased,

but only to a limited extent. On the one hand, policymakers have suggested that developing strict rules and limitations on the use of

offensive cyber operations will handicap the military’s ability to quickly and effectively employ these tools in critical situations, such

as cyber warfare against adversarial states.236 According to these arguments, developing red lines that proscribe the use of these

capabilities will create reluctance and trepidation among strategists and will lead to disadvantages in combat situations.237 On the

other hand, developing some legal rules is necessary to ensure that, as these cyber capabilities

continue to develop, the President does not gain sufficient leverage to substantially tilt the

balance between the President and Congress. Moreover, because these capabilities are still developing at a fast

rate, understanding how they should and should not be employed is an important goal and having senior members of Congress and

their staffs— professional staff members on the intelligence committees, who likely have substantial experience in these areas—

provide input would be useful in developing this understanding. These competing arguments—one for limiting any

oversight and one for increasing it—suggest a middle ground that will avoid drawing red lines but will

still provide useful congressional insight into the doctrinal and legal development of offensive

cyber operations. Such an approach would include new legislation, similar to the Intelligence

Authorization Act, explicitly requiring the President to report its use of covert cyber activities

to the heads of Senate and House intelligence committees (i.e. the Gang of Eight).238 Congress would

not have the ability to veto such actions, however it would be able to raise potential legal

issues with the executive branch, as well as provide policy advice as to the wisdom of

employing these capabilities in such circumstances. As a result, while the heads of these committees would not

have the ability to draw red lines themselves, they would be able to consult with the executive branch—as the branch employs these

capabilities—to determine their likely legality and wisdom. While the President could ignore this advice, such

an approach would at the very least keep Congress informed of the developing capabilities

and their employment. With such an approach, Congress could play a meaningful role in the shifting and uncertain legal

and policy realms of offensive cyber operations, which will undoubtedly become increasingly important as the United States and

other nations develop and employ these capabilities with ever-greater frequency.

What are the disadvantages to applying limits to presidential war powers to conduct OSOs? The core

disadvantage is that these limits undermine our ability to counter cyber threats that have no

corresponding legal limits placed on them. The literature on this argument contends that our legal

framework for checks and balances are simply too outdated to give the necessary flexibility and speed

to appropriately respond to these threats.

Jan Kallberg, researcher at the Cyber Security Research and Educational Center,

Erik Jonsson School of Engineering and Computer Science, the University of

Texas at Dallas, “Offensive Cyber: Superiority or Stuck in Legal Hurdles?,” Defense News, Feb

17, 2013, www.defensenews.com/article/20130217/DEFFEAT05/302170016/Offensive-Cyber-

Superiority-Stuck-Legal-Hurdles-

At a time when the United States has already lost an estimated $4 trillion in intellectual property

as a result of foreign cyber espionage, not to mention the loss of military advantage, focusing

on what the United States cannot do in cyberspace only hinders efforts to defend the country

from future cyber attack. The country is facing an enemy unrestrained by limitations, clearly visible

in blatant cyber attacks on military networks, major banks and media outlets.


Defined by military experts as the “fifth domain” of warfare, unrestricted U.S. superiority in cyber

warfare is necessary to maintain U.S. hegemony.

Stephanie Dreyer, Media Relations Director for the Truman National Security Project, an

institute that trains and positions progressives to lead on national security, “Cyber Warfare: The

War America is Losing,” Policymic, 2012, http://www.policymic.com/articles/3645/cyber-

warfare-the-war-america-is-losing/featured_writer

It is becoming increasingly clear that countries like China and Russia have no misgivings about using

cyber warfare as a highly effective and inexpensive means to obtain information and improve

their national superiority. As cyber security expert Joseph Steinberg explains in Why the U.S. is losing the cyber war

against China, "spying via computer systems … poses far fewer risks than its physical-world counterpart. Deniability is always an

option; no highly trained people are at risk; and there is far less of a threat of agents defecting, betraying their sponsor or becoming

double agents.” Fortunately, it looks like the U.S. is finally catching on and making some of the

necessary changes to protect our nation from cyber-attacks. In his State of the Union address, President

Barack Obama announced that he is working with our military leaders to create a new defense strategy that will save trillions of

dollars and ensure that we are safe from foreign threats — both on the ground and in the virtual arena. He said, “[t]o stay one step

ahead of our adversaries, I have already sent this Congress legislation that will secure our country from the growing danger of cyber-

threats.” This is a good first step. If we are going to defend ourselves from 21st century threats, we

need to change the way we look at cyber warfare. We must educate Americans about the real dangers that

cyber-attacks pose and encourage our students to study computer science to create a new generation of professionals who know

how to safeguard our nation against cyber terrorism. In addition, we must not be afraid to use our intelligence

and technology to our advantage. If America wants to remain a super power and maintain a

strong geopolitical standing, we must use every weapon at our disposal to protect ourselves.

Overall, we believe that there is a clear controversy surrounding OSOs that provide a fair balance

between affirmative and negative arguments.

3. Indefinite Detention

Indefinite detention of terrorism suspects and informants is another controversial presidential

war powers issue. 168 detainees remain imprisoned in the Guantanamo Bay center without due process

rights and they will likely remain in captivity with “no end in sight.”44 Instead of opposing detainment,

the Obama administration has actually increased rules and regulations on detainees that further erode

their due process rights by refusing to allow lawyers to visit their clients at the facility and prohibit

attorneys from sharing information with one another or to use information from the detention centers

in their defense arguments.45 As Glenn Greenwald, an author about detention issues and former

constitutional and civil rights litigator, explains,

Glenn Greenwald, is a former Constitutional and civil rights litigator and is the author of three New York Times Bestselling

books: two on the Bush administration's executive power and foreign policy abuses, and his latest book, With Liberty and Justice for

Some, an indictment of America's two-tiered system of justice. Greenwald was named by The Atlantic as one of the 25 most

44

Glenn Greenwald, “The Obama GITMO myth”, Salon, 7/23/2012,

http://www.salon.com/2012/07/23/the_obama_gitmo_myth/ 45

Ibid.


influential political commentators in the nation, “The Obama GITMO myth”, 7/23/2012,

http://www.salon.com/2012/07/23/the_obama_gitmo_myth/

Last week, the Obama administration imposed new arbitrary rules for Guantanamo detainees

who have lost their first habeas corpus challenge. Those new rules eliminate the right of

lawyers to visit their clients at the detention facility; the old rules establishing that right were in place since

2004, and were bolstered by the Supreme Court’s 2008 Boumediene ruling that detainees were entitled to a “meaningful”

opportunity to contest the legality of their detention. The DOJ recently informed a lawyer for a Yemeni

detainee, Yasein Khasem Mohammad Esmail, that he would be barred from visiting his client unless he

agreed to a new regime of restrictive rules, including acknowledging that such visits are within

the sole discretion of the camp’s military commander. Moreover, as SCOTUSblog’s Lyle Denniston

explains: Besides putting control over legal contacts entirely under a military commander’s

control, the “memorandum of understanding” does not allow attorneys to share with other

detainee lawyers what they learn, and does not appear to allow them to use any such

information to help prepare their own client for a system of periodic review at Guantanamo of

whether continued detention is justified, and may even forbid the use of such information to

help prepare a defense to formal terrorism criminal charges against their client. The New York

Times Editorial Page today denounced these new rules as “spiteful,” cited it as “the Obama

administration’s latest overuse of executive authority ,” and said “the administration looks as if

it is imperiously punishing detainees for their temerity in bringing legal challenges to their

detention and losing.” Detainee lawyers are refusing to submit to these new rules and are asking a federal court to rule that

they violate the detainees’ right to legal counsel.

As a result, uniqueness clearly goes in the direction of the status quo expanding its detention powers

and limitations on detainees’ rights.

The important legal issue present in this debate is not whether the Guantanamo Bay detention

center closes. Indeed, even if the Obama administration and Congress had agreed to close the facility,46

it would do little to end the practice of indefinite detainment. Even with the closure of the facility, the

precedent for the practice would remain and the Obama administration has made it clear that it would

continue to use this power. As Greenwald notes, in citing from ACLU Executive Director Anthony

Romero, “the creation of a ‘Gitmo North’ in Illinois is hardly a meaningful step forward. Shutting down

Guantanamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.”47

And, as Greenwald concludes about the danger of the precedent established by this war power and

policy,




influential political commentators in the nation, “The Obama GITMO myth”, 7/23/2012,

http://www.salon.com/2012/07/23/the_obama_gitmo_myth/

46

See ibid for an excellent discussion of why Congress is not to blame for the Obama administration’s failure to

close the GITMO center. He also details why the Obama administration is more strongly embracing detention

rather than opposing it. 47

Ibid.


Once a system of indefinite detention without trial is established, the temptation to use it in

the future would be powerful. And, while your administration may resist such a temptation, future administrations may

not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding

our country of the burden of the detention facility at Guantanamo Bay, merely set the stage

for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

Worse, those policies and legal precedents would be effectively enshrined as acceptable in our

system of justice, having been established not by one, largely discredited administration, but by successive administrations of

both parties with greatly contrasting positions on legal and constitutional issues. Feingold was not going to vote for a plan to close

Guantanamo if it meant that its core injustice — indefinite detention — was going simply to be re-located onto American soil, where

it would be entrenched rather than dismantled. That, as all of this evidence makes clear, is why so many Democratic Senators voted

to deny funding for the closing of Guantanamo: not because they favored the continuation of indefinite detention, but precisely

because they did not want to fund its continuation on American soil, as Obama clearly intended. Now, here we are,

almost four years after the vow to close Guantanamo was enshrined in an Executive Order,

and the rights of detainees — including the basic right to legal counsel — are being constricted further, in

plainly vindictive ways. Conditions at Guantanamo are undoubtedly better than they were in 2003,

and some of the deficiencies in military commissions (for the few who appear before them) have been redressed. But the real

stain of Guantanamo — keeping people locked up in cages for years with no charges — endures.

And contrary to the blatant myth propagated by Obama defenders, that has happened not

because Obama tried but failed to eliminate it, but precisely because he embraced it as his

own policy from the start.

The current due process status for detainees is completely inadequate. According to law professor at

the University of Utah, Amos Guiora, rather than clarifying these detainees status as criminal or war

prisoner, status quo policies define them as neither. Instead, they have a hybrid status that creates

confusion about the state of the detainees’ due process rights. Although the Hamdi v. Rumsfeld decision

clarified that detained U.S. citizens have due process rights, Justice O’Connor’s arguments make it clear

that non-citizens are not protected by the Constitution.48

Additionally, the Boumediene v. Bush decision has had no effect on limiting Executive detention

powers.




influential political commentators in the nation, “The evil of indefinite detention and those wanting to de-prioritize it”, Jan 8th

2012, http://www.salon.com/2012/01/08/the_evils_of_indefinite_detention_and_those_wanting_to_de_prioritze_them/

Post-Boumediene, indefinite detention remains a staple of Obama policy. The Obama DOJ has

repeatedly argued that the Boumediene ruling should not apply to Bagram, where — the Obama

administration insists — it has the power to imprison people with no due process, not even a habeas hearing; the Obama DOJ

has succeeded in having that power enshrined. Obama has proposed a law to vest him with

powers of “prolonged detention” to allow Terrorist suspects to be imprisoned with no trials.

His plan for closing Guantanamo entailed the mere re-location of its indefinite detention

system to U.S. soil, where dozens of detainees, at least, would continue to be imprisoned with

48

Amos N. Guiora, “DUE PROCESS AND COUNTERTERRORISM”, Emory International Law Review, June 28th 2012,

http://www.law.emory.edu/fileadmin/journals/eilr/26/26.1/Guiora.pdf


no trial. And, of course, the President just signed into law the NDAA which contains — as the ACLU

put it — “a sweeping worldwide indefinite detention provision,” meaning — as Human Rights Watch put

it — that “President Obama will go down in history as the president who enshrined indefinite

detention without trial in US law.” Those held at Guantanamo will continue to receive at

least a habeas hearing, but those held in other American War on Terror prisons will not . Read

Boumediene’s Op-Ed to see why this is so odious.

Like the Courts, rather than provide a check on the Obama administration, Congress has

maintained deference to the Administration’s extraordinary rendition, tribunals, and CIA prisons

policies.

John E. Owens The Centre for the Study of Democracy The University of Westminster, “The

Impact of the “War on Terror” on Executive-Legislative Relations in the UK and US: A

Comparative Analysis”, 2010, http://www.britishpoliticsgroup.org/BPG%202010-Owens-

Shephard.pdf

Notwithstanding some efforts to challenge and check the Obama administration (as during the Bush

administration) – notably on military involvement in Iraq and Afghanistan and Pakistan, and detainees at Guantánamo - on most

“war on terror” issues the Democratic Congress has not challenged the Obama administration

to overturn many of the Bush administration’s “war on terror” policies (including

extraordinary rendition, military tribunals, and the use of Bagram and other CIA prisons

abroad) or insist on the prosecution of CIA officials and others guilty of torture, Cabinet and other executive officers who lied or

failed to disclose illegal programmes to the Congress, or manipulated intelligence (see Conyers 2009 for a more or less complete

charge sheet). In February 2010 the President signed into law HR 3961 which provides for further

time extensions of several terrorist surveillance provisions included in the PATRIOT Act. In sum,

congressional non-decision making has continued, and although some legislators (mainly liberal

Democrats) have raised issues and the administration has showed a new willingness to conduct conversations with the

Congress, congressional legislators have collectively continued to offer deference to the

executive in this domain.

In 2012, the Obama administration formalized indefinite detention without charge by signing

the National Defense Authorization Act (NDAA) for 2012, which uses the same justifications in the AUMF

Act to allow the executive to detain so long as they could be interpreted as "part of or substantially

supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United

States or its coalition partners.”49 And with little more than a whimper, Obama and Congress re-

authorized the NDAA in 2013, making it more difficult to close the Guantanamo center and maintaining

unchecked authority to detain suspects.50 Although some safeguards were written into the NDAA, they

are insufficient to protect against indefinite detention without trial. The Gohmert Amendment, for

49

J.D. Tuccille, “How Obama Came to Be the Biggest Defender of Indefinite Detention”, Sept 21st 2012,

http://reason.com/archives/2012/09/21/were-all-in-detention-now 50

Joe A. Wolverton, II, J.D, correspondent for The New American, “Obama Signs 2013 NDAA: May Still Arrest,

Detain Citizens Without Charge”, Jan 5th 2013, www.thenewamerican.com/usnews/constitution/item/14120-

obama-signs-2013-ndaa-may-still-arrest-detain-citizens-without-charge


example, was written too vaguely and does not address the unchecked nature of detention powers.51

Because of this environment, we believe that the status quo will remain very stable for debates over

indefinite detention powers. Every indicator demonstrates that uniqueness will run in favor of

maintaining, if not further increasing, these presidential war powers.

There are several potential advantage areas contained in the literature on detention: American

soft/hard power legitimacy, recruitment tool for terrorism, and the reduction of detainees to the status

of bare life. This area of the topic would nicely access a number of policy and critical issues.

David Welsh, J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University

of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of

Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 2011, Lexis

The Global War on Terror n1 has been ideologically framed as a struggle between the principles

of freedom and democracy on the one hand and tyranny and extremism on the other. n2

Although this war has arguably led to a short-term disruption of terrorist threats such as al-Qaeda, it has also damaged

America's image both at home and abroad. n3 Throughout the world, there is a growing

consensus that America has "a lack of credibility as a fair and just world leader." n4 The

perceived legitimacy of the United States in the War on Terror is critical because terrorism is

not a conventional threat that can surrender or can be defeated in the traditional sense. Instead,

this battle can only be won through legitimizing the rule of law and undermining the use of

terror as a means of political influence. n5 Although a variety of political, economic, and security policies

have negatively impacted the perceived legitimacy of the United States, one of the most

damaging has been the detention , treatment, and trial (or in many cases the lack thereof) of suspected

terrorists. While many scholars have raised constitutional questions about the [*263] legality of

U.S. detention procedures, n6 this article offers a psychological perspective of legitimacy in the

context of detention.

Legitimacy of the rule of law is critical to combating terrorism and maintaining U.S. hard/soft power

(obviously, this advantage also serves as links to a number of disadvantages and critical arguments as

well)52

David Welsh, J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University

of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of

Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 2011, Lexis

While the United States received a virtually unprecedented outpouring of support from the

international community following 9/11, a nation's reservoir of support will quickly evaporate

51

Ibid. 52

The Welsh paper goes on to identify several more linkages between detention and legitimacy in war on terror

fighting. There are also several relevant footnotes cited that, for the purpose of updating this literature, is a bit

outdated (ex. Kevin E. Lunday & Harvey Rishikof, Due Process Is a Strategic Choice: Legitimacy and the

Establishment of an Article III National Security Court, 39 CAL. W. INT'L L.J. 87, 87 (2008).) But if the policy

advantage area is still questionable, I invite you to follow up on these articles.


when its government overreacts. Across the globe, individuals have expressed a growing

dissatisfaction with U.S. conduct in the War on Terror, and by 2006, even western allies of the

United States lobbied for the immediate closure of Guantanamo Bay, calling it "an embarrassment." n67

Former Secretary of State Colin Powell proclaimed that "Guantanamo has become a major, major problem . . . in the way the world

perceives America and if it were up to me I would close Guantanamo not tomorrow but this afternoon . . . ." n68 Similarly, [*272]

President Obama noted in his campaign that "Guantanamo has become a recruiting tool for

our enemies." n69 Current U.S. detention policies erode each of the four pillars on which the

United States established global legitimacy . In fact, critics have argued that the "United States

has assumed many of the very features of the 'rogue nations' against which it has rhetorically-

-and sometimes literally--done battle over the years." n70 While legitimacy cannot be regained overnight, the

recent election of President Barack Obama presents a critical opportunity for a re-articulation of U.S. detention policies.

Although President Obama issued an executive order calling for the closure of Guantanamo

Bay only two days after being sworn into office, n71 significant controversy remains about the

kind of alternate detention system that will replace it. n72 In contrast to the current model, which has largely

rendered inefficient decisions based on ad hoc policies, I argue for the establishment of a domestic terror court (DTC) created

specifically to deal with the unique procedural issues created by a growing number of suspected terrorists.

And Executive authority to conduct the War on Terror, specifically detention, is type of policy

philosophers like Agamban criticize:

Corinna Mullin is currently a Visiting Assistant Professor of International Relations at the

University of Tunis, “Resisting the other of the ‘war on terror’: lessons from Japanese

internment camps?”, Feb 2013, http://www.opendemocracy.net/corinna-mullin/resisting-

other-of-%E2%80%98war-on-terror%E2%80%99-lessons-from-japanese-internment-camps

As the Italian philosopher Giorgio Agamben explained, the ‘state of exception’ is not

characterised by ‘a special kind of law (like the law of war)’ but rather by the ‘suspension of the

juridical order itself’, marked by ‘the extension of the military authority’s wartime powers

into the civil sphere’ in which the normal protections provided by the constitution and rule of

law are no longer provided. Though intended to be temporary in nature, Agamben argues that

the ‘state of exception’ has become a permanent fixture of democratic governance. The ‘state

of exception’ as applied in the ‘war on terror’, a ‘war’ declared by the US and its allies against

a tactic, and therefore unbound by time or space, is ongoing. One of its most prominent features is drone warfare,

initially focused on established ‘war on terror’ battlefields such as Afghanistan, Pakistan, Yemen and Somalia, and now expanding into largely

unchartered territory, as evidenced by the opening of a US drone base in Northwest Africa coinciding with the US-backed French intervention in Mali.

First established under the Bush administration, and touted by its supporters as a relatively cheap and technologically sophisticated means of targeting

suspected terrorists in remote areas, the programme has expanded seven fold under Obama. The ‘guilty until proven innocent’

premise on which the targeted-killing programme is based, demonstrates the current

president’s similar disregard for international law and humanitarian norms when it comes to

fighting terrorism. The recent passage of the US 2013 National Defense Authorization Act (NDAA)

and the choice of newly inaugurated US President Barak Obama’s chief counterterrorism

advisor, aka the ‘assassination tsar’, John Brennan to head the CIA, signal that the legal and

discursive components of the ‘war on terror’ will be further institutionalized over the next

four years. These developments are connected to an overall restructuring of US power in the

region, linked to ethical and strategic losses in the wars in Iraq and Afghanistan, an economic

crisis at home, the multipolarisation of power in the international system and increasing

attention to developments further east. In the coming years, US austerity intervention in West Asia and North Africa is more

likely to take the form of covert military operations rather than boots on the ground, and a greater reliance on regional allies. The US’ ability

to project its power in the region has proven adept at responding to fast moving


developments on the ground in the past. However, ongoing challenges to the dehumanising

discourses, policies and practices associated with the latest iteration of US hegemony have

also proven dynamic, and have taken several different forms over the years.

Additionally, the executive powers to detain have significantly minimized the role of the legislature and

judiciary in counterterrorism policy – this blurs the lines of separation of powers and checks and

balances.53

The literature discusses two ways to solve the advantages through limiting executive war

powers: 1) The federal courts striking down the NDAA; and 2) Congress repealing the NDAA.54 The

Courts have the power to grant 5th and 14th amendment rights to prisoners in US territories (including

Guantanamo Bay), and the Congress has oversight powers – both can be used to limit Executive

authority to detain.

Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah, “DUE

PROCESS AND COUNTERTERRORISM”, Emory International Law Review, June 28th 2012,

http://www.law.emory.edu/fileadmin/journals/eilr/26/26.1/Guiora.pdf

The question of whether to extend constitutional protections to non-citizens was originally

addressed in the Dred Scott decision, which held that the Fifth Amendment was not limited to

the geographic boundaries of the states, but rather, such protections were extended to all incorporated territories of the

United States.67 In the 150 years since Dred Scott, the Court has discussed similar cases with two distinct “lines of demarcation”

important for determining detainee rights: first, distinguishing between individuals within and outside of the United States; and second, distinguishing

between citizens and non-citizens.68 In discussing these two issues, case law slowly extended constitutional protections

to include non-citizens, provided they could demonstrate cognizable ties to the United

States.69 The clearest tie was physical location within the borders of the United States.70 In

accordance with Johnson v. Eisentrager, 71 this specific inquiry directly influences this Article’s question, as the decision of Guantanamo Bay’s status as

a territory of the United States is of the utmost importance. If Guantanamo Bay is held as a territory of the United

States, then the precedent dictates that fundamental rights, like the Fifth and Fourteenth

Amendments, should apply. However, if it is not held to be a territory, then the constitutional protections would not necessarily be

afforded. Failing to institutionalize independent judicial review of detention decisions directly resulted in the significant number of detainees held

indefinitely. If there are no criteria for determining what actions pose a threat to American national security, the detentions are reflective of an

approach best described as “round up the usual suspects.” This is not a policy; it is a tragic reality of the past ten years. Indefinite detention perhaps

sounds attractive, for it removes from the zone of combat—indefinitely—individuals suspected of involvement in terrorism. The qualifier “perhaps” is

essential to the discussion, for the inherent unconstitutionality of indefinite detention has a pervasive effect on U.S. counterterrorism. Furthermore,

the dearth of articulated criteria for initial detention and subsequent remand alike inevitably guarantees that individuals have been wrongly detained

precisely because threat has not been defined. While Judge Bates’ decision was of the utmost importance—more than any Supreme Court holding

addressing counterterrorism in the past eight years, save Boumediene—it has not resulted either in a significant re-articulation of U.S. policy nor in the

granting of habeas corpus to thousands of detainees.72 Aside from its decision in Boumediene, the Supreme Court has failed to

articulate the rights granted to suspected terrorists. Similarly, Congress has failed to articulate

these rights through its constitutionally granted oversight powers. It is essential to balance—or maximize—the

legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, Judge Bates’ decision seeks to move

beyond the amorphousness that has defined much of the debate over the last ten years.73

53

Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah, “DUE PROCESS AND

COUNTERTERRORISM”, Emory International Law Review, June 28th 2012,

http://www.law.emory.edu/fileadmin/journals/eilr/26/26.1/Guiora.pdf 54

OpenSalon, March 26th 2013,

http://open.salon.com/blog/watchingfrogsboil/2013/03/25/aumf_2001_is_the_disease_ndaa_2012_is_only_one_

symptom


Defining the limits of Executive Authority, for example in the AUMF, is critical to reign in detention

powers in this area.55

For the negative, the detention debate provides a number of points for offensive. In terms of

disadvantages, Greg Jacobs, Legal partner at O’Melveny & Myers, Policy Director at the Service

Women’s Action Network, and combat veteran, provides a nice overview of the main disadvantages to

providing Habeas rights to detainees. In this particular article, Mr. Jacobs and Professor Stephen Vladeck

provided written responses to each other’s arguments, providing credibility to the quality of both aff

and neg ground for detention policy.

For instance, expanding Habeas rights to detainees would severely harm our war on terror

efforts:

Greg Jacob, Partner at O’Melveny & Myers in Washington, D.C, and Policy Director at the Service Women's Action Network,

“Detention Policies: What Role for Judicial Review?”, October 2012,

http://www.abajournal.com/magazine/article/detention_policies_what_role_for_judicial_review/

Probably the most important war on terror decision handed down by the D.C. Circuit since

Boumediene was decided is Maqaleh, in which the court declined to extend the writ of habeas

corpus to aliens captured abroad, designated enemy combatants and held at Bagram Air Force

Base in Afghanistan. From the military’s perspective, the nightmare scenario has always been the

prospect that the judiciary would assert the right to engage in a searching inquiry into the

basis for every capture and detention of an alien abroad, even while active combat operations

are ongoing. In World War II, such a rule could have required the government to litigate hundreds of

thousands of habeas claims, costing the government significant expense and causing

substantial disruption to military operations. Maqaleh puts such fears to rest.

The status quo provides a sufficient check on detainees rights – Expanding those rights further would be

a substantial burden to commanders in the battlefield and clog the Courts.




Does the Maqaleh rule create the possibility, and perhaps even the likelihood, of erroneous detentions? Certainly. Mankind has not

yet devised a perfect system for correcting such errors. But the decision is founded on a principle long recognized by the courts: That

absent extraordinary circumstances, the cost to security of judicial interference in active overseas

military operations outweighs the liberty cost of potentially erroneous detentions pursuant to

those operations. Thus, five years after World War II formally ended, the Supreme Court declined to extend the writ of

habeas corpus to prisoners held in Germany, explaining that “such trials would hamper the war effort and bring aid and comfort to

the enemy. … It would be difficult to devise more effective fettering of a field commander than to

allow the very enemies he is ordered to reduce to submission to call him to account in his own

civil courts and divert his efforts and attention from the military offensive abroad to the legal

defensive at home.” Through Maqaleh, these legitimate concerns continue to govern the enemy combatant jurisprudence of

55

Laurie R. Blank, 63 Rutgers L. Rev. 1169, Summer 2011, Lexis


today. The law developed by the D.C. Circuit for reviewing enemy combatant habeas petitions is

perhaps more important for its symbolic than its practical effect, as the government has stopped

transferring detainees to Guantanamo Bay, and the number of individuals to which the body of law applies is thus small and

shrinking. Nevertheless, we are a nation that prizes liberty, fairness and the rule of law, and the Boumediene court may well have

been correct that outside the theater of war, the liberty cost of potentially erroneous detentions must under some circumstances

outweigh the security costs attendant to habeas review. The key question in a habeas inquiry concerning a captured enemy

combatant is not whether the individual committed a crime, but whether the government properly designated the individual an

enemy combatant. This inquiry requires review of highly classified intelligence reports, which often contain hearsay statements

gathered from a variety of intelligence sources. The D.C. Circuit has established that hearsay evidence is admissible in detainee

review cases (al-Bihani v. Obama), that the recording of hearsay statements by government agents is entitled to a presumption of

regularity, but not to a presumption that the recorded hearsay statements are actually true (Latif), that the various items of

evidence used by the government to support a detention must be viewed by a reviewing court as a whole, rather than in isolation

(Salahi v. Obama), and that a governmental showing by a preponderance of the evidence is sufficient to support a detention

(Bihani). These standards, which have for the most part gained the support of judges across the

D.C. Circuit’s ideological spectrum, are both flexible and fair, ensuring that detainees are not

held at the whim of the executive and with no supporting evidence, while recognizing that judicial review

of military detentions requires some reasonable alterations to the habeas standards to which we are more accustomed.

Judicial review for detainees captured on the battlefield would hinder the effectiveness of the

operations – the link is not small – you should be especially reluctant given that SQ checks are sufficient

to solve




Professor Vladeck simply cannot imagine how judicial review of military detentions, even in active theaters of war, could possibly disrupt the

government’s war efforts. If the courts order that detainees be released, then judicial review was clearly necessary to correct erroneous detentions.

And if the courts do not order that detainees be released, then what does the government have to complain about? By this standard, judicial review of

military detentions is always justified, without regard to cost or outcome. But of course, this standard does not measure the

true cost of judicial review. It must be remembered that the kind of judicial review at issue here was not

carefully constructed and balanced by our political leaders, but rather was imposed by the

courts as a matter of constitutional requirement. The war on terror and the wars in Afghanistan and Iraq are wars of

choice waged against vastly outmatched opponents, but constitutional requirements apply equally during wars of necessity in which the nation’s very

survival is at stake. We held hundreds of thousands of prisoners of war during the Civil War and

World War II—how is Professor Vladeck’s expansive judicial review supposed to be

administered under such circumstances without seriously compromising our security

interests? No practicable answer is even remotely suggested in my sparring partner’s essay. Until the new kind of war presented by the war on

terror came along, the courts uniformly recognized that war is a matter best handled by the political branches, and that at least in active theaters of

combat operations, the judiciary should stay out. That is why the D.C. Circuit’s decision in Maqaleh is so important: It recognizes there are

times and places in which the substantial costs in time, energy and resources that necessarily

accompany the judiciary’s error-correcting function simply aren’t worth it , and to which the framers

accordingly never intended to extend constitutional habeas protections. To be sure, the circumstances in which constitutional habeas protections do

not apply are carefully circumscribed; U.S. citizens, for example, will always be entitled to habeas review. And after Boumediene, most if not all aliens

detained domestically will be as well. But within that narrow sphere from which the judiciary has been

excluded—and has by and large accepted its exclusion—the time, energy and resources at stake can be a matter

of life or death for our troops, and for the nation as a whole. Professor Vladeck does not believe the stakes could

possibly be so high. And in a war of choice in which only a few hundred detainees being held an ocean away from the front lines are permitted access

to our courts, perhaps they are not. But how could the military possibly have defended hundreds of thousands of habeas petitions in the midst of

World War II? With the witnesses to captures primarily being front-line soldiers still engaged in fighting, should we pull half of Easy Company out of

Operation Market Garden to type up detention affidavits? With military intelligence attempting to secure mission-

critical information that could turn the tide of war, should we allow their operations to be

chilled and disrupted by a stream of discovery requests? And having disarmed enemy troops

on the battlefield and placed them in detention camps where they can do no further harm,


should we rearm them with legal causes of action that will consume significant time and

manpower to defend, and further provide them a public platform from which to denounce the

United States? In light of these costs and disruptions, it is unsurprising that the Geneva Conventions, for example, do not even hint at any kind

of judicial review requirement for the ordinary detention of military prisoners. Will mistakes be made in war, including erroneous detentions? Certainly.

Would robust judicial review correct those errors? Some of them, probably. Courts are no more infallible than military review boards, however, and the

fact that the D.C. Circuit has overturned every award of habeas relief the government has appealed shows that courts get it wrong plenty of the time,

too—having reached opposite conclusions in those cases, the district court and the court of appeals cannot both be right. In the end, however,

Professor Vladeck simply presents no evidence that the D.C. Circuit’s habeas review procedures have failed to provide adequate error correction for the

Guantanamo detainees, or that the expected benefits of extending such review to active theaters of war would outweigh the attendant costs.

In addition to these disadvantages, there are a number of critical implications to detention

affirmatives that negative teams could explore. For example, there is an implicit assumption by the

affirmative that a detainee could, at some point, receive a “fair trial”. This is questionable in our current

security focused worldview. The article below is not peer-reviewed, but it provides a nice summary of a

potential negative criticism of “fair trials for detainees”.

Ondelette, “Can a terrorist get a fair trial?,” August 2, 2009

http://my.firedoglake.com/ondelette/2009/08/02/can-a-terrorist-get-a-fair-trial/

On both sides of the debate over detention and what to do with all the prisoners who have been denied rights, abused, tortured, rendered, or kept incommunicado, both during and after

the Bush administration’s foray into lawless incarceration, there is an implicit assumption that a terrorist can get a fair trial if

brought to a ‘regularly constituted court’, to use the phrase from the Geneva Conventions. Those in favor of continued

detention without charge worry that such a person will get too many rights, rights they believe should be restricted to those

who ‘deserve’ them. Those opposed to the current state of indefinite detention and those who have

vigilantly opposed torture and promoted human rights often point to the near flawless record

of convictions of terrorists in U.S. courts as proof that the country will be safe if real trials are

held. Glenn Greenwald, for instance, rightfully calls the ability to convict terrorists in court "breathtakingly broad": Second, as a result of breathtakingly broad criminal laws in the U.S. defining "material support for terrorism," there are few things easier

than obtaining a criminal conviction in federal court against people accused of being Terrorists. Even if the only thing someone has done is joined a group decreed to be a Terrorist organization, without even engaging in (or even planning) any violent acts, federal

prosecutors are well-armed to convict them. So can a terrorist get a fair trial? Let’s make it specific: What would sane behavior look like for Aafia Siddiqui, whose competency hearing was held on July 6th,

during which she interrupted the hearing with outbursts like, "I’m not psychotic — I can assure you I am not", "I didn’t ask to come here", and reportedly stated that the real reason she wished to be declared competent was so she could fire her counsel. Judge

Berman handed down his ruling finding her competent on July 29th, the New York Times wrote it up here, and you can read the decision, together with Ms. Siddiqui’s letter which was disseminated to bolster the contention of those in the courtroom that she was

"off" at the hearing, and to prove she was anti-Semitic, amalgamated by the Times, here. At first glance, the judge’s decision seems straight-forward. He outlines the previous filings and court appearances in the case, check. He then summarizes the testimony of five

psychiatrists who had observed her, check. He kind of takes a poll over these psychiatrists, factoring in his own courtroom judgments, check…er, or maybe a little off, how do you poll 3 prosecution psychiatrists and 2 defense psychiatrists and come to a fair

outcome? He states the applicable law and the burden of proof, and the rights of the defendant. Apparently, under the law he states, she had the right to testify for herself during the hearing, as opposed to shouting out her rebuttals and being told to be quiet. There

is no record that she did so testify or was asked if she wanted to. But it kind of goes deeper than that. In August 2008, as part of a signed deposition, her lawyer at the time, Elizabeth Fink, stated that, "Based on multiple factors and investigation, I have a good faith

basis to believe that [Dr. Siddiqui] is a victim of torture,…" and had asked that she be transferred to "the Forensic Unit at Elmhurst Hospital administered by the New York City Department of Corrections…", which Judge Berman notes in his ruling (p. 5, p.8 of the NYT

amalgamated pdf), "is not a part of the BOP".Which presumably is why they sent her to Carswell, TX, to a Federal criminal psychiatric unit, which is where she got the notion that she had but this one hearing to speak if she were declared unfit, "I’ve seen what the

drugs do and people can’t speak." You see, there is another important distinction between the facility at Elmhurst and that at Carswell. Elmhurst has forensic psychiatrists who specialize in torture victims. The five hundred pound gorilla in Aafia Siddiqui’s courtroom

is whether or not the U.S. government or agents for another power on behest of the U.S. government, held and tortured her for 5 years, and disposed with or are still holding one or two of her children. She says so. Her family says so. Her son recounts being shackled

and moved from place to place. Moazzam Begg and Binyam Mohamed believe they saw her at Bagram. And something has to account for psychological symptoms which were variously described as, depressive psychosis, paranoid schizophrenia, PTSD, and

tangentiality, none of which are commonly contracted without a major incident when someone is in their thirties. Even if that "mental disease" as it was put when she went to Carswell, is not sufficient grounds for her to be mentally unfit to stand trial. The

prosecution psychiatrists found her to be malingering: a psychological term for exhibiting behavior purposely to achieve an end, which they assumed was to be declared unfit and avoid prosecution "for her crimes". All the psychiatrists, perhaps at Judge Berman’s

request, discussed in their testimony how to distinguish where jihadi extremism leaves off and insanity begins. The trial has not yet begun, there have been no witnesses supposedly called (except to determine her mental state) and yet there is a determination of

"jihadi extremism" assumed by all? The verdict first, trial after! Although she is not charged with any act of terrorism (what she is charged with is very similar to charging her with being an unlawful combatant in many ways, cf. Major Frakt on Mohamed Jawad), the

prosecution has entered court papers tying the case to that of Uzair Paracha, who was convicted in the same court of participating in a plot to blow up gas stations. The only witness accusing the mastermind of the plot, Majid Khan, recanted. Mr. Khan is unfit for trial

(three suicide attempts after being held at a black site and then Guantanamo Bay). The plot was divulged by someone named Khalid Sheikh Mohammad in custody, he of the 183 waterboarding sessions. Again, torture comes into U.S. courts. Is it legal to assert

intelligence against a plotter taken in torture?Uzair Paracha’s other accomplice, other than, that is, Majid Khan, was supposed to be Aafia Siddiqui, the "al Qaeda Matahari". Who also is supposed to have negotiated $30 million dollar blood diamond deals in Sierra

Leone and taken the money back to al Qaeda in Afghanistan while putting her thesis material together for a journal article and taking care of her own and her neighbors kids in Roxbury, Mass. And a lot of other things. Put simply, in the courtroom during her

competency hearing, the prosecution wanted her put away for life in ADO Florence,CO, the defense wanted her put away for life in Carswell, TX, the Judge is finding her anti-Semitic, and the court reporters want her convicted a half a mile from ground zero. No

possibility of an Istanbul Protocol examination, no investigation into her disappearance, no hunt for her children (the court in Pakistan which had ordered one was itself ordered out of existence yesterday, because it had been constituted during the Musharraf

emergency, it’s up to the Senate there to re-instate any court orders over the next 120 days). So about those outbursts which the judge treated as insanity while they were happening, and as malingering afterward: Exactly what would sane behavior in such

circumstances have been? There is always more. No consular access in Afghanistan, no judicial hearing for extradition, interrogation while she was hospitalized at Craig Joint Theater Hospital in Bagram with wounds the U.S. military considered non-life threatening

but required removal of part of her intestines and possibly one kidney and caused her to lose consciousness (note the FBI notes at page 41 of the NYT amalgamation). That’s an interesting phenomenon, that interrogation. Rumors are that she was on a restraint bed

with 24/7 lights during that two weeks at Craig. She supposedly opened up to the same people who had just shot her a few days before? And why wasn’t she read her Miranda Rights then until she arrived in court in Manhattan, on August 5, 2008 before Judge Ellis

(S.D.N.Y., p.4 of the NYT amalgamation), the judge who remarked at the time that her extradition from Afghanistan had been speedier than he could get a prison from across town in Brooklyn. At the end of the day,

unless and until the conditions of her previous treatment are brought into the court, until

information explicitly derived from torture by waterboarding is banned from the courtroom,

until a defendant can testify at her own competency hearing, until she is given proper tests for

a credible allegation of torture, until subpoenas can be assured for the Ghazni police and the

governor of Ghazni, who say she never fired on anyone and the U.S. officers panicked and

shot, until the U.S. Attorney who wrote extraordinary rendition memoes for the State

Department that rival those of John Yoo and Jack Goldsmith (see this, for example) is forbidden to introduce

damning evidence to the judge before the trial starts, Aafia Siddiqui goes on trial not as a

defendant who is innocent until proven guilty, but as a terrorist, who is getting far more

justice than she deserves, isn’t she? Besides, she believes in Zionist plots. The days of the ACLU going to bat for George


Lincoln Rockwell are long forgotten. And Ms. Siddiqui probably wouldn’t accept them anyway, she also believes in Indian plots, American plots, just about any kind of plot imaginable. Just like someone

who’s been kept in extreme isolation too long, hunh? There was another woman who in fact became a fugitive from justice and

the subject of a nationwide manhunt because she didn’t feel she could ever get a fair trial in

America. Does anybody remember Angela Davis?

We can also envision a rather persuasive “whitewashing” argument. Changing our detention policy

certainly wouldn’t end some of the more egregious practices of the war on terror, and could potentially

result in more drone strikes if “taking prisoners” is not an option. Such an argument is talked at greater

length in the general section of the topic paper.

4. Warrantless Wiretapping

As a presidential war power that operates at the intersection of debates about foreign policy,

the war on terror, and civil liberties, warrantless wiretapping promises to be a unique and exciting case

area. Although it might not appear that wiretapping would be a “war power,” the Bush administration

used commander in chief powers to justify the need for National Security Agency use of illegal wiretaps.

Louis Fisher 2008, Specialist in Constitutional Law, Law Library, Library of

Congress, “Domestic Commander in Chief: Early Check by Other Branches,” CARDOZO LAW

REVIEW, http://loc.gov/law/help/usconlaw/pdf/cardozo_fisher.pdf

Broad definitions of the President’s role as commander in chief in contemporary times would

have astonished the framers, particularly when the title is meant to justify and empower the

president to take offensive actions against other nations without coming first to Congress for

approval. During George W. Bush’s administration, the Commander in Chief Clause has

regularly been invoked to justify the creation of military commissions and decide their rules

and procedures; designate U.S. citizens as “enemy combatants” and hold them indefinitely

without being charged, given counsel, or ever tried; engage in “extraordinary rendition” to take

a suspect from one country to another for interrogation and likely torture; and authorize the

National Security Agency to listen to phone conversations between the United States and a

foreign country involving suspected terrorists.1

Like many of the other subareas of this controversy, candidate Obama promised to revoke the authority

to conduct illegal wiretapping. However, President Obama has extended Bush-era policies and

justifications for these policies. For example, without much attention, Obama reauthorized the PATRIOT

Act, which allows for a number of surveillance options in order to fight terrorism.56 In addition, Congress

passed and Obama signed a five year extension to the Foreign Intelligence Surveillance Act, which

56

Radley Balko & Gene Healy, “Obama, Civil Liberties, And The Presidency: An Interview With Gene Healy,”

Huffington Post, March 15, 2013, http://www.huffingtonpost.com/2013/03/15/obama-civil-liberties-

and_n_2885529.html


authorizes warrantless wiretapping and new internet taps.57 Although recent Court rulings have been

made that appear to limit executive wiretapping powers, these rulings have created such as high bar for

plaintiffs that the decisions are virtually meaningless.

Julian Sanchez ’12, Cato Institute, 8/10, Illegally Wiretapped? Sorry, the Courts Won’t Help

You. http://www.cato.org/blog/illegally-wiretapped-sorry-courts-wont-help-you-0

In a case challenging the latest version of NSA’s vaccum-cleaner wiretapping, Amnesty v.

Clapper, the Obama administration is arguing that only those who can demonstrate that they

have actually been wiretapped (under a top secret program) are eligible to sue the

government—and that therefore the courts should toss out a suit brought by lawyers,

journalists, and activists who regularly communicate with clients and sources in the Middle

East, reasonably believe (based on public information) that their communications are highly

likely to be swept up in the NSA’s broad collection programs, and have taken costly measures

to reduce the risk of this occurring. The trouble here is that almost none of the thousands or

millions of people intercepted—many (if not most) of whom are entirely innocent—will ever

be informed about the surveillance of their calls and e-mails. As the legislative history of FISA makes clear, Congress expected that most

electronic surveillance for intelligence purposes was not necessarily being conducted with a view to criminal prosecution. Moreover, federal prosecutors actually decline to pursue about 80 percent of the

terrorism-related cases referred to them by the FBI. Perversely, then, the most evidently guilty stand some chance of learning they have been spied on—but the innocent almost never will, and thus never have an

opportunity to have a court determine whether their rights have been violated. Because the plaintiffs in Amnesty are seeking a ruling on the legality of current and future surveillance, rather than monetary

damages for past conduct, this latest ruling doesn’t necessarily sink their suit, which the Supreme Court is slated to hear in October to determine whether the challenge can proceed. There too, however, the

Obama administration’s position is that it should not.¶

And, as Sachez concludes, there is little hope that the Court will intervene to limit the Obama

administration’s use of wiretapping.

Julian Sanchez ’12, Cato Institute, 8/10, Illegally Wiretapped? Sorry, the Courts Won’t Help

You. http://www.cato.org/blog/illegally-wiretapped-sorry-courts-wont-help-you-0

“we’re now approaching seven years since the original exposure of Bush’s version of the NSA

spy program, widely deemed illegal by experts, yet with no decisive public ruling on the

question from our courts, and no real prospect that the thousands of innocents spied upon

will ever get an opportunity to seek redress.”

Two potential advantages for a wiretapping affirmative could be about: (1) the restoration of separation

of powers; and (2) the revitalization of American democracy. The U.S. wiretapping program hurts

American democracy and will be used to spy on dissenters:

Sanchez ’08 Julian Sanchez is a Washington writer who studies privacy and surveillance., 3-16-08, Los Angeles Times,

Wiretapping's true danger, http://articles.latimes.com/2008/mar/16/opinion/op-sanchez16/2

As the battle over reforms to the Foreign Intelligence Surveillance Act rages in Congress, civil libertarians warn that legislation sought by the

White House could enable spying on "ordinary Americans." Others, like Sen. Orrin Hatch (R-Utah), counter that only those with an "irrational

fear of government" believe that "our country's intelligence analysts are more concerned with random innocent Americans than foreign terrorists overseas."¶ But focusing on the

privacy of the average Joe in this way obscures the deeper threat that warrantless wiretaps

poses to a democratic society. Without meaningful oversight, presidents and intelligence

agencies can -- and repeatedly have -- abused their surveillance authority to spy on political

57

Dell Cameron, Motherboard, 4-5-13, 'Going Dark': What's So Wrong with the Government's Plan to Tap Our

Internet?, http://motherboard.vice.com/blog/fbi-data-wiretap-trevor-timm-interview


enemies and dissenters.¶ The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for

decades, intelligence analysts -- and the presidents they served -- had spied on the letters and

phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists,

lobbyists, members of Congress, Supreme Court justices -- even Eleanor Roosevelt and the

Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the

information obtained was often "collected and disseminated in order to serve the purely

political interests of an intelligence agency or the administration, and to influence social policy

and political action."¶ Political abuse of electronic surveillance goes back at least as far as the Teapot Dome scandal that roiled the Warren G. Harding administration in the early 1920s.

When Atty. Gen. Harry Daugherty stood accused of shielding corrupt Cabinet officials, his friend FBI Director William Burns went after Sen. Burton Wheeler, the fiery Montana progressive who helped spearhead

the investigation of the scandal. FBI agents tapped Wheeler's phone, read his mail and broke into his office. Wheeler was indicted on trumped-up charges by a Montana grand jury, and though he was ultimately

cleared, the FBI became more adept in later years at exploiting private information to blackmail or ruin troublesome public figures. (As New York Gov. Eliot Spitzer can attest, a single wiretap is all it takes to

torpedo a political career.)¶ In 1945, Harry Truman had the FBI wiretap Thomas Corcoran, a member of Franklin D. Roosevelt's "brain trust" whom Truman despised and whose influence he resented. Following

the death of Chief Justice Harlan Stone the next year, the taps picked up Corcoran's conversations about succession with Justice William O. Douglas. Six weeks later, having reviewed the FBI's transcripts, Truman

passed over Douglas and the other sitting justices to select Secretary of the Treasury (and poker buddy) Fred Vinson for the court's top spot.¶ "Foreign intelligence" was often used as a pretext for gathering

political intelligence. John F. Kennedy's attorney general, brother Bobby, authorized wiretaps on lobbyists, Agriculture Department officials and even a congressman's secretary in hopes of discovering whether the

Dominican Republic was paying bribes to influence U.S. sugar policy. The nine-week investigation didn't turn up evidence of money changing hands, but it did turn up plenty of useful information about the

wrangling over the sugar quota in Congress -- information that an FBI memo concluded "contributed heavily to the administration's success" in passing its own preferred legislation.¶ In the FISA debate, Bush

administration officials oppose any explicit rules against "reverse targeting" Americans in conversations with noncitizens, though they say they'd never do it.¶ But Lyndon Johnson found the tactic useful when he

wanted to know what promises then-candidate Richard Nixon might be making to our allies in South Vietnam through confidant Anna Chenault. FBI officials worried that directly tapping Chenault would put the

bureau "in a most untenable and embarrassing position," so they recorded her conversations with her Vietnamese contacts.¶ Johnson famously heard recordings of King's conversations and personal liaisons with

various women. Less well known is that he received wiretap reports on King's strategy conferences with other civil rights leaders, hoping to use the information to block their efforts to seat several Mississippi

delegates at the 1964 Democratic National Convention. Johnson even complained that it was taking him "hours each night" to read the reports.¶ Few presidents were quite as brazen as Nixon, whom the Church

Committee found had "authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security." They didn't need to be, perhaps. Through

programs such as the National Security Agency's Operation Shamrock (1947 to 1975), which swept up international telegrams en masse, the government already had a vast store of data, and presidents could

easily run "name checks" on opponents using these existing databases.¶ It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans

seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects

the private right to speak your mind, but it serves an even more important structural function,

ensuring open debate about matters of public importance. You might not care about that first

function if you don't plan to say anything controversial. But anyone who lives in a democracy,

who is subject to its laws and affected by its policies, ought to care about the second.¶ Harvard University

legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a

mechanism for protecting political dissent. In England, agents of the crown had ransacked the homes of pamphleteers critical of the king -- something the

founders resolved that the American system would not countenance.¶ In that light, the security-versus-privacy framing of the

contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails

may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an

executive branch unchecked by courts won't turn its "national security" surveillance powers

to political ends -- well, it would be a first.

Undoubtedly the biggest disadvantage to wiretapping affirmatives will be the argument that giving the

Commander and Chief broad latitude to conduct domestic surveillance operations is necessary to

combat terrorism. Teams that read wiretapping affirmatives can get offense in that debate contending

that broad wiretapping programs hurt our counter-terror efforts.

Agrast ’06 Mark Agrast is a Senior Fellow at the Center for American Progress. Ken Gude is the Associate Director of the

International Rights and Responsibility Program at the Center for American Progress. February 2, 2006, Center for American

Progress, NSA Domestic Warrantless Wiretapping and the “Trust Me” President, http://www.americanprogress.org/issues/civil-

liberties/news/2006/02/02/1836/nsa-domestic-warrantless-wiretapping-and-the-trust-me-president/

The constitutional rights of an unknown number of innocent Americans have been violated.

And the program has compromised our national security in three primary ways.¶ First , it has

jeopardized the prosecution of alleged terrorists. If evidence obtained under the warrantless

surveillance program was or will be used in any criminal prosecutions (as the administration has

asserted), then those convicted or accused terrorists can and surely will raise a constitutional

challenge, potentially irreparably jeopardizing these criminal cases.¶ Second , the NSA program

could harm ongoing investigations. The FISA Court, which approves or denies applications for FISA warrants,


could shut down any counterterrorism wiretaps that it authorized on the basis of unlawfully

collected information. This is not a hypothetical situation. In 2001, the FISA Court shut down

numerous wiretaps after learning that the FBI had supplied faulty information in the FISA warrant

applications.¶ Third , the program has misdirected resources that would be better spent pursuing

terrorists. NSA eavesdropping – “turning on the spigot” in the words of former NSA Director Michael Hayden –

yielded a tremendous volume of information that led nowhere .

Wiretapping is also a fruitful area for critical affirmatives about the modern surveillance state. There are

many philosophical objections to Bush and Obama’s wiretapping efforts:

Williams ’09 Daniel R. Williams ** Associate Professor, Northeastern University School of Law, Boston, MA, 2008 - 2009¶

Michigan State Journal of International Law¶ 17 Mich. St. J. Int'l L. 493, AVERTING A LEGITIMATION CRISIS AND THE PARADOX OF

THE WAR ON TERROR, Lexis

II. DOMESTIC WARRANTLESS SURVEILLANCE AND MONARCHICAL SOVEREIGNTY IN AN AGE OF TERROR¶ Within days of

9/11, the N ational S ecurity A gency n18 launched a surveillance program n19 that would, upon

public disclosure, expose a paradox: the United States, perhaps the most open society ever

witnessed in history, already had the apparatus and the wherewithal to be perhaps the most

sophisticated surveillance state ever witnessed in [*499] history. We do not know how to comprehend this

paradox n20 --and so, I suspect, we pretend it does not exist. Bobbitt seems to understand the dilemma arising from this paradox

when he says that the "most difficult intelligence challenge of all" is finding a way "to develop rules that will effectively empower the

secret state that protects us without compromising our commitment to the rule of law." n21 We can all join Bobbitt in decrying our

nation's lassitude in trying to resolve this paradox by simply turning away from it. n22¶ Domestic spying, without

warrants, and thus bypassing judicial oversight, was carried out without public awareness and

congressional approval, performed in the name of national security; before 9/11, such surveillance

perhaps seemed to some to be a rather fanciful, archaic, a sort of it-can't-happen-here activity that needn't worry us too-busy

Americans. When the New York Times broke the story that the Bush Administration did exactly that, when we learned that it

actually did happen, that it was happening, that arguments were being marshaled and rhetorical code words and scare tactics were

being pumped through all our media outlets to justify it, many regarded the revelation as uncovering something new, not just

another feature of this state of exception we call post-9/11 America, a.k.a. the War on Terror. n23¶ That is the sense one gets from

reading Eric Lichtblau's account of his experiences as a New York Times reporter covering the Bush Administration's construction

and prosecution of the War on Terror, in [*500] his book, Bush's Law. n24 There is no considering the possibility that, in fact, what

we were witnessing, are witnessing, is not something new at all, but rather something old--

the resurgence of something so old and out of mind that we thought it was dead and gone:

monarchical rule, which in its classical form is the expression of a nation's sovereignty through

the power of a King. That possibility is not only considered in another account of the Bush Administration's handling of the War on Terror--the excellent book,

Unchecked and Unbalanced: Presidential Power in a Time of Terror, by Frederick A.O. Schwarz Jr. and Aziz Huq--it is the principal accusation leveled at the architects of this War.

n25¶ Because this country was built upon the earlier defeat of the monarchical ideal, a defeat that occurred in the wake of the English Civil War and the Glorious Revolution of

1688; n26 because the Founding Generation was radical enough to replace that defeated ideal with a modernist constitutional framework dedicated to a system of power-

sharing; n27 because the historical record is replete with convincing evidence that the Founding Generation feared and repudiated the notion of an executive power that gave

discretionary authority to disregard legislative enactments n28 --because of all this, Schwarz and Huq argue, the resurgence of monarchical-style sovereignty, dressed up in the

academically neutered name, the unitary executive theory, is more than just worrisome--it threatens democracy itself. n29 Though they are somewhat tentative and sparing in

their analysis of exactly why democracy is threatened, it seems clear to this author that the threat is ominous precisely because this resurgence is occurring at a time when our

public sphere has been degraded through a spiritually deadening and ecologically unsustainable consumerism. The media has the unprecedented power and sophistication to

manipulate wants, tastes, and opinions, and the onset of more devastating terrorist attacks within the United States is virtually assured. n30¶ [*501] We may miss out on the

most fundamentally troubling aspects of what is taking place at this precarious moment in our nation's history if we see the NSA spy scandal as merely or primarily a question of

legality: Did the President and others in his administration, or the lawyers who enabled the War on Terror, break the law? The NSA spy scandal exemplifies the Bush

Administration's view that the commitment to divided and shared powers--a vital hallmark of our constitutional system, if not the key ingredient of it--must bend to

accommodate a new form of sovereignty, a new vision of state power, one where this Nation must act decisively through executive action unburdened by other branches of the

government.¶ This state of emergency requires, on this view, not the actions of a government, but the actions of a Nation, and the Nation must express itself not through

governmental activity, but through the bold and decisive decision making of its Head of State. So, when the government detains people without formal due process (often

indiscriminately and recklessly), the President is exercising sovereign authority in a way that trumps an existing regime of rights whereby the government must justify the

detention through an established juridical process. What is crucial to see in the many cases of indiscriminate detention is that this exercise of sovereign authority is not one in

defiance of law, but rather is a form of sovereignty that expresses itself through the manufacturing of law, the creation of an entirely new legal regime that has at its core the

anachronistic ideal of monarchy. n31¶ A clear rhetorical signal of this resurgence of the monarchical ideal is the prevalence of the word deeming. We are

becoming a nation where the State may deem you a dangerous person through a suitable

label like terrorist, and an entirely new regime of legality gets triggered, a regime heretofore


unimagined in this country. n32 Deeming is not proving. Deeming is a form of identifying under the mantle of assumed

authority. In times of old you could be deemed worthy of detention; in this country, we have long believed, you must be proven to

deserve detention. Monarchs deem; Presidents don't.¶ [*502] The NSA spy scandal is another, perhaps starker,

revelation of ambition to convert the Presidency into a modern-day monarchy where a new

regime of law governing domestic surveillance must come into existence in this time of

emergency, not through normal political channels, but through the sheer force of the

President's authority as Head of State. Some suggest that it is in that sense that the Bush

Administration's policies threaten to render this country unrecognizable.

And, warrantless wire-tapping leaves us in a permanent state of racial exception.

Michaelsen & Shershow ’05 Scott Michaelsen is an associate professor of English at Michigan State University.

Scott Cutler Shershow is Professor of English and director of the graduate program in Critical Theory at the University of California,

Davis. Discourse 27.2&3 (2005) 124-154, Is Nothing Secret?, Project Muse, online

We have written elsewhere about one other notable exception to the warrant requirement

that is of particular concern here because of its direct theoretical linkage to the USA PATRIOT

Act and therefore to FISA warranting procedures: the so-called "border exception," or what

we have called " the permanent state of racial exception " (also, see Kerr). In a long series of Supreme Court

rulings in the 1970s, the approximately 200,000 miles of the Mexico/U.S. borderlands were deemed exceptional with regard both to

warrants and probable cause, thus permitting the U.S. Border Patrol to stop automobiles in random car stops and at checkpoints—

searching for undocumented aliens—under a doctrine of suspicion that Chicano activists have long called "DWM" ("Driving While

Mexican") (Michaelsen 96–97). In this way, Chicanos and Mexicanos have been subjected for decades to a rule of law in the

borderlands that strips everyone riding in automobiles of even basic Fourth Amendment rights, as well as what the U.S. Supreme

Court has called a "right to travel" that "has been firmly established and repeatedly recognized" (United States. v. Guest 757; and cf.

Michaelsen and Shershow, "Practical Politics").¶ This overall doctrine of "border exception" was the crucial precedent for the FISA

Court when it issued a rare public ruling in 2002 on the constitutionality of the dismantling of the "firewall" between law

enforcement wiretapping governed by Title III (for example, by the FBI) and more generalized foreign surveillance operations

governed by FISA law (CIA/NSA, for instance). In this decision, known as In re: Sealed Case No. 02–001, the three-member court

suggested that the need to maintain the "integrity of the border" constitutes the sort of ongoing, permanent "emergency" that lays

the constitutional foundation for the USA PATRIOT Act. This would be a rule of law in which, the court concedes, traditional "Fourth

Amendment warrant standards" are not met, but in which we "come close" to meeting them. The only question that remains is

whether "close" is the right word for a system in which the CIA, for instance, is entitled to wiretap whomever the

[End Page 129] Secretary of State deems "an agent of a foreign power" ( flexibly defined so as to

equate the figure of the typically racialized foreigner with an inherent criminality ) and to turn

over any evidence of criminal activity directly to the FBI for prosecution (Michaelsen 93–94).¶ In other

words, the ongoing, racialized application of the law of the U.S. Border Patrol and the USA PATRIOT Act has already stretched

traditional Fourth Amendment requirements past the breaking point. The prosecution of all of the relevant cases falling within this

network of emergency law, and the deportation of illegal immigrants by the United States Citizenship and Immigration Service, takes

place in a legal environment that for decades has been dismantling the requirements of warrants and probable cause when it comes

to persons of color. In effect, a permanent and fully-institutionalized exceptionalism, beginning in the Fourth

Amendment and spreading progressively outward, has now dismantled the distinction between the "alien"

and the "citizen" (or what Carl Schmitt called the "enemy" and the "friend") to such an extent

that massive groupings of persons of color in the United States (Chicanos, Mexicanos, peoples

of the southern Americas in general; and now Arab nationals, Arab-Americans, and Islamic

peoples in general) live under what one has to call a fully-racialized rule of law.

A potential solvency mechanism is for Congress to repeal FISA or for the executive to take measures to

increase accountability.

Jones ’09 TIM JONES, Electronic Frontier Foundation, 4-16-09, New Wiretapping Revelations Should Prompt New Action from

Congress and the White House, https://www.eff.org/deeplinks/2009/04/new-revelations


The article also provides details of an NSA attempt in 2005 or 2006 "to wiretap a member of

Congress, without court approval, on an overseas trip." As EFF and others have pointed out

before, allowing the NSA unchecked access to our domestic telecommunications network will

inevitably lead to this kind of political abuse.¶ These revelations underline the need for new

action on NSA surveillance abuses, both from Congress and from the White House.¶ Congress

should repeal or reform the FISA Amendments Act, as it has now become undeniable that the

checks it set on surveillance power are insufficent and dysfunctional. In addition, Congress should

establish a comission or a select committee to fully and publicly investigate the NSA program,

past and present.¶ As for the White House and the DOJ — First, they should do as Senator

Feingold recommended earlier today, and waive the state secrets privilege in pending

surveillance litigation. Second, they should withdraw their baseless claims of sovereign

immunity. These simple actions would clear the way for true accountability through an

independent judicial ruling on the legality of the program.

Another solvency mechanism would include creation of an independent executive agency created by

FISA to review the reasonability of each individual wiretap.

Adam Burton, associate at White & Case LLP in New York, 2006, “Fixing FISA for Long

War: Regulating Warrantless Surveillance in the Age of Terrorism,” Pierce Law Review, Summer,

pp. LN.

The terrorist attacks of September 11 unleashed an unprecedented epoch in modern United States history characterized by the

consciousness of vulnerability. Fear of another attack, especially one involving weapons of mass destruction, has provoked a

recalibration of the balance between civil liberties and the power of the state on the one hand and between the powers of Congress

and the President on the other. The Bush Administration asked for and received controversial new legal

tools expanding the capability of the executive to conduct foreign intelligence surveillance

with the enactment of the Patriot Act. However, the Administration concluded that these amendments to FISA, while

useful, granted insufficient power to the President to uphold his constitutional duty to protect the United States, and therefore

authorized the NSA to begin surveillance on selected persons within the United States outside the guidelines established by the

Patriot Act. With this bold, extra-legal act, the President returned the conduct of foreign

intelligence surveillance to the pre-FISA era, reclaiming for the executive the unfettered

discretion to direct intelligence collection by the procedures the Administration alone deems

necessary and proper. While these procedures might be "reasonable" under the Fourth Amendment, the

Administration's efforts to evade any meaningful congressional or judicial supervision of the

program presents problematic questions regarding the President's constitutional right to

decide unilaterally how best to balance individual rights with the needs of the state. If the

President must have the power to conduct warrantless surveillance, then there must be

adequate checks on that power to ensure it is used responsibly and properly. An independent

executive agency appointed by the FISA court with the power to review the reasonability of

individual surveillance would provide that check without inhibiting the President's ability to

gather foreign intelligence information.

Despite these strong affirmative arguments, wiretapping is certainly a controversial area ripe for debate.

Many people defend the practice of wiretapping and claim it has been effective at preventing terrorist


attacks with minimal costs to our privacy.58 For instance, warrantless wiretapping is a necessary evil ---

it’s the only way to track terrorists. Increased congressional oversight would slow down the process and

invite attacks:

Yoo ’09 Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from

2001-03 and is a visiting scholar at the American Enterprise Institute. 7-16-09, Wall Street Journal, Why We Endorsed Warrantless

Wiretaps, http://online.wsj.com/article/SB124770304290648701.html#mod=rss_opinion_main

It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al

Qaeda's inner workings, could not detect its operatives' entry into the country, nor predict

where it might strike next.¶ Suppose an al Qaeda cell in New York, Chicago or Los Angeles was

planning a second attack using small arms, conventional explosives or even biological,

chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near

impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals

intelligence, threw up a virtual net to intercept all electronic communications leaving and

entering Osama bin Laden's Afghanistan headquarters. What better way of detecting follow-

up attacks? And what president -- of either political party -- wouldn't immediately order the

NSA to start, so as to find and stop the attackers?¶ Evidently, none of the inspectors general of the five leading

national security agencies would approve. In a report issued last week, they suggested that President George W. Bush might have

violated the 1978 Foreign Intelligence Surveillance Act (FISA) by ordering the interception of international communications of

terrorists without a judicial warrant. The report also suggests that "other" intelligence measures -- still classified only because they

are yet to be reported on the front page of the New York Times -- similarly lacked approval from other branches of government.¶ It

is absurd to think that a law like FISA should restrict live military operations against potential

attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission

found, FISA's wall between domestic law enforcement and foreign intelligence proved

dysfunctional and contributed to our government's failure to prevent the 9/11 attacks.¶ Under

FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable

cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under

diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous.

Monitoring their likely communications channels is the best way to track and stop them.

Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the

point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic

between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent

traffic, just as roadblocks and airport screenings do.¶ In FISA, President Bush and his advisers

faced an obsolete law not written with live war with an international terrorist organization in

mind. It was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed,

foreign threats "are much less capable to be directed by antecedent, standing, positive laws." Legislatures are too slow

and their members too numerous to respond effectively to unforeseen situations. Only the

executive can act to protect the "security and interest of the public."¶

In addition to preventing foreign threats, wiretapping is useful to several law enforcement duties, such

as combating domestic “homegrown” terrorism.

New York Daily News ’09 – 9/25, Enemies within: America must face the threat posed by homegrown terrorists,

http://www.nydailynews.com/opinion/enemies-america-face-threat-posed-homegrown-terrorists-article-1.407896

58

John G. Malcolm, 9-18-12, Heritage Foundation, Foreign Intelligence Surveillance Amendments Act of 2008 Set

to Expire, http://www.heritage.org/research/reports/2012/09/foreign-intelligence-surveillance-amendments-act-

of-2008-set-to-expire


Homegrown terror, so lightly dismissed by so many for so long, is sprouting perilously from American soil. Najibullah Zazi, indicted this week on charges of plotting an Al Qaeda bomb strike, is the terrifying face of a strain of radical, violent

Islam within the U.S.¶ His case history documents how terrorists can fade into the fabric of the country's pluralistic population and

how easily they can fashion explosives out of readily available products.¶ But Zazi is not alone:¶ Brooklyn-born Betim Kaziu was

charged Thursday with attempting to join a Pakistani-based Al Qaeda affiliate in hopes of killing U.S. troops.¶ Jordanian Hosam

Maher Husein Smadi was arrested Thursday in Dallas for putting what he believed was a car bomb in an office-tower garage.¶

Michael Finton, a 29-year-old Illinois man who idolized American Taliban John Walker Lindh, was arrested Wednesday on charges of

plotting to bomb a federal courthouse.¶ Long Islander Bryant Neal Vinas was busted in July for allegedly training with Al Qaeda in

Pakistan, joining rocket attacks on U.S. forces and giving "expert advice" on the subways and Long Island Rail Road.¶ Three U.S.

citizens and a Haitian immigrant were charged in May with conspiring to plant 37 pounds of explosive at two Bronx synagogues.¶

Three illegal-immigrant brothers from Macedonia were sentenced in April to life for plotting in 2007 to kill soldiers at Fort Dix, N.J.¶

Zazi, who was born in Afghanistan, ran a Manhattan doughnut cart. That's how law-abiding, hardworking and, yes,

normal, he seemed even as, probers believe, his heart beat as an engine of mass destruction.¶ How plausible his denials seemed

before his arrest. The fire in his brain is matched by the ice in his veins. And, evidence indicates, he was well on the way to

assembling devices, concealable in backpacks, that could have blown speeding trains off their

rails.¶ New York and America are lucky the NYPD and FBI grabbed Zazi before he wreaked

havoc. But his associates are out there, with more to come.¶ That's why the see-something-

say-something rule must be reinforced. Why authorities must educate sellers of beauty and hair products that can be

perverted to evil. Zazi bought loads of such stuff in Colorado.¶ Why New Yorkers must accept the mild intrusion of even more bag

inspections in the subways. And why Congress must not weaken Patriot Act provisions that enable

authorities, with warrants, to wiretap and seize records of terror suspects.

Warrantless wiretaps are also necessary to check domestic organized crime, drug trafficking, and white

collar crime.

Freeman 13, Law Office of John Freeman, © 2013, Hedge-Fund Mogul Raj Rajaratnam Sunk by

Wiretap Evidence, http://www.formerfedlawyer.com/CM/Articles/Wiretapping-a-New-Tactic-

for-Prosecutors-in-White-Collar-Cases.asp, date accessed: 4/12/13

Wiretapping has typically been used for building cases against organized-crime families and

drug traffickers. The jump to white-collar crime marks a bold new direction in government

prosecution.

With such a powerful tool, the government can be expected to use wiretapping extensively in

future insider-trading investigations. Prosecutors should not expect this new tactic to go

unchallenged. Wiretapping raises significant concerns over privacy rights. Defense attorneys

are likely to heavily scrutinize and aggressively challenge the use of wiretap evidence in the

white-collar criminal arena.

5. DOD Covert Operations

The Bin Laden raid was demonstrative of the impressive intelligence gathering and military

capabilities of the United States. Perhaps most impressive was the level of secrecy that was maintained

which allowed this mission to succeed. After the operation defense secretary Leon Panetta offered an

important explanation that helped explain how this mission was kept secret. By describing the mission

as a title 50 action Panetta defined the mission to kill Bin Laden not as a department of defense military


operation, but rather as an intelligence gathering operation that carried with it significantly different

standards for oversight.59

This raid illustrates what the stakes are in the debate over Presidential powers and the

department of defense. With the increased use of covert operations and intelligence gathering activities

as a tool of foreign policy there is an increased emphasis on executive control over foreign affairs.60 This

debate encompasses two of the biggest concerns when selecting a topic. It is a timely issue that governs

ongoing policy, as the United States continues to pursue the war on terror the President’s role as

commander in chief will continue to be a topic for public policy debates. At the same time, changes like

those in the literature are sufficiently difficult to manage that massive changes are unlikely to take place

and interfere with affirmative inherency or negative uniqueness claims.

Mechanisms

Mechanisms for the affirmative to constrain Presidential power to command the use of the CIA

and covert operations through the DOD are diverse. This is due to the immense power the Presidency

has in the status quo to use both the CIA and the military to pursue foreign policy objectives. We will

describe two basic ways that the affirmative could constrain Executive decision making power.

The first is to constrain the Executive power to pursue foreign policy objectives. To do this could

take several forms. One of the more straightforward approaches advocated by Vermule61 would be to

create judicial oversight. This would be done by overturning case law in the Vermont Yankee decision

which limited judicial oversight of Executive agencies. Vermule hypothesizes that such a decision would

establish grounds for judicial oversight that could constrain executive decision making ability. This is not

done by establishing Supreme Court oversight of every Executive action. Instead, it would authorize

lower courts to create legal tests that constrain what the Executive might legally do. The emphasis in

this mechanism is using lower courts to set precedent. Although my review will focus on advantage

areas intrinsic to the Executive power to use the CIA and covert operations it is worth noting that there

is a lively debate over the desirability of empowering lower courts that provides significant advantage

and disadvantage ground.

59

Wall, Andru. (2011): “Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence

Activities & Covert Action”, Harvard National Security Journal, Vol. 3. http://harvardnsj.org/wp-

content/uploads/2012/01/Vol.-3_Wall1.pdf 60

Carusan, Kiki and Farar-Meyers, Victoria. (2007): “Promoting the President's Foreign Policy Agenda: Presidential

Use of Executive Agreementsas Policy Vehicles”, Political Research Quarterly, Vol. 60, No. 4.

http://www.jstor.org/stable/4623862. 61

Vermoule, Adrian. (2009): “Our Schmittian Administrative Law”, Harvard Law Review, Vol. 122, No. 4.

http://www.jstor.org/stable/40379741 .


There is also the option for the affirmative to use the courts to overrule specific cases that are

relevant to Presidential powers. While much of this conversation has taken place with regards to the

detainment of prisoners during the War on Terror there is ample ground for it to be applied to

Presidential power more generally. A recent article by Charlie Savage62 reported on a Supreme Court

decision that limited the ability of the CIA to maintain the secrecy surrounding the drone program.

While that particular issue will be covered in greater detail in other parts of the paper the grounds

offered in that decision dealing with government secrecy significantly limit the way the Executive would

be able to use the CIA or covert operations.

There are legislative means by which the power of the Presidency could be limited as well. The

first of these would be to limit funding for such operations. Traditionally this is done through wording

written into appropriations bills that require oversight be permitted as a condition for funding special

programs. While this mechanism has the limitation that at times the Executive has rejected such

restrictions the use of funding as a bargaining tool has been proven to be effective in many cases .63 This

approach has been frequently used in the context of Department of Defense operations as a way to limit

what policy options are available to the President.

A significant part of the problem with providing limitations on Presidential authorities is the

difficulty in getting information on CIA activities dispersed to both houses in congress. One solution that

has been proposed has been increasing the frequency of joint hearings.64 Joint hearings would allow for

congress to take united action to limit executive powers. This could be done either in conjunction with

or separate from empowering the Government Accounting Office to audit the intelligence community.

As Halchin and Kaiser argue, such a move would provide an investigative approach which does not rely

on self-disclosure from the intelligence community. This would again, enable congress to receive more

complete information on Executive activities which would allow for limits to be placed on Presidential

power.

The second approach to limiting Presidential power over the CIA and covert operations is

discussed in other parts of the paper, but I will briefly point out the particular import that it has here.

Many of the policies that pertain to the functioning of the CIA and covert operations are derived from

Executive Orders, Signing Statements, and other policy documents released by the Presidency. A

62

Savage, Charlie. (2013): “Court Orders the C.I.A. to Disclose Drone Data”, New York Times, March 15.

http://www.nytimes.com/2013/03/16/us/court-says-cia-must-yield-some-data-on-drones.html?_r=3&. 63

Elsea, Jennifer; Garcia, Michael and Nicola, Thomas. (2013): “Congressional Authority to Limit Military

Operations”, Congressional Research Service. http://www.fas.org/sgp/crs/natsec/R41989.pdf. 64

Halchin, Elaine and Kaiser, Frank. (2012): “Congressional Oversight of Intelligence:

Current Structure and Alternatives”, Congressional Research Service. http://www.fas.org/sgp/crs/misc/97-936.pdf


particularly noteworthy example can be found in the signing statement attached to The Department of

Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist

Attacks on the United States Act, 2002. In this signing statement Bush specifically rejected demands that

congress be notified of funding for special programs including covert operations. Steps taken by either

Congress or the Legislature to override similar documents would also very easily be defended on

constraints against the exercise of Presidential power on foreign policy.

(Dis)Advantage Ground

An important consideration in this topic area is the inherent bidirectionality of the advantage

ground. Limiting Presidential power could ostensibly be either good or bad from almost any political

perspective. For every advantage that a plan can claim to solve, there are also significant negative

claims that the status quo or an anti-topical counterplan to solve the same advantage. In this section I

will break down the advantage areas and briefly articulate what I think are reasonable affirmative and

negative claims to each.

The first advantage is bureaucratization. As Wall notes there is a major tension that exists

between the DOD and CIA regarding human intelligence operations. As a result information gathering is

weakened by a lack of information sharing that begins with the Presidential limitations on congressional

involvement. Because congress does not know which activities each branch claims they are unable to

properly fund either agency. A potential solution would be to decrease Executive control by allowing

greater congressional influence on decision making over what each branch is responsible for by

providing oversight. An advantage dealing with bureaucratization has clear implications for military

effectiveness based on the basic claim that accurate intelligence is a pre-requisite to military activity.

A distinct policy option available to the negative is to argue that Executive authority is needed to

resolve this particular problem. As Wall argues later in his article, the Executive because of its more

unitary character is better suited to a more nuanced definition of what intelligence gathering powers

ought to be given to which agency. As such, the negative could argue that the Presidential power to

define the functions of its agencies should be expanded beyond the powers currently permitted by

Congress.

A second advantage is war powers. Although this is discussed in other parts of the paper, covert

operations could also fall under the war powers debate. Because declarations of war can be done by

deed or word, there is a legitimate claim that congress should have the ability to veto certain covert

operations that could be described as acts of war (Sloan et. Al 2012). This change of powers offers

numerous advantages to how the U.S. utilizes its covert forces and the CIA.


The first advantage is international law:

Sloan et. al 2005 (Virginia E., Spencer Boyer, Sharon Franklin, Joseph Onek, Amber Lindsay,

Pedro Ribeiro, and Kathryn Monroe. Deciding to Use Force Abroad: War Powers in a System of

Checks and Balances. The Constitution Project, 2005.

http://www.constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_Abroad1.pdf)

Although treaties are part of the supreme law of the land, authorization by a treaty organization such as the North Atlantic Treaty

Organization or by an international body such as the United Nations Security Council for the use of force to preserve international or

regional peace and security is not a constitutional substitute for authorization by Congress. Whether or not initiating the

use of force abroad by the United States is lawful under international law or authorized by a

treaty to which the United States is a party or by an international organization of which it is a

member, under our Constitution only Congress can authorize initiating the use of force abroad

except for a limited range of defensive purposes. Congress can also condition the use of force

on compliance with international law or with treaty obligations. Furthermore, it can express

its sense that the President should consult with an international organization before he or she

orders the use of force abroad. But it cannot delegate to any international body the decision whether to use force.

This advantage would provide a good bridge to debates about the role of U.S. military policy governing

covert operations in the context of international law. There is a wide body of literature that calls into

question the legitimacy of the way the United States uses covert operations capabilities as a way to

avoid the standards set by international law. This affirmative would work to impose compliance and

gives the affirmative ready access to a wide body of literature.

There is also significant ground for the negative to argue this issue as well. There are legitimate

sovereignty disadvantages that could be used to respond not just to affirmatives defending international

law as an advantage, but affirmatives that seek to limit Executive authority to use exceptional and

unconventional military and intelligence gathering techniques. The vigorous responses offered by the

Executive branch to such attempts through signing statements and other mechanisms gives reason to

believe that the sovereignty of the United States could be effected by limiting the Presidential authority

to conduct foreign affairs.

The second advantage is terrorism:





The Declare War Clause gives Congress the choice between authorizing the use of force

abroad by declaration of war or by legislation Public accountability for the decision to use

force requires that Congress speak as clearly in legislation as it does in a declaration. Under this

constitutionally-derived clear statement rule, which is restated in the WPR, authorization for the use of force abroad should not

usually be inferred from a general defense appropriation, let alone from other legislation regarding military procurement,

conscription or other collateral subjects. However, the nature and source of terrorist attacks and threats


posed by WMD, and the need for secrecy and speed in clandestine operations against them,

may justify more general authorization of some counter-terrorist operations that are not

already authorized by the President’s defensive war power. Even in such cases, Congress must always state

the purposes and scope of its authorization as clearly as the circumstances permit in order to satisfy the constitutional objectives of

legislative deliberation and political accountability.

What is distinct in this congressional declaration is a clear understanding for what operations

must commence. While this card notes that secrecy is a concern, general authorization resolves many

of these problems. At the same time, a constitutional mandate for public accountability is upheld

representing a major change in status quo policies. There is also the advantage of congress being able

to offer a broader mandate than what is constitutionally available to the Executive.

The third advantage is collective judgment:





Neither consulting nor notifying Congress is a substitute for its collective judgment expressed

in authorizing legislation. In any case, all members of the War Powers Initiative agree that it is

in the President’s institutional interests and in the national interest for the use of force abroad

to be supported by the collective judgment of Congress and the President, because such a

judgment reflects a political consensus that makes them jointly responsible for the resulting

costs. To persuade a majority of both houses of Congress to make the collective judgment that

the use of force is in the national interest, a President must, in effect, persuade the people. If

he cannot persuade the people’s representatives, he is unlikely to persuade the people who

elected them.

This advantage would be at the core of many affirmative cases on the topic. The advantage

argues that a more restrained military policy is desirable and requiring congressional authorization is an

effective means to do that. This creates a consistent link for a number of different takes on the standard

hegemony advantage. Rather than arguing that a particular policy or technology is key to maintaining

hegemony, in this case there is a debate to be had over what hegemony looks like. Rather than

continuing the same hackneyed debates over military dominance and power projection more nuanced

advantages based on limited visions of U.S. leadership become much easier ground for the affirmative to

defend. This advantage would focus debates on how subjecting covert operations and intelligence

gathering can help create a more limited vision of U.S. leadership.

By contrast the negative has strong arguments for a more conservative vision of U.S. leadership.

Rather than the more militarily restrained vision created under the affirmative the negative would be

able to argue for a more aggressive use of covert operations to maintain U.S. military or geopolitical


dominance. This could be done again, either through the use of anti-topical counterplans or

disadvantages that contend that the status quo Executive leadership makes executing covert operations

easier.

Specific to the CIA there is significant advantage ground to be argued based on the need to

strengthen congressional oversight. Perhaps most broad and intuitive is the claim advanced by

Genevieve Lester that almost every foreign policy failure including 9/11 is the result of an intelligence

failure (2011). This creates the possibility for both broad advantages based on the need for stronger

oversight generally to improve the quality of intelligence. It also allows for the ability to make more

specific claims over the need to improve intelligence in particular regions. The foundational role that

the CIA plays in geopolitics makes for very diverse affirmative advantage ground that can be accessed

with changes in oversight and leadership.

Overall, we would strongly advocate that this area be included in a topic dealing with

Presidential powers. There are legitimate mechanisms with a strong academic literature base. This is

also an incredibly timely and pressing issue. As the United States continues to pursue the War on Terror

and use unconventional means to gather intelligence and pursue military objectives the need to

question Executive authority will only grow larger.

We foresee one realistic argument against the inclusion of this topic. The changes that would

be made would by definition be substantial and would require a complete change in the way the

constitution is interpreted. The result is that some parts of the literature base could be considered

extremist or unrealistic. We offer two responses. The first is that the War Powers Resolution

demonstrates that such changes are not unrealistic, but rather occur in response to perceived problems.

The second is that this is what makes for good negative ground. If the affirmative is allowed to defend

very minute changes the ability for the negative to generate substantive links is very small. The larger

change required by the affirmative to address these harms are both realistic and a good basis for

debate.

6. Approval for UN/NATO Action

Obligations created by international and security treaties implicate the larger debate about

unchecked presidential war powers. In particular, presidents frequently contend that U.S. participation

in NATO or UN-authorized military operations are automatic treaty requirements that do not require

prior congressional approval or declaration of war. The 2011 military intervention in Libya sparked a

large debate in the literature about both the role of the UN and NATO and executive war powers.


Jeremiah Gertler et al, “No-Fly Zones: Strategic, Operational, and

Legal Considerations for Congress ,” CRS Report for Congress, April 4, 2011,

http://www.fas.org/sgp/crs/natsec/R41701.pdf

On November 7, 1973, Congress passed the War Powers Resolution, P.L. 93-148, over the veto of President Nixon. The

War Powers Resolution (WPR) states that the President’s powers as Commander in Chief to introduce U.S. forces into hostilities or

imminent hostilities can only be exercised pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national

emergency created by an attack on the United States or its forces. It requires the President in every possible

instance to consult with Congress before introducing American Armed Forces into hostilities or

imminent hostilities unless there has been a declaration of war or other specific congressional

authorization. It also requires the President to report to Congress any introduction of forces into hostilities or imminent

hostilities, Section 4(a)(1); into foreign territory while equipped for combat, Section 4(a)(2); or in numbers which substantially

enlarge U.S. forces equipped for combat already in a foreign nation, Section 4(a)(3). Once a report is submitted “or required to be

submitted” under Section 4(a)(1), Congress must authorize the use of force within 60 to 90 days or the forces must be withdrawn.

Since the War Powers Resolution’s enactment in 1973, every President has taken the position that this statute is an unconstitutional

infringement by Congress on the President’s authority as Commander in Chief. The courts have not directly addressed this question,

even though lawsuits have been filed relating to the War Powers Resolution and its constitutionality. Some recent

operations—in particular U.S. participation in North Atlantic Treaty Organization (NATO) military

operations in Kosovo, and in U.N.-authorized operations in Bosnia and Herzegovina, in the

1990s—have raised questions concerning whether NATO operations and/or U.N.-authorized

operations are exempt from the requirements of the War Powers Resolution. Regarding NATO

operations, Article 11 of the North Atlantic Treaty states that its provisions are to be carried out by the parties “in accordance with

their respective constitutional processes,” implying that NATO Treaty commitments do not override U.S. constitutional provisions

regarding the role of Congress in determining the extent of U.S. participation in NATO missions. Section 8(a) of the War Powers

Resolution states specifically that authority to introduce U.S. forces into hostilities is not to be inferred from any treaty, ratified

before or after 1973, unless implementing legislation specifically authorizes such introduction and says it is intended to constitute an

authorization within the meaning of the War Powers Resolution. Regarding U.N.-authorized operations, for “Chapter VII” operations,

undertaken in accordance with Articles 42 and 43 of the U.N. Charter, Section 6 of the U.N. Participation Act, P.L. 79-264, as

amended, authorizes the President to negotiate special agreements with the U.N. Security Council, subject to the approval of

Congress, providing for the numbers and types of armed forces and facilities to be made available to the Security Council. Once the

agreements have been concluded, the law states, further congressional authorization is not necessary. To date, no such agreements

have been concluded. Given these provisions of U.S. law, and the history of disagreements between

the President and the Congress over presidential authority to introduce U.S. military

personnel into hostilities in the absence of prior congressional authorization for such actions,

it seems likely that a presidential effort to establish a “no-fly zone” on his own authority

would be controversial. Controversy would be all the more likely if the President were to

undertake action “pre-emptively” or in the absence of a direct military threat to the United

States.

This part of the controversy provides bidirectional advantage ground for affirmatives. On one hand,

affirmatives could contend that the precedent set by the NATO Libya operation is dangerous because it

justifies reckless foreign policy that will fuel adventurist and diversionary wars and will undermine global

non-proliferation efforts. For instance,

David Gibbs, Associate Professor of History and Political Science at the University

of Arizona, “Libya and the New Warmongering,” Foreign Policy in Focus, January 12, 2012, http://www.globalpolicy.org/security-council/index-of-countries-on-the-security-council-

agenda/libya/51177-libya-and-the-new-warmongering.html

The NATO intervention in Libya is likely to produce a more militarized and insecure world, and

this will be its most enduring legacy. The military “success”in Libya has increased the possibility of new


wars. There is a widespread perception that NATO has achieved an easy victory against

Gaddafi, and the resulting sense of hubris augments the risk of future military actions against

Iran, Syria, and other possible targets. Politicians in NATO countries surely welcome the public

distraction that war provides, especially in the context of the world-wide economic slump,

and this may prove an additional motivation for new military action. And the Libyan success

will generate heightened levels of military expenditure. The British military has already been using the

intervention as an argument for more funding; the same situation will no doubt occur in France and the United States as well, where

the intervention will bring political benefits to the military-industrial complexes of each country. Given limited funds, the

relatively higher military budgets that result from this situation will probably reduce funds for

education, health, environmental protection, and disease eradication, and also for aid to

developing countries, which include Libya. Another consequence of intervention is the erosion

of international law, as indicated by NATO’s disregard of the UN Charter and also the U.S. War

Powers Resolution, which were openly flouted in the course of the bombing campaign and the

efforts at regime change. In previous eras, U.S. liberals might have criticized the unchecked use of executive power shown

by the Obama administration. But such concerns are a thing of the past. With Libya, liberals have shown

themselves to be perfectly comfortable with an “imperial presidency.” In addition, the

intervention constitutes a setback for international cooperation aimed at curbing nuclear

proliferation: NATO’s decision to overthrow Gaddafi after he had agreed to give up his nuclear

weapons development program will surely dissuade other countries such as North Korea from

repeating Gaddafi’s mistake. The significance of the intervention will thus extend far beyond

Libya itself, and it is this larger class of implications that constitutes the most dangerous

implication of the intervention. No one likes to think about the long-term consequences of policy actions, especially

where “victory” is involved; but these long-term consequences will remain, all the same, and international security will be

compromised as a result.

On the other hand, affirmatives could contend that the Libya mission creates a dangerous precedent

that overly constrains U.S. hard power through justifying the UN’s Responsibility to Protect (R2P)

doctrine. For instance, affirmatives can argue that the R2P precedent allows for the UN to veto future

US military operations, which destroys US hard power.

Steven Groves, Groves, Bernard and Barbara Lomas Senior Research Fellow in

Heritage’s Margaret Thatcher Center for Freedom, “Obama Wrongly Adopts U.N.

“Responsibility to Protect” to Justify Libya Intervention,” Heritage Foundation, March 31, 2011,

http://www.heritage.org/research/reports/2011/03/libya-intervention-obama-wrongly-adopts-

un-responsibility-to-protect

R2P Constrains U.S. Decision Making Therefore it would appear that the Obama Administration has

adopted both the basic philosophy and the operational characteristics of R2P. This should come as no

surprise when the key decision makers regarding Libya included Samantha Power, who authored a Pulitzer Prize-winning book on

genocide, and Secretary of State Hillary Clinton, who promised during her presidential campaign to “operationalize” the R2P

doctrine and “adopt a policy that recognizes the prevention of mass atrocities as an important national security interest of the

United States, not just a humanitarian goal” and “develop a government-wide strategy to support this policy, including a

strategy for working with other leading democracies, the United Nations, and regional

organizations.”[5] But the Administration should renounce its flirtation with R2P and reject it as

its philosophical basis for military intervention. Adhering to the R2P doctrine sets a dangerous

precedent. The more nations that appear to follow the doctrine out of a sense of obligation,

the more that the doctrine may be considered to have attained normative status—a step

towards recognition of R2P as binding customary international law. If R2P is considered to have attained


that status, its principles may be considered obligatory, rather than voluntary. Such an occurrence

is likely to constrain U.S. action in the future. Inevitably a time will come when the U.S. will

want to intervene in a situation, perhaps to stop an atrocity, only to be criticized for not first

receiving authorization from the U.N. Security Council. U.S. strikes against a nation’s leadership in some

future intervention may be condemned as “disproportionate” to the humanitarian mission of protecting a civilian population. In

short, by adopting the principles of R2P in the Libyan intervention, the President is legitimizing

the doctrine and raising the bar for justification for future U.S. military actions.

Additionally, affirmatives could argue a libertarian perspective in contending that any alliance system is

problematic because it creates obligations on the U.S. to respond to threats to other members of the

alliances, which risks entangling the U.S. in regional conflicts that risk nuclear-armed power

confrontation. For instance, Ted Galen Carpenter of the CATO Institute and Christopher Layne, the

Robert M. Gates Chair in Intelligence and National Security at the George Bush School of Government

and Public Service at Texas A&M University, have written a number of articles that make these kinds of

claims. For example,

Ted Galen Carpenter, vice president for defense and foreign policy studies at the

Cato Institute, “NATO at 60: A Hollow Alliance,” CATO Policy Analysis, No. 635, March 30,

2009, http://www.cato.org/publications/policy-analysis/nato-60-hollow-alliance

Although NATO has added numerous new members during the past decade, most of them

possess minuscule military capabilities. Some of them also have murky political systems and

contentious relations with neighboring states, including (and most troubling) a nuclear-armed

Russia. Thus, NATO’s new members are weak, vulnerable, and provocative — an especially

dangerous combination for the United States in its role as NATO’s leader. There are also growing fissures in

the alliance about how to deal with Russia. The older, West European powers tend to favor a cautious, conciliatory policy, whereas

the Central and East European countries advocate a more confrontational, hard-line approach. The United States is caught in the

middle of that intra-alliance squabble. Perhaps most worrisome, the defense spending levels and military

capabilities of NATO’s principal European members have plunged in recent years. The decay of

those military forces has reached the point that American leaders now worry that joint operations with U.S. forces are becoming

difficult, if not impossible. The ineffectiveness of the European militaries is apparent in NATO’s

stumbling performance in Afghanistan. NATO has outlived whatever usefulness it had.

Superficially, it remains an impressive institution, but it has become a hollow shell — far more a political honor society than a

meaningful security organization. Yet, while the alliance exists, it is a vehicle for European countries to

free ride on the U.S.military commitment instead of spending adequately on their own

defenses and taking responsibility for the security of their own region. American calls for greater burden-sharing are even more

futile today than they have been over the past 60 years. Until the United States changes the incentives by withdrawing its troops

from Europe and phasing out its NATO commitment, the Europeans will happily continue to evade their responsibilities. Today’s

NATO is a bad bargain for the United States. We have security obligations to countries that add

little to our own military power. Even worse, some of those countries could easily entangle

America in dangerous parochial disputes. It is time to terminate this increasingly dysfunctional alliance.

Unlike in previous debate seasons – particularly during the 2003-2004 Europe topics – when affirmatives

could argue that we should withdraw from NATO, under this controversy, affirmatives would being

debating about the justifications and precedence established by these alliance and international systems


for U.S. action. As a result, affirmative mechanisms would include actions such passing Dennis Kucinich’s

(D-OH) legislation to require congressional approval for U.S. participation in NATO operations.

Nathan White, “Kucinich Legislation Reins in NATO, Reclaims Constitutional War Powers of

Congress,” Common Dreams, August 13,

2012,https://www.commondreams.org/newswire/2012/08/13-3

Congressman Dennis Kucinich (D-OH) is today urging Members of Congress to support legislation,

H.R. 6290, to prevent future presidents from using the North Atlantic Treaty Organization (NATO) to

circumvent Congress’ constitutional authority to declare war. “NATO has become a sock

puppet to conduct military operations abroad absent congressional authorization, as required

by Article 1, Section 8 of the Constitution. This practice undermines our Constitution and global security as it

allows the president to perpetrate violence without congressional oversight. Congress must

fight to regain its basic constitutional right to declare war,” said Kucinich. H.R. 6290 would prohibit

the deployment of a unit or individual of the U.S. Armed Forces or an element of the

intelligence community in support of a NATO mission absent prior statutory authorization for

such deployment from Congress, as enshrined in Article 1, Section 8 of the Constitution.

Or, affirmatives can argue that the WPR or the United Nations Participation Act should be amended to

apply the WPR constraints on U.S. participation in U.N. operations.

Richard Grimmett, Specialist in Intl Security, 2012, “The War Powers Resolution: After

Thirty-Eight Years,” Congressional Research Service, Sept

24, www.fas.org/sgp/crs/natsec/R42699.pdf.

With the increase in United Nations actions since the end of the Cold War, the question has been¶ raised whether

the War Powers Resolution should be amended to facilitate or restrain the¶ President from

supplying forces for U.N. actions without congressional approval. Alternatively,¶ the United

Nations Participation Act might be amended, or new legislation enacted, to specify¶ how the

War Powers Resolution is to be applied, and whether the approval of Congress would be¶

required only for an initial framework agreement on providing forces to the United Nations,

or¶ whether Congress would be required to approve an agreement to supply forces in

specified¶ situations, particularly for U.N. peacekeeping operations.

We also envision affirmatives arguing that future specific NATO and U.N. military operations are bad and

that limiting U.S. support for those operations would stop the missions from occurring. There are also a

number of critical interrogations into global governance (for instance, Hardt and Negri’s work on Empire

could be used for these kinds of arguments) and the whitewashing of U.S. imperialism and the National

Security State through alliance and international systems.

The negative has a number of excellent arguments its disposal to refute these kinds of

affirmatives. In terms of counterplans, the negative can argue that rather than constrain U.S. executive


authority, full withdrawal from these organizations would best solve the case harms.65 Additionally,

against teams that argue that specific interventions will be dangerous, the negative can argue that

Congress should cut DOD funding for particular NATO or U.N. operations. For example, in 2011, House

Resolution 2278 was offered to limit use of funds for the NATO operation in Libya.66

In terms of disadvantages and critiques, negatives can contend that the U.N. is necessary for

global humanitarian missions and these are good (see the discussion under “Section V: Core Negative

Arguments” for more discussion about this disadvantage). In addition, the negative can argue that

Congressional oversight would slow down U.S. response to threats to key European allies or set

precedent for other security alliances which would allow aggression against those allies and spark global

nuclear conflict. Obviously, significant ground exists for the negative to debate various aspects of U.S.

global leadership in relation to alliances and global institutions. The negative also has a number of

critical options depending on which direction the affirmative takes with their advantages. Contingent on

the direction of the aff, critiques of Empire or U.S. hegemony can be run.

7. Unilateral Preventive Military Operations

Many journalists and political pundits denounced President George W. Bush’s National Security

Strategy (NSS) of 2002—the Bush Doctrine – as dangerous because it articulated a policy of preemption.

However, as David Mitchell and Gordon Mitchell note, the Administration actually enunciated a policy of

preventive intervention.67 The difference between preemption and prevention, as articulated by David

Mitchell, is significant:

The difference between the two concepts, as presented by Jonathan Renshon in Why Leaders

Choose War: The Psychology of Prevention, is that preemption is a type of action taken in the

face of an imminent threat, whereas preventive action is designed to "forestall a grave national

threat ...that lies in the future.”68

65

See for instance Doug Bandow, “NATO: An Alliance Past Its Prime,” CATO Institute, April 26, 2012,

http://www.cato.org/blog/nato-alliance-past-its-prime and Robert Tracinski, “America Should Withdraw From The

United Nations and Let It Collapse,” Capital Magazine, March 21, 2003,

http://capitalismmagazine.com/2003/03/america-should-withdraw-from-the-united-nations-and-let-it-collapse/ 66 For a text of the bill, see http://www.gop.gov/bill/112/1/hr2278

67 David Mitchell, “Review: Why Leaders Choose War: The Psychology of Prevention by Jonathan Renshon, Praeger

Security International, Westport, 2006,” International Studies Review, Vol 9 (1), 2009,

http://www.politicalreviewnet.com/polrev/reviews/MISR/R_1521_9488_257_1007306.asp; Gordon R. Mitchell,

“Gordon Mitchell: On the difference between pre-emptive and preventive war,” University of Pittsburgh University

Times, Feb 19, 2004, http://www.utimes.pitt.edu/?p=283. 68

David Mitchell, 2009.


While preemption lays the foundation for a wide range of military interventions, prevention is so open-

ended that it would allow the president to justify almost any military intervention without congressional

approval.

As a presidential candidate, Obama positioned his national security strategy as the opposite of

the Bush administration’s. However, once in office, Obama has crafted a NSS that is virtually identical to

the Bush Doctrine, particularly the right to act unilaterally to promote democracy through force.69

According to Representative Dennis Kuchinich (D-OH), the Obama administration has gone one step

beyond a preventive war doctrine, which has substantial implications for Executive-Congressional

balance of powers over war.

Rep. Dennis Kucinich (D-OH), “Obama in Libya,” The Progressive, June 2011,

http://www.progressive.org/kucinich0611.html

In two years, we have moved from President Bush’s doctrine of preventive war to President

Obama’s assertion of the right to go to war without even the pretext of a threat to our nation.

This Administration is now asserting the right to go to war because a nation may threaten

force against those who have internally taken up arms against it. Our bombs began dropping

even before the U.N.’s International Commission of Inquiry could verify allegations of murder of

noncombatant civilians by the Qaddafi regime. The Administration deliberately avoided coming

to Congress and furthermore rejects the principle that Congress has any role in this matter.

Yesterday we learned that the Administration would forge ahead with military action even if

Congress passed a resolution constraining the mission. This is a clear and arrogant violation of

our Constitution.

Affirmatives under this area of the controversy would be able to claim a number of advantages from

placing restrictions on preventive war powers. First, affirmatives could claim that status quo doctrine

allows for limitless warfare and military intervention in places such as Iran, Syria, Yemen, Mali, Pakistan,

North Korea, or China.70 Or worse, without proper congressional oversight, a president with unlimited

justification to prevent future (and perhaps illusory) threats can engage in wag-the-dog diversionary

conflicts.71 Affirmatives also can claim to best protect U.S. leadership and prevent counter-balancing to

U.S. hegemony:

Neta C. Crawford, professor of political science and African American studies at

Boston University, “The Slippery Slope to Preventive War,” Ethics & International Affairs,

69

Michael Hirsch, “Obama's National Security Strategy: Not So Different From Bush's,” The Daily Beast,

May 26, 2010, http://www.thedailybeast.com/newsweek/blogs/the-gaggle/2010/05/27/obama-s-national-

security-strategy-not-so-different-from-bush-s.html 70

Bruce Fein, “A Limitless Presidency,” 8/17/2012, http://nationalinterest.org/commentary/limitless-presidency-

7360 71

Gene Healy, Cult of the Presidency: America's Dangerous Devotion to Executive Power, CATO Institute, 2008,

http://www.cato.org/sites/cato.org/files/documents/cult-of-the-presidency-pb.pdf, p. 209-210)


Volume 17.1 (Spring 2003),

http://www.carnegiecouncil.org/publications/journal/17_1/roundtable/868.html

Specifically, a legitimate preemptive war requires that states identify that potential aggressors have both the capability and the

intention of doing great harm to you in the immediate future. However, while capability may not be in dispute, the motives and

intentions of a potential adversary may be misinterpreted. Specifically, states may mobilize in what appear to be aggressive ways

because they are fearful or because they are aggressive. A preemptive doctrine which has, because of great fear and a

desire to control the international environment, become a preventive war doctrine of eliminating potential

threats that may materialize at some point in the future is likely to create more of both fearful

and aggressive states. Some states may defensively arm because they are afraid of the preemptive-preventive state; others

may arm offensively because they resent the preventive war aggressor who may have killed many innocents in its quest for total

security. In either case, whether states and groups armed because they were afraid or because

they have aggressive intentions, instability is likely to grow as a preventive war doctrine

creates the mutual fear of surprise attack. In the case of the U.S. preemptive-preventive war

doctrine, instability is likely to increase because the doctrine is coupled with the U.S. goal of

maintaining global preeminence and a military force "beyond challenge."9

Also, affirmatives can claim a number of international law, diplomacy, and U.S. soft power advantages.

Neta C. Crawford, professor of political science and African American studies at

Boston University, “The Slippery Slope to Preventive War,” Ethics & International Affairs,

Volume 17.1 (Spring 2003),

http://www.carnegiecouncil.org/publications/journal/17_1/roundtable/868.html

Further, a preventive offensive war doctrine undermines international law and diplomacy, both

of which can be useful, even to hegemonic powers. Preventive war short-circuits nonmilitary

means of solving problems. If all states reacted to potential adversaries as if they faced a clear

and present danger of imminent attack, security would be destabilized as tensions escalated

along already tense borders and regions. Article 51 of the UN Charter would lose much of its

force. In sum, a preemptive-preventive doctrine moves us closer to a state of nature than a state of international law. Moreover,

while preventive war doctrines assume that today's potential rival will become tomorrow’s

adversary, diplomacy or some other factor could work to change the relationship from

antagonism to accommodation. As Otto von Bismarck said to Wilhelm I in 1875, "I would . . . never advise Your Majesty

to declare war forthwith, simply because it appeared that our opponent would begin hostilities in the near future. One can never

anticipate the ways of divine providence securely enough for that."10

As for solvency mechanisms, the affirmative can use a number of potential mechanisms (many of which

are already outlined in section IIIB above). For example, as Michael Cohen suggests, affirmatives could

modify the AUMF, cut funding for operations, or increase its oversight powers.

Cohen, ’12 (Michael, fellow at the Century Foundation, “The Imperial Presidency: Drone Power and Congressional Oversight,”

http://www.worldpoliticsreview.com/articles/12194/the-imperial-presidency-drone-power-and-congressional-oversight)

In a sense we are witnessing a perfect storm of executive branch power-grabbing: a broad

authorization of military force giving the president wide-ranging discretion to act, combined

with a set of tools -- drones, special forces and cyber technology -- that allows him to do so in

unprecedented ways. And since few troops are put in harm’s way, there is barely any public

scrutiny. Congress has the ability to stop these excesses. On Libya, it possessed the power to


turn off the financial spigot and cut off funding, and indeed, there was a tepid effort in the

House of Representatives to do so. On the AUMF, Congress could simply repeal it or more

realistically modify it to take into account the new battlefields in the war on terror. Finally, it

could conduct greater oversight, in particular public hearings, of how the executive branch is

utilizing military force. But not only has Congress not taken these steps, in deliberations over

the National Defense Authorization Act earlier this year, it tried to expand the AUMF. On the use

of drones and targeted killings, Congress has made little effort to demand greater information from the White House and has not

held any public hearings on either of these issues. As Micah Zenko recently noted, claims “that congressional oversight of targeted

killings exclusively by the intelligence committees in closed sessions is adequate” are “indefensible.”

Bruce Ackerman, professor of law and political science at Yale, maintains that Congress must do

something to limit presidential war powers in order to prevent a truly imperial presidency.

Ackerman, ’11 (Bruce, professor of law and political science at Yale and author of The Decline and Fall of the American

Republic, “Obama's Unconstitutional War,” 3/24,

http://www.foreignpolicy.com/articles/2011/03/24/obama_s_unconstitutional_war?page=0,0)

The buck stops on Capitol Hill. As always, presidential unilateralism puts Congress in a tough

position. It cannot afford to cut off funds immediately and put the lives of Americans, and U.S.

allies, in danger. But it can pass a bill denying future funding after three months. This would prevent

the president from expanding the mission unless he can gain express congressional consent.

The U.S. Congress should also take more fundamental steps to bring the imperial presidency

under control. In the aftermath of Watergate, Congress went beyond the War Powers

Resolution to enact a series of framework statutes that tried to impose the rule of law on a

runaway presidency. Many of these statutes have failed to work as planned, but they were

the product of a serious investigation led by Senator Frank Church and Representative Otis Pike during the 1970s. A

similar inquest is imperative today. In many respects, Bush's war on terrorism was a more

sweeping breach of constitutional norms than anything Richard Nixon attempted in

Watergate. Yet Congress has been silent, trusting Obama to clean house on his own. The

president has shown, by his actions, that this trust is not justified. If Congress fails to respond,

we have moved one large step further down the path to a truly imperial presidency.

This area of the controversy is ripe for critical approaches on the affirmative. A number of critiques of

unilateralism, U.S. hegemony, security, and realism can be made into advantages for this type of

affirmative. Also, many of the affirmatives listed under Section IIID of this paper could operate as

advantages for preventive intervention affs. In addition, affirmatives could critique the status quo as the

actualization of Carl Schmitt’s views of the State.

Colonomos, ’09 (Ariel, CNRS senior research fellow at the Centre d’Etudes et de Recherches Internationales and a lecturer

at Sciences Po in Paris where he teaches international ethics, has taught at the School of International and Public Affairs (SIPA) at

Columbia University as an associate adjunct professor from 2005 to 2007"Preventive War in the Rearview Mirror,"

http://www.iilj.org/newsandevents/documents/NYUPrevColonomos.pdf)

That being the case, Yoo’s views are consistent with a policy framework of prevention: preventive

wars are declared by countries that have a strong executive branch, such as empires,

dictatorships, autocracies, and strong presidential regimes. The larger the collective that is in charge of

deciding whether or not to launch a preventive intervention, the more numerous the institutions involved in


these decisions, the greater the risk that the actual declaration of war will be delayed.

Measuring the opening in the window of opportunity for prevention is a delicate matter and

findings often diverge, resulting in the decision being blocked. In a sense, this principle also

has a moral significance: it vests supreme authority within a rigid framework of secular

transcendence. John Yoo’s interpretation has a special resonance. It merges into a troubling

lineage of thought that echoes Carl Schmitt. The latter, who was strongly influenced by

Hobbes and his concept of the strong State, holds the view that when it comes to exceptional

situations, the decision should rest with the sovereign. The moment is one of solemnity. Political

concepts, such as sovereignty are seen as theological concepts that have been secularized. In

this regard, the decision carries with it transcendental implications. Carl Schmitt draws

legitimate negative criticism because he supported the Nazi regime during the 30s. His

thinking does indeed favor strong executive power and in this regard, he does not dispute the

principles that would underlie the exercise of power by a totalitarian regime. Carl Schmitt is

also subject to other criticisms that are equally well-founded. He openly expressed anti-

Semitic sentiments in one of his books on Hobbes63. These sentiments were relayed in the context of

lamenting a certain breach of verticality or of transcendence that results from a lack of allegiance to the State, a trait which is

identified with the Jews.

As for the negative, there are a wide range of potential strategic options against preventive intervention

affs. The disadvantages – particularly hegemony and terrorism credibility, critiques, and counterplans

listed under section V of this paper apply particularly well to this affirmative area. For example,

prevention is necessary to solve terrorism and WMD proliferation:

Yoo, ’05 (John, author of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, “An interview with

John Yoo,” http://www.press.uchicago.edu/Misc/Chicago/960315in.html)

These new threats to American national security, driven by changes in the international

environment, should change the way we think about the relationship between the process

and substance of the warmaking system. The international system allowed the United States to

choose a warmaking system that placed a premium on consensus, time for deliberation, and the

approval of multiple institutions. If, however, the nature and the level of threats are increasing,

the magnitude of expected harm has risen dramatically, and military force unfortunately

remains the most effective means for responding to those threats, then it makes little sense

to commit our political system to a single method for making war. Given the threats posed by

WMD proliferation, rogue nations, and international terrorism, we should not, at the very

least, adopt a warmaking process that contains a built-in presumption against using force

abroad. Earlier scholarly approaches assumed that in the absence of government action peace

would generally be the default state. September 11 demonstrated that this assumption has

become unrealistic in light of the new threats to American national security. These

developments in the international system may demand that the United States have the ability

to use force earlier and more quickly than in the past.

Additionally, negatives have a somewhat easier time making politics link arguments under this part of

the controversy. For instance,

Cohen, ’12 (Michael A., PhD, Political Economy, University of Chicago, 1971 and Professor of International Affairs and Director

at The New School, “Power Grab,” 3/28, http://www.foreignpolicy.com.s2.gvirabi.com/articles/2012/03/28/power_grab)


What has been Congress's response to this disregarding of its role in foreign policy decision-

making? The usual hemming and hawing, but little in the way of concrete action. During the Bush

years, Republicans were more than happy to let the president expand his executive powers when it came to Iraq, Afghanistan, and

the global war on terrorism. When Democrats took back the House and Senate from Republicans in 2006, they placed greater

scrutiny on the Bush administration's conduct of the war in Iraq -- but still continued to fund the conflict. Even in

Washington's highly partisan current environment, little has changed; it's mostly sound and

fury signifying nothing. Republicans eschewed a constitutional confrontation with the White

House over Libya, though the House GOP did make a rather partisan effort to defund the Libya operations (a measure that

failed) and still today House and Senate members raise their frustrations in committee hearings over their heavy-handed treatment

by the White House. But the actions of some Republicans point in a different direction. Last year,

House Armed Services Committee Chairman Buck McKeon actually tried to expand the

original Authorization for Use of Military Force that granted U.S. kinetic actions just three days

after 9/11 -- which would have actually increased executive war-making power. While some on the

Hill have long suspected the constitutionality of the War Powers Resolution, it was one of the few checks that Congress maintained

over the president (aside from ability to defund operations, which in itself is a difficult tool to wield effectively). Now they have been

complicit in its further watering down. Aside from Ron Paul, there's been little mention of the president's

overreach in Libya by the GOP's presidential aspirants. And why should there be? If any of

them become president they too would want to enjoy the expanded executive power that

Obama has helped provide for them. Quite simply, in a closely divided country in which each

party has a fair shot to win the White House every four years, there is little political incentive

for either Democrats or Republicans to say enough is enough.

Overall, preventive military operations are a great area for a presidential war powers topic. While we

just briefly outline the major arguments and mechanisms here (mostly because the entire controversy

paper has been discussing preventive war doctrine as its primary example in many sections), the political

and legal issues raised by the Obama NSS offer a strong division of ground between the aff and neg.

D. Critical Approaches to Limiting Presidential Powers

Someone’s first reaction to this topic might be that there are few critical approaches to limiting

presidential powers. However, that is not a fair assessment of the literature base. One of the appealing

aspects of the topic is that both libertarians and progressives have been highly critical of expansive

presidential powers, which provides several points of access for critical investigations of this controversy

area. We offer some examples of potential critical approaches to the controversy.

1. Local/National focus and critique of presidentialism

Dr. Dana Nelson, Gertrude Conaway Vanderbilt Professor of English and Director of Graduate

Studies at Vanderbilt University, maintains that an unrestrained presidency promotes the myth that all

politics are national and controlled by the executive, which undermines local citizen action and

democracy and promotes paternalistic relations between local citizens and the federal government.


Wikipedia http://en.wikipedia.org/wiki/Bad_for_Democracy (yes, Wikipedia is a terrible

source, but it offers a nice summery of Nelson’s argument)

Dana Nelson (Bad for Democracy: How the Presidency Undermines the Power of the People, Minneapolis: University of

Minnesota, 2008) criticizes excessive worship of the president which she terms presidentialism,

that is, "our paternalistic view that presidents are godlike saviors - and therefore democracy's

only important figures."[6]

People seem to believe a myth that the president can solve all

national problems, and she studies how different presidents have encouraged people to think

along these lines. She makes an argument that the office of the presidency is essentially

undemocratic, and she calls for greater participation by citizens at the local level.[5] She joins a

group of academics including Larry Sabato and Robert A. Dahl and Richard Labunski and

Sanford Levinson as well as writers such as Naomi Wolf calling for substantive reform of the

current Constitution. Nelson said in a radio interview in January 2009: "The problem with presidentialism is

that it trains citizens to look for a strong leader to run democracy for us instead of

remembering that that's our job. And it does this in a number of ways. First of all, I think it infantilizes citizens. It

teaches us to see the president as the big father of democracy who is going to take care of all

the problems for us and handle all of our disagreements. And so that makes us lazy and a little

bit childish in our expectations about our responsibilities for our political system. It credits the president

with super-heroic powers. Then, that allows him to operate often extralegally and unilaterally,

and it teaches us to always want him always to have more power when things are wrong

instead of asking why he has so much."[10]

Nelson notes how presidentialism is linked to expanded presidential war powers:

Nelson, Dana D.. Bad for Democracy : How the Presidency Undermines the Power of the

People. Minneapolis, MN, USA: University of Minnesota Press, 2008. p 110.

What began as a respectful civility in the eighteenth century soon drummed up far more powerful associations. Presidents

have actively labored to expand executive branch powers by appealing to their war powers,

and in the twentieth century they discovered that they could command higher approval ratings from the nation when they ordered

troops into combat. U.S. voters haven’t elected an active-service war veteran since George H. W. Bush, but we continue to

link our respect for the presidency with the authority of the military, encouraged in no small part by the

actions and gestures of presidents. This chapter reviews the founders’ reasons for conferring on the president the title of

commander in chief. After a quick look at Abraham Lincoln’s wartime actions, the chapter examines a series of key twentieth

century executive wartime expansions—along with judicial and legislative rebukes, and support. Finally it studies the

institutional, political, and cultural consequences of how many have come to think of the

nation’s executive as our “commander in chief.”

This focus on the presidency undermines localize movements and practical localized solutions that are

already in place.

David Sirota, August 22, 2008, “Why cult of presidency is bad for democracy,” SF Gate,

http://www.sfgate.com/politics/article/Why-cult-of-presidency-is-bad-for-democracy-

3272253.php#ixzz2PMRpP5RU

The resulting noise reiterates one message: The only thing that matters is 1600 Pennsylvania Ave. Why is

this dangerous? First and foremost, by ignoring local elections and issue-based organizing in favor

of presidential politics, activists make presidential progress less likely. "Even the best


presidents need social movements to accomplish transformational change," warns community activist

Deepak Bhargava in the Nation magazine's latest White House-centric edition. "FDR could not have succeeded without the agitation

of the unemployed workers' councils and the unions, and LBJ's greatest accomplishments were made possible by the civil rights

movement." Worse, presidentialism leads us to ignore the arenas where issues are already being

sorted out. For example, how many of the Democratic convention delegates incensed by the

Obama-McCain energy brouhaha have any idea that just beyond Denver's Rocky Mountain

horizon, a battle over Colorado's massive gas reserves will more immediately impact the

national energy crisis than the inane presidential back-and-forth about offshore drilling? Better

yet, how many Democratic enthusiasts donning Obama T-shirts know who their state representative or city council member is - or

even what a state legislature or city council does? In his upcoming book, "You Can't Be President," journalist John MacArthur

ponders the depressing answers to these kinds of questions, reminding readers of Alexis de Tocqueville's 19th century writing. "It

is in vain to summon a people, which has been rendered so dependent on the central power,

to choose from time to time the representatives of that power," he observed. "This rare and brief exercise

of their free choice, however important it may be, will not prevent them from gradually losing the faculties of thinking, feeling and

acting for themselves, and thus gradually falling below the level of humanity." Published 168 years ago, the passage is a prescient

warning as the upcoming Democratic and Republican conventions toast presidentialism's conquest of democracy in America.

Reigning in presidential powers through demands from the people solves presidentialism.

Jeremy Engels, “Bad for Democracy: How the Presidency Undermines the Power

of the People (review),” Rhetoric & Public Affairs, Volume 12, Number 3, Fall 2009, pp. 479-80

In turn, Nelson demonstrates that presidents have been particularly good at running with the

needs and desires of citizens to strengthen the office of the president. Today, Nelson argues, we find

ourselves at a crucial juncture from which there might be no turning back, as the Roberts Supreme

Court is one justice away from gaining a majority that will support the vision of a unilateral, corporate president who stands above

the other branches of government and can, during wartime, do anything he chooses. “Once we’re there,” she speculates,

“it’s hard to see how we might take a more robust democracy—the kind of democracy where

citizens have and can exercise self-governing power—back from the uncheckable presidency

imagined by MansfIeld, Cheney, Bush, and other hardline unitary executive proponents” (180). This problem, Nelson

concludes, “will not likely be remedied by any person we elect to the Oval Office”—the answer

will have to come from the people regaining their power and making demands that ultimately

check the president and overthrow the logic of presidentialism (182).

2. Psychoanalytic analysis of uninterrogated war powers’ impact on

liberal democracy and promotion of capitalism

A number of scholars have noted how the considerable war machine that current war powers

have created justifies global imperialism in order to enable further capitalist expansion. For instance,

Jodi Dean draws from psychoanalysis to examine how presidential war powers have led to these

problems:

Jodi Dean 2005 Professor of Political Science at Smith Colleges, Zizek against Democracy.

I conclude with a reference to an essay by Stanley Hoffman. In a rather odd sentence near the middle of essay,

Hoffman writes, “The U.S. remains a liberal democracy, but …” First, why does he say the U.S.

remains a liberal democracy? Given that, as Zizek points out, anxiety is a response to a lack in

the Other, it seems to me like Hoffman wants to reassure his readers that the United States


remains a liberal democracy because his previous three paragraphs suggest the opposite.

Hoffman details the curbing of civil liberties, the “Republicans’ relentless war against the

state’s welfare functions,” the change in U.S. strategic doctrine such that preeminence is

official policy, and the ceding of effective political control over all the branches of government

to the President through congressional and judicial acceptance of the “ notion that the

President’s war powers override all other concerns.” In the face of these excesses, Hoffman wants to reassure

readers that the U.S. is still a liberal democracy, “but ...” But what? “But,” Hoffman continues, those who have hoped for progressive

policies at home and enlightened policies abroad may be forgiven if they have become deeply discouraged by a not-so-benign soft

imperialism, by a fiscal and social policy that takes good care of the rich but shuns the poor on grounds of a far from ‘compassionate

conservatism,’ and by the conformism, both dictated by the administration and often spontaneous among the public, that

Tocqueville observed 130 years ago. The U.S. is still a liberal democracy, but nevertheless Hoffman wants to acknowledge—and

forgive—the justifiable discouragement of those who hoped that liberal democracy might be more or better than it is. If the U.S.

remains a liberal democracy, then liberal democracy is the problem. Insofar as Hoffman’s

sentences include within this remaining liberal democracy imperialism, detention without

counsel, support for the rich, and shunning of the poor, then those of us who hoped for better

and are now discouraged should not be forgiven. In the name of this liberal democracy, we

have endorsed a political form fully accepting of deep and global inequality and inimical to

projects toward commonality, toward affiliation and justice. Thus, against this liberal

democracy we should no longer emphasize compromise, acceptance, inclusivity, and

generosity, and adopt instead the divisive attitude of universal Truth.

And Peter Irons notes how these imperial interests serve capitalism.

Peter Irons, political science professor, University of California - San Diego, 2005,

War Powers: How the Imperial Presidency Hijacked the Constitution, New York: Metropolitan

Books, 2005, p.

Perhaps the major conclusion of this book is that the presidency as an office and institution has become more important than the

presidents themselves. In this respect, the imperatives of the American empire, since the end of World

War II, have, in effect, forced presidents to don the uniform of commander in chief and take

unilateral military action to protect those imperial interests. It bears repeating that every

president since Harry Truman has cited America’s “vital interests” as justification for military

intervention, in wars from Korea to Iraq. Those vital interests are rooted in the demands of corporate

and financial institutions for access to resources and markets. Even countries with few essential resources,

such as Korea in 1950, assumed geopolitical significance because of their location in regions, such as Asia, with vast resources and

potential markets.

3. Critical examination of the National Security State

Garry Wills 2010 book, Bomb Power, provides a detailed critique of how executive usurpation of

power was enabled by the secrecy of the original Manhatten Project and the later nuclear weapon

infrastructure, which accesses critiques of nuclearism, technocracy, and other critical arguments.

Garry Wills, Pulitzer Prize-winning American author, journalist, and historian, 2010, Bomb

Power: The Modern Presidency and the National Security State.

This book has a basic thesis, that the Bomb altered our subsequent history down to its deepest

constitutional roots. It redefined the presidency, as in all respects American’s “Commander in


Chief” (a term that took on a new and unconstitutional meaning in this period). It fostered an anxiety of continuing

crisis, so that society was pervasively militarized. It redefines the government as a National

Security State with an apparatus of secrecy and executive control. It redefines Congress, as an

executor of the executive. And it redefined the Supreme Court, as a follower of the follower of the executive. Only one

part of the government had the supreme power, the Bomb, and all else must defer to it, for the good of the nation, for the good of

the world, for the custody of the future, in a world of perpetual emergency superseding ordinary

constitutional restrictions.

4. Critical interrogations of specific technologies/strategies enabled by

specific war powers

Each of the specific war powers areas that we spotlight in this paper accesses different bodies of

critical literature. For instance, UAV/Drones provide a rich base of critical impacts and advocacy stances

concerning the impact of automation and remote killing. Additionally, indefinite detention provides

access to arguments by Agamben about the state of exception. Given that each area of the controversy

allows the affirmative to make a stance against status quo government war powers, the affirmative

should have a number of strong critical options that allow them to take a negative, rather than positive,

state action.

IV. Unique educational opportunities

A. Timely, but not too timely

The inspiration for writing this controversy paper was the constant press coverage in the last

two years about Obama’s executive war powers and why this expansion of power since the attacks of 9-

11 are dangerous. The timeliness of the topic will allow students to access a deep literature base that

contains recently written peer-reviewed academic and legal articles and books. This is a great time to

debate about the controversy surrounding presidential war powers. However, as we note in the

uniqueness section, there is little chance that timeliness of the topic will produce ever-shifting topic

ground.

2013 is also the 40th anniversary of the passage of the 1973 War Powers Resolution, making this

an ideal time to debate the value of constraining presidential war powers. We believe that this

anniversary could create several opportunities for programs to host public debates on the subject.

Likewise, the anniversary will likely produce increased scholarly discussion of the WPR and presidential

war power restraints.


One likely complaint about our proposal is that this is a recycled debate topic. During the 1993-

1994 NDT season, the resolution was, “Resolved: That the Commander-in-Chief power of the President

of the United States should be substantially curtailed." At that time, the concern was that President

Clinton was violating the WPR through a number of short military operations, such as Haiti, Iraq, Sudan,

Serbia and Bosnia despite congressional disapproval.72 However, the expansion of war powers during

that time pale in comparison to the expansion of war powers in the age of global terrorism.73 Not only

has it been two decades since the college debate community has last debated this controversy for an

entire season, the context since the attacks of 9-11 have transformed the controversy so much that it is

a very different topic now.

Some college seniors may have debated the 2005-2006 high school topic, “Resolved: The United

States federal government should substantially decrease its authority either to detain without charge or

to search without probable cause” their freshman year. This topic accesses only one of the areas this

controversy discusses. Our controversy is much broader in scope than the 2005-2006 topic and that

topic was about charging rather than detention. If this overlap is a concern for the topic committee, this

area could easily be excluded from topic wordings without undermining the value of debating the

broader controversy area. Also, during the 2006-2007 season, some teams debated the Ex parte Quirin

decision, which established the precedent for the trial by military commission of any unlawful

combatant against the United States. Obviously, no current college debaters debated this topic and, like

the high school topic, this only overlaps with a small section of this controversy.

B. Cleary defined controversy with clear uniqueness

A recent CEDA Forums discussion (http://www.cedadebate.org/forum/index.php?topic=4758.0)

about the crafting of topics argued that important qualities for controversy papers are that they should

require a large degree (or quality) of change by the affirmative, have solid uniqueness that does not

allow the affirmative to argue that their change is similar to some action being taken in the status quo,

and that there be a clearly identifiable “disadvantage to the resolution.”

We believe this controversy paper includes all three of those elements. As we have

demonstrated so far, there is no chance that Congress will limit the president’s war powers in the status

72

Gene Healy, “Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years,”

CATO Policy Analysis No. 389, December 13, 2000, http://www.cato.org/pubs/pas/pa-389es.html 73

John Paul Royal, “War Powers and the Age of Terrorism,” Center for the Study of the Presidency & Congress The

Fellows Review, 2010-2011. And, as noted by Rudalevig, the authority granted to the president in the wake of 9-11

was greater than the war authority given to any previous president. See The New Imperial Presidency, Ann Arbor,

U of Mich Press, 2005, p. 270.


quo. As a result, the action taken will be significant and controversial. Additionally, there is a clear

disadvantage to the topic – constraining presidential war powers undermines U.S. ability to respond to

emerging rogue nation and non-state threats. Based on these standards, we believe that this

controversy would produce a quality debate topic for the 2013-2014 season.

C. Unique policymaking education

Since the 2013 National Debate Tournament final round, there has been considerable debate

about the importance of our debate topics in producing real-world change. One of the interesting

benefits of this topic is that the presidency as an institution is poorly understood by the public. This lack

of education is dangerous as an informed and educated citizen is a vital check on president powers. As

Vanessa Beasley, Associate Professor of Communication at Vanderbilt, notes, the presidency is perhaps

the most important yet least understood policymaking institution:

Vanessa B. Beasley (2010), “The Rhetorical Presidency Meets the Unity Executive:

Implications for Presidential Rhetoric on Public Policy,” Rhetoric & Public Affairs 13(1): 15.

“George C. Edwards III…notes that ‘[the] presidency is perhaps the most important and least

understood policymaking institution in the United States.’ On one hand, the presidency is

important because ‘[i]t is difficult to discuss any area of national policy without assigning a

prominent role to the White House.’ On the other hand, the exact nature of this role is

complicated by the staggering number of variables and contingencies at work in every

different administration and with respect to multiple policy areas, public needs, and

attendant regulatory agencies at levels and locations outside of the White House.”

College students debating about the presidential powers is important because critical and balanced

education about the presidency is necessary to challenge many of the dangerous policies that this

controversy paper discusses. As many legal scholars contend, regardless of the status of legal structures

to check the presidency, an important political restraint on the presidency is public opinion. Without

educated students, we lack an important check on presidential military power.74 And, as Andrew

Rudalevig also explains, an informed citizenry is crucial to check dangerous executive power and

maintain democracy.

Andrew Rudalevig, Associate Professor of Political Science, Dickinson College,

2005, The New Imperial Presidency, Ann Arbor, U of Mich Press, p. 281

Thus, as Justice Potter Stewart observed in the Pentagon Papers case, “The only effective restraint upon executive

policy and power…may lie in an enlightened citizenry –in an informed and critical public

74

Louis Fisher, “The Law: Scholarly Support for Presidential Wars,” Presidential Studies Quarterly 35, no. 3

(September) 2005.


opinion which alone can protect the values of a democratic government.” Much rests on the

hope that the American public will care, that they will seek out the information they need to

hold elected officials in all branches of government responsible for the results of their

leadership. Trust in the legitimacy of government – that it is “a government of laws, not men”—is critical. But blind trust in

any particular government leads to complacency. Accountability depends as much on the

electorate’s health skepticism as it does on healthy discourse between its branches of

government. Ronald Reagan’s arms control aphorism—“trust, but verify”—is thus not bad advice for American voters. To verify,

though, voters must take charge of their own government; they must inquire, probe, care—and vote.

As a consequence, we believe that debating about presidential war powers can have important

consequences to our lives and serve as an important part of the political restraint against a potential

imperial presidency.

D. The topic allows outreach to our alumni networks

Policy debate has a number of alumni who have had very successful careers in legal and policy

circles whose work relates closely with this controversy. For example, Neal Katyal, former Dartmouth

debater and former Acting Solicitor General of the United States (May 2010-June 2011) was lead counsel

for the Guantanamo Bay detainees in the Hamden v. Rumsfeld case. At the Justice Department, he also

unanimously won a Supreme Court case defending former Attorney General John Ashcroft against

allegations of civil liberties abuse in the WoT. Additional, Northwestern alumni, Michael Gottlieb,

“recently concluded four years of service with the Obama Administration. From 2009- 2010 he served as

Special Assistant to the President and Associate White House Counsel, where he focused on national

security law and judicial nominations.”75 These two alumni are just a small sample of the alumni the

topic committee and the larger debate community could reach out to in order to help us better

understand the issues and stakes involved in this controversy.

E. It is a legal controversy without being solely a courts controversy.

As previous noted by Andru Wall in 2011, “Discussions of the President's constitutional authority

as commander in chief implicate "some of the most difficult, unresolved, and contested issues in

constitutional law." As such, the controversy raises a number of important legal questions and requires

students to engage legal literature to research the debate. However, what is nice about this controversy

is that it does not have to be a courts topic. The advantage of this is that we can debate important

liberal legal issues without having to debate Courts Politics, Legitimacy, or Activism DAs. While there is

nothing inherently wrong with these arguments, they have a tendency to dominate legal debate topics.

75

http://web.law.columbia.edu/sites/default/files/microsites/constitutional-governance/files/Michael-

Gottlieb.pdf


Our proposal allows us to access the educational benefits of a legal topic without having to debate the

typical set of generic legal strategies.

V. Core Negative Ground

A. Leadership/hegemony DA

The core disadvantage to limiting or reducing presidential war powers is that limitations will

undermine necessary flexibility to deal with emergencies and ever-changing strategic environments,

particular in a post 9-11 world. This argument was raised originally in response to the proposed War

Power Resolution, served as the Bush administration’s justification for expanding its powers in the wake

of 9-11, and the Obama administration’s current defense of its powers as well. Appropriately, we begin

with John Yoo, the architect of the Bush administration’s defense of its WoT policies:

John Yoo, law professor at University of California, Berkeley. He was Deputy

Assistant Attorney General in the Office of Legal Counsel at the US Department

of Justice from 2001 to 2003, “Exercising Wartime Powers,” Harvard International

Review28. 1 (Spring 2006): 22-25.

Critics of these conflicts want to upend long practice by appealing to an "original

understanding" of the Constitution. But the text and structure of the Constitution, as well as its application over the

last two centuries, confirm that the president can begin military hostilities without the approval of Congress. The Constitution

does not establish a strict warmaking process because the Framers understood that war

would require the speed, decisiveness, and secrecy that only the presidency could bring. "Energy

in the executive," Alexander Hamilton argued in the Federalist Papers, "...is essential to the protection of the community against

foreign attacks." He continued, "the direction of war most peculiarly demands those qualities which distinguish the exercise of

power by a single hand." Rather than imposing a fixed, step-by-step method for going to war, the

Constitution allows the executive and legislative branches substantial flexibility in shaping the

decisionmaking process for engaging in military hostilities. Given the increasing ability of

rogue states to procure weapons of mass destruction (WMDs) and the rise of international

terrorism, maintaining this flexibility is critical to preserving US national security.

Restrictions, particularly statutory limitations, harm presidential flexibility in a crisis:

Adrian Vermeule, Professor of Law, Harvard Law School, 2006,

“THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER: SELF-DEFEATING

PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN.

The reason for the failure of statutory frameworks is plain. When an emergency or war or

crisis arises, the executive needs flexibility; because statutory limitations determined in

advance can only reduce flexibility, and do so in a way that does not anticipate the particular

requirements of a new emergency, no one has any ex post interest in insisting that these limitations be respected.

Ackerman acknowledges the grim historical record but provides no valid reason for thinking that his framework statute - which is far

more ambitious than the other ones - might fare differently.


A strong executive has several advantages over congress in making foreign policy

Michael Benjamin Weiner, 2007, “A Paper Tiger with Bite: A Defense of the War Powers

Resolution,” Vanderbilt Jrnl of Transnatl Law, pp. LN.

This trend can be explained by the practical advantage the Executive branch has over the Legislative

branch: It is more efficient for a small, relatively homogenous group to reach a decision than it

is for a large, diverse group to reach one29—a principle required to address the urgent questions that are necessary

in foreign affairs.30 One commentator explained the institutional relationship between the branches by noting that, while

Congress can announce foreign affairs policy, it lacks the institutional framework to

implement that policy.31 Thus, in practice Executives mainly have been the actors and

Congresses the reactors. As a result, it should be no surprise that in the nation’s brief history

“presidents have in fact deployed U.S. armed forces beyond the U.S. borders hundreds of

times without authorization or subsequent ratification by Congress, and in many of these cases they

engaged in ‘hostilities’ of varying significance, intensity, and duration.”32

Critics of the WPR contend that restrictions on presidential decision-making have empirically

jeopardized important military missions and risked or lost the lives of US troops. As explained by Turner:

Robert F. Turner, Professor, University of Virginia School of Law, The War Powers

Resolution: An Unnecessary, Unconstitutional Source of "Friendly Fire" in the War Against

International Terrorism?, Feb 15, 2005, http://www.fed-soc.org/publications/detail/the-war-

powers-resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-against-

international-terrorism

Sadly, the idea that the War Powers Resolution might endanger American lives in the struggle

against terrorism is more than just a hypothetical. Indeed, more Americans were murdered by

terrorists as a direct result of the War Powers Resolution than were killed in all of our military

operations since the end of the Vietnam War. The War Powers Resolution was a primary

factor in the decision by Middle Eastern terrorists to blow up the Battalion Landing Team

Headquarters at the Beirut International Airport on October 23, 1984, killing 241 sleeping marines, sailors,

and soldiers. When President Reagan sent the Marines to Lebanon as part of an international peacekeeping force

alongside British, French, and Italian forces, the decision was not even arguably an infringement upon the power of Congress "to declare War." We

were not going to "War," we were sending a contingent of U.S. forces at the request of all of the warring factions in Lebanon to stand between them so

they could meet in confidence and try to negotiate a peaceful end to their conflict. Every country in the region originally endorsed the deployment, and

no one in Congress spoke against it on the merits. But several noted there were risks involved-risks the President openly acknowledged-and soon the

demands started coming in for a report under Section 4(a)(1) of the War Powers Resolution, the

provision governing the sending of U.S. Armed Forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by

the circumstances." To begin with, to send such a report to Congress might well have undermined the

mission in Beirut. There were numerous, highly paranoid factions engaged in the Lebanese quarrels who had consented to the American

presence on the theory that it was going to be a peacekeeping mission. Had the President notified Congress that he was

taking the nation to "War," militia leaders who had been assured the Americans were coming

in peace might well have concluded that they were going to be the object of the American

hostilities. Why else would President Reagan or his representatives have lied to them about the nature of the mission? As it turned out, the

congressional critics were wrong about "imminent involvement in hostilities," as nearly a year

passed before any of the marines came under hostile fire. During that year, the situation in

Beirut became more dangerous because the debate in Congress took a highly partisan turn.

Democrats like Senator Alan Cranston of California and former Majority Leader Robert Byrd announced that

they would not authorize the President to continue the deployment unless he first told


Congress, as Cranston put it, "exactly how and when we propose to extricate them." [59] One of the points on which there was no apparent

discord at the Federal Convention in Philadelphia was that Congress had no role in the actual conduct of military operations. They were given only a

"veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack or redeploy troops, and

when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been

foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction

of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United States

following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in Beirut

would be able to orchestrate their strategy for maximum advantage. For much of the press and many Americans, the issue no longer became whether

the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the President

was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington Post noted

that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are doing push-ups"

for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified before the Senate

Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life and limb of the

Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61] A few days later, when

an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats were outraged:

"To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally unacceptable," said

Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to intimidate the Congress

and frighten the American people with this kind of ludicrous argument." This partisan nature of the debate became even more apparent when the

Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority Views of All

Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to allow the

Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and Democrats

alike emphasized that Congress could reconsider the issue at any time if there were further casualties among the Marines. All of this

partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign

Minister announced that the United States was "short of breath." [62] The message had also not

escaped radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted

a message between two terrorist units saying: "If we kill 15 Marines, the rest will leave."

Inadvertently, by its partisan debate and repeated pronouncements that further Marine

casualties could provoke another debate and a withdrawal of funds for the deployment (such

legislation had already been reported out of a key House subcommittee), in their partisan effort to invoke the War

Powers Resolution, Congress had essentially placed a bounty on the lives of American forces.

The rest is history. Early on the morning of Sunday, October 23, 1983, a Mercedes truck loaded with highly-sophisticated explosives drove into the

Marine Corps compound at the Beirut International Airport and exploded. America's terrorist enemies had capitalized on

the congressional signals of weakness by murdering 241 sleeping marines, sailors, and

soldiers-more Marines than had been lost on any single day since the height of the Vietnam

War in 1968 and more American military personnel than had been killed in the Gulf War,

Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since

Vietnam until the September 11, 2001 attack on the Pentagon.

Lastly, crisis and emergencies necessitate strong presidential authority.

Andrew Rudalevig, Associate Professor of Political Science, Dickinson College,

2005, The New Imperial Presidency, Ann Arbor, U of Mich Press, p. 275-6.

One dimension of the change surely stems from previous discussion during periods of uncertainty or danger a

strong presidency is genuinely seen as a positive good. Recent congressional debater is laced

with references to the need for forceful, unified leadership in troubled times. “Success in time

of war requires cohesion and unity,” noted Rep. Tom Lantos (D-CA). “If you study the sweep of history in

the United States and the history of the Presidency,” Sen. Richard Durbin (D-IL) orated, “you understand

that at times of crisis the President has an opportunity to rally the American people, to

summon them to a higher calling and a greater commitment than they might otherwise reach.

Time and again, each President faced with a national challenge has tried his best to do just that.”

Thus, the core debate about reducing presidential war powers asks us to consider the advantage of

restoring balance of powers and stopping presidential military adventurism versus the disadvantage of


undermining necessary presidential flexibility and speed to deal with rapidly changing strategic and

tactical situations.

B. Terrorism Credibility DA

Many advocates of a strong presidency contend that only a strong executive with full war

decision-making powers has the flexibility to deal with threats of proliferation and WMD terrorism. For

instance:

JOHN PAUL ROYAL, Institute of World Politics, “War Powers and the Age of Terrorism,” Center

for the Study of the Presidency & Congress The Fellows Review, 2010-2011,

Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands of

these terrorists is the most dangerous threat to the United States. We know from the 9/11

Commission Report that Al Qaeda has attempted to make and obtain nuclear weapons for at

least the past fifteen years. Al Qaeda considers the acquisition of weapons of mass destruction

to be a religious obligation while “more than two dozen other terrorist groups are pursing

CBRN [chemical, biological, radiological, and nuclear] materials” (National Commission 2004, 397). Considering these

statements, rogue regimes that are openly hostile to the United States and have or seek to develop nuclear weapons capability

such as North Korea and Iran, or extremely unstable nuclear countries such as Pakistan, pose a special threat to

American national security interests. These nations were not necessarily a direct threat to the Unite d States in the

past. Now, however, due to proliferation of nuclear weapons and missile technology, they can inflict damage at considerably higher

levels and magnitudes than in the past. In addition, these regimes may pursue proliferation of nuclear weapons and missile

technology to other nations and to allied terrorist organizations. The United States must pursue condign

punishment and appropriate, rapid action against hostile terrorist organizations, rogue nation

states, and nuclear weapons proliferation threats in order to protect American interests both

at home and abroad. Combating these threats are the “top national security priority for the

United States... with the full support of Congress, both major political parties, the media, and the American

people” (National Commission 2004, 361). Operations may take the form of pre-emptive and sustained

action against those who have expressed hostility or declared war on the United States. Only

the executive branch can effectively execute this mission , authorized by the 2001 AUMF. If the national

consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.

Other scholars argue that congressional war decisions are problematic because congressional

compromise in overseeing war decisions would create a sign of weakness and lack of US resolve:

Paul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law

School, “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE WAR POWERS RESOLUTION

AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review,

November, 2000, pp. LN.

Domestically, Congress often works best through a process of articulation of policy differences and

then compromise. The parties set out widely divergent positions as an initial matter. This allows them to establish distinct

identities, which in turn allows appeals to different groups of constituents. Difference is then overcome through a process of

negotiated compromise. Compromise is often made possible by the fact that it can be multidimensional: in seeking to achieve a


compromise in one area, bargains can be made in other areas. Compromise occurs not only within Congress, but

in the process of negotiation between the Congress and the executive. n58 To fully understand the act

of negotiating compromise, moreover, one must consider the role of Washington lobbyists who provide information and coordinate

interest group positions. n59 This process of party differentiation followed by compromise produces

consensus around the middle, which is generally the safest position in American politics.

Americans tend to distinguish between politics and government, and do not like it when government [*29] is driven too explicitly by

political ends. n60 They generally expect their politicians to shed the party differentiating ideologies that get them elected and to

tend to the task of governance under standards of policy rationality. When this process of compromise appears too risky, when it

cuts too deeply into the entrenched political positions of the parties, we have seen appeals to bipartisan, expert commissions, the

responsibility of which is to articulate the middle ground and so to relieve the pressure on the politicians as they move toward a

common ground. n61 With respect to foreign affairs, however, these techniques of congressional

decision-making work poorly. The differentiation that marks the parties as distinct and separate, and is domestically an

initial step toward compromise, serves the same differentiating function in foreign policy, but there it tends to freeze party

positions. Treaties come before the Senate too late in the process for compromise to be an option, particularly when they are

multiparty covenants. n62 Moreover, compromises can look like concessions of U.S. interests to foreign states, rather than a

distribution among competing elements of the polity. Nor is there a great deal of pressure to compromise. Rejecting foreign policy

initiatives is a way of preserving the [*30] status quo, and preserving the international status quo is rarely a policy for which one is

held politically accountable. It is hard to make an issue out of a failure to change the conditions that prevail internationally, when

the country is enjoying power, prestige, and wealth. Unable to compromise, the Senate can end up doing nothing, and then treaty

ratification fails. Difference leads to stalemate, rather than to negotiation. The problem is greatly exacerbated by the two-thirds

requirement for ratification. n63 This structural bias toward inaction accounts in part for the use of executive agreements in place of

treaties. n64 These agreements make use of some of the tactical advantages of presidential initiative. Many of the structural

problems remain, however, when executive agreements require subsequent congressional approval. If the issue involves

the use of force, compromise is particularly difficult. A compromise that produces a less

substantial response to a foreign policy crisis can look like a lack of commitment.

Disagreement now threatens to appear to offer an "exploitable weakness" to adversaries.

Congress cannot simply give the president less of what he wants, when what he wants is a military deployment. There cannot

easily be compromises on a range of unrelated issues in order to achieve support for a military

deployment. While that may happen, it has the look of disregard for the national interests and of putting politics ahead of the

public interest. Nor can Congress easily adopt the technique of the expert commission. n65 The timeframe of a crisis usually will not

allow it. More importantly, the military - particularly in the form of the Joint Chiefs of Staff - has already preempted the claim of

expertise, as well as the claim to be "apolitical." [*31] Finally, there is little room for the private lobbyist with respect to these

decisions. Congress, in short, is not capable of acting because it only knows how to reach

compromise across dissensus. When disagreement looks unpatriotic, and compromise

appears dangerous, Congress is structurally disabled. This produces the double consequence for American

foreign policy of a reluctance to participate in much of the global development of international law - outside of those trade and

finance arrangements that are in our immediate self-interest - and a congressional abdication of use of force decisions to the

president. The same structural incapacities are behind these seemingly contradictory results.

C. International Peacekeeping/Human Rights Enforcement DA

Another argument advocates of strong presidential war powers advance is that increased

congressional oversight of military operations would lead to inaction (real or perceived) towards

international humanitarian interventions that are necessary to protect human rights. While the evidence

provided here is rather generic, there are a number of specific international situations where

intervention is likely unpopular with Congress that could act as scenarios for this type of argument.

Paul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law

School, “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE WAR POWERS RESOLUTION

AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review,

November, 2000, pp. LN.


The international law of human rights, which owes its very existence to an institutional situation in which it was not and could not be

effective, has suddenly become the normative core of a new post-Cold War global order. The gross violations of human

rights in Haiti, West Africa, the states of the former Yugoslavia, Cambodia, Somalia, and

Rwanda have prompted international responses. Those responses have often been inadequate, and there have

been numerous failures to respond, but that there should be a response is now accepted. That there can be a response comes well

within the range of the ordinary political imagination. Increasingly, it is the failure to intervene, not intervention

that requires explanation. We saw this most dramatically, for example, in the recent

intervention in East Timor. We are, of course, far less certain about the relative ordering of human rights and state

sovereignty norms when we deal with China and Russia than when we deal with states of Africa, Southeast Asia, and Latin America.

Yet the change is undeniable: the relentless discourse - academic, popular, and official - on the emerging global order continually

holds up a vision of international human rights. The Cold War is a receding memory; the only deployments of force that we imagine

in the short and medium term are those that would enforce human rights norms. n93 Even those we cast as "enemies" - for

example, the regimes of Iraq, Serbia, or perhaps North Korea - [*42] we understand, within a human rights framework: it is not the

people of the state, but the regime that we oppose. The people, we believe, suffer from the human rights abuses of their

governments. They too are victims. These are not enemy states, but "rogue" regimes. Intervention is seen as a matter of enforcing

human rights norms, even if it is the case that innocent people suffer the consequences of the intervention. The pressing

question today is not "what is the distribution of foreign affairs power between Congress and

the president?" but rather, "what is the institutional mechanism through which the United

States will assume its role in the emerging global order?" Too often, American constitutional lawyers see the

issue here as one that rests merely on differences of political belief: is the U.S. role one of forceful, international leadership or is it

one of withdrawal from entanglements abroad? Following Holmes's dictum that the Constitution is made for people of widely

different views on issues of policy, n94 there is a tendency to believe that interpretation of the war

powers provisions must proceed in a way that is independent of such policy considerations.

But this distinction between law and policy disables the debate from the beginning. The deep

and complex issue here involves the manner in which two different conceptions of the rule of

law will intersect in the next generation. V. Changing Interpretations of Congressional War

Powers Every interpretation of the constitutional distribution of war powers occurs against a

sense of the imaginable uses of force - the kinds of force that can be used and the ends for

which it would be used. This was true at the time of the drafting, and it remains true today. A reading that renders the

United States unable to defend itself or to pursue its vital interests fails a test of minimal plausibility. n95 Equally, however, an

interpretation develops against a perception of the possible abuses of power, which a constitutional structure should be designed to

mitigate. The authority to deploy force, like every other constitutional power, is simultaneously the power to pursue [*43] national

interests and to commit abuses - indeed, particularly dangerous abuses. Arguments often occur because where one interpreter sees

vital national interests, another sees an abuse of power. Whether a deployment of force is perceived as

necessary or abusive depends, in substantial part, on the way in which one perceives American

interests to align or fail to align with the norms of the international order. Those norms,

however, do not remain stable. The world of 1900 - at least the developed world - was still largely structured by the

Peace of Westphalia, while today's norms increasingly express a global order of human rights. In between,

we experienced the rise of ideological politics, leading first to the Second World War, and then to the Cold War. To think that

the vision of United States v. Curtis-Wright Export Corp., n96 let alone the drafters' vision of 1787, is

particularly relevant to the American position in this new world order is to come to the debate

with a wholly inadequate set of intellectual tools, unless one is so deeply committed to an idea of American

exceptionalism that nothing that actually happens in the world can make any difference [Substantial cut in the

article for purposes of space]….To attempt to reinvigorate Congress's war declaring

role would only exacerbate this problem of incongruity. It would be an act of international

irresponsibility framed as a matter of constitutional responsibility. Here, the courts have paved the way

for a quiet abandonment. Congress's war powers have not been judicially enforceable; it would be a disaster were they to become

so. We do not need eighteenth century solutions to twenty-first century problems.


D. Modeling DAs

U.S. Constitutional structure has been used as a model for several others nations. Our system of

checks and balances between Congress and the President is one aspect that has been specifically

modeled. Restoring the legitimacy of that system could cause other nations to model that structure,

which could create dangerous situations in other countries.

Steven Calabresi, George C. Dix Professor of Constitutional Law, Northwestern

University, & Kyle Bady, JD Candidate, Northwestern, “Is the Separation of Powers

Exportable?” Harvard Journal of Law & Public Policy, Vol. 33, No. 1, Winter 2010.

We both think American-style presidential separation of powers regimes are exportable and

desirable under some carefully controlled circumstances. Like Professor Linz, we would not

recommend such a regime for a country polarized into two hostile religious or ethnic camps.3

We also would not recommend a presidential separation of powers regime for third - world

countries suffering from a history of dictatorship or rule by caudillos or strongmen like Russia.

But we do recommend a presidential separation of powers regime for federal polities that have multiple cross-cutting cleavages, a

recent history of democratic rule, a majoritarian electoral system, strong member states within the federation, and a need for a

more assertive federal foreign policymaking apparatus. We want in this Essay to make the perhaps startling argument that the

European Union is such a polity and that it needs a presidential separation of powers system like the one in the United States if it is

to be - come a successful federation rather than merely a confederation.4 In so arguing, we realize of course that there is no chance

at all of such a presidential separation of powers system being adopted. Nonetheless, if we can show that it would be a good thing

for the people of the European Union to elect a president directly that would surely be relevant to the question of whether it is ever

desirable for a presidential separation of powers system to be exported.

E. Politics DA

Yes, we include Politics as the 5th option because we believe that the topic offers a robust

enough negative debate that politics should not have to be the primary negative option for most teams.

Yet, as another advantage for this controversy, the links on the politics disad will obviously have a

different spin than we’ve seen on the last several topics, requiring some rethinking of the argument.

While the negative could make a persuasive argument that President Obama would likely push more

energy production, democracy assistance, and visas, losing political capital in the process by getting

drawn into a partisan fight, it is unlikely the negative will be able to persuasively argue Obama would

push a plan that increased constraints on Commander-in-chief powers.

However, for those whom the politics DA links are more or less a deal breaker when voting for a

topic, you can sleep easy. Political scholars have noted how Presidents, when forced to defend their war

powers, have lost considerable amounts of political capital. These consequences can potentially

spillover to the broader domestic political agenda.


Douglas L. Kriner, assistant professor of political science at Boston University, “After the

Rubicon: Congress, Presidents, and the Politics of Waging War”, University of Chicago Press, Dec

1, 2010, page 68-69

While congressional support leaves the president’s reserve of political capital intact,

congressional criticism saps energy from other initiatives on the home front by forcing the

president to expend energy and effort defending his international agenda. Political capital

spent shoring up support for a president’s foreign policies is capital that is unavailable for his

future policy initiatives . Moreover, any weakening in the president’s political clout may have

immediate ramifications for his reelection prospects, as well as indirect consequences for congressional races.59

Indeed, Democratic efforts to tie congressional Republican incumbents to President George W. Bush and his war policies paid

immediate political dividends in the 2006 midterms, particularly in states, districts, and counties that had suffered the highest

casualty rates in the Iraq War. 60 In addition to boding ill for the president’s perceived political capital

and reputation, such partisan losses in Congress only further imperil his programmatic

agenda, both international and domestic. Scholars have long noted that President Lyndon

Johnson’s dream of a Great Society also perished in the rice paddies of Vietnam. Lacking the requisite

funds in a war-depleted treasury and the political capital needed to sustain his legislative vision, Johnson

gradually let his domestic goals slip away as he hunkered down in an effort first to win and

then to end the Vietnam War. In the same way, many of President Bush’s highest second-term

domestic proprieties, such as Social Security and immigration reform, failed perhaps in large part because

the administration had to expend so much energy and effort waging a rear-guard action

against congressional critics of the war in Iraq.61 When making their cost-benefit calculations,

presidents surely consider these wider political costs of congressional opposition to their

military policies. If congressional opposition in the military arena stands to derail other

elements of his agenda, all else being equal, the president will be more likely to judge the benefits

of military action insufficient to its costs than if Congress stood behind him in the

international arena.

And we may see a re-birth of the “losers-lose” type links

Dr. Andrew J. Loomis is a Visiting Fellow at the Center for a New American Security, and Department of Government at

Georgetown University, “Leveraging legitimacy in the crafting of U.S. foreign policy”, March 2, 2007, pg 36-37,

http://citation.allacademic.com//meta/p_mla_apa_research_citation/1/7/9/4/8/pages179487/p179487-36.php

American political analyst Norman Ornstein writes of the domestic context, In a system where a

President has limited formal power, perception matters. The reputation for success—the belief by

other political actors that even when he looks down, a president will find a way to pull out a victory—is the most valuable

resource a chief executive can have. Conversely, the widespread belief that the Oval Office

occupant is on the defensive, on the wane or without the ability to win under adversity can

lead to disaster, as individual lawmakers calculate who will be on the winning side and

negotiate accordingly. In simple terms, winners win and losers lose more often than not. Failure

begets failure. In short, a president experiencing declining amounts of political capital has

diminished capacity to advance his goals. As a result, political allies perceive a decreasing benefit

in publicly tying themselves to the president, and an increasing benefit in allying with rising

centers of authority. A president’s incapacity and his record of success are interlocked and

reinforce each other. Incapacity leads to political failure, which reinforces perceptions of


incapacity. This feedback loop accelerates decay both in leadership capacity and defection by

key allies. The central point of this review of the presidential literature is that the sources of

presidential influence—and thus their prospects for enjoying success in pursuing preferred foreign policies—go beyond

the structural factors imbued by the Constitution. Presidential authority is affected by

ideational resources in the form of public perceptions of legitimacy. The public offers and

rescinds its support in accordance with normative trends and historical patterns, non-material

sources of power that affects the character of U.S. policy, foreign and domestic.

F. Counterplans

There are a number of potential counterplan options under this controversy area. We do not

attempt to provide an exhaustive list of counterplan options, just an overview of the basic debate about

alternate agents and processes in restraining Executive war authority.

Agent Counterplans

Executive Self-Restraint. A popular counterplan will likely be for the president to restrain himself.

In the context of drone strikes, for example, the counterplan would look something like this:

CONOR FRIEDERSDORF, staff writer at The Atlantic, where he focuses on politics and national

affairs, “Let's Make Drone Strikes Safe, Legal, and Rare”, March 27th 2013,

http://www.theatlantic.com/politics/archive/2013/03/lets-make-drone-strikes-safe-legal-and-

rare/274399/

The U.S. military, not the CIA, could administer all drone strikes. Team Obama could make public

and allow debate on the legal theory it uses to determine when drone strikes are lawfully

permitted, rather than keeping it from most of Congress and the American people. The law could codify rules that

implicitly value the lives of innocent foreigners and aim to avoid blowback could govern when

and where drone strikes are permitted. Congress and the judiciary could review lethal strikes to ensure the rules are

being followed. The administration could given an honest accounting of civilians killed, in place of

Team Obama's indefensible practice of counting all dead males of military age as militants. The

government could factor blowback into the cost of every drone strike at the highest levels, rather than permitting the CIA to conduct

strikes in Pakistan without presidential approval. Before an American citizen is individually targeted as a member of Al Qaeda, as

opposed to being shot at while appearing opposite U.S. troops on a traditional battlefield, he or she could be afforded the due

process guaranteed by the Fifth Amendment. Put simply, drone warfare would be made safe, rare, and

legal. Various critics of Obama's drone campaign have called for reforms like that. Too often, Obama

apologists respond by presenting a false choice: Embrace the status quo or let terrorists go. The drone war ought to be suspended

immediately; but only until drone strike protocol is no longer imprudent and morally bankrupt. That's the real choice, and if the

citizenry would force the issue, the Obama Administration would adopt the required reforms

with impressive speed. But even Obama defenders who agree that some of the aforementioned reforms should be

implemented refuse to oppose the flawed program in the interim.

We can imagine similar counterplans in the context of detention, wiretapping, and declarations of war.

The thesis of the debate would focus around the issue of deference. While the result of the

counterplan likely would result in the same limitations on the Executive as the plan, self-constraint may


not succumb to the political infighting congressional restraint would (as outlined in the politics disad

section), and it would also allow the same level of deference given to the Executive in the status quo.

However, the possibility of this counterplan raises the question: wouldn’t an Executive Order or

Executive Self-Restraint counterplan be unbeatable on this topic? While this option has potential states-

like counterplan implications, we believe that there are two solid reasons why this type of counterplan

would not ruin a presidential powers resolution.

First, given the suggested wordings offered in this paper, the counterplan would be a clear case

of object fiat since the agent and its powers are included in the resolution’s wording. While many judges

do not consider agent counterplans that use agents who are not listed in the resolution an example of

object fiat (e.g., have the states provide production tax credits on the 2012-2013 energy production

topic), a generally agreed upon bright line for object fiat is that agents listed in the resolution are

illegitimate grounds for fiat as they decimate all affirmative ground. As a result, resolution wording

could provide a solid theoretical basis to reject this counterplan.

Second, we know that some people will reject this controversy if theory is the only defense

against such an abusive counterplan. As a result, we offer some solid substantive reasons why the

affirmative can defend itself against this counterplan. One reason is that the counterplan fails is because

it keeps the precedent of the presidential war power on the books, which is a substantial solvency

deficit. For example, William Marshall contends that self-restraint sends no signal, the precedent always

remains, and future presidents would use that power. Only congressional or judicial restraints solve. As

he explains,

William P. M. Marshall, Kenan Professor of Law, University of North Carolina,

2008 “Eleven Reasons Why Presidentaial Power Inevitably Expands and Why It Matters,”

Boston University Law Review,

www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf

2. The Precedential Effects of Executive Branch Action Presidential power also inevitably

expands because of the way executive branch precedent is used to support later exercises of

power. Many of the defenders of broad presidential power cite historical examples, such as President Lincoln’s suspension of

habeas corpus, as authority for the position that Presidents have considerable powers in times of war and national emergency. Their

position is straight-forward. The use of such powers by previous Presidents stands as authority for a

current or future President to engage in similar actions. Such arguments have considerable

force, but they also create a one-way ratchet in favor of expanding the power of the

presidency. The fact is that every President but Lincoln did not suspend habeas corpus. But it is a President’s action

in using power, rather than forsaking its use, that has the precedential significance. In this manner,

every extraordinary use of power by one President expands the availability of executive

branch power for use by future Presidents.


As long as the precedent exists, despite restraint from use, it will be perceived as legal later – future

emergencies and exceptions will always justify its use without structural limitations.

David Cole, Professor, Georgetown University Law Center, “SYMPOSIUM: JUDGING

JUDICIAL REVIEW: MARBURY IN THE MODERN ERA: JUDGING THE NEXT EMERGENCY: JUDICIAL

REVIEW AND INDIVIDUAL RIGHTS IN TIMES OF CRISIS,” Michigan Law Review, August 2003, pp.

LN

I would hesitate to adopt the Gross-Tushnet position for several reasons. First, it is predicated on a distinction

between "emergency" periods and "normal" periods that, as Gross himself has convincingly shown, simply

cannot be maintained. As Gross argues, "the belief in our ability to separate emergency from

normalcy, counter-terrorism measures from the ordinary set of legal rules and norms," is a

dangerous illusion. n115 The United States has been under one state of emergency [*2588] or another since 1933; by the

mid-1970s, there were more than 470 "emergency" laws on the books. n116 Israel has been under an emergency regime since it was

established as a state more than fifty years ago. n117 And Great Britain has been under a state of emergency for most of the last

thirty years, occasioned first by the IRA and later by the attacks of September 11th. n118 Thus, emergency powers have a way of

surviving long after the emergency has passed, and emergencies themselves may last decades. Emergency measures adopted in the

United States today are especially likely to be long-lasting, given the nature of the war on terrorism, which is more like the war on

drugs than a traditional war between nations. n119 When Donald Rumsfeld was asked when the war on terrorism would be over

(and therefore when the Guantanamo enemy combatant detainees would be freed), he answered that the war would not be over

until there were no longer any "effective global terrorist networks functioning in the world." n120 Vice President Richard Cheney has

been even more candid, arguing that we should consider the current period not an emergency at all, but "the new normalcy." n121

If the line between emergency and normal is evanescent, a doctrine of extraconstitutional

authority cannot be safely cabined to emergency times. Far from protecting the Constitution in normal times,

then, a doctrine expressly authorizing extralegal actions during emergencies would be at least as likely to contaminate the norm by

expanding the realm of available government measures across the board as would insistence on a continuing role for courts and the

Constitution in checking emergency and nonemergency government action. Second, the Gross-Tushnet proposal to acknowledge

extraconstitutional power would be likely to undermine the protection of rights [*2589] during emergencies (and by extension,

during normal times that officials call emergencies). Gross claims that his proposal would have a salutary deterrent effect on official

abuse of emergency powers, because officials could never be certain that their actions would in fact be ratified after the fact. And he

argues that shifting the locus of justification and judgment from the judiciary to a political forum - the people or their elected

representatives - would avoid the problem identified by Justice Jackson of formally authorizing emergency measures through judicial

approval. There are substantial reasons, however, to doubt both of Gross's claims. Even if acknowledging the legitimacy of extralegal

measures would avoid formal judicial approval, it would not avoid the creation of less formal precedents

that could be pointed to later to justify further incursions on liberties. The post hoc political

rationalization process that Gross envisions, while lacking the attributes of the formal legal process, would

nonetheless generate a more informal common law of extralegal emergency authorities. Once

the political process has ratified a particular extralegal emergency action, officials will be able

to point to that precedent as justification for their own subsequent actions. "Illegal" measures

deemed permissible after the fact will no longer be clearly illegal, so long as a subsequent

emergency can be analogized to the emergency found to warrant the illegal action previously.

n122

And, as Marshall continues, the self-restraint won’t be perceived and public expectations to use the

power in times of crisis will lead to their inevitable use. Only legal limits and restraints can solve.

William P. M. Marshall, Kenan Professor of Law, University of North Carolina,

2008 “Eleven Reasons Why Presidentaial Power Inevitably Expands and Why It Matters,”

Boston University Law Review,

https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf


Accordingly, the question whether a President has exceeded her authority is seldom immediately

obvious because the powers of the office are so open- ended. This fluidity in definition, in turn,

allows presidential power to readily expand when factors such as national crisis, military

action, or other matters of expedience call for its exercise. Additionally, such fluidity allows

political expectations to affect public perceptions of the presidential office in a manner that

can lead to expanded notions of the office’s power. This perception of expanded powers, in turn,

can then lead to the perceived legitimacy of the President actually exercising those powers.

Without direct prohibitions to the contrary, expectations easily translate into political reality .

We believe based on these theoretical and substantial reasons that the affirmative has much more than

a fighting chance against executive order/executive self-restraint counterplans. These debates may

happen, but they will not ruin the topic.

Courts / Congress. The debate over which external constrain on the Executive is a fruitful one. In

the article cited below, Londras and Davis discuss the various pros and cons of constraining the

Executive vis-à-vis legislation, or the Courts.

Fiona De Londras, UCD School of Law, UCD Institute of Criminology, University College, and

Fergal F. Davis, Lancaster University School of Law, “Controlling the Executive in Times of

Terrorism: Competing Perspectives on Effective Oversight Mechanisms”, Oxford Journal of Legal

Studies, Vol. 30, No. 1 (2010), pp. 19–47

Abstract—The well-established pattern of Executive expansionism and limited oversight of

Executive action in times of terrorism is problematic from the civil libertarian point of view. How to limit

such action has been the subject of much scholarship , a large amount of which focuses on perceptions of

institutional competence rather than effectiveness. For the authors, the effective control of security-focused

state action is to be judged by the extent to which it consists only of action that is necessary

and proportionate and thereby strikes an appropriate balance between security exigencies

and individual rights. This article, written and structured in dialectic form, presents competing

perspectives on effective oversight mechanisms: on the one hand, an extra-constitutionalism

perspective, proposing a limited role for the Judiciary and emphasizing the need for legislative

and democratic controls; and on the other, an argument for judicial muscularity.

States. While certainly not applicable to many of the proposed topic areas, the States may be a viable

counterplan against certain affirmatives, namely detention, domestic drones, and/or domestic

wiretapping. The likely mechanism would be the States using the Nullification powers.

Joe Wolverton, II, J.D., “States Join The Fight To Nullify Indefinite Detention Under NDAA”, Feb

14th 2013, http://www.westernjournalism.com/states-join-the-fight-to-nullify-indefinite-

detention-under-ndaa/

President Barack Obama signed the latest National Defense Authorization Act (NDAA) into law on

January 2, renewing the power to apprehend and detain Americans indefinitely granted in the


previous year’s version. In order to protect their citizens from being grabbed and imprisoned under

the provisions of the NDAA, many state lawmakers are standing up to the federal government,

proposing resolutions nullifying this unconstitutional power at the state borders. Nullification

is a concept of constitutional law recognizing the right of each state to nullify, or invalidate,

any federal measure that exceeds the few and defined powers allowed the federal

government as enumerated in the U.S. Constitution. Nullification exists as a right of the

states because the sovereign states formed the union, and as creators of the compact, they

hold ultimate authority as to the limits of the power of the central government to enact laws

that are applicable to the states and the citizens thereof. As President Obama continues

accumulating all legislative, executive, and judicial power, the need for nullification is urgent,

and liberty-minded citizens are encouraged to see state legislators boldly asserting their right

to restrain the federal government through application of that very powerful and very

constitutional principle.

Process CP – Congressional Power of the Purse

Jennifer Elsea provides an overview on the debate concerning two distinguishable mechanisms

Congress has to limit the Executive: passing statutory language that explicitly limits the Executive; or

withholding funding for certain practices. I have chosen to quote a small section of the Research Paper

which provides the best summary; however, greater detail is explored in various sections of the paper.

Passing legislation with language explicitly limiting Executive authority would probably result in

more controversy, but it would certainly be a more powerful limit. Simply withholding funding may be

sufficient while creating less initial controversy, but is open to circumvention, and future inter-branch

conflict

Jennifer K. Elsea et al, Legislative Attorney, “Congressional Authority to Limit Military

Operations”, Feb 19th 2013, http://www.fas.org/sgp/crs/natsec/R41989.pdf

As a procedural matter, it is more difficult for Congress to statutorily require the termination

of a military conflict than to limit appropriations necessary for the continuation of hostilities.

As in the case of ordinary legislation, congressional declarations of peace and rescissions of

military authorization have historically taken the form of a bill or joint resolution passed by

both houses and presented to the President for signature.111 Like other legislation, such

measures are subject to presidential veto, which Congress may override only with a two-thirds majority of each

house.112 In contrast, Congress’s ability to deny funds for the continuation of military hostilities

is not contingent upon the enactment of a positive law, though such a denial may take the form of a positive

enactment.113 Although the President has the power to veto legislative proposals, he cannot compel Congress to pass legislation,

including bills to appropriate funds necessary for the continuation of a military conflict. Thus, while a majority of both

houses would be necessary to terminate military authorization, and a super-majority of both

houses would be required to override a presidential veto, a simple majority of a single house

could prevent the appropriation of funds necessary for the continuation of a military

conflict.114 It should be noted, however, that legislation probably would be required to

prevent the President from exercising statutory authority to transfer certain funds

appropriated to other operations for use in support of the military conflict that Congress was


attempting to limit. Like other positive legislation, such a measure would be subject to presidential veto. While it may

be procedurally easier for Congress to refuse appropriations for a military conflict than to

rescind military authorization or establish a statutory deadline for the termination of U.S.

participation in hostilities, policy considerations may sometimes make the latter option more

appealing. For example, some Members of Congress who support the winding down of a military operation might nevertheless

be reluctant to reduce the funds for troops on the battlefield. There might also be concerns over potential effects that a denial of

appropriations might have on unrelated military operations. Although appropriations legislation can be crafted

to effectively terminate hostilities while permitting funding of force protection measures

during the orderly redeployment of troops from the battlefield, such legislation, like other

positive enactments, would be subject to presidential veto. In 2007, for example, Congress

passed a supplemental appropriations bill to fund the war in Iraq that contained conditions

for further U.S. troop deployments and a deadline for ending some military operations.115 The

President vetoed the bill, arguing in part that these restrictions were unconstitutional because

they “purport[ed] to direct the conduct of operations of war in a way that infringes upon the

powers vested in the presidency by the Constitution, including as commander in chief of the

Armed Forces.”116 When an attempt to override the President’s veto failed, Congress passed

another supplemental bill that provided no timetable for U.S. troop withdrawal from Iraq,

which was signed into law by the President.117 In certain circumstances, a President may be

more willing to agree to either a statutory limitation on the continuation of an armed conflict,

or the rescission of prior statutory authorization for a military operation, than to an

appropriations bill that limits the funding of military operations— particularly if these

measures do not include a deadline for troop withdrawal. Indeed, during the Vietnam conflict,

Congress was able to rescind military authorization at an earlier date than it was able to cut

off appropriations. In 1971, Congress passed and President Nixon signed a measure rescinding the 1964 Gulf of Tonkin

resolution, which had provided congressional authorization for U.S. military operations against North Vietnam.118 The Mansfield

Amendment, enacted later that year, called for the “prompt and orderly” withdrawal of U.S. troops from Indochina at the “earliest

possible date.”119 However, these measures did not include a deadline for troop withdrawal. Although U.S. troop presence in South

Vietnam diminished considerably pursuant to the Nixon Administration’s “Vietnamization” strategy even prior to these enactments,

the United States continued significant air bombing campaigns in the years following the rescission of military authorization. During

this same period, President Nixon vetoed or threatened to veto a number of appropriations bills that would have either prohibited

funds from being used for certain military operations in Southeast Asia or required a complete withdrawal of U.S. troops from

Vietnam. In 1973, two years after rescinding military authorization, Congress was finally able to enact appropriations limitations,

signed by the President, that barred combat operations in Indochina.120 These appropriations measures were approved only after

the signing of a cease-fire agreement with North Vietnam and the withdrawal of U.S. troops from South Vietnam, and served

primarily to end the aerial bombing campaign in Cambodia and prevent U.S. forces from being reintroduced into hostilities. In

sum, in situations where Congress seeks to prevent the executive’s continuation of military

combat operations, it may be procedurally easier for Congress to deny appropriations than it

would be to statutorily compel a withdrawal from hostilities. However, past experience

suggests that, at least in certain circumstances, policy considerations may cause the two

branches to view the rescission of military authorization as a more appealing alternative—

postponing an interbranch conflict on appropriations for a later date, enabling Congress to

signal its interest in winding down a conflict, and (at least temporarily) preserving the

President’s discretion as to how the conflict is waged.

Case Specific counterplans

There are a number of potential counterplan options for each subject of the controversy. For

instance, specific counterplans that modify the AUMF in less restrictive ways than the plan (for example,

allow executive drone strikes if a congressional committee concludes the target is a senior leader of Al-


Qaeda OR poses an imminent threat to troops on the ground) will probably become more popular as

agent and process counterplans run their course in the early season.

G. Negative Critical Arguments

1. Whitewashing/Sanctioning of Imperialism/Security-State/Empire

criticism

A number of critical scholars would view the affirmative on this controversy as merely legally

sanctioning imperialism and the State Security apparatus rather than truly reforming or changing it. For

example, Michael Hardt and Antonio Negri’s work on emprire and the multitude argues that viewing war

as rule-driven ignores the constantly state of exception that contemporary war has created.

Eric Mason , Ph.D. candidate in rhetoric and composition at the University of South Florida,

“Review of Multitude, War, and Democracy,” Multitudes, October 2004, http://multitudes.samizdat.net/Review-of-Multitude-War-And.html

According to Hardt and Negri, war has become a “form of rule” and a “general matrix for all

relations of power and techniques of domination.” This is significant because wars have

traditionally initiated “states of exception” during which civic rights are suspended and

extraordinary powers are granted to government bodies. Recognizing that the war on terror

has supplied the U.S. government with a “permanent and general” state of exception, Hardt

and Negri caution us that :< “A war to create and maintain social order can have no end. It must involve the continuous,

uninterrupted exercise of power and violence. In other words, one cannot win such a war, or, rather, it has to be

won again every day. War has thus become virtually indistinguishable from police activity.” For

Hardt and Negri, this constant state of war necessitates a rethinking of the concept of

democracy, which is confronting a “leap of scale” when considered a necessary adjunct to globalization. While many of their

philosophical and political touchstones have not changed since Empire, Hardt and Negri focus more attention on the global

apparatus of governance, including organizations such as the United Nations and the IMF, and on central democratic principles such

as “representation.” They also focus more on glimpses of the biopolitical power of the multitude that have appeared in the “carnival

and mimicry” of protests, as well as in the “decentralized” intelligence of social networks such as the open-source software

movement. What all of these social networks share, and what Hardt and Negri argue is the

multitude’s central role in challenging current threats to democracy, is the production of the

common. The common is at once both the product of labor and the basis for future production, a surplus reappropriated and

managed by the multitude. The possibilities of the common are most visible in the realm of immaterial labor, the most paradigmatic

example given being communication. If one focuses, as Hardt and Negri do, on the role of immaterial labor, the common does not

operate according to the logic of scarcity, supposedly opening the possibility of mass participation in political power exercised

through the biopolitical force of immaterial labor. Immaterial labor is a concept apparently similar to concepts such as “knowledge

economy” or “symbolic-analytic” work. What Hardt and Negri add to these previous concepts is the refusal to separate the

economic, the political, and the social. They claim that immaterial labor must be understood as a form of “biopolitical labor” that, in

addition to producing “knowledge, information, communication, a relationship, or an emotional response,” creates social life itself.

The lived reality of labor and the abstract reality of globalization are thus kept in close relation through the multitude’s creation of

“tighter articulations between the political and the social.” One problem caused by giving immaterial labor a central role in the

project of the multitude is the question of the participation of those who labor on the land and do not trade primarily in immaterial

labor-namely, peasants. Hardt and Negri admit as much when they state that the “figure of the peasant may pose the greatest

challenge for the project of the multitude.” The disappearance of the peasant from struggles over democracy (like the

disappearance of the “figure of the industrial worker, the service industry worker, and all other separate categories”) is welcomed

by Hardt and Negri, who see this as part of the “more general trend of the socialization of all figures of labor.” In other words, the

multitude depends on the becoming common of multiplicity, while each form of labor is assumed to be able to retain its singularity.

This relation of singularity and commonality is at once the most basic aspect of the formation of the multitude, the most difficult

condition to achieve and maintain, and, very likely, the most unlikely aspect for readers to accept as possible. Unfortunately, there is


little in this book that does not follow from the possibility of the formation of the multitude. Groups of protesters dancing in

costume and chanting outside political conventions and economic summits might not satisfy some readers hopes for the potential

for change in global governance. Hardt and Negri do offer more than this, but the possibility of a politically effective

multitude is as fragile as it may be powerful, and like the current war on terrorism, is a project

that must also be “won again every day.”

2. Feminist critique of International Relations theory

Feminist international relations theory has a number of important critical insights into notions of

power and balance of power:

Abigail Temperely March 13, 2013, “The Feminist Perspectives on Power,” e-International

Relations, http://www.e-ir.info/2013/03/13/what-have-feminist-perspectives-contributed-to-

our-understanding-of-power-in-the-discipline-of-international-relations/

Traditional theories assert that international relations ought to be understood solely in terms

of the masculine concepts state, sovereignty, war and power . Feminine notions, primarily in

the domestic sphere, are not considered to be relevant. As such the dominant Realist and

Liberal theories in the discipline maintain a sharp dichotomy between interstate, political,

public, masculine and intrastate, domestic, private, feminine and assign significance only to

the former, thereby disregarding the impact of the latter. It is not possible in the space of this essay to

explore in depth the ways in which all of these concepts are exposed as gendered by feminist theorists, and the significance that so

doing has for the discipline of international relations. Power emerges as central in traditional theories, to

both the study and practice of international relations. In this essay I will explore how feminist theorists have

interpreted the concept of power, as it exists in traditional international relations theories, as it manifests in international order and

how it might be reformulated to better accommodate gender into the discipline, allowing a deeper and more accurate

understanding of the international.

3. Racial Criticisms

One of the interesting aspects of recent criticisms of presidential war authority is the racial

nature of some of the more outspoken critics of Obama’s war powers: white conservatives (many who

also make birther arguments) who were rather silent during the white Bush administration’s moves to

expand WoT presidential powers. A powerful racial critique of the fear of the unchecked black president

seems possible. Additionally, there are other interesting intersections between racial protest and strong

presidential power that could be investigated by negatives. For example,

Sidney M. Milkis & Daniel J. Tichenor, 2011, Milkis is the White Burkett Miller Professor of

the Department of Politics and Assistant Director for Democracy and Governance Studies at the

Miller of Public Affairs at the University of Virginia; Tichenor is Philip H. Knight Professor of

Social Science and Senior Faculty Fellow at the Wayne Morse Center for Law and Politics,

“Reform’s Mating Dance: Presidents, Social Movements, and Racial Realignments,” Journal of

Policy History, Volume 23, Number 4, 2011

We argue that both presidents and social movements have played leading roles in the

development of major legal and policy innovations that recast race relations in the United States.


More precisely, the uneasy partnership of these two forces has served as an important catalyst for

advancing civil rights reform in key periods of American political development. As much as scholars

have devoted scant attention to the relationship between the presidency and social movements, the few works that do probe the

subject tend to emphasize the inherent conflict between a centralizing institution tasked with conserving the constitutional order

and grass-roots associations dedicated to structural change.1 Even presidents with large reform ambition have had to keep some

distance from social movements and causes so as to avoid alienating the support necessary to secure a national consensus for their

programs; at the same time, political insurgents have viewed alliances with presidents as a threat to their dedication to values that

pose severe challenges to core American principles.2 There is a hint of caricature here, with presidents cast as regularly indifferent,

resistant, or openly repressive toward insurgent causes and social movements deemed too hamstrung by radical visions or

noninstitutionalized tactics to engage effectively in the art of political compromise. In this article, we take stock of the conflicts and

rivalries between these political actors, but we also want to reach beyond them to focus on key moments of American political

development when executives and insurgents have needed each other. Presidents sometimes find themselves at the center of

national crises where conserving the Constitution requires a redefinition of the social contract. Social activists sometimes seek to

secure the rights of the dispossessed and to advance moral causes not merely by opposing the existing order of things but through a

principled commitment to reconstituting it. Both presidents and social movements have the potential to be important agents of

change during critical junctures of American political history, albeit typically from very different vantage points. To grasp the

tense yet essential relationship that sometimes has joined presidents and social movements,

we consider it crucial to develop an analytical framework that emphasizes neither executive

power nor insurgency but, rather, the fascinating interplay between them. In particular, our aim

is to illuminate the dynamics that sometimes allow presidents and social movements to come

together and to achieve critical breakthroughs and enduring reform. Equally important, it is

necessary to specify the political, legal, and [End Page 452] administrative legacies of these

breakthroughs over time. We seek to lay the groundwork for such analysis by considering three dynamics over time: (1)

the agency of presidents with broad authority to exercise power and to pursue ambitious

policy change, (2) the leverage of social movements with the capacity to employ both conventional and

disruptive political tactics, and (3) the mediating role played by party politics, Congress, and national

administration. We explore these institutional factors in two cases that offer useful variation, both on the dynamics of reform

breakthroughs and on the administrative and political legacies of these innovations: Abraham Lincoln’s relationship with the

Abolitionist movement and Lyndon Johnson’s with the civil rights movement. Racial politics offers an especially

fruitful avenue to explore the executive-social movement nexus. As “a lived experience, a hierarchically

ranked social category, and a site of institutional action,” race “can help us transcend the false divide between culture and identity,

on the one hand, and institutions and structure on the other.”3 Our approach to race and American political development embraces

the charge by Desmond King and Rogers Smith to carefully consider “enduring tensions between and within the nation’s racial

orders.”4 But whereas King and Smith’s framework emphasizes the conflict over race in American politics, we train a spotlight on the

contentious partnership between executive power and insurgency that has led to important breakthroughs in civil rights. By

exploring how the collisions and collaborations of social movements and presidents have influenced race relations and civil rights

policy in the United States, we build on earlier work by race, gender, and ethnicity scholars who have sought to explicate the

institutional dynamics that sustain invidious discrimination in American political development.5 But our findings point to

the productive friction between competing agents of reform and their distinctive political and

policy legacies.

4. Critical Legal Studies & Critiques of Legal Liberalism

Both conservative and liberal legal critics have a number of indictments of Legal Liberalism,

which is grounded in the faith that the law and constitutional structures works. For example, Eric Posner

and Adrian Vermeule draw on Carl Schmitt’s critique of liberal legalism and its attempt to structurally

contain the executive branch based on a classical rule-of-law theory of the state.

Eric A. Posner, Kirkland & Ellis Distinguished Service Professor of Law and Aaron

Director Research Scholar at the University of Chicago, and Adrian Vermeule,


John H. Watson, Jr. Professor of Law at Harvard Law School, The Executive

Unbound: After the Madisonian Republic, Oxford: Oxford University Press, USA, 2011.

Our thesis is that these modifications to liberal legalism fail. Either they do not go far enough to square with the

facts, or they go so far as to effectively abandon the position they seek to defend. We live in a regime of executive-centered

government, in an age after the separation of powers, and the legally constrained executive is

now a historical curiosity. As against liberal constitutional theorists like James Madison, Bruce Ackerman,1 and Richard Epstein,2 and

liberal theorists of the rule of law like Albert Venn Dicey 3 and David Dyzenhaus, 4 we argue that in the modern administrative state the executive

governs, subject to legal constraints that are shaky in normal times and weak or nonexistent in times of crisis. Whereas Madison is an

exemplar of liberal legalism, particularly in the domain of constitutional theory, we draw upon

the thought of the Weimar legal theorist Carl Schmitt . We do not agree with all of Schmitt ’s views, by any means. To

the extent Schmitt thought that democratic politics do not constrain the executive, or thought that in the administrative state the executive is not only

largely unconstrained by law but also unconstrained tout court , we disagree. Indeed, to the extent that Schmitt thought this, he fell into a

characteristic error of liberal legalism, which equates lack of legal constraint with unbounded power. But Schmitt’s critical arguments

against liberal legalism seem to us basically correct, at least when demystified and rendered

into suitably pragmatic and institutional terms. A central theme in Schmitt ’s work, growing out of

Weimar’s running economic and security crises in the 1920s and early 1930s, involves the relationship between the

classical rule-of-law state, featuring legislative enactment of general rules enforced by courts,

and the administrative state, featuring discretionary authority and ad hoc programs, administered by the executive,

affecting particular individuals and firms. The nub of Schmitt ’s view is the idea that liberal lawmaking

institutions frame general norms that are essentially “oriented to the past,” whereas “the

dictates of modern interventionist politics cry out for a legal system conducive to a present-

and future-oriented ‘steering’ of complex, ever-changing economic scenarios.”5 Legislatures and courts, then, are

continually behind the pace of events in the administrative state; they play an essentially

reactive and marginal role, modifying and occasionally blocking executive policy initiatives, but rarely taking the lead. And in crises, the

executive governs nearly alone, at least so far as law is concerned. In our view, the major constraints on the executive,

especially in crises, do not arise from law or from the separation-of-powers framework

defended by liberal legalists, but from politics and public opinion. Law and politics are hard to separate and lie

on a continuum—elections, for example, are a complicated mix of legal rules and political norms—but the poles are clear enough for our purposes, and

the main constraints on the executive arise from the political end of the continuum. A central fallacy of liberal legalism, we argue,

is the equation of a constrained executive with an executive constrained by law. The pressures

of the administrative state loosen legal constraints, causing liberal legalists to develop

tyrannophobia, or unjustified fear of dictatorship. They overlook the de facto political constraints that have grown up

and, to some degree, substituted for legal constraints on the executive.6 As the bonds of law have loosened, the bonds of politics have tightened their

grip. The executive, “unbound” from the standpoint of liberal legalism, is in some ways more

constrained than ever before.

VI. Potential directions for wording papers

Given that presidential war powers, particularly in the recent era, have been evoked to justify a

number of policies, we recommend a list topic. A list would allow wording papers to focus on similar

presidential war powers and would allow the community to choose which types of these broad powers

they would like to debate. We narrowed this controversy paper to what we believe to a fairly similar set

of presidential powers, but this does not mean that later wording papers could not advocate for other

groups of presidential powers.


A. The Mechanism

The mechanism we see throughout the literature is to “increase or enact statutory limitations”

on presidential power. For example, statutory limitations restrict executive war powers:

William M. Hains, “Challenging the Executive: The Constitutionality of Congressional Regulation

of the President's Wartime Detention Policies,” Brigham Young University Law Review, 2011,

pp. LN.

n78. " It is common for defenders of presidential prerogatives to conflate inherent ... executive

war powers with preclusive ones, and to assume that any powers granted by Article II must

also be immune from statutory limitation ." Barron & Lederman, Framing the Problem, supra note 1, at 741-43.

However, inherent presidential power is relevant to a Youngstown Category II analysis (where

the President acts in the absence of congressional action), not a Youngstown Category III

analysis (where Congress has acted to limit the President's authority).

n79. If the President's power is independent, it arises out of the Constitution rather than legislation. But deciding that a

presidential power is independent of Congress does not answer the question of whether the

authority is exclusive or shared. See Lobel, supra note 75, at 447-49 (distinguishing "exclusive" from "independent" and

"inherent" power); id. at 464 ("That the President has independent power stemming from his Commander in Chief power means

that he can act independently of congressional authorization, not in disregard of it."). As with "inherent," this term is more

appropriate for a Youngstown Category II analysis. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson,

J., concurring) ("When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his

own independent powers ... .").

The War Powers Resolution is an example of a statutory limitation.

Adrian Vermeule, Professor of Law, Harvard Law School, 2006,

“THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER: SELF-DEFEATING

PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN.

Political constraints. Ackerman's framework statute is supposed to perform a constitutional function. It reorganizes governmental

powers during an emergency, and then ensures that they return to normal after the emergency expires. A statute could, in principle,

perform such constitutional functions by aligning the various parties' expectations about the future, which then provide a basis for

objecting to usurpations or interference when the emergency occurs. However, history shows that statutory

limitations are weak during emergencies. The War Powers Resolution , which limited the

circumstances under which the President could use military force and imposed various

reporting requirements when the President did use force, has been ignored. As I mentioned above,

the National Emergencies Act similarly imposed restrictions and reporting requirements on

the President's power to declare emergencies, and the International Emergency Economic

Powers Act limited the President's power to impose economic sanctions during emergencies. None of these [*647] statutes has had much of an impact on the behavior of executives. n61 Finally, after 9/11 the President

undertook a program of domestic warrantless surveillance, one that in the view of many commentators clearly violates the Foreign

Intelligence Surveillance Act. n62 Public opinion, however, is divided about the program's legality. n63 As of this writing, there seems

little prospect that Congress will retaliate; the most likely outcome is some sort of legislative ratification of the program, which

means that the President will have effectively annulled the Foreign Intelligence Surveillance Act as well as the other framework

statutes governing executive action in emergencies.


The Supreme Court can enforce statutory limitations against the Command in Chief.





Perhaps because the question of how to determine what should happen at the "lowest ebb" has long been of only marginal

scholarly interest, it has been obscured by a dense fog of half-developed and largely unexamined intuitions. Chief among these is the

notion, supposedly deeply embedded in the constitutional plan, that the Commander in Chief Clause prevents Congress from

interfering with the President's operational discretion in wartime by "directing the conduct of campaigns." n5 Or, as it is sometimes

more broadly put, the idea is that Congress may not regulate the President's judgments about how best to defeat the enemy - that

the Commander in Chief's discretion on such matters is not only constitutionally prescribed but is preclusive of the exercise of

Congress's Article I powers. n6 In its most persuasive form, the Bush Administration's assertion of preclusive

executive war powers rests on precisely this contention - that Congress cannot "dictate strategic

or tactical decisions on the battlefield." n7 It follows from that premise, the Administration

argues, that Congress may not enact statutes restricting troop levels in Iraq or defining the

mission of the armed forces operating there. Nor may it "place any limits on the President's

determinations as to any terrorist threat, the amount of military force to be used in response,

or the method, timing, and nature of the response." n8 "These decisions," [*695] claims the Bush

Administration, "under our Constitution, are for the President alone to make." n9 There is an understandable

temptation to dismiss as aberrant constitutional claims that are so broad and unconditional.

Indeed, the Supreme Court's decisions in high-profile war powers cases that have enforced

statutory limitations against the Commander in Chief might be thought to justify one's doing

so. But in fact, the Court's message in these cases is much more equivocal than is often acknowledged. n10 And just as appeals to

judicial precedent cannot resolve the issue, neither can the various distinctions that war powers analysts and scholars have often

invoked to cabin such preclusive executive powers, such as those between so-called framework statutes and detailed regulations of

the battlefield, or between ex ante measures and statutes enacted in the midst of a specific operation. n11 In our view, these

taxonomies are much less capable of identifying the bounds of preclusive executive war powers than is usually acknowledged. The

issue, therefore, is less whether a test for defining such inviolate powers of presidential tactical discretion can be enunciated than

whether it is justifiable to accept in the first place the common premise that Congress may not enact legislation that "interferes with

the command of the forces and the conduct of campaigns." n12

Statutory Limitations are most commonly used in the literature. However, it has been difficult to find a

card that offers a precise definition of the term.

Another option would be “Statutory Restrictions”, which is similar to statutory limitations, and is

defined by Black’s Law Dictionary as, “Limits or controls that have been place on activities by its ruling

legislation.”76 Another option might be “congressional limitations.” For instance,





Over the past half-century, discussions of constitutional war powers have focused on the scope of the

President's "inherent" power as Commander in Chief to act in the absence of congressional

authorization. In this Article, Professors Barron and Lederman argue that attention should now shift

76

http://thelawdictionary.org/statutory-restriction/


to the fundamental question of whether and when the President may exercise Article II war

powers in contravention of congressional limitations , when the President's authority as Commander in Chief

is at its "lowest ebb." Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to

war, the Commander in Chief often operates in a legal environment instinct with legislatively

imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly

conflict with its preferred means of prosecuting military conflicts. The Administration's response, based on an assertion of preclusive

executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.

Another option would be to use the 1993-1994 verb, “curtail.” Merriam-Webster Online defines

curtail to be, “to make less by or as if by cutting off or away some part <curtail the power of the

executive branch> <curtail inflation>”77 Although this dictionary interestingly enough uses presidential

powers as its example, after a short conversation with Ryan Galloway about the 1993-1994 NDT topic,

we are concerned that using “curtail” would require the affirmative to narrow the scope of the

President’s war power authority, which may not be something that Congress can actually do. Instead, it

appears as though the literature base suggests that limitations need to be placed on the use of that

authority rather than narrowing the scope of that authority. As a result, we suggest the use of statutory

limitation/restriction or a similar term.

B. The Agent

The controversy literature suggests two obvious agents for the resolution – Congress or the

Courts. Some of the case areas are better suited for congressional action while others are best suited for

judicial action. We believe that it would be best if potential wording papers could include both agents.

The Executive could be a potential agent as well – self-restraining their own policies – but having the

Executive act on their own does not get to the core of the controversy: should more oversight and

limitations be placed on the presidency? As a result, we suggest that the Executive not be included.

While we do not suggest that these agents be explicated included in the resolution, the verb used in the

stem could unintentionally limit out judicial action. We believe that judicial interpretations likely create

statutory restrictions or limitations (even though they don’t create law, they interpret controlling

statutes as now applying, thus creating or increasing a restraint or limitation).

C. The Stem

Given that several maintain proposals for change suggest either reforming the WPR or creating a

new restriction on presidential war powers, we suggest that the stem allow for both the reform or

extension of existing statutory limitations or the creation of new ones. As a result, the stem could be,

77

http://www.merriam-webster.com/dictionary/curtail


“The United States federal government should increase,” “The United States federal government should

enact” or “The United States federal government should increase and/or enact statutory limitations.”

However, we do not want to exclude the possibility that the topic could be worded in an

agentless passive voice. After all, the 1993-1994 NDT Commander in Chief topic -- Resolved: That the

Commander-in-Chief power of the President of the United States should be substantially curtailed -- was

the last passively worded NDT topic. We have included a passive voice resolution suggestion below, and

we encourage those interested in this discussion to write a wording paper weighing the pros and cons of

such a resolution.

D. War powers to include and how to phrase

There are a number of ways that resolution wording could describe the war powers we outline

in this paper. Options include “Article II, Section 2 Constitutional war powers”, “Commander in Chief

powers,” or “Presidential/Executive War Powers.” Because so many powers could potentially fall within

these categories, we suggest a list of powers that are of interest to the debate community.

Given our research, we suggest inclusion of the following war powers:78

• designate and detain enemy combatants;

• conduct covert military operations;

• use domestic wiretapping;

• deploy military force without congressional approval (e.g., UAVs, Offensive Cyber Operations,

Support for United Nations or NATO operations, Preventive or Preemptive unilateral action).

All of these powers fall within Commander in Chief war powers. The Bush administration argued

that Commander in Chief powers justified torture, detainment, wiretapping, and military tactics like

UAVs and preventive detention and attacks. This assertion of presidential authority has not been

significantly countered.79 (Clearly the last area, “deploy military force without congressional approval” is

too loosely worded and needs to be tightened up or it would create a rather large topic).

However, we want to be clear that not all of these powers must be included and these do not have

to be the only presidential war powers that can be included. There are many other issues such as

authorization to use nuclear weapons, regulation of military personal, operation of military courts and

other matters that could be debated and are discussed within the literature. We selected these areas

78

As a warning, we did not research the specific wording we use here to describe these war powers. We merely

provide some idea of what they could be, but encourage wording papers to more closely examine the terms used

here. 79 Jules Lobel, “Article: Conflicts between the Commander in Chief and Congress: Concurrent Power over the

Conduct of War,” Ohio St Law Journal, 2008, pp. Lexis.


listed above because they appear to be the most recently and frequently debated issues in the literature

base.

E. Example Resolutions

• USFG List/Limited -- Resolved: That the United States federal government should increase

and/or enact statutory [limitations/restrictions] on the [Commander-in-Chief/presidential war]

powers of the President of the United States to: designate and detain enemy combatants;

conduct covert military operations; use domestic wiretapping; or deploy military forces without

congressional approval.

• USFG non-list/Broad wording - Resolved: That the United States federal government should

increase and/or enact statutory [limitations/restrictions] on the [Commander-in-

Chief/presidential war] powers of the President of the United States.

• Passive Voice/Limited - Resolved: That the [Commander-in-Chief/presidential war]powers of

the President of the United States should be substantially [restricted/limited] in one or more of

the following areas: designate and detain enemy combatants; conduct covert military

operations; use domestic wiretapping; or deploy military forces without congressional approval.

• Passive Voice/Broad - Resolved: That the [Commander-in-Chief/presidential war]powers of the

President of the United States should be substantially [restricted/limited].

VII. Recommendation of the authors

We strongly recommend the inclusion of this controversy paper onto the 2013-2014 topic

ballot. Given the timeliness of the topic and the clear controversy present in discussion of presidential

war powers, we think this controversy would produce excellent debates for the college debate

community. The literature base is rich, with many peer-reviewed policy and legal articles and books, and

allows for well-defensible policy and critical investigations into presidential war powers.

restrict presidential war powers controversy paper

Documents

presidential powers

preventive war powers

use of war powers

central controversy

controversy paper proposal

critical approaches

lengthy controversy

wayne state osos john