CIA Affirmative
1ac
plan
The United States federal government should curtail executive surveillance of
Congressional intelligence committee activities.
separation of powers
Senate investigations of CIA activities are clouded by CIA surveillance – they
monitor, distort, and delete information in Senate Committee hearings by
hacking congressional servers
RT 15 (“White House knew CIA spied on Senate torture investigators – report”. 16 January 2015. http://rt.com/usa/223179-whitehouse-cia-senate-spying)//JuneC//
A report by the CIA inspector general allegedly shows that the agency consulted the White House before directing officers to spy on
Senate Intelligence Committee staffers investigating the CIA’s post-9/11 torture program. The inspector general’s report – which
was completed in July but only released Wednesday – reveals a Memorandum for the Record written by an agency lawyer, which
says that CIA Director John Brennan spoke with the White House Chief of Staff about how sensitive internal documents (the socalled Panetta Review) had wound up in the Senate investigator’s hands, the Huffington Post reported. The memo’s author cautions
the director that speaking with the White House further could be viewed later as the White House interfering in the CIA’s
surveillance on Senate staffers. CIA director John Brennan’s alleged consultation with White House Chief of Staff Denis McDonough
also came before it was revealed to Sen. Dianne Feinstein (D-Calif.), then chair of the Senate Intelligence Committee, that the agency
was keeping tabs on the torture investigation. Feinstein
said in March 2014 that the CIA’s computer search
on Senate investigators likely violated the constitutional separation of powers, and that the
CIA made some documents that were previously provided inaccessible. She also stated that
the removal of the documents was ordered by the White House, adding that when the
committee approached the White House, it denied giving the CIA any such order. “We have no
way to determine who made the Internal Panetta Review documents available to the
committee,” she said. “Further, we don’t know whether the documents were provided
intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower.” The
Panetta Review was a series of more than 40 draft documents related to the CIA’s detention
and interrogation program, and contained classified information derived from sensitive
sources and methods. Reportedly, the inspector general report adds that two lawyers and three IT personnel sifted
through a walled-off hard drive on the Senate’s side of a shared computer network and determined that the documents did exist on
the Senate staffer’s side. The lawyer’s memo said Brennan ordered the team to “pursue all available options” to determine how
Senate investigators had accessed the material, a fact Brennan denies. He says he only asked lawyers how staff had obtained the
internal CIA material. The White House declined to comment when the Huffington Post contacted them about allegations in the
inspector general’s report, as did the CIA. Earlier
this week, a CIA accountability board said the agency did
not do anything wrong when it searched investigators’ files. The panel found that the CIA
made a “mistake,” but its behavior "did not reflect malfeasance, bad faith, or the intention to
gain improper access to SSCI [Senate Select Committee on Intelligence] confidential,
deliberative material."
This wrecks CIA oversight of the CIA – Senate committee judgement is severely
clouded by this surveillance
Freeman 5/8 (Alex. Solicitor (English law) at Hill Dickinson LLP, Contributor - Legal Affairs at Business Traveller UK, Senior
Executive Advisor at CAPA. “Senate Intelligence Committee Demands Apology From CIA, Ignores Torture Victims”. 8 May 2015. The
Fifth Column. http://thefifthcolumnnews.com/2015/05/senate-intelligence-committee-demands-apology-from-cia-ignores-torturevictims)//JuneC//
Washington, DC (TFC) – CIA
Director John Brennan has admitted that the spy agency infiltrated the
computers of the Senate Intelligence Committee in January 2014, but has neither admitted
that the actions were improper nor has he committed to refraining from hacking
Congressional files again. In a classified letter, Intelligence Committee Senators Ron Wyden
(D-OR), Martin Heinrich (D-NM), and Mazie Hirono (D-Hawaii) have demanded that the CIA
never again violate the Constitutional separation between the Executive and Legislative
branches. At the time, the Intelligence Committee was gathering evidence and testimony on the use of torture by the CIA.
Through Fifth Column investigations, we have learned that the use of inhumane methods in Iraq have both violated the Geneva
Conventions, and have led directly to the increase in violent extremists and beheadings in Iraq. In an attempt to stay one step ahead
of the Senate Committee, CIA operatives infiltrated the computers of staff members of the Senate Committee. Dianne Feinstein said
in a release, “The bottom line is that the CIA accessed a Senate Intelligence Committee computer network without authorization, in
clear violation of a signed agreement between the committee and former Director Leon Panetta.” Between January and July of 2014,
Director Brennan repeatedly told both Congress and the American public that no such data breach had occurred. However, by the
end of July, he began to come clean under mounting pressure. An Inspector General investigation quickly led Brennan to apologize
to Feinstein and Committee Chair Saxby Chambliss for acting “in a manner inconsistent with the common understanding” that no
such violations would occur, a reference to the letter mentioned by Feinstein. Feinstein herself viewed the apology as “positive first
steps” in resolving the conflict. Now,
nearly a year later, the Torture Report has been released and the
Senate Intelligence Committee is still more concerned with the CIA hacks of its computers
than the revelations that members of the American government and military were
responsible for war crimes, torture, and the radicalization of an occupied people. According to
a press release issued by Senator Wyden’s office today, the three Senators said to Brennan in
their letter, “In our judgment your handling of this matter has undermined that confidence.
We call on you to acknowledge that this search was improper, and commit that these
unacceptable actions will not be repeated.” The Senators have asked Brennan to respect US
laws and Constitution, maintain the appropriate checks and balances between branches, and
retract incorrect statements made between January and July of 2014. Since the data breach
occurred, the Justice Department has investigated whether or not to file any charges against
involved CIA operatives or complicit Senate staffers. While the investigation concluded
without any charges being filed, Senator Wyden has previously stated that any such act
perpetrated by a 19-year-old would have resulted in severe jail time for the hackers. Wyden
similarly maintains that similar infiltrations of cell phones and computers owned by private citizens should be abandoned by the US
Government and its agencies. The acknowledgement of government hacking of citizen data stems from Section 215 of the Patriot
Act, which is up for renewal in June. So far, Wyden’s office will not predict if it will be renewed, but does cite growing opposition to
bulk data collection. The recent ruling by the Second Court of Appeals may bolster Congressional support to let Section 215 expire.
In January, about the time that Brennan was speaking to the Council on Foreign Relations about the threat of hackers around the
world, ISIS and Iranian nuclear weapons, Wyden released a statement regarding torture. His statement indicates that the CIA is
trying to pull all copies of the report, and cover up its findings. Wyden states: The CIA’s leadership continues to double down on
denials about the agency’s history on torture, but their claims are contradicted by their own internal review. They
were so
concerned about the Intelligence Committee finding the Panetta Review that they even spied
on Senate files to see if the committee had obtained it. The Fifth Column News agrees completely with
Senator Wyden, when he says that the report should not be covered up or retracted. Whether the Patriot Act is renewed, or anyone
in the CIA faces consequences for hacking into Senate intelligence Committee computers, or Director Brennan retracts statements
The
major media story and Congressional or public outrage related to the Torture Report is not the
fact that Americans committed torturous acts against an occupied population that led to their
increased brutality. Instead, the major story is still the CIA spying on Congress, something local and federal agencies do to
and promises to never hack Congress again, one thing remains unchanged in this entire political theater performance.
the American people daily. This, as well, with complete impunity.
Curtailing CIA surveillance of the Senate is key to effective Senate oversight –
legal reassurance is key
Reichbach 5/8 (Matthew. the editor of the NM Political Report. The former founder and editor of the NM Telegram, Matthew
was also a co-founder of New Mexico FBIHOP with his brother and part of the original hirings at the groundbreaking website the
New Mexico Independent. “Heinrich wants CIA chief to pledge to not access Senate computers”. 8 May 2015. The NM Political
Report. http://nmpoliticalreport.com/3505/heinrich-wants-cia-chief-to-pledge-to-not-access-senate-computers)//JuneC//
Three U.S. Senators asked CIA director John Brennan to acknowledge that the agency improperly accessed Senate files and want the
director to pledge that it will not happen again. CIA logoU.S. Sen. Martin Heinrich, D-N.M., was one of the three Senators to sign
onto the letter, along with Ron Wyden, D-Ore., and Mazie Hirono, D-Hawaii. All
three are members of the Senate
Intelligence Committee. “It is vitally important for the American public to have confidence
that senior intelligence officials respect US laws and the Constitution, including our
democratic system of checks and balances,” the letter to Brennan said. “In our judgment your
handling of this matter has undermined that confidence. We call on you to acknowledge that
this search was improper, and commit that these unacceptable actions will not be repeated.”
The searches of the computers came as the committee was investigating the CIA for torture of detainees. The report was released in
December of 2014. Heinrich slammed Brennan when the access of the computers was revealed.
Heinrich and Wyden have been some of the more vocal critics of the CIA in recent years. In July of 2014, the CIA admitted it had
accessed computers of members of the Senate Intelligence Committee. Brennan apologized. CIA
Director John Brennan
apologized to Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) and
other committee leaders and said he was “committed to correcting any shortcomings” related
to the incident, a spokesman for the spy agency said. Brennan has created an “accountability board,” to be
chaired by former Sen. Evan Bayh (D-Ind.), to review the inspector general’s findings and recommend disciplinary action, if
necessary, spokesman Dean Boyd said. Feinstein, in a statement, called the apology and creation of the accountability board
“positive first steps.” Her restrained endorsement suggested that the conflict between the agency and its congressional overseers
may continue. The Senators want more. “In June 2014, senior officials from the FBI, NSA and the Office of the Director of
National Intelligence all testified that it would be inappropriate for their agencies to secretly search Senate files without external
authorization,” the letter reads. “To
date, however, there has been no public acknowledgement from
you or any other CIA official (outside the Office of Inspector General) that this search was
improper, nor even a commitment that the CIA will not conduct such searches in the future.”
“This is entirely unacceptable.” The full letter is available below. The Senators also said they attached a classified letter
“on another topic” where they wanted Brennan to “correct the public record.” That letter was, obviously, not attached to the letter
distributed to media.
Untampered Senate oversight of CIA activities is key to reigning them in by
creating public accountability
Dilanian 15 (Ken. Associated Press. “Torture Report Provided Rare Public Accountability for CIA”. 9
March 2015. The New York Times. http://www.nytimes.com/aponline/2015/03/09/us/politics/ap-us-overseeing-intelligenceexpanded-.html?_r=0)//JuneC//
Washington — In February
2009, the Senate intelligence committee gathered in a soundproof
room to learn the stomach-churning details of the brutal interrogations the CIA conducted
with its first important al-Qaida prisoners. Committee aides distributed a report based on a review of messages to
CIA headquarters from two of the agency’s secret overseas jails. Included was a 25-page chart with a minute-by-minute description
of 17 days during which the first detainee, Abu Zubaydah, was kept awake, slammed into walls, shackled in stress positions, stuffed
for hours into a small box and waterboarded to the point of unconsciousness. The captive ranted, pleaded and whimpered, an
accompanying text said, but he never provided the information about brewing terrorist plots that the CIA thought he had.
Senators were aghast. Some muttered that such horrific acts by Americans should never see
the light of day, recalled aides who spoke on condition of anonymity because they could not
publicly discuss a classified session. Other senators voiced outrage over how this new account
differed from the antiseptic CIA descriptions of “enhanced techniques.” A few weeks later, the
committee voted, 14-1, to begin a full investigation into the CIA’s post-Sept. 11 detention and
interrogation practices. The resulting report, a summary of which was released in December,
was a rare instance of an oversight committee seeking to hold the CIA accountable in a public
way. It also was the most detailed critique of the CIA in a generation. And it raised this question: How
well run are other CIA programs, such as targeted killing with drones or the secret effort to train and arm Syrian rebels?
Congressional intelligence committees long have been accused of being “captured” by the
agencies they oversee. When they do expose and correct problems, it usually happens behind
closed doors. Even for those who dispute some of the central conclusions, the 518-page
summary of the 6,770-page classified study shows how a rigorous examination of a secret
agency can expose misconduct, incompetence and bureaucratic spin. Based on a review of 6
million pages of CIA documents, the classified report covers 12 bound volumes. Senate
investigators pored over records few outsiders ever see. Cables, chats, emails, internal memos
and interview transcripts detailed not just the official story but the messy behind-the-scenes
threads, including internal criticism and office gossip. The early bipartisanship quickly faded. Republicans
withdrew from the investigation and at times actively opposed it. Written by Democrats working for California Sen. Dianne Feinstein,
then the Senate intelligence committee’s chairwoman, the report concluded that the brutal CIA interrogations failed in every case to
produce unique, life-saving, otherwise unavailable intelligence, and that the CIA repeatedly distorted this fact. In dissent,
Republicans and CIA officials say the report cherry-picks evidence, obscures context and suffers from the absence of interviews,
which were not possible because of a pending criminal investigation. Still,
the investigation forced the spy agency
to publicly admit that it mismanaged the interrogation program, failed to punish misconduct
and detained people it shouldn’t have. Yet the intelligence committees have never taken a similar look at what is
now the premier counterterrorism effort, the CIA’s drone-killing program, according to congressional officials who were not
authorized to be quoted discussing the matter. Intelligence committee staff members are allowed to watch videos of CIA drone
missile strikes to monitor the agency’s claims that civilian casualties are limited. But these aides do not typically get access to the
operational cables, message traffic, interview transcripts and other raw material that forms the basis of a decision to kill a suspected
terrorist. Nor have they been able to examine cables, emails and raw reporting to investigate recent perceived intelligence lapses,
such as why the CIA failed to predict the swift fall of Arab governments, Russia’s move into Ukraine or the rapid military advance of
the Islamic State group. And there have been no public oversight reports on the weak performance of the CIA’s multibillion-dollar
“nonofficial cover” program to set up case officers posing as businessmen, which has met with some criticism. The
six-year
Senate investigation “illustrates both the strengths and the weaknesses of the oversight
process,” said Steven Aftergood, an intelligence expert with the Federation of American
Scientists. “It represented a massive allocation of effort, tens of millions of dollars, years of
research, millions of documents, all to generate a narrative account that will dominate public
understanding of CIA interrogation for decades to come.” But no one has been held accountable for the
conduct described in the report, there is nothing in the law that would prevent the CIA from repeating it and there is no prospect of
a similar investigation into other covert intelligence programs. Since the underlying CIA records remain secret, there always may be
disagreement about whether detainees who were brutalized subsequently provided information important to the hunt for Osama
bin Laden, for example, even if it’s clear that CIA got much of its intelligence in that case from other sources. An anti-torture
advocate, Georgetown law professor David Cole, wrote recently that he wasn’t convinced by the report’s argument that harsh
measures were ineffective in every instance. The latest opinion polls find widespread support for the CIA’s actions and for the notion
that the government may occasionally need to torture terrorists. But if the report did not immediately change public sentiments or
settle the question of whether CIA torture worked, it clearly documented dozens of instances of the CIA exaggerating and misstating
the fruits of these interrogations to justify its actions, including inaccurate testimony to Congress about the bin Laden case. CIA
officials reject some of those criticisms but embrace others. “In some instances, we simply failed to live up to the standards that we
set for ourselves and that the American people expect of us,” CIA Director John Brennan told reporters at CIA headquarters in
December. It is difficult to imagine him uttering those words in the absence of the Senate report.
That’s the only way to limit the authority of the CIA, but their DA’s were nonuniqued by the December report
Gorman 14 (Siobhan is an intelligence correspondent at the wall street journal, 7/2, “Why Congress and the CIA Are Feuding”,
http://blogs.wsj.com/briefly/2014/07/02/why-congress-and-the-cia-are-feuding-the-short-answer/)//cc
Relations between the Central Intelligence Agency and Congress have deteriorated into
hostility—and the bad blood could get worse this summer. A page-one article in The Wall Street Journal examines
the tension over a Senate report on a CIA interrogation program. What’s the controversy about? A three-year Senate
intelligence committee investigation into the CIA’s controversial post-9/11 “enhanced
interrogation” program produced a report that cited multiple instances of alleged wrongdoing and
mismanagement at the CIA. The CIA disputes many of the conclusions of the still-classified report. The CIA has said the
Senate committee may have inappropriately obtained a document known as the “Panetta Review,” the CIA’s internal analysis of
documents it provided to the committee. The agency made the accusation after a review of computer usage. The Senate committee
has called the CIA’s computer review inappropriate, saying it obtained the document properly. The Justice Department is examining
competing allegations of wrongdoing by the CIA and the Senate committee. What does the report say? It’s still classified, but
officials have said privately it concludes the
CIA misrepresented the program to both the Justice
Department and Congress. A central finding disputes the CIA’s claim that interrogations provided information that
couldn’t be obtained any other way and that helped thwart terrorist plots. The CIA last June delivered a classified response to the
Senate report, arguing that the program was effective and provided critical counterterrorism information. Portions of the report and
the CIA’s response are expected to be declassified in coming weeks. What does CIA Director John Brennan say about the report? At
his confirmation hearing in 2013, he said the report raised questions about “a lot of the information that I was provided” earlier
about the interrogation program. If confirmed as director, he said, he planned to put his stamp on the CIA’s response before it was
submitted to the Senate. Since becoming director, Mr. Brennan says, he has concluded the report did show some CIA
“shortcomings” and “failures,” but he also found fault with many of its details and conclusions. Wasn’t
the CIA program
shut down five years ago? Why does this matter now? The current fight is over how the history of that program will be
written, and to what degree allegations of CIA mismanagement of parts of the program will affect its operations today.
Congressional officials who have read the report say the CIA needs to be held accountable for any
wrongdoing. The CIA is seeking to put the matter to rest.
Congressional oversight of the CIA is key to separation of powers – it prevents
executive abuses founded on a violation of the speech and debate clause
Horton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for
reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in
the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner,
among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and
America’s Stealth Warfare” by Scott Horton, Salon,
http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)
As this controversy developed, it became clear that Senate investigators had read the agency’s own internal review and therefore
knew that the agency’s criticisms of the report were specious. This had stung figures at the CIA who were trying to manage the
fallout from its torture and black site programs. The CIA never actually contacted the Senate committee and asked how it had
come by the Panetta review. Instead, perhaps convinced that the information had been gained improperly (though that is a strange
word to apply to an oversight committee’s examination of documents prepared by the agency it is overseeing), someone at the
agency decided
to break into the Senate computers and run searches. On January 15, 2014,
Brennan met with Feinstein and had to acknowledge that the CIA had run searches on the
Senate computers. Far from apologizing for this intrusion, Brennan stated that he intended to
pursue further forensic investigations “to learn more about activities of the committee’s
oversight staff.” The Senate committee responded by reminding Brennan that as a matter of
constitutional separation of powers, the committee was not subject to investigation by the
CIA. It also pressed to know who had authorized the search and what legal basis the CIA believed it had for its actions. The CIA
refused to answer the questions. By January 2014, before Feinstein gave her speech, the controversy had reached a fever pitch.
Reports that the CIA had been snooping on the Senate committee and had gained unauthorized access to its computers began to
circulate in the Beltway media. Through its surrogates, the CIA struck back. Unidentified agency sources asserted that Senate staffers
had “hacked into” CIA computers to gain access to the Panetta report and other documents. The staffers had then illegally
transported classified information to their Capitol Hill offices, removing it from the secure site furnished by the agency. In addition,
the Justice Department had become involved. The CIA inspector general, David Buckley, had reviewed the CIA searches conducted
on Senate computers and had found enough evidence of wrongdoing to warrant passing the file to the Justice Department for
possible prosecution. Perhaps in a tit-for-tat response and certainly with the aim of intimidating his adversaries, the acting CIA
general counsel, Robert Eatinger, had made a referral of his own, this time targeting Senate staffers and apparently accusing them of
gaining improper access to classified materials and handling them improperly. Secrecy was unsheathed as a sword against an
institution suddenly seen as a bitter foe: the U.S. Congress. Eatinger’s appearance as a principal actor in this drama was revealing. He
was hardly an objective figure. A key point for the committee investigators was the relationship between CIA operations and the
Department of Justice, and particularly the process the CIA had used to secure opinions from Justice authorizing specific
interrogation techniques, including waterboarding, that amounted to torture. As the senior staff attorney in the operations
directorate, Eatinger would certainly have played a pivotal role throughout the process leading to the introduction of torture
techniques. The Senate investigators concluded that the CIA had seriously misled the Justice Department about the techniques being
applied in an effort to secure approvals that would cover even harsher methods than those described, and Eatinger was right at the
center of those dealings. Indeed, Eatinger’s name appears 1,600 times in the report. Like many agency figures closely connected
with the black sites and torture program, Eatinger had skyrocketed through the agency, ultimately becoming senior career lawyer
and acting general counsel. No figure in the agency would have had a stronger interest in frustrating the issuance of the report. All
those involved with the torture and black sites program risked being tarnished by the report, but few more seriously than the CIA
figures who dealt with the Justice Department. Moreover, other risks were looming on the horizon outside the Beltway. As Eatinger
struggled to block the Senate report, courts in Europe were readying opinions concluding that the CIA interrogation program made
use of criminal acts of torture and that the black site operations amounted to illegal disappearings. The United States was not
subject to the jurisdiction of these courts, but its key NATO allies were, and the courts would soon be pressing them to pursue
criminal investigations and bring prosecutions relating to the CIA program. Those involved in the program, including Eatinger, thus
risked becoming international pariahs, at risk of arrest and prosecution the instant they departed the shelter of the United States.
Feinstein had refused press comment throughout this period, but other sources from the committee or its staff had pushed back
with blanket denials of these accusations. U.S. media relished the controversy and presented it in typical “he said/she said” style.
But rarely is each view of a controversy equally valid or correct. Indeed, within the agency suppressing media coverage of the highly
classified detention and interrogation program was considered a legitimate objective, which helps to account for the numerous
distortions, evasions, and falsehoods generated in Langley with respect to it. But the CIA’s campaign against the Senate report was
approaching a high-water mark of dishonesty. As
Feinstein ominously noted, these developments had a
clear constitutional dimension: “I have grave concerns that the CIA’s search may well have
violated the separation of powers principle embodied in the United States Constitution,
including the speech and debate clause. It may have undermined the constitutional
framework essential to effective oversight of intelligence activities or any other government
function.” * A fundamental concept underlying the American Constitution is the delicate
rapport established between Congress and the various agencies of the executive. The massive
government apparatus, including the ballooning intelligence community, is controlled by the executive. Yet the individual
agencies, including the CIA—called into existence and defined by acts of Congress—operate
using money that Congress gives them, subject to any limitations Congress may apply. The
legislative branch exercises specific powers of oversight and inquiry into the work of agencies
of the executive, including the right to conduct investigations, to require documents to be
produced and employees of the government to appear and testify before it, and to issue
reports with its findings and conclusions. Throughout history executives have used the
administration of justice as a tool to intimidate and pressure legislators. To protect legislators
against this sort of abuse, the Constitution’s speech and debate clause provides a limited
form of immunity for members of Congress. The Supreme Court has confirmed that this immunity extends to
congressional staffers, such as Senate committee staffers, when they are supporting the work of their employers, and protects them
against charges of mishandling classified information. Feinstein’s
suggestion that CIA activities had violated
the Constitution and several federal statutes was on point. Eatinger’s decision to refer allegations against
committee staffers to the Justice Department also reflected an amazing lack of understanding of the Constitution and the respective
roles of the two institutions. And so did Brennan’s public statements. Brennan first pushed back against Feinstein’s account, strongly
suggesting it would be proven inaccurate: “As far as the allegations of CIA hacking into, you know, Senate computers, nothing could
be further from the truth. We wouldn’t do that. That’s just beyond the scope of reason in terms of what we would do.” He also
suggested that the Justice Department would be the arbiter of the dispute between the CIA and the Senate: “There are appropriate
authorities right now both inside of CIA, as well as outside of CIA, who are looking at what CIA officers, as well as SSCI staff members
did. And I defer to them to determine whether or not there was any violation of law.”
Reigning in separation of powers violations is key to preventing unchecked war
powers
Barron 8 (David is a Professor of Law at Harvard Law School and Martin S. Lederman, Visiting Professor of Law at the Georgetown
University Law Center, “The Commander in Chief at the Lowest Ebb -- A Constitutional History”, Harvard Law Review, February, 121
Harv. L. Rev. 941, Lexis)//cc
Thus, as
future administrations contemplate the extent of their own discretion at the "lowest ebb," they
will be faced with an important choice. They can build upon a practice rooted in a fundamental acceptance
of the legitimacy of congressional control over the conduct of campaigns that prevailed without substantial
challenge through World War II. Or they can cast their lot with the more recent view, espoused to some extent by most though not all - modern Presidents, that the principle of exclusive control over the conduct of war provides the
baseline from which to begin thinking about the Commander in Chief's proper place in the constitutional structure. We conclude
that it
would be wrong to assume, as some have suggested, that the emergence of such preclusive claims
will be self-defeating, inevitably inspiring a popular and legislative reaction that will leave the presidency especially
weakened. The more substantial concern is the opposite one. The risk is that the emergence of such claims will
subtly but increasingly influence future Executives to eschew the harder work of accepting
legislative constraints as legitimate and actively working to make them tolerable by building public support for
modifications. Over time, the prior practice we describe could well become at best a faintly remembered
one, set aside on the ground that it is unsuited for what are thought to be the unique perils of the contemporary world. Our
hope, therefore, is that by presenting this longstanding constitutional practice of congressional engagement and executive
accommodation as a workable alternative, such forgetting will be far less likely to occur.
Part II reviews the history of the "low est ebb" issue from 178 9 throug h the Civil War. Part III concentrates on the di spute s over this question that arose in the Civil War and its immediate a ftermath. Part IV exa mine s the developments occurring in the e xecutive branch, the Congres s, and the courts throug h Worl d War II. Part V takes the story from Truman
through the Clinton a nd Bus h Admi nistrations. I n Part VI, we explain w hy, in our view, the history matters, and summarize what it shows regar ding Congress' s constitutional aut hority to regulate the conduct of ca mpaig ns. We als o dis cus s some of the re maining puzzle s with respe ct to the "s uperinte nde nce" prerogative that the Commander in Chie f Cla use establis hes. Part VII is a brief concl usion. [* 951 ] II. From Ratifi cation Thr ough the Antebellum Period The practice s of t he political branches during the first deca des a fter the Constitution's ratifi cation offer important insight s into the founding ge neration's understanding of the structure of the new gover nme nt. This is e spe cially true with respect to the very first Congre ss, whi ch include d no fewer than twe nty delegates to the Constitutional Convention. n14 M ore broa dly, the entire peri od fr om ratifi cation to the Civil War is important for w hat it shows about the "practical e xposition" of constitut ional war powers during the new nation's first confrontations with war and the first e mergen ce of a standi ng
military establishment. n1 5 The initial seventy years are also i mportant for understa nding what i mme diately followe d. Those fir st seven de cade s of constitutional development esta blishe d the legal tradition on which Preside nt Lincol n and the Civil War Congress relied in for mulating their ow n war powe rs views. Beca use those views are so often i nvoked in conte mporary exe cutive war power controversi es, their intellect ual lineage merits a thoroug h exa mination. A review of constitutional practi ce betwee n 1789 a nd the Civil War suggests that the Foundi ng-era under standing of the Comma nder in Chie f's ultimate s ubje ction to statut ory control continue d to hol d sway. Although the primary focus of war powers que stions a nd de bates in this period lay elsew here (s uch as on w hether certain cond uct complied with international law), the question of a precl usive Commander in Chie f power, particularly as to troop de ploy ments, was not unk nown. S ome legislator s occasi onally raised constitutional concerns in congre ssional debates a bout proposed statutory
restrictions; but this di d not re flect the e xisten ce of a well-a cce pted view that the President posses sed s uch precl usive power s. Certainly Congress did not act during the first few deca des as i f it assumed the Preside nt enjoye d unche cked aut hority in the field, even in wartime. And wherea s the legislatur e often a fforded t he President substantial dis cretion as to how troops c ould be us ed, it also occa sionally regulated ongoi ng military operations in quite spe cific a nd detailed ways in these early y ears. A review of the deca des that followe d, moreover, reveals no important signs of a di ffere nt legislative practice e merging. The occasional constitutional concern was still voiced in the course of congressi onal de bates, but the [* 952 ] legislature continu ed to ena ct, albeit only on occasi on, i mportant and constraini ng statutory meas ures both while hostilities were underway and in a dv ance of their outbreak. Pe rhaps even more i mporta ntly, with one possible a nd eq uivocal e xception during the Fillmore Administ ration, the Exe cutive itself does not appear to have
argued duri ng the whole of the pre-Civil War period for s uch precl usive authority. Presidents w ould s ometimes construe apparent restrictions in favorable ways, but they also complied with statutes eve n when it see ms clear that they would have preferred not to. To be s ure, there does not appear to be any case in whi ch a Pre sident e xpre ssly acknowle dged that because he la cked a pre clusive constitutional power, he was bound by a statute he thought to be sev erely detrime ntal to the national intere st. It is almost certainly the case , therefore, that considerations of politics and poli cy played a key constraining role indepe nde nt of legal judgme nt. But it is striking nonetheles s that throug hout this period - again, with one cryptic e xception - Presi dents did not act or speak as i f they possess ed the constitutional authority to disregard attempt s by Congress to i mpose restrictions on their power s over the military, in war or peace. Their actual posture, at least formal ly, was much more accepting of congres sional power, and in fa ct, some administrations duri ng
this period is sue d legal opini ons that concede d the constitutional plan precluded them from taking a more de fiant stance. A. The Back drop of the Laws of War The first seven deca des of constitutional practice were not marked by a sur feit of legislative action spe cifi cally restricting the Presi dent's manne r of engaging the e ne my during battle. Thi s was not the product of a conse nsus that the Commander in Chie f m ust be unfettered in deali ng with the ene my. It is better attributed to two ot her fact ors. First, Congress often made the unsurprisi ng policy judgment that the Presi dent shoul d be affor ded br oad discretion in de cidi ng how to fight wars. In addition, and of more direct relevance for prese nt purpose s, the politi cal branches, a s well as courts and s cholars throug hout the period, share d t he belie f that the Presi dent was appropriately bound i n his conduct of military operations by a body of widely acce pted inter national legal nor ms - namely, the "laws and usages " of war. T he laws and usages of war were customary, but they were still understood to
constitute a critical compone nt of the legal structure withi n which the Presi dent exercise d his war powers. Indeed, t here was a virtual consens us a mong the actors in t he political branches, as [*95 3] well as the courts , concer ning their binding force . n16 T hus, notwithstanding rece nt suggestions that the Framers wishe d to ens ure ma xi mum exe cutive fle xibility and di scretio n in war, n17 it is a mi stake to think that they envisioned the Pre sident would be acting in a law-free z one whe n e mploying military force. Precis ely beca use war was at issue, it was underst ood that the Preside nt would be op erating in a conte xt that was quite s ubstantially legalized. [*95 4] The broa d acceptance of this legal fra mework no doubt tempered the legislative impulse to i mpose indepe nde nt strictures by statute. n18 The pros pect of additional restrictions likely raised the understa ndable concern t hat they might unilaterall y tie the hands of the young nation i n its confli cts with belligerents in a manner that would not be re cipro cated by our ene mies. T hat makes it all the more
striking that Congress e nacte d so much additional legislative regulation during this peri od and in subseq uent decades, as we e xplain below. At the sa me time, there wa s great concern i n the young republic ab out the nation's taking actions that, under customary internati onal law, might pr ovoke an a ctual war. n19 Accordingly, throug hout this period Congress was careful to exercise its legislative power s o as to e nsure that the E xecutive would not, in the cour se of prote cting the national defense, unnece ssarily engage in conduct that would, under the laws of war, justi fy other nations to make war agai nst the United States. Courts s eemed to s hare this concern. In prominent cases, the Supre me Court treated the question of w hether a given executive acti on complied with the laws a nd usage s of war as if it were insepara ble from the question of whether Congre ss, in aut horizing the particular military confli ct at issue, ha d inten ded to free the Presi dent to e xerci se the full comple me nt of powers that customary international law would sanction i n the ca se of a
war. In this regard, early constitutional [*955 ] analysis often proceede d as if there were a deep interrelationshi p between congressional power to defi ne the terms o f battle and the customary international laws of war, at least in part in or der to en sure that the power to de clare a full -fle dged war woul d remain with the Congres s. n20 B. The Washi ngton Administration: Organi zation of the Military Establishment and the Calling Forth of the State Militia With this cr ucial ba ckground in pla ce, we ca n now e xa mine the first phas e of the history o f the statutory regulation of the fe deral military forces - a period coexte nsive with the Was hington Admi nistration. The young nation di d not engage i n military conflicts with foreign nations during Wa shingt on's ten ure as Presi dent; the most prominent war powers questions of the time concerne d whether Congre ss had i n fa ct approve d spe cifi c offe nsive actions (i n particular, against the Wabas h India ns on the western frontier ). There were therefore no promi nent de bates about whether Congress coul d impose li mits
on the Presi dent's constitutional war authorities. Nevertheles s, this initial period of constitutional pra ctice offers some evide nce on three matters that she d light on attitudes a bout the extent (or e xisten ce) of the Preside nt's precl usive war powers . In each cas e, the eviden ce ten ds to reinfor ce what appears to have been t he assumpti on of per missibl e statutory control, even as to t he conduct of ca mpaigns , that ran throug h the Founding era. 1. Statutory Regulation of the Use of Military Force. - The very first statute Congress ena cted to continue the military establishment fr om the preconstitutional sy stem is instructive. It spe cifie d that U.S. troops "s hall be governe d by the rules a nd articles of war whi ch have been establi shed by the Unite d States in Co ngress ass embled, or by such rules and articles of war, as may hereafter by law be e stablishe d." n21 In other words, the new Congre ss did not signal a desire to leave the Presi dent free of statut ory encumbrances in e xercisi ng his powers of command in batt le. Instea d, it imposed on the ar med for ces
themselves t he rules pr omulgated in the Articles of War that the preconstitutional Congress ha d ena cted in 1 775 and 1776 . n22 For the most part, those preexi sting Articles of War did not materially constrain the Comma nder in Chie f himself, at least not in the conduct [*956 ] of war. Two other piece s of eviden ce fr om this period, however, s ugg est there was at least some comfort with the notion that Congre ss also had the aut hority to set forth legislative regulations concerning operational military judgme nts that pertaine d directly to how the Exe cutive could use force . Speci fically, in the T hird Congre ss, during a debate over a bill to continue and reg ulate the military establishme nt, no les s an authority than James Madi son proposed a n ame ndment pr oviding "that the troops s hould only be employed for the protection of the fr ontier," n23 although the H ouse ultimately voted dow n the pr oposed geographic restriction. n2 4 There is als o some important early eviden ce of executi ve bra nch acceptance of congressi onal power to exer cise detailed control over
how force would be used , at least at the outset of spe cifi c confli cts. Begi nning in 1785, the pirates of Algiers embarke d on a campaign of attacks on A merica n ships in which they seize d U.S. nationals in or der to de mand ransom. I n a 1790 re port, after Algerian pirates ha d ca ptured eleve n U.S. shi ps and more tha n 100 pris oner s, Secretary of State Jefferson acknowledged that the legislat ure controlled not only the ge neral que stion o f whether to offer a military response at all, but als o the nature of any s uch response : "If war, they will consi der how far our ow n resource s shall be called forth, and how fa r they will enable the Exe cutive to engage, in the for ms of the constitution, t he co-operation of other Powers. " n25 2 . Statutory Regulation of the Military Establishme nt. - For the very early years of constitutional practi ce, we have only these frag mentary indi cations of legislative and exe cutive attitudes about the legitima cy of reg ulating the use of force by statute. The s parsen ess of the re cord may be due, in part, to the a bsen ce of anything like a moder n
military establishment duri ng this period - a lack for whi ch Congres s was largely responsible. Beca use the founding ge neration was wary of standi ng armies a nd e xpe cted that most national military functions could and woul d be per for med by state militia in the service of the federal governme nt, Congre ss kept the military establishme nt in the early years very modest. I n Septe mber 17 89, for exa mple, Congress pa ssed a law "re cogni zing" the military establishment of about 700 [*957 ] troops that ha d remained fr om the preconstitutional system. n26 And althoug h Congress did gradually increase the si z e of the military, n27 there would be no si gni fica nt buildup until the pros pect of war with France during the Ada ms Administration. This circumstance gave Congress a powerf ul mea sure of de facto control. So long as t he President lacked a sig nifi cant non-militia for ce to command, he would neces sarily be depe nde nt on legislative appr oval for the conduct of most military affairs abr oad, even at the operational level. T o launch an attack by sea, for e xample, he
might have no choice but to spell out to Congress j ust what battle plan he envisioned, i f only in or der to spe cify the funding and supplies the legislat ure woul d have to allow hi m to raise in or der to impleme nt such a battle plan. T o be s ure, Congress signaled early on t hat it had no gen eral interest in policing tactical de cisions in thi s way, and it enacte d a number of statutes that e xpre ssly recog nized the President's broa d dis cretion over the use of the (limited ) troops under his comma nd. n28 But that did not mea n the legislature resiste d altogether the te mptation to i mpose dire ct and detaile d constraints on the military establis hme nt it was slowly fortifying. (a) T he Nature of Congres sional Regulations of the Military Establishment. - D uring the fir st years of constitutional pra ctice, Congres s impose d numerous speci fic rule s for the organization and gover nme nt of t he arme d for ces, concerni ng matters l arge and small. T he comprehe nsive statute of 1790 providing for a per mane nt military establishment is the most telling e xample. It des cribe d the sorts of
men who woul d constitute the ar med forces ("able -bodied men, " between the ages of eighteen a nd forty-si x, "not under five fe et six inches i n height"), divide d the m into regiments and battalions, prescri bed re muneration and rat ions, a nd once again directed that the pree xisting Articles of War were t o govern conduct until statutory amen dment. n29 [*9 58] Als o striking were several enact ments creating and providing for naval arma me nts, which spe cifie d pre cisely how many guns woul d be on each ship a nd how ma ny warrant officers of every stripe would be e mpl oyed, from ye oma n of the gun room to carpenter's mate s to cooks. n30 Those statutes even pres cribed weekly menus for the ships: o n Tues days, the ration included potatoes or tur nips, a nd puddi ng; on T hurs days, a half -pi nt of peas or bea ns. n31 Congress al so us ed the power of the pur se to deli mit what would otherwise be the Commander in Chie f's br oad dis cretion t o command a nd structur e the military establishment, and its spe cificati ons for military-relate d disburse ments were often
quite detailed. n32 Such intrusive a nd detailed reg ulations re flecte d a general ass umption that Congres s had the power to restri ct at least some of the a uthorities that the Comma nder in Chief w ould otherwise be constitutionally entitled to e xer cise in the absen ce of statutory limit s. That is to say, Congr ess did not appear to regar d the constitutional powers e stablishe d by the Commander in Chief Clause a s necessarily precl usive of confli cting statutory regulation. T his early legislative practice als o suggests that Congre ss did not labor under the view that it was subject to an overarchi ng constraint agains t regulating the military in too detailed a fa shion, at least during peaceti me. It clearly assume d it poss esse d the constitutional authority to impose quite niggling restrictions on the organi zation, a ction, and composition of t he arme d for ces. How else to e xplain its decisi on to esta blish by statute the preci se men u for the meal s that sailors were to be served? As these re strictions wer e impose d outsi de the conte xt of war, however, one cannot know for certain
whether some allowance for greater constitutionally indefea sible e xecutive discretion might have been a cce pted in the event actual hostilities were underway. (b) Executive Branch Re sponses to D etailed Congressi onal Reg ulation of the Military Establishment. - Even though Congres s impose d detailed r egulations on the buddi ng military establishment in peaceti me, the e xe cutive branch was har dly pleased by many of the m. In conseq uen ce, there was no shortage of i nterbranch dis putes with regard to legi slative control of the military establishment and militia. In fa ct, the Wa shington, Adams, and Je fferson Administrat ions were marke d throug hout by pit che d struggles over how much le eway the exe cutive branch e njoyed to use appropriations as it thoug ht most effica cious, and many of these fights concerne d military appropriations i n [*9 59] particular. n3 3 To avoid w hat appeare d to be statutory li mits on a ppropriations, the e xe cutive branch during this period res orted to "various compensat ory devi ces " that allowed it to "for mally admit[] the principle
of Congres sional control " while at the sa me time "rela xing the s everities of its application." n3 4 Thes e practices were es pecially common in the conte xt of military spen ding, where the Trea sury Depart ment c onclude d that broa d, general grants for the War De partme nt could be "issue d accordi ng to exig encies " when "requi site for the publi c service. " n3 5 This "practical " applicati on of the appropriations laws regularly provoke d the ire of many in Congre ss, es pecially Re prese ntative (and future Treas ury Secretary) Albert Gallatin, who viewed the pra ctice in the military and naval establ is hme nts, in particular, as "making the law a mere far ce, since the officers of the Trea sury did not consider themselves as at all bound by the s pe cific sums." n36 Signifi cantly, how ever, as far as we have been able to determi ne, the e xecutive branch never once a sserted any constitutional prer ogative to disregard any of these statutory limits, let alone a ny such authority under t he Comma nder in Chie f Claus e. Althoug h some moder n Presidents, beginning with Tr uma n, n37 have
used the Comma nder in Chie f power to j ustify disregar ding spendi ng require ments set forth i n military appropriations, the first Presi dent's Administration never [*9 60] did. Instead, the Treas ury Department (heade d first by Alexa nder Ha milton and then, a fter 179 5, by Oliver Wol cott) consiste ntly enga ged in what it called a "pra ctical interpretation" of the appropriations laws, a construction that would avoid "abs urd, or mis chievous conse que nce s" and that would not render any substantive acts of Congress "unsus ceptible of e xecution. " n3 8 Wol cot t explained that Gallatin's e fforts to mi cromanage the executive branch through "minute subdivisions of a ppropriations " would have "continually tended to .. . paralize every branch of the public service." n39 Thus, it was the duty of the Treas ury, wrote Wol cott, "s o to interpret the Laws, as to counteract this ten den cy as much a s possible. " n40 T his form of statutory interpretati on, in Wol cott's view, was not only "reasonable" but, just as i mportantly, "at all times publickly avowed, and well understood, and
deliberately sancti oned by Congress. " n41 Some of thes e interpretations were extre mely aggressive, which sugge sts that the line betwee n constitutionally based defiance and creative construction may have bee n thin whe n it came to infl uen cing what funds woul d be available to the Pre side nt and for what purposes. But whe n Congress e ffe ctively fore close d this sort of creative const ructio n, the e xecutive branch had not laid any legal predi cate for as serting a constitutional trump. n42 N o executive officials, as far as we are [*9 61] aware, ever e spoused a ny constitutional the ory under which Congress would not have the last word i f it chose to impose it - not even as a ba ckground constitutional principle that might bolster the strained interpr etations bei ng pres sed. 3. Statutory Reg ulation of the U se of the Militia. - Important though regulation of the national military establishment was, the size and s cope of that esta blishment re mained modest. As a result, thr oughout the Wa shington Admi nistration, war powers de bat es often centered on the Pre sident's
use and control of the state militia. These were t he military for ces that the Framers assume d woul d be the pri ncipal means of serving the national government, in the a bsen ce of the s ort of standing armi es that they dis courage d. n43 T he Constitution provide s that Congress ha s the power both to call forth the state militia into fed eral service "to e xe cute the Laws of the Uni on, s uppre ss Insurrecti ons and repel I nvasions," n4 4 and "to provide for organizing, ar ming, and dis ciplining the Militia, and for g overning" the m when they are employed i n fe deral service. n45 And yet, of course, the Commander in Chief Clause als o assigns the Presi dent the comma nd of the militia once they are called into federal s ervice. In for m, then, the struct ure of control over the militia that confr onted the early departme nts was not unlike that establis hed by the Constitution for the land and naval forces. Congress could rais e them and provide for their gover nance, organization, and disci pline. T he President woul d "comma nd" the m. Beyond thos e basi c assignments of aut hority, a
range of questions re mained as t o the exte nt of Congre ss's power to cir cumscri be the Presi dent's comma nd dis cretion. From the outset, Congres s chose to e xer cise its "calling forth" pow er largely by delegating it to the Preside nt. That choice re flecte d a general acceptance of the Pre sident's central role in the conduct of military affairs. At the sa me time, the relevant statutes speci fied categ ories of case s (mostly e mergen cies) i n which the delegate d authority could be exer cise d. They thus inaugurate d a practice that would become even more common in t he s ubse que nt deca des as to the use of military force more gen erally: Congre ss would ena ct a meas ure triggering the President's constitutional "command" aut horities, but its delegation to the Preside nt to exer cise s uch a uthorities would be confi ned s o as to ens ure they were e xercise d in a ma nner consistent with whatever objectives and directive s Congre ss had expressly or implicitly pres cribed. [*96 2] Someti mes, moreover, those aut horities would even be constrained by quite detaile d delineations of
the scope of the dis cretion conferre d. The first such statutes were designe d to prote ct settlers on the western fr ontier fr om attacks by the Wabas h Indians. Congre ss delegated t o Preside nt Was hington the authority to call forth the militia of the states "a s he may judge nece ssary for the purpose" of "pr otecting the inhabitants of the frontiers ... from the hostile incursions of the Indians. " n46 A few years later, Congre ss authorized Washi ngton to call forth the militia and station t hem "in the four wester n counties of Pe nnsylvania " for the purpose of s uppre ssing unlawful combi nations ther e and helping to enforce the laws. n47 Even thoug h these and other laws put a military for ce at Washi ngton's di sposal, he di d not think to use it other than a s Congress ha d instructed - althoug h this retice nce might be e xplained in part by the view, common at the time, that the Pr eside nt did not enjoy an "i nhe re nt" constitutional power to initiate "offensive" a ction without legislative preappr oval. n48 Even more i nterestingly, two of Congress's early general del egations of
its "calling forth" power place d further conditions on the Presi dent's use of the militia for even statutorily pres cribed purposes. F or exa mple, the Militia Act of 179 2 provide d that in cas es where the Preside nt called forth the militia to stop an i nsurre ction, he had to first "forthwith, ... by procla mation, comma nd s uch i nsurge nts to dis perse, and retire peaceably to their respe ctive abodes, within a li mited [* 963 ] time." n49 Similarly, although that law gave Washingt on virtually unlimited a uthority to call forth the state militia "as nece ssary to repel s uch invasion, " and t o issue orders to officers of the militia "as he shall thi nk proper, " n50 it per mitted hi m to us e the militia to e xecute domestic laws only upon certification by an Ass ociate Justi ce or district judge that the wrong doers wer e "too power ful to be s uppresse d by the ordi nary course of judi cial proceedi ngs, or by the powers veste d in the marshals. " n51 Thi s restriction i n effect i mposed a ne utral arbiter between the Preside nt and the for ce that would otherwise be available to him. n52 Congre ss
eliminated this j udi cial certificati on req uireme nt in the Militia Act of 1 795, n53 but retaine d at least two important limitations on the Pre side nt's control over the militia, ea ch of which indi cated that the legislature did not believe its constitutional aut hority to regulate the use of tha t force cease d the mome nt the militia were actually called i nto service . The first li mitation provided that the militia could be us ed to hel p en force domesti c laws only until thirty days after the commen ceme nt of t he ne xt sessi on of Congress. n54 It thus presage d a statutory approa ch to reg ulating ong oing military operations reflecte d in the moder n War P owers Re solution. n5 5 The se co nd limitation continue d to req uire the President to iss ue the dis persal procla mation whe n he called forth the militia to stop an ins urrection, although it no longer require d that the proclamati on occur before the militia were called forth. n5 6 In othe r wor ds, Congres s did not view its calling forth power as a si mple on/off switch, by which it coul d either put the militia under preside ntial comma nd or
keep them re served to state control. Instead, it felt no compunction about detailing how the Pre sident [*964 ] could use the militia even once they ha d bee n called forth and were under his comma nd. 4 . Conclusion. - The first eight years of constitutional pra ctice e stablishe d that the Commander in Chi e f was a power ful act or, properly entrusted with broad di scretio n in exercisi ng his powers of command. Inde ed, he was even given the aut hority to determi ne the cir cumstances in whi ch the main for ces at his di sposal, the state militia, could be called int o service. T here is no eviden ce that Congress atte mpted to w re st control from hi m of dis crete tactical de cisions on the basis of its ow n view as to how a particular battle should be handled. But these early years also s howe d that the Commander in Chief was constrained not only by political realities but also by law . In addition to the laws and usages of war, which fig ured pr omi nently, there was a growing and detailed statut ory lands cape. It se t terms by which the act ual military establishment coul d be
organized a nd supplie d in quite particularize d ways, and it care fully regulated the ways in w hich the President could use the state militia that he ha d bee n delegated the power to call fort h, sometime s imposing li mitations applica ble even after those force s had been deploye d. Neverthele ss, it was not until the Adams Administration that the first dire ct confrontation with the pr ecise constitutional question of the President's control over the conduct of campaigns a ctually occurre d, as it was not until the se years that the nation e ncountered its first br ush with s omet hing akin to a full-fledged war. C. The Adams Administration a nd the Quasi -War with France In rea ction to the United States's de claration of ne utrality in the war between Great Britain and France , America n shi ps be came a target of French vessels. A wave of anti-Fren ch sentiment sprea d across the nation, fueled in part by the interparty political contests for popular favor. In conseq uen ce, by 17 97, possible war with France loomed on the horizon, and Congress s prang into a ction. n57 As with its
delegations of the power to call forth the militia, Congre ss once again l ooked to the Preside nt to carry out military operations a nd s ought to e mpower him i n ways that would permit hi m to be s uccess ful. I n May of 1 798, Congres s ena cted a law authori zing the Presi dent, "i n the event of a de claration of war against the United States, or of actual invasi on of their territory, by a foreign power, or of i mmi nent da nger of such invasion," to raise a n army of up to 1 0,000 men t o serve for as many as thre e years. n58 Less tha n two months later, Congre ss authorized the [*9 65] Preside nt to raise an additional twelve infantry regiments a nd si x troops of light dragoons, "to be enliste d for a nd during the continuance of t he existi ng differen ces between the United States and t he French Re publi c." n59 A further delegation to t he President of power to i ncrease t he size of the ar my came the following year. n6 0 Of course, t he very fa ct that the military establishment was sig nifi cantly expa nde d ma de it pos sible for the Presi dent to ass ert a greater measure of command
authority, rooted in his powers as Commander in Chief, once an armed conflict had commen ced - at least if he were not limited by statute. But what if he were? Such li mits were not si mply a the oretical possibility, notwithstanding the broad di scretion Congress had per mitted hi m to exercise. Although Congres s had e nacte d statutes that per mitted the Presi dent to mov e the nation to a war footing against France, it was careful to avoid formally de claring war against that country. There was a great fear of e ngendering a confli ct that coul d be di sastrous for s uch a young nation. Congre ss instea d passe d a series of statut e s that both triggered the Preside nt's constitutional war powers and calibrated j ust what sort of force coul d be e xercis ed on behal f of the U nited States. The legislature a cted, moreover, not in one fell sw oop at the very outs et of hostilities, but instead over a number of years, thereby changing the rule s of e ngagement over time thr ough a serie s of li mited measure s. The res ult w as that, for the first time, constitutional questions concerning the
extent of Congress's power to regulate the conduct of ca mpaigns were prese nted to all three branche s of the nas cent governme nt. 1. Legislative Action in the Run -up t o the Quasi-War. - I n 1797 a nd 17 98, at the very outset of the conflict with France, the House of Re presentatives playe d host to a n inst ructive set of debates over propose d conditions on the use of naval vessel s. Propose d statutory language w ould have re stricted s uch ships t o U.S. waters and prohi bited their us e for conv oys (whi ch were thought likely to provoke war with France). n61 U nlike Madison's similarly restrictive proposal concerning the us e of the militia during the Washi ngton Administration, n62 these limitations woul d have affecte d regular forces , and they pre cipitated w hat was perhaps the most e xtensive legislative debate on the pre clusive power question until 186 2. n63 T o be s ure, most of the Re prese ntatives [*966 ] who spoke against the conditions di d so for policy or prudential reas ons. n64 A number, however, argue d that once Congres s appropriated funds to provide
for certain ships , it was not completely free to instruct the Presi dent on how to use the m. n6 5 Other Repre sentatives, partic ularly Gallatin, strongly oppose d su ch a notion, argui ng that the power to di ctate the us e of s hips wa s ancillary to Congress's powers to provide funding for the shi ps in the first ins tance. n6 6 And s omew here betwee n these two polar positions , Re presentative Harrison Gray Otis at first suggeste d that althoug h Congress coul d impose certain limits on the objects for whi ch the ships could be used , it coul d not pre scribe precis e instructions on how thos e obje cts should be advanced, such as by limiting the s hips to U.S. waters. n67 Otis later indicate d that althoug h in his view Congress could dire ct the particular permitted and proscribed us es of the shi ps (for e xample, not as convoys), it would not be e xpedie nt for the legislature to do so. n68 [* 967 ] Notwithsta nding the various positions (co nstitutional and otherwis e) articulate d in this debate, as the a ctual out break of ar med conflict approached, Congress appeared to re solve it in
practice by as serting its lawmaking authority to define the terms of battle in relatively detailed fashion. Fren ch seiz ure of U.S. vessel s prompted Congress to e nact several distinct statutes authorizing the use of military for ce, particularly against French naval vessels. The statutes in question - whi ch esta blished w hat would become known as the "unde clared war," or "Qua si-War," with France - each triggered the Presi dent's aut hority to use the ar med for ces in a manner permitted for a belligere nt party, but only for particular s orts of actions against Fren ch vessel s, in particular locations, for particular purpose s. The first such law, ena cted in May 17 98, authorized the Preside nt to direct the commander s of U.S. arme d vessels to seize - a nd to bri ng into a U.S. port for pr oce edings "accordi ng to the laws of nations" - Fre nch ar med ves sels that ha d committed "de predations on the vessels " of U.S. citize ns or that were "hovering on the coasts of the U nited States" for that same pur pose. n69 A foll ow-up statute one month later pr ovided for the forfeiture and
condemnation of goods a nd e ffe cts found on t hose s eized Fren ch ships , with a proviso that forfeit ure woul d not e xtend to a ny property of any citize n or reside nt of t he Unite d States that had bee n taken by the Fren ch crew. n70 Then, on July 9, 1798, Congre ss ena cted yet anot her statute that eliminate d the restriction on the types of ar med Fren ch ves sels that could be seize d. This law authorized seizure of any ar med Fren ch ves sel found within the juris dictional limits of the U nited States or elsewher e on the high seas. n71 T hese and related statutes meani ngfully limite d the sort of actions that the Comma nder in Chie f could undertake in fig hting France. He was not at liberty to do w hatever he thought wisest to de feat the en emy. In particular, he wa s limited to a naval war - he could not, for i nstance, de cide to take the army to France - a nd one that was circumscribed in parti cular ways. 2. The Supre me Court Enforce s the New Legislation. - The highly reticulated framew ork establishe d by these a nd ot her statutes produced a number of legal disputes. The
most signi fica nt for present purposes led the Supre me Court, in the case of Little v. Barre me, n7 2 to [*9 68] a ddres s whether e xe cutive action i n the conduct of military operations confor med to statut ory bounds. Eve n be fore the decisi on in Little, however, the Court indi cated tha t it was likely to regard these limited a uthorizi ng statutes not only as having e mpower ed the Pre sident to e xer cise his war powers, but also as having restri cted what he coul d do with them. I n Bas v. Tingy, n73 for exa mple, the Court was asked to de cide w hich of two statute s enacte d in this period determined the a mount of s alvage that would be due for the recapt ure of a n Ameri can shi p. The question led the Court to canvass the international laws a nd usag es of war in some detail, as the case hi nged on what was meant by the statutory term "ene my." n74 The Court concluded that the shi p, if taken from the French, was ta ken from the "e nemy , " and in e xplai ning that concl usion Justices Sa muel Chase a nd Bushr od Wa shington de scribe d the nature a nd e ffe ct of Congress's
statutory sche me. n75 By ena cting the s eries of statutes concerning military engageme nt with French ves sels, Justice Chas e explained, Congress ha d "authorised hostilities on the high s eas by certain persons in certain cas es," but had not given the Presi dent the a uthority "to commit hostilities on land; to capture unar med Fren ch vess els, nor even to ca pture French arme d vessels lying in a Fren ch port." n76 W hat Congre ss ha d in effe ct done , in other wor ds, was to a uthorize a "li mited " or "partial" war against France - a type of war that, in the words of Justice Wa shington, was "confine d in its nature and extent; being limite d as to places, per sons, and thi ngs." n77 Justice Washi ngton noted, in a ppare nt accord with Justice Chase' s understandi ng, that in such conflicts those aut horities "who are authorised to commit hostilities ... ca n go no farther than t o the exte nt of their commi ssion." n78 The full impact of this notion - that included within Congre ss's authorizations for the use of military force in a n undeclare d war are implied statutory limitations on the
Comma nder in Chief' s war powers that must be follow ed - was reveale d a few years later in Little. Several of the Qua si-War statutes authorized the i nterdiction and capture of certain shi ps. One aime d to restrict commer ce with France by barring vessels owne d, hired, or employed by U .S. residents , in whole or in part, from sailing to the territory of the Fre nch Rep ubli c or the We st Indies , and pr ohibiting their empl oyme nt in any traffi c or commer ce [* 969 ] w ith a French re sident. n79 In order to e nfor ce this latter provisi on, the law authorized the President to instruct commanders of pu blic armed ves sels to exa mine ships t hat were suspected of violating the A ct, and i mposed a duty on commanders to sei ze any shi p that appeare d to be "bound or sailing to any port or pla ce within the territory of the Fren ch Republic, or her dep ende ncie s." n80 The Se cretary of the Navy therea fter issue d orders to public arme d shi ps, but those or ders were not limited, as were the words of the statute, t o interdiction of ships bound to ports within the French Re publi c. They
instead instructed the naval for ces to "do all that in you lies to prevent all intercourse, whether dire ct or circuitous, bet ween the ports of the U nited States and th ose of France and her dep ende ncie s." n81 More s peci fically, they dire cted American s hips "to be vigilant that vessels or carg oes really Ameri can, but covere d by Danis h or other foreign papers, a nd bound to, or from, French ports, do not esca pe you. " n82 I n conformity with this or der, Captain George Little, comma nder of the U.S. frigate Boston, sei zed the Flying Fish, a s hip believe d to be a U.S. -ow ned vess el sailing from a Fren ch port, and s ought condemnation. n83 That seiz ure pre cipitated a court challenge. The circuit court held the s eizure unlawful and as sesse d da mages for trespas s against Little, whose quite reas ona ble de fense wa s that liability would be unfair because he was merely following pre sidential or ders. n8 4 Yet the Supre me Court affirmed the ju dgme nt of t he court below, in a unani mous opinion by Chie f Justice Marshall. Chief Justi ce Marshall held, in e ffe ct, that even though
the Preside nt might well have ha d the inher ent constitutional power to iss ue s uch a n order in t he abse nce of a statute, n85 that did not matter be caus e fe deral statutory law had prohibited the seizure by impli cation. By providing the E xe cutive wit h "authority [to seize ] vessel s bound or sailing to a Fren ch port," he concluded, "the legislature see m to have pre scribed that the manner in w hich this law shall be carried into e xe cution, wa s to exclude a seizure of a ny vessel not bound to a Fren ch port." n86 I n other w ords, a statute authorizing sei zure of shi ps hea ding [*970 ] in one dire ction implicitly restricted what mig ht otherwise have been the Commander in Chie f's constitutional authority to seiz e ships going in the opposite dire ction. And while Chief Justi ce Marshall was plai nly trouble d by his ulti mate conclusion that the officer followi ng the commander's order s enjoye d no g ood faith immunity from liability, n87 there is no sugge stion in hi s opi nion, or that of any Justi ce of the Court - and no evidence that any of the parties, includi ng the Exe cutive,
argued - that Congres s could not limit the Presi dent's tactical flexi bility in this respe ct. n88 3. A dditional Legislative Restrictions Arising Out of t he Quasi-War. - Although the obvious aim of the statute at issue in Little was to bring a cessation to transacti ons between U nited States per sons and the Fren ch that were thought to give aid to the ene my, it did not directly regulate military engage ment with the e nemy itsel f. It concer ned instead how for ce could be de ployed against A merica n ships operating in a n active combat zone . But during this sa me conflict with France, Congress di d pas s laws dealing s pe cifically with the treatme nt of e ne my personnel. One s uch statute was a retaliation mea sure ena ct ed on March 3, 17 99. The a ct "e mpowere d and re quire d" the Pre sident to "cause the most rigorous retaliation to be e xe cuted " on Fre nch citizen s legally captured by the United States, i f it were proven to the Preside nt that France ha d killed, or employed cor poral punishment on, or "i mpris one d [* 971 ] with unusual severity," any U.S. citizen who had been
impres sed by the Fren ch. n89 Thi s statute impose d what appear ed to be a sig nifica nt limitation on Presi dent Ada ms's dis cretion over how best to engage the Fre nch. It also set forth an affirmative rather than re strictive command that was apparently contrary to Adams's preferre d mode of deali ng with the issue. n90 In the course of establis hing the legal fra mework for the conduct of the Quasi -War with France, Congress al so ena cted statutes t hat soug ht to temper the degree of coerci on that could be brought to bear upon prisoners and other detai nees. n91 And i n March 1 799, Congre ss ena cted rule s and regulations for the government of the navy, whi ch included an article making it unlawful for any person bel onging to a shi p or vessel of war in U.S. s ervice, whe n on shore, to "plunder, a buse, or maltreat any inha bitant, or injure his property in any way." n92 T hat law also provide d more generally that every navy comma nder in chie f and captain, i n making s peci fic rule s and reg ulations for his charges, [*9 72] "shall keep in view als o the custom and usage
of the sea service most common to our nation. " n93 T here is no eviden ce that any of these measur es gave rise to constitutional concer ns, notwithstanding their seemi ngly intrusive regulatory featur es, and we have found no re cord of Pre side nt Adams complaini ng that these statutes were i nconsiste nt with the imperative of conducting the military conflict in an a ppropriate manner. Finally, in the mi dst of all this legislative action - s ome of a ge neral fra mework variety, some much more detailed and conflict -sp eci fic - Congress pa ssed the Alien Ene mies Act of 179 8. n9 4 That mea sure authorized the Pre sident in a time of war or invasi on to deta in a nd re move male natives, citize ns, de nize ns, or s ubje cts of t he hostile nation, age fourtee n and upward, found in the United States. n95 This A ct, which is still in for ce in modi fied for m, n96 wa s passe d in anti cipation of war with France . It w as first employed a gainst British aliens during the War of 1 812. T he Act not only empowered t he Exe cutive, but also restricte d it by req uiring the Pre sident to give most
deportable alie ns time to re cover, di spose of, and re move their goods a nd e ffe cts, either by the ter ms of a governing treaty or "a ccor ding to the di ctates of humanity and national hospitality." n9 7 4. Conclusion. - T he Quasi-War with France res ulted in a de fact o rise in e xecutive war authority, if only be cause it pre cipitated a ma ssive expansi on o f the military establishment and thus of the a mount of for ce at the President's dis posal. But that was not the only conse que nce of this first maj or military contest of the new nation. Perha ps be cause the conflict never res ulted in a de claration of war, its parameters remaine d confi ned and care fully delineated by statute. Congres s, far fr om simply authorizing the use of f orce a nd the n leaving matters to the E xecutive, from the very onset of the hostilities with France asserted direct (a nd, as it turne d out, ongoi ng) statutory control over many matters - fr om the rules of e ngagement at sea to the treatme nt of e ne mies at home. Although occa sional voi ces in Congre ss express ed concern that some of thes e statutory
measure s infri nged on inviolable e xe cutive power s, neither the Congress as a whole, the e xecutive branch, nor the Supre me Court suggeste d at any point in these years that su ch a concern was well -founded. [*97 3] D. T he Jefferson Admi nistration By the ti me Jefferson took offi ce, the Quasi -War with F rance ha d ended. Jefferson there fore pr oposed a return t o a peacetime posture, with reliance principally on t he state militia rather than on the standi ng army. n98 Congress re sponde d in 180 2 by enacti ng a law reduci ng the size of the reg ular army from 550 0 to appr oxi mately 3300 troops. n99 Congres s then generally ena cted statutes that a fforded the new Presi dent wide discretion to us e the military for ce that remai ned under hi s charge a s he dee me d ne cessary, s uch a s to respond to naval attacks from Tripoli. n100 I ndee d, in 180 7, in the wake of the Burr conspira cy, Congress even a uthorize d the P resident to e mploy the la nd or naval f orce s, as he j udged nece ssary, to respond to domesti c insurre ctions or obstructions of the laws in any case where t he
Militia Act of 1795 ha d previously authoriz ed hi m to us e the militia for such purpos es. n1 01 And although thi s law, the Ins urrection Act of 1807, did req uire the Presi dent to "first obs erve[] all the prereq uisites of [the Militia Act of 1795 ]," n102 i ncluding the re qui re ment that the Presi dent iss ue a procla mation that "insurgent s" should "dis perse, and retire peaceably to their respe ctive abodes, within a li mited time, " n103 it re flected a growi ng acceptance of bot h the exi stence of a sta nding ar my and the Pre side nt's quite substantial role in overseeing it. Notwithstanding these broa d grants of dis cretion to the Preside nt, and even thoug h no great arme d conflict loomed that w ould pr ompt a flurry of statutory activity akin to that accompanyi ng the Quasi-War, the question of when the Pre sident coul d act in conflict with statutory req uireme nts in military matters arose in Jeffer son's Administration in the conte xt of a pos sibly una uthorize d expen diture. As a general matter, appropriations and spe nding practice s did not raise the constitutional [* 974 ] que stion
of a Commander in Chief override. Even though Albert Gallatin was now Jefferson' s Treasury Secretary, appropriations practi ce in the Jeffers on Administration soon be came "largely indistingui shable from practi ce duri ng t he Federalist peri od." n104 No matter how appr opriations statutes were de signe d, it seeme d, executive offi cials construed the m fle xibly, s ometi mes by readi ng the m to allow general funds to be used to s uppleme nt spe cifi c statutory limits, ot her times by adjudgi ng that they permitted "a nticipat ory" spe nding for ess ential functions authorize d by Congress. I mportantly, as was true d uring the Was hington Admini stration, n1 05 such creative construction was not rooted in a claim of constitutional authority on the part of the Presi dent. Instead, the inter pretive practice reste d on policy -bas ed arguments a bout the i mporta nce of affor ding the Pre sident flexi bility in administration of a n expa nding bureaucracy, and on the contention (no doubt in part fa nci ful ) that Cong re ss itself should be dee med to have been legislating with s uch
practicalities in mind. n106 But a military crisis in 1807 pr ompted Jeffers on in one ca se to incur fi nancial obligations for the nation without purporting to justi fy them by creative statutory construction. n1 07 Signifi cantly, however, eve n in this outlier case, Jeffers on's argument di d not rest on the notion that Congres s lacked the power to regulate decisi ons regardi ng military operations generally, nor eve n on the claim t hat the conduct of military campaigns is veste d solely in the Pr eside nt by virtue of his designation as Commander in Chief. I nstead, the Jefferson A dmini stration's de fen se was pre mise d on the far different, and conce ptually much more li mited, notion of te mporary ne ces sity - an argument that, in this ca se at least, doe s not appear to have be en a constitutional trump at all. On June 2 2, 1807, w hile Congress was i n reces s, the Britis h warship Leopard attacked the A merican frigate Che sa peake as it was leaving port at Hampton Roads, Virginia. It was widely believe d this aggressive action mig ht precipitate a war with England. The next month,
Jeffers on's ca binet voted t o pur chase on cre dit timber for about 100 g unb
affair, although deali ng only with actual e xpe nditure s: the Act authorized t he President duri ng a congressional rece ss, and "on the appli cation of the s ecretary of the proper depart ment, ... to direct ... that a portion of the monie s appropriated for a particular bra nch ... in that de partment, be applie d to another bra nch of e xpe nditure in t he same depart ment" i f, in the Pre side nt's opini on, s uch a transfer was "ne cessary for the public s ervice." n118 Congre ss thus did more than ratify w hat [*977 ] Jeffers on ha d done; it stresse d that disregard of appropriations limitations would be unwarranted in circumstances i n which Congress was available to consider and addre ss the e mergen cy. n11 9 E. The War of 18 12 The War of 1 812 constituted the first full-fledg ed military engage ment of the young nation. It was a controversial war, occasioning pas sionate debate in Congres s over whether the declaration of war was itself constitutional, the obje ction being that there ha d not be en a suffi cient pre dicate of hostile British a ction. n120 N evertheless, a nd per haps
because Congress is sue d a for mal de claration, the war di d not, as the Qua si-War had done, produce a raft of legislation purporting to de fine operational li mits on how force coul d be used. Congre ss did pass s everal statutes dealing with the s peci fic is sue of pris oners of war, authorizing the Preside nt to make such regulations and arrangeme nts for their safeke eping and support "a s he may dee m expedie nt," but only "until the sa me s hall be otherwise provided for by law." n1 21 Des pite this relative paucity of congressi onal action, the War of 18 12 does offer a n important piece of evi den ce relating to Congress's constitutional authority to restrict e xecutive war powers. It comes [* 978 ] from the Supreme Court's deci sion in Brown v. U nited States. n1 22 The U .S. Attorney in Massa chusetts had filed an a ction to conde mn over 50 0 tons of timber in the U nited States that had belonge d to British subje cts. The circuit court condemned the ti mber as e nemy pr operty forfeited to the United States. T he Supre me Court, in an opini on by Chief Justice Marshall, reverse d,
holding that the s eizure re quired statut ory authorization that Congress ha d not pr ovided. T he Chief Justi ce agreed with the gover nme nt that the laws of war ge nerally permitted a s overeign to confiscate e nemy pr operty in its own territory duri ng war, but he held that the power was the legislature's to exerci se, thereby in e ffect de nying the Presi dent the power to seiz e ene my property within the United States in the a bsen ce of se parate statutory authority distinct from a de claration of war. n12 3 <Nor mal (Web )> In light of this holding, one coul d read the ca se solely as a construction of the scope of the President's i nherent, or Category Two, powers (referring to t he taxonomy Justice Jackson developed a century and a half later in Youngst own Sheet & Tube Co. v. Sawyer n124 ). But the real signi ficance of the ca se, we think, inheres in w hat it reveals about early constitutional understa ndings of the e xtent of the Pre sident's s ubje ction to statutory control. And the key to e xcavating that understanding is in Justi ce Story's fas cinating dis senting opinion. Justice
Story insisted that beca use the laws of war per mit the sovereig n to seize e nemy pr operty in the U nited States duri ng a declare d war, the President ca n make such a s eizure as Comma nder in Chie f, "as an i ncident of the offi ce," even i f Congress has not separately authoriz ed the s eizure by statute. n125 For Justice Story, that is to say - here, di sagreeing with the majority - the Pre sident ha d the constitutional authority, the "discreti on vested i n him, " to ca pture ene my property within the Unite d States during a de clared war, to the e xtent consistent with the law of nations . n12 6 But signi fica ntly, in so arg uing, J ustice Story empha sized the congressional role both in triggering and in li miting the exercise of s uch presidential power. As Justice Story explained, the reason for the Preside nt's capa city to exer cise s uch power in the first place was that "the legislative authority ... ha s declare d war in its most unli mited ma nner. " n12 7 In other words, rather [*97 9] tha n emphasizi ng inhere nt exe cutive authority, Justice Story stressed that the scope of the Pre sident's
war powers was vast beca use of Congres s's de claration of war. n12 8 Moreover, Justice Story emphasiz ed repeate dly that although the Preside nt had the power to sei ze domesti c ene my property in a declare d war, Congre ss ha d the authority to pass laws limiting or prohi biting such constitutional author ity. Ordina rily, Justice Story explained, the Pr eside nt is vested with a "dis cretion . .. as to the manner a nd e xtent" of pr osecuting a de clared war. n1 29 Thus, where the legislat ure has not further defi ned "t he pow ers, obj ects or mode of warfare," rea sone d Justice St ory, the only law limiting the Commander in Chie f's authority is "the law of nations as applied to a state of war." n1 30 Howe ver, "if, indeed, there be a limit imposed as to the e xtent to whi ch hostilities may be carried by the e xe cutive, I admit that the exe cutive ca nnot lawfully transce nd that limit." n131 T hat is to say, Justice Story explained, i f any of the acts per mitted by the laws of war "are di sappr oved by the legislature, it is in their power to narrow a nd limit the e xtent to whi ch the rights of
war shall be exer cise d; but until such limit is assig ned, the e xe cutive must have all the right of modern warfare veste d in hi m." n132 [*980 ] The Chie f Justice's majority opi nion, having concl ude d that under the laws of war the Preside nt could not confis cat e the pr operty abse nt spe cifi c statutory authoriz ation, had no occasi on to di scuss whet her a statute could limit s uch a hypot hetical exer cise of the Comma nder in Chie f power. But there is certainly nothi ng in Chie f Justice Mar shall's opinion to suggest ot herwise, and his earlier opinion in Little v. Barreme is consiste nt with Justice Story's view. n133 Of cours e, Brow n did not f ormally addre ss the question that Little addres sed and that Bas discusse d in di cta - that is, whether a n existing statute imposed a constraint on the Preside nt's exer cise of dis cretionary constitutional war pow ers . Nevertheles s, like its precursors, Brown a ccords with the notion t ha t those "who are authoris ed to commit hostilities ... can g o no farther than to the extent of their commis sion. " n13 4 This time, however, the discussi on of
that issue had occurred i n the conte xt of a ca se that involved the pros pect of congres sional restri ctions being impos ed in an a ctual de clared war. F. The Ante bellum Era As the preceding di scussion indi cat es, although the question of the Commander in Chief's possi ble pre clusive authority was not exte ns ively considere d in our ear ly con stitutional history, it was not utterly unknown t o political a ctors. The idea that Congress might mi nutely ma nage the conduct of war did se em odd to at least s ome legislat ors - di sfavore d, at the very least, and possibly even constitutionally dubious. But there was certainl y no consen sus s hared by the branches that s uch regulation was beyond Congress's constitutional ken or that Foundi ng-era as sumptions about the Commander in Chief's s ubje ction to statutory regulation ha d broken a part on the s hoals of lived e xperie nce. T he fi nal de cades lea ding up t o the Civil War, moreover, do not indicate a ny dramatic shift. T he Executive's as se rtion of war power s in advance of legislative authorization be came more aggres sive in this
period, esta blishing a n important histori cal predi cate for the claims of broader exe cutive pow ers to de ploy for ces a broad that modern Presi dents regularly assert. n135 But as much as the Pre sident often s eized the initiative in this period, there was little indication that Congress was [* 981 ] forfeiting whatever restrictive powers it assumed it posses sed (or had alrea dy exer cised ) in the years up to and incl uding the War of 1 812. With one pos sible e xce ption, more over, the Exe cutive continued its pra ctice of accepting the li mitations Congre ss impos ed or, at most, relying on creative modes of statutory interpretation rather than ass ertions of pre clusive constitutional w ar power s to respond to those statut ory limits that were of practical concern. 1 . Continue d Legislative Reg ulation. - In the years following the Je ffer son Admini stration, Congress continue d to ena ct statutes giving the Preside nt limited a nd speci fied aut horizations to engage i n hostilities or to take posses sion of particular conteste d territories, n13 6 directing where troops wer e to be stationed,
n137 and even pr oviding that no Mari ne Cor ps offi cer "s hall exer cise comma nd over any navy yard or vessel of the United States." n138 N or was it unpr ece dented for Congres s, as part of a law regulating trade with the India n tribes in 1 834, to pre scribe certain treatme nt for I ndian detainees. n139 I n short, right up to the Civil War itself, the legislative branch show ed no signs of having developed a new found hesitancy, let alone any serious constitutional self -doubt, a bout its authority to cabin w hat would otherwise be t he Commander in Chie f's constitutional dis cretion. And for the most part, there wa s little indication that the legislature was out of step with prevailing se ntime nt in so thi nking. 2. Antebell um Constitutional Treatises. - The nineteent h ce ntury marked the beginni ng of the age of constitutional treatises in the United States. Although s uch w orks do not, strictly speaking, provide cl ear evidence of understandi ngs within the political branche s, they do [*98 2] offer some insig ht into general legal understandings of the day. As we will see, by the
early part of the twentieth ce ntury, aca demi c dis cus sions of the exte nt of the Preside nt's precl usive authorities to depl oy t roops a nd dire ct ca mpaigns, brief thoug h they ofte n were, constituted a sta ple element of the genre's treatment of war powers and of the Commander in Chief Cla use in particular. n140 But in the anteb ellum era, notwithstanding the legislative regulation that ha d by then become fa miliar, what Justice Jackson later identifie d as the "l owest eb b" iss ue was not one that s cholarly comme ntators see med to have much i n view. Indee d, some of the major treatises of the day di d not di scus s it even in pas sing. n1 41 The lea ding scholarly work, Justice Jos eph Story's Comme ntaries on the Constitution, contai ned e xtensive di scussions of Congress's a nd the Pr eside nt's war powers n142 and indi cated that the Comman der in Chief's superintendence prerogative was pre clusive. n143 But Justice Story's treatise did not quite engage the "l owest eb b" question directly. n1 44 Justice Story e xplaine d that "the dire ction of war" in particular ne ces sitates
a "single hand" but, as in The Fe deralist, the rejecte d alternative was not statutory control but rule by a plural e xecutive. n145 I ndee d, in dis cussing Congres s's pow er to raise armies, Justice Story indi cated that it would e ncompass means "unli mited in every matter es sential to its effica cy," includi ng the "for mation, direction, and s upport of the national for ces." n146 M oreover, Justice Story speci fied that Congres s's pow er to declare war may be us ed to authorize "ge neral hostilities, in which case the general laws of war apply to our sit uation; [*98 3] or by partial hostilities, in whi ch ca se the laws of wa r, so far as they act ually apply to our si tuatio n, are to be observe d." n1 47 W hile Congress followe d the former cour se in 18 12, Justice Story e xplaine d, "the latter course was purs ued in the qualifie d war of 1798 with France, whi ch was regulated by divers acts of congres s, and of cour se was confined to t he limits pres cribe d by thos e acts." n148 Still, des pite this en dorse me nt of the princi ple set forth in Bas a nd applied in Little, Justice Story never concl usively
declared w hich depart ment woul d have the final word in t he event of an interbra nch confli ct on such matters in an a ctual de clared war, or just how broa d Congress' s regulatory powers wer e even in a more limited confli ct. n149 William Rawle's 1825 treatise ca me closer to a ddres sing the question, albe it in a brief and les s-tha n-illuminating manner. Rawle s peci fically recognize d broa d legislative powers as to the military in peacetime, appearing to leave little outside t he legislative ambit. n1 50 As to "the e merge ncies of a war," however, Rawle noted that e xigen cies coul d justify the preside nt ... in pre fe rring the exe cution of hi s constitutional duties, to the literal obedie nce of a law, the original object of whi ch was of less vital importance than that create d by the e xigen cies of the moment, and t here ca n be no doubt, that this ne ces sary power woul d exte nd to the ere cting of new fortresse s, and to t he abandoning of those erecte d by order of congre ss, as well as to the conce ntration, division or other local e mploy ment of the troops, whi ch in his judg ment or
that of the offi cers under hi s command, beca me e xpe dient fr om circumsta nce s. n15 1 Although t his passag e would a ppear to argue for e ntrusting the Pre sident with s ubstantial wartime power as a pra ctical matter, even to ig nore "the literal obedie nce of a law" in e xigent cir cumstances, Rawle expressly disclaimed the idea t hat he was de fen ding a Presi dent's right to de fy congressi onal will: "This w ould not be a violation of t he r ules laid down in the prece ding page s" req uiring exe cutive compliance with statutes pursuant to the Preside nt's duty to t ake care that the laws be faithfully exe cute d, Rawle e xplained, "since the obligation of the law is [*9 84] l ost in the successi on of causes that preve nt its operation, a nd the constitution itsel f may be considere d as thus super seding it." n152 I n other wor ds, Rawle a ppeare d to be e xplaini ng that in war, a preexi sting statutory limitation might be pr operly const rued not to continue to have its full pea cetime for ce and e ffect. Rawle said nothing dire ctly, however, about what should happen in the eve nt the President
and the Congres s disagree as to w hether the Pre sident must abi de by a restriction that is properly construed to a pply to the conduct of war. The evide nce from the treatises of the time, therefore, is fairly inconclusive. The most one ca n say with confidence is that there appear ed to be a ge neral underst anding that Congress could e xercise control over the arme d force s at least in peaceti me; that the function of the Comma nder in Chie f Clause itself was, as Justice Story suggeste d, to establis h a hierarchical guarante e within the military establishme nt; that the teachings of Ba s and Little were endor sed; and that there was no conse nsus a bout a br oad or unqualified precl usive exe cutive power over the de ployment of troops or the conduct of ca mpaigns s uch a s would come to domi nate the views express ed in si milar compendi ums publi shed i n the de cade s foll owing Re constructi on. 3. E xe cutiv e Branch Views in the Antebellum Period. - Although Congres s continued to regulate military matters throughout the peri od, the Supreme Court had no occasi on to
weigh in on this is sue in the de cades followi ng Brow n. But intere stingly, just as the judiciary had le ss reason to address the is sue, the E xe cutive appeare d to have more. I n fact, s ome of the earliest and most sig nifi cant stateme nts of the exte nt of Congre ss's aut hority to regulate the Commander in Chie f were offered during this time period. They tou che d on the full range of is sues that concern us, fr om the existe nce of a pre clusive power of superinten den ce over the ar med forces to the e xtent of the Congress's a uthority to curb the Pre sident's s ubsta ntive war powers. (a ) Pre clusive Superinten den ce Pr er ogatives. - As the ante bellum period drew to a close, Presi dent Buchanan endorsed the inde feasibl e or pre clusive power of superi nt endence over the military n15 3 in the fa scinating case of Ca ptain Meigs and the Was hington Aque duct. n154 I n 1852 , be fore Buc hanan had taken offi ce, Montgomery C. Meigs, a brilliant and eccentri c captain i n the Army Corps of Engineers, was assig ned t o s urvey the water supply for the cities of Washi ngton and
Georgetown a nd eventually to overs ee the War De partme nt's constructi on of an aqued uct along the Potoma c River. Meigs's s ubse que nt [*9 85] re port recommen ded that an a que duct be built just above Great Falls, north of Wa shingt on. Congres s appr oved that recommen dation, a nd the De partme nt of War began w ork on the aqued uct, led by M eigs hi mself. For several years, things ran very s moot hly. In the Buchanan Admini stration, how ever, Meigs's relations hip with Secretary of War John Floyd turne d sour: Floyd dis miss ed Meigs and ma de sure the Admi nistration's pr oposed budget included no funds for work on the aqueduct. Meigs hi msel f, a belove d figure on Ca pitol Hill, then s ucces sfully lobbied Congress for a bill appr opriating half a million dollars for the aqueduct to be s pent "a ccording to the plans a nd esti mates of Captain M eigs, and under his superinten den ce." n155 I n his sig ning state ment to this a ppropriations bill, Pre side nt Buchana n wrote that if Congres s had meant to give Meigs dis cretionary authority to determi ne how the aque duct
project would pr ocee d, it would i nterfere with the Pr eside nt's "right ... to be Comma nder in Chie f." n156 Buchanan concluded, therefore, that it was "impossi ble that Congress coul d have inten ded to inter fere with the clear right of the Pr eside nt to command the Army" by "withdrawing an offi cer fr om t he command of the Preside nt and sel ecting hi m for the per for mance of a n executive duty." n15 7 Bucha nan thus construe d the statutory "condition" as pre catory rather than as mandatory. n158 The Secretary of War thereafter permitted Meigs t o superintend the proje ct, but d enied him any discretionary authority by refusing to permit Meigs to be chief e ngineer of the Wa shington Aque duct. Meigs complained to the Preside nt that this was in clear violation of t he statute, and that the a que duct had to be built not only according to his desig ns but, more i mportantly, under his superinten den ce - a power that Meigs underst ood to give hi m control over all dis cretionary de cisions. T his prompte d an opinion of Attorney G eneral Jeremia h Black to the Preside nt,
affir ming the constitutional inviolability of the army chain of command. Black agree d with the Presi dent that if the statute were construed to give Meigs the power to build the a qued uct "without accounting to hi s superior offi cers" and "a ccor ding to his own uncontrolled will," n159 i t would be constitutionally dubi ous: Congress coul d not make Meigs "indepe nde nt of [the Presi dent ]," even as a condition on an appropriation rather than thr ough a n outright req uireme nt. n16 0 There fore the Attorney [*986 ] Ge neral rejecte d such a construction: "This claus e of the appropriation bill was not inten ded to a ppoint Captain Meigs chie f engine er of the a cqued uct, nor was it meant to inter fere with your aut hority over him or any other of your military subordi nates." n161 (b) Precl usive Substantive Pow ers. - The Meigs case is s ometimes cited in s upport of the theory of a substantive precl usive power of pr esidential comma nd. n162 B ut neither Attorney Ge neral Bla ck's opini on nor President Bucha nan's sig ning statement adverted to any prer ogative of the
Comma nder in Chief t o disregard s ubsta ntive statutory comma nds, nor did the statute even concern a ctions during wartime. At m ost, Buchanan a nd Bla ck were arguing that if Congres s chooses to assig n a certain function to the army, even outside the context of wa r, Congress may not assig n dis cretionary aspects of that function to a lower-l evel officer to be carried out "a ccor ding to his own plea sure," n163 with complete indepe nde nce from presi dential supervision or control. n16 4 [* 987 ] In fa ct, Bla ck took an expansive view of congressi onal power to de fine the e xtent of substantive Commander in Chief powers i n response to a s ubs eque nt reque st for an opini on on the subje ct from Presi dent Buchanan: T o the chief e xe cutive magistrate of the U nion is confided the s olemn duty of seeing the laws faithfully exe cute d. That he may be able to meet this duty with a power eq ual to its performa nce, he nomi nates his own subor dinates, and removes the m at his pleas ure. For the sa me reas on the land and naval for ces are under his orders as t heir commanderin-chief. But his power is to be use d only in the manner pres cribe d by the legislative depart ment. He cannot accomplish a legal purpose by illegal means ... . n1 65 Indeed, with the pos sible e xce ption di scussed below, we have been unable to find any suggestion duri ng the seventy years betwee n ratificat ion and Lincoln's ele ction that the e xe cutive branch ever invoke d any constitutional obje ctions t o statutory constraints on the Commander in Chief's tacti cal dis cretion or s ubsta ntive comma nd authorities, either in wartime or in pea cetime . To be s ure, such quies cen ce does not necessarily imply a cce ptance. But a series of ante bellum-era Attorney Ge neral opi nions affir m that the E xecutive's authority was subject to statutory s uperse ssion - even i n areas where the Preside nt had e xtensive indepe nde nt authority to regulate the operations a nd [*988 ] government of the ar med forces, includi ng que stions respecting comma nd structure. n166 To be sure , these opinions di d not deal with wartime tactical de cisions, as s uch, but they are e xpres s in endorsing
general constitutional ass umptions regarding the s upre macy of statutes over w hat would ot herwise be a Comma nder in Chie f's constitutional discreti on. More over, in setting forth broa d propositions about the E xecutive's subje ction t o statutory control, these opini ons make no e ffort (as conte mporary executive branch opinions fre que ntly do) to e xe mpt tactical judg-ment s from their s cope. n16 7 (c) Fillmore's Equivocal Dis cussi on of Pre clusive Substantive Pow -ers. - The possi ble exception to this pattern occurred i n 1851, i n a law enforce ment - not war - setting. Preside nt Fillmore conte mplated using both the militia and the arme d forces t o help e nforce the Fugitive Slave Act against groups in Boston trying to rescue slaves from return to servitude. The Senate pas sed a res olution re questing i nformation from Fillmor e about the inci dent, the means he had a dopted to deal with the is sue, a nd whether, in his opi nion, "any additional legislation is nece ssary to meet the e xigen cy of t he case , and to more vigorously execute e xisting laws. " n16 8 In a letter to the
Senate the ne xt day, Fillmore e xplaine d that he ha d the pow er to deal with the iss ue under the 17 95 Militia Act and the 18 07 Insurrecti on Act, whi ch res pectively authori zed the Pre side nt to call fort h the militia, and to use the ar med for ces, to e nfor ce domestic laws. n169 Recall that t he 17 95 Act provi ded that "the Pr eside nt shall forthwith, by proclamati on, command such insurgents t o disperse, and retire peacea bly to their respe ctive abode s, within a limite d time," a nd the 18 07 Act appeared to incor porate by reference this "pre -req uisite[]" of an a dvance disper sal warning to ins urgents. n170 Fillmore wrote that there was "s ome doubt" whether the proclamation req ui reme nt of those ol der statutes applied whe n the militia and arme d for ces were called forth for pur pose s of e xe cuting the laws, a s [*9 89] oppose d to suppres sing ins urrections. He urge d Congress to clarify that there was no early -notice require me nt in such situations. "Such a procla mation i n aid of the civil authority," he argued, "woul d ofte n de feat the whol e obje ct by giving such noti ce
to persons inten ded to be arrested that they would be e nabled to fly or se crete themselves." n171 Fillmore further sugge sted that he ha d a pree xisting constitutional power to use the e xtant arme d forces t o enforce domestic laws, i n which case t he pro clamation require me nt would be a statutory condi tion imposed on the e xer cise of the Commander in Chief's Article II a uthority. F illmore there fore w ondered whet her Congress's 1 807 incorporation -by-r efere nce of the procla mation prereq uisite had been ina dvertent. He insi nuated that insofar as the 180 7 law were construed to re quire adva nce warni ng of the use of the armed force s, and not just the militia, such a construction might raise constitutional que stions : It appears that the Ar my and Navy are by the Constitution place d under the control of the E xe cutive; and proba bly no legislation of Congre ss could a dd to or dimini sh the power thus given but by increasing or dimini shing or a bolishi ng altogether the Army and Navy... . Congress , not pr obably adverting to the differen ce betwee n the militia and
the Regular Army, by the a ct of Mar ch 3, 1 807, aut horize d the Presi dent to use the land a nd naval force s of t he Unite d States for the sa me purposes for which he might call forth the militia, and subject to the same procla mation. But the power of the Pre sident under the Constitution, as Comma nder of the Army and Navy, is general, a nd his duty to see the laws faithfully exe cuted is ge neral and positive; and the act of 180 7 oug ht not to be construed as evi ncing a ny disposition in Congre ss to limit or restrain thi s constitutional a uthority. n17 2 Fillmore was not clear as to the sour ce of his constitut ional objection - whether it derived from the Comma nder in Chie f Claus e, from the Take Care Claus e, or from s ome combi nation of the two. I n any case , Fillmore s uggested that Congres s could not disable the President from fulfilling his constitutional oblig ation to e nsure t hat federal statute s were faithfully executed. I nde ed, as to the questi on of whether Congre ss could a dd to or dimini sh his powers of control over land or naval force s already raised, Fillmore was
notably equivocal, averring [* 990 ] only that such legislation woul d "probably" be unconstitutional. n173 In a ny event, he se eme d to base t hat judg ment not on any idea that wartime ta ctics or operational j udg ments on the battlefiel d were for the Presi dent alone, but rather on the much more swee ping and see mingly inde fen sible ground that all de cisions pertaini ng to the arme d forces are beyond statutory control. n1 74 Whatev er Fillmore mea nt to assert, Congres s can hardly have bee n said to have a cce ded to it, either in direct res ponse or in de bates s hortly thereafter. A few week s after the question of statutory a men dme nt was referre d to the Senate Judi ciary Committee, the com mittee reported that, in light of the 1 795 and 1807 statutes "and the e xperien ce of the pa st," n1 75 "further legislation i s not es sential to ena ble the Presi dent to dis charge, .. . with fidelity, his hig h constitutional duty to see that the laws are faithful ly exe cute d." n1 76 In s o acting, the committee did not respond dire ctly to Fillmore's req uest that it clarify whether the 1807 A ct
required an a dvance war ning to lawbreakers that the Pre sident was a bout to use the ar med forces. n1 77 Senator Andrew Butler di d write separately, fearing that the committee's sile nce with re spe ct to that question mig ht otherwise be viewed as "a tacit recognition" of Fillmore's constitutional argume nt. n178 Butler appeared to reje ct Fillmore's s uggestion that Congre ss could not condition the Presi dent's use of the arme d service s, but his rea soni ng was a bit ambig uous: For the s peci fic a nd someti mes deli cate pur pose s indi cated [by statute], I thi nk Congre ss has t he directi on of the Presi dent. W hen actually in command, for rep elling invasion or for any other purpose, he must e xerci se his ow n judg ment, under his constitutional discr etion. In one s enten ce, [*991 ] I de ny that the Preside nt has a right to employ the ar my and navy for suppressi ng insurre ctions, &c., without obs erving the same prereq uisites pres cribed for hi m in calling out the militia for the sa me purpose. ... I would regard it as a fear fully moment ous occasi on to se e the Army calle d out to
shoot down insurgents without notice or pr ocla mation. n179 T hus, although it is di ffi cult to know quite what to make of the Se nate committee's silen ce on the constitutional question, the legislature's re fusal to a men d the statute s urely does not sugge st that Congre ss asse nted to Fillmore's sugge stion of constitutional difficulties. n1 80 4. The 1852 Troop De ploy ment Debate in t he House of Re prese ntatives. - In a revealing 185 2 de bate in the House of Re prese ntatives about legislative directi on of actual troop de ploy ment, legislators e xpre ssed opposition to w hat would have been t he broa dest version of Fillmore's constitutional claim. Six years earlier, Congre ss had enacte d a law raising a regiment of rifle men , osten sibly to prote ct emigrants to Oregon from the Native Americans in the area, although the law did not speci fically instruct the President to station the troops i n Oregon and instead only mentione d that purpose in its title. n18 1 Whe n Presi dent Polk used the re gi ment in the Mexi can War i nstead and then later assig ned it to California, Delegate
Joseph Lane, of the Oregon territory, introduced a resol ution req uesting the Preside nt to sen d the rifle regi ment to Oreg on, "t he service for whi ch sai d troops were created. " n1 82 The debate that ens ued marked the most s erious a nd e xtensive di scussion of Congress's powers to restrict the Commande r in Chief i n more than hal f a cent ury. n183 Although it did not result in the enact ment of a new legislative restriction, the de bate indi cates that the legislature ha d by no means suffere d a general los s of confi den ce in its pow ers. [* 992 ] Re presentative Thomas Bayly opposed t he resol ution on the ground that the House had no power to direct the Comma nder in Chie f's chose n troop moveme nts, n18 4 an assertion that Re presentative Cyrus Dunham re marked was "so strange, so novel, and s o important, that I do feel it oug ht not to pas s unnotice d." n185 I n Dunham's view, s uch a theory woul d in effe ct "neutralise the power whi ch Congres s has to declare war." n186 Repres entative David Cartter likewise called Bayly's doctrine "extraor dinary" and "alarming, "
because it would "throw the whole sa fety of the e mpire int o a single ma n's ha nds. " n18 7 The Pre sident's designation as "Comma nder in Chief," said Cartter, means simply that he "is the drill offi cer of your force s." "With the detailed disposition of the Army he does h old the s overeign command, but that disposition must be s ubor dinate to and resolved withi n the legislative purpose de clared in creating the force, and disposing the point of de fens e." n188 Represe ntative James Brooks then e mphasiz ed a ce ntral point as to w hi ch no rejoi nder was made - the differe nce between the Preside nt being s ubje ct to control by one or both houses of Congres s and the Preside nt being s ubje ct to control by statute. Like Bayly, Brooks, too, thought the res olution w ould be construe d as dire ctory and as s uch woul d be unconstitutional, but only beca use it was not in the for m of an ena cted law. Br ooks di d not deny that "the legislative power of the country" could control the dire ction of the ar my, n18 9 but he argued that the H ouse of Repres entativ es, standi ng alone,
coul d not e xercis e such control - for then we would have not one Comma nder in Chie f, "but two hundred a nd thirty-odd Commanders -in -Chie f." n190 Nor could the two Houses of Congres s colle ctively control the Preside nt's directi on of the army: "It not only requires the a ssent of both Houses, but it must have the appr oval of the E xe cutive be fore that control ca n be ha d." n191 Dis positi on of the army "i s altogether in the E xecutive," Br ooks e xplaine d, "whe n legislation has done with it." n1 92 [* 993 ] 5. Conclusion. - T he de cades foll owing the War of 181 2 were marked by presidential assertions of a limited unilateral authority to use force a broad. But even a s the military establishme nt grew, and battles were bei ng fought over whet her the Congress' s for mal authority to declare war was bei ng whittled away (as occurred with respect to the Me xica n War and the Florida war), n193 no notion of pre clusive executive power over the conduct of campaigns took root. Constitutional treatises of the era did not en dorse it. Congres s did not act in accord with it.
And exe cutive branch opini ons, the Fill more state ment notwithstanding, consistently en dorse d views inconsi stent with it. III. The Civil War and Its After math As with important aspe cts of the current conflict against al Qae da, the Civil War occurred on U.S. soil, a nd the U nion' s pros ecuti on of the war had a direct impa ct on U .S. cit izen s and resi dents, i ncluding those aligned with the e ne my. Moreover, Pr eside nt Lincoln's a ctions, espe cially in the first w eeks of the war, and then again i n issui ng various or ders to suspe nd the writ of habea s cor pus a nd in pr omulgating the Ema ncipati on Procla mation, are g enerally underst ood t o be the hi storical high -water mark of assertions of broa d, unilateral executive war powers. De fen ders of the Bus h Admi nistration's ass ertions of Commander in Chief prerogatives, there fore, often inv oke Lincoln a s an important hist orical pre cede nt. For these reas ons , the understa nding of the Commander in Chief power during the Civil War a nd its aftermat h is espe cially relevant to the curre nt debate. T his period is there fore the
centerpie ce of our historical s urvey. During and immediately after the Civil War, the argume nt for a pr eclusive, substantive Comma nder in Chie f pow er first emerged in earnest. That argument did not, however, come from the source one might expect - Preside nt Lincol n. Lincol n himself never once asse rted a broad power to disregard statutory limits, not eve n during his well -known e xercis e of e xpa nsive e xecutive war powers at the onset of hostilities or when confronte d with statutes that challe nged his own tacti cal choice s later in the war. He did dr aw upon certain claims of nece ssity, but he never made the broader contention at whi ch Fillmore had hi nted. T he clai m of a pr eclusive Commander in Chie f prerogative, instea d, found its first real fl owering in three ot her sources : first, a series of i mpas sione d spe eches by Illinoi s Senator Orville Br owning during the Senate's debate over the Confis cation Act of 186 2; se cond, a di ct um in Chie f Justice Chase' s concurrence in the postwar case of E x [* 994 ] parte Milligan; n1 94 and thir d, the first e dition of
Profe ssor John Nort on P omer oy's infl uential treatise, An Introduction to the Constitutional Law of the U nited States, publishe d in 186 8. The latter two sources have bee n invoked by proponent s of si milar clai ms throughout the remai nder of our constitutional hi story. The act ual conduct and understandi ngs of Congre ss, the Pr eside nt, and the Court during the Civil War and its aftermat h, however, a ccorded much more with the seventy years of prior constitutional practice t han with these purported s ummations of const itutional wisdom. A. The Law s of War and the Lieber Code Like Presi dents during the antebellum period, Presi dent Li ncoln did not consi der himself free to e xecute war in any manner he might choose, even in the abse nce of statutory limitations. He s hared the traditional assumpti on n1 95 that the Commander in Chief's war powers were constrained by the laws of war, an ass umption t hat continued to be unque stione d across all three branche s. In fact, Li ncoln resolve d to me morialize t he laws and usages of war in military regulations so that
Union for ces might better understand and honor them: in May 1863, the Adjutant Ge neral's Offi ce iss ued what be ca me colloquially known as the Lieber Code. n196 [*99 5] Of cours e, even after this codifi cation, the precise contours of the j us belli were not entirely clear, es pecially on the que stion of what constituted military "necessity." Thi s ambig uity affor ded Lincoln and other military comma nders considerable i nterpretive discr etion. n197 Nevertheless, Lincoln as sumed, along with everyone else w ho opine d on the subje ct, that his ar med force s were constraine d by thos e customary laws, the contents of w hich were not a product of the commander's own judgme nts but were, rather, determi ned by internationally accepte d nor ms devel ope d inde pendent of any particular comma nder's discretionary choices . n198 It is not sur prising, there fore, that, once again, ma ny of t he great war pow ers debat es (as in the Qua si-War with France) t urned on questions regarding whet her Lincol n's chose n mea ns of prosecuting the war - s uch a s the blockade of [*996 ]
Southern ports and t he Ema ncipati on Proclamati on - were consistent with the inter national laws of war. n19 9 Important as the laws of war were, however, a striking feature of the Civil War is the r ole that st atutory enact ments played, both in setting the ter ms of battle and in ge nerating constitutional decisi ons and opi nions concer ning war pow ers. As with the war on terroris m, this was a military conflict that was bei ng fought in a legal context thi ck with pot entially appli cable statutory pr ovisions . That was in part be caus e, as mig ht be expecte d of any war taking place on America n soil, there were see mingly relevant pree xisting mea sures alrea dy in place (such as the habea s provision of secti on 14 of the Judiciary Act of 1789 n200 ). But it was also a function of the fa ct that there was an aroused Congres s that was in important res pects much more aggressive in its view of how the war s hould be pr ose cuted tha n was the chief comma nder himsel f. As we s hall see, howe ver, the Exe cutive's [*997 ] constitutional argume nts in res ponse to this legal reality were
significa ntly different fr om those made in re cent years. B. Lincol n's Assertion of E xecutive Prerogatives in the Spring of 1 861 W hen the Confe deracy initiated the war in April 186 1, the federal arme d force s were hardly a power ful fighting force. M oreover, Congres s was not in session. The newly elected President thus found hi msel f alone in Washi ngton, with no obvi ous way to meet the impendi ng challe nge but als o no legislative branch positioned to counterma nd hi m. It there fore s houl d not be surprisi ng that in the twelve weeks between the firing on Fort Sumter and Congress's ret urn to Was hington, Lincoln e xer cised s everal contr oversial unilateral exe cutive war power s. The Pre side nt's first order of busine ss was to invoke his authority under Article II, Se ction 3, to conve ne Congres s back into sessi on - but only e ffe ctive July 4, 1861, at whi ch time he delivered a now-fa mous me ssage to the legisla ture explaini ng his conduct in the intervening period. n201 T he delay was per haps j ustifiable i n light of the rioti ng in Maryland and the prospe ct that
Washington, D.C. (and Congress ) mig ht soon be behind ene my lines. n202 W hat is certain is that Congres s's abse nce i n the interim all owed Li ncoln to act unilaterally and with dispat ch, without the nee d to have his deci sions debate d and ratifie d (and possibly a mended or barre d) by Congre ss. Most of w hat Lincoln di d during those twelve weeks would today be viewed as falling withi n the first two of Justice Jack son's Y oungstown categories. Lincoln i mme diately issued a procla mation calling for the blockage of Souther n ports a nd for the states to s upply 75, 000 new militia. As to each of these, Li ncoln e xplaine d in his July 4 message to Congre ss, his a ction "was believed t o be strictly legal," n2 03 by whi ch Li ncol n pres uma bly mea nt to refer to the statutory delegations to the Preside nt in the Militia Act of 1 795 and the Insurrection Act of [* 998 ] 1807. n204 (The Supre me Court would later hold in the Priz e Cases that those statutes aut horize d the blockade. n205 ) Without statutory authori zation, Lincoln dis patched war shi ps to Fort Sumter a nd instructed them
to return fire if attacke d, n20 6 but there was no conte ntion that such a ction conflicte d with any statute. Three ot her of Lin coln's a ctions, however, might fairly be sai d to have transgres sed statutory limits . We dis cuss Li ncol n's explanation of ea ch of the m in tur n. As we shall see, Lincoln a nd his Admini stration repeatedly avowed that Congre ss, by statute, retaine d the final w ord as to not only these t hree matters but others. Lincoln als o refrained fr om ever as sert ing any authority to disregard statutes regulating the conduct of the war. Indee d, on April 18, 186 1, six days after the attack on Fort Sumter, one day after Virginia's se cessi on, and just a day be fore the naval blockade, Attorney Ge neral Edward Bate s wrot e a for mal opinion to Lincoln disclai ming that very authority. The opinion conclude d that the Presi dent could not establis h a separate Bureau in t he War Depart ment to s upervise and regulat e the newly called -up militia. n207 Bates e xplaine d that, as Commander in Chief, the Preside nt did have w hat we have been calling a "s uperinte nde nce "
prerogative: he could a ppoi nt the Secretary of War as his "reg ular organ" to promulgate rules a nd orders as the a cts of the Exe cutive, "binding on all within the s phere of hi s just authority." n208 T hat hierarchical authority was not, however, supplemented by a s ubstantive pre clusive prerogative, as Bat es explai ned in the very next sente nce : "But this power is limited and does not exten d to the repeal or contradiction of e xisting statute s ... ." n209 1. Suspen sion of the Writ. - Begi nning in A pril 1861, Lincoln authorized ar my generals to "sus pen d the writ of ha beas corpus for the public sa fety" where ne cessary - first between Philadel phia and Washi ngton (in res ponse to rioting occurring in Maryland), and later in [*999 ] other locations, reaching as far north as Mai ne. n2 10 Of course, the army generals were hardly in a position to "sus pend" the statutory power of courts to issue writs, a nd no effort was made to use military for ce to compel judges to refuse to e ntertain habea s petitions . The notion of e xecutive "sus pen sion, " then, is something of a mi snomer.
What Lincoln' s order allowe d was for army generals to detain pers ons without confor ming to the pr oce dural req uireme nts otherw is e appli cable by virtue of constitutional or statutory require ments that usually govern s uch deprivations of li berty. n211 At the limit, the s uspensi on orders even s upplie d a basis for refusing to produce detainees whe n ordere d to do so by courts. I ndee d, Li ncol n went so far as to per mit his offi cers to disregard act ual judi cial orders granting habeas relie f, includi ng one from Chie f Justice Taney, sitting as a circuit judge, in t he fa mous cas e of E x parte Merryma n. n2 12 To ignore such j udi cial orders wa s to scoff at an exe cutive obligation that was arguably conte mplated by statutory law n2 13 and to re nder the 1789 statute e ssentially mea ningless i nsofar as its prime function had been to che ck unlaw ful e xecutive detentions. In this sens e, the "s uspe nsion" iss ue pre sented a s s erious a Category Thr ee case a s one could conjure . In his July 4 message to Congress, Li ncoln de fen ded his acti on in "s uspendi ng" the writ with his fa mous
remark suggesting that a Presi dent might choos e to violate a single law lest "all the laws but one ... go une xecuted. " n214 But in making this state ment, the Pre sident was not asserting a gen eral constitutional power as Commander in Chief to pick and choose a mong statutory mandates regulating the conduct of war. He was instea d remarki ng on the Presi dent's res ponsibility to take action on an emergen cy basis whe n doi ng so is nece ssary to preserve the nation. n215 Even here, Lincol n was care ful to insist [*1 000 ] that Congress retaine d ultimate control, a nd he rea dily conced ed that his bol d initiatives, including those regarding the sus pensi on of ha beas, were s ubje ct to statutory qualifi cation or override: "Whet her there shall be any legislation upon t he subject, and, if any, what, is submitted entirely to the better judgment of Congress. " n216 I n other w ords, Lincoln was argui ng that so long as a power resided in the Congre ss, and the Congres s was una ble to act be caus e it was not in ses sion at a moment of emergency or crisis, the Preside nt could, in
effe ct, act s o as to preserve the nation. Altho ugh s uch initial exe cutive action w ould clearly shift the burde n of inertia sharply in the E xe cutive's favor, Lincoln di d not challenge Congress's aut hority to counterma nd the Preside nt's emerge ncy acti ons. But as much as Li ncoln ma de referen ce to ne cessity, he ultimately rested hi s legal position on a n even more technical a nd bounded ground, albeit one t hat was and is still quite contr oversial. Lincoln argued that the Sus pen sion Clause itsel f empowers t he President to suspe nd the privilege of the writ of habeas corpus in cases of reb ellion or invasi on, at lea st when Congress is not in se ssion. n21 7 In other words, Lincoln was cl aiming that the S uspe nsion Clause authori zed both Congres s and the Preside nt to render the habea s statute ineffe ctive in case s of e merge ncy, maki ng this particular e xerci se of emerge ncy e xecutive power es pecially legitimate as a l egal matter. This may not have bee n the stronge st reading of the Sus pen sion Clause - Chie f Justice Taney certainly di d not think s o n21 8 - but it was a far cry
from a claim of a general power pursuant to the Commander i n Chie f Clause to de fy statutes regulating the conduct of war. n219 [*100 1] 2. E xpendi ng Unappropriated Funds To Raise Troops. - On May 3, 1 861, Lincoln iss ued a pr ocla mation i n which he "called into the service of the U nited States 42,0 3 4 volunteers to s erve for the period of three years, . .. to be mustere d into service as infa ntry and cavalry," and in which he "directe d" that the ar my "be increase d by the addition of eight regime nts of infa ntry, one regiment of cavalry, and one regime nt of artillery, making altogether a maxi mum aggrega te increase of 22, 714 offi cers a nd enliste d me n," and that the navy enlist an additional 18, 000 sea me n. n22 0 These i ncreas es in the ar my and navy did not, per haps, transgress any e xpres s spe cifi c statutory limits; but they did violate the i mplied li mit established by Congres s's existi ng appropriations stat utes. There fore this conduct could fairly be viewed, as some have portrayed Jefferson's unilateral conduct in the Chesapeake incide nt in 180 7, n22 1 as an
executive initiative that violated a statutory restriction - in addition to violating the constitutional dire ctives that "no M oney s hall be drawn from the Treas ury, but in cons eque nce of a ppropriations made by law," n222 a nd that it is for Congre ss to raise the ar my and pr ovide and maintain a navy. n223 In defen ding this a ction in his July 4 addres s, Lincol n did not invoke any notion of a pre clusive power over the conduct of a ca mpaig n, not even to suggest that Congress w ould be pow erless to pre clude hi m from using the troops now that they were under his command. He instead took a tack ak in to the one Jeffer son had taken after the Che sapeake incide nt. Lincoln mounted a bounde d necessity de fense , owing to Congres s's abse nce at a moment of crisis . He explained t hat he had a cted only beca use Congres s was not available and be caus e he was confide nt that he was a surrogate of the legislature, i n effe ct acting in trust for it. In this s ort of case, Lincoln argue d, technical compliance with e xisting statutes might not be compelle d: "T hese meas ures, whether
strictly legal or not, were ventured upon under what appeare d to be a popular de mand a nd a public neces sity, trusting, then, as now, [*100 2] that Congres s would rea dily ratify them. It is believe d that nothi ng has be en done beyond t he constitutional compete ncy of Congress. " n2 24 3. Secret and Una u thorized E xpe nditures t o Private Persons To Rai se Troops. - The third of Lincoln's apparent statutory transgres sions is the least remarke d upon but perha ps the most important for our purposes. On April 20 , 1861, j ust eight days after the attack on Fort Sumter, Lincoln aut horize d naval commanda nts to purchase or charter, and ar m, several stea mshi ps for public de fen se; dire cted the Se cretary of War to a uthorize two New Yorkers (incl uding the Governor) to make arrangeme nts for the transportation of troops and munitions ; and directed the Secretary of the Trea sury to advance two million dollars to three New Yorkers - John Di x, Ge orge Opdyke, and Ri char d Blatchford - "t o be used by the m in meeting s uch re quisitions as s houl d be dire ctly, conseq uent
upon the military and naval measure s, ne cessary for the de fen se and support of the Gover nme nt." n2 25 The se expen ditures were inconsistent with Congres s's appr opriations. The private contracts al so appear to have violated an e xisting statute that prohibited the Secretarie s of State, Treasury, War, a nd the Navy from making any contract "e xcept under a law authorizi ng the sa me, or under an a ppropriation ade quate to its fulfill ment." n226 T hey were also e ffe cted in s ecret, putatively because Lincoln was a fraid the e xe cutive branch containe d ma ny disloyal e mployee s who coul d not be trusted in s uch matters. n2 27 Nota bly, Lincoln omitted mention of these e xpe nditures i n his July 4, 186 1, spe ech t o Congress. T hey were not publici zed until the foll owing April, after the H ouse of Repres entatives had cens ured for mer War Secretary Simon Ca meron for, a mong other thi ngs, having involve d the gov ernme nt in some of thos e private contracts. n2 28 Four weeks a fter the ce nsur e - more than one year after the eve nts took pla ce - Lincoln wrote to Congre ss to
explain that Ca mer on ha d acted with the a pproval of the Pre sident and the entire cabinet, all of whom ha d convene d on A pril 20 , 1861 a nd unani mously deci ded to take such e xtraordinary ste ps. Consiste nt with his apparent noti ons of constitutional [* 1003 ] restraint, Lincol n did not attempt to justify his undis clos ed e xtrastatutory actions on the ground that, like Jeffe rs on be fore him, he had all along acted only on the assumption that he was doing what Congres s woul d have wanted and that he was ha ppy to have Congre ss inform him otherwise. He had, a fter all, kept the matter secret and waited we ll past the moment of e xigency and the retur n of Congress to even discl ose it. Perha ps for that reason, Lincol n confe ssed that s ome of these measure s "were without any authority of law," but claime d they were justifie d nonethele ss be caus e they were nee ded to e nsure that "the Governme nt was saved from overthrow. " n22 9 Lincol n did not claim that his actions were legal, let alone that he had a constitutional prerogative to disregar d Congress's will as
expres sed in statutory directives. Instead, he confe ssed t o b
Mo eove
account pe
th s h stor ca
o ms a eas one unc on beyond supp y ng n o ma on e evan o he emp ca ques ons ha may a se n
cons u ona wa powe s d spu es Such a h s o y a so prov
des mportant conf rmat on of what s w de y
taken to be a fundamenta aspect of our nat ona ethos - of how we co ect ve y understand
ourse ves as a nat on t has ong been a centra tenet of the Amer can dea o he bas c na ona s o y
we e ou se ves as ea y as g ade schoo that ou government s def ned by separated and b ended
powers w th checks and ba ances that p omo e pub c eason ng and deba e preserve democrat c se fgovernance and protect aga nst concentrat ons of power n a s ng e f gure The h s o y we have
ev ewed sugges s ha th s fe t understand ng s not a myth be ed by the way ou government has
actua y operated n mes o c s s Ra he he h s o y shows ha th s se f-concept on has deep roots n
centur es of po t ca branch pract ce concern ng matters of the gravest nat ona consequence
f a theory of pres dent a prec us ve power were now to take root - such that Pres dents
began to act as a ma e o cou se as f hey we e ent t ed to make wart me dec s ons free of he cus oma y
checks and n ways ha p o P es den s s mp y d d no con emp a e hen the ongstand ng narrat ve abou he
Ame can sys em o gove nmen m ght ad ust to better f t the new pract ce Over t me a story
h gh ght ng he mpe a ves o execu ve ac on and the need for unfettered pres dent a eadersh p
m ght beg n o d sp ace he na a ve we p esen y ce eb a e The avu s ve change n he const tut ona aw of
war powers ha some now ca o hen portends consequences that reach far beyond the way that
d screte nterbranch batt es over he cons u ona aw o war powers shou d be *1102 reso ved Th s
new prec us ve const tut ona pract ce f accepted cou d nf uence how we and future
generat ons wou d conce ve of the const tut ona system as a who e such that the dea of
checks and ba ances m ght no onger seem so centra o wha de nes he Ame can amewo k o gove nmen
At ssue he e o e s whe he p esen c cums ances demons a e he need o a change that r sks such a
fundamenta rev s on of ou nat ona dent ty
Congressional power projection stops hotspot escalation to nuclear war
O Han on 7
F ede ck s a Res den Scho a a he Ame can En e p se ns u e and M chae O Han on Sen o Fe ow and
Sydney S e n Cha n Fo e gn Po cy S ud es a he B ook ngs ns u on “The Case o La ge G ound Fo ces” S an ey Founda on
Repo Ap h p //s an ey ounda on o g/pub ca ons/o he /Kagan_OHan on_07 pd //cc
We live at a time when wars not only rage in nearly every region but threaten to erupt in many places where the
current relative calm is tenuous. To view this as a strategic military challenge for the United States is not to espouse a specific theory
of America’s role in the world or a certain political philosophy. Such an assessment flows directly from the basic bipartisan view of
American foreign policy makers since World War II that overseas
threats must be countered before they can
basic stability of the international system is essential to
American peace and prosperity, and that no country besides the U nited S tates is in a position to lead the
way in countering major challenges to the global order . Let us highlight the threats and their consequences
with a few concrete examples, emphasizing those that involve key strategic regions of the world such as the
Persian Gulf and East Asia, or key potential threats to American security, such as the spread of nuclear
weapons and the strengthening of the global Al Qaeda/jihadist movement. The Iranian government has
rejected a series of international demands to halt its efforts at enriching uranium and submit to international
inspections. What will happen if the US—or Israeli—government becomes convinced that Tehran is on the verge of
fielding a nuclear weapon? North Korea , of course, has already done so, and the ripple effects are
beginning to spread. Japan’s recent election to supreme power of a leader who has promised to rewrite that country’s
directly threaten this country’s shores, that the
constitution to support increased armed forces—and, possibly, even nuclear weapons— may well alter the delicate balance of fear
in Northeast Asia fundamentally and rapidly. Also, in the background, at least for now,
Sino- Taiwanese tensions
continue to flare, as do tensions between India and Pakistan , Pakistan and Afghanistan, Venezuela and the
United States, and so on. Meanwhile, the world’s nonintervention in Darfur troubles consciences from Europe to America’s Bible
Belt to its bastions of liberalism, yet with no serious international forces on offer, the bloodletting will probably, tragically, continue
unabated. And as bad as things are in Iraq today, they could get worse. What would happen if the key Shiite figure, Ali al
Sistani, were to die? If another major attack on the scale of the Golden Mosque bombing hit either side (or, perhaps, both sides at
the same time)? Such deterioration might convince many Americans that the war there truly was lost—but the costs of reaching
such a conclusion would be enormous. Afghanistan is somewhat more stable for the moment, although a major Taliban offensive
appears to be in the offing. Sound US grand strategy must proceed from the recognition that, over
the next few years
and decades, the world is going to be a very unsettled and quite dangerous place, with Al Qaeda
and its associated groups as a subset of a much larger set of worries. The only serious response to this international
environment is to develop armed forces capable of protecting America’s vital interests throughout this
dangerous time. Doing so requires a military capable of a wide range of missions—including not only
deterrence of great power conflict in dealing with potential hotspots in Korea , the Taiwan Strait, and
the Persian Gulf but also associated with a variety of Special Forces activities and stabilization operations. For
today’s US military, which already excels at high technology and is increasingly focused on re-learning the lost art of
counterinsurgency, this is first and foremost a question of finding the resources to field a large-enough standing Army and Marine
Corps to handle personnelintensive missions such as the ones now under way in Iraq and Afghanistan. Let us hope there will be no
such large-scale missions for a while. But preparing for the possibility, while doing whatever we can at this late hour to relieve the
pressure on our soldiers and Marines in ongoing operations, is prudent. At worst, the only potential downside to a major program to
strengthen the military is the possibility of spending a bit too much money. Recent history shows no link between having a larger
military and its overuse; indeed, Ronald Reagan’s time in office was characterized by higher defense budgets and yet much less use
of the military, an outcome for which we can hope in the coming years, but hardly guarantee. While the authors disagree between
ourselves about proper increases in the size and cost of the military (with O’Hanlon preferring to hold defense to roughly 4 percent
of GDP and seeing ground forces increase by a total of perhaps 100,000, and Kagan willing to devote at least 5 percent of GDP to
defense as in the Reagan years and increase the Army by at least 250,000), we agree on the need to start expanding ground force
capabilities by at least 25,000 a year immediately. Such a measure is not only prudent, it is also badly overdue.
torture
CIA surveillance of Congressional intelligence committees creates a cycle of
secrecy about CIA corruption and torture because reports become inaccessible
Rosenthal 14 (Andrew.
Andrew Rosenthal, the editorial page editor of The New York Times, is in charge of the paper's opinion
pages, both in the newspaper and online. He oversees the editorial board, the Letters and Op-Ed departments, as well as the
Editorial and Op-Ed sections of NYTimes.com. “The C.I.A. Torture Cover-Up”. 11 March 2014. The New York Times.
http://www.nytimes.com/2014/03/12/opinion/the-cia-torture-cover-up.html?_r=0)//JuneC//
It was outrageous enough when two successive presidents papered over the Central Intelligence Agency’s history of illegal
detention, rendition, torture and fruitless harsh interrogation of terrorism suspects. Now
the leader of the Senate
intelligence committee, Dianne Feinstein, has provided stark and convincing evidence that the
C.I.A. may have committed crimes to prevent the exposure of interrogations that she said
were “far different and far more harsh” than anything the agency had described to Congress.
Ms. Feinstein delivered an extraordinary speech on the Senate floor on Tuesday in which she
said the C.I.A. improperly searched the computers used by committee staff members who
were investigating the interrogation program as recently as January. Beyond the power of her
office and long experience, Ms. Feinstein’s accusations carry an additional weight and
credibility because she has been a reliable supporter of the intelligence agencies and their
expanded powers since the attacks of Sept. 11, 2001 (sometimes too reliable). On Tuesday,
the C.I.A. director, John Brennan, denied hacking into the committee’s computers. But Ms.
Feinstein said that in January, Mr. Brennan acknowledged that the agency had conducted a
“search” of the computers . She said the C.I.A.’s inspector general had referred the matter to the Justice Department for
possible criminal prosecution. “Besides the constitutional implications,” of separation of powers, she
said, “the C.I.A.’s search may also have violated the Fourth Amendment, the Computer Fraud
and Abuse Act, as well as Executive Order 12333, which prohibits the C.I.A. from conducting
domestic searches or surveillance.” Ms. Feinstein’s speech detailed the lengths to which the C.I.A. had gone to hinder
the committee’s investigation, which it began in 2009 after senators learned the agency had destroyed videotapes of the
interrogations under President George W. Bush. Under
President Obama, prosecutors exonerated the
officials who ordered those tapes destroyed. Ms. Feinstein said that when Senate staff
members reviewed thousands of documents describing those interrogations in 2009, they
found that the C.I.A.’s leadership seriously misled the committee when it described the
interrogations program to the panel in 2006, “only hours before President Bush disclosed the
program to the public.” The interrogations included a variety of brutal methods, some of
which — waterboarding in particular — were unequivocally torture. When the Senate staff
compiled a still undisclosed 6,300-page report, it described these acts and also concluded that
the C.I.A. had falsely claimed that torture and other brutality produced useful intelligence. The
report has been going through the snail’s pace review and declassification process since December 2012. The C.I.A. disputed some of
its findings. But Ms. Feinstein publicly confirmed on Tuesday that an internal review by the C.I.A. had reached conclusions similar to
those in the Senate staff report. It
was the committee staff’s possession of that internal review —
which the C.I.A. has refused to give to the Senate — that spurred what Ms. Feinstein said was
an illegal search of computers (provided to the Senate staff by the C.I.A.) that contained drafts
of the internal review. Ms. Feinstein said that staff members found the drafts among the documents that the C.I.A. had
made available to the committee. She said she did not know whether the drafts were put there inadvertently, or by a whistleblower. The Senate’s possession of the documents was entirely legal, she said. She dismissed the acting
C.I.A. general counsel’s claim that the Senate staffers had hacked agency computers as intimidation. The counsel, she noted, was a
lawyer and then chief lawyer for the interrogations division and is “mentioned by name more than 1,600 times in our study.” The
Justice Department now has a criminal investigation to conduct, but the C.I.A. internal review and the Senate report must be
released. Ms. Feinstein called on President Obama to make public the Senate report, which he has supported doing in the past. She
said that this would “ensure that an un-American, brutal program of detention and interrogation will never again be considered or
permitted.” The lingering fog about the C.I.A. detentions is a result of Mr. Obama’s decision when he took office to conduct no
investigation of them. We can only hope he knows that when he has lost Dianne Feinstein, he has no choice but to act in favor of
disclosure and accountability. Correction: March 11, 2014 An earlier version of this editorial incorrectly stated that Senator Dianne
Feinstein had referred the matter of the C.I.A.’s search of the Senate computers to the Justice Department. The referral was made
by the C.I.A.’s inspector general.
The Senate report was a step in the right direction - further disclosure exposes
the truth of inhumane CIA practices
Foster 6/02 (Peter Foster - Telegraph's US Editor, June 2, 2015, The Telegraph, CIA torture more 'brutal and sadistic' than
Senate report disclosed, http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11647370/CIA-torture-more-brutal-andsadistic-than-Senate-report-disclosed.html)//JS
The CIA’s
use of torture was far more “brutal and sadistic” than was disclosed in last year’s
Senate report into the agency’s interrogation techniques, according to new information from a
Guantanamo Bay detainee. The newly declassified accounts of the torture of Majid Khan, a so-called "high value detainee",
describe in graphic detail how he was sexually assaulted, hung from a beam for several days without a break and
controversial US
half-drowned in tubs of freezing water. The descriptions are contained in 27 pages of notes from interviews between Mr Khan and
his legal team that were cleared for release by the US government on Tuesday, and first reported by Reuters. The notes appear to
corroborate a Telegraph report from September last year in which a highly-placed intelligence source alleged that CIA waterboarding
went far beyond the controlled ‘simulated’ drowning known as ‘waterboarding’. In the new testimony, Mr Khan, who was arrested
in Karachi in 2003 and held for more than three years in CIA black sites before being transferred to Guantanamo Bay in 2006, is
described undergoing the near-drownings during an interrogation in May 2003. “Guards and interrogators brought him into a
bathroom with a tub. The tub was filled with water and ice. Shackled and hooded, they placed Khan feet-first into the freezing water
and ice,” the excerpt said, “They lowered his entire body into the water and held him down, face-up in the water. An interrogator
forced Khan's head under the water until he thought he would drown.” Last year an intelligence source provided a very similar
description of CIA excesses against an unnamed detainee, telling The Telegraph: “They weren’t just pouring water over their heads
or over a cloth. They were
holding them under water until the point of death, with a doctor present to make
sure they did not go too far. This was real torture.” The source added that doctors were also present during the near-death
interrogations to ensure there was not a fatality – a fact corroborated by Mr Khan – who says he begged one doctor for help but the
doctor instead instructed the guards to hang him from including a metal bar for a further 24 hours. The notes say that Mr
Khan
was kept in the dark for much of 2003 and in solitary confinement from 2004-2006, that he
was threatened with tools, a hammer, and that his interrogators sometimes had the smell of alcohol on their breath.
Mr Khan, now 35, grew in Baltimore, Maryland and is now a government witness in the trial of Khalid Sheikh Mohammed and others
accused in the September 11 attacks, after pleading guilty to terror conspiracy charges in February 2012. Lawyers for Mr Khan and
other rights groups say that the
new testimony makes clear that the 500-page Senate torture report –
which was bitterly contested by the CIA and caused huge controversy when it was released
last year – only scratched the surface of what actually happened. “It is clear that the CIA
interrogators were completely out of control,” Wells Dixon, a lawyer with the Center for Constitutional Rights
who represents Mr Khan told The Telegraph, “the reality of what happened to men like Majid Khan is far more
brutal and sadistic than has been revealed in the Senate report or any of the other prior public
disclosures.” Reprieve, the UK-based legal charity that represents several victims of CIA extraordinary rendition, said the
testimony proved that there was still a “huge amount” of work to be done to reveal both the truth about torture, and the role
played in the CIA’s programme by Britain. “While
the Senate torture report is a crucial piece of work, it has
always been very clear that those parts of it which were published were only the tip of the iceberg,” said Kat Craig,
Reprieve’s legal director, “Today’s revelations make clear that many of the grisly details remain hidden in the shadows.” Another
extended extract that Mr Khan's lawyers shared with The Telegraph described how he was subjected to near-drowning during an
interrogation in July 2003, to the point where his lungs filled with water. The notes continue: "He was hung for several days from a
metal pole, without any break, without any food and very little water. Guards and interrogators then carried Khan into a room.
[There was a] tub constructed from plastic sheeting that again had water and ice in it. Khan was forced into the tub and held down
on his back, his hands were shackled underneath him and the arch of his back forced his head to tilt backwards into the water at an
angle. A cloth hood remained on his face as the guards forced his body down into the tub. One of the interrogators held a bucket
filled with water and large chunks of ice over his head. The interrogator poured the water and ice into Khan's mouth and nose as
well as on his genitals from a high distance. As the interrogator poured the tub began to fill up. Khan could not breath and water
went into his lungs. The guards and interrogators flipped Khan over from his front to his back several times, each time forcing his
head into the water. An interrogator demanded answers to his questions throughout this process. This torture session was followed
by a 15 minute videotaped interrogation in another room where Khan was forced to sit naked on a wooden box and he was again
subject to sleep deprivation. He was forced to write his own confession while being filmed naked if he wanted some rest."
According to a full list of excerpts released by the The Center for Constitutional Rights: Khan was raped while in CIA
custody (“rectal feeding”) and
sexually assaulted: “As described in the Senate Intelligence Committee Report, Khan was
assaulted in other ways as well, including by having his
‘private parts’ touched while he was hung naked from the ceiling.” The CIA maintains that rectal feedings were
necessary after Khan went on a hunger strike and pulled out a feeding tube that had been inserted through his
nose. Senate investigators said Khan was cooperative and did not remove the feeding tube. Khan was hung on a wooden
beam for days on end: “Interrogators and guards at a black site hung Khan by his hands from a wooden beam for three
raped while in CIA custody (‘rectal feeding’). He was sexually
days. He was naked and shackled. He was provided with water but no food.” Khan spent much of 2003 in total darkness: “Majid had
an uncovered bucket for a toilet, no toilet paper, a sleeping mat and no light…. For much of 2003 he lived in total darkness.” Khan
was held in solitary: “Khan was essentially held in solitary confinement from 2004 to 2006.” Khan’s family was threatened by
interrogators: “They also threatened to harm his family, including his young sister. He was told, ‘son, we are going to take care of
you. We are going to send you to a place you cannot imagine.’” Khan experienced repeated beatings and threats to beat him with
tools, including a hammer: “They would come in with a bag of tools and set them down next to Majid. They would pull out a
hammer and show it to Majid. One of them threatened to hammer Majid’s head. They sometimes smelled like alcohol.” Doctors
were among Khan's worst torturers; Khan was hung on a metal bar: “When a physician came to examine him, Khan begged for help.
In response, the physician instructed the guards to take Khan back into the interrogation room with the metal bar and hang him.
Khan remained hanging there for another 24 hours before being interrogated again and forced to write his own ‘confession’ while
being filmed naked if he wanted some rest. He was finally placed in a cell, where he remained numb and immobile for several days.”
Releasing records causes public backlash – disrupts torture programs
Feinstein and Rockefeller 14 (Dianne Feinstein - Democrat: Chair of the US intelligence committee on the U.S. Senate
(California), and Jay Rockefeller - Democrat: Former chair of the committee (West Virginia), April 10, 2014, The Washington Post,
The Senate report on the CIA’s interrogation program should be made public, http://www.washingtonpost.com/opinions/thesenate-report-on-the-cias-interrogation-program-should-be-made-public/2014/04/10/eeeb237a-c0c3-11e3-bcecb71ee10e9bc3_story.html) //JS
We believe that public
release is the best way to ensure that this program of secret detention and
coercive interrogation never happens again. It will also serve to uphold America’s practice of
admitting wrongdoing and learning from its mistakes. Some, however, do not want this report to become public
and are seeking to discredit it. Critics’ two most common refrains: The report was written to support a predetermined outcome, and
it is flawed because of a lack of interviews. Both assertions are false and can easily be refuted. It is important to understand the
origins of the committee’s study. The full committee was
not briefed on the CIA’s detention and
interrogation program until September 2006 — more than four years after the program had begun —
and learned about the existence and eventual destruction of CIA interrogation tapes only from
news reports in late 2007. In December 2007, media reports revealed that the CIA had destroyed videotapes depicting the
interrogations of its first two detainees, Abu Zubaida and Abd al-Rahim al-Nashiri . The CIA had destroyed those tapes in 2005 over
the objections of President George W. Bush’s White House counsel and the director of national intelligence, among others. On Dec.
11, 2007, CIA Director Michael Hayden told the Senate intelligence committee that the destruction of the tapes did not amount to
destruction of evidence because detailed records of the interrogations existed in the form of CIA operational cables. Hayden also
assured the committee that those cables were a more-than-adequate representation of the tapes and said that committee staff
would be given access to them. Over the following year, staff members pored over those cables. In February 2009, they reported
their findings to the committee. By that time, one of us, Sen. Feinstein, had taken over the chairmanship from the other, Sen.
Rockefeller. Working with then-Sen. Christopher S. Bond (R-Mo.), the vice chairman of the committee, terms for a comprehensive
review of the CIA’s program were drafted. The intelligence committee voted 14 to 1 to initiate that study. After reaching an
agreement with the CIA on how the study would be conducted, committee staff began working on a bipartisan basis. Contrary to
recent allegations, the final report was not written to support preconceived notions. It was written to document the facts of the
CIA’s detention and interrogation practices — nothing more and nothing less. Almost every sentence in the 6,600-page report is
attributed to CIA documents, including cables, internal memoranda and e-mails, briefing materials, interview transcripts, classified
testimony, financial documents and more. When the executive summary is released, the public will see how thoroughly documented
and fact-based it is. The criticism that committee staff did not conduct interviews is also misleading. In August 2009, just five months
after the committee had authorized its study, the Justice Department broadened its look at the CIA program from a review of the
destruction of the videotapes to an investigation into CIA interrogations. This meant that CIA officers whom the committee might
have interviewed now faced legal jeopardy, which led then-CIA
Director Leon Panetta to decide not to compel
agency personnel to participate in our interviews. And it was this Justice Department review, not
partisanship, that led Republicans on the intelligence committee to withdraw from the study.
Although the committee was not able to conduct new interviews, it had access to and used transcripts from more than 100
interviews conducted by the CIA inspector general and other agency offices while the program was ongoing and shortly after it
ended. Many of these transcripts were from interviews of the same people the committee would have talked to, with answers to the
same questions that would have been asked. This included top managers, lawyers, counterterrorism personnel, analysts,
interrogators and others at the CIA. Ultimately, the Senate
intelligence committee’s report should be judged
on the accuracy of its findings and the quality of its conclusions, not on whether its
information came from documents or interviews. Soon, the American people will be able to
judge this for themselves. We have confidence that they will conclude, as we have, that this
program was a mistake that must never be repeated.
These torture reports serve no counterterror purpose – they’re
counterproductive for national security
Jervis 15- Adlai E. Stevenson Professor of International Politics at Columbia University and a member of the Saltzman Institute of
War and Peace Studies (Robert, “The Torture Blame Game: The Botched Senate Report on the CIA's Misdeeds”, Foreign Affairs,
May/June 2015, HeinOnline)//WK
The debate over whether torture produced useful information should not be confused with
the broader question of whether the interrogation program did more harm than good . Even if
torture worked in the narrow sense, its costs might have outweighed its benefits: the negative
global reaction to the CIA's brutal methods decreased support for U.S. policies and may have
helped terrorist groups win more sympathizers and recruits. At the very least, the torture committed
alienated U.S. allies and gave ammunition to those who opposed Washington's policies,
contributing to the belief that the United States was hypocritical in its public defense of liberty
and prone to treat Muslims as less than human. But neither the Senate reports nor the CIA rebuttal seeks to calculate those costs.
The CIA's interrogation program raised a host of moral questions as well, which the Senate reports and
the CIA rebuttal ignore. Perhaps this is just as well; one has no reason to expect senators or intelligence
officials to be especially qualified on the subject of morality. But both the Democratic majority report and
the Republican dissent take easy ways out. By claiming that the torture was ineffective, the Democratic
report encourages a sense of indignation and implies that the interrogation program was
morally indefensible. The Republican dissent, for its part, contents itself with claiming that the torture did produce useful
information but avoids an accounting of its moral and political costs, suggesting that such concerns have no place in
counterterrorism policies.
--Scenario 1 is soft power
The world already knows about CIA human rights abuses – that creates
international double standards that undermine the rule of law globally
Nossel 12- Amnesty International USA Executive Director (Suzanne, “Call on President Obama to keep his earlier human rights
promises”, Amnesty International USA, 11/7/12, http://www.amnesty.ca/news/news-item/call-on-president-obama-to-keep-hisearlier-human-rights-promises)//WK
Responding to the re-election of Barack Obama as President of the United States of America, Amnesty International USA executive
director Suzanne Nossel said: “When President Obama was first elected in 2008, many human rights activists rejoiced. It had been
eight long years where the United States tortured, detained hundreds without charge and trial, and tried to justify the horrors of
Abu Ghraib. “President Obama’s
first campaign for the White House offered the promise of an
administration that would recapture the United States’ credibility on human rights issues,
bringing detention practices in line with international law, repudiating secrecy and ensuring that human rights weren’t traded away
in the name of national security. “More simply, President Obama promised a new dawn of American leadership, one in which human
rights would be given more than lip-service. “Unfortunately
the first Obama administration broke many of
its promises when human rights were pitted against national security interests. When it comes to
countering terrorism, President Obama has hidden behind national security imperatives to shield
administration policy in secrecy and pursue programmes such as expanded drone use. “President
Obama’s second term will determine whether the post-9/11 stains on the United States’
human rights record are an anomaly or the new normal. It was Mitt Romney who said of the challenges of
counter-terrorism that ‘we can't kill our way out of this mess’, but too many of President Obama’s policies are an attempt to do just
that. “ Unlawful
killings and other human rights violations sanctioned by the US government
undermine the rule of law globally , creating a climate in which other countries can point to a
double-standard to justify their own human rights abuses with the refrain, ‘ if the US
government does that, why shouldn’t we .’ “The United States’ power and influence should
derive from its commitment to the rule of law and to advancing human rights and dignity.
President Obama should not trade that away at any price. “President Obama has been given a second chance to
keep his promises on human rights. Don’t blow it.”
Acknowledging and accepting responsibility for its actions related to torture is
necessary for regaining international credibility – releasing the torture report is
an important first step
Knigge 14 – International Reporter at Deutsche Welle: transatlantic relations, US foreign and domestic policy, global Internet
politics. (9/12/2014, Michael, Deutsche Welle, “Opinion: Senate torture report release will help US foreign policy”,
http://www.dw.com/en/opinion-senate-torture-report-release-will-help-us-foreign-policy/a-18118040 // SM)
A key argument for many critics to shelve or delay the report is that its release could have
negative consequences - specifically for Americans abroad and more generally for US foreign policy. Unfortunately,
they have the argument exactly wrong. It is important to note that it is not the release of the report
that could potentially trigger negative consequences for US citizens and foreign policy, it is the acts
and practices of torture and rendition detailed in the report that may do so. And it is equally important to point
out that contrary to what these critics are claiming the release of the report will not damage, but could salvage US
foreign policy. No place for hubris How can the US, the global superpower, which historically is viewed and views
itself as the beacon of freedom - as the ‘city upon a hill' for the world to emulate, - criticize other countries
on human rights when itself doesn't come clean on its own abuses? It can't. To regain the
international credibility that has been lost due to the egregious overreach by the CIA and others
during the Bush years, it is crucial that Washington must acknowledge and accept responsibility for
these actions. But to focus on international aspects only would undersell the issue. It's much more important than that. In a
democratic, rule-of-law based country there simply cannot be a place for torture. By releasing the Senate report on
torture the US is making an important step in asserting a fact that actually should not need to
be asserted in the first place.
Anti-americanism and unilateral military policies decimate US legitimacy,
threating the American international system – that causes excess interventions
and great power wars
Kupchan 12 – Ph.D. in international relations from Oxford, Associate Professor of International Relations @gtown, Senior Fellow
and Director of Europe Studies at the Council on Foreign Relations (Charles Kupchan, “Sorry, Mitt: It Won't Be an American Century”,
FEBRUARY 6, 2012, http://www.foreignpolicy.com/articles/2012/02/06/it_won_t_be_an_american_century?page=0,2)
In an election season, such talk rolls easily off the tongue. But Romney's hackneyed rhetoric is woefully out of step -- both with an American electorate
A sharp economic downturn and
expensive, inconclusive conflicts in Iraq and Afghanistan have left Americans ready for a focus
on the home front. Abroad, the charge for the next U.S. president can hardly be to stick his head in the sand and deny that the
global distribution of power is fast changing. On the contrary, it is to react soberly and steadily to the implications of such
hungry for a less costly brand of foreign policy and with a world in the midst of tectonic change.
change and ensure that the United States remains secure and prosperous even as economic and military strength spreads to new quarters. President
Barack Obama is on the correct path. Leaving
Iraq and overseeing a paced withdrawal from Afghanistan will
bring U.S. commitments back into line with U.S. interests. Special operations and drone strikes have proved far more
effective in fighting al Qaeda than has occupying countries in the Middle East and South Asia, and an offshore posture in the Persian Gulf is the best
way to deal with Iran. Amid
China's rise and the economic dynamism building in its neighborhood,
Obama is right to downsize the U.S. presence in Europe and orchestrate a strategic "pivot" to
East Asia. The move constitutes a necessary hedge against Chinese ambition and ensures that
American workers will benefit from expanding markets in the Pacific Rim. These policies will
enable the United States to simultaneously adjust to a shifting global landscape, husband its
resources, and grow its economy -- facilitating the president's pledge to focus on "nation-building here at home." Romney has
already denigrated Obama's pragmatism, charging that "our president thinks America is in decline." Obama shot back in his State of the Union address
on Jan. 24 that "anyone who tells you that America is in decline … doesn't know what they're talking about." Obama decidedly has the upper hand in
this back-and-forth. He recognizes that, the country's strengths notwithstanding ,
U.S. strategy must adjust to a world in
which power will be more broadly distributed. And his focus on rebuilding the American economy speaks directly to an
electorate yearning for more equity and prosperity at home. According to a recent Pew Research Center survey, 46 percent of
Americans want the United States to "mind its own business," and 76 percent think the country should
"concentrate more on our own national problems" than on foreign challenges. These are high numbers by historical
standards -- a clear indication that the electorate is hurting economically and wary of
strategic overreach. Romney should take note. His chest-thumping talk of a new American century still plays well in some quarters. But
Obama's commitment to nation-building at home will play even better. Even if Romney's rhetoric were to get more domestic traction, it would still bear
no resemblance to the new global landscape that is fast emerging. The United States is indeed an exceptional nation -- in its prized geographic location,
commitment to freedom and democracy, and brand of international leadership. But the
country's exceptionalism should not
be used as an excuse to hide from global realities. China's GDP will catch up with America's
over the course of the next decade. The World Bank predicts that the dollar, euro, and China's
renminbi will become co-equals in a "multi-currency" monetary system by 2025. Goldman
Sachs expects the collective GDP of the top four developing countries -- Brazil, China, India,
and Russia -- to match that of the G-7 countries by 2032. The United States will no doubt exit the current slump and
bounce back economically in the years ahead. Nonetheless, a more level global playing field is inevitable. To be sure,
America's military superiority will remain second to none for decades to come. As the wars in Iraq and Afghanistan have
made amply clear, though, military primacy hardly ensures effective influence. And with the U.S.
defense budget poised to shrink in the service of restoring the country's fiscal health, the
United States will have to pick its fights carefully. Shrewd and judicious statecraft will be at least as important as raw
power in ensuring the country's security. To acknowledge the need for the United States to adjust to prospective shifts in the global distribution of
power is not, as Duke University professor Bruce Jentleson recently pointed out in Democracy, to be a declinist or a pessimist. It is to be a realist. And
safely guiding the United States through this coming transition requires seeing the world as it is rather than retreating toward the illusory comfort of
denial. Adjusting
to the rise of the rest requires, for starters, making more room at the table for
newcomers. That process is already well under way. The G-20 has supplanted the G-8, widening the circle for global
consultations. In the aftermath of reforms adopted in 2010, developing countries now have enhanced weight at the
World Bank and IMF. The enlargement of the U.N. Security Council, though currently bogged down in
wrangling, is also in the offing. But making international institutions more representative is the easy
part. More challenging will be managing the ideological diversity that will accompany the
coming realignment in global power. Precisely because the United States is an exceptional nation, its version of liberal
democracy may well prove to be the exception, not the rule. In China, Russia, and the sheikhdoms of the Persian Gulf, state-led brands of
capitalism are holding their own -- and may well do so for the foreseeable future. The Arab Spring could finally
bring democratic rule to at least some countries in the Middle East, but it is also breeding
political Islam; democratization should not be mistaken for Westernization. Even emerging
powers that are already democracies, such as India, Brazil, and Turkey, are charting their own paths. They
regularly break with the United States and Europe on trade, Middle East diplomacy, military
intervention, the environment, and other issues, preferring to side with other ascending
states, whether democratic or not. Romney's paeans to American power are no excuse for his silence on how he plans to manage these
complexities. Promoting international stability will grow more demanding as rising powers bring to
the table their differing conceptions of order and governance. The United States has a key role
to play in managing such diversity and channeling it toward cooperative ends. Overheated
proclamations of American preeminence, however, will do more harm than good. If a new, consensual international order is to emerge, rising powers
must be treated as stakeholders in that order, not merely as objects of American power. Shepherding
the transition to this
more pluralistic world is arguably the defining challenge facing U.S. statecraft in the years ahead.
Romney appears ready to pave over this challenge by denying that such change is afoot and attempting to portray Obama's policies as "an eloquently
justified surrender of world leadership." Obama should welcome this debate and refuse to let his opponents hide behind the veil of American
exceptionalism. Democrats no longer need to feel vulnerable on national security; Obama has demonstrated smarts and strength on many issues,
including the degradation of al Qaeda, the pivot to Asia, and the isolation of Iran. He understands that agile, firm diplomacy backed by American power
will do much more for the United States than congratulatory talk of American primacy. A
smarter, more selective, and less
costly U.S. role in the world would not only help the United States get its own house in order,
but also give rising powers the wider berth they seek. And good policy would also be good politics; Americans are keen
to share with others the burdens and responsibilities of international engagement. The world desperately needs a brand of
U.S. leadership that focuses not on ruling the roost, but on guiding a more diverse and
unwieldy globe to consensus and cooperation.
Credibility and soft power are key to address rising global threats
Lord 14 – Kristin M. Lord is President and CEO of IREX, a global education and development NGO. (12/23/2014, Kristin, Foreign
Policy, “Soft Power Outage”, http://foreignpolicy.com/2014/12/23/soft-power-outage/?wp_login_redirect=0 // SM)
The release of a long-awaited report by the U.S. Senate Select Committee on Intelligence on the CIA’s secret
detention and interrogation program dealt yet another blow to the United States’ moral
authority and its credibility as a defender of human rights around the globe. It also begs the
question: How much damage must the United States suffer before it learns to take soft power more seriously and, finally, learn to
use it more proactively? To
understand the immediate damage done to U.S. influence, look no
further than the commentary surrounding the report’s release. According to the Washington Post, the
state-run Chinese news service Xinhua editorialized that “America is neither a suitable role
model nor a qualified judge on human rights issues in other countries,” while a pro-government
television commentator in Egypt observed, “The United States cannot demand human rights reports from other countries since this
[document] proves they know nothing about human rights.” The Islamic
State and other extremists joined the
propaganda gold rush. One tweet, quoted in a report from the SITE Intelligence Group, pointed to the audacity of the
United States lecturing Muslims about brutality, adding, “Getting beheaded is 100 times more humane, more dignified than what
these filthy scumbags do to Muslims.” Such
reactions are galling and they do real harm to U.S. credibility.
who permitted and
But the fault lies not with those who released the report, as some critics argue, but with those
perpetrated acts of torture, those who lied about it to America’s elected representatives, and those who willfully kept the
president and senior members of the Bush administration in the dark. Their actions undermined not only American
values, but also American influence and national security interests. In the words of a former prisoner of
war, Sen. John McCain (R-Ariz.), the actions laid out in the Senate report “stained our national honor” and “did much harm and little
practical good.” The release of the report provides Americans with an opportunity to reflect on the morality of their nation’s actions.
But it is also should be seen an opportunity to reflect on the United States’ soft power strategy, which is related to moral authority,
but also distinct. While morality is a normative system of values and principles that guides just behavior, soft power is ultimately
about influence. As Joseph Nye, the former dean of the John F. Kennedy School of Government at Harvard, has argued, there are
many different ways to affect the behavior of others. One can coerce with threats. One can induce with incentives. Or one can
exercise the power of attraction, co-opting others who want the same things you want through the legitimacy of your policies and
the values upon which they’re founded. The latter is called soft power. Moral authority facilitates soft power, but so do
Given the ideological component of so many of the
national security threats that face the United States going forward — and the inability of any
one country to meet them alone — soft power can be an important part of the strategy to
address these threats. But Americans will need to cultivate it. The United States is a natural
soft power leader, founded on principles that are now embraced widely across cultures and geographies. For decades, it
has built a network of partners and allies around the world that endure through shared values
as well as shared interests. While the United States may not always be popular, American values of political pluralism,
economic competition, and human rights are enduring. While the United States may not always be popular, American values
of political pluralism, economic competition, and human rights are enduring. Over the long haul, these values often win the
day, even when opponents are more ruthless, more committed, and more willing to expend
resources. (It is worth remembering this as diplomats privately bemoan the billions spent on Russian propaganda or the social
relationships, shared values, and interlinking interests.
media sophistication of the Islamic State.)
--Scenario 2 is Bagram
Bagram’s the key sticking point in Bilateral Security Agreement negotiations -Karzai’s using US hypocrisy on indefinite detention to justify prisoner releases -- collapses the deal and ensures U.S. withdrawal
Rosenberg 1/2 - (Matthew, NYT, “Karzai Is Warned Over Release of Detainees”,
ttp://www.nytimes.com/2014/01/03/world/middleeast/karzai.html?_r=0)//WK
KABUL, Afghanistan — American senators visiting Kabul on Thursday intensified
pressure on President Hamid
Karzai to sign a long-term security deal with the United States. And responding to a new crisis between
the allies this week, they warned the Afghan government away from plans to summarily release
dozens of detainees accused of attacking American forces.¶ “If these releases go ahead, it will
do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “ There
will be a backlash in the U.S. Congress .Ӧ Mr. Graham and Senator John McCain of Arizona, a fellow
Republican, have been frequent visitors to Afghanistan since well before the United States invasion in 2001, and they are still
among the most ardent congressional supporters of a continued American role in the country.
But the two lawmakers, along with another visiting Republican, Senator John Barrasso of Wyoming, told reporters here on
Thursday that they had expressed grave concerns to Mr. Karzai over a lunch meeting, warning that American
will to stay involved with Afghanistan was dwindling, and that actions like the planned
prisoner release were adding further strain. ¶ American officials want the prisoners to be
prosecuted and say the men are members of the Taliban or allied militant groups that are
suspected in the deaths of 117 members of the Afghan or international security forces.¶ The men are being held near
Bagram Air Base, in what was the main American prison in Afghanistan until it was transferred to
the Afghan government last year.¶ That transfer of authority over detainees seemed to have
settled one of the most corrosive disputes between Mr. Karzai and his American supporters,
and it cleared the way for talks to secure a broader deal, known as the bilateral security agreement,
that would allow for continued aid and a small American troop presence beyond 2014.¶ But the troop deal is now in
limbo , derailed after its initial approval in November when Mr. Karzai said he would wait to sign it until after elections this coming
spring. A long succession of American officials warned him that the delay could scuttle the entire deal, and billions of dollars in
international aid. But Mr. Karzai then began issuing new demands, alienating some of his own Afghan supporters and infuriating
American officials.¶ Now, the
new flare-up over the potential prisoner release has revived the entire
detainee issue, and the acrimony has escalated in a matter of days to the point where some
of the staunchest American supporters of a continued troop presence in Afghanistan are
openly warning that the deal may collapse if the Afghan government frees the prisoners
without hearings.¶ Mr. Graham suggested as much on Thursday, though he made no direct threats. “It will be
devastating to any future negotiations with the United States,” he said after the senators’ meeting with Mr.
Karzai.¶ Though Mr. Graham does not speak for the Obama administration, he and Mr. McCain are among the
dwindling number of elected officials in Washington who are willing to advocate for keeping
the United States engaged in Afghanistan. If their support were to cool, it would probably bolster
the position of those inside and outside the administration pushing for a complete
withdrawal when the NATO combat mission ends this year.¶ Mr. McCain appeared to acknowledge as
much, saying he had told Mr. Karzai of a recent poll by CNN and ORC International that found only 17 percent of Americans support
the war.¶ Still, Mr. McCain was publicly more measured on the prisoner release issue. In his comments, he focused on what he
described as the narrowing differences over the security deal, and said of the prisoners: “We’re
going to have to see
what happens, how it happens and what the situation is before we make a judgment. We
can’t go any further in our comments.”¶ The releases were ordered by a commission Mr. Karzai appointed to review
the cases of those detained at the prison next to Bagram Air Base, a coalition hub north of Kabul.¶ American officials
believe freeing the men would be a violation of the prison deal struck in March. They say Mr.
Karzai personally assured them no prisoners implicated in attacks on NATO-led troops would be set
free without a trial when Afghanistan took control of the prison.¶ “If this agreement is
dishonored, how can you expect future agreements to be honored?” Mr. Graham asked.¶
Figuring out where Mr. Karzai stands has proved more difficult. His office issued an ambiguous statement after his lunch with the
American senators. “Afghanistan wants the innocent prisoners to be released based on Afghan laws, and criminals must be
punished,” it said.¶ The Afghan commission reviewing the cases has said the prisoners — American officials say there are 88, the
Afghan commission says 86 — are innocent, or that there is not enough evidence to justify holding them until trial. The men are
among the 650 detainees the commission has ordered freed since beginning its work last year, and the remaining ones could begin
being freed as early as Saturday.¶ The commission has also ordered more than 100 other detainees to stand trial, a fact that
commission members have cited as evidence they are willing to keep people suspected of being killers in prison.¶ In a statement,
Mr. Karzai’s
office suggested that the Americans were being hypocritical on the issue of
detainees. It was at the behest of American officials, after all, that a system of imprisoning
battlefield detainees without trial was established in Afghanistan , over the criticism of many Afghan and
international officials. And now, the office said, the Americans are holding themselves up as
protectors of Afghan justice.¶ “President Karzai stressed that many arrests have been made in
violation of Afghan laws since the Bagram prison was built,” said the statement from his office. As a
result, “a number of our innocent countrymen are imprisoned there.”
Now’s key --- Afghanistan’s poised to release detainees --- failure to resolve the
detention issue kills relations and prevents signing of the BSA
Sieff 1/2- Washington Post, (Kevin, “Afghan prisoner-release plan said to risk ‘backlash’ in U.S. Congress”,
http://www.washingtonpost.com/world/asia_pacific/afghan-prisoner-release-said-to-threaten-backlash-in-uscongress/2014/01/02/d836c9ba-73cd-11e3-bc6b-712d770c3715_story.html)//WK
KABUL — The
Afghan government’s plan to release 88 high-profile detainees without trial
“would have an unbelievably negative impact” on U.S.-Afghan relations, according to two of
Congress’s biggest advocates for an enduring American presence here.¶ During a visit to Kabul on Thursday, Republican Sens. John
McCain (Ariz.) and Lindsey O. Graham (S.C.) said that although their differences with Afghan President
Hamid Karzai were narrowing on many issues, the prisoner release threatens to undermine
bilateral ties at a critical moment — as the deadline for a long-term security agreement
looms.¶ In March, the United States transferred control of the Parwan prison next to Bagram air base — with
its roughly 3,000 detainees — to the Afghan government. Since then, Graham said, the Afghans have released
560 detainees without trial, and “some of those have gone back to the fight.”¶ The Afghan
government is now considering releasing 88 detainees who are of particular concern to the
United States. Collectively, Graham said, they killed 60 members of the U.S.-led International Security Assistance
Force (ISAF).¶ When the United States transferred control of the Parwan Detention Facility, it mandated that detainees with
evidence against them be tried in Afghan courts. U.S. officials say that agreement is being violated, because the cases are being
decided only by a review board, which lacks the judicial authority to make such rulings.¶ “Release of these individuals by the Afghan
Review Board undermines Afghan rule of law, because the Afghan people do not get their day in court,” said Col. David Lapan, a
spokesman for ISAF. “Based on the evidence and the risk these individuals pose to the peace and security of the Afghan people, and
in accordance with Afghan law, their cases should be addressed by the formal Afghan justice system.Ӧ U.S. officials said last year
that they understood the risks involved in handing over control of the prison — the transfer was considered a key part of the
transition process — as the United States withdraws its troops and shutters bases. But although they assumed that a number of
prisoners would be released, they expected the Afghan government to at least follow due process, adjudicating cases through
Afghan courts, which the United States has spent a decade trying to bolster.¶ The
prisoner release, Graham said,
would lead to a “backlash in the U.S. Congress,” which would need to appropriate funds for
any long-term American commitment in Afghanistan.¶ “Unless we resolve these differences,
the United States of America has no choice but to not continue with its commitment,” McCain
said.¶ The possibility that the 88 prisoners will be released without trial is particularly
frustrating to U.S. officials because they had sent evidence to the review board that might
have yielded convictions. That evidence, apparently, is being ignored.¶ Asked about the issue, Afghan
officials said without elaborating that the U.S. military, too, was keeping Afghan detainees
without trial at Parwan.¶ “It is a clear violation of all agreements and absolutely illegal,” said Aimal Faizi, a spokesman for
Karzai. “They want us to close our eyes on it, but it is unacceptable for us.”¶ When control of the prison was
transferred last year, U.S. officials deemed 40 detainees as “enduring security threats” whose
release could destabilize the country. The Afghan government agreed not to release them
until the end of 2014.¶ Although none of the 88 detainees slated for release were labeled “enduring security threats,”
Graham said he worries that if Afghan leaders are willing to carry out one unlawful prisoner
release, they could do so again when the stakes are higher.¶ “If this agreement is dishonored, how can you
expect future agreements to be honored?” he asked.¶ McCain and Graham said there is an urgent need to
resolve the prisoner dispute , as well as other points of contention with Karzai, so that the bilateral security
agreement could be signed. They did not mention a firm deadline for signing the accord, but
they noted that Congress needs to approve a budget — including expenditures in Afghanistan
— by Jan. 15 and that President Obama’s State of the Union speech is scheduled for Jan. 21.¶
“What is [Obama] going to tell the American people about Afghanistan if there is no bilateral
agreement signed?” Graham said.
BSA failure collapses Afghan and regional stability
Gupta 14- Asia Society, (Anubhav, “2014: South Asia's Make or Break Year”, 1-7, http://asiasociety.org/blog/asia/2014-southasias-make-or-break-year)//WK
This year could define the fate of the region for years to come. The leaders of India, Pakistan,
Afghanistan, and the United States have an opportunity to secure a more stable future or risk the
outbreak of greater conflict. As is often the case in South Asia, success is far from certain. Before the
United States draws down its military presence in Afghanistan, it must redouble its diplomatic
engagement with South Asia and pursue a regional strategy to enhance stability .¶ The Tough Road Ahead for
India, Pakistan, and Afghanistan¶ With presidential elections and the end of NATO’s combat mission
coming up, 2014 is perhaps most critical for Afghanistan. Unfortunately, there remains uncertainty on both
fronts. After months of negotiating, the U.S. and Afghanistan finally brokered a bilateral security
agreement in November, providing a legal framework for a small number of U.S. troops to remain
in the country post-2014 to train, advise, and support Afghan forces as well as carry out some
counterterrorism operations.¶ Shortly after the agreement was finalized, President Hamid Karzai
stymied U.S. plans by deciding to delay signing the agreement until after the 2014 elections or
until the U.S. agrees to certain preconditions it finds unacceptable. Though U.S. troops have largely
handed off security responsibilities to the Afghan National Security Forces, there is a general consensus that a small
contingent of U.S. troops is necessary to ensure stability . Military planning for the troop draw
down and a limited presence post-2014 requires time. If this issue is not resolved soon, the
U.S. could withdraw all troops in 2014, which could be calamitous for stability in the country.
Draws in great powers
Sahgal and Anand 10 (Arun, former Army officer who created the Office of Net Assessment in the Indian Joint Staff, Senior
Fellow at the Institute for Defense Studies and Analyses and ‘Distinguished Fellow’ School of Geo-Politics at the Manipal Academy of
Higher Education and Vinod, postgraduate in defence and strategic studies and is an alumnus of Defence Services Staff College and
College of Defence Management, “Strategic Environment in Central Asia and India”,
http://www.silkroadstudies.org/new/docs/publications/1004Joshi-V-Strategic.pdf)//WK
The geo-strategic salience of Central Asia today has been underscored by two main factors. First, Central Asia has become
important because of the discovery of hydrocarbon reserves and second, it has become a major
transportation hub for gas and oil pipelines and multi-modal communication corridors connecting
China, Russia, Europe, the Caucasus region, the Trans-Caspian region and the Indian Ocean. Furthermore,
whether it was Czarist Russia or the Soviet Union or even the present Central Asian regimes, there has always been a strategic
Thus Afghanistan, which links Central
Asia and South Asia, is a strategic bridge of great geopolitical significance. Central Asia and
South Asia are intimately connected not only geographically but also strategically. The Central
ambition in the north to seek access to the warm waters of the Indian Ocean.
Asian republics of Turkmenistan, Uzbekistan and Tajikistan have borders with Afghanistan, Iran lies to its west and Pakistan to the
east and south. Therefore,
the geostrategic significance of Afghanistan is enhanced even though it
may not be an oil- or gas-rich country. With the control of Afghanistan comes the control of
the land routes between the Indian subcontinent and resource-rich Central Asia, as well as of
a potential corridor to Iran and the Middle East. Thus, stability and peace in Afghanistan, and
for that matter Pakistan, are a geostrategic imperative. Central Asia has never been a
monolithic area and is undergoing a turbulent transitional process with a diverse range of ethnicities
and fragmented societies throughout the region. These societal divisions and lack of political maturity
compound the social, economic and political challenges. Security and economic issues are the two most important
components of the Central Asian states’ engagement with outside powers. Among the states themselves there are
elements of both cooperation and competition . Historical legacies, their geo-strategic locations, and above all their
perceived national interests profoundly influence the political choices of Central Asian nations. The weaknesses of the new
nations in Central Asia pave the way for outside powers to interfere in their internal affairs.
inherency/solvency
inherency
Senate Select Intelligence Committee’s role is consistent oversight of CIA
HPSCI = House Permanent Select Committee on Intelligence
Borene 10 (Andrew. Federal Manager for IBM i2 Safer Planet Washington D.C. Metro Area Information Technology and Services.
“Oversight Plan for the House Permanent Select Committee on Intelligence” The U.S. Intelligence Community Law Sourcebook.
2010. Google Books)//JuneC//
History and Jurisdiction. The HPSCI authorizes funding for all intelligence activities of the United States government and ensures that
those activities are effective, legal, a. an appropriate use of taxpayer money. House Rule X(11) outlines the HPSCI’s jurisdiction a.
sets forth specific rules pertaining to its legislative and oversight functions and the handling of classified material. The
HPSCI
was established in the 95th Congress through H. Res 658. The stated purpose of H. Res 658
was to establish a committee to oversee and make continuing studies of the intelligence and
intelligence-related activities and programs of the United States government to submit to the
House appropriate proposals for legislation, and to report to the House concerning such
intelligence and intelligence-related activities and programs H.Res 658 also indicated that the Committee:
Shall make every effort to assort that appropriate departments and agencies of the Untied States provide informed and timely
intelligence necessary for the executive and legislative branches to make sound decisions affecting the security and vital interest of
the Nation. It is further the purpose of this resolution to provide vigilant legislative oversight over intelligence and intelligencerelated activities of the United States to ensure that such activities are in conformity with the Constitution and the laws of the
United States. HPSCI shares responsibilities in discrete areas with the Committees on Appropriations, Armed Services, Foreign
Affairs, Judiciary, and Homeland Security. The resolution establishing the HPSCI recognized this and provided that some HPSCI
members be drawn from those Committees. This is a vital means of coordination as are the daily activities of Committee staff with
their counterparts. in keeping with the framework of Committee rules. The
HPSCI will work in conjunction with the
Select Intelligence Oversight Panel (STOP) of the Committee on Appropriations. At the start of
the 110. Congress. Speaker Pelosi announced her intention to create the Panel to strengthen over-sight of intelligence
activities. On January 9, 2001, the House passed H. 12m. 35 which established the STOP and
charged it with the following duties, "review and study on a continuing basis budget requests
for and execution of intelligence activities; make recommendations to relevant
subcommittees of the Committee on Appropriations, and, on an annual basis, prepare a
report to the Defense Sub-committee of the Committee on Appropriations containing
budgetary and over-sight observations and recommendations for use by such subcommittee
in preparation of the classified annex to the bill mating appropriations for the Department of
Defense. The HPSCI will continue to carry out its jurisdictional responsibilities, including authorizing funding for intelligence
activities. The HPSCI maintains jurisdiction over the National Intelligence Program, and all
legislative activity effecting or relating to sources and methods of intelligence and
intelligence-related activities of the United Stares. The HPSCI shares jurisdiction over the Military Intelligence
Program with the Armed Services Committee. The National Intelligence Program consists of intelligence
activities in the follow-ing departments, agencies, or other elements of the government:
I) The Office of the Director of National Intelligence;
2) The Central Intelligence Agency;
3) The Defense Intelligence Agency;
4) The National Security Agency;
5) The National Reconnaissance Office;
6) The National Geospatial-Intelligence Agency;
7) The Office of the Secretary of Defense;
8) The Department of the Army;
9) The Department of the Navy;
10) The Department of the Air Force;
11) The Department of State;
12) The Depart mot of the Treasury;
13) The Department of Energy;
14) The Department of Homeland Security;
15) The Coast Guard;
16) The Federal Bureau of Investigation; and
17) The Drug Enforcement Administration.
This is not new – The CIA has continuously been caught doing surveillance on
the Senate
Thomson 14 (Iain. American philosopher and Professor of Philosophy at the University of New Mexico. “CIA hacked Senate PCs
to delete torture reports. And Senator Feinstein is outraged”. The Register. 11 March 2014.
http://www.theregister.co.uk/2014/03/11/senator_feinstein_outraged_that_cia_hacked_her_computers_for_torture_evidence)//J
uneC//
US Senator Dianne Feinstein (D-CA) has issued a rare public rebuke to the CIA after the agency hacked into a Senate committee's
computers to remove documents describing agents' torture enhanced interrogation of terrorist suspects. "I have asked for an
apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received
neither," she said. "Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the
Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or
surveillance." Feinstein is head of the Senate Intelligence Committee, which is supposed to scrutinize America's intelligence
agencies, and has been a strong supporter of the NSA – even sponsoring a bill to codify into law the mass surveillance techniques
used by that agency. But it seems when such intrusion happens to her, it's a different matter. Back
in 2006, her
committee started looking into the CIA's rendition and interrogation program that began in
2002. At some point, agents destroyed video tapes of the interrogation of terrorist suspects,
but the then-head of the CIA said this wasn't a problem, since agency documents would give
"a more than adequate representation" of what went on. Then in 2009, the agency handed
over 6.2 million unsorted documents to the committee's investigators to study. For security
reasons, these were held on an air-gapped network in a secure facility, and Senate staffers
began the process of going through them, but the amount of data was so immense they asked
the CIA for a search tool to go through them. This was provided, and it was used to find a number of interesting
reports from an internal CIA review that showed "significant CIA wrongdoing," Feinstein said. But then some of the
documents started to disappear form the network. Who rm -rf'd the damning dossier? In early 2010
Senate staffers found 870 pages of documents were removed from the database, with
another 50 taken out in May. When questioned, the CIA said the documents must have been
deleted by IT contractors running the system, then claimed the White House had insisted they
be removed, before admitting removing the documents and apologizing to the committee.
The committee's report of the CIA's detention and interrogation program was finished last
year, and was sent to the White House and the CIA for review. The report used the internal
CIA review documents after redacting sensitive information such as the names of CIA staff
involved in the program. Then on January 15 Feinstein said CIA director John Brennan called
an emergency meeting and told her that his agents had rifled through the computers of
congressional staff for documents relating to its internal review of the interrogations.
Meanwhile stories were leaked to the press claiming that staffers had hacked CIA computers
to get the incriminating documents. Feinstein denied this latter claim, pointing out the documents used were those
provided by the CIA itself. She vowed to press on and publish the full report as soon as possible, and called the CIA's actions "a
defining moment for the oversight of our Intelligence Community." In
an interview on Tuesday the CIA director
denied that his agency had done anything wrong. "We weren't trying to block anything,"
Brennan said. "The matter is being dealt with in an appropriate way, being look at by the right
authorities, and the facts will come out. Let me assure you the CIA was in no way spying on
[the committee] or the Senate." Given Feinstein's record, or rather lack of one, in protecting members of the general
public from government surveillance, her outraged statement drew wry comment from NSA whistleblower Edward Snowden. "It's
clear the CIA was trying to play 'keep away' with documents relevant to an investigation by
their overseers in Congress, and that's a serious constitutional concern," he said in a
statement to NBC News. "But it's equally if not more concerning that we're seeing another 'Merkel Effect,' where an
elected official does not care at all that the rights of millions of ordinary citizens are violated by our spies, but suddenly it's a scandal
when a politician finds out the same thing happens to them."
CIA surveillance continues despite White House statements
Cyr 6/2 (Arthur is a Professor of Political Economy and World Business; Director, A.W. Clausen
Center for World Business; Director, International Political Economy Program; Professor of
Political Science, 2015, “It’s necessary to spy, but it shouldn’t make the news”,
http://www.stripes.com/opinion/it-s-necessary-to-spy-but-it-shouldn-t-make-the-news1.356086)//cc
Sen. Dianne Feinstein, D-Calif., then-chairwoman of the Senate Intelligence Committee, reacted
by calling for a “total review” of all U.S. intelligence programs. Reports of CIA spying on
Congress have further stoked reform fires. Simultaneously, the U.S. is seeking to restrain
intelligence agencies. In early June, Congress passed the first significant restrictions on bulk
collection of information on Americans since the 9/11 terrorist attacks. The White House has
pursued detailed proposals for greater oversight of intelligence agencies. Yet there is an eerie
disconnect between White House statements in response to unwelcome news, and actual
developments in the field. In commenting on the embarrassing news from Germany, President
Barack Obama was described as having been unaware of the activity. Preserving “plausible
deniability” for those at the top is a well-established necessary practice in the intelligence
trade. Today this is not just useful fiction. Feinstein emphasized that the White House was as
unaware as Congress of the spying program in Germany.
solvency
reform/reinforcement (?)
solvency advocate??
Ackerman 14 (Bruce. Sterling Professor of Law and Political Science at Yale. “Op-Ed CIA vs. the Senate: The Constitution
demands action”. 6 August 2014. LA Times. http://www.latimes.com/opinion/op-ed/la-oe-ackerman-cia-spies-on-senate-20140807story.html)//JuneC//
A spying on the Senate is the constitutional equivalent of the Watergate break-in. In both cases, the
executive branch attacked the very foundations of our system of checks and balances. President Obama is not President Nixon. He
hasn’t been implicated personally in organizing this constitutional assault. But he is wrong to support the limited response of his CIA
director, John Brennan, who is trying to defer serious action by simply creating an “accountability panel” to consider “potential
disciplinary measures” or “systemic issues.” Harry Truman and Congress knew that they were playing with fire in creating a
permanent spy agency after World War II. To protect the integrity of the constitutional system, they barred the CIA from all forms of
domestic spying. But in response to 9/11, the National Security Act of 2004 enabled the agency to remove many of the barriers that
separated it from domestic operations to permit a coordinated defense against international terrorism. This necessary
step
increased the danger that the national security establishment would intervene
unconstitutionally in domestic politics. Obama’s election paradoxically increased this threat. As long as George W.
Bush was in the White House, intelligence operatives could count on him to protect them against retribution for any lawless
behavior during the post-Sept. 11 panic. But all bets were off once Obama won the presidency after denouncing torture in legal
black holes like Guantanamo and Abu Ghraib. It is hardly surprising that the agency, moving reflexively to protect itself and its turf,
Thanks to CIA slow-walking, it took far too long for the
Senate Intelligence Committee to work up its monumental report on the agency’s misconduct,
the so-called torture report. As the work was finally reaching completion, its potential for
damage was multiplied by the Edward Snowden affair. The steady stream of revelations about
the scope of surveillance forced James Clapper, the director of National Intelligence, to admit
he had lied to Congress about the extent of domestic spying. Worse yet for the intelligence
agencies, it led the Federal Intelligence Surveillance Court to publish confidential opinions
condemning them for sabotaging effective enforcement of its decisions. The escalating
scandal made the prospect of Senate Intelligence Committee condemnation even more
devastating. Thrown on the defensive, CIA headquarters responded to the challenge by
breaking into the Senate computers — and by not taking the Constitution seriously . Brennan’s
would be tempted to spy on its Senate watchdog.
initial response displayed the same breakdown in the CIA's constitutional culture. Rather than demanding a serious accounting from
his subordinates before going public, he immediately denied that any wrongdoing had occurred. While all this was going on, Obama
was pondering a serious response to the pervasive surveillance abuses. In April 2013, he assembled a blue-ribbon panel of retired
leaders of the intelligence community, as well as leading constitutionalists, who issued a unanimous 46-point reform program in
December. In an admirable show of bipartisanship, Republicans on the House Intelligence Committee then included many of the
panel’s proposals in their own reform bill. At that point, the intelligence establishment launched a political counteroffensive. With
Obama remaining on the sidelines, it persuaded the committee to eliminate many of his own panel’s recommendations from its final
proposal, leading the House to pass a bill that was a parody of its former self. The
president is playing the same
passive role in supporting his CIA director’s effort to delay serious action in response to the
latest scandal. Unless Congress and the public force a reappraisal, Obama may continue to let
the security establishment call the shots. The Constitution demands action. Given the culture of
lawlessness on display, the only way “to take care that the laws be faithfully executed” is to create stronger institutions that
systematically maintain legal control over the intelligence community. The president’s blue-ribbon panel took steps in this direction.
Most important, it proposed a sweeping reform of the Foreign Intelligence Surveillance Court that would have made it a far more
credible legal watchdog. But
the spy agencies mounted such fierce opposition that Obama distanced
himself from this initiative. Instead of caving in, the president should have strengthened his
commission’s recommendations. The panel had already proposed the appointment of a public
interest advocate to argue for civil liberties before its newly constituted intelligence court.
Similar reasoning supports the creation of an independent “office of legal enforcement”
dedicated to assuring agency compliance with the court’s decisions on a day-to-day basis. The
Senate Judiciary Committee should fill this void when it returns from summer vacation by
framing its own reform legislation. At present, committee Chairman Patrick Leahy (D-Vt.) has
developed a proposal that closes some of the yawning loopholes left open by the House bill. But
he has not gone far enough in proposing the fundamental institutional changes that are
required to assure that his new legal standards will be impartially interpreted and rigorously
enforced. Unless this is corrected, Congressional intelligence “reform” will be a prelude to a
deepening constitutional crisis in the years ahead.
separation of powers advantage
uniqueness
SoP weak now
Obama threatens separation of powers now – he’s attempting to influence the
court as it engages in judicial review
Washington Times 6/11 – (2015, The Washington Times, “Obama threatens separation of powers”,
http://www.washingtontimes.com/news/2015/jun/11/editorial-obama-threatens-separation-of-powers/ // SM)
President Obama has crossed another red line, and not one so easily erased as those smudged out by his lethargy and timidity in the
Middle East. American
representative government and its more important but allusive essence,
democracy, have been protected in many ways over two centuries of American history. There
is, of course, the written Constitution, which sets out the basic requirements of government. But above and
beyond that, there’s the role of respect — and civility — in relationships that guarantee that
these words on paper will be respected, however much in the breach. In fact, usage as well as legalism has defined
the growth of American democracy. In one of the unique features of American constitutionalism — as distinguished from
inheritance of British common law — the
Founders embraced the separation of powers, with each of the
three equal branches of government clearly defined. The Founders turned their backs on a basic principle of
British government at the time, the paramountcy of Parliament over both the king and his courts. The Founders certainly foresaw,
especially the more conservative among the revolutionaries, James Madison, that no written document alone could preserve the
liberties of the new country. It was Madison’s genius that he set out to balance one branch of government against the others. But it
has never been clear that the Founders, in their considerable wisdom about governments and regimes which had gone before,
meant to establish what has come to be known as “judicial supremacy.” But it quickly became an obvious manifestation of the
workings of the new government that, finally, in the interplay of carefully balanced legislative, executive and judicial branches, there
would have to be occasional final arbitration. The
Supreme Court, in Marbury v. Madison, ruled in 1803
that the Supreme Court had the authority to determine whether a law, the work of Congress
and the enforcement by the president, was constitutional. Mr. Obama has challenged this
crucial tradition twice. Once he rebuked the justices of the Supreme Court to their faces at his
State of the Union address in 2012, and now, at a press conference, Mr. Obama has crossed two red lines. He
rebuked the court for entertaining a challenge to Obamacare, and more important, he tried to
pressure the Court as it deliberates. This threatens the very interplay among the three
branches. Such a threat is beneath the presidency. We suspect the president knows better. The other branches of the
government dare not let him get by with it.
Executive overreach disrupts separation of powers in the status quo
Sekulow 5/11 – Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), one of the most prestigious
law firms in the country. He is an accomplished Supreme Court advocate, renowned expert on religious liberty, a number 1 New
York Times-bestselling author, and a respected broadcaster. (2015, Jay, American Center for Law and Justice,
http://aclj.org/executive-power/fighting-obamas-executive-overreach-on-behalf-of-congress // SM)
The Obama Administration continues to do whatever it takes to defend the indefensible. First,
President Obama failed to persuade Congress of his legislative ideals on immigration. Then he
thwarted the Constitution and unilaterally “change[d] the law.” That’s why today, the ACLJ filed a
critical amicus brief representing 113 members of Congress—including Senate Majority Leader Mitch McConnell—and nearly
220,000 Americans urging a federal appeals court to declare President Obama’s executive overreach
unilaterally rewriting our nation’s immigration laws unconstitutional and unlawful. Our position is
clear – President Obama’s executive action is unconstitutional and impermissibly disrupts the
separation of powers. President Obama’s overreach amounted to changing the law. That is simply
unacceptable. Impatient presidents don’t get to change the law. We’re confident that the appeals court will correctly conclude that
President Obama’s action is unlawful and unconstitutional and will uphold the findings of the district court.
Separation of powers weak now
Teter 13 (Michael, University of Utah S.J. Quinney College of Law, 2/19, “Congressional
Gridlock's Threat to Separation of Powers”,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296130)//cc
The principle of separation of powers serves as the foundation of our constitutional system.
Though the doctrine’s meaning is somewhat amorphous, at its core rests a simple assumption:
each branch must be able to fulfill its functional duties, while also serving to check the other
branches. A gridlocked Congress undermines these basic expectations. The result is a
legislature that relies on ad hoc committees, triggers, and gimmicks to make law; an executive
that fills in the policy vacuum through presidential initiatives and who expands executive power
without rebuke; and a judiciary exercising increasing authority over the meaning of statutes. In
other words, our separation of powers scheme suffers because Congress cannot fulfill its
constitutional role. To appreciate how gridlock threatens separation of powers requires a more
complete awareness of the doctrine’s theoretical, historical, jurisprudential, and scholarly roots.
From this review, I establish the broad contours of the separation of powers problem that
gridlock poses. I then complete the analysis by turning to several real world examples to
demonstrate how congressional stalemate actually undermines the separation of powers. In the
end, I conclude that congressional gridlock poses such a threat to separation of powers that it
places in peril the entire structural premises of American government.
Separation of Powers weak now
Kesler 07 (Charles R is a professor of Government/Political Science at Claremont McKenna
College and Claremont Graduate University. He holds a Ph.D in Government from Harvard
University, from which he received his AB degree in 1978, 12/17 The Hermitage Foundation,
“What Separation of Powers Means for Constitutional Government”,
http://www.heritage.org/research/reports/2007/12/what-separation-of-powers-means-forconstitutional-government)//cc
This quick sketch of the politics of American national government is not meant to be
exhaustive, of course, but it does convey the salient facts about the current situation in
Washington. Those facts point to the following conclusion: The chief constitutional basis of our
politics, the separation of powers, is under severe pressure from the institutions and practices
of the administrative state. Paradoxically, the principal beneficiary of the growth of the
executive bureaucracy has been Congress, not the President, who sees his responsibilities (as
head of the executive branch) continually enlarged but his power steady diminished. Even so,
not all congressmen equally have seen and approved of the growth in the federal government's
authority, or have cheered Congress on in its own superintendence of the executive. For almost
a century a faction has existed within the national legislature in favor of the administrative state
as the emblem and vehicle of national progress. This faction has included both Democrats and
Republicans but, since 1912, predominantly Democrats.
internal link
oversight
CIA surveillance of the Senate undermines effective Senate oversight
Horton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for
reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in
the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner,
among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and
America’s Stealth Warfare” by Scott Horton, Salon,
http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)
In the second half of 2013 and the early months of 2014, the feud between the CIA and the
Senate oversight committee continued to percolate. The roles played by the White House and President Obama
himself were consistently ambiguous. On one hand, Obama assured Feinstein, other key members of Congress, and significant
supporters who felt strongly about the issue that he was “absolutely committed to declassifying that report.” On the other hand,
aides quickly clarified that it meant only the 480-page executive summary, and only after the CIA and other agencies had reached a
consensus with the White House on redactions from the report. Obama’s key spokesman on the issue continued to be his former
counterterrorism adviser, John O. Brennan, a career CIA man whose own involvement with the program was never fully clarified,
and whose hostility to the Senate investigation and report could hardly be contained. By March 2013, Brennan had succeeded
Panetta as head of the CIA. As this controversy developed, it became clear that Senate investigators had read the agency’s own
internal review and therefore knew that the agency’s criticisms of the report were specious. This had stung figures at the CIA who
were trying to manage the fallout from its torture and black site programs. The CIA never actually contacted the Senate
committee and asked how it had come by the Panetta review. Instead, perhaps convinced that the information had been gained
improperly (though that is a strange word to apply to an oversight committee’s examination of documents prepared by the agency it
is overseeing), someone at the agency
decided to break into the Senate computers and run searches.
On January 15, 2014, Brennan met with Feinstein and had to acknowledge that the CIA had
run searches on the Senate computers. Far from apologizing for this intrusion, Brennan stated
that he intended to pursue further forensic investigations “to learn more about activities of
the committee’s oversight staff.” The Senate committee responded by reminding Brennan that as a matter of
constitutional separation of powers, the committee was not subject to investigation by the CIA. It also pressed to know who had
authorized the search and what legal basis the CIA believed it had for its actions. The CIA refused to answer the questions. By
January 2014, before Feinstein gave her speech, the controversy had reached a fever pitch. Reports that the CIA had been snooping
on the Senate committee and had gained unauthorized access to its computers began to circulate in the Beltway media. Through its
surrogates, the CIA struck back. Unidentified agency sources asserted that Senate staffers had “hacked into” CIA computers to gain
access to the Panetta report and other documents. The staffers had then illegally transported classified information to their Capitol
Hill offices, removing it from the secure site furnished by the agency. In addition, the Justice Department had become involved. The
CIA inspector general, David Buckley, had reviewed the CIA searches conducted on Senate computers and had found enough
evidence of wrongdoing to warrant passing the file to the Justice Department for possible prosecution. Perhaps in a tit-for-tat
response and certainly with the aim of intimidating his adversaries, the acting CIA general counsel, Robert Eatinger, had made a
referral of his own, this time targeting Senate staffers and apparently accusing them of gaining improper access to classified
materials and handling them improperly. Secrecy was unsheathed as a sword against an institution suddenly seen as a bitter foe: the
U.S. Congress. Eatinger’s appearance as a principal actor in this drama was revealing. He was hardly an objective figure. A key point
for the committee investigators was the relationship between CIA operations and the Department of Justice, and particularly the
process the CIA had used to secure opinions from Justice authorizing specific interrogation techniques, including waterboarding, that
amounted to torture. As the senior staff attorney in the operations directorate, Eatinger would certainly have played a pivotal role
throughout the process leading to the introduction of torture techniques. The Senate investigators concluded that the CIA had
seriously misled the Justice Department about the techniques being applied in an effort to secure approvals that would cover even
harsher methods than those described, and Eatinger was right at the center of those dealings. Indeed, Eatinger’s name appears
1,600 times in the report. Like many agency figures closely connected with the black sites and torture program, Eatinger had
skyrocketed through the agency, ultimately becoming senior career lawyer and acting general counsel. No figure in the agency
would have had a stronger interest in frustrating the issuance of the report. All those involved with the torture and black sites
program risked being tarnished by the report, but few more seriously than the CIA figures who dealt with the Justice Department.
Moreover, other risks were looming on the horizon outside the Beltway. As Eatinger struggled to block the Senate report, courts in
Europe were readying opinions concluding that the CIA interrogation program made use of criminal acts of torture and that the
black site operations amounted to illegal disappearings. The United States was not subject to the jurisdiction of these courts, but its
key NATO allies were, and the courts would soon be pressing them to pursue criminal investigations and bring prosecutions relating
to the CIA program. Those involved in the program, including Eatinger, thus risked becoming international pariahs, at risk of arrest
and prosecution the instant they departed the shelter of the United States. Feinstein had refused press comment throughout this
period, but other sources from the committee or its staff had pushed back with blanket denials of these accusations. U.S. media
relished the controversy and presented it in typical “he said/she said” style. But rarely is each view of a controversy equally valid or
correct. Indeed, within the agency suppressing media coverage of the highly classified detention and interrogation program was
considered a legitimate objective, which helps to account for the numerous distortions, evasions, and falsehoods generated in
Langley with respect to it. But the CIA’s campaign against the Senate report was approaching a high-water mark of dishonesty. As
Feinstein ominously noted, these developments had a clear constitutional dimension: “I have
grave concerns that the CIA’s search may well have violated the separation of powers
principle embodied in the United States Constitution, including the speech and debate clause.
It may have undermined the constitutional framework essential to effective oversight of
intelligence activities or any other government function.”
The Senate Committee has partially revealed CIA’s inhumane practices in the
past, but an unhindered exposure is necessary - Only the aff is able to
breakdown the logic that sustains the perception of American imperialism as a
moral strategy
Puryear 14 (Eugene. American activist who is currently a candidate for the At-Large seat in the DC Council with the D.C.
Statehood Green Party. “Senate torture report exposes CIA houses of horror”. 18 December 2014.
http://www.liberationnews.org/senate-torture-report-exposes-cia-houses-horror)//JuneC//
Even though the broad outlines have been known for some time, the release of the Senate
Select Committee on Intelligence report on torture was shocking and revolting. The level of
lying, brutality and legal impunity remains amazing. While it has been known for years that
the CIA operated so-called black sites, engaged in torture, misled the public, falsely detained
many individuals and that everyone involved got away scot free, now that Senate staffers
have—at least partially—revealed the ugly details, the entire world is in an uproar. If nothing else,
this report has yet again confirmed that the post 9/11 period has become a horror show of clearly illegal and grossly immoral
behavior on the part of the United States government. It perhaps is not fair to call this, as many have, “unprecedented” as the
In the contemporary
context, however the normalization of torture and detention is both disgusting and ominous.
United States did of course countenance both slavery and the genocide of Native Americans.
During most of the modern era the United States government has sought to hide its most terrible crimes. From illegal surveillance to
the use of Agent Orange and the overthrow of numerous governments, there was the sense that these actions were recognized as
illegal and needing to be hidden, lest anyone be held responsible. In
the case of the CIA torture and detention
regime, not only were these practices legally sanctioned, they were in fact championed by the
Bush White House and both parties in Congress. Then, the Obama administration in its earliest
days gave a free pass to the serial human rights abusers in the prior administration, and kept
on many of those responsible in the military and intelligence communities. While there is
much hemming and hawing about how “America must forever foreswear this sort of activity,”
the message is perfectly clear that from now on gross violation of civil and human rights is
entirely allowable and will go unpunished as long as you are the U.S. government and you
have some sort of “justification” however flimsy or false. The details revealed in the executive summary of
the torture report can be difficult to read. CIA torturers beat detainees and held them in stress positions literally for days, sometimes
treating their wounds in such a way as to prolong the pain. Severe psychological strain was placed on detainees, including some who
were kept awake for 180 hours—in other words a week. Detainees were placed in tiny boxes and treated in a way that one of their
captors described as being like dogs in kennel. One detainee was killed from exposure, while another while being waterboarded
became completely non-responsive while bubbles rose “from his full and open mouth.” Detainees were subjected to the fairly selfexplanatory process of “rectal feeding” and “rectal hydration” all approved by CIA doctors, who of course haven’t lost their licenses.
In an attempt to leverage information from one prisoner the CIA detained a mentally disabled man. When some detainees who were
deprived of sleep begin to experience “disturbing” hallucinations, torturers deliberately continued to withhold sleep, for maximum
torturous effect. In
some cases the torturers threatened to kill, rape and torture the family
members of detainees in an attempt to get them to talk. These techniques were so extreme that some CIA
personnel raised objections only to be told by their superiors to shut up. While it is clear that the Bush administration allowed some
of these terrible methods to continue with full knowledge of what was happening, the CIA recognized that some of its activities went
to such extremes that it not only hid but attempted to obfuscate any attempts at full oversight to hide its brutal criminality. It is
worth noting that the CIA, with the connivance of the Obama administration, fought tooth and nail to keep the Senate report secret.
Most disgustingly, no one has been held accountable for any of this. The Obama
administration decided to allow all of these human rights abusers from the top to the bottom
to go entirely free, even though they had clear knowledge that domestic and international
laws had been broken and that a conspiracy at the highest level had orchestrated these
crimes. While the New York Times editorial board seems highly confused as to why there was no accountability and laments the
“terrible decision” of the Obama administration to close the book on these crimes, the reasoning is entirely clear. Without any doubt
the Obama administration itself has been involved in criminal and unconstitutional behavior from drone strikes to NSA spying. The
entire “security” regime in the post-9/11 American government rests on a massive complex of
mostly secret practices and behaviors. To indict the Bush administration would almost
certainly open up the possibility of prosecuting the Obama administration. Ultimately the
highest levels of the past two administrations are a rogue’s gallery of war criminals;
prosecutions of any of them would open a Pandora ’s Box that could lead to numerous
government officials in the dock. This would be not only personally damaging to those
culpable individuals but also massively damaging to the credibility of U.S. imperialism. The
entire “moral” framework of world domination based on freedom and democracy would
easily crumble if the full scale of torture, illegal war and spying was revealed . It is simply not
an option. Perhaps not unprecedented but clearly a terrible black mark, the regime of torture that was perpetrated by the Bush
administration deserves an accounting but one it won’t ever get under a capitalist government.
CIA surveillance of Senate committee staffers undermines the separation of
powers principle – removes any possibility of effective oversight
Eddlem 14 – *Cites Senate Select Intelligence Committee Chairman Dianne Feinstein. Writer for the New American Magazine
(3/12/2014, Thomas, The New American, “Sen. Feinstein: CIA Smashed Constitution, Separation of Powers”,
http://www.thenewamerican.com/usnews/constitution/item/17824-sen-feinstein-cia-smashed-constitution-separation-of-powers
// SM)
Senate Select Intelligence Committee Chairman Dianne Feinstein (shown, D-Calif.) publicly
charged the CIA with repeatedly spying on her committee staffers conducting oversight of the
agency, and of deleting files from committee computers. Feinstein spoke on the floor of the U.S. Senate
March 11 to denounce the agency and claimed the “CIA's search may well have violated the separation
of powers principle embodied in the United States Constitution, including the speech and
debate clause. It may have undermined the constitutional framework essential to effective
congressional oversight of intelligence activities or any other government function.” Feinstein
stated in her Senate speech that several CIA officials had acknowledged the surveillance and
interference with the committee's efforts to draft a report on the CIA's unconstitutional
prisons abroad during the Bush era. According to Feinstein, the committee concluded “the interrogations and the conditions
of confinement at the CIA detentions sites were far different and far more harsh than the way the CIA had described them to us.”
CIA surveillance on the senate violates separation of powers
Vice 14 (Motherboard is a technology oriented news agency, 3/11, The Senate Didn't Care Much
About Surveillance Until the CIA Spied on It Too, http://motherboard.vice.com/read/the-senatedidnt-care-about-government-surveillance-until-the-cia-spied-on-it)//cc
The Senate Intelligence Committee says it got spied on by the CIA. And, like many other
Americans that have recently found out they’ve been spied on, they’re not happy about it at all.
It doesn’t necessarily make Dianne Feinstein and her colleagues wafflers, even though they have
defended the National Security Agency throughout most of the last year. It’s another example
that, until something happens to you, you’re not going to worry much about it happening to
other people. The facts still aren’t clear about what happened, but here’s what we think we
know: Several years ago, the Senate Intelligence Committee decided to conduct a full
investigation of the CIA’s Detention and Interrogation Program after initial reports found
“chilling” facts about the CIA’s since-discontinued torture program. To help the oversight
committee complete the report, the CIA dumped 6.2 million pages of documents onto a
computer network accessible by the Senate and CIA IT techs and provided the Senate a search
tool to help staffers comb through the documents. The Senate used this to write the report,
which has still not been released, but along the way, Feinstein alleges that the CIA deleted close
to 1,000 pages of critical documents off the server. That caused some initial strife between the
Senate committee and the CIA, but they eventually moved past it, according to Feinstein. The
committee eventually came up with a draft of the report, one that current CIA director John
Brennan says is riddled with inaccuracies. Here’s where things get really interesting. And by
“interesting,” I mean “probably illegal.” The Senate got access to a document, accidentally
placed on the server, called the “Internal Panetta Review” that Feinstein says directly
corroborates the parts of the report that Brennan has taken issue with. That document was
deleted off of the server by CIA officials, but not before Senate staffers had moved it to their
own personal servers. Feinstein says that, in January, she learned that CIA officials had
searched committee computers that they weren’t supposed to have access to, in an attempt
to delete that document and to potentially delay the release of the report. “Based on what
Director Brennan has informed us, I have grave concerns that the CIA’s search may well have
violated the separation of powers principles embodied in the United States Constitution,”
Feinstein testified Tuesday. “Besides the constitutional implications, the CIA’s search may also
have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as
Executive Order 12333, which prohibits the CIA from conducting domestic searches or
surveillance.”
White house ordered destruction of CIA documents regarding interrogation
Feinstein 14 (Dianne has been a US senator since 1992 and is Chairmanship of the Senate Select
Committee on Intelligence, 3/11, “Statement on Intel Committee’s CIA Detention, Interrogation
Report”, http://www.feinstein.senate.gov/public/index.cfm/2014/3/feinstein-statement-onintelligence-committee-s-cia-detention-interrogation-report)/cc
The origin of this study: The CIA’s detention and interrogation program began operations in
2002, though it was not until September 2006, that Members of the Intelligence Committee,
other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA
Director Hayden only hours before President Bush disclosed the program to the public. A little
more than a year later, on December 6, 2007, a New York Times article revealed the troubling
fact that the CIA had destroyed videotapes of some of the CIA’s first interrogations using socalled “enhanced techniques.” We learned that this destruction was over the objections of
President Bush’s White House Counsel and the Director of National Intelligence. After we read
about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence
Committee. He assured us that this was not destruction of evidence, as detailed records of the
interrogations existed on paper in the form of CIA operational cables describing the detention
conditions and the day-to-day CIA interrogations. The CIA director stated that these cables were
“a more than adequate representation” of what would have been on the destroyed tapes.
Director Hayden offered at that time, during Senator Jay Rockefeller’s chairmanship of the
committee, to allow Members or staff to review these sensitive CIA operational cables given
that the videotapes had been destroyed. Chairman Rockefeller sent two of his committee
staffers out to the CIA on nights and weekends to review thousands of these cables, which took
many months. By the time the two staffers completed their review into the CIA’s early
interrogations in early 2009, I had become chairman of the committee and President Obama
had been sworn into office. The resulting staff report was chilling. The interrogations and the
conditions of confinement at the CIA detention sites were far different and far more harsh
than the way the CIA had described them to us. As result of the staff’s initial report, I proposed,
and then-Vice Chairman Bond agreed, and the committee overwhelmingly approved, that the
committee conduct an expansive and full review of CIA’s detention and interrogation program.
On March 5, 2009, the committee voted 14-1 to initiate a comprehensive review of the CIA
Detention and Interrogation Program. Immediately, we sent a request for documents to all
relevant executive branch agencies, chiefly among them the CIA. The committee’s preference
was for the CIA to turn over all responsive documents to the committee’s office, as had been
done in previous committee investigations. Director Panetta proposed an alternative
arrangement: to provide literally millions of pages of operational cables, internal emails,
memos, and other documents pursuant to the committee’s document requests at a secure
location in Northern Virginia. We agreed, but insisted on several conditions and protections to
ensure the integrity of this congressional investigation. Per an exchange of letters in 2009, thenVice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA
was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA
networks” for the committee that would only be accessed by information technology personnel
at the CIA—who would “not be permitted to” “share information from the system with other
[CIA] personnel, except as otherwise authorized by the committee.” It was this computer
network that, notwithstanding our agreement with Director Panetta, was searched by the CIA
this past January, and once before which I will later describe. In addition to demanding that the
documents produced for the committee be reviewed at a CIA facility, the CIA also insisted on
conducting a multi-layered review of every responsive document before providing the
document to the committee. This was to ensure the CIA did not mistakenly provide documents
unrelated to the CIA’s Detention and Interrogation Program or provide documents that the
president could potentially claim to be covered by executive privilege. While we viewed this as
unnecessary and raised concerns that it would delay our investigation, the CIA hired a team of
outside contractors—who otherwise would not have had access to these sensitive documents—
to read, multiple times, each of the 6.2 million pages of documents produced, before providing
them to fully-cleared committee staff conducting the committee’s oversight work. This proved
to be a slow and very expensive process. The CIA started making documents available
electronically to the committee staff at the CIA leased facility in mid-2009. The number of pages
ran quickly to the thousands, tens of thousands, the hundreds of thousands, and then into the
millions. The documents that were provided came without any index, without organizational
structure. It was a true “document dump” that our committee staff had to go through and make
sense of. In order to piece together the story of the CIA’s detention and interrogation program,
the committee staff did two things that will be important as I go on: First, they asked the CIA to
provide an electronic search tool so they could locate specific relevant documents for their
search among the CIA-produced documents—just like you would use a search tool on the
Internet to locate information. Second, when the staff found a document that was particularly
important or that might be referenced in our final report, they would often print it or make a
copy of the file on their computer so they could easily find it again. There are thousands of such
documents in the committee’s secure spaces at the CIA facility. Now, prior removal of
documents by CIA. In early 2010, the CIA was continuing to provide documents, and the
committee staff was gaining familiarity with the information it had already received. In May of
2010, the committee staff noticed that [certain] documents that had been provided for the
committee’s review were no longer accessible. Staff approached the CIA personnel at the
offsite location, who initially denied that documents had been removed. CIA personnel then
blamed information technology personnel, who were almost all contractors, for removing the
documents themselves without direction or authority. And then the CIA stated that the
removal of the documents was ordered by the White House. When the committee approached
the White House, the White House denied giving the CIA any such order. After a series of
meetings, I learned that on two occasions, CIA personnel electronically removed committee
access to CIA documents after providing them to the committee. This included roughly 870
documents or pages of documents that were removed in February 2010, and secondly roughly
another 50 were removed in mid-May 2010. This was done without the knowledge or approval
of committee members or staff, and in violation of our written agreements. Further, this type
of behavior would not have been possible had the CIA allowed the committee to conduct the
review of documents here in the Senate. In short, this was the exact sort of CIA interference in
our investigation that we sought to avoid at the outset. I went up to the White House to raise
this issue with the then-White House Counsel, in May 2010. He recognized the severity of the
situation, and the grave implications of Executive Branch personnel interfering with an official
congressional investigation. The matter was resolved with a renewed commitment from the
White House Counsel, and the CIA, that there would be no further unauthorized access to the
committee’s network or removal of access to CIA documents already provided to the
committee. On May 17, 2010, the CIA’s then-director of congressional affairs apologized on
behalf of the CIA for removing the documents. And that, as far as I was concerned, put the
incident aside. This event was separate from the documents provided that were part of the
“Internal Panetta Review,” which occurred later and which I will describe next. At some point in
2010, committee staff searching the documents that had been made available found draft
versions of what is now called the “Internal Panetta Review.” We believe these documents were
written by CIA personnel to summarize and analyze the materials that had been provided to the
committee for its review. The Panetta review documents were no more highly classified than
other information we had received for our investigation—in fact, the documents appeared to be
based on the same information already provided to the committee. What was unique and
interesting about the internal documents was not their classification level, but rather their
analysis and acknowledgement of significant CIA wrongdoing.
Violates separation of powers
Feinstein 14 (Dianne has been a US senator since 1992 and is Chairmanship of the Senate Select
Committee on Intelligence, 3/11, “Statement on Intel Committee’s CIA Detention, Interrogation
Report”, http://www.feinstein.senate.gov/public/index.cfm/2014/3/feinstein-statement-onintelligence-committee-s-cia-detention-interrogation-report)/cc
My letter also laid out my concern about the legal and constitutional implications of the CIA’s
actions. Based on what Director Brennan has informed us, I have grave concerns that the CIA’s
search may well have violated the separation of powers principles embodied in the United
States Constitution, including the Speech and Debate clause. It may have undermined the
constitutional framework essential to effective congressional oversight of intelligence
activities or any other government function. I have asked for an apology and a recognition that
this CIA search of computers used by its oversight committee was inappropriate. I have received
neither. Besides the constitutional implications, the CIA’s search may also have violated the
Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333,
which prohibits the CIA from conducting domestic searches or surveillance.
Senate will reaffirm oversight of the CIA
Froomkin 14 (Dan is a reporter, columnist, and editor with a focus on coverage of U.S. politics
and media, 3/11, “CIA SEARCH OF CONGRESSIONAL COMPUTER SPARKS CONSTITUTIONAL
CRISIS”, https://firstlook.org/theintercept/2014/03/11/cia-search-congressional-computersparks-constitutional-crisis/)//cc
Two top Senate leaders declared Tuesday that the CIA’s recent conduct has undermined the
separation of powers as set out in the Constitution, setting the stage for a major battle to
reassert the proper balance between the two branches. Intelligence Committee chair Dianne
Feinstein (D-Calif.), in a floor speech (transcript; video) that Judiciary Committee chair Patrick
Leahy (D-Vt.) immediately called the most important he had heard in his career, said the CIA had
searched through computers belonging to staff members investigating the agency’s role in
torturing detainees, and had then leveled false charges against her staff in an attempt to
intimidate them. “I have grave concerns that the CIA’s search may well have violated the
separation of powers principle embodied in the United States Constitution, including the
speech and debate clause,” she said. “It may have undermined the constitutional framework
essential to effective congressional oversight of intelligence activities or any other
government function.” She concluded: “The recent actions that I have just laid out make this a
defining moment for the oversight of our intelligence community. How Congress responds and
how this is resolved will show whether the Intelligence Committee can be effective in
monitoring and investigating our nation’s intelligence activities, or whether our work can be
thwarted by those we oversee. I believe it is critical that the committee and the Senate
reaffirm our oversight role and our independence under the Constitution of the United States.”
Congressional approval key
Frye 2 (Alton is a presidential Senior Fellow Emeritus and Director of the Program on Congress
and Foreign Policy at the Council on Foreign Relations, “Applying the War Powers Resolution to
the War on Terrorism”, Testimony Before the Senate Judiciary Committee, 4-17,
http://www.cfr.org/terrorism/applying-war-powers-resolution-war-terrorism/p4514)//cc
4. CONSENSUS IS ESSENTIAL TO NATIONAL COHESION The case for active, continuing congressional engagement
on the many issues of high policy presented by an open-ended campaign against terrorism does not rest on an instinct for
institutional self-aggrandizement. It is
grounded in the critical need to forge and maintain America’s social
cohesion as a nation caught up in war. War, especially prolonged war, always poses the risk of depleting that
cohesion, so vital to domestic harmony and international effectiveness . Members of Congress should also
realize how essential their involvement is to the morale and cohesion of the military men and
women sent to do violence on our behalf. One of our most distinguished and thoughtful military leaders, former
Army Chief of Staff, General Edward Meyer, emphasized that point some months ago. In a letter to Congressman
Thomas Campbell, who was then seeking a definitive judicial ruling on the constitutional balance of war powers, General Meyer
wrote, “I believe it
is essential that when American servicemen are sent into combat that they have the
support of their fellow Americans. The War Powers Act causes the people’s representatives (the Congress) to take a
position, and not leave the troops dangling on threads of definition and interpretation.” The parallel, policy-centered procedures
outlined here would serve that same need. Congress’s
stand on how our nation uses the mighty arsenal at
bears crucially on America’s standing in the world. Even among our closest allies,
American power elicits mixed emotions: awe and fear, respect and anxiety. That should surprise no one. Military
and economic capabilities of the magnitude America possesses cannot fail to cause alarm in other countries, however
benign our intentions. That alarm is heightened to the degree that American force appears to be too
its disposal also
easily deployed. In the eyes of others, no less than of our own citizens, American military action may be
seen as most legitimate when it is demonstrably subject to democratic governance . This insight is
akin to Justice Jackson’s memorable formulation that the President’s power is at its maximum only when he
acts “pursuant to an explicit or implied authorization of Congress.” Marshaling international
coalitions to wage the war on terrorism will depend importantly on giving our allies
confidence that American power is guided and restrained by a disciplined relationship between
Congress and President. Absent attentive, persistent congressional involvement, public
diplomacy in the war on terrorism could lose much of the credibility that arises from the perception of
America as a model of representative government . There is thus an enduring necessity to
balance executive potency in military endeavors with the legislative review that provides
democratic legitimacy . The challenge is not to enchain the presidency but to harness both branches to common purpose.
On that insight the War Powers Resolution was founded, and in that insight may be found the germ of other innovations to
guarantee that Congress will play its proper constitutional role in the war on terrorism.
Congress must be the first mover
Hansen 9 (Hansen and Friedman are professors of law at the New England School of Law, 2009
(Victor and Lawrence, The Case for Congress: Separation of Powers and the War on Terror,
p.130))//cc
come much too late in the
process and only after significant damage to our constitutional values had been inflicted by the Bush administration. If
Congress only acts after being goaded by the courts, or only after high profile scandals have come to
The problem, of course, is that much of this congressional involvement has
light, or only after the President’s policies have prolonged wars and made us at the same time less secure and less free, then we
have reached a level of constitutional brinkmanship which can only be regarded as intolerable. Likewise,
members of Congress would be sorely mistaken if they believed that these legislative initiatives have once and for all ended the
cannot afford to wait for some
crisis to act. As we have already discussed, the consequences are too dire. As many of the post-September 11 policy decisions of
the Bush administration demonstrate, a President who acts without securing the benefits of the deliberative
process established in the Constitution is likely to fail in making us more secure while maintaining basic
liberties. Moreover, when Congress only engages in these issues after the fact , its relevance as an
possibility of executive assertions of dominance in these areas. Put simply, Congress
institution is undermined. Unless Congress is as proactive and assertive of its constitutionally
appointed responsibilities as the executive is about its authority, the checks and balances of our system
simply will not work. Congress will be relegated to a second tier institution in the realm of national
security, and it will be ever more difficult for Congress to stand up to an assertive and aggressive
president.
trust
CIA surveillance of Senate committee computers erodes political trust in the
CIA – enflames tension between the CIA and Congress
Hammond 14 – Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics, and a former UK
Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, “US Senate report on CIA torture threatens
international relations”, http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatens-international-relations20141210-1243ol.html // SM)
While the full report has taken years to compile by the Democratic-led Intelligence committee, the Republican members (who will
take over control of the body from January following the party's victory in last month's Senate elections) do not endorse it and are
expected to issue their own separate study. Despite this, and other criticisms of the
report, including from former president
George W. Bush, it will nonetheless have key ramifications at home and abroad. Within the US, for
instance, there will be erosion of political trust and confidence in the CIA – Senate Intelligence
Committee Chair Dianne Feinstein has even called the agency's actions a "stain on [US]
history" and "morally, legally and administratively misguided". The likelihood of tension
between the CIA and Congress , especially some Democrats, is fuelled by the fact that this latest furor closely
follows CIA Director John Brennan's apology to Feinstein and the Intelligence committee in July following the CIA Inspector
General's finding that agency officials had improperly monitored the computers of the
committee's staff.
CIA Surveillance on the Senate violates the constitution - SOP and 4th amendment
Schoon 14 (Robert Schoon, March 13, 2014, In Feinstein CIA Speech, Constitutional Separation
of Powers, Fourth Amendment Concerns Emerge, Latin Post,
http://www.latinpost.com/articles/8823/20140313/feinstein-cia-speech-constitutionalseparation-of-powers-fourth-amendment-concerns-emerge.htm) //JS
The battle of words between the Director of the Central Intelligence Agency and the chairwoman of the Senate
committee whose charge is to oversee the CIA's activities is primed to erupt into a Constitutional crisis, and
possibly a watershed moment for the public conversation over the powers of the U.S. Government's spying apparatus. On Tuesday,
senior Senator Dianne Feinstein, who has been an outspoken supporter of the surveillance programs of the National Security
Agency, took what was a private intra-government dispute to the Senate floor, and its television cameras. In a long and blistering
speech, the
Senate Intelligence Committee Chairwoman spoke publicly about the alleged spying by the
CIA on the computers, networks, and members of the Senate Intelligence Committee. In so many unprecedented, public words,
Feinstein accused CIA John Brennan, and the agency he heads, of illegally spying on Congress in an effort to
contain documents relating to the CIA's Detention and Interrogation Program (referred to as the Internal Panetta Review), which
Feinstein's committee has been investigating -- or at least trying to investigate -- for years. Feinstein's speech included several
serious charges leveled against Brennan and the CIA, and raised
the implications of the agency's alleged
shattering of the Constitutional separation of powers between the Executive and Legislative
branches. The speech also exposed what appears to have been a longstanding game of bait-and-switch between her committee
and the agency it's constitutionally mandated to oversee. Here are some excerpts of Feinstein's more devastating allegations from
her Senate speech: "On January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman
Chambliss that without prior notification or approval, CIA personnel had conducted a "search" - that was John Brennan's word - of
the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by
the CIA, but also a search of the "stand alone" and "walled-off" committee network drive containing the committee's own internal
work product and communications. "According to Brennan, the computer search was conducted in response to indications that
some members of the committee staff might already have had access to the Internal Panetta Review. The
CIA did not ask the
committee or its staff if the committee had access to the Internal Review, or how we obtained it. Instead, the CIA just went
and searched the committee's computers. "In place of asking any questions, the CIA's unauthorized search of the
committee computers was followed by an allegation - which we now have seen repeated anonymously in the press - that the
committee staff had somehow obtained the document through unauthorized or criminal means. Feinstein then brought up sobering
concerns about the implications of the CIA's accused actions. "I have grave concerns that the
CIA's search may well have
violated the separation of powers principles embodied in the United States Constitution, including the
speech and debate clause. It may have undermined the constitutional framework essential to
effective congressional oversight of intelligence activities or any other government function. "The CIA's
search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act as well as Executive
Order 120003, which prohibits the CIA from conducting domestic searches or surveillance."
Speech and debate clause
CIA surveillance of the Senate damages separation of powers and the
Constitution’s speech and debate clause – that’s uniquely key to prevent
executive encroachment
Doyle 3/12 – Reporter in the Washington bureau of McClatchy Newspapers since 1988. Professorial Lecturer for George
Washington University. He was a Knight Journalism Fellow at Yale Law School, and a Woodrow Wilson Visiting Fellow at Washington
and Lee University and other colleges. (2015, Michael, McClatchy Washington Bureau, “Senate-CIA dispute is a constitutional
muddle”, http://www.mcclatchydc.com/news/nation-world/national/national-security/article24765163.html // SM)
While personalities, politics and the protection of turf all helped drive the CIA and its Senate
overseers apart, the remarkable split now at center stage also revives the centuries-old drama
called separation of powers. Every side invokes the phrase, though it’s a magic spell that can turn on the user. “Fights
over separation of powers have been going on since George Washington,” Charles Tiefer, a professor at the University of Baltimore
School of Law and a former acting counsel to the House of Representatives, said Tuesday. Separation of powers marks the
division among the executive, legislative and judicial branches. Put another way, it’s the inherent tension between the White House,
Congress and the courts. It’s now flaring up on several fronts. Pushing from one side, the Senate Select Committee on
Intelligence hit the wall when its investigators sought internal CIA documents concerning a secret detention and interrogation
program. The agency refused to deliver what it termed “deliberative” and “predecisional” material. “The Executive Branch has long
had substantial separation of powers concerns about congressional access to this kind of material,” CIA Director John Brennan wrote
Democratic Sen. Dianne Feinstein, who chairs the intelligence panel, in a Jan. 27 letter first made available this week. Pushing from
the other side, Feinstein
and other committee members are likewise citing separation-of-powers
principles in complaining about what they alleged were unauthorized CIA searches of
computers used by Senate committee staffers. “It may have undermined the constitutional
framework essential to effective congressional oversight of intelligence activities,” Feinstein
warned in an extraordinary Senate floor speech Tuesday. The notion of separation of powers is baked into the Constitution. It
transcends party labels and cuts in all directions. When FBI agents raided the Capitol Hill office of a Louisiana congressman in 2006,
Republican as well as Democratic lawmakers sued. Separation of powers, they said, should keep the executive branch investigators
at bay. A judge rejected the claim. When a Republican-led congressional committee sought Justice Department documents about
the “Operation Fast and Furious” gun-running scandal, Obama administration officials raised separation-of-powers objections in a
fight that’s still ongoing. And when a Democratic-led Congress sought documents about the George W. Bush administration’s firing
of U.S. attorneys, once again the White House raised separation of powers as a shield. A trial judge sided with Congress, and both
sides reached an accommodation. The perennial nature of the conflict was on display Tuesday, when the Republican-controlled
House of Representatives passed a bill that it said would “protect the separation of powers” by allowing congressional lawsuits
against executive agencies. The White House, in turn, declared that the legislation “violates the separation of powers.” Executive
privilege embodies the separation-of-powers idea. The phrase does not appear in the Constitution. Instead, it came to life during the
Watergate era of the 1970s when the Supreme Court ruled that the president had a qualified, but not absolute, privilege to keep
White House documents out of congressional hands. “In designing the structure of our government and dividing and allocating the
sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but
the separate powers were not intended to operate with absolute independence,” Chief Justice Warren Burger wrote in the key 1974
decision. The Obama administration has not invoked executive privilege in the struggle over CIA documents, and Brennan did not
use the phrase in his four-page Jan. 27 letter to Feinstein. Describing the CIA documents as “deliberative,” though, hinted at a
holstered weapon that’s been used before. “Presidents have repeatedly asserted executive privilege to protect confidential
Executive Branch deliberative materials from congressional subpoena,” Obama wrote Attorney General Eric Holder in 2012 as the
Justice Department was refusing demands for Fast and Furious documents. The Fast and Furious document struggle that began in
2011 is still dragging along in U.S. District Court. The latest legal filings were posted last week. Congress
enjoys its own
separation-of-powers defense, partly contained in the Speech or Debate Clause of the
Constitution. Feinstein explicitly raised this clause in her speech Tuesday , though she did not elaborate
on how it may apply. The Constitution states that “for any speech or debate in either House,”
members of Congress “shall not be questioned in any other place.” The idea is to protect
legislative independence, in part, from executive encroachment. In a 1972 case involving Alaska
Sen. Mike Gravel’s public release of confidential Pentagon documents, the Supreme Court specified that legislative
aides are covered as well as lawmakers themselves. This could support Feinstein’s invocation
of Speech or Debate Clause immunity, as the CIA asked for a Justice Department investigation
of her Senate intelligence committee staffers. “The day-to-day work of such aides is so critical to the members’
performance that they must be treated as the latter’s alter egos,” Supreme Court Justice Byron White wrote in the 1972 case,
adding that the intent of immunity is partly “to prevent intimidation of legislators by the Executive.” Feinstein summoned a similar
separation-of-powers image Tuesday, calling the CIA’s referral of a complaint to the Justice Department a “potential effort to
intimidate” staffers.
CIA surveillance of the Senate undermines separation of powers, specifically
the Speech or Debate Clause – that’s key to effectively check the Executive
branch, especially true for national security
Shenkman 14 – Fellow of the Center for Law and Politics, Columbia Law School. *Cites
Columbia Law School Professor David Pozen (Spring 2014, Michael, “Talking About Speech or
Debate: Revisiting Legislative Immunity”, Yale Law & Policy Review, 32 Yale L. & Pol'y Rev. 351,
LexisNexis // SM)
4. Protection of Meaningful Legislative Speech The purpose of a robust Speech or Debate Clause protection
is to give Members of Congress the independence and the fearlessness to serve as an effective
check on the executive branch. n303 The combination of public disclosures [*412] around a
(formerly secret) national security apparatus and a changing media landscape make
vindication of this structure especially important today. In June 2013, the media began to
report on a series of unauthorized disclosures by Edward Snowden, a former government contractor,
including most notably a program to collect millions of phone records. n304 The Privacy and Civil Liberties Oversight Board probably
understated the resulting hullabaloo in observing that "these disclosures caused a great deal of concern both over the extent to
which they damaged national security and over the nature and scope of the surveillance programs they purported to reveal." n305
Columbia Law School Professor David Pozen has recently unveiled and described a structure in
which a leaky national security apparatus benefits the executive branch. n306 He also suggests that it has
advantages for the Congress: in particular, by providing "a low-cost mechanism for monitoring
and disciplining the executive and for providing transparency." n307 Even as Pozen notes that this
particular claim requires further investigation, there is a strong political economy literature that supports
the implications for the Congress that he posits. n308 But a rationally passive Congress and a legally clipped
Congress are quite different things. Josh Chafetz has responded to Pozen's narrative by contending that "secrecy determinations are
matters for interbranch politics like any other." n309 To that end, I agree with Chafetz (and Pozen) that the Congress should
not - and constitutionally cannot - be disarmed. To be effective in oversight, Members of
Congress must have not only the power to know and understand executive branch secrets,
but also to disclose and expose them. n310 A full Speech or Debate Clause privilege has a role to play [*413] in
ensuring, for example, that the ranking Member of the Senate Intelligence Committee does not feel "unable to fully evaluate" a
national security program because of his "inability to consult with staff or counsel of [his] own," as Senator Jay Rockefeller told Vice
President Cheney he felt in 2003. n311 Professor Kathleen Clark has explained that the Speech or Debate Clause has an important
role in guaranteeing Congress a right to the advice of staff lawyers in intelligence oversight. n312 This is not, to be clear, a proposal
that every Member of Congress should effectively become an independent de-classification authority. Pozen notes the institutional
incentives that discourage such hyperactivity, and Chafetz observes that the House and the Senate both have rules preventing it.
n313 The
public is best served, however, by a Congress that could organize itself to allow such
disclosures - and by an executive branch made more cautious and contemplative by
knowledge of such a congressional power. n314 A dispute between the Senate and the Central
Intelligence Agency that became public as this Article was in the final stages of publication vividly illustrates the
important separation-of-powers implications of the Speech or Debate Clause. In a floor speech,
Senator Feinstein accused the CIA of having removed a key document from a secure facility
designed for use by the staff of the Senate Intelligence Committee in its oversight operations.
She also accused the agency of having referred matters involving committee staff action to the Department [*414] of Justice for
criminal investigation and prosecution. n315 She
expressed concern that the CIA had "violated the
separation of powers principles embodied in the U.S. Constitution, including the speech and
debate clause" and also that the criminal referral had been undertaken to intimidate committee staff and obstruct a
committee report on the CIA's "interrogations using so-called enhanced techniques." n316 CIA Director John Brennan denied "the
allegation of CIA hacking into Senate computers." n317 Ultimately, however, this is a specific (but important) factual dispute,
answerable by forensics rather than law. The issue of constitutional moment is the alleged attempt by the executive branch to use
criminal enforcement authority to intimidate Members of Congress from doing their job. Pozen
has explained why
Congress may be rational in its general passivity regarding intelligence oversight, but a
different question - on which Pozen, Chafetz, and I all agree - is that robust interpretation of
the Speech or Debate Clause in this area is essential to meaningful checks and balances.
Although this principle has general subject matter applicability, it is especially true in the national security
space, where the executive branch is structurally the dominant actor.
The Speech or Debate Clause is key to effective separation of powers – prevents
Executive encroachment
Fodor 14 – J.D. Candidate, Northwestern University School of Law, 2014; M.A., Binghamton University,
2007; B.A., Binghamton University, 2006 (2014, Anna, Northwestern University Law Review, “CONGRESSIONAL ARBITRAGE AT THE
EXECUTIVE’S EXPENSE: THE SPEECH OR DEBATE CLAUSE AND THE UNENFORCEABLE STOCK ACT”,
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1025&context=nulr // SM)
Professors Reinstein and Silverglate contend that in “executive motivated suits,” the
Speech or Debate Clause should
be interpreted broadly to serve the greater interest of separation of powers.43 They find that “even wellmeaning executive challenges” can have a chilling effect on legislators. 44 In their view, the Executive
poses the primary threat to legislative independence despite the Executive Branch’s often-sincere underlying
motives.45 Therefore, the purpose of the Speech or Debate Clause is to preserve legislative
independence by preventing Executive encroachment.46 In order to give effect to this purpose, Professors
Reinstein and Silverglate argue that legislative privilege must be observed as an individual guarantee.47 B. Legislative
Privilege as an Institutional Guarantee Consensus has largely coalesced around the purpose of
the Speech or Debate Clause to “protect[] the integrity of the legislative process” through an
effective separation of powers.48 To that end, Professor Craig Bradley, whose 1979 work on the Clause is still
the primary counterpoint to Professors Reinstein and Silverglate’s work, similarly asserts that the Clause’s basic
purpose is to protect the powers of the Legislative Branch from encroachment by the other
branches.49 Among those who conceive of legislative privilege as an institutional guarantee, this purpose is best served by
viewing members of Congress as part of the larger legislative scheme.50
impact
democracy
Upholding 4th amendment key now
Rothschild 06 (Barbara Rothschild - writer for the Courier Post specializing in the constitution,
May 1, 2006, Courier Post, 4th Amendment protections are among the most relevant today,
http://archive.courierpostonline.com/article/20060228/SPECIAL08/603010301/4thAmendment-protections-among-most-relevant-today)//JS
The crafters of the Bill of Rights felt that protection against search and seizure was needed. In Colonial America, citizens were used
to British officials ransacking their homes and arresting them without warrants. Thus was born what became the
Fourth
Amendment, prohibiting unreasonable search and seizure and affirming the right of people to be secure "in their
persons, houses, papers and effects." The amendment also allows for search warrants only if there is probable
cause, with the place to be searched and persons or objects to be seized clearly described. Civil rights and
constitutional lawyers agree that the Fourth Amendment is perhaps the most fundamental
and relevant in today's society. In the post-9/11 age, the context in which the amendment is utilized has certainly
changed in some respects from what the Founding Fathers intended, but the principles remain the same. "Protection against
unreasonable search and seizure is what people deal with as a part of their daily life," said James Katz, a
Cherry Hill lawyer who specializes in labor and employment issues, civil rights and constitutional litigation. "You see it in the news
today regarding electronic eavesdropping. I see it in the context of a wide variety of drug-testing
issues, including in a civil context with random drug-testing in the work place, in schools, and among student athletes," Katz said.
"It is as vitally important today as when it was enacted. It provides protection against an
overzealous government, and seeks to balance the interests of the government with that of
the people to be free of unreasonable conduct," he said. Some of the exceptions in which a warrantless search and seizure have
been upheld by the Supreme Court include airport searches and sobriety checkpoints. It has also been ruled that the government
may test certain employees for drugs without probable cause, and that public school officials do not need probable cause to search
students, although police do need probable cause before conducting a search on school premises.
Plans signal bolsters democracy
Newman 14 (Joe Newman -- the Director of Communications for the Project On Government
Oversight., March 12, 2014, CIA Should be Held Accountable for Interference with Senate
Committee’s Work, Pogo, http://www.pogo.org/blog/2014/03/cia-should-be-heldaccountable.html?referrer=https://www.google.com/) //JS
President Obama should declassify a U.S. Senate report on the CIA’s interrogation and detention
practices and end any attempts by the CIA to obstruct congressional oversight, a coalition of groups
with diverse interests and ideologies said today in a letter to the president. The CIA should be held accountable for
any criminal violations or other improper conduct, including its surveillance of computers used by the Senate
Select Committee on Intelligence, the letter said. On Tuesday, Sen. Dianne Feinstein, chairman of the committee, detailed the CIA’s
surveillance and additional agency interference with the committee’s work. “We have grave concerns about the separation of
powers that the president must address,” said Angela Canterbury, Public Policy director of the Project On Government Oversight,
one of 34 organizations that signed the letter. “These tactics of obstruction, intimidation, and excessive secrecy must end. The
president and Congress have a constitutional responsibility to ensure proper oversight of the
intelligence community and hold the CIA accountable.” In light of last year’s disclosures about domestic
surveillance conducted by the National Security Agency, it is clear that there is far too little oversight of the intelligence community,
the coalition said in its letter to the president. “Much of the blame has been placed on Congress, but obviously excessive secrecy and
obstruction of oversight by the intelligence community also must be addressed,” the letter said. “Your administration’s
in creating such an imbalance of power threatens the legitimacy of our constitutional
democracy.”
role
CIA surveillance of the Senate prevents effective oversight – that’s key to
democracy
Horton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for
reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in
the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner,
among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and
America’s Stealth Warfare” by Scott Horton, Salon,
http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)
As this controversy developed, it became clear that Senate investigators had read the agency’s own internal review and therefore
knew that the agency’s criticisms of the report were specious. This had stung figures at the CIA who were trying to manage the
fallout from its torture and black site programs. The CIA never actually contacted the Senate committee and asked how it had
come by the Panetta review. Instead, perhaps convinced that the information had been gained improperly (though that is a strange
word to apply to an oversight committee’s examination of documents prepared by the agency it is overseeing), someone at the
agency decided
to break into the Senate computers and run searches. On January 15, 2014, Brennan
met with Feinstein and had to acknowledge that the CIA had run searches on the Senate
computers. Far from apologizing for this intrusion, Brennan stated that he intended to pursue further
forensic investigations “to learn more about activities of the committee’s oversight staff.” The
Senate committee responded by reminding Brennan that as a matter of constitutional
separation of powers, the committee was not subject to investigation by the CIA. It also pressed to
know who had authorized the search and what legal basis the CIA believed it had for its actions. The CIA refused to answer the
questions. By January 2014, before Feinstein gave her speech, the controversy had reached a fever pitch. Reports that the CIA had
been snooping on the Senate committee and had gained unauthorized access to its computers began to circulate in the Beltway
media. Through its surrogates, the CIA struck back. Unidentified agency sources asserted that Senate staffers had “hacked into” CIA
computers to gain access to the Panetta report and other documents. The staffers had then illegally transported classified
information to their Capitol Hill offices, removing it from the secure site furnished by the agency. In addition, the Justice Department
had become involved. The CIA inspector general, David Buckley, had reviewed the CIA searches conducted on Senate computers and
had found enough evidence of wrongdoing to warrant passing the file to the Justice Department for possible prosecution. Perhaps in
a tit-for-tat response and certainly with the aim of intimidating his adversaries, the acting CIA general counsel, Robert Eatinger, had
made a referral of his own, this time targeting Senate staffers and apparently accusing them of gaining improper access to classified
materials and handling them improperly. Secrecy was unsheathed as a sword against an institution suddenly seen as a bitter foe: the
U.S. Congress. Eatinger’s appearance as a principal actor in this drama was revealing. He was hardly an objective figure. A key point
for the committee investigators was the relationship between CIA operations and the Department of Justice, and particularly the
process the CIA had used to secure opinions from Justice authorizing specific interrogation techniques, including waterboarding, that
amounted to torture. As the senior staff attorney in the operations directorate, Eatinger would certainly have played a pivotal role
throughout the process leading to the introduction of torture techniques. The Senate investigators concluded that the CIA had
seriously misled the Justice Department about the techniques being applied in an effort to secure approvals that would cover even
harsher methods than those described, and Eatinger was right at the center of those dealings. Indeed, Eatinger’s name appears
1,600 times in the report. Like many agency figures closely connected with the black sites and torture program, Eatinger had
skyrocketed through the agency, ultimately becoming senior career lawyer and acting general counsel. No figure in the agency
would have had a stronger interest in frustrating the issuance of the report. All those involved with the torture and black sites
program risked being tarnished by the report, but few more seriously than the CIA figures who dealt with the Justice Department.
Moreover, other risks were looming on the horizon outside the Beltway. As Eatinger struggled to block the Senate report, courts in
Europe were readying opinions concluding that the CIA interrogation program made use of criminal acts of torture and that the
black site operations amounted to illegal disappearings. The United States was not subject to the jurisdiction of these courts, but its
key NATO allies were, and the courts would soon be pressing them to pursue criminal investigations and bring prosecutions relating
to the CIA program. Those involved in the program, including Eatinger, thus risked becoming international pariahs, at risk of arrest
and prosecution the instant they departed the shelter of the United States. Feinstein had refused press comment throughout this
period, but other sources from the committee or its staff had pushed back with blanket denials of these accusations. U.S. media
relished the controversy and presented it in typical “he said/she said” style. But rarely is each view of a controversy equally valid or
correct. Indeed, within the agency suppressing media coverage of the highly classified detention and interrogation program was
considered a legitimate objective, which helps to account for the numerous distortions, evasions, and falsehoods generated in
Langley with respect to it. But the CIA’s campaign against the Senate report was approaching a high-water mark of dishonesty. As
Feinstein ominously noted, these developments had a clear constitutional dimension: “I have
grave concerns that the CIA’s search may well have violated the separation of powers
principle embodied in the United States Constitution, including the speech and debate clause.
It may have undermined the constitutional framework essential to effective oversight of
intelligence activities or any other government function.” * A fundamental concept underlying the American
Constitution is the delicate rapport established between Congress and the various agencies of the executive. The massive
government apparatus, including the ballooning intelligence community, is controlled by the executive. Yet the individual agencies,
including the CIA—called into existence and defined by acts of Congress—operate using money that Congress gives them, subject to
any limitations Congress may apply. The legislative branch exercises specific powers of oversight and inquiry into the work of
agencies of the executive, including the right to conduct investigations, to require documents to be produced and employees of the
government to appear and testify before it, and to issue reports with its findings and conclusions. Throughout history executives
have used the administration of justice as a tool to intimidate and pressure legislators. To protect legislators against this sort of
abuse, the Constitution’s speech and debate clause provides a limited form of immunity for members of Congress. The Supreme
Court has confirmed that this immunity extends to congressional staffers, such as Senate committee staffers, when they are
supporting the work of their employers, and protects them against charges of mishandling classified information. Feinstein’s
suggestion that CIA activities had violated the Constitution and several federal statutes was on point. Eatinger’s decision to refer
allegations against committee staffers to the Justice Department also reflected an amazing lack of understanding of the Constitution
and the respective roles of the two institutions. And so did Brennan’s public statements. Brennan first pushed back against
Feinstein’s account, strongly suggesting it would be proven inaccurate: “As far as the allegations of CIA hacking into, you know,
Senate computers, nothing could be further from the truth. We wouldn’t do that. That’s just beyond the scope of reason in terms of
what we would do.” He also suggested that the Justice Department would be the arbiter of the dispute between the CIA and the
Senate: “There are appropriate authorities right now both inside of CIA, as well as outside of CIA, who are looking at what CIA
officers, as well as SSCI staff members did. And I defer to them to determine whether or not there was any violation of law.” This
formulation was of course nonsense—the CIA had turned to the Justice Department as a dependable ally, not as an independent
fact finder. The department was the second government agency likely to be excoriated by the report. Its national security division, to
which Eatinger had turned, was little more than the CIA’s outside law firm. But when an internal probe by the CIA’s inspector general
vindicated Feinstein and found that CIA employees had likely misled the Justice Department, Brennan was compelled to issue an
apology to the Senate committee; when he again appeared before the committee, Brennan refused to identify the responsible CIA
agents or provide other details. The incident prompted bipartisan calls for Brennan to be fired, but President Obama went before
the cameras to express his ongoing confidence in his CIA director. The
CIA, in its frenzied maneuvering to
suppress an essential Senate report, had made predictable use of secrecy as its chief
weapon—against its own congressional overseers. The agency cast itself as an intrepid force
protecting American democracy from its enemies. But in this case, the agency had
unambiguously emerged as the enemy of democracy. One century ago, the brilliant German
sociologist Max Weber, looking at the calamity of World War I and the wide-ranging struggle
it had spawned between intelligence services and parliament, drew a series of far-reaching
conclusions about the effects that secrecy would have on democratic government. Tenacious
parliamentary oversight of the operations of intelligence agencies was essential, he concluded, if
democracy was to survive. The experiences recounted by Sen. Feinstein provided a rare
glimpse into precisely the struggle that Weber predicted. One commentator quipped, “This is
death of the republic stuff.” Hyperbole? Maybe not. More precisely it is what Hannah Arendt labeled a “crisis of
the republic.” At the peak of popular discontent over the Vietnam War, as the Pentagon Papers were published and highly classified
news about the war effort was regularly splashed across the pages of American newspapers, Arendt focused on the use of secrecy
and its close ally, the political lie, to impede public discussion of vital national security issues. However, Arendt had high confidence
that the crisis would pass—America’s democratic institutions were sound, its press was resilient, and politicians who made bad
mistakes regularly saw accountability at the polls. Forty
years later, America faces another crisis of
democracy. But now the dynamics have shifted considerably in favor of national security elites.
They have carefully calculated the points likely to alarm the public and stir it to action. More effectively than before,
they use secrecy not only to cover up their past mistakes but also to wrest from the public
decisions about the future that properly belong to the people. Increasingly, Congress seems no match for
them.
ethics
There is an obligation to uphold the constitution regardless of their DA’s
Carter 87 (Stephen Carter - Law professor at Yale University, 1987, From Sick Chicken to Synar:
The Evolution and Subsequent De-Evolution of the Separation of Powers,
http://digitalcommons.law.yale.edu/fss_papers/2232/) //JS
The problem with this use of our burgeoning public policy science, an inevitable one in an area of theory driven by
instrumental rationality, is that the law itself is stripped of the aura of uniqueness which is assigned to it in liberal theory. The
law becomes all too mutable, and is left as no more than one of the means that must be tested against its efficacy in achieving
the desired end.1311 The Constitution, which is after all a species of law,138 is thus quite naturally viewed as a potential
impediment to policy, a barrier that must be adjusted, through interpretation or amendment, more often than preservation
of government under that Constitution is viewed as a desirable policy in itself.137 In this the modern student of policy is like the
modern moral philosopher-and like a good number of constitutional theorists as well-in denigrating the value of preserving any
particular process and exalting the desirable result.138 But constitutionalism assigns enormous importance
to
process, and consequently assigns costs, albeit perhaps intangible ones, to violating the constitutional
process. For the constitutionalist, as for classical liberal democratic theory, the autonomy of the people
themselves, not the achievement of some well-intentioned government policy, is the ultimate end for which the
government exists. As a consequence, no violation of the means the people have approved for
pursuit of policy-here, the means embodied in the structural provisions of the Constitutioncan be justified through reference to the policy itself as the end.139
federalism
Separation of Powers destroys federalism
Kesler 10 (Charles R is a professor of Government/Political Science at Claremont McKenna
College and Claremont Graduate University. He holds a Ph.D in Government from Harvard
University, from which he received his AB degree in 1978, 5/17, “The Constitution, at Last”,
//www.nationalreview.com/article/229684/constitution-last-charles-r-kesler)//cc
The Constitution establishes a government with two main structural principles — federalism
and separation of powers — and each offers handles that citizens may grasp today to help re
limit the national government. Ours is, or was, a regime of enumerated legislative powers, in
addition to certain implied powers that were “necessary and proper” to carry out the
enumerated ones. The Founders disagreed among themselves about the extent of the implied
powers (e.g., to charter a national bank) as well as about the exact bounds of presidential and
judicial authority. But they expected to disagree in hard cases and left enough political play in
the system for the people to take sides as they saw fit. Federalism was thus partly a legal or
constitutional doctrine and partly a political one. Nonetheless, the state governments could
serve as rallying points for opposition to federal encroachments, and still can. Though weakened
by the Seventeenth Amendment (which destroyed the state governments’ control of the
Senate) and other factors, the states may invoke their Tenth Amendment rights and link arms
with one another in demanding that the offending national officeholders be voted out and a
party of constitutionally faithful ones be voted in. This is the real electoral point of the states’
resistance, on display now in the impressive numbers of states protesting Obamacare. Schemes
of neo-nullification (as Matthew Spalding has called them) purporting to declare a federal law
null and void in a particular state are based on bad history and worse jurisprudence. When
pointing to the state governments, we mean more than the state attorneys general. When the
legislatures and governors object to an unconstitutional federal law, their protest carries more
weight. And the state governments hold in reserve two other constitutional powers: to ask
Congress for a constitutional amendment, and — the nuclear option — to call for a convention
of the states to propose such an amendment if the Congress will not. The Constitution wisely
separated the powers of government, not only to prevent tyranny but also to enable each
branch to perform its functions well. When the separation of powers worked unimpaired, it
helped to prevent the disease we call Big Government. That ugly term implies, among other
things, a centralization of administrative authority in Washington, or, to put it differently, a
bureaucracy that thinks it possesses the wisdom and the right to administer state and local
affairs all around the country. Big Government thus strikes simultaneously at federalism and
the separation of powers, at the external and internal checks on the federal establishment,
inasmuch as a bureaucracy of this sort must combine legislative, executive, and judicial powers
to be effective.
Federalism prevents conflict escalation
Lawoti, 09 (Mahendra is a Professor of Political Science at Western Michigan University, 3/18,
“Federalism for Nepal”, Telegraph Nepal,
http://www.telegraphnepal.com/backup/telegraph/news_det.php?news_id=5041)//cc
Cross-national studies covering over 100 countries have shown that federalism minimizes
violent conflicts whereas unitary structures are more apt to exacerbate ethnic conflicts. Frank
S. Cohen (1997) analyzed ethnic conflicts and inter-governmental organizations over nine 5-
year –periods (1945-1948 and 1985-1989) among 223 ethnic groups in 100 countries. He found
that federalism generates increases in the incidence of protests (low-level ethnic conflicts) but
stifles the development of rebellions (high-level conflicts). Increased access to institutional
power provided by federalism leads to more low-level conflicts because local groups mobilize at
the regional level to make demands on the regional governments. The perceptions that conflicts
occur in federal structure is not entirely incorrect. But the conflicts are low-level and
manageable ones. Often, these are desirable conflicts because they are expressions of
disadvantaged groups and people for equality and justice, and part of a process that
consolidates democracy. In addition, they also let off steam so that the protests do not turn into
rebellions. As the demands at the regional levels are addressed, frustrations do not build up. It
checks abrupt and severe outburst. That is why high levels of conflicts are found less in federal
countries. On the other hand, Cohen found high levels of conflicts in unitary structures and
centralized politics. According to Cohen (1997:624): Federalism moderates politics by
expanding the opportunity for victory. The increase in opportunities for political gain comes
from the fragmentation/dispersion of policy-making power… the compartmentalizing character
of federalism also assures cultural distinctiveness by offering dissatisfied ethnic minorities
proximity to public affairs. Such close contact provides a feeling of both control and security that
an ethnic group gains regarding its own affairs. In general, such institutional proximity expands
the opportunities for political participation, socialization, and consequently, democratic
consolidation. Saidmeman, Lanoue, Campenini, and Stanton’s (2002: 118) findings also support
Cohen’s analysis that federalism influences peace and violent dissent differently. They used
Minority at Risk Phase III dataset and investigated 1264 ethnic groups. According to Saideman et
al. (2002:118-120): Federalism reduces the level of ethnic violence. In a federal structure,
groups at the local level can influence many of the issues that matter dearly to themeducation, law enforcement, and the like. Moreover, federal arrangements reduce the chances
that any group will realize its greatest nightmare: having its culture, political and educational
institutions destroyed by a hostile national majority. These broad empirical studies support the
earlier claims of Lijphart, Gurr, and Horowitz that power sharing and autonomy granting
institutions can foster peaceful accommodation and prevent violent conflicts among different
groups in culturally plural societies. Lijphart (1977:88), in his award winning book Democracy in
Plural Societies, argues that "Clear boundaries between the segments of a plural society have
the advantage of limiting mutual contacts and consequently of limiting the chances of everpresent potential antagonisms to erupt into actual hostility". This is not to argue for isolated or
closed polities, which is almost impossible in a progressively globalizing world. The case is that
when quite distinct and self-differentiating cultures come into contact, antagonism between
them may increase. Compared to federal structure, unitary structure may bring distinct cultural
groups into intense contact more rapidly because more group members may stay within their
regions of traditional settlements under federal arrangements whereas unitary structure may
foster population movement. Federalism reduces conflicts because it provides autonomy to
groups. Disputants within federal structures or any mechanisms that provide autonomy are
better able to work out agreements on more specific issues that surface repeatedly in the
programs of communal movement (Gurr 1993:298-299). Autonomy agreements have helped
dampen rebellions by Basques in Spain, the Moros in the Philippines, the Miskitos in Nicaragua,
the people of Bangladesh’s Chittagong Hill Tracts and the affairs of Ethiopia, among others (Gurr
1993:3190) The Indian experiences are also illustrative. Ghosh (1998) argues that India state
manged many its violent ethnic conflicts by creating new states (Such as Andhra Pradesh,
Gujurat, Punjab, Harayana, Arunachal Pradesh, Goa, Himachal Pradesh, Meghalaya, Mizoram
and Nagaland) and autonomous councils (Such as Darjeeling Gorkha Hill Council, Bodoland
Autonomous Council, and Jharkhand Area autonomous Council, Leh Autonomous Hill
Development Council). The basic idea, according to Ghosh (1998:61), was to devolve powers to
make the ethnic/linguistic groups feel that their identity was being respected by the state. By
providing autonomy, federalism also undermines militant appeals. Because effective
autonomy provides resources and institutions through which groups can make significant
progress toward their objectives, many ethnic activities and supporters of ethnic movements
are engaged through such arrangements. Thus it builds long-term support for peaceful
solutions and undermines appeals to militant action (Gurr 1993:303). Policies of regional
devolution in France, Spain and Italy, on the other hand, demonstrate that establishing selfmanaging autonomous regions can be politically and economically less burdensome for central
states than keeping resistant peoples in line by force: autonomy arrangements have
transformed destructive conflicts in these societies into positive interregional competition".
Federalism deters Iraq instability
Brancati 04 (Dawn is a visiting scholar at the Center for the Study of Democratic Politics at
Princeton University, 7/21, “Can Federalism Stabilize Iraq?”,
http://muse.jhu.edu.proxy.lib.umich.edu/journals/washington_quarterly/v027/27.2brancati.ht
ml)//cc
The United States devoted nine months to planning the war in Iraq and a mere 28 days to
planning the peace, according to senior U.S. military officials. Much more time has to be
invested in the peace, however, if the military achievements of the war are to be preserved
and a stable democracy is to be created in Iraq. Establishing a governmental system that can
accommodate Iraq's different ethnic and religious groups, previously kept in check by the
political and military repression of the Saddam Hussein regime, is paramount to securing that
peace. In the absence of a system uniquely designed toward this end, violent conflicts and
demands for independence are likely to engulf the country. If not planned precisely to meet
the specific ethnic and religious divisions at play, any democratic government to emerge in Iraq
is bound to prove less capable of maintaining order than the brutal dictatorship that preceded
it. By dividing power between two levels of government—giving groups greater control over
their own political, social, and economic affairs while making them feel less exploited as well as
more secure—federalism offers the only viable possibility for preventing ethnic conflict and
secessionism as well as establishing a stable democracy in Iraq. Yet, not just any kind of federal
system can accomplish this. Rather, a federal system granting regional governments extensive
political and financial powers with borders drawn along ethnic and religious lines that utilize
institutionalized measures to prevent identity-based and regional parties from dominating the
government is required. Equally critical to ensuring stability and sustainable democracy [End
Page 7] in Iraq, the new federal system of government must secure the city of Kirkuk, coveted
for its vast oil reserves and pipelines, in the Kurdish-controlled northern region to assure that
the Kurds do not secede from Iraq altogether. For its part, the United States must take a more
active role in advising Iraqi leaders to adopt a federal system of government along these lines.
Such a system will help the United States not only to build democracy in Iraq but also to prevent
the emergence of a Shi'a-dominated government in the country. Without this form of
federalism, an Iraq rife with internal conflict and dominated by one ethnic or religious group is
more likely to emerge, undermining U.S. efforts toward establishing democracy in Iraq as well as
the greater Middle East.
Escalates to World War 3
Corsi 07 (Jerome has PhD in Political Science from Harvard, 1/8, “War with Iran is imminent.”
http://www.wnd.com/news/article.asp?ARTICLE_ID=53669)//cc
If a broader war breaks out in Iraq, Olmert will certainly face pressure to send the Israel
military into the Gaza after Hamas and into Lebanon after Hezbollah. If that happens, it will
only be a matter of time before Israel and the U.S. have no choice but to invade Syria. The Iraq
war could quickly spin into a regional war, with Israel waiting on the sidelines ready to launch
an air and missile strike on Iran that could include tactical nuclear weapons. With Russia ready
to deliver the $1 billion TOR M-1 surface-to-air missile defense system to Iran, military leaders
are unwilling to wait too long to attack Iran. Now that Russia and China have invited Iran to
join their Shanghai Cooperation Pact, will Russia and China sit by idly should the U.S. look like
we are winning a wider regional war in the Middle East? If we get more deeply involved in Iraq,
China may have their moment to go after Taiwan once and for all. A broader regional war
could easily lead into a third world war, much as World Wars I and II began.
Heg
Separation of powers creates a perception of benign hegemony and encourages
international cooperation based on rule of law
Ikenberry 1 (G. John, Peter F. Krogh Professor of Global Justice at the School of Foreign Service
at Georgetown University, “Getting Hegemony Right - Analysis of the United States as a
"Hyperpower" Nation”, The National Interest, Spring, Lexis)//cc
A critical ingredient in stabilizing international relations in a world of radical power disparities is the
character of America itself. The U nited S tates is indeed a global hegemon, but because of its
democratic institutions and political traditions it is--or can be--a relatively benign one. Joseph Nye's
arguments on "soft power" of course come to mind here, and there is much to his point. But, in fact, there are other, more
significant aspects of the American way in foreign policy that protect the United States from the consequences of its own greatness.
When other major states consider whether to work with the United States or resist it, the fact that it is an open,
stable
democracy matters. The outside world can see American policymaking at work and can even find
opportunities to enter the process and help shape how the overall order operates. Paris, London, Berlin, Moscow,
Tokyo and even Beijing--in each of these capitals officials can readily find reasons to conclude
that an engagement policy toward the United States will be more effective than balancing against U.S. power.
America in large part stumbled into this open, institutionalized order in the 1940s, as it sought to rebuild the postwar world and to
counter Soviet communism. In the late 1940s, in a pre-echo of today's situation, the United States was the world's dominant state-constituting 45 percent of world GNP, leading in military power, technology, finance and industry, and brimming with natural
resources. But America nonetheless found itself building world order around stable and binding partnerships. Its calling card was its
offer of Cold War security protection. But the intensity of political and economic cooperation between the United States and its
partners went well beyond what was necessary to counter the Soviet threat. As the historian Geir Lundestad has observed, the
expanding American political order in the half century after World War II was in important respects an "empire by invitation." [5]
The remarkable global reach of American postwar hegemony has been at least in part driven by the efforts of Europe an and Asian
governments to harness U.S. power, render that power more predictable, and use it to overcome their own regional insecurities.
The result has been a vast system of America-centered economic and security partnerships. Even
though the U nited S tates
looks like a wayward power to many around the world today, it nonetheless has an unusual ability to
co-opt and reassure . Three elements matter most in making U.S. power more stable, engaged
and restrained . First, America's mature political institutions organized around the rule of law
have made it a relatively predictable and cooperative hegemon. The pluralistic and regularized way
in which U.S. foreign and security policy is made reduces surprises and allows other states to
build longterm, mutually beneficial relations . The governmental separation of powers creates a
shared decision-making system that opens up the process and reduces the ability of any one
leader to make abrupt or aggressive moves toward other states. An active press and competitive parry
system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of
purpose. The messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over the long
term, democratic institutions produce more consistent and credible policies--policies that do not
reflect the capricious and idiosyncratic whims of an autocrat. Think of the United States as a giant corporation that seeks foreign
investors. It is more likely to attract investors if it can demonstrate that it operates according to accepted accounting and fiduciary
principles. The rule
of law and the institutions of policymaking in a democracy are the political
equivalent of corporate transparency and accountability Sharp shifts in policy must ultimately be vetted
within the policy process and pass muster by an array of investigatory and decision-making bodies. Because it is a
constitutional, rule-based democracy, outside states are more willing to work with the U nited
S tates--or, to return to the corporate metaphor, to invest in ongoing partnerships. This open and decentralized political process
works in a second way to reduce foreign worries about American power. It creates what might be called "voice opportunities"--that
is, opportunities for political access and, with it, the means for foreign governments and groups to influence the way Washington's
power is exercised. In 1990 the political analyst Pat Choate wrote a bestseller entitled Agents of Influence, detailing the supposedly
scandalous ways in which Japanese ministries and corporations were manipulating the American political process. High-priced
lobbyists were advancing Tokyo's commercial interests within the hallowed halls of the American capital and undermining the
pursuit of the U.S. national interest. Today Washington is even more inundated by foreign diplomats and revolving-door lobbyists
working to ensure that the interests of America's partners are not overlooked. Looked at from the perspective of the stable
functioning of America's hegemonic order, Choate was actually describing one of the brilliant aspects of the United States as a global
power. By providing other states opportunities to play the game in Washington, they are drawn into active, ongoing partnerships
that serve the long-term strategic interests of the United States. A third and final element of the American order that reduces worry
about power asymmetries is the web of multilateral institutions that mark the postwar world. After World War II, the United States
launched history's most ambitious era of institution-building. The UN, IMF, World Bank, NATO, GATT and other institutions that
emerged provided a more extensive rule-based structure for political and economic relations than anything seen before. The United
States had been deeply ambivalent about making permanent security commitments to other states and about allowing its political
and economic policies to be dictated by intergovernmental bodies. The Soviet menace was critical in overcoming these doubts.
Networks and political relationships were built that--paradoxically--made U.S. power both more far-reaching and durable but also
more predictable and malleable. In effect, the United States spun a web of institutions that connected other states to an emerging
American-dominated economic and security order. But in doing so, these institutions also bound the United States to other states
and reduced--at least to some extent--Washington's ability to engage in the arbitrary and indiscriminate exercise of power. Call it an
institutional bargain. The price for the United States was a reduction in Washington's policy autonomy, in that institutional rules and
joint decision-making reduced U.S. unilateralist capacities. But what Washington got in return was worth the price. America's
partners also had their autonomy constrained, but in return were able to operate in a world where U.S. power was more restrained
and reliable. Secretary of State Dean Rusk spelled out the terms of the bargain in testimony before the Senate Foreign Relations
Committee in 1965: We are every day, in one sense, accepting limitations upon our complete freedom of .... We have more than
4,300 treaties and international agreements, two-thirds of which have been entered into in the past 25 years.... Each one of which at
least limits our freedom of action. We exercise our sovereignty going into these agreements. But Rusk argued that these agreements
also create a more stable environment within which the United States can pursue its interests. "Law is a process by which we
increase our range of freedom" and "we are constantly enlarging our freedom by being able to predict what others are going to do."
[6] The United States gets a more predictable environment and more willing partners. There have been many moments when Asian
and European allies have complained about the heavy-handedness of U.S. foreign policy, but the open and institutionalized
character of the American order has minimized the possibilities of hegemonic excess over the long term. The untoward implications
of sharp power asymmetries are reduced, cooperation and reciprocity are regularized, and the overall hegemonic order is rendered
more legitimate and stable. The bargain--on both sides--remains intact. Renewing the Institutional Bargain AMERICA's
soaring power in the 1990s has put this open and rule-based postwar order to the test. Over the last fifty
years, the advanced industrial states have been relatively confident that the institutional
foundations of this order would guard against the worst abuses of U.S. unilateralism and
domination. The system had characteristics of a stakeholder hegemony that promoted
stability and cooperation. Today, in various political circles around the world, it is harder for some people to make this
judgment. Even the leader of a major U.S. ally, German Chancellor Gerhard Schroder, has raised concerns. "That there is a danger of
unilateralism, not by just anybody but by the United States, is undeniable." [7] The implication of my argument is that the more
America's brute power capabilities emerge from behind mutually acceptable rules and institutions, the more that power will
provoke reaction and resistance. American leaders are indeed ambivalent about entangling the country in restraints and
commitments. In the past, however, these leaders have consistently concluded that some restraint on U.S. autonomy was a useful
way to allay the worries of other states and bind them to America's postwar global political-economic order. As Robert Zoellick,
former undersecretary of state and now U.S. Trade Representative in the Bush administration, describes the operation of this
postwar order: The more powerful participants in this system--especially the United States--did not forswear all their advantages,
but neither did they exercise their strength without substantial restraint. Because the United States believed the Trilateral system
was in its interest, it sacrificed some degree of national autonomy to promote it. [8] What can America do to prevent the unraveling
of this order? Three suggestions are offered here. First, U.S. officials should keep the country's current good fortunes in historical
perspective. This might induce a bit more modesty. America's long-time rival from outside the advanced democratic world-Russia-now has an economy about the size of Denmark's. America's one-time rival from within the advanced democratic world-Japan--has
gone through ten years of economic stagnation, with no end in sight. China is still a developing country in terms of both economic
and military capabilities, far from being able to challenge the United States in either arena. Western Europe is stable and expanding,
but it is consumed with its own union, embarked on a politically difficult economic restructuring, and still is not capable of projecting
global power. This unusual--perhaps unique--set of circumstances gives the United States a de facto license to act as the world's
manager and CEO. But U.S. officials should remember tha t the wheel of world power does turn. Russia will not be down forever, nor
will Japan. Europe will eventually get its house in order. The way America treats the other major states when they are in decline will
influence how these states treat America when--not if--they recover. Second, the United States needs to renew the postwar
institutional bargain by making it more explicit and more encompassing. This means that America must make it clear that it will play
by multilateral rules in exchange for cooperation by other states on issues that matter most to us. The U.S. government should bury
once and for all legislation such as Super 301 and the Helms-Burton Act, which give the president authority to act unilaterally to
protect narrow economic interests. Such exercises of U.S. power create more problems than they solve. The United States should
also expand its capacity to consult with other governments throughout the policymaking process. Washington is not just the capital
of the country or even of "the West"; it is also--at least for a few more decades--the capital of a larger global order. These foreign
stakeholders must be brought more fully into our policy process. Increasing opportunities to voice opinions can be achieved
informally in the day to day willingness of U.S. officials to consult with other governments. If not, Washington risks an ultimate shift
toward some other form of global order. President George W. Bush seemed to acknowledge the dangers of an overweening foreign
policy--and chest thumping about America as the "indispensable nation"--during one of the presidential debates, when he called for
more modesty as America operates around the world. The Bush team has also made "listening to our allies" a central theme of its
foreign policy. Whether this is more than hollow campaign rhetoric will depend on how the new administration acts on such issues
as U.S. participation in peacekeeping operations, national missile defense, and a variety of proposed multilateral political and
environmental accords. Preserving the existing system through the redoubling of rule-based relationships will also require American
elites to elevate the domestic debate on international commitments and institutions. The old canard that building international rules
and authority threatens American sovereignty is still too tempting to many politicians on the Left and Right. The argument that
many--if not most-- of the existing multilateral institutions are inspired by U.S. leadership and advance the country's goals needs to
be made more convincing to the American people. Politicians are more likely to stress the short-term costs to the United States in
terms of lost policy autonomy or sovereignty than the gains in building an enlightened order that serve long-term U.S. interests.
Finally, the United States needs to find more ways to pursue its economic and security goals through joint or multilateral decisionmaking exercises. A good example of such intergovernmental processes that create stakeholder cooperation is the 1999 Perry
commission on North Korea. Responding to a congressional request for a reassessment of U.S. policy toward North Korea, the
Clinton administration charged former Secretary of Defense William Perry with the task of policy review. The deliberations
eventually involved extensive talks with Japan and South Korea. In a de facto way, the commission became multilateral, and
Japanese and South Korean officials were integrated into the process and ultimately helped shape its content. The Perry report
helped clarify U.S. policy toward North Korea, but the process by which it was generated also helped build consensus in the region
on how to deal with that state. It also made American involvement in the region more consistent with the goals of partner states.
The G-8 proc ess--which in recent years has launched ongoing intergovernmental working groups to pursue common approaches to
issues such as transnational organized crime and environmental policy--is also a place where coordinated policymaking can be
expanded. America's
unipolar moment need not end in antagonistic disarray. But the U nited S tates
needs to rediscover the solutions that it has brought to the problem of unequal power in the past. These solutions are
celebrated in our national political tradition. The rule of law, constitutional principles and inclusive institutions of political
participation ensure that governance is not simply a product of wealth or power. The wealthy and the powerful must
operate within principled institutional parameters. Because a rule-based order generates more
stable and cooperative relations within the country even the wealthy and powerful gain by avoiding social upheaval,
which puts everyone's interests at risk. America can once again take this old domestic insight and use it to shape post-Cold War
international relations. And it is time to do so now, when America's relative power may be at its peak.
Separation of Powers is essential to hegemony – democratic institutions
produce credibility better
Ikenberry 01 – John G. Ikenberry is the Albert G. Milbank Professor of Politics and International Affairs at Princeton
University in the Department of Politics and the Woodrow Wilson School of Public and International Affairs. (Spring 2001, John G.
Ikenberry, The National Interest, “Getting Hegemony Right”, www.columbia.edu/itc/sipa/U6800/readingssm/Ikenberry_Hegemony.pdf // SM)
First, America's
mature political institutions organized around the rule of law have made it a
and cooperative hegemon. The pluralistic and regularized way in which U.S.
foreign and security policy is made reduces surprises and allows other states to build longterm, mutually beneficial relations. The governmental separation of powers creates a shared
decision-making system that opens up the process and reduces the ability of any one leader
to make abrupt or aggressive moves toward other states. An active press and competitive party system also
relatively predictable
provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose. The
messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over
the long term,
democratic institutions produce more consistent and credible policies - policies that do not
reflect the capricious and idiosyncratic whims of an autocrat. Think of the United States as a giant
corporation that seeks foreign investors. It is more likely to attract investors if it can demonstrate that it operates according to
accepted accounting and fiduciary principles. The
rule of law and the institutions of policymaking in a
democracy are the political equivalent of corporate transparency and accountability. Sharp
shifts in policy must ultimately be vetted within the policy process and pass muster by an
array of investigatory and decision-making bodies. Because it is a constitutional, rule-based
democracy, outside states are more willing to work with the United States or, to return to the
corporate metaphor, to invest in ongoing partnerships.
Immigration
Obama’s immigration act is in process of authorization now – it legitimizes
executive overreach
McGill 7/10 (Kevin. Associate Press. “Appeals panel hears arguments on Obama immigration action”. 10 July 2015.
http://bigstory.ap.org/article/2cbc5dedeb2f47e59d1a47bdcf3207b9/appeals-panel-hears-arguments-obama-immigrationaction)//JuneC//
NEW ORLEANS (AP) — A federal
appeals court in New Orleans was set to hear arguments Friday over
President Barack Obama's plan to protect from deportation as many as 5 million immigrants
living illegally in the United States. Announced in November, the plan was harshly criticized
by Republicans in Congress as an executive overreach. Texas and 25 other states challenged the plan in
federal court, and U.S. District Judge Andrew Hanen in Brownsville, Texas, granted a preliminary injunction on Feb. 16. Arguments in
the Obama administration's appeal were set for a two-hour hearing before a three-judge panel of the 5th U.S. Circuit Court of
Appeal. Supporters of the plan, including members of labor unions and immigrants' rights groups, planned to rally outside the
courthouse Friday morning and hold a news conference after the hearing. The
panel is not expected to rule
immediately. Either side could appeal a loss to the full 5th Circuit or the Supreme Court — a process that will eat up
time with only about a year and a half left in Obama's second term. Justice Department lawyers arguing for the administration
have said Texas had no legal standing in the matter. Texas' solicitor general countered that granting legal status to immigrants will
be costly for Texas, with the state incurring costs for providing drivers' licenses, schooling and health care to immigrants who are
granted permission to stay. Obama's
executive orders were intended to expand a program that
protects young immigrants from deportation if they were brought to the U.S. illegally as
children. The other major part would extend deportation protections to parents of U.S.
citizens and permanent residents who have been in the country for some years. Two members of
the panel hearing arguments Friday were on a panel that voted in May to not allow the plan to proceed while the appeal is pursued.
In the May 26 ruling, judges Jerry Smith and Jennifer Walker Elrod said the federal government lawyers are unlikely to succeed on
the merits of the appeal. Judge Stephen Higginson disagreed in a lengthy dissent. Friday's panel includes Smith, Elrod and Carolyn
Dineen King.
Only congressional check on executive overreach can prevent it from passage
Shapiro 15 (Ilya. senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court
Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced
international, political, commercial, and antitrust litigation at Patton Boggs and Cleary Gottlieb. “Challenging President Obama’s
Immigration Action Even Though It’s Good Policy”. 8 January 2015. CATO Institute. http://www.cato.org/blog/challenging-presidentobamas-immigration-action-even-though-its-good-policy)//JuneC//
Our immigration system is broken and Congress has shamelessly refused to fix it. Of course, this unfortunate circumstance doesn’t
give the executive branch the power to institute reforms itself. Yet through a recently announced policy known as Deferred Action
for Parental Accountability (DAPA), President Obama has given partial legal status to more than four million illegal migrants, entitling
them to work authorizations and other benefits. This
unilateral action is good policy, bad law, and terrible
precedent. Perhaps most importantly, it violates the separation of powers and is thus
unconstitutional. In what is becoming a routine occurrence under this administration, 25 states have sued the federal
government in response to this executive action. The case is now before a federal district judge in Brownsville, Texas, who is
entertaining the plaintiffs’ motion to enjoin DAPA. Cato, joined by law professors Josh Blackman, Jeremy Rabkin, and Peter
Margulies, has filed an amicus brief supporting the motion. It’s highly unusual for Cato to file at the district court level—indeed
amicus briefs of any kind are unusual in this forum—but this is a highly unusual situation. To
be clear, we support
comprehensive reform that would provide relief to the aliens protected by DAPA (among
many other goals), but it’s not for the president to make such legislative changes alone.
President Obama has defended his action by citing past deferrals for (1) battered and abused aliens, (2) aliens involved in human
trafficking, (3) foreign students affected by Hurricane Katrina, and (4) widows of U.S. citizens. But these deferred actions, to the
extent they’re relevant here, served as temporary bridges from one legal status to another, not tunnels that undermine legislative
structure or detours around the law to hitherto unknown destinations. Moreover, they were several orders of magnitude smaller
than DAPA, in the tens of thousands not the millions. Most significantly, they were all approved by Congress. None of these
principles holds true for DAPA. The administration itself stated the applicable test in the memorandum setting out DAPA’s legal
justification: “an
agency’s enforcement decisions should be consonant with, rather than contrary
to, the congressional policy underlying the statutes the agency is charged with administering.”
This executive action represents a fundamental rewrite of the immigration laws that is
inconsistent with the congressional policy currently embodied in the Immigration and
Naturalization Act (INA)—a policy that, again, those who joined this brief by no means
endorse. As Prof. Blackman explains in a new law review article, DAPA is in palpable tension with the INA, implementing under
the guise of executive discretion wholesale waiver/suspension/deferral that swallows the enforcement rule. Indeed, Congress
rejected or failed to pass immigration-reform bills reflecting this policy several times, so
executive power in this area is “at its lowest ebb,” to use Justice Robert Jackson’s famous
formulation from the 1952 Steel Seizure Case. In our constitutional architecture, executive
action based solely on Congress’s resistance to presidential policy preferences has no place.
While we agree that the immigration laws need to be overhauled and sympathize with the
plight facing undocumented aliens, the path designed by the Framers for implementing
needed reforms goes through the halls of Congress. Unilateral exercises of power such as
DAPA undermine the separation of powers and ultimately the rule of law. Judge Andrew Hanen, who
was nominated by George W. Bush and unanimously confirmed by the Senate, will hold his preliminary injunction hearing in Texas v.
United States on Jan. 15 in Brownsville, Texas.
The executive order deters immigrants and wrecks the economy
Gurbanov 14 (GEYSAR I. a Rotary Fellow at Duke-UNC Chapel Hill Center for International Studies in Peace and Conflict
Resolution. “Why Obama’s immigration plan is bad”. 19 November 2014. News Observer.
http://www.newsobserver.com/opinion/op-ed/article10137332.html)//JuneC//
In 2011, with a few thousand dollars in my pocket, I arrived in the US seeking shelter from persecution and corruption. I crossed the
border legally – I had a valid entry visa. When President Obama announced his willingness to bypass Congress and act unilaterally to
enforce immigration changes that will offer legal paperwork to as many as 5 million undocumented immigrants, I and many others in
my situation felt devastated. On March 17, in response to my letter addressed to the White House about my immigration case,
President Barack Obama wrote back in an email message: “America’s immigration system is badly broken, and I know many people
are hurting because of it.” Because
I am among more than 5 million legal immigrants in pending
status, any decision the federal government –either the White House or Congress – makes on
immigration will likely have a consequence on my status in the U.S. In 2011, with a few thousand dollars
in my pocket, I arrived in this country seeking shelter from persecution and corruption that forced me to leave my home. I crossed
the border legally – I had a valid entry visa to come to the United States. Additionally, although it was tempting, I never accepted
illegal employment opportunities and did not take any shortcuts in my pursuit of the American Dream. Recently, when
Obama announced his willingness to bypass Congress and act unilaterally to enforce
immigration changes that will offer legal paperwork to as many as 5 million undocumented
immigrants, I and many others in my situation felt devastated. And here is why. Yes, Obama is right. Our
immigration system is badly broken. However, his executive order cannot and will not solve
the problem. He offers a short-term solution as any president who is elected to run the Oval
Office after him will have a chance to overrule his executive order. In the past, Presidents
Ronald Reagan and George H.W. Bush also granted amnesty to illegal immigrants. But decades
later, the problem of illegal immigration has not been solved by their executive orders. On the
contrary, with estimated 11.7 million individuals, the number of undocumented aliens is on
the rise. Moreover, there is another consequence for Obama’s action: Our immigration system runs at its
maximum capacity. Try to file an immigration application with the federal government, and
you will experience longer waiting times to get your paperwork processed. For example, more than
40,000 asylum applicants – those who take a legal path to stay in the U.S – live in legal limbo waiting for decisions on their cases. I
have personally waited almost two years now because the resources of the federal government to handle immigration petitions are
already stretched. In
order to process millions of new applications, the immigration authorities will
have to draw tremendous administrative resources, not to mention financial costs associated
with it. And this will happen at the expense of other applicants who are already waiting in a queue and are, oftentimes,
backlogged in the system. In other words, by granting paperwork to millions of undocumented immigrants, we treat unfairly those
immigrants who come to the U.S. legally: Their
paperwork will experience significantly more delays, and
any incentives for them to stay here legally will be diminished. Historically, America has been a country of
immigrants. Immigrants fight our wars, they invest in our economy, they start multibillion-dollar corporations and they strengthen
our academia. But immigration must be regulated. And any policies in this regard must be long-term solutions driven by our
commitment to serve the American citizenry, not by political ambitions of those in the nation’s capital. Our elected officials should
understand that granting temporary relief to illegal immigrants results only in putting a few stitches on the bleeding wound of our
“badly broken immigration system.” Yet we must also realize that there will be no way to prevent the influx of immigrants to the
U.S. For as long as America remains one of the best countries in the world, people will come here in their pursuit of happiness.
Halting immigration defeats the purpose of the American Dream. We will be better off if we identify a middle ground in our
otherwise radical approaches to illegal immigration. Such a viable solution will include making legal immigration easier and illegal
crossings a less desirable course of action. Otherwise, granting
paperwork to millions of undocumented
immigrants who cross the border and intentionally violate the U.S. laws sends out the wrong
message to potential émigrés. True, we are a nation of immigrants, and America is a country of opportunities, but these
opportunities should be available on a legal basis. At the end, we are also a nation of laws, and it is our
system based on law-abiding behavior that makes us so attractive and sets us apart from
other nations across the globe.
nuclear war
Executive overreach causes a short-term nuclear war – strong Constitutional
principles solve
Spannaus 14 – Editor at the Executive Intelligence Review News Service. Mrs. Spannaus has written a book on The Political
Economy of the American Revolution, and countless articles. (11/21/2014, Nancy, “A ‘Symbiotic Pathology’ Threatens U.S. Survival”,
Executive Intelligence Review National, http://larouchepub.com/eiw/public/2014/eirv41n46-20141121/09-11_4146.pdf // SM)
Nov. 17—“A
symbiotic pathology between Executive overreach and Congressional abdication,”
identified by Sen. Tim Kaine (D-Va.) in a Nov. 12 speech at the Woodrow Wilson Center in Washington, D.C.,
threatens to destroy the United States in the very short term . Specifically, this symbiosis is
leading toward a lethal escalation of the Obama Administration’s war in Southwest Asia, as
well as confrontation with Russia and China; both policies could result in nuclear war. The
pathological players are the lawless, narcissistic President Obama, on the one side, and the pro-war
fascist wing dominating the Republican Party, on the other. The only hope for the United States, and the world,
is that a grouping of American patriots comes forward to dump both these players, and restore
constitutional government and principles in the country. Under such conditions, the United
States could be brought into an alliance with the anti-war, pro-development global coalition
being led by the BRICS nations, and a lasting war avoidance policy based on cooperation
around high-technology development could be put in place.
Even small violations of separation of powers must be avoided like nuclear war
risks
Redish and Cisar 91, Professor of law at Northwestern and Law Clerk to Chief Judge William
Bauer, United States Court of Appeals, Seventh Circuit, Martin H. and Elizabeth J., December
1991, IF ANGELS WERE TO GOVERN" *: the Need for Pragmatic Formalism in Separation of
Powers Theory ,1992 Duke Law Journal, 41 Duke L.J. 449, p. 474
no defender of separation of powers can prove with certitude that, but for the existence of
separation of powers, tyranny would be the inevitable outcome. But the question is whether we
wish to take that risk, given the obvious severity of the harm that might result. Given both the
relatively limited cost imposed by use of separation of powers and the great severity of the
In summary,
harm sought to be avoided , one should not demand a great showing of the likelihood that
the feared harm would result. For just as in the case of the threat of nuclear war,
be forced into the position of saying, “I told you so.”
no one wants to
war
Flawed model of separation of powers causes global wars
Zakaria, 1997 editor of Newsweek International, ’97 (Fareed, Foreign Affairs, November, LN)¶
When divining the cause behind this correlation, one thing becomes clear: the democratic peace is¶ actually the
liberal peace. Writing in the eighteenth century, Kant believed that democracies were¶ tyrannical, and he specifically excluded
them from his conception of "republican" governments, which lived in a zone of peace. Republicanism, for Kant, meant
a separation of powers, checks and balances, the rule of law, protection of individual rights,
and some level of representation in government (though nothing close to universal suffrage). Kant's other
explanations for the "perpetual peace" between republics are all closely linked to their constitutional and liberal character: a mutual
respect for the rights of each other's citizens, a system of checks and balances assuring that no single leader can drag his country
into war, and classical liberal economic policies -- most importantly, free trade -- which create an interdependence that makes war
costly and cooperation useful. Michael Doyle, the leading scholar on the subject, confirms in his 1997 book Ways of War and Peace
that without constitutional liberalism, democracy itself has no peace-inducing qualities: Kant distrusted unfettered, democratic
majoritarianism, and his argument offers no support for a claim that all participatory polities -- democracies -- should be peaceful,
either in general or between fellow democracies. Many participatory polities have been non-liberal. For two thousand years before
the modern age, popular rule was widely associated with aggressiveness (by Thucydides) or imperial success (by Machiavelli) . . . The
decisive preference of [the] median voter might well include "ethnic cleansing" against other democratic polities. The distinction
between liberal and illiberal democracies sheds light on another striking statistical correlation. Political scientists Jack Snyder and
Edward Mansfield contend, using an impressive data set, that over the last 200 years democratizing states went to war significantly
more often than either stable autocracies or liberal democracies. In
countries not grounded in constitutional
liberalism, the¶ rise of democracy often brings with it hyper-nationalism and war-mongering.
When the political¶ system is opened up, diverse groups with incompatible interests gain access to power and press their¶
demands. Political and military leaders, who are often embattled remnants of the old authoritarian¶ order, realize that to succeed
that they must rally the masses behind a national cause. The
result is¶ invariably aggressive rhetoric and
policies, which often drag countries into confrontation and war.¶ Noteworthy examples range from
Napoleon III's France, Wilhelmine Germany, and Taisho Japan to¶ those in today's newspapers, like Armenia and Azerbaijan and
Milosevic's Serbia. The democratic¶ peace, it turns out, has little to do with democracy.¶
tyranny
Separation of powers crucial for liberty and protection from tyranny
Morrisey 12 (William is William a Professor in the U.S. Constitution at Hillsdale University,
“Separation of Powers: Ensuring Good Government”,
https://online.hillsdale.edu/document.doc?id=261)//cc
The separation of powers helps to ensure good government at the same time it guards against
tyranny. Independent in function but coordinated in the pursuit of justice, the three branches
of government—legislative, executive, and judicial—must each have enough power to resist
the encroachment of the others, and yet not so much that the liberty of the people is lost. A
political regime has three dimensions: the ruling institutions, the rulers, and the way of life of
the people. In America, the rulers—the people themselves—and their ruling institutions—
staffed by the people’s representatives—aim at securing the Creator-endowed natural rights of
all citizens. The Framers did this in two ways. “Vertically” considered, our ruling institutions are
defined by federalism, or the division of power between the national, state, and local
governments. “Horizontally” considered, the ruling institutions of the federal government itself
are separate and co-equal. In the American regime, the Constitution is the “supreme law of the
land.” No one branch is superior to it; all three branches have a duty to abide by it. While each
of the three branches plays a unique role in the passage, execution, and interpretation of laws,
all of the branches must work together in the governing process.
Separation of Powers prevents tyranny and oppression
*We don’t endorse gendered language
Kesler 07 (Charles R is a professor of Government/Political Science at Claremont McKenna
College and Claremont Graduate University. He holds a Ph.D in Government from Harvard
University, from which he received his AB degree in 1978, 12/17 The Hermitage Foundation,
“What Separation of Powers Means for Constitutional Government”,
http://www.heritage.org/research/reports/2007/12/what-separation-of-powers-means-forconstitutional-government)//cc
The argument from liberty holds that separation is needed in order to prevent tyranny.
According to Publius's famous definition, "The accumulation of all powers legislative,
executive, and judiciary, in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the very definition of
tyranny."[3] Tyranny is a danger because man's passions and reason are not perfectly
harmonious; his reason may be distorted by desire. Although each man has by nature the rights
to life, liberty, and the pursuit of happiness, he cannot secure these rights without joining
together with other men to form a civil society, a people. Despite the legal unity of this people,
it is composed of individuals whose impassioned opinions and interests divide them into
majorities and minorities. As a precaution against injustice, therefore, the powers of
government must be so divided that no man or group of men may wield all of them at once.
This precaution would not be necessary if reason and passion were utterly harmonious, and if
the whole comprising such reason and passion were a priori unitary rather than synthetic. These
conditions, however, are unique to God, who alone justly unites the legislative, judicial, and
executive powers in the same hands. The Declaration of Independence affirms this by appealing
at once to "the laws of Nature and of Nature's God," "the Supreme Judge of the world," and
"the Protection of Divine Providence."[4]
Separation of Powers is essential to protecting liberty and preventing tyranny
Watson and Burnham 7/5 – Ryan J. Watson and James M. Burnham are appellate lawyers at Jones Day. Ryan, a former
clerk to Supreme Court Justice Samuel A. Alito, Jr., has been involved in numerous Supreme Court cases; James was the primary
brief writer on behalf of Noel Canning in Noel Canning v. National Labor Relations Board, a successful constitutional challenge to
“recess” appointments the President purported to make in 2012. (2015, Ryan J. Watson and James M. Burnham, Washington Times,
“Separation of powers: A primer”, http://www.washingtontimes.com/news/2015/jul/5/celebrate-liberty-month-separation-ofpowers-a-pri/ // SM)
separation of powers supplies a key
bulwark protecting individual liberty in the world’s most successful Republic. The Founders were
As we celebrate Liberty Month, it is worthwhile to review how the Constitution’s
familiar with human nature and the correlative tendency of every ruler towards tyranny. They had experienced oppression at the
hands of the English King and realized that the only way to truly protect individual liberty was to limit the power of any single
government official. James
Madison, a central architect of the Constitution, rightly observed that if “men were angels, no
government would be necessary.” Federalist No. 51 (1788). He knew that every official or body would seek to
accumulate “all powers, legislative, executive, and judiciary, in the same hands,” and that
such a concentration would be “the very definition of tyranny.” Federalist No. 47 (1788). Thomas Jefferson
agreed, labeling such a concentration of power as “precisely the definition of despotic government.” Notes on the State of Virginia,
Query 13 (1784). At the national level, the
Founders addressed this tendency towards tyranny in two
ways. First, they recognized that the only way to limit each official’s power was to limit each
office’s power—that is, to divide the sovereign power of government across different offices
and separate branches. The Founders therefore divided federal power across three different
branches and numerous different officials. They did so both to limit each individual official’s unilateral power and
to ensure that the People knew which of their elected officials to hold accountable for different governmental actions. Second,
the Founders wisely realized they could not trust mere “parchment barriers against the encroaching spirit of power,” Federalist No.
48, and thus, to keep officials within those limits, used “ambition to counteract ambition,” aligning the “interest of the man with the
constitutional rights of the place.” Federalist No. 51. The
Founders thus created a system in which not only
does no single official possess plenary power, but officials must also battle each other to
exercise power. In that constitutional system, “the private interest of every individual” runs counter to the private interest of
every other individual. Id. The Founders ensured, in other words, that each individual official’s inherent desire for more power
would serve as a separate “sentinel over the public rights.” Id. The
Founders created this system by dividing the
government’s powers among, and even within, three separate and competing branches. Here’s a
quick snapshot of how they did it: As Article I of the Constitution makes clear, the Legislative Branch enacts legislation, levies taxes,
regulates interstate commerce, appropriates money, and (at least theoretically) declares war. The Constitution further divides the
Legislature into two bodies, the House and Senate. The Executive Branch, established in Article II, implements the laws created by
Congress, and the President makes treaties, serves as Commander in Chief, and appoints federal judges and principal officers.
Finally, the Judiciary, established in Article III, declares what the law is—by interpreting the Constitution and laws, and applying
them to specific cases and controversies. The Founders then enmeshed each branch’s powers in an elaborate system of checks and
balances, whereby the branches (attempt to) keep each other in line. For example, although Congress enacts legislation, the
President can veto it (subject to an override by a two-thirds vote of each house of Congress). While the President appoints officers,
the Senate has the power to give advice and consent to those appointments, and also to the President’s treaties. And although
federal judges enjoy life tenure and salary protection, they are empowered only to apply the law rather than make it, and they can
This system cannot function, though, if the branches do not fulfill their
constitutionally-designated roles and jealously guard their prerogatives when other branches
encroach. The system fails and liberty suffers if the Executive acquiesces in congressional
action that divests it of executive power; if Congressional representatives become so obsessed
with merely remaining representatives that they are supine in the face of Executive
overreach; or if the Judiciary fails to leave the legislating to Congress. For many decades, the branches
be impeached.
took their duties seriously and defended their powers against one another. But in a world where officials stand aside as the other
branches reallocate power to themselves (or to unaccountable independent agencies), one could be forgiven for wondering whether
our society still understands that the separation of powers is a large part of why our Republic has long endured.
torture advantage
internal link
oversight
CIA surveillance on the Senate has a chilling effect on Congressional oversight
Cassata 14 – *Cites senators, Cassata is a political editor for the Associated Press (3/12/2014, Donna, Southeast Missourian,
“Senator sees CIA meddling in torture probe”, http://www.semissourian.com/story/2059728.html // SM)
WASHINGTON -- The
leader of the Senate Intelligence Committee declared Tuesday the CIA interfered
with and tried to intimidate a congressional investigation into the agency's possible use of
torture in terror probes during the Bush administration. The CIA clandestinely removed documents and
searched a computer network set up for lawmakers, said Sen. Dianne Feinstein in a speech on the Senate
floor. In a dispute with an agency she has long supported, she said the CIA may well have violated criminal laws
and the U.S. Constitution. Both sides have involved the Justice Department. The CIA's inspector general, David Buckley,
has referred the matter to Justice, and the CIA's acting counsel responded by filing a criminal report about the intelligence
committee staff. "I am not taking it lightly," Feinstein said of the investigations. "I view the acting counsel general's referral as a
potential effort to intimidate this staff" in the interrogation investigation. The dispute between the CIA and senators, which has
been going on privately for more than five years, emerged as a public clash as Feinstein offered an account of the Senate's secretive
dealings with the CIA in an investigation of post-Sept. 11 interrogation and detention practices. All U.S. spy agencies have drawn
scrutiny since revelations last summer about surveillance of Americans by the National Security Agency. The Obama administration
has struggled to rebuild trust since former analyst Edward Snowden made the disclosures. Feinstein has been one of the intelligence
community's most ardent advocates, arguing the wide surveillance of people's electronic and telephone communications was a
necessary counterterrorism tool. In the current matter, CIA director John Brennan rejected Feinstein's accusations, insisting the
agency was not trying to thwart the committee's work and denying it had been spying on the panel or the Senate. He said the
appropriate authorities would look at the matter further and "I defer to them to determine whether or not there was any violation
of law or principle." Brennan said if he did "something wrong, I would go to the president and he would be the one to ask me to stay
or go." Feinstein and the CIA acknowledge they examined documents that were part of the investigation but insisted they acted
appropriately in following an agreement worked out between her committee and then-CIA director Leon Panetta in 2009. But
Feinstein and the CIA have accused each other's staffs of improper behavior. She said she had "grave concerns that
the CIA's search may well have violated the separation of powers principles embodied in the
United States Constitution," and the Fourth Amendment that prohibits unreasonable searches
and seizures. She said she has sought an explanation and an apology from the CIA. Neither has
been forthcoming. Feinstein received a standing ovation from her Democratic colleagues at a closed-party lunch on Tuesday.
Several Republicans also expressed their concerns, but the Intelligence Committee's top Republican, Saxby Chambliss of Georgia,
wasn't one of them. He indicated he disagreed with her on the dispute, without providing specifics. He called for a study "on what
happened so people can find out what the facts are." "We're going to continue to deal with this internally," he told reporters.
Other senators said the dispute had a chilling effect on congressional oversight. "Heads should
roll, people should go to jail if it's true," said Sen. Lindsey Graham, R-S.C. "If it is, the legislative branch
should declare war on the CIA." Sen. Ron Wyden, D-Ore., an outspoken critic of the NSA practices, shared
Feinstein's concerns that laws were violated in an "unprecedented invasion by the CIA into
computers used by Senate" investigators, and said misleading statements from intelligence
leaders undermine their credibility.
The Senate Intelligence Committee is pressuring the CIA on torture – the plan is
key to making that oversight effective
Ackerman 13 – Spencer Ackerman is national security editor for Guardian US. A former senior writer for Wired, he won the
2012 National Magazine Award for Digital Reporting (12/20/2013, Spencer, The Guardian, “Senate intelligence committee presses
CIA to release torture report”, http://www.theguardian.com/world/2013/dec/20/senate-intelligence-committee-cia-torture-report
// SM)
Pressure is building on the CIA to release one of the most potentially explosive documents of the post-9/11 era : a
secret Senate report revealing in gruesome detail the extent of the agency’s use of torture. In
one corner is the US’s premier intelligence agency, which has labored for years to put its history with torture
behind it. In the other is a Senate committee whose dogged, even angry pursuit of a grim episode
has placed it against an agency to which it ordinarily gives the benefit of the doubt – all while it is
trying to convince the public it can effectively police the National Security Agency. In the balance is something that, for civil
libertarians, has been elusive: accountability for torture. “There are certain smart people at the CIA who have to realize
that if that kind of information becomes public, it’s going to renew the calls for a criminal investigation,” said Chris Anders, a
Washington-based attorney with the American Civil Liberties Union (ACLU). Almost exactly a year ago, the
Senate
intelligence committee approved, by a 9-6 bipartisan vote, a 6,300-page inquiry into brutal
interrogations conducted by the CIA on suspected al-Qaida detainees. The years-long study
documented not only the practices behind euphemisms like “waterboarding” and “stress
positions”, but what senators have described as useless information yielded by them and
deceptions by the CIA to Congress about their importance. The public has never seen the
report. The CIA has feuded with a committee that is deeply inclined toward giving it and its
partner intelligence services the benefit of the doubt, as accusations of deception have
swirled between Langley and Capitol Hill. The unresolved tension has already cast a shadow over the brief CIA
directorship of John Brennan, a confidante of President Barack Obama who was a senior agency official in the period of the events
that comprise much of the report’s focus. On Tuesday afternoon, the battle emerged into full view during a nomination hearing for
the CIA’s next top lawyer. Angry
senators once again excoriated Langley for stalling on
declassifications, and lashed out over CIA statements to the press that the Senate report is
factually flawed. “I'm more confident than ever in the factual accuracy,” said Senator Mark Udall, who accused the CIA of
misleadingly telling the Daily Beast that the CIA objected to the report when, he revealed, an internal agency study had found no
such factual objections. Hours later, however, the New York Times ran a piece containing a reiteration of the same CIA insistence
that the Senate inquiry contained “significant errors” about what the agency prefers to call “enhanced interrogation”. Asked about
Udall’s claim, CIA spokesman Dean Boyd said: “We are aware of the committee’s request and will respond appropriately.” What
seems on the surface like an obscure dispute inside the Beltway has attracted combatants outside of it. This week, a
coalition
of religious groups organized an open letter to the committee, signed by Christian, Muslim and Jewish
clergy across the country, describing the release of the report as a critical accountability measure.
“We hope that op-eds written by local religious leaders in publications in all 50 states will
demonstrate to the Senate intelligence committee the depth of the opposition to torture
within the religious community and our community’s support for sharing the truth about
torture by releasing the report to the public,” said Reverend Richard Killmer, the executive director of the National
Religious Campaign Against Torture, in a statement. For Brennan, the torture issue has overtaken his tenure. An agency veteran and
an Arabic speaker, he lost the CIA directorship shortly after Obama’s election, due to statements he made in old press interviews
that condemned waterboarding – forcing water over a detainee’s nostrils and mouth, preventing them from breathing – but
suggested that “enhanced interrogation techniques” saved lives, a point under fierce dispute. Brennan became the White House
counterterrorism director instead, an arguably more powerful position that gave him practically unmediated access to Obama. While
Brennan was scrutinized more for approving drone strikes, the torture issue re-emerged once Obama definitively nominated him to
run the CIA. His February confirmation hearing featured Brennan having to forswear internal knowledge of torture; insisting,
contrary to contemporaries’ recollections, that he attempted to stop it; and pledging to work with the committee on a torture
report he said he had not fully read. “I very much look forward to hearing from the CIA on that and then coming back to this
committee and giving you my full and honest views,” Brennan told the committee chair, Dianne Feinstein. He was confirmed soon
after. By June, however, Brennan delivered a classified “rebuttal” to the Senate panel, contesting its conclusions and its command of
the facts. Former agency officials insisted that the Senate, not the agency, was playing politics with the efficacy of torture. “I don’t
know how they could fail to say that actually it was effective,” one anonymous ex-CIA official told the Washington Post. At
particular issue are undisclosed legal memorandums, written in secret at the Justice Department, that gave
torture the imprimatur of legality. Feinstein and other senators have complained for over a
year that neither the CIA nor the Justice Department has shared such memorandums with the
committee. On Tuesday, the senators reiterated a contention that the CIA did not just lie to the committee about the value of
torture, but it also lied to the Bush-era Justice Department office of legal counsel about how it actually implemented the brutal
techniques the department blessed. Yet Caroline Krass, a top lawyer in the office of legal counsel, whom Obama nominated to
become the CIA’s chief attorney, told the panel on Tuesday that the Senate panel was not entitled to the memorandums, which she
described as “pre-decisional” and therefore beyond Senate prerogative. Those legal memos could thrust the CIA back into a
minefield it thought Obama had saved it from facing. Even before his inauguration, Obama signaled he had no interest in charging
anyone involved in torturing detainees with a crime. “We need to look forward as opposed to looking backwards,” he said, in a
January 2009 interview. An independent Justice Department investigation deliberately excluded from its purview any senior official
or lawyer who authorized the torture, and examined instead about 100 instances in which low-level CIA officials and contractors
carried out the brutal interrogations. In 2012, the inquiry formally ended – without prosecuting anyone. It was an enormous relief
for a CIA that has struggled to put its torture legacy behind it, despite whispering to the filmmakers of the controversial Hollywood
hit Zero Dark Thirty that torture was a critical counterterrorism practice. But if the Senate report indicates that the CIA misled the
Justice Department, said Anders of the ACLU, the agency might find itself under renewed calls to reopen an inquiry aimed at
prosecution. Anders said: “The most significant way that the CIA has been protected against prosecution has been its claims that it
was relying on legal advice from the Justice Department, but if the very basis of that legal advice was misrepresented facts provided
by the CIA, then by relying on those legal opinions when you know it’s based on false or incomplete information, the CIA
There are also high stakes for the Senate intelligence committee.
The disclosures from Edward Snowden about the breadth of NSA surveillance has damaged
public confidence in Congress’s ability to effectively oversee the intelligence agencies, on issues
ranging from the bulk collection of Americans’ phone data to overseas “targeted killing” launched from CIA drones. Now the
CIA is publicly stonewalling the committee, effectively defying the panel on what chairwoman Feinstein pointedly
undermined the value of those opinions.”
told Krass on Tuesday was its sole “purpose”. Feinstein and other committee members are procedurally encumbered by the CIA. The
committee is bound by rules that prevent it from making unilateral declassification decisions. Votes to compel public releases would
involve the rest of the Senate, and the executive branch has broad leverage over declassification. At the end of Tuesday’s hearing,
Feinstein urged Krass to let her staff “sit down with you and explain to you exactly what it is
and that you take some action” over the documents the committee wants. Krass, equivocally, said she
wanted to “work closely with this committee to make sure that you get access to the information as appropriate”.
CIA surveillance on the Senate obstructs the Senate’s investigation of torture –
the declassification of the torture report’s key to the end of torture
HRF 14 – (3/14/2014, Human Rights First, “Pressure Mounts to Declassify the Senate Torture Report”,
http://www.humanrightsfirst.org/blog/pressure-mounts-declassify-senate-torture-report // SM)
The Senate Intelligence Committee produced a landmark 6,000-page report on the CIA’s
detention and interrogation program. This report has the potential to end the debate on
torture and prevent its return. Hint: according to those who have read the report, it says that torture didn’t save
American lives and that torture was more widespread and harsher than we thought. The problem: The American public
can’t read it because it’s classified. Bipartisan support for declassification is growing, and after
developments this week, America may soon be able to know the truth about the CIA’s torture program. Here’s what you may have
Senator Dianne Feinstein accuses the CIA of obstructing the Senate Intelligence
Committee’s investigation on torture. Senator Dianne Feinstein (D-CA) took to the Senate floor on
Tuesday, March 11, to address the need for a strong oversight mechanism in Congress and noted
the importance of the Senate intelligence committee’s report on the post-9/11 CIA torture
program. Senator Feinstein, chair of the intelligence committee, responded to recent allegations
that the CIA spied on computers provided to committee staff investigating the agency’s
program. She described in her statement two main occasions of obstruction by the CIA: (1) Roughly 920 documents were
removed by the CIA from the intelligence committee's computer in 2010 and (2) the CIA searched the intelligence
committee's network in January 2014. She also reiterated that, if the report is declassified,
"We will be able to ensure that an un-American, brutal program of detention and
interrogation will never again be considered or permitted." Feinstein also decided to move forward with a
missed. March 11:
vote in the Senate intelligence committee to declassify the report before the end of the month.
exposure
CIA misrepresents torture to congress and the judicial: Senate oversight is
needed
Senate Select Committee on Intelligence 14 (“Committee study of the Central Intelligence
Agency’s Detention and Interrogation Program,” declassified 12/3,
http://www.nytimes.com/interactive/2014/12/09/world/cia-torture-reportdocument.html?_r=0)//cc
The interrogations of CIA detainees were brutal and tar worse than the CIA represented to
policymakers and others. Beginning with the CIA's first detainee, Abu Zuhaydah, and continuing
with numerous others, the CIA applied its enhanced interrogation techniques with significant
repetition for days or weeks at a time. Interrogation techniques such us slaps and "wallings"
(slamming detainees against a wall) were used in combination, frequently concurrent with sleep
deprivation and nudity. Records do not support CIA representations that the CIA initially used
an "an open, non- threatening approach,"7 or that interrogations began with the "least
coercive technique possible*'1 and escalated to more coercive techniques only as necessary.
The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu
Zuhaydah, for example, became "completely unresponsive, with bubbles rising through his
open, full mouth'"1 Internal CIA records describe the waterboarding of Khalid Shaykli
Mohammad as evolving into a "series of near drownings."5 Sleep deprivation involved keeping
detainee* awake lor up to ISO hours, usually standing or in *ires* positions, at times with their
hands shackled above their heads. At leas; five detainees experienced disturbing hallucinations
during prolonged sleep deprivation and. in at least two of those cases, the CIA nonetheless
continued the sleep deprivation Contrary to CIA representations to the Department of Justice,
the CIA instructed personnel that the interrogation of Abu Zubavdah would take "precedence"
over his medical care,9 resulting in the deterioration of a bullet wound Abu Zuhaydah incurred
during his capture. In at least two other casts, the CIA used its enhanced interrogation
techniques despite warnings from CIA medical personnel that the techniques could exacerbate
physical injuries. CIA medical personnel treated at least one detainee for swelling in order to
allow the continued use of standing sleep deprivation. At least five CIA detainees were
subjected to "rectal rehydration" or rectal feeding without documented medical necessity. The
CIA placed detainees in ice water "baths." The CIA led several detainees to believe they would
never be allowed to leave CIA custody alive, suggesting to one detainee that he would only
leave in a coffin-shaped box.7 One interrogator told another detainee that he would never go
to court, because "we can never let the world know what I have done to you."x CIA officers also
threatened at least three detainees with harm to their families— to include threats to harm the
children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to "cut
|a detainee's] mother's throat."9 #4: The conditions of confinement for CIA detainees were
harsher than the CIA had represented to policymakers and others. Conditions at CIA detention
sites were poor, and were especially bleak early in the program. CIA detainees at the COBALT
detention facility were kept in complete darkness and constantly shackled in isolated cells with
loud noise or music and only a bucket to use for human waste.10 Lack of heat at the facility
likely contributed to the death of a detainee. The chief of interrogations described COBALT as
a "dungeon."" Another senior CIA officer stated that COBALT was itself an enhanced
interrogation technique.13 At times, the detainees at COBALT were walked around naked or
were shackled with their hands above their heads for extended periods of time. Other times, the
detainees at COBALT were subjected to what was described as a "rough takedown." in which
approximately five CIA officers would scream at a detainee, drag him outside of his cell, cut his
clothes off, and secure him with Mylar tape. The detainee would then be hooded and dragged
up and down a long corridor while being slapped and punched. Even after the conditions of
confinement improved with the construction of new detention facilities, detainees were held in
total isolation except when being interrogated or debriefed by CIA personnel. Throughout the
program, multiple CIA detainees who were subjected to the CIA's enhanced interrogation
techniques and extended isolation exhibited psychological and behavioral issues, including
hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. Multiple
psychologists identified the lack of human contact experienced by detainees as a cause of
psychiatric problems. #5: The CIA repeatedly provided inaccurate information to the
Department of Justice, impeding a proper legal analysts of the CIA's Detention and
Interrogation Program.
media
Exposure is necessary for successful dissent. With the Senate Intelligence
Committee off-guard, the CIA feeds the media cherrypicked data –
misinformation and secrecy destroys any potential for democratic change
Conroy 14 (Bill. a Seattle-based freelance writer. “Torture Report Reveals CIA’s Manipulation of US Media”. 12 December 2014.
The Narcosphere. http://narcosphere.narconews.com/notebook/bill-conroy/2014/12/torture-report-reveals-cia-s-manipulation-usmedia)//JuneC//
Agency Used Classified Information As Currency For Deception The recently released Senate Select Committee on Intelligence report
pillorying the CIA’s Bush-era detention and interrogation program is replete with lurid details of what would commonly be called
torture, if those practices were carried out on you or me. Waterboarding,
rectal feeding, sleep deprivation,
coffin-size cells and forcing detainees to stand in stress positions, even with broken bones, is
the stuff of a horror movie. But there is another revelation in the long-awaited, and
controversial, Senate committee report that so far seems to have slipped past much
examination in the public spotlight. The Senate report makes clear that CIA officials
attempted to play the media like a fiddle by selectively releasing classified information about
the detention and interrogation program. “The CIA manipulated rules on classified
information to serve it’s own interests,” Steven Aftergood, director of the Federation of American Scientists’ Project
on Government Secrecy, said. “And the Senate report cites several examples of that.” In fact, one of the findings of the report is
quite blunt on that front: “The
CIA's Office of Public Affairs and senior CIA officials coordinated to
share classified information on the CIA' s Detention and Interrogation Program to select
members of the media to counter public criticism, shape public opinion, and avoid potential
congressional action to restrict the CIA's … authorities and budget. These disclosures occurred
when the program was a classified covert action program.” This finding is troubling in light of the ongoing
efforts to prosecute well-known whistleblowers, such as Edward Snowden of NSA-leak fame, and some half dozen others in separate
cases, all of whom could face (or are facing) years in prison for allegedly disclosing classified information to the media. To
be
sure, there are nuances in each of the cases and the comparison is not perfect, but at the
heart of it all is a set of rules on the release of classified information that are marked with
double standards. “If you have no security clearance, and there is not a need to know, then you’re not supposed to get
classified information,” Aftergood said. “The Senate committee found that CIA officials leaked classified information [to the media]
and no further investigation was conducted.” The Senate report describes the practice as follows: “In
seeking to shape
press reporting on the CIA's Detention and Interrogation Program, CIA officers and the CIA's
Office of Public Affairs (OPA) provided unattributed background information on the program
to journalists for books, articles, and broadcasts, including when the existence of the CIA's
Detention and Interrogation Program was still classified. When the journalists to whom the
CIA had provided background information published classified information, the CIA did not, as
a matter of policy, submit crimes reports.” One example illustrative of the practice, cited in the report, is found in
correspondence penned by the deputy director of the CIA’s Counterterrorism Center in 2005, as the torture program was beginning
to unravel: “We either get out and sell, or we get hammered, which has implications beyond the media. [C]ongress reads it, cuts our
authorities. messes up our budget. …We either put out our story or we get eaten. [T]here is no middle ground.” The same CIA officer
explained to a colleague that "when the [Washington Post]/[New York T]imes quotes ‘senior intelligence official,’ it’s us ...
authorized and directed by opa [CIA's Office of Public Affairs].” And much of the information leaked to the media via these
authorized leaks “on the operation of the CIA's Detention and Interrogation Program and the effectiveness of its enhanced
interrogation techniques was inaccurate…,” the Senate report states. So,
in essence, the CIA operated as a
propaganda machine, utilizing classified information as part of a larger effort to deceive the
American public about the shortcomings of its torture program, if the Senate report is to be
believed. Now, none of this is really new in the big picture of how the government and the media work with respect to classified
information. The simple rule to remember is that the higher up in the government the leaker is, the less risk they face. As far back as
1974, politicians were pointing out this basic flaw in the system. A Congressional Research Service (CRS) report released last year
touches on the reality: As Representative William Moorhead, at the time chairman of the Foreign Operations and Government
Information Subcommittee of the House Government Operations Committee, stated in 1974: … On one hand, the full power of the
Government’s legal system is exercised against certain newspapers for publishing portions of the Pentagon Papers and against
someone like Daniel Ellsberg for his alleged role in their being made public. This is contrasted with other actions by top Executive
officials who utilize the technique of "instant declassification" of information they want leaked. Sometimes it is an "off-the-record"
press briefing or "backgrounders" that becomes "on-the-record" at the conclusion of the briefing or at some future politically
That is how the game really works, and when you throw in a little deception, as the
CIA is accused of doing in the case of its torture program, you often wind up with not only the
continuation of bad policy, but also a basic undermining of the premise that democracy works
best when the people are well informed. The reality is that if you are high enough up in the government, and have
strategic time.
the power to classify and declassify information, you face little risk of prosecution if you cherry pick what national-security
information to release outside the normal declassification process — for which there are tedious rules. And, according to a recent
White House “background only” press briefing, the Obama administration’s stance is that the normal declassification process should
be followed, as opposed to the “instant declassification” approach. A senior administration official told reporters gathered for the
briefing on Tuesday, Dec. 9, when asked about the systematic release of classified information by the CIA, that there is a “very
rigorous” process “that needs to be undertaken in order to declassify information and release it to the public.” “… We do believe
that there’s value in declassification where we can provide additional transparency, but we believe that that should take place
through normal channels and procedures,” the White House official added. Still, the reality on the ground is that preferring a
practice be followed isn’t enough. “…
There is little to stop agency heads and other high-ranking officials
from releasing classified information to persons without a security clearance when it is seen
as suiting government needs,” the CRS report concludes. “The Attorney General has prosecutorial discretion to choose
which leaks to prosecute. If in fact a case can be made that a senior official has made or authorized the disclosure of classified
information, successful prosecution under current laws may be impossible….” On the other hand, there is no such de facto
protection afforded a low-level government whistleblower who leaks classified information to the media that actually shines a light
on corruption or fraud. Solving
this problem is not so easy, since crafting laws to contain it, and all
the potential derivations of the practice, while still assuring press freedom, might be beyond
the reach of our national politics. My best bet is that we simply reduce the volume of
information deemed classified, so it’s less useful overall as a currency of deception and control
in the bureaucracy, and start there. Until we evolve to that point, though, it is important to realize how the process
works now. As a critical reader of media reports, it makes sense to use your nose. “The practice of authorized leaks of classified
information “is anomalous to say the least,” FAS’ Aftergood said. “Once you declassify something, it’s supposed to be available to
everyone, not just one reporter. But that’s not what happens, and so it smells bad.
Agency is key to change
Kappeler 95
(Susanne, The Will to Violence, p. 10-11)
`We are the war' does not mean that the responsibility for a war is shared collectively and diffusely by an entire society - which
would be equivalent to exonerating warlords and politicians and profiteers or, as Ulrich Beck says, upholding the notion of `collective
irresponsibility', where people are no longer held responsible for their actions, and where the conception of universal responsibility
becomes the equivalent of a universal acquittal.' On the contrary, the object is precisely to analyse the specific and differential
responsibility of everyone in their diverse situations. Decisions to unleash a war are indeed taken at particular levels of power by
those in a position to make them and to command such collective action. We need to hold them clearly responsible for their
decisions and actions without lessening theirs by any collective `assumption' of responsibility. Yet our
habit of focusing on
the stage where the major dramas of power take place tends to obscure our sight in relation
to our own sphere of competence, our own power and our own responsibility - leading to the
well-known illusion of our apparent `powerlessness’ and its accompanying phenomenon, our so-called
political disillusionment. Single citizens - even more so those of other nations - have come to feel secure
in their obvious non-responsibility for such large-scale political events as, say, the wars in Croatia and BosniaHercegovina or Somalia - since the decisions for such events are always made elsewhere. Yet our insight that indeed we are not
responsible for the decisions of a Serbian general or a Croatian president tends to mislead us into thinking that therefore we have no
responsibility at all, not even for forming our own judgement, and thus into underrating the responsibility we do have within our
own sphere of action. In particular, it
seems to absolve us from having to try to see any relation between
our own actions and those events, or to recognize the connections between those political decisions and our own
personal decisions. It not only shows that we participate in what Beck calls `organized irresponsibility', upholding the apparent lack
of connection between bureaucratically, institutionally, nationally and also individually organized separate competences. It also
proves the phenomenal and unquestioned alliance of our personal thinking with the thinking of the major powermongers: For we
tend to think that we cannot `do' anything, say, about a war, because we deem ourselves to be in the wrong situation; because we
are not where the major decisions are made. Which is why
many of those not yet entirely disillusioned
with politics tend to engage in a form of mental deputy politics, in the style of `What would I
do if I were the general, the prime minister, the president, the foreign minister or the minister of defence?' Since we
seem to regard their mega spheres of action as the only worthwhile and truly effective ones, and since
our political analyses tend to dwell there first of all, any question of what I would do if I were indeed myself
tends to peter out in the comparative insignificance of having what is perceived as `virtually
no possibilities': what I could do seems petty and futile. For my own action I obviously desire the range of
action of a general, a prime minister, or a General Secretary of the UN - finding expression in ever more prevalent formulations like `I
want to stop this war', `I want military intervention', `I want to stop this backlash', or `I want a moral revolution." 'We are this war',
however, even if we do not command the troops or participate in so-called peace talks, namely as Drakulic says, in our `noncomprehension’: our
willed refusal to feel responsible for our own thinking and for working out our
own understanding, preferring innocently to drift along the ideological current of
prefabricated arguments or less than innocently taking advantage of the advantages these
offer. And we `are' the war in our `unconscious cruelty towards you', our tolerance of the `fact that you have a yellow form for
refugees and I don't' - our readiness, in other words, to build identities, one for ourselves and one for refugees, one of our own and
one for the `others'. We
share in the responsibility for this war and its violence in the way we let them grow
we shape `our feelings, our relationships, our values' according to the
structures and the values of war and violence.
inside us, that is, in the way
spillover
Torture disclosures lead to an increase in credibility – demonstrates selfsupervision and courage
Global Times 12/11 – a daily Chinese tabloid that covers international issues (2014, Global Times, “Despite torture report, US
escapes censure”, http://www.globaltimes.cn/content/896126.shtml // SM)
Wednesday was the United Nations Human Rights Day. The
Senate Intelligence Committee released Tuesday a
report on CIA interrogation techniques, accusing the agency of collecting information through
torture methods in its post-9/11 practices. The report is a declassified 525-page summary of a stillconfidential 6,000-page document. The report comes as a bombshell that exploded just one day before Human
Rights Day, which not only reveals gross violations of human rights by the CIA, but also exhibits the
"strong self-supervision" of the US. It captured the lion's share of global attention on Human Rights Day, but did
nothing to jeopardize the US image. Few other countries can do the same. The US Senate took a rather
tough attitude toward the CIA's gruesome interrogations of terrorism suspects. However, such
infringements of human rights are considered the most forgivable by Westerners. Therefore, the Senate's censure is probably no
more than mere moral scrutiny. Prisoner abuse scandals have been repeatedly exposed in the years after the 9/11 attacks. Although
torturers were put on trial in exceptional cases, the US public did not heap much disapproval on them. Ben Emmerson, UN special
rapporteur on counterterrorism and human rights, said Wednesday that individuals responsible for the criminal conspiracy and
senior US officials who authorized torture must be prosecuted and penalized. Emmerson is widely considered too naïve. Former US
president George W. Bush publicly defended the CIA in a statement he made to CNN. "We are fortunate to have men and women
who work hard at the CIA serving on our behalf," Bush said. "These are patriots, and whatever the report says - if it diminishes their
contributions to our country - it is way off-base." This view apparently enjoys great popularity in US society. President
Barack
Obama is equivocal. He said the torture program was contrary to US values and did not prove
effective in the fight against terror or in keeping Americans safe. He also promised to make sure
that something similar won't happen again, as a response to global concerns about how the
US will punish the torturers. We won't know how many secrets will disappoint the public in the rest of the document.
The US has powerful self-regulatory systems. There are many reports about prisoner abuse. But it's hard to say to
what extent this has damaged the US image. In many developing countries including China, there has even
been applause for US democracy after the release of these reports. They have paid attention
to the courage of the US rather than the crime of prisoner abuse.
US torture policy spills over globally—other nations look to US
CJA 4- (The Center for Justice and Accountability, Amici Curiae in support of petitioners in Al
Odah et al. v USA, "Brief of the Center for Justice and Accountability, the International League
for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging
Democracies," 3/10/4, Lexis)//WK
While much of the world is moving to adopt the institutions necessary to secure individual rights,
many still regularly abuse these rights. One of the hallmarks of tyranny is the lack of a strong and
independent judiciary. Not surprisingly, where countries make the sad transition to tyranny, one of the first victims is the judiciary. Many of the rulers that go
down that road justify their actions on the basis of national security and the fight against
terrorism, and, disturbingly, many claim to be modeling their actions on the United States . Again, a few
examples illustrate this trend. In Peru, one of former President Alberto Fujimori’s first acts in seizing control was to assume direct executive control of the
judiciary, claiming that it was justified by the threat of domestic terrorism. He then imprisoned thousands, refusing the right of the judiciary
to intervene. International Commission of Jurists, Attacks on Justice 2000-Peru, August 13, 2001, available at ttp://www.icj.org/news.php3?id_article=2587&lang=en (last visited Jan. 8, 2004). In
Zimbabwe, President Mugabe’s rise to dictatorship has been punctuated by threats of violence to and the co-opting of the
judiciary. He now enjoys virtually total control over Zimbabweans' individual rights and the entire political system. R.W. Johnson, Mugabe’s Agents in Plot to Kill Opposition Chief, Sunday Times (London), June 10,
2001; International Commission of Jurists, Attacks on Justice 2002— Zimbabwe, August 27, 2002, available at http://www.icj.org/news.php3?id_article=2695⟨=en (last visited Jan. 8, 2004).
While
Peru and Zimbabwe represent an extreme, the independence of the judiciary is under assault in
less brazen ways in a variety of countries today. A highly troubling aspect of this trend is the fact that in many of these
instances those perpetuating the assaults on the judiciary have pointed to the U nited S tates’ model to
justify their actions . Indeed, many have specifically referenced the United States’ actions in
detaining persons in Guantánamo Bay. For example, Rais Yatim, Malaysia's "de facto law minister" explicitly relied
on the detentions at Guantánamo to justify Malaysia's detention of more than 70 suspected Islamic militants for over two years. Rais stated that
Malyasia's detentions were "just like the process in Guantánamo," adding, "I put the equation with Guantánamo just to make it graphic to you that this is not simply a Malaysian style of doing things." Sean Yoong,
"Malaysia Slams Criticism of Security Law Allowing Detention Without Trial," Associated Press, September 9, 2003 (available from Westlaw at 9/9/03 APWIRES 09 :34:00). Similarly, when responding to a United
Namibia's Information Permanent Secretary Mocks Shivute cited the Guantánamo
Bay detentions, claiming that "the US government was the worst human rights violator in the
world." BBC Monitoring, March 8, 2002, available at 2002 WL 15938703. Nor is this disturbing trend limited to these specific
examples. At a recent conference held at the Carter Center in Atlanta, President Carter, specifically citing the Guantánamo Bay detentions, noted that the erosion of civil
liberties in the United States has "given a blank check to nations who are inclined to violate
human rights already ." Doug Gross, "Carter: U.S. human rights missteps embolden foreign dictators," Associated Press Newswires, November 12, 2003 (available from Westlaw at
11/12/03 APWIRES 00:30:26). At the same conference, Professor Saad Ibrahim of the American University in Cairo (who was jailed for seven years after exposing fraud in the Egyptian election process)
said, "Every dictator in the world is using what the United States has done under the Patriot Act . . . to
justify their past violations of human rights and to declare a license to continue to violate
human rights." Id. Likewise, Shehu Sani, president of the Kaduna, Nigeriabased Civil Rights Congress, wrote in the International Herald Tribune on September 15, 2003 that
"[t]he insistence by the Bush administration on keeping Taliban and Al Quaeda captives in indefinite detention in Guantánamo Bay, Cuba,
instead of in jails in the United States — and the White House's preference for military tribunals over regular courts
— helps create a free license for tyranny in Africa. It helps justify Egypt's move to detain human rights
campaigners as threats to national security and does the same for similar measures by the governments of
Ivory Coast, Cameroon and Burkina Faso." Available at http://www.iht.com/ihtsearch.php?id=109927&owner=(IHT)&dat e=20030121123259. In our
uni-polar world, the U nited S tates obviously sets an important example on these issues. As reflected in the
States Government human rights report that listed rights violations in Namibia,
foundational documents of the United Nations and many other such agreements, the international community has consistently affirmed the value of an independent judiciary to the defense of universally
In the crucible of actual practice within nations, many have looked to the United States
model when developing independent judiciaries with the ability to check executive power in the
defense of individual rights. Yet others have justified abuses by reference to the conduct of
the U nited S tates. Far more influential than the words of Montesquieu and Madison are the actions of the U nited S tates. This case
recognized human rights.
starkly presents the question of which model this Court will set for the world.
Impact
General
Torture helps terrorist recruiting and hurts our alliances – non-coercive
methods are sufficient to solve
Hongju Koh 14 - Harold Hongju Koh is a professor of international law at Yale Law School and a founding editor of Just
Security. He was legal advisor at the State Department from 2009 to 2013, and assistant secretary of state for democracy, human
rights, and labor from 1998 to 2001. (12/12/2014, Harold, Foreign Policy, “The Torture Report Is Only the First Step”,
http://foreignpolicy.com/2014/12/12/the-torture-report-is-only-the-first-step/ // SM)
The report recounts the myriad ways in which our torture proved deeply self-defeating. The
program helped terrorist recruiting, devastated our international standing, and damaged our
alliances . It punctured the faith of so many who wanted to believe in America’s exceptional
leadership. Even if the program had produced any actionable intelligence, Brennan noted on
Thursday that the CIA no longer claims that the techniques produced credible information that
could not be obtained through other means. And he said he “believe[d] effective non-coercive
methods are available to elicit such information — methods that do not have a
counterproductive impact on our national security and on our international standing.” In short,
the “torture debate” is over. The report teaches us that the costs of the program far outweighed any
supposed benefits. We can no longer pretend that torture is somehow a necessary means to
achieve some greater good. Nor, if the world continues to be populated by terrorist threats, is
there is any way we can torture our way to security. And when torture is practiced regularly
and systematically, it is no longer a means; it becomes the end in itself. As George Orwell wrote in
Nineteen Eighty-Four: “The object of persecution is persecution. The object of torture is torture…. Now you begin to understand
me.”
Bagram Scenario
Resolving US detention of third-country nationals solves --- it’s central to the
BSA dispute
Rogers 13- Program Officer for the Regional Policy Initiative on Afghanistan & Pakistan at Open
Society Foundations (Christopher, "Guest Post: Afghanistan Post-2014: Closing Bagram",
November 14, justsecurity.org/2013/11/14/guest-post-afghanistan-post-2014-closingbagram)//WK
With the U.S. combat role in Afghanistan coming to an end, and the Bilateral Security
Agreement now under review, officials are under pressure to do something many observers may
believe was already done: end U.S. detentions at the Detention Facility in Parwan (DFIP), or Bagram . Though
the U.S. government recently handed over 3,000 Afghan detainees, more than 60 third country nationals, or TCNs,
remain in U.S. custody. U.S. officials have stated that resolving their cases is their goal, and that
December 2014 is the deadline. But right now the United States will likely fail to do so , possibly leaving
detainees in indefinite limbo, and raising serious legal and political concerns for the U.S.
presence in Afghanistan post-2014 .¶ Over the years, many have criticized U.S. detentions as
inconsistent with applicable international human rights law and for failing to provide the requisite level
of due process—all of which will take on new urgency as the United States brings an end to its
combat mission in 2014. So too will concern over the legality of U.S. detentions under Afghan law, which has thus far
received too little attention. Such differences reflect deeper disagreement over post-2014 U.S.
engagement.¶ Just last week, U.S. officials criticized the Afghan government’s
recommendation to release many transferred detainees because of lack of evidence to prosecute
or continue their detention under Afghan law. As outlined in a report last year by Open Society Foundations, an Afghan internment
regime modeled on the U.S. system was initially proposed as part of the DFIP transfer, but appeared to violate several Afghan
constitutional guarantees. The
dispute over the legality of the detention regime under Afghan law
eventually led to a suspension of the Bagram handover and the Afghan government deciding against formally
adopting such a regime.¶ In consenting to U.S. detentions at the DFIP, the Afghan government has
already been in violation of its own legal obligations under Afghan domestic law and constitution as well
international human rights law. With the United States bringing an end to its combat operations, and an
Afghan presidential election on the horizon, Afghan leaders will likely view ongoing U.S.
detentions as legally untenable and a political liability, which could jeopardize U.S.-Afghan
relations at a critical time. ¶ This is a problem that is entirely avoidable if concerted action is
taken now and over the next year to resolve TCN cases. The majority of the approximately 60 TCNs currently
held in limbo at Bagram are Pakistani. A recent report by the NGO Justice Project Pakistan (JPP) reveals how the U.S.
and Pakistani have failed to put in place the policies, protocols, and political capital necessary to resolve these cases by the end of
combat operations. As JPP’s report documents, even after the handover of the DFIP to the Afghans in March 2013, progress on
TCNs has been excruciatingly slow. Six Pakistani detainees have been slated for repatriation to Pakistan for almost a
year, yet remain in detention, a clear violation of their rights under IHL and IHRL. Negotiation over the fate of dozens
more shows little signs of progress.¶ There are several specific steps that the United States can
take to ensure it closes down Bagram by the time it ends combat operations next year. It should
commit to a public timeline to resolve detainees’ cases and standardize the terms of repatriation, which
could greatly expedite the negotiation process and make the U.S. and other governments
more accountable for progress.¶ More sustained, strategic attention is also needed at higher levels within the U.S.
government. The Special Representative on Afghanistan and Pakistan should press high-level Pakistani officials to commit to an
agreed upon timetable for repatriation negotiations. Doing so would compel higher-level Pakistani officials to take ownership over
the issue and send a signal down the chain of the Pakistani government. The recently appointed Defense Department Special Envoy
for Guantanamo Closure, who will also be responsible for transferring TCNs held in Afghanistan, could press for higher-level
engagement among the United States and the detainees’ home countries.¶ Ongoing
U.S. detention of TCNs at the
DFIP ultimately points to persistent uncertainty regarding U.S. engagement in Afghanistan
post-2014 and the inescapable challenge of reconciling U.S. interests and influence with
Afghan law and sovereignty. What will be the scope of U.S. detention and targeting operations, and what will be the legal
authority under international, U.S., and Afghan law for such operations? What does the end of U.S. combat
operations mean for U.S. counter-terrorism operations in Afghanistan? How will U.S. operations be
reconciled with Afghan sovereignty and the Afghan government’s own legal obligations?¶ Recent reports indicate that
the BSA negotiations hit an impasse in part due to dispute over U.S. authority to conduct
unilateral operations after 2014. In a little-noticed operation in September, U.S. forces captured Pakistani Taliban
commander Latifullah Mehsud. Not only did the operation occur without Afghan sign-off (President Karzai strongly objected, calling
it a violation of Afghan law and sovereignty) but Latifullah was reportedly forcibly taken from Afghan intelligence officials’ custody,
and transferred to U.S. detention at Bagram. Though
the BSA will now reportedly require the U.S. to
“consult” Afghan authorities before launching operations, Latif’s capture and the political row it
caused show that despite purported agreements, there are fundamental differences over the
permissible scope and legality of U.S. detentions and military operations .¶ Unfortunately,
ambiguity around these questions has often suited the United States.—and at times, Afghanistan—
allowing officials to paper over differences, as has happened time and again with Bagram. Whatever
language is agreed to in the BSA, the United States and Afghanistan should make clear how all aspects of U.S. engagement post-2014
will be consistent not only with U.S. legal obligations, but also with Afghan law and international legal obligations.¶ Doing so, and
bringing an end to the U.S. war in Afghanistan, will be impossible without resolving TCN cases
and ending U.S. detentions at Bagram. If concerted action is taken now, the United States can
do so, and make sure Bagram does not become an even greater legal and political challenge after
2014 .
Central Asia Impact
The impact is Central and Pakistan instability --- goes nuclear
Curtis 13- (Lisa, Heritage Foundation, “Nato's total withdrawal from Afghanistan could rock Asia
stability”, 11-18 http://www.heritage.org/research/commentary/2013/11/natos-totalwithdrawal-from-afghanistan-could-rock-asia-stability)//WK
Analysts warn that the recent increase in al-Qaeda violence in Iraq should serve as a warning that
failure to maintain a residual force in Afghanistan would increase instability throughout South
and Central Asia. ¶ If the Taliban were able to re-assert power in Afghanistan, it would
embolden militants in Pakistan and increase the risk of extremists gaining access to
Islamabad’s nuclear weapons. ¶ An absence of international troops in Afghanistan post-2014 would
also leave the door open for the Islamic Movement of Uzbekistan to gain a foothold in
northern Afghanistan, from where it could launch operations into Central Asia. ¶ ‘We cannot risk
allowing the Taliban to retake control of Afghanistan,’ said Ileana Ros-Lehtinen, chair of the US’s House Subcommittee on the Middle
East and North Africa, at a congressional hearing in October 2013.
‘This could also lead to al-Qaeda regrouping
and stepping up terrorist activities using its safe havens in Pakistan as a staging post, posing a
real danger to our national security interests and those of our allies in the region.’ ¶ The threat
is most acute for Pakistan, a nuclear-armed nation of 180 million, where there is real concern over
nuclear weapons falling into the hands of extremists. Pakistan’s nuclear weapons arsenal is one of the fastest
growing in the world today. -It has around 100 warheads. ¶ The traditional Loya Jirga (assembly of tribal elders) will meet in Kabul
(November 18 – 21) to decide whether to approve the BSA. If the Jirga is in favour and the BSA is finalised, the US and its Nato
partners are likely to leave an international force of about 10,000 – 15,000 troops to help fight extremist elements and train and
advise the Afghan National Security Forces. ¶ The
US decision on the number of troops will be watched
closely by Afghanistan’s neighbours as it will determine the extent to which various Islamist
extremist groups are able to thrive in Afghanistan and use it as a base from which to export
their ideology and violence. ¶ A Taliban victory in Afghanistan would have a blowback effect in
Pakistan and embolden terrorist elements there. ¶ There are a variety of terrorist groups based in Pakistan’s
tribal areas, including the Haqqani network, Tehrik-e-Taliban Pakistan (TTP), and the Islamic Movement of Uzbekistan (IMU), all of
which have links to the Taliban and al-Qaeda. ¶ Fred Kagan, of the US-based think tank the American Enterprise Institute, said at the
congressional hearing that an absence of international troops in Afghanistan post-2014 would leave the door open for Haqqani
militants to re-establish their bases in eastern Afghanistan and for the IMU to gain a foothold in northern Afghanistan. ¶ There
is
concern that the IMU would use its base in Afghanistan to launch operations into Central
Asian states, particularly Tajikistan and Uzbekistan. ¶ Russia also is concerned that a complete
withdrawal of US and Nato forces from Afghanistan could embolden jihadist elements in
Afghanistan that would, in turn, export Islamist ideology and violence to the north.
Pakistan instability causes loose nukes and Indian intervention --- goes nuclear
O’Hanlon 5- senior fellow with the Center for 21st Century Security and Intelligence and director
of research for the Foreign Policy program at the Brookings Institution, visiting lecturer at
Princeton University, an adjunct professor at Johns Hopkins University, and a member of the
International Institute for Strategic Studies PhD in public and international affairs from
Princeton, (Michael, Apr 27 2005, “Dealing with the Collapse of a Nuclear-Armed State: The
Cases of North Korea and Pakistan,”
http://www.princeton.edu/~ppns/papers/ohanlon.pdf)//WK
Were Pakistan to collapse, it is unclear what the United States and like-minded states would or should do. As with North
Korea, it is highly unlikely that “surgical strikes” to destroy the nuclear weapons could be
conducted before extremists could make a grab at them. The United States probably would
not know their location – at a minimum, scores of sites controlled by Special Forces or elite Army units would be presumed
candidates – and no Pakistani government would likely help external forces with targeting information. The chances of learning the
locations would probably be greater than in the North Korean case, given the greater openness of Pakistani society and its ties with
the outside world; but U.S.-Pakistani military cooperation, cut off for a decade in the 1990s, is still quite modest, and the likelihood
that Washington would be provided such information or otherwise obtain it should be considered small.¶ If a surgical strike, series
of surgical strikes, or commando-style raids were not possible, the only option would be to try to restore order before the weapons
could be taken by extremists and transferred to terrorists. The United States and other outside powers might, for example, respond
Given the embarrassment associated with
requesting such outside help, the Pakistani government might delay asking until quite late, thus
complicating an already challenging operation. If the international community could act fast enough, it might help
to a request by the Pakistani government to help restore order.
defeat an insurrection. Another option would be to protect Pakistan’s borders, therefore making it harder to sneak nuclear weapons
out of the country, while only providing technical support to the Pakistani armed forces as they tried to quell the insurrection. Given
the enormous stakes, the United States would literally have to do anything it could to prevent nuclear weapons from getting into the
wrong hands.¶ India would, of course, have
a strong incentive to ensure the security of Pakistan’s
nuclear weapons. It also would have the advantage of proximity; it could undoubtedly mount a large
response within a week , but its role would be complicated to say the least. In the case of a dissolved Pakistani state, India
likely would not hesitate to intervene; however, in the more probable scenario in which Pakistan were fraying but not yet collapsed,
India’s intervention could unify Pakistan ’s factions against the invader, even leading to the
deliberate use of Pakistani weapons against India. In such a scenario, with Pakistan’s territorial
integrity and sovereignty on the line and its weapons put into a “use or lose” state by the
approach of the Indian Army, nuclear dangers have long been considered to run very high.
Indo-pak causes extinction
Chaffin 11- (Greg, Research Assistant at Foreign Policy in Focus, July 8, 2011, “Reorienting U.S.
Security Strategy in South Asia,” online:
http://www.fpif.org/articles/reorienting_us_security_strategy_in_south_asia)//WK
The greatest threat to regional security (although curiously not at the top of most lists of U.S. regional concerns) is the possibility that
increased India-Pakistan tension will erupt into all-out warthat could quickly escalate into a
nuclear exchange. Indeed, in just the past two decades, the two neighbors have come perilously close to war on several occasions.
India and Pakistan remain the most likely belligerents in the world to engage in nuclear war . Due to
an Indian preponderance of conventional forces, Pakistan would have a strong incentive to
use its nuclear arsenal very early on before a routing of its military installations and weaker conventional forces. In the event of
conflict, Pakistan’s only chance of survival would be the early use of its nuclear arsenal to inflict unacceptable damage to Indian military and (much
more likely) civilian targets. By raising the stakes to unacceptable levels, Pakistan would hope that India would step away from the brink. However, it is
equally likely that India
would respond in kind, with escalation ensuing. Neither state possesses
tactical nuclear weapons, but both possess scores of city-sized bombs like those used on Hiroshima and
Nagasaki. Furthermore, as more damage was inflicted (or as the result of a decapitating strike), command and control elements would
be disabled, leaving individual commanders to respondin an environment increasingly clouded by
the fog of war and decreasing the likelihood that either government (what would be left of them) would be
able to guarantee that their forces would follow a negotiated settlement or phased reduction in hostilities . As a
result any suchconflict would likely continue to escalateuntil one side incurred an unacceptable or wholly debilitating
level of injury or exhausted its nuclear arsenal . A nuclear conflict in the subcontinentwould
havedisastrous effects on the world as a whole. In a January 2010 paper published in Scientific American, climatology
professors Alan Robock and Owen Brian Toon forecast the global repercussionsof a regional nuclear
war. Their results are strikingly similar to those of studies conducted in 1980 that conclude that a nuclear war
between the United States and the Soviet Union wouldresult in acatastrophic and prolonged nuclear
winter ,which could very well place the survival of the human race in jeopardy . In their study, Robock
and Toon use computer models to simulate the effect of a nuclear exchange between India and Pakistan in which each were to use roughly half their
existing arsenals (50 apiece). Since Indian and Pakistani nuclear devices are strategic rather than tactical, the likely targets
would be
major population centers. Owing to the population densities of urban centers in both nations, the number of direct casualties could
climb as high as 20 million. The fallout of such an exchange would not merely be limited to the immediate area. First, the detonation of a large
number of nuclear devices would propel as much as seven million metric tons of ash, soot, smoke, and
debris as high as the lower stratosphere. Owing to their small size (less than a tenth of a micron) and a lack of precipitation at
this altitude, ash particles would remain aloft for as long as a decade , during which time the world would
remain perpetually overcast. Furthermore, these particles would soak up heat from the sun, generating intense heat in
the upper atmosphere that would severely damage the earth’s ozone layer . The inability of sunlight to
penetrate through the smoke and dust would lead toglobal cooling by as much as 2.3 degrees Fahrenheit. This shift in
global temperature would lead to more drought, worldwide food shortages, and widespread political
upheaval. Although the likelihood of this doomsday scenario remains relatively low, the consequences are dire enough to warrant greater U.S.
and international attention. Furthermore, due to the ongoing conflict over Kashmir and the deep animus held between India
and Pakistan, it might not take much to set them off . Indeed, following the successful U.S. raid on bin Laden’s
compound, several members of India’s security apparatus along with conservative politicians have argued that India should emulate the SEAL Team Six
raid and launch their own cross-border incursions to nab or kill anti-Indian terrorists, either preemptively or after the fact. Such provocative action
could very well lead to
all-out war between the two that couldquickly escalate .
Guantanamo
Gitmo is on the brink of closure now - new envoy proves
Spetalnick 7/1 (Matt Spetalnick, July 1, 2015, Reuters, U.S. names new envoy for bid to close
Guantanamo prison, http://uk.reuters.com/article/2015/07/01/uk-usa-guantanamoidUKKCN0PB34K20150701) //JS
A newly appointed special envoy to lead the Obama administration’s efforts to close the Guantanamo
prison said he saw a window of opportunity that could substantially reduce the detainee
population there in coming months. Secretary of State John Kerry on Tuesday named attorney Lee Wolosky, who served in the
National Security Council under the administrations of both Bill Clinton and George W. Bush, to a post considered crucial to meeting
President Barack Obama’s long-standing promise to shut the internationally condemned jail at the U.S. naval base in Cuba. The
appointment marked the latest step in Obama’s slow push to close the detention centre where
terrorism suspects rounded up overseas after the Sept. 11, 2001, attacks have been held for years, mostly without charges or trial.
Wolosky replaces Clifford Sloan, who stepped down at the end of last year after 18 months in the job. He will be the State
Department’s point man to negotiate the repatriation of Guantanamo prisoners or their transfers to other countries. Though
Obama continues to face obstacles from U.S. lawmakers to his long-time goal of emptying the
prison, he has whittled Guantanamo’s inmate population to 116, less than half the number when he took office in 2009. But the
process has moved haltingly. The latest transfer, six Yemenis sent to Oman in mid-June, followed a five-month pause in such
movements. “We
have a window in the coming months to work diligently with our friends and
allies to reduce substantially and responsibly the detainee population at Guantanamo, as part
of the president's policy of closing the facility by the end of his term,” Wolosky said in a statement. Kerry
said Wolosky was “ideally qualified to continue the hard diplomatic engagement” required to close the jail, which was opened by
Obama's predecessor, George W. Bush. Obama promised to shut it when he took office in 2009, citing the damage it inflicted on
America's image around the world. He has often renewed his pledge, but lawmakers have restricted his ability to transfer prisoners
and have barred him from moving them to the U.S. mainland.
US indefinite detention policy at Guantanamo undermines international law
Pearlman 15- J.D. Candidate, 2015, at Seattle University School of Law and the Executive
Editor of Notes & Comments of the Seattle University Law Review (Samantha, “Human Rights
Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of
International Norms”, Seattle University Law Review,
http://seattleuniversitylawreview.com/files/2015/04/7Pearlman-Final.pdf)//WK
Detention is a security and military necessity because it prevents the enemy from once again
attacking the United States;124 therefore, the U.S. government’s position is that “[t]he law of
war allows the [United States] . . . to hold enemy combatants without charges or access to
counsel for the duration of hostilities . . . .”125 The United States does not classify Guantánamo
detainees as prisoners of war because their internment would then be regulated by the Third
Geneva Convention, nor are detainees classified as “enemy aliens” subject to internment
under the Fourth Geneva Convention.126 By classifying detainees as “enemy combatants,” the
United States has justified its stance that prisoners may be held indefinitely; the UN is in
agreement that an individual may be detained for the remainder of hostilities to prevent them
from taking up arms against the state.127 The UN, however, considers the indefinite detention
of Guantánamo detainees without being charged or offered access to counsel for the duration
of current hostilities (the War on Terror) “a radical departure from established principles of
human rights law,” and noted the important difference between those detainees captured in
the course of an armed conflict versus those captured under circumstances that do not
amount to an armed conflict.128 The UN—as opposed to the United States—has determined
that the War on Terror does not constitute an armed conflict under international
humanitarian law.129 Thus, the United States’ classification of the War on Terror as an armed
conflict has undermined crucial parts of international humanitarian law as well as
international human rights law.130 Therefore, the United States’ human rights policy is in
conflict with its responsibilities under international law. Although there may be a legal basis in
international humanitarian law to detain individuals in time of war, the UN does not consider
the War on Terror an armed conflict;131 additionally, there is no end in sight to this conflict. The
United States has responded to claims of human rights violations stating simply that the law of
armed conflict allows the United States to hold the detainees until the end of hostilities.132
Senate Intelligence Committee reports lead to detainee release—Gitmo proves
Pearlman 15- J.D. Candidate, 2015, at Seattle University School of Law and the Executive
Editor of Notes & Comments of the Seattle University Law Review (Samantha, “Human Rights
Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of
International Norms”, Seattle University Law Review,
http://seattleuniversitylawreview.com/files/2015/04/7Pearlman-Final.pdf)//WK
The Obama Administration has faced growing criticism for its failure to close the facility at
Guantánamo Bay. Although some detainees have slowly been sent back to other countries,
there are still over one hundred people detained at the facility. The President mentioned
Guantánamo only once in his January 2014 State of the Union Address, and he pinned the lack
of closure on Congress when he stated: [W]ith the Afghan war ending, this needs to be the year
Congress lifts the remaining restrictions on detainee transfers and we close the prison at
Guantanamo Bay—because we counter terrorism not just through intelligence and military
action, but by remaining true to our constitutional ideals, and setting an example for the rest of
the world. Thus, the facility remains in a state of limbo, as do the detainees. Finally, in late
2014, the U.S. Senate Intelligence Committee issued a report on the C.I.A.’s controversial
treatment of Guantánamo Bay detainees. The report highlighted the problematic and illegal
use of torture by the C.I.A. and established that most of the information gained through
interrogation techniques was not of significant value or was unreliable. The report brought the
spotlight back to Guantánamo Bay and, consequently, forced the Obama Administration to
once again begin the transfer of prisoners—despite the potentially unsafe conditions detainees
may face upon return to their home countries.
legitimacy
US torture undermines international treaty obligations
Bae and Zanocco 7- *J.D. candidates at Cornell Law School (Hana and Courtney, “Boumediene v.
Bush (06-1195); Al Odah v. United States (06-1196)”, Legal Information Institute at Cornell
University Law School, https://www.law.cornell.edu/supct/cert/06-1195)//WK
Amici for the detainees argue that international law entitles detainees to certain fundamental
rights, even if the Constitution does not apply to them. The International Humanitarian Law
Experts ("IHLE") amicus brief argues that the Geneva Conventions, which the United States
played a lead role in drafting, are universally accepted. The Geneva Conventions aim to
"protect[] persons who do not, or who can no longer, participate in hostilities," including
prisoners of war and civilians. The IHLE brief notes in particular Common Article 3, which
protects requires a "regularly constituted court" to provide judicial guarantees to those no
longer engaged in hostilities. The failure of the United States to follow the Geneva Conventions
"weakens the entire international legal regime and invites other signatories to disregard their
own treaty obligations." By refusing to apply the Conventions to detainees, the United States
harms its ability to insist that the Conventions protect Americans detained during overseas
conflicts. Other amici argue that the United States violates international standards by
withholding habeas rights from detainees. The United Nations High Commissioner for Human
Rights argues that Article 9 of the International Covenant on Civil and Political Rights ("ICCPR")
requires that detainees must have access to a court that provides basic procedural guarantees
of a fair hearing to review contest the legality of their detention. "Continued detention
without justification and review," the High Commissioner argues, is "inherently arbitrary."
CSRTs do not qualify as "courts" under the ICCPR, and they provide insufficient review. Amici
maintain that the United States ratified the ICCPR and is therefore bound by these agreedupon international obligations.
The US torture program devastates soft power – increased oversight of the CIA
solves
Champion 14 – Marc Champion writes editorials on international affairs. He was previously Istanbul bureau chief for the Wall
Street Journal. He was also an editor at the Financial Times and the editor-in-chief of the Moscow Times. (12/10/2014, Marc,
Bloomberg View, “CIA Tortured U.S. Soft Power”, http://www.bloombergview.com/articles/2014-12-10/cia-tortured-us-soft-power
// SM)
In that sense,
the Senate report isn't only a revelation of U.S. intelligence malfeasance -- it's a
testimony to U.S. soft power, the diplomatic advantage that it has long wielded over geopolitical competitors such as Russia and China. One need only compare Washington's success
at finding international hosts for the CIA's so-called black sites with Russia's utter inability to
persuade the world -- aside from a small handful of countries including Cuba, Venezuela and
Syria -- to recognize its annexation of Crimea. But it's an open question whether soft power can survive being used
to such grotesque ends. One of the many reasons for which the torture program was a terrible idea
was that once exposed it has deeply damaged the U.S. brand and thus eroded U.S. alliances :
Forced rectal feeding just isn't something that most people associate with the values of life,
liberty and the pursuit of happiness. As many have pointed out, one great benefit of the Senate
report is that it has demonstrated the ability of the U.S. political system to subject itself to
scrutiny -- a test that most democracies, and all autocratic regimes, routinely fail. Taken as a whole, people aren't naïve. They
understand governments do bad things and pursue their own selfish interests abroad. So when
a country confesses and
tries to rectify the transgression, people are impressed. If the U.S. goes on to prosecute those who approved
and used the most extreme torture methods, that would do still more to repair the damage. But it's worth remarking that torture is
not the only national security policy that poses a threat to U.S. alliances. Friendly
governments are still being asked
to trust in the good judgment and good offices of the U.S. intelligence agencies, as well as in
their effective oversight , even when there's reason to question whether that trust is being honored.
US detention policies hurt legitimacy
Welsh 11 (David is a J.D. at the University of Utah, “Procedural Justice Post-9/11: The Effects of
Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”,
http://law.unh.edu/assets/images/uploads/publications/unh-law-review-vol-09-no2welsh.pdf)//cc
The Global War on Terror 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.2 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.3 Throughout the world, there is a
growing consensus that America has “a lack of credibility as a fair and just world leader.”4 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.5 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 legality of U.S. detention procedures,6 this article offers a psychological perspective
of legitimacy in the context of detention.
US policy shapes international norms
Keating 13- Assistant Professor in International Relations at Syddansk Universitet (Vincent
Charles, “Contesting the International Illegitimacy of Torture: The Bush Administration’s Failure
to Legitimate its Preferences within International Society”, 7/30/13, The British Journal of
Politics & International Relations Volume 16, Issue 1, pages 1–27)//WK
The Bush administration’s focus on justification over innovation strategies was also reflected
within the Bush administration’s legal legitimation strategies, where it stressed that its
treatment of detainees was in line with the Geneva Conventions, and, for the first time,
international human rights law. There were also generalized statements that contended that
the administration was acting in accordance with ‘international law’, the law in general, or a
combination of international and domestic law, all of which merely made the claim without
explaining how this was the case. There were also some open attempts at legal norm
innovation. For instance, the Bush administration continued to promote the norm
entrepreneurial idea that the detainees should not be covered under the Geneva Conventions.
Additionally, from the perspective of international human rights law, it argued that there were
geographical limits to the applicability of the Convention Against Torture that did not
correspond to Guantanamo Bay. The reaction within international society to the reports of
mistreatment were mixed, suggesting that the Bush administration was somewhat successful in
legitimating its preferences given the jus cogens prohibition of torture. There were certainly
states that made statements opposed to the Bush administration’s actions and discourse.
Some states claimed that they were shocked by the abuse, called for investigations, warned of
the trade-offs between counterterrorism and humanrights, or openly worried about the
potential harm done to the international system by US conduct. States with poor human rights
records were particularly outspoken, and used the opportunity to openly characterise the US
abuses as torture. These states also suggested that the United States was therefore not in a
position to reprimand them and should focus more on its own problems, sometimes explicitly
because it had lost the moral high ground to make accusations of torture against other states.
International organisations were similarly hostile to US legitimation claims. They called for
investigations, argued that the United States had lost its moral high ground because of the
mistreatment, and reminded the United States not to make trade-offs between
counterterrorism and human rights. Unlike all other actors within international society, some
also openly argued that torture was ineffective as an interrogation method, and therefore
should not be used. Importantly, all of these responses upheld the norm that torture should not
be used, suggesting that the Bush administration failed to legitimate its discourse or conduct
within international society. On the other hand, some states within the liberal zone echoed the
moral legitimation discourses of the Bush administration, reflecting on how the extraordinary
threat posed by terrorism might require new intelligence-gathering methods. Other liberal
states supported the Bush administration’s claim that there was no systematic abuse, arguing
that there were proper procedures in place to prevent abuse, or claiming that the United
States had given them reassurances that torture was not taking place, claims that should be
taken seriously either because the United States was a democracy or because their state had a
good relationship with the United States. There is also some evidence that states within the
liberal zone did not want to publically engage with the issue. This is best demonstrated by
Western government efforts to prevent Cuba from bringing a United Nations Human Rights
Commission resolution to the table that would have called on the Commission to investigate
conditions at Guantanamo Bay. Given the widespread media coverage of clearly torturous acts
and the jus cogens nature of the norm, these particular responses from liberal states lend
evidence that the United States might have been successful in legitimating its preferences and
had undermined the regime. Very few states appealed to international law in their
legitimation strategies. Some suggested that the US was not respecting international norms,
but few, and only those states with poor human rights records themselves, challenged the US
interpretation of international law. Conversely, international organisations were significantly
more active. They argued that US conduct did not respect international human rights law or
international law in general. Some reminded the United States of the doctrine of command
responsibility in human rights abuses, classified certain techniques used by the United States
as being legally torture or tantamount to torture,76and argued that the United States did not
have the legal competence to define torture. Though there was clear opposition from
international organisations, some of the state discourses indicate a leniency towards US
conduct, suggesting a norm that had been weakened by US conduct and legitimation
strategies. This is particularly the case given that the states echoing the Bush administration
legitimation strategies included several liberal democracies. There is some evidence that the
United States was putting pressure on its allies to prevent criticism. In 2004, a European
diplomat speaking to the abuse in Iraq noted that, ‘It’s very clear they want European
governments to stop pushing on this. They were stuck on the defensive for weeks, but suddenly
the line has toughened up incredibly’ (Henderson 2005). As such, coercion may partially explain
the mixed messages from liberal states. If this coercion explains the duality in response, then
the primary question would be to see whether this ambiguity turns into acceptance over time,
reflecting states voluntarily coming to the side of the Bush administration by being socialised
into the coerced position, as suggested by Brooks and Wohlforth.
The report on CIA torture threatens international relations – exacerbates antiAmericanism and creates political dilemmas for allies
Hammond 14 – Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics, and a former UK
Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, “US Senate report on CIA torture
threatens international relations”, http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatensinternational-relations-20141210-1243ol.html // SM)
Important as these domestic consequences might be, the
international ramifications could potentially be
bigger. It is for this reason that Secretary of State John Kerry asked Feinstein, unsuccessfully, in recent days to once again delay
publication. Firstly, publication will embarrass those foreign states, in Europe and beyond, which
aided the Bush administration and CIA, even though their specific country names are redacted in the Senate publication.
Secondly, although the findings are disputed by many ex-Bush officials, it is likely that publication of the
summary report will inflame anti-Americanism in numerous countries. This is despite the fact that the
techniques are now a historical relic inasmuch as Obama ruled at the start of his term, almost six years ago, that the CIA could no
longer employ them. In
the immediate term, there are concerns that the disclosures could lead to
attacks against US facilities and personnel abroad. According to Congressman Mike Rogers, the Republican Chair
of the House of Representatives Intelligence Committee, warnings to this effect have already come from foreign
governments about potential "violence and deaths" in their countries, and additional US security
measures have been introduced as a result.
CIA torture revelations diminish soft power and human rights credibility
Dooley 15 - Director, Human Rights First's Human Rights Defenders Program (1/1/2015, Brian, Huffington Post, “CIA Torture's
Immeasurable Damage to U.S. Global Leadership”, http://www.huffingtonpost.com/brian-dooley/cia-torturesimmeasurable_b_6404530.html // SM)
Last month's revelations about CIA torture have hurt U.S. credibility worldwide. The Senate
Intelligence Committee's report on CIA Interrogation concluded the program "created tensions with
U.S. partners and allies...complicating bilateral intelligence relationships." It said the program
caused "immeasurable damage to the United States' public standing, as well as to the United
States' longstanding global leadership on human rights in general...." Immeasurable is right -- in a literal
sense it's impossible to gauge just how badly Washington's international U.S. image has been hurt by the CIA's torture. The CIA was
never among the world's most trusted global brands, even among U.S. allies, but torture
revelations have diminished
U.S. claims to moral leadership and reduced its "soft power." An editorial in influential Spanish newspaper
El Pais argued that the revelations mean the U.S. can no longer present itself as "a beacon of
freedom."
US legitimacy is collapsing due to treatment of detainees
Welsh 11- J.D. from the University of Utah (David, “Procedural Justice Post-9/11: The Effects of
Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”,
http://law.unh.edu/assets/images/uploads/publications/unh-law-review-vol-09-no2welsh.pdf)//WK
The Global War on Terror 1 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. 2 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 . 3 Throughout the world, there is a growing
consensus that America has “a lack of credibility as a fair and just world leader .” 4 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. 5 ¶ 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 legality of U.S. detention procedures, 6 this article offers a psychological
perspective of legitimacy in the context of detention.
US torture undermines international treaty obligations
Bae and Zanocco 7- *J.D. candidates at Cornell Law School (Hana and Courtney, “Boumediene v.
Bush (06-1195); Al Odah v. United States (06-1196)”, Legal Information Institute at Cornell
University Law School, https://www.law.cornell.edu/supct/cert/06-1195)//WK
Amici for the detainees argue that international law entitles detainees to certain fundamental
rights, even if the Constitution does not apply to them. The International Humanitarian Law
Experts ("IHLE") amicus brief argues that the Geneva Conventions, which the United States
played a lead role in drafting, are universally accepted. The Geneva Conventions aim to
"protect[] persons who do not, or who can no longer, participate in hostilities," including
prisoners of war and civilians. The IHLE brief notes in particular Common Article 3, which
protects requires a "regularly constituted court" to provide judicial guarantees to those no
longer engaged in hostilities. The failure of the United States to follow the Geneva Conventions
"weakens the entire international legal regime and invites other signatories to disregard their
own treaty obligations." By refusing to apply the Conventions to detainees, the United States
harms its ability to insist that the Conventions protect Americans detained during overseas
conflicts. Other amici argue that the United States violates international standards by
withholding habeas rights from detainees. The United Nations High Commissioner for Human
Rights argues that Article 9 of the International Covenant on Civil and Political Rights ("ICCPR")
requires that detainees must have access to a court that provides basic procedural guarantees
of a fair hearing to review contest the legality of their detention. "Continued detention
without justification and review," the High Commissioner argues, is "inherently arbitrary."
CSRTs do not qualify as "courts" under the ICCPR, and they provide insufficient review. Amici
maintain that the United States ratified the ICCPR and is therefore bound by these agreedupon international obligations.
Mexico relations
Injustices in US torture policy spills to immigrant detainee rights
Faisal 12- Harvard graduate with honors in Government, (Farha Aziz, “Due Process Protections
in the War on Terrorism: A Comparative Analysis of Security - Based Preventive Detention in the
United States and the United Kingdom”, March,
http://www.gov.harvard.edu/files/IR%20thesis%202.pdf)//WK
Overall, this thesis provides insight into how the structure of political institutions interacts with
legal frameworks during emergencies to contribute to the formulation of preventive detention
systems. Beyond explaining the mechanisms of such interactions, this thesis contributes to an understanding of how political
structures impact human r ights within the broader context of security policy making. The findings of this investigation are
instructive for answering a number of questions regarding the relationship between decisionmaking and the protection of human rights.¶ Beyond the theoretic al contributions of this study, this research
has significant real - world implications. Given the rise of global terrorism within the past decade, states may need to
create preventive detention systems. The findings of this research can identify the processes of such decision - making and selection
of legal framework that are likely to result in preventive detention
with sufficient due process protections for
is more important than ever before since an increase in the level of terrorism
worldwide suggests that more suspects, including many innocent individuals, could be detained for purely
security reasons. Accordingly, it is vital that states adopt detention systems that protect the fundamental
human right to due process guaranteed under the rule of law. Moreover, the findings of this research can be
generalized beyond security-detention, to the policy - formulation of detention regimes relating to
immigration detention, pre-trial detention, and health-based quarantines. In each of these areas, the
policy implications from this research could provide meaningful input in creating systems sensitive to
and protective of due process.
terrorist suspects. This
Immigrant detainee rights are the key issue for US-Mexico relations
Lovato 9- a New York-based contributing Associate Editor with New America Media and a
frequent contributor to The Nation Magazine. He's also written for the Los Angeles Times, Salon,
Der Spiegel, Utne Magazine, La Opinion, and other national and international media outlets. He
has also appeared as a source and commentator on English and Spanish language network news
shows on Univision, CNN, PBS and other programs and made a recent appearance on Bill
Moyers Journal. Lovato was the former Executive Director of CARECEN, which was the largest
immigrant rights organization in the country (Roberto, “U.S. Immigration Policies Bring Global
Shame on Us”, 2/26/09, http://ofamerica.wordpress.com/2009/02/26/us-immigration-policiesbring-global-shame-on-us/)//WK
The proliferation of stories in international media and in global forums about the Guantanamo-like
problems in the country’s immigrant detention system- death, abuse and neglect at the hands of detention
facility guards; prolonged and indefinite detention of immigrants (including children and families) denied
habeas corpus and other fundamental rights; filthy, overcrowded and extremely unhealthy facilities; denial of
basic health services – are again tarnishing the U.S. image abroad, according to several experts. As a
result, reports from Arizona and immigrant detention facilities have created a unique problem: they are making it
increasingly difficult for Obama to persuade the planet’s people that the United States is ready claim
exceptional leadership on human rights in a soon-to-be-post-Guantanamo world. Consider the case of
Mexico. Just last week, following news reports from Arizona, the Mexican government , which is traditionally silent or
very tepid in its criticism of U.S. immigration and other policies, issued a statement in which it “energetically
protested the undignified way in which the Mexicans were transferred to ‘Tent City’” in Maricopa
County. David Brooks, U.S correspondent for Mexico’s La Jornada newspaper, believes that immigrant detention stories
hit Mexicans closer to home because those reportedly being abused in detention are not from a
far off country; they are family, friends, neighbors and fellow citizens. In the same way that
Guantanamo erased the idea of U.S. leadership in human rights in the Bush era, says Brooks, who was born in
Mexico, practices in immigrant detention facilities like those reported by global media in
Maricopa County may begin to do so in the Obama era if something does not change. “Mexicans have
never seen the U.S. as a great model for promotion of human rights. But with Obama we take him at his word. We’re
expecting some change,” said Brooks. “But that will not last long if we see him continuing Bush’s
[immigration] policies: raids, increasing detention, deportation. Regardless of his excuse, he will quickly become mas de
lo mismo (more of the same) in terms of the experience down south.” If uncontested, the expression of such
sentiments far beyond Mexico and Mexican immigrants could lead to the kind of American exceptionalism
Obama doesn’t want. In a March 2008 report, Jorge Bustamante, the United Nations Special Rapporteur on Human Rights
of Migrants, concluded that “the United States has failed to adhere to its international obligations to make the human rights of the
37.5 million migrants living in the country a national priority, using a comprehensive and coordinated national policy based on clear
international obligations.” Asked how his report was received in different countries, Bustamante said, “The non-governmental
organizations have really responded. In the United States and outside the United States- in Mexico, in Guatemala, in Indonesia and
other countries- NGO’s are using my report to frame their concerns and demands in their own countries- and to raise criticism about
the United States.” For her part, Alison Parker, deputy director of the U.S. program of Human Rights Watch, fears
a global
government “race to the bottom” around immigrant detention policies. “My concern is that as the
rest of world sees the United States practices, we increase the risk that this will give the green
light to other governments to be just as abusive or more abusive as the United States.” If there is a positive note
to be heard in the growing global chorus of critique of and concern about U.S immigration policy, it is to be found among those
human rights activists and groups doing what W.E.B. DuBois, Paul Robeson and other civil rights activists did in previous eras: bring
their issues to the global stage. Government documents from the civil rights era, documents that were released just a few years ago,
illustrate how members of the Kennedy and Johnson State departments and even Kennedy and Johnson themselves were acutely
aware of and sensitive to how denunciations in global forums of racial discrimination in United States had a devastating impact on
the U.S. prestige abroad. Such a situation around the rights of migrants today, says Oscar Chacon of the National Alliance of Latin
American and Caribbean Communities, a Chicago-based global NGO run by and for immigrants, creates an opportunity out of the
globalization of the images of both Sheriff Joe Arpaio and Barack Obama. “The world will be able to see him as the rogue sheriff that
he is” said Chacon, who was in Mexico City attending a conference on immigration at which U.S. detention practices were criticized.
“And it will
be up to the Obama Administration to show the world that Arpaio is not a symbol of
the rest of the country when it comes to immigration.”
terror
Revelations of CIA torture bolster extremist narratives that characterize the
West as at war with Islam – that prevents effect counter-terrorism – ISIS makes
the scenario UQ
Ranstorp 14 – Research director, Center for Asymmetric Threat Studies, Swedish National
Defence College (12/16/2014, Magnus, Newsweek, “What Is the Impact of the CIA Torture Report?”,
http://www.newsweek.com/whats-impact-cia-torture-report-292181 // SM)
the reputation of the CIA as a rogue agency further damages the United States stature
as a champion for democracy and human rights around the world. Significantly, it also
reinforces conspiracy theories and the salafi-jihadi narrative that the West (led by the U.S.) is
at war with Islam. A new generation of Muslims has been forced to define its identity in
relation to 9/11, the war on terror, Guantanamo and extraordinary rendition practices,
collectively creating a sense of besieged communities. For them the Senate report reinforces
this notion of a West at war with Islam. While this narrative used to be peripheral, it is now center stage. It
greatly complicates work against violent extremism. It erodes the essential ingredient in
community-based preventative work: trust between government agencies and communities
on issues of extremism. This comes at a time when the Islamic State, also known as ISIS, has shown that the
impossible—the creation of a caliphate—is possible, lighting the imagination of Muslim
extremists around the globe. A second major consideration is the unsavory intelligence partnerships that enabled extraordinary rendition where "enhanced interrogation
It goes without saying that
techniques" were practiced at black sites. The roles of Poland and other EU states come to mind as foreign venues used by the CIA. Admissions by Polish ex-leaders, overturning previous public denials, have the
potential to become hot and difficult political issues within Europe, in addition to contributing to an erosion of trust between European governments and the United States. For sure, the report will amplify calls
The Senate report has the power to be both cathartic and
seriously damaging for the U.S. intelligence community. The report crossed an important Rubicon. In the short term, it may resolve the soulsearching within the U.S. political establishment and the intelligence community about how far to go in balancing human rights and security. In the longer term, it gravely
damages intelligence partnerships and U.S. leadership on counterterrorism efforts—at a time
when the U.S. needs to strongly advocate for democracy and human rights in the greater
Middle East.
from human rights organizations that those responsible be brought to justice.
The report on CIA torture creates anti-Americanism in Muslim countries – their
support is key solve terrorism
Hammond 14 – Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics, and a former UK
Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, “US Senate report on CIA torture threatens
international relations”, http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatens-international-relations20141210-1243ol.html // SM)
The US Senate Intelligence Committee's summary report on the CIA's post 9-11 "enhanced
interrogation techniques" – from sleep deprivation to waterboarding – used against suspected terrorists has
provoked a domestic furor, but its biggest impact could be outside US shores. The
ramifications are already rippling out internationally and are likely to inflame antiAmericanism in several Muslim-majority countries whose support is potentially key for US
success in the campaign against terrorism. This will only add to the massive public diplomacy
challenge now confronting US President Barack Obama.
Thailand
The military-dominated Thai government uses the torture report to distract
attention from HR abuses and to prevent any hope of a democratic revival
Kurlantzick 14 – Kurlantzick is Senior Fellow for Southeast Asia at the Council on Foreign Relations and author of Democracy in
Retreat: The Revolt of the Middle Class and the Worldwide Decline of Representative Government. (12/11/2014, Joshua, Bloomberg
Business, “The CIA Torture Report Is Causing Political Ripples Overseas”, http://www.bloomberg.com/bw/articles/2014-12-11/thesenate-torture-report-is-causing-political-ripples-overseas // SM)
Amid the furor in Washington about how the
torture report will affect the agency, the U.S., and even the 2016 presidential
likely to have significant
effects on politics in several of the countries that were home to the dungeon-like prisons
where the CIA, and local intelligence officers, detained and harshly treated prisoners. One of
these countries is Thailand. A formal U.S. ally, Thailand was led in the early 2000s by Prime Minister
Thaksin Shinawatra, an elected leader but a man with little interest in the rule of law. Thaksin
oversaw a “war on drugs” in Thailand that resulted in the extrajudicial killing of some 2,500 Thai suspects. Thai intelligence
and the CIA reportedly moved some of the highest-profile detainees in the war on terror,
including Abu Zubydah, a senior Al Qaeda figure, to a “black site” safe house in Thailand.
elections, little attention has been paid to another impact of the report’s release. The report is
Although Thaksin reportedly was not initially informed by Thai intelligence when the black site was created, he reportedly later was
informed about it. In Thailand, Abu Zubydah allegedly was repeatedly waterboarded, subjected to physical assaults, tortured with
sleep deprivation in stress positions, and subjected to other inhumane treatments. Thaksin was
forced into exile by a
coup in 2006, and his sister, also elected, was deposed in a coup in May of this year. Although the country remains
under martial law, and Thai media are extremely wary of publishing anything critical of the
government, the Thai press has covered the torture report extensively. Most likely, according
to several Thai sources, the military-dominated Thai government will attempt to keep the
report in the news to tar Thaksin, as well as to distract attention from the rights abuses
currently being perpetrated against Thais by the Bangkok regime. Coverage of the report may
indeed hurt attempts by Thaksin and his party to portray themselves to the public as
committed democrats who are far more enlightened than the harsh army rulers running
Thailand now. The generals will have to be careful how they point fingers, however, since they have close links to Thai
intelligence, and many of the military men currently running Thailand held senior army positions a decade ago as well.
US-EU
CIA torture revelations create devastating public perception issues for
European political leaders – that erodes US-EU relations
Ranstorp 14 – Research director, Center for Asymmetric Threat Studies, Swedish National
Defence College (12/16/2014, Magnus, Newsweek, “What Is the Impact of the CIA Torture Report?”,
http://www.newsweek.com/whats-impact-cia-torture-report-292181 // SM)
A second major consideration is the unsavory intelligence partnerships that enabled extraordinary
rendition where "enhanced interrogation techniques" were practiced at black sites. The roles of Poland and
other EU states come to mind as foreign venues used by the CIA. Admissions by Polish exleaders, overturning previous public denials, have the potential to become hot and difficult
political issues within Europe, in addition to contributing to an erosion of trust between
European governments and the United States. For sure, the report will amplify calls from human
rights organizations that those responsible be brought to justice. The Senate report has the
power to be both cathartic and seriously damaging for the U.S. intelligence community. The
report crossed an important Rubicon. In the short term, it may resolve the soul-searching within the U.S. political establishment and
the intelligence community about how far to go in balancing human rights and security. In
the longer term, it gravely
damages intelligence partnerships and U.S. leadership on counterterrorism efforts—at a time when the U.S. needs to
strongly advocate for democracy and human rights in the greater Middle East.
US-Afghan
US-Afghan relations are stabilizing – the torture report undermines it
Kurlantzick 14 – Kurlantzick is Senior Fellow for Southeast Asia at the Council on Foreign Relations and author of Democracy in
Retreat: The Revolt of the Middle Class and the Worldwide Decline of Representative Government. (12/11/2014, Joshua, Bloomberg
Business, “The CIA Torture Report Is Causing Political Ripples Overseas”, http://www.bloomberg.com/bw/articles/2014-12-11/thesenate-torture-report-is-causing-political-ripples-overseas // SM)
In Afghanistan, reportedly home to some of the most notorious CIA detention facilities, the
report could be a bombshell as well. After the report’s release, Afghan President Ashraf Ghani
reportedly stayed up all night reading it and gave a speech on Afghan national television decrying the CIA’s
practices as against “all accepted norms of human rights abuses in the world.” Ghani’s harsh
condemnation suggests that the report could well undermine U.S.-Afghan cooperation, which
was beginning to stabilize under the technocratic Ghani after the mercurial Hamid Karzai
regime. The revelations may undercut Ghani and his program of political and economic
reform, as well. Ghani declared that the abuses happened in an earlier era, suggesting a break between that time and his current
administration, yet he served as a senior Afghan cabinet minister in the early 2000s.
Afghani relations k2 overall Asian stability
Smith 14- (Jack A., Foreign Policy Journal, “Why the US Wants to Stay in Afghanistan”, 1/7/14,
http://www.foreignpolicyjournal.com/2014/01/07/why-the-us-wants-to-stay-inafghanistan/)//WK
Afghanistan is especially important to Washington for two main reasons.¶ The obvious first reason is to have
smaller but elite forces and surveillance facilities in Afghanistan to continue the fighting when necessary to
protect U.S. interests, which include maintaining a powerful influence within the country.
Those interests will become jeopardized if, as some suspect, armed conflict eventually breaks
out among various forces contending for power in Kabul since the mid-1990s, including, of course, the Taliban,
which held power from 1996 until the 2001 U.S. invasion.¶ The more understated second reason is that Afghanistan is an
extremely important geopolitical asset for the U.S., particularly because it is the Pentagon’s
only military base in Central Asia, touching Iran to the west, Pakistan to the east, China to the
northeast, and various resource-rich former Soviet republics to the northwest, as well as
Russia to the north.¶ A Dec. 30 report in Foreign Policy by Louise Arbour noted: “Most countries in [Central
Asia] are governed by aging leaders and have no succession mechanisms — in itself
potentially a recipe for chaos. All have young, alienated populations and decaying
infrastructure… in a corner of the world too long cast as a pawn in someone else’s game.”¶ At
this point, a continued presence in Afghanistan dovetails with Washington’s so-called New Silk Road policy first announced by then
Secretary of State Hillary Clinton two years ago. The
objective over time is to sharply increase U.S.
economic, trade, and political power in strategic Central and South Asia to strengthen U.S.
global hegemony and to impede China’s development into a regional hegemon.¶ As the State
Department’s Robert O. Blake Jr. put it March 23: “The dynamic region stretching from Turkey, across the Caspian Sea to
Central Asia, to Afghanistan and the massive South Asian economies, is a region where greater cooperation and
integration can lead to more prosperity, opportunity, and stability.¶ “But for all of this progress and
promise, we’re also clear-eyed about the challenges. Despite real gains in Afghan stability, we understand the
region is anxious about security challenges. That’s why we continue to expand our cooperation with Afghanistan
and other countries of the region to strengthen border security and combat transnational threats.Ӧ Blake did not define what
“security challenges” he had in mind. But both China
and Russia are nearby seeking greater trade and
influence in Central Asia — their adjacent backyard, so to speak — and the White House, at least, may
consider this a security challenge of its own.
Random - Yoo Cards
We need the aff to hold people accountable - Yoo agrees
FRIEDERSDORF 12/16 (Conor Friedersdorf, December 16, 2014, The Atlantic, John Yoo: If the Torture Report Is True, CIA
Officers Are at Legal Risk, http://www.theatlantic.com/politics/archive/2014/12/john-yoo-if-senate-report-is-true-cia-interrogatorsare-at-legal-risk/383790/) //JS
The debate over the CIA interrogation program pits critics who insist illegal torture took place
against defenders who say the treatment of prisoners was legal. These defenders cite guidance that the spy agency got from
the Bush Administration. Former CIA Director Michael Hayden phrased it this way: "It needs be said that on multiple occasions all of
the techniques were determined lawful by the Department of Justice and judged appropriate for the circumstances." That argument
suffered an unexpected blow this week. In a little-noticed CNN interview, John Yoo, a primary author of the torture memos, took
a surprising position. Although the former Office of Legal Counsel lawyer isn't sure that the Senate torture report is accurate, he
says that if all of the interrogation tactics it describes were really deployed by CIA officers,
some of them broke the law and are vulnerable to prosecution. Here's a transcript of the exchange: FAREED
ZAKARIA: When you read this report and you read about the techniques that were used, forced rectal feeding, agency
officials threatening to rape the mothers of prisoners, people with broken limbs being forced to stand for hours and hours, deprived
of sleep for up to one week. Doesn't that strike you as torture? JOHN YOO Well, those are very troubling examples. They would
not have been approved by the Justice Department. They were not approved by the Justice
Department at the time. But I have to question whether they are true because I can't take the face value of the
committee's report because there were no Republicans involved. You know, the investigations intelligence committee are
traditionally bipartisan and the worst thing, from a lawyer's perspective, from
my perspective, is the committee
didn't interview any witnesses. And so you have these reports but they never gave a chance -gave a chance to the very participants of the people being accused to explain themselves . And so I will
want to know more about what happened in any of these cases and to see what really happened. But I agree with you, if there were
people who had to undergo what you have just described, none of those were approved by the Justice Department. I don't believe
they're approved by the headquarters at CIA, too. Instead what you had I think you was a lot of chaos and miscommunication going
on in the very first months after 9/11 when both people in the White House, the executive branch and Congress, were demanding
that the CIA become aggressive and get started on going after al Qaeda. FAREED ZAKARIA: But, John, if you'd made a fair point that
the Republican minority did not join in, and it would have given it more credence, but the practices that they're describing, as I
understand it, are taken from the CIA's own accounts, are you saying that you think the committee has doctored those reports?
JOHN YOO: What I'm worried about -- and this is what -- don't take my word for it. This is what CIA ex-directors have been saying
over the last few days and they appear in the CIA's own answer and in the minority report to the committee, that these
were
all cherry picked out of millions of documents and that we don't have the context to
understand these are classified documents, of course, many of them, so we can't see the underlying documents. That's why we
really need to rely in these kind of situation under being bipartisanship and a chance for people to appear and testify before the
committee. But I agree. Look, Fareed, I agree with you, if these
things happened as they are described in the
report, as you describe them, those were not authorized by the Justice Department. They
were not supposed to be done and those people who did those are at risk legally because they
were acting outside their orders. There is, of course, no reason to think that the Senate report
fabricated any torture techniques. It is widely accepted, even among the spy agency's defenders, that prisoners were,
in fact, subject to the "forced rectal feeding," or anal rape, that Zakaria mentions. And so we have a rather extraordinary
development. Even
the attorney who famously said that it might be legal for the president to
order an innocent child's testicles to be crushed thinks that some of what the CIA did was
illegal. He's just a step away from acknowledging that the law compels a prosecution.
When Yoo thinks the aff is a good idea -- that’s when you know
Kreiter 12/14 (Marc Kreiter, December 14, 2014, International Business Times, CIA Torture Report: Memo Writer John Yoo Said
CIA May Have Gone Too Far, http://www.ibtimes.com/cia-torture-report-memo-writer-john-yoo-said-cia-may-have-gone-too-far1755990) //JS
A former Justice Department lawyer who wrote the memo that led to enhanced CIA interrogation techniques said Sunday the
agency may have gone too far. John Woo, who at the time was Deputy Assistant U.S. Attorney General in the Office of Legal Council,
co-wrote a memo in 2002 that became the legal basis for the CIA's interrogation program. The Senate Intelligence Committee last
week released a report detailing instances of torture committed under the program and concluded that the CIA misled the White
House and the public. Critics have been calling for those who approved the program to be held accountable. "Looking at it now, I
think of course you can do these things cumulatively or too much that it would cross the line of the anti-torture statute," Yoo said on
C-SPAN. On CNN, Yoo
said if the instances outlined in the report are accurate, "they were not
supposed to be done. And the people who did those are at risk legally because they were
acting outside their orders." The tortures described in the intelligence committee report
included forced rectal feeding, threatening to rape captives' mothers, forcing people with
broken limbs to stand for hours and sleep deprivation lasting as long as a week. "Well, those are
very troubling examples. They would not have been approved by the Justice Department -they weren't approved by the Justice Department at the time," Yoo said. "But I have to question whether
they’re true because I can’t take at face value the committee’s report because there were no Republicans involved." Former Vice
President Dick Cheney said Sunday he's perfectly comfortable with the CIA's actions despite contentions that torture didn't yield any
information that couldn't have been obtained by other means. Cheney admitted rectal feeding was not approved as an enhanced
interrogation technique. Republicans opposed release of the report, warning of possible repercussions. Many newspapers in the
Middle East, however, have been silent on the subject and few Arab leaders have condemned the actions.
at
circumvention
Plan exposes CIA operations -- key to double government exposure
Corn 12/10 (David Corn, Mother Jones, Politic Co, There Is Something Worse Than Torture in
the Senate Torture Report, http://www.motherjones.com/politics/2014/12/senate-torturereport-cia-lying-crisis-oversight) //JS
There is something more troubling in the Senate intelligence committee's torture report than the brutal depictions of the extreme
(and arguably illegal) interrogation practices employed by CIA officers in the years after the 9/11 attacks: the lying. Am I a Torturer?
The accounts of rectal rehydration, long-term sleep deprivation, waterboarding, forced standing (for days), and wrongful detentions
are shocking. And the committee's conclusion that CIA torture yielded little, if any, valuable information (including during the hunt
for Osama bin Laden) is a powerful counter to those who still contend that so-called enhanced interrogation techniques are
effective. But the report presents a more basic and profound question that the nation still faces in the post-torture era: Can secret
government work? In fact, while pundits and politicians are pondering the outrageous details of the executive summary, not
many have realized that the report, in a way, presents a constitutional crisis. The basic debate over torture has been
settled. In his first days in office, President Barack Obama signed an executive order outlawing the use of these interrogation
methods. Since then, the question has been what to reveal about the CIA's use of torture during the Bush-Cheney days and whether
anyone ought to be prosecuted. But those matters, too, have been mostly resolved. The committee's report was released after a
lengthy struggle between the CIA and Sen. Dianne Feinstein, the Democratic chairwoman of the panel; and in his first term, Obama
ruled out criminal prosecutions of officials and officers engaged in sketchy counterterrorism actions in the previous administration.
But there is a foundational issue that remains: how the US government conducts clandestine operations. The
Senate torture
report raises the possibility that much-needed checks and balances may not function because
of CIA mendacity. In a system of democratic government, if it is necessary for the military or the intelligence community
(which both operate under the authority of the president) to mount covert operations to defend the nation, they are only permitted
to do so with oversight from people elected by the voters—that is, members of Congress. The premise is simple:
No
government agency or employee can engage in clandestine activity, such as secret warfare, without some
vetting. The vetters are surrogates for the rest of us. They get to see what's happening—without telling the public (unless there is a
compelling reason to do so)—and they're supposed to make sure the spies, the spooks, and the secret warriors do not go too far and
end up jeopardizing US values and interests. That can only work if the legislators assigned to that oversight mission actually know
what the spies and operatives are doing. And they cannot know what the CIA is doing if the CIA lies to them about it. According
to the Senate Intelligence Committee, the CIA repeatedly lied about its controversial
interrogation program. The Senate torture report offers an appalling narrative of CIA
prevarication. In fact, anyone who has read the major congressional reports on intelligence activity and abuses in the four
decades since the Church Committee first revealed CIA wrongdoing would find the new report shocking in terms of its depiction of
CIA lying (though it does not use the l-word). The
report notes that the CIA misled the White House, the
National Security Council, the Justice Department, and Congress about the effectiveness of its
extreme interrogation techniques. The CIA did not tell policymakers the truth about the
brutality of its interrogations and the confinement conditions for its detainees. The agency
repeatedly provided inaccurate information to the Justice Department about its detention and interrogation program, and this
prevented the Justice Department from supplying solid legal analysis. The
Intelligence Committee about
CIA was late in telling the Senate
its use of torture and did not respond to information requests from
the committee. The agency (at the direction of the White House) did not initially brief the secretaries of state and defense
about its interrogation methods. It provided inaccurate information about its interrogation program to
the FBI and the Office of the Director of National Intelligence. CIA officials gave inaccurate information about its enhanced
interrogation techniques to the agency's inspector general. The CIA never compiled an accurate list of the individuals it detained or
subjected to torture. The
CIA also ignored objections and criticisms raised by its own officers about
its detention and interrogation program. This is a tremendous amount of CIA misrepresentation. This is a
tremendous amount of CIA misrepresentation. It is difficult to read these pages and wonder whether a system of accountability can
work. Last March, it did seem oversight had completely broken down, when it was revealed that the CIA had spied on Feinstein's
investigators. Oversight can only succeed if there is a degree of trust between the lawmakers who watch and the spies who are
watched. And at that point, not only was trust gone, an all-out bureaucratic war was being waged between the agency and the
committee. John Brennan, the CIA chief, did insist publicly that his agency had not snooped on DiFi's flatfoots. Yet that turned out to
be false. And now the CIA and its cheerleaders, including former CIA officials who were in charge during the years of torture and
obfuscation, are mounting a PR battle against Feinstein and the report, claiming it is 6,600 pages of off-the-wall distortions.
hard power trades off
Soft power doesn’t trade-off with hard power – they work in conjunction
Lord 14 – Kristin M. Lord is President and CEO of IREX, a global education and development NGO. (12/23/2014, Kristin, Foreign
Policy, “Soft Power Outage”, http://foreignpolicy.com/2014/12/23/soft-power-outage/?wp_login_redirect=0 // SM)
investing in soft power does not negate the need for military force or investments in
hard power. Indeed, some applications of soft power must be backed by hard power, the way bank
loans must be backed by underlying financial solvency, and there are objectives (defeating the Islamic State comes to mind)
that are nearly impossible to achieve without at least some use of force. However, hard power
is not appropriate to every mission, and in some cases, it may even be counterproductive,
generating a backlash that multiplies the severity of the threat. Countering violent extremism
is a case in point: Force has a role, but its overuse can draw more recruits to the cause.
Meanwhile, undercutting the appeal of extremist ideologies can be accomplished most effectively
through non-military means. Most military leaders would agree, and I find them, as a general rule, to be
To be clear,
among the strongest backers of soft power. It was not so long ago that a U.S. defense secretary, Robert Gates, proved one of the
most persuasive voices appealing, alongside then-Secretary of State Hillary Clinton, for more resources for diplomacy and
development. Ret. Gen. James Mattis put it even more bluntly in a statement to the Senate Armed Services Committee in March,
2013: “If you don’t fund the State Department [foreign operations] fully, then I need to buy more ammunition.”
senate spied on the CIA
The Senate didn’t spy on the CIA – it received the review through CIA disclosure
or a whistleblower – either way, it’s legal
Zornick 14 – Washington Editor for The Nation (3/12/2014, George, The Nation, “In Spying Scandal, Did Obama Just Take the
CIA’s Side?”, http://www.thenation.com/article/spying-scandal-did-obama-just-take-cias-side/ // SM)
The important context here is the Department
of Justice is running two parallel investigations into the
CIA’s removal of the so-called “Panetta review”—one into wrongdoing by the Intelligence
Committee, and one into CIA wrongdoing. The CIA claims that Senate staffers illegally
obtained a copy of that review, which damns the CIA for it’s role in Bush-era interrogations and is at odds with public
statements from the CIA. But Feinstein strenuously, and at great length, contested that claim in her
Senate floor speech on Tuesday. She explained how the Panetta review came into the
committee’s possession: either by intentional or unintentional disclosure by the CIA while
turning over the 6.2 million documents related to the interrogation program, or by a “whistleblower” either at the agency or working for the private contracting firm that was vetting the
documents. She went on to explain that the Senate Legal Counsel affirmed to her that these were not
classified documents, and that the committee was permitted to have them.
war on terror good
The CIA director conceded that it’s impossible to know if torture is an effective
counterterror strategy
Hattem 14 – Reporter for the Hill (12/11/2014, Julian, The Hill, “CIA head: ‘Unknowable’ if harsh methods worked”,
http://thehill.com/policy/defense/226835-cia-head-unknowable-if-brutal-methods-worked // SM)
CIA Director John Brennan says it is impossible to know whether or not harsh interrogation methods
that many have called torture worked at obtaining information from Islamic extremists. “The cause
and effect relationship between the use of [enhanced interrogation techniques] and useful
information subsequently provided by the detainees is, in my view, unknowable,” CIA Director
John Brennan said in an unprecedented press conference on Thursday, amid a deepening crisis over the
agency's former tactics. Suspected terrorists detained by the CIA and subjected to waterboarding, sleep deprivation, “stress
positions” and other brutal interrogation techniques have “produced useful intelligence” that has thwarted terrorist attacks and
helped keep the U.S. safe, Brennan said. However, “we have not concluded that it was use of [enhanced interrogation techniques]
within that program” that led to that information. “There
is no way to know whether not some information
that was obtained from an individual who had been subjected at some point during his
confinement could have been obtained through other means,” Brennan added. “It’s an
unknowable fact.” A report from the Senate Intelligence Committee this week strongly
disagreed with Brennan’s assessment. Not only did the techniques at times amount to torture, the report
said, but they were not effective at extracting information from the detainees, since people
often gave up false information in order to get the "interrogations" to stop.
war powers
Executive war power ruins soft power and global alliances
Schiffer 9 (Adam is a Ph.D., Assistant Professor of Political Science at Texas Christian
University, and Carrie Liu Currier, Ph.D., Assistant Professor of Political Science at Texas Christian
University, “War Powers, International Alliances, the President, and Congress”,
http://apcentral.collegeboard.com/apc/public/repository/US_Gov_Balance_of_Power_SF.pdf)//
cc
The president’s advantages over Congress in the foreign policy realm have consequences far
beyond the intragovernmental struggle over power and accountability. In recent years , the use
of military force by the United States to compel other countries to abide by international norms or laws has generated
criticism from members of the global community. Specifically the fear is that U.S. foreign policy in
the post–Cold War era has become the pursuit of a new world order that essentially reflects
American hegemony. The “war on terror,” the Bush doctrine, and the war efforts in Afghanistan and
Iraq have all showcased the commitment of the U nited S tates to unilateralism rather than coalition
building, and raise concern about the powers of the American presidency. During the Cold War, the
absence of multilateralism in U.S. foreign policy was not as problematic as it appears today. However, the
strengthening of presidential authority under the second Bush administration has raised alarm in many
countries around the world . In the past, the bipolar nature of the international system and the lack of consensus found
among the five permanent members of the United Nations Security Council decreased the likelihood the United States could draw
on multilateral action to counter its adversaries. In contrast, the post–Cold War era is one where countries
are expected
to fully utilize institutions like the United Nations to garner international support and establish
coalitions, rather than resorting to unilateralism. Thus, the international community has been
critical of countries that appear to circumvent these norms when dealing with global conflicts in
the contemporary period. To highlight some of the differences in the international community’s post–Cold War support for U.S.
military action abroad, we briefly examine the cases of the Persian Gulf War (1991) and the war in Iraq (2003). Both cases effectively
demonstrate how two presidents, George H. W. Bush and George W. Bush, utilized the spirit of the War Powers Resolution in
consulting with Congress but then reveal how their use of presidential authority led to very disparate degrees of support from the
international community. These two examples of U.S. military action in the Middle East offer several useful bases for comparison. In
both conflicts there were underlying interests in securing oil resources, a desire to remove Saddam Hussein from power, and a sense
that Iraq was seeking regional hegemony and defying international law based on its invasion of Kuwait in 1990 and its continued
development of a weapons of mass destruction program. The contrasting responses of President George H. W. Bush and his son
George W. Bush, however, illustrate how much discretion is left to the president in the current practice of war powers. In the first
Gulf War, President George H. W. Bush fully utilized the international structures in place by getting the UN Security Council to adopt
Resolution 678 authorizing member states to use “all necessary means,” including military force, to drive Iraq out of Kuwait and
comply with international law. In accordance with the War Powers Resolution the president reported to Congress on Iraq’s refusal to
adhere to the Security Council resolution, and indicated he was prepared to craft a multilateral strategy to respond to the crisis. He
did not march the troops north to Baghdad and overthrow Saddam Hussein at this time because he had neither the approval nor the
support of the UN to take these initiatives at the time. The Iraq policy set forth by the Bush administration thus relied on the use of a
multilateral coalition to generate a sense of domestic and international legitimacy to the military actions taken by the United States
and its allies, and was acknowledged as within the acceptable parameters as determined by the global community. In contrast, the
2003 war in Iraq did not gain the support of the UN Security Council and was largely a unilateral effort by President George W. Bush.
This unilateralist strategy can be seen on two levels, in the sense that he did not consult with allies and that his actions were rather
declaratory with minimum consultation with Congress (Dumbrell 2002, 284). Global leaders warned that preemptive war and
“American-led military action was illegitimate, threatened the future of the United Nations, undermined international support for
the ‘war on terrorism,’ and created new threats to international peace and security” (Dombrowski and Payne 2003, 395). The
“coalition of the willing” that supported U.S. initiatives in Iraq was negligible in both size and relative power and was not an attempt
at true multilateralism. UN Resolution 1441, indicating Iraq was in material breach with regard to its WMD program, had been
carefully worded so as not to permit an American military operation to enforce Iraq’s compliance. Instead, the Security Council was
only willing to reopen discussions of weapons inspections and engage in further fact-finding. The terrorism rhetoric used by the
second Bush administration established the urgent need for a U.S. response, and further served the president’s unilateralist efforts
by instilling a sense of danger in waiting for other actors to give legitimacy to the U.S.-led war. The
battle between the
unilateralists and multilateralists with regard to U.S. foreign policy raises concerns about
presidents whose actions promote American exceptionalism. The idea that the U nited S tates
operates with an authority above supranational institutions like the UN gives the impression that
the country and the president have the ability to engage in reckless foreign policy behavior with
few repercussions. The post–Cold War increase in UN action raises concerns about whether the War Powers Resolution
should be amended to either facilitate or restrain the president’s ability to supply troops for UN missions without congressional
approval (Grimmett 2004). Until then, the two cases of U.S. military action in the Middle East demonstrate important
comparisons in how multilateralism and unilateralism are viewed by the global community and how they are
used to establish the legitimacy of American foreign policy.
answers to offcase
disads
politics link turn - popular
Obama loves the plan – publicly supports CIA accountability and rejects CIA
surveillance of the Senate
Bolton 14 – Staff Writer for The Hill (3/14/2014, Alexander, The Hill, “The CIA blowup: Five things to know”,
http://thehill.com/blogs/floor-action/200801-5-things-to-know-about-feinsteins-feud-with-cia // SM)
The role of the White House: Feinstein
approached then-White House Counsel Bob Bauer in May 2010 about
the removal of 870 documents from the Senate investigators’ network in February 2010 and another 50
in mid-May. Feinstein said Bauer “recognized the severity of the situation” and committed there
“would be no further unauthorized access to the committee’s network or removal of access
to CIA documents already provided to the committee.” On May 17, 2010, the CIA’s director of congressional
affairs apologized for the documents’ removal. The Intelligence Committee has spent the past year sparring
with the CIA over the conclusions of its report, which was completed in December 2012. It will now send it
to the White House for declassification. President Obama on Wednesday expressed support
for a quick declassification timeline: "I am absolutely committed to declassifying that report
as soon as the report is completed.” Obama would declassify the report’s conclusions and 300-page summary, not
the entire 6,300-page document. The internal Panetta review would not be included in the report. Although Obama has
backed a public accounting of the CIA’s interrogation and detention practices during the Bush
administration, he has also been careful not to alienate an agency central to his strategy for fighting al Qaeda. Senate
Democratic Whip Dick Durbin (D-Ill.) on Thursday urged Obama to act swiftly. “The sooner,
the better,” he said.
Obama pushes the plan – has empirically sided with the Senate on CIA
oversight
Kleinman 14 – At the time of publication Avery Kleinman was the Beth Daley Impact Fellow for the Project On Government
Oversight (3/14/2014, Avery, Project on Government Oversight, “Obama Promises to Declassify CIA Torture Report”,
http://www.pogo.org/blog/2014/03/obama-promises-to-declassify-cia-torture-report.html?referrer=https://www.google.com/ //
SM)
President Obama
has pledged to declassify the Senate Select Committee on Intelligence’s (SSCI)
headline-making report about the Central Intelligence Agency’s (CIA) interrogation
techniques. From Agence France-Presse: "I am absolutely committed to declassifying that report as
soon as the report is completed," Obama told reporters. "In fact, I would urge them to go
ahead and complete the report, send it to us. "We will declassify those findings so that the
American people can understand what happened in the past, and that can help guide us as we
move forward." The President’s commitment to declassifying the SSCI report follows a week
of public sparring between the CIA and the SSCI. Committee Chairman Dianne Feinstein publicly
expressed outrage and concern that the CIA may have violated the Constitution’s separation
of powers by spying on her committee staff members’ computers as they investigated the
agency’s interrogation and detention practices.
CIA senate surveillance extremely unpopular
Sledge 14 (Matt is a reporter at the Huffington Post, Brown University, 1/29, “CIA Director
Grilled On Domestic Surveillance, Torture At Senate Hearing”,
http://www.huffingtonpost.com/2014/01/29/cia-domestic-surveillance_n_4688475.html)//cc
Three senators pummeled CIA Director John Brennan at a Senate Intelligence Committee
hearing Wednesday, peppering him with tough questions on torture and domestic surveillance
that he has refused to answer in public. Brennan defended the CIA against accusations that it is
double-dealing with the Intelligence committee about a report on agency torture, and he also
received surprisingly pointed questions about whether the CIA spies on Americans. Such public
hearings offer senators critical of the intelligence agencies the chance to telegraph their
private concerns about classified programs -- and these questions could suggest there is
something the public isn't being told about what the CIA does at home. The committee's hearing
on the intelligence community's "worldwide threat assessment" was widely anticipated. At last
year's edition of the hearing, Director of National Intelligence James Clapper claimed in
response to a question from Sen. Ron Wyden (D-Ore.) that the National Security Agency does
not collect information on millions of Americans, which was later proven to be a lie. This year's
hearing began with committee Chairwoman Sen. Dianne Feinstein (D-Calif.) warning senators
not to ask any questions which might require a classified answer. Wyden seemed undeterred,
however, deriding a "culture of misinterpretation" among intelligence agency leaders that has
"seriously undermined" the trust of the American people.
Udall, Heinrich and Wyden support reducing CIA surveillance
Condon 14 (Stephanie is a political reporter for CBSNews, 3/5, “Report: CIA spied on Senate
committee staff”, http://www.cbsnews.com/news/report-cia-spied-on-senate-committeestaff/)//cc
Sen. Mark Udall, D-Colo., seemed to reference the surveillance in a letter to President Obama
Tuesday, in which he urged the president to support the fullest declassification of the
committee's CIA report. "As you are aware, the C.I.A. has recently taken unprecedented action
against the committee in relation to the internal C.I.A. review, and I find these actions to be
incredibly troubling for the committee's oversight responsibilities and for our democracy,"
Udall wrote. "It is essential that the Committee be able to do its oversight work -- consistent
with our constitutional principle of the separation of powers -- without the CIA posing
impediments or obstacles as it is today." Sen. Ron Wyden, D-Ore., who like Udall has called for
more transparency from the intelligence community, also seemed to allude to the CIA's
surveillance of the committee during a Jan. 29 Senate Intelligence Committee hearing. In that
hearing, Wyden asked CIA director John Brennan whether the federal Computer Fraud and
Abuse Act applies to the CIA. The law bars the intentional access of a computer without
authorization. Wyden published Brennan's response on Wednesday: "The statute does apply,"
Brennan wrote. "The Act, however, expressly 'does not prohibit any lawfully authorized
investigative, protective, or intelligence activity... of an intelligence agency of the United
States.'" Sen. Martin Heinrich, D-N.M., another member of the intelligence committee, declared
in a statement Wednesday, "The Senate Intelligence Committee oversees the CIA, not the
other way around." He blasted the agency for refusing to "engage in good faith" with the
committee as it studied the CIA's detention and interrogation program, and he called for the
report's full declassification.
Obama supports surveillance reforms
Voltz 14 (Dustin is a staff correspondent for National Journal covering tech policy. His work has
previously appeared in The Washington Post, The Center for Public Integrity, and The Arizona
Republic. Dustin is a graduate of Arizona State University, 11/18, “Obama Administration
‘Strongly Supports’ NSA Reform Bill”, http://www.nationaljournal.com/white-house/obamaadministration-strongly-supports-nsa-reform-bill-20141117)//cc
The Obama administration on Monday endorsed a Senate proposal to rein in the
government's most controversial domestic spying program—a move coming just a day before
the Senate is slated to start debating the measure. In a statement from the White House, the
administration said it "strongly supports" the USA Freedom Act, a bill from Senate Judiciary
Chairman Patrick Leahy that would effectively end the National Security Agency's bulk
collection of metadata—the numbers and time stamps of phone calls but not their actual
content. The once-secret program was publicly exposed by Edward Snowden last summer. "This
legislation will help strengthen Americans' confidence in the Government's use of these
important national security authorities," the Office of Management and Budget said in a
statement. "Without passage of this bill, critical authorities that are appropriately reformed in
this legislation could expire next summer." President Obama in January pledged to reform the
government's surveillance practices, but said he could only do so when Congress sent him a bill
that closely matched his recommended changes.
CIA surveillance of the Senate caused bipartisan backlash
Landay and Watkins 14 – Landay is a senior national security and intelligence correspondent for McClatchy
Newspapers, has written about foreign affairs for over 25 years. Watkins is a reporter for McClatchy (7/31/2014, Jonathan and Ali,
McClatchy DC, “CIA admits it broke into Senate computers; senators call for spy chief’s
ouster”http://www.mcclatchydc.com/news/nation-world/national/national-security/article24771274.html // SM)
An internal CIA investigation confirmed allegations that agency personnel improperly intruded
into a protected database used by Senate Intelligence Committee staff to compile a scathing
report on the agency’s detention and interrogation program, prompting bipartisan outrage
and at least two calls for spy chief John Brennan to resign. “This is very, very serious, and I will tell you, as a
member of the committee, someone who has great respect for the CIA, I am extremely
disappointed in the actions of the agents of the CIA who carried out this breach of the
committee’s computers,” said Sen. Saxby Chambliss, R-Ga., the committee’s vice chairman.
The rare display of bipartisan fury followed a three-hour private briefing by Inspector General
David Buckley. His investigation revealed that five CIA employees, two lawyers and three information technology specialists improperly
accessed or “caused access” to a database that only committee staff were permitted to use.
The plan has bipartisan support
Mazzetti and Hulse 14 – Mark Mazzetti is a Pulitzer prize-winning correspondent for The New York Times, where he
has covered national security from the newspaper's Washington bureau since April 2006. Carl Hulse is The Times's chief Washington
correspondent (7/31/2014, Mark and Carl, The New York Times, “Inquiry by C.I.A. Affirms It Spied on Senate Panel”,
http://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html // SM)
The inspector general’s account of how the C.I.A. secretly monitored a congressional
committee charged with supervising its activities touched off angry criticism from members of
the Senate and amounted to vindication for Senator Dianne Feinstein of California, the committee’s Democratic chairwoman,
who excoriated the C.I.A. in March when the agency’s monitoring of committee investigators became public. John O. Brennan, the
C.I.A. director, apologized to two senators in connection with the penetration of a computer network. A statement issued Thursday
morning by a C.I.A. spokesman said that John O. Brennan, the agency’s director, had apologized to Ms. Feinstein and the
committee’s ranking Republican, Senator Saxby Chambliss of Georgia, and would set up an internal accountability board to review
the issue. The statement said that the board, which will be led by a former Democratic senator, Evan Bayh of Indiana, could
recommend “potential disciplinary measures” and “steps to address systemic issues.” But anger
among lawmakers grew
throughout the day. Leaving a nearly three-hour briefing about the report in a Senate conference room, members of
both parties called for the C.I.A. officers to be held accountable, and some said they had lost confidence in
Mr. Brennan’s leadership. “This is a serious situation and there are serious violations,” said Mr. Chambliss, generally a
staunch ally of the intelligence community. He called for the C.I.A. employees to be “dealt with
very harshly.” Senator Mark Udall, Democrat of Colorado and another member of the Intelligence
Committee, demanded Mr. Brennan’s resignation. “The C.I.A. unconstitutionally spied on
Congress by hacking into the Senate Intelligence Committee computers,” he said in a written
statement. “This grave misconduct not only is illegal but it violates the U.S. Constitution’s requirement of separation of powers.
The plan has widespread support – especially among Democrats
Milbank 14 – Dana Milbank writes about political theater in the nation’s capital. He joined The Post as a political reporter in
2000, after two years as a senior editor of The New Republic and eight years with the Wall Street Journal. He is also the author of
three political books: Tears of a Clown (2010), Homo Politicus (2008) and Smashmouth (2001). (3/11/2014, The Washington Post,
“Dana Milbank: Allegations of CIA spying on the Senate deserve investigation”, http://www.washingtonpost.com/opinions/danamilbank-allegations-of-cia-spying-on-the-senate-deserve-investigation/2014/03/11/96105150-a95b-11e3-8d62419db477a0e6_story.html // SM)
The staffers, Feinstein said, “were provided access to the Panetta Review by the CIA itself. As a result, there is no legitimate reason
to allege to the Justice Department that Senate staff may have committed a crime. I view the acting counsel general’s referral as a
potential effort to intimidate this staff.” The
president might also consider whether he wants to tolerate
the imperious behavior of CIA Director John Brennan, who promptly dismissed Feinstein’s allegations Tuesday.
Feinstein said that Brennan had previously told her that the CIA would continue snooping on the
committee staff. The Justice Department is investigating the CIA’s actions, but Feinstein said that the
CIA had stated at one point that “the removal of the documents was ordered by the White House.” The White House denied the
claim. That would be a good matter for a special prosecutor to examine. Steven
Aftergood, who runs the Federation of
Feinstein’s allegations a “historic rupture” between
the CIA and the committees that oversee it. The accusations of constitutional violations —
coming after the director of national intelligence, James Clapper, misled Congress about the NSA programs — are more
serious and better documented than wrongdoing alleged by Republicans in the IRS or Benghazi “scandals” subjected to
numerous probes. In the House, Democrats say they’d support a bipartisan investigation of the CIA’s
actions.
American Scientists’ Government Secrecy Project, called
politics no link
No link – Obama’s trying to stay out of the Senate-CIA dispute
Lesniewski 14 – Niels Lesniewski has covered the Senate for CQ Roll Call since January 2010, and more recently as a staff
writer and resident procedure guru for Roll Call. Niels holds degrees in both government and theater. (3/12/2014, Niels, Roll Call,
“Obama Wants to Avoid Crossfire Between CIA and Senate”, http://blogs.rollcall.com/wgdb/obama-wants-to-avoid-crossfirebetween-cia-and-the-senate/?dcz= // SM)
Obama wants to stay out of the feud between the Senate Intelligence Committee
and his own CIA. “With respect to the issues that are going back and forth between the
Senate committee and the CIA, John Brennan has referred them to the appropriate authorities
and they are looking into it and that’s not something that is an appropriate role for me and the
White House to wade into at this point,” Obama said Wednesday. While the matter’s been referred to the Justice
Department, one senior GOP senator has raised the prospect of needing a special prosecutor. Obama’s first public
comments came one day after a remarkable floor speech by Intelligence Chairwoman Dianne
Feinstein, D-Calif., in which she indicated the CIA improperly conducted surveillance on
computer files used by committee staff investigating the agency’s interrogation policies during
the George W. Bush administration. CIA Director John O. Brennan denied the alleged spying by his
agency on the Senate.
President Barack
Obama remains ambiguous on the Senate/CIA feud, means he doesn’t push or
get blamed
Horton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for
reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in
the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner,
among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and
America’s Stealth Warfare” by Scott Horton, Salon,
http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)
In the second half of 2013 and the early months of 2014, the feud between the CIA and the
Senate oversight committee continued to percolate. The roles played by the White House and
President Obama himself were consistently ambiguous. On one hand, Obama assured
Feinstein, other key members of Congress, and significant supporters who felt strongly about
the issue that he was “absolutely committed to declassifying that report.” On the other hand,
aides quickly clarified that it meant only the 480-page executive summary, and only after the
CIA and other agencies had reached a consensus with the White House on redactions from the
report.
Concerns over backlash are empirically disproven
Leber 14- research assistant at Brookings (Andrew, “A Resounding Silence:
Regional Reactions to the Senate’s Report on U.S. Use of Torture”, Brookings
Institute, 12/29/14, http://www.brookings.edu/blogs/markaz/posts/2014/12/29middle-east-reaction-torture-report)//WK
The release of the Senate Intelligence Committee report on the Central Intelligence Agency’s
use of torture has drawn fairly muted reactions across the Middle East, despite initial White
House concerns that it might provoke unrest as well as possible retaliation against American
interests and facilities in the region. Secretary of State John Kerry sought to delay the report’s
release on December 5 due to concerns over fall-out from the report’s revelations, while
Representative Mike Rogers, chairman of the House Intelligence Committee, warned that
"foreign leaders have approached the government and said, ‘You do this, this will cause violence
and deaths’." Security at U.S. military and diplomatic facilities was enhanced in the run-up to
the report’s release. However, few governments in the region released official statements on
the issue, with news coverage similarly sparse. There were no significant protests surrounding
the report’s release.
terror
Torture doesn’t improve counter-terror operations - the CIA’s own internal
review proves
Horton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for
reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in
the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner,
among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and
America’s Stealth Warfare” by Scott Horton, Salon,
http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)
True to its slow-walking strategy, the CIA took more than six months—until June 27, 2013—to respond. When it did so, the
earlier confidential response was backed by the curiously coordinated crossfire of an assortment of actors—former CIA directors and
senior officials, disgraced former CIA agents whose involvement in the torture program was documented in the report, and media
figures, often with close ties to the Bush administration authors of the program. Their message was simple:
waterboarding has produced major breakthroughs and disrupted actual terrorist plots, ultimately
putting American Special Forces in a position to kill Osama bin Laden in the Abbottabad raid of May 2, 2011. However, the
CIA’s own records furnished no support for these claims. This unofficial CIA response was driven heavily by
apparent leaks from within the agency, and the hand of Director John O. Brennan was later revealed in the process. While the
agency’s defenders concentrated their fire on specific facts found and conclusions drawn by
the report, it would turn out that the CIA’s own internal review had come to most of the same
conclusions. This was hardly surprising, since both the committee and the CIA were
summarizing the same documents. Both the internal Panetta report and the Senate
committee report scrutinized the documents and evidence and found nothing to support
claims that torture , particularly waterboarding, produced anything that materially advanced the
search for terrorist leaders or planned strikes; both apparently concluded that these claims
were unfounded. That produced intense embarrassment for the CIA and exposed the CIA’s criticism of the
Senate report as disingenuous—as Feinstein noted, it stood “factually in conflict with its own
internal review.” Even more worryingly, while the Senate report was for the moment holding back from policy
recommendations and other action, it set the stage for a high-stakes game on accountability for torture, including unexplained
homicides involving prisoners.
US Detention policy leads to recruitment and radicalization
Gunter 15- Ph. D, professor of political science at Tennessee Technological
University (Michael, “Iraq, Syria, ISIS and the Kurds: Geostrategic concerns for the
U.S. and Turkey”, Middle East Policy, Vol. XXII, No. 1, Spring 2015,
http://onlinelibrary.wiley.com.proxy.lib.umich.edu/doi/10.1111/mepo.12116/ep
df)//WK
The United States has inadvertently helped what has now morphed into the Islamic State by
lax policies that allowed many of its current leaders to escape from U.S. detention centers in
Iraq. The list includes the caliph himself, Abu Bakr al-Baghdadi, who spent almost five years
imprisoned at Camp Bucca in southern Iraq, as well as Abu Muslim al-Turkmani, Abu Louay,
Abu Kassem, Abu Jurnas, Abu Shema and Abu Suja. These extremists were held side by side
with those less radical, allowing U.S. coalition prisons in Iraq to become recruitment centers
and even training grounds for ISIS recruits. Moderates who objected to being radicalized were
harassed or worse through so-called sharia courts that spread through the prisons. Limited
resources to evaluate the prisoners effectively helped obscure what was occurring. Eventually,
even prisoners with strong evidence against them were released be-cause of the weaknesses
of the Iraqi court system and the refusal of the United States to share classified information.
In addition, some of the most extreme radicals who had been sentenced to death were freed
by successful ISIS attacks on what were by then Iraqi prisons after the United States withdrew
from Iraq at the end of 2011. ISIS has clearly learned much from its travails about how to fight
another day. The organization burgeoned because of its perceived success, dynamism and
sense of destiny. The Mosul victory in June 2014 reinforced these attributes by bringing vast
amounts of captured funds and some of the latest U.S. military equip-ment into the
organization’s grasp. Al-though ISIS now seemed to be the enemy of everybody and had become
the specific target of a hastily constructed U.S. alliance, its opponents’ strength was undermined
by mutual hatreds and lack of unity. The United States, for example, refused to admit Iran to its
anti-ISIS coalition even though the Shia state was clearly one of the most effective potential
opponents of ISIS. For the time being at least, ISIS could mo-bilize its potential strength to the
maximum while its myriad opponents were divided and unable to strike back in unison.
Offering concessions fractures terrorist groups—even if counterterror
operations have been effective, indefinite extension prolongs conflict
McIntosh 14- (Christopher, “Counterterrorism as War: Identifying the Dangers,
Risks, and Opportunity Costs of U.S. Strategy Toward Al Qaeda and Its Affiliates”,
Studies in Conflict & Terrorism Volume 38, Issue 1, 2015, pgs. 23-38, Taylor and
Francis)//WK
Wars requires enemies and treating Al Qaeda as a “monolith” with whom the United States is
at war limits options that involve positive incentives. Some experts have argued that limited
concessions have significant potential for undermining Al Qaeda in terms of amplifying
internal divisions and altering public support of both Al Qaeda and its affiliates. Moreover, they
could also serve to increasingly isolate those who pose the greatest risk to the United States.
Cronin argues: The U.S. objective must be to enlarge the movement’s internal inconsistencies
and differences. Al-Qaida’s aims have become so sweeping that one might wonder whether
they genuinely carry within them the achievement of specific local grievances. There is more
hope of ending such groups through traditional methods if they are dealt with using
traditional tools, even including, on a caseby-case basis, concessions or negotiations with
specific local elements that may have negotiable or justifiable terms (albeit pursued through an
illegitimate tactic). The key is to emphasize the differences with al-Qaida’s agenda and to drive
a wedge between the movement and its recent adherents. The historical record of other
terrorist groups indicates that it is a mistake to treat al-Qaida as a monolith, to lionize it as if it
is an unprecedented phenomenon with all elements equally committed to its aims, for that
eliminates a range of proven counterterrorist tools and techniques for ending it. These
concessions need not necessarily be policy concessions in terms of granting Al Qaeda affiliates
territory or recognizing the validity of their grandiose stated goals. Other types of concessions
can operate at an even lower level—“secondary concessions”—such as granting amnesty to
members of certain organizations. This can be done either as a blanket policy to undermine
public support and allow individuals to leave these groups or it can be done in exchange for
intelligence.61 Historically, amnesty programs have had success in eradicating groups that find
themselves near the end of their campaign—the Italian amnesty program was quite successful
in ending the threat posed by the Red Brigades in the late 1970s. Given the spread of Al Qaeda
into regional organizations focused on particular geographic areas with smaller groups fighting
alongside them, there is intuitive appeal to pursuing an overall strategy that retains elements
of each of these strategies as potentially successful options. It may turn out that these options
are inadequate, inappropriate, or ineffective due to the relative intransigence of Al Qaeda, its
affiliates, and the members that support it. Remaining in a state of war, however, inevitably
makes pursuing these options, even in a limited manner, much more difficult. One cannot
treat Al Qaeda as a “monolith” with whom the United States is at war and simultaneously
offer concessions (such as negotiation, cessation of hostilities, unfreezing of assets, release of
prisoners) to groups with which the United States is at war and whom the United States refuses
to recognize as legitimate actors in international politics. Remaining in a state of war with Al
Qaeda makes it so the United States almost exclusively relies on force as the primary strategy
for countering the threat from Al Qaeda, despite the existence of options and alternatives.
This strategy not only has physical, material, and emotional costs but it hinders, and in some
cases, outright precludes, nonmilitary alternatives that have historically had some success.
Repression and/or intervention as a force-based strategy for combating terrorism may have
been successful but only in past circumstances that do not line up with the specific U.S. case of
confronting a diverse, networked organization that operates in multiple disparate states.
Utilizing force and framing the U.S. response as war has in some ways been effective up to
this point and may even be the reason the United States is in a position where other
strategies could be more effective, but this is not a reason to doggedly commit to this strategy
indefinitely.
Link turn - CIA torture programs created the ISIS terrorist group
Press TV 14 – Iran’s television network (12/10/2014, “ISIL 'consequence' of US torture program: Former Guantanamo prisoner”,
http://www.presstv.com/detail/2014/12/10/389589/isil-consequence-of-us-torture-program/ // SM)
A former Guantanamo Bay detainee says the use of torture by the Central Intelligence Agency
at US-run prisons created the ISIL terrorist group in the Middle East. Moazzam Begg, who was
detained at the prison for nearly three years, said ISIL “was born in the dungeons of Abu
Ghraib, it was born in the dungeons of the Iraqi prisons, that were under US occupation, and
that's where this hatred and animosity” has festered. The US Senate Intelligence Committee
released Tuesday a redacted summary of its voluminous report on the CIA’s torture program
during the George W. Bush administration. Senate Intelligence Committee Chair Dianne Feinstein, however, said the CIA's
interrogation of suspected terrorists was far more brutal than the spy agency had disclosed. The
former prisoner said,
“So what we found now, we're in a situation that's worse than the beginning of the 'war on
terror'.” “When torture was used, when (former vice president) Dick Cheney said 'we have to
operate in the dark side', what he didn't say was what was going to be the consequence of
that torture," Begg added. The 6,200-page report is the result of a five-year Senate investigation into the 6.3 million
documents reviewing the failures of the agency that ran “the enhanced interrogation” rogram during the Bush administration.
No link - torture methods aren’t effective
Mazzetti 12/9 (Mark Mazzetti - Pulitzer winning journalist, masters from Oxford, The Boston Globe, Report says CIA lied about
torture activities, https://www.bostonglobe.com/news/nation/2014/12/09/set-release-report-cia-torturetactics/aCznrj8OCs97G6NKdVIRnL/story.html) //JS
WASHINGTON — A scathing report released by the Senate Intelligence Committee on Tuesday found that the Central Intelligence
Agency routinely misled the White House and Congress about the information it obtained from the detention and interrogation of
terrorism suspects, and that its methods were more brutal than the CIA acknowledged either to Bush administration officials or to
the public. The long-delayed report, which took five years to produce and is based on more than 6 million internal agency
documents, is a sweeping indictment of the CIA’s operation and oversight of a program carried out by agency officials and
contractors in secret prisons around the world in the years after the Sept. 11, 2001, terrorist attacks. It also provides a macabre
accounting of some of the grisliest techniques that the CIA used to torture and imprison terrorism suspects. Detainees were
deprived of sleep for as long as a week, and were sometimes told that they would be killed while in U.S. custody. With the approval
of the CIA’s medical staff, some CIA
prisoners were subjected to medically unnecessary “rectal feeding” or “rectal
hydration” — a technique that the CIA’s chief of interrogations described as a way to exert “total control over the detainee.”
CIA medical staff members described the waterboarding of Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, as a
“series of near drownings.” The report also suggests that more prisoners were subjected to waterboarding than the three the CIA
has acknowledged in the past. The committee obtained a photograph of a waterboard surrounded by buckets of water at the prison
in Afghanistan commonly known as the Salt Pit — a facility where the CIA had claimed that waterboarding was never used. One
clandestine officer described the prison as a “dungeon,” and another said that some prisoners there “literally looked like a dog that
had been kenneled.” During his administration, President George W. Bush repeatedly said that the detention and interrogation
program, which President Barack Obama dismantled when he succeeded him, was humane and legal. The intelligence gleaned
during interrogations, he said, was instrumental both in thwarting terrorism plots and in capturing senior figures of al-Qaida. View
Story Bush didn’t know about CIA tactics For four years, interrogators slammed and soaked prisoners without the president being
told exactly what was going on. List of the 119 prisoners detained Read the Senate’s report summary Bush, former Vice President
Dick Cheney and a number of former CIA officials have said more recently that the program was essential for ultimately finding
Osama bin Laden, who was killed by members of the Navy SEALs in May 2011 in Abbottabad, Pakistan. The Intelligence Committee’s
report tries to refute each of these claims, using the CIA’s internal records to present 20 case studies that bolster its conclusion that
the most extreme interrogation methods played no role in disrupting terrorism plots, capturing terrorist leaders — even finding Bin
Laden. The report said that senior officials — including former CIA directors George J. Tenet, Porter J. Goss and Michael V. Hayden —
repeatedly inflated the value of the program in secret briefings both at the White House and on Capitol Hill, and in public speeches.
Moments after the report was released Tuesday, Sen. Dianne Feinstein of California, the chairwoman of the Intelligence Committee,
gave a lengthy speech on the Senate floor describing the tumultuous history of her investigation and calling the CIA interrogation
program “a stain on our values and our history.” “Releasing this report is an important step to restoring our values and showing the
world that we are a just society,” she said. Speaking after Feinstein, McCain told the Senate that the American people “have a
right...to know what was done in their name.” Describing the practices outlined in the report as torture, McCain said that such
techniques “[produce] more misleading information than actionable intelligence.” As Feinstein was preparing to speak, the CIA
director, John O. Brennan, issued a response that both acknowledged mistakes in the detention and interrogation program and
angrily challenged some of the findings of the Senate report as an “incomplete and selective picture of what occurred.” “As an
agency, we have learned from these mistakes, which is why my predecessors and I have implemented various remedial measures
over the years to address institutional deficiencies,” Brennan said. But despite the mistakes, he added, “the
record does not
support the study’s inference that the agency systematically and intentionally misled each of
these audiences on the effectiveness of the program.” The entire report is more than 6,000 pages long, but the
committee voted in April to declassify only its 524-page executive summary and a rebuttal by Republican members of the
committee. The investigation was conducted by staff members working for Democratic senators on the committee. The New York
Times and other news organizations received an advance copy of the report and agreed not to publish any of its findings until the
Senate Intelligence Committee made them public. The Times did not receive an advance copy of the Republican rebuttal. Many of
the most extreme interrogation methods — including waterboarding — were authorized by Justice Department lawyers during the
Bush administration. But the
report also found evidence that a number of detainees had been
subjected to other, unapproved methods while in CIA custody. The torture of prisoners at times was so extreme that
some CIA personnel tried to put a halt to the techniques, but were told by senior agency officials to continue the interrogation
sessions. The Senate report quotes a series of August 2002 cables from a CIA facility in Thailand, where the agency’s first prisoner
was held. Within days of the Justice Department’s approval to begin waterboarding the prisoner, Abu Zubaydah, the sessions
became so extreme that some CIA officers were “to the point of tears and choking up,” and several said they would elect to be
transferred out of the facility if the brutal interrogations continued. During one waterboarding session, Zubaydah became
“completely unresponsive with bubbles rising through his open, full mouth.” The interrogations lasted for weeks, and some CIA
officers began sending messages to the agency’s headquarters in Virginia questioning the utility — and the legality — of what they
were doing. But such questions were rejected. “Strongly urge that any speculative language as to the legality of given activities or,
more precisely, judgment calls as to their legality vis-à-vis operational guidelines for this activity agreed upon and vetted at the most
senior levels of the agency, be refrained from in written traffic (email or cable traffic),” wrote Jose A. Rodriguez Jr., then the head of
the CIA’s Counterterrorism Center. “Such language is not helpful.” The Senate report found that the
detention and
interrogation of Zubaydah and dozens of other prisoners were ineffective in giving the government
“unique” intelligence information that the CIA or other intelligence agencies could not get from other means. The
report also said that the CIA’s leadership for years gave false information about the total
number of prisoners held by the CIA, saying there had been 98 prisoners when CIA records showed that 119 men had
been held. In late 2008, according to one internal email, a CIA official giving a briefing expressed concern about the discrepancy and
was told by Hayden, then the agency’s director, “to keep the number at 98” and not to count any additional detainees. The
committee’s report concluded that of the 119 detainees, “at least 26 were wrongfully held.
counterplans
Feinstein cp
Feinstein’s wrong
Yoo 12/13 (John Yoo, Dianne Feinstein's flawed torture report, Los Angeles Times, Dianne Feinstein's flawed
torture report, http://www.latimes.com/opinion/op-ed/la-oe-yoo-torture-feinstein-20141214-story.html#page=1)
//JS
Sen. Dianne
Feinstein's report last week on enhanced interrogations under the George W. Bush
administration suffers from fundamental flaws. The Senate Intelligence Committee took the
unprecedented step of proceeding without Republicans even though previous investigations have
always been bipartisan. It cherry-picked from millions of CIA documents and, unbelievably, refused to
interview any witnesses. Without bipartisanship and testimony, the report's claims cannot be trusted.
CIA directors from both parties, including George Tenet (who served under Presidents Clinton and Bush) and John Brennan (who
serves under President Obama), have rejected many of the report's factual findings and its central claim that the CIA systematically
misled the White House and the president and covered up the abuse of terrorists. The
report cannot quarrel with the
ultimate fact: ... The United States has succeeded in preventing a second large-scale terrorist attack
for the last 13 years. - But the Feinstein report has one positive virtue: It has moved the debate beyond legality to
effectiveness. To be sure, the senator takes a stab at claiming the interrogation methods amounted to illegal torture. The CIA, she
writes, “decided to initiate a program of indefinite secret detention and the use of brutal
interrogation techniques in violation of U.S. law, treaty obligations, and our values.” But the report does
not analyze the federal anti-torture law, which in 2001 prohibited interrogation methods with “the specific
intent” to cause “severe physical or mental pain and suffering.” Without torture prosecutions, we can't claim to be a nation of laws
Attorneys in the Bush Justice Department, including me, reviewed whether the CIA's proposed interrogation of Abu Zubaydah, an
Al Qaeda planner captured in March 2002 in Pakistan, met that law. The brief statute provided neither further definitions nor
examples of prohibited methods (in 2005, Congress passed a detailed law, the Detainee Treatment Act, because the earlier law was
vague). For us, as I think for most reasonable Americans, almost
all the CIA's proposed interrogation methods
did not constitute torture — the only one close to the line was waterboarding.
Cp prevents effective terror operations
Yoo 12/9 (John Yoo, Yoo: The Feinstein Report Cannot Deny a Clear Record of Success, December 9, 2014,
http://time.com/3626957/yoo-senate-torture-report-feinstein/) //JS
Any President
who followed Feinstein’s advice would fail in his or her fundamental duty to
protect the security of the United States Suppose you are a President who has just witnessed 3,000 American deaths
in a terrorist attack by a shadowy enemy. Intelligence strongly indicates that follow-on attacks will come. You have little information
on future attacks, but you know that the enemy will employ unconventional tactics that violate the very laws of war. The enemy
disguises its operatives as civilians, it attacks civilians and peaceful targets by surprise, and is willing to use any weapons, including
chemical and biological. Then, just a few months after the attacks, an amazing stroke of good fortune falls into your lap: The U.S.
captures the first high-ranking leader of the enemy. What would you do? According
to Senator Dianne Feinstein’s report
should allow only police station-style questioning.
Designed to build a rapport between the interrogator and the detainee, these methods can take weeks, if not
months, if they work at all. If al Qaeda leaders refuse to cooperate, the CIA and FBI will have to wait. You cannot treat
on Bush-era interrogation policies, released today, you
them differently, the Feinstein report implies; you must give them the same benefits that our Constitution reserves for American
citizens suspected of garden variety, domestic crimes. If
another attack occurs, perhaps worse than the first, the
President must still wait for the al Qaeda leaders to cooperate willingly. Any President who
followed Feinstein’s advice would fail in his or her fundamental duty to protect the security of
the United States. A President charged with this responsibility cannot wait weeks, months, or never; he must obtain
intelligence as soon as possible to stop the next attack. Under these emergency conditions, a chief executive would reasonably give
the green light to limited, but aggressive interrogation methods that did not cause any long-term or permanent injury. You might
even approve waterboarding in the time of emergency (remember, again, that this is three months after the attacks) if limited only
to enemy leaders thought to have information about pending attacks. As a member of the Justice Department’s Office of Legal
Counsel at the time of the 9/11 attacks, I thought that the CIA’s proposed interrogation methods were within the bounds of the
law—just barely. They did not inflict serious, long-term pain or suffering, as prohibited by the federal statute banning torture. We
realized then that waterboarding came closest to the line. But the fact that the U.S. military has used it to train thousands of U.S.
airmen, officers, and soldiers without harm indicated that it didn’t constitute torture. Limiting tough interrogation methods only to
al Qaeda leaders thought to have actionable information, during a time when the nation was under attack, further underscored the
measured, narrow nature of President Bush’s decision. The
Feinstein report cannot deny that most Americans
agree President Bush acted reasonably under these emergency conditions. Indeed, if the American
people concluded that Bush had made a grave mistake, it could have turned him out of office in the 2004 elections (which took place
after the stories about tough interrogations first leaked). And the
Feinstein report cannot deny the record of
success. Armed with intelligence from interrogations, electronic surveillance, and sources on
the ground in Iraq and Afghanistan, the Bush and Obama administrations have so far
prevented another massive al Qaeda attack on the U.S. homeland. Any terrorism expert inside or outside
of government in Fall, 2001 would have been astounded at this result in light of the openness of American society and al Qaeda’s
track record. For many years, interrogations yielded the great majority of intelligence that the U.S. held on al Qaeda, which allowed
the CIA and the U.S. military to carry out operations that have devastated the terrorist group. (If you don’t believe me, take a look at
the 9/11 Commission Report’s footnotes. Most of its important information on al Qaeda comes from interrogations.) Feinstein can
only deny the reasonableness of the choices made in the aftermath of 9/11 by claiming that they never worked. With imperfect
hindsight, her report claims that the CIA lied to induce President Bush to order aggressive interrogation methods and then did not
produce any unique, actionable intelligence. Worse yet, it alleges that the CIA lied to the White House, the National Security Council,
the Justice Department, and Congress about interrogations to exaggerate the intelligence gains and to downplay the harms to al
Qaeda detainees. Such a claim simply does not stand up to the truth. The Feinstein report contains a record of mistakes made by CIA
agents in the field, miscommunications between officers and headquarters, and misunderstandings between CIA officials and the
White House and Justice Department. But it does not show that the interrogations were a failure. It shows anything but. There are
two cases that leap out upon even a cursory reading of the report.
kritiks
framework
Politicizes ethics of care k2 mobilization
Hodson 10 [Derek, professor of education – Ontario Institute for Studies @ University of Toronto, “Science Education as a Call to
Action,” Canadian Journal of Science, Mathematics and Technology Education, Vol. 10, Issue 3, p. 197-206]
**note: SSI = socioscientific issues
The final (fourth) level of sophistication in this issues-based approach is concerned with students findings ways
of putting their values and convictions into action, helping them to prepare for and engage in
responsible action, and assisting them in developing the skills, attitudes, and values that will enable
them to take control of their lives, cooperate with others to bring about change, and work toward a
more just and sustainable world in which power, wealth, and resources are more equitably
shared. Socially and environmentally responsible behavior will not necessarily follow from knowledge of key concepts and
possession of the “right attitudes.” As Curtin (1991) reminded us, it is important to distinguish between caring about and caring for.
It is almost always much easier to proclaim that one cares about an issue than to do something about it. Put simply, our values are
worth nothing until we live them. Rhetoric and espoused values will not bring about social justice and will not save the planet. We
politicized ethic of care (caring for) entails active involvement in a local
manifestation of a particular problem or issue, exploration of the complex sociopolitical contexts in
which the problem/issue is located, and attempts to resolve conflicts of interest. FROM STSE
RHETORIC TO SOCIOPOLITICAL ACTION Writing from the perspective of environmental education, Jensen (2002) categorized
the knowledge that is likely to promote sociopolitical action and encourage pro-environmental behavior into
four dimensions: (a) scientific and technological knowledge that informs the issue or problem; (b)
knowledge about the underlying social, political, and economic issues, conditions, and structures
and how they contribute to creating social and environmental problems; (c) knowledge about how to bring about
changes in society through direct or indirect action; and (d) knowledge about the likely outcome or
direction of possible actions and the desirability of those outcomes. Although formulated as a model for
must change our actions. A
environmental education, it is reasonable to suppose that Jensen's arguments are applicable to all forms of SSI-oriented action. Little
needs to be said about dimensions 1 and 2 in Jensen's framework beyond the discussion earlier in the article. With regard to
dimension 3, students
need knowledge of actions that are likely to have positive impact and
knowledge of how to engage in them. It is essential that they gain robust knowledge of the
social, legal, and political system(s) that prevail in the communities in which they live and develop a clear
understanding of how decisions are made within local, regional, and national government and within
industry, commerce, and the military. Without knowledge of where and with whom power of
decision making is located and awareness of the mechanisms by which decisions are reached,
intervention is not possible. Thus, the curriculum I propose requires a concurrent program designed to
achieve a measure of political literacy, including knowledge of how to engage in collective action with
individuals forefront of discussion during the establishment of policy.
torture reps
Perm do both—effective separation of powers are a prerequisite to channel
dissent into institutions
Pillard 6- *Professor, Georgetown University Law Center. She served as Deputy Assistant
Attorney General in the Office of Legal Counsel from 1998 to 2000 (Cornelia, “Unitariness and
Myopia: The Executive Branch, Legal Process, and Torture”, 81 Ind. L.J. 1297, pgs. 1297-1312,
HeinOnline)//WK
Permitting diverse views and encouraging critique during the process of deliberation and
decision making is a principal structural challenge of executive branch legalism. The
importance of assuring that a robust range of views are brought to bear on legal decision
making is underscored by what we know about the risks of leaving the law in the hands of
like-thinking people. Many of those risks were understood by the Founders, and the separation
of powers is one artifact of their appreciation of the rights-protecting potential of pluralistic
structures. In the context of one-party dominance of the three branches, however, the rightsprotecting effect of separation of powers is reduced. That effect is further diminished
regarding matters of national security and war, which trigger partially unreviewable power in
the political branches. Following 9/11, with Republicans dominating all three branches and
war ongoing, risks of governmental myopia ran high. Recent social science bears out the
Framers' intuitions, also highlighting the importance of dissensus. New empirical studies on
"group polarization" are strikingly relevant to executive branch legal decision making in the
absence of diverse inputs. Group polarization is what happens when like-minded people get
together to discuss an issue. They tend to come out thinking a more extreme version of what
they thought going in."1 Even persons acting in complete good faith are more likely to err
when they deliberate only with people with whom they already are predisposed to agree. By
many accounts, a hallmark of the administration of George W. Bush has been the aggressive
elimination of dissensus.' 2 This administration has employed extraordinary secrecy, siderailed civil servants and others who do not toe the party line, and proceeded by means of
results-oriented, top-down rather than bottom-up decisional processes. 13 If executive branch
legal analysis has any chance of being objective and standing up to scrutiny, however, the
decisions should emerge out of a range of dissonant inputs, and should include not only
spokespersons for broad executive power, but also perspectives of people specifically devoted
to protecting individual rights. There are several different ways to foster consideration of a
range of views in executive legal decision making. Some would require institutional changes, but
many are familiar. The various procedural or structural safeguards discussed here can be
redundant of one another, and need not all operate fully in any particular decisionmaking
process to assure adequate dissensus. When all are absent or compromised, however, as
appears to have been the case with the Torture Memo, it is predictable that legal advice will be
less tested, objective, and sound. This article identifies four processes or structures that can
contribute towards healthy dissensus. The first is transparency. When the executive makes
public the fact that an important legal issue is under consideration, it permits input, analysis,
and critique from the media, the electorate, lobbyists, nongovernmental organizations,
Congress, and the academy. Second, intra-branch consultation can tap into the internal
diversity of components and personnel within the executive branch. Even when decision
making remains nonpublic so external critiques are absent, intra-executive consultation can
be a source of healthy skepticism of proposed executive legal decisions. Third, and relatedly,
consulting civil service employees, and not only political appointees, can add to diversity and
dissensus, because in many ways the political and institutional perspectives, knowledge base,
and culture of the civil service differ from those of political appointees. Finally, designated
boards, commissions, and officers within or overseeing the executive should be charged with
taking an armslength view to help to forestall and to respond to any executive action that
might be unwise, unlawful, or even corrupt.
Torture reifies American exceptionalism and justifies the war against the
alterity
Richardson 11 (Michael. Doctorate of Creative Arts at the University of Western Sydney. “Writing Torture’s Remnants:
Sovereign Power, Affect and the War on Terror”. February 2014. http://www.inter-disciplinary.net/wpcontent/uploads/2011/02/richardsontpaper.pdf)//JuneC//
POWER AND THE TORTURED BODY Until
the end of the Eighteenth Century torture was almost
exclusively a juridical instrument (Langbein 1976). Something changed with the institution of modern juridical
practices, the emergence of democracies, and codified human rights. Torture ceased to primarily be a perverse tool in the pursuit of
justice and became an instrument for the assertion of power (Peters 1985; Weschler 1990). Democracies became the true torture
innovators as the need to keep torture hidden drove the invention of new techniques (Rejali 2007). Other states use more brutal
methods, but these techniques, clinically articulated and executed, culminated with America in the war on terror (McCoy 2006).
How might we understand this newly political torture and its refiguring of the relationship between life and power? Foucault
described the fundamental dynamics of modern states as ‘biopower’ and ‘biopolitics’ (2007).
We might think of biopower in Giorgio Agamben’s terms as “the concrete ways in which
power penetrates subjects' very bodies and forms of life” (Agamben 1998: 5). In modernity,
with more of life continually made subject to sovereign power, whether through human rights
codes or anti-terror surveillance laws, the immediate potential of humanity is, increasingly, to
be cast into the state of exception; a space in which law no longer applies yet the force of
itself remains (Agamben 2005: 38). Thus in Kafka’s The Trial, Joseph K. is made subject not to law itself but to what
remains in its absence: a kind of arbitrary force of law residing only in its own sovereignty (Kafka 1953). So too the detainees
brought before American combat status review tribunals to defend themselves against
charges of which they are never informed. Guantanamo, Bagram Air Base and the ‘black sites’
can be read as echoes of what Agamben calls the camp. This is a purely biopolitical space
lacking any mediation between life and power, epitomised by the Nazi concentration camps
where “inhabitants were stripped of every political status and wholly reduced to bare life”
(Agamben 1998: 171). 2 There are no crematoriums at Guantanamo, yet a similarity of form is
discernible (Gregory 2006). Both operate as states of exception, both seek to make bodies
utterly subject to power and in both cases, it is their status as camp – positioned within states
of exception, outside the code but within the force of law – that makes possible the torture
chamber. In a certain sense, the torture chamber is a kind of camp writ small: it is this body here subjected to raw sovereign
power in this moment now. The camps of the war on terror subsume the subject into the singularity of American power, to
somehow make that power real. Survival
demonstrates both victory and humanity; it transforms enemy
combatants into symbols of power and security, while affirming to the American state that its
ideals remain intact, the flesh has not been pierced. Here we find the reversal of Kafka’s penal colony, where
the torture that leads to death writes deeply into the very flesh (Kafka 2003). The entire body, both physical and
political life, is made the full target of torture. The victim’s body is not only held within the
torture chamber, it becomes a kind of chamber itself: no skin is pierced, yet pain is felt; no
electricity surges, yet temporality and all the senses are assaulted. How, when the end of biopower is
sublimation of the individual to power, can such a subject speak?
Discussions of torture policy are important—leads to political solutions
Del Rosso 15- assistant professor in the Department of Sociology and Criminology at the
University of Denver (Jared, “Talking About Torture: How Political Discourse Shapes
the Debate”, Columbia University Press, pgs. 3-4)//WK
A constructionist approach to torture allows us to understand how it is that torture becomes a
matter of public concern in the first place. It is well documented that political problems must
be defined and publicized; people must draw attention to evidence about their presence and
harms. Moreover, public and political responses to evidence of problems are rarely
proportional to changes in those indicators. Those that evidence suggests have significant social
harms can be effectively ignored tor extended peri- ods of time; this is a core observation of
Stanley Cohens work on denial." Torture was more intensely debated in the months before and
after the 2008 election than those preceding and following the 2004 election. This occurred
even though the most controversial instances of torture occurred in 2001 and 2003 and
became public knowledge in 2004 and 2005. Politi- cal attention to detention, interrogation, and
torture did not change incre- mentally in proportion to changes in information regarding the
treatment of detainees in U.S. custody- Congress largely overlooked problems— including
reports of detainee abuse at the Metropolitan Detention Center in New York in late 2001 as well
as March 2004 reports of detainee abuse at Abu Ghraib prison—until photographs taken at Abu
Ghraib became public in April 2004. To understand why this is so, this book considers the
interaction between political attention to torture and the available evidence of torture's use,
rather than assuming that the former straightforwardly follows the latter. Typically, research
focuses on the direct study of torture, examining its historical use and prevalence. Such studies
use accounts of torture— survivors' testimony, official investigations, human rights reports, and
investigative reporting—as data that provide more or less transparent windows onto the
underlying reality of the practice. Such studies—many of which I cite in this book—have
laudable aims. By studying the historical and geographic distribution of torture, these studies
have uncovered the social, cultural, political, and institutional conditions out of which torture
emerges. By interviewing and examining victims of torture, such studies also expose the
social, psychic, and physical damage that torture causes, as well as the efficacy of the medical
and psychological treatment of victims. And, by interviewing and examining perpetrators,
such works also show that the practice has harmful consequences for torturers." Given the
lengths that governments go to practice torture covertly, it remains necessary for scholars,
human rights investigators, and the press to continue compiling evidence of the use and
harms of torture. This is particularly true at a moment when what really happened to
detainees in U.S. custody remains contested. Why, then, study talk of torture, rather than take
up the important work or documenting its use, the causes of its use, and its consequences?
Would it not be more appropriate to study this problem directly, to learn more about U.S.
detention and interrogation operations, and to contribute to our understanding of how to
control or prevent the abuse and torture of detainees?I am sympathetic to these questions,
particularly since I, too, am interested in what really happened in U.S. detention facilities and
the consequences of those occurrences. Likewise, I accept the control and prevention of
torture to be a political good.
topicality
domestic surveillance
CIA spying on Senate computers is domestic surveillance
Dreazen and Naylor 5/18 - Yochi Dreazen is managing editor, news, at Foreign Policy and author of The Invisible Front.
Seán D. Naylor is Foreign Policy’s intelligence and counterterrorism senior staff writer and author of the forthcoming book Relentless
Strike. (2015, Yochi Dreazen and Seán D. Naylor, Foreign Policy, “Mission Unstoppable: Why Is the CIA Running America's Foreign
Policy?”, http://foreignpolicy.com/2015/05/18/mission-unstoppable-cia-obama-brennan-middle-east-torture-report-drones/ // SM)
The cause for her change of heart was a dispute that seemed more like the plot of a spy novel than an actual series of events
capable of bringing the relationship between the CIA and its Capitol Hill overseers to a 40-year low. Starting in 2009, Senate
investigators had spent more than five years researching and fine-tuning a 6,000-page report probing the agency’s Bush-era
detention and interrogation policies, which included barbarous techniques like waterboarding that Obama himself had bluntly
described as torture. To research the program, staffers had to use computers, provided by the agency, in a CIA facility in Northern
Virginia. In her lengthy floor speech, Feinstein
accused the CIA of illegally searching the computers the
staffers were using to examine millions of highly classified documents. She said the move was
a potential violation of the Fourth Amendment, which protects against “unreasonable searches and seizures”; the Computer
Fraud and Abuse Act, a 1986 law that makes it a federal crime to access government computers without permission; and
Executive Order 12333, which bars the CIA from carrying out domestic surveillance activities.
CIA does domestic surveillance
EPIC no date (EPIC is an independent non-profit research center in Washington, DC. EPIC
works to protect privacy, freedom of expression, democratic values, and to promote the Public
Voice in decisions concerning the future of the Internet. EPIC pursues a wide range of program
activities including public education, litigation, and advocacy, “EPIC v. CIA - Domestic
Surveillance”, http://epic.org/foia/cia/domesticsurveillance.html//cc)
EPIC FOIA Document Reveals CIA Collaboration in Domestic Surveillance: According to a Central
Intelligence Agency Inspector General's report obtained by EPIC under the Freedom of
Information Act, the CIA collaborated with the New York Police Department in domestic
surveillance efforts. The CIA is prohibited from participating in domestic surveillance, but the
report finds that the agency had embedded four officers within the NYPD over the past decade
and that collaboration with the NYPD was fraught with "irregular personnel practices," that it
lacked "formal documentation in some important instances," and that "there was inadequate
direction and control" by agency supervisors. The Inspector General's Report was prepared in
response to an investigation by the Associated Press which showed that the NYPD and the CIA
had collaborated on a program of domestic surveillance targeting Muslims and persons of
Arab descent. The CIA originally claimed that there was "no evidence that any part of the
agency's support to the NYPD constituted 'domestic spying,'" a statement that is contradicted by
the Inspector General's Report obtained by EPIC. A front-page story in the New York Times
discusses the findings in more detail. The case is EPIC v. CIA, Case No. 12-02053 (D.D.C. filed Dec.
20, 2012). For more information see: EPIC: EPIC v. CIA - Domestic Surveillance and EPIC: Open
Government. (Jun. 27, 2013)
electronic surveillance
Plan curtails electronic surveillance
Crockford 14 (Kade. Director, Technology for Liberty Project, ACLUm. “Watch CIA director John Brennan lie about spying on
congress”. 4 August 2014. PrivacySOS. https://privacysos.org/node/1479)//JuneC//
In March 2014, Senator Dianne Feinstein accused the CIA of spying on Senate Select Intelligence Committee members who were
compiling a report on CIA torture programs. John Brennan went on television and told the world it wasn't true. "The allegations of
CIA hacking into senate computers...nothing could be further from the truth. We wouldn't do that. That's just beyond the scope of
reason," Brennan said in a video-taped interview at the Council of Foreign Relations. Anyone
familiar with the CIA's
history likely won't be terribly surprised that the CIA director lied to the public about his
agency's illegal spying on congress. The CIA isn't known for its respect for the separation of
powers, the rule of law, or the truth. But it's useful to have fresh proof, illustrating that the
CIA considers itself to be above the law. And the CIA's spying on congress was actually much
worse than the headlines reveal. McClatchy, which has been breaking all the stories related to
this scandal, reports that CIA employees didn't just look at senate staffers' computers to
examine their documents. The paper's reporting suggests that CIA also operates an email
surveillance program targeting senate intelligence staffers. The CIA inspector general who
investigated allegations of improper spying found that "CIA security officers conducted
keyword searches of the emails of staffers of the committee’s Democratic majority and
reviewed some of them," McClatchy reports. How the hell does the CIA have access to staffers' emails? Did they
have warrants to spy on congress members' employees? Of course not. What's President Obama's response to this
madness? He has "full confidence" in John Brennan, the CIA director who oversaw a violation
of the separation of powers and illegal spying on congress, and then lied about it to the public.
Full confidence.