NSL AFF
1ac
Plan: The United States federal government should change National Security Letter
policy to allow judicial review of non-disclosure requirements, mandate that agencies
discard non-relevant information gathered from subpoenas, and require subpoena
requests to use the articulable and reasonable facts standard.
Advantage 1: Separation of Powers
NSLs have massively expanded in the status quo- PATRIOT Act reforms have made
them easier for the FBI to use- this has caused widespread abuse of power
Wells in 2012 (Desirae L. Wells, “NATIONAL SECURITY LETTERS: WHY REFORM IS NECESSARY”,
LexisNexis.com, Yeshiva University 2012, 18 pgs., Database, 6/28/15,
http://www.lexisnexis.com.proxy.library.umkc.edu/hottopics/lnacademic/)
As part of the Reauthorization Act of 2006, Congress directed
the Department of Justice (DOJ), Office of the Inspector
General (OIG) to review the effectiveness and use, including any improper or illegal use of NSLs issued by the DOJ. The OIG
issued two Reports. n74 The first in 2007 addressed the FBI's use of NSLs for calendar years 2003 through 2005. The second in 2008 addressed
the FBI's use of NSL for calendar year 2006. The OIG Reports
confirmed that the Patriot Act transformed NSLs into a
much more frequently employed investigatory tool. Specifically it stated that "the FBI issued approximately
8,500 requests in 2000 the year prior to the passage of the Patriot Act and after the passage of the
Patriot Act, the number of NSL requests increased to approximately 39,000 in 2003, 56,000 in 2004 and 47,000
in 2005. n75 The Reports made a distinction between NSLs and NSL Requests - a single NSL may contain multiple requests for information. The
OIG Reports specified that the 39,000 requests in 2003 were contained in approximately 12,000 letters and the 47,000 requests in 2005 were
contained in 19,000 letters. n76 According to the OIG Reports, there were 3 main reasons for the dramatic increase in the number of NSL requests issued starting in 2003. n77 First,
the Patriot Act eliminated the requirement that an NSL be issued only if
"there are specific and articulable facts giving reason to believe that the person or entity to whom the
information sought [*230] pertains is a foreign power or an agent of a foreign power." n78 Instead, the
information need only be "relevant to an authorized investigation to protect against international
terrorism or clandestine activities," n79 a much lower standard. Second, previously a NSL had to be approved by a
senior FBI official at FBI headquarters but NSLs could now be authorized by Special Agents in Charge at FBI field
offices. As a result, approval is no longer a lengthy process and generally takes only two to five days. n80 Third, in 2003, the
Attorney General issued revised guidelines governing the use of NSLs in FBI national security investigations (the "NSI Guidelines"). The
revised NSI guidelines permit NSLs to be issued during preliminary investigations; under the old
guidelines NSLs could only be issued during full investigations. n81 The OIG Reports found that in addition to significantly
underreporting the number of NSL requests issued, the FBI failed in a number of other significant ways as well. According to the reports, the
agency under-reported violations arising from the use of NSLs; sought information not permitted by the
statute; issued NSLs without proper authorization; issued over 700 "exigent letters" requesting the type of information
covered by § 2709 without following the process for obtaining an NSL; and repeatedly failed to properly adhere to the
FBI's own internal documentation requirements for approval of an NSL. n82
Recent reforms fail- they are non-binding and contain multiple loopholes
Sledge, Matt 02/05/15 (Huffington Post ‘The Gaping Hole In Obama's FBI Surveillance Reform’http://www.huffingtonpost.com/2015/02/04/national-security-letter-reform_n_6617572.html)
The federal government this week announced a reform to an investigative tool that gives the FBI sweeping
surveillance power. But a target of that surveillance said the change appears to leave investigators with vast
power to snoop -- in secret. The FBI uses national security letters to force business owners to hand over
records on their customers, as long as the records are related to a national security investigation. No court approval is
needed, and the FBI can impose a gag order on recipients, forbidding them from revealing even the
existence of a letter. The gag orders can last a lifetime. But on Tuesday, as part of surveillance reforms made in the
wake of National Security Agency leaker Edward Snowden's revelations, the Office of the Director of National Intelligence
announced that national security letter gag orders will now expire after three years, or when an
investigation ends. The new rules contain a gaping exception, however: FBI agents can essentially write
themselves a permission slip to keep a national security letter secret past the deadline, as long as they
receive approval from supervisors. "This exception is essentially full discretion to FBI officials," said Andrew
Crocker, a legal fellow at the Electronic Frontier Foundation. "It is an exception that doesn't have a lot of standards associated with it. This is
kind of the problem with the (national security letter) statute to begin with." For years, Crocker and other lawyers at the privacy watchdog have
been fighting to force the federal government to reveal in court the name of a phone company challenging one gag order. A federal district
judge handed the foundation a major victory in 2013, ruling that the gag order violates the First Amendment's right to free speech. The case -which stems from a 2011 government order -- has remained on appeal since then. The FBI has wielded national security letters for decades, but
the authority to do so was vastly expanded by the post-9/11 Patriot Act. Department of Justice inspector general reports released since then
have documented widespread abuse of the letters. But the
bureau keeps using them, to the tune of 21,000 letters in
the 2012 fiscal year. Because the recipients of all those letters are often barred by the gag orders from speaking out,
their voices in the debate has been silenced. That changed a little in 2010, when Nicholas Merrill was finally able to reveal as
the result of a long court battle that his small Internet service provider had received a letter -- in 2004. Merrill was back in court in December,
trying to force the government to allow him to reveal what it had sought (he never supplied them with any of data after the government
backed down on its original request, but that portion of the gag order still stands). If the reforms announced this week have affected his case,
Merrill wrote to HuffPost in an email, "nobody has told me." He said the government has shown no sign of surrender in trying to block him from
speaking out. The
White House last year rejected a review panel's proposal to make national security letters
subject to court order. Administration counterterrorism adviser Lisa Monaco heralded the minor changes to some national security
letters' gag orders in a statement on Tuesday. Merrill was unimpressed. "The issue at hand is that the government doesn't want me to discuss
what was in the third page of the (national security letter) I received, namely, the types of data they demanded (and I did not hand over),"
Merrill wrote. "The problem with not being able to discuss that openly, is that is the heart of the public policy issue -- what kinds of information
can the government get on an innocent citizen without a warrant, or even any suspicion of wrongdoing."
Unchecked executive power over surveillance undermines the fourth amendment and
separation of powers- lack of judicial review ensures overreach
Kenneth R. Logsdon in 2008, J.D., University of Illinois College of Law, UNIVERSITY OF ILLINOIS
JOURNAL OF LAW, TECHNOLOGY & POLICY 2008 U. Ill. J.L. Tech. & Pol'y 409, lexis
The electronic surveillance that the United States Government has participated in post-9/11 implicates
several constitutional principles: namely, the First Amendment, Fourth Amendment, and the constitutional
doctrine of separation of powers. n173 As stated by the First Amendment and Supreme Court decree, if a statute allows for any
governmental discretion in limiting speech, like that found in the PA and PA II, such discretion must be subject to objective standards. n174
Regarding the Fourth Amendment, the Executive has relied upon AUMF and Article II to argue it has the constitutional authority to operate the
TSP. n175 However, current statutes already provide contingencies for a state of war; nevertheless, there has been no official declaration of
war. n176 Furthermore, the
Supreme Court has explicitly stated that the Executive Branch cannot circumvent
the Fourth Amendment even in a time of war. n177 According to the constitutional doctrine of separation
of powers, the Executive Branch's authority is greatest when Congress explicitly allows an [*426] action,
and it is at its lowest ebb when the Executive Branch takes any action incompatible with the expressed
or implied will of Congress. n178 In addition, the Executive Branch must respect the Judicial Branch's
constitutional authority, and any attempt by the Executive Branch to limit judicial review and discretion
is an infringement upon such authority. n179 A. First Amendment The First Amendment of the United States Constitution
states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech ... ." n180 This fundamental right cannot easily be dispensed with, and when Congress implements a statute allowing governmental
discretion to limit speech, that discretion must be limited by objective criteria. n181 Both the PA and PA II allow governmental discretion in the
administration of a nondisclosure request; thus, they must be limited by objective criteria. n182 The Supreme Court of the United States has
devised a test when such discretion is present, in order to prevent the dangers associated with censorship. n183 This test, known as the
Freedman test, states: the government must exercise its discretion within a system that allows for "procedural safeguards designed to obviate
the dangers of a censorship system."... (1) any restraint in advance of judicial review may be imposed only for "a specified brief period," (2) any
further restraint prior to "a final judicial determination on the merits" must be limited to "the shortest fixed period compatible with sound
judicial resolution," and (3) the burden of going to court to suppress the speech and the burden of proof once in court must rest on the
censoring government. n184 Prior to PA II, both the first and second factors under the Freedman test would have likely failed; however,
changes made in PA II implemented additional judicial safeguards not present in PA. n185 Even so, the third factor of the Freedman test still is
not satisfied under the newly enacted PA II. n186 Particularly, factor three of the Freedman test requires that the burden of proof in the
suppression of speech rest upon government. n187 Problematically, title 18, section 2709(c) of the United States Code "grants broad discretion
to the FBI to completely restrict constitutionally protected speech on the basis of its [*427] content, and it places the burden of challenging this
restriction in court solely on the NSL recipient ... ." n188 The government's response to First Amendment criticism focuses largely on ostensibly
analogous statutes that have avoided abrogation by the courts. n189 In particular, the government focuses on statutes that allow it to apply
wiretaps, pen registers, and FISA subpoenas. n190 To bolster this argument, these statutes also do not have the same broad ability of judicial
review as that prescribed by the PA II. n191 However, those statutes differ from those prescribing use of NSLs because the court authorizes the
search ex ante and provides judicial safeguards after the search has concluded. n192 Additionally, both the wiretap and pen register statutes
"imply that communications providers might be free to discuss wiretaps and pen registers, as well as their knowledge of underlying criminal
investigations, after those investigations are completed." n193 The ability of the government to restrict speech in grand jury cases well after the
time period in which it was necessary has also been found to be unconstitutional. n194 A law prohibiting grand jury witnesses from disclosing
their testimony after the jury term has ended violates the First Amendment to the United States Constitution. n195 On the other hand, a law
preventing grand jury witnesses from revealing their testimony post-jury term is acceptable, so long as the criminal investigation of the crime
continues. n196 Conversely, the revisions provided by PA II regarding NSLs "continues to authorize nondisclosure orders that permanently
restrict an NSL recipient from engaging in any discussion related to its receipt of the NSL," thus, violating the First Amendment. n197 1.
Executive Action Post-9/11 and the First Amendment n198 England's history of the freedom of speech and press is intertwined with the scope
of a search and seizure. n199 "This history was, of course, part of the [*428] intellectual matrix within which our own constitutional fabric was
shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an
instrument for stifling liberty of expression." n200 The TSP created by the Executive Branch may be one such instance where the government's
ability to search electronic communications will have a direct impact on one's proclivity to freely express himself or herself. n201 Though this
observation may seem hyperbolic, "history abundantly documents the tendency of Government - however benevolent and benign its motives to view with suspicion those who most fervently dispute its policies... . Protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political beliefs." n202 B. Fourth Amendment n203 "The warrant requirement
[within the Fourth Amendment] has been a valued part of our constitutional law for decades ... . It is not an inconvenience to be somehow
"weighed' against the claims of police efficiency." n204 1. Executive Action Post-9/11 and the Fourth Amendment The
warrant
requirement is an important functional element of restrained governance to prevent even wellintentioned, yet over-enthusiastic, governmental officials, from exceeding their constitutional
boundaries. n205 Yet, the aforementioned TSP was created because the Executive Branch believed such efficiencies were necessary, and
current surveillance laws inadequate, to protect American citizens from future terrorist attacks. n206 The Executive Branch argued this
efficiency is necessary in a state of war, which we are currently in. n207 Specifically, the Executive Branch stated the Congressional authority to
fight against terrorism, as found in AUMF, is all [*429] that is needed to justify such an expansive surveillance program. n208 However, the
AUMF is not a declaration of war, but Congressional "authorization" to use force. n209 If the Executive Branch is going to argue it has "war
powers" to implement the TSP, should not such an assertion require an actual declaration of war? Furthermore, even if such a declaration were
granted by Congress, would that justify the Executive Branch in ignoring a FISA provision (a mere Congressional act) that explicitly states what
actions are allowed by the President in a time of war? If not, how would it be remotely possible for the Executive Branch to have the
constitutional authority to disregard the Fourth Amendment? "The Bill of Rights of the United States Constitution must be applied despite
authority granted by the AUMF." n210 Significantly, these constitutional restrictions are also applicable to the Executive Branch's constitutional
powers embedded in Article II. n211 If this were not so, then Congress's attempt to restrain the Executive Branch's actions during war, as found
within FISA, is an unconstitutional Congressional infringement upon Article II. n212 Hitherto, "there does not appear to be any precedent even
vaguely on point - that is, where Congress legislated in an area within its legislative authority and it was nonetheless held by the Supreme Court
that the President had inherent authority to act contrary to the statute." n213 The argument that Article II of the United States Constitution
allows the Executive Branch to avoid adhering to restrictions within the Bill of Rights, in a time of war, was erroneous when proclaimed by the
Nixon Administration and is equally erroneous today. n214 In fact, the only Supreme Court case addressing the use of wiretaps for national
security purposes is United States v. U.S. District Court. n215 In this case, the Supreme Court concluded that domestic electronic surveillance to
further the Executive Branch's obligation to protect national security is insufficient to circumvent the Fourth Amendment. n216 In summary,
the Supreme Court of the United States recently and concisely declared: Striking the proper constitutional balance here is of great importance
to the Nation during this period of ongoing combat. But it is equally [*430] vital that our calculus not give short shrift to the values that this
country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's
commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles
for which we fight abroad. n217 C. Separation of Powers When
the Founding Fathers gathered together to create a new
nation they did so with the knowledge of history and with the intent to create a government that would
restrain itself. n218 In so doing, they devised a Constitution that created three branches of government with each part assigned distinct
functions and requisite powers. n219 Though each branch was separate, they were coequal and "while
independent of the others, the workings of each were integrated as a whole ... to guarantee that lasting
stability demands that each branch honors its own bounds of authority, and those of the others." n220
Succinctly stated, "our national experience teaches that the Constitution is preserved best when each part of
the Government respects both the Constitution and the proper actions and determinations of the other
branches." n221 Recent legislation sought to rectify constitutional deficiencies and explicitly allow the
Executive Branch the ability to perform surveillance without a warrant. n222 This legislation, known as the
Protect America Act of 2007, was enacted in August 2007 and allowed the Executive Branch to electronically surveil a
suspected terrorist reasonably believed to be outside the United States for up to one year without a
warrant and provided immunity to telecommunication providers that assisted the government in doing
so. n223 However, Congress was cautious with such a grant of power and built in a sunset provision that automatically nullified the law at the
end of 180 days if there was no subsequent congressional action. n224 Congress did not act and the law sunset February 17, 2008. n225
Nevertheless, notwithstanding Congressional
prudence to build in a sunset provision, such explicit
authorization does not ameliorate the aforementioned constitutional criticism. n226
NSLs are uniquely key- they represent the most sweeping and permanent surveillance
power of the PATRIOT act by allowing the FBI to have unfettered access to any
individual’s personal records.
Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and
Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in
Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymakin
g%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,
But despite the extensive proceedings, congressional
debates and decisions have often been superficial and
uninformed—resulting in policies that unnecessarily weakened investigations, compromised privacy rights, or both.
Members of Congress, unfortunately, have few incentives to conduct thoughtful formulation of
surveillance policy. They face little political risk from bolstering security at the expense of privacy,
because the loss of privacy directly and immediately affects a relatively small number of people—those
under investigation. In terms of electoral rewards, oversight of the executive does not compete well with legislating, let alone fundraising or
speechmaking.7 And all too often, members of Congress have greater interest in scoring partisan points or defending their party’s president
than in conducting careful performance evaluations. In addition to the deficient incentives, Congress has structural weaknesses that have
undermined the ability to strike an intelligent, democratically sanctioned balance between security and individual rights. Looking at how
Congress developed and evaluated the Patriot Act over the last decade, we see five varieties of defective policymaking, with major
consequences for the results. 1. Casual treatment of crucial provisions To begin with, Congress
has failed to give serious, careful
attention to some of the most important provisions in the legislation. When the Patriot Act was first being drafted in
the immediate aftermath of 9/11, Republicans on the House Judiciary Committee insisted that surveillance provisions include four-year sunsets,
requiring reauthorization votes in 2005—an approach readily endorsed by the committee’s Democratic minority.8 Because deliberations were
conducted in haste, the committee wanted the new investigative tools to be reexamined in a less turbulent atmosphere. They worried that
relatively lax rules for seizing private records and conducting electronic surveillance could lead to fishing expeditions and violations of privacy
rights. Instead of adopting the House approach, however, Congress
acted on a Senate bill drafted in part by the Bush
administration. Lawmakers placed sunsets on most, but not all, investigative provisions.9 In fact, they
overlooked perhaps the most problematic tool in the bill—national security letters—and made it
permanent from the start.10 National security letters are a type of administrative subpoena—issued by the
Federal Bureau of Investigation (FBI) on its own authority, without judicial supervision.11 They allow investigators to
seize a person’s communication records, banking receipts, and credit information, without having to
show evidence that the target is a spy or terrorist.12 In effect, agents can use these letters to gather
records on anyone they choose. Because the subpoenas come with no requirement to discard non-relevant information, the FBI
has sometimes collected the records of innocent Americans and kept them indefinitely.13 In an extraordinary
failure of legislative deliberation, not a single member of Congress mentioned national security letters during
the floor debates in 2001. Nor did any member raise concerns about the government’s prolonged retention of non-relevant
information during the reauthorization debates four years later. This failure to discuss national security letters was in our
view the most severe deficiency in deliberations on the Patriot Act. If the Act created risks of privacy
violations and fishing expeditions, it was mainly through these administrative subpoenas . Only in late 2005,
when the Washington Post revealed that the FBI was issuing more than 30,000 national security letters per year—“a hundredfold increase over
historic norms”—did some members of Congress raise concerns.14 Even then, many Republicans dismissed the report and showed greater
interest in defending the Bush administration than in determining whether privacy violations had occurred. Eventually,
an
independent audit confirmed the Post story. Between 2003 and 2005, the FBI had issued about 140,000
national security letters and had seized private documents on almost 24,000 U.S. persons.15 These records
were added to searchable databanks, accessible to 17,000 federal agents.16 However, by the time these findings were
released in 2007, the Patriot Act had long since been reauthorized, without change in the national security letters provision. As we
discuss later, although greater controls were eventually placed on the letters, Congress played almost no role in instituting the changes.
Unchecked executive discretion risks escalation in times of conflict-it encourages preemption and rash decision making
Holmes, 2009 Holmes, Stephen. "The Brennan Center Jorde Symposium on Constitutional Law: In
Case of Emergency: Misunderstanding Tradeoffs in the War on Terror." California Law Review, Inc
(2009): n. pag. Web. 28 June 2015
When faced with a serious threat to national security, the most aggressive response will not always be
the most effective response. In a bullfight, the bull loses the contest not because it is insufficiently aggressive, but rather because the
matador, through provocative gestures, uses the wounded beast's aggressive impulses and impaired vision against it, repeatedly luring it into
futilely and exhaustingly charging a phantom target. n108 Any
system that defends unmonitored executive discretion
exposes itself to the danger that the executive officials who happen to be in power at the time will
feel that inaction is psychologically intolerable or, by sheer bad luck, will have a bias toward
aggressive action that, while psychologically satisfying (not to mention electorally advantageous), in no way corresponds to
the requirements of the situation. n109 [*346] Because those who attacked the United States violated an absolute international
ban on terrorism, American authorities may have been tempted to avenge the injury - an eye for an eye - by violating an equally absolute
international ban on torture. After suffering a severe blow inflicted by an avowed enemy, the surviving victims of an attack are often obsessed
with reestablishing an image of themselves as active rather than passive. They have to "do something" without giving too much thought to the
specific consequences of the actions they undertake. This suggests, once again, that cruelly coercive interrogation may have been embraced
less for the tactical information it promised to disgorge than for its independent psychological appeal. All of its practical consequences were not
necessarily coolly considered. Such speculations are admittedly impossible to prove or disprove. But they are plausible enough to justify
skepticism about the claim that harsh interrogation was embraced solely for the pragmatic reason alleged, namely to extract intelligence to
prevent a follow-up nuclear sneak attack against the United States. Electoral, as opposed to national-security, considerations may also have
contributed to the embrace of interrogation techniques that departed sharply from preexisting rules. The
lack of genuine metrics of
success in the war on terror makes it inherently difficult to prove to voters that their government has
undertaken the most effective course of action. Such politically unsustainable uncertainty may, as
mentioned, pressure policymakers into seeking or fabricating pseudo-metrics. This is especially true when
American policymakers could not demonstrate that their actions are eliminating more terrorists than they are producing. But the Bush
administration and its supporters could always point out that Amnesty International, Human Rights First, the ACLU, and other liberalhumanitarian organizations were screaming about torture. These organizations' vehement expressions of outrage strongly [*347] suggested
that the Bush administration was going to extreme lengths - pulling out all the stops - to protect the country. The pernicious idea of a libertysecurity tradeoff, once again, lent a spurious plausibility to the mind-game being played.
Checks and balances are the only way to prevent groupthink and escalatory
interventions- unilateral decision-making ensures conflict
Fleischman 10 – Matthew Fleischman, associate in the New York office of McKool Smith. Prior to
joining the firm, he was an associate at Debevoise & Plimpton LLP. J.D. Candidate at NYU School of Law,
Magna Cum Laude at SLU, “A Functional Distribution of War Powers”, New York University Journal of
Legislation and Public Policy, 13 N.Y.U. J. Legis. & Pub. Pol'y 137, Lexis
While Nzelibe and Yoo's model is clearly plausible, it misses certain critical
institutional constructs. Their analysis attempts to
determine which branch is the more effective agent in this principal-agent problem; however, they fail to realize that the institutional
design is not an either-or choice. n96 The whole notion of separation of powers or checks and balances is rooted in the
idea of having one agent checking the other agent. n97 The system's design "promotes deliberation among multiple
agents, which encourages them to reveal private information that might otherwise remain hidden." n98 While there
is little empirical evidence on the value of deliberation, Professor James Fishkin has found evidence that "significant shifts in opinion"
take place after participating in public policy deliberations. n99 Studies [*152] such as this one show that there is
value to deliberating. Thus, there must be something unique and different about war powers that justifies abandoning the traditional
and effective means of coming to a decision. The first argument offered by Nzelibe and Yoo reasons that presidents tend to be held more
democratically accountable for foreign policy than Congress and should therefore be given significant power in this area, and asserts that ex
post congressional action is sufficient to mitigate the effects of poor decisions. n100 First of all, while
the President may be seen as
powers arena, that does not mean that congressional actors are immune from
being held democratically accountable for the decision to engage in significant armed conflict. n101 Beyond overestimating
the negative accountability effects of going to war, Nzelibe and Yoo fail to account for the numerous benefits from
going to war. Professors Cecil Crabb and Pat Holt observed that "once a president has made a foreign affairs decision that becomes known
the key decision maker in the war
to the public, he automatically receives the support of at least 50 percent of the American people, irrespective of the nature of the decision."
n102 This is commonly known as the "rally
around the flag" effect. n103 This surge of patriotic sentiment is temporary, n104 but
very real. When this sentiment evaporates, the President can react in a multitude of ways. While accountability can breed prudence, it
can also lead to "gambling for resurrection." n105 This is an [*153] agency problem in which leaders prolong
unsuccessful wars in the hope that the tides of war will eventually turn, saving the leader's legacy. n106 Ultimately, unilateral Executive
action does garner increased accountability, but can lead to short-term political gain and an unwillingness to concede defeat. Furthermore, ex
post congressional constraints on presidential actions are insufficient. The fact is, "ex post congressional involvement
can only terminate some presidential mistakes and can never recover the sunk costs of bad presidential decisions." n107
Not only are there sunk costs, but "even some opponents of the initial decision to go to war recognize that overly hasty withdrawal
could be a poor policy at later stages." n108 Ex post decisions are made in response to a new status quo, one in which use of the
power of the purse can be viewed as endangering troops n109 or giving America a weaker image abroad. n110 The second way in which
Nzelibe and Yoo
justify expansive executive powers is by arguing that the President has superior information to
allowing for a second opinion on the same information will reduce the likelihood of poor
decision making, while not positively or negatively impacting the quality of the information in and of itself. n112 Therefore, Type I
errors n113 are less likely when Congress is consulted. Nzelibe and Yoo cite the Iraq War as proof that intelligence
failures can occur with or without congressional involvement. n114 However, it could instead be argued that the failure was caused by
"executive manipulation of information to exaggerate a threat." n115 The problem was not the informational asymmetry, but
rather the use of that information. One logical solution to this problem would be to increase the information gathering and
interpreting capabilities of Congress. Nzelibe and Yoo mistakenly take the Executive's informational advantage as
a given when it is entirely alterable. [*154] Therefore, the information advantage can be lessened, which would greatly diminish
Congress. n111 Yet,
the odds of Type I errors. Any shift in an independent variable should lead to a corresponding shift in the causal variable. In this case, to the
extent that the frequency of Type I errors is correlated with informational disparities, correcting the disparities should negate the odds of Type I
errors occurring. The third functional argument presented by Nzelibe and Yoo concerns the relative value of signaling to different regime types.
n116 Given that they advocate for a President-First approach, but concede that congressional
authorization has value in
disputes between democratic states, n117 there is no real disagreement about the value of congressional authorization in these
disputes. That leaves conflicts between democratic nations and rogue states or terrorist organizations as the lone area where
the two sides disagree on this issue. Even before one can question this distinction, the definition of a rogue nation must be determined. Nzelibe
and Yoo leave this task to the President. Nzelibe and Yoo
political pressure, n118 but
believe that the leaders of rogue states are insulated from domestic
this is simply not true, as "all leaders are answerable to some coalition of domestic
political forces on which their power and political survival rests. Failure in conflict and war helps shorten the tenure of such leaders." n119
All leaders pursue a rational strategy to maintain power. n120 Wars occur when political leaders attempt to rally the masses
behind a national cause via aggressive rhetoric and policies. Thus, all leaders, whether of rogue nations or of first world countries, are subject to
popular pressure and suffer consequences at home for losing wars. Nonetheless, elected presidents
are more concerned with
national support and are therefore more likely to engage in such rhetoric and promote war, since it has been shown to
increase the approval rating of presidents. n121 [*155] On the other hand, the Legislature has more localized interests and
would be resistant to using such rhetoric. Localized interests are not rallied by promoting a national identity or a national battle
but by catering to a smaller community's needs and interests. Because of the political advantages gained by a president going to war
and the Legislature's inclination to shirk the issue, n122 unilateral presidential action is likely to lead to an overly
aggressive position on military engagements. Therefore, congressional involvement should decrease the
likelihood of Type I errors with respect to all regimes. The totality of the analysis suggests that deliberation decreases
the likelihood of Type I errors. This type of deliberation cannot occur within the Executive branch alone. While the
president consults with staffers and cabinet secretaries, they are likely to "succumb to groupthink, as it has been
called - the overt and subtle pressures driving group cohesiveness that can distort the decision-making process." n123 When a group
decides upon a view, dissent becomes difficult and there is pressure to reject alternatives. n124 Furthermore, even before coalescing
around a particular opinion, executive staffers are likely to possess policy preferences. Type II errors (not entering "good" wars)
would only be more likely under the Congress-First approach if Congress were more likely than the Executive to be
opposed to good wars. However, since research shows that Congress is likely to approve most wars
independent of circumstances n125 that is highly unlikely to be the case. But there is no reason to believe that
Congress has any aversion to good wars. n126 Ultimately, a Congress-First system would decrease Type I errors and
have little impact on Type II errors when dealing with traditional warfare, and it is the institutional design that would better
accommodate functionalists' concerns and desires.
Advantage 2: Global Democracy
NSLs are an end-run around the constitution and status quo measures to limit them
fail
Froomkin, 2-19—Dan, has served as the senior Washington correspondent and bureau chief for The
Huffington Post and as editor of WashingtonPost.com. The Intercept, “FBI Flouts Obama Directive to
Limit Gag Orders on National Security Letters,” https://firstlook.org/theintercept/2015/02/19/fbi-floutsobama-directive-limit-gag-orders-national-security-letters/
Despite the post-Snowden spotlight on mass surveillance, the intelligence community’s easiest end-run
around the Fourth Amendment since 2001 has been something called a National Security Letter. FBI
agents can demand that an Internet service provider, telephone company or financial institution turn over its records
on any number of people — without any judicial review whatsoever — simply by writing a letter that
says the information is needed for national security purposes. The FBI at one point was cranking out over 50,000 such
letters a year; by the latest count, it still issues about 60 a day. The letters look like this: <image> Recipients are legally required to comply —
but it doesn’t stop there. They also aren’t allowed to mention the order to anyone, least of all the person whose data is being searched. Ever.
That’s because National Security Letters almost always come with eternal gag orders. Here’s that part: That
means the NSL process
utterly disregards the First Amendment as well. More than a year ago, President Obama announced that he was
ordering the Justice Department to terminate gag orders “within a fixed time unless the government demonstrates a real
need for further secrecy.” And on Feb. 3, when the Office of the Director of National Intelligence announced a handful of baby steps resulting
from its “comprehensive effort to examine and enhance [its] privacy and civil liberty protections” one of the most concrete was — finally — to
cap the gag orders: In response to the President’s new direction, the FBI will now presumptively terminate National Security Letter
nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close. Continued
nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the
statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is
appropriate. Despite the use of the word “now” in that first sentence, however, the
FBI has yet to do any such thing. It has
not announced any such change, nor explained how it will implement it, or when. Media inquiries were greeted with stalling and,
finally, a no comment — ostensibly on advice of legal counsel. “There is pending litigation that deals with a lot of the same questions you’re
asking, out of the Ninth Circuit,” FBI spokesman Chris Allen told me. “So for now, we’ll just have to decline to comment.” FBI lawyers are
working on a court filing for that case, and “it will address” the new policy, he said. He would not say when to expect it. There is indeed a
significant case currently before the federal appeals court in San Francisco. Oral arguments were in October. A decision could come any time.
But in that case, the Electronic Frontier Foundation (EFF), which is representing two unnamed communications companies that received NSLs, is
calling for the entire NSL statute to be thrown out as unconstitutional — not for a tweak to the gag. And it has a March 2013 district court ruling
in its favor. “The gag is a prior restraint under the First Amendment, and prior restraints have to meet an extremely high burden,” said Andrew
Crocker, a legal fellow at EFF. That means going to court and meeting the burden of proof — not just signing a letter. Or as the Cato Institute’s
Julian Sanchez put it, “To
have such a low bar for denying persons or companies the right to speak about
government orders they have been served with is anathema. And it is not very good for accountability.”
In a separate case, a wide range of media companies (including First Look Media, the non-profit digital media venture that produces The
Intercept) are supporting a lawsuit filed by Twitter, demanding the right to say specifically how many NSLs it has received. But simply releasing
companies from a gag doesn’t assure the kind of accountability that privacy advocates are saying is required by the Constitution. “What the
public has to remember is a NSL is asking for your information, but it’s not asking it from you,” said Michael German, a former FBI agent who is
now a fellow with the Brennan Center for Justice. “The
vast majority of these things go to the very large
telecommunications and financial companies who have a large stake in maintaining a good relationship
with the government because they’re heavily regulated entities.” So, German said, “the number of NSLs that
would be exposed as a result of the release of the gag order is probably very few. The person whose records are
being obtained is the one who should receive some notification.” A time limit on gags going forward also raises the question of whether past
gag orders will now be withdrawn. “Obviously there are at this point literally hundreds of thousands of National Security Letters that are more
than three years old,” said Sanchez. Individual review is therefore unlikely, but there ought to be some recourse, he said. And the further back
you go, “it becomes increasingly implausible that a significant percentage of those are going to entail some dire national security risk.” The
NSL program has a troubled history. The absolute secrecy of the program and resulting lack of
accountability led to systemic abuse as documented by repeated inspector-general investigations, including
improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL statutes, requests for information based on First
Amendment protected activity, “after-the-fact” blanket NSLs to “cover” illegal requests, and hundreds of NSLs for “community of interest” or
“calling circle” information without any determination that the telephone numbers were relevant to authorized national security investigations.
Obama’s own hand-selected “Review Group on Intelligence and Communications Technologies” recommended in
December 2013 that NSLs should only be issued after judicial review — just like warrants — and that any gag
should end within 180 days barring judicial re-approval. But FBI director James Comey objected to the
idea, calling NSLs “a very important tool that is essential to the work we do.” His argument evidently prevailed with Obama.
NSLs have managed to stay largely under the American public’s radar. But, Crocker says, “pretty much every time I bring it up and give the
thumbnail, people are shocked. Then you go into how many are issued every year, and they go crazy.”
We’re on the brink—unfettered Executive makes democracy collapse inevitable
Yglesias, 3-2—Matthew, Executive Editor @ Vox, former Magna Cum Laude grad @ Harvard and
editor-in-chief of The Harvard Independent. “American democracy is doomed,” Vox,
www.vox.com/2015/3/2/8120063/american-democracy-doomed
America's constitutional democracy is going to collapse. Some day — not tomorrow, not next year, but probably sometime before
runaway climate change forces us to seek a new life in outer-space colonies — there is going to be a collapse of the legal and political
order and its replacement by something else. If we're lucky, it won't be violent. If we're very lucky, it will lead us to
tackle the underlying problems and result in a better, more robust, political system. If we're less lucky, well, then, something worse will happen. Very few people
agree with me about this, of course. When
I say it, people generally think that I'm kidding. America is the richest,
most successful country on earth. The basic structure of its government has survived contested elections
and Great Depressions and civil rights movements and world wars and terrorist attacks and global
pandemics. People figure that whatever political problems it might have will prove transient — just as
happened before. "Rather than everyone being wrong about the state of American politics, maybe everyone is right" But voiced in another
register, my outlandish thesis is actually the conventional wisdom in the United States. Back when
George W. Bush was president and I was working at a liberal magazine, there was a very serious
discussion in an editorial meeting about the fact that the United States was now exhibiting 11 of the 13
telltale signs of a fascist dictatorship. The idea that Bush was shredding the Constitution and trampling on congressional prerogatives was
commonplace. When Obama took office, the partisan valence of the complaints shifted, but their basic tenor
didn't. Conservative pundits — not the craziest, zaniest ones on talk radio, but the most serious and well-regarded — compare Obama's immigration moves to
the actions of a Latin-American military dictator. In the center, of course, it's an article of faith that when right and left talk like this they're simply both wrong.
These are nothing but the overheated squeals of partisans and ideologues. At
the same time, when the center isn't complaining
about the excessively vociferous complaints of the out-party of the day, it tends to be in full-blown panic
about the state of American politics. And yet despite the popularity of alarmist rhetoric, few people act
like they're actually alarmed. Accusations that Barack Obama or John Boehner or any other individual
politician is failing as a leader are flung, and then abandoned when the next issue arises. In practice, the
feeling seems to be that salvation is just one election away. Hillary Clinton even told Kara Swisher
recently that her agenda if she runs for president is to end partisan gridlock. It's not going to work. The
breakdown of American constitutional democracy is a contrarian view. But it's nothing more than the
view that rather than everyone being wrong about the state of American politics, maybe everyone is
right. Maybe Bush and Obama are dangerously exceeding norms of executive authority. Maybe legislative
compromise really has broken down in an alarming way. And maybe the reason these complaints persist across different
administrations and congresses led by members of different parties is that American politics is breaking
down. The perils of presidential democracy To understand the looming crisis in American politics, it's useful to think about Germany, Japan, Italy, and Austria.
These are countries that were defeated by American military forces during the Second World War and given constitutions written by local leaders operating in close
collaboration with occupation authorities. It's striking that even though the US Constitution is treated as a sacred text in America's political culture, we did not push
any of these countries to adopt our basic framework of government. This wasn't an oversight. In a 1990 essay, the
late Yale political scientist
Juan Linz observed that "aside from the United States, only Chile has managed a century and a half of
relatively undisturbed constitutional continuity under presidential government — but Chilean
democracy broke down in the 1970s."
The exact reasons for why are disputed among scholars — in part because you can't just randomly assign different governments to people. One issue here is that American-style systems are much more
common in the Western Hemisphere and parliamentary ones are more common elsewhere. Latin-American countries have experienced many episodes of democratic breakdown, so distinguishing Latin-American cultural attributes from institutional characteristics is difficult. Still, Linz offered several reasons why presidential
systems are so prone to crisis. One particularly important one is the nature of the checks and balances system. Since both the president and the Congress are directly elected by the people, they can both claim to speak for the people. When they have a serious disagreement, according to Linz, "there is no democratic principle on
the basis of which it can be resolved." The constitution offers no help in these cases, he wrote: "the mechanisms the constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate." In a parliamentary system, deadlocks get resolved. A prime minister who lacks
the backing of a parliamentary majority is replaced by a new one who has it. If no such majority can be found, a new election is held and the new parliament picks a leader. It can get a little messy for a period of weeks, but there's simply no possibility of a years-long spell in which the legislative and executive branches glare at
each other unproductively. But within a presidential system, gridlock leads to a constitutional trainwreck with no resolution. The United States's recent government shutdo wns and executive action on immigration are small examples of the kind of dynamic that's led to coups and putsches abroad. There was, of course, the
American exception to the problems of the checks-and-balances system. Linz observed on this score: "The uniquely diffuse character of American political parties — which, ironically, exasperates many American political scientists and leads them to call for responsible, ideologically disciplined parties — has something to do with
it." For much of American history, in other words, US political parties have been relatively un-ideological and un-disciplined. They are named after vague ideas rather than specific ideologies, and neither presidents nor legislative leaders can compel back-bench members to vote with them. This has often been bemoaned
(famously, a 1950 report by the American Political Science Association called for a more rigorous party system) as the source of problems. It's also, according to Linz, helped avert the kind of zero-sum conflicts that have torn other structurally similar democracies apart. But that diffuse party structure is also a thing of the past. A
short history of American polarization American politics is much more polarized today than it was 25 or 50 years ago. But not everyone buys the theory that today's era of party polarization spells big trouble. Political scientist Jonathan Bernstein argues that it's "not some sort of freakish un-American phenomenon." The real
exception, Bernstein says, the middle of the twentieth century, when the parties weren't polarized. Polarization is the norm, he says, and he's right. A long line of research starting with Keith Poole and Howard Rosenthal, political scientists at the University of Georgia and New York University respectively, records all
congressional votes and then analyzes the types of political coalitions that emerge. This system, known as DW-NOMINATE, lets you measure the degree of party polarization precisely. When Democrats all vote one way and Republicans all vote the other way, politics is highly polarized. When votes frequently scramble the
parties, it is less polarized. What this research shows is that the steady march toward polarization over the past generation is a return to a situation that existed during an earlier period. The story here, like so much in American politics, is race. Southern Democrats had a range of views on non-racial issues but monolithically
supported white supremacy and held together in the Democratic Party to maximize their leverage in Congress. The result was that the Democratic Party included Northern liberals who supported civil rights and Southern conservatives who supported segregation. So polarization temporarily went away in Congress. But as
segregation receded as an issue in American politics, the parties slowly but surely sorted themselves by ideology, and so today, there is no Republican in Congress more liberal than the most conservative Democrat, or vice-versa. American politics has re-polarized. According to Bernstein, this change may be discomfiting but it's
nothing to worry about. American politics has been polarized before and it was fine. What this story of reversion misses is the crucial role of ideology. Polarization and ideology are clearly related concepts, but simply counting congressional votes doesn't really tell us what those votes were about. Georgetown University
Professor Hans Noel greatly improved our understanding of the relationship between the two by extending the DW-NOMINATE methodology to people who aren't elected officials. For his book Political Parties and Political Ideologies in America, Noel constructs ideological space scores for writers and political pundits — people
who address the same issues as elected officials but who are not serving on Capitol Hill. What he found is that while Gilded Age members of Congress voted in a highly partisan way, their voting didn't reflect any polarization of ideas evident in broader American society. As Charles Calhoun, a leading scholar of Gilded Age politics
has written, the main concern of actual members of Congress was not policy, but "patronage power, the privilege of placing one's political friends and supporters in in subordinate offices." In other words, a member of Congress would get to distribute federal jobs and contracts to his supporters and in exchange the beneficiaries
of his patronage would support his party's ticket at all levels. For this reason, the obscure-sounding job of customs collector of the Port of New York was important enough in the 1870s that Chester A. Arthur leapt from it to the Vice Presidency. The first real filibuster was held over Whig efforts to assign a printing contract to
friendly companies. "Since the president and Congress are elected by the people, they can both claim to speak for the people" Even though party discipline was strict in these days, it was not really about much beyond who held the spoils. Over the course of the 1920s, 1930s, and 1940s the rise of progressive and liberal ideology
and the formation of a conservative ideology to counter it upended this system. So much so that by the 1970s it had become common to observe that American political parties were in decline. University of California Irvine political scientist Martin Wattenberg achieved the apogee of this literature with his 1985 classic The
Decline of Political Parties in America (since updated in five subsequent editions), citing the waning influence of party professionals, the rise of single-issue pressure groups, and an attendant fall in voter turnout. But as historian Sam Rosenfeld writes, under-the-hood changes in the process for selecting presidential nominees and
Congressional leaders "ultimately helped to create a newly receptive institutional setting for issue-based activism within the parties," leading to the parties' reconstitution around modern ideological lines. Today's partisan polarization, in other words, is not the same as its Gilded Age predecessor. The old polarization was about
control over jobs and money — the kind of thing where split-the-difference compromises are easiest. That polarization was eventually undermined by a new politics built around principles. For decades, politicians found themselves cross-pressured between their commitments to a national party network and to various
ideological causes. Today, however, politicians are no longer cross-pressured. We have strong Gilded Age-style parties, but organized around questions of principle rather than questions of patronage. You can take this theory too far, of course. There have been moments in American life where questions of principle sharply split
American politics. We had ideological parties (or at least one) in the 1850s when the anti-slavery Republican Party rose to the fore. But the example is not enormously encouraging — the constitutional process collapsed and we had four years of civil war, hundreds of thousands of deaths, and then, even after a Union victory,
white supremacy was re-established in the South through a two-decade campaign of terrorism. The Honduras scenario Not all breakdowns of constitutional processes are as violent as the American Civil War. For a less catastrophic, more realistic view of the kind of thing that could happen here, it's useful to look to some lessfamiliar but more-recent events in Honduras. Back in late 2008, left-wing President Manuel Zelaya was locked in persistent conflict with an opposition-controlled congress. With neither side able to prevail within the context of the existing system, Zelaya decided he wanted to add a fourth question to the upcoming November
2009 election. In addition to voting for president, congress, and municipal offices, Zelaya would ask the voters whether they wanted to hold a constituent assembly to re-write the constitution — presumably to allow him to run for re-election. Unfortunately for Zelaya, Honduras' existing constitution made no provision for rewriting the constitution by plebiscite. Consequently, in March 2009, Zelaya determined that the solution was to hold another plebiscite. On June 28, Hondurans would go to the polls to vote in a non-binding referendum on whether the constitutional question should be added to the November ballot. This, he hoped, would give
him the democratic legitimacy needed to go forward with the constitutional revision. Zelaya's opponents in congress, evidently con cerned that the president would win, sued. They won a court case enjoining the president against holding the referendum. Zelaya pressed ahead regardless. In Honduras, the military typically assists
with election logistics, so Zelaya ordered the army to begin distributing ballots. General Romeo Vásquez Velásquez, the chief the Honduran military, refused to comply. On May 24, Zelaya fired the general. Several other commanders quit in solidarity. The Supreme Court ruled that the dismissal was unconstitutional. Throughout
June, the constitutional process essentially broke down with protests and counter-protests dominating the capital. On June 28, the military deposed Zelaya in a coup, retroactively justified by a back-dated Supreme Court ruling. Roberto Micheletti, the president of the National Congress, was installed in his stead. Manuel Zelaya
addresses his supporters after his ouster from office. (Alfredo Estrella/AFP/Getty Images) The military quickly handed power over to a new group of civilians. The coup was legitimated by the National Congress and the Supreme Court. And its perpetrators argued with some justification that there was no constitutional
alternative. Zelaya was trying to circumvent the rules, so they had no choice but to circumvent them too in response. The deadlock was ultimately resolved by force rather than legal procedure. Zelaya did not have enough support to amend the constitution through the existing process, and Honduras' constitutional system
created no legal mechanism for impeachment of a president. The Supreme Court arbitrarily ruled that Zelaya's effort to circumvent the amendment process via referendum was illegal, while Congress' effort to circumvent the impeachment process was fine. There were quite a few injuries as protesters clashed with security
forces, but no massive bloodshed. Honduras' coup is worth paying attention to not because the exact same scenario is likely to play out in the United States, but because it reveals how genuinely difficult it is to maintain constitutional politics in a presidential system. Presidents feel themselves to be accountable for steering the
nation. And all the evidence indicates that the public and the media do in fact hold presidents broadly accountable for national outcomes. Throughout the United States' 2012 presidential campaign, for example, it was universally assumed that good news for the American economy (or for America more broadly) would redound
to Barack Obama's benefit even though control of policymaking was split between the White House and a GOP-dominated Congress. As Obama put it in a November 2014 press conference, "people are going to ask for greater accountability and more responsibility from me than from anybody else in this town." The problem is
the president is not only held accountable for things that are in part outside his ability to control (gas prices, Ebola, or shark attacks) but for things that are actually under the control of his political adversaries. "I'm the guy who's elected by everybody," concluded Obama, "and they want me to push hard to close some of these
divisions, break through some of the gridlock, and get stuff done." If you're going to be held accountable for outcomes, in other words, then you'd better act. In a parliamentary system, this is simply democratic accountability in action. A head of government who strongly believes the nation needs actions the legislature won't
United States, of
course, is a long way from a coup. What we are witnessing instead is a rise in what Georgetown University
Professor Mark Tushnet labeled "constitutional hardball" in a 2004 article. Constitutional hardball describes
legal and political moves "that are without much question within the bounds of existing constitutional
doctrine and practice but that are nonetheless in some tension with existing pre-constitutional
understanding." In other words, moves that do not violate the letter of the law, but do trample on our
conventional understanding of how it is supposed to work. Tushnet's article is vital reading today in part because the different
approve can dissolve parliament and hold a new election to decide the issue. In Honduras' presidential system, the very act of trying to schedule a vote to resolve the deadlock was itself unconstitutional.
Constitutional hardball The
partisan context in which it was written can help shock people out of their entrenched positions. His lead example is from the George W. Bush administration, when
liberals were concerned about the president taking power away from Congress. Tushnet describes the "strained" argument offered by Republican senators in 2005
that Democratic Party filibusters of Bush's judicial nominees violated the constitution. At the time, of course, Democrats found the view that Republicans might
simply ban the use of filibusters for this purpose outrageous. "The filibuster serves as a check on power," said Harry Reid, "that preserves our limited government."
Joe Biden called the Republicans' attempt to end the fillibuster "an example of the arrogance of power." But ultimately the hardball tactic for ending filibusters was
used by Democrats in 2013 to halt Republican obstruction of Obama's nominees. Republicans, Reid said, "have done everything they can to deny the fact that
Obama had been elected and then reelected." He argued he had no choice but to abandon a principle that just a few years ago he said was crucial to preserving
American liberty. Meanwhile, Republicans who had supported the 2005 effort to weaken the filibuster executed a perfect flip-flop in the other direction. Tushnet's
other example from the mid-2000s — Texas' decision to redraw congressional district boundaries to advantage Republicans between censuses — seems almost
adorably quaint by the standards of the Obama era. From its very first months, Obama's
presidency has been marked by essentially
nothing but constitutional hardball. During the Bush years, Democratic senators sporadically employed a variety of unusual delaying tactics to
stymie his agenda. In 2009, Mitch McConnell and Senate Republicans retaliated by using tons of them, constantly. Suddenly filibustering went from something a
Senate minority could do to something it did on pretty much all motions. George Washington University congressional scholar Sarah Binder observes that "leaders
in the 1970s rarely felt compelled to file for cloture [to break filibusters], averaging fewer than one per month in some years" while in recent years Reid has filed
over once per week. As Jim Manley, a former aid to the Democratic Senate leadership, explained to The Atlantic, the obstruction not only prevented many of
Obama's more controversial measures from becoming law; it also drastically altered the process of even routine governance. Say you want to break a filibuster. On
Monday, you file cloture on a motion to proceed for a vote on Wednesday. Assuming you get it, your opponents are allowed 30 hours of debate post-cloture on the
motion to proceed. That takes you to Friday, and doesn't cover amendments. The following Monday you file cloture on the bill itself, vote Wednesday, then 30
more hours of debate, and suddenly two weeks have gone by, for something that's not even controversial. As a political strategy, McConnell's tactics were
vindicated by the 2010 midterms, which showed that making the president look partisan, clumsy, and inept was a winning strategy. Republicans in Congress
subsequently moved beyond unusual acts of obstruction to an unprecedented use of the statutory debt ceiling into a vehicle for policymaking. Traditionally a bit of
oddball American political theater immortalized in a funny West Wing scene, in 2011 the GOP threatened to provoke an unfathomable financial and constitutional
crisis unless the Obama administration agreed to sweeping spending cuts. Again, there was nothing illegal about what Republicans in Congress did here — it was
just, in its intent and its scope, unprecedented. And it's fairly clear that these actions, while consistent with Republican Party electoral success, have not exactly
produced a well-respected legislature. Congressional approval ratings are so low — and have been for so long — that it's become a subject of pollster humor. In
2013, Public Policy Polling found that congress was less popular than Genghis Khan, traffic jams, cockroaches, or Nickelback. In a less joking spirit, Gallup finds that
the voters have less confidence in Congress than any other American institution, including big business, organized labor, banks, or television news. As relations with
Congress have worsened, the Obama administration has
set about expanding executive authority over domestic policy to
match Bush-era unilateralism in the national security domain. This came to the fore most publicly with Obama's decision to
protect millions of unauthorized migrants from deportation without congressional agreement. "The practical issue would be not so much what is legal, but what
people would actually tolerate" As Vox's Andrew Prokop has argued, the pattern is actually much broader. Obama's handling of K-12 education policy is in some
ways an even more paradigmatic example of constitutional hardball. The George W. Bush-era education law No Child Left Behind laid out penalties for state
education systems that didn't meet certain, rather unrealistic, targets. The law's authors assumed that when the law came up for reauthorization, the targets would
be changed. In case Congress didn't act in time, the Secretary of Education also had the authority to issue waivers of the penalties. Since Congress no longer really
functions, there has been no reauthorization of the law. So the Obama administration has issued waivers — but only to states that implement policy changes
ordered by the Department of Education. University of Chicago political scientist William Howell told Prokop this was a "new frontier" for executive policymaking.
Yale Law School's Bruce Ackerman says Obama used "a waiver provision for modest experiments and transformed it into a platform for the redesign of the statute."
Obama's actions are clearly legal — but they are just as clearly a decision to creatively exploit the letter of the law to vastly expand the scope of executive power
over the law. Those who like these actions on their merits comfort themselves with the thought that these uses of executive power are pretty clearly allowed by the
terms of the existing laws. This is true as far as it goes. But it's also the case that Obama (or some future president) could have his political opponents murdered on
the streets of Washington and then issue pardons to the perpetrators. This would be considerably more legal than a Zelaya-style effort to use a plebiscite to
circumvent congressional obstruction — just a lot more morally outrageous. In either case, however, the practical issue would be not so much what is legal, but
what people, including the people with guns, would actually tolerate. Raising the stakes America's escalating game of constitutional hardball isn't caused by
personal idiosyncratic failings of individual people. Obama has made his share of mistakes, but the
fundamental causes of hardball politics
are structural, not personal. Personality-minded journalists often argue that a warmer executive would
do a better job of building bridges to congress. But as Duke University's Brendan Nyhan points out, "Bill
Clinton's more successful outreach to his opponents didn't keep him from getting impeached. Likewise,
George W. Bush was more gregarious than Obama, but it didn't make him any more popular among
Democrats once the post-9/11 glow had worn off."
There's a reason for this, and it gets to the core of who really runs American politics. In a democratic society, elected officials are most directly accountable to the people
who support them. And the people who support them are different than the people who don't care enough about politics to pay much attention, or the people who support the other side. They are more ideological, more partisan, and they want to see the policies they sup port passed into law. A leader who abandons his core
supporters because what they want him to do won't be popular with most voters is likely, in modern American politics, to be destroyed in the next primary election. The amateur ideological activists who eroded the power of the party professionals in the 1970s are now running the show. While Gilded Age activists traded
support for patronage jobs, modern-day activists demand policy results in exchange for support. Presidents need to do everything within their legal ability to deliver the results that their supporters expect, and their opponents in Congress need to do everything possible to stop them. At one point, Republican congressional
leaders were highly amenable to passing an immigration reform bill and the Obama administration insisted it had no means of circumventing the legislative process. But under pressure from their respective bases, Republicans found it impossible to compromise and Obama decided he had better find a way to go around
Congress. It is true that the mass public is not nearly as ideological as members of Congress. But the mass public is not necessarily active in democratic politics, either. Emory's Alan Abramowitz finds that "the American public has become more consistent and polarized i n its policy preferences over the past several decades." He
also writes that "this increase in consistency and polarization has been concentrated among the most politically engaged citizens." This rise in ideological activism has a number of genuinely positive impacts. It makes politics less corrupt. The least-polarized state legislatures in America are in places like Rhode Island and
Louisiana, bastions of corruption rather than good government. It's not a coincidence that the Tea Party surge led to the end of earmarked appropriations. But it heightened executive-legislative conflict and leads to what Linz termed "the zero-sum character of presidential elections." Bush and Gore shake hands in December
2000, after their remarkably orderly contested election was resolved. (Tannen Maury/AFP/Getty Images) Looking back at Bush's election in 2000, one of the most remarkable things is how li ttle social disorder there was. The American public wanted Al Gore to be president, but a combination of the Electoral College rules, poor
ballot design in Palm Beach County, and an adverse Supreme Court ruling, put Bush in office. The general presumption among elites at the time was that Democrats should accept this with good manners, and Bush would respond to the weak mandate with m oderate, consensus-oriented governance. This was not in the cards.
Not because of Bush's personal qualities (if anything, the Bush family and its circle are standard-bearers for the cause of relative moderation in the GOP), but because the era of the "partisan presidency" demands that the president try to implement the party's agenda, regardless of circumstances. That's how we got drastic tax
cuts in 2001. If the Bush years shattered the illusion that there's no difference between the parties, the Obama years underscore how much control of the White House matters in an era of gridlock. The broadly worded Clean Air Act, whose relevant provisions passed in 1970, has allowed Obama to be one of the most
consequential environmental regulators of all time — even though he hasn't been able to pass a major new environmental bill. He's deployed executive discretion over immigration enforcement on an unprecedented scale. And he's left a legacy that could be rapidly reversed. A future Republican administration could not only
turn back these executive actions, but substantially erode the Affordable Care Act. The lessons of the 2000 and 2008 elections make it unnerving to imagine a Bush-Gore style recount occurring in 2014's political atmosphere. The stakes of presidential elections are sky-high. And the constitutional system provides no means for a
compromise solution. There can be only one president. And once he's in office he has little reason to show restraint in the ambitions of the legislative — or non-legislative — agenda he pursues. In the event of another disputed election, it would be natural for both sides to push for victory with every legal or extra-legal means at
their disposal. Indeed, we ought to consider possibilities more disastrous than a repeat of the 2000 vote. What if a disputed presidential election coincided with a Supreme Court vacancy? What if the simultaneous deaths of the president and vice president brought to power a House Speaker from the opposite party? What if
neither party secured a majority of electoral votes and a presidential election wound up being decided by a vote of the lame duck House of Representatives? What if highly partisan state legislatures start using their constitutional authority to rig the presidential contest? A system of undisciplined or non-ideological political
parties has many flaws, but it is at least robust to a variety of shocks. Our current party alignment makes for a much more brittle situation, in which one of any number of crises where democratic norms and constitutional procedures diverge could bring us to a state of emergency. A flawed system The idea that America's
reality is that despite its durability, it has rarely functioned well
by the standards of a modern democracy. The party system of the Gilded Age operated through systematic corruption. The less polarized era
constitutional system might be fundamentally flawed cuts deeply against the grain of our political culture.
But the
that followed was built on the systematic disenfranchisement of African-Americans. The newer system of more ideological politics has solved those problems and
seems in many ways more attractive. But over the past 25 years, it's set America on a course of paralysis and crisis — government shutdowns, impeachment, debt
ceiling crises, and constitutional hardball. Voters, understandably, are increasingly dissatisfied with the results and confidence in American institutions has been
generally low and falling. But rather
than leading to change, the dissatisfaction has tended to yield wild electoral
swings that exacerbate the sense of permanent crisis. "The best we can hope for is that when the crisis does come, Americans will
put a better system in place" As dysfunctional as American government may seem today, we've actually been
lucky. No other presidential system has gone as long as ours without a major breakdown of the
constitutional order. But the factors underlying that stability — first non-ideological parties and then non-disciplined ones —
are gone. And it's worth considering the possibility that with them, so too has gone the American exception to the rule of presidential breakdown. If we seem
to be unsustainably lurching from crisis to crisis, it's because we are unsustainably lurching from crisis to crisis. The breakdown may not
be next year or even in the next five years, but over the next 20 or 30 years, will we really be able to resolve every one of these high-stakes showdowns without
making any major mistakes? Do you really trust Congress that much? The best we can hope for is that when the crisis does come, Americans will have the wisdom
to do for ourselves what we did in the past for Germany and Japan and put a better system in place.
This is not limited to domestic politics- unfettered executive authority sends a signal
internationally that undermines constitutional principles
Louis Fisher in 2009 is a specialist in constitutional issues with the Law Library of the Library of
Congress, Presidential Studies Quarterly 39, no. 2 (June), Presidential Power in National Security: A
Guide to the President-Elect
Respect for the Constitution and joint action with Congress provide the strongest possible signal to
both enemies and allies. By following those principles, other countries understand that U.S. policy has a broad
base of support and is not the result of temporary, unilateral presidential actions that divide the
country and are likely to be reversed. National security is strengthened when presidents act in concert
with other branches and remain faithful to constitutional principles. In periods of emergency and
threats to national security (perceived or real), the rule of law has often taken a backseat to presidential
initiatives and abuses. Although this pattern is a conspicuous part of American history, it is not necessary to repeat the same mistakes
every time. Faced with genuine emergencies, there are legitimate methods of executive action that are
consistent with constitutional values. There are good precedents from the past and a number of bad
ones. In response to the 9/11 terrorist attacks, the United States largely decided to adopt the bad ones.
The responsibility for this damage to the Constitution lies primarily with the executive branch, but illegal and
unconstitutional actions cannot occur and persist without an acquiescent Congress and a compliant judiciary. The Constitution’s
design, relying on checks and balances and the system of separation of powers, was repeatedly ignored
after 9/11. There are several reasons for these constitutional violations. Understanding them is an essential first step in
returning to, and safeguarding, the rule of law and constitutional government.
Democratic transitions are hanging in the balance---only empowering checks on
executive power through rule of law can tip the scales
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, Lexis
Many of the newly independent governments that have proliferated over the past five decades have
adopted these ideals. They have emerged from a variety of less-than-free contexts, including the end of European colonial rule in the 1950's and 1960's, the end of the Cold War
and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration of Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and southern Asia.
Some countries have successfully transitioned to stable and democratic forms of government that protect
individual freedoms and human rights by means of judicial review by a strong and independent judiciary. Others have suffered the rise of
tyrannical and oppressive rulers who consolidated their hold on power in part by diminishing or abolishing the role of the judiciary. And still others
hang in the balance, struggling against the onslaught of tyrants to establish stable, democratic
governments. In their attempts to shed their tyrannical pasts and to ensure the protection of individual
rights, emerging democracies have consistently looked to the United States and its Constitution in
fashioning frameworks that safeguard the independence of their judiciaries . See Ran Hirschl, The Political Origins of Judicial Empowerment
through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of the “[m]any countries . . . [that] have engaged in fundamental
Establishing judicial review
by a strong and independent judiciary is a critical step in stabilizing and protecting these new
democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the
constitutional reform over the past three decades,” nearly all adopted “a bill of rights and establishe[d] some form of active judicial review”).
judicial branch as having "a uniquely important role" in transitional countries, not only to "mediate conflicts between political actors but also [to] prevent the arbitrary exercise of government
power; see also Daniel C. Prefontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, International Centre for Criminal Law Reform and Criminal Justice Policy (1998)
countries in transition from
dictatorships and/or statist economies recognize the need to create a more stable system of governance, based on the
rule of law."), available at http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw. pdf (last visited Jan. 8, 2004). Although the precise form of government differs among
("There is increasing acknowledgment that an independent judiciary is the key to upholding the rule of law in a free society . . . . Most
countries, “they ultimately constitute variations within, not from, the American model of constitutionalism . . . [a] specific set of fundamental rights and liberties has the status of supreme law,
is entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L.
707, 718 (2001). This phenomenon became most notable worldwide after World War II when certain countries, such as Germany, Italy, and Japan, embraced independent judiciaries following
their bitter experiences under totalitarian regimes. See id. at 714- 15; see also United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring) (“Since World War II, many
countries have adopted forms of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration from American constitutional theory
It is a trend that continues to this
day. It bears mention that the United States has consistently affirmed and encouraged the establishment of
independent judiciaries in emerging democracies. In September 2000, President Clinton observed that "[w]ithout the rule of law,
and practice. See generally Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989).”).
elections simply offer a choice of dictators. . . . America's experience should be put to use to advance
the rule of law, where democracy's roots are looking for room and strength to grow." Remarks at Georgetown University Law School, 36 Weekly Comp. Pres. Doc. 2218
(September 26, 2000), available at http://clinton6.nara.gov/2000/09/2000-09-26- remarks-by-president-at-georgetown-international-lawcenter. html. The United States acts on
these principles in part through the assistance it provides to developing nations. For example, the United States requires that any country seeking assistance through the
Millenium Challenge Account, a development assistance program instituted in 2002, must demonstrate, among other criteria, an "adherence to the rule of law." The White House noted that
the rule of law is one of the "essential conditions for successful development" of these countries. See
http://www.whitehouse.gov/infocus/developingnations (last visited Jan. 8, 2004).12
Consensus of experts agree that democracies reduce militarized conflict- it outweighs
alternate causes
Allan Dafoe in 2011, is a Ph.D. candidate in the Travers Department of Political Science @ Berkeley,
Statistical Critiques of the Democratic Peace: Caveat Emptor, American Journal of Political Science, Vol.
55, No. 2, April 2011, Pp. 247–262
The “democratic peace”—the inference that democracies rarely fight each other—is one of the most
important and empirically robust findings in international relations (IR).1 The apparent empirical association2
between joint democracy3 and peace has been debated and challenged since its first discovery by political scientists to the present (Gartzke
2007). Scholars have argued that this empirical association is in fact a product of other confounding factors, such as Cold War alliances (Farber
and Gowa 1997; Gowa 1999), satisfaction with the regional status quo (Kacowicz 1995), shared foreign policy interests (Gartzke 1998, 2000),
unmeasured factors such as dyad-specific effects (Green, Kim, and Yoon 2001), stable borders (Gibler 2007), and capital openness and
development (Gartzke 2007; Gartzke and Hewitt 2010). Despite the
large number of serious challenges, most current
quantitative analyses continue to find a substantial, robust, and statistically significant association
between joint democracy and the absence of militarized conflict. This article will analyze a recent challenge to the
democratic peace (Gartzke 2007), situate it in the context of other statistical challenges to the democratic peace, and show that the democratic
peace persists as a compelling finding. In so doing, this article also identifies new features of the democratic peace. It is important to be clear
about what this empirical association implies about international politics. Despite the robustness of this result to different model specifications,
this observational finding by itself does not prove that it is characteristics of democracies—such as regular
competitive elections, constraints on the executive, liberal norms, or civil rights—that make these countries more peaceful
toward each other. Even less does it prove that the forceful spread of democracy in particular regions of the world will reduce the
frequency or severity of wars. Justifying causal claims such as these exclusively using analyses of observational data requires the leverage of
strong assumptions. It is for this reason that there is less agreement about the actual causal mechanisms of the democratic peace than that
around the underlying explanandum. Scholars have proposed that the democratic peace arises because of shared norms (Maoz and Russett
1993), restraint on democratic leaders (Bueno de Mesquita et al. 1999), more credible communication through transparency (Schultz 1998) or
domestic audience costs (Fearon 1994; Tomz 2007; Weeks 2008), greater capacity to reach stable bargains (Lipson 2003), and other possible
causal pathways. On the other hand, it may not be a “democratic” characteristic at all that accounts for the peace, but some other co-occurring
or preceding factor, such as shared strategic circumstances, shared political systems, capitalism, prosperity, liberal economic norms, or other
factors.
Nonetheless, the democracy-peace empirical association remains of paramount importance
because, despite our best attempts to “control for” other possible correlates of this peace, the fact
that two countries are democratic remains strongly associated with them having peaceful relations .
Furthermore, under relatively modest assumptions this apparently peaceful proclivity seems unlikely to
have arisen by chance (that is, the finding is “statistically significant”). This empirical association is foundational to a vast
literature testing, refining, and extending theories about the apparent relationship between regime type and peace. Thus it matters greatly
whether this association is robust to potential confounders (for reviews of this literature, see George and Bennett 2004; Ray 1995).
Plan: The United States federal government should change National Security Letter
policy to allow judicial review of non-disclosure requirements, mandate that agencies
discard non-relevant information gathered from subpoenas, and require subpoena
requests to use the articulable and reasonable facts standard.
Solvency
Congress is key- only a statutory requirement mandating judicial oversight and
stronger checks can prevent abuse- anything else lacks permanence
Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and
Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in
Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymakin
g%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,
It is debatable whether the U.S. government, overall, has struck a defensible balance between
enhancing security and protecting civil liberties. We have seen the implementation of expansive
surveillance programs, and we have reason to believe that other important surveillance operations remain classified and
undisclosed.39 It is even possible that the executive has withheld eavesdropping activities from Congress. But if recent accounts by
Intelligence members are accurate, we have also seen that agents follow multiple court procedures— first
by seeking judicial approval to seize records and then by obtaining separate, highly targeted approval to examine records. Most of the
very few members of Congress who have closely monitored the FISA process believe that it includes
reasonable safeguards. Still, the policymaking system has been overly secretive, dominated by the
executive, and slow to identify gaps in privacy protections. We suggest both changes to the Patriot Act
and, more important, changes to the institutional arrangements for making decisions on surveillance policy.
The most obvious and immediate need is to place permanent restrictions on national security letters .
Congress should pass legislation mandating that authorities discard all non-relevant information
captured with administrative subpoenas. The Obama administration has already implemented this policy through a Justice
Department directive. But until it becomes a statutory requirement, either the current or a succeeding
administration could easily cancel this safeguard and allow agents, as they did in the Bush
administration, to stockpile personal information of innocent Americans. Since this reform merely
codifies current practice, a permanent safeguard would protect privacy without creating new
investigative obstacles.
Judicial oversight and implementation of the ‘specific and articulable facts’ standard
are necessary to restore separation of powers and 4th amendment protections.
Kenneth R. Logsdon in 2008, J.D., University of Illinois College of Law, UNIVERSITY OF ILLINOIS
JOURNAL OF LAW, TECHNOLOGY & POLICY 2008 U. Ill. J.L. Tech. & Pol'y 409, lexis
The Executive Branch has also neglected the Fourth Amendment standard of individual suspicion when
it sought to use NSLs to request an entire database of information, rather than information on a
particular individual. n274 To restore the standard of individual suspicion, the Reform Act provides that an
NSL must contain "specific and articulable facts providing reason to [*436] believe that the records"
pertain to an individual. n275 That is, the individual must be a suspected agent of a foreign power or
"pertain to an individual who has been in contact with, or otherwise directly linked to, a suspected agent
of a foreign power." n276 The NSL provision, within the PA, states the government may acquire information about an entity that is
relevant to an ongoing investigation. n277 Further protections within the Reform Act relate to what the government can acquire. In particular,
the Reform Act allows the government the ability to acquire only: (A) The name of the customer or subscriber. (B) The address of the customer
or subscriber. (C) The length of the provision of service by such provider to the customer or subscriber (including start date) and the types of
service utilized by the customer or subscriber. (D) The telephone number or instrument number, or other subscriber number or identifier, of
the customer or subscriber, including any temporarily assigned network address. (E) The means and sources of payment for such service
(including any credit card or bank account number). (F) Information about any service or merchandise orders, including any shipping
information and vendor locations. (G) The name and contact information, if available, of any other wire or electronic communications service
providers facilitating the communications of the customer or subscriber. n278 Conversely, the PA requires an electronic communications
provider to "comply with a request for subscriber information and toll billing records information, or electronic communication transactional
records in its custody or possession." n279 The Reform
Act's explicit enumeration of what can be acquired avoids
inherent ambiguities found within the PA provision. To bolster this argument, the Reform Act explicitly states that NSLs
"issued pursuant to this section shall not require the production of local or long distance telephone records or electronic communications
transactional information not listed." n280 Accordingly, these modifications allow the government little room to apply an NSL to an entire
database and ideally prevent the government from acquiring broad categories of information. B. First Amendment Protections and Judicial
Overview Restored As previously discussed, PA II remedied several constitutional deficiencies found within the PA, but not all. Thus, three
constitutional deficiencies remain. First, the recipient of a nondisclosure request bears the [*437]
burden of proof that the government is unreasonably suppressing speech. n281 Second, NSLs "continue[] to
authorize nondisclosure orders that permanently restrict an NSL recipient from engaging in any
discussion related to its receipt of the NSL." n282 Third, "if, at the time of the petition [to review a nondisclosure
request], the Attorney General ... certifies that disclosure may endanger the national security of the United
States ... such certification shall be treated as conclusive." n283 The Reform Act provides solutions for all
three issues. Regarding the suppression of speech via a nondisclosure request, the government "may apply for an order
prohibiting disclosure that the Federal Bureau of Investigation has sought or obtained access to
information or records under this section for not more than 180 days after the order is issued." n284 A
further limitation provides that an "application for an order pursuant to this subsection must state specific and
articulable facts giving the applicant [government] reason to believe that disclosure ... sought ... will
result in" several specified risks. n285 Conveniently, these two provisions also provide safeguards that prevent
a nondisclosure request from becoming permanent. n286 Regarding judicial review, the Reform Act establishes
that "[a] person prohibited by law from disclosing information about the [NSL] may file ... a petition for
the court to set aside the nondisclosure requirement. Such petition ... may be based upon any failure of the nondisclosure
requirement to comply with this section or upon any constitutional or other legal right." n287 Additionally, only the court will have the
authority to set aside a nondisclosure requirement. n288 V. Conclusion James Madison's
assertion that great difficulties lie
in creating a government that controls the citizenry and itself is no less true today. In furtherance of that
goal, the main body of the Constitution enumerates three independent, but co-equal, branches of the
federal government. Further, the Bill of Rights of the United States Constitution provides several individual liberties the government
must respect in the implementation of the law. Among these liberties are an American citizen's right to speech and privacy, as per the First and
Fourth Amendments respectively. Nonetheless, as early as the Civil War, the
United States Government has continually
infringed upon those rights via electronic monitoring programs [*438] directed towards the general public.
Regrettably, this monitoring activity has accelerated since the tragic terrorist attacks against the
American public on 9/11. This acceleration has been instigated by the Executive Branch's insistence that such power is found within
either the AUMF or Article II of the United States Constitution. However, constitutional restrictions found within the First
Amendment, Fourth Amendment, and the doctrine of separation of powers refute such claims. Additionally,
Supreme Court precedent, the history of wartime surveillance in the United States, and principles of
statutory construction all fail to sustain the Executive Branch's extraordinary claim of authority. Accordingly,
drastic measures are necessary to control the current power and ability of the Executive Branch while
maintaining the tools necessary for the government to protect the American people from a future
terrorist attack. In so doing, it is recommended a modified application of the National Security Letters
Reform Act of 2007 be adopted by both houses of Congress. If this achievement is realized, it has the potential of
restoring First and Fourth Amendment protections, and the Judicial Branch's constitutional authority,
which have contributed to the greatness of the United States of America over the past 200 years.
We must have congressional oversight- allowing the executive to reform itself
empirically fails and ensures expansion of surveillance
Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and
Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in
Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymakin
g%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,
After audits belatedly revealed significant problems with both national security letters and business-records orders,
Congress made
little effort to improve the Patriot Act. Instead, it essentially looked away and allowed the executive to
rewrite the rules for seizing private information. Many legislators agreed that the FBI should be required to discard captured
materials not linked to terrorism suspects or foreign spies. In 2007 and again in 2009, Democrats offered multiple bills that added this
requirement to national security letters.24 However, even though Democrats had large majorities in Congress, they allowed these bills to die in
committee and instead deferred to the Obama administration. Eventually, Justice
Department officials drafted rules
requiring agents to delete all non-relevant information gathered with national security letters.25 It is
unclear why Congress passed the buck to the Obama administration. But by doing so, it gave the
executive the latitude to loosen or eliminate these rules at some later point. Congress also failed to revisit the
business-records provision. Initially, it appeared that lawmakers were willing to ignore security concerns and let six-month processing delays of
court orders hamper investigations. However, recent leaks about NSA programs indicate that Congress
had in effect simply turned
the entire issue over for secret policymaking by the executive branch. Recently, The Guardian reported that the
Bush administration in 2006, without public disclosure, had adopted a radical reinterpretation of the
business-records provision to authorize the daily collection of all domestic phone records.26 These data, or
“metadata” as they are termed, include the phone numbers of callers and receivers, the length and time of
calls, and sometimes the locations of phone participants. Originally, the businessrecords provision granted far more
limited authority. It allowed investigators to capture private materials on the basis of a court order in a specified terrorism case.27 The Bush
administration decided that such an order could be used to capture all communication logs from a specific phone carrier, such as Verizon or
AT&T. Authorities could now scoop up tens of millions of phone records with a single order issued by the FISA Court. The
Bush
administration first briefed members of Congress about the metadata program in 2006.28 Yet aside from two
senators, Mark Udall (D-CO) and Ron Wyden (D-OR), no one objected to the NSA dragnet or the drastic modifications
to the business-records provision.29 By letting Bush’s reinterpretation (subsequently maintained by
Obama) go unchallenged, Congress abdicated its legislative role and allowed the executive to develop
new surveillance law unilaterally.
CASE
Inherency
Even though the FBI has enacted some changes, they still lack basic judicial oversight
Weinstein in 2015 (Brett Weinstein; Washington University School of Law, “Legal Responses and
Countermeasures to National Security Letters”, Lexisnexis.com, 2015 Washington University Journal of
Law & Policy, 34 pgs., Database,
http://www.lexisnexis.com.proxy.library.umkc.edu/hottopics/lnacademic)
On February 3, 2015, Director of National Intelligence James Clapper announced changes to government
surveillance policies which implement the reforms outlined by President Obama in January, 2014. n122
Among them, In response to the President's new direction, the FBI will now presumptively terminate National
Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated
investigation or the investigation's close. [*239] Continued nondisclosures orders beyond this period are
permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory
standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why
continued nondisclosure is appropriate. n123 In other words, although NSLs statutorily may continue to be
issued with a perpetual gag order, the FBI will adopt a policy whereby it sometimes voluntarily
terminates the gag order after three years. This change, while an improvement over the previous policy
of allowing all gag orders to stand in perpetuity, does not implement the changes recommended by the
President's Review Group on Intelligence and Communications Technologies or dragnet surveillance
opponents. The new policy "doesn't address concerns that NSL gag orders lack adequate due process
protections, lack basic judicial oversight, and may violate the First Amendment." n124
SOP Advantage
NSLs up now
NSLs have increased dramatically since their inception
Clarke et al in 2013 (Richard, National Coordinator for Security, “Report and Recommendations of
The President’s Review Group on Intelligence and Communications Technologies”, The Review Group on
Intelligence and Communication Technologies,
https://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf)
Although NSLs were initially used sparingly, the FBI issued 21,000 NSLs in Fiscal Year 2012, primarily for
subscriber information. NSLs are most often used early in an investigation to gather information that might link suspected terrorists or spies to
The PATRIOT Act of 2001 significantly expanded the FBI’s
authority to issue NSLs. First, the PATRIOT Act authorized every Special Agent in Charge of any of the
Bureau’s 56 field offices around the country to issue NSLs. NSLs therefore no longer have to be issued by
high-level officials at FBI headquarters.
each other or to a foreign power or terrorist organization.
The number of NSL requests has exploded because the Patriot Act lowered standards
for usage.
Andrew E. Nieland in 2006 A.B., Harvard College, 1997; J.D., Cornell Law School, 2007, NATIONAL
SECURITY LETTERS AND THE AMENDED PATRIOT ACT, CORNELL LAW REVIEW,
http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Nieland.pdf
Over the years, the FBI has repeatedly sought to expand the circumstances under which its agents could
issue NSLs.5 Congress delivered a particularly robust expansion in section 505 of the USA PATRIOT Act of
2001 (Patriot Act),6 which allowed the FBI to issue an NSL in circumstances roughly comparable to those
in which a federal prosecutor could obtain a grand jury subpoena.7 After the Patriot Act’s passage, the
number of NSLs issued apparently8 exploded— from “hundreds” between 1978 to 2001,9 to perhaps
“more than 30,000” per year from 2002 to 2005.10
FBI sends nearly 48,000 more letters per year after the Patriot Act, 60 every dayReview Group Reports
Electronic Frontier Foundation, no date, “National Security Letters FAQ” Electronic Frontier
Foundation, https://www.eff.org/issues/national-security-letters/faq
How many NSLs have been issued? Over 300,000 NSLs have been issued in the past 10 years alone. The
most NSLs issued in a single year was 56,507 in 2004. In 2013, President Obama’s Intelligence Review
Group reported; that the government continues to issue an average of nearly 60 NSLs every day. By
contrast, in 2000 (the year before the passage of the USA PATRIOT Act that loosened NSL standards),
8,500 NSLs were issued.
The scope of NSLs are overreaching and unwarranted
Wells 12 (Desirae L. Wells, “NATIONAL SECURITY LETTERS: WHY REFORM IS NECESSARY”,
LexisNexis.com, Yeshiva University 2012, 18 pgs., Database, 6/28/15,
http://www.lexisnexis.com.proxy.library.umkc.edu/hottopics/lnacademic/)
A National Security Letter ("NSL") is a form letter signed by an FBI Agent, with no judicial approval,
compelling disclosure of sensitive information held by banks, credit companies, telephone carriers and
Internet Service Providers. NSLs provide the Government with an extraordinary power and are
controversial because of this extraordinary power. This power has been expanded under the Patriot Act.
There has been much opposition to NSLs. Some argue that NSLs are an "unreasonable" search and
seizure of customer records and thus a violation of the Fourth Amendment; the scope of NSLs is
overreaching and unwarranted; NSLs are coercive in nature and the requirement of secrecy is
dangerous; and most importantly, the lack of judicial oversight is unconstitutional. Essentially,
opponents argue that we must not impede on our constitutional rights in the name of "protecting the
country from terrorists."
The FBI issued over 24,000 National Security Letters on over 14,000 people in
2010
Dilanian, 2011 Ken. "A Key Sept. 11 Legacy: More Domestic Surveillance." Los Angles Times. The Los
Angles Time, 29 Aug. 2011. Web. 29 June 2015.
WASHINGTON - Internet entrepreneur Nicholas Merrill was working in his Manhattan office when an FBI agent in a trench coat arrived with an
envelope. It was fall 2004, and federal investigators were using new legal authority they had acquired after Sept. 11, 2001. Merrill ran a small
Internet service provider with clients including IKEA, Mitsubishi and freelance journalists. The agent handed Merrill a document called a
National Security Letter, which demanded that he turn over 16 categories of detailed records on one of his customers. The letter wasn't signed
by a judge or prosecutor. It instructed him to tell no one. "Not even my lawyer? Not even my business partners?" Merrill asked. The agent
shrugged and left. Merrill had gotten a rare glimpse of the secret domestic intelligence gathering that is one of the most significant legacies of
9/11. Determined to ferret out terrorist plots, U.S. law enforcement and intelligence agencies now collect, store and analyze vast quantities of
digital data produced by law-abiding Americans. The data mining receives limited congressional oversight, rare judicial review and almost no
public scrutiny. Because of new laws and technologies, authorities track and eavesdrop on Americans as they never could before, hauling in
billions of bank records, travel receipts and other information. In several cases, they have wiretapped conversations between lawyers and
defendants, challenging the long- established legal principle that attorney-client communication is inviolate. Advocates say the expanded
surveillance has helped eliminate vulnerabilities identified after the 9/11 attacks. Some critics, unconvinced, say the snooping undermines
privacy and civil liberties and leads inevitably to abuse. They argue that the new systems have weakened security by burying investigators in
irrelevant information. "We are caught in the middle of a perfect storm in which every thought we communicate, every step we take, every
transaction we enter into is captured in digital data and is subject to government collection," said Fred H. Cate, a professor at the Indiana
University Maurer School of Law who has written extensively on privacy and security and who testifies frequently before Congress. A robust
debate on the new intelligence gathering has been impossible, for the simple reason that most of the activity is officially secret. In lawsuits
alleging improper eavesdropping, the Justice Department has invoked state secrecy to prevent disclosure of classified information and systems.
In May, two members of the Senate Intelligence Committee said Americans would be disturbed if they knew about some of the government's
data gathering procedures. However, Sens. Ron Wyden, D-Ore., and Mark Udall, D-Colo., said they are prohibited from revealing the facts.
"When the American people find out how their government has secretly interpreted" surveillance law, "they will be stunned and they will be
angry," Wyden said. The National Security Agency, which eavesdrops on foreign targets, once had to get a court-approved warrant to monitor a
U.S. citizen's communications over wires that traverse the United States. Now, the agency is free to vacuum up communications by Americans
and foreigners alike, as long as the target of the surveillance is a foreigner. Exactly what records are kept and how they are used is not well
understood, even by lawmakers who oversee the intelligence agencies, said Rep. Rush D. Holt, D-N.J., who chaired the now-expired Select
Intelligence Oversight Panel. "The NSA finds it pretty easy to snow members of Congress by confusing them," Holt said. Officials from the FBI
and NSA say they follow strict rules to avoid abuses. However, in
2007, the Justice Department's inspector general found
that the FBI had engaged in "serious misuse" of its authority to issue National Security Letters, claiming
urgency in cases where when none existed Such letters, a kind of administrative subpoena, are key to
the increased surveillance. Courts have ruled that the government doesn't need a search warrant, which
requires a judge's approval, to obtain records held by "third parties," such as hotels, banks, phone companies or
Internet providers. So the government has used National Security Letters to get the data, issuing 192,500 of
the letters between 2003 and 2006, according to an audit by the Justice Department inspector general.
The numbers have dropped sharply since then, but the FBI issued 24,287 National Security Letters last
year for data on 14,212 Americans. That's up from a few thousand letters a year before 2001. "It used to
be the case that if the government wanted to find out what you read and what you wrote, it would have
to get a warrant and search your home," said Daniel J. Solove, a law professor at George Washington
University and the author of numerous books and articles on privacy law. Now, "it just obtains your Amazon purchase
records, your Facebook posts, your Internet browsing history - without you even knowing." There is nothing
necessarily wrong with that, advocates argue. "As we put more data in the cloud, as we share more data online, we become less shocked when
the police have access to it," said Stewart Baker, a former NSA general counsel and policy chief at the Department of Homeland Security.
Privacy activists disagree. "I think it's a world of difference between what a person decides to post publicly and what the FBI collects about
them secretly," said Gregory Nojeim, senior counsel at the Center for Democracy & Technology, a Washington-based civil liberties group. U.S.
intelligence officials insist that the new surveillance powers have been crucial to stopping terrorist plots. They cite the case of Najibullah Zazi,
an Afghan-American who planned to bomb New York City subways in 2009. Warrants were obtained under the Foreign Intelligence Surveillance
Act, or FISA, to search Zazi's vehicle and eavesdrop on his calls. The evidence was used to secure his guilty plea to terrorism charges. Unlike a
search warrant in a criminal case, obtaining a FISA warrant does not require convincing a judge that there is probable cause to believe a crime
was committed. Instead, the government must show probable cause that the target is an agent of a foreign power, whether a diplomat,
terrorist or spy. Because of the different legal standard, information gathered from FISA warrants tended not to be used in criminal cases a
decade ago. Now that line has been blurred. In the Zazi case, the wiretapped conversations were revealed during pretrial discovery and are
believed to have helped persuade the defendant to plead guilty. "Zazi is a very good example of the melding of intelligence authorities and
criminal authorities," said a senior law enforcement official, speaking on condition of anonymity. "We needed to move quickly, and we never
could have done it like that" before Sept. 11. The Zazi case revealed another new reality. Earlier this year, the government disclosed that it had
recorded 43 conversations between Zazi's co-defendant, Adis Medunjanin, and his lawyer, Robert Gott-lieb. With rare exceptions, such
conversations are off-limits to investigators in criminal cases - unless they obtain a FISA warrant. FISA warrants also enabled the FBI to bug the
phones and break into the home of Oregon lawyer Brandon Mayfield, a convert to Islam, after a faulty FBI fingerprint analysis linked him to the
2004 Madrid train bombings, which killed nearly 200 people. The FBI initially refused to tell Mayfield or his family why or where he was being
held. He wasn't released until Spanish authorities announced that the fingerprint belonged to an Algerian suspect. Two years later, the U.S.
government formally apologized to Mayfield and paid him a reported $2 million settlement. A federal judge later ruled in Mayfield's favor that
provisions of the USA Patriot Act, allowing the FBI to use FISA to conduct "surveillance and searches of American citizens without satisfying the
probable-cause requirements of the Fourth Amendment," were unconstitutional. The government appealed, and the ruling was overturned in
2009. By then, the Obama administration had largely embraced the surveillance strategies and systems developed under President George W.
Bush. Bush gave the National Security Agency authority to eavesdrop on Americans communicating with foreigners abroad without first
obtaining a FISA warrant, deeming the process too slow to foil unfolding plots. As a U.S. senator, Obama condemned the so-called "wireless
wiretapping" after The New York Times made it public in 2005. However, when he ran for president in 2008, Obama voted for legislation that
granted retroactive legal immunity to telecommunications companies that had secretly helped the government eavesdrop. The law also
retroactively legalized other forms of surveillance, former intelligence officials say, including "bulk" monitoring that allows the government to
intercept all email traffic between America and a range of suspect email addresses in, say, Pakistan. The government's goal is "to find the kind
of patterns that maybe will lead them to evidence of some kind of terrorist plot, and maybe thereafter they can then zero in on a suspect," said
Joel Margolis, a regulatory consultant for Subsentio, a Colorado firm that helps telecommunications companies comply with law enforcement
requests. "It's just the opposite of what we've done in our tradition of law, where you start with a suspect." Privacy advocates say the
government should acknowledge how many Americans have had their communications intercepted in recent years. However, after Democrats
on the House Intelligence Committee requested that information, the Obama administration responded in July that it was "not reasonably
possible to identify the number." MCT photo Nick Merrill, who ran an Internet service provider, received an FBI National Security letter
demanding one of his client's Internet records. He successfully fought the demand in court. Merrill got a rare glimpse, though, of the secret
domestic intelligence gathering that is one of the most significant legacies of 9/11.
Squo Reforms Fail
Reforms Not in Place Now– FBI taking too long on gag orders
Fisher in 2015 (Dennis, “Confusion Reigns Over FBI’s Plans for National Security Letter Gag Orders”,
Threat Post, https://threatpost.com/confusion-reigns-over-fbis-plans-for-national-security-letter-gagorders/111494)
Recently, the Office of the Director of National Intelligence issued a report disclosing the intelligence community’s progress in addressing the
changes that Obama asked the various agencies to make in their collection and analysis programs. In
the report, the ODNI said that
the FBI would change the length of time the NSL gag orders run. “In response to the President’s new
direction, the FBI will now presumptively terminate National Security Letter nondisclosure orders at the
earlier of three years after the opening of a fully predicated investigation or the investigation’s close,”
the report says. “Continued nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant
Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why
continued nondisclosure is appropriate.”
However, in a letter unsealed this week, an attorney from the
Department of Justice said that the bureau is still considering how that process is going to work. “The
FBI is in the process of formulating and drafting guidelines for the implementation of the policy
described in the Report. Because this process is not yet complete, the potential applicability of the new
policy to the NSLs at issue in the above-referenced appeals remains to be determined. We will advise the Court
when this additional information becomes available,” Katherine T. Allen, an attorney in the civil division at the DoJ wrote in the letter. The
confusion on how the FBI plans to handle NSL gag orders in the future is not sitting well with the EFF,
which is involved in some law suits regarding the use of the letters. “The government should not be
telling everyone that reforms are in place “now,” when the truth is something different,” Nadia Kayyali
of the EFF wrote in a blog post. “Even if this new policy was actually implemented, it would not solve the
deep constitutional problems with National Security Letters.”
Reforms Not in Place Now – FBI issued reports on supposed reforms that did not
happen
Kayyali in 3/5/15 (Nadia, “Government "Clarifies" Its Stance on NSL Gag Orders”, Electronic Frontier
Foundation, https://www.eff.org/deeplinks/2015/03/government-clarifies-its-stance-nsl-gag-orders)
If you've been following our national security letter cases,
you know that the government had to retract a statement
made before the Ninth Circuit that minimized the devastating effect of these gag orders. Unfortunately, it
seems that wasn't the last time the government made a misleading statement about gag orders. In its
Signals Intelligence Reform 2015 Anniversary Report, the government proudly announced to the world:
"[T]he FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier
of three years after the opening of a fully predicated investigation or the investigation’s close." (emphasis
added). This might lead you to believe that the government's purported reforms were in place. Not so
much. In a February 12 letter to the Ninth Circuit, unsealed yesterday, the government explained: The
FBI is in the process of formulating and drafting guidelines for the implementation of the policy
described in the Report. Because this process is not yet complete, the potential applicability of the new policy to the NSLs at issue in
the above-referenced appeals remains to be determined. We will advise the Court when this additional information becomes available. The
government should not be telling everyone that reforms are in place "now," when the truth is
something different.
Current reforms of NSLs do not go far enough- they are voluntary and still allow openended investigations that bypass judicial and congressional oversight
Brett Weinstein in J.D. (2015), Washington University School of Law; B.A. (2010), Legal Responses
and Countermeasures to National Security Letters, Washington University Journal of Law & Policy 47
Wash. U. J.L. & Pol'y 217
In 2011, on behalf of an unnamed NSL recipient, the
Electronic Frontier Foundation (EFF) brought a new challenge to
NSLs in In Re National Security Letter. n65 On March 14, 2013, the District Court for [*229] the Northern District of California
granted the petition and declared that the nondisclosure provisions of the NSL statutes are not sufficiently narrowly tailored to serve
compelling governmental interests in national security without unduly burdening speech protected by the First Amendment. n66 This court also
agreed with the Mukasey decision and found that the provisions of NSL statutes which mandate the standard of review and level of deference
applied to the government certifications were violative of the First Amendment and separation of powers principles. n67 The
court also
ruled that the nondisclosure portion of the statute was not severable in that NSLs could not achieve
their function without the nondisclosure order, and therefore the entire statute, including the
underlying power to obtain customer records, is unenforceable. n68 The government appealed. n69 Since
this ruling declaring the NSL statutes illegal, Google has tried and failed at least twice to avoid
complying with them. n70 [*230] Challenges have also been mounted against other statutes purporting to allow the government to
collect electronic communications information without a warrant. Klayman v. Obama n71 and ACLU v. Clapper n72 concern the warrantless
collection of so-called "metadata" n73 pursuant to 50 U.S.C.A. § 1861, otherwise known as Section 215 of the PATRIOT Act. n74 Section 215
permits the government to obtain metadata records related to foreign [*231] intelligence through an ex parte appearance before the FISC. n75
Bulk collection under Section 215 is premised upon the third party doctrine described in Smith v. Maryland. n76 In a marked shift, the District
Court for the District of Columbia in Klayman v. Obama found that Smith v. Maryland and the third party doctrine were not controlling and
therefore did not extinguish the expectation of privacy a person has when using a telephone company or ISP. n77 Accordingly, the court held
that Section 215 is likely unconstitutional. n78 The court based its decision on United States v. Jones, the vastly altered technological landscape
since the Supreme Court handed down Smith, and the scale of the mass surveillance presented by the case. n79 In contrast, ACLU v. Clapper,
handed down by the District Court for the Southern District of New York just days after Klayman v. Obama, raised the same question regarding
the constitutionality of mass metadata collection under Section 215 and came to the opposite decision. n80 The court found that Smith and the
third party doctrine are controlling and bar an attack on Section 215 based on the reasonable expectation of privacy. n81 A District Court in the
District of Ohio held similarly in Smith v. Obama. n82 [*232] Crucially, the NSL statutes rely upon the same exception to the Fourth Amendment
as bulk collection under Section 215: the third party doctrine established by Smith. n83 If the third party doctrine is overturned or ruled
inapplicable to Section 215, it should be overturned or ruled inapplicable to the even more relaxed standards of NSLs. Should both opinions be
affirmed on appeal (or should they both be reversed), the issue will be ripe for Supreme Court review. n84 II. Disclosure of Aggregate Statistics
of Issued NSLs Customers of businesses that collect user data and records expect that data to be kept private unless permission is granted for
the data to be shared, or unless the government has proper legal authority to obtain them. The secrecy of NSLs undermines that trust because
customers do not know how frequently a business passes its data or records on to the government. This problem is particularly acute for
companies with business models that emphasize the security of housing data in the cloud - storage on dispersed, third party servers rather than
the customers' own servers. Even prior to the disclosures in June of 2013 by NSA contractor Edward Snowden revealing the extent of US
governmental surveillance, n85 several American technology companies began to issue "transparency reports" to allow the public to discern
how frequently the government requests and gains access to private data through search warrants and court subpoenas. n86 In March of 2013,
Google, with the government's permission, began to publish broad ranges of figures describing the number of NSLs it has received [*233]
annually. n87 Following Edward Snowden's disclosures, many more companies sought to make clear that their cooperation with the
government is compulsory, and that requests for information are not frequent or routine. n88 AOL, Apple, Facebook, Google, LinkedIn,
Microsoft, and Yahoo recently signed an open letter in support of a bill entitled the USA Freedom Act. n89 The letter focuses primarily on the
issue of transparency, namely, allowing these companies to disclose more information about what data the government has requested of them.
n90 The Act aims to rein in dragnet collection of data, n91 increase transparency of the FISC, provide companies the ability to release
information regarding FISA requests, and create an independent constitutional advocate to argue cases before the FISC. n92 The bill would also
require unclassified reports on NSLs, including "aggregate number of requests relating to US persons, non-US persons, persons subject to
national security investigation, persons [*234] linked to a subject of a national security investigation, and persons not subject to an
investigation or linked to a subject of an investigation." n93 Although the bill failed in the Senate on November 18, 2014, in a 58-42 vote,
Senator Patrick Leahy has committed to continue working towards its passage. n94 On June 11, 2013, Google asked the Attorney General and
FBI for permission to publish more explicitly the number and scope of secret subpoenas, including NSLs and FISA requests. n95 When the
government refused to allow such disclosures, Google filed a motion seeking a declaratory judgment of its right to publish aggregate
information about the subpoenas, such as the total number of requests for data received and users of accounts encompassed within such
requests. n96 Shortly thereafter Microsoft filed a similar motion. n97 Yahoo, Facebook, and LinkedIn filed motions seeking the same
declaratory judgment in September. n98 Moreover, Apple stated that it [*235] would file an amicus brief with the Ninth Circuit in support of
greater transparency regarding NSLs. n99 On January 17, 2014, President Obama announced reforms to the various surveillance activities
revealed by Snowden. Among them, Obama pledged that with regard to NSLs, Secrecy will not be indefinite, so that it will terminate within a
fixed time unless the government demonstrates a real need for further secrecy. We will also enable communications providers to make public
more information than ever before about the orders that they have received to provide data to the government. n100 On January 27, 2014, the
Obama administration announced that it would allow aggregate numbers of secret data requests to be disclosed pursuant to Executive Order
13526, § 3.1(c) to settle the filed motions and create a new framework for reporting on national surveillance requests. n101 According to a
letter written by James M. Cole, Deputy Attorney General (DAG Letter), going forward, the settling companies and all others may begin
reporting the number of NSLs (and FISA orders) received in bands of 1,000. Further, each company may also report the number of accounts
affected collectively by the NSLs (and FISA orders), in ranges of 1,000. n102 Companies may publish the figures once every six months, with a
[*236] six-month delay in reporting periods. n103 There is a two-year delay for any "new capability"-any new type of service a company offers.
n104 Alternatively, a company may report the total number of all "national security process" received, including all NSLs and FISA orders (and
the total number of "customer selectors" - i.e., accounts), reported as a single number in bands of 0-249 and thereafter in bands of 250. n105
The exception allowing for perpetual gag orders when "the government demonstrates a real need for further secrecy" is a loophole that may
render the announced changes meaningless. n106 Opponents of dragnet government surveillance generally felt that the reforms announced by
the President did not go far enough. n107 Twitter, for instance, decried the improvements as not meaningful. n108 Indeed, in October of 2014,
Twitter filed a lawsuit seeking declaratory judgment that it has the right to publish a Transparency Report that does not follow the framework
established in the DAG [*237] Letter. n109 Twitter alleged that the government prohibits services like Twitter "from providing their own
informed perspective as potential recipients of various national security-related requests." n110 Twitter explained that it submitted a draft
Transparency Report to the government, but after five months, the government informed Twitter that "information contained in the
[transparency] report is classified and cannot be publicly released" because it does not comply with the DAG Letter framework. n111 The
complaint stated that the government's "position forces Twitter either to engage in speech that has been preapproved by government officials
or else to refrain from speaking altogether." n112 Specifically, Twitter objects to the requirement that the first interval that can be reported
ranges from 0-249, precluding an announcement that Twitter has received zero NSLs. n113 Twitter's argument mirrors many of the arguments
made in In Re National Security Letter with a few additions. n114 Like the plaintiff in that case, Twitter claims "The nondisclosure and judicial
review provisions of 18 U.S.C. § 2709(c) are facially unconstitutional under the First Amendment." n115 It also claims that 18 U.S.C. § 2709(c) is
unconstitutional as applied to Twitter. n116 Like the plaintiffs in In Re National Security Letter, Twitter claims that altering of the standard of
review for NSLs represents a violation of separation of powers principles. n117 Twitter additionally claims that the DAG Letter violates the
Administrative Procedure Act for a variety of reasons, including [*238] that it "represents a final agency action not in accordance with law."
n118 In seeking dismissal, the government has responded that the DAG Letter itself does not limit Twitter's ability to publish its Transparency
Report. n119 Instead, "any such restrictions stem from other authority, including statutory law such as FISA, applicable orders and directives
issued through the [FISC], and from any applicable nondisclosure agreements." n120 The government explained that on "January 27, 2014, the
Director of National Intelligence declassified certain aggregate data concerning national security legal process so that recipients of such process
could reveal aggregate data," and the DAG Letter merely defines what may be published following this declassification. n121 The outcome of
this case may help to clarify not only which statistics companies may disclose in the interests of transparency, but whether warrant canaries,
discussed below, are legal. On February 3, 2015, Director of National Intelligence James Clapper announced changes to government
surveillance policies which implement the reforms outlined by President Obama in January, 2014. n122 Among them, In
response to the
President's new direction, the FBI will now presumptively terminate National Security Letter
nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or
the investigation's close. [*239] Continued nondisclosures orders beyond this period are permitted only if
a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for
nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued
nondisclosure is appropriate. n123 In other words, although NSLs statutorily may continue to be issued with a
perpetual gag order, the FBI will adopt a policy whereby it sometimes voluntarily terminates the gag
order after three years. This change, while an improvement over the previous policy of allowing all gag orders to
stand in perpetuity, does not implement the changes recommended by the President's Review Group on
Intelligence and Communications Technologies or dragnet surveillance opponents. The new policy
"doesn't address concerns that NSL gag orders lack adequate due process protections, lack basic
judicial oversight, and may violate the First Amendment." n124
Reforms of NSL procedures have failed- requests keep going up, with numerous cases
of abuse and failure to follow procedure
DESIRAE L. WELLS in 2012, JD from Brooklyn Law and an LLM (in Intellectual Property) from Benjamin
N. Cardozo School of Law. She is currently a Vice President at Bank of America/Merrill Lynch, working in
the areas of Corporate Law, Intellectual Property and Securities Law, NATIONAL SECURITY LETTERS:
WHY REFORM IS NECESSARY, 2012 Cardozo L. Rev. De Novo 216, lexis
Subsequently, as a result of the Ashcroft and Gonzalez litigation,
Congress attempted to fix the NSL statutes when it
passed the USA Patriot Improvement and Reauthorization Act of 2005 (the "Reauthorization Act"). n65 The NSL
statute amendments were driven both by sensitivity to an administrative desire for more explicit enforcement authority, n66 and by judicial
developments which had raised questions as to the statutes' constitutional vitality as written. n67 The statutes then came with open-ended
nondisclosure provisions which barred recipients from disclosing the fact or content of the NSL - ever or to anyone. Yet, they featured neither a
penalty provision should the confidential requirement be breached nor, in most cases, an enforcement mechanism should a NSL obligation be
ignored (the original FCRA statute alone had an explicit judicial enforcement component). The amendments created a judicial enforcement
mechanism and a judicial review procedure for both the requests and accompanying nondisclosure requirements. n68 They established specific
penalties for failure to comply with the nondisclosure requirements - a new crime punishable up to 5 years in prison for "willful disclosure of an
NSL with intent to obstruct an investigation." n69 Yet, they made it clear that the nondisclosure requirements did not preclude a recipient from
consulting an attorney. n70 Under
the NSL statutes' amendments in the Reauthorization Act, , businesses could
challenge NSLs, but they really had no incentive to do so. The costs of providing the records are far less
than hiring a [*229] lawyer to challenge the requests. The requests are secret, so customers never learn of
them, thus providers cooperating with the government are never forced to justify compliance. Also, the
companies that comply have immunity, so even if a customer found out that her records were shared,
she has no remedy against the company that disclosed the records, regardless of whether the disclosure was justified
or not. These amendments also provided a process to ease the nondisclosure requirement. n71 Libraries were
no longer subject to NSLs except to the extent they provided email access, but bookstores and sites like Amazon.com were still covered. Finally,
the amendments expanded Congressional oversight, n72 and called for Inspector General's audits of use of NSL authority. n73 As part of the
Reauthorization Act of 2006, Congress directed the Department of Justice (DOJ), Office of the Inspector General (OIG) to review the
effectiveness and use, including any improper or illegal use of NSLs issued by the DOJ. The OIG issued two Reports. n74 The first in 2007
addressed the FBI's use of NSLs for calendar years 2003 through 2005. The second in 2008 addressed the FBI's use of NSL for calendar year
2006. The OIG Reports confirmed that the
Patriot Act transformed NSLs into a much more frequently employed
investigatory tool. Specifically it stated that "the FBI issued approximately 8,500 requests in 2000 the
year prior to the passage of the Patriot Act and after the passage of the Patriot Act, the number of NSL
requests increased to approximately 39,000 in 2003, 56,000 in 2004 and 47,000 in 2005. n75 The Reports made a distinction
between NSLs and NSL Requests - a single NSL may contain multiple requests for information. The OIG Reports specified that the 39,000
requests in 2003 were contained in approximately 12,000 letters and the 47,000 requests in 2005 were contained in 19,000 letters. n76
According to the OIG Reports, there were 3 main reasons for the dramatic increase in the number of NSL
requests issued starting in 2003. n77 First, the Patriot Act eliminated the requirement that an NSL be
issued only if "there are specific and articulable facts giving reason to believe that the person or entity to whom the
information sought [*230] pertains is a foreign power or an agent of a foreign power." n78 Instead, the information need only be
"relevant to an authorized investigation to protect against international terrorism or clandestine activities," n79 a much
lower standard. Second, previously a NSL had to be approved by a senior FBI official at FBI headquarters but
NSLs could now be authorized by Special Agents in Charge at FBI field offices. As a result, approval is no longer a
lengthy process and generally takes only two to five days. n80 Third, in 2003, the Attorney General issued revised guidelines governing the
use of NSLs in FBI national security investigations (the "NSI Guidelines"). The revised NSI guidelines permit NSLs to be issued
during preliminary investigations; under the old guidelines NSLs could only be issued during full investigations. n81 The OIG
Reports found that in addition to significantly underreporting the number of NSL requests issued, the
FBI failed in a number of other significant ways as well. According to the reports, the agency under-reported
violations arising from the use of NSLs; sought information not permitted by the statute; issued NSLs without proper
authorization; issued over 700 "exigent letters" requesting the type of information covered by § 2709 without following the process for
obtaining an NSL; and repeatedly failed to properly adhere to the FBI's own internal documentation
requirements for approval of an NSL. n82 The OIG Reports also provided a glimpse at how the individual NSL statutes were
practically used and why they were considered so valuable to investigators. In the case of an ECPA NSL statute, the Reports explained that:
Through NSLs, an FBI field office obtained telephone billing records and subscriber information about an
investigative subject in a counterterrorism case. The information obtained identified the various telephone numbers with
which the subject had frequent contact. Analysis of the telephone records enabled the FBI to identify a group of individuals residing in the same
vicinity as the subject. The FBI initiated investigations on these individuals to determine if there was a terrorist cell operating in the city... n83
Headquarters and field personnel told us that the principal objective of the most frequently used type of [*231] NSL - ECPA NSLs seeking
telephone billing records, email records or subscriber information - is to develop evidence to support applications for FISA orders. n84 The RFPA
NSL statute also affords authorities access to a wide range of information (bank transactions records v. telephone transaction records): The FBI
conducted a multi-jurisdictional counterterrorism investigation of convenience store owners in the United States who allegedly sent funds to
known Hawaladars (persons who use the Hawala money transfer system in lieu of or parallel to traditional banks) in the Middle East. The funds
were transferred to suspected Al Qaeda affiliates. The possible violations committed by the subjects of these cases included money laundering,
sale of untaxed cigarettes, check cashing fraud, illegal sale of pseudoephedrine (the precursor ingredient used to manufacture
methamphetamine), unemployment insurance fraud, welfare fraud, immigration fraud, income tax violations, and sale of counterfeit
merchandise. n85 The FBI issued NSLs for the convenience store owners' bank account records. The records showed that two persons received
millions of dollars from the subjects and that another subject had forwarded large sums of money to one of these individuals. The bank analysis
identified sources and recipients of the money transfers and assisted in the collection of information on targets of the investigation overseas.
n86 With respect to the FCRA NSL statutes, the OIG Reports added: The Supervisor of a counterterrorism squad told us that the FCRA NSL
statutes enable the FBI to see "how their investigative subjects conduct their day-to-day activities, how they get their money, and whether they
are engaged [*232] in white collar crime that could be relevant to their investigations". n87 The
Reports found that the FBI relied
on unauthorized "exigent letters" to demand telephone billing records and subscriber information. The FBI
entered into contracts with three telephone companies to obtain information outside of the NSL process through exigent letters. Over 700
exigent letters were issued to the three companies between March 2003 and December 2005. There were sometimes no open investigations
tied to the exigent letter requests. Even though the exigent letters stated that "subpoenas requesting this information have been submitted to
the U.S. Attorney's Office who will process and serve them formally as expeditiously as possible", the OIG could not confirm one instance in
which a subpoena had been submitted to any United States Attorney's Office before the exigent letter was sent to the telephone companies.
n88 The
Reports also provided some startling statistics. There were 143,074 requests for information
from 2003-2005, approximately half concerning U.S. citizens. None of the information obtained by NSLs
was required to be destroyed even after the information was determined to concern innocent
Americans. There were 3,000 different telephone numbers that the FBI requested information on, and telecommunications companies
turned over, in false emergencies under so-called "exigent" circumstances, in the complete absence of legal authority. The Reports noted that
during the same period, there
were 34,000 law enforcement and intelligence agents who had unfettered,
nearly limitless access to phone records collected through NSLs. There were 11,100 different phone numbers whose
subscriber information was turned over to the FBI in response to only nine NSLs. In stark contrast to the volume of information collected, the
FBI made a mere forty-three confirmed criminal referrals to prosecutors after issuing an NSL. Nineteen involved fraud, seventeen were
immigration related and seventeen were for money laundering. Only one of the 143,074 persons' information collected through NSLs resulted
in a terror-related conviction that the Inspector General was able to confirm with material support. Finally, while
noting the
significant challenges and major structural changes the FBI was facing during the period covered and the
lack of any misuse rising to the level of criminal misconduct, the OIG Reports nonetheless concluded
that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines and internal
FBI policies.
At: Reforms Solve
FBI ignores agency reforms or rules– even after IG reports, there is repetition of past
abuses
Sinnar 2013, Shirin Sinnar (Assistant Professor of Law, Stanford Law School), May 2013, “Protecting
Rights from Within? Inspectors General and National Security Oversight”, Stanford Law Review
The final, and arguably most important, dimension of rights oversight is the revision of agency rules to
prevent future abuses, whether through improving agency processes or imposing new "substantive"
constraints on agency discretion. The most significant "substantive" reform that resulted directly from IG
oversight is the termination of the use of exigent letters, which the FBI ordered following the DOJ IG's
first report on NSLs. n279 In addition, the CIA IG interrogations report possibly contributed to a decision not to waterboard further
detainees, although based on the public record it is difficult to separate out the effect of the IG report from the more public pressure resulting
from the infamous Abu Ghraib scandal. Apart
from these effects, the IG reports seem to have created more
procedural reform and oversight than substantive change, and largely left executive agencies with the
broad legal discretion to repeat past abuses. Both DOJ IG reviews resulted in the reform of agency
processes that could improve decisionmaking and compliance with existing rules. The reports called for
better processes for inter-and intra-agency consultation, improved training and guidance to staff, increased
internal legal oversight of agency actions, and better recordkeeping to facilitate evaluations of legal
compliance. n280 Following [*1071] the September 11 detainees report, the FBI agreed with an IG recommendation to use more objective
criteria, such as watch list status, to designate detainees as subjects of investigative interest, responding to the arbitrary manner by which
many innocent post-9/11 detainees were deemed threats. n281 The IG credited agencies with a relatively high level of compliance with its
recommendations. n282 Some
of these recommendations, and the resulting dialogue between the IG and host agencies in
addressing them, employed a level of technical detail unthinkable in judicial interventions or congressional
committee oversight: for instance, the IG and FBI went back and forth over whether, to accurately
report the impact of NSLs on U.S. citizens, a field in an NSL database tracking citizenship status should default to "U.S. citizen,"
default to "non-U.S. citizen," or require FBI agents to affirmatively record a target's citizenship. n283 Despite these strengthened
internal controls, the IG reviews often preserved broad agency discretion in ways that could arguably
lead to a repetition of the earlier abuses. IG investigations rarely led to significant rights-protective
"substantive" constraints on agency discretion, such as measures that would prevent an agency from engaging in a practice,
require a higher substantive threshold before an agency could undertake an action (such as a higher standard for individual suspicion before
employing an investigative tool), or require court approval for a contested practice. In
some cases, this outcome may have
been defensible based on the IG's findings. For instance, in the first NSL review, the DOJ IG concluded
both that the FBI had violated the law but also that NSLs contributed significantly to terrorism
investigations n284 - suggesting no obvious answer to whether the permissive Patriot Act standard for
issuing NSLs appropriately resolved liberty-security tradeoffs. But even where the DOJ IG viewed limitations on agency
discretion as the optimal reform, the IG review did not lead to that result. In its final report on exigent letters, the DOJ IG
recommended that Congress regulate the agency's ability to ask phone companies to voluntarily disclose
customer records, warning that new reliance on a previously unused statutory provision could lead to
renewed circumvention of the NSL requirements. n285 This request was unusual: the DOJ IG appears to direct its
recommendations overwhelmingly [*1072] to the Department of Justice, not Congress. n286 Nonetheless, Congress has not acted on the IG's
proposal, leaving the FBI with an even broader basis for seeking voluntary disclosures than it had previously claimed. Thus,
the FBI's
broad discretion to obtain personal records without a court order remains intact - even expanded -
despite three critical IG reviews. In responding to the critiques, the FBI successfully framed the problem as one of inadequate
procedures and implementation, rather than excessive power, and could then claim it had fixed the problem with better internal controls. n287
Ultimately, Congress reauthorized expiring provisions of the Patriot Act, n288 and declined to act on separate legislation to establish judicial
oversight over NSLs n289 or a new sunset provision on their use. n2902
National Security Letter Reform Still Contains Loopholes
Sledge in 2015 (Matt, “The Gaping Hole In Obama's FBI Surveillance Reform”, The Huffington Post,
http://www.huffingtonpost.com/2015/02/04/national-security-letter-reform_n_6617572.html)
But on Tuesday, as part of surveillance reforms made in the wake of National Security Agency leaker Edward Snowden's revelations,
the
Office of the Director of National Intelligence announced that national security letter gag orders will
now expire after three years, or when an investigation ends. The new rules contain a gaping exception,
however: FBI agents can essentially write themselves a permission slip to keep a national security letter
secret past the deadline, as long as they receive approval from supervisors. "This exception is essentially full
discretion to FBI officials," said Andrew Crocker, a legal fellow at the Electronic Frontier Foundation. "It is an exception that doesn't
have a lot of standards associated with it. This is kind of the problem with the (national security letter)
statute to begin with."
Even with orders to stop, the FBI continues to issue gag orders
Froomkin in 2015 (Dan Froomkin, “FBI Flouts Obama Directive to Limit Gag Orders on National
Security Letters”, Firstlook.org, First Look Media, 02/19/15, Website, 6/27/15,
https://firstlook.org/theintercept/2015/02/19/fbi-flouts-obama-directive-limit-gag-orders-nationalsecurity-letters/)
Despite the post-Snowden spotlight on mass surveillance, the intelligence community’s easiest end-run
around the Fourth Amendment since 2001 has been something called a National Security Letter. FBI agents can
demand that an Internet service provider, telephone company or financial institution turn over its
records on any number of people — without any judicial review whatsoever — simply by writing a letter
that says the information is needed for national security purposes. The FBI at one point was cranking out
over 50,000 such letters a year; by the latest count, it still issues about 60 a day. Recipients are legally required to comply — but it
doesn’t stop there. They also aren’t allowed to mention the order to anyone, least of all the person whose data is being searched. Ever.
That’s because National Security Letters almost always come with eternal gag orders. That means the NSL process
utterly disregards the First Amendment as well. More than a year ago, President Obama announced that he was ordering the
Justice Department to terminate gag orders “within a fixed time unless the government demonstrates a
real need for further secrecy.” And on Feb. 3, when the Office of the Director of National Intelligence
announced a handful of baby steps resulting from its “comprehensive effort to examine and enhance [its] privacy and civil liberty protections” one of the
most concrete was — finally — to cap the gag orders: In response to the President’s new direction, the FBI will now
presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after
the opening of a fully predicated investigation or the investigation’s close. Continued nondisclosures orders beyond this period
are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has
Despite the use of the word “now” in that first sentence, however,
the FBI has yet to do any such thing. It has not announced any such change, nor explained how it will implement it, or when. Media inquiries
were greeted with stalling and, finally, a no comment — ostensibly on advice of legal counsel.
justified, in writing, why continued nondisclosure is appropriate.
The FBI has failed to report the majority of NSL violations
Sinnar in 2013 (Shirin Sinnar; Assistant Professor of Law at Stanford Law School, “Protecting Rights
from Within? Inspectors General and National Security Oversight”, LexisNexis.com, 65 Stan. L. Rev.
1027, 2013; The Board of Trustees of Leland Stanford Junior University, 49 pgs., Database, 6/28/15,
http://www.lexisnexis.com.proxy.library.umkc.edu/hottopics/lnacademic/)
When Congress passed the Patriot Act six weeks after the September 11 attacks, it made it significantly easier for the FBI to
issue National Security Letters - administrative orders not requiring a judge's authorization - to obtain
consumer records from phone companies, Internet providers, credit agencies, and financial institutions. n98
The new rules permitted the FBI to issue NSLs so long as the information sought was "relevant" to an
international terrorism investigation without demonstrating that the information pertained to a foreign
[*1045] power, and authorized a broader range of FBI officials to approve them. n99 In late 2005 and early 2006, as
Congress debated reauthorizing sunset provisions of the Patriot Act, Justice Department officials insisted
that rigorous oversight over NSLs already existed and that no allegation of abuse had been substantiated. n100 Congress
subsequently renewed expiring Patriot Act provisions, while requiring the DOJ IG to review the
effectiveness and use of NSLs, "including any improper or illegal use." n101 That statutory mandate led to
three highly critical reports from DOJ IG Fine on the FBI's use of NSLs and other investigative tools. n102 In numerous
instances, the IG concluded, the FBI used NSLs in violation of statutes or internal guidelines, n103 but had failed to
report the "overwhelming majority" of possible intelligence violations "through the self-reporting mechanism established 25 years
ago to identify and address such violations." n104 Most damning, the IG found that the FBI had circumvented even the
relatively lenient NSL requirements in issuing "exigent letters": these letters asked phone companies to
hand over customer records outside standard legal processes by citing "exigent" circumstances, even
where no emergency existed, and falsely stated that the agency had already requested grand jury
subpoenas for the same information. n105 The FBI had even obtained phone records by scribbling
requests on post-it notes or taking "quick peeks" at the computer screens of phone company personnel stationed at FBI headquarters. n106 The IG
attributed the use of these extralegal processes to "numerous, repeated, significant management
failures" implicating even the "FBI's most senior officials." n107
The NSLs secrecy has allowed the FBI to abuse its power; they have been using it to
hide their mistakes
Froomkin in 2015 (Dan Froomkin, “FBI Flouts Obama Directive to Limit Gag Orders on National
Security Letters”, Firstlook.org, First Look Media, 02/19/15, Website, 6/27/15,
https://firstlook.org/theintercept/2015/02/19/fbi-flouts-obama-directive-limit-gag-orders-nationalsecurity-letters/)
The NSL program has a troubled history. The absolute secrecy of the program and resulting lack of
accountability led to systemic abuse as documented by repeated inspector-general investigations,
including improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL
statutes, requests for information based on First Amendment protected activity, “after-the-fact” blanket NSLs
to “cover” illegal requests, and hundreds of NSLs for “community of interest” or “calling circle” information
without any determination that the telephone numbers were relevant to authorized national security
investigations.
President Obama abuses special executive powers.
FSRN Editor. 2014 "Yale Law School Panel Takes Stock of Government Overreach and Secrecy." FSRN.
Free Speech Radio News, 3 Apr. 2014. Web. 01 July 2015.
Members of the Senate Intelligence Committee voted this afternoon to declassify parts of a report on
CIA interrogation techniques. Even before the vote, the CIA torture report made headlines after revelations that the agency
had accessed a restricted network used by Senate staffers to prepare and store the document. Senators who were
otherwise tepid in response to revelations of widespread government spying and suspicionless
surveillance of the U.S. general public reacted strongly to the invasion of the Senate staff network. While some hope that
alleged spying on Senators will provide an impetus for review and reform of the surveillance powers granted by Congress to the
nation’s intelligence agencies, others are looking to the next generation of top lawyers to take on the matter. Earlier this week, the
Yale Law School hosted a forum featuring prominent critics of the surveillance program and of government overreach. Melinda
Tuhus reports from New Haven Audio Player 00:0000:00Use Up/Down Arrow keys to increase or decrease volume. Download
Perhaps one of the biggest revelations to come to widespread public attention as a result of the massive
document leak by former NSA contractor Edward Snowden is the extent to which lawmakers have
approved measures to make suspicionless surveillance lawful. Much of the surveillance apparatus has
been built up and empowered in secret. Former presidential candidate and long-time public advocacy attorney
Ralph Nader says President Barack Obama has continued to wield special executive powers – behavior
which became a hallmark of the George W. Bush administration. “These are not episodic, this is not just
one violation,” argues Nadar. “Watch: secret law, secret courts, secret evidence, secret killings, secret
snooping on attorney/client communications. Secret unutterable expenditures of taxpayer money for
quagmires abroad. Secret redaction, secret prisons, and watch this one: redacted sections of published
judicial decisions. Some of the legal decisions upholding the government’s surveillance program are based on a classified
interpretation of a section of the Patriot Act. Senate Intelligence Committee member Senator Ron Wyden has repeatedly said that
Americans would be stunned to learn the full extent of surveillance powers authorized by this secret interpretation, but he cannot
provide concrete details or examples without breaking the law. Bruce Fein, a high-ranking Justice Department official during the
Reagan administration, notes that intelligence officials have been able to get away with lying to Congress during public hearings.
“And what about Congress? That’s not an impeachable offense, to lie under oath and mislead the American people?!” he asked,
referring to testimony by Obama’s Director of National Intelligence, James Clapper. “No. He’s still serving. We have as our Director
of National Intelligence, who’s entrusted with secrets about us, a known perjurer, remains in office, untarnished, public reputation
there. Where’s all the newspapers calling for his resignation? Silence.” Clapper confirmed in a letter sent last week to Senator
Wyden that U.S. persons have been targeted by the surveillance program – something he had earlier and categorically denied.
Fein, who also worked under the acting attorney general in the early 1970s to write a paper outlining a rationale for impeachment of
President Richard Nixon, says Obama is exercising a dangerous level of executive power without adequate checks. “This president
has authority to kill anyone on the planet, to play prosecutor, judge, jury and executioner, if he decides, in secret, that the target of
the Predator drone – could be another instrument of death, doesn’t have to be a Predator drone – is an imminent threat to U.S.
national security.” Fein added the process “is not subject to review by Congress, it’s not subject to review by courts, it’s not subject
to review by the American people. It is limitless.” The Obama administration has also cracked down on whistleblowers like no other.
Jesselyn Radack leads the national security and human rights branch of the Government Accountability Project, founded in 1975 to
protect whistleblowers. She previously worked in the Justice Department in the G.W. Bush administration, but resigned after working
on the case of John Walker Lindh, the so-called “American Taliban.” She held a position that the War on Terror could not be used to
justify the denial of basic rights – like access to legal counsel – to US citizens. Her superiors disagreed. She also found her emails
documenting her position had been mysteriously purged. “I managed to resurrect more than a dozen emails, including the one
documenting the FBI’s ethical misconduct in its interrogation of John Walker Lindh,” said Radack. “I wrote a memo to my boss, and I
attached the emails, and made a copy for myself in case they disappeared again, and I gave her the memo, and I resigned. I said I
don’t fully what’s going on here but I am not going to be a part of this.” As the audience of future lawyers applauded, she added that
her decision was based in following the rule of law without bending them in politically convenient circumstances. The experience
made her a whistleblower, but Radack is adamant that “leaking is not a crime in this country. You have a First Amendment right to
go to the press, and what I gave the press was completely unclassified.” Radack was put on the no-fly list and couldn’t get a job in
her field for several years. But she said the experience made her realize she wanted to spend the rest of her life defending
whistleblowers. She now serves as legal counsel for Edward Snowden, who is living in Russia under temporary asylum. “It says a
lot about democracy that a whistleblower now has to leave the country – that is the safest way to make a disclosure without getting
caught up in the legal system – is to leave the country to do so. What does that say about us?” She said the Snowden case is part
of a wider war on information going on in the country, against whistleblowers, journalists, hactivists and others who dissent from the
government party line. The speakers at the Yale Law School forum said they hope to encourage law students to question authority
and defend those who stand up for the law in the U.S., even when the highest officials flout it.
DS undermines SOP
Unchecked executive power over surveillance undermines the fourth amendment and
separation of powers- lack of judicial review ensures overreach
Kenneth R. Logsdon in 2008, J.D., University of Illinois College of Law, UNIVERSITY OF ILLINOIS
JOURNAL OF LAW, TECHNOLOGY & POLICY 2008 U. Ill. J.L. Tech. & Pol'y 409, lexis
The electronic surveillance that the United States Government has participated in post-9/11 implicates
several constitutional principles: namely, the First Amendment, Fourth Amendment, and the constitutional
doctrine of separation of powers. n173 As stated by the First Amendment and Supreme Court decree, if a statute allows for any
governmental discretion in limiting speech, like that found in the PA and PA II, such discretion must be subject to objective standards. n174
Regarding the Fourth Amendment, the Executive has relied upon AUMF and Article II to argue it has the constitutional authority to operate the
TSP. n175 However, current statutes already provide contingencies for a state of war; nevertheless, there has been no official declaration of
war. n176 Furthermore, the
Supreme Court has explicitly stated that the Executive Branch cannot circumvent
the Fourth Amendment even in a time of war. n177 According to the constitutional doctrine of separation
of powers, the Executive Branch's authority is greatest when Congress explicitly allows an [*426] action,
and it is at its lowest ebb when the Executive Branch takes any action incompatible with the expressed
or implied will of Congress. n178 In addition, the Executive Branch must respect the Judicial Branch's
constitutional authority, and any attempt by the Executive Branch to limit judicial review and discretion
is an infringement upon such authority. n179 A. First Amendment The First Amendment of the United States Constitution
states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech ... ." n180 This fundamental right cannot easily be dispensed with, and when Congress implements a statute allowing governmental
discretion to limit speech, that discretion must be limited by objective criteria. n181 Both the PA and PA II allow governmental discretion in the
administration of a nondisclosure request; thus, they must be limited by objective criteria. n182 The Supreme Court of the United States has
devised a test when such discretion is present, in order to prevent the dangers associated with censorship. n183 This test, known as the
Freedman test, states: the government must exercise its discretion within a system that allows for "procedural safeguards designed to obviate
the dangers of a censorship system."... (1) any restraint in advance of judicial review may be imposed only for "a specified brief period," (2) any
further restraint prior to "a final judicial determination on the merits" must be limited to "the shortest fixed period compatible with sound
judicial resolution," and (3) the burden of going to court to suppress the speech and the burden of proof once in court must rest on the
censoring government. n184 Prior to PA II, both the first and second factors under the Freedman test would have likely failed; however,
changes made in PA II implemented additional judicial safeguards not present in PA. n185 Even so, the third factor of the Freedman test still is
not satisfied under the newly enacted PA II. n186 Particularly, factor three of the Freedman test requires that the burden of proof in the
suppression of speech rest upon government. n187 Problematically, title 18, section 2709(c) of the United States Code "grants broad discretion
to the FBI to completely restrict constitutionally protected speech on the basis of its [*427] content, and it places the burden of challenging this
restriction in court solely on the NSL recipient ... ." n188 The government's response to First Amendment criticism focuses largely on ostensibly
analogous statutes that have avoided abrogation by the courts. n189 In particular, the government focuses on statutes that allow it to apply
wiretaps, pen registers, and FISA subpoenas. n190 To bolster this argument, these statutes also do not have the same broad ability of judicial
review as that prescribed by the PA II. n191 However, those statutes differ from those prescribing use of NSLs because the court authorizes the
search ex ante and provides judicial safeguards after the search has concluded. n192 Additionally, both the wiretap and pen register statutes
"imply that communications providers might be free to discuss wiretaps and pen registers, as well as their knowledge of underlying criminal
investigations, after those investigations are completed." n193 The ability of the government to restrict speech in grand jury cases well after the
time period in which it was necessary has also been found to be unconstitutional. n194 A law prohibiting grand jury witnesses from disclosing
their testimony after the jury term has ended violates the First Amendment to the United States Constitution. n195 On the other hand, a law
preventing grand jury witnesses from revealing their testimony post-jury term is acceptable, so long as the criminal investigation of the crime
continues. n196 Conversely, the revisions provided by PA II regarding NSLs "continues to authorize nondisclosure orders that permanently
restrict an NSL recipient from engaging in any discussion related to its receipt of the NSL," thus, violating the First Amendment. n197 1.
Executive Action Post-9/11 and the First Amendment n198 England's history of the freedom of speech and press is intertwined with the scope
of a search and seizure. n199 "This history was, of course, part of the [*428] intellectual matrix within which our own constitutional fabric was
shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an
instrument for stifling liberty of expression." n200 The TSP created by the Executive Branch may be one such instance where the government's
ability to search electronic communications will have a direct impact on one's proclivity to freely express himself or herself. n201 Though this
observation may seem hyperbolic, "history abundantly documents the tendency of Government - however benevolent and benign its motives to view with suspicion those who most fervently dispute its policies... . Protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political beliefs." n202 B. Fourth Amendment n203 "The warrant requirement
[within the Fourth Amendment] has been a valued part of our constitutional law for decades ... . It is not an inconvenience to be somehow
"weighed' against the claims of police efficiency." n204 1. Executive Action Post-9/11 and the Fourth Amendment The
warrant
requirement is an important functional element of restrained governance to prevent even wellintentioned, yet over-enthusiastic, governmental officials, from exceeding their constitutional
boundaries. n205 Yet, the aforementioned TSP was created because the Executive Branch believed such efficiencies were necessary, and
current surveillance laws inadequate, to protect American citizens from future terrorist attacks. n206 The Executive Branch argued this
efficiency is necessary in a state of war, which we are currently in. n207 Specifically, the Executive Branch stated the Congressional authority to
fight against terrorism, as found in AUMF, is all [*429] that is needed to justify such an expansive surveillance program. n208 However, the
AUMF is not a declaration of war, but Congressional "authorization" to use force. n209 If the Executive Branch is going to argue it has "war
powers" to implement the TSP, should not such an assertion require an actual declaration of war? Furthermore, even if such a declaration were
granted by Congress, would that justify the Executive Branch in ignoring a FISA provision (a mere Congressional act) that explicitly states what
actions are allowed by the President in a time of war? If not, how would it be remotely possible for the Executive Branch to have the
constitutional authority to disregard the Fourth Amendment? "The Bill of Rights of the United States Constitution must be applied despite
authority granted by the AUMF." n210 Significantly, these constitutional restrictions are also applicable to the Executive Branch's constitutional
powers embedded in Article II. n211 If this were not so, then Congress's attempt to restrain the Executive Branch's actions during war, as found
within FISA, is an unconstitutional Congressional infringement upon Article II. n212 Hitherto, "there does not appear to be any precedent even
vaguely on point - that is, where Congress legislated in an area within its legislative authority and it was nonetheless held by the Supreme Court
that the President had inherent authority to act contrary to the statute." n213 The argument that Article II of the United States Constitution
allows the Executive Branch to avoid adhering to restrictions within the Bill of Rights, in a time of war, was erroneous when proclaimed by the
Nixon Administration and is equally erroneous today. n214 In fact, the only Supreme Court case addressing the use of wiretaps for national
security purposes is United States v. U.S. District Court. n215 In this case, the Supreme Court concluded that domestic electronic surveillance to
further the Executive Branch's obligation to protect national security is insufficient to circumvent the Fourth Amendment. n216 In summary,
the Supreme Court of the United States recently and concisely declared: Striking the proper constitutional balance here is of great importance
to the Nation during this period of ongoing combat. But it is equally [*430] vital that our calculus not give short shrift to the values that this
country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's
commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles
for which we fight abroad. n217 C. Separation of Powers When
the Founding Fathers gathered together to create a new
nation they did so with the knowledge of history and with the intent to create a government that would
restrain itself. n218 In so doing, they devised a Constitution that created three branches of government with each part assigned distinct
functions and requisite powers. n219 Though each branch was separate, they were coequal and "while
independent of the others, the workings of each were integrated as a whole ... to guarantee that lasting
stability demands that each branch honors its own bounds of authority, and those of the others." n220
Succinctly stated, "our national experience teaches that the Constitution is preserved best when each part of
the Government respects both the Constitution and the proper actions and determinations of the other
branches." n221 Recent legislation sought to rectify constitutional deficiencies and explicitly allow the
Executive Branch the ability to perform surveillance without a warrant. n222 This legislation, known as the
Protect America Act of 2007, was enacted in August 2007 and allowed the Executive Branch to electronically surveil a
suspected terrorist reasonably believed to be outside the United States for up to one year without a
warrant and provided immunity to telecommunication providers that assisted the government in doing
so. n223 However, Congress was cautious with such a grant of power and built in a sunset provision that automatically nullified the law at the
end of 180 days if there was no subsequent congressional action. n224 Congress did not act and the law sunset February 17, 2008. n225
Nevertheless, notwithstanding Congressional
prudence to build in a sunset provision, such explicit
authorization does not ameliorate the aforementioned constitutional criticism. n226
Government Surveillance Undermines Separation of Powers- no checks and balances
Reynolds 14 Glenn Harlan Reynolds, February 10, 2014, “NSA spying undermines separation of powers:
Column”, USA Today, http://www.usatoday.com/story/opinion/2014/02/10/nsa-spying-surveillance-congresscolumn/5340281/
Most of the worry about the National Security Agency's bulk interception of telephone calls, e-mail and the like has centered around threats to
privacy. And, in fact, the evidence suggests that if you've got a particularly steamy phone- or Skype-sex session going on, it just might wind up
being shared by voyeuristic NSA analysts. But most Americans figure, probably rightly, that the NSA isn't likely to be interested in their stuff.
(Anyone who hacks my e-mail is automatically punished, by having to read it.) There is, however, a class of people who can't take that
disinterest for granted: members of Congress and the judiciary. What they have to say is likely to be pretty interesting to anyone with a political
ax to grind. And the
ability of the executive branch to snoop on the phone calls of people in the other
branches isn't just a threat to privacy, but a threat to the separation of powers and the Constitution. As
the Framers conceived it, our system of government is divided into three branches -- the executive,
legislative and judicial -- each of which is designed to serve as a check on the others. If the president gets out of
control, Congress can defund his efforts, or impeach him, and the judiciary can declare his acts unconstitutional. If Congress passes
unconstitutional laws, the president can veto them, or refuse to enforce them, and the judiciary, again, can declare them invalid. If the judiciary
gets carried away, the president can appoint new judges, and Congress can change the laws, or even impeach.
But if the federal
government has broad domestic-spying powers, and if those are controlled by the executive branch
without significant oversight, then the president has the power to snoop on political enemies, getting an
advantage in countering their plans, and gathering material that can be used to blackmail or destroy
them. With such power in the executive, the traditional role of the other branches as checks would be
seriously undermined, and our system of government would veer toward what James Madison in The
Federalist No. 47 called "the very definition of tyranny,"that is, "the accumulation of all powers,
legislative, executive, and judiciary, in the same hands." That such widespread spying power exists, of course, doesn't
prove that it has actually been abused. But the temptation to make use of such a power for self-serving political ends is likely to be very great.
And, given the secrecy surrounding such programs, outsiders might never know. In fact, given the compartmentalization that goes on in the
intelligence world, almost everyone at the NSA might be acting properly, completely unaware that one small section is devoted to gather
political intelligence. We can hope, of course, that such abuses would leak out, but they might not. Rather than counting on leakers to protect
us, we need strong structural controls that don't depend on people being heroically honest or unusually immune to political temptation, two
characteristics not in oversupply among our political class. That means that
the government shouldn't be able to spy on
Americans without a warrant — a warrant that comes from a different branch of government, and
requires probable cause. The government should also have to keep a clear record of who was spied on,
and why, and of exactly who had access to the information once it was gathered. We need the kind of
extensive audit trails for access to information that, as the Edward Snowden experience clearly
illustrates, don't currently exist. In addition, we need civil damages — with, perhaps, a waiver of
governmental immunities — for abuse of power here. Perhaps we should have bounties for whistleblowers, too, to help
encourage wrongdoing to be aired. Is this strong medicine? Yes. But widespread spying on Americans is a threat to
constitutional government. That is a serious disease, one that demands the strongest of medicines.
NSL = Overreach
NSLs cause unnecessary intrusions on privacy while failing to enhance security- speed
leads to ineffective investigations
DESIRAE L. WELLS in 2012, JD from Brooklyn Law and an LLM (in Intellectual Property) from Benjamin
N. Cardozo School of Law. She is currently a Vice President at Bank of America/Merrill Lynch, working in
the areas of Corporate Law, Intellectual Property and Securities Law, NATIONAL SECURITY LETTERS:
WHY REFORM IS NECESSARY, 2012 Cardozo L. Rev. De Novo 216, lexis
However,
there were many effective arguments against using administrative subpoenas/NSLs in the
context of a criminal or foreign intelligence investigation. Use of NSLs in this context are more likely to
lead to unjustified intrusions of privacy; n40 seem to replicate and expand existing NSL authority, without an
explanation as to why additional authority is needed; n41 and lack the judicial safeguards that accompany
the issuance of a search warrant, probable cause and issuance by a neutral magistrate, among other things.
n42 NSLs generally lack the safeguards that accompany the issuance of a grand jury subpoena in that
NSLs are ordinarily not subject to a motion to quash or to the necessary participation of an Assistant
United States Attorney. n43 As compared to NSLs issued via government agencies, the extensive powers available to the grand jury are
justified in part because the grand jury acts as a buffer against the abuse of governmental authority. n44 On a financial level, NSLs
can be extremely expensive and disruptive for the person or entity to whom they are addressed long
before the thresholds of overbreadth or oppression (the point at which a subpoena will not be [*225] enforced) are
reached. n45 Further, they are subject to easy abuse when they are issued against third parties who may
have little interest in contesting legitimacy; n46 who are granted immunity from civil liability for the
disclosures; n47 and who are subject to the permanent gag orders precluding disclosure to targets who
might otherwise contest the abuse. n48 Finally, NSLs are frequently sought for their speed, an environment
which often breeds mistakes. n49
NSLs key- Slippery Slope
The amended national security letter law is a key step in expanding FBI authority- it
will lead to unfettered FBI subpoena power.
Andrew E. Nieland in 2006 A.B., Harvard College, 1997; J.D., Cornell Law School, 2007, NATIONAL
SECURITY LETTERS AND THE AMENDED PATRIOT ACT, CORNELL LAW REVIEW,
http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Nieland.pdf
The NSL authority applies in a third context: the realm of national security and counterterrorism.232 The main problem with the parity and
harmonization arguments233 is their faulty premise. To justify a given policy, parity must exist: A terrorism investigation must be substantially
similar to either the “past crimes” investigations and prosecutions by federal prosecutors, or the civil investigations in which agencies deploy
administrative subpoenas. Even the FBI, however, insists that investigations and prosecutions are different in significant ways.234 The
secrecy of the investigation is far more important while actually obtaining a conviction is often far less
important.235 And given the judiciary’s general lack of national security expertise, the use of judicial review to prevent abuse of compulsory
process would be less effective, or even counterproductive, than in the civil or criminal contexts.236 As a result, the new intrusions
that the NSL authority represents—intrusions whose real significance is only beginning to be felt—must
be justified on their own terms and not by analogizing to the realms of civil and criminal processes. Such
justifications are particularly important because the FBI wants more than just the expanded NSL
authority. In a sense, the expanded NSL authority is simply a further slide down the slope toward a
comprehensive administrative subpoena power for the FBI. The George W. Bush Administration has
already lobbied for such power, and, in recent years, legislators have introduced bills that would confer it.237
Not surprisingly, the administration and legislators support such power with the same efficiency and parity arguments used in the NSL context.
One Justice Department official, testifying before a Senate Subcommittee, called the lack of an FBI administrative subpoena “illogical,” an
“anomaly” whose change would “level the playing field between terrorism investigations and other criminal investigations.”238 And
advocates will undoubtedly use the expanded NSL statutes to argue for such a change—if the FBI has
this power for one type of information, why not grant it for another? This Note does not aim to discuss the merits of a
more robust administrative subpoena power for the FBI. But the amended Patriot Act brings the FBI one step closer to
that power. Thus far, the NSL debate has obscured this significant change rather than underscored it. When
Congress passed the Patriot Act in 2001, it was aware that its actions could have unintended and adverse consequences. As a result, it included
sunset and oversight requirements for some of the Act’s more radical provisions.239 The
amendments to the NSL statutes had
no sunset requirement, likely because Congress failed to apprehend the significance of those
changes.240 By 2006, however, the importance of those changes was painfully obvious. Although Congress
demanded an audit of the NSL authority, it failed to couple this oversight requirement with a sunset
provision.241 This regrettable omission sharply diminishes the likelihood that Congress will act to create a
more efficient and benign NSL statute once it has the knowledge allowing it to do so. Instead, if the history
described here is any guide, further increases in the FBI’s compulsory power will come about not through
deliberation, but by default.
Overreach on Brink- Obama
Obama abuses executive orders- he picks and chooses which issues to act on, and
contradicts himself
Pollak on 2/4/14 (Joel B, editor-in-chief at breitbart.com and obtained J.D. from Harvard Law School,
“THREE WAYS OBAMA'S EXECUTIVE ORDERS ARE THE WORST OF ANY PRESIDENT”, Breitbart.com,
http://www.breitbart.com/big-government/2014/02/04/ruth-marcus-obama-executive-order/)
Complaints about executive orders, Marcus suggests, are just “politics dressed up in constitutional clothing, to be put on and off depending on
which party holds the White House.” I can say with confidence, as someone who never voted for George W. Bush and resented his expansion of
the executive, that Obama is in another league entirely. There
are three basic ways in which Obama’s behavior exceeds
that of any his predecessors. The first is that Obama is using executive orders and actions to alter his
own legislation. It’s one thing to claim that you are forced to act because Congress will not. It’s quite another thing to re-write the law
after Congress has done what you asked–and after you have offered, time and time again, to entertain formal amendments to the legislation.
Obama has simply invoked executive authority to cover up his own errors. That’s unprecedented. The
second way in which Obama’s abuse of executive power is different is that he has done it to prevent the
legislature from acting. It is now widely acknowledged that the president issued his “Dream Act by fiat” in 2012 not just because
Congress wouldn’t pass his version of immigration reform, but to outflank Sen. Marco Rubio (R-FL)80% , who was preparing his own version,
embarrassing Obama among Latino voters. Such pettiness is rare. The
third way in which Obama’s behavior is unusual is
that he commands sweeping executive power on some issues while arguing, on other issues, that he has
no power to act. The president’s recent speech about the NSA surveillance programs is a prime example
of such self-contradiction. There is no constitutional doctrine behind the president’s executive orders,
actions, and omissions: there is just pure, cynical political expediency. A final note. Marcus, like other apologists for
President Obama’s power grabs, compares his actions to those of President Abraham Lincoln when he issued the Emancipation Proclamation. It
is an absurd comparison, one chosen to flatter Obama’s failing pseudo-heroic image. If anything, Obama’s executive excesses tend to make us
less free. He is not governing in the tradition of Lincoln, but that of Woodrow Wilson–and doing far worse.
Overreach U/mines Demo
Deference to the executive undermines the rule of law
Louis Fisher in 2009 is a specialist in constitutional issues with the Law Library of the Library of
Congress, Presidential Studies Quarterly 39, no. 2 (June), Presidential Power in National Security: A
Guide to the President-Elect
The framers did not depend solely on the presidency or federal courts to protect individual rights and
liberties. They distrusted human nature and chose to place their faith in a system of checks and balances
and separated powers. The rule of law finds protection when political power is not concentrated in a
single branch and when all three branches exercise the powers assigned them, including the duty to
resist encroachments of another branch. The rule of law is always at risk when Congress and the
judiciary defer to claims and assertions by executive authorities. That is the lesson of the last two
centuries and particularly of the past seven years.
Recent actions by the executive actions show a staggering disregard for SOP
Whitehouse, 2008 Whitehouse, Sheldon. "Executive Overreaching in Surveillance of Americans." New
Jersey Law Journal (2008): n. pag. New Jersey Law Journal. New Jersey Law Journal, 4 Jan. 2008. Web. 1
July 2015.
In August, at the behest of the Bush administration, Congress hastily passed the so-called Protect America Act, which significantly
expanded the president's powers to spy on Americans. It did this by removing from the definition of "electronic surveillance," the key
determinant for Foreign Intelligence Surveillance Act protections, wiretapping of any person "reasonably believed to be outside the
United States." When the Senate takes up this legislation again, we need to correct this and other mistakes made in August - above
all, by reasserting the role of Congress and the courts in the conduct of surveillance on American citizens. Why is this so vital?
For years, the Office of Legal Counsel in the
U.S. Department of Justice has been issuing highly classified legal opinions related to surveillance. As a
Because of what this administration does when it thinks no one is looking.
member of the Senate Intelligence Committee, I was given access to those opinions, and I have spent hours poring over them.
Sitting in that secure room, I was dismayed and amazed. I was able to have my notes quoting three legal propositions from those
memos declassified. They
are: ¿ "An executive order cannot limit a President. There is no constitutional
requirement for a President to issue a new executive order whenever he wishes to depart from the
terms of a previous executive order. Rather than violate an executive order, the President has instead
modified or waived it." ¿ "The President, exercising his constitutional authority under Article II, can
determine whether an action is a lawful exercise of the President's authority under Article II." ¿ "The
Department of Justice is bound by the President's legal determinations." These propositions signal an
astoundingly broad assertion of executive authority, and a staggering disregard for basic principles of
separation of powers, and the structure of our government. Let's start with theory No. 1. The Protect America
Act provides zero statutory restrictions on the president's ability to wiretap, at will, Americans abroad - even
soldiers in Iraq. The only restriction on this power is Section 2.5 of Executive Order 12333, of Dec. 4, 1981, on U.S. Intelligence
Activities, as amended, which limits surveillance of U.S. persons to those the attorney general determines to be foreign powers or
agents of a foreign power. If the first theory stands, the
only thing standing between Americans traveling overseas
and a government wiretap is an executive order that this president believes he is under no obligation to
obey, and may secretly disregard. If executive orders are our only protection, it matters a lot when this administration says the
president doesn't have to follow them, or tell anyone when he's breaking them. That is why Congress' role is so important now.
Unless Congress acts, nothing legally prevents this president from wiretapping Americans traveling abroad. Legal theory No.
2:
The president, according to the Bush OLC, has Article II power to determine what the scope of his Article
II powers are. This bald statement runs up against the Supreme Court's 200-year-old decision in Marbury
v. Madison, which states it is "emphatically the province and duty of the judicial department to say what the law is." According to
this president, he decides what the law is. There is an eerie parallel here to the "signing statements" the Bush administration has so
prolifically issued, which assert executive power to rewrite legislation, without going to a court for a determination of the statute's
validity. Finally, remember theory No. 3: "The Department of Justice is bound by the President's legal determinations." We are a
nation of laws, not of men. Our attorney general swears an oath to defend the Constitution and the laws of the United States, not to
obey the president. That oath is not compatible with a president who tells the Department of Justice what the law is. At least in my
opinion, the presidential authority to appoint the attorney general does not strip the attorney general of the duties that are the
product of his office, and which may fall into conflict with doing the president's bidding. The overheated view of executive power
revealed by these secret opinions shows why Congress cannot put the authority to wiretap Americans, whenever they step outside
America's borders, under the exclusive control and supervision of this president. We do not allow it when Americans are here at
home; we should not allow it when they travel abroad. The protections
afforded Americans by our country's checks
and balances, by congressional legislation and oversight, and by judicial approval and review, are simple
and longstanding. Americans deserve these protections wherever on God's green earth they may travel.
Executive Power = War
Unchecked executive discretion risks escalation in times of conflict- we need checks
and balances
Holmes, 2009 Holmes, Stephen. "The Brennan Center Jorde Symposium on Constitutional Law: In
Case of Emergency: Misunderstanding Tradeoffs in the War on Terror." California Law Review, Inc
(2009): n. pag. Web. 28 June 2015
When faced with a serious threat to national security, the most aggressive response will not always be
the most effective response. In a bullfight, the bull loses the contest not because it is insufficiently aggressive, but rather because the
matador, through provocative gestures, uses the wounded beast's aggressive impulses and impaired vision against it, repeatedly luring it into
futilely and exhaustingly charging a phantom target. n108 Any
system that defends unmonitored executive discretion
exposes itself to the danger that the executive officials who happen to be in power at the time will
feel that inaction is psychologically intolerable or, by sheer bad luck, will have a bias toward
aggressive action that, while psychologically satisfying (not to mention electorally advantageous), in no way corresponds to
the requirements of the situation. n109 [*346] Because those who attacked the United States violated an absolute international
ban on terrorism, American authorities may have been tempted to avenge the injury - an eye for an eye - by violating an equally absolute
international ban on torture. After suffering a severe blow inflicted by an avowed enemy, the surviving victims of an attack are often obsessed
with reestablishing an image of themselves as active rather than passive. They have to "do something" without giving too much thought to the
specific consequences of the actions they undertake. This suggests, once again, that cruelly coercive interrogation may have been embraced
less for the tactical information it promised to disgorge than for its independent psychological appeal. All of its practical consequences were not
necessarily coolly considered. Such speculations are admittedly impossible to prove or disprove. But they are plausible enough to justify
skepticism about the claim that harsh interrogation was embraced solely for the pragmatic reason alleged, namely to extract intelligence to
prevent a follow-up nuclear sneak attack against the United States. Electoral, as opposed to national-security, considerations may also have
contributed to the embrace of interrogation techniques that departed sharply from preexisting rules. The
lack of genuine metrics of
success in the war on terror makes it inherently difficult to prove to voters that their government has
undertaken the most effective course of action. Such politically unsustainable uncertainty may, as
mentioned, pressure policymakers into seeking or fabricating pseudo-metrics. This is especially true when
American policymakers could not demonstrate that their actions are eliminating more terrorists than they are producing. But the Bush
administration and its supporters could always point out that Amnesty International, Human Rights First, the ACLU, and other liberalhumanitarian organizations were screaming about torture. These organizations' vehement expressions of outrage strongly [*347] suggested
that the Bush administration was going to extreme lengths - pulling out all the stops - to protect the country. The pernicious idea of a libertysecurity tradeoff, once again, lent a spurious plausibility to the mind-game being played.
Executive Power = Escalation/Miscalc
Lack of checks and balances ensures conflicts escalate- singular decision making is
more prone to miscalculation
Adler 8 – David Gray, Professor of Political Science at Idaho State University, “The Judiciary and
Presidential Power in Foreign Affairs: A Critique”, 6-1,
http://www.freerangethought.com/index.php?option=com_content&task=blogsection&id=6&Itemid=4
1
{11} The
structure of shared powers in foreign relations serves to deter abuse of power, misguided
policies, irrational action, and unaccountable behavior.[31] As a fundamental matter, emphasis on joint
policymaking permits the airing of sundry political, social, and economic values and concerns. Such a
structure wisely ensures that the ultimate policies will not merely reflect the private preferences or the
short-term political interests of the President.[32] {12} Of course, this arrangement has come under fire in
the postwar period on a number of policy grounds. Some have argued, for example, that fundamental political and technological
changes in the character of international relations and the position of the United States in the world have rendered obsolete an eighteenth
century document designed for a peripheral, small state in the European system of diplomatic relations. Moreover, it
has been asserted
that quick action and a single, authoritative voice are necessary to deal with an increasingly complex,
interdependent, and technologically linked world capable of almost instantaneous massive destruction.
Extollers of presidential dominance also have contended that only the President has the qualitative
information, the expertise, and the capacity to act with the necessary dispatch to conduct U.S. foreign
policy.[33] {13} These policy arguments have been reviewed, and discredited, elsewhere; space limitations
here permit only a brief commentary.[34] Above all else, the implications of U.S. power and action in the
twentieth century have brought about an even greater need for institutional accountability and
collective judgment than existed two hundred years ago. The devastating, incomprehensible
destruction of nuclear war and the possible extermination of the human race demonstrate the need for
joint participation in any decision to initiate war. Moreover, most of the disputes at stake between the
executive and legislative branches in foreign affairs have virtually nothing to do with the need for rapid
response to crisis. Rather, they are concerned only with routine policy formulation and execution, a classic
example of the authority exercised under the separation of powers doctrine.[35] {14} Nevertheless, these joint functions have been
fused by the executive branch and have become increasingly unilateral, secretive, insulated from public
debate, and hence unaccountable.[36] In the wake of Vietnam, Watergate, and the Iran-contra scandal,
unilateral executive behavior has become ever more difficult to defend. Scholarly appraisals have
destroyed arguments about intrinsic executive expertise and wisdom in foreign affairs and the alleged
superiority of information available to the President.[37] Moreover, the inattentiveness of presidents to
important details and the effects of "groupthink" that have dramatized and exacerbated the relative
inexperience of various presidents in international relations have also devalued the extollers'
arguments. Finally, foreign policies, like domestic policies, are reflections of values. Against the strength of democratic principles, recent
occupants of the White House have failed to demonstrate the superiority of their values in comparison to those of the American people and
their representatives in Congress. {15} The
assumption of foreign affairs powers by recent presidents represents a
fundamental alteration of the Constitution that is both imprudent and dangerous. We turn now to an
examination of the judiciary's contribution to executive hegemony in foreign affairs.
Checks Solve SOP
Strong institutional checks on the executive are the only way to improve decision
making in counterterrorism efforts- deliberation ensures better information and a
pragmatic approach
Holmes, 2009 Holmes, Stephen. "The Brennan Center Jorde Symposium on Constitutional Law: In
Case of Emergency: Misunderstanding Tradeoffs in the War on Terror." California Law Review, Inc
(2009): n. pag. Web. 28 June 2015.
Far from being a carefully calibrated response to the terrorist threat, the executive-discretion agenda
exaggerates the upsides and discounts the downsides of unregulated executive discretion. The "game"
of counterterrorism cannot be successfully conducted by ad hoc decisions made in defiance of all rules
and outside of all institutionalized decision-making procedures, practices, and institutions. Rulegoverned counterterrorism is both feasible and desirable for several reasons. First, public officials
perform best, even during emergencies, when forced to give reasons for their actions. Second, the
temptation to react viscerally and mimetically rather than strategically to the mass murder of innocent
civilians is almost impossible to resist without strong guidelines laid down in advance. Third, likeminded individuals, if allowed to make vital national-security decisions in virtual isolation, tend to fixate
on one salient feature of a complex threat environment, neglecting equally lethal dangers and failing to
consider the unintended consequences of their own remedial actions. And fourth, it is essential in a
democracy to minimize, if not altogether eliminate, incentives for public officials to feign urgency and
necessity in the face of a threat that cannot easily be observed by anyone outside the security
apparatus of the state. Because the spectrum of threats which national-security agencies must monitor
and manage remains extremely complex, and because national-security assets are invariably scarce,
counterterrorism decisions can increase security in one dimension only by opening up security
vulnerabilities along other dimensions. Risk-risk tradeoffs are often close calls and should therefore be
undertaken with deliberate speed, not hastily after dissenters are intimidated with fictional accounts of
the need to make consequential decisions instantaneously and without considering known facts,
consulting knowledgeable experts, and hearing different points of view. The difficulty and gravity of
security-security tradeoffs, obscured by the misleading focus on liberty-security tradeoffs, is perhaps the
most important argument against [*355] leaving decision making in the area of counterterrorism to the
unchecked discretion of a few individuals, operating inside a bunker insulated from outside criticism and
dissent. For this and other reasons, the indispensability of rules and protocols in ordinary emergencies
can provide an important clue and point of reference for counterterrorism theorists and strategists.
Rules such as the individualization of culpability and procedures such as obligatory reason-giving, far
from "tying hands," can help liberate counterterrorism policy from the rigidities that inevitably plague
partisan-political reactions to national-security emergencies. They do not guarantee success, of course.
But adversarial procedures and the presumption of innocence are more likely than unfettered executive
discretion to promote a pragmatic approach to the management of risk, including flexible and factminded adaptation to an obscure, amorphous, evolving, and still deadly serious threat.
Democracy Adv
Exec Power u/mines Demo- Spillover
Executive power undermines Democracy and the Constitution, power grabs will
always carry over to the next presidency-empirics prove.
Nelson, Dana D. Bad for Democracy: How the Presidency Undermines the Power of the People. U of
Minnesota Press, 2008.
But this is not just a simple summary of the Bush—Cheney—Rumsfeld— Wolfowitz philosophy for dealing with political opposition. Rather, it
draws on a deep and relatively unnoticed tradition of expanding presidential powers that began in the age of George Washington. This
expansion has come at times through the ambitions, machinations, and moxie of individual presidents — some of them impressively gifted
governmental and political leaders, It has also come through the active and passive consent of citizens, the courts, and Congress.
Because
the president has come to symbolize both our democratic process and our national power, we tend to
see him simultaneously as democracy’s heart (he will unify the citizenry) and its avenging sword (he will protect
us from all external threats). Those beliefs, inculcated in us from our earliest days in school, reinforced by both
popular culture and media coverage of government, politics, and foreign affairs, make us want to give
the president more power, regardless of the constitutional checks and balances we also learned to treasure as
schoolchildren. Every now and then, a president reaches too far. Then Congress, or the judiciary, or the
citizenry reacts, mobilizing to take back some of the powers of the presidency. The habit in such moments is to
blame the individual president who provoked the immediate reaction, ignoring history and turning a
naive eye to the future. The fact is, ever since the office was invented, presidents have been appealing to how it
serves as a symbol of national strength and domestic unity, and to its function as a focal point for foreign policy, to claim more powers
for the office than those it was explicitly granted by the Constitution. Especially since the administration of Franklin D.
Roosevelt, when the executive branch and federal bureaucracy underwent a massive expansion, every president has worked to
extend presidential powers in ways that the Constitution’s framers would likely have viewed as alarming
and profoundly compromising to their ideals and aims. When citizens and government officials focus their response to
presidential power grabs by aiming it at a single president, they effectively fail to check the problem because the next president will (as history
tells us) repeat the grabs—and will almost surely keep the powers. Whenever a
president succeeds at a power grab, he
establishes a precedent that the next president can refer to as he (and maybe someday, she) makes yet another
incremental grab for powers that the framers allocated to another branch.
Exec Power u/mines Demo
Addition to executive power directly conflicts with Democratic power- taking it away
and depoliticizing citizens
Nelson, Dana D. Bad for Democracy: How the Presidency Undermines the Power of the People. U of
Minnesota Press, 2008.
Presidentialism has trained us for this conclusion, and insofar as it succeeds, it works to undermine our democratic
proclivities and skill building. Baldly put, presidentialism has been bad for democracy. Despite the particular
virtues and leadership skills of some presidents, presidentialism works against peoples’ civic cultivation of democratic
skills. It trains us to want the president to take care of democracy for us instead of remembering that democracy, properly
defined, is our job. Presidentialism depoliticizes citizens, making us less inclined to think and, thus, less
likely to participate in self-governing. Presidentialism encourages people to see democracy as a winner-take-all endeavor in world
politics as well as in the domestic sphere, an arena where presidential candidates go mano a mano and then when the winner ascends to office,
the losers (and his supporter- constituents) fade from view. This teaches citizens to see negotiation and compromise as the weakness, not the
strength, of democracy. Presidentialism trains people to see democracy as being both led and symbolized by a single person, a strong leader
standing for a strong consensus, instead of remembering that disagreement is a productive working principle for democracy. In this way,
presidentialism makes people fundamentally un comfortable with one of the most important motors for political freedom and agency. It leads
us to see and thus to overemphasize democracy as unity, instead of helping us remember that a decently functioning disunity can provide
better solutions and make an even stronger nation. The civically trained desire to see the U.S. president as “the most powerful man in the
world” has had the effect of allowing individual presidents incrementally and steadily to increase the power of that branch, most recently in the
aftermath of 9/II, when Congress gave to the executive their branch’s right to supervise war powers (a constitutional power that Congress has
in fact not exercised since December 8, 1941). In this sense, presidentialism
is colonizing democracy for its own powers
and purposes, depending on the people to keep believing that the executive’s power is somehow our
power instead of recognizing that the truth is exactly the opposite. Whether particular presidents are
good or not, the increase of presidential power concretely diminishes our democracy, by taking prestige
as well as power from what was historically denominated the “people’s branch,” the legislature, and ultimately
by taking it away from the people. No single person can make democratic decisions, since democracy gets its vitality from people
negotiating their differences to find positive solutions. And even if we account for the fact that presidents seldom make
decisions without drawing on the resources and counsel of their cabinet, the fact is, members of their cabinet are neither elected by nor
accountable to U.S. citizens.
Exec Power Brink- Collapse coming
We’re on the brink—unfettered Executive makes democracy collapse inevitable
Yglesias, 3-2—Matthew, Executive Editor @ Vox, former Magna Cum Laude grad @ Harvard and
editor-in-chief of The Harvard Independent. “American democracy is doomed,” Vox,
www.vox.com/2015/3/2/8120063/american-democracy-doomed
America's constitutional democracy is going to collapse. Some day — not tomorrow, not next year, but probably sometime before
runaway climate change forces us to seek a new life in outer-space colonies — there is going to be a collapse of the legal and political
order and its replacement by something else. If we're lucky, it won't be violent. If we're very lucky, it will lead us to
tackle the underlying problems and result in a better, more robust, political system. If we're less lucky, well, then, something worse will happen. Very few people
agree with me about this, of course. When
I say it, people generally think that I'm kidding. America is the richest,
most successful country on earth. The basic structure of its government has survived contested elections
and Great Depressions and civil rights movements and world wars and terrorist attacks and global
pandemics. People figure that whatever political problems it might have will prove transient — just as
happened before. "Rather than everyone being wrong about the state of American politics, maybe everyone is right" But voiced in another
register, my outlandish thesis is actually the conventional wisdom in the United States. Back when
George W. Bush was president and I was working at a liberal magazine, there was a very serious
discussion in an editorial meeting about the fact that the United States was now exhibiting 11 of the 13
telltale signs of a fascist dictatorship. The idea that Bush was shredding the Constitution and trampling on congressional prerogatives was
commonplace. When Obama took office, the partisan valence of the complaints shifted, but their basic tenor
didn't. Conservative pundits — not the craziest, zaniest ones on talk radio, but the most serious and well-regarded — compare Obama's immigration moves to
the actions of a Latin-American military dictator. In the center, of course, it's an article of faith that when right and left talk like this they're simply both wrong.
These are nothing but the overheated squeals of partisans and ideologues. At
the same time, when the center isn't complaining
about the excessively vociferous complaints of the out-party of the day, it tends to be in full-blown panic
about the state of American politics. And yet despite the popularity of alarmist rhetoric, few people act
like they're actually alarmed. Accusations that Barack Obama or John Boehner or any other individual
politician is failing as a leader are flung, and then abandoned when the next issue arises. In practice, the
feeling seems to be that salvation is just one election away. Hillary Clinton even told Kara Swisher
recently that her agenda if she runs for president is to end partisan gridlock. It's not going to work. The
breakdown of American constitutional democracy is a contrarian view. But it's nothing more than the
view that rather than everyone being wrong about the state of American politics, maybe everyone is
right. Maybe Bush and Obama are dangerously exceeding norms of executive authority. Maybe legislative
compromise really has broken down in an alarming way. And maybe the reason these complaints persist across different
administrations and congresses led by members of different parties is that American politics is breaking
down. The perils of presidential democracy To understand the looming crisis in American politics, it's useful to think about Germany, Japan, Italy, and Austria.
These are countries that were defeated by American military forces during the Second World War and given constitutions written by local leaders operating in close
collaboration with occupation authorities. It's striking that even though the US Constitution is treated as a sacred text in America's political culture, we did not push
any of these countries to adopt our basic framework of government. This wasn't an oversight. In a 1990 essay, the
late Yale political scientist
Juan Linz observed that "aside from the United States, only Chile has managed a century and a half of
relatively undisturbed constitutional continuity under presidential government — but Chilean
democracy broke down in the 1970s."
The exact reasons for why are disputed among scholars — in part because you can't just randomly assign different governments to people. One issue here is that American-style systems are much more
common in the Western Hemisphere and parliamentary ones are more common elsewhere. Latin-American countries have experienced many episodes of democratic breakdown, so distinguishing Latin-American cultural attributes from institutional characteristics is difficult. Still, Linz offered several reasons why presidential
systems are so prone to crisis. One particularly important one is the nature of the checks and balances system. Since both the president and the Congress are directly elected by the people, they can both claim to speak for the people. When they have a serious disagreement, according to Linz, "there is no democratic principle on
the basis of which it can be resolved." The constitution offers no help in these cases, he wrote: "the mechanism s the constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate." In a parliamentary system, deadlocks get resolved. A prime minister who lacks
the backing of a parliamentary majority is replaced by a new one who has it. If no such majority can be found, a new election is held and the new parliament picks a leader. It can get a little messy for a period of weeks, but there's simply no possibility of a years-long spell in which the legislative and executive branches glare at
each other unproductively. But within a presidential system, gridlock leads to a constitutional trainwreck with no resolution. The United States's recent government shutdowns and executive action on immigration are small examples of the kind of dynamic that's led to coups and putsches abroad. There was, of course, the
American exception to the problems of the checks-and-balances system. Linz observed on this score: "The uniquely diffuse character of American political parties — which, ironically, exasperates many American political scientists and leads them to call for responsible, ideologically disci plined parties — has something to do with
it." For much of American history, in other words, US political parties have been relatively un-ideological and un-disciplined. They are named after vague ideas rather than specific ideologies, and neither presidents nor legislative leaders can compel back-bench members to vote with them. This has often been bemoaned
(famously, a 1950 report by the American Political Science Association called for a more rigorous party system) as the source of problems. It's also, according to Linz, helped avert the kind of zero-sum conflicts that have torn other structurally similar democracies apart. But that diffuse party structure is also a thing of the past. A
short history of American polarization American politics is much more polarized today than it was 25 or 50 years ago. But not everyone buys the theory that today's era of party polarization spells big trouble. Political scientist Jonathan Bernstein argues that it's "not some sort of freakish un-American phenomenon." The real
exception, Bernstein says, the middle of the twentieth century, when the parties weren't polarized. Polarization is the norm, he says, and he's right. A long line of research starting with Keith Poole and Howard Rosenthal, political scientists at the University of Georgia and New York University respectively, records all
congressional votes and then analyzes the types of political coalitions that emerge. This system, known as DW-NOMINATE, lets you measure the degree of party polarization precisely. When Democrats all vote one way and Republicans all vote the other way, politics is highly polarized. When votes frequently scramble the
parties, it is less polarized. What this research shows is that the steady march toward polarization over the past generation is a return to a situation that existed during an earlier period. The story here, like so much in American politics, is race. Southern Democrats had a range of views on non-racial issues but monolithically
supported white supremacy and held together in the Democratic Party to maximize their leverage in Congress. The result was that the Democratic Party included Northern liberals who supported civil rights and Southern conservatives who supported segregation. So polarization temporarily went away in Congress. But as
segregation receded as an issue in American politics, the parties slowly but surely sorted themselves by ideology, and so today, there is no Republican in Congress more liberal than the most conservative Democrat, or vice-versa. American politics has re-polarized. According to Bernstein, this change may be discomfiting but it's
nothing to worry about. American politics has been polarized before and it was fine. What this story of reversion misses is the crucial role of ideology. Polarization and ideology are clearly related concepts, but simply counting congressional votes doesn't really tell us what those votes were about. Georgetown University
Professor Hans Noel greatly improved our understanding of the relationship between the two by extending the DW-NOMINATE methodology to people who aren't elected officials. For his book Political Parties and Political Ideologies in America, Noel constructs ideological space scores for writers and political pundits — people
who address the same issues as elected officials but who are not serving on Capitol Hill. What he found is that while Gilded Age members of Congress voted in a highly partisan way, their voting didn't reflect any polarization of ideas evident in broader American society. As Charles Calhoun, a leading scholar of Gilded Age politics
has written, the main concern of actual members of Congress was not policy, but "patronage power, the privilege of placing one's political friends and supporters in in subordinate offices." In other words, a member of Congress would get to distribute federal jobs and contracts to his supporters and in exchange the beneficiaries
of his patronage would support his party's ticket at all levels. For this reason, the obscure-sounding job of customs collector of the Port of New York was important enough in the 1870s that Chester A. Arthur leapt from it to the Vice Presidency. The first real filibuster was held over Whig efforts to assign a printing contract to
friendly companies. "Since the president and Congress are elected by the people, they can both claim to speak for the people" Even though party discipline was strict in these days, it was not really about much beyond who held the spoils. Over the course of the 1920s, 1930s, and 1940s the rise of progressi ve and liberal ideology
and the formation of a conservative ideology to counter it upended this system. So much so that by the 1970s it had become common to observe that American political parties were in decline. University of California Irvine political scientist Martin Wattenberg achieved the apogee of this literature with his 1985 classic The
Decline of Political Parties in America (since updated in five subsequent editions), citing the waning influence of party professionals, the rise of single-issue pressure groups, and an attendant fall in voter turnout. But as historian Sam Rosenfeld writes, under-the-hood changes in the process for selecting presidential nominees and
Congressional leaders "ultimately helped to create a newly receptive institutional setting for issue-based activism within the parties," leading to the parties' reconstitution around modern ideological lines. Today's partisan polarization, in other words, is not the same as its Gilded Age predecessor. The old polarization was about
control over jobs and money — the kind of thing where split-the-difference compromises are easiest. That polarization was eventually undermined by a new politics built around principles. For decades, politicians found themselves cross-pressured between their commitments to a national party network and to various
ideological causes. Today, however, politicians are no longer cross-pressured. We have strong Gilded Age-style parties, but organized around questions of principle rather than questions of patronage. You can take this theory too far, of course. There have been moments in American life where questions of principle sharply split
American politics. We had ideological parties (or at least one) in the 1850s when the anti-slavery Republican Party rose to the fore. But the example is not enormously encouraging — the constitutional process collapsed and we had four years of civil war, hundreds of thousands of deaths, and then, even after a Union victory,
white supremacy was re-established in the South through a two-decade campaign of terrorism. The Honduras scenario Not all breakdowns of constitutional processes are as violent as the American Civil War. For a less catastrophic, more realistic view of the kind of thing that could happen here, it's useful to look to some lessfamiliar but more-recent events in Honduras. Back in late 2008, left-wing President Manuel Zelaya was locked in persistent conflict with an opposition-controlled congress. With neither side able to prevail within the context of the existing system, Zelaya decided he wanted to add a fourth question to the upcoming November
2009 election. In addition to voting for president, congress, and municipal offices, Zelaya would ask the voters whether they wanted to hold a constituent assembly to re-write the constitution — presumably to allow him to run for re-election. Unfortunately for Zelaya, Honduras' existing constitution made no provision for rewriting the constitution by plebiscite. Consequently, in March 2009, Zelaya determined that the solution was to hold another plebiscite. On June 28, Hondurans would go to the polls to vote in a non-binding referendum on whether the constitutional question should be added to the November ballot. This, he hoped, would give
him the democratic legitimacy needed to go forward with the constitutional revision. Zelaya's opponents in congress, evidently concerned that the president would win, sued. They won a court case enjoining the president against holding the referendum. Zelaya pressed ahead regardless. In Honduras, the military typically assists
with election logistics, so Zelaya ordered the army to begin distributing ballots. General Romeo Vásquez Velásquez, the chief the Honduran military, refused to comply. On May 24, Zelaya fired the general. Several other commanders quit in solidarity. The Supreme Court ruled that the dismissal was unconstitutional. Throughout
June, the constitutional process essentially broke down with protests and counter-protests dominating the capital. On June 28, the military deposed Zelaya in a coup, retroactively justified by a back-dated Supreme Court ruling. Roberto Micheletti, the president of the National Congress, was installed in his stead. Manuel Zelaya
addresses his supporters after his ouster from office. (Alfredo Estrella/AFP/Getty Images) The military quickly handed power over to a new group of civilians. The coup was legitimated by the National Congress and the Supreme Court. And its perpetrators argued with some justification that there was no constitutional
alternative. Zelaya was trying to circumvent the rules, so they had no choice but to circumvent them too in response. The deadlock was ultimately resolved by force rather than legal procedure. Zelaya did not have enough support to amend the constitution through the existing process, and Honduras' constitutional system
created no legal mechanism for impeachment of a president. The Supreme Court arbitrarily ruled that Zelaya's effort to circumvent the amendment process via referendum was illegal, while Congress' effort to circumvent the impeachment process was fine. There were quite a few injuries as protesters clashed with security
forces, but no massive bloodshed. Honduras' coup is worth paying attention to not because the exact same scenario is likely to play out in the United States, but because it reveals how genuinely difficult it is to maintain constitutional politics in a presidential system. Presidents feel themselves to be accountable for steering the
nation. And all the evidence indicates that the public and the media do in fact hold presidents broadly accountable for national outcomes. Throughout the United States' 2012 presidential campaign, for example, it was universally assumed that good news for the American economy (or for America more broadly) would redound
to Barack Obama's benefit even though control of policymaking was split between the White House and a GOP-dominated Congress. As Obama put it in a November 2014 press conference, "people are going to ask for greater accountability and more responsibility from me than from anybody else in this town." The problem is
the president is not only held accountable for things that are in part outside his ability to control (gas prices, Ebola, or shark attacks) but for things that are actually under the control of his political adversaries. "I'm the guy who's elected by everybody," concluded Obama, "and they want me to push hard to close some of these
divisions, break through some of the gridlock, and get stuff done." If you're going to be held accountable for outcomes, in other words, then you'd better act. In a parliamentary system, this is simply democratic accountability in action. A head of government who strongly believes the nation needs actions the legislature won't
Constitutional hardball The United States, of
course, is a long way from a coup. What we are witnessing instead is a rise in what Georgetown University
Professor Mark Tushnet labeled "constitutional hardball" in a 2004 article. Constitutional hardball describes
legal and political moves "that are without much question within the bounds of existing constitutional
doctrine and practice but that are nonetheless in some tension with existing pre-constitutional
understanding." In other words, moves that do not violate the letter of the law, but do trample on our
conventional understanding of how it is supposed to work. Tushnet's article is vital reading today in part because the different
approve can dissolve parliament and hold a new election to decide the issue. In Honduras' presidential system, the very act of trying to schedule a vote to resolve the deadlock was itself unconstitutional.
partisan context in which it was written can help shock people out of their entrenched positions. His lead example is from the George W. Bush administration, when
liberals were concerned about the president taking power away from Congress. Tushnet describes the "strained" argument offered by Republican senators in 2005
that Democratic Party filibusters of Bush's judicial nominees violated the constitution. At the time, of course, Democrats found the view that Republicans might
simply ban the use of filibusters for this purpose outrageous. "The filibuster serves as a check on power," said Harry Reid, "that preserves our limited government."
Joe Biden called the Republicans' attempt to end the fillibuster "an example of the arrogance of power." But ultimately the hardball tactic for ending filibusters was
used by Democrats in 2013 to halt Republican obstruction of Obama's nominees. Republicans, Reid said, "have done everything they can to deny the fact that
Obama had been elected and then reelected." He argued he had no choice but to abandon a principle that just a few years ago he said was crucial to preserving
American liberty. Meanwhile, Republicans who had supported the 2005 effort to weaken the filibuster executed a perfect flip-flop in the other direction. Tushnet's
other example from the mid-2000s — Texas' decision to redraw congressional district boundaries to advantage Republicans between censuses — seems almost
adorably quaint by the standards of the Obama era. From its very first months, Obama's
presidency has been marked by essentially
nothing but constitutional hardball. During the Bush years, Democratic senators sporadically employed a variety of unusual delaying tactics to
stymie his agenda. In 2009, Mitch McConnell and Senate Republicans retaliated by using tons of them, constantly. Suddenly filibustering went from something a
Senate minority could do to something it did on pretty much all motions. George Washington University congressional scholar Sarah Binder observes that "leaders
in the 1970s rarely felt compelled to file for cloture [to break filibusters], averaging fewer than one per month in some years" while in recent years Reid has filed
over once per week. As Jim Manley, a former aid to the Democratic Senate leadership, explained to The Atlantic, the obstruction not only prevented many of
Obama's more controversial measures from becoming law; it also drastically altered the process of even routine governance. Say you want to break a filibuster. On
Monday, you file cloture on a motion to proceed for a vote on Wednesday. Assuming you get it, your opponents are allowed 30 hours of debate post-cloture on the
motion to proceed. That takes you to Friday, and doesn't cover amendments. The following Monday you file cloture on the bill itself, vote Wednesday, then 30
more hours of debate, and suddenly two weeks have gone by, for something that's not even controversial. As a political strategy, McConnell's tactics were
vindicated by the 2010 midterms, which showed that making the president look partisan, clumsy, and inept was a winning strategy. Republicans in Congress
subsequently moved beyond unusual acts of obstruction to an unprecedented use of the statutory debt ceiling into a vehicle for policymaking. Traditionally a bit of
oddball American political theater immortalized in a funny West Wing scene, in 2011 the GOP threatened to provoke an unfathomable financial and constitutional
crisis unless the Obama administration agreed to sweeping spending cuts. Again, there was nothing illegal about what Republicans in Congress did here — it was
just, in its intent and its scope, unprecedented. And it's fairly clear that these actions, while consistent with Republican Party electoral success, have not exactly
produced a well-respected legislature. Congressional approval ratings are so low — and have been for so long — that it's become a subject of pollster humor. In
2013, Public Policy Polling found that congress was less popular than Genghis Khan, traffic jams, cockroaches, or Nickelback. In a less joking spirit, Gallup finds that
the voters have less confidence in Congress than any other American institution, including big business, organized labor, banks, or television news. As relations with
Congress have worsened, the Obama administration has
set about expanding executive authority over domestic policy to
match Bush-era unilateralism in the national security domain. This came to the fore most publicly with Obama's decision to
protect millions of unauthorized migrants from deportation without congressional agreement. "The practical issue would be not so much what is legal, but what
people would actually tolerate" As Vox's Andrew Prokop has argued, the pattern is actually much broader. Obama's handling of K-12 education policy is in some
ways an even more paradigmatic example of constitutional hardball. The George W. Bush-era education law No Child Left Behind laid out penalties for state
education systems that didn't meet certain, rather unrealistic, targets. The law's authors assumed that when the law came up for reauthorization, the targets would
be changed. In case Congress didn't act in time, the Secretary of Education also had the authority to issue waivers of the penalties. Since Congress no longer really
functions, there has been no reauthorization of the law. So the Obama administration has issued waivers — but only to states that implement policy changes
ordered by the Department of Education. University of Chicago political scientist William Howell told Prokop this was a "new frontier" for executive policymaking.
Yale Law School's Bruce Ackerman says Obama used "a waiver provision for modest experiments and transformed it into a platform for the redesign of the statute."
Obama's actions are clearly legal — but they are just as clearly a decision to creatively exploit the letter of the law to vastly expand the scope of executive power
over the law. Those who like these actions on their merits comfort themselves with the thought that these uses of executive power are pretty clearly allowed by the
terms of the existing laws. This is true as far as it goes. But it's also the case that Obama (or some future president) could have his political opponents murdered on
the streets of Washington and then issue pardons to the perpetrators. This would be considerably more legal than a Zelaya-style effort to use a plebiscite to
circumvent congressional obstruction — just a lot more morally outrageous. In either case, however, the practical issue would be not so much what is legal, but
what people, including the people with guns, would actually tolerate. Raising the stakes America's escalating game of constitutional hardball isn't caused by
personal idiosyncratic failings of individual people. Obama has made his share of mistakes, but the
fundamental causes of hardball politics
are structural, not personal. Personality-minded journalists often argue that a warmer executive would
do a better job of building bridges to congress. But as Duke University's Brendan Nyhan points out, "Bill
Clinton's more successful outreach to his opponents didn't keep him from getting impeached. Likewise,
George W. Bush was more gregarious than Obama, but it didn't make him any more popular among
Democrats once the post-9/11 glow had worn off."
There's a reason for this, and it gets to the core of who really runs American politics. In a democratic society, elected officials are most directly accountable to the people
who support them. And the people who support them are different than the people who don't care enough about politics to pay much attention, or the people who support the other side. They are more ideological, more partisan, and they want to see the policies they support passed into law. A leader who abandons his core
supporters because what they want him to do won't be popular with most voters is likely, in modern American politics, to be destroyed in the next primary election. The amateur ideological activists who eroded the power of the party professionals in the 1970s are now running the show. While Gilded Age activists traded
support for patronage jobs, modern-day activists demand policy results in exchange for support. Presidents need to do everything within their legal ability to deliver the results that their supporters expect, and their opponents in Congress need to do everything possible to stop them. At one point, Republican congressional
leaders were highly amenable to passing an immigration reform bill and the Obama administration insisted it had no means of circumventing the legislative process. But under pressure from their respective bases, Republicans found it impossible to compromise and Obama decided he had better find a way to go around
Congress. It is true that the mass public is not nearly as ideological as members of Congress. But the mass public is not necessarily active in democratic politics, either. Emory's Alan Abramowitz finds that "the American public has become more consistent and polarized in its policy preferences over the past several decades." He
also writes that "this increase in consistency and polarization has been concentrated among the most politically engaged citizens." This rise in ideological activism has a number of genuinely positive impacts. It makes politics less corrupt. The least-polarized state legislatures in America are in places like Rhode Island and
Louisiana, bastions of corruption rather than good government. It's not a coincidence that the Tea Party surge led to the end of earmarked appropriations. But it heightened executive-legislative conflict and leads to what Linz termed "the zero-sum character of presidential elections." Bush and Gore shake hands in December
2000, after their remarkably orderly contested election was resolved. (Tannen Maury/AFP/Getty Images) Looking back at Bush's election in 2000, one of the most remarkable things is how little social disorder there was. The American public wanted Al Gore to be president, but a combination of the Electoral College rules, poor
ballot design in Palm Beach County, and an adverse Supreme Court ruling, put Bush in office. The general presumption among elites at the time was that Democrats should accept this with good manners, and Bush would respond to the weak mandate with moderate, consensus-oriented governance. This was not in the cards.
Not because of Bush's personal qualities (if anything, the Bush family and its circle are standard-bearers for the cause of relative moderation in the GOP), but because the era of the "partisan presidency" demands that the president try to implement the party's agenda, regardless of circumstances. That's how we got drastic tax
cuts in 2001. If the Bush years shattered the illusion that there's no difference between the parties, the Obama years underscore how much control of the White House matters in an era of gridlock. The broadly worded Clean Air Act, whose relevant provisions passed in 1970, has allowed Obama to be one of the most
consequential environmental regulators of all time — even though he hasn't been able to pass a major new environmental bill. He's deployed executive discretion over immigration enforcement on an unprecedented scale. And he's left a legacy that could be rapidly reversed. A future Republican administration could not only
turn back these executive actions, but substantially erode the Affordable Care Act. The lessons of the 2000 and 2008 elections make it unnerving to imagine a Bush-Gore style recount occurring in 2014's political atmosphere. The stakes of presidential elections are sky-high. And the constitutional system provides no means for a
compromise solution. There can be only one president. And once he's in office he has little reason to show restraint in the ambitions of the legislative — or non-legislative — agenda he pursues. In the event of another disputed election, it would be natural for both sides to push for victory with every legal or extra-legal means at
their disposal. Indeed, we ought to consider possibilities more disastrous than a repeat of the 2000 vote. What if a disputed presidential election coincided with a Supreme Court vacancy? What if the simultaneous deaths of the president and vice president brought to power a House Speaker from the opposite party? What if
neither party secured a majority of electoral votes and a presidential election wound up being decided by a vote of the lame duck House of Representatives? What if highly partisan state legislatures start using their constitutional authority to rig the presidential contest? A system of undisciplined or non-ideological political
parties has many flaws, but it is at least robust to a variety of shocks. Our current party alignment makes for a much more brittle situation, in which one of any number of crises where democratic norms and constitutional procedures diverge could bring us to a state of emergency. A flawed system The idea that America's
reality is that despite its durability, it has rarely functioned well
by the standards of a modern democracy. The party system of the Gilded Age operated through systematic corruption. The less polarized era
constitutional system might be fundamentally flawed cuts deeply against the grain of our political culture.
But the
that followed was built on the systematic disenfranchisement of African-Americans. The newer system of more ideological politics has solved those problems and
seems in many ways more attractive. But over the past 25 years, it's set America on a course of paralysis and crisis — government shutdowns, impeachment, debt
ceiling crises, and constitutional hardball. Voters, understandably, are increasingly dissatisfied with the results and confidence in American institutions has been
generally low and falling. But rather
than leading to change, the dissatisfaction has tended to yield wild electoral
swings that exacerbate the sense of permanent crisis. "The best we can hope for is that when the crisis does come, Americans will
put a better system in place" As dysfunctional as American government may seem today, we've actually been
lucky. No other presidential system has gone as long as ours without a major breakdown of the
constitutional order. But the factors underlying that stability — first non-ideological parties and then non-disciplined ones —
are gone. And it's worth considering the possibility that with them, so too has gone the American exception to the rule of presidential breakdown. If we seem
to be unsustainably lurching from crisis to crisis, it's because we are unsustainably lurching from crisis to crisis. The breakdown may not
be next year or even in the next five years, but over the next 20 or 30 years, will we really be able to resolve every one of these high-stakes showdowns without
making any major mistakes? Do you really trust Congress that much? The best we can hope for is that when the crisis does come, Americans will have the wisdom
to do for ourselves what we did in the past for Germany and Japan and put a better system in place.
Democratic liberalism is backsliding now---the US model of an unrestrained executive
causes collapse
Larry Diamond 9, Professor of Political Science and Sociology @ Stanford, “The Impact of the Global
Financial Crisis on Democracy”, Presented to the SAIS-CGD Conference on New Ideas in Development
after the Financial Crisis, Conference Paper that can be found on his Vita
Concern about the future of democracy is further warranted by the gathering signs of a democratic
recession, even before the onset of the global economic recession. During the past decade, the global expansion of
democracy has essentially leveled off and hit an equilibrium While freedom (political rights and civil liberties) continued to expand
throughout the post-Cold War era, that progress also halted in 2006, and 2007 and 2008 were the worst consecutive years for freedom since the end of the Cold
War, with the number of countries declining in freedom greatly outstripping the number that improved. Two-thirds
of all the breakdowns of
democracy since the third wave began in 1974 have occurred in the last nine years, and in a number of
strategically important states like Russia, Nigeria, Venezuela, Pakistan and Thailand. Many of these countries have
not really returned to democracy. And a number of countries linger in a twilight zone between democracy and
authoritarianism. While normative support for democracy has grown around the world, it remains in
many countries, tentative and uneven, or is even eroding under the weight of growing public cynicism about corruption and the
self-interested behavior of parties and politicians. Only about half of the public, on average, in Africa and Asia meets a rigorous, multidimensional test of support for
democracy. Levels of distrust for political institutions—particularly political parties and legislatures, and politicians in general—are very high in Eastern Europe and
Latin America, and in parts of Asia. In
many countries, 30-50 percent of the public or more is willing to consider some
authoritarian alternative to democracy, such as military or one-man rule. And where governance is bad or elections are rigged and the public
cannot rotate leaders out of power, skepticism and defection from democracy grow. Of the roughly 80 new democracies that have emerged
during the third wave and are still standing, probably close to three-quarters are insecure and could run some risk of
reversal during adverse global and domestic circumstances. Less at risk—and probably mostly consolidated—are the more established
developing country democracies (India, Costa Rica, Botswana, Mauritius), and the more liberal democracies of this group: the ten postcommunist states that have
been admitted to the EU; Korea and Taiwan; Chile, Uruguay, Panama, Brazil, probably Argentina; a number of liberal island states in the Caribbean and Pacific.
This leaves about 50 democracies and near democracies—including such big and strategically important
states as Turkey, Ukraine, Indonesia, the Philippines, South Africa, certainly Pakistan and Bangladesh,
and possibly even Mexico—where the survival of constitutional rule cannot be taken for granted. In some of
these countries, like South Africa, the demise of democracy would probably come, if it happened, not as a result of a blatant
overthrow of the current system, but rather via a gradual executive strangling of political pluralism and freedom, or
a steady decline in state capacity and political order due to rising criminal and ethnic violence. Such circumstances would also swallow
whatever hopes exist for the emergence of genuine democracy in countries like Iraq and Afghanistan
and for the effective restoration of democracy in countries like Thailand and Nepal.
Checks Solve Democratic Transitions
Democratic transitions are hanging in the balance---only empowering checks on
executive power through rule of law can tip the scales
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, Lexis
Many of the newly independent governments that have proliferated over the past five decades have
adopted these ideals. They have emerged from a variety of less-than-free contexts, including the end of European colonial rule in the 1950's and 1960's, the end of the Cold War
and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration of Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and southern Asia.
Some countries have successfully transitioned to stable and democratic forms of government that protect
individual freedoms and human rights by means of judicial review by a strong and independent judiciary. Others have suffered the rise of
tyrannical and oppressive rulers who consolidated their hold on power in part by diminishing or abolishing the role of the judiciary. And still others
hang in the balance, struggling against the onslaught of tyrants to establish stable, democratic
governments. In their attempts to shed their tyrannical pasts and to ensure the protection of individual
rights, emerging democracies have consistently looked to the United States and its Constitution in
fashioning frameworks that safeguard the independence of their judiciaries . See Ran Hirschl, The Political Origins of Judicial Empowerment
through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of the “[m]any countries . . . [that] have engaged in fundamental
Establishing judicial review
by a strong and independent judiciary is a critical step in stabilizing and protecting these new
democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the
constitutional reform over the past three decades,” nearly all adopted “a bill of rights and establishe[d] some form of active judicial review”).
judicial branch as having "a uniquely important role" in transitional countries, not only to "mediate conflicts between political actors but also [to] prevent the arbitrary exercise of government
power; see also Daniel C. Prefontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, International Centre for Criminal Law Reform and Criminal Justice Policy (1998)
countries in transition from
dictatorships and/or statist economies recognize the need to create a more stable system of governance, based on the
rule of law."), available at http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw. pdf (last visited Jan. 8, 2004). Although the precise form of government differs among
("There is increasing acknowledgment that an independent judiciary is the key to upholding the rule of law in a free society . . . . Most
countries, “they ultimately constitute variations within, not from, the American model of constitutionalism . . . [a] specific set of fundamental rights and liberties has the status of supreme law,
is entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L.
707, 718 (2001). This phenomenon became most notable worldwide after World War II when certain countries, such as Germany, Italy, and Japan, embraced independent judiciaries following
their bitter experiences under totalitarian regimes. See id. at 714- 15; see also United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring) (“Since World War II, many
countries have adopted forms of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration from American constitutional theory
It is a trend that continues to this
day. It bears mention that the United States has consistently affirmed and encouraged the establishment of
independent judiciaries in emerging democracies. In September 2000, President Clinton observed that "[w]ithout the rule of law,
elections simply offer a choice of dictators. . . . America's experience should be put to use to advance
the rule of law, where democracy's roots are looking for room and strength to grow." Remarks at Georgetown University Law School, 36 Weekly Comp. Pres. Doc. 2218
(September 26, 2000), available at http://clinton6.nara.gov/2000/09/2000-09-26- remarks-by-president-at-georgetown-international-lawcenter. html. The United States acts on
these principles in part through the assistance it provides to developing nations. For example, the United States requires that any country seeking assistance through the
and practice. See generally Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989).”).
Millenium Challenge Account, a development assistance program instituted in 2002, must demonstrate, among other criteria, an "adherence to the rule of law." The White House noted that
the rule of law is one of the "essential conditions for successful development" of these countries. See
http://www.whitehouse.gov/infocus/developingnations (last visited Jan. 8, 2004).12
US is key- Signals other Demos
Violation of separation of powers undermines US security decisions by signaling lack
of robust support and legitimacy
Louis Fisher in 2009 is a specialist in constitutional issues with the Law Library of the Library of
Congress, Presidential Studies Quarterly 39, no. 2 (June), Presidential Power in National Security: A
Guide to the President-Elect
Respect for the Constitution and joint action with Congress provide the strongest possible signal to
both enemies and allies. By following those principles, other countries understand that U.S. policy has a broad
base of support and is not the result of temporary, unilateral presidential actions that divide the
country and are likely to be reversed. National security is strengthened when presidents act in concert
with other branches and remain faithful to constitutional principles. In periods of emergency and
threats to national security (perceived or real), the rule of law has often taken a backseat to presidential
initiatives and abuses. Although this pattern is a conspicuous part of American history, it is not necessary to repeat the same mistakes
every time. Faced with genuine emergencies, there are legitimate methods of executive action that are
consistent with constitutional values. There are good precedents from the past and a number of bad
ones. In response to the 9/11 terrorist attacks, the United States largely decided to adopt the bad ones.
The responsibility for this damage to the Constitution lies primarily with the executive branch, but illegal and
unconstitutional actions cannot occur and persist without an acquiescent Congress and a compliant judiciary. The Constitution’s
design, relying on checks and balances and the system of separation of powers, was repeatedly ignored
after 9/11. There are several reasons for these constitutional violations. Understanding them is an essential first step in
returning to, and safeguarding, the rule of law and constitutional government.
Demo !- War
Consensus of experts agree that democracies reduce militarized conflict- it outweighs
alternate causes
Allan Dafoe in 2011, is a Ph.D. candidate in the Travers Department of Political Science @ Berkeley,
Statistical Critiques of the Democratic Peace: Caveat Emptor, American Journal of Political Science, Vol.
55, No. 2, April 2011, Pp. 247–262
The “democratic peace”—the inference that democracies rarely fight each other—is one of the most
important and empirically robust findings in international relations (IR).1 The apparent empirical association2
between joint democracy3 and peace has been debated and challenged since its first discovery by political scientists to the present (Gartzke
2007). Scholars have argued that this empirical association is in fact a product of other confounding factors, such as Cold War alliances (Farber
and Gowa 1997; Gowa 1999), satisfaction with the regional status quo (Kacowicz 1995), shared foreign policy interests (Gartzke 1998, 2000),
unmeasured factors such as dyad-specific effects (Green, Kim, and Yoon 2001), stable borders (Gibler 2007), and capital openness and
development (Gartzke 2007; Gartzke and Hewitt 2010). Despite the
large number of serious challenges, most current
quantitative analyses continue to find a substantial, robust, and statistically significant association
between joint democracy and the absence of militarized conflict. This article will analyze a recent challenge to the
democratic peace (Gartzke 2007), situate it in the context of other statistical challenges to the democratic peace, and show that the democratic
peace persists as a compelling finding. In so doing, this article also identifies new features of the democratic peace. It is important to be clear
about what this empirical association implies about international politics. Despite the robustness of this result to different model specifications,
this observational finding by itself does not prove that it is characteristics of democracies—such as regular
competitive elections, constraints on the executive, liberal norms, or civil rights—that make these countries more peaceful
toward each other. Even less does it prove that the forceful spread of democracy in particular regions of the world will reduce the
frequency or severity of wars. Justifying causal claims such as these exclusively using analyses of observational data requires the leverage of
strong assumptions. It is for this reason that there is less agreement about the actual causal mechanisms of the democratic peace than that
around the underlying explanandum. Scholars have proposed that the democratic peace arises because of shared norms (Maoz and Russett
1993), restraint on democratic leaders (Bueno de Mesquita et al. 1999), more credible communication through transparency (Schultz 1998) or
domestic audience costs (Fearon 1994; Tomz 2007; Weeks 2008), greater capacity to reach stable bargains (Lipson 2003), and other possible
causal pathways. On the other hand, it may not be a “democratic” characteristic at all that accounts for the peace, but some other co-occurring
or preceding factor, such as shared strategic circumstances, shared political systems, capitalism, prosperity, liberal economic norms, or other
factors.
Nonetheless, the democracy-peace empirical association remains of paramount importance
because, despite our best attempts to “control for” other possible correlates of this peace, the fact
that two countries are democratic remains strongly associated with them having peaceful relations.
Furthermore, under relatively modest assumptions this apparently peaceful proclivity seems unlikely to
have arisen by chance (that is, the finding is “statistically significant”). This empirical association is foundational to a vast
literature testing, refining, and extending theories about the apparent relationship between regime type and peace. Thus it matters greatly
whether this association is robust to potential confounders (for reviews of this literature, see George and Bennett 2004; Ray 1995).
Alt causes can’t explain it- the establishment of democracies is uniquely responsible
for decreasing global conflict
Allan Dafoe in 2011, is a Ph.D. candidate in the Travers Department of Political Science @ Berkeley,
Statistical Critiques of the Democratic Peace: Caveat Emptor, American Journal of Political Science, Vol.
55, No. 2, April 2011, Pp. 247–262
A venerable lineage of scholars and thinkers have advanced arguments related to the democratic peace,
including Georg Wilhelm Friedrich Hegel, Immanuel Kant, and Woodrow Wilson (Ray 1995, 4–6; Kant [1795] 1969). Scholars have
proposed and tested a variety of propositions, such as whether democracies are less violent toward their own citizens
(Rummel 1983) or against all other states (Rousseau et al. 1996). However, by far the most well-established proposition is
that democracies are less likely to engage in violent conflict with each other. It is this apparent
empirical association between democratic dyads and peace that makes up the foundation of the
democratic peace research program. The dyadic democratic peace has faced many challenges, most of which
can be categorized as either (1) raising concerns of potential confounding or (2) questioning the independence of the data and hence the
statistical significance of results. Concerns about the possibility of confounding have been present in the earliest works on the democratic
peace. Scholars
have sought to control for the possibility that the democratic peace is a spurious
association driven by factors such as contiguity and distance, economic growth and wealth, the balance of military
capabilities, alliance ties, and political stability. The most prominent criticism of confounding is that the democratic peace is a spurious
association arising from underlying realist factors, such as alliance structures, the Cold War, or other shared foreign policy interests (Farber and
Gowa 1995; Gowa 1999). However,
the introduction ofcontrol variables for all of these potential confounders
into regression analyses has on the whole failed to remove the significant association between dyadic
democracy and peace (Gartzke 1998, 2000; Kacowicz 1995; Lemke and Reed 1996; Maoz and Abdolali 1989; Maoz and Russett 1993;
Oneal and Russett 1999b; Ray 1995; Rousseau et al. 1996; Russett 1993; Russett and Oneal 2001; Russett, Oneal, and Davis 1998; Signorino and
Ritter 1999; Small and Singer 1976; Thompson and Tucker 1997). A more recent lineage of challenges emphasizing omitted confounders, closely
related to Gartzke’s (2007) critique, develops the argument that economic processes, such as the rise of commercial liberalism or increases in
economic interdependence, are responsible for peaceful interstate relations, and that these factors correlate with or cause democracy. These
studies have presented persuasive evidence that measures of economic factors strongly associate with conflict dynamics, and even account for
some of the democratic peace. For example, Mousseau, Hegre, and Oneal (2003), building from Mousseau (2000), have shown that
economically developed dyads are less likely to engage in militarized disputes, and that the democratic peace is conditional on the level of
wealth in the dyad. More recently, Mousseau, using the per capita purchase of life insurance as a measure of the presence of a contractintensive economy (CIE), makes the stronger claim that “economic development, [particularly] contract-intensive development, appears to
account for [the democratic peace]” (2009, 53). This
stream of research has identified an important set of factors that
condition the democracy-peace association; however, contrary to the stronger claims made, this
literature does not as yet pose a fundamental statistical challenge to the democratic peace. Mousseau,
Hegre, and Oneal (2003, 297) note that the interaction between regime type and wealth only renders the democracypeace association
insignificant for the poorest democratic countries. In their sample, this includes only 9% of the democratic dyads (Democracy > 6), and they
note that by 1992 all democratic dyads are above this wealth threshold. Mousseau (2009) reports that the democratic peace is no longer
significant when both dyads lack contractintensive economies (oneCIE = 0). However, as Russett (2010) also points out, only 26% of the
democratic dyads in Mousseau’s sample have no CIEs; for the other 74% of the democratic dyads Mousseau’s analyses find a significant
association between democracy and peace. Thus, while Mousseau (2009) and related research have identified an important conditioning factor
of the democratic peace, as with the realist critiques this set of work has not yet provided a compelling operationalization of a confounding
factor that explains away the democratic peace.5
Demo !- War/Economy
Democracies are the best form of government; promote peace and economic
prosperity
Lagon, 2011-- Adjunct Senior Fellow for Human RightsLagon, Mark P. "Promoting Democracy: The Whys and Hows for the
United States and the International Community." Council on Foreign Relations. Council on Foreign Relations, Nov. 2011. Web. 31 May 2015.
Stakes in Democracy Furthering democracy is often dismissed as moralism distinct from U.S. interests or mere lip service to build support for
strategic policies. Yet there
are tangible stakes for the United States and indeed the world in the spread of
democracy—namely, greater peace, prosperity, and pluralism. Controversial means for promoting
democracy and frequent mismatches between deeds and words have clouded appreciation of this truth.
Democracies often have conflicting priorities, and democracy promotion is not a panacea. Yet one of the few truly robust findings in
international relations is that established democracies never go to war with one another. Foreign policy
“realists” advocate working with other governments on the basis of interests, irrespective of character, and suggest that this approach best
preserves stability in the world. However, durable stability flows from a domestic politics built on consensus and peaceful competition, which
more often than not promotes similar international conduct for governments. There has long been controversy about whether democracy
enhances economic development. The dramatic growth of China certainly challenges this notion. Still, history will likely show
that
democracy yields the most prosperity. Notwithstanding the global financial turbulence of the past three years, democracy’s
elements facilitate long-term economic growth. These elements include above all freedom of expression and learning to
promote innovation, and rule of law to foster predictability for investors and stop corruption from stunting growth. It is for that reason
that the UN Development Programme (UNDP) and the 2002 UN Financing for Development Conference in Monterey, Mexico,
embraced good governance as the enabler of development. These elements have unleashed new emerging powers
such as India and Brazil and raised the quality of life for impoverished peoples. Those who argue that economic development will eventually
yield political freedoms may be reversing the order of influences—or at least discounting the reciprocal relationship between political and
economic liberalization. Finally,
democracy affords all groups equal access to justice—and equal opportunity
to shine as assets in a country’s economy. Democracy’s support for pluralism prevents human assets—including religious and
ethnic minorities, women, and migrants—from being squandered. Indeed, a shortage of economic opportunities and outlets for grievances has
contributed significantly to the ongoing upheaval in the Middle East. Pluralism is also precisely what is needed to stop violent extremism from
wreaking havoc on the world. Evolving U.S. Policy To say there are major interests in democracy’s “enlargement”—that central concept in both
national security strategy blueprints of the Clinton presidency—does not settle what role the United States should play and what policy tools
are appropriate. These are the questions not of why but of how. A look at waves of U.S. policy since World War II offers apt lessons. After
World War II, the United States played a significant role in deepening and widening democracy in Western
Europe. The United States encouraged European integration to stabilize the West European democracies, and NATO was
a bulwark within which Italy, West Germany, Portugal, and Spain democratized. Later, after the Cold War, the
twin institutions of NATO and an integrated Europe together created powerful incentives for emerging East European democracies to join
Western multilateral institutions.
Democracy !- Laundry List
Democracy preserves human life
Carnegie Commission on Preventing Deadly Conflict ‘95 (October, "Promoting Democracy in
the 1990's," http://wwics.si.edu/subsites/ccpdc/pubs/di/1.htm)
Nuclear, chemical, and biological weapons continue to proliferate. The very source of life on Earth, the
global ecosystem, appears increasingly endangered. Most of these new and unconventional threats
to security are associated with or aggravated by the weakness or absence of democracy, with its
provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE
TWENTIETH CENTURY The experience of this century offers important lessons. Countries that govern
themselves in a truly democratic fashion do not go to war with one another. They do not aggress
against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do
not ethnically "cleanse" their own populations, and they are much less likely to face ethnic
insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons
of mass destruction to use on or to threaten one another. Democratic countries form more reliable,
open, and enduring trading partnerships. In the long run they offer better and more stable climates
for investment. They are more environmentally responsible because they must answer to their own
citizens, who organize to protest the destruction of their environments. They are better bets to honor
international treaties since they value legal obligations and because their openness makes it much more
difficult to breach agreements in secret. Precisely because, within their own borders, they respect
competition, civil liberties, property rights, and the rule of law, democracies are the only
reliable foundation on which a new world order of international security and prosperity can be
built.
Democracy solves all impacts – empirical studies prove democratic governments
resolve conflicts peacefully
Ndulo, Professor of Law @ Cornell, 3(Muno Ndulo, Advocate of the Supreme Court of Zambia;
Professor, Cornell Law School; Director, Institute for African Development, Cornell University, 2003,
Indiana Journal of Global Legal Studies, Lexis)
A 1993 study of 233 internal conflicts around the world, concluded that democracies had a far better record of
peacefully managing such conflicts than alternative systems. 54 The empirical fact that democracies are far less likely to go to war
with each other than other regimes further substantiates the relationship between poverty and conflict, and their impact on the democratization process.
Authoritarian or totalitarian systems simply do not have the institutions by which conflicts in society can be
peacefully expressed and resolved. Dictatorships generally try to deal with conflicts by ignoring or denying them, or by
suppressing them using state coercive apparatus. While such methods may indeed control conflicts (albeit usually at a severe
cost), they [End Page 323] generally cannot resolve them. 56 The implication of fundamental issues such as identity and
cultural integrity in such conflicts means that almost nothing short of mass expulsions or genocide will make the conflicts disappear. It is generally believed
that the ethnic conflict that erupted in the former Yugoslavia in 1990, for example, had been suppressed for almost fifty years during the years of communism, but
was always present and unresolved. 57 An
authoritarian system can present an illusion of short-term stability through
its use of coercive state power to suppress dissent, but is unlikely to sustain that stability over the long
term. In contrast, it is argued that under a democracy, disputes that arise are likely to be processed, debated, and
reacted to, rather than resolved definitively and permanently. 58 In short, democracy operates as a conflict management
system. As Harris and Reilly have observed, it is this ability to handle conflicts without having to suppress them or be engulfed by them that distinguishes
democratic governance from authoritarian rule. 59 This does not by any means suggest that democracy is perfect, or that the mere establishment of democratic
governance will itself lead to the settlement or prevention of conflicts. There are a number of cases in which democratic institutions are hastily "transplanted" to
post-conflict societies without taking root or with a subsequent resumption of hostilities—as in the cases of Burundi, Cambodia and Liberia. 60 But it is equally true
that these cases offer many lessons as to how deals are struck and which choices are of crucial importance to building a sustainable outcome. 61 Democracy is often
messy and difficult, but it is also the best hope for building sustainable solutions to most conflicts in the world. However, democratic institutions have to be strong
enough to function effectively and fairly. They can only be strong where the economic conditions are such that they can be sustained.
Democracy Up
Democracy still resilient even in global economic crisis
David and Carothers ’10 Zachary Davis and Thomas Carothers, March 2010, “The Economic Crisis
and Democracy: a Year Later”, Carnegie Endowment for International Peace, Zachary Davis is a junior
fellow in the Democracy and Rule of Law Program at the Carnegie Endowment for International Peace.
Thomas Carothers is the vice president for studies at the Carnegie Endowment for International Peace.
http://carnegieendowment.org/files/2010-03-economy-democracy.pdf
When the global economic crisis erupted in late 2008, many observers expressed concern that it would
undermine global democracy. The Economist Intelligence Unit, for example, warned that the recession
could turn the “recent halt in democratization…into a retreat.”i And Larry Diamond wrote concerning
democracy that “thanks to the global economic crisis … things may get worse before it gets better.”ii
Now that a year has passed, what does the record show? Although the economic crisis has certainly
caused widespread economic suffering, it appears that democracies, even struggling ones, are
demonstrating more resilience to the crisis than many predicted. Democracies certainly did not avoid
political consequences of the economic downturn. Frustrated citizens voted out incumbents in more
than 35 percent of the elections in 2009, including long-term ruling parties in Iceland, Japan, and El
Salvador. Although it is difficult to prove definitively, it is likely that the crisis greatly contributed to
popular discontent with incumbents. Moreover, some countries experienced severe political crises
caused at least in part because of the global recession. In Latvia, massive street protests over the
government’s handling of the downturn forced the prime minister and several other government
officials to resign. Greece’s acute fiscal challenges have resulted in widespread public anger and distrust
of the government. Yet even in the nations hardest hit by the crisis, democratic institutions have
demonstrated resilience. Anger has largely been channeled to the ballot box. When it has spilled into
the streets, it has stayed within certain limits. Democracy did suffer reversals in several places in 2009.
In Honduras, accumulated tensions reflecting a deep polarization over basic political visions between
the executive and other parts of the political establishment resulted in a coup against President Manuel
Zelaya. Similarly, in Madagascar, the legally-elected president was unconstitutionally ousted by a
political rival who had gained the support of the army. And in Niger, President Tandja dissolved the
National Assembly and announced the assumption of 2 emergency powers in what was widely
suspected to be an attempt to illegally extend his rule. The economic crisis did not, however, appear to
play a direct or significant role in these political disputes, which instead were rooted in ideological or
personalistic factions. Why were democracies largely able to weather the storms of the global
recession? The most important factor explaining democratic resilience is the inherent nature of
democracies themselves. Despite their many imperfections, democratic systems provide citizens at least
some ability to express frustration peacefully through open debate and elections. This increases the
likelihood that citizens may continue to accept the political system as legitimate even when the
economic performance of the country suffers. Autocratic systems, on the other hand, may be more
vulnerable to recessions, at least when they have traditionally relied either on successful economic
performance or subsidies to the poor for legitimacy. When economic contraction occurs, popular
support for the regime can quickly fade. Without the release valve of democratic institutions,
autocracies are forced to quell unrest with increasingly heavy-handed tactics, often making the survival
of the regime ever more precarious. Yet like democracies, few autocracies have shown signs of systemic
vulnerability as a result of the current economic crisis. Iran has certainly experienced significant internal
unrest, but it appears to be more a result of electoral fraud and existing social tensions concerning the
nature of the Islamic Republic than because of the economic contraction, although economic friction
may have contributed to the impact. Tightening the screws on what political space does exist, and
employing other heightened methods of control, seems to be working so far for most autocracies. The
political stability of all types of political systems is somewhat surprising given the high degree of social
upheaval that occurred in the wake of the Great Depression in the 1930s. However, a number of factors
suggest why this crisis has been less politically disruptive than its predecessor. First, the crisis turned out
to be less severe than predicted. Partly due to swift and decisive government action in many nations,
the worst potential outcomes of the crisis were averted. It is possible that a more sustained and
substantial global economic recession would have overwhelmed the ability of many weak nations to
contain social unrest. Second, concerns that the discrediting of U.S-style capitalism would lead to a guiltby-association discrediting of democracy have proven unfounded. Indeed, despite early bluster,
alternatives to capitalism have not gained much traction. Many countries are trying to strengthen their
regulatory systems, but are not throwing out capitalism altogether. Third, many governments, including
fragile democracies, may have avoided some of the blame for the consequences of the crisis because of
its clear origin in the U.S. financial markets. With such a useful bogeyman, weak governments could
more ably dampen populist ire. Ultimately, it may be that one year is too early to accurately measure
the full effect of the economic crisis on global democracy. Many of the consequences of the crisis may
take longer to surface or are less immediately evident. Economic inequality and government corruption
tend to increase during recessions and both weaken the quality of and popular support for democracy.
The increased popular dissatisfaction with democracy in Eastern 3 Europe is an example of long-term
trouble the recession may inflict. In Ukraine, Hungary, and Bulgaria, for example, only 21 percent of the
population is satisfied with the way democracy is working in their country, with more than 70 percent in
each country naming corruption as a significant problem.iii despite such challenges, global democracy
has been less damaged than many would have predicted a year ago. Many fragile democracies will
continue to struggle to provide the economic growth and opportunity that citizen’s desire, but this
period of severe economic dislocation and suffering has not, so far at least, produced a negative political
tide.
Democracies survive financial crisisDiamond 11 Larry Diamond, January 2011, “The Impact of Economic Crisis; Why Democracies
Survive”, The Journal of Democracy, http://www.journalofdemocracy.org/article/impact-economiccrisis-why-democracies-survive
As an analysis of recent electoral results shows, the world’s emerging democracies are weathering the
global economic crisis surprisingly well. There are three main reasons behind democracy’s resilience
during the downturn. First, the countries hardest hit economically by the financial crisis have mostly
been the wealthy, industrialized democracies or the new European market economies, which are now
consolidated and deeply institutionalized. Second, in the newer and weaker democracies, the effect of
economic turbulence has been the defeat of democratically elected governments but not the demise of
democracy. And third, the breakdowns of democracy that have been occurring largely predate the onset
of the global recession and are due to bad internal governance, not unfavorable global conditions.
A2 Democracy Bad Examples
Democracy failed in the Middle East because of the ways it was implemented- not democracy itself
Lagon, 2011-- Adjunct Senior Fellow for Human Rights Lagon, Mark P. "Promoting Democracy: The
Whys and Hows for the United States and the International Community." Council on Foreign Relations.
Council on Foreign Relations, Nov. 2011. Web. 31 May 2015.
After 9/11, President George W. Bush elevated democratization in the Middle East as a strategic
priority. This apt aim, however, was undermined by several factors: the association of democracy
promotion with military intervention in Iraq (which did not yield democracy with ease); the use of harsh
counterterrorism measures that undercut the symbolism of freedom; the tendency to flinch when
likely winners of elections were worrisome (such as in the Palestinian territories); and the failure to meet
democracy rhetoric with action in places like Egypt and Pakistan.
Solvency
Solvency- Congressional Checks
Congress should require that seizures of personal records target specific suspects,
curtail access to phone records, and mandate institutional oversight of executive
activities
Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and
Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in
Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymakin
g%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,
U.S. policymakers in the post-9/11 world face difficult choices between striving for higher levels of
security and protecting civil liberties. Recent leaks about vast surveillance programs have raised fears that
the government is using powerful tools to invade the privacy of millions of Americans. Because the Patriot Act
provides a legal basis for this surveillance, it is widely held responsible for undermining constitutional rights. Based on our ongoing research on
the Patriot Act, we
demonstrate major failures in congressional policymaking on domestic surveillance.
Although Congress has generally sought to balance concerns for security and civil liberties, poorly
deliberated decisions have undermined both values. In addition, Congress generally failed to provide for
appropriate reviews of investigative methods. And when it finally identified problems with surveillance
tools, it passively allowed the executive to develop solutions. The current controversies over domestic
spying stem from the exploitation of this largely unstructured discretion by the Bush and Obama administrations.
We make recommendations for both substantive policy and institutional reforms. Congress should
restrict seizures of personal records by requiring that they target specific suspects. It should set explicit
legislative policies on investigators’ access to phone records. And it should undertake institutional
reforms—on both the legislative and executive sides—to enhance advocacy of privacy interests, to
improve monitoring and assessment of investigative activities, and to strengthen congressional
participation in areas requiring secrecy.
Checks and balances are key- self policing fails
Center for Democracy and Technology ’08 5/14/08, “Legislation Needed to Correct Widespread
Errors in Use of National Security Letters” https://cdt.org/insight/legislation-needed-to-correctwidespread-errors-in-use-of-national-security-letters/
In response to the Inspector General’s March 2007 report, the FBI issued detailed guidance setting some
new internal requirements for NSLs. The guidance puts in place useful procedures – and training
programs have been conducted – that will make it less likely that FBI agents seek with NSLs information
they are not entitled to receive. The procedures also make it less likely that agents will use NSLs to seek
information without having first opened an investigation. They will also make it more likely that when
the recipient of an NSL turns over more information than was requested, the information is returned or
destroyed if it is irrelevant, rather than being retained in an FBI database and shared widely within the
government. However, internal reforms cannot fix the most egregious problems the IG has identified, all
of which flow from the lack of any external checks and balances. The IG found that reviews of NSL
requests conducted by supervisory FBI attorneys were insufficient. In some instances, for example, the
supervisor’s approval memo was inconsistent with the case agent’s request, suggesting that
supervisors were not carefully reading case agent claims. Even more tellingly, the IG expressed concern
that mid-level supervisors in FBI field offices were reluctant to turn down NSL requests for fear of
antagonizing their supervisor — the head of the field office. Most importantly, the IGalso found that the
FBI had used NSLs to circumvent the FISA Court’s refusal to authorize surveillance on First Amendment
grounds. While the IG didn’t say so, his report shows that self-policing doesn’t work. The only way to
truly address the problems posed by NSLs is to legislate traditional checks and balances, under which a
judge must approve governmental access to sensitive information, under a tighter standard than mere
relevance.
Solvency- Congress is key
Congress should place permanent restrictions on national security letters-it would
curb executive over-reach and create verifiable limits to surveillance
Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and
Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in
Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymakin
g%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,
It is debatable whether the U.S. government, overall, has struck a defensible balance between
enhancing security and protecting civil liberties. We have seen the implementation of expansive
surveillance programs, and we have reason to believe that other important surveillance operations remain classified and
undisclosed.39 It is even possible that the executive has withheld eavesdropping activities from Congress. But if recent accounts by
Intelligence members are accurate, we have also seen that agents follow multiple court procedures— first
by seeking judicial approval to seize records and then by obtaining separate, highly targeted approval to examine records. Most of the
very few members of Congress who have closely monitored the FISA process believe that it includes
reasonable safeguards. Still, the policymaking system has been overly secretive, dominated by the
executive, and slow to identify gaps in privacy protections. We suggest both changes to the Patriot Act
and, more important, changes to the institutional arrangements for making decisions on surveillance policy.
The most obvious and immediate need is to place permanent restrictions on national security letters .
Congress should pass legislation mandating that authorities discard all non-relevant information
captured with administrative subpoenas. The Obama administration has already implemented this policy through a Justice
Department directive. But until it becomes a statutory requirement, either the current or a succeeding
administration could easily cancel this safeguard and allow agents, as they did in the Bush
administration, to stockpile personal information of innocent Americans. Since this reform merely
codifies current practice, a permanent safeguard would protect privacy without creating new
investigative obstacles.
Congress is key- without oversight, surveillance will expand unilaterally by the
executive, and be subject to the whims of future presidents
Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and
Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in
Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymakin
g%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,
Dramatic intelligence
leaks by National Security Agency (NSA) whistle blower Edward Snowden have revealed vast new eavesdropping by
American authorities, at home and abroad. The leaks revealed blanket collection of domestic phone records,
warrantless capture of emails from U.S internet companies, and wiretaps on offices of friendly foreign
governments and the European Union, among other things. The revelations have triggered widespread fears of an
Orwellian Big-Brother security establishment. The Los Angeles Times declared that Presidents George W. Bush and Barack Obama have
constructed “a brave new world of pervasive surveillance.”1 The Washington Times asserted that the Fourth Amendment has been effectively
“stripped out” of the Constitution by the executive.2 And a Bloomberg editorial questioned whether Americans are now “living in a police
state.”3 The legal basis for much of the surveillance comes from the Patriot Act. This
law has attracted controversy since its
passage in 2001, and the current scandal has resurrected old concerns.4 By many accounts, Congress, in a moment of
panic after the September 11 attacks, cast aside longstanding constitutional limits on government investigators. Now the impression is that not
only the openly authoritarian Bush administration but also the supposedly civil libertarian Obama administration has aggressively implemented
a massively intrusive security regime. On the basis of our ongoing research on the Patriot Act, we show that the death of American privacy
rights has been greatly exaggerated. As a broad generalization, the Patriot Act has taken a balanced approach to the conflict between security
and privacy. Moreover, the Obama administration has apparently maintained effective and arguably sufficient limits on governmental intrusion.
Nevertheless, the
development of Patriot Act surveillance policy has not been a pretty picture. Congress has
ignored important information, overlooked major issues, and failed to learn from experience as it drafted, reviewed,
and amended the Act. On the one hand, as liberal critics fear, it has indeed tolerated massive violations of privacy
rights. On the other hand, however, it has also created pointless and costly barriers to investigations. Rather than keep working to get it right,
Congress eventually, by default, passed the buck to the executive branch, where presidential
administrations have developed policy solutions unilaterally and largely in secret, often expanding
surveillance powers. Whatever the current state of surveillance practice, it has not been decided
democratically, and it is not protected from secret, unilateral revision by future presidents.
We must have congressional oversight- allowing the executive to reform itself
empirically fails and ensures expansion of surveillance
Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and
Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in
Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymakin
g%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,
After audits belatedly revealed significant problems with both national security letters and business-records orders,
Congress made
little effort to improve the Patriot Act. Instead, it essentially looked away and allowed the executive to
rewrite the rules for seizing private information. Many legislators agreed that the FBI should be required to discard captured
materials not linked to terrorism suspects or foreign spies. In 2007 and again in 2009, Democrats offered multiple bills that added this
requirement to national security letters.24 However, even though Democrats had large majorities in Congress, they allowed these bills to die in
committee and instead deferred to the Obama administration. Eventually, Justice
Department officials drafted rules
requiring agents to delete all non-relevant information gathered with national security letters.25 It is
unclear why Congress passed the buck to the Obama administration. But by doing so, it gave the
executive the latitude to loosen or eliminate these rules at some later point. Congress also failed to revisit the
business-records provision. Initially, it appeared that lawmakers were willing to ignore security concerns and let six-month processing delays of
court orders hamper investigations. However, recent leaks about NSA programs indicate that Congress
had in effect simply turned
the entire issue over for secret policymaking by the executive branch. Recently, The Guardian reported that the
Bush administration in 2006, without public disclosure, had adopted a radical reinterpretation of the
business-records provision to authorize the daily collection of all domestic phone records.26 These data, or
“metadata” as they are termed, include the phone numbers of callers and receivers, the length and time of
calls, and sometimes the locations of phone participants. Originally, the businessrecords provision granted far more
limited authority. It allowed investigators to capture private materials on the basis of a court order in a specified terrorism case.27 The Bush
administration decided that such an order could be used to capture all communication logs from a specific phone carrier, such as Verizon or
AT&T. Authorities could now scoop up tens of millions of phone records with a single order issued by the FISA Court. The
Bush
administration first briefed members of Congress about the metadata program in 2006.28 Yet aside from two
senators, Mark Udall (D-CO) and Ron Wyden (D-OR), no one objected to the NSA dragnet or the drastic modifications
to the business-records provision.29 By letting Bush’s reinterpretation (subsequently maintained by
Obama) go unchallenged, Congress abdicated its legislative role and allowed the executive to develop
new surveillance law unilaterally.
Legislation needed to pass for use of National Security Letters
Clarke et al in 2013 (Richard, National Coordinator for Security, “Report and Recommendations of
The President’s Review Group on Intelligence and Communications Technologies”, The Review Group on
Intelligence and Communication Technologies,
https://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf)
Fifth, nondisclosure
orders, which are used with 97 percent of all NSLs, interfere with individual freedom
and with First Amendment rights. Revelations about US surveillance have threatened to undermine the
US Internet freedom agenda. Countries that were previously criticized by the United States for excessive
surveillance have accused the US of hypocrisy. The secrecy vs. transparency issue also has serious repercussions
today for the freedom of the press. It is the responsibility of our free press to expose abuse, overreaching, waste, undue influence, corruption, and bad judgment on the part of our elected officials. A
robust and fearless freedom of the press is essential to a flourishing self-governing society. It will not do
for the press to be fearful, intimidated, or cowed by government officials. 81We recommend that: (1)
legislation should be enacted providing that, in the use of National Security Letters, section 215 orders, pen register
and trap-and-trace orders, 702 orders, and similar orders directing individuals, businesses, or other institutions to turn
over information to the government, non-disclosure orders may be issued only upon a judicial finding
that there are reasonable grounds to believe that disclosure would significantly threaten 27 the national security, interfere with an ongoing
investigation, endanger the life or physical safety of any person, impair diplomatic relations, or put at risk some other similarly weighty government or foreign
intelligence interest; (2) nondisclosure
orders should remain in effect for no longer than 180 days without judicial
re-approval; and (3) nondisclosure orders should never be issued in a manner that prevents the
recipient of the order from seeking legal counsel in order to challenge the order’s legality.
Solvency- Specific and articulable facts
Judicial oversight and implementation of the ‘specific and articulable facts’ standard
are necessary to restore separation of powers and 4th amendment protections.
Kenneth R. Logsdon in 2008, J.D., University of Illinois College of Law, UNIVERSITY OF ILLINOIS
JOURNAL OF LAW, TECHNOLOGY & POLICY 2008 U. Ill. J.L. Tech. & Pol'y 409, lexis
The Executive Branch has also neglected the Fourth Amendment standard of individual suspicion when
it sought to use NSLs to request an entire database of information, rather than information on a
particular individual. n274 To restore the standard of individual suspicion, the Reform Act provides that an
NSL must contain "specific and articulable facts providing reason to [*436] believe that the records"
pertain to an individual. n275 That is, the individual must be a suspected agent of a foreign power or
"pertain to an individual who has been in contact with, or otherwise directly linked to, a suspected agent
of a foreign power." n276 The NSL provision, within the PA, states the government may acquire information about an entity that is
relevant to an ongoing investigation. n277 Further protections within the Reform Act relate to what the government can acquire. In particular,
the Reform Act allows the government the ability to acquire only: (A) The name of the customer or subscriber. (B) The address of the customer
or subscriber. (C) The length of the provision of service by such provider to the customer or subscriber (including start date) and the types of
service utilized by the customer or subscriber. (D) The telephone number or instrument number, or other subscriber number or identifier, of
the customer or subscriber, including any temporarily assigned network address. (E) The means and sources of payment for such service
(including any credit card or bank account number). (F) Information about any service or merchandise orders, including any shipping
information and vendor locations. (G) The name and contact information, if available, of any other wire or electronic communications service
providers facilitating the communications of the customer or subscriber. n278 Conversely, the PA requires an electronic communications
provider to "comply with a request for subscriber information and toll billing records information, or electronic communication transactional
records in its custody or possession." n279 The Reform
Act's explicit enumeration of what can be acquired avoids
inherent ambiguities found within the PA provision. To bolster this argument, the Reform Act explicitly states that NSLs
"issued pursuant to this section shall not require the production of local or long distance telephone records or electronic communications
transactional information not listed." n280 Accordingly, these modifications allow the government little room to apply an NSL to an entire
database and ideally prevent the government from acquiring broad categories of information. B. First Amendment Protections and Judicial
Overview Restored As previously discussed, PA II remedied several constitutional deficiencies found within the PA, but not all. Thus, three
constitutional deficiencies remain. First, the recipient of a nondisclosure request bears the [*437]
burden of proof that the government is unreasonably suppressing speech. n281 Second, NSLs "continue[] to
authorize nondisclosure orders that permanently restrict an NSL recipient from engaging in any
discussion related to its receipt of the NSL." n282 Third, "if, at the time of the petition [to review a nondisclosure
request], the Attorney General ... certifies that disclosure may endanger the national security of the United
States ... such certification shall be treated as conclusive." n283 The Reform Act provides solutions for all
three issues. Regarding the suppression of speech via a nondisclosure request, the government "may apply for an order
prohibiting disclosure that the Federal Bureau of Investigation has sought or obtained access to
information or records under this section for not more than 180 days after the order is issued." n284 A
further limitation provides that an "application for an order pursuant to this subsection must state specific and
articulable facts giving the applicant [government] reason to believe that disclosure ... sought ... will
result in" several specified risks. n285 Conveniently, these two provisions also provide safeguards that prevent
a nondisclosure request from becoming permanent. n286 Regarding judicial review, the Reform Act establishes
that "[a] person prohibited by law from disclosing information about the [NSL] may file ... a petition for
the court to set aside the nondisclosure requirement. Such petition ... may be based upon any failure of the nondisclosure
requirement to comply with this section or upon any constitutional or other legal right." n287 Additionally, only the court will have the
authority to set aside a nondisclosure requirement. n288 V. Conclusion James Madison's
assertion that great difficulties lie
in creating a government that controls the citizenry and itself is no less true today. In furtherance of that
goal, the main body of the Constitution enumerates three independent, but co-equal, branches of the
federal government. Further, the Bill of Rights of the United States Constitution provides several individual liberties the government
must respect in the implementation of the law. Among these liberties are an American citizen's right to speech and privacy, as per the First and
Fourth Amendments respectively. Nonetheless, as early as the Civil War, the
United States Government has continually
infringed upon those rights via electronic monitoring programs [*438] directed towards the general public.
Regrettably, this monitoring activity has accelerated since the tragic terrorist attacks against the
American public on 9/11. This acceleration has been instigated by the Executive Branch's insistence that such power is found within
either the AUMF or Article II of the United States Constitution. However, constitutional restrictions found within the First
Amendment, Fourth Amendment, and the doctrine of separation of powers refute such claims. Additionally,
Supreme Court precedent, the history of wartime surveillance in the United States, and principles of
statutory construction all fail to sustain the Executive Branch's extraordinary claim of authority. Accordingly,
drastic measures are necessary to control the current power and ability of the Executive Branch while
maintaining the tools necessary for the government to protect the American people from a future
terrorist attack. In so doing, it is recommended a modified application of the National Security Letters
Reform Act of 2007 be adopted by both houses of Congress. If this achievement is realized, it has the potential of
restoring First and Fourth Amendment protections, and the Judicial Branch's constitutional authority,
which have contributed to the greatness of the United States of America over the past 200 years.
National security letters should be issued through judicial finding
Clarke et al in 2013 (Richard, National Coordinator for Security, “Report and Recommendations of
The President’s Review Group on Intelligence and Communications Technologies”, The Review Group on
Intelligence and Communication Technologies,
https://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf)
First, as already noted, NSLs are issued by FBI officials rather than by a judge or by a prosecutor in the
context of a grand jury investigation. Moreover, in 2008, the Inspector General disclosed that the FBI
had “issued [NSLs] . . . after the FISA Court, citing First Amendment concerns, had twice declined to sign
Section 215 orders in the same investigation. Fourth, the oversight and minimization requirements
governing the use of NSLs are much less rigorous than those imposed in the use of section 215 orders.
For all the well-established reasons for requiring neutral and detached judges to decide when government
investigators may invade an individual’s privacy, there is a strong argument that NSLs should not be
issued by the FBI itself. Although administrative subpoenas are often issued by administrative agencies,
foreign intelligence investigations are especially likely to implicate highly sensitive and personal information
and to have potentially severe consequences for the individuals under investigation. 80 “We recommend that statutes
that authorize the issuance of National Security Letters should be amended to permit the issuance of National
Security Letters only upon a judicial finding that: (1) the government has reasonable grounds to believe
that the particular information sought is relevant to an authorized investigation intended to protect “against international
terrorism or clandestine intelligence activities” and (2) like a subpoena, the order is reasonable in focus, scope, and breadth.
NSL Reform Act Solvency
The National Security Letter Reform Act solves for checks and balances, while still
fighting terrorism
Center for Democracy and Technology’08 5/14/08, “Legislation Needed to Correct Widespread
Errors in Use of National Security Letters” https://cdt.org/insight/legislation-needed-to-correctwidespread-errors-in-use-of-national-security-letters/
Two weeks ago, CDT testified before the Senate Judiciary Committee about the need for reform of NSLs
and in support of legislation that would establish meaningful checks and balances on this governmental
power. The National Security Letter Reform Act, S. 2088, goes to the core issue. First, it would separate
information that can now be obtained with an NSL into sensitive and less sensitive categories. The less
sensitive information — including information identifying a customer by name and address — would
continue to be available to the government by means of an NSL. However, the bill would tighten the
standard for issuing NSLs even for less sensitive information, to prevent fishing expeditions. Other, more
sensitive information, such as telephone dialing information, the ‘To” and “From” lines on email, and the
details of one’s checking and credit card transactions would require a court order. The bill would also
impose a time limit on the “gag orders” that normally accompany NSLs and would require that any gag
be narrowly tailored. The House counterpart, the National Security Letters Reform Act (H.R. 3189),
would not require judicial approval, but it would impose a time limit and tighter requirements on
issuance of gag orders. The House bill would also return to the pre-PATRIOT “agent of a foreign power”
standard for issuing NSLs. It would create a civil damages remedy against “any person issuing or
obtaining the issuing” of an NSL contrary to law. Both bills would require the Attorney General to issue
strong minimization procedures to protect irrelevant information pertaining to Americans. CDT supports
the bills on the ground that they would provide the government the tools it needs to prevent terrorism
while helping to ensure that those tools are subjected to appropriate checks and balances
Solvency- Con Oversight
It’s recommended that NSLs need a judicial review, just like warrants, be enacted, but
the FBI has been against it thus far.
Froomkin in 2015 (Dan Froomkin, “FBI Flouts Obama Directive to Limit Gag Orders on National
Security Letters”, Firstlook.org, First Look Media, 02/19/15, Website, 6/27/15,
https://firstlook.org/theintercept/2015/02/19/fbi-flouts-obama-directive-limit-gag-orders-nationalsecurity-letters/)
A time limit on gags going forward also raises the question of whether past gag orders will now be withdrawn. “Obviously there
are at this
point literally hundreds of thousands of National Security Letters that are more than three years old,”
said Sanchez. Individual review is therefore unlikely, but there ought to be some recourse, he said. And the further back you go, “it
becomes increasingly implausible that a significant percentage of those are going to entail some dire
national security risk.” The NSL program has a troubled history. The absolute secrecy of the program and resulting
lack of accountability led to systemic abuse as documented by repeated inspector-general
investigations, including improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL
statutes, requests for information based on First Amendment protected activity, “after-the-fact” blanket
NSLs to “cover” illegal requests, and hundreds of NSLs for “community of interest” or “calling circle” information without
any determination that the telephone numbers were relevant to authorized national security
investigations. Obama’s own hand-selected “Review Group on Intelligence and Communications
Technologies” recommended in December 2013 that NSLs should only be issued after judicial review — just
like warrants — and that any gag should end within 180 days barring judicial re-approval. But FBI director
James Comey objected to the idea, calling NSLs “a very important tool that is essential to the work we do.” His argument
evidently prevailed with Obama. NSLs have managed to stay largely under the American public’s radar.
But, Crocker says, “pretty much every time I bring it up and give the thumbnail, people are shocked. Then you go into how many are
issued every year, and they go crazy.”
Legislation needed for NSLs- Widespread errors and violations
Center for Democracy and Technology ’08 5/14/08, “Legislation Needed to Correct Widespread
Errors in Use of National Security Letters” https://cdt.org/insight/legislation-needed-to-correctwidespread-errors-in-use-of-national-security-letters/
In reports issued in March 2007 and March 2008, the Department of Justice Inspector General (IG)
found widespread errors and violations in the FBI’s use of National Security Letters to obtain bank,
credit and communications records of U.S. citizens without judicial approval. CDT has called upon
Congress to establish checks and balances for such government access to sensitive information. National
Security Letters (NSLs) are simple form documents signed by officials of the FBI and other agencies
compelling disclosure of personal information without prior judicial authorization. NSLs can be served
on credit companies, telephone carriers, Internet Service Providers, and financial institutions. In October
2001, the PATRIOT Act dramatically weakened the standard for issuing NSLsby removing the
requirement that the records sought with the NSL pertain to an “agent of a foreign power” such as a
terrorist or a spy. The PATRIOT Act also eliminated the requirement that the government be able to
articulate the factual basis for its suspicion. Current law merely requires an FBI official to state – purely
for internal purposes — that the records are “relevant to” or “sought for” foreign counter intelligence or
terrorism purposes. Furthermore, an amendment adopted in 2003 dramatically expanded the
institutions subject to NSLs to include travel agencies, real estate agents, jewelers, the Postal Service,
insurance companies, casinos, car dealers and others. Among other things, the IG found that the FBI
issued NSLs when it had not even opened the investigation that is the only predicate for issuing an NSL.
It found that the FBI retains almost indefinitely the information it obtains with an NSL, even if the record
subject turns out to be innocent of any crime and of no intelligence interest. It also found that the
Attorney General had refused to adopt adequate “minimization” procedures designed to protect the
privacy of information about innocent Americans obtained with an NSL, even though an interagency
working group had recommended such procedures.
The Government need to put permanent regulations on NSLs, otherwise private data
will continue to be stored
Bendix et al in 2013 (William Bendix, Assistant Professor of Political Science at Keene State College; Paul
Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and Representation at
the University of British Columbia., “Institutional Failure in Surveillance Policymaking: Deliberating the Patriot Act”
Brookings.edu, Number 60; 6/13, 15 pgs., Website, 6/28/15,
http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymaking%20patri
ot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf)
The most obvious and immediate need is to place permanent restrictions on national security letters.
Congress should pass legislation mandating that authorities discard all non-relevant information
captured with administrative subpoenas. The Obama administration has already implemented this
policy through a Justice Department directive. But until it becomes a statutory requirement, either the
current or a succeeding administration could easily cancel this safeguard and allow agents, as they did in
the Bush administration, to stockpile personal information of innocent Americans. Since this reform
merely codifies current practice, a permanent safeguard would protect privacy without creating new
investigative obstacles.
Solvency- Pre 9/11 Standards
NSL Restrictions prior to 9/11 were effective
Sanchez ’14 Julian Sanchez, 1/9/14, “Can We Do Without National Security Letters?”, Just Security,
http://justsecurity.org/5351/national-security-letters/
If the NSL gag provisions can be weakened sufficiently to pass First Amendment muster, such a
compromise solution might represent the elusive “balance” between privacy interests and the need to
quickly evaluate leads in the initial phases of investigations. But the burden should be on the
intelligence community to establish that even more limited authority is genuinely necessary. The
absence of broad NSL powers prior to the Patriot Act does not appear to have been a major factor in the
failure to detect the 9/11 attacks, and the public has not been made aware of any cases where such easy
access to sensitive information has enabled the discovery of some plot or terror cell that would
otherwise have gone undetected. The claim that the FBI cannot investigate effectively without a tool
that has existed in its current form for roughly a decade should be seen as an extraordinary one—
demanding equally extraordinary evidence before we accept it.
A2 NEG
Terror
A2- Terror DA- Other issues trump
Even if surveillance is helpful for the war on terror, multiple other issues
prevent effective strategies
Holmes, 2009 (Holmes, Stephen. "The Brennan Center Jorde Symposium on Constitutional Law: In Case
of Emergency: Misunderstanding Tradeoffs in the War on Terror." California Law Review, Inc (2009): n.
pag. Web. 28 June 2015)
Even if the promoters of unfettered executive power were justified in associating legal rules with ineffectiveness during emergencies, their
single-minded obsession with circumventing America's allegedly "super-legalistic culture" n33 would need explaining. Let us stipulate, for the
sake of argument, that civil
liberties, due process, treaty obligations, and constitutional checks and balances
make national-security crises somewhat harder to manage. If so, they would still rank quite low among
the many factors that render the terrorist threat a serious one. None of them rivals in importance the
extraordinary vulnerabilities created by technological advances, especially the proliferation of compact
weapons of extraordinary destructiveness, in the context of globalized communication, transportation, and banking. None
of them compares to a shadowy, dispersed, and elusive enemy that cannot be effectively deterred. And
none of them is as constraining as the scarcity of linguistically and culturally knowledgeable personnel
and other vital national-security assets, including satellite coverage of battle zones, which the government must allocate in some
rational way in response to an obscure, evolving, multidimensional, and basically immeasurable threat. The curious belief that laws written for
normal times are especially important obstacles to defeating the terrorist enemy is based less on evidence and argument than on a hydraulic
reading of the liberty-security relationship. One particular implication of the hydraulic model probably explains the psychological appeal of a
metaphor that is patently inadequate descriptively: if the main thing preventing us from defeating the enemy is "too much law," then the
pathway to national security is easy to find; all we need to do is to discard [*318] the quaint legalisms that needlessly tie the executive's hands.
That this comforting inference is the fruit of wishful thinking is the least that might be said.
Cyber Terror
Cyber terrorism isn’t a threat
Libicki ‘13 [Martin C. Lib, Dr. Libicki has a PhD from the University of California, 8/14/13, Foreign Affairs, “Don’t Buy
Cyberhype”] Accessed Online: 7/01/15 https://www.foreignaffairs.com/articles/united-states/2013-0814/dont-buy-cyberhype
These days, most
of Washington seems to believe that a major cyberattack on U.S. critical infrastructure is
inevitable. In March, James Clapper, U.S. director of national intelligence, ranked cyberattacks as the greatest short-term threat to U.S.
national security. General Keith Alexander, the head of the U.S. Cyber Command, recently characterized “cyber exploitation” of U.S. corporate
computer systems as the “greatest transfer of wealth in world history.” And in January, a report by the Pentagon’s Defense Science Board
argued that cyber risks should be managed with improved defenses and deterrence, including “a nuclear response in the most extreme case.”
Although the risk of a debilitating cyberattack is real, the perception of that risk is far greater than it actually is.
No person has ever died from a cyberattack, and only one alleged cyberattack has ever crippled a piece
of critical infrastructure, causing a series of local power outages in Brazil. In fact, a major cyberattack of the kind intelligence
officials fear has not taken place in the 21 years since the Internet became accessible to the public. Thus, while a
cyberattack could theoretically disable infrastructure or endanger civilian lives, its effects would unlikely reach the scale U.S. officials have
warned of. The
immediate and direct damage from a major cyberattack on the United States could range
anywhere from zero to tens of billions of dollars, but the latter would require a broad outage of electric
power or something of comparable damage. Direct casualties would most likely be limited, and indirect
causalities would depend on a variety of factors such as whether the attack disabled emergency 911
dispatch services. Even in that case, there would have to be no alternative means of reaching first
responders for such an attack to cause casualties. The indirect effects might be greater if a cyberattack caused a large loss of
confidence, particularly in the banking system. Yet scrambled records would probably prove insufficient to incite a run on the banks.
Cyber-attacks reduces real world violence
Rid ‘13 [Thomas Rid, Thomas Rid is a professor in the Department of War Studies at King's College London, he also holds a PhD from
Humboldt University, 10/15/13, Foreign Affairs, “Cyberwar and Peace”] Accessed Online: 7/01/15
https://www.foreignaffairs.com/articles/2013-10-15/cyberwar-and-peace
In February 2011, then CIA Director Leon Panetta warned Congress that “the next Pearl Harbor could very well be a cyberattack.” And in late
2012, Mike McConnell, who had served as director of national intelligence under President George W. Bush, warned darkly that the United
the hype about everything “cyber”
has obscured three basic truths: cyberwar has never happened in the past, it is not occurring in the
present, and it is highly unlikely that it will disturb the future. Indeed, rather than heralding a new era of
violent conflict, so far the cyber-era has been defined by the opposite trend: a computer-enabled assault on political
violence. Cyberattacks diminish rather than accentuate political violence by making it easier for states,
groups, and individuals to engage in two kinds of aggression that do not rise to the level of war:
sabotage and espionage. Weaponized computer code and computer-based sabotage operations make it possible to
carry out highly targeted attacks on an adversary’s technical systems without directly and physically
harming human operators and managers. Computer-assisted attacks make it possible to steal data without placing
States could not “wait for the cyber equivalent of the collapse of the World Trade Centers.” Yet
operatives in dangerous envi
Constitution
We have a moral obligation to prevent violations of the constitution whenever
possible
Levinson 2k (Daryl Levinson, professor of law at University of Virginia, Spring 2000 UC Law Review)
Extending a majority rule analysis of optimal deterrence to constitutional torts requires some explanation, for we do not usually think of violations of constitutional rights in
Quite the opposite, constitutional rights are most commonly
conceived as deontological side-constraints that trump even utility-maximizing
government action. Alternatively, constitutional rights might be understood as serving
rule-utilitarian purposes. If the disutility to victims of constitutional violations often exceeds the social benefits derived from the rights-violating activity,
or if rights violations create long-term costs that outweigh short-term social benefits, then
terms of cost-benefit analysis and efficiency.
constitutional rights can be justified as tending to maximize global utility, even though this requires local
utility-decreasing steps. Both the deontological and rule-utilitarian descriptions imply that
the optimal level of constitutional violations is zero; that is, society would be better off,
by whatever measure, if constitutional rights were never violated.
MISC
National Security Letters have violated of the 1st amendment-internet giants feel
threatened
Mintz in 2014 (Howard Mintz, Staff Writer, “FBI surveillance letters weighed in San Francisco appeals
court”, 10/05/14, http://www.mercurynews.com/crime-courts/ci_26669760/fbi-surveillance-lettersweighed-san-francisco-appeals-court)
Long before Edward Snowden blew the lid off the government's widespread Internet snooping, an
unknown Bay Area
telecommunications company was striking back at an equally secretive but far more common tool in the
FBI's shadowy world of surveillance. This telecom had been the target in 2011 of a "national security letter," a
supersecret demand from the FBI for customer information in the name of fighting terrorism or foreign
spies on U.S. turf. Thousands of such letters are sent each year, allowing the FBI to bypass the courts to mine for investigative gold
without a warrant or even a public mechanism for recipients to object. But on Wednesday, a federal appeals court will consider
whether these letters, given expanded power and use under the post-9/11 Patriot Act, come at too high a cost -- an
unconstitutional gag on free speech. With Internet giants such as Google, Yahoo, Microsoft and
Facebook weighing in, the 9th U.S. Circuit Court of Appeals is reviewing the issue amid a broader legal
and policy debate over the government's national security investigative powers. The companies, which say
the letters infringe on free speech rights, have likewise been locking horns with the government over the
scope of the National Security Agency's surveillance programs allowing bulk collection of Internet data.
Advertisement San Francisco U.S. District Judge Susan Illston last year found that the letters, known as NSLs, violate
the First Amendment because they forbid the recipients from saying anything about them, including
publicly disclosing the mere fact they have received one. The telecom that has challenged the legality of the letters cannot
identify itself in the case because of the threat of federal prison, nor can its lawyers from the Electronic Frontier Foundation, the civil liberties
group handling the legal battle. Critics
of the letters say they are another example of the government going too
far with surveillance tools at the expense of the individual right to speak out against the government.
"The gag order says you not only have to turn over the information, but you can't complain about it, " said
UCLA law professor Eugene Volokh, who has filed a friend-of-the-court brief on behalf of the Internet Archive, which itself has received such
letters. Although the U.S. Justice Department considers the letters and their accompanying demand for secrecy vital to investigations,
Illston
said they are rife "with significant constitutional infirmities." The government has asked the appeals court
to overturn her ruling, which would bar the FBI from using the letters unless the Obama administration persuades Congress to modify
the Patriot Act to address the free-speech concerns. The letters are considered a linchpin of the federal domestic
surveillance program, even more so than the NSA's data collection, which is aimed primarily at overseas targets.
Between 2003 and 2011, the number of such letters issued by the FBI ranged between 16,511 and
56,507 a year, according to Justice Department figures. Government lawyers defend the constitutionality of the letters and
insist the gag provisions protect investigations. "Public disclosure of actions by the government to investigate terrorism and espionage may
allow individuals and groups ... to take steps to evade detection, destroy evidence, mislead investigators, conceal future terrorist and foreign
intelligence activities and speed plans for an attack," the Justice Department told the 9th Circuit. A
host of organizations have lined
up against the government, ranging from media groups to Silicon Valley companies such as Google and
Facebook. Those tech companies argue that their free-speech rights are violated when they are
prevented from revealing how much the government is relying on the letters to pry information from
them about customers. Lawyers for the telecom company at the center of the 9th Circuit case also point to a series of Inspector
General reports between 2007 and 2010 that found abuses in the FBI's reliance on the national security
letters and suggested Congress might need to create further checks on them, such as more court oversight. Before that happens, however,
the 9th Circuit and perhaps the U.S. Supreme Court will have to decide this latest clash over government surveillance powers. "As
a
practical matter, this affects a lot of people," said Cindy Cohn, the Electronic Frontier Foundation's legal director. "It's
domestic. These are the tools they use against Americans."
National security letters are unconstitutional– mainly because they undermine
separation of powers
EFF 2013(Electronic Frontier Foundation ,EFF is leading the fight against the NSA's illegal mass
surveillance program.,3-15-2013, "National Security Letters Are Unconstitutional, Federal Judge Rules,"
Electronic Frontier Foundation, https://www.eff.org/press/releases/national-security-letters-areunconstitutional-federal-judge-rules)
The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue
administrative letters -- on its own authority and without court approval -- to telecommunications
companies demanding information about their customers. The controversial provisions also permit the
FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that
a demand was made, which prevents providers from notifying either their customers or the public. The
limited judicial review provisions essentially write the courts out of the process. In today's ruling, the
court held that the gag order provisions of the statute violate the First Amendment and that the review
procedures violate separation of powers. Because those provisions were not separable from the rest of
the statute, the court declared the entire statute unconstitutional. In addressing the concerns of the
service provider, the court noted: "Petitioner was adamant about its desire to speak publicly about the
fact that it received the NSL at issue to further inform the ongoing public debate."
NSLs violate fourth amendment, FBI abuses them, and their reach could go farther
than we know- Judge Ruling and ACLU report
Harper 14 Lauren Harper, 1/10/14, “Powerful National Security Letters go largely Unchecked”,
https://nsarchive.wordpress.com/2014/01/10/powerful-national-security-letters-continue-to-golargely-unchecked/
The intelligence review group President Obama created to address surveillance concerns recently submitted recommendations for improving
the federal government’s surveillance programs. FBI director James B. Comey spoke out against one in particular, which proposed requiring
judicial approval for issuing national security letters (NSL). The document highlighted in today’s posting, an unclassified 2008 Department of
Justice Inspector on the FBI’s use of NSLs, helps contextualize both the FBI’s concerns altering one of its key investigative tools, and the serious
civil rights concerns that tool elicits.
Insufficient judicial oversight has been a long-standing concern with NSLs,
which demand business records from a wide array of organizations for national security investigations,
and its unsurprising to see them addressed by Obama’s intelligence review panel. The 2004 case Doe v. Ashcroft challenged
the constitutionality of the letters, specifically their non-disclosure provisions, and the resulting ruling
issued by Judge Victor Marrero found they NSLs violate the Fourth Amendment. This led to revisions of the USA
Patriot Act, allowing for greater judicial review and clarifications to the non-disclosure clauses. However, there are still no
requirements to seek approval or judicial review when sending an NSL, and the non-disclosure
provisions prevent the full extent of the NSL program from becoming known. A strong argument can be
made that even though the Patriot Act allows NSLs containing gag orders to continue being issued
without judicial approval, they are nevertheless unconstitutional because they violate the Fourth
Amendment’s prohibition on “unreasonable searches” of citizen’s “persons, houses, papers, and effects”
without a warrant issued only “upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” There is also the chance
that because the NSLs are secret law, their reach goes well beyond what we now know. Jude Marrero’s ruling
was one of the impetuses for the 2008 IG report, which was the second in a series addressing NSL-related concerns. The report underscores the
importance of NSL requests to the FBI, by far the largest employer of the letters, and their reluctance to change current practices. The report
notes that the FBI issued a total 192,499 NSL requests between 2003 and 2006 alone. The
reported “that the agency so
thoroughly abused the program that it truly had no idea how many letters had been issued. An audit of
the program also found that 60% of the audited files had no supporting documentation and that 22%
contained at least one unreported legal violation,” making the lack of oversight of the letters’ issuance
and the metadata they collect all the more alarming.
ACLU & Doe v Ashcroft shows us that National Security Letters are unconstitutionalthey go against the 1st amendment and the right to internet anonymity
Wentworth in 2004 (Donna Wentworth, Editor, “ACLU & Doe v. Ashcroft - the Good
Bits”,10/052004,https://www.eff.org/deeplinks/2004/10/aclu-doe-v-ashcroft-good-bits, 6/29/2015)
Last week brought an extraordinary victory for privacy and civil liberties: a federal district court struck
down a key power under the Electronic Communications Privacy Act (ECPA) and the USA PATRIOT Act.
Specifically, US District Court Judge Victor Marrero ruled that "National Security Letters" (NSLs) violate
the Constitution. The letters, issued directly by the Department of Justice (DoJ) without any court
oversight, can be used to demand sensitive communications records about citizens even if they are not
suspected of any crime. When an Internet Service Provider (ISP) receives an NSL, it is forbidden from
ever revealing its existence to anyone. Judge Marrero barred the DoJ from issuing any further NSLs and
found the gag provision to be an illegal prior restraint on protected speech. But that's not all. By
recognizing that the First Amendment's rights to anonymity and association could be violated by NSLs
seeking electronic communications transaction records from ISPs, the court significantly clarified privacy
protections for Internet users. Judge Marrero understood that records of "the anonymous message
boards to which a person logs on or posts, the electronic newsletters to which he subscribes, and the
advocacy websites he visits" are inextricably intertwined with protected speech. This means that judicial
review is required before the government can impinge upon not only the right to post anonymously, but
the right to read anonymously. Together with the court's holding that a "person who signs onto an
anonymous forum under a pseudonym...is surely entitled to a reasonable expectation of privacy," the
decision helps strengthen fundamental civil liberties in the Internet context, with implications far
beyond the administrative subpoenas at issue in the case.