Religious Surveillance Neg Wave 2
Produced by:
Celia Buckman
Fiona Chen
Samyak Jain
Alana Levin
Jeffrey Liu
Will Matheson
Ben Mnushkin
Ben Rosenthal
Aly Shakoor
Advantage Answers
1nc Profiling / Discrimination Advantages
Current Scholarship exaggerates the claims of civil liberties abuses.
Deflem & McDonough, 15 --- *Professor of Sociology at the University of South Carolina, AND **
Instructor, Social Sciences at Allen University (February 2015, Mathieu & Shannon, Society, “The Fear of
Counterterrorism: Surveillance and Civil Liberties Since 9/11,” Volume 52, Issue 1, SpringerLink database,
WM)
The terrorist attacks of September 11, 2001 have dramatically heightened concerns over national security and
brought about, in the United States perhaps more than anywhere else, a sharp rise in anti-terrorism laws and
related initiatives to build and improve counterterrorism efforts. In addition to a sharp increase in the budget and
resources assigned to counterterrorism investigations and intelligence-gathering agencies, US Congress formally
approved the expansion of power of the executive branch, including the authorization of new surveillance
techniques and procedures for law enforcement agencies in terrorist-related investigations (Deflem 2010). The
most prominent and commonly scrutinized source of the formal expansion of investigative powers in the United States
since 9/11 is the 2001 USA PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism”), which was swiftly passed with little congressional debate in October of
2001. Civil liberties organizations as well as a number of academic scholars have routinely criticized post-9/11
counterterrorism initiatives as unconstitutional and major threats to civil liberties and privacy. Harmonizing
with the claims from civil liberties groups are contributions in the popular and scholarly discourse on surveillance and
counterterrorism that lament the purported negative impact of governmental policies and related surveillance and
intelligence activities on personal rights and liberties. The revelations by former security contractor Edward Snowden in
June 2013 concerning alleged spying practices by the National Security Agency (NSA) greatly reinvigorated these
debates. We investigate here if there is any counter-evidence to the alarmist statements that are often made in the
popular and scholarly discourse on civil liberties and surveillance. Against the background of academic scholarship on
surveillance and criticisms from civil liberty and privacy groups, we rely on archival sources, government documents, and
media reports to examine a variety of claims made concerning civil liberties violations by security agencies. Our
analysis reveals that at least a sizeable number of claims raised against counterterrorism practices
are without objective foundation in terms of any actual violations. As an explanation for this
markeddiscrepancy, we suggest that, as various survey data show, there is a relatively distinct, albeit it uneven and not
entirely stable, culture of privacy and civil liberties in contemporary American society which independently
contributes to a fear of counterterrorism, rather than of terrorism. These specific cultural sensitivities bring
about an increase in the amount of civil rights allegations independent of actual violations thereof. Surveillance
Studies Meets Civil Liberties Advocacy In recent years, especially since the events of 9/11, a new social-science field of
surveillance studies has been developing (Ball et al. 2012; Contemporary Sociology 2007; Lyon 2007). Briefly reviewing
this new burgeoning area, it can be observed that most contributions exhibit a critical and, implicitly or explicitly,
fearful view of surveillance as a powerful and deeply invasive social force. Such worrying observations are
particularly made in the context of the development of technologically advanced means of information
gathering that can threaten privacy and civil liberties. Surveillance expert David Lyon (2003, 2007), for example,
laments the inherent consequences of the new surveillance methods as a powerful tool for profiling that
would produce and reinforce long-term social inequalities. Surveillance scholars have suggested such novel
concepts as a ‘surveillant assemblage’ to denote the convergence of once separate and discrete surveillance
systems in order to mark nothing short of a gradual destruction of privacy (Haggerty and Ericson 2000).
Surveillance technologies are argued to turn into instruments of totalitarian control that create or exacerbate
inequality and lack accountability (Haggerty and Ericson 2006). Some differences in perspective on the impact of
surveillance are to be noted among social-science scholars (Deflem 2008; Dunér 2005), but the research community
has nonetheless not sufficiently acknowledged whatever gains and positive contributions have been made in
providing security.
No FBI racial profiling --- it doesn’t target individuals based on race or ethnicity and
investigates only to protect the communities it serves
Arab American News, 11
(10/29/11, Arab American News, “ACLU says documents obtained from FBI show unconstitutional racial
profiling”, ProQuest)//Yak
In response to the ACLU release, Detroit Special Agent in Charge of the FBI Andy Arena said that
accusations of profiling were not accurate.
"I would not describe it as racial profiling, it is geo-spacial mapping and domain awareness, it's about
knowing the area that you serve," he said.
"All it basically is looking at the makeup of communities across the board, not any specific person, and
learning about who are potential victims and targets but not targeting any specific individual or group."
His office also said that it is mainly responding to profiling allegations with a statement on the FBI's website.
The statement said: "FBI joins the ACLU in opposing racial or ethnic discrimination. The AG Guidelines and
the FBI's Domestic Investigations and Operations Guide (DIOG) clearly prohibit the predication of
investigative activity solely on the exercise of First Amendment rights, including freedom of religion,
or on race or ethnicity. The FBI does not investigate individuals, groups, or communities based on ethnicity
or race.
"Certain terrorist and criminal groups target particular ethnic and geographic communities for victimization
and/or recruitment purposes. This reality must be taken into account when determining if there are threats to
the United States.
"These efforts are intended to address specific threats, not particular communities."
The FBI has an outstanding civil rights record
Deflem & McDonough, 15 --- *Professor of Sociology at the University of South Carolina, AND **
Instructor, Social Sciences at Allen University (February 2015, Mathieu & Shannon, Society, “The Fear of
Counterterrorism: Surveillance and Civil Liberties Since 9/11,” Volume 52, Issue 1, SpringerLink database,
WM)
Civil-Liberties Allegations Against the FBI On the basis of news reports retrieved via Lexis-Nexis, we investigated
civil liberties violations against the FBI in the period between January 1, 2002 and December 31, 2013. Though
not based on a complete universe of cases or a random sample thereof, evidence gathered from these sources suggests
that the number of civil rights violations by the FBI has been reported to be much lower than one would
expect considering the potential problems voiced in the discourse on post-9/11 surveillance. During the
examined period, some 20 cases involving allegations against the FBI received media attention. Some of the cases
involves multiple individuals or groups claiming civil liberties violations. Only five cases involved a substantiated
violation, two of which concerned certain provisions of the Patriot Act before they were excluded as
unconstitutional upon reauthorization of the Act. Other claims are either still under investigation or were proved to
be unsubstantiated. Among the unsubstantiated claims are the cases of Mohamad K. Elzahabi and the FBI surveillance
of protesters before the 2004 political conventions. In 2004, the FBI questioned Mohamad K. Elzahabi, a Lebanese
national put on an FBI watch list after 9/11. Elzahabi claimed that the FBI violated his rights when they questioned him
for 17 days before his arrest in 2004 (Louwagie 2006). Elzahabi made statements during questioning that he taught
sniping in Afghanistan and associated with Al Qaeda leaders, which his lawyers attempted to suppress, claiming coercion
and involuntary detention. However, in June 2007, a judge denied the request, concluding that FBI agents explicitly told
Elzahabi participation in the questioning was voluntary (Browning 2007).
--- XT: Impact Exaggerated
Actual civil rights violations are small compared to ALLEGED threat to liberties
Deflem & McDonough, 15 --- *Professor of Sociology at the University of South Carolina, AND **
Instructor, Social Sciences at Allen University (February 2015, Mathieu & Shannon, Society, “The Fear of
Counterterrorism: Surveillance and Civil Liberties Since 9/11,” Volume 52, Issue 1, SpringerLink database,
WM)
Surveillance and counterterrorism activities are by definition oftentimes secretive and raise sensitive matters
on rights and justice. Such issues are particularly important in a democratic society where violations of civil liberties by
intelligence and other security agencies, even in an area as pressing as terrorism, cannot be condoned. Yet, a
democratically committed society will also be more likely to produce a cultural climate in which concerns
surrounding privacy and civil liberties can lead to claims over rights-related violations that cannot be
substantiated on the basis of actual incidents of such violations. Our findings suggest that the amount of civil
rights violations in the post-9/11 context is relatively small when compared to the alleged threat to civil
liberties suggested in the surveillance discourse among academicians and advocates. In view of our analysis, it is
important for social-science scholars to understand the social realities involved with surveillance and counterterrorism as
involving a subjective dimension related to legitimacy—especially the lack thereof— that co-exists with objective
conditions that are rooted in technology and bureaucratic development. For whereas government and private measures
against terrorism and other security concerns have certain measurable consequences, it is also to be noted that they are
evaluated by a citizenry that is more or less concerned about such issues irrespective of actual violations. The need is
thereby affirmed for sociologists to examine the social conditions affecting security measures regardless of stated
motives. Since the classic contributions of Emile Durkheim on the role of law and punishment (Durkheim 1893), it can
no longer suffice to view counterterrorism (and other forms of social control) as a mere dependent variable related to
terrorism (and other crimes). Instead, as our analysis shows, a more useful framework examines the entire range of
factors shaping surveillance activities, ranging from situational factors to deep-rooted cultural traditions. From the
viewpoint of civil liberties, our study should not be misinterpreted to assume that we would suggest that the
contemporary practices of surveillance and counterterrorism in post-9/11 America (and in other nations across the
world) would not have the potential and actuality to violate civil rights. Our analysis does not imply that the threats that
surveillance programs and practices may pose to civil liberties should be dismissed, a priori or otherwise. Instead, we
suggest that a cultural fear of surveillance and counterterrorism may be so pervasive and deep-rooted that it
leads to overstating the amount of civil liberties violations. The culturally embedded assumption that
surveillance is powerful and harmful to rights and liberties, which is also sustained by claims-making by
surveillance scholars and activists alike, may drive civil liberties allegations independent from actual violations
thereof. In the interest of both social-science analysis as well as civil liberties protection, surveillance scholars and
civil liberties advocates would do well to not overestimate and speculate, without evidence, on the powers of
surveillance and counterterrorism outside of the social context in which relevant practices as well as their
study and debate take place.
The rise of civil liberty groups has created an unwarranted culture of distrust towards
counter terrorism efforts
Deflem & McDonough, 15 --- *Professor of Sociology at the University of South Carolina, AND **
Instructor, Social Sciences at Allen University (February 2015, Mathieu & Shannon, Society, “The Fear of
Counterterrorism: Surveillance and Civil Liberties Since 9/11,” Volume 52, Issue 1, SpringerLink database,
WM)
Besides surveillance scholars, major civil liberties organizations have greatly criticized the post-9/11 expansion
of the surveillance powers of government and intelligence agencies by means of aggressive public campaigns, critical
reports, and lawsuits. The American Civil Liberties Union (ACLU) is one of the most active and prolific of such groups
oriented at protecting the rights granted to US citizens by the constitution. The ACLU has instituted a so-called ‘Safe
and Free’ campaign to address a number of issues related to surveillance and civil liberties on the basis of the notion that
“there has never been a more urgent need to preserve fundamental privacy protections and our system of checks and
balances than the need we face today, as illegal government spying, provisions of the Patriot Act and governmentsponsored torture programs transcend the bounds of law and our most treasured values in the name of national
security” (ACLU website). The ACLU claims that post-9/11 systems of mass surveillance threaten civil liberties
more than that they can effectively combat terrorism. Yet, ACLU campaign tactics may aggravate the fear of
surveillance by exaggerating the actual threat to civil liberties. For example, an analysis of an ACLU ‘Safe and Free’
commercial regarding the FBI’s authority to perform ‘sneak-and-peek’ searches shows that the ACLU overstates the
extent of the threat to civil liberties imposed by counterterrorism laws (Factcheck.org 2004). The ACLU’s ad
claims that the Patriot Act authorizes government agencies to search homes without notification, leaving out
the condition of obtaining a warrant from a judge on the basis of regular probable-cause criteria. Campaigns
similar to those launched by the ACLU have also been established by other civil liberties organizations. The
Electronic Frontier Foundation (EFF), for example, set up the FLAG (FOIA Litigation for Accountable
Government) Project, which “aims to expose the government’s expanding use of new technologies that invade
Americans’ privacy… [and] to protect individual liberties” (EFF website). The project utilizes Freedom of
Information Act (FOIA) requests to reduce government secrecy and thwart potential abuses of power in regard to
government surveillance. Likewise, the Electronic Privacy Information Center (EPIC) works to “focus public
attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional
values” (EPIC website). EPIC has set up a ‘Watching the Watchers’ program to assess the impact of public surveillance
programs proposed following 9/11 (ObservingSurveillance.org). An EPIC report reviewing a budget plan of the
Department of Justice criticizes the proposed surveillance programs for their inadequate public scrutiny and possible
violations of civil rights under the telling title of “Paying for Big Brother” (EPIC 2002). Using such strong imagery
and provocative language, civil liberties groups may effectively contribute to create a fear of surveillance and
counterterrorism irrespective of actual practices concerning rights violations.
Amount of actual civil liberties abuses by agencies ON THE WHOLE is still
incredibly miniscule --- proves their examples are just isolated cases
Deflem & McDonough, 15 --- *Professor of Sociology at the University of South Carolina, AND **
Instructor, Social Sciences at Allen University (February 2015, Mathieu & Shannon, Society, “The Fear of
Counterterrorism: Surveillance and Civil Liberties Since 9/11,” Volume 52, Issue 1, SpringerLink database,
WM)
An analysis of the findings of the OIG reports pertaining to investigations between October of 2001 and June of 2013
reveals that the number of civil rights claims and allegations far exceeds the number of violations. Table 1 presents the
distribution of all claims versus credible claims in each investigative half-year period. Overall, in the period between
2001 and 2013, the Office of the Inspector General received 21,248 claims of civil rights or civil liberties
violations. Of these claims, only 3,421 fell within DOJ’s jurisdiction or warranted further review. Of the DOJ
claims warranting further review, only 265 were deemed credible enough to open an OIG investigation. Thus,
only 7.7 % of the claims within DOJ jurisdiction warranting further review and 1.2 % of the total claims received
were identified as potential civil liberties violations, showing that the number of civil liberties violation claims
made against DOJ far exceeds the number of credible claims.
--- NYPD Surveillance Program Ended
DeBlasio is ending the NYPD’s intrusive Muslim surveillance measures due to
political pressure
Paybarah, 14 --- senior writer at Capital New York. He’s covered politics in New York for The New York
Observer, WNYC Public Radio, New York Sun and New York Press.
(4/16/14, “Was it Justice or Politics that Killled the NYPD Muslim Spy Unit?”,
http://www.thedailybeast.com/articles/2014/04/16/was-it-justice-or-politics-that-ended-the-policeprogram-to-spy-on-new-york-s-muslim-community.html)//Yak
New York is the country’s largest city and one of its most progressive but since 2001 it’s also been at the
forefront of some of the most aggressive and controversial anti-terrorism tactics. Yesterday, city officials
announced the end of one of those major tactics: targeted spying on Muslim communities.
But there’s some strange timing going on here. For one thing, New York’s liberal Mayor Bill de Blasio was in
favor of the surveillance program before he was against it. Then there's the fact that just days after the New
York Times reported that Attorney General Eric Holder will sign off on new guidelines for the FBI that
would allow it to continue using nationality to map and surveil neighborhoods, the NYPD program that had
been assembling detailed files on Muslim neighborhoods is being publicly dismantled.
More on that in a bit, first some background on the program itself.
Officially, the spying was done under the auspices of the NYPD’s “Zone Assessment Unit.” Muslims in New
York City saw their mosques, restaurants and, in some cases, student associations infiltrated by undercover
NYPD officials and confidential informants who took notes on overheard conversations, television programs
that were playing, nationality of store owners and customers, and anything else that NYPD officials thought
gave them a flavor for what was happening in the city’s cloistered immigrant communities that catered to
Muslims from the Middle East, North Africa and Eastern Europe.
The Associated Press first reported on NYPD spying in 2011, in a series of articles that later were awarded
the Pulitzer Prize. The series culminated in a 2013 book by those reporters, Matt Apuzzo and Adam
Goldman, arguing that the labor-intensive and intrusive tactics were also not effective.
Justin Elliott at Pro Publica also questioned the NYPD’s claims that its anti-terrorism tactics helped ward off
more than a dozen terrorist plots, as was claimed by police officials. Setting aside that debate, the politics of
ending what critics called “muslim spying” weren’t as easy or palatable in New York City as observers might
think. As Michael Powell noted in an unrelated television interview, New York City is progressive … as long
as everything is functioning.
But the criticisms made of the spying program weren’t heeded by the Justice Department when it reviewed
racial profiling rules for a similar FBI program that used ethnic mapping to focus intelligence and recruit
informants. According to the Daily News, the Justice Department’s ruling, “should once and for all settle the
debate about whether what’s been wrongly labeled “Muslim surveillance” should continue under Bill
Bratton.” But the opposite has happened. Shortly after Holder's decision on the FBI, Bratton has
discontinued a high profile unit in the NYPD's own surveillance program.
So, what gives? As usual in New York, this is about politics.
Bill de Blasio’s meteoric rise from fourth to first place in last year’s mayoral race was predicated on a few
simple facts: addressing New York’s out of control income inequality (who doesn’t want someone richer than
them to pay a little more?) and, electing someone as far away as possible from Mayor Michael Bloomberg,
who earned a lot of resentment from New Yorkers after extending term limits to stay in office.
De Blasio took office with a progressive mandate and promises to reform New York law enforcement
policies and make them more responsive to minority concerns. But the public safety issue de Blasio focused
on wasn’t Muslim spying. It was the controversial stop-and-frisk tactic. The reason was simple, stop-and-frisk
was the high profile cause that grabbed headlines. Regular reporting on frisking was required under city law;
professors had reams of data to study and analyze; and local lawmakers from majority-minority districts had
countless constituents who were the victims of this policy. And in a Democratic primary, those constituents
would make up a decisive number of votes.
The targets of Muslim spying had much less ammunition at their disposal. There was hardly any data to
analyze — the surveillance programs were, by design, kept from public disclosure. Most information gleaned
about the program came from leaks, primarily to Apuzzo and Goldman. Politically, Muslims were a fraction
of the voting bloc in New York, and had no real recognizable spokesperson. The only Muslim elected official
in New York City — Councilman Robert Jackson of Harlem — questioned the program, but hardly made a
sustained effort to be seen as the face of its opposition.
De Blasio himself initially backed the NYPD as the first wave of Associated Press stories were published. In
April 2013, de Blasio told me “I spent a lot of time with Commissioner Kelly reviewing the situation. I came
to the conclusion that the NYPD had handled it in a legal and appropriate manner with the right checks and
balances.” He also said he wanted to “constantly monitor” them to make sure “it was done right.”
By October, after more AP stories, de Blasio was standing in front of “Muslims for de Blasio,” and publicly
distinguishing between his policies and Ray Kelly’s, telling reporters that spying would have to be based on
“specific leads” and not done “on a wholesale basis.”
When de Blasio appointed Bill Bratton as the city’s police commissioner, he might as well have announced
the end of Kellys’ surveillance program too.
After the AP stories first appeared in 2011, Kelly defended the program as necessary and accused the outlet
of inaccuracies and biases and, later, ginning up stories to promote their forthcoming book. No corrections
were ever run. The series won a Pulitzer Prize. (And, in an ironic twist, the Rupert Murdoch-owned TV
operation bought the rights to the book, despite the vicious attacks it got on the editorial pages of a Rupert
Murdoch-owned paper.)
Years earlier, Bratton had his own short-lived Muslim controversy but he handled it very differently than
Kelly did. To observers, he began to look like the opposite of Ray Kelly.
In 2007, as police commissioner in Los Angeles, Bratton sent Michael Downing, the LAPD’s commanding
officer for Counterterrorism and Special Operations, to testify at a Senate Homeland Security Committee
hearing. Downing said, “We probably have over 700,000 American Muslims throughout the Los Angeles
region but we don’t really know where they live, or what they do or how they’re structured” and “We have
great outreach and we’ve got great relationships, but the idea here is to actually map out, to find out where
the Pakistani Muslims live, the Somalians, the Chechnyans, the Jordanians.”
Sixteen days later, Bratton held a press conference to announce there would be no mapping.
The FBI and NYPD are revising their surveillance policies and moving away from
informal informants
Apuzzo and Goldstein, 14- Matt Apuzzo is a Pulitzer Prize-winning American journalist. Apuzzo was
born in Cumberland, Maine and attended Colby College.
(4/15/14, “New York Drops Unit that Spied on Muslims”,
http://www.nytimes.com/2014/04/16/nyregion/police-unit-that-spied-on-muslims-isdisbanded.html)//Yak
The New York Police Department has abandoned a secretive program that dispatched plainclothes detectives
into Muslim neighborhoods to eavesdrop on conversations and built detailed files on where people ate,
prayed and shopped, the department said.
The decision by the nation’s largest police force to shutter the controversial surveillance program represents
the first sign that William J. Bratton, the department’s new commissioner, is backing away from some of the
post-9/11 intelligence-gathering practices of his predecessor. The Police Department’s tactics, which are the
subject of two federal lawsuits, drew criticism from civil rights groups and a senior official with the Federal
Bureau of Investigation who said they harmed national security by sowing mistrust for law enforcement in
Muslim communities.
To many Muslims, the squad, known as the Demographics Unit, was a sign that the police viewed their every
action with suspicion. The police mapped communities inside and outside the city, logging where customers
in traditional Islamic clothes ate meals and documenting their lunch-counter conversations.
“The Demographics Unit created psychological warfare in our community,” said Linda Sarsour, of the Arab
American Association of New York. “Those documents, they showed where we live. That’s the cafe where I
eat. That’s where I pray. That’s where I buy my groceries. They were able to see their entire lives on those
maps. And it completely messed with the psyche of the community.”
Ms. Sarsour was one of several advocates who met last Wednesday with Mr. Bratton and some of his senior
staff members at Police Headquarters. She and others in attendance said the department’s new intelligence
chief, John Miller, told them that the police did not need to work covertly to find out where Muslims gather
and indicated the department was shutting the unit down.
The Demographics Unit, which was renamed the Zone Assessment Unit in recent years, has been largely
inactive since Mr. Bratton took over in January, the department’s chief spokesman, Stephen Davis, said. The
unit’s detectives were recently reassigned, he said.
“Understanding certain local demographics can be a useful factor when assessing the threat information that
comes into New York City virtually on a daily basis,” Mr. Davis said. “In the future, we will gather that
information, if necessary, through direct contact between the police precincts and the representatives of the
communities they serve.”
The department’s change in approach comes as the federal government reconsiders and re-evaluates some of
its own post-9/11 policies. Although the police department’s surveillance program was far smaller in scope
than, say, the bulk data collection by the National Security Agency, a similar recalibration seems to be
unfolding.
The Demographics Unit was the brainchild of the Central Intelligence Agency officer Lawrence Sanchez,
who helped establish it in 2003 while working at the Police Department and while he was still on the spy
agency’s payroll.
The goal was to identify the mundane locations where a would-be terrorist could blend into society.
Plainclothes detectives looked for “hot spots” of radicalization that might give the police an early warning
about terrorist plots. The squad, which typically consisted of about a dozen members, focused on 28
“ancestries of interest.”
Detectives were told to chat up the employees at Muslim-owned businesses and “gauge sentiment” about
America and foreign policy. Through maps and photographs, the police noted where Albanian men played
chess in the afternoon, where Egyptians watched soccer and where South Asians played cricket.
After years of collecting information, however, the police acknowledged that it never generated a lead. Since
The Associated Press published documents describing the program in 2011, Muslims and civil rights groups
have called for its closing.
Mr. Bratton has said that he intends to try to heal rifts between the Police Department and minority
communities that have felt alienated as a result of policies pursued during the Bloomberg administration. The
meeting last week put Mr. Bratton in the room with some of his department’s harshest critics.
“This is the first time we’ve felt that comfort sitting with them,” said Ahmad Jaber, who resigned from the
Police Department’s Muslim advisory board last year to protest the surveillance tactics. “It’s a new
administration, and they are willing to sit with the community and listen to their concerns.”
1nc Terrorism Adv
CVE focuses counter-radicalization efforts in Muslim communities --- that ignores
the threat of attacks from non Islamic groups --- results in Islamophobia and turns
the Muslim cooperation internal link
Iyer and Sarsour, 2/17/15 --- *South Asian American activist and the former executive director of
South Asian Americans Leading Together, AND **National Advocacy Director for the National Network
for Arab American Communities (NNAAC), the Executive Director of the Arab American Association of
New York.
(Deepa and Linda, 2/17/15, “Obama wants to 'counter violent extremism'. He should look beyond
Muslims”, http://www.theguardian.com/commentisfree/2015/feb/17/obama-counter-violent-extremismconference-muslims)//Yak
On Tuesday, the White House will convene a national summit on combatting violent extremism – but,
despite a plethora of attacks by domestic right-wing extremists and the increase in white supremacist hate
groups, no one expects that to be on the agenda.
Just a week ago, Craig Hicks, an apparently militant anti-theist murdered three American Muslim college
students in Chapel Hill; the FBI and local law enforcement have opened an inquiry into the possibility that it
was a hate crime. In August 2012, Wade Michael Page, an avowed white supremacist, stormed into the Sikh
Temple of Wisconsin outside Milwaukee and killed six people. Page died, but Attorney General Holder made
it clear that the community had endured an act of terrorism and hatred at Page’s hands. Frazier Glenn Miller
Jr, a neo-Nazi who founded the White Patriot Party, allegedly killed three people at a Jewish retirement
community in Overland Park, Kansas on 13 April 2014. He awaits trial for murder.
One would think the federal government’s response to this and other threats against communities of color
would be to develop programs and practices to confront the very real threat of right-wing violence and the
alarming increase of such hate groups in the United States. Instead, the Obama Administration’s programs to
counter violent extremism (CVE) almost exclusively focus on the recruitment and radicalization of Muslims
to engage in terrorist attacks in this country.
While it is important for our government to address all forms of violent extremism to keep Americans safe,
the CVE framework is deeply flawed because of its failure to do that and its reliance on unworkable models.
Last December, a range of interfaith, community and civil rights organizations sent a letter to the White
House expressing these concerns. They noted that the CVE program characterizes Muslims as suspect –
which fosters the existing culture of Islamophobia and hostility in the country that leads to discrimination.
Moreover, the government’s practice of providing funds to Muslim community partners in the fight against
violent extremism has also raised concerns about the true goal of these partnerships. Are they being formed
in order to gather intelligence and information about community members, or to actually engage in valuable
community outreach about civil rights protections? CVE programs can foster mistrust between government
entities and community members. To counter that, the government should engage with Muslim, Arab and
South Asian communities to protect their civil rights – especially since hate violence and discrimination
against our communities have not abated.
The threat of right-wing domestic extremism is not far-fetched. According to the Southern Poverty Law
Center (SPLC), since the year 2000, the number of hate groups in the United States has increased by 56%;
they now include anti-immigrant, anti-LGBT, anti-Muslim and anti-government “Patriot” groups. The federal
government too is aware of the threats from these groups. In April 2009, a report by the Department of
Homeland Security (DHS) on right-wing extremism was leaked and then withdrawn. It revealed the
government’s assessment that “white supremacist lone wolves” posed the most significant domestic terrorist
threat in the US.
Yet, despite this complicated and growing landscape of domestic right-wing groups, the Obama
Administration’s Countering Violent Extremism programs continue to focus on the threat of radicalization in
Muslim communities. Last September, Attorney General Holder announced that the Department of
Homeland Security, the National Counterterrorism Center and the White House would be working with local
US Attorney offices to conduct pilot programs in Boston, Los Angeles and Minneapolis to counter violent
extremism. At the CVE summit held by the White House this week, these programs will likely be highlighted.
Participants at the Summit must ask whether, in these cities, government agencies are focusing on the range
of organizations that espouse violent extremism, including hate groups and white supremacists.
One thing is clear: the federal government’s one-note approach to countering violent extremism
fosters distrust and hostility towards Muslim communities while disregarding threats to Americans’
safety from racist hate groups in the country. As the CVE Summit unfolds this week, we must ask critical
questions about the government’s implementation of CVE programs for the sake of not only Muslim
communities, but all Americans.
No homegrown terrorist threat --- unreliable studies, increased law enforcement,
execution failures
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Is the Muslim homegrown terrorism threat growing?
Despite the concerns expressed by many analysts and public officials, the evidence does not support the
conclusion that Americans face a growing threat of deadly attacks plotted by Muslims in the United States.
First, it is unclear that more American Muslims are intent on mounting such attacks. Although it may yet
prove to be the case, the evidence at present does not substantiate such a finding. The exploratory nature and
approach of studies of radicalization provide limited tools for evaluating whether Muslim Americans are
increasingly exhibiting cognitive and behavioral changes that predispose them to violence. Even if the
behaviors and beliefs sometimes associated with radicalization are detected, it is unclear that they will
culminate in individuals undertaking terrorist activity, and if so, in what incidence individuals will engage in
violent acts. Other evidence that radicalization is increasing, such as a surge in arrests, is also a poor indicator
of a growing inclination toward violence. The surge could be the result of a clustering of arrests of those long
engaged in militancy or the apprehension of large groups, such as the members of the Daniel Boyd network
or the al-Shabaab recruits. Improvements in detection or other actions by law enforcement could also be
contributing to an increase in the number of individuals charged with terrorist offenses independent of any
larger trends in the population.
Second, there is a dearth of evidence suggesting that American Muslims, even if they were to aspire in greater
numbers to plot deadly attacks, would be more capable of doing so without being prematurely apprehended
than their counterparts in the past. The evidence cited above suggests that a significant grassroots
investigative and monitoring architecture is in place in the United States, such that those who do aspire to
plot will continue to be hard pressed to do so undetected. There is no basis for anticipating that the security
environment has become more permissive for terrorists. If anything, the commitment to a steady growth of
resources, an emphasis on federal, state, and local cooperative initiatives in counterterrorism, ongoing signs of
societal vigilance, and continued resistance to militancy in Muslim communities suggest that terrorist plots, as
in the past, have a high probability of being detected and foiled before they culminate in the deaths of
Americans.
Finally, even if attacks are not foiled, there is little basis for anticipating that those that are executed will be
less prone to failure than in the past. Muslim homegrown terrorists in 2009 or 2010 do not appear to have
been better equipped to overcome the challenges of bomb making, or preparing attacks, than in prior years.
Indeed, mistakes in operational security and tradecraft are common even among skilled terrorists and, in the
case of the mostly inexperienced and unprofessional cohort of American terrorists, may be endemic.110 The
evidence from several 2010 cases, including those of Finton, Smadi, Farooque, Martinez, and Mohamud,
suggests that militants make even the most basic mistakes in terrorist tradecraft, including soliciting help from
friends for their plots, advertising their intentions on the internet, and trusting informants and undercover
agents often with few questions asked.111 Even the most capable homegrown terrorists—such as those few
who managed to navigate security obstacles to obtain overseas training and guidance—ran into difficulty in
preparing for their attacks. For example, both Zazi and Shahzad had to contend with serious technical
problems and committed errors in operational security.
No impact --- Acquiring and storing equipment and preparation mistakes
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Acquiring equipment, or simply storing materials, generates yet another set of risks of being exposed. Recall
the case of the Saudi student, Khalid Aldawsari, who was arrested in February 2011 after he was reported to
authorities, first by the chemical company from which he ordered a large quantity of phenol and second from
the freight-forwarding company he hoped to use to receive the shipment.80 According to the New York City
Police commissioner, Shahzad purchased fertilizer with an inferior grade of ammonium nitrate and bought
M-88 fireworks rather than more powerful equipment to lessen the chance his expenditures would be
detected.81 Shahzad’s example illustrates how the security environment could indirectly elevate the
capabilities required for attacks by forcing militants to rely on obscure or difficult-to-work-with materials in
order to evade detection.82
Finally, fabricating viable explosive devices is not the only obstacle that terrorists must overcome to prepare
and execute deadly attacks. Preparing attacks often entails pre-operational activity, including identifying and
surveilling targets while maintaining operational security. Errors in pre-operational activity are common even
among established or well-resourced terrorist networks and organizations and are likely to be pervasive
among less experienced militants.83 Take, for example, the 2003 Casablanca suicide bombings. In that case,
the plotters had a secure community sanctuary and a skilled coordinator (and, at least according to the
Moroccan authorities, help from al-Qaida).84 Yet they still made serious errors in surveillance and planning,
including blowing up a Jewish community center on a Saturday. Fortunately, no one was killed, because the
plotters did not consider that the center would be closed for the Sabbath.85
Empirics prove resiliency to terrorist attacks --- focusing on Muslim threats ignores
far more lethal right wing extremists
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
A final way of evaluating the seriousness of the homegrown Islamist threat is to compare it with other
terrorist threats that Americans have faced in the past and others they face in the present—threats the
population has heretofore managed rather capably. Seen in light of the threats posed by other segments of the
population, the one posed by Muslim Americans appears neither especially novel, nor severe. Take, for
example, the United States’ recent history with terrorism. As Brian Jenkins observes, in the 1970s the country
experienced a rash of bombings by Puerto Rican nationalist groups and the militant left, such as the Weather
Underground, which combined were responsible for more than 100 bombings.127 Contemporaneous reports
underscore the magnitude of the threat at the time. Between January 1969 and October 1970, 370 bombings
occurred in New York City alone, an average of more than one every other day.128 In just over two weeks in
March 1970, 14 bombs exploded in New York City, and there were nearly 2,300 bomb scares—numbers that
defy imagination today.129 Overall, according to the National Consortium for the Study of Terrorism and
Responses to Terrorism, from 1970 to 2007 the United States experienced nearly 1,300 terror attacks—an
average of more than 36 per year—with about 10 percent yielding at least one fatality.130
The United States’ recent experience with terrorist violence from offshoots of antigovernment and Christian
Patriot movements as well as white supremacist groups provides further evidence of Americans’ resilience in
the face of terrorism, and therefore their capacity to weather terrorist attacks of the kind most likely to
originate with Muslim homegrown terrorists.131 In some ways similar in form to the terrorist violence that
has been perpetrated by Muslims, right-wing terrorism is often inspired by an overarching ideology or
worldview and occurs in operationally disconnected attacks usually outside the boundaries of formal
organizations or hierarchies.132 According to the Southern Poverty Law Center’s Intelligence Project, there
were nearly sixty rightwing terrorist plots largely of this nature from 1995 to 2005.133 Another study found
that from September 2001 through September 2010, there were eighty domestic plots involving primarily
right-wing terrorists.134
Moreover, a subset of these cases appears to be especially frightening. When white supremacist William Klar
was apprehended in 2003 as the result of a postal mistake and the actions of an alert citizen, he had allegedly
amassed a large amount of sodium cyanide for use in a terror attack.135 In 2009 a wealthy white supremacist
acquired materials that he hoped to use in a radio logical weapon.136 In 2010, members of a local Michigan
militia helped to expose a plot by the Hutaree militia, which allegedly sought to kill a policeman and then
bomb attendees at his funeral—an assault, as Al-Jazeera’s correspondents did not fail to observe, that is as
serious in its particulars as those of other recent “jihadi” plots.137
Interestingly, Americans do not seem especially terrorized by the right-wing threat. Even the 1995 Oklahoma
city bombing of the Alfred P. Murrah Federal Building—the most lethal attack on U.S. soil bar September
11—seemed to horrify more than terrify people, even though among the 168 dead were 19 children less than
six years old. As one study of public opinion in the aftermath of the Oklahoma City bombing concluded, the
bomber’s actions “altered neither the public’s assessment of personal risk nor its reported behavior.”138
Despite a jump in the month following the April 1995 attack in the number of respondents who said they
were very concerned about terrorist violence in the United States, by June 1995 that figure had fallen below
its July 1993 level. The title of the public opinion study captured the prevailing sentiment: “The Terror That
Failed.”139
In short, Americans have long experience in dealing with the kind of terrorist challenges that Muslim
homegrown terrorism is most likely to present.
--- XT: CVE Bad Turns
Community engagement turns on itself exacerbates intercommunal inequalities
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
Part III moves to the material implications of community engagement. Community engagement efforts constitute one of many entry points for federal
law enforcement into Muslim communities today. But
unlike other types of radicalization policing, community engagement
efforts draw their legitimacy from ideas of inclusion and democratic participation. Most acutely, my concern is that
community engagement turns on itself by providing police with greater power and discretion over
marginalized communities. Rather than enhance participation, community engagement may simply provide
opportunities for select members of Muslim communities to approve preexisting law enforcement
commitments - and create an additional source of pressure on Muslim communities to perform their
Americanness - without meaningful openings for Muslim communities to communicate, collaborate, and
contest the relationship, its modalities, and its outputs. The coercive effect of these practices has been
underexplored, even as their success at increasing democracy and inclusion is taken for granted. While it is beyond the scope of this Article to
engage the premise that cultivating pro-law-enforcement attitudes is necessary for democracy, the Article does raise questions about how the
government should cultivate these attitudes, and how cultivating such attitudes may clash with the duty of people to hold their governments
accountable.
Focusing only on Muslim communities and linking CVE to terror efforts stigmatizes
Muslim Americans
Muslim Advocates, 14- letter from civil liberty organizations to Obama about CVE
(12/18/14, “Coalition Letter to Obama Administration on Countering Violent Extremism”,
http://www.muslimadvocates.org/coalition-letter-to-obama-administration-on-countering-violentextremism/)//Yak
The undersigned human rights, civil liberties and community-based organizations write to express our
concern about the targeting of American Muslim communities and communities presumed to be Muslim
through activities conducted under the auspices of Countering Violent Extremism (CVE).
In 2011, the White House released a strategic implementation plan with the overarching goal of “preventing
violent extremists and their supporters from inspiring, radicalizing, financing or recruiting individuals or
groups in the United States to commit acts of violence.” 1 The plan describes federal support for
“community-led efforts to build resilience to violent extremism” and “preventative programming.” It tasks
the Department of Homeland Security, Department of Justice and FBI to execute CVE programs and
emphasizes the coordinating role of local US Attorneys’ Offices. However, the White House has not
described the basic parameters, methods and metrics of CVE, which appear to vary at the local level.
Our organizations have diverse perspectives on the wisdom and legality of CVE and therefore do not take a
final position on CVE here; however, we all agree that where the federal government encourages these
efforts, it also bears responsibility for their impacts. In this letter, we describe some of these impacts,
including on: religious exercise; freedom of expression; government preference for or interference in religion;
stigmatization of American Muslims; and ongoing abusive surveillance and monitoring practices. We
recommend necessary initial steps toward addressing our concerns.
Impact on Religious Exercise and Political Expression
One purported method of CVE is to provide a space for community discussion of alternative political
opinions and religious viewpoints, without the threat of government surveillance and monitoring. Yet CVE
may also task community members to expansively monitor and report to law enforcement on the beliefs and
expressive or associational activities of law-abiding Americans. That approach to American Muslim
communities—or any belief community— reproduces the same harm as government surveillance and
monitoring. The result of generalized monitoring—whether conducted by the government or by community
“partners”—is a climate of fear and self-censorship, where people must watch what they say and with whom
they speak, lest they be reported for engaging in lawful behavior vaguely defined as suspicious.
Religious exercise and political expression are among the casualties, as individuals may abandon discussions
about religion and politics—or avoid mosque and community spaces altogether—to avoid being tracked into
CVE programs that brand them as “at risk” or potential “terrorists.” Indeed, insofar as CVE trainings and
guidance promote a theory of “radicalization” and malleable “indicators” and “predictors” of violence
including patterns of lawful political activism, ideology and religious worship, they are likely to result in law
enforcement targeting based on political opinion and religious exercise. These are First Amendmentprotected activities—no government-sponsored programs should chill them and law enforcement cannot use
them as a basis for action.
Even where the parameters of CVE and community outreach are more narrowly defined, we are concerned
based on prior incidents of law enforcement overreach that law enforcement may use them as a pretext for
intelligence gathering activities that treat entire communities as suspect. Indeed, in any community roundtable
or event, the presence of Justice Department officials and police creates the risk that community members’
participation and statements may be recorded in intelligence databases.
Improper Characterization of American Muslims as a Suspect Community
CVE’s stated goal is to “support and help empower American communities.”2 Yet CVE’s focus on American
Muslim communities and communities presumed to be Muslim stigmatizes them as inherently suspect. It sets
American Muslims apart from their neighbors and singles them out for monitoring based on faith, race and
ethnicity.
CVE’s focus on supporting local communities links it to traditional community policing initiatives. Yet
federal support for community policing should focus on crime reduction in communities overall—and not
succumb to a singular focus on terrorism or American Muslims. The federal government’s support for
community policing should also be delinked from “radicalization” theory and related concepts. Empirical
studies show that violent threats cannot be predicted by any religious, ideological, ethnic, or racial profiling.
The evidence suggests that there is no direct link among religious observance, radical ideas and violent acts.
Moreover, all agencies involved in CVE should be mindful of potential stigmatizing impacts when they
publicize and promote their efforts to engage with American Muslim communities. Materials should avoid
linking federal engagement with these communities to actions to counter armed groups such as ISIS,
especially as many federal officials acknowledge ISIS does not pose a credible threat of attack within the
United States and the number of Americans who have allegedly traveled to join ISIS—let alone returned—is
miniscule.
Harmful associations with ISIS and other armed groups play into fear-mongering about American Muslim
communities. They are amplified and distorted by the media and can be exploited by individuals and groups
who promote anti-Muslim rhetoric. Government and law enforcement authorities have the power to
significantly shape public discourse and send a strong message to the American public that fundamental rights
such as equal protection and religious liberty must be defended. Singling out one community for special
interventions and enhanced monitoring may have the effect of aggravating existing prejudices and reinforcing
intolerance.
CVE provides legitimacy to status quo FBI practices- encourages community to spy
on each other and creates a global industry upon counterproductive law enforcement
practices- results in international violations on human rights
Fernandez, 15 --- journalist who observes political and social events (4/17/14, Belén, “The pseudoscience
of countering violent extremism”, http://america.aljazeera.com/opinions/2015/4/the-pseudoscience-ofcountering-violent-extremism.html)//Yak
The CVE industry
Despite the seemingly innocuous nature of government campaigns such as “If You See Something, Say
Something™,” the field of domestic terrorism prevention is one of refined Orientalist pseudoscience. Among
its guiding texts is a 2007 manual, courtesy of the NYPD’s Intelligence Division, which lists signs that an
individual may be on a path to “Jihadization.”
According to the report, a person’s “progression along the radicalization continuum” can be signaled by
“giving up cigarettes, drinking, gambling and urban hip-hop gangster clothes” or “becoming involved in
social activism and community issues.”
Beneath the invented technical jargon is an invitation to unabashed and limitless racial and religious profiling,
with the apparent crime of being Muslim further underscored by an expansive list of “radicalization
incubators” and “nodes” that can host the radicalization process. In addition to mosques, these include
“cafes, cab driver hangouts, flophouses, prisons, student associations, nongovernmental organizations,
hookah (water pipe) bars, butcher shops and book stores.”
Meanwhile, given that “urban hip-hop gangster clothes” often trigger other police responses such as stopand-frisk, it might be helpful if the NYPD sat down and composed a coherent inventory of approved
wardrobe items.
No serious government undertaking is complete without acronyms, and here too the counter-radicalization
program shines. Take the NSI: the Nationwide Suspicious Activity Reporting (SAR) Initiative — a
collaborative effort between the Department of Homeland Security, the Federal Bureau of Investigation and
SLTT (state, local, tribal, and territorial law enforcement outfits). As a blog post by American Civil Liberties
Union attorney Julia Harumi Mass notes, this has enabled the FBI to collect a colossal database of
information, because the state’s “loose standards define practically anything as suspicious.”
Then there’s the trendy business of Countering Violent Extremism (CVE), which, among other things,
encourages teachers and parents to serve as the eyes and ears of the national security state. The problem here,
Harumi Mass writes, is that “under CVE, normal teenage behavior could be an indicator of the potential to
engage in terrorism.”
DHS advocates a prevention-focused, community-based approach to CVE, which will ideally render the
members of said community “more inclined to share suspicious information with law enforcement.” A CVE
working group (CVEWG) led by a CVE Coordinator has been established to oversee operations.
To be sure, there’s no better way to promote resilient and cohesive communities that aren’t susceptible to
radical antisocial pathologies than by having residents spy on one another and parents terror-tattle on their
children. (Better still when the FBI pays informants to radicalize folks.)
Beyond its own immediate battle against Domestic Terrorists and Homegrown Violent Extremists (HVEs),
the U.S. is also deeply concerned with helping other nations confront their problems. In February, the White
House Summit To Counter Violent Extremism gathered foreign leaders, United Nations officials, and “a
broad range of international representatives and members of civil society” — including those interested in
making a buck off the CVE industry.
And many a buck is to be made, judging from the White House’s press release about the summit, which plugs
“social media solutions” to violent extremism. According to the release, the US “and our partners in the
private sector are organizing multiple ‘technology camps’ in the coming months, in which social media
companies will work with governments, civil society, and religious leaders to develop digital content that
discredits violent extremist narratives and amplifies positive alternatives.” Google, Facebook and Twitter
were all represented at the summit.
Violence and safe spaces
Among America’s illustrious allies in its global counterterrorism effort is the United Arab Emirates, which
with the United Kingdom co-chairs the CVE working group at the Global Counterterrorism Forum,
launched in New York in 2011. Abu Dhabi also plays host to Hedayah, the International Center for
Excellence in Countering Violent Extremism, which is listed as one of DHS’s crucial CVE partners.
Never mind that the Emirates’ version of CVE appears to include such dubious actions as deporting resident
Shiites en masse and hiring Erik Prince, the founder of Blackwater (rebranded as Academi), to form secret
mercenary armies. It’s no doubt fitting that the UAE, an eager client of the U.S. defense industry, has been
propelled to the vanguard of counter-jihad.
A State Department fact sheet boasting $188 million worth of “ongoing and planned CVE efforts”
emphasizes support for Hedayah as well as other initiatives such as those that “seek to create safe spaces for
dialogue between women community leaders and law enforcement” and that “amplify … the voices of
victims/survivors of terrorism.” Drone-strike survivors need not apply.
This brings us to the question: how does one counter violent extremism when so much of what one
does qualifies as extreme violence? Furthermore, don’t one’s own violent acts — drone assassinations,
bombing civilians, torturing people and supporting oppressive governments — help breed the very violence
that must then be countered? Owning up to this arrangement would, of course, mean ceasing to have our
cake and eat it too.
In an op-ed for Al Jazeera America on the February summit in Washington, Amnesty International USA
director Steven W. Hawkins warned that abusive regimes could take advantage of CVE-mania and use
international funding to violate human rights if the U.S. failed to insist on appropriate safeguards.
But this analysis overlooks the fact that CVE programs are already an affront to these rights, right here at
home. As the ACLU’s National Security Project Director Hina Shamsi recently emailed me, the CVE strategy
“does not include necessary safeguards to protect privacy and constitutional rights [and] risks treating people,
especially young people, as security threats based on vague and virtually meaningless criteria.”
In the end, she wrote, the strategy “risks further alienating the very communities it’s meant to engage.”
Surely it’s nothing that can’t be fixed with CAI, a counter-alienation industry.
Only community initiated reforms can solve – plan doesn’t hold police accountable
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
For community policing to be an effective tool in changing the relationship between the marginalized and law
enforcement, marginalized communities cannot simply be offered a seat at the table to participate in preconceived policing [*907]
programs. They must have the political power to hold police accountable. For community policing mechanisms to offer
potential for real change to marginalized communities, communities must build capacity and political power to demand
accountability. So while we might advocate for law enforcement to engage marginalized communities, we cannot rely on law
enforcement initiatives to recalibrate relationships long rife with deep inequality. The pressure for
meaningful change must come from outside, from the communities themselves organizing for change. n325
--- XT: No Homegrown Terrorist Threat
Empirics prove threat of homegrown terrorism threat is low
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
How serious is the threat?
If there are no solid reasons for anticipating that the threat of deadly attacks in the United States is growing,
how should Americans evaluate the seriousness of the threat of Muslim homegrown terrorism? A first step is
to review the record of homegrown terrorism in the years since September 11. From September 2001
through December 2010, approximately 175 Muslim citizens or residents of the United States were charged
with terrorist-related offenses, including fundraising on behalf of an overseas terrorist organization such as
alQaida or al-Shabaab, seeking to join one, or plotting an attack in the United States.112 The surge in arrests
noted at the start of this article included 43 people in 2009 and 32 in 2010.113 Among these were 31
individuals seeking to join or aid al-Shabaab as well as 9 individuals involved in sting operations.114
Within the smaller sample of operational plots aimed at homeland targets within the United States (the focus
of this article), there were 18 such plots from 2001 to 2010. Of those, 12 involved the extensive participation
of informants and undercover agents from the plots’ early or formative phase. Two—the Little Rock and
Fort Hood shootings—resulted in deaths.115 The perpetrators of those attacks had singled out soldiers, as
have about one-third of all terrorist-related activities and attacks in the United States and overseas.116 Only
one plot reached the execution stage—Shahzad’s Times Square bombing attempt—without the perpetrator
being known to law enforcement before the attack. No explosive device has been successfully detonated by a
Muslim American in a terrorist attack in the United States.
Thus the record suggests, on both analytical and empirical grounds (to the extent one can extrapolate from
such a small number of successful attacks), that the plots most likely to succeed are those that involve
accessible weapons (e.g., firearms) and small numbers of individuals and that require minimal skill and preoperational steps. Because individual plotters do not risk exposure through contacts with others and may use
weapons that require minimal skills, they likely have the greatest chance of avoiding detection and being
successful.117
No risk of terror in Muslim communities --- cultural values, societal connections,
and reporting of suspicious activity already exist
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
I first consider the possibility that militants could and a complicit environment within American Muslim
communities that could constitute a form of community or local sanctuary. The conventional wisdom, as
noted above, has been that Muslim communities are inhospitable to militancy, especially compared with those
in Europe, because American Muslims are more thoroughly assimilated and enjoy middle-class status.43
Studies of Muslim communities provide little evidence of changes or trends that suggest they are becoming
any less resilient against the threat of militancy in their midst.44 For example, one major effort funded by the
Department of Justice, in which researchers resided for periods of two to three months in four midsized
Muslim American communities, found that several features of these communities rendered them intrinsically
resistant to militancy, including, in particular, the strength of their communal organizations and social
networks. In addition, there were efforts expressly geared toward preventing and exposing any signs of
militancy, including both outreach programs and a variety of internal monitoring, or self-policing, practices.45
In particular, two forms of self-policing underscore Muslim American resistance to militancy. First is the
willingness of members to voluntarily alert authorities, through unsolicited tips, when an individual professes
extreme views or is engaging in suspect behavior. In table 1, I detail the central role played by informers and
tips from the community in exposing militants. In addition, a study by Syracuse University found that from
2001 through 2010, in 22 percent of all cases in which defendants were charged with some terrorist related
offense, tips from family or community members brought the person to law enforcement’s attention.46
Another indication that communities—or at least some crucial subset of their members—are repulsing rather
than embracing militants is the (not uncontroversial) success that law enforcement has had in cultivating
informants. Informants are individuals who are engaged by law enforcement to covertly monitor people and
activities in their communities. The Syracuse University study, for example, found that 35 percent of terrorist
cases have involved an informant. Another 9 percent of cases involved undercover officers exposing plots.47
Finally, even if some Muslims sympathize with militant causes, and believe that violence might occasionally
be justiªed in some political contexts,48 attitudes alone do not indicate a willingness to support terrorism,
especially when aimed against fellow citizens.49 Beyond any moral or ethical considerations it raises,
supporting terrorism is a costly act that can result in the perpetrator and his or her community becoming
objects of suspicion.50
Militants cannot avoid suspicion --- alert citizens will report suspicions of
homegrown terror before attacks
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Anonymity
A second option for militants hoping to avoid detection is to seek anonymity by living in population centers
where individuals of similar backgrounds reside, or in places where social norms or environmental factors
render them less likely to be observed (e.g., urban areas, rural/remote places, or commuter/transient
neighborhoods). For example, depending on their ethnicity, some militants could conceal themselves in
immigrant population centers where they blend in demographically.51 In the United States, there are both
moderately sized and several large population centers of Muslims (e.g., Chicago, Los Angeles, the Bay Ridge
neighborhood of Brooklyn, New York, and Dearborn, Michigan).
The mere existence of such large population centers, however, does not mean it is easy to hide within them,
especially given the social norms and intracommunal patterns of engagement observed within these
communities. According to one survey, American Muslims engage in social services at their mosque at a rate
equivalent to U.S. congregations in general and are slightly more likely to engage in activities in the
community beyond (38 percent vs. 32 percent).52 These patterns suggest that there are interconnections
among individuals that heighten the odds that individuals who withdraw from the community or exhibit
changes in belief or behavior will be noticed. Especially when militants are young and inexperienced—as in
the 2010 case of the accused Portland bomber, whose family apparently tipped off authorities about his
increasingly extreme views—they may be especially likely to do and say things that draw attention to
themselves.53
Enhanced societal vigilance and awareness of terrorism after the September 11 attacks may also render it
harder for militants to remain anonymous. Compare the environment in which the September 11 hijackers
operated to that in the present-day United States. Despite warnings by the plot’s mastermind, Khalid Sheikh
Mohammed, to avoid Muslim communities— warnings that underscore the recognized dangers of living
within them—some of the operatives did just the opposite, without provoking the suspicions of those around
them.54 Zacarias Moussaoui befriended members of a Norman, Oklahoma, mosque who apparently did not
question his potential pursuit of terrorist activity even when he professed extreme views.55 Similarly, in San
Diego, two of the September 11 hijackers relied on the hospitality of members of a local mosque to find them
an apartment and purchase a car.56
Contrast the reaction of members of a Hawaiian mosque who in October 2010 reported a new member to
authorities after they became suspicious about his recent move to the area.57 Consider, also, the case of
Khalid Aldawsari, the Saudi student who in February 2011 was charged with plotting bomb attacks on U.S.
targets after he was reported to the FBI and local police by, respectively, employees at a chemical company
and a freight vendor.58 Or take the example of the Circuit City employee who helped to foil the 2007 Fort
Dix plot after observing disturbing footage on a video and informing authorities.59 In each case, alert
citizens, otherwise unacquainted with the militants, helped to expose their potential interest in violent activity
--- XT: No Impact
No impact to lone wolf terrorists- they prioritize psychological effect over the
number of lives taken
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
The difficulties associated with plotting attacks in the United States help to explain why “lone wolf” attackers
are sometimes identified as the mainline domestic threat.118 How serious a threat do such disconnected,
unsophisticated attacks pose to Americans? They can certainly prove lethal. Take, for example, Maj. Nidal
Hasan’s shooting spree at Fort Hood, Texas, which killed 13 soldiers and wounded many more. Alternatively,
consider the outcome if Times Square bomber Faisal Shahzad had chosen an easier method of attack and a
more dependable weapon—firing his newly purchased Kel-Tec semiautomatic riºe into the square on a
Saturday night, rather than attempting a technically ambitious car bombing. He could have killed a large
number of people with a higher probability of success.119 As demonstrated by the 421 workplace shootings
that, according to the U.S. Bureau of Labor Statistics, occurred in 2008, simple attacks can be deadly.120
Whether attacks of this kind present a serious terrorist threat, however, is a somewhat different question.121
Conceptually, terrorism is commonly understood as being about more than killing; its impact depends on
whether attacks generate deeply rooted psychological reverberations in society. As one ob server captures it,
“Terrorism is about terrorizing. It’s about creating fear; it is not just about attacking.”122 Moreover, as
terrorists themselves appear to understand implicitly, the operational complexity of their attacks can affect
how much they terrorize: generating a psychological impact requires undertaking attacks that demonstrate
ruthlessness, premeditation, and technical capability.123 For example, there is likely a reason why Shahzad
chose to use a bomb instead of his riºe, or why al-Qaida did not use its U.S.-based operatives to shoot up
suburban malls in the days following the September 11 attacks and why, since then, it may be willing to
advocate doing so only as a last resort.124 The very fact that aspiring militants are regularly attracted to using
explosives,125 despite the risks of detection and failure they invite, underscores a desire to generate the
maximum psychological effect possible.126
Homegrown terror studies are flawed --- analysts have not understood the
radicalization process, and those who avoided terrorist activities are excluded from
studies
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
While there may be evidence of common changes or behaviors observed within these samples of militants, it
is unclear whether evidence of similar changes in the present-day Muslim American population would reliably
indicate that its members will initiate terrorist activity. How or when such actions or beliefs will lead to
terrorism is not yet well understood. Analysts, for example, acknowledge that “only a tiny minority of
radicalized individuals actually cross over to become terrorists.”19 Although the problem of anticipating
when people will turn to violence is understandably complex, without a better grasp of that process,
arguments about when terrorist acts will occur based on observed changes in thought or actions will suffer
from analytical indeterminacy. This, in turn, makes it difficult to hypothesize about when a set of
individuals—such as American Muslims—is inclined to engage in terrorist related activity.
Moreover, it is unclear whether analysts are at present able to provide insight into what to look for in the
beliefs and behaviors of American Muslims, even in a preliminary or exploratory effort to assess any
propensity for violence. General arguments about how radicalization results in individuals becoming involved
in terrorism are derived from the experiences of a sample of individuals known to have engaged in terrorist
activity. To establish that these patterns in beliefs and behaviors are causally related to the turn to terrorism
and generalizable across cases, however, the arguments need to be evaluated against new data, beyond that
from which the patterns were initially induced.
Another limiting factor is a research design in which analysts of radicalization select cases to study on the
dependent variable—that is, they analyze only cases of individuals charged with terrorism. By not also looking
at individuals who have forgone violence, analysts cannot determine if they have isolated what is unique or
distinctive about those individuals who engage in terrorism. Many people could be doing or thinking things
similar to those committed to violence, but never take actions related to terrorism. They may listen to radical
sermons and engage with activists, discuss with friends Muslim persecution across the globe, and exhibit the
signifiers of extremist modes of thinking, without considering plotting an attack or otherwise aiding a terrorist
organization. Two recent studies of militant Muslims in Europe that do employ control groups of
nonmilitants, for example, suggest that the beliefs of those inclined toward violence and those who pursue
nonviolent political change may not be very different.20
The number cases of homegrown terrorism exaggerate the real number of
homegrown terror attacks
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Finally, it is worth considering the nature of the particular cases that represent the surge of arrests to see what
they reveal about a supposed growing trend in Muslim homegrown terrorism. Several features of that data
cast doubt on whether they represent the “watershed” in plots that some analysts fear.
From 2002 to 2008, the number of arrests involving Muslim Americans varied considerably, from a low of 5
individuals charged in 2008 to a high of 23 in 2003.39 Estimates for 2009 cite 11 to 13 terrorist incidents,
involving 43 Americans charged in the United States or abroad.40 In 2010 the number charged was 32, or 33
if one ambiguous case is included. (See the online appendix and table 1 for details on 2009–10 cases.) Those
numbers clearly represent a major slice of the 175 total number of individuals charged from 2001 to 2010.
Consider, however, that although terrorist indictments against Muslim Americans in 2009 involved an
unusually large number of individuals, many were charged in groups. For example, 14 individuals were
charged in two groups with joining or aiding a foreign insurgency, Somalia’s al-Shabaab; a group of 5
Americans was charged with seeking terrorist training in Pakistan; and another group of 7 North Carolina
men, led by Daniel Patrick Boyd, was charged with seeking to aid foreign insurgencies in Israel and Kosovo
(this group was also suspected of plotting an attack against the Marine base at Quantico, Virginia).
The 2009 figures could also represent a clustering of arrests for terrorist cases that had been unfolding for
years prior, such as that of Bryant Neal Vinas, who traveled to Waziristan, Pakistan, in 2007 only to be
apprehended in 2008 and charged in January 2009. Similarly, Terek Mehanna’s long odyssey to become a
terrorist allegedly began in 2002, although he was not arrested until 2009. The charges against Boyd and his
cohort include acts committed as early as November 2006 (and his militant actions allegedly long predate
those activities).41
The al-Shabaab cases raise an additional issue. On definitional grounds, it makes sense to include them as
instances of Muslim homegrown terrorism in that the cases represent Americans engaging in terrorist activity.
Conceptually grouping these cases with all other terrorist offenses, however, might obscure very different
phenomena that fall under the rubric of homegrown terrorism. There are reasons why officials worry about
the al-Shabaab cases (especially that the individuals will someday return to the United States and do harm).
Leaving the United States to join a group engaged in a regional insurgency, such as al-Shabaab or the Taliban,
however, may be different from plotting to attack Americans within their own borders even if the intent is to
attack American soldiers or Marines overseas.42 This means that the 43 arrests in 2009 do not really represent
a singular threat, but rather the conglomeration of actors with somewhat different militant aspirations.
Finally, if 2009 represents a watershed year, one might expect to see a continuation in the upward trend in
Muslim American terrorist activity in 2010. Although still elevated, especially compared with 2008 (which
represented a low point in terrorism arrests), the number of arrests in 2010 fell to 33, which suggests that
2009 could have been an empirical anomaly.
Reports of homegrown terrorism are only a result of harsher law enforcement --- no
real increase in terrorist activity
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Do terrorist arrests indicate a growing threat?
If studies of radicalization shed little light on the propensities toward violence of Muslims in the United
States, then what should Americans make of the surge in terrorism arrests observed in 2009? Do they indicate
a growing trend of radicalization and propensity toward terrorist violence among American Muslims?
Focusing on a surge in arrests as an indication of radicalization could be misleading for at least two reasons.
First, there could be alternative explanations: more terrorist offenses could have come to official attention,
and produced arrests, as a result of more aggressive law enforcement. Second, the spike could be the result of
factors related to the timing of those arrests and the other details of the cases, which would suggest that the
increase is more an artifact of the data than indicative of a larger trend in the population.
Since the September 11 attacks, the Department of Homeland Security and other entities have invested
significant resources aimed at monitoring and investigating terrorist activity within the United States (see table
1). In turn, there are two ways that this “grassroots” law enforcement effort could be contributing to an
increase in arrests and the appearance that homegrown terrorism is on the rise, even if the incidence of
terrorist activity within the Muslim population has not actually increased. First, a more comprehensive law
enforcement effort could result in more cases being detected that in the past might have been missed. For
example, incidents in which individuals travel overseas to join or aid a terrorist organization, such as those
related to the Somali terrorist group al-Shabaab, which, over the 2009–10 period amounted to thirty-one
cases, could conceivably have been missed and never found their way into terrorist statistics without a
comprehensive law enforcement effort to detect terrorist activity (see the online appendix).
Second, some terrorist acts might be detected and produce arrests, which in the past might never have
become known to law enforcement because the militants abandoned their plots or failed to progress beyond
the “talking” or aspirational stage without taking actions monitored by authorities. There is, in fact, evidence
that authorities might be better prepared to detect potential terrorist activity in its initial phases.21 In
December 2008, the Justice Department provided new guidance to federal agents that allows the FBI to
initiate “assessments” to “proactively” pursue information against a potential terrorist outside of a formal
investigation, and therefore without supplying a particular factual justification for the evaluation.22 Among
the activities authorized under an assessment are employing human sources or informants.23 According to
documents provided by the FBI to the chairman of the Senate Judicatory Committee, Patrick Leahy, from
December 2008 through March 2009, the FBI initiated 11,667 assessments of persons and groups, which
produced 427 more intensive investigations.24 In the summer of 2011, the FBI further loosened restrictions,
rendering it easier for agents to employ lie detector tests, comb through people’s trash, and search databases
prior to initiating an assessment.25
One piece of evidence that also suggests that detection has been occurring at early stages is the declination
rates observed in terrorism cases (i.e., the rate of terrorism matters referred by law enforcement for criminal
prosecution that prosecutors decline to pursue). The declination rate rose to 73 percent in fiscal year (FY)
2008 from 61 percent in FY 2005 and from 31 percent in 2002.26 These cases often lack sufªcient evidence
and are too weak for prosecutors to pursue.27 One cause for the increase in declination rates is that
authorities could be unearthing terrorist-related activity at earlier stages, when it is less likely to form the basis
of a substantial case. If, as a result, even some number of these cases that might in the past have gone under
the radar result in arrests, then the actions of law enforcement, independent from any actual change in the
amount of terrorist activity being undertaken by the population, could be producing larger numbers of
recorded terrorist incidents.
Equally important, law enforcement may not just be detecting more cases; it could also be generating more
cases through its actions in two ways. First, law enforcement could be seeking to build more substantial cases
against those accused of terrorism-related offenses, which could increase the number of incidents counted in
the data. Law enforcement officials might, for example, hope to push down the high prosecutorial declination
rate noted above by investing more resources in investigations or holding out longer before making arrests.
One expert captures this rationale, “[I]f you nip [the case] too early in the bud, then you may not have
credible evidence to use in court.”28 Alternatively, officials might be motivated to build stronger cases, so
that defendants can be charged with serious terrorism violations, rather than lesser or “preventive charges”
such as immigration violations.29 For example, the Center for Law and Security reports that between
September 2001 and September 2010, only 31.6 percent of defendants in cases associated with terrorism
(defined as cases in which the word “terrorism” is mentioned in indictments or press releases) were charged
on core terrorism statutes, while an additional 12.2 percent were charged with national security violations.30
The case of Hosam Smadi, who was accused of trying to blow up a Dallas office building in 2009, is
instructive in this regard. As a special agent involved in the case reported, Smadi had overstayed his visa, and
“law enforcement could have arrested and deported him.” Instead, the FBI decided to use undercover agents
“to set up a sting.”31 Given the political pressure over declination rates that the FBI has experienced in the
past, it makes sense that officials might seek to build the most substantial cases possible whenever they
suspect that an individual is seriously inclined toward militancy.32 In turn, if cases that might otherwise have
ended in lesser or no charges being ªled are instead pursued by agents to the point where they seem viable,
this could yield an increase in the number of terrorist-associated offenses recorded in the data.33
No threat of Muslim homegrown terrorism --- overstating the threat is
counterproductive for national security and decreases resiliency against attacks
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Conclusion
This article demonstrates that the threat posed by Muslim homegrown terrorism is not particularly serious,
and it does not appear to be growing, especially in its most lethal incarnation—deadly attacks within the
United States. Indeed, many analysts and public officials risk overstating the threat posed by Muslim
American terrorism. Mischaracterizing that threat, in turn, is potentially costly and counterproductive for the
security of the United States and the welfare of its citizens, for several reasons.
First, misjudging the homegrown threat could lead the country to overinvest or poorly spend on
counterterrorism initiatives. Since the September 11 attacks, the government’s investments in resources
oriented toward grassroots homeland security have risen steadily. Although these are modest in comparison
with other federal expenditures, they nevertheless detract from other priorities. Consider, for example, how
the reallocation of resources toward terrorism within the FBI has undermined its capacity to pursue whitecollar crimes. After 2001, the FBI reduced the number of agents for its criminal program by 30 percent (from
6,179 in 2001 to 4,353 in 2008), while the number of agents speciªcally allocated for white-collar crime fell by
36 percent, from 1,722 to 1,097. Consequently, the number of cases brought forward related to financial
institution fraud plummeted by 48 percent (dropping from 2,435 to 1,257), and during the height of the 2008
financial crisis, the FBI was left struggling to find resources to investigate major financial and other mortgage
and securities crimes.141 In short, the “terrorism trade-off” can be significant, especially if serious questions
remain about whether that investment is warranted.142
Second, overstating or poorly characterizing the challenges posed by Muslim American terrorism risks
undermining societal resilience in the face of terrorism.143 Take, for example, Director Leiter’s
characterization of the homegrown threat: while noting that recent attacks are “operationally unrelated,” he
nonetheless described them as being “indicative of a collective subculture and a common cause that rallies
independent extremists to want to attack the homeland.”144 Alternatively, consider FBI Director Mueller’s
warning that homegrown terrorists “inspired by a violent jihadist message . . . may be as dangerous as groups
like Al Qaida, if not more so.”145 This language reinforces the sense of homegrown terrorism constituting
not only a major threat, but a monolithic campaign against Americans.
--- Overstating Terrorist Threat Bad
Their framing of the Muslim threat undermines societal resilience to a terror attack
threats of terror activity
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
If a shooting at Fort Hood is scary, however, more terrifying is seeing it as part of a larger conspiracy against
Americans and their livelihoods. Comments that magnify the threat undermine society’s capacity to withstand
what in fact are mostly self-initiated, disconnected attacks whose only real association to a centralized
conspiracy is within the minds of the terrorists.
Public officials and expert commentators might consider reframing the Muslim American homegrown threat
by doing more, for example, to present it as one among many domestic threats of terrorist activity posed by
ideologically motivated segments of society—threats, for the most part, that Americans do not appear
especially afraid of and have managed rather capably.146 Officials might also emphasize what Leiter duly
observed is the “operational unrelatedness” of recent plots and the diversity of terrorist offenses grouped
under the rubric of homegrown terrorism. Instructive is former National Intelligence Director Dennis Blair’s
characterization in February 2011 of violence from “homegrown jihadists” as “sporadic,” in which a “handful
of individuals and small, discrete cells will seek to mount attacks each year, with only a small portion of that
activity materializing into violence against the homeland.”147 Such framing efforts could help to render
threats of militancy originating from Muslim Americans more familiar and less formidable—akin to other
terrorist threats from domestic militants the country faces. There are, however, serious obstacles to such a
balanced discussion of terrorism in American politics. One indication of the problem is the political backlash
that ensued after the Department of Homeland Security issued a report in 2009 warning that the threat from
violent right-wing extremist activity was growing.148 Secretary Napolitano came under fire for one section of
the report that warned that returning veterans could become drawn to extremist groups. She subsequently
issued an apology letter to the American Legion, posted on the department’s website a formal statement
clarifying the report’s intent, and eventually disowned the report, calling it “not a well-produced product.”149
Perhaps unsurprisingly, the Department of Homeland Security has been notably reticent to label right-wing
attacks “terrorism,” even when they qualify by many people’s standards.150
These political obstacles aside, more should be done to promote a balanced discussion of terrorist threats in
the United States. Otherwise, Americans are presented with a distorted picture in which terrorist attacks
appear to be originating primarily with Muslims, rather than with extremists of all varieties. In an era when
the mistrust of Muslim communities is a serious social and political issue, this unbalanced presentation is
corrosive to American society.151
Finally, mischaracterizing and inflating the Muslim homegrown American threat could prove self-defeating to
the country’s efforts to defend against it. Especially worrisome is the potential that, in an atmosphere in
which the threat of homegrown terrorism appears serious and worsening, law enforcement will employ
counterproductive methods that threaten the trust between its officials and Muslim communities—trust that
underpins the demonstrated capacity and willingness of American Muslim communities to self-police and
root out militants in their midst.152 For example, although the cultivation of informants and infiltration of
undercover agents into Muslim communities can be helpful to investigators, there are inevitable risks
associated with these methods, and using them requires care and awareness of how they may affect the
communities in which they are employed. In many places, federal law enforcement and local police
departments have sought to build strong relationships through outreach to Muslim communities. Such efforts
help to lay the groundwork for good relations and ease tensions associated with law enforcement’s
monitoring efforts.153 But FBI sting operations, such as those employed in the case of the Portland bombing
suspect, Mohamed Osman Mohamud, can seriously test those relationships.154 Evidence of mismanagement
and insensitivity are similarly troubling.155 More broadly, the perception that authorities “routinely run
armies of informers” through American Muslim communities contributes to the sense, as the president of the
Islamic Society of North America describes it, that “law enforcement is viewing our communities not as
partners but as objects of suspicion.”156 Equally insidious is how these tactics, by generating suspicion and
eroding norms of communal openness, undermine the community’s capacity to self-police, thereby making it
harder for members to detect militants in their midst.157
No homegrown terrorism due to lack of incentive or capability --- US rhetoric
undermines Muslim cooperation and stigmatizes Muslims
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Are Muslims born or living in the United States increasingly inclined to engage in terrorist attacks within the
country’s borders? For much of the post–September 11 era, the answer to that question was largely no.
Unlike its European counterparts, the United States was viewed as being relatively immune to terrorism
committed by its residents and citizens—what is commonly referred to as “homegrown” terrorism—because
of the social status and degree of assimilation evinced by American Muslims.1 In 2006, in the long shadow
cast by the Madrid 2004 and London 2005 attacks perpetrated by European homegrown terrorists, there was
a perceptible shift in the characterization of the threat posed by American Muslims.2 Public officials began to
speak more regularly and assertively about the potential threat of some Muslims taking up terrorism, elevating
it in their discussions alongside threats from foreign operatives and transnational terrorist organizations.3 By
2009, in part catalyzed by a surge in terrorist-related arrests and concerns that they could portend a growing
radicalization of the American Muslim population, policymakers and terrorist analysts seemed increasingly
worried about homegrown terrorism.4 When U.S. Special Forces killed Osama bin Laden in May 2011, some
members of Congress and other commentators argued that the threat of homegrown terrorism would
become even more important.5
Thus, in the decade since the September 11 attacks, homegrown terrorism has evolved from a peripheral
issue to a major theme in contemporary debates about the terrorist threats facing the United States. Public
officials such as Secretary of Homeland Security Janet Napolitano, Federal Bureau of Investigation Director
Robert Mueller, and Attorney General Eric Holder regularly counsel that the number of Americans engaging
in terrorist activity has risen.6 As Napolitano cautions, “One of the most striking elements of today’s threat
picture is that plots to attack America increasingly involve American residents and citizens.”7 According to
Holder, “The American People would be surprised at the depth of the [homegrown terrorist] threat.”8
Concerns about homegrown terrorism, in turn, have generated a variety of think tank reports and associated
warnings by many of the country’s most accomplished terrorism researchers.9 Analysts such as Peter Bergen,
Paul Cruickshank, Bruce Hoffman, and Marc Sageman have all expressed concern about a potential rise in
terrorism initiated by Muslim Americans.10 Indeed, Bergen and Hoffman call the year 2009 a “watershed in
terrorist attacks and plots in the United States.”11
Clearly, public officials and analysts are worried about the prospect that Americans will face a growing trend
of violent attacks from extremist elements within the country’s Muslim population. Less certain, however, is
whether those warnings and the sense of urgency associated with the homegrown terrorism threat are
warranted. In fact, the threat of Muslim American terrorism may not be especially serious or growing. It
could remain a modest challenge, similar to what it was for much of the decade following September 11.
The stakes for Americans in an accurate assessment of the threat of Muslim homegrown terrorism are
significant. If the threat is overstated, the United States risks becoming preoccupied with this incarnation of
terrorism and could make unwarranted investments in intelligence and law enforcement to address it, while
underemphasizing other terrorist or nonterrorist threats. Overstating or miscasting the homegrown threat
could also undermine society’s resilience to terrorism, while feeding a climate of fear and misunderstanding
between Muslims and other Americans. In addition, overestimating the threat could contribute to the
adoption of counterproductive counterterrorism methods, especially those that threaten to alienate Muslim
communities from law enforcement. Given that cooperation from these communities has proven a major
safeguard against the homegrown threat, any breach of trust between their members and government
authorities would be a worrisome development.
It is therefore essential that Americans have a clear picture of the magnitude of the threat they face from
Muslim homegrown terrorism. This article aids in that endeavor by systematically analyzing the argument that
Muslim residents or citizens of the United States represent a serious and growing terrorist threat to American
society, particularly in their supposed willingness or capacity to execute deadly attacks in the United States. I
structure my analysis around three alternative pathways, or conditions, that alone or in combination could in
principle contribute to a growing threat of homegrown terrorism. In so doing, I probe what is known about
the motivations and capacity of American Muslims to execute deadly attacks in the United States and thus
provide a comprehensive analysis of that threat.
My conclusion should be generally reassuring to Americans: Muslim homegrown terrorism does not at
present appear to constitute a serious threat to their welfare. Nor is there a significant analytical or evidentiary
basis for anticipating that it will become one in the near future. It does not appear that Muslim Americans are
increasingly motivated or capable of engaging in terrorist attacks against their fellow citizens and residents.
--- AT: Terrorists Train Abroad
Training abroad fails --- western recruits get rejected and value of training is limited
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
The difficulty of acquiring expertise overseas
What if homegrown terrorists do not need to acquire skills or plan and prepare their attacks in the United
States and can instead travel overseas to train and then return to execute them?96 Some analysts contend that
training Westerners who travel overseas to then attack targets in their countries of residence is a favored
strategy of al-Qaida Central, and that this is contributing to a growing homegrown terror threat.97
There are, however, considerable obstacles to receiving remote training that cast doubt on whether it offers
such unmitigated benefits to aspiring terrorists. To start, leaving the United States and reentering requires
navigating significant post–September 11 security regimes in Western countries; similarly, entering and exiting
a terrorist camp in the foreign country without exposing one’s identity can be a complicated process.98
According to Nesser, many activists in Europe in the last decade who traveled overseas to obtain training
were exposed or captured before they could undertake their missions.99
In addition, Western “self-recruits” have to connect with terrorist organizations in their base countries, and
leaders have to accept them for training. Take the case of five Muslim American suspects who traveled to
Pakistan for training but were repeatedly turned down “because they were foreigners and had no local
references.”100 Or consider the case of Terek Mehanna, whose associate sought to solicit training, only to be
turned down by two Pakistani militant groups.101 Even someone with significant personal ties to Pakistan,
such as Faisal Shahzad, can encounter problems; he reported that establishing his connection with the Tehrike-Taliban organization took six months.102 Indeed, from the perspective of militant groups, as much as
American or European citizens represent an opportunity to train Westerners and send them back to wreak
havoc in their home countries, they also represent serious security risks to the organization.103
Finally, even if a recruit is accepted for training, the practical value of that remote instruction once the
militant is back home may be limited.104 The cases of Najibullah Zazi and Faisal Shahzad, the respective
New York subway and Times Square bombers, are instructive. Zazi was extensively trained and guided by an
al-Qaida operative.105 Still, he ran into technical problems while fabricating his TATP bombs in a hotel
kitchenette and was forced to contact his associates in Pakistan for instruction; those communications were
intercepted.106 Or consider that Faisal Shahzad was trained by the Pakistani Taliban for forty days, in which
five were devoted to explosives training and yet, leaving aside his use of nonexplosive fertilizer, his device was
poorly constructed.107 He also made several errors in operational security, including failing to destroy one
VIN number on his vehicle, as well as leaving behind car keys and a prepaid cellphone used to receive calls
from Pakistan and to call the ªreworks store where he purchased bomb-making materials—errors that helped
to ensure he would be unable to repeat his attempt, despite his professed plans to do so.108 Even if
Shahzad’s training was cursory or incompetent, it underscores the necessity and difficulty of bringing together
professional experts with capable students.109 Finally, trainees still face the selflimiting conditions of their
untrained counterparts once they are back home, which will also complicate their efforts to undertake preoperational activity and execute attacks without first being detected; for all his overseas training, for example,
Zazi’s plot was still detected by authorities in the United States.
--- AT: Terrorists Get Info from Internet
Militants are unable to deploy information from the internet effectively --- especially
in insecure environments
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
The internet as a technical and instructional resource
The proliferation of online training and explosives manuals has raised serious concerns that these materials
could enhance the skills of aspiring terrorists. Director of the National Counterterrorism Center Michael
Leiter captured these worries, “[I]ncreasingly sophisticated English language jihadist propaganda remains
easily downloadable via the internet and provides young extremists with guidance to carry out Homeland
attacks.” As Gabriel Weimann contends, the internet constitutes an “online terrorism university.”68
These concerns aside, there are analytical and empirical reasons to question how much online resources can
improve militant capabilities. One set of problems relates to the quality of information available from training
and explosives manuals. In a survey of online Arabic- and English-language training materials, for example,
Anne Stenerson found that the information in her sample was often poorly conveyed or organized.69 In a
separate study, Jennifer Yang Hui found that many of the technical instructions for explosives appearing on
Indonesian militant websites were patchy and incomplete.70 Although analysts at Jane’s Intelligence Weekly
observed improvements over time in online materials, they nonetheless concluded as recently as 2006 that “it
is probably fair to say that the jihadist online infrastructure is still in its infancy.”71
In addition to shortcomings in training manuals, militants may have a difficult time employing technical
information effectively, especially when, as Michael Kenney describes, they lack practical experience and the
capacity to tailor abstract information to local conditions.72 Failed attacks in Europe (where attempted
attacks have been more plentiful than in the United States) provide numerous examples of these difficulties.
In 2006 two Lebanese men left suitcase bombs on German trains that failed to detonate because of errors in
the fabrication of the explosives. In 2007 a British engineer and medical doctor set gas cylinder bombs in
automobiles outside London nightclubs, which also exhibited technical flaws.73 Most striking is Nesser’s
finding: in his detailed survey of plots in Western Europe, Nesser could not find a single example of terrorist
cells developing operational capabilities, including building working bombs, solely from instructions
downloaded from the internet.74 Consider that even members of technically capable organizations often
make errors, including the leader of the Basque nationalist group ETA, who was killed by his own bomb,75
or the operatives maimed by the Provisional Irish Republican Army’s “own goals.”76
Moreover, in evaluating the implications of online manuals, it is essential to consider the security context in
which militants in the United States operate and how this bears on their capacity to capitalize on those
resources. In a permissive security environment, militants might be able to experiment, train over time, and
perfect their skills and capacity to translate abstract information into practical know-how. In a less secure
environment, however, efforts to practice, especially with explosive devices, generate risks that the militants
will be observed and exposed. Consider the network responsible for the Madrid bombings on March 11,
2004. When members of the network rented a farm house to train and practice using detonators, their
activities were noticed by the local population; although not reported, the fact that they were observed
underscores the risk inherent in such activities.77 In the United States, the 2003 Virginia paintball network
was uncovered as a result of a tip about its efforts to enhance its skills through paramilitary training.78 Even
seemingly inconspicuous bomb-making activities can be detected. Producing chemicals can leave telltale signs
on interior spaces, changing paint colors and generating fumes, which may be observed by alert hotel
operators or landlords.79
--- AT: Terrorists Will Use Remote Communications
Remote communications have limited utility for terrorists --- errors and increased
risk of detection
Brooks, 11 --- Associate Professor of Political Science. Ph.D., UC-San Diego
(Fall 2011, Risa A Brooks, “Muslim “Homegrown” Terrorism in the United States How Serious Is the
Threat?”, projectmuse) //Yak
Although arguably of limited use for building explosives and training, the internet could help militants
implement their attacks more effectively in another way: it could mitigate the risks of exposure inherent in
pre-operational activity, especially by facilitating communications and substituting for on-theground
surveillance.86 Maps and satellite imagery, for instance, can be helpful in gathering information about targets.
Shahzad, for example, reportedly tracked pedestrian trafªc in Times Square with real-time video feeds.87 Also,
communications may be facilitated through the use of methods such as “electronic dead-drops,” in which
militants leave messages in the draft folder of an email account and others retrieve the information without
sending the message.88
Nonetheless, there are limits to the utility of the internet for these purposes. Take, for example, the 2008
Mumbai attack by Lashkar-e-Taiba. In preparing for the attack, leaders employed satellite maps, GPS, mobile
phone applications, and a variety of other technologies.89 Those leaders, however, also sent an American,
David Headley, on five surveillance trips to Mumbai during which he scouted targets and hired fishermen for
private tours of the harbor to determine landing points for the attackers.90 Despite being trained in
surveillance techniques, Headley made several errors in a subsequent plot aimed at the Danish newspaper
Jyllands-Posten, and he was ultimately apprehended because of his activities in preparation for that attack.91
As one U.S. military study observes, figuring out the details of local targets and their defenses often requires
some physical surveillance.92 Consider the requirements of a 2004 plot in which two men sought to bomb
the subway station in Herald Square by leaving explosive devices in refuse containers and under benches.
Before undertaking the attack, the plotters “wanted to know the number and location of cops on the
platforms at different times of the day. Which areas were covered by video cameras? Since the likeliest place
to hide a bomb was a garbage can, they needed to know how many there were, where they were located, and
when they got emptied. And they needed to find the best path to go in and then get out quickly after planting
the device.”93 Growing advances in the technology and methodology of countersurveillance increase the
risks inherent in such surveillance activities.94
This discussion, in fact, underscores an overarching constraint facing militants in the United States, which
originates in the country’s significant investment in security and dearth of community sanctuaries. Assume
that an individual is able to connect with an acquaintance and they can securely interact and discuss in the
abstract a terrorist plot. As soon as they attempt to recruit others, seek training or resources, or undertake
surveillance, they create security risks that threaten to expose themselves to authorities. In this sense, terrorist
plotting in the United States may be self-limiting: the greater the number and layers of complexity in the
campaign, the more it requires resources and activities that render the plotters vulnerable to exposure.95
AT: First Amendment Adv
The First Amendment legitimizes hate speech and reaffirms status quo notions of
racial minority’s inferiority.
Delgado and Stefancic 97 – Delgado is the founder of critical race theory and professor of
civil rights and race theory at the University of Alabama School of Law; Stefancic is an
Affiliate Professor at the University of Alabama in Civil Rights, Constitutional Law, and
Critical Race Theory (Richard Delgado, Jean Stefancic, Must We Defend Nazis?, NYU Press,
January 1 1997, *fc)
In the last few years observers have noticed a sharp upsurge in intellectual activity surrounding the role of
speech and expression. Reformers have been demonstrating how hate speech and pornography injure
minorities and women. Postmodernists have been pointing out how every speech controversy can be
approached in at least two ways. (See chapter 4.) A the same time, defenders of tradition such as the ACLU
and other free-speech absolutists have been writing books and articles defending an unfettered First
Amendment, to which yet other observers such as Jack Balkin reply: they are caught up in “ideological
drift”—failure to notice how an instrument that once promoted dissent and other causes dear to liberals is
now wielded chiefly by white supremacists, pornographers, and other dubious allies.
Is this debate merely about who possesses the correct vision [idea]—about who is the real defender of the
right and the true? No. We think there is another, far more intellectually intriguing explanation for the rifts
and tugs-of-war over issues such as pornography and hate speech that are testing the limits of First
Amendment orthodoxy. In this other vision [idea], the skirmishes are not so much questions of standing
one’s ground, as some of the old-timers see it, or even of refining that ground slightly, as some want to make
it appear. Rather the ground itself is shifting. The prevailing First Amendment paradigm is undergoing a slow,
inexorable transformation. We are witnessing the arrival, nearly seventy years after its appearance in other
areas of law, of First Amendment legal realism. The old, formalist views of speech as a near-perfect
instrument for testing ideas and promoting social progress is passing into history. Replacing it is a much more
nuanced, skeptical, and realistic view of what speech can do, one that looks to self- and class interest,
linguistic science, politics, and other tools of the realist approach to understand how expression functions in
our political system. We are losing our innocence about the First Amendment, but we will all be wiser, not to
mention more humane, when that process is complete.
The Transition
Early in American history, we thought the First Amendment was the crowning jewel of our jurisprudence. As
recently as 1970, scholars de-scribed our system of free expression in sweeping, exalted terms.; But shortly
thereafter some writers began expressing doubts about whether First Amendment doctrine was capable of
delivering on its lofty promises.4 In the last few years, under the impetus of challenges from critical race,
feminist, and other writers, the trickle of doubts has turned into a flood.' The transition to the new paradigm
is far from complete. Those who write in the new tradition still expend much energy defending themselves
from charges that they are Satanic, forgetful of history, deluded, in league with fascism, etc.6 It is impossible
to predict what the new understanding of the First Amendment will look like when fully mature, just as the
early Realists, seventy years ago, scarcely could have predicted how their move-ment would lead the way to
clinical legal education, perspectivism, critical legal studies, and elite law reviews. With these cautions, we
offer here the themes and outlines of a new conception of the First Amendment. We make no claim to be
comprehensive; the list may be personal to us.
The New First Amendment Legal Realism First, the paradigm includes an awareness of the First
Amendment's limitations. Early in our republic, we made grandiose claims for what the system of free
expression could do.7 But recently, scholars have shown that our much-vaunted marketplace of ideas works
best in connection with questions that are narrowly limited in scope. Is this parking space safer to leave the
car in than another? Does a heavy object fall faster than a light one in a vacuum? Would a voucher schoolfinance scheme ad-versely affect the poor? (See chapter 5.) With such clearly bounded disputes, free speech
can often help us avoid error and arrive at a consen-sus. But with systemic social problems like racism
and sexism, the market-place of ideas is much less effective. These broad-scale ills are embedded in the
reigning paradigm, the set of meanings and conventions by which we construct and interpret reality. Someone
who speaks out against the racism of his or her day is seen as extreme, political, or incoherent. Speech, it
turns out, is least effective where we need it most.
A second theme of First Amendment legal realism is the role of free expression in legitimating the status
quo.' If, as a starting point, we posit a perfect marketplace of ideas, then, according to the old paradigm, the
current distribution of social power and resources must be roughly what fairness and justice would dictate.
Our more energetic European ideas, for example, competed with others and won: it was a fair fight. But, of
course, it was not fair: communication is expensive, so the poor are often excluded; the dominant paradigm
renders certain ideas unsayable or incomprehensible; and our system of ideas and images constructs certain
people so that they have little credibility in the eyes of listeners.
This leads to a third component of the new approach, namely that language and expression can
sometimes serve as instruments of positive harm. Incessant depiction of a group as lazy, stupid, and
hypersexual—or ornamental for that matter—constructs social reality so that members of that group are
always one-down.' Thereafter, even the most scrupulously neutral laws and rules will not save them from
falling further and further behind as private actions compound their disadvantage. (See chapter 5.)
Affirmative action becomes necessary, which in turn reinforces the view that members of these groups are
naturally inferior (because they need special help). Pornography and hate speech are the two most visible
fronts on which the fight to make the legal order recognize and prevent these harms is waged, often against
great resistance. But when powerful groups find a particular type of speech offensive and likely to render
them one-down, they blithely pass a law to curtail it. We rarely notice these "exceptions" and special
doctrines, however, because they are time-hon-ored and second nature. Of course there would be an
exception for state even label, secrets, plagiarism, false advertising, and dozens of other types of speech, we
say. But one to protect eighteen-year-old black undergraduates at dominantly at white institutions? Oh no, we
say, the First Amendment must be a seamless web.10
1nc Religion Freedom Adv
The chilling effect isn’t real – Muslims respond to surveillance with increased
visibility.
Bayoumi 12 – Associate Professor of English at Brooklyn College, City University of New York, with a
Ph.D. in English and Comparative Literature from Columbia (Moustafa Bayoumi, The Nation, “Fear and
Loathing of Islam,” June 14 2012, http://www.thenation.com/article/168383/fear-and-loathing-islam, *fc)
Does this mean that the United States is an Islamophobic country? Of course not. Large support for
American Muslims exists in many quarters [see Laila Al-Arian’s essay in this issue, page 31]. Polls may suggest
that about half the population is anti-Muslim, but that leaves half that isn’t. In many quarters of the country,
there is genuine, not suspicious, interest in American Muslims and the realities they face, as evidenced by the
fact that TLC produced All-American Muslim. Aasif Mandvi’s contributions to The Daily Show routinely
deflate the power of this contemporary prejudice, and libraries, museums, classrooms and houses of worship
across the country now regularly include Muslims and Islam in their programming in an attempt to further
understanding and combat bigotry.
American Muslims have responded to events over the past decade and the expansion of an antiMuslim network largely by being more, not less, visible. The number of mosques grew 74
percent over the past decade, despite the opposition Muslims sometimes confront in their
construction. Even if a 2011 poll found that 48 percent of American Muslims reported experiencing
discrimination in the previous twelve months, they also showed more optimism than other Americans in the
poll that their lives would be better in five years (perhaps, in part, because of today’s discrimination). The
guiding belief in the American Muslim community today is that the country will recognize that Muslims have
always been and will continue to be a part of America.
An ordinary life is more meaningful than it sounds. It signifies being able to live your life as you define
yourself, not as others define you, and being able to assume a life free of unwarranted government prying. In
fact, ordinariness is the foundation of an open society, because it endows citizens with a private life and
demands that the government operate openly—not the other way around, which is how closed societies
operate.
IRF programs have existed for decades and are expanding
Mandaville and Silvestri, 15 – *Peter, Professor in Government & International Affairs at George
Mason U and ** Sara, Senior Lecturer in Religion and International Politics at City University London and
Director of Research at U of Cambridge (“Integrating Religious Engagement into Diplomacy: Challenges &
Opportunities” 1/29/15, Brookings Institution,
http://www.brookings.edu/~/media/research/files/papers/2015/01/29-religious-engagement-diplomacymandaville-silvestri/issuesingovstudiesmandavillesilvestriefinal.pdf,//BR/)
The last few years have witnessed a
flurry of interest and activity around religion and religious engagement in
diplomatic circles on both sides of the Atlantic. In 2013, the US State Department established a new Office of FaithBased
Community Initiatives as part of a broader national strategy on religious leadership and faith community engagement led by the White House’s
National Security Council.1 Within the same year, the
European Union issued new guidelines on the promotion and
protection of freedom of religion or belief; the Canadian Department of Foreign Affairs, Trade and Development
opened a new office focused on similar issues; and the French Foreign Ministry sponsored a major conference on the question of
religion and foreign policy with a keynote address delivered by Foreign Minister Laurent Fabius. <These
moves are but the latest in a
much longer story of efforts on the part of foreign policy leaders to integrate greater attention to religion in
the conduct of diplomacy. Since the end of the Cold War and the accompanying upsurge in world events driven by questions of identity and
culture, observers of international affairs have been searching for answers and solutions in religion. In 1995, Doug Johnston and Cynthia Sampson
published Religion: the Missing Dimension of Statecraft, a pioneering book that sought to make a case for including a focus on religion within the
practice of diplomacy.2 Regarded at the time as somewhat radical, the fact that the volume’s contents would raise very few eyebrows today speaks to
just how prescient it was. There
is now a considerable track record of diplomats having worked both formally and
informally to include a focus on religion and religious engagement in their work. For example, the advancement of
religious freedom has been a formal component of U.S. foreign policy since the late 1990s with the passage of
the International Religious Freedom Act (IRFA), which created a United States Commission on International
Religious Freedom as well as an Office of International Religious Freedom within the State Department. Certain domains of foreign
policy have seen more attention paid to the question of religion than others. The United States Agency for
International Development (USAID), for example, has had an office focused on faith-based actors in
development since 2002. Since 9/11, the national security services of the United States and many of its European
partners have devoted enormous time and resources to the question of religion and violent extremism—and
almost exclusively with a focus on the Muslim world.
IRF fails – religious presumptions and the constitution
Mandaville and Silvestri, 15 – *Peter, Professor in Government & International Affairs at George
Mason U and ** Sara, Senior Lecturer in Religion and International Politics at City University London and
Director of Research at U of Cambridge (“Integrating Religious Engagement into Diplomacy: Challenges &
Opportunities” 1/29/15, Brookings Institution,
http://www.brookings.edu/~/media/research/files/papers/2015/01/29-religious-engagement-diplomacymandaville-silvestri/issuesingovstudiesmandavillesilvestriefinal.pdf,//BR/)
effort to better appreciate the role of religion in foreign affairs must involve at least some
modicum of willingness to examine the assumptions we hold about the place of religion in society. This is not
about advocating for diplomats to accept as correct or appropriate a more expansive role for religion in society. Rather, it is about pointing
out that it may only become possible to see and appreciate the bigger picture of religion’s role in some
societies if we first set aside our own particular set of lenses on this issue. For some—particularly in the United
States—the aversion to mixing religion and diplomacy arises not out of an ideological commitment to
secularism but more from concerns about the need to respect the legal sense of secularism embedded in the
US constitution. The key question here is about whether the so-called “establishment clause” of the First
Amendment, which prohibits any act that would indicate a specific religious preference on the part of the
federal government—applies overseas. Case law history is mixed on this issue, but the overall trend is one that suggests a tendency in
<Properly undertaken, any
American jurisprudence to view the establishment clause as indicative of a universal principle.7
The plan fails – can’t resolve Islamophobia on a state or local level
Ghazali, 14 - Abdus Sattar, Chief Editor of the Journal of America (“2013: Another Hard Year For
American Muslims” Countercurrents, 1/2/14, http://www.countercurrents.org/ghazali020114.htm,//BR/)
Anti-Sharia (read anti-Islam) bills Anti-Muslim
prejudice is now institutionalized at the state level, as well. Over the past two
years, lawmakers in 32 legislatures across the country have targeted Muslims by moving to ban Islamic law, or
“Shariah.” Seven states - Arizona, Kansas, Louisiana, North Carolina Oklahoma, South Dakota and Tennessee - have signed the proposed ban into
law, despite the inability of legislators to name a single specific case in which a court ruling based on Shariah law was allowed to stand. The
bills
were patterned on a template produced by a leading Islamophobe David Yerushalmi who founded an organization in 2006
with the acronym SANE (the Society of Americans for National Existence) with the aim of banishing Islam from the US. He proposed a law
that would make adherence to Islam a felony punishable by 20 years in prison. What is the fall out of the antiSharia campaigns? Such campaigns increase bias among the public by endorsing the idea that Muslims are
second-class citizens. They encourage and accelerate both the acceptability of negative views of Muslims and the expression of those negative
views by the public and government agencies like the police. Anti-Muslim sentiment has not only manifested itself through
mosque arsons, assaults, murders and invariably hostile rhetoric from society’s extreme fringes. It has also
become a permanent fixture of the very institutions that should provide safeguards against those things. The
fallout of anti-Islam and anti-Muslim rhetoric, which is socially acceptable, appeared in different spheres. Hate
crimes against Muslims or perceived to be Muslim is not an uncommon phenomenon while Mosques also
became a target of hate. NYPD declares mosques as terrorist organizations Amid the concerted Islamophobic campaigns the America
Muslim community was stunned to know that the New York Police Department (NYPD) has secretly designated
mosques as “terrorist organizations.” The Associated Press reported on August 28 that the designation allowed the police to use
informants to record sermons and spy on imams, even without any evidence of criminal activity. According to the AP report, designating an
entire mosque as a terrorism enterprise means that anyone who attends prayer services there is a potential
subject of an investigation and fair game for surveillance. The AP report further said: “Since the 9/11 attacks, the NYPD
has opened at least a dozen "terrorism enterprise investigations" into mosques...... The TEI, as it is known, is a police tool
intended to help investigate terrorist cells and the like. Many TEIs stretch for years, allowing surveillance to continue even though
the NYPD has never criminally charged a mosque or Islamic organization with operating as a terrorism
enterprise." It may be pointed out that in August 2011, the AP exposed the NYPD spy program, which is allegedly being conducted with the
assistance of individuals linked to the CIA. The AP reported that the NYPD is using covert surveillance techniques “that would
run afoul of civil liberties rules if practiced by the federal government” and “does so with unprecedented help
from the CIA in a partnership that has blurred the bright line between foreign and domestic spying.”
Understandably, on June 18, 2013, civil rights groups filed a federal lawsuit charging that the NYPD's Muslim
Surveillance Program has imposed an unjustified badge of suspicion and stigma on hundreds of thousands of
innocent New Yorkers. It was filed on behalf of religious and community leaders, mosques, and a charitable organization that were all swept
up in the NYPD's dragnet surveillance of Muslim New Yorkers.
No spillover post-plan – Obama, Congress, and State Department are ineffective –
empirics prove
Farr 11 – Professor of Religion and International Affairs – Georgetown's Edmund A. Walsh School of
Foreign Service and Director (Thomas F., Berkley Center for Religion, Peace, and World Affairs “Preventing
Another Attack: International Religious Freedom”, 9/23/11,
http://berkleycenter.georgetown.edu/posts/preventing-another-attack-international-religious-freedom, //11)
Given the evidence that religious freedom can contribute to de-radicalization, American
foreign policy should be integrating
international religious freedom into its governance strategies for the broader Middle East. Unfortunately, it is
failing to do so. In his June 2009 Cairo speech, President Obama said that “freedom of religion is central to the ability of peoples to live
together.” He’s right; but words do not substitute for policy action. It took the Obama administration two and a
half years to get in place its ambassador-at-large for international religious freedom—the senior official who implements
American policy on religious freedom—and when the ambassador finally stepped into her office, she found herself
working for a lower-ranking official, far removed from the Secretary of State. While other similarly ranked officials,
such as the ambassador-at-large for women’s issues, work directly under Secretary Clinton, the ambassador for religious freedom remains isolated and
under-resourced. Meanwhile, minority Christians, disfavored Muslims, and other groups are being persecuted around the globe. In 2009, the Pew
Forum reported that 70 percent of the world’s population lives in countries where their religious freedom is severely restricted, often by violent
persecution. An August update says that the problem is getting worse. Political upheaval in the Middle East will likely lead to catastrophe unless the
religion-state problem is resolved. Yet the administration does not see the urgency. Obama and Clinton have prioritized other foreign policy issues,
investing the administration’s energy and resources in projects like climate change research, closing Guantanamo, “engaging Islam,” and
internationalizing gay rights. Of late, Congress also has done little to advance the cause of religious freedom. In
1998, it passed the International Religious Freedom Act, which provided the statutory basis for U.S. policy. Recently, a bipartisan group in the House
sponsored a bill with amendments that would force the State Department to prioritize religious freedom—putting the ambassador under the Secretary,
allocating democracy funding to religious freedom, and mandating training for American diplomats. Unfortunately, neither
Senate Democrat
nor House Republican leaders appear to see the value of passing these amendments. In mid-September, all
State Department language was summarily stripped from the bill, leaving only the reauthorization of an
advisory panel called the Commission on International Religious Freedom. The Commission is important and
should be reauthorized, but it is only an advisory body, unable to drive U.S. policy.
Cultural Movements are emerging to challenge islamophobia
Haddad and Harb 6-12-14 – Yvonne Yazbeck*, The Center for Muslim-Christian Understanding,
Georgetown University, and Nazir Nader**, Department of Arabic and Islamic Studies, Georgetown
University, (“Post-9/11: Making Islam an American Religion,” Religions, http://www.mdpi.com/20771444/5/2/477/htm,//BR/)
10. American Muslims Engaging in New Ways American
Muslims have responded to Islamophobia and shari‘aphobia in
variegated and creative ways [111]. They have assumed a redemptive posture in combatting misinformation about Islam and American
Muslim identity while reclaiming each by supporting, participating in, and initiating community and civic engagement projects as well as contributing to
U.S. politics, popular culture, and an ongoing national interfaith dialogue. American
Muslims today emphasize what they see as
shared American and Islamic values of honoring and celebrating difference. They also envision their efforts
to integrate Islam into the tapestry of American society as a way of protecting themselves from the phobias
that adversely affect and threaten their communities. In 2006, the first Muslim congressman in the U.S., Keith
Ellison of Minnesota, was sworn into office on a copy of Thomas Jefferson’s Qur’an from 1734, after much
consternation over whether or not an oath is valid on any scripture other than the Bible [112]. His experience
paved the way in 2008 for Andre Carson, democrat from Indiana, the second Muslim elected to Congress whose campaign and election were
much quieter and drew fewer questions about his religion [113]. American Muslims today understand newfound forms of
cultural engagement and civic activism to be important avenues for securing the right of religious freedom in
the name of the Constitution and the Bill of Rights for American Muslims. U.S.-based partnerships like the
501(c)(3) Clergy Beyond Borders (CBB), founded jointly by Muslim, Jewish, and Christian American clerics, further
illustrate this larger trend among forward-looking Muslim Americans and their counterparts in other faiths to
integrate Islam into America’s cultural and religious fabric. The CBB website emphasizes the organization’s vision that “all
religions contain a message of commitment to improving the world” [114]. CBB advocates “mutual recognition among religious communities, seeking
not to remove meaningful borders between them, but rather to build bridges of understanding and cooperation” [114]. Like American Muslim youth
organizations, part
of the goal of CBB is to educate non-Muslims and Muslims about the uniquely democratic,
pluralistic, and modern nature of Islam, or at least American Islam [114,115]. Muslim American youth have set out
to integrate Islam into the American popular conception of religious pluralism and diversity through the modern avenues
of networking, blogging, events on college campuses, and conferences and seminars open to the public that cater to non-Muslims around the country
[116]. Other
Muslim-based organizations, including the United Muslims of America (UMA), the American
Muslim Alliance (AMA), the Council on American Islamic Relations (CAIR), the Muslim Ummah of North America
(MUNA), and the Muslim Public Affairs Council (MPAC), began increasingly to support interfaith engagement across the
United States after 9/11 [117]. Appropriating “One God We Trust,” UMA’s website features a full section devoted to interfaith activism. The
description of the section explains that UMA sees “America as one nation, endeavoring to create one family through interfaith understanding. We
promote racial and religious harmony through religious institutions, projecting an image of America as a world leader who stands up for the human
rights for all communities.” Eboo Patel, well-known for his work in interfaith around the world, drew a lot of attention with the establishment of the
Interfaith Youth Core that some people likened to a “Muslim Peace Corps” interfaith organization [117]. American
Muslims have found a
kind of special kinship with American Jews in working toward greater interfaith cooperation [118]. Not to be left in
the dust of the rapid advancements in post-9/11 Muslim interfaith engagement, ISNA president Mohamed Magid and a delegation of imams from
around the world, along with Congressman Keith Ellison,
traveled with the U.S. State Department to the Wall of Death in
Auschwitz, Germany to offer prayers where many thousands of Jewish prisoners were killed during the Nazi Holocaust [119]. Muslim-Christian
alliances in the 12 years after 9/11 have also expanded widely and, along with improving Muslim-Jewish relations, may help to create a more accepting
space for American Muslims in U.S. society in the long term [120]. American Muslim communities, particularly mosques, which may not be directly
affiliated with interfaith organizations, have also opened their doors to Americans of other faiths to join in worship services as well as holiday
celebrations. American Muslims have also led prayer services and vigils at times of national mourning in the last 12 years, whether or not the assailant
was allegedly Muslim [121]. Ramadan, the holy Muslim month of fasting, provides an opportune venue for interfaith engagement at meals where
Muslims are encouraged to break the day’s fast with their neighbors [122]. An important feature of American Islam in the last 12 years has also been
intra-faith dialogue and engagement—“intra-faith” in this case refers to work by American Muslims on improving Sunni-Shi‘a
relations. The website The American Muslim (TAM), run by Sheila Musaji, a leader in developing frameworks of understanding American Islam,
quotes a 1959 fatwa, or religious treatise, by Shaikh Mahmood Shaltoot of Al-Azhar University: “Islam does not require a Muslim to
follow a particular Madh’hab (school of thought). Rather, we say: every Muslim has the right to follow one of
the schools of thought which has been correctly narrated and its verdicts have been compiled in its books”
[123]. The excerpt goes on to specify that the Shi‘ite school of thought is “religiously correct to follow in worship as are other Sunni schools of
thought.” Musaji’s piece includes a nearly exhaustive list of articles and links to websites dedicated to Sunni-Shi‘a, or “SuShi”, reconciliation, mutual
understanding, and intra-faith engagement [124]. This too marks a significant shift in American Muslim attitudes since 9/11. Whereas before
9/11, American Muslims either ignored Sunni-Shi‘a issues or assumed sectarianism was not a problem in the
United States, post-9/11, American Muslims are acknowledging that this is an important area with
increasingly profound consequences for the world community of Muslims [125]. In fact, the sphere of Sunni-Shi‘a intrafaith activism may be one field in which American Muslims are leading the way forward internationally. Amid rising tensions between Sunni and Shi‘a
Muslims in Iraq, Pakistan, Lebanon, Syria and other countries where sectarian violence has spilled over into civil war and attempts at genocide, a group
of American Muslim scholars and Imams were convened by ISNA in September 2013 to sign the “Washington Declaration Uniting Shi‘ah and Sunni
Scholars of North America” [126]. According to one of the signatories, “this declaration rejects all forms of sectarian violence between schools of
thought within Islam… It calls for the respect of religious symbols of all sects of Islam… (and) for dialogue between the schools of thought and calls
for imams to carry this message of mutual respect to their communities” [127]. ISNA president Mohamed Magid asserted that “ISNA is a platform for
the unity of Muslims—whatever brings Muslim together strengthens all of them.” Among some of the most active groups of American Muslims in the
pre- and post-9/11 efforts to integrate Islam into the mainstream of American psyches and culture have been activist youth programs [128]. The
February 2010 Purple Hijab Day was promoted as an annual event where women don purple headscarves to end domestic violence “in our ummah,” a
reference to the Muslim community [129]. Green Muslims in the District, based in Washington D.C., have evolved from an online blog to a full
website where events are coordinated, such as Zero Trash Parties and networking mixers for Muslim green activists to meet and pool efforts [130].
The nationwide Ramadan Fast-a-Thon has quickly developed a positive legacy on campuses across the country. Muslim Student Associations typically
organize a day of fasting where non-Muslims are invited to join their Muslim classmates in abstaining from food and water from sunup to sundown
and are then welcomed to partake in a special meal to break the fast (iftar) and accompanying prayers. They donate the funds they gather to a charity.
Students spend the day in communication and many participants have explained that Fast-a-Thon helped them better relate to Muslims in America and
at their universities.10 Other programs established by American Muslims are run by professionals but targeted toward American Muslim youth, such as
IMAN’s Takin’ it to the Streets, Patel’s above-mentioned Interfaith Youth Core (IFYC), and the Muslim Public Service Network (MPSN) [131].
More and more Muslim college students are finding creative ways to reach out to their local communities
beyond their campuses as well. Georgetown University’s Muslim Chaplaincy, one of only 13 such programs
in the United States, offered a “Muslim Alternative Spring Break” for the first time in March 2012. After a competitive
selection process, 12 Muslim undergraduate students led by their campus Imam traveled to Parkersburg, West
Virginia to work with Habitat for Humanity building homes for a family in need. Students spent their entire Spring Break
in service working side-by-side in the community. Parkersburg is a city with likely very little to no direct exposure to Islam or Muslims in the recent
past. The Georgetown group attended church services in solidarity with the local community and baked cookies for the congregation after the service.
The church community broke bread with the Muslim
students before the week’s end, and they are working to maintain
strong ties and possibly return to Parkersburg the following year. Their service was noted by local newspapers and television
news media who pointed out that these students willingly came to snowy Parkersburg rather than enjoy a more “traditional” Spring Break [132]. As
American Muslims come to define Islam in America, they are also poised to contribute to Islamic scholarship
and the training of Imams. In 2008, the Zaytuna Institute, founded in 1996 in Berkeley, California by Muslim “rock stars” Hamza Yusuf,
Zaid Shakir, and Hatem Bezian, became Zaytuna College. The college follows an integrated curriculum of Islamic studies, Arabic language, and liberal
arts including U.S. history and literature. Its motto is “Where America meets Islam,” and its goal is to be accredited by the University of California
system—it compares itself to private religiously-based universities founded by American Jews and Christians [133].
--- XT: International Religious Freedom Fails
The government is not equipped to promote Religious freedom diplomatically
Mandaville and Silvestri, 15 – *Peter, Professor in Government & International Affairs at George
Mason U and ** Sara, Senior Lecturer in Religion and International Politics at City University London and
Director of Research at U of Cambridge (“Integrating Religious Engagement into Diplomacy: Challenges &
Opportunities” 1/29/15, Brookings Institution,
http://www.brookings.edu/~/media/research/files/papers/2015/01/29-religious-engagement-diplomacymandaville-silvestri/issuesingovstudiesmandavillesilvestriefinal.pdf,//BR/)
One final challenge relating to institutional capacity has to do with the structure and relatively short timelines—often two years—that govern
diplomatic postings. This is not a new problem, and it is not at all uncommon for Foreign Service officers to complain that such brief
tenures
make it difficult for diplomats to develop sustained competencies. They arrive in a new position or posting,
spend the better part of a year acculturating and getting up to speed, and then deliver at full capacity for only
a few months before starting to focus on the next assignment and a new transition. This problem is particularly
pronounced when it comes to specialized skill sets such as those required for effective religious engagement. Rather than cultivating
institutional memory about how a focus on religion can help to advance the objectives of a particular bureau
or overseas post, it is far more common for the departure of a foreign affairs officer competent in religious
affairs to create a situation where that office has to start over from scratch when the next designee comes into position.
The fact of the matter is, however, that very few Foreign Service officers and other diplomats possess either sufficient
understanding of religion or the necessary skillsets to effectively undertake religious engagement. This fact speaks
to the need for any serious effort at integrating religion into foreign policy to do more than just create new functionaries or offices with a religious
designation. Rather, it
is crucial to build an awareness of religion and the many ways it bears on foreign policy and
national security objectives into the systems and curricula used for training and preparing professional
diplomats.
Structural trends – including restrictions in other countries – prevent effective reform
of religious freedoms abroad
George 14 – holds the McCormick Chair in Jurisprudence at Princeton University, founding director of the
James Madison Program in American Ideals and Institutions at Princeton University, Vice Chairman of the
US Commission on International Religious Freedom (Robert, Foreign Policy Research Institute, “The State
Of International Religious Freedom and Why It Matters”, November 2014,
http://www.fpri.org/articles/2014/11/state-international-religious-freedom-and-why-it-matters, //11)
When it comes to state hostility toward religions, some of these governments, like North Korea or China, are secular
tyrannies which
consider all religious beliefs as potential competitors of state secularist ideology such as Communism.
Others, like Iran, Saudi Arabia, and Sudan, are religious tyrannies which enthrone one religion or religious
interpretation over all others, which they see as rivals to the one they favor. Still others, like Russia, are a hybrid of secular and religious.
In North Korea, the government severely represses religious activity, and individuals who defy it are arrested,
imprisoned, tortured, or executed. In China, the government continues its persecution of Tibetan Buddhists
and Uighur Muslims. To stem the growth of independent Catholic and Protestant groups, Beijing has arrested
leaders and shut churches down. There have been reports of officials even going after registered churches, tearing down crosses and
church steeples. Members of Falun Gong, as well as those of other groups deemed “evil cults,” face long jail terms, forced renunciations of faith, and
torture in detention. In
Iran, the government has executed people for “waging war against God,” while relentlessly
targeting reformers among the Shi’a Muslim majority, as well as religious minorities, including Sunni and Sufi Muslims,
Bahai’s, and Christians. Pastor Sayeed Abedini remains in prison, and the regime has stirred up anti-Semitism and promoted Holocaust denial. Saudi
Arabia completely bans the public expression of religions other than Islam. Not a single church or other non-Muslim house of worship exists in the
country. In addition, the Kingdom enthrones its own interpretation of Sunni Islam over all others and has arrested individuals for apostasy, blasphemy,
and sorcery. Sudan continues its policy of Islamization and Arabization, imposing Shari’ah law in Muslims and non-Muslims alike, using amputations
and floggings for acts of so-called indecency and immorality and arresting Christians for proselytizing. And finally, Russia has a secular government but
favors the Moscow Patriarchate of the Russian Orthodox Church while persecuting competitors, such as Jehovah’s Witnesses, or those it deems a
threat to the state, such as Muslims. Regarding state sponsorship of radical ideology which targets others’ religious freedom, Saudi
Arabia
continues to export its own extremist interpretation of Sunni Islam through textbooks and other literature
which teach hatred and even violence toward other religious groups. Regarding state enforcement, Egypt and Pakistan
enforce anti-blasphemy or anti-defamation codes, with religious minorities bearing the brunt of the enforcement. And finally, regarding state failure to
protect religious freedom, the abysmal record of the governments of Burma, Egypt, Iraq, Nigeria, Pakistan, and Syria exemplifies those of nations
which do not protect their citizens against religion-related violence. In
Burma, sectarian violence and severe abuses against
Christians and Muslims continue with impunity. The plight of the Rohingya Muslims is especially alarming and heartbreaking, as
countless numbers are stateless, homeless, and endangered. In Egypt, Cairo has failed repeatedly over time to protect religious minorities, including
Coptic Orthodox and other Christians, Baha’is, Shi’a Muslims, and dissident Sunni Muslims from violence or to bring perpetrators to justice. In Iraq,
the rise of the so-called “Islamic State” is a major consequence of the government’s continued failure to protect the lives and freedoms of nonMuslims minorities such as Christians and Yazidis, as well as Shi’a Muslims and dissenting Sunni Muslims. In Nigeria, as Boko Haram attacks
Christians, as well as fellow Muslims, the government continues its failure to prosecute perpetrators of religiously-related violence that has killed more
than 14,000 Nigerians, both Christian and Muslim, since the turn of the century. In Pakistan, the government’s continued failure to protect Christians,
Ahmadis, Shi’a, and Hindus, has created a climate of impunity resulting in further vigilante violence. And in Syria, a civil war triggered at least in part
by the Assad regime’s refusal to respect human rights and embrace reform has devolved into a sectarian religious conflict. We now have a combination
of state tyranny and state failure to protect life and freedom. While the Assad regime targets Sunni Muslims, its terrorist opponents (such as the
“Islamic State”) are targeting those on all sides, from Sunnis and Alawites to Christians, who oppose their dictates. It is a complete nightmare. THE
TOTALITARIAN IMPULSE As
we survey this bleak landscape for religious freedom abroad, we detect a number
of unmistakable patterns and trends. We see the rise of violent religious extremism, largely through
radical Islamism, and its continued conflicts with the majority of Muslims, as well as with non-Muslim
religious minorities. We see the continued persecution of Christians—a persecution the sheer size and scope of which is
astonishing. And we see the stubborn persistence and in some places revival of anti-Semitism across countries
and cultures. Let me offer a few words on these disturbing patterns and trends. It has often been said that radical Islamism and
its leaders seek to recover a mythical golden age from a far-distant past. While this is undoubtedly the case, we must also
realize that they are also propelled by an inescapably modern—and terrifying—idea. Surfacing in the last century, that idea came to be
known as totalitarianism. What defines totalitarianism is a series of demands which may be summarized as follows: Give fanatical leaders
and movements absolute and permanent authority. Make these leaders and their followers into virtual gods, charged with seizing control of history and
transforming humanity itself. Release these leaders and their followers from accountability to any law or institution, belief or custom, and moral norm
or precept. Grant these leaders and their followers complete control of every facet of human existence, from outward conduct to the innermost
workings of conscience. For the better part of a century, those promoting and exploiting this malignant idea have advanced it by dressing it up in a
variety of costumes and by hijacking various ideals and institutions and putting them to work in its cause. In the 1930s and 1940s, it threatened
humanity through Nazism and other forms of fascism which exploited the concept of race and the ideology of nationalism. After World War II,
totalitarianism posed its greatest threat through Communism, which exploited the concepts of class and class consciousness and highjacked people’s
strivings for social justice. By the close of the 20th century, these movements had committed every crime under the sun, triggering the deaths of nearly
150 million human beings. They also waged war against the rights and duties of conscience, leaving behind a world where to this day, most people live
in countries that are hostile—in many cases deeply hostile—to freedom of religion or belief. Today, that same totalitarian impulse which drove Nazism
and Communism has hijacked religion as its latest vehicle, creating radical Islamism. From the “Islamic State” in Iraq and Syria to the extremist
mullahs in Iran, and from al Qaeda to the Taliban, these new totalitarians pose similar threats to the world. Displaying utter contempt for the rule of
law and for any distinction between combatants and non-combatants in the conduct of war, they target civilians and commit mass torture and murder,
precisely as the Nazis and Communists did. Many observers presume that these movements and their leaders simply represent Islam on steroids. Some
even claim they represent the “true Islam.” I submit to you today that they are mistaken. Granted, the history of nearly every religion—including
Islam—contains periods of despotism and bloodshed. Granted, every major religion has had to go through periods of reform or clarification of some
of its beliefs and ideas. Granted, as so many Muslim reformers have stated repeatedly, Islam should be no exception. But let us be clear. No civilized
religion—certainly no creed in the tradition of ethical monotheism—including Islam, ever stood in principle, as the Nazis and Communists did, and as
the “Islamic State” does today, for what amounts to sheer, unadulterated nihilism—the idea that any and every means—torture, rape, prostitution,
drug sales, the slaughter of innocent children and defenseless elderly people, genocide—may be carried out in the cause of regional hegemony and,
ultimately, world domination. No world religion ever granted any human being, group, or government the permanent right in principle to flout any
rule, break any law, or commit any atrocity at will. In other words, the
struggle we face is not that of one religion against
another, nor of religion against humanity. Rather, it is a struggle that pits lawlessness and tyranny against
basic decency and dignity. And in this struggle, reformers must be applauded for their resolute stand not only to reform and clarify from
within, but to stand against the hijacking of Islam by those driven by the same impulse that drove the likes of Hitler and Stalin, Mao Zedong and Pol
Pot. They must rip away radical Islamism’s religious mask – revealing its idolatrous soul before the world. At the hands of violent religious extremists,
Christians especially face severe persecution. Ironically, it is in the Middle East, the cradle of Christianity, that both persecution and the flight of the
persecuted cloud the future of the world’s oldest Christian communities. Unless circumstances change, many are asking whether a graveyard will one
day replace the cradle. In Egypt, violence against Coptic Christians reached alarming proportions in recent years. In Iraq, severe violence against
Christians, which peaked after Saddam Hussein’s fall, has returned with a vengeance. The “Islamic State” is principally to blame for that. Once home
to approximately one million Christians, Iraq has half that number today. Many Iraqi Christians sought refuge in Syria, where fellow Christians and
Muslims—from Sunnis to Shi’a, including Alawites—once had co-existed peacefully. We all know how that turned out. For Christians, Syria’s civil war
has been nothing short of calamitous. In Saudi Arabia and Iran, it is mainly the government that severely represses Christians and other religious
minorities. And just outside the Middle East, in Pakistan, attacks against Christians are escalating. In September 2013, suicide bombers launched the
worst anti-Christian attack in Pakistan’s history, assaulting All Saints Church in Peshawar, leaving nearly 100 dead and more than 150 other
parishioners wounded. In looking at the plight of Christians, especially those in the Middle East, those who know Jewish history see something
hauntingly familiar. Iraq’s Jewish community provides a somber example of what the future may hold. Like Iraq's Christians, the Jews were there for a
long time—perhaps as many as 20 centuries or even more. As of 1947, the country's Jewish population exceeded 50,000. Today only a handful remain.
People professed shock when it was revealed that in 2010, Mohammed Morsi, who was later elected Egypt’s president, depicted the Jewish people as
“descendants of apes and pigs,” whom Egyptian children and grandchildren must be taught to hate “down to the last generation.” Yet his comments
were no worse than those of Iranian leaders, who denied the Holocaust and allowed state-run media to broadcast anti-Semitic messages and hateful
cartoons. Nor are they worse than the lies and defamations against Jews and Judaism that one finds in the media elsewhere in the region, including in
Egypt itself. Yet it would be a mistake to say that anti-Semitism is confined to the Middle East. In post-Soviet Russia, skinhead groups commit acts of
anti-Semitism in the name of Russian nationalism. In Belarus, the anti-Jewish utterances of President Lukashenko and the state media are accompanied
by a failure to identify or punish the vandals of Jewish cemeteries and other property. Even in Western Europe, anti-Semitism has been making a
comeback. Since 2000, anti-Jewish graffiti increasingly have appeared in Paris and Berlin, Madrid and Amsterdam, London and Rome, and synagogues
have been vandalized or set ablaze in France and Sweden. In Malmo, Sweden, physical attacks fueled a Jewish exodus. In France, according to a report
by the security unit of its Jewish community, there were 614 anti-Semitic incidents in 2012, compared to 389 in 2011. Who are the perpetrators of
these hateful acts in Europe? Some are neo-Nazis. Others claim to act in the name of Islam. Compounding the problem are four factors. First,
European officials remain reluctant to identify the ideological or religious motivations of
perpetrators. Second, surveys show that anti-Semitic attitudes among Europe’s population are shockingly
widespread. Third, these surveys confirm that some of this bias manifests itself in harsh and unbalanced
criticisms of the state of Israel. While no nation is beyond reproach, when such criticism includes language intended to delegitimize Israel,
demonize its people, and apply to it standards to which no other state is held, we must call it what it is—anti-Semitism. Finally, a number of
European governments and political parties have added fuel to the fire by backing restrictions on vital
religious expression such as the donning of religious garb in public or the performance of kosher slaughter
and male infant circumcision. They have proposed or enacted similar kinds of restrictions on practitioners of other religions, including
Christianity and Islam. France and Belgium, for example, bar students in state schools and government workers from wearing “conspicuous” religious
symbols, such as the Muslim headscarf, the Sikh turban, large crosses, and the Jewish yalmulke and Star of David. Sweden, Switzerland, Norway, and
Iceland have banned kosher and halal slaughter. In Germany and Sweden, government authorities have told Jewish and Christian parents that they
cannot homeschool their children for religious reasons. And government officials in the United Kingdom are forcing Catholic adoption agencies to
shut down because they follow the moral criteria of their faith—criteria that are by no means idiosyncratically Catholic—in placing orphaned children
in homes that provide a mother and father and not in same-sex headed households. What drives these governments and parties is an attempt to grant
secularist ideology dominance in the public square by placing serious restrictions on religious expression or practice. It is an extreme view of statechurch separation which seeks to relegate religion to the purely private domain of the home, church, synagogue, mosque, or temple.
IRF fails – leaders who need to convert are already too far gone
Farr, 9 - Thomas F., Professor of Religion and International Affairs – Georgetown's Edmund A. Walsh
School of Foreign Service and Director – Berkley Center for Religion, Peace, and World Affairs (“The Future
of U.S. International Religious Freedom Policy”, Research Gate,//BR/)
The arguments presented above about the value of democracy
and religious freedom are highly unlikely to appeal to
religious actors who are already radicalized. There is some evidence that a few radicals have experienced
“conversions” to more moderate forms of Islam under the influence of reeducation programs performed by
authoritarian governments such as Saudi Arabia and Yemen . While such programs may be useful, they are unproven and
should not be the primary content of U .S. diplomatic efforts against Islamist terrorism. Those efforts should
center on the empowerment of democratic Muslim reformers, speaking from the heart of Islam, rather than
relying on the actions of authoritarian governments. Second, Islamist organizations that have engaged in the democratic process,
such as Egypt’s Muslim Brotherhood or Pakistan’s Jamaat-eIslami, contain factions that have historically undertaken violence and terrorism. The
radicalism of such groups does not arise solely in reaction to authoritarian regimes; their arguments for extremist measures, including illiberal measures
in criminal law, the treatment of women, and the treatment of religious minorities, derive from religious arguments as well. But on balance
authoritarian settings exacerbate the violent and radical tendencies of such groups while democratic settings can lead them to be more moderate and
peaceful than they otherwise would be. Part of the moderating mechanism is the requirement to submit their religious and political truth claims to
public scrutiny and debate. It is by no means inevitable that moderation will result from opening a political environment, but democracy grounded in
religious freedom can increase the chances of political and religious moderation. Third, a
key obstacle to the employment of IRF
policy as a counterterrorism strategy is the arguments made by terrorists themselves, i.e., that U.S. policy is
intended to separate Islam from politics and facilitate the operation of American missionaries. Islamist
radicals have successfully exploited Muslim familiarity with the French model of managing and marginalizing
religion. They have conflated the French and American models, and branded American “freedom” strategy as secular, godless, and anti-Islamic. U.S.
IRF policy can overcome these perceptions by communicating, in public and private diplomacy, foreign aid, democracy programs, and Track II efforts,
that religious freedom means the right of religious communities to participate in forming the laws and policies of a democratic state. It does not mean
the banishment of Islam from public life.
Legitimizing Multilateralism is a prerequisite to solvency
Farr, 9 - Thomas F., Professor of Religion and International Affairs – Georgetown's Edmund A. Walsh
School of Foreign Service and Director – Berkley Center for Religion, Peace, and World Affairs (“The Future
of U.S. International Religious Freedom Policy”, Research Gate,//BR/)
One of the ironies of U .S. IRF policy is that while some critics accuse it of being a peculiarly and unilaterally
American crusade, international law has long been abundantly clear in setting robust standards for freedom of
religion or belief. Article 18 of the Universal Declaration of Human Rights is unambiguous and remarkably comprehensive in defining these
freedoms. The Universal Declaration was adopted by the General Assembly without a single negative vote and to this day is still regarded as the
seminal international human rights document. The Universal
Declaration’s Article 18 is also the source text of subsequent
international human rights instruments, notably the International Covenant on Civil and Political Rights
(ICCPR), which stipulates that religious freedom cannot be impinged even during war-time. It is listed as one of the ICCPR’s
“non-derivable” rights. Freedom of religion or belief is reinforced in other human rights declarations and treaties as well, including the UN Declaration
on Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief, the European Convention for the Protection of Human
Rights and Fundamental Freedoms (which established the European Court of Human Rights), the American Convention on Human Rights, the
African Charter on Human Rights, and key documents of the Organization for Security and Cooperation in Europe (OSCE) such as the Helsinki Final
Act and the Vienna Concluding Document . Furthermore, many
of the formal protections for religious freedom in
international law and institutions came into being not in spite of American unilateralism but with active
American multilateral engagement. Former First Lady Eleanor Roosevelt was the driving force behind the UN’s adoption of the Universal
Declaration. American diplomats and NGOs were also deeply engaged in other international human rights
efforts, such as the ICCPR and the Declaration on Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief.
American diplomats were likewise key players working to ensure that OSCE documents included language on religious freedom. And it was the U .S.
that introduced the UN resolution creating a Special Rapporteur on Freedom of Religion or Belief. In short, international law has been important to
the cause of international religious freedom, and international religious freedom has been important in the development of international human rights
law. At least on paper, there is now and has long been widespread international support for freedom of religion or belief. And there are ample
precedents of American leadership and cooperation in efforts to include these freedoms in multilateral documents and institutions.
Notwithstanding the existence of these international protections for religious freedom on paper, many
signatory nations violate religious freedom in practice. Moreover, signatory nations that are not themselves gross
violators of religious freedom will often take no meaningful action, either individually or via international
law/institutions, in response to gross violators. This problem is, of course, not unique to religious freedom; other human rights are
also often ignored in favor of competing national and political interests. The practical weakness of existing international
institutions leads some frustrated U .S. policy makers to abandon or neglect multilateral engagement. Indeed,
the U .S. can rightly be criticized for inconsistency in its relationship to international human rights. While the
U .S. has at times exercised leadership in creating international human rights law, and its rhetoric on the
global stage is full of bold statements on human rights, it has not always avoided the temptation to seek
exceptions for itself. It has even failed to ratify human rights treaties that its own officials were influential in negotiating. Of course,
human rights treaties will never be perfect—some may never warrant U .S. approval, and others may only
warrant approval with specific reservations. But the U .S. has not invested deeply and consistently enough in
the development of legitimate international institutions capable of enforcing the high ideals of international
law. The U .S. needs efficacious international human rights institutions in order to promote genuinely
sustainable religious freedom and in order to protect its own interests and reputation. Its lack of investment
undermines U .S. credibility when it tries to use its own foreign policy tools (such as those available under
IRFA) to influence other nations’ human rights records.
--- XT: SQ Solves
Post 9/11 hysteria is fading and the government is learning its wrongdoing inevitably solving Religious free speech
Awad, 11 – Nihad, target of NSA surveillance, Executive Director and Founder of the Council on
American-Islamic Relations (“Muslims and religious freedom in post-9/11 America”, San Diego Union
Tribune, 9/11/11, http://www.utsandiego.com/news/2011/sep/09/muslims-and-religious-freedom-in-post911-america/all/,//BR/)
Oddly, in
an interview about the CIA-NYPD spying, the FBI’s own legal counsel said that sending an informant
into a mosque with no evidence of wrongdoing runs “right up against core constitutional rights. You’re
talking about freedom of religion.” In another California case involving spying on Muslims, government lawyers admitted to
lying to a federal judge, then justified the deceit on national security grounds. The case involved a routine
attempt to obtain government documents using the Freedom of Information Act. Such deception of a judge undermines
the checks and balances the founding fathers believed were crucial to preserving our liberty. I am confident that at this point in the debate
about Islam in America we have reinforced our nation’s commitment to religious freedom. I say this because
Muslims – a disliked minority – can still run for president, are able to file lawsuits to challenge discriminatory
laws and are still considered adherents of a recognized religion. I say this because the legal and advocacy tools
to challenge spying have not been stripped away in a misguided effort to defend America by morphing it into
a tyranny. My confidence in American common sense is reinforced by other facts. Since 9/11, two Muslims have been
elected to the U.S. Congress. General revulsion at a Florida pastor’s plan to burn a Quran last year was an
inspiring reminder that America can both respect free speech and at the same time marginalize bigots. Broadbased pushback against Rep. Peter King’s anti-Muslim hearings is another sign that pluralism is alive and well.
Our national debate will end when American Muslims no longer have a need to employ legal tools because
Islam is seen as equal among many faiths in America’s pluralistic society. Until that day, Muslims are honored
to be on the cutting edge of the struggle to preserve American religious freedom.
AT: Islamophobia Adv
Terrorism is only the media’s mask for a deeper issue – Islamophobia is rooted in a
xenophobic concern of a new religion challenging Western culture.
Iqbal, 10 – Professor of Media and Communication Studies at the International Islamic University,
Islamabad (Zafar Iqbal, Islamic Studies, Vol. 49, No. 1, “Islamophobia or Islamophobias: Towards
Developing a Process Model”, Spring 2010, JSTOR, *fc)
The evidence presented above indicates that Islam has been perceived primarily as a contra religio-political
force with a great potential to threaten the West. It appeared to be the 'new enemy' of the West,
providing the latter with justification of hoarding ammunitions and pursuing its designs of
expansionism. 'Cultural anomie,'46' opposing cultural ecologies,'47a 'challenge' and 'threat' to the western
world,48a 'threat to western security,'49'present terror of the world,' 'the Other,'50 and 'fifth column'51 are
some of the labels that have been applied to Islam in the recent past. Strangely, the confusion underlying this
contrast between Islam, a religion, and the West, a geographical area, has scarcely been noticed.52
Coming to the contemporary posture of the problem, we find that Islam appeared to be a 'powerful' sociopolitico-religious force of the medieval times when other religions were passing through their 'Dark Age.'
This presents a passive-active relationship between the West and Islam which was negatively viewed
by Christianity and instead of improving that relationship, the West resorted to jingoistic policies,
which finally resulted in the Crusades- a struggle to balance out dominant socio-politico-religious forces of
the time. The antagonism towards Islam spanning over centuries has led to the emergence of antiIslamic and anti-Muslim racial and cultural sentiments in contemporary times. Not long ago, the
'political' or 'active Islam'53 in the Muslim world, especially the Arabian peninsula and Iran, added insult to
the injury and cultural and racial prejudices turned into threats from Islam and the Muslims. Thus,
Islamophobia is more than mere hostility, or else we would have found it in the former USSR, a home to a
large Muslim population, and in India, Thailand, and Malaysia (with a Muslim population almost equal to that
of non-Muslims).
It is quite strange that although the racial and cultural prejudices against Islam and Muslims are fairly
noticeable, Islam can hardly be found as a threatening 'other' in literature. It was the demise of communism
that gave impetus to the portrayal of these stereotypes in the media. Therefore, communism- a great 'threat'
to the West and the rest of the world- was replaced by Islam as a threatening 'other.'54This seems to be the
replacement of one threatening' ideology' with 'another.' The fact that the contemporary Muslim world
is suffering from problems like those of terrorism, subjugation, subversion and animosity substantiate the
western notion that Islam and Muslims are 'threatening others.'
Another dimension of the difference between Islam and 'others' rests on the concept of 'race.' 'Race' was a
concept in Arabic literature which referred to a lineage of animals, particularly applied to horses, while
'ethnicity' referred to people with common histories, languages, rituals, food, songs, etc.55 Nevertheless, the
Spanish literature took 'race' to be synonymous with 'blood' and 'religion.' New terminologies were
introduced. People of the newly discovered America were labelled 'mestizo' - mixed blood - , and the mixed
breed of Spanish and black as 'mulatto.'56 Thus, while tracking the traces of difference between various
segments of humanity in history, we find that not only 'blood' but 'colour' was also thought to be an
ingredient of the concept of 'race.'
Islam became a victim of racial prejudice due to its rapid expansion worldwide in a very short span of time.
Its erstwhile tendency to grow swiftly challenged the West theologically, politically and culturally.57As a
result of mass conversions to Islam,58 the West found it easier to demonize this religion and its
followers than to take up the challenge to understand it.59 Islam and Muslims were thus labelled with
demonizing racial stereotypes meant to arouse hatred towards them. The long stretched' Crusades' further
aggravated the situation and institutionalized the racial prejudice between 'us and them.' Today, these
prejudices, having historical reasons, and the growing unrest and rise of 'jihadť movements across the Muslim
world, are responsible for augmenting the process. Hence, new terminologies have been constructed for the
historic differences which seem to continue apace. Thy name is Islamophobia.
Government policy alone can’t solve – Islamophobia is too deeply engrained in a
history of religious conflict.
Iqbal, 10 – Professor of Media and Communication Studies at the International Islamic University,
Islamabad (Zafar Iqbal, Islamic Studies, Vol. 49, No. 1, “Islamophobia or Islamophobias: Towards
Developing a Process Model”, Spring 2010, JSTOR, *fc)
Intolerance towards other religions or doctrines is universal and perhaps as old as humanity itself. The worst
of its manifestations have been the wars spanning over centuries- crusades, genocides and deep rooted
hostility on the basis of religious identities. Islam, at the time of its emergence in history, faced severe
opposition since some quarters represented it as a 'problem'6 to the world.7 This negative representation of
Islam has marked the human history especially that of last 14 centuries by mutual hostilities despite the
affinity that could bind Muslims, Christians and Jews the as 'people of the book,' as Prince of Wales rightly
pointed out during his speech at the Oxford Centre for Islamic Studies on 27 October 1993.8
The Byzantine Christians, Greek monks and the Church establishment, threatened by the rapid spread of
Islam from Arabia to its close and remote neighbours, started an obdurate campaign of slander and
vilification against Islam, depicting it as a mere "apostasy"9 and a sort of "barbaric paganism."10 The
foundation of this antagonism against Islam was articulated in the early Islamic period mainly by John of
Damascus (676-749), a Christian scholar of the Umayyad period, by declaring Islam to be a "pagan cult," and
heaping derogations on the Prophet (peace be on him).11 For long, his writings and accusations remained the
major source of the writings against Islam.
In addition to Christian scholars, the church elders regarded Islam as evil and "absolutely alien to God."12
Alexander Gainem, a freelance journalist, also observes that the campaign to reject Islam and Muslims
touched its peak in Dante Alighieri's Divine Comedy.13 Dante Alighiri (1265-1321) was an Italian poet,
known as "the Supreme Poet,"14 and his work is one of the masterpieces in the Italian language, in fact,
Western literature as a whole. Hence, his views had a strong impact on the European attitude to Islam.
Some religious stalwarts in 14th century also saw Islam as a "theological heresy" at the level of morals and
practice.15A round this period, the Council of Vienna met between 1311 and 1312, 16 declaring that Muslims
could not be converted or persuaded and thus an academic onslaught should be initiated against them.17 The
Qur'an was also subjected to criticism in the meetings of the Council.
Early 15th century witnessed further hostility towards Islam and Muslims when the controversial painting
'The Last Judgment'18 by Giovanni Da Modena (с. 1409-c. 1455) was displayed in Italy. It attacked the
Prophet (peace be on him), thereby further widening the already existing gulf between Islam and Christianity.
The sensitivity of the issue was further aggravated by the introduction of the concept of La Raza in the 15th
century. La Raza was a campaign to create a 'mix' of conflicting races. The 'mix' was desired to be different in
its outlook, having prominent attributes of the dominant cultures, but, with least cultural incompatibility. José
Vasconselos (1882-1959) in his work titled La Raza Cósmica 19 attempted to trace the historical outline of
the phenomenon from 15th century and hoped it to be the 'Fifth Race'20- an acceptable blend of all human
races irrespective of colour, creed and caste in order to develop a new civilization, ' Universópoli.s'2 1
Referring to La Raza, an American scholar has suggested that the efforts in this regard emerged from Spain
where the existence of races seemed more consciously observable. He adds that even Columbus's voyage to
America was racially biased since the salves he brought with him were mostly Muslims.22
Another’s important name in the history of the Christian version of Islamophobia is that of Humphrey
Prideaux, who saw the emergence of Islam as a part of God's inscrutable purposes: i.e. as a punishment for
the sins of Christians.23 He took the establishment of the Muslim continental rule as a scourge to Christians
and expected it to continue till they mend themselves. Some of his contemporaries like Peter Heylyn (15991662) in his work Cosmographie1a4n d Alexander Ross25 (c. 1590-1654) in Pansebeia were grossly illogical in
condemning a religion with a large body of followers. Following in the footsteps, Broughton's Dictionary of
All Religions (1745) categorized the world religions into 'true religions' (Christianity and Judaism) and 'false
religions' (all others).26
The same attitude towards Islam prevailed during the 19th and 20th centuries. J. Alley published Vindicia
Christiana attacking Islam, Hinduism and other religions on grounds of being "perpetual falsehood,
pernicious and extravagant."27 The Balkan War of 1912-1913 was depicted, mainly by the British press, as a
'Crusade against Islam.'28 More recent web bloggers and literary artifacts like The House of Apostasy keep
the door open for hurling blasphemy and libel at Muslims as 'intellectually weak' and as people who 'enjoy
killing.'29 William Miller says, "Islam is Satan's most brilliant and effective invention for leading men
astray,"30 and John Laffin condemns the "Islamic" concept of "holy war" and stresses that the treaties with
infidels be broken.31 Of course, Salman Rushdie and Taslima Nasrin are just recent manifestations of
indignation against Islam and Muslims;32 nevertheless, media contributed substantially to making their works
world famous.
Analysis of the media is necessary to deconstruct Islamophobia – constant portrayals
of Muslims as foreign and violent negatively shape people’s understandings.
Iqbal, 10 – Professor of Media and Communication Studies at the International Islamic University,
Islamabad (Zafar Iqbal, Islamic Studies, Vol. 49, No. 1, “Islamophobia or Islamophobias: Towards
Developing a Process Model”, Spring 2010, JSTOR, *fc)
In the present days Islamophobia appears to be a heavily mediated construct. Hence, it is pertinent to
observe the involvement of media in the process of constructing it. This is thanks to the power of the
media in conveying, explaining and articulating specific discourses that help represent or
misrepresent a social group or minority.2 Media critics argue that media misrepresentation has been
influential in the spread of Islamophobia in the West.3 Media develop stereotypes by framing the attributes of
a community or individual more often in a systematic way. The Australian experience shows that media
portrayed Muslims as alien and foreign to the Western society,4 as a "backward, uneducated, vulgar, violent"5
community which consequently strained the relations between Muslims and other Australians. Thus, while
discussing and explaining Islamophobia, we shall also dwell on the media's role in framing the Muslims and
Islam for it shapes the way people understand them, eventually generating Islamophobia or Islamophilia as a
process of binary schematization.
1nc Judicial Independence Adv
Partisan judicial appointments make judicial independence impossible
King 7 — Carolyn Dineen King, Circuit Judge, United States Court of Appeals for the Fifth Circuit, 2007
(CHALLENGES TO JUDICIAL INDEPENDENCE AND THE RULE OF LAW: A PERSPECTIVE
FROM THE CIRCUIT COURTS, Marquette Law Review, Summer, Vol. 90, No. 4,
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1072&context=mulr)
Instead, the Supreme Court generally takes cases where the law is unclear or in need of further development
or where the circuits are in conflict. What this means is that the intermediate federal appellate courts are the
courts of the last resort for all but the handful of cases that the Supreme Court will agree to hear. It is
precisely that fact that has resulted in the politicization of the intermediate federal appellate court
appointment process. Political and issue activists understand only too well that ideologically committed judges
on these benches can make an enormous difference in the outcomes of hundreds of cases each year.
Too, it would be a mistake to think that ideologically committed judges affect the outcomes only in cases that
involve the so-called hot button issues: the civil rights of racial and ethnic minorities and women; abortion;
the rights of criminal defendants; the death penalty; and states' rights (or the proper balance of power
between federal and state governments). My own observations suggest that these judges cast a much wider
net. They have strong views on plaintiffs' jury verdicts, especially (but not only) large ones; on class actions;
on a wide range of federal statutes imposing burdens on corporate defendants; on religion in schools and in
public areas; and on and on.
If candidates for the presidency of both parties continue, as they have now for decades, to energize issue
activists within or allied with their parties by promising the appointment of judges who will pursue the
respective political and ideological agendas of those parties in their decisions, then judicial independence
will continue to be severely threatened, and with it the rule of law in the United States. The Washington
Post, in a 2005 editorial, captured the imminence of the threat:
The war [over Justice O'Connor's successor] is about money and fundraising as much as it is about
jurisprudence and the judicial function. It elevates partisanship and political rhetoric over any serious
discussion of law. In the long run, the war over the courts—which teaches both judges and the public at large
to view the courts simply as political institutions—threatens judicial independence and the integrity of
American justice."8
Judiciary will never be legitimate as long as financing and elections are common
practice
Sarokin 14—retired federal judge--( 08/07/2014, Judge H. Lee, “For Sale -- Going Fast: An Independent
Judiciary -- Buy a Judge Today,” Huffington Post, http://www.huffingtonpost.com/judge-h-leesarokin/judicial-elections_b_5655959.html) . WM
According to the New York Times the retention election of three Tennessee judges "has been preceded by an
expensive and acrimonious campaign bolstered by organizations like Americans for Prosperity, which
receives financial support from the billionaires Charles G. and David Koch and other conservative groups".
Those supporting retention of the judges have been compelled to raise "more than $1 million" to combat the
effort to defeat them. Could there be anything more unseemly or contrary to the purposes for which the
judiciary was established?
I do not doubt that there are persons out there (and even corporations now) who contribute to judicial
campaigns for the purpose of electing or retaining judges who are fair, competent and impartial and who will
carry out the applicable laws and enforce the state and federal constitutions. Then there are the other 99
percent who wish to influence particular matters or judicial philosophy in general. Judges are not and were
never intended to be elected representatives. I cringe at the constant contention that judges should be held
"accountable". They are accountable to the laws and the Constitution. They should not be subject to the
whim of those who find certain past rulings objectionable or seek to influence future ones by buying
elections. Nothing could weaken the independence of the judiciary more than having judges removed or not
re-elected because of prior decisions that they have made.
The whole concept of judicial independence is that judges should feel to rule as they deem correct without
fear of retaliation. Nor should judges undertake the position with some feeling that they are indebted to those
who have financed their election. Per the Times: "The Republican State Leadership Committee, a national
group, plans to spend at least $5 million on judicial races this year." Why? Because they want to influence
future judicial decisions.
Let's face it -- this movement is exclusively a conservative one. Conservatives own it. Judges are to be ousted
for "liberal" rulings like upholding same-sex marriage, ordering new trials in death penalty cases or generally
ruling in favor of persons charged with crimes -- stuff like upholding the Constitution. Judicial elections are
degrading. Voters do not know whether or not the candidates are qualified. And finally money has further
corrupted the process. I have said on prior occasions: Can you imagine a lawyer or a litigant walking up to a
judge in the middle of a trial and handing the judge a check for his or her campaign? Would it make any
difference if the check was delivered a week before? And isn't it even worse now that the big boys are coming
in with even bigger checks?
We should end judicial elections entirely, but until we do, we must find a way to limit the corrupting influence
of money in the election process and stop putting the judiciary up for sale.
No modelling --- Supreme Court losing international influence
Liptak 08 (Adam, Supreme Court correspondent for NYT. “U.S. Supreme Court's global influence is waning,” NYT.
9/17/2008. http://www.nytimes.com/2008/09/17/world/americas/17iht18legal.16249317.html?pagewanted=all&_r=0)//CB
But now American legal influence is waning. Even as a debate continues in the court over whether its
decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the
writings of American justices."One of our great exports used to be constitutional law," said Anne-Marie
Slaughter, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton. "We are
losing one of the greatest bully pulpits we have ever had."
From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States
Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since,
the annual citation rate has fallen by more than half, to about five.
Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by
Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.
The story is similar around the globe, legal experts say, particularly in cases involving human rights. These
days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights
in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the
dean of the Yale Law School. In those areas, Dean Koh said, "they tend not to look to the rulings of the U.S.
Supreme Court."
The rise of new and sophisticated constitutional courts elsewhere is one reason for the Supreme Court's
fading influence, legal experts said. The new courts are, moreover, generally more liberal that the Rehnquist
and Roberts courts and for that reason more inclined to cite one another.
Another reason is the diminished reputation of the United States in some parts of the world, which experts
here and abroad said is in part a consequence of the Bush administration's unpopularity abroad. Foreign
courts are less apt to justify their decisions with citations to cases from a nation unpopular with their
domestic audience.
"It's not surprising, given our foreign policy in the last decade or so, that American influence should be
declining," said Thomas Ginsburg, who teaches comparative and international law at the University of
Chicago.The adamant opposition of some Supreme Court justices to the citation of foreign law in their own
opinions also plays a role, some foreign judges say
"Most justices of the United States Supreme Court do not cite foreign case law in their judgments," Aharon
Barak, then the chief justice of the Supreme Court of Israel, wrote in the Harvard Law Review in 2002. "They
fail to make use of an important source of inspiration, one that enriches legal thinking, makes law more
creative, and strengthens the democratic ties and foundations of different legal systems."
Partly as a consequence, Chief Justice Barak wrote, the United States Supreme Court "is losing the central
role it once had among courts in modern democracies."
Justice Michael Kirby of the High Court of Australia said that his court no longer confines itself to
considering English, Canadian and American law. "Now we will take information from the Supreme Court of
India, or the Court of Appeal of New Zealand, or the Constitutional Court of South Africa," he said in an
interview published in 2001 in The Green Bag, a legal journal. "America" he added, "is in danger of becoming
something of a legal backwater."
Independent judiciaries continue to apply state corruption in rulings—judge
selection.
Gibler and Randazzo 11. (Douglas, professor of political science at University of Alabama. Kirk, assistant professor of
political science at University of South Carolina. “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic
Backsliding,” American Journal of Political Science. Vol. 55, No. 3. July 2011. JSTOR.)//CB
The difficulties of establishing judicial independence have led some to argue that courts only reflect elite
interests. Tsebelis (2002), for example, argues that courts almost never constitute a separate veto player within
a polity. Judicial-selection procedures in most countries practically guarantee that courts will fail to provide
new constraints on the policymaking process. Only when other political actors take extreme positions or
when a new issue, not related to judicial selection, comes before the court can the judiciary pose an effective
veto. This is why judicial independence does not necessarily lead to higher rates of judicial annulment
(Burbank, Friedman, and Goldberg 2002). This is also why institutionalization of the courts matters as newly
independent courts will tend to reflect executive and/or legislative policy preferences on most issues
(Epstein, Knight, and Shvetsova 2001). Nevertheless, the attention other political actors devote to the courts
suggests that judicial institutions can matter. Yeltsin was concerned enough with the Russian constitutional
court to dismiss it entirely, as was Argentina’s military regime in 1976 and its democratic regime in 1983.
These rulers understand that even courts lacking judicial independence can provide increased legitimacy for
the dominant position of other political actors (Larkins 1998.)
--- XT: Alt Causes
Political intimidation undermines judicial independence — empirics
Dinh 7 — Viet D. Dinh, Professor of Law, Georgetown University Law Center; A.B., J.D., Harvard
University, 2007 (Threats to Judicial Independence, Real and Imagined, Georgetown Law Journal, Vol. 95,
http://georgetownlawjournal.org/files/pdf/95-4/dinh.pdf)
B. THREATS OF IMPEACHMENT AND POLITICAL INTIMIDATION
Criticism of judges by politicians is not new, either, but its frequency has picked up in recent decades. While
virtually everyone agrees that federal judges may be impeached if they commit crimes31, in the modern era,
threats of impeachment often follow unpopular rulings. In 1996, Judge Harold Baer, a federal district judge in
New York, ordered the suppression of evidence found during a traffic stop in New York City’s Washington
Heights neighborhood. The judge reasoned that, in that neighborhood, it was reasonable for people to fear
the police and so the defendants’ running did not give the officers a reasonable basis for searching the car. 32
Judge Baer’s ruling was immediately denounced, and by members of both political parties. The Clinton
Administration called for the judge’s resignation, while some congressional Republicans proposed
impeachment.33 Several weeks later, Judge Baer reconsidered the case and reversed his prior ruling.34
More recently, former House Majority Leader Tom DeLay advocated impeachment investigations of several
sitting judges such that Congress could be “a check on the court system.”35 The House Judiciary Committee
has considered creating an office of inspector general for the Judiciary to investigate allegations of judicial
misconduct.36 The goal of such proceedings is not necessarily to actually remove the judges from the bench.
Rather, threats of impeachment can serve as a tool of intimidation, having a chilling effect that
encourages judges to look over their shoulders when deciding cases.
The desire for decisional accountability in the judge selection process undermines
judicial independence
Geyh 8 — Charles G. Geyh, Professor of Law at University of Indiana, J.D. at University of Wisconsin
School of Law, 2008 (The Endless Judicial Selection Debate and Why It Matters for Judicial Independence,
THE GEORGETOWN JOURNAL OF LEGAL ETHICS, Vol. 21,
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1052&context=facpub)
V. CONCLUSION
In our existing legal structure, states lay claim to having independent judiciaries, whose judges take oaths to
uphold the law. They have codes of judicial conduct that direct judges, on pain of discipline and removal, to
follow the law and resist public and political pressure to do otherwise. And they require judges in all courts of
general jurisdiction to have training and experience in the law, because unlike legislators and governors who
make or execute the law, judges who interpret the law must possess special expertise that non-lawyers lack.
These features of the legal structure are compatible with judicial elections as originally conceived. As
originally envisioned, contested elections were to promote judicial independence and the rule of law by
transferring control of judicial selection from manipulative governors and legislatures to the people, and were
to promote behavioral accountability by weeding out the incompetent, the lazy and the corrupt.
In the new world order, however, the primary justification for contested judicial elections has moved from
preserving judicial independence and behavioral accountability to promoting decisional accountability by
subjecting judges to loss of tenure for making decisions unpopular with the electorate. This new justification
is fundamentally incompatible with the principles that underlie the existing legal structure. It assumes either
that average voters are able to review judicial decisions for themselves and intelligently second guess a judge's
interpretations of law, or that the decisions judges make are matters of public policy rather than law, which
voters have a right to control. The first assumption is at odds with the notion embedded in state law, that
intelligently interpreting the law requires judges who have years of legal training and expertise that nonlawyers lack. The second assumption—that judges simply make policy masquerading as law—guts the rule of
law altogether and de-legitimizes constitutional structures and codes of conduct that preserve judicial
independence.
Judges are paid off-alt cause to judicial legitimacy
Zelden 13 --- professor of history at Nova Southeastern University in Fort Lauderdale, Florida (June 2013,
Charles L. Reviews in American History, “The Many Faces of Judicial Independence”, Volume 41, Number
2, Project Muse)//Jmoney
In the last decade, the cost of running for judicial office in America has exploded, doubling to over $200million nationwide. With each election cycle, running for judicial office has only grown costlier, as ever-larger
amounts of money are raised, and then spent, to elect state judges. As the cost of running for judicial office
has grown, so too have charges of vote-buying and undue influence.
Most infamous in this regard was the 2002 Supreme Court election in West Virginia, where the CEO of
Massey Energy, a coal company facing a fifty-million–dollar verdict for illegal and fraudulent business
practices, spent three-million dollars in support of a successful judicial campaign by Brent Benjamin for a seat
on that court. In turn, Benjamin proved to be the deciding vote in overturning the fifty-million–dollar jury
award in 2007. When the case was appealed to the U.S. Supreme Court, a five-to-four majority of the Justices
overturned the West Virginia Supreme Court’s decision and returned the case to the lower court for further
proceedings; in so doing, the Justices addressed the dangers that funding support for judicial candidates could
pose. “There is a serious risk of actual bias,” noted Justice Anthony Kennedy for the majority, “when a
person with a personal stake in a particular case had a significant and disproportionate influence in placing the
judge on the case by raising funds . . . when the case was pending or imminent.” Where this was the case, the
majority ruled, elected judges were supposed to recuse themselves from the proceedings.1
Yet despite the Supreme Court’s words of warning, the West Virginia example is but one among many cases
in which those with personal or ideological interests before the courts have given significant financial support
to judicial candidates—and those candidates later ruled in favor of their financial backers. Such examples
have become so numerous, in fact, that many ask if justice is for sale in America—or, as Andrew Rosenthal
of the New York Times put it: does America have “The Best Courts Money Can Buy”?2 For too many [End
Page 356] Americans, the answer to this question is a resounding “yes.” As former U.S. Supreme Court
Justice Sandra Day O’Connor noted in 2010, the unchecked role of money in judicial elections has produced
a “crisis of confidence in the impartiality of the judiciary,” undermining faith in “the rule of law that the
courts are supposed to uphold.” Her solution, one advocated by many others, is to take the partisanship out
of judicial elections, either by adopting judicial appointment with retention elections as the means of choosing
judges or by publicly funding judicial races.3
Political interference undermines independence --- lifetime appointment doesn’t
solve for corruption
Zelden 13 --- professor of history at Nova Southeastern University in Fort Lauderdale, Florida (June 2013,
Charles L. Reviews in American History, “The Many Faces of Judicial Independence”, Volume 41, Number
2, Project Muse)//Jmoney
Lifetime appointment did not fully isolate the judiciary from political interference, however. As the nation’s
politics evolved into a tug-of-war between competing political parties, judicial rulings inevitably came to have
political consequences. Viewed in this light, the power of judicial review, articulated at various points during
the 1790s and famously asserted in 1803’s Marbury v. Madison, became a two-edged sword for the courts.
Whereas judicial review gave judges the capacity to affect the direction and scope of government policies and
actions, it also inevitably put judges into conflict with the popularly elected branches of government. This
conflict was potentially catastrophic for the courts, Shugerman argues. Though the implementation of lifetime
appointment “took very significant steps toward an independent judiciary, there still were plenty of ways to
change, challenge, or undermine the . . . courts” (p. 22). Angry politicians could punish assertive judges by
“sweeping them off the bench or [by] abolishing their jobs” (p. 31). After 1800, state legislatures also
shortened judicial tenures from lifetime to term appointments varying[End Page 358] in length from seven
years to no term at all (known as “at pleasure” tenure). The result was that appointed judges needed to be
very careful in the application of their powers of judicial review—“announcing the theory of judicial review . .
. but often refus[ing] to put this theory into practice” in the face of political pressures. The consequence,
Shugerman argues, was that, although many landmark judicial rulings during the Early Republic pushed the
theory of judicial review, they refused to apply these powers in practical ways. In other words, as Shugerman
puts it, judicial review in the Early Republic was “more paper than practice, more bark than bite” (p. 9).
--- XT: No Modelling
Other countries are gaining more influence than the US due to its conservative
nature and lack of judicial activism
Liptak, 08- Adam Liptak is the Supreme Court correspondent of The New York Times
(9/17/08, Adam Liptak, “U.S. Court Is Now Guiding Fewer Nations”,
http://www.nytimes.com/2008/09/18/us/18legal.html?pagewanted=all&_r=0)//Yak
The trend abroad, moreover, is toward decisions of a distinctly liberal sort in areas like the death penalty and
gay rights. “What we have had in the last 20 or 30 years,” Professor Fried said, “is an enormous coup d’état
on the part of judiciaries everywhere — the European Court of Human Rights, Canada, South Africa, Israel.”
In terms of judicial activism, he said, “they’ve lapped us.”
American Foundations
The rightward shift of the Supreme Court may partly account for its diminished influence. Twenty years ago,
said Anthony Lester, a British barrister, the landmark decisions of the court were “studied with as much
attention in New Delhi or Strasbourg as they are in Washington, D.C.”
That is partly because the foundational legal documents of many of the world’s leading democracies are of
quite recent vintage. The Indian Constitution was adopted in 1949, the Canadian Charter of Rights and
Freedoms in 1982, the New Zealand Bill of Rights in 1990 and the South African Constitution in 1996. All
drew on American constitutional principles.
Particularly at first, courts in those nations relied on the constitutional jurisprudence of the United States
Supreme Court, both because it was relevant and because it was the essentially the only game in town. But as
constitutional courts around the world developed their own bodies of precedent and started an international
judicial conversation, American influence has dropped.
Judge Guido Calabresi of the federal appeals court in New York, a former dean of Yale Law School, has
advocated continued participation in that international judicial conversation.
“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 and practice,” he wrote in a 1995 concurrence that cited the German and Italian constitutional courts.
“These countries are our ‘constitutional offspring,’ ” Judge Calabresi wrote, “and how they have dealt with
problems analogous to ours can be very useful to us when we face difficult constitutional issues. Wise parents
do not hesitate to learn from their children.” (Judge Calabresi is Professor Calabresi’s uncle.)
The openness of some legal systems to foreign law is reflected in their constitutions. The South African
Constitution, for instance, says that courts interpreting its bill of rights “must consider international law” and
“may consider foreign law.” The constitutions of India and Spain have similar provisions.
Many legal scholars singled out the Canadian Supreme Court and the Constitutional Court of South Africa as
increasingly influential.
“In part, their influence may spring from the simple fact they are not American,” Dean Slaughter wrote in a
2005 essay, “which renders their reasoning more politically palatable to domestic audience in an era of
extraordinary U.S. military, political, economic and cultural power and accompanying resentments.”
Frederick Schauer, a law professor at the University of Virginia, wrote in a 2000 essay that the Canadian
Supreme Court had been particularly influential because “Canada, unlike the United States, is seen as
reflecting an emerging international consensus rather than existing as an outlier.”
In New Zealand, for instance, Canadian decisions were cited far more often than those of any other nation
from 1990 to 2006 in civil rights cases, according to a recent study in The Otago Law Review in Dunedin,
New Zealand.
“As Canada’s judges are, by most accounts, the most judicially activist in the common-law world — the most
willing to second-guess the decisions of the elected legislatures — reliance on Canadian precedents will worry
some and delight others,” the study’s authors wrote.
American precedents were cited about half as often as Canadian ones. “It is surprising,” the authors wrote,
“that American cases are not cited more often, since the United States Bill of Rights precedents can be found
on just about any rights issue that comes up.”
--- Argentina Answer
Judicial reform fails --- empirical example
Mander 06 (Feb 21, 2006, Benedict Mander is Southern Cone correspondent for the Financial Times,
“Argentina move 'will undermine the judiciary',” The Financial Times,
http://www.laits.utexas.edu/lawdem/unit07/index.html)
Argentina's lower house of Congress is expected to pass on Wednesday key reforms to the judicial council
that critics fear will "seriously undermine" the independence of the judiciary and fail to promote the
appointment of good judges.
Already approved by the Senate, the proposed reforms to the judicial council, which is responsible for the
appointment and dismissal of judges, will reduce its size from 20 to 13 members, with the intention of
enhancing its efficiency and transparency.
But the relative weighting of political representatives on the council will be increased significantly, falling
from nine to seven members, while independent members; represented by judges, lawyers and academics; will
fall from 11 to six.
"The government will end up with a remarkable power of veto, which is very serious indeed. The council will
become pointless," said Daniel Sabsay, a constitutional lawyer, explaining that five of the seven political
representatives would be from the ruling party.
With a two-thirds majority required to approve appointments and dismissals, the government will effectively
be able to block decisions with which it disagrees. "There are serious risks for the independence of the
judiciary, which is absolutely shameful," Mr Sabsay said. Opponents of the reforms also worry they will fail
to promote the necessary conditions to attract the best applicants. This is one of the few issues to unify what
has otherwise been a deeply fragmented opposition, which political analysts say has little chance of defeating
President Néstor Kirchner in the elections in 2007; so long as the economy remains healthy until then.
Agustín Rossi, the president of Mr Kirchner's party, Frente para la Victoria, said: "We are convinced that this
is just an attempt by the opposition to stigmatise the government."
He argues that criticisms from lawyers and academics are self-interested and designed to preserve their own
influence.
Mr Rossi points to reforms made shortly after Mr Kirchner became president which overhauled the
mechanism for selecting the Supreme Court's judges, placing limits on the president's power while giving way
to a more participatory selection process.
But non-partisan groups such as New York-based Human Rights Watch have also criticised this list of
reforms.
In an open letter to Mr Kirchner, the organisation said the reforms would "jeopardise the constitutional
principles on which the council is based and seriously undermine the progress that Argentina has made under
this government in consolidating judicial independence and the rule of law".
Ricardo Gil Lavedra, a lawyer and former justice minister, said: "Argentina maintains a façade of the state of
law but in practice there is a great disequilibrium." Against a comfortable majority in the Senate, the judiciary
is an important check on the executive's power, he argues.
Mr Gil Lavedra is concerned about what he sees as the president's increasingly authoritarian style, made
possible by the popularity he has gained from Argentina's impressive recovery since its debt crisis four years
ago. Mr Kirchner has never held a cabinet meeting. "He is his own economy minister, his own foreign
minister," Mr Gil Lavedra said.
Observers say the independence of institutions in general; not just the judiciary; is weakening, with the media
and the central bank often cited as examples. "Kirchner is trying to take control [by himself] and he has been
very successful," said Ricardo López Murphy, one of the main opposition candidates and leader of the
Recrear party, who came third in the 2003 presidential election.
--- States Secrets Privilege Answers
Government secrets are here to stay
--can’t change bureaucracies
--double government
--American people think of the political system wrong
Smith ’14 --- contributing writer citing Tuft’s University Michael Glennon (Jordan Michael, “Vote all you
want. The secret government won’t change,” The Boston Globe, 10/19/14,
https://www.bostonglobe.com/ideas/2014/10/18/vote-all-you-want-the-secret-government-wonchange/jVSkXrENQlu8vNcBfMn9sL/story.html)//Mnush
THE VOTERS WHO put Barack Obama in office expected some big changes. From the NSA’s warrantless wiretapping to
Guantanamo Bay to the Patriot Act, candidate Obama was a defender of civil liberties and privacy, promising a dramatically different approach from his predecessor. But
six years into his administration, the Obama version of national security looks almost indistinguishable from
the one he inherited. Guantanamo Bay remains open. The NSA has, if anything, become more aggressive in monitoring Americans. Drone strikes have
escalated. Most recently it was reported that the same president who won a Nobel Prize in part for promoting nuclear disarmament is spending up to $1 trillion modernizing
and revitalizing America’s nuclear weapons. Why did the face in the Oval Office change but the policies remain the same? Critics tend to focus on Obama himself, a leader
who perhaps has shifted with politics to take a harder line. But Tufts University political scientist Michael J. Glennon has a more pessimistic answer: Obama couldn’t have
changed policies much even if he tried. Though
it’s a bedrock American principle that citizens can steer their own
government by electing new officials, Glennon suggests that in practice, much of our government no
longer works that way. In a new book, “National Security and Double Government,” he catalogs the ways that the defense and national security apparatus is
effectively self-governing, with virtually no accountability, transparency, or checks and balances of any kind. He uses the term “double government”:
There’s the one we elect, and then there’s the one behind it, steering huge swaths of policy almost unchecked.
Elected officials end up serving as mere cover for the real decisions made by the bureaucracy. Glennon cites
the example of Obama and his team being shocked and angry to discover upon taking office that the military
gave them only two options for the war in Afghanistan: The United States could add more troops, or the
United States could add a lot more troops. Hemmed in, Obama added 30,000 more troops. (Advertisement omitted)
Glennon’s critique sounds like an outsider’s take, even a radical one. In fact, he is the quintessential insider: He was legal counsel to the
Senate Foreign Relations Committee and a consultant to various congressional committees, as well as to the
State Department. “National Security and Double Government” comes favorably blurbed by former members of the Defense Department, State Department,
White House, and even the CIA. And he’s not a conspiracy theorist: Rather, he sees the problem as one of “smart, hard-working, public-spirited people acting in good faith
who are responding to systemic incentives”—without any meaningful oversight to rein them in. How exactly has double government taken hold? And what can be done
about it? Glennon spoke with Ideas from his office at Tufts’ Fletcher School of Law and Diplomacy. This interview has been condensed and edited. IDEAS: Where does
the term “double government” come from? GLENNON:It comes from Walter Bagehot’s famous theory, unveiled in the 1860s. Bagehot was the scholar who presided over
the birth of the Economist magazine—they still have a column named after him. Bagehot tried to explain in his book “The English Constitution” how the British
government worked. He suggested that there are two sets of institutions. There
are the “dignified institutions,” the monarchy and the
House of Lords, which people erroneously believed ran the government. But he suggested that there was in
reality a second set of institutions, which he referred to as the “efficient institutions,” that actually set
governmental policy. And those were the House of Commons, the prime minister, and the British cabinet. IDEAS: What evidence exists for saying America has
a double government? GLENNON:I was curious why a president such as Barack Obama would embrace the very same national security and counterterrorism policies that
he campaigned eloquently against. Why
would that president continue those same policies in case after case after case? I
initially wrote it based on my own experience and personal knowledge and conversations with dozens of
individuals in the military, law enforcement, and intelligence agencies of our government, as well as, of
course, officeholders on Capitol Hill and in the courts. And the documented evidence in the book is
substantial—there are 800 footnotes in the book. IDEAS: Why would policy makers hand over the national-security keys to unelected officials? GLENNON: It hasn’t
been a conscious decision....Members of Congress are generalists and need to defer to experts within the national security realm, as elsewhere. They are particularly
concerned about being caught out on a limb having made a wrong judgment about national security and tend, therefore, to defer to experts, who tend to exaggerate threats.
The presidency itself is not a top-down
institution, as many people in the public believe, headed by a president who gives orders and causes
the bureaucracy to click its heels and salute. National security policy actually bubbles up from within the bureaucracy. Many of the more
The courts similarly tend to defer to the expertise of the network that defines national security policy.
controversial policies, from the mining of Nicaragua’s harbors to the NSA surveillance program, originated within the bureaucracy. John Kerry was not exaggerating when
he said that some of those programs are “on autopilot.” IDEAS: Isn’t this just another way of saying that big bureaucracies are difficult to change? GLENNON: It’s much
more serious than that. These
particular bureaucracies don’t set truck widths or determine railroad freight rates. They
make nerve-center security decisions that in a democracy can be irreversible, that can close down the
marketplace of ideas, and can result in some very dire consequences. IDEAS: Couldn’t Obama’s national-security decisions just
result from the difference in vantage point between being a campaigner and being the commander-in-chief, responsible for 320 million lives? GLENNON: There is an
element of what you described. There is not only one explanation or one cause for the amazing continuity of American national security policy. But obviously there is
something else going on when policy after policy after policy all continue virtually the same way that they were in the George W. Bush administration. IDEAS: This isn’t
how we’re taught to think of the American political system. GLENNON: I think the
American people are deluded, as Bagehot explained about the
institutions that provide the public face actually set American national security policy. They
believe that when they vote for a president or member of Congress or succeed in bringing a case before the
courts, that policy is going to change. Now, there are many counter-examples in which these branches do
affect policy, as Bagehot predicted there would be. But the larger picture is still true—policy by and large in
the national security realm is made by the concealed institutions. IDEAS: Do we have any hope of fixing the problem? GLENNON:
The ultimate problem is the pervasive political ignorance on the part of the American people. And
indifference to the threat that is emerging from these concealed institutions. That is where the energy for
reform has to come from: the American people. Not from government. Government is very much the
problem here. The people have to take the bull by the horns. And that’s a very difficult thing to do, because
the ignorance is in many ways rational. There is very little profit to be had in learning about, and being active
about, problems that you can’t affect, policies that you can’t change.
British population, that the
Solvency
Circumvention
FBI circumvents the law —they’ll punish whistleblowers and be deceptive regardless
of policy.
*we don’t endorse ableist language
ACLU, 13 (September 2013, “UNLEASHED AND UNACCOUNTABLE; The FBI’s Unchecked Abuse of Authority,”
https://www.aclu.org/sites/default/files/assets/unleashed-and-unaccountable-fbi-report.pdf)//CB
B. Suppressing Government Whistleblowers
The FBI has a notorious record of retaliating against FBI employees who report misconduct or abuse in the
FBI and has used aggressive leak investigations to suppress other government whistleblowers.
Congress exempted the FBI from the requirements of the Whistleblower Protection Act of 1989 and instead
required the Justice Department to establish an internal system to protect FBI employees who report waste,
fraud, abuse, and illegality. Still, FBI Director Robert Mueller repeatedly vowed to protect Bureau
whistleblowers:
I issued a memorandum on November 7th [2001] reaffirming the protections that are afforded to
whistleblowers in which I indicated I will not tolerate reprisals or intimidation by any Bureau employee
against those who make protected disclosures, nor will I tolerate attempts to prevent employees from making
such disclosures.180
Yet court cases and investigations by the Justice Department Office of Professional Responsibility and
Inspector General have repeatedly found that FBI officials continue to retaliate against FBI employees who
publicly report internal misconduct, including Michael German,181 Sibel Edmonds,182 Jane Turner,183
Robert Wright,184 John Roberts,185 and Bassem Youssef.186 Other FBI whistleblowers choose to suffer
retaliation in silence. Special Agent Chad Joy courageously blew the whistle on a senior FBI agent’s serious
misconduct during the investigation and prosecution of Alaska Sen. Ted Stevens, which resulted in the trial
judge overturning the conviction against him, but only after the senator had lost re-election.187 Special Agent
Joy was publicly criticized by his then-retired supervisor, subjected to a retaliatory investigation, and then
taken off criminal cases.188 Joy resigned and no longer works at the FBI, while the FBI agent responsible for
the misconduct in the Stevens’ case continues to be assigned high-profile investigations—a clear sign that the
FBI culture continues to protect agents involved in misconduct more than those who report it.189
These high-profile cases of whistleblower retaliation discourage other FBI personnel from coming forward. A
2009 Inspector General report found that 28 percent of non-supervisory FBI employees and 22 percent of
FBI supervisors at the GS-14 and GS-15 levels “never” report misconduct they see or hear about on the
job.190 That such a high percentage of officials in the government’s premiere law enforcement agency refuse
to report internal misconduct is shocking and dangerous and perpetuates the risk that Americans like Sen.
Stevens will continue to be victimized by overzealous investigations and prosecutions.
The FBI has also been involved in suppressing other government whistleblowers through inappropriately
aggressive leak investigations. For example, when the U.S. media reported in 2005 that the National Security
Agency (NSA) was spying on Americans’ communications without warrants in violation of the Foreign
Intelligence Surveillance Act, the FBI didn’t launch an investigation to enforce the law’s criminal provisions.
It instead went after the whistleblowers, treating leaks to the American public about government malfeasance
as espionage.191 After more than a year of aggressive investigation and interviews, armed FBI agents
conducted coordinated raids on the homes of four former NSA and Justice Department officials and a House
Intelligence Committee staffer, treating them as if they were dangerous Mafiosi instead of dedicated federal
employees who held the government’s highest security clearances. William Binney, who served more than 30
years in the NSA, described an FBI agent pointing a gun at his head as he stepped naked from the
shower.192 The only prosecution, alleging Espionage Act violations against the NSA’s Thomas Drake,
collapsed at trial in 2011, and the government’s methods earned a stern rebuke from Judge Richard D.
Bennett:
I don't think that deterrence should include an American citizen waiting two and a half years after their home
is searched to find out if they're going to be indicted or not. I find that unconscionable. … It was one of the
most fundamental things in the Bill of Rights that this country was not to be exposed to people knocking on
the door with government authority and coming into their homes. And when it happens, it should be
resolved pretty quickly, and it sure as heck shouldn't take two and a half years before someone's charged after
that event.193
The deterrence effect from such enforcement activity isn’t felt just by the person ultimately charged, however,
or even those searched but never charged. The FBI’s aggressive investigations of whistleblowers send a clear
message to other federal employees that reporting government wrongdoing will risk your career, your
financial future, and possibly your freedom. And more FBI leak investigations are resulting in criminal
prosecutions than ever before. The Obama administration has prosecuted more government employees for
leaking information to media organizations than all other previous administrations combined, often charging
them with Espionage Act violations and exposing them to draconian penalties.194 Though leaks of classified
information are a common occurrence in Washington, almost invariably these leak prosecutions have targeted
federal employees who exposed government wrongdoing or criticized government policy.
FBI circumvents the AG guidelines
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
A. Attorney General Guidelines The
Attorney General's Guidelines on FBI Confidential Human Sources n157
agency guidelines, not regulations, and as such have
("Guidelines"), issued in 2006 by the Department of Justice, n158 are
no binding legal effect. n159 [*259] Much of the problem of FBI informant misuse stems from this fact. The Guidelines outline the rules the
FBI should follow in undercover investigations involving informants, which include documenting new informants and recording agreements made.
n160 The Guidelines are also subject to review and modification by the Attorney General in accordance with federal laws, and are afforded great
deference by the courts. n161 The major problems with the
Guidelines, however, are that they lack consequences, are not subject
to judicial review, and are not followed by agents. n162 While the Guidelines may have internal consequences n163 for FBI agents
who violate them, they have no meaningful effect beyond internal regulation and cannot be enforced by the public
via judicial review. n164 Judicial review for violations only occurs when criminal prosecutions reveal the FBI's activities in the investigation.
n165 However, the informants in these cases typically remain confidential, and any inquiry into their actions does not extend beyond the handling
agent's conduct and the recruitment methods used. n166 Evidence shows that in
many cases, FBI agents fail to follow the
Guidelines when recruiting and handling informants. A 2005 study conducted by the Department of Justice Office of the
Inspector General found that the FBI did not provide enough support to agents to properly follow the pre-2006 Attorney General Guidelines
Regarding the Use of Confidential Informants. n167 In fact, noncompliance
with the guidelines was a problem in 87
percent of the cases the Inspector General reviewed. In particular, agents failed to properly review the suitability of potential
informants, properly document informants' illegal activities, and notify informants of their limitations. n168 Given the high levels of
noncompliance and agents' nearly unlimited discretion in extending immigration rewards, agent abuse is likely
also high.
No Solvency – Pooling
Congressional oversight fails ---- different executive agencies can “pool” together
resources in order to dodge restraints put on only one agency
Renan 15 --- Alexander Fellow, New York University School of Law; formerly Attorney Advisor, Office
of Legal Counsel, and Counsel, Office of the Deputy Attorney General (Daphna, “POOLING POWERS”,
Columbia Law Review, 115 Colum. L. Rev. 211, Lexis)//Jmoney
B. Congress
Legal and political theory generally regards Congress as the designer-in-chief of the administrative state.
Congress generates administrative capacity and supervises the work of administration, including through
agency design. Pooling qualifies this narrative. By bridging a fragmentary bureaucracy, the executive can
generate capacity that would not otherwise exist. Pooling thus becomes a substitute, concededly imperfect,
for capacity building through legislation. Pooling also challenges a central analytic claim--that Congress
controls future agency outputs through legislation designing the agency's structure and process. Pooling
reveals a shape-shifting bureaucracy, reconfiguring its own organizational and procedural boundaries from
within.
1. Pooling Generates Capacity Without Congress. -- The executive's resort to administration to effect policy
change, particularly where legislative achievement becomes less viable, is a dynamic well trodden in the
administrative law scholarship. n219That literature has focused on centralization tools like presidential
directives to the agencies to undertake (or to decline to take) particular administrative action, and regulatory
review by the White House. n220
[*256] Part of what makes pooling distinctive, however, is the executive's ability to generate power of
administration not otherwise available to any single administrative actor. To be sure, at the margins, the scope
of plausible authority each agency can exercise is pliable. Presidential directives may energize a given agency's
mission, and legal interpretation may press the bounds of what is permissible. n221 But the synergistic
potential of pooling is different in degree, if not in kind.
The joint efforts by the FCC and the federal agencies constituting Team Telecom, for instance, enable the
executive to augment its law enforcement and surveillance capabilities. The requirements that Team Telecom
imposes through the Network Security Agreements effectively regulate the cable carriers. But while legal
leverage is supplied by the FCC's licensing authority, Team Telecom's effective power to so regulate the
carriers is not rooted in any legislative scheme. n222
Pooling's ability to create regulatory space is illuminated by comparing Team Telecom's effective jurisdiction
to the formal jurisdiction that the same agencies have through participation in another structure that has been
codified by Congress--the Committee on Foreign Investment in the United States (CFIUS). Congress has
authorized CFIUS to review proposed foreign acquisitions that could result in the transfer of control of a
U.S. business to a foreign entity in order to determine the effects of such a transaction on national
security. n223 The members of Team Telecom--the DoD, the DoJ, and the DHS--are also members of
CFIUS (though CFIUS includes additional agencies as well). n224 Congress has authorized CFIUS to enter
into "mitigation agreements," pursuant to which the acquirer agrees to certain conditions to mitigate national
security concerns. n225 But CFIUS lacks jurisdiction over so-called greenfield investments (or startups),
where there is no transfer of control over an [*257] existing U.S. business. n226 And CFIUS's authority to
require mitigation conditions is limited to threats to national security. n227
Team Telecom's effective power, by contrast, stems not from CFIUS but from the FCC's authority to review
and grant licenses in the "public interest" under the Communications Act. n228 Team Telecom reviews
greenfield investments in addition to transfers of control, n229 and the security agreements it negotiates can
consider aspects of public safety beyond national security. n230 Team Telecom's effective "jurisdiction," then,
is distinct from CFIUS, the closest statutory analog. n231
Pooling thus enables the executive to create capacity without Congress. Pooling also poses challenges for core
tools through which Congress superintends the administrative state.
2. Pooling Is a Mechanism of Bureaucratic Drift. -- Administrative design theory owes its current incarnation
in large part to positive political theory. That theory conceptualizes Congress's delegation of authority to
agencies as a principal--agent problem: How can Congress (the principal) bring its agent (the agency) into line
with its policy preferences? n232 This problem implicates two types of uncertainty--what theorists have
termed bureaucratic drift and coalitional drift. Bureaucratic drift is the difference between the policy
preferences of Congress and [*258] the policy preferences of the agency. n233 Coalitional drift is the
difference between the policy preferences of the enacting Congress and the policy preferences of a future
Congress.n234
Pooling is a tool through which the executive can achieve policy objectives distinct from those
Congress set out to achieve in the initial allocation of power. It can facilitate bureaucratic drift.
Agencies can use resources designed for a particular purpose to achieve a different policy objective.
As with other mechanisms of bureaucratic drift, Congress can still respond to pooling, including to ratify or
prohibit it. For example, Congress embraced the DHS--NSA collaboration in the cybersecurity context. In
2012, Congress included a provision in the National Defense Authorization Act to mandate
"interdepartmental collaboration" between the DHS and NSA on cybersecurity. n235 In introducing the
amendment, Senator John McCain indicated that it was intended to codify the 2010 cybersecurity
memorandum of agreement between the two agencies. n236 Congress also can terminate pooling after it has
occurred (when pooling is visible to Congress). But the status quo has been changed. And Congress will now
need to overcome its own collective action hurdles to alter the executive's design. n237
In part because Congress's abinlity to correct bureaucratic drift after it occurs is often quite difficult, theorists
have looked for ways in which [*259] Congress can exercise ex ante control over administration. Here,
again, pooling complicates a central narrative.
An influential argument in administrative law theory is that Congress exercises ex ante control over the
bureaucracy through administrative design. The claim was initially advanced by political scientists Matthew
McCubbins, Roger Noll, and Barry Weingast ("McNollgast"), n238 and it has been refined by
others. n239 Through a mix of structural and procedural controls enacted in legislation, the argument goes,
Congress ameliorates bureaucratic drift. Administrative design injects the interest groups that formed the
enacting coalition into the administrative process, thereby enabling those interest groups to influence the
agency's policy outputs and to alert Congress when issues warranting its oversight arise. n240 As McNollgast
explains, "By structuring who gets to make what decisions when, as well as by establishing the process by
which those decisions are made, the details of enabling legislation can stack the deck in an agency's decisionmaking." n241
Pooling complicates this account. It suggests that at least some of the action occurs through joint structures
that bridge those initial agency [*260] design choices. Pooling, in effect, can alter who makes what decisions
when, and through what process. It calls into question the stickiness of those initial structural bargains.
a. Overcoming Procedural Constraints. -- Congress uses a variety of design tools, including temporal
constraints, to control agencies through legislation. n242 An agency facing such limits on its delegated
authority, however, can in effect circumvent those statutory constraints by pooling with another
agency that Congress has not subjected to the same limitations.
For example, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act"), Congress has
delegated to the DoJ the authority to review certain mergers before they occur to ensure compliance with
antitrust laws. n243 But the HSR Act establishes a strict timetable for the Department's review. The DoJ has
an initial thirty-day period to conduct its review, n244 which the agency may extend for an additional thirty
days when additional information is requested from the companies. n245After this waiting period expires, the
companies are free to consummate their proposed merger unless the government files suit in district court
and seeks a preliminary injunction. n246 The HSR Act's stringent deadlines address congressional concern
that "protracted delays . . . might effectively 'kill' most mergers." n247
When reviewing potential telecommunications mergers, however, the DoJ is able to work around the HSR
Act deadlines and the obligation to seek a preliminary injunction in court by pooling with the FCC. The FCC
reviews proposed mergers pursuant to its licensing authority under the Communications Act of
1934. n248 Unlike the DoJ's review under the HSR Act, the FCC confronts no statutory deadlines for its
premerger review under the Communications Act. As a matter of policy, the FCC has adopted an aspirational
"benchmark" of 180 days from public notice to [*261] complete its review. n249 But it has made clear that
even this timeline is flexible and that the Commission may depart from it. n250
There is a trend toward greater collaboration between the DoJ and the FCC in reviewing proposed
telecommunications mergers. n251 The agencies' joint efforts, in practice, enable the DoJ to work around the
stringent procedural constraints that the statutory scheme imposes. n252
b. Diversifying Interest Groups. -- Another mechanism through which Congress can curb bureaucratic drift is
the organizational design of the agency. n253 That initial design choice, shows Jonathan Macey, has the effect
of "perpetuat[ing] the power and legitimacy of certain groups and undermin[ing] the power and legitimacy of
others." n254 By choosing winners and losers upfront through the agency's organizational design, Congress
"hardwire[s]" into the agency structure the legislature's policy preferences. n255
Consider the congressional design choice to create a single-industry agency, beholden to a single interest
group, rather than a multi-industry agency. Congress's decision to create the single-industry agency,
Macey [*262] argues, bolsters Congress's control over the agency's policy outputs. n256 The single-industry
design choice augments that particular interest group's access to the agency, and it shapes the type of
expertise that will be relevant to the agency's mission--expertise that the interest group itself
possesses. n257 By empowering a particular interest group, Congress has hardwired certain preferences into
the design of the agency.
Through pooling, however, the executive can convert a single-industry regulatory space into a multi-industry-or multi-interest group--regulatory space. The joint structure's preferences will look different from those of
the single agency acting alone. Pooling thus enables the executive to work around Congress's initial structural
hardwiring.
The EPA--NHTSA joint rulemaking illustrates how pooling can diversify the interest groups influencing a
regulatory task, as well as how pooling can overcome other constraints on expertise building that Congress
imposes through legislation. The joint rulemaking enabled the EPA to exercise influence over
NHTSA, n258 an agency with a very different, and in some respects historically incapacitating, relationship to
the auto industry. n259 Coordination in any form might diversify the operative interest groups. n260 But
pooling can be particularly effective at altering the impact of particular interest groups as compared, for
instance, to OIRA review.
Pooling can affect more of the lifecycle of agency policymaking than centralization tools like OIRA have the
practical ability to influence, and pooling can be accompanied by institutional changes inside the agencies that
deepen collaboration. Both of these dimensions are evident in the EPA--NHTSA joint rulemaking. The EPA
and NHTSA collaborated on a variety of major tasks including syncing up the timing of "key
milestones [*263] of each rulemaking." n261 And the two agencies formed a number of joint structures to
support the pooled effort, including "joint technical teams," which drove the effects of coordination deep
into the two agencies' bureaucratic cores. n262 In this sense, pooling is able to affect some of the more subtle
dynamics of organizational design that Macey identified. For example, "hardwiring" turns in part on the
makeup of the experts populating the regulatory space, which Macey emphasizes are often drawn from the
regulated industry. n263
Pooling in the EPA--NHTSA example also enabled the executive to overcome a specific statutory
impediment to NHTSA's own expertise building. While Congress had curbed NHTSA's ability to build
expertise through a multiyear appropriations restriction, the joint structure enabled NHTSA to "borrow" that
expertise from the EPA after the ban was lifted. n264
Pooling thus adds complexity to a central causal claim in administrative law theory: that Congress exercises
control over the agency's ongoing policy outputs through agency design. It illuminates an assumption implicit
in that theory--the stability of the initial structural bargain as a matter of actual, or effective, administrative
decisionmaking. I do not want to overstate the claim. To be sure, initial design has effects on the agency's
policymaking. But pooling suggests that the reliance the existing account places on ex ante design choice
might be overdrawn. n265
Pooling undercuts oversight
Dalal 14 --- JD Yale Law School, BS University of Pennsylvania (Anjali S, Michigan State Law Review,
“SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE”, 2014 Mich. St. L. Rev. 59, Lexis)//Jmoney
3. Pooling Can Diminish the Effectiveness of Congress's Committee Oversight Structures. -- Pooling also can
muddle ongoing congressional oversight of administrative decisionmaking. It can obscure which
administrative actor is responsible for a given course of conduct. It can mask the true mover behind an
administrative decision. And it can diminish Congress's ability to exercise effective oversight to the extent that
pooled structures bridge Congress's own oversight committee structures.
For example, the intelligence oversight committees in Congress differ from the armed services oversight
committees, and the executive's reporting requirements with respect to intelligence collection and military
action are distinct. Pooling arrangements combining intelligence and military authorities--that is, the Title 10-Title 50 joint structures--have [*264] created confusion, if not obfuscation, regarding congressional
oversight. n266
Indeed, the House Permanent Select Committee on Intelligence has publicly expressed concerns that certain
intelligence activities are not being reported to it and to the Senate Select Committee on Intelligence because
they are being aggressively categorized as military activity instead. n267 Those activities also are slipping
through gaps in the oversight practices of the Senate and House Armed Services Committees because the
executive's notification obligations to those committees were designed with very different considerations in
mind. n268
4. Pooling Circumvents Some of Congress's Funding-Related Constraints. -- A final tool through which
Congress exercises control over executive action is funding. Congress can discipline specific pooling
arrangements through its funding decisions. Congress can choose to defund a particular program or agency
or to prohibit a particular interagency effort, including as a mechanism to penalize pooling. n269
But Congress also structures executive design at a more systematic level through appropriations law, and
pooling poses challenges to this more systematic form of congressional control.
Pooling allows the executive to work around constrains in the Economy Act
Renan 15 --- Alexander Fellow, New York University School of Law; formerly Attorney Advisor, Office
of Legal Counsel, and Counsel, Office of the Deputy Attorney General (Daphna, “POOLING POWERS”,
Columbia Law Review, 115 Colum. L. Rev. 211, Lexis)//Jmoney
b. The Economy Act. -- Through pooling, the executive also can work around some of the constraints that
Congress has imposed under the Economy Act. In 1932, Congress passed legislation authorizing agencies to
contract with one another for their services or materials. n280 The Act, as amended, authorizes "[t]he head of
an agency or major organizational unit within an agency" to "place an order with a major organizational unit
within the same agency or another agency for goods or services" where certain conditions are met. n281 The
Act was designed to address intraexecutive outsourcing, and so its constraints generally focus on
the transfer of funds or legal authority from one agency to another. n282
There are anticircumvention ideas driving interpretations of the Economy Act by the Comptroller General.
For example, an outsourcing agency cannot use an Economy Act agreement to fund work that it
would not itself be authorized to undertake. n283Nor can the outsourcing agency obtain under the
Economy Act services from another agency that its own enabling statute prohibits. n284
[*267] Those constraints do not easily translate to pooling, however. There is no transfer of authority with
pooling. And the aggregation of authorities that pooling achieves, sometimes formally and sometimes
informally, is not clearly governed by the Economy Act.
No Solvency – Immigrant Informants
Plan can’t solve – FBI targets non-US informants
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
Introduction In 2004, the FBI approached Imam Foad Farahi, a cleric at a mosque in South Florida, and promised him lawful permanent resident
status n1 in return for information on members of his South Florida Muslim community. n2 Farahi had entered the United States on a student visa
that had since expired, and was at the time applying for political asylum. n3 When
Farahi refused the FBI's offer and told the
agents that he had no information beyond his mere acquaintance with the individuals sought by the agents,
the FBI agents threatened to deport Farahi to Iran and charge him with providing material support to terrorism
unless he cooperated by acting as an informant. n4 Because the FBI's post-9/11 establishment of a preventative stance towards terrorism n5 has
increased the need for intelligence, n6 the agency has [*237] turned to the increased use of immigration law and residence
status to recruit more confidential informants. n7 Although the FBI does not comment on its informant recruitment methods, n8
numerous stories similar to Farahi's have been reported since 9/11. n9 In fact, allegations of the FBI's aggressive use of past
[*238] violations of immigration laws to pressure individuals whom the agency believes may have terrorism
knowledge have repeatedly surfaced. n10 The Informants, a yearlong investigation into the FBI's use of informants, led by Trevor
Aaronson and the University of California at Berkeley's Reporting Program in conjunction with Mother Jones, details the FBI's expanded use of
informants in terrorism investigations. n11 Of the approximately five hundred federal terrorism prosecutions conducted since 9/11, about half used an
informant, n12 and forty-nine of them were the result of work done by agent provocateurs. n13 Aaronson's investigation also shed light on the FBI's
use of immigration law and the threat of deportation to incentivize informants to cooperate. n14 Aaronson explains, A
typical scenario will
play out like this: An FBI agent trying to get someone to cooperate will look for evidence that the person has
immigration troubles. If they do, he can ask [Immigration and Customs Enforcement (ICE)] to begin or
expedite deportation proceedings. If the immigrant then chooses to cooperate, the FBI will tell the
court that he is a valuable asset, averting deportation. n15
The abundance of fabricated info from immigrant informants turns case –
encourages ethnic profiling, chills free speech, and wastes resources
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
[*239] Using the threat of immigration consequences like deportation to produce terrorism intelligence presents novel problems for the intelligence
gathering process and the informants. When individuals are pressured into becoming informants by the threat of deportation, which
may remove them from their family and all sources of support, the decision essentially becomes a Hobson's choice. n16 Informants recruited in this
manner who also lack legitimate ties to foreign terrorist organizations n17 have
an enormous incentive to fabricate information to
fulfill their end of the agreement and avoid deportation. n18 Attorney Stephen Downs of Project SALAM explained,
Community life is shattered as the government often forces Muslim immigrants to spy on their own
communities or give false testimony with the threat that the Muslim's immigration status will be "revised" if the Muslims do not
cooperate. Such practices generate fear and alienation in the Muslim community and diminish our security rather than enhance it. n19 As Downs
notes, the
intelligence these informants provide can be unreliable, n20 because these individuals may feel they
must offer up something to the government to avoid being removed from their families, jobs, and lives. The
threat of false intelligence is grave. In addition to the possibility of entrapment n21 by agent provocateurs, false intelligence
may encourage ethnic and religious profiling of Muslim and Middle Eastern communities, n22 chill free
speech, n23 and waste finite intelligence resources. Recruitment through [*240] immigration law also affords less
protection to informants than recruitment done by offering monetary rewards or reductions in sentencing. n24 For example, unlike criminal
offenses, there is no statute of limitations governing civil penalties like deportation, removal, or exclusion
orders, which means that the FBI can use immigration violations to leverage cooperation from out-ofstatus individuals who have been in the country for years. Moreover, unlike an informant who is promised a sentence reduction
or lessened charges and who can enforce his or her bargain with the government through plea bargaining, an informant promised immigration benefits
has no way of enforcing these promises. n25 Furthermore, the Sixth Amendment's guarantee of counsel n26 does not apply to immigration violations.
n27 Finally, according to some reported cases, the government has failed to reward informants with the promised immigration benefits after receiving
their cooperation. n28
Immigrant informants perpetuate ethnic profiling
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
B. Mosque Surveillance Encourages Religious and Ethnic Profiling In addition to eroding the First Amendment's free speech rights of Muslims and
Middle Easterners, the
FBI's informant surveillance tactics also inappropriately target these religious and ethnic
groups. Most of the organizations designated as Foreign Terrorist Organizations by the State Department are Muslim or Arab groups. n89 Many
post-9/11 policies, like the extensive detention of Muslims and Middle Easterners, indicate that the federal government views Muslims
and Middle Eastern immigrants as potential terrorists. n90 Popular perception of Muslims has moved in
the same direction, with huge opposition, for example, to the construction of an Islamic community center - Park 51 - near the site of the
World Trade Center in New York. n91 Other examples include state laws banning the use of Shari'ah law in judicial decisions n92 and Islamophobia
n93 rising in the United States n94 and abroad. n95 [*250] By
sending immigrant informants into mosques and religious and
ethnic communities with little more than a vague directive to find terrorists, the FBI perpetuates ethnic
profiling and the conflation of Islam and terrorism. In recruiting terrorism informants from the immigrant population, the
FBI puts an ethnic and religious face on terrorism, and perpetuates the popular perception of what terrorists look like. Sending these
informants into mosques and immigrant communities greatly increases the chances that alleged suspects fit
the ethnic and religious stereotypes of terrorists. Put differently, if an informant is assigned to surveil a mosque, the chances of the
informant bringing back a non-Muslim or non-Middle Eastern suspect are low. This surveillance policy becomes a vicious cycle.
The FBI recruits immigrant individuals from suspect communities to become informants, pressures them into producing
terrorism suspects that fit the popular perception of what terrorists are like, and then prosecutes these
suspected terrorists. All this reinforces the public conflation of immigrants, Muslims, Middle Easterners, and terrorists. Ethnic
and religious profiling further alienates Muslim and Middle Eastern communities, and deepens their mistrust for government. n96 Additionally,
by predisposing many Americans to view Muslims, immigrants, and Middle Easterners as potential terrorist threats, ethnic and
religious profiling may also bias juries in terrorism prosecutions. n97 Although suspects often claim entrapment as a
defense, after 9/11 the entrapment defense has never been successfully used in terrorism cases. n98 In fact, many, if not most, terrorism cases never
reach the jury because the chances of successfully defending against terrorism charges after 9/11 are almost nonexistent. n99 Popular stereotypes
concerning Muslims and Middle Easterners play a role in this. Although the use of immigration law in recruiting informants is only one of many
factors contributing to this harmful cycle, the use of coercive tactics like immigration law to recruit informants creates a [*251] higher risk of
unfounded terrorism prosecutions against innocent individuals who do not pose a risk. Consequently, this fuels the public perception that a
stereotypical terrorist is a Middle Easterner or Muslim.
Judicial Action Fails
Courts misunderstand how police surveillance is conducted and can’t act effectively
without future legislation
Rushin, 13 --- Visiting Assistant Professor, University of Illinois College of Law (Fall 2013, Stephen,
Brooklyn Law Review, “The Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1,
Lexis,)//Mnush
[*24] II. THE LAW OF POLICE SURVEILLANCE Traditionally,
courts have shied away from regulating police surveillance in
public spaces. This is because the courts have operated under a set of jurisprudential assumptions of police
surveillance. These jurisprudential assumptions were reasonable in the past because of the limited technological efficiency of previous surveillance technologies. In
Jones, the Supreme Court had the opportunity to confront these jurisprudential assumptions in light of modern technology. A majority of the justices indicated that these
jurisprudential assumptions were increasingly unsupportable in today's digitally efficient world of policing. n118 But the
Court did not alter these doctrinal
assumptions in any way, nor did they offer much indication on how they may alter these assumptions in the
future. Thus, after the Jones decision, the law of police surveillance today is as incoherent as ever. I have previously
argued that the digitally efficient investigative state does not run afoul of the Fourth Amendment, based on the presence of these jurisprudential assumptions, n119 but dicta
in the concurrences of the Jones case imply that these jurisprudential assumptions may not exist for much longer. Even
so, there is no clear indication
how the Court could establish a default rule that both narrowly limits some uses of digitally efficient
technologies without adversely affecting other non-invasive, legitimate uses. In this section, I evaluate the doctrinal basis for the
traditional jurisprudential assumptions about police surveillance. I then spend considerable time analyzing the dicta in the Jones case to predict how the Court may respond
to these technologies in the future. I conclude that, while
the Court will likely make some effort to rein in the digitally efficient
investigative state in the future, any regulation will be limited in capacity. The regulation will almost certainly
rely upon an often-ineffective enforcement tool like the exclusionary rule. Thus, even if the judiciary is
institutionally capable of controlling the digitally efficient investigative state, the legislature must
also take a proactive role in any future regulation.
Judicial oversight fails --- non enforceable, extremely high standards, and executive
privilege
Dalal 14 --- JD Yale Law School, BS University of Pennsylvania (Anjali S, Michigan State Law Review,
“SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE”, 2014 Mich. St. L. Rev. 59, Lexis)//Jmoney
1. Judicial Intervention
The Church Committee, reflecting on the Keith decision, emphasized the importance of judicial intervention
in the national security arena when it reminded the public that warrantless wiretapping "had been permitted
by successive presidents for more than a quarter of a century without 'guidance from the Congress or a
definitive decision of the Courts.'" n308 Unfortunately, there are three barriers to judicial intervention that
facilitate shadow administrative constitutionalism in the national security arena: the lack of judicially
enforceable rights, the standing hurdle, and the growth of executive privilege.
a. Judicially Enforceable Rights
By the time the Civiletti Guidelines were issued in 1980, the DOJ made eminently clear that the Attorney
General Guidelines were "solely for the purpose of internal Department of Justice guidance" n309 and would
otherwise be legally binding. Specifically, the Guidelines made clear that "[t]hey are not intended to, do not,
and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in
any manner, civil or criminal." n310 Such rights-limiting language prevents any injured party from using the
governing document of the FBI to enforce the self-imposed limitations on the Bureau's power.
[*129] b. The Standing Hurdle
The lack of judicially enforceable rights is not, however, the only problem. Those who might bring a First
Amendment claim based on the surveillance authorized by the Attorney General Guidelines face immense
difficulty simply getting into court. n311One of the primary problems with surveillance is that it has the
power to coerce people into self-censorship--or chilled speech. This makes surveillance, fundamentally, a
First Amendment issue and a prime subject for constitutional litigation. As our communications are
increasingly subject to the prying eyes of the government, our ability to speak freely is directly curtailed.
However, after the Supreme Court's decision in Laird v. Tatum, litigants suing under the First Amendment
theory of chilled speech are subject to a high standing bar that, more often than not, prevents them from
having their case heard at all.
The first mention of the term "chill" in Supreme Court jurisprudence occurred in 1952 in Wieman v.
Updegraff, a case overturning an Oklahoma law that required all state employees to take a loyalty oath
denying all affiliation, direct and indirect, with "any foreign political agency, party, organization or
Government, or with any agency, party, organization, association, or group whatever which has been officially
determined by the United States Attorney General or other authorized agency of the United States to be a
communist front or subversive organization." n312 In an important concurrence, Justice Frankfurter argued
that the loyalty oath had "an unmistakable tendency to chill that free play of the spirit which all teachers
ought especially to cultivate and practice." n313 From that time to when the term "chilling effect" was first
used in Dombrowski v. Pfister n314 thirteen years later, Professor Frederick Schauer argues that [*130] the
term evolved from an "emotive argument into a major substantive component of first amendment [sic]
adjudication." n315
However, after Laird v. Tatum, litigating on the basis of chilling effects has become difficult. Tatum requires
litigants to first prove that the surveillance in question led to a cognizable harm before they will be granted
standing and further held that "the mere existence . . . of a governmental investigative and data-gathering
activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid
governmental purpose" was simply not a cognizable harm. n316
As a result of Tatum, before an individual can bring a First Amendment claim against FBI based on the
authorizations of the Attorney General Guidelines, she must first prove that she has been harmed by the
often-secret surveillance. n317 Because of the difficulty of first affirmatively identifying that one is the subject
of government surveillance in order to allege a cognizable harm under the law, such litigation has been made
increasingly unlikely under Tatum.
For example, in 2005, The New York Times exposed the President's Surveillance Program (PSP), a program
developed after 9/11 that secretly authorized the NSA to intercept "the international telephone calls and
international e-mail messages of hundreds, perhaps thousands, of people inside the United States without
warrants over the past three years in an effort to track possible 'dirty numbers' linked to Al
Qaeda." n318 "Additionally, the NSA told Congress that privileged communications, such as those between
an attorney and her client, would not be 'categorically excluded' from interception." n319
This discovery led prominent civil rights organizations, including the American Civil Liberties Union
(ACLU), to file [*131] lawsuits against the government arguing that their speech was chilled because their
communications were likely targets of the surveillance program. n320 The ACLU filed on behalf of itself and
a group of journalists, scholars, and other organizations that regularly communicate with likely targets of the
PSP. n321 Importantly, none of the plaintiffs had evidence that they were in fact the subject of NSA
surveillance. n322 This was a fact that only the government knew and would not disclose. The Supreme
Court held that, without this information, the plaintiffs lacked standing to pursue their case. n323
The standing barrier created by Tatum is especially problematic given the nature of surveillance today.
Surveillance today no longer presents viable Fourth Amendment claims because so much of our most
personal information is mediated through third parties, and the third-party doctrine limits the extent of
Fourth Amendment protections. n324 While Justice Sotomayor's concurrence in United States v.
Jones provides some indication that this doctrine may be up [*132] for reconsideration by the Supreme
Court, n325 until that time, the Fourth Amendment no longer provides a powerful source of legal recourse
against the growth of surveillance authority. As a result, now, more than ever, the chilling effects doctrine
must be revived in order to provide a First Amendment backstop to the growing problem of government
surveillance.
c. Executive Privilege
As Professor Heidi Kitrosser describes, "A claim of executive privilege is generally a claim by the President of
a constitutional right to withhold information." n326 It is a claim whose authority lies not in the text of the
Constitution or of any specific law, but rather in the "notion that some information requests effectively
infringe on the President's Article II powers, threatening his ability to receive candid advice or to protect
national security." n327
Executive privilege as a means of obfuscation facilitates shadow administrative constitutionalism by
preventing judicial oversight. Professor Jack Balkin first made this claim nearly ten years ago when he argued
that, increasingly we exclude more and more executive action from judicial review on the twin grounds of
secrecy and efficiency. . . . [A]n independent judiciary plays an important role in making sure that zealous
officials do not overreach. If the executive seeks greater efficiency, this requires a corresponding duty of
greater disclosure before the fact and reporting after the fact to determine whether its surveillance programs
are targeting the right people or are being abused. n328
The courts have not taken heed to his warning.
In the wake of the disclosure of the PSP, there was one case that survived the extremely high standing bar set
in Tatum. In Al-Haramain Islamic Foundation v. Bush, an Islamic charity based in Oregon discovered that
the government inadvertently sent them classified documents demonstrating that their communications
were [*133] subject to warrantless surveillance. n329 With proof that they were in fact subject to
surveillance, Al-Haramain proceeded to court. However, the government argued that the state-secrets
privilege prevented the introduction of the classified documents and permitted the government to avoid
acknowledging the existence of the surveillance program. n330 Despite the fact that the classified information
had already been disclosed (and in seemingly direct conflict with the government's otherwise settled thirdparty doctrine), the Ninth Circuit agreed with the government's position. n331
The doctrinal barriers that prevent judicial intervention are significantly harder to overcome than the failures
that stymie intrabranch checks and balances. This is in no small part due to the doctrine of stare decisis and
the value of having binding precedent. Even judges who recognize the problems with the current system and
wish to reassert their role in determining both small-"c" and ultimately large-"C" constitutional meaning
cannot. Judge Colleen McMahon expressed her frustration with the state-secrets privilege in a court opinion,
saying, "I can find no way around the thicket of laws and precedents that effectively allow the Executive
Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face
incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret." n332 As a
result, without a major shift in the doctrine, the judiciary will be limited in its ability to provide useful
oversight.
Rushin admits that judicial action alone won’t solve
Rushin, 11 --- PhD student at the University of California, Berkeley, Jurisprudence and Social Policy
Program (Fall 2011, Stephen, University of Illinois Journal of Law, Technology & Policy, “THE JUDICIAL
RESPONSE TO MASS POLICE SURVEILLANCE,” 2011 U. Ill. J.L. Tech. & Pol'y 281, Lexis,)//Mnush
VI. Conclusion Neither judicial responses nor "legislative rulemaking is ...a panacea." n376 Even
if the judiciary successfully recognizes a
remedy similar to that discussed in this Article, the legislatures must play a critical role in developing more
nuanced and specific enactments to implement this constitutional floor. The potential harms of the digitally efficient investigative
state are real. There is legitimate concern that the broad and integrated use of these technologies can create a mass
surveillance state. Central to this debate is the proper role of the judiciary in regulating policy activity. Courts have previously relied upon an
often fragile dichotomy between technologies that merely improve police efficiency and those that offer
officers a new, extrasensory ability. For the first time, the judiciary may be forced to limit the efficiency of law
enforcement technologies. Implicit in this action will be the recognition that sometimes improvements in
efficiency can be, quite simply, so efficient as to be unconstitutionally harmful. Unregulated efficiency can facilitate police
wrongdoing, discrimination, and calumniate political dissenters. Unregulated efficiency in policing technology undermines central protections and tenants of a democratic
state.
The relationship between efficiency of criminal investigations and privacy rights will be a new frontier for
the courts in the coming decades. The courts should forcefully, but prudently, protect against the unregulated
efficiency of emerging investigative and surveillance technologies. The judicial response offered in this Article
would be but one more example of the courts exercising their proper role as a limited but effective
policymakers.
Congress Overrides Courts
The courts fail – Congress can just override decisions.
Bayoumi 12 – Associate Professor of English at Brooklyn College, City University of New York, with a
Ph.D. in English and Comparative Literature from Columbia (Moustafa Bayoumi, The Nation, “Fear and
Loathing of Islam,” June 14 2012, http://www.thenation.com/article/168383/fear-and-loathing-islam, *fc)
There is a real danger that the same tools that enable today’s Islamophobia will continue to migrate
and expand with little or no public outcry. The FBI deploys a strategy of sting operations against Occupy
protesters that is eerily familiar to American Muslims, to little outrage. The president enacts a law that allows
for the indefinite detention of American citizens, and after a federal judge strikes it down as
unconstitutional, Congress rushes in two days later to try to keep it on the books. American citizens
can be assassinated by presidential decree, making a mockery of due process. Forget the Muslims. This
mission creep is as good a reason as any to pay attention to Islamophobia today—because when the ordinary
affairs of the United States include such actions, the stakes are nothing less than extraordinary.
Disadvantages
Politics Links
The reduction of domestic surveillance is extremely unpopular in congress-empirical
congressional actions and terror rhetoric
Harris, 10 --- Professor of Law, University of Pittsburgh School of Law (David, New York University
Review of Law & Social Change, “LAW ENFORCEMENT AND INTELLIGENCE GATHERING IN
MUSLIM AND IMMIGRANT COMMUNITIES AFTER 9/11,” 34 N.Y.U. Rev. L. & Soc. Change 123,
Lexis)//Jmoney
While legislation at either the federal or state level could impose judicial supervision requirements and legal
standards on the use of informants, the enactment of such legislation seems as unlikely in the current political
climate as a reversal of the Hoffa and White cases by the Supreme Court. In 2006, Congress reauthorized the
expiring provisions of the Patriot Act n219 with few changes, despite strong opposition. n220 In the
fall [*173] of 2006, Congress passed the Military Commissions Act, n221 which, among other things,
withdrew the possibility of using the writ of habeas corpus in cases arising from detention at Guantanamo
Bay, Cuba. n222 In addition, the summer of 2007 saw the enactment of legislation that provided additional
procedures for the National Security Agency to acquire foreign intelligence through a warrantless wiretapping
program. n223 The state laws regulating the use of informants, discussed above, were passed many years
ago, n224 and, in more recent years, states have leaned in the other direction, passing their own "Patriot
Acts." n225 In all, statutory restraints on the use of informants seem unlikely in
today's political climate because a political opponent could easily accuse a
legislator advocating such restraints as being soft on terrorism or handcuffing
our police and national security forces.
Plan would require massive political capital
Dalal 14 --- JD Yale Law School, BS University of Pennsylvania (Anjali S, Michigan State Law Review,
“SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE”, 2014 Mich. St. L. Rev. 59, Lexis)//Jmoney
The solution to a lack of congressional oversight is conceptually easy but practically difficult. It requires
Congress to pass legislation governing the FBI and regularly exercise its statutory oversight authority, both of
which require significant political capital and effort. However, the Snowden scandal may have created the
momentum necessary to motivate congressional action in this area. Senator Ron Wyden recently echoed this
sentiment while imploring his colleagues to act stating, "'If we do not seize this unique moment in out [sic]
constitutional history to reform our surveillance laws and practices we are all going to live to regret it.'" n337
Terrorism DA Links
Community mapping is crucial to counter domestic terrorism
Blumenfeld 13 – researcher with the Middle East Forum and with the U.S. Department of Justice (Teri,
Middle East Quarterly, “Denying Islam’s Role in Terror: Problems in the FBI”, Spring 2013,
http://www.meforum.org/meq/pdfs/3478.pdf, //11)
The fact that such lapses
and “failures of intelligence” continue to plague U.S. security agencies is in itself an abysmal
of Islamism as motivator in countless plots on American soil is indisputable. If
Islamic radicalization and its deadly impact continue to be overlooked in favor of privacy protection and
misconceived notions of religious freedom, and if these policies remain intact in intelligence protocols, such tragedies as the
Fort Hood massacre are likely to recur. Islamists often raise the specter of “Islamophobia” whenever any legitimate question about or
criticism of Islam is broached. But real Islamophobia stalks the corridors of Washington and other Western capitols:
The fear of upsetting Muslims of any stripe is so rampant that the security of the American citizenry
has been compromised.
failure. The continuing denial
Surveilling domestic Muslims enables us to counter the jihadist threat
Groenig 14 – reporter for One News Now, cites former FBI agent Guandolo who created and implemented
the FBI’s first Counterterrorism Training/Education Program (Chad, One News Now, “Former FBI says
only way to defeat Islam is to crush it”, 7/15/14, http://www.onenewsnow.com/nationalsecurity/2014/08/15/former-fbi-says-only-way-to-defeat-islam-is-to-crush-it, //11)
A terrorism expert says it
is time for the western world to stop political correctness and engage in an all-out effort
to crush radical Islam. John Guandolo is a former FBI agent who created and implemented the FBI's first
Counterterrorism Training/Education Program. He is co-author of Sharia - The Threat to America. Guandolo says the
western world needs to recognize that radical Islam is a threat that is not going away, and no amount of
wishing it away or talking to it or negotiating with it is going to stop it. "What stopped the Nazis was we killed and crushed
them on the field of battle,” he says. “What stopped the Communists is we did the same thing on the fields of battle in places where the Soviet
Communists were supporting actual warfare." And Guandolo says that's what's going to end the war against the jihadists. "We
need to find the
Islamic movement anywhere it is, including in the United States, and crush it and defeat it now,” he tells
OneNewsNow. “Because every month that has gone by for the last thirteen years they get stronger, better organized, better funded and more militarily
capable."
State Secrets Good DA
1nc State Secrets Privilege DA
State secrets privilege is good --- protects against lawsuits that would challenge
drone police
Rosen 11 --- Professor of Law and Director (Richard D, Center for Military Law and Policy, Texas Tech
University School of Law, “PART III: ARTICLE: DRONES AND THE U.S. COURTS”, 2011, 37 Wm.
Mitchell L. Rev. 5280, lexis)//Mnush
V. State Secrets: The Death Knell of Drone Cases
Assuming a complaint survives the jurisdictional, justiciability, immunity, and other hurdles to lawsuits
challenging U.S. drone policy, the state secrets doctrine is likely to bring the suit to a quick end. n93 Under
the doctrine, the United States may prevent the disclosure of information in judicial proceedings if there is a
reasonable danger of revealing military or state secrets. n94 Once the privilege is properly invoked and a court
is satisfied that release would pose a reasonable danger to secrets of state, "even the most compelling
necessity cannot overcome the claim of privilege." n95
Not only will the state secrets doctrine thwart plaintiffs from acquiring or introducing evidence vital to their
case, n96 it could result in dismissal of the cases themselves. Under the doctrine, the courts will dismiss a case
either because the very subject of the case involves state secrets, n97 or a case cannot proceed without the
privileged evidence or presents an unnecessary risk of revealing [*5293] protected secrets. n98 Employing
drones as a weapons platform against terrorists and insurgents in an ongoing armed conflict implicates both
the nation's military tactics and strategy as well as its delicate relations with friendly nations. n99 As such,
lawsuits challenging the policy cannot be tried without access to and the possible disclosure of
highly classified information relating to the means, methods, and circumstances under which drones
are employed.
Lawsuits will release vital intelligence about drones – that undermines tech
leadership
Murphy and Radsan 9 --- AT&T Prof. of Law @ Texas Tech University, Professor @ William Mitchell
College of Law (Richard and Afsheen, “ARTICLE: DUE PROCESS AND TARGETED KILLING OF
TERRORISTS”, November, 32 Cardozo L. Rev. 405, lexis)//Mnush
In defense of this anomaly, there are obvious policy reasons for not allowing Bivens-style claims against
American officials for targeted killings wherever they occur in the world. Among them, we do not want
federal courts damaging national security through excessive, misdirected second-guessing of executive
judgments; nor do we want [*442] the litigation process to reveal information that national security
requires to be kept secret. In Arar v. Ashcroft, a divided panel of the Second Circuit cited these "special
factors" to disallow a plaintiff from bringing a Bivens claim against officials he alleged subjected him to
extraordinary rendition. n209
But as the dissenting judge in Arar noted, these special factors lose much of their force once one
acknowledges that a Bivens-style action needs to overcome formidable hurdles of fact and law. n210 As to
practical hurdles, most people left alive by a Predator strike or other targeted killing would not turn to
American courts for relief. Some would not sue because they are, in fact, the enemy - Osama bin Laden is not
going to hire an American lawyer. n211 Others would not sue because doing so is beyond their means - a
villager from the mountains of Afghanistan is not likely to hire an American lawyer either.
As to legal hurdles, Boumediene itself poses a high one to lawsuits by non-U.S. citizens for overseas attacks.
Here we may seem to contradict our earlier insistence that Boumediene presupposes some form of
constitutional protection worldwide for everyone. n212 Yet Boumediene shows that the requirement of
judicial process depends on a pragmatic analysis. n213 As part of its balancing, Boumediene made clear that
courts should favor the interests of American citizens and of others with strong connections to the United
States. n214 Although the Boumediene petitioners lacked the preference in favor of citizens, they persuaded a
slim majority of the Court to extend constitutional habeas to non-resident aliens detained at Guantanamo.
This result, however, took place under exceptional circumstances: among them, Guantanamo is de facto
United States territory; n215 the executive had held detainees [*443] there for years and claimed authority to
do so indefinitely; and the Supreme Court doubted the fairness and accuracy of the CSRTs. n216 Absent such
circumstances, Boumediene leaves courts to follow their habit of deferring to the executive on national
security. For targeted killing, that may mean cutting off non-citizens from American courts.
The state-secrets privilege poses another barrier to Bivens-style actions. This privilege allows the government
to block the disclosure of information in court that would damage national security. n217 It could prevent a
case from proceeding in any number of ways. For instance, the government could block plaintiffs from
accessing or using information needed to determine whether a Predator attack had a sound basis through
human or technical sources of intelligence. n218 By this trump card, the government could prevent litigation
from seriously compromising intelligence sources and methods. n219
In addition, the doctrine of qualified immunity requires dismissal of actions against officials if a court
determines they reasonably believed they were acting within the scope of their legal authority. n220
Defendants would satisfy this requirement so long as they reasonably [*444] claimed they had authority
under the laws of war (assuming their applicability). These standards are hazy, and a court applying them
would tend to defer to the executive on matters of military judgment. n221
In view of so many practical and legal hurdles, some courts and commentators might be inclined to
categorically reject all Bivens-style challenges to targeted killings. In essence, they might view lawsuits related
to targeted killing as a political question left to the executive. n222 This view parallels Justice Thomas's that
courts should not second-guess executive judgments as to who is an enemy combatant. n223 Contrary to
Justice Thomas's view, the potency of the government's threshold defenses means that targeted-killing cases
that make it to the merits would likely involve the most egregious conduct - for example, killing an unarmed
Jose Padilla at O'Hare Airport on a shoot-to-kill order. For these egregious cases, a judicial check on
executive authority is most necessary.
In terms of a Mathews balancing, the question becomes whether the benefits of Bivens actions on targeted
killings of terrorists outweigh the harms. The potential harm is to the CIA's sources and methods on the
Predator program. Lawsuits might harm national security by forcing the disclosure of sensitive information.
The states-secrets privilege should block this result, however. Lawsuits might also harm national security by
causing executive officials to become risk-averse about actions needed to counter terrorist activities. Qualified
immunity, however, should ensure that liability exists only where an official lacks any justification for his
action. On the benefit side, allowing lawsuits to proceed would, in truly exceptional cases, serve the private
interest of the plaintiff in seeking compensation and, perhaps more to the point given the incommensurability
of death and money, would provide accountability. Still more important, all people have an interest in casting
light on the government's use of the power to kill in a world-wide war in which combatants and targets are
not easily identified.
Unmanned vehicle tech leadership is key to naval power all around the world
Berkowitz ’14 --- independent national security and intelligence analyst and author (Bruce, “Sea Power in the
Robotic Age,” Issues in Science and Technology, winter 2014, http://issues.org/30-2/bruce-2/)//Mnush
Note* - UMS = unmanned maritime system
The U.S. Navy’s recent interest in UMSs is partly tied to the “strategic pivot.” Officials believe that U.S.
military forces will more likely be used in the Pacific and Indian Oceans, rather than in Central Asia, the
Middle East, and Europe. This presents the Navy with new challenges.
One is distance. Operating in Asia takes personnel further from home, stretches logistics, demands greater
operating range from ships, and so on. Also, potential hot spots in Asia are highly dispersed. Looking north
to south, they include the resource-rich Arctic (Russia is making new territorial claims); Korea (Pyongyang,
along with its traditional invasion, submarine, and artillery threat to South Korea, has added a nuclear missile
threat to nations throughout the region); the perennial Taiwan Strait flashpoint; ocean claims by China against
Japan, the Philippines, and Vietnam; military and pirate threats to Indian Ocean sea lanes; and so on. The
result is greater demand for a U.S. presence over a much larger, more distant area.
As the saying goes, even the best warship cannot be in two places at the same time. But under current plans
the Navy will shrink, not grow. The five-year budget the Navy proposed to Congress in 2013 cut $58
billion from its FY 2012-13 proposal. Current plans will leave the Navy’s budget essentially flat at $152-156
billion annually through FY 2018-19. Few experts believe the Navy will top 300 surface ships during the next
decade; some think it may have fewer than 250. By comparison, at the Cold War’s end it had almost 560
ships.
Sea-based robots cannot fill the gap completely, but they can fill important missions and add new capabilities
to confound potential adversaries. Some scenarios discussed include:
• Counter-mine warfare. Mines are a particular concern for the Strait of Hormuz and Strait of Malacca. As
noted, mine clearing has been a primary mission of UMSs. Robotic systems can often clear a larger area faster
and usually more safely than older methods. Countermine UMSs could be kept on station in such hotspots
and also to serve as a deterrent.
• Anti-submarine warfare. Countries such as Iran and China are deploying new submarines that many
Western analysts believe could threaten maritime trade or prevent the United States from delivering supplies
and reinforcements to its regional allies in wartime. UMSs could assume part of the mission of detecting,
tracking, and following them, partly offsetting the Navy’s shrinking submarine fleet.
• Information operations. Because UUSs are usually quieter than submarines, it is straightforward to equip
them to mimic the sounds of their manned counterparts. Again, this capability could help as the U.S.
submarine force is stretched thin. Such “spoofing” complicates targeting for an adversary in wartime, and its
ability to develop reliable signatures and databases of U.S. forces before a conflict begins.
• Strike warfare and area denial. It would be possible to adapt short- and medium-range precision-guided
missiles to UMSs, just as missiles were added to unmanned aerial vehicles (UAVs) such as Predator and
Reaper. In one scenario, the Navy could position armed UUSs close to a potential hotspot such as North
Korea or the Taiwan Strait. During a crisis some might be surfaced as a “show of force,” and then the
weapons would be concealed to serve as a deterrent. UUSs could also attack enemy ships in port or en route.
They could provide greater endurance than manned vessels for remaining on station, and greater ability than
traditional torpedoes or mines to adapt to changing conditions.
•Infiltration and payload emplacement. Prior to amphibious operations in World War II, Navy frogman
surveyed approaches, emplaced demolitions to destroy enemy defenses, and planted navigation beacons to
guide forces to their targets. SEALs perform similar activities today. UMSs could allow them to work from a
greater distance.
• Infrastructure inspection and servicing. The Navy maintains an extensive underwater infrastructure for
command, control, and communications. UMSs could be used to maintain this infrastructure, much as the oil
exploration industry uses them today to service offshore rigs.
• Harbor policing. The Navy has performed this function in operations overseas and as part of its
force protection responsibilities at home. They could use UMSs to detect intruders and inspect
vessels, as could the Coast Guard, Customs and Border Protection, and local police.
• Ad-hoc sensor and communication networks. Today when U.S. forces go to war, one of their first tasks is
to establish “tactical intranets” to move information among units. UMSs offer a means to establish such
networks quickly in a combat zone offshore or at sea, using a combination of radio frequency, acoustic, and
pre-laid fiber optic links.
• Environmental monitoring and oceanography. UMSs can be used to determine conditions in littorals just
before a military operation and collect information on ocean conditions for long-term planning and research.
Naval power puts a cap on conflict and solves every impact
NLUS, 12 – a nonprofit organization dedicated to educating our citizens about the importance of sea power
to U.S. national security and supporting the men and women of the U.S. Navy, Marine Corps, Coast Guard
and U.S.-flag Merchant Marine and their families (Navy League of the United States, “Maritime Primacy &
Economic Prosperity: Maritime Policy 2012-13”, Navy League of the United States, 1/21/2012,
http://www.navyleague.org/files/legislative_affairs/maritime_policy20122013.pdf)
Global engagement is critical to the U.S. economy, world trade and the protection of democratic freedoms that so many take for granted. The
guarantors of these vital elements are hulls in the water , embarked forward amphibious forces and aircraft overhead . The
Navy League of the United States’ Maritime Policy for 2012-13 provides recommendations for strategy, policy and the allocation of national resources
terrorism,
political and economic turmoil, extremism, conflicts over environmental resources, manmade and natural
disasters — and potential flash points exist around the globe. It is the persistent forward presence and
engagement of maritime forces that keep these flash points in check, prevent conflict and crisis
escalation , and allow the smooth flow of goods in a global economy. The United States has fought multiple wars and sacrificed much to ensure
in support of our sea services and essential to the successful execution of their core missions. We live in a time of complex challenges —
un challenged access to sea lanes and secure the global commerce upon which the U.S. economy depends. The “persistent naval presence” provided by
our forward-deployed
Navy and Marine Corps ships, aircraft, Sailors and Marines is the guarantor of that hard-won maritime
security and the critical deterrent against those who might seek to undermine that security. Maintaining naval forces that
can sustain our national commitment to global maritime security and dissuade transnational aggression in the future must be a national imperative.
2nc Links
The privilege applies to drones
Sinnar 13 --- Assistant Professor of Law at Stanford (Shirin, “Protecting Rights from Within? Inspectors
General and National Security Oversight”, May, 65 Stan. L. Rev. 1027, lexis)//Mnush
More than a decade after September 11, 2001, the debate over which institutions of government are best
suited to resolve competing liberty and national security concerns continues unabated. While the Bush
Administration's unilateralism in detaining suspected terrorists and authorizing secret surveillance initially
raised separation of powers concerns, the Obama Administration's aggressive use of drone strikes to target
suspected terrorists, with little oversight, demonstrates how salient these questions remain. Congress
frequently lacks the [*1029] information or incentive to oversee executive national security actions that
implicate individual rights. Meanwhile, courts often decline to review counterterrorism practices
challenged as violations of constitutional rights out of concern for state secrets or institutional
competence. n1 These limitations on traditional external checks on the executive - Congress and the courts have led to increased academic interest in potential checks within the executive branch. Many legal scholars
have argued that executive branch institutions supply, or ought to supply, an alternative constraint on
executive national security power. Some argue that these institutions have comparative advantages over
courts or Congress in addressing rights concerns; others characterize them as a second-best option
necessitated by congressional enfeeblement and judicial abdication.
Empirics prove – state secrets have hidden the drone program
Bazzle 12 --- J.D. Georgetown University Law Center (Tom, “Shutting the Courthouse Doors: Invoking the
State Secrets Privilege to Thwart Judicial Review in the Age of Terror”, 2012, 23 Geo. Mason U. Civ. Rts. L.J.
29, lexis)//Mnush
C. A New Frontier: The Obama Administration's Invocation of State Secrets to Prevent Judicial Oversight of
Its Plan to Target and Kill Anwar al-Aulaqi The American-born Yemeni cleric Anwar al-Aulaqi was perhaps
the most notorious member of the Obama Administration's controversial "targeted killing" list, n171 a
classified but widely-known-to-exist list of alleged terrorists identified by intelligence agencies for targeted
killing by U.S. forces and the government's growing arsenal of unmanned drones. n172 As a propagandist of
the Al Qaeda in the Arabian Peninsula (AQAP), al-Aulaqi's incendiary statements and alleged involvement in
recently foiled terrorist plots n173 led the Obama Administration to conclude that he posed such a sufficient
threat to U.S. security to justify the unprecedented step of targeting him for capture or killing. n174 Despite
outcries from across the political spectrum [*56] that targeting a U.S. citizen for assassination without first
charging him and convicting him of a crime amounted to an unconscionable violation of due process rights,
n175 the Obama Administration continued undeterred in its search for al-Aulaqi. This pursuit ended on
September 30, 2011, when an American drone strike in Yemen killed al-Aulaqi and several others, including
an American citizen of Pakistani origin that had edited Al Qaeda's online jihadist magazine. n176 Prior to alAulaqi's killing, his father, Nasser al-Aulaqi - represented by the ACLU and Center for Constitutional Rights
(CCR) - filed a claim in the District Court for the District of Columbia to enjoin his assassination, and in
response, the Obama Administration invoked the state secrets privilege. n177 Al-Aulaqi charged that the
authority contemplated by the Obama Administration is far broader than what the Constitution and
international law allow. n178 According to al-Aulaqi, outside of armed conflict, both the Constitution and
international law prohibit targeted killing except as a last resort to protect against concrete, specific, and
imminent threats of death or serious physical injury. n179 Al-Aulaqi further argued that an extrajudicial
policy, under which names are added to CIA and military "kill lists" for a period of months, through a secret
executive process, is plainly limited to imminent threats. n180
Revealing secrets could threaten national security
Conan and Abramson ’06 --- Host and Reporter (Neil and Larry, “Invoking the State Secrets Privilege,”
npr, June 19, 2006, http://www.npr.org/templates/story/story.php?storyId=5495919)//Mnush
ABRAMSON: Right and - but let's give the government their due. If you are asked to disclose how you
target members of a terrorist group in order to allow litigation to go forward, you're basically giving away
the keys to the store. You're telling people how to avoid surveillance. And the same thing goes for some
of these employment discrimination cases. They did possibly threaten a lot of sensitive information that
would have jeopardized, perhaps, the lives of people working undercover.
So it's very difficult for them - for the government to explain in public why they're trying to keep something
secret, because, you know, it's a secret. And that's the nature of it, and they can't jeopardize somebody's life in
order to allow a civil proceeding to go ahead.
Government keeps secrets to maintain national security
Wencker ’13 --- attorney representing local and small governments (Chris, “Why does the government keep
secrets from us?” Law Office of Christopher Wencker P.L.C, http://www.wenckerlaw.com/governmentalperspective-blog/why-does-the-government-keep-secrets-from-us)//Mnush
The ongoing saga of Edward Snowden and his legal troubles in the wake of his disclosure of classified information has generated lively
discussion about the role of government surveillance in creating security for our society. Many people are debating whether or
not the government should be keeping secrets about its surveillance activities. I recently heard an interview on the radio in which the guest explained that, in his opinion, secret
security systems were ineffective, because they are not improved by being subjected to scrutiny and constant testing. While this may be a valid point
for computer firewalls and the like, I think this misunderstands the justification for government secrecy
in some programs. The purpose of keeping information from general dissemination is -- or at least
should be -- to prevent the information from benefiting those who would do harm to society. For example, if
the police are aware that organized criminals are using a particular location to discuss their murder plans, and they can plant a
listening device in that location, allowing the general public to know about the device will defeat its purpose.
The criminals will simply find another, more private, location to hatch their plan. In situations such as this, secrecy is key. Secrecy is a problem, on the other
hand, when it is used to prevent the public from uncovering illegal activity. Unfortunately, many people
assume that information is kept secret for the latter reason, when in actuality it is for the former. Please keep this in
mind when seeking information from the government. For the most part, the people working in these areas are genuinely motivated by a desire to help their fellow citizens, by stopping those who
They generally have no interest in your personal discussions
about what to make for dinner, and would rather focus on discussions about criminal activity. If you request
documents about a particular government program and are denied because the information is classified, do
not assume that the program is targeting you.
would seek to harm us. This includes most police officers and intelligence professionals.
Unmanned Vehicle Tech Leadership Key to Naval Power
Unmanned vehicle tech leadership is key to naval power
Landay et al. 4 (William E. Landay III – RDML (Rear Admiral), USN, Concurring with the following:
Michael A. LeFever, RDML, USN Raymond A. Spicer, RDML, USN Roseanne M. Levitre, RDML, USN
Steven J. Toma szeski, RADM, USN, Oceanographer of the Navy, Approved by Joseph A. Walsh and Roger
M. Smith of US Navy, “The Navy Unmanned Undersea Vehicle (UUV) Master Plan”, 11/9,
http://www.navy.mil/navydata/technology/uuvmp.pdf)
The Vision for UUVs and the Objective of the UUV Master Plan Today our naval forces enjoy maritime superiority
around the world and find themselves at a strategic inflection point during which future capabilities must be
pondered with creativity and innovation . Change must be embraced and made an ally in order to take
advantage of emerging technologies, concepts, and doctrine; thereby preserving the nation’s global leadership. Sea
Power 21 has additionally specified unmanned vehicles as force multipliers and risk reduction agents for the
Navy of the future. Transformation applies to what we buy as well as how we buy and operate it–all while competing with other shifting national
investment priorities. The growing use of unmanned systems– air, surface, ground, and underwater is continually
demonstrating new possibilities. While admittedly futuristic in vision , one can conceive of scenarios where UUVs sense,
track, identify, target, and destroy an enemy–all autonomously and tie in with the full net-centric battlespace. UUV systems will
provide a key undersea component f o r FORCEnet, contributing to an integrated picture of the battlespace. Even though today’s
planners, operators, and technologists cannot accurately forecast the key applications for U UVs in the year 2050, this plan provides a roadmap to
move toward that vision. Pursuit
of this plan’s updated recommendations beginning in the year 2004, will place increasingly large
numbers of UUVs in the hands of warfighters. Thus, xvii UUV Master Plan UUVs can begin addressing near-term needs while im
proving understanding of mid- to far-term possibilities. Even the most futuristic applications can evolve in a confident, cost-effective manner. This
confidence is based on several factor s: the Sea Power 21 Sub-Pillar capabilities identified he readdress a broad ran g e of user needs; critical
technologies are identified that will enable tomorrow’s more complex applications; and key principles and best practices are
recommended that p r o v ide for a logical, flexible, and affordable development effort.
Navy Prevents Great Power War
Strong navy is key to prevent great power – deterrence
Eaglen 11 (Mackenzie, Heritage Foundation Research Fellow for National Security Studies, Allison Center
for Foreign Policy Studies, May, 16, 2011, “Thinking about a Day without Sea Power: Implications for U.S.
Defense Policy”, http://www.heritage.org/research/reports/2011/05/thinking-about-a-day-without-seapower-implications-for-us-defense-policy)
Under a scenario of dramatically reduced naval power, the United States would cease to be active in any international
alliances. While it is reasonable to assume that land and air forces would be similarly reduced in this scenario, the lack of credible maritime capability to move their bulk
and establish forward bases would render these forces irrelevant, even if the Army and Air Force were retained at today’s
levels. In Iraq and Afghanistan today, 90 percent of material arrives by sea, although material bound for Afghanistan must then make a laborious journey by land into theater. China’s
claims on the South China Sea, previously disputed by virtually all nations in the region and routinely contested by U.S. and partner naval forces, are accepted as a fait
accompli, effectively turning the region into a “Chinese lake.” China establishes expansive oil and gas exploration with new deepwater drilling technology and secures its
local sea lanes from intervention. Korea, unified in 2017 after the implosion of the North, signs a mutual defense treaty with China and solidifies
their relationship. Japan is increasingly isolated and in 2020–2025 executes long-rumored plans to create an indigenous nuclear weapons
capability.[11] By 2025, Japan has 25 mobile nuclear-armed missiles ostensibly targeting China, toward which Japan’s historical animus remains strong. China’s entente
with Russia leaves the Eurasian landmass dominated by Russia looking west and China looking east and south. Each cedes a
sphere of dominance to the other and remains largely unconcerned with the events in the other’s sphere. Worldwide, trade in foodstuffs collapses. Expanding
populations in the Middle East increase pressure on their governments, which are already stressed as the breakdown in world trade
disproportionately affects food importers. Piracy increases worldwide, driving food transportation costs even higher. In the Arctic, Russia
aggressively asserts its dominance and effectively shoulders out other nations with legitimate claims to seabed resources. No naval power
exists to counter Russia’s claims. India, recognizing that its previous role as a balancer to China has lost relevance with the retrenchment of the Americans, agrees
to supplement Chinese naval power in the Indian Ocean and Persian Gulf to protect the flow of oil to Southeast Asia. In exchange, China agrees to
exercise increased influence on its client state Pakistan. The great typhoon of 2023 strikes Bangladesh, killing 23,000 people initially, and 200,000 more die in the
subsequent weeks and months as the international community provides little humanitarian relief. Cholera and malaria are epidemic. Iran dominates the Persian Gulf and is a
nuclear power. Its navy aggressively patrols the Gulf while the Revolutionary Guard Navy harasses shipping and oil infrastructure to force Gulf Cooperation Council (GCC) countries into Tehran’s
orbit.
Russia supplies Iran with a steady flow of military technology and nuclear industry expertise. Lacking a regional threat, the Iranians happily control the flow of
oil from the Gulf and benefit economically from the “protection” provided to other GCC nations. In Egypt, the decade-long experiment in participatory democracy ends with the ascendance of the
Muslim Brotherhood in a violent seizure of power. The United States is identified closely with the previous coalition government, and riots break out at the U.S. embassy. Americans in Egypt are left to
Led by Iran, a
coalition of Egypt, Syria, Jordan, and Iraq attacks Israel. Over 300,000 die in six months of fighting that includes a limited nuclear exchange between Iran and Israel. Israel is
their own devices because the U.S. has no forces in the Mediterranean capable of performing a noncombatant evacuation when the government closes major airports.
defeated, and the State of Palestine is declared in its place. Massive “refugee” camps are created to house the internally displaced Israelis, but a humanitarian nightmare ensues from the inability of
The NATO alliance is shattered. The security of European nations depends increasingly on the
lack of external threats and the nuclear capability of France, Britain, and Germany, which overcame its reticence to military capability
conquering forces to support them.
in light of America’s retrenchment. Europe depends for its energy security on Russia and Iran, which control the main supply lines and sources of oil and gas to Europe. Major European nations stand
down their militaries and instead make limited contributions to a new EU military constabulary force. No European nation maintains the ability to conduct significant out-of-area operations, and
Europe as a whole maintains little airlift capacity.
Strong navy key to allied response- creates a super-deterrent
Lyons, 13 -- retired Navy admiral
[James, commander in chief of the U.S. Pacific Fleet and senior U.S. military representative to the United
Nations, "Where are the carriers?" Washington Times, 1-15-13, l/n, accessed 1-22-13]
To keep pressure on and raise the level of deterrence, movement of naval forces, particularly carrier strike groups,
must remain unpredictable. In a deteriorating crisis situation, our Navy gains maximum impact by moving the
carrier strike group into the crisis area. That sends a special signal of our intent to respond to our potential
enemies and to our allies as well. Such a signal has a telling effect on our regional allies and encourages them to employ
their air force and naval assets in a coordinated manner, which certainly should raise the deterrent
equation .
Naval Power Key to the Economy
Naval power collapse kills the economy and trade
Eaglen 11 (Mackenzie, Heritage Foundation Research Fellow for National Security Studies, Allison Center
for Foreign Policy Studies, May, 16, 2011, “Thinking about a Day without Sea Power: Implications for U.S.
Defense Policy”, http://www.heritage.org/research/reports/2011/05/thinking-about-a-day-without-seapower-implications-for-us-defense-policy, 2/16/13, atl)
If the United States slashed its Navy and ended its mission as a guarantor of the free flow of transoceanic goods and
trade, globalized world trade would decrease substantially. As early as 1890, noted U.S. naval officer and historian Alfred Thayer Mahan described the world’s
oceans as a “great highway…a wide common,” underscoring the long-running importance of the seas to trade.[12] Geographically organized trading blocs develop as the maritime highways suffer from
Asia prospers thanks to internal trade and Middle Eastern oil, Europe muddles along on the largesse of Russia and Iran, and the Western
Hemisphere declines to a “new normal” with the exception of energy-independent Brazil. For America, Venezuelan oil grows in importance as other supplies
decline. Mexico runs out of oil—as predicted—when it fails to take advantage of Western oil technology and investment. Nigerian output, which for five years had been
secured through a partnership of the U.S. Navy and Nigerian maritime forces, is decimated by the bloody civil war of 2021. Canadian exports, which a decade earlier had been
insecurity and rising fuel prices.
strong as a result of the oil shale industry, decline as a result of environmental concerns in Canada and elsewhere about the “fracking” (hydraulic fracturing) process used to free oil from shale. State and
hazards to seaborne shipping, which are compounded by the necessity of traversing key
chokepoints that are easily targeted by those who wish to restrict trade. These chokepoints include the Strait of Hormuz, which Iran could quickly
close to trade if it wishes. More than half of the world’s oil is transported by sea. “From 1970 to 2006, the amount of goods transported via the oceans of the world…increased from 2.6 billion tons
non-state actors increase the
to 7.4 billion tons, an increase of over 284%.”[13] In 2010, “$40 billion dollars [sic] worth of oil passes through the world’s geographic ‘chokepoints’ on a daily basis…not to mention $3.2
These quantities of goods simply cannot be moved by any other
means. Thus, a reduction of sea trade reduces overall international trade. U.S. consumers face a greatly
diminished selection of goods because domestic production largely disappeared in the decades before the global depression. As countries increasingly focus on regional rather
than global trade, costs rise and Americans are forced to accept a much lower standard of living. Some domestic manufacturing
improves, but at significant cost. In addition, shippers avoid U.S. ports due to the onerous container inspection regime implemented after investigators discover that the
second dirty bomb was smuggled into the U.S. in a shipping container on an innocuous Panamanian-flagged freighter. As a result, American
consumers bear higher shipping costs. The market also constrains the variety of goods available to the U.S. consumer and increases their cost. A Congressional Budget
trillion…annually in commerce that moves underwater on transoceanic cables.”[14]
Office (CBO) report makes this abundantly clear. A one-week shutdown of the Los Angeles and Long Beach ports would lead to production losses of $65 million to $150 million (in 2006 dollars) per
employment
would shrink by approximately 1 million jobs.[15] These estimates demonstrate the effects of closing only the Los Angeles and Long
Beach ports. On a national scale, such a shutdown would be catastrophic. The Government Accountability Office notes that: [O]ver 95
percent of U.S. international trade is transported by water[;] thus, the safety and economic security of the United States depends in large
part on the secure use of the world’s seaports and waterways. A successful attack on a major seaport could potentially result in a dramatic slowdown in the
international supply chain with impacts in the billions of dollars.[16] As of 2008, “ U.S. ports move 99 percent of the nation’s overseas cargo, handle
day. A three-year closure would cost $45 billion to $70 billion per year ($125 million to $200 million per day). Perhaps even more shocking, the simulation estimated that
more than 2.5 billion tons of trade annually, and move $5.5 billion worth of goods in and out every day.” Further, “approximately 95 percent of U.S. military forces and supplies that are sent overseas,
including those for Operations Iraqi Freedom and Enduring Freedom, pass through U.S. ports.”[17]
Naval power key to the global economy
Conway, Roughead, and Allen, 07- *General of U.S. Marine Corps and Commandant of the Marine
Corps, **Admiral of U.S. Navy and Chief of Naval Operations, ***Admiral of U.S. Coast Guard and
Commandant of the Coast Guard (*James Conway, **Gary Roughead, ***Thad Allen, "A Cooperative
Strategy for 21st Century Seapower", Department of the Navy, United States Marine Corps, United States
Coast Guard, http://www.navy.mil/maritime/MaritimeStrategy.pdf, KONTOPOULOS)
The world economy is tightly interconnected. Over the past four decades, total sea borne trade has more than
quadrupled: 90% of world trade and two-thirds of its petroleum are transported by sea. The sea-lanes and
supporting shore infrastructure are the lifelines of the modern global economy, visible and vulnerable
symbols of the modern distribution system that relies on free transit through increasingly urbanized littoral
regions. Expansion of the global system has increased the prosperity of many nations. Yet their continued growth may create increasing
competition for resources and capital with other economic powers, transnational corporations and international organizations.
Heightened
popular expectations and increased competition for resources, coupled with scarcity, may encourage nations
to exert wider claims of sovereignty over greater expanses of ocean, waterways, and natural resources—
potentially resulting in conflict.
Secrecy Key to U.S. Nuclear Deterrent
Secrecy is key to the US nuclear deterrent
Green 97 (Tracey – Associate with McNair Law Firm, J.D. – University of South Carolina, “Providing for
the Common Defense versus Promoting the General Welfare: the Conflicts Between National Security and
National Environmental Policy”, South Carolina Environmental Law Journal, Fall, 6 S.C Envtl. L.J. 137,
lexis)
The deployment of nuclear weapons, however, is a DoD action for which secrecy is crucial and, thus, is
classified by Executive Order. n59 According to the American policy of deterrence through mutually assured destruction (MAD),
nuclear weapons are essential to an effective deterrent. n60 If DoD disclosed the location of these weapons,
disclosure would reduce or destroy the deterrent. An adversary could destroy all nuclear weapons with an
initial strike, leaving the country exposed to nuclear terror. n61 Additionally, terrorists would know where to strike
to obtain material for nuclear blackmail. In short, secrecy regarding nuclear weapons has enormous
implications for national security. While the armed services must consider the environmental effects of maintaining nuclear
weapons, they cannot release any information regarding the storage of these weapons.
Escalates to global nuclear war
Caves 10 (John P. Jr., Senior Research Fellow in the Center for the Study of Weapons of Mass Destruction –
National Defense University, “Avoiding a Crisis of Confidence in the U.S. Nuclear Deterrent”, Strategic
Forum, No. 252, http://www.ndu.edu/inss/docUploaded/SF%20252_John%20Caves.pdf)
Perceptions of a compromised U.S. nuclear deterrent as described above would have profound policy
implications, particularly if they emerge at a time when a nuclear-armed great power is pursuing a more
aggressive strategy toward U.S. allies and partners in its region in a bid to enhance its regional and global
clout.
A dangerous period of vulnerability would open for the United States and those nations that depend on U.S.
protection while the United States attempted to rectify the problems with its nuclear forces. As it would take
more than a decade for the United States to produce new nuclear weapons, ensuing events could preclude a
return to anything like the status quo ante.
■
The assertive, nuclear-armed great power, and other major adversaries, could be willing to challenge U.S.
interests more directly in the expectation that the United States would be less prepared to threaten or deliver
a military response that could lead to direct conflict. They will want to keep the United States from reclaiming
its earlier power position.
■
Allies and partners who have relied upon explicit or implicit assurances of U.S. nuclear protection as a
foundation of their security could lose faith in those assurances. They could compensate by accommodating
U.S. rivals, especially in the short term, or acquiring their own nuclear deterrents, which in most cases could
be accomplished only over the mid- to long term. A more nuclear world would likely ensue over a period of
years.
■
Important U.S. interests could be compromised or abandoned, or a major war could occur as adversaries
and/or the United States miscalculate new boundaries of deterrence and provocation. At worst, war could
lead to state-on-state employment of weapons of mass destruction (WMD) on a scale far more
catastrophic than what nuclear-armed terrorists alone could inflict.
■
Kritiks – Top Level
CVE / Terrorism Links
Conceptions of the radicalization of Islam ignores the complexity of violence and
posits an ethnicity as coterminous with terrorist. Counter-radicalization strategies
skew our perceptions of Islam by exaggerating the threat of terror
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11 and gingE)
B. Radicalization, Counterradicalization, and National Security n183 Like broken windows theory, radicalization theory has been highly contested and
yet broadly influential in shaping contemporary policing. While U.S. government accounts take for granted a problem with radicalization that warrants
government intervention, the literatures of governments, academics, experts, and civil society stakeholders around the world express profound
disagreement over the meaning of radicalization, and the nature and extent of threat embodied by Muslims. n184 Radicalization
discourse
purports to predict future terrorism, drawing from studies of prior terrorist acts to identify trends and details
that will aid in identifying future terrorists. In so doing, radicalization redefines and expands the legitimate
scope of government concern from terrorism - a question of political violence, of crime, even of war crime - to radicalization - a
question of religious and political cultures and beliefs. Before moving further into the problems inherent in overlaying radicalization theory onto
community engagement, it is worth exploring the similarities and differences between the work of radicalization theory and broken windows theory.
The primary similarities are threefold. First, both
radicalization and broken windows are preventative theories of crime
control, calling for prophylactic state action against noncriminal behavior. Second, while both theories
appear concerned with disorder or radicalization in the abstract, their practical effect is to bring
considerable scrutiny to communities already marginalized by virtue of race and religion. As a practical
matter, broken windows theory foregrounds race and inequality as instigators or signs of disorder. n185 Counterradicalization and CVE, in practice
and in theory, are almost exclusively focused on Muslims. n186 Moreover, when manifest in community policing and community engagement
approaches, the
theories work to cultivate partnerships with community members in order to increase the
legitimacy and reach of law enforcement into the subject communities. Third, in addition to shaping community
policing/engagement [*877] approaches, both theories have had great influence on the broader field of policing tactics in
the relevant communities (and beyond). There are at least two important differences. In terms of (contested) causal claims, broken
windows theory focuses on physical signs of disorder as signals of deteriorating social order, whereas radicalization emphasizes
ideological currents of disorder as motivators for acts of terrorism. Radicalization's concern is predicated
on a false belief in the teleological character of Islam - that if Muslims communities witness conservative religious practice
and critical politics, they will view such currents as acceptable and gravitate toward radicalism, thereby producing more terrorists. Second, the theories
arguably have propelled different types of police action. Whereas broken
windows theory leads to aggressive enforcement
against misdemeanor and minor crimes, counterradicalization produces increased surveillance. n187 This distinction
has its limits, since broken windows policing serves an intelligence-gathering function, and counter-radicalization shapes prosecutorial
priorities. But while both theories expand the role of the state and the blueprint of policing, their mechanics are distinct.
To be clear, I'm less concerned with anaologies between the causal mechanics of the theories, and more concerned with how the theories construct the
categories of the disorderly and the radical, and the implications those constructions have for policing and the subject communities. 1. Blurring Dissent
and Difference With Violence Even aside from the disproportionate focus on politically motivated violence by Muslims in terrorism studies, there
are key definitional problems with radicalization discourse. Most fundamentally, the terms radicalization
and extremism are used sloppily and with unclear meaning, with a causal connection assumed between
radical ideas and committing acts of terrorism. n188 [*878] Empirical research "has emphatically and repeatedly concluded" that there
is no single terrorist profile and no obvious markers for the process by which someone becomes a terrorist. n189 The process by which
people embrace violence is not linear but complex. n190 Importantly, studies of so-called homegrown terrorism also reject the ideas
that Islam and terrorism are linked, or that observing the Muslim faith constitutes a step toward violence. n191 Nor is there data to suggest
that Muslims are becoming more radical in their views, let alone more violent. n192 National security
prosecutions in the headlines provide a skewed sense of the threat; the vast majority of those prosecutions do
not charge defendants with any violent crime, or with any intent to commit violent crime, but instead with
material support for terrorism - a very broad concept typically far removed from violence. n193 Despite their continued hold
on law enforcement, the NYPD and FBI reports are transparent paper tigers - now deconstructed many
times over. n194 The stages and factors of radicalization are internally inconsistent and vague enough to
justify surveillance of any person who identifies as Muslim, or is linked with Muslim religious or political
community. Consider, for example, that the NYPD [*879] report marks as "radicalization incubators" "cafes, cab driver hangouts, flophouses,
prisons, student associations, nongovernmental organizations, hookah (water pipe) bars, butcher shops and book stores": mostly locations where
Muslims or those from Muslim-majority countries are likely to spend their time, whether for religious, political, or sentimental reasons. n195 The
reports offer little to no data in support of their ambitious conclusions, with the lack of substantiation
reflecting and reconstituting the marginalization and stigmatization of American Muslims. The data on
which the reports rely include national security prosecutions involving questionable tactics by law
enforcement: constructing the plot, providing the means, and incentivizing the conduct. In other words, the data
results in part from cases in which the FBI created or molded the behavior it then purported to model. n196 In other cases, the defendants never
committed a violent act, confounding the link between their behavior and a willingness to commit terrorist acts. n197 Overall, there remains no
trustworthy empirical account of radicalization that suggests the idea has explanatory or predictive power. n198
Counter-radicalization normalizes a system of suspicion that portrays all Muslims as
terrorists – Muslim identity becomes synonymous with state resistance and antiAmericanism, which causes violence against those who aren’t “American” enough
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11 and gingE)
[*883] The political vector marks your relationship to the project of American statecraft vis a vis your concern and commune with other Muslims.
The ideological questions are awash in a loyalty calculus, focused on whether you foreground concern with
Muslim community and Muslim suffering at home and abroad, or the imperatives of the U.S. government in
effectuating its policies. Implicit here is the idea that such concern is compatible with American identity only to the extent that it comes
second or does not compete with U.S. government interests. n212 The activity dimensions focus on Muslim engagement with political issues vis a vis
other Muslims and the U.S. government. Does this person or community protest U.S. foreign or national security policy? Does this person or
community comply with requests to inform on the local mosque when asked by the FBI to do so? The radicalization and counterradicalization
discourses have clear implications for the meaning of good citizenship on the part of American Muslims: To be a good citizen is to have a compliant
relationship with the state, rather than to relate from an oppositional or contesting stance. Are you with us or against us? n213 remains the question. If
radicalization creates ideological force for the idea that the state should monitor Muslims, and radical
Muslims in particular, then counterradicalization initiatives operationalize the distinction, offering American
Muslims an opening to perform their Americanness by partnering with the government. n214 The distinction emerges
not simply from how Muslims signal their identity or allegiance with regard to Muslim religious practices or other Muslims. The distinction between
the radical and American Muslim emerges in part from how Muslims relate to U.S. statecraft or U.S. government initiatives. [*884]
Counterradicalization creates friction between loyalty to the U.S. project and practices of Muslim identity. In
particular, the Muslim concept of the ummah, or global Muslim community, comes into conflict with
counterradicalization commitments. Resistance to, or criticism of, American foreign policy in Muslim lands is a factor of radicalization.
n215 So is concern for Muslim casualties abroad, or discrimination against Muslims in the United States. n216 Traveling abroad to Muslim countries,
even for hyphenated second-generation Americans visiting family, suggests suspicious connection. n217 In
classifying Muslims who
attend mosque, who travel or send money abroad, or who oppose the U.S. drone policy in Yemen and
Pakistan, as within the process of radicalization toward terrorism, the theory marks individuals and
geographies as sufficiently different to be outside the protections of the state, transforming them into
legitimate objects of state scrutiny. n218 Radical Muslims become the lawless out-of-place subjects deserving of little protection. n219
Counterradicalization cleaves Muslim from American identities in another way, equating cooperation with the
state with Americanness and loyalty, and dissent with Muslimness, radicalization, and terrorism. Efforts at
partnering with Muslim communities in counterradicalization efforts create opportunities for American Muslims to signal their allegiance. Like the
"regulars" and the "lawful" in the broken windows account, those
considered American Muslims are partners in
counterradicalization - they stand for the state's values, will cooperate with the police in their efforts to
monitor and influence coreligionists, and will step down in the face of conflict. By exercising a right of refusal
to cooperate with the state, the American Muslim moves toward radicalism, the radical emerging in response
to the state's policing. [*885] b. Creating the Terms of Racial Obedience Radicalization and counterradicalization place
identity pressures on American Muslims in their interactions with each other, the public, and the state. n220 To
cooperate - no matter the substance of law enforcement's demand and expectation - is to validate one's American identity. To refuse or to dissent is to
express radicalism, or at least openness to it. n221 Radicalization
policing creates the "racial obedience toward, and fear of,
the police," manifested in "particular kinds of performances .... to signal acquiescence and respectability." n222
Of course this racialized pressure emerges from a larger social context - people of color are subject to more frequent and
more severe police scrutiny, and they are fearful that refusing the police will stoke racial animosity or race-based suspicion and aggravate an already bad
situation. n223 Immigrants in particular are less likely to know their rights. In all these contexts, accountability
is minimal, so the police
"have an incentive to exploit vulnerabilities." n224 Radicalization theory has created a post-9/11 reality in which Muslims "are
more vulnerable to compliance requests, more likely to comply, and have to give up more privacy to do so." n225 Radicalization-informed
policing produces a loyalty discourse in which there are "good" and "bad" Muslims, and thereby
"entrenches the idea of [Muslimness] as a crime of identity," n226 "encourages group surveillance," and incentivizes
Muslims "to be available for, indeed advocate for, white [*886] racial inspection of [Muslimness]." n227 As with the politics of respectability in Black
communities, this approach does not protect the "good" Muslims but, instead, renders all Muslims "vulnerable to racial profiling." n228 Indeed,
radicalization creates geographies of suspicion. While the geography of broken windows theory was effectively one of class and
race - hoisting the specter of the poor Black neighborhood - the sphere of radicalization is religious and cultural (though of course
inflected by race and class as well). n229 In large metropolitan centers, there are certainly physically contiguous neighborhoods where Muslims of
similar racial or class backgrounds reside. In
the rest of the country, however, Muslims of different classes, races,
nationalities, and linguistic and ethnic groups are more dispersed. In these places, government surveillance creates a different
kind of geography out of the places where Muslims gather: the mosque, the halal butcher, or the Indian or Somali grocery store. And visiting these
places makes you vulnerable to police scrutiny. n230 Beyond
the policing practices themselves, there is the realm of public
discourse and debate in which Muslims make their choices. The most public and theatrical government initiative drawing
attention to radicalization occurred with Peter King's first in a series of hearings before the House Homeland Security Committee in 2011 and 2012,
meant to address "a crisis of radicalization to violence ... within the Muslim-American community" n231 [*887] and a refusal by Muslims to cooperate.
n232 Those called by King as representatives of Muslim communities testified that American Muslims were ignoring concerns with radicalization and
could do more to cooperate. n233 The witnesses lampooned a number of mainstream and prominent American Muslim advocacy organizations Muslim Advocates, the Council on American Islamic Relations, and the Muslim Public Affairs Council, all of which have met regularly with federal,
state, and local city officials - for undermining Muslim cooperation with law enforcement efforts. The organizations and other community leaders
came under fire especially for their recent initiatives counseling community members to retain a lawyer before dealing with the FBI. n234
Counter-radicalization of terrorism is shrouded in a politics of anti-knowledge and
exaggeration of threat – silences the Muslim community and pathologizes social
problems
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
c. Racializing Ideology In addition to shaping modes of political engagement with the state, radicalization
discourse and
counterradicalization practice affect the parameters of religious and political conversations and contestation
by rendering certain viewpoints or topics as off limits. n239 Of course it is not just the existence of the discourse at work here - it
is the recurring and regularized interactions with police that serve as constant reminders of the stakes for
American Muslims. Much of terrorism and radicalization discourses are enshrouded in a politics of "antiknowledge." n240 Terrorism studies tend to "reduce complex social, historical, and political dynamics." n241 Chief among the "constraints
shaping what can be said about terrorism" is "denial of the possibility of rational causes, and the
attribution of terrorism to pure evil." n242 The mainstream narrative "implies that, once an individual has
adopted an extremist religious ideology, terrorism will result, irrespective of political context or any
calculation on the part of any organisation or social movement." n243 Similarly, radicalization and violent extremism discourse
displaces any attention on political context with a focus on theological and psychological factors that supposedly foment radicalization. n244 [*889]
Radicalization theory marks certain topics or viewpoints as beyond the pale by suggesting that they are un-American or likely to draw government
scrutiny. n245 As a result, radicalization
discourse puts pressure on the contours of conversation among Muslim
communities about the public issues of our times to which many American Muslims are particularly attuned.
n246 American
Muslims are thus less likely to vocalize concerns about the exercise of American war power
in Iraq, Afghanistan, Pakistan, Somalia, Yemen, and so on. n247 The absence of Muslim voices on these issues
is particularly notable given how much of contemporary U.S. foreign policy is focused on Muslim
populations. Equally important, the space for religious debate - on questions such as the meaning of "jihad" or different modes of interpretation in mosques and other Muslim community space has also shrunk and warped. n248 "Since 9/11, mosque leaders have been
under pressure to eject anyone expressing radical views, rather than engaging with them and seeking to challenge their religious interpretation, address
their political frustrations, or meet their emotional needs." n249 Moreover, radicalization
discourse may serve to pathologize
complex social problems, displace focus from the role of government activity in creating those problems,
and place the burden of solving them on already marginalized communities. Broken windows theory could be criticized
along the same lines: The underlying roots of ordinary crime - poverty, joblessness, mass incarceration, disenfranchisement - disappear under the
discourse of "disorder." In the context of national security, the complicated political historical terrain between the U.S. government and Muslim
communities within the United States on the one hand, and the United States, Muslim-majority countries, and international terrorist groups on the
other, disappears under the discourse of radicalization and the terrorist Other.
“Radicalized” Muslim Links
The construction of radicalized Muslim identity allows the surveillance apparatus to
subordinate Muslims as an object of policing – this creates anxiety in society when
everyday acts become potential terrorist threats, which creates racist stereotypes
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11 and gingE)
2. Racializing Muslims Under
the guise of predicting future terrorism, radicalization provides a guide for
government activity. In so doing, it redefines and expands the relevant field of state concern: from terrorism to
radicalization in Muslim communities. Marking religious and political activities as the indicators of radicalization, the discourse links
religious and political practices in Muslim communities with the likelihood of terrorism - inviting state scrutiny into the halls of Muslim communities,
and changing the terms of engagement with the state for Muslims. The
theory creates the Muslim, her religious and political
habits, as an object of policing. [*880] The theory is racially productive, n199 contributing to the
racialization of American Muslims. n200 I use the term racialization knowing that it imperfectly describes the shape and
nature of the stigma that has attached to American Muslim communities after 9/11, not least because African
Americans make up a considerable portion of the Muslim population in the United States. American Muslims are unique in their diversity, varying by
race, language, ethnicity, nationality, and class. Still, racialization best approximates
the process by which a diverse group of
people become lumped together by stigma, stereotype, and fear, all of which draw from a range of physical
attributes and signifiers, mobilized by law, as a method of control and subordination. As with other subordinated
and racialized groups (for example, Blacks, Latinos, Native Americans), there are for example, physical attributes associated with Muslim identity, from
skin color to facial hair to garb. n201 By focusing on the post-9/11 era, I do not mean to minimize the reality that Muslims were racialized before
9/11, or that a significant portion of American Muslim communities are African American and have long been central to the story of race in America.
While crime is the primary lens through which African Americans figure in the American imaginary, terrorism is the lens through which Muslims
appear. African American and Muslim identities are carved by and in opposition to particularized types of suspicion. So the politics of respectability of
each group is distinct - with the pressure on African Americans to disavow and respond to Black-on-Black crime, and for American Muslims to
disavow and respond to terrorism. [*881] a. Creating Muslim Suspects The categories of "law-abiding" and "lawless," n202 "radical" and "moderate,"
are both overinclusive and indeterminate, n203 depending entirely for their meaning on police deployment and creating deep vulnerability for Muslim
communities. n204 Muslims are forced to carry the stigma borne of such intense scrutiny and are powerless to escape it, given that both playing up and
minimizing Muslim identity can be seen as potentially suspicious. n205 Evidence suggests, however, that Muslims have changed their behaviors in
response to the reality and perception of extensive surveillance. For example, individuals report signaling their Muslimness less openly, by praying at
home rather than at the mosque, avoiding political conversation in mosques and other Muslim-specific spaces, or reducing donations to Muslim
organizations. Similarly, mosques may ask speakers to avoid political content, including criticism of U.S. foreign policy. n206 Radicalization
discourse crystallizes the Muslim as a figure of legitimate police scrutiny. n207 As Harcourt observed in the context
of broken windows theory, "the theory of deterrence and punishment focuses on the disorderly person rather than
the criminal act, and thereby facilitates a policy of control, relocation, and exclusion of the disorderly"; "the
category of the disorderly is the product, in part, [*882] of the [policing] itself." n208 Broken windows theory does its
work in a two-step dialectic: It shifts the object of policing from crime to the out-of-place person, and in so doing, constructs the out-of-place person
as someone who needs to be surveilled and controlled by the state. Similarly, radicalization theory and policing shift law enforcement's attention from
actual plans to commit a terrorist crime to Muslim religious and political activity by literally marking observance of Muslim religious practice, or
expressions of political solidarity with other Muslims, as within its causal framework. The
radical Muslim, by virtue of noncriminal
behavior - attending a halaqa (religious study group), visiting family in Pakistan, growing a beard, or paying
off a mortgage n209 - embodies the potential threat of terrorism, and in so doing becomes a legitimate object of policing even
when engaging in wholly noncriminal (now suspicious) behavior. "Politicization," "becoming involved in social activism
and community issues," and "watching jihadi videos ... that highlight atrocities committed against Muslims" bring you within the third stage. It is not
until the fourth stage that the theory concerns itself with any intent to undertake a criminal act. In other words, you could be three-fourths radicalized a nearly full blown threat, one would imagine - and have yet to form any concrete thoughts of committing any crime. You might have radical beliefs,
but no intent to commit a violent crime. The conservative Muslim, rolling up his pant sleeve in accord with a certain religious practice, or attending the
Friday sermon criticizing U.S. foreign policy, embodies this disorder, and the potential for a much larger threat. The religious and political vectors of
radicalization theory work in different, if intersecting, ways; both vectors reflect concerns with the ideas and activities of Muslim communities. The
religious vector marks basic observant behavior and conservative modes of Muslim religious practice as radical, and therefore worthy of suspicion.
"Giving up cigarettes, drinking, [and] gambling," for example, or "wearing traditional Islamic clothing" are markers of radicalization. n210 It matters
both what type of Islam you believe in and what you practice: whether your actions (do you follow to a tee the hadith of the Prophet Muhammad?) or
level of devotion and study (do you regularly attend a halaqa?) adhere to more conservative modes of practice. The
"more Muslim" you are
in the religious sense, the more radical, and the more potentially threatening you appear to be. n211
Community Engagement Links
The federal nature of community engagement subjects the Muslim community to
domination by the state – degrades our democratic credibility
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
[*890] III. Community Engagement's Coercion While community
engagement aims to build relationships with Muslim communities, to gain
as a technique of policing radicalization, encouraging allencompassing surveillance of Muslim communities and working to cultivate in Muslims a suspicion of
coreligionists' religiosity and politicization. n250 Community engagement becomes yet another pressure point at
which Muslims must participate in surveillance or else suggest disloyalty to the American project. Given its
trust and enhance communication, it also functions
anchoring in counterradicalization, the order that community engagement seeks to impose draws from ideas about the proper ways to practice Islam in
America, the right balance between religious and secular life, and a demand for a certain form of political assimilation. n251 It
closes, or at least
narrows, possibilities for meaningful contestation and collaboration, while obscuring, and even reinforcing,
the power differential between Muslim communities and law enforcement. The space between how community
engagement appears - as a democracy-or inclusion-enhancing venture - and the work it actually does to reinforce coercive policing is what this Part
explores. Throughout the foregoing discussion, I have emphasized the dangers associated with law enforcement's community engagement efforts - in
particular how counterradicalization
and community engagement work to cultivate pro-law-enforcement attitudes
and affectations, such that Muslims open up their communities in various ways for government inspection
and regulation. In so emphasizing, I do not mean to disparage civic engagement, which is no doubt constitutive of democracy. The quality
of civic engagement has to matter, though, if the end is democracy of any meaningfully participatory or
accountable variety, and if the goal is to bring outsider communities into the fold. I am not convinced that encouraging
marginalized citizens' interactions with their government is constructive of democracy when it is achieved
through coercive means - which do not allow for contestation of terms or meaningful input, and instead provide pressure on communities to
participate in the very policing tactics that create the gulf in trust that propels the need for forays into trust building. When this participation and
consent are shaped by a pressure to perform [*891] Americanness and to dispel racialized assumptions about loyalty and allegiance, the
coercion
raises acute equality and antisubordination concerns. The federal government has an interest in community engagement apart
from democracy: national security. Through the surveillance and acculturation of communities marked as vulnerable to anti-American persuasion, the
government hopes to prevent attacks on its (non-Muslim) citizens. But while
a fear of Muslims or so-called Islamic terrorism fuels the
push for community engagement, the data does not substantiate the extent of the concerns. When one
considers the size of the global Muslim population, or even simply the American Muslim population, the few
acts of terrorism committed by Muslims in the United States are infinitesimal, including as compared to other
threats. n252 The bloated concern with terrorism seems to be motivated more by politics than by facts. Community policing generates its moral
authority by tapping into the ideas of community support and democratic legitimacy, but the slippery quality of the term community, and the terrain of
inequality that gives rise to the push for such programs, provokes two nested concerns. First, community
engagement programs are
largely top down, with federal government prerogatives imposed on Muslim communities. Community
engagement creates the aesthetics of democracy and inclusion without necessarily reflecting any substantive
commitments to those values. Concretely, the police may select partners that ratify preexisting police practices, n253 or pursue community
engagement primarily as another entry point for surveillance and norms molding, as opposed to a source of accountability or contestation. The
appearance of collaboration, without any real possibility of significant contestation, may undermine rather
than bolster democracy, augmenting the coercive power of the state. Moreover, to the extent community engagement
draws on racialized pressures on Muslims to perform their Americanness, and disavow their Muslimness, as a way to prove their American bona fides,
the police partnerships exacerbate autonomy, equality, and subordination concerns implicated in the broader
regime of policing radicalization. Second, the police partnerships may exacerbate hierarchies within Muslim communities. [*892] Police
partnerships may have distributive effects internal to the community, such that the elite may be further empowered over the marginalized - even as
they themselves are subject to coercive state power. If the inclusive and democratic work of community engagement is questionable, and the fear of
Muslims outsized, we must be suspect of the heightened push for community engagement with Muslim communities. My primary concern here is to
test or problematize the democratic claims of this tactic. n254 A. A Top-Down Approach If
we are to take the democracy and
inclusion claims of community engagement seriously, we should expect that communities are able to "exert
meaningful influence" n255 or have a determinative role in setting policing "goals, priorities, and strategies."
n256 If community engagement does not provide opportunities for meaningful or determinative input but rather facilitates involvement only
to the extent that participants lend support to preexisting law enforcement priorities, then its claim to democratic legitimacy
should be questioned. There is strong reason to question the democratic claims of community engagement. As with community policing in
the ordinary criminal context, a basic tenet of community engagement is that there is value for Muslim communities and law enforcement in cultivating
channels of communication. The
emphasis in official government statements is on relationship and trust building,
inclusion, and democracy. But community engagement efforts, steeped in counterradicalization, play
important norms-molding and intelligence-gathering functions, raising important questions about the
implicit claims to democracy enhancement on which the efforts rely. Moreover, whereas building trust and relationships is
based generally on the idea of two-way obligations, in reality the government has done little to address the fundamental root
of distrust - which starts with the overly broad and punitive approach to policing entire Muslim communities. n257 Interacting with Muslim
communities, law enforcement's prevailing focus is national security, [*893] foregrounding threat potential in government's interactions with Muslim
communities. n258
AT: Community Policing is Net Better / More Democratic
Community policing does not allow American Muslims to reset priorities – they just
ratify law enforcement’s work
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
Above and beyond the concerns with community engagement serving as a cover for surveillance and norms molding, the
federal government
has repeatedly signaled little room for American Muslim communities to play a determinative role in setting
priorities. Community engagement provides opportunities for American Muslims to partake in and ratify
law enforcement's work. In a community engagement push by federal law enforcement with Minnesota's Somali communities, for example,
"[an] FBI private acknowledged, there was no possibility of the community [having] influenced how the investigations were carried out." n259 To the
contrary, the aims were more one-sided: to "correct what its agents called "misperceptions' ... such as that suspects in Somalia might be
imprisoned without trial or targeted for drone killings (such community fears were consistent with official US policy ...)" and "to encourage community
leaders to pass information to federal agents about young people." n260 While there might be space to raise concerns with the government, there
is
little reason to suggest any real possibility for meaningful or determinative input. n261 The detachment of community
engagement from its claim to democratic authority starts at the foundational level. Community policing's historical aim has been to reduce crime in an
inner city or even a particular neighborhood. The subject community could in some sense be imagined to be working with the police to enhance its
own welfare. Central to proponents' arguments for community policing has been the idea that African American communities suffer from
underenforcement by police and need more policing to rid their communities of [*894] crime. n262 In
its national security manifestation,
however, community engagement's aim is to secure the state. Muslims are made responsible not for their
own condition but for the welfare of the entire nation - and for protecting the nation against terrorists. It is a
"particularized responsibility [for the welfare of the nation] ... not shared by other groups." n263 The assignment of responsibility should trouble us for
a number of reasons, including basic American proscriptions against guilt by association and racial and religious profiling. Muslim
communities
had not identified radicalization or violent extremism as an issue of concern before the government's framing
of radicalization and violent extremism as a national priority. n264 By and large, Muslim communities and
advocacy groups have not only objected to the radicalization framework and the assertion of growing
radicalization in Muslim communities, n265 but have also insisted that they are cooperating with law
enforcement efforts. n266 Community engagement - in its current manifestation, grounded in counterradicalization and CVE - has, in some
sense, been foisted on Muslim communities. n267 [*895] The federal nature of the underlying concern also undercuts community
engagement's democratic potential. Federal law enforcement entities, national in scope and in responsibility, take the lead in community
engagement efforts, whereas local police embody community policing as originally conceived. Even in the community policing context, critics worried
that more
marginalized communities or more marginalized segments of communities - the ones most in need of
be unable to exert enough power to contest or hold police
accountable. In the federal context, not to mention the politically charged realm of national security, the concern is even more acute. The idea that
protection from abusive, unaccountable policing - would
marginalized, dispersed, and diverse Muslim communities could hold accountable the federal government or federal law enforcement on national
security issues is dubious. If
Muslims had the political power to hold the police accountable, community
engagement programs would not be necessary from a democracy or inclusion perspective to begin
with.
Community engagement appears more benign but it is still a form of racialized
policing
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
*** Government officials tout these community engagement efforts as the pinnacle of good governance,
providing Muslim communities with opportunities to educate and hold the government accountable, and providing the government with the chance to
learn from Muslim communities. n147 Indeed,
community engagement initiatives may seem preferable to, or at least less
coercive than, other forms of policing. One might argue that the overt nature of community engagement efforts obviates any concern
about coercion or consent. Communities of color - overpoliced as they are - must know that their interactions with the police are recorded and shared.
(The FBI thinks otherwise: The recently released 2009 FBI Policy Directive on community engagement asserts that "members of the public contacted
through a community outreach activity generally do not have an expectation that information about them will be maintained in an FBI file or
database." n148) How
can communities later complain that they are under watch, even as they exchange
pleasantries at a mosque outreach event with the local FBI agent? This is to miss, however, a larger set of
normative concerns about the dialectic between the exercise of police power and the ways it restricts
the options available to communities of color. The remainder of this Article attempts to unpack these concerns. II. Disorder and
Racialization Community policing's elasticity has been integral to its currency and longevity. An approach by local police
in the 1970s and 1980s to working with poor, urban Black communities in response to ordinary crime and historical distrust [*869] has proved
sufficiently flexible to be put to use in service of the post-9/11 paradigm. Federal law enforcement has adopted community-policing-like tactics
nationwide with Muslim communities in response to national security concerns, deploying the vocabulary and aspirations of community policing. n149
While community engagement is regularly invoked in the same breath, or included in the same conceptual universe, as community policing, unnamed
is the dynamic between counterradicalization/CVE and broken windows theory. At first blush, there is an obvious parallelism: Counterradicalization
defines the contours of community engagement as broken windows often shaped practices of community policing. Both counterradicalization
and broken windows theories are preventative theories of crime control laid atop efforts at bettering relationships between marginalized
communities and law enforcement. n150 Both theories also motivate traditional policing tactics and approaches beyond those
that claim as their central normative force partnerships with the community. Yet there are important theoretical and
material distinctions between broken windows and counterradicalization, and between community policing and community engagement. In focusing
on the critiques of community policing inflected by broken windows theory, I do not mean to suggest that all community policing is defined by broken
windows theory, or that order maintenance (which is more directly linked to broken windows, in theory as well as practice) follows from community
policing. n151 Community policing and broken windows theory can certainly be [*870] decoupled: n152 Community policing's center of gravity is in
communication and collaboration with local communities, while broken windows theory centers police discretion to pursue disorder and minor crimes.
n153 In practice - and in particular in the 1980s and 1990s - the divide has proven more illusory. n154 When community policing and broken windows
theory have been linked in practice and in study, the
combination provides an important lens through which to see the
problems that emerge when a theory of crime control that attaches predictive authority to social markers of
difference shapes police communication with marginalized communities. The literature examining community policing
shaped by broken windows theory provides insights on similar problems that emerge when community engagement is shaped by counterradicalization.
AT: Community Policing is Cooperative
Community policing is not cooperative – they ignore the continued power imbalance
not predetermined by the more powerful police prerogatives
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
A. Community Policing, Broken Windows, Ordinary Crime n155 The basic intuition behind community policing is that increased communication and
collaboration between police and communities will benefit both parties and cultivate a stronger ethos of civic engagement in marginalized communities
- those with less social power and socioeconomic standing. n156 The
precise causal mechanics of this process, however, are far
from clear. n157 While the literature takes as a starting point the poor relationships between law enforcement and marginalized communities,
it generally fails to meaningfully engage the question of how community policing practices should account for
the power differential between police and those communities, instead assuming that the communication will
itself have a democracy-enhancing function. n158 Proponents advocate for more interaction and flexibility, but provide little
guidance on how to ensure that communication and police action is not predetermined by the more
powerful police prerogative. n159 [*872] Beyond its basic orientation toward communication, the theory and practices of
community policing are muddled. n160 Reading the literature, one encounters an avalanche of terminology: preventive policing, n161
problem-oriented policing, neighborhood policing, hot spots policing, third-party policing, order-maintenance policing, zero-tolerance policing,
quality-of-life policing, broken windows theory, social norms theory, intelligence-led policing, and so on. n162 These concepts represent an evolving
spectrum of approaches to policing. n163 Often [*873] these
concepts fill in the vagaries of or complement one on another, but they also clash
and confuse; where one set of practices ends and the other begins is often unclear and subject to debate. n164
Broken windows theory defines much community policing in the context of ordinary crime - one could even argue that it is a central spoke in
contemporary preventive policing concepts. For purposes of this Article, a basic account of the theory's adaptation to policing should suffice. In 1969,
in a famous psychology experiment, two cars were left in two very different neighborhoods without license plates, and with hoods open: one in
wealthy Palo Alto, and one in a poor neighborhood in the Bronx. n165 The Bronx car was quickly stripped of its valuables. The Palo Alto car went
untouched - until the study's progenitor publicly smashed in the windows, precipitating others to codemolish and rob the car. n166 In 1982, social
scientists George L. Kelling and James Q. Wilson announced their broken windows theory in The Atlantic, parlaying the psychology experiment into a
theory of crime control: They argued that outward signs of "disorder" invite law-breaking criminality by signaling to would-be criminals that the
geography's inhabitants lack effective practices of social cohesion and control. n167 If the police can fix the visible signs of disorder (broken windows),
the argument goes, they can reduce serious criminal activity. The translation from psychology experiment to preventive policing theory n168 was not
the only translation at work, however. Kelling and Wilson also forwarded broken windows as a theory to motivate collaboration between police and
the policed. n169 The Atlantic story featured a 1970s foot patrol initiative in which [*874] foot patrol worked with the "regulars" or "decent folk" to
protect them from "disorderly people" - "disreputable or obstreperous or unpredictable people: panhandlers, drunks, addicts, rowdy teenagers,
prostitutes, loiterers, the mentally disturbed." n170 In the legal academy, social norm theorists n171 championed community policing efforts inflected
by broken windows theory. n172 Community policing was framed as a powerful tool for the government to address the legitimacy deficit in African
American communities, wherein relationships with police were defined by histories of distrust and police violence.
n173 But community policing also [*875] had its critics, n174 many of whom pointed to how broken windows theory - even in a community policing
guise - had shifted the focus of policing from criminal conduct to "disorder." Broken windows theory assumed dichotomies between "order and
disorder," "insider and outsider," and the "law-abiding and lawless;" n175 assumed these categories were stable and observable; and then privileged
order, insiders, and the law abiding over their counterparts. n176 The
meanings of disorder, outsiders, and lawlessness were left
to police discretion, assuming the police would not inevitably draw from preexisting terrains of difference, and particularly the anti-Black racial
text linking Blackness and criminality, in making these distinctions. n177 Indeed, more recent work has contested broken windows theory's assumption
that the "perception of disorder is governed by actual, observed levels of disorder." n178 Instead, "racial
and immigrant concentration
proved more powerful predictors of perceived disorder than did carefully observed disorder." n179 Broken windows
theory, in its construction of the disorderly, the lawless, and the outsider as legitimate subjects of policing, rendered already vulnerable individuals as
even more vulnerable to policing. n180 Critics also pointed out that there
was no empirical evidence to suggest that policing
order decreased crime n181 or increased civic engagement. n182
Community based model won’t improve overall law enforcement – will still serve to
marginalize and radicalize Muslim communities
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
Certainly there are strong normative reasons, including those that motivate this Article, to expect and demand that law enforcement account for the
realities of marginalized communities. But we
cannot expect that dialogue will necessarily lead to accountability,
meaningful contestation, or realignment of police approaches in marginalized communities. After all, law
enforcement is itself a significant vehicle for marginalization and racialization in the United States. It
is reasonable to question whether community policing - or policing at all - can be expected to be the vehicle for the change we are seeking. The
problem and the solution may be entirely mismatched.
AT: Defer to Government Evidence
Don’t evaluate their evidence – government reports are overblown and biased
Akbar 15 – Assistant Professor of Law at Michael E. Moritz College of Law at the Ohio State University
(Amma, The Reagents of the University of California UCLA Law Review, “National Security’s Broken
Windows”, May 2015, 62 UCLA L. Rev. 834, Lexis, //11)
Within the broader framework of community engagement, federal,
state, and local law enforcement have stepped up efforts
to establish channels of communication with Muslim communities. While on the surface these efforts are
necessarily less secretive than other national security law enforcement efforts - indeed their basic function is partly
aesthetic - the concrete data on these efforts is scattered and incomplete. n113 Government accounts are
papered in promotional language, and community accounts are few and far between. n114 Given limited
information on what these efforts entail, the parameters in which they function, n115 the absence of a central repository for information, and [*863]
the fast pace of growth of such efforts, the descriptions below are necessarily limited. n116
Terrorism Kritik
Problem Solution Link
The aff’s overidentification with problem-solving political approaches legitimizes the
state’s short-term terroristic methods by framing them as the necessary and logical
solution to the ‘terrorist threat’ – ignoring social and historical context, this
reestablishes terrorists as the ‘other’ and means that the aff can’t solve its impacts.
Gunning, 7 – Director of the Durham Global Security Institute for Defense, Development and Diplomacy
in the School of Government and International Affairs, with a PhD in Middle Eastern and Islamic Studies
(Jeroen Gunning, Government and Opposition, Vol. 42, No. 3, “A Case for Critical Terrorism Studies?”, Summer
2007, *fc)
However, if we consider the typical characteristics of a ‘problemsolving’ or ‘traditional’ approach,37 we find
that many of these both dominate ‘terrorism research’ (including many of the contributions of Silke’s ‘onetimers’)38 and can be directly linked to the shortcomings witnessed in this research. In its most ‘uncritical’
manifestation – and it must be emphasised that few scholars are wholly uncritical in a Coxian sense – a
‘problem-solving’ approach does not question its framework of reference, its categories, its origins or
the power relations that enable the production of these categories.39 It is statecentric, takes security to
mean the security of the state rather than that of human beings, on the assumption that the former implies
the latter, and sees security in narrow military or law-and-order terms, as opposed to the wider conception of
human security, as for instance developed by critical security studies.40 It is ahistorical and ignores social and
historical contexts; if it did not, it would have to account for the historical trajectory of the state, which would
undermine the state’s claim to being uniquely legitimate. The problem-solving approach is positivist and
objectivist, and seeks to explain the ‘terrorist other’ from within state-centric paradigms rather than
to understand the ‘other’ inter-subjectively using interpretative or ethnographic methods. It divides
the world sharply into dichotomies (for instance, between the legitimate and ‘good’ state, and the illegitimate
and ‘evil’ ‘terrorists’). It posits assumptions based on these dichotomies, often without adequately exploring
whether these assumptions are borne out in practice. It sees interests as fixed, and it regards those opposed to
the status quo as the problem, without considering whether the status quo is part of the problem and
transformation of both sides is necessary for its solution.
Not only can many of these characteristics be found in more or less diluted form in ‘terrorism research’41 – a
legacy of the field’s origins as a sub-field within ‘traditional’ security and strategic studies – but these
‘problem-solving’ characteristics can also be shown to contribute directly to its observed shortcomings. The
reported lack of primary data, the dearth of interviews with ‘terrorists’ and the field’s typical unwillingness to
‘engage subjectively with [the terrorist’s] motives’,42 is in part fuelled by the field’s over-identification
with the state, and by the adoption of dichotomies that depict ‘terrorism’ as ‘an unredeemable
atrocity like no other’, that can only be approached ‘with a heavy dose of moral indignation’, although other
factors, such as security concerns, play a role too.43 Talking with ‘terrorists’ thus becomes taboo, unless it is
done in the context of interrogation.44
Such a framework also makes it difficult to enquire whether the state has used ‘terroristic’ methods. If the
state is the primary referent, securing its security the main focus and its hegemonic ideology the accepted
framework of analysis, ‘terrorism’, particularly if defined in sharp dichotomies between legitimate and
illegitimate, can only be logically perpetrated by insurgents against the state, not by state actors themselves.
State actors are engaged in counterterrorism, which is logically depicted as legitimate, or at least, ‘justifiable’
given the ‘terrorist threat’ and the field’s focus on shortterm ‘problem-solving’. Where ‘traditional terrorism
studies’ do focus on state terrorism, it is in the context of the ‘other’: the authoritarian or totalitarian state that
is the nemesis if not the actual ‘enemy’ of the liberal democratic state.45
Alt Solves
A critical approach solves best – broader analysis of terrorism would break down
dichotomies and open up new approaches to address terrorism.
Gunning, 7 – Director of the Durham Global Security Institute for Defense, Development and Diplomacy
in the School of Government and International Affairs, with a PhD in Middle Eastern and Islamic Studies
(Jeroen Gunning, Government and Opposition, Vol. 42, No. 3, “A Case for Critical Terrorism Studies?”, Summer
2007, *fc)
A ‘critical’ approach would enable scholars to analyse how ‘terrorism’ discourse is used to discredit
oppositional groups and justify state policies, and what structures underpin its production.62 It would
encourage research into how discourse is used by oppositional groups to discredit state elites, and what
structures make such discourse possible.63 It would facilitate research to move beyond paradigms that a
priori seek the eradication of violent nonstate actors through military action and contemplate the need for
political solutions and in particular political transformation, for instance, by drawing on the insights from
conflict transformation studies.64 It would enable scholars to move from paradigms where the non-state
actor is a priori considered to be the problem, to one where, a priori, all sides are assumed to be part of both
the problem and the solution.
Methodologically, it would encourage researchers to engage with their ‘research subjects’ at a human level
with the purpose of, in the words of Sara Roy (a scholar outside ‘terrorism studies’), ‘humanizing the
other’.65 It would facilitate the adoption of ethnographic methodologies, of considering interviews as a
pivotal source, and of living among the communities from where oppositional groups stem.66 It would
encourage scholars to break down us–them dichotomies and wrestle with Richardson’s observation that:
When I consider a terrorist atrocity I do not think of the perpetrators as evil monsters but rather I think
about the terrorists I have met, and the people I have known who have joined terrorist groups . . . I grapple
with how a young idealist can believe that in murdering innocent people he or she is battling injustice and
fighting for a fairer world. I think, as the Protestant martyr John Bradford said 500 years ago, ‘There but for
the grace of God, go I.’67
Such an approach would enable a shift from a limited focus on ‘terroristic’ violence (however defined) to one
also encompassing both ‘non-terroristic’ violence and ‘non-violent’ behaviour, although the boundary
between these two categories depends on the definition of ‘violence’ and ‘non-violent’. This would mean
taking into account ‘non-terroristic’ violence such as guerrilla tactics,68 enforced recruitment of child soldiers,
executions, torture, house demolitions, and ‘collateral damage’, as well as ‘non-violent’ acts, such as ‘structural
violence’, economic strangulation, imprisonment, charitable aid (and not just in relation to ‘terrorist funding’),
education, limiting freedom of speech or marginalizing alternative lifestyles.69 Without such a widening of
the agenda, key aspects of the conflict would be missed. One cannot understand the Italian Red Brigades
without analysing the wider left-wing movement of the 1960s and 1970s, and the behaviour of the Italian
state towards it. Similarly, one cannot understand Hamas without analysing its relationship with its wider
constituency, or the impact of Israeli occupation and settlement practices (including ‘structural violence’) on
that constituency. 70 Such a widening of the agenda, moreover, would deny ‘terrorism’ the capacity to
portray itself as somehow exceptional, and thus exceptionally frightening, rather than as one form of
violence among many. It would also deny it the capacity to isolate itself from its wider social context,
enabling researchers to engage cognate theories such as democratization theory, which concern themselves
with broader trends, of which violence is but one aspect.
A critical approach is a necessary prerequisite to overcome shortcomings of current
political approaches to terrorism.
Gunning, 7 – Director of the Durham Global Security Institute for Defense, Development and Diplomacy
in the School of Government and International Affairs, with a PhD in Middle Eastern and Islamic Studies
(Jeroen Gunning, Government and Opposition, Vol. 42, No. 3, “A Case for Critical Terrorism Studies?”, Summer
2007, *fc)
SINCE 9/11, STUDIES ON THE PHENOMENON OF ‘TERRORISM’ HAVE mushroomed.2 On
entering almost any bookshop, one is overwhelmed by the number of books discussing the war on terror,
‘Islamic terrorism’ or ‘terrorism’ more generally. Conference papers on ‘terrorism’ abound and interest in
issues related to ‘terrorism’ has increased dramatically among scholars in cognate disciplines; degree
programmes have been set up;3 funding opportunities have increased. And yet, as recent reviews of the field
have shown,4 core epistemological, methodological and political-normative problems persist, ranging
from lack of conceptual clarity and theoretical sterility to political bias and a continuing dearth of primary
research data.
A number of reasons have been cited for this state of affairs, which will shortly be detailed. But two reasons
are often overlooked: the predominance of ‘problem-solving’ approaches in the study of ‘terrorism’, which
accounts for many of the observed methodological and conceptual shortcomings of ‘terrorism research’; and
the dispersed nature of much of the more rigorous, critical and conceptually innovative research on
‘terrorism’ that is published outside the core journals of ‘terrorism studies’ and thus often fails either to
reinvigorate, or to learn from, ‘terrorism studies’. It is the argument of this article that a ‘critical turn’5 in the
field of ‘terrorism studies’6 is necessary to reverse these two trends, and that this turn must be conceived in
such a way as to maximize the field’s inclusiveness and, importantly, its policy relevance.7
AT: State Good
Quick, state-centric solutions to terrorism can’t solve – a lack of historical and
critical reflection means that the aff just reentrenches negative assumptions of
‘religious terrorism’ and reproduces threats.
Gunning, 7 – Director of the Durham Global Security Institute for Defense, Development and Diplomacy
in the School of Government and International Affairs, with a PhD in Middle Eastern and Islamic Studies
(Jeroen Gunning, Government and Opposition, Vol. 42, No. 3, “A Case for Critical Terrorism Studies?”, Summer
2007, *fc)
The observed disregard for historical context and wider sociopolitical dynamics46 can similarly be traced to
the ahistorical propensity of ‘problem-solving’ approaches and their state-centric understanding of security.
The typical focus is thus on violent acts against the state, and the immediate ‘terrorist’ campaign, not on how
these acts relate to a wider constituency and its perception of human security, history and the state, or what
role the evolution of the state has played in creating the conditions for oppositional violence.47
The lack of critical and theoretical reflection48 can be linked to the ‘problem-solving’ tendency to be
short-termist and practical, and to deal in fixed categories and dichotomies that privilege the state and its
dominant ideological values. From such a standpoint, scholars would not readily explore how ‘terrorism’
discourse is produced and how it is used to marginalize alternative conceptions, discredit oppositional groups,
and legitimize counter-terrorism policies that transgress international law.49 Nor would they be particularly
likely to consider how the development of the modern state or the international system might have
contributed to the evolution of ‘terrorism’, or how theories of the state and the international system can help
illuminate the ‘terrorism’ phenomenon. Drawing on cognate theories more broadly is similarly discouraged
since ‘terrorism’ is framed as an exceptional threat, unique and in urgent need of a practical solution.50
The state-centricity, inflexibility and dichotomous nature of such a framework also makes it easier to recycle
unproven assumptions, such as the notion that ‘religious terrorism’ is not concerned with constituencies and
knows no tactical constraints against killing ‘infidels’, 51 without having to test these assumptions empirically
across different samples. It thus becomes possible to argue, for instance, that negotiating with ‘terrorists’
encourages further ‘terrorism’ without need for empirical proof – a point already observed by Martha
Crenshaw in 198352 – or to insist that ‘terrorists’ inherently lack legitimacy without reflection on whether the
state lacks legitimacy in the experience of those who support the ‘terrorists’.53 The combined result of these
tendencies is often a less than critical support (whether tacit or explicit) for coercive counterterrorism
policy without adequate analysis of how this policy contributes to the reproduction of the very terrorist
threat it seeks to eradicate.
State Bar CP
1nc Bar Association CP
Counterplan text: The American Bar Association should issue and enforce the
following rule:
No prosecuting attorney shall supervise, advise, or otherwise take part in a criminal
investigation that involves the surveillance or infiltration of a religious organization,
unless specific and articulable facts provide a basis for suspecting criminal activity
by the organization or one of its members.
State bars solve best – they have the expertise to establish uniform rules and prevent
unwarranted surveillance.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
D. Regulation in State Bars' Ethical Codes
While not ideal, this final alternative may offer the greatest promise. State bars could modify their codes of
ethics to incorporate a requirement that prosecutors may not take part in the surveillance or infiltration of
religious organizations absent a particularized suspicion that a member of the organization is breaking the
law. Some scholars support a greater reliance on state bars to set ethical standards for prosecutors, n318
although no scholar has addressed the precise topic considered here.
The first issue to consider is whether state bar associations have sufficient expertise to promulgate such rules.
n319 Congress appears to have answered this question by deferring to state bars as the regulators of federal
prosecutors' ethics. n320 Most state bars have already adopted a limited set of ethical rules for
prosecutors. n321 State bars have a unique advantage in that they bring a range of viewpoints to the table not simply those of prosecutors, but also of defense attorneys. State bars also include both federal and state
practitioners. Officials in state bars are not elected by the public at large, and are less likely to be
susceptible to the political pressures that influence legislative debates over criminal justice matters.
Moreover, the rules adopted by a particular state's bar association must be approved by that state's supreme
court before they take effect, and this overlay of judicial approval provides an assurance that state bars will
not abuse their power as regulators. For all of these reasons, state bars are in a unique position to
formulate ethical rules for prosecutors.
State bars are probably more willing than legislatures, courts, or law enforcement agencies to impose limits on
investigations of religious organizations. Indeed, defense attorneys generally outnumber prosecutors in bar
associations. n322 The bars have already taken significant steps in [*1270] limiting the power of prosecutors.
Examples include rules against serving grand jury subpoenas on defense attorneys, rules against publicly
divulging details of a case in advance of trial, and rules directing attorneys not to make contact with
represented persons. n323
State bar associations could prove to be surprisingly effective in enacting a comprehensive, uniform
regulatory scheme for prosecutors and, indirectly, for law enforcement officers. While the full development
of this argument must await the next section, it is important at this juncture to dispel the myth that a statebased regulatory system cannot achieve uniformity throughout the nation. n324 The fact is that states are
now closer than ever to aligning their ethical rules in virtually all respects. n325 The A.B.A.'s blueprint, the
Model Rules of Professional Conduct, has now won approval in forty-four states. n326 Each of theses states
has adopted a version of Model Rule 3.8, which is the A.B.A.'s rule governing prosecutorial ethics (although
some jurisdictions have labeled this rule differently). n327 The near unanimous adoption of the Model Rules
suggests that state bar associations [*1271] would be capable of enacting uniform rules that limit
prosecutors' participation in the infiltration and surveillance of religious groups.
V. The Case for Revising State Bars' Ethical Codes
I propose that a new rule be added to the states' ethical codes for lawyers. In the forty-four states that follow
the template of the A.B.A. Model Rules of Professional Conduct, the new rule would appear as a subsection
of Rule 3.8, which regulates the conduct of prosecuting attorneys. The new rule would provide as follows:
"No prosecuting attorney shall supervise, advise, or otherwise take part in a criminal investigation
that involves the surveillance or infiltration of a religious organization, unless specific and articulable
facts provide a basis for suspecting criminal activity by the organization or one of its members."
In evaluating whether such a rule would be desirable, four questions arise. First, would this rule actually have
an effect on the conduct of police agencies? Second, is it appropriate for states' ethical codes to prescribe very
specific duties for prosecutors? Third, could states' ethical codes affect the conduct of federal prosecutors?
Fourth, would my proposal hinder investigations of terrorism? I will address each of these questions in turn.
2nc Solvency
Bar Association rules impose ethical guidelines on lawyers that prohibit racial or
religious discrimination.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
4. Unique Ethical Concerns for Lawyers
Additionally, prosecutors who take part in the surveillance and infiltration of religious organizations may
violate their ethical duties under various codes of professional conduct. Two categories of ethical rules come
into play: the rules imposing vicarious liability on prosecutors for the actions of law enforcement agents and
the rules prohibiting prosecutors from discriminating on the basis of religion.
The A.B.A. Model Rules of Professional Conduct include provisions imposing vicarious liability on lawyers
for the conduct of non-lawyers. Pursuant to Rules 5.3 and 8.4 of the A.B.A. Model Rules, a lawyer is
accountable for the conduct of a non-lawyer if the lawyer has directed, assisted, induced, or ratified that
conduct. n261 In fact, Alabama is the only state that has exempted prosecutors from vicarious liability for the
conduct of law enforcement officers. n262 In addition to the overarching standards of [*1257] vicarious
liability set forth in A.B.A. Model Rules 5.3 and 8.4, there are some rules that apply the same principles in
particular contexts. n263
Because prosecutors and law enforcement agents work closely together in the investigative phase, n264
prosecutors could theoretically become entangled in liability for the conduct of the officers. This vicarious
liability could arise even where the officer, if acting alone, would not be subject to any discipline. The key
question is whether the prosecutor has utilized the officer to do that which the prosecutor cannot himself do.
The ethical rules make clear that lawyers cannot take part in discriminating on the basis of religion.
For example, Rule 8.4(d) provides that a lawyer shall not "engage in conduct that is prejudicial to the
administration of justice ... ." n265 The commentary indicates that a lawyer violates Rule 8.4(d) when the
lawyer "knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national
origin, disability, age, sexual orientation or socioeconomic status," if "such actions are prejudicial to the
administration of justice." n266 Some states' ethical codes have gone even further than the A.B.A. template in
emphasizing the need for prosecutors to avoid prejudice based on religion. n267 The A.B.A. Code of Judicial
Conduct directs judges to prevent all lawyers from expressing religious prejudice in the courtroom. n268
Even stronger language appears in other bodies of rules that apply specifically to prosecutors. For example,
the A.B.A. Standards Relating to [*1258] the Administration of Criminal Justice, n269 which include a
section entitled "The Prosecution Function," strongly prohibit discrimination based on religion. Standard 33.1, entitled "Investigative Function of Prosecutor," provides in subsection (b) that "[a] prosecutor should not
invidiously discriminate against or in favor of any person on the basis of race, religion, sex, sexual preference,
or ethnicity in exercising discretion to investigate or to prosecute." n270 The American Trial Lawyers
Association's Code of Conduct also provides that "in exercising discretion to investigate," a prosecutor "shall
not show favoritism for, or invidiously discriminate against, one person among others similarly situated."
n271
Ethical rules prohibiting religious discrimination by lawyers are reinforced by other requirements for lawyers'
conduct in the courtroom. For example, Rule 610 of the Federal Rules of Evidence prohibits lawyers from
impeaching witnesses based on their religious views. n272 Also, lawyers in many jurisdictions are prohibited
from striking prospective jurors because of their religious beliefs. n273
The F.B.I.'s current policy of counting mosques throughout the United States and conducting surveillance
and infiltration of mosques without any specific suspicion arguably involves discrimination based on religion.
Indeed, in the new investigative guidelines, the Department of Justice has reserved the right for the F.B.I. to
infiltrate mosques even when there is no basis for suspicion other than the mere fact that the subjects under
investigation are Muslim. A prosecutor who directs such an investigation, or who ratifies it by
presenting charges based on information developed in the investigation, has arguably violated the
ethical rules against prejudice - either directly or indirectly through the doctrine of vicarious liability.
2nc Net Benefit --- Avoids Backlash
Solves the case – avoids backlash that would implicate Congress or Courts
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
In Part III, I will consider the alternative means for reinstating the suspicion requirement in investigations of
religious organizations. I will focus on four options: (1) statutory regulation; (2) judicial regulation; (3) internal
regulation by law enforcement agencies; and (4) regulation through states' ethical codes for lawyers. I will ask
a series of questions to evaluate whether each institution is well suited for the task. Does the institution have
sufficient expertise to promulgate rules for the investigative activities of prosecutors and law enforcement
agents? Could the institution establish an effective, uniform regulatory scheme? Is the institution willing to
undertake such regulation? After considering the expertise, efficacy, and willingness of each institution, I
conclude that state bar associations are in the best position to revive the "reasonable suspicion"
requirement in the Levi Guidelines. Other institutions could affect this reform more easily if they chose to,
but it is doubtful that Congress, the courts, or the Department of Justice would have the will to impose such
limitations in the present climate. State bar associations - with a higher membership of criminal defense
attorneys than prosecutors - may be the only forums in which the advocates of reform could prevail.
Part V will address possible objections to the proposal that state bars should regulate prosecutors'
involvement in investigations of religious groups. Anticipating concerns about the efficacy of my proposal, I
will explain that prosecutors increasingly serve as "gatekeepers" in proactive investigations. I will show that
ethical constraints on prosecutors have a transitive effect in limiting the conduct of police under the
prosecutors' supervision. I will cite the example of Oregon, where new ethical regulations for prosecutors
effectively shut down certain categories of proactive [*1210] investigations by F.B.I. agents. Further, in
response to scholars who criticize the micromanagement of prosecutorial ethics by state bars, I will argue that
the bars have a legitimate role to play in the interstices left by other bodies of authority. I will show why the
Supremacy Clause does not thwart state bars from regulating federal prosecutors. Finally, I will explain why
my proposal would not hinder investigations of terrorist cells and would actually improve such investigations
by fostering greater comity between the Muslim Community and law enforcement officials.
In sum, there is a good reason why three Republican and two Democratic administrations required a
predicate of reasonable suspicion before authorizing the surveillance and infiltration of religious organizations
by the F.B.I. Our religious freedom is too precious to sacrifice without at least a moment's reflection on the
quantum of evidence supporting the need for an investigation.
2nc Solvency – Terrorism
Regulations are good for terrorism investigations – requiring suspicion ensures that
the government doesn’t encroach on Constitutional rights or gather extraneous data.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
D. Would New Ethical Rules Impede Investigations of Terrorism?
It is true that terrorists have sometimes congregated in mosques, n374 and my proposal would be ill-advised
if it hindered law enforcement officers from investigating these terrorists. However, as explained below, the
reinstatement of the "reasonable suspicion" standard in a new ethical rule would not significantly impede the
detection of terrorist cells in the United States.
The F.B.I.'s experience with the Rahman investigation in the 1990s shows that the suspicion requirement
does not foreclose effective counterterrorism investigations. Indeed, the investigators of Rahman "encumbered" as they were by the suspicion requirement - achieved greater success than the F.B.I. has
achieved during the one-year period since Attorney General Ashcroft deleted the suspicion requirement. n375
An official with the Department of Justice admitted to Congress in May 2003 that the [*1282] authority to
infiltrate religious organizations without reasonable suspicion had not yet yielded a single lead that was
valuable enough for the F.B.I. to write in a report. n376
Some might fear that my proposal could create confusion about what sort of group would qualify as a
"religious organization" entitled to protection under the new ethical rule. How far from mainstream religious
groups would the line be drawn? The task of defining religion is always a daunting one, but it is a bridge that
we have crossed before when we determined the scope of the clergy-penitent privilege, n377 when we
determined who has authority to conduct marriage, when we determined who may claim a religious basis for
conscientious objector status, and when we determined which groups qualify for tax exemptions as religious
institutions. Importing definitions from these other contexts would go a long way in clarifying which groups
can qualify as "religious organizations" for purposes of the new ethical rule.
Even if we can agree on what constitutes a cognizable religion, how do we discern what constitutes a religious
institution (e.g., a building) that police should avoid unless they have reasonable suspicion? For example, it is
sometimes difficult to discern what is or is not a mosque. Not every mosque is located in a conspicuous
building. Some are located in small non-descript commercial buildings or even homes. n378 However, those
who worship in a [*1283] particular mosque or other religious facility should be given the discretion to
decide how conspicuously they will label the facility. If they opt for a nondescript appearance, they run the
risk that the F.B.I. would not accord the building the same privacy rights as an easily recognizable religious
institution. Of course, the F.B.I. cannot be heard to complain about its inability to discern what is or is not a
mosque when field offices were instructed to complete an inventory of every mosque in country at the start
of 2003.
Another frequently voiced concern is that terrorists will utilize mosques as "havens" that are free from
government surveillance. Many commentators have insisted that terrorists should not be able to hide behind
the "shield" of religion. n379 This concern should not detain us long. In order to permit infiltration of a
religious organization, my proposal would require only a minimum level of suspicion. In fact, under the Levi
Guidelines, the F.B.I. could easily infiltrate a religious organization simply by explaining a valid purpose for
the infiltration. As James Dempsey told Congress in May 2003:
the old guidelines allowed F.B.I. agents to go into any mosque or religious or political meeting if there was
reason to believe that criminal conduct was being discussed or planned there, and in fact, over the years the
F.B.I. conducted terrorism investigations against a number of religious organizations and figures. n380
In other words, if F.B.I. agents could ever think of a good reason to go to a religious service, they
could go - just as long as they did not target a particular organization for reasons such as religious profiling
or the purposeful suppression of First Amendment rights. n381
In a speech at Stanford Law School, F.B.I. Director Robert Mueller asked a rhetorical question: "When, if
ever, would it be appropriate to put leaders of Muslim mosques under surveillance? Are calls to kill
Americans in [*1284] strident sermons a lawful exercise of free speech or something more ... ?" n382
Mueller's inquiries seemed calculated to suggest a justification for the F.B.I.'s new authority to infiltrate
religious groups. Yet Mueller failed to mention that the F.B.I. could have monitored such speeches under the
old F.B.I. guidelines because the speeches advocate lawbreaking and, ipso facto, give rise to a reasonable
suspicion of criminal activity. n383 The investigation of Arizona churches - which by all accounts was based
on a permissible factual predicate under the old investigative guidelines - was justified by church leaders'
public pronouncements of their support for the Sanctuary Movement. Just as the old guidelines were not too
constraining for the investigation of immigration offenses, they would not be too constraining for the
investigation of terrorism. The small subset of mosques where leaders advocate criminal activity would not be
immune from the F.B.I.'s surveillance under a new rule that reinstated the "reasonable suspicion"
requirement.
2nc Solvency – Police
The counterplan solves best – constraining prosecutors inherently restricts police
abilities to conduct unwarranted surveillance.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
A. The Efficacy of Regulating Lawyers Rather than Police
The notion that ethical rules for prosecutors could limit activity by the entire "team" of law enforcement
agencies - including non-lawyers such as police officers - may seem fanciful on first impression. But in fact,
prosecutors are so vital to the investigation of complex criminal cases that any ethical restrictions on
prosecutors will have a substantial effect on police.
Especially in the federal system, prosecutors play a significant role in supervising proactive investigations.
n328 As Professor Rory Little has noted, "public prosecutors in this country have become increasingly
involved in the investigative stages of criminal matters during the twentieth century." n329 According to
Professor Little, "prosecutors today are centrally involved in proactive criminal investigations." n330 So great
is the involvement of [*1272] prosecutors in the investigative phase that the Supreme Court has conferred
immunity on prosecutors for their good-faith investigative decisions. n331
Consider the many ways in which prosecutors serve as gatekeepers in proactive investigations. Prosecutors
must sign off on the use of certain investigative techniques so that officers will avoid the risk that evidence
generated by such techniques will be suppressed in court. n332 Prosecutors must actually prepare requests for
judicial approval of certain highly intrusive techniques such as pen registers, wiretaps, and mobile tracking
devices ("bumper beepers"). n333 The involvement of prosecutors is necessary to present a search warrant to
a judge, or to obtain a grand jury subpoena for testimony or records. n334 Prosecutors must generally prepare
subpoenas for records, except in jurisdictions where police can use administrative subpoenas. The approval
of prosecutors is usually necessary before investigative agents can offer leniency to co-conspirators as an
enticement for cooperation. Police need the assistance of prosecutors in order to navigate the minefields of
entrapment and selective prosecution. Sometimes police need guidance from prosecutors to determine
whether a suspect under investigation has actually violated the law, and if so, whether the case fits the
prosecutorial guidelines in a particular jurisdiction. Further, officers need to rely on prosecutors for advice
about civil liability that may arise from the use of certain investigative techniques. n335 Perhaps the best
testament to the ascendancy of prosecutors in the investigative phase is the fact that a former Assistant U.S.
Attorney, Robert Mueller, is now the director of the F.B.I.
Among the various categories of criminal investigations, investigations of terrorism are particularly likely to
require the close involvement of prosecutors. The criminal statutes at issue are novel, and police officers are
usually less familiar with these statutes than with statutes in garden-variety cases involving drugs or violent
crime. Terrorism investigations may necessitate the use of special investigative techniques requiring the
assistance or approval of prosecutors, such as electronic surveillance and Foreign Intelligence Surveillance
Act (FISA) warrants. Moreover, due to the [*1273] high profile and high stakes of terrorism investigations,
police are particularly concerned not to run afoul of the law, and they will rely on the frequent advice of
prosecutors to avoid any embarrassing mishaps.
Because officers are so highly dependent on the involvement of prosecutors in proactive investigations, it
should come as no surprise that constraints on prosecutors often have the transitive effect of
constraining the police officers involved in a particular investigation. The best example of this
phenomenon is the recent experience of Oregon, where the state supreme court construed an ethical rule to
prevent prosecutors from supervising undercover investigations. In the case In re Gatti, n336 the court
interpreted DR 1-102(A)(4) of the Oregon Code of Professional Responsibility, which prohibits a lawyer
from "engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." n337 The court
determined that this language prevented prosecutors from supervising investigations in which law
enforcement officers posed as participants in criminal activity, such as drug users seeking to buy drugs from a
target under investigation. n338 The Oregon State Bar eventually revised DR-102 to make clear that
prosecutors could supervise such investigations, and the Oregon Supreme Court approved this change. n339
But in the meantime, for the two- [*1274] year period in which "the Gatti rule" remained in effect, proactive
criminal investigations ground to a halt in Oregon. F.B.I. Agent Nancy Savage, the Special Agent in Charge of
the F.B.I. office in Eugene, Oregon, commented on a national television broadcast that the Gatti rule had
"shut down major undercover operations" in Oregon. n340 In summary, as defense attorneys sometimes
joke, the prosecutor is "the head of the snake" in proactive investigations: without the prosecutor, the
investigation cannot proceed.
The foregoing provides cause to believe that law enforcement agents would reduce their suspicionless
surveillance and infiltration of religious organizations if the ethical rules prohibited prosecutors from
taking part in an investigation where such techniques were used, yet there is one other possibility that
should be considered. What if the increased regulation of prosecutors actually drove a wedge between
prosecutors and police? Perhaps prosecutors would become isolated from investigative decisions, so police
would be free to pursue all the investigative options that would be available to them but for the prosecutors'
supervision. Some scholars have expressed concern that any disparity in the regulation of prosecutors and
police could create a rift between them, n341 leading police to strike out on their own without the benefit of
prosecutors' advice and moderating influence. This possibility requires special consideration in the context of
terrorism investigations because the Department of Justice has made clear that its top priority is the
prevention of terrorism, rather than the prosecution of terrorism n342 - a change in emphasis that arguably
could reduce the dependence of police on prosecutors.
There are reasons, however, to believe that the close cooperation between prosecutors and police would
persist even if prosecutors are subject to stricter rules than police. First and foremost, police need prosecutors
to unlock the door to the closet where the most valuable investigative tools are kept: wiretaps, FISA warrants,
grand jury investigations, plea agreements offering leniency in exchange for cooperation, etc. The heightened
importance of these tools in terrorism investigations offsets the fact that [*1275] officers are somewhat less
beholden to prosecutors because the investigations rarely culminate in prosecutions.
The prosecutor is more than the superego to the police officer's id; the prosecutor is an indispensable
teammate in complex proactive investigations. Stricter regulation of prosecutors will not cause the
divorce of prosecutors and police - especially when the effect of that regulation is simply to impose the same
"reasonable suspicion" requirement that federal agents have lived with for the last twenty-six years.
2nc Solvency – Specific Rules
The counterplan’s specific rules are key – they allow comprehensive regulation to
ensure compliance.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
A third view - adopted in the present Article - is that the states' ethical codes should include specific
rules regulating the interstices where other bodies of law do not extend. Without such specific rules,
state bars have little hope of asserting control over the conduct of the lawyers in their jurisdictions. Hortatory
rules are difficult to enforce, n348 and rules that "backstop" other authority are usually of greater concern to
the first authority than to the state bar. Specific rules are easier for practitioners to understand. Another
advantage of specific rules is that they allow a jurisdiction to establish a comprehensive, internal
cohesive regulatory scheme. On the other hand, a code of ethics that includes specific regulations will take
more time to draft, will cost more to administer, and will likely be more voluminous than a code that sorts
forth general principles. In the end, the debate over specificity really boils down to a debate over efficacy. If
the state bars are to be effective regulators, they need specific bright-line rules.
Nowhere is the need for specific rules more evident than in the state bars' regulation of prosecutors. The
states have very few specific rules for prosecutors, n349 and this lack of specificity is one of the reasons why
very few [*1277] disciplinary cases are brought against prosecutors. n350 A greater number of specific
regulations for prosecutors would be salutary for a number of reasons. First, a particularized set of rules for
prosecutors would embolden state disciplinary panels to exercise their authority over prosecutors. Presently
the state bars find the regulation of prosecutors to be somewhat intimidating. The bars' disciplinary panels are
daunted by the prospect of "prosecuting a prosecutor." It would be far easier for bar authorities to assume
that function if the states' ethical rules for prosecutors were specific and lucid, leaving little dispute as to the
propriety of the conduct at issue in a disciplinary proceeding. As Professor Bruce Green and Professor Fred
Zacharias have noted, state bar associations are unlikely to discipline prosecutors "except in situations
involving unambiguously wrongful conduct." n351 Similarly, the U.S. Department of Justice's Office of
Professional Responsibility (OPR) - which disciplines federal prosecutors for violations of all applicable rules,
including state bar rules - will have less difficulty applying states' ethical rules if these rules are specific rather
than hortatory. n352
A second argument in favor of specific rules is that they actually help prosecutors. Many prosecutors
supervise long-term, proactive investigations that will not come under public scrutiny for months, maybe
years. Without bright-line ethical rules, these prosecutors cannot be certain how their conduct will be viewed
when they finally unveil their cases after the defendants are arrested. The ethical responsibilities of
prosecutors at the investigative stage are vital, but self-policing is the only means of securing compliance
at this stage. Bright-line rules increase the effectiveness of self-policing.
One last justification for greater specificity in states' regulation of prosecutors is the need to avoid disparity
between the rules for federal and state prosecutors. If the state bar plays only a minimal role in regulating
the ethics of prosecutors practicing within its boundaries, then the federal and state prosecutors will be
governed primarily by the internal strictures of their own agencies. These rules will probably differ in many
ways, and these differences could invite the unseemly prospect of "ethics shopping" by law enforcement
officers whose decision to pursue a prosecution in state or [*1278] federal court could depend in part on the
ethical rules applicable to prosecutors in each system.
AT: State Rules Won’t Solve Federal Prosecutors
The mandates would of the counterplan will solve federal surveillance efforts --federal prosecutors would not be able to evade it
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
C. A Chink in the Armor of the Supremacy Clause
Ordinarily the Supremacy Clause of the U.S. Constitution protects federal officials from regulation by the
states. For example, the Supremacy Clause places F.B.I. agents beyond the reach of state and local laws
limiting the surveillance powers of police. Earlier in 2003, when a defendant in a federal terrorism
prosecution claimed that a federal agent had not complied with a state rule limiting surveillance of churches,
the Assistant U.S. Attorney quickly brushed aside the argument by invoking the Supremacy Clause. n357
[*1279] Curiously, however, Congress has waived federal prosecutors' immunity from state regulation. The
legislation that subjected federal prosecutors to states' ethical codes is known as the McDade Act of 1998.
n358 This law provides that an attorney for the U.S. Department of Justice "shall be subject to the State laws
and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that
attorney's duties, to the same extent and in the same manner as other attorneys in that State." n359 Congress
passed this legislation in response to concerns that federal prosecutors had abused their authority in
investigating Representative Joseph McDade, who was tried and acquitted on charges of racketeering and
bribery. n360
The proponents of the McDade Act made clear that they intended for states to take over the regulation of
federal prosecutors' ethics. For example, Representative Tillie Fowler made the following statement on the
House floor:
I see this as an issue of accountability. Department of Justice attorneys should be required to abide by
the same ethics rules as all other attorneys. These attorneys should be held accountable to the same
standards set by the State Supreme Court that granted each lawyer his or her license to practice law in that
State. n361
Representative Steve Buyer presented a similar viewpoint: "Quite simply the issue before us is whether the
government attorneys at the Department of Justice should abide by ethical rules that all other attorneys have
to abide by, or can they make up their own standards of conduct?" n362 Congress emphatically answered this
question, requiring the Department of Justice's attorneys to observe the ethical rules of every state in which
they practice. n363
Despite this unequivocal expression of congressional intent, the Department of Justice has attempted to
evade certain state rules by challenging the rules under the Supremacy Clause. For example, in United
States v. Colorado Supreme Court, n364 the Tenth Circuit considered whether federal prosecutors must
abide by Colorado's attorney-subpoena rule. The Tenth Circuit held that the resolution of this challenge
would "turn[] on whether the rule is a rule of professional ethics clearly covered by the McDade Act, or a
substantive or procedural rule that is inconsistent with [*1280] federal law." n365 The Tenth Circuit found
that Colorado's attorney-subpoena rule fell within the former category. Therefore, the attorney-subpoena rule
was "a rule of ethics applicable to federal prosecutors by the McDade Act." n366
One year later, the Department of Justice brought a similar challenge in United States v. Oregon State Bar.
n367 The Department argued that federal prosecutors were not subject to a provision of the state ethics code
that the state supreme court had construed to prohibit prosecutors from supervising deceptive undercover
investigations. n368 The Justice Department claimed that such a rule conflicted with federal law, n369 but the
bar's attorneys analogized the case to Colorado Supreme Court, suggesting that internal Justice Department
guidelines authorizing deceptive investigations do not preempt state regulation on this issue. n370 The
District Court avoided a decision on this issue for over a year because the state bar decided to revise the rule
in question. Observers thought that the Justice Department's position must have been weak because
otherwise the court would have granted the Department's motion for summary judgment instead of
postponing a decision for over a year.
The rule proposed in this Article would also fall within the scope of the McDade Act. There is no on-point
federal statute or regulation that would conflict with a state ethical rule prohibiting prosecutors from directing
surveillance and infiltration of religious organizations absent reasonable [*1281] suspicion. n371 The mere
fact that such suspicionless investigations are not prohibited in the federal system is a far cry from
preemption. For instance, attorney subpoenas are not prohibited in the federal system, but federal
prosecutors are still subject to state ethical rules that limit the use of these subpoenas. n372 In an analogous
context, while the federal regulations promulgated under the Sarbanes-Oxley Act permit attorneys to disclose
clients' confidences in some circumstances, the attorneys are nonetheless subject to state ethical rules that
prohibit such disclosures. n373 In sum, an activity permitted under federal law is not necessarily off-limits to
regulation in states' ethical codes - especially where, as here, Congress has declared its intention to subject
federal prosecutors to the states' ethical regulation.
AT: Congress Solves
Congress fails – lacks expertise and links to politics.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
A. Statutory Regulation
Conceivably, Congress or state legislatures could impose a "particularized suspicion" requirement akin to the
test set forth in the Levi Guidelines. n290 Indeed, some state legislatures have already enacted statutes along
these lines. n291 Several commentators have expressed enthusiasm for an increased legislative role in the
regulation of prosecutors n292 and law [*1263] enforcement agencies, n293 yet such a strategy is also
subject to criticism on a number of grounds.
First, the expertise of the legislative branch is not ideal for this undertaking. Among the alternative regulators
considered here - the legislative branch, the courts, the Department of Justice, and state bars - the legislative
branch is the only institution in which non-lawyers outnumber lawyers. Perhaps for this reason, Congress has
usually refrained from assuming much responsibility in the regulation of prosecutors and law enforcement
agencies. n294 Congress declined to enact a legislative charter for the F.B.I., and Congress deferred to the
Department of Justice to formulate its investigative guidelines internally. n295 Congress also declined to
prescribe ethical standards for federal prosecutors, determining instead that prosecutors should be subject to
the ethical rules in state bar codes. n296 This history suggests that Congress acknowledges its own limited
expertise in setting parameters for federal criminal investigations. n297
Second, it is unclear whether the legislative branch has the will to restrict the authority of prosecutors and law
enforcement agents. Very few in Congress have shown the political fortitude to question the [*1264]
counterterrorism campaign. Proposals to amend the USA PATRIOT Act have not attracted many cosponsors. n298 While the cause of religious freedom is popular on both sides of the aisle, n299 this instinct is
offset by the general tendency among legislators to side with the prosecution rather than the accused. n300
Even if these two considerations were close to equipoise, the tiebreaker may be the loyalty commanded by
President Bush in the current Congress. It is highly unlikely that a congress controlled by the president's own
party would seek to rein in (and thereby embarrass) an executive agency with a presidential election looming
in 2004.
Third, the efficacy of legislative regulation may be somewhat limited. Congress and state legislatures have
only limited resources available for proactive oversight, and the normal means of ensuring compliance
with their laws (i.e., litigation brought by the federal or state departments of justice) would be of little avail
when these agencies are themselves the subjects of the regulation in question. Another important
limitation is the inability of Congress to regulate the state criminal justice system, n301 and the [*1265]
inability of state legislatures to regulate the federal criminal justice system. n302 It is likely that an undesirable
patchwork n303 could result from legislative regulation - especially given the varying willingness of legislative
bodies to constrain the authority of law enforcement agencies.
AT: Courts Solve
Courts can’t solve – they’re biased, reluctant to play a regulatory role, and usually
conduct haphazard regulation.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
B. Judicial Regulation
Some scholars favor an increase in judicial regulation of prosecutors and law enforcement officials. n304
There are three possible means through which the judicial system could limit the surveillance and infiltration
of religious organizations. First, the courts could suppress evidence seized through such investigations.
Second, the courts could grant injunctive or declaratory relief prohibiting such investigations proactively.
Third, the courts could simply prescribe standards for prosecutors or law enforcement officers that appear
before them; the power to regulate in this manner might arise from the courts' inherent supervisory power, or
from a delegation of power by Congress. n305
The expertise of the judiciary in dealing with these issues is unquestionably superior to the expertise of the
legislative branch, and is likely superior to the expertise of state bar associations as well. Judges' day-to-day
involvement in the criminal justice system gives them a unique [*1266] vantage point from which to
observe, and perhaps also to regulate, the conduct of prosecutors and law enforcement agents. Furthermore,
the life tenure of federal judges makes them immune to political pressure (except those who seek
appointment to a higher court), yet the risk of bias does not disappear if the judiciary takes over
responsibility for prescribing the rules for prosecutors and law enforcement personnel. In fact, the
very reason for judges' expertise - their immersion in the day-to-day adjudication of criminal cases - also
creates the potential that courts might craft rules that favor the courts' interests in this system. n306
Would courts be willing to take on a greater role in regulating prosecutors and law enforcement personnel?
Federal courts have busy dockets and finite resources. State courts are even more burdened. When
presented with an opportunity to play a proactive regulatory role in the criminal justice system, some courts
have declined to do so. In particular, federal courts have been wary of involving themselves in the affairs
of state and local police departments. Despite - or perhaps because of - a few highly publicized examples
in New York City and Chicago, the federal courts appear to be reluctant to set standards for local law
enforcement agencies. In Rizzo v. Goode, the Supreme Court vacated a federal district court's order
prescribing steps for the Philadelphia Police Department to remediate abusive practices. n307 Among other
reasons for this ruling, the Supreme Court argued that a federal court should not intervene deeply in the
internal affairs of a local agency, especially one concerned with law enforcement. n308
The efficacy of judicial regulation is the biggest stumbling block for this alternative. When courts take a
passive approach to regulating the conduct of prosecutors and police - i.e., when courts simply wait to
adjudicate suppression motions and civil lawsuits that litigants might present - the regulatory scheme takes
a long time to emerge, and its coverage is more haphazard than uniform. Another problem is that
because many of the arguments against the expanded surveillance of religious groups are not constitutionally
cognizable, n309 courts will rarely be able to grant the relief sought by petitioners. Finally, the recent
relaxation of the restrictions imposed by the consent decrees in Handschu and Alliance to End Repression
indicates that judicial regulation is more malleable than some civil libertarians would prefer.
AT: DoJ Solves
The Department of Justice fails – self-determination means that regulatory
government agencies would prioritize personal interests.
Lininger, 4 – Assistant Professor at the University of Oregon School of Law (Tom Lininger, 89 Iowa L.
Rev. 1201, “Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups,” April 2004,
Lexis, *fc)
C. Internal Regulation by Law Enforcement Agencies
Some commentators believe that the Department of Justice and other law enforcement agencies should have
the primary responsibility for regulating the conduct of their employees. n310 According to this view, no
regulatory authority is better suited to determine the proper requirements for prosecutorial and investigative
activities (including infiltration of religious groups) than the agencies that conduct these activities.
There can be little question that law enforcement agencies have the requisite expertise to formulate such
rules. Professor Roberta K. Flowers argues that the Department of Justice is better qualified than any other
institution to play this role, n311 due in part to the Department's unique familiarity with the prosecutorial and
investigative functions, and due to the Department's access to fast-breaking information about the latest
exigencies in investigating terrorism. The very reason for this expertise, however, is the Department's direct
stake in the matters to be regulated. That self-interest could lead (and arguably has led) to a regulatory
regime that favors the Department's interests over competing concerns such as the protection of
civil liberties. Professor Fred Zacharias and Professor Rory Little fear that the Department's institutional
interests could compromise its objectivity as a regulator of prosecutorial ethics. n312 Granting the Attorney
General exclusive authority to regulate the ethics of federal prosecutors is tantamount to allowing "the fox to
guard the hen house." n313
Would autonomous law enforcement agencies be willing to ratchet up their own internal regulations? On the
federal level, it seems unlikely that Attorney General Ashcroft would reinstate a suspicion requirement that he
has so ardently opposed for the last year. On the local level, police departments seem even less fond of red
tape than their federal counterparts. Vesting law enforcement agencies with self-determination may
actually remove any incentive they have for self-regulation. In the past, they have proposed additional
self-regulation in order to avert the risk of more drastic [*1268] regulation by other bodies, not because the
law enforcement agencies have actually sought greater regulation in the first place.
The last problem with exclusive reliance on an internal regulatory scheme is the limited efficacy of such a
system. Internal guidelines for prosecutors and law enforcement agents generally are not enforceable by
outsiders - and certainly not by criminal defendants who might seek to invoke these provisions as protection
of the defendants' rights. Since 1983, the Justice Department's investigative guidelines have included language
making clear that they are not enforceable in court, n314 and they are not grounded in law that is itself
enforceable. n315 Also, the United States Attorney's Manual is not enforceable in court. n316 Even if these
bodies of law were somehow enforceable, they might prove evanescent. In most instances, internal
regulations can be changed overnight with the stroke of a pen by a single official. n317 In fact, that is
precisely what happened when Attorney General Ashcroft promulgated the new set of investigative guidelines
in May 2002. Thus, there appears to be a number of strong reasons why the internal regulations of law
enforcement agencies do not provide the best vehicle to reinstate the "reasonable suspicion" rule for
infiltration of religious organizations.
S-6 Visas CP
1nc S-6 Visas CP
Text: the United States federal government should revise the S-6 visa requirements to
--increase the number of available visas
--protect the informants’ civil liberties
--abolish the danger of retaliation
--abolish the requirement than an informant be eligible for a monetary reward
These revisions should require that the informants possess critical intelligence prior
to agreeing to inform.
Counterplan solves – encourages cooperation and increases the quality of
information
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
With fewer bargaining options, less protection, and potentially more to lose n29 than informants recruited through
monetary incentives or promises of sentence reductions, there is greater incentive for informants "flipped" n30 via [*241] immigration
violations to provide unreliable information. Furthermore, due to the latitude afforded to the executive branch in national security matters, there
is a darker veil of secrecy shrouding measures for recruiting terrorism informants than for other types of
informants. n31 Immigration status offers a valuable way for the FBI to elicit cooperation and collect
intelligence from individuals who otherwise would not be forthcoming. However, this method for collecting intelligence
can prove counterproductive when indiscriminately applied to situations where the informants lack useful connections to terrorist groups. Decreased intelligence benefits,
lack of protection for informants, and increased ethnic and religious profiling suggest that changes to how the FBI recruits terrorism informants with immigration threats
and rewards are needed. While the FBI appears to recruit most terrorism informants through informal means, an
existing visa program already
formally offers immigration benefits to informants in exchange for their cooperation with terrorism
investigations. As part of the Violent Crime Control and Law Enforcement Act of 1994, n32 Congress specifically designed the S-6 visa to attract and reward
immigrants who were willing to cooperate by giving terrorism intelligence. n33 However, given the small number of S-6 visas issued, the
program likely fails to meet the FBI's intelligence recruitment needs. The fifty allotted S-6 visas per year n34 do not match up with
the number of informants (fifteen thousand) used by the FBI. n35 In order to qualify for the S-6 visa, an informant must also meet the eligibility requirements of the
Department of Justice's Rewards for Justice Program, a separate program designed to elicit and monetarily reward terrorism intelligence. n36 Lastly, access to the S-6 visa is
further restricted by the requirement that the informant be subject to danger if he or she is returned to his or her home country. n37 Since
the FBI has long
used immigration law as an incentive to compel terrorism informants to act, it has little motivation to use a
rewards program that presents additional barriers. The stringent eligibility requirements to obtain an S-6 visa explain its ongoing underuse. n38
[*242] This Comment proposes the S-6 visa requirements should be modified in a way that encourages trust and
cooperation from informants by allowing informants to enforce their bargains with the FBI. A legislative
overhaul that emphasizes pre-existing ties to terrorist organizations, increases the number of available visas,
and lowers the barriers to the S-6 visa's use would produce more reliable and actionable intelligence, and
provide greater protection for the informants' civil liberties and free speech. Congressional oversight of
the FBI's use of S-6 visas would also provide a valuable check on the FBI's largely unlimited control over
terrorism informants.
Part I examines the differences between the FBI's historical use of informants in investigating crimes such as drug smuggling and prostitution and the FBI's current use of informants investigating terrorism. Part II discusses how the use of immigration law to recruit informants, as well as the presence of informants in Muslim and Middle Eastern communities, chills free speech and encourages religious and ethnic profiling. Part II also addresses how the FBI's use of immigration law
to recruit terrorism informants heightens the risk of false intelligence and increases the possibility of entrapment and prosecution of individuals who do not pose a true threat. Part III looks at limitations of the FBI's recruitment and use of informants, and analyzes the failure to protect informants from abuse by handlers and constrain the FBI's actions. Part IV explains the S-6 visa requirements and advises increasing the congressional allotment of S-6 visas and modifying the eligibility requirements to improve their efficacy in terrorism investigations. Finally, Part V concludes that a modified S-6 visa
program will result in better relationships between law enforcement and the Muslim and Middle Eastern communities, less encroachment on civil rights, and ultimately, more effective counterterrorism investigations and prosecutions. I. Background: Traditional Informant Use Versus Modern Use in Terrorism Investigations Despite the FBI's long history of problematic relationships with informants, n39 both Congress and the Department of Justice - the FBI's parent agency - provide very little oversight of FBI informants. The lack of transparency, control, and accountability give the FBI almost
unlimited power over how it recruits, handles, and rewards informants. n40 In particular, because of the greater secrecy afforded to national security investigations, the use of terrorism informants presents unique problems not present in traditional, nonterrorism use of informants. [*243] The use of informants in terrorism investigations differs in several ways from their use in the investigation of domestic crimes like smuggling, prostitution, and financial impropriety. Although the FBI has been using informants to conduct investigations since the agency's inception, n41 informants were traditionally
used to investigate "victimless" crimes such as white-collar crimes n42 and crimes dealing with prostitution, drugs, and corruption. n43 Informants proved especially useful in those cases because all parties to the crime were usually guilty and not likely to inform authorities, making it difficult for law enforcement agents to discover the crime on their own. n44 Consequently, because individuals already part of the criminal organization or conspiracy had the trust and confidence of the organization and could provide the most useful information to law enforcement over a longer period of time, the FBI
has generally recruited informants in these investigations from the inside. The FBI's "Top Echelon" informant program, for example, sought to recruit high-ranking members of the mafia as informants. n45 Notably, however, even the FBI's traditional method of recruiting informants from within the criminal organizations resulted in false intelligence and botched cases. n46 While there are no detailed studies on the differences between terrorism informants and traditional informants because the FBI keeps most of this information confidential, n47 broad observations can still be made. First, the
FBI's preventative stance on terrorism has significantly increased reliance on informants' intelligence. n48 After 9/11, the FBI drastically expanded the use of [*244] informants n49 from around 1,500 in 1975 n50 to an estimated 15,000 today. n51 Informants have become the number one tool for preventing terrorist acts. n52 Second, law enforcement dealings with terrorism informants receive greater deference from courts and other limiting actors because terrorism is considered a national security matter instead of simply a domestic law enforcement matter. n53 The executive branch has greater
control over national security and foreign intelligence matters than over domestic law enforcement, an area traditionally reserved to the states. n54 Thus, the post-9/11 characterization of terrorism as a national security matter results in courts affording more leeway to terrorism investigations than domestic criminal investigations. n55 In other words, the federal government is afforded more secrecy in matters of national security. n56 Hence, because the government can invoke national security concerns to keep information about the informant and handler privileged, there is less regulation governing
the recruitment and handling of terrorism informants than traditional criminal informants. n57 [*245] Third, while false and inaccurate intelligence has generally been a problem with informants, n58 recent terrorism investigations raise the question of whether the alleged terrorist crimes would have occurred without law enforcement instigating the terrorist activities. n59 Informants in these cases aggressively instigated the defendants' participation in the plot. n60 Recruiting informants who lack ties to terrorist organizations may be at the root of this problem, because they lack predetermined targets
known to be involved in terrorist groups. n61 Without these targets, informants under pressure to avoid deportation or other immigration consequences, for example, are more likely to produce false information. n62 Further complicating this issue, the government has suffered from credibility problems in terrorism investigations for not always fulfilling the promises made to informants. n63 One FBI informant, a Yemeni citizen named Mohamed Alanssi, set himself on fire in front of the White House after alleging that the FBI had broken numerous promises to him. n64 Governmental credibility is
critical to maintaining a relationship of trust between law enforcement and informants, and thereby facilitates the gathering of credible intelligence. Due to the vast number of terrorism informants today, the secrecy underlying the investigations, n65 and the potential for false intelligence, the recruitment and use of informants in terrorism investigations present unique problems to the FBI. Because of increased confidentiality surrounding national security issues, the government has the means and incentives to shield the true extent of its recruitment and use of terrorism informants from courts and the
public. n66 To increase accountability and lessen the risk of abuse, more oversight over the FBI's dealings with terrorism informants is needed. Notably, some limits on the FBI's use of informants do exist. However, given the secrecy [*246] surrounding national security concerns, whether these limits apply in terrorism investigations remains unclear. II. Problems with Recruiting Informants Based on Immigrant Status The FBI's use of immigration rewards and threats to recruit informants undermines civil liberties and cooperation with Muslim, Middle Eastern, and other immigrant communities. n67
In general, the presence of informants in mosques and the surrounding community creates suspicion and distrust of law enforcement efforts, chilling free speech. That is, when community members know that informants are potentially monitoring their speech, community members are less likely to cooperate with law enforcement efforts. Furthermore, by sending informants into Muslim and Middle Eastern communities without specific targets to surveil, the FBI encourages ethnic and religious profiling and helps conflate Islam and terrorism in the public eye. Because informants recruited via
immigration law possess less bargaining power and face potentially more serious consequences than those recruited via criminal law incentives, there is greater incentive for these informants to supply false information and accuse innocent individuals. Ethnic and religious profiling, combined with the indiscriminate surveillance carried out by informants, can entrap individuals who do not pose a threat. Entrapment wastes government resources and undermines public confidence in the justice system and law enforcement. Although the FBI's problematic surveillance of Muslim and Middle Eastern
communities stems from the use of all types of informants and not merely those recruited with immigration promises, a modification to the use of immigration law in rewarding or coercing terrorism informants would provide a step toward producing more useful intelligence and reducing the risk of harm to innocent individuals. A. Mosque Surveillance Chills Free Speech In 2002, Attorney General John Ashcroft updated the Attorney General's FBI Guidelines, n68 and did away with restrictions on entering mosques and other places of worship. n69 The Guidelines read in pertinent part: "For the
purpose of [*247] detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally." n70 Thus, FBI agents can now enter any mosque or attend any religious gathering without probable cause. Under the previous Guidelines, issued in 1979 by Attorney General Benjamin Civiletti, an agent could only conduct an investigation where "the facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering the
political or social goals ... through activities that involve force or violence and a violation of the criminal laws of the United States." n71 In the past, the FBI's Domestic Investigations and Operations Guide ("DIOG"), which provides guidance on implementing the Attorney General's Guidelines, allowed supervisory agents to delegate to inferior agents decisions concerning the surveillance of mosques and other religious gathering places. n72 Recently, however, restrictions have been slightly strengthened by requiring agents in charge of the field operations to approve surveillance. n73 Nevertheless,
this change may not really improve matters, as numerous instances of mosque surveillance have already eroded Muslim communities' trust of law enforcement. n74 By placing informants in places of worship and cultural spaces, the FBI has chilled free speech and damaged the most reliable way of obtaining accurate terrorism intelligence from these communities. In a well-publicized and egregious case, an FBI informant named Craig Monteilh was assigned to surveil a mosque in Irvine, California. n75 The FBI instructed Monteilh, a convicted felon working as a paid informant, n76 to [*248]
indiscriminately surveil worshippers at the mosque, without concentrating on a particular target or activity. n77 After congregants noticed Monteilh's inflammatory rhetoric and repeated talks about instigating terrorism, they reported him to the FBI. n78 The FBI failed to investigate further, and after the arrest of another suspected terrorist, Monteilh revealed his identity as an FBI informant. n79 This incensed the Islamic community, in part because an FBI Assistant Director had promised a year earlier that the agency would not surveil mosques. n80 In response, Islamic groups like the Council on
American-Islamic Relations and the American Muslim Task Force on Civil Rights and Elections, which had previously cooperated with the FBI and urged community members to do the same, reversed course and stopped their outreach efforts to aid law enforcement. n81 In the end, Craig Monteilh's story is just one of many that demonstrate why Muslim communities have soured on helping the FBI locate suspicious people within their communities. n82 Although Monteilh was neither an immigrant nor was offered immigration incentives in return for intelligence, his story shows how the use of
informants can potentially damage both law enforcement and immigrant communities. Monteilh's story also illustrates why many communities feel mosque surveillance infringes on their freedom of speech. Once a community becomes aware that FBI informants may be surveilling its mosques, the fear that informants will target them chills the free exchange and expression of ideas and speech. n83 Given the constitutional guarantees of the First Amendment, places of worship should be treated with utmost sensitivity by law enforcement, n84 as the self-editing that occurs when people know they are
being watched curtails the free exchange of ideas. The very knowledge of potential surveillance may caution people against discussing their political and religious viewpoints for fear of being targeted by informants like Monteilh. Consequently, mosque attendance falls n85 and community cohesion suffers, thwarting the First Amendment's protection of free expression. Even those not harboring extreme viewpoints may be [*249] dissuaded from political speech for fear of misinterpretation. For example, after revelations of potential FBI surveillance surfaced at the Islamic Center of Irvine, congregant
Omar Turbi attested, "It gives you a little bit of apprehension about who you trust ... . Makes you think twice about what you say; what if people misunderstand you?" n86 Similarly, the executive director of the Council on American-Islamic Relations in Anaheim stated, "Some average Muslims interested only in praying are avoiding mosques for fear of somehow being monitored or profiled ... . Everybody is afraid, and it is leading to an infringement of the free practice of our religion." n87 Although some states like Indiana, Pennsylvania, and Oregon have enacted laws prohibiting the surveillance of
religious sites without reasonable suspicion, n88 it should not be necessary to rely on state laws to protect the integrity and values of the First Amendment. B. Mosque Surveillance Encourages Religious and Ethnic Profiling In addition to eroding the First Amendment's free speech rights of Muslims and Middle Easterners, the FBI's informant surveillance tactics also inappropriately target these religious and ethnic groups. Most of the organizations designated as Foreign Terrorist Organizations by the State Department are Muslim or Arab groups. n89 Many post-9/11 policies, like the extensive
detention of Muslims and Middle Easterners, indicate that the federal government views Muslims and Middle Eastern immigrants as potential terrorists. n90 Popular perception of Muslims has moved in the same direction, with huge opposition, for example, to the construction of an Islamic community center - Park 51 - near the site of the World Trade Center in New York. n91 Other examples include state laws banning the use of Shari'ah law in judicial decisions n92 and Islamophobia n93 rising in the United States n94 and abroad. n95 [*250] By sending immigrant informants into mosques and
religious and ethnic communities with little more than a vague directive to find terrorists, the FBI perpetuates ethnic profiling and the conflation of Islam and terrorism. In recruiting terrorism informants from the immigrant population, the FBI puts an ethnic and religious face on terrorism, and perpetuates the popular perception of what terrorists look like. Sending these informants into mosques and immigrant communities greatly increases the chances that alleged suspects fit the ethnic and religious stereotypes of terrorists. Put differently, if an informant is assigned to surveil a mosque, the chances
of the informant bringing back a non-Muslim or non-Middle Eastern suspect are low. This surveillance policy becomes a vicious cycle. The FBI recruits immigrant individuals from suspect communities to become informants, pressures them into producing terrorism suspects that fit the popular perception of what terrorists are like, and then prosecutes these suspected terrorists. All this reinforces the public conflation of immigrants, Muslims, Middle Easterners, and terrorists. Ethnic and religious profiling further alienates Muslim and Middle Eastern communities, and deepens their mistrust for
government. n96 Additionally, by predisposing many Americans to view Muslims, immigrants, and Middle Easterners as potential terrorist threats, ethnic and religious profiling may also bias juries in terrorism prosecutions. n97 Although suspects often claim entrapment as a defense, after 9/11 the entrapment defense has never been successfully used in terrorism cases. n98 In fact, many, if not most, terrorism cases never reach the jury because the chances of successfully defending against terrorism charges after 9/11 are almost nonexistent. n99 Popular stereotypes concerning Muslims and Middle
Easterners play a role in this. Although the use of immigration law in recruiting informants is only one of many factors contributing to this harmful cycle, the use of coercive tactics like immigration law to recruit informants creates a [*251] higher risk of unfounded terrorism prosecutions against innocent individuals who do not pose a risk. Consequently, this fuels the public perception that a stereotypical terrorist is a Middle Easterner or Muslim. C. Terrorism Informants' Presence in Muslim and Middle Eastern Communities Damages Intelligence Efforts Many argue that tactics like recruiting
informants through immigration law and surveilling mosques are necessary to prevent terrorist attacks, and that national security must be the nation's top priority, whatever the cost. These arguments fail to recognize that when informants lack a specific target and direction, the gathered intelligence does not necessarily enhance the nation's security. Instead, the FBI - with little concern for the actual gravity of the original threat posed by the suspect - creates an elaborate terrorism plot for the surveillance targets to participate in. n100 After 9/11, many individuals who showed no signs of violence or
extremism prior to involvement with informants and government-created plots have been prosecuted under terrorism charges. n101 Until the informants provided the means, these individuals did not have the finances or the proper connections to conceive and carry out these terrorism plans. Although orchestrating these plots makes the FBI's preventative stance appear successful in the public eye, it diverts law enforcement resources from focusing on real targets. Moreover, Professor David A. Harris claims that "the unregulated use of informants in mosques and other religious and cultural settings
can also do great damage because it poses the risk of cutting off our best possible source of intelligence: the voluntary, cooperative relationships that have developed between law enforcement and Muslim communities." n102 Having community members report suspicious information to the FBI may be a more effective way of obtaining reliable terrorism intelligence from these communities. n103 For example, in the few domestic terrorist prosecutions where a terrorist attack plan actually existed prior to informant involvement, community members who had noticed something amiss were the first to
alert the FBI and identify the subjects. n104 In fact, since 9/11, community members have assisted law enforcement in stopping potential terrorism plots in a number of cases. n105 A [*252] recent example, the case of Umar Farouk Abdulmutallab, the "Underwear Bomber," shows that the attempted bombing could have been prevented had law enforcement heeded the warnings that Abdulmutallab's father gave the CIA at the U.S. embassy in Nigeria. n106 As the president of the San Francisco Board of Supervisors and former criminal prosecutor, David Chiu testified regarding the Arab, Middle
Eastern, Muslim, and South Asian communities in San Francisco: "Without that level of cooperation, that level of trust, everything falls apart ... . Surveillance only serves to continue to drive wedges when cooperation is what is needed most." n107 Analogous to the way informants in mosques target vulnerable individuals despite these individuals' lack of connection to terrorist organizations or predilection for extremism, a 2011 study by the Migration Policy Institute demonstrates a similar phenomenon within other communities. n108 The 287(g) initiative, named after the section of the Immigration
and Nationality Act that authorized it, allows ICE to enter into memorandums of agreement with state and local law enforcement agencies, empowering these agencies to directly enforce immigration laws. n109 However, the study found that half of the jurisdictions using 287(g) did not direct their enforcement efforts toward serious or violent offenders, n110 as the 287(g) initiative had originally envisioned. n111 Instead, these jurisdictions sought to deport as many offenders as possible regardless of the severity of the crime. n112 Study respondents "believe that 287(g) program activities affect the
community in distinct and adverse ways, including by causing declines in Latino immigrant populations, [creating] avoid[ance of] public places by these populations, changing [] driving behavior, [creating] fear and mistrust of the police and other authorities, and reducing crime reporting." n113 These behaviors were more acute in jurisdictions with nontargeted enforcement, [*253] where any offense could constitute grounds for deportation. n114 Just as Latino immigrant communities became distrustful of law enforcement and withdrew from crime reporting when threatened with deportation, so did
Muslim and Middle Eastern communities when threatened with FBI surveillance of communal spaces. As the study notes, "these operations can generate widespread distrust of police. Such distrust in turn prompts immigrants to change their behavior to avoid contact with police and other authorities." n115 In order to procure accurate intelligence from any community, a relationship of trust and respect between law enforcement and the community must exist. n116 However, from the mass arrest and detention of Muslims shortly after 9/11 n117 to the ongoing allegations of ethnic and religious
profiling today, n118 the federal government has made serious errors in dealing with Muslim and Middle Eastern communities since 9/11. While the government recognizes that community policing n119 is the best way to obtain reliable intelligence, n120 the FBI is caught between two contradictory strategies and must choose between sending informants into mosques without reasonable suspicion, and gaining the trust and cooperation of Muslim and Middle Eastern communities. As one congregant in a surveilled mosque observed, "The FBI wants to treat the Muslim community as a partner while
investigating us behind our backs ... . They can't have it both ways." n121 While it is unrealistic to think that the FBI will stop using informants in these communities, a more restrained use of informants based on reasonable suspicion of wrongdoing would mitigate perceived damages to community relations. Requiring the FBI to have preexisting reasonable suspicion would add credibility to the agency and alleviate some of the fear surrounding terrorism investigations involving informants. [*254] By virtue of their connections and daily interactions, those active in a particular community are in the
best position to notice when others in the community act strangely. Unlike informants who may be new to the community and who other members may view with suspicion, well-established community members may already know what is going on in their community and can more accurately spot genuine threats. Notably, the argument that Muslims and Middle Easterners are in the best position to provide accurate intelligence on terrorist activities within their respective communities risks fueling the government's conflation of those communities with terrorism. n122 However, in analyzing how best
to procure counterterrorism intelligence, it would be amiss not to recognize the FBI's and other law enforcement agencies' heavy focus on Muslim and Middle Eastern communities. This is largely due to most recognized foreign terrorist organizations being based out of the Middle East or having Islamic ties. n123 Law enforcement efforts, immigration law, surveillance policies, and pre-9/11 incidents like the 1993 attack on the World Trade Center have categorized the typical terrorist as male, Middle Eastern, and devoutly Muslim. n124 The reality is that even though recently immigrated Muslims and
Middle Easterners have become synonymous with terrorism, terrorists come from various ethnicities, religions, and communities. n125 While acknowledging and attempting not to replicate that stereotype, this Comment seeks to recommend ways to improve the relationship between law enforcement and potential terrorism informants who typically belong to the same religion or ethnicity as those they surveil. The government's focus on Muslim and Middle Eastern communities as potential breeding grounds for terrorist groups also directs the focus of this Comment. However, this Comment resists
the broad characterization of these communities as prone to extremism and violence. In fact, a recent statistical analysis of terrorism activity after 9/11 discredits the stereotype that Muslims and Middle Easterners account for most of the terrorism within the United States. n126 In total, the report found that U.S.-originated non-Muslims accounted for 107 post-9/11 plots while U.S.-originated Muslims accounted for 49. n127 Conversely, the report found that cooperation with Muslim communities helped prevent 40 percent of all Al-Qaeda plots after 9/11. n128 As the report notes, "[a] singular
focus on Muslim terrorists is both bad for national security and civil society ... . Numerous studies and experts have stated that there is no reliable [*255] "terrorist profile.'" n129 When compared to the actual threat posed by members of Muslim and Middle Eastern communities, then, the FBI's explicit target of Muslim and Middle Eastern communities is excessive. D. Indiscriminate Use of Informants Leads to Entrapment Entrapment is another problem arising from the broad use of terrorism informants. Since 9/11, many informants have been involved with cases where the government effectively
created a terrorist plot and then pressured the defendant into agreeing to it. n130 As the Council on American-Islamic Relations stated in a 2009 report, informants "are paid and/or rewarded based on the amount of information they produce; therefore, these informants are inclined to exaggerate, instigate, and fabricate cases of a "terrorist' nature." n131 Many of the terrorist plots the FBI touts to the public as victories have been the result of informants pressuring vulnerable, young, or impressionable individuals who lacked ties to terrorist organizations or prior terrorist inclinations. n132 In United
States v. Cromitie, n133 a striking case that illustrates the extent to which informants and their handlers can go in fabricating prosecutions, the defendant pled outrageous government conduct as a defense. n134 In contrast to an entrapment defense, claims of outrageous government conduct focus on government action rather than the defendant's. n135 Shahed Hussain, the informant in Cromitie, began working for the FBI in 2002 after facing deportation and criminal charges over a Department of Motor Vehicle scam he ran. For his work as an informant, Hussain was paid around $ 100,000. n136
Following Cromitie's conviction for conspiring to commit terrorist acts, Cromitie moved to dismiss the indictment based on the outrageous conduct of the government and, specifically, Hussain. n137 Before his arrest, Cromitie expressed to Hussain interest in joining a Pakistani terrorist group. In subsequent conversations with Hussain, however, Cromitie reacted negatively [*256] to suggestions of suicide bombing. n138 Further, in recorded conversations between Cromitie and Hussain, Cromitie at times sounded ambivalent about jihad and other times expressed violent sentiments. n139 However,
"whenever Hussain asked Cromitie to act on those sentiments ... Cromitie did none of the above." n140 Hussain then escalated the pressure, promising Cromitie a BMW for carrying out a mission and offering him money for "doing jihad." n141 In addition to the pressure exerted on Cromitie to commit a crime, the FBI made other serious missteps while building its case against him. During the investigation, the FBI failed to corroborate Cromitie's alleged past crimes and ties to Afghanistan. n142 The court specifically noted: Before deciding that the defendants (particularly Cromitie, who was in their
sights for nine months) presented any real danger, the Government appears to have done minimal due diligence, relying instead on reports from its Confidential Informant ... no one thought it necessary to check before offering a jihadist opportunity to a man who had no contact with any extremist groups and no history of anything other than drug crimes. n143 In fact, although FBI officials concluded during a meeting that Cromitie "was unlikely to commit an act without the support of the FBI source," officials nevertheless continued the investigation. n144 Even after Hussain realized that
Cromitie's stories of visiting Afghanistan and committing crimes were false, he continued to offer Cromitie money in exchange for committing crimes, promising him up to $ 250,000 without authorization from the FBI. n145 After Cromitie lost his job at Wal-Mart and grew desperate for money, Hussain "leveraged that unfortunate situation to coax Cromitie to go forward with a jihadist plot. Cromitie protested that he did not want to be a martyr, but nonetheless agreed to go forward." n146 Cromitie helped recruit several lookouts, surveilled potential sites, and planted what he thought was a bomb.
Cromitie was subsequently arrested. n147 The court described the government's involvement in this plot: As it turns out, the Government did absolutely everything that the defense predicted in its previous motion to dismiss the indictment. The Government indisputably "manufactured" the crimes of which defendants stand convicted. The Government invented all of the details of the scheme - many of them, such as the trip to Connecticut and the [*257] inclusion of Stewart AFB as a target, for specific legal purposes of which the defendants could not possibly have been aware ... . The Government
selected the targets. The Government designed and built the phony ordnance that the defendants planted ... . The Government provided every item used in the plot ... . The Government funded the entire project. And the Government, through its agent, offered the defendants large sums of money, contingent on the participation in the heinous scheme. n148 Surprisingly, the court nevertheless concluded that the government's actions were neither outrageous nor shocking. n149 In fact, the court stated that it would have been negligent for the FBI not to investigate Cromitie after the statements he
made regarding Jews, the United States, and Pakistan?despite these statements never becoming specific threats or incitements to action. n150 Even though the court did not find outrageous conduct, it nevertheless recognized that [Hussain, as the informant,] was the prime mover and instigator of all the criminal activity that occurred, right up until the last moments of the conspiracy, when he had to stop the car he was driving and "arm" the "explosive device" because the utterly inept Cromitie could not figure out how to do it. n151 Although "this court is not familiar with a case in which so many
different tactics were used on a single individual ... Cromitie justified the Government's persistence when he proved to be ready and willing to commit terrorist acts." n152 Cromitie raises the question whether government action would ever rise to the level of outrageousness that the courts demand. In Cromitie, the court suggested that only duress, physical deprivation, or coercion by the government is prohibited when pursuing a potential prosecution. n153 Although Cromitie's sentiments toward Americans and Jews are neither admirable nor politically correct, the court strongly suggested that he
never posed a real threat. n154 [*258] Nevertheless, despite its aggressive actions, the government received nothing more than a verbal slap on the wrist. n155 Stories like Cromitie's underscore Muslim and Middle Eastern communities' fears of informants. Community members realize that the chances of a successful defense against the government based on the tactics of an informant and the FBI are extremely low, regardless of the coerciveness of the methods used. III. Limitations on the FBI's Use of Informants Cromitie demonstrates that the FBI lacks substantial restraints on how it recruits and
uses informants. Currently, there are four restrictions on how the FBI recruits informants: (1) internal FBI limitations, (2) constitutional limitations, (3) the entrapment defense and the outrageous government conduct doctrine, and (4) enforcement of nondeportation agreements in plea bargains. Because these limitations have neither curtailed the FBI's mismanagement of informants nor ensured a high degree of accuracy in information obtained, these restrictions have failed to protect both the public from terrorism and informants from abuse. n156 A. Attorney General Guidelines The Attorney
General's Guidelines on FBI Confidential Human Sources n157 ("Guidelines"), issued in 2006 by the Department of Justice, n158 are agency guidelines, not regulations, and as such have no binding legal effect. n159 [*259] Much of the problem of FBI informant misuse stems from this fact. The Guidelines outline the rules the FBI should follow in undercover investigations involving informants, which include documenting new informants and recording agreements made. n160 The Guidelines are also subject to review and modification by the Attorney General in accordance with federal laws, and
are afforded great deference by the courts. n161 The major problems with the Guidelines, however, are that they lack consequences, are not subject to judicial review, and are not followed by agents. n162 While the Guidelines may have internal consequences n163 for FBI agents who violate them, they have no meaningful effect beyond internal regulation and cannot be enforced by the public via judicial review. n164 Judicial review for violations only occurs when criminal prosecutions reveal the FBI's activities in the investigation. n165 However, the informants in these cases typically remain
confidential, and any inquiry into their actions does not extend beyond the handling agent's conduct and the recruitment methods used. n166 Evidence shows that in many cases, FBI agents fail to follow the Guidelines when recruiting and handling informants. A 2005 study conducted by the Department of Justice Office of the Inspector General found that the FBI did not provide enough support to agents to properly follow the pre-2006 Attorney General Guidelines Regarding the Use of Confidential Informants. n167 In fact, noncompliance with the guidelines was a problem in 87 percent of the
cases the Inspector General reviewed. In particular, agents failed to properly review the suitability of potential informants, properly document informants' illegal activities, and notify informants of their limitations. n168 Given the high levels of noncompliance and agents' nearly unlimited discretion in extending immigration rewards, agent abuse is likely also high. [*260] Immigration rewards appear only once in the Guidelines, yet this single reference exemplifies the impunity with which law enforcement procures informants. The Guidelines state that "no promises or commitments can be made,
except by the United States Department of Homeland Security, regarding the alien status of any person or the right of any person to enter or remain in the United States." n169 The Guidelines also note that informants should receive this information if and when they have any issues regarding immigration status. n170 While acknowledging that FBI agents may only offer immigration benefits to informants pursuant to DHS's agreement, the Guidelines do not answer the questions raised by this arrangement. Unlike monetary rewards, for which the Guidelines establish a number of rules regarding
proper payment procedures and conditions, n171 it is not clear under what circumstances immigration rewards must be documented and whether they are subject to conditions similar to those of monetary rewards. Their brief appearance in the Guidelines shows the FBI's recognition of immigration benefits as a method to elicit informant cooperation, but details on their use are nonexistent. This absence of information indicates that agents may possess vast discretion when using immigration rewards to recruit informants. It also indicates that executing these rewards is ultimately in the hands of
DHS. B. Constitutional Limitations In theory, both the Fourth Amendment and the Due Process Clause of the Fifth Amendment restrict the FBI's use of informants in terrorism investigations. However, neither Amendment has actually limited the Agency's recruitment tactics when dealing with subjects facing immigration-related pressures to serve as informants. The Fourth Amendment's prohibition against unreasonable searches and seizures n172 does not offer any substantive restrictions on the FBI's use of informants in terrorist investigations. In criminal investigations where the Fourth
Amendment does apply, it places few restrictions on the use of information gathered by informants. n173 To obtain a warrant based on intelligence gathered by an informant, the information must be reliable in establishing the requisite probable cause. n174 In matters of national security however, the search standard is less stringent than the probable cause standard [*261] used in criminal investigations. n175 In fact, the United States Supreme Court has never held that the Fourth Amendment applies to national security investigations. n176 In particular, the Foreign Intelligence Surveillance Act of
1978 (FISA) n177 shields federal agents from standard criminal warrant requirements when carrying out electronic surveillance and searches. The Foreign Intelligence Surveillance Court, a secret court n178 created by FISA to issue warrants in national security investigations, n179 only requires probable cause that "the target of the electronic surveillance is a foreign power or an agent of a foreign power." n180 Hence, because agents do not have to produce evidence of criminal activity before initiating electronic or physical surveillance, they are able to use informants more freely. n181 Under FISA, the
Attorney General can also authorize surveillance for up to a year without court order. n182 Furthermore, in 1982, President Reagan's Executive Order No. 12,333 identified the FBI as the primary gatherer of domestic intelligence and held that the Attorney General holds the power to carry out warrantless searches and surveil agents of foreign powers. n183 Executive Order No. 12,333 essentially paved the way for the FBI's use of informants to conduct domestic surveillance of foreign agents, including members of foreign terrorist organizations, without [*262] adhering to the restrictions inherent in
the use of informants in domestic criminal investigations. In domestic criminal investigations, agents are required by law to corroborate informants' intelligence and credibility before a warrant is issued. n184 However, under Executive Order No. 12,333, this corroboration is not required in terrorism investigations. n185 For informants facing deportation and immense pressure to cooperate, these lax warrant requirements remove an important check on the validity of their intelligence. The requirements also give the FBI more opportunities to abuse its power. Although no court has explicitly found
Executive Order No. 12,333 constitutional, no court has found it unconstitutional and thus it remains good law. Indeed, the Northern District of Illinois found that FBI reliance on the Order in conducting physical searches for foreign intelligence gathering was reasonable. n186 The Due Process Clause of the Fifth Amendment has provided a way to avoid deportation to some informants facing deportation under the state-created danger doctrine. n187 The doctrine allows for recovery and injunctive relief for civil rights violations. It holds that "the government has a constitutional duty to protect a
person against injuries inflicted by a third-party when it affirmatively places the person in a position of danger the person would not otherwise have faced." n188 To establish a successful claim under this doctrine, a valid relationship must have existed between the plaintiff and state; the state must have created the opportunity that ultimately harmed the plaintiff; the state must have acted in willful disregard for the plaintiff's safety; and the harm must have been foreseeable. n189 Notably, given its nearly exclusive use in domestic criminal cases, n190 the state-created danger doctrine has limited use for
immigrant informants. The First and Third Circuits have declined to apply the danger doctrine in deportation cases because it intrudes on Congress's plenary power over immigration. n191 The Fifth and Ninth Circuits, however, have left the doctrine [*263] open for potential use by immigrant informants. n192 Nevertheless, even if the danger doctrine was applied in immigration cases, many of the terrorism informants in the United States lack ties to actual terrorist groups in or outside of the United States n193 and thus are not subject to threat of retaliation from actual terrorist groups if deported.
Hence, the state-created danger doctrine may not help many terrorism informants avoid deportation. Additionally, the state-created danger theory only protects informants after recruitment, and provides no benefits to informants when negotiating the terms of their agreement with the FBI. While the knowledge that informants can later enforce their agreements may encourage more careful engagement with potential informants, ultimately bolstering informants' ability to vindicate their agreements with the government, the danger theory creates no incentive for the FBI to only recruit informants with
established ties to terrorist organizations. In fact, because the danger doctrine is likely only useful when informants have preexisting ties to terrorist organizations, the doctrine may steer the FBI away from recruiting those with established ties because doing so would provide these informants with a way to enforce their agreements. Nevertheless, until courts actually extend the danger doctrine to deportation cases, the protective value of this theory is unknown. C. Entrapment Defense and Outrageous Government Conduct Doctrine The entrapment defense and the claim of outrageous government
conduct are also possible sources of restriction on the FBI's use of informants. n194 These protect defendants who claim to lack the necessary predisposition for criminal activity but whom the government induced to commit criminal acts. n195 The test for entrapment used by most jurisdictions including the federal courts places the burden on defendants to show lack of predisposition to commit the alleged crimes. n196 The entrapment defense succeeds when "the criminal design originates with the officials of the Government, and they [*264] implant in the mind of an innocent person the
disposition to commit the alleged offense and induce its commission in order that they may prosecute." n197 The mere provision of materials and opportunities by the government for the commission of a crime is not sufficient unless the government's action "actually implants the criminal design in the mind of the defendant." n198 In contrast, outrageous government conduct claims focus on government action. In United States v. Russell, the Supreme Court acknowledged that "we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due
process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." n199 Unlike entrapment, outrageous government conduct is not an affirmative defense. Rather, it seeks dismissal based on government violation of due process. n200 To prevail, an individual must show that the government's conduct offended "fundamental fairness" and shocked "the universal sense of justice." n201 A court has never found outrageous government conduct where defendants were predisposed to commit crimes by the acts of an informant. n202 The use of the
entrapment or outrageous government conduct defense may raise questions about the behavior of the informant and the government agent's instructions to the informant. While the entrapment defense may allow a defendant to escape criminal liability, an examination of government relations with informants may call for public and political limitations on the FBI's dealings with informants. n203 Usually, because law enforcement values the secrecy of its dealings with informants, evidence about informant recruitment and handling only surfaces after egregious cases involving informants acting as
agent provocateurs. n204 For example, in Cromitie, the defendant argued that the government entrapped and subjected him to outrageous conduct. n205 Although neither claim ultimately prevailed, Cromitie exposes how far the government may go to set up an individual for a crime, including offering a car and a quarter million dollars to participate in terrorist acts. n206 Cases like Cromitie do little to restrict the FBI's dealings with informants. If courts were more receptive to claims of entrapment and outrageous [*265] government conduct, law enforcement agencies would be threatened by the risk
of exposure, which in turn might encourage them to curtail their aggressive tactics. Nevertheless, most terrorism investigations and cases involving terrorist defendants never go to trial, making Cromitie an unusual case. n207 In terrorism cases, defendants must overcome an unusually heavy burden because irrespective of the government's conduct or the defendant's vulnerability, committing or assisting in the commission of terrorist acts is always considered evidence of a predisposition to terrorism. n208 Cromitie demonstrates that even though courts acknowledge the government's outrageous
conduct, courts may nevertheless find that a defendant's agreement to participate in terrorist acts demonstrates the necessary predisposition. n209 The fact that the FBI suffered no repercussions for aggressively recruiting Cromitie shows that entrapment and outrageous government conduct claims effectively do not restrain the FBI's use of aggressive terrorism informant recruitment tactics. D. Nondeportation Agreements in Plea Bargains Nondeportation agreements have also failed to effectively restrain the FBI's use of informants via immigration law. In the United States, most criminal cases are
resolved by plea bargains. n210 Before the 1970s, plea bargaining was conducted in relative secrecy and deals between the parties were not recorded. n211 In the 1970s, the Supreme Court held that if prosecutors [*266] reneged on plea bargains, petitioners were entitled to specific performance, resentencing, or withdrawal of the guilty plea. n212 Traditionally, courts have treated nondeportation agreements and plea bargains as contracts. n213 Thus, when the prosecution does not follow through with the promised benefits of a plea agreement, defendants may enforce the agreement as though it were a
contract. n214 Further, nondeportation agreements are similar to plea bargains in that the defendant agrees with the government to some detriment in exchange for a benefit. Due to these similarities, until the 1990s the Eighth and Ninth Circuits routinely enforced plea bargains when informants were promised immigration benefits in exchange for information. n215 In addition to the standard contract elements of offer, acceptance, and consideration, two additional elements must have been present in the agreement in order to establish an enforceable claim against the government. First, the
government agent must have had "actual authority" to ensure government performance. n216 Second, agency principles must have been present in the agreement. Agency is present when one person, namely the agent, consensually acts on behalf of another - the principal. n217 Hence, an agreement entered into by the prosecutor, as the agent, creates a contract between the principal (the immigration official) and the third party (the informant). n218 Nevertheless, in 1996 the Department of Justice issued regulation 28 C.F.R. § 0.197 which stated that immigration officials could not be held responsible
for prosecution-made plea agreements in criminal proceedings or investigations that involved immigration laws. n219 Further, in order for agreements to count under 28 C.F.R. § 0.197, there must be written authorization from DHS. Cases that have addressed 28 C.F.R. § 0.197 since its enactment have affirmed it. For instance, in Bao Tai Nian v. Holder, the Ninth Circuit affirmed [*267] petitioner's deportation and held that a letter from an Assistant United States Attorney presumably promising nondeportation had no bearing on the case because according to existing regulation, "absent written
authorization from the Commissioner of the Immigration and Naturalization Service ("INS'), the INS shall not be bound by cooperation agreements that government agencies may reach with alien witnesses." n220 Similarly, in Frimpong v. Holder, petitioner alleged that a federal prosecutor had promised him relief from deportation in exchange for information against petitioner's coconspirators. n221 There, the court dismissed his argument because there was no evidence of written authorization from DHS for the agreement, as required by the regulation. n222 Effectively, unless authorized by DHS,
an FBI offer of nondeportation as an incentive does not bind the FBI to performance. Considering the Guidelines, various constitutional limits, the entrapment defense, and the near complete unenforceability of nondeportation agreements, the FBI has great discretion and little potential liability when recruiting informants. Very little prevents the FBI from pursuing aggressive recruiting tactics like probing an individual's background for immigration violations and using these as ways to elicit cooperation. Once the informant cooperates, almost nothing prevents the FBI from disregarding the promise
of immigration benefits. Today, nothing adequately restrains the FBI's recruitment practices, leaving informants particularly vulnerable to coercion and thus more likely to provide faulty information. IV. A Possible Solution: The S-6 Visa As it currently exists, the S-6 visa may be a way of controlling the FBI-informant relationship in cases involving promised immigration benefits. The S-6 visa rewards terrorism informants with permanent residency status. However, as discussed infra, in order for the S-6 visa to effectively restrain the FBI and produce useful intelligence, the S-6 visa needs to be
modified. The examples discussed supra in Part II illustrate how the overbroad and indiscriminate use of informants, particularly those recruited with immigration threats or rewards, harms the acquisition of useful information, fails to identify and protect against legitimate threats, chills speech, and encourages ethnic and religious profiling. Immigration law offers less protection to informants than promises of leniency in criminal matters, thus increasing the potential for informants to produce faulty intelligence. Part III, supra, demonstrates that limitations on FBI dealings with informants are
practically nonexistent. This Part proposes a revision to the S-6 visa that would help diminish the harmful effects discussed in Part II by increasing transparency and providing [*268] more procedure for FBI informant recruitment via immigration law. Specifically, providing immigrant informants with better bargaining power and ways to vindicate their agreements through the S-6 visa would alleviate some of the aforementioned harms. Although there have been few reports of the FBI abandoning immigration promises in counterterrorism investigations, n223 the FBI has repeatedly broken alleged
immigration and monetary n224 promises made to informants in exchange for participation in drug investigations, n225 human trafficking investigations, n226 and pre-9/11 terrorism prosecutions. n227 Providing a more straightforward and transparent way for the FBI to offer immigration benefits to informants would help decrease informants' potential vulnerability and limit the FBI's power. With modifications, the S-6 visa could help resolve these problems. A. The Current S-6 Visa Requirements Established in 1994 as part of the Violent Crime Control and Law Enforcement Act, the S-6 visa, or
"snitch visa," n228 rewards terrorism informants and their families with legal permanent residence. n229 More specifically, the Act allows the government to give a temporary (three-year) material witness visa to people with probative knowledge of criminal activity. n230 During this three-year stay, an S-6 visa recipient can apply for permanent resident status, or a "green card," which may subsequently permit the recipient to apply for citizenship. n231 S-6 visas are subject to a different allotment system than immigrant-type visas. n232 Specifically, Congress allots fifty S-6 visas each year, and unused
visas cannot be carried forward. n233 Furthermore, respective family members who are also eligible to come to the United States do not count toward the [*269] allotment. n234 To qualify for the S-6 visa, however, those providing critical and reliable information necessary for the successful investigation or prosecution of terrorist organizations n235 must be in danger of retaliation in their home country, and qualify for a reward under the State Department's Rewards for Justice Program. n236 The State Department's Rewards for Justice program was established in 1984 under the Act to Combat
International Terrorism. n237 At the discretion of the Attorney General, the Program provides rewards of up to $ 500,000 to "any individual who furnishes information leading to the arrest or conviction, in any country, of any individual or individuals for the commission of [or conspiracy to commit] an act of terrorism against a United States person or United States property." n238 Individuals cannot apply for the S-6 visa on their own behalf; only state or federal law enforcement agencies may apply on behalf of an individual. n239 Individuals eligible for immigration benefits under the S-6 visa
program would generally be inadmissible in the United States or otherwise subject to deportation due to criminal or immigration status violations. n240 As part of the process, applicants must waive their rights to any deportation hearings and appeals should deportation proceedings occur n241 - further eroding their bargaining power - and must acknowledge that the S-6 visa is the sole authorization of their presence in the United States. n242 In turn, the United States Attorney with jurisdiction over the investigation that forms the basis for the request must certify that no promises regarding
immigration benefits have been or will be made to applicants. n243 Furthermore, law enforcement agencies initiating the requests must provide affidavits, statements, or other evidence demonstrating applicants' cooperation, their grounds for exclusion, and the government's need for the terrorism intelligence. n244 Law enforcement agencies must then file this information with the Assistant Attorney General in the Criminal Division of the Department of Justice. n245 [*270] Upon reaching the Assistant Attorney General, the information is reviewed for accuracy and specific factors are weighed to
determine eligibility for the S-6 visa. n246 When necessary, "representatives of the [Immigration and Naturalization] Service [(now the U.S. Citizenship and Immigration Services ("USCIS"))], Marshals Service, Federal Bureau of Investigation, Drug Enforcement Administration, Criminal Division, and the Department of State, and those representatives of other [law enforcement agencies], including state and federal courts designated by the Attorney General" are involved in the review process to determine which cases should receive priority. n247 Once the Attorney General approves the application
and the Secretary of State certifies it, the application proceeds to the Immigration and Naturalization Services Commissioner (now the USCIS Director) n248 for final approval. n249 After notification is obtained from USCIS, the Assistant Attorney General may object to the decision within seven days, in which case the Deputy Attorney General makes a final decision. n250 Nevertheless, under no circumstances can law enforcement agencies and applicants appeal the decision. n251 During the time the informant works with the law enforcement agency, he or she must report to the agency on a
quarterly basis, and the agency must report to the Assistant Attorney General in the Criminal Division. Finally, the Assistant Attorney General and the USCIS Director must together make an annual report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate. Reports indicate that no S-6 visas were issued to terrorism informants between 1994 and 2006. n252 There is also no indication of how many S-6 visas, if any, were processed during this time. The lack of incentives for the FBI to apply for S-6 visas on behalf of informants may be
responsible for this. That is, while the prospect of legal permanent residency may be tempting bait for the FBI to dangle in front of potential informants, the bureaucratic process involved in obtaining an S-6 visa is discouraging. n253 Hence, while the FBI may tout S-6 visas to potential informants, the use of coercive and unapproved [*271] threats of deportation is more likely to result in cooperation - with less time, effort, and oversight. Since informants waive their recourses in S-6 visa agreements, the FBI suffers no legal backlash when it fails to fulfill promises made to them. n254 Essentially, the
potential benefits of using the S-6 visa are outweighed by the lengthy process involved, especially if the FBI can circumvent the process or break its promises. In the end, the FBI has no real reason to seek an S-6 visa for an informant. B. Proposed Modifications to the S-6 Visa Greater use of the S-6 visa would ensure judicial review of government practices by forcing the FBI to be more careful about following procedures in recruiting and dealing with informants. Changes to the S-6 visa program that provides material witness visas to informants with intelligence about terrorist activities could
formalize the use of immigration rewards for terrorism intelligence in ways that would benefit the FBI and potential informants, and could help reduce the unnecessary and harmful surveillance of Muslim and Middle Eastern communities. In order for the S-6 visa to become a useful tool for the FBI without compromising civil liberties, the S-6 visa must be more readily available, easier to grant, and carefully tailored. The low numbers of S-6 visas used by law enforcement agencies may indicate several potential problems with the program. It may seem paradoxical to suggest that the available number
of S-6 visas is too low when congressional reports reveal no S-6 visas were issued between 1994 and 2006. n255 However, these low numbers likely reveal more about the drawbacks of the S-6 visa program than they do about the value of immigration incentives as an intelligence tool. In particular, the inconveniences the S-6 visa application process imposes are barriers to efficient and productive use of the S-6 visa program. If FBI informants number in the thousands, as reports suggest, n256 and the FBI continues to make terrorism prevention a priority, then it seems Congress has failed to offer an
appropriate number of S-6 visas for counterterrorism investigations. Whether or not the current number of informants in use is necessary for effective terrorism prevention is outside the scope of this Comment. Nevertheless, the current allotment of fifty S-6 visas per year seems low when compared to the premium the FBI places on terrorism investigation and prevention and the estimated fifteen thousand informants in use. n257 Although not all of these informants work on terrorism-related investigations, it [*272] is reasonable to assume that since terrorism prevention tops the list of FBI
priorities, n258 there are more than fifty of them that do. If Congress truly intends the S-6 visa to become a viable instrument in fighting the war on terror, it must give the FBI the appropriate tools?and number of tools?to work with. In determining a useful and appropriate number of S-6 visas to allot, under this proposal Congress would also be forced to determine the number of terrorism informants in use and whether the FBI plans to reward these individuals with S-6 visas for themselves and their families. Furthermore, were a court to find that the FBI cannot bypass the S-6 visa process, and
modify the eligibility requirements, the number of S-6 visas would likely rise. In sum, increasing n259 the statutory allotment of S-6 visas could ensure that there are enough S-6 visas available to cover the increased number of terrorism informants employed by the FBI. S-6 visa eligibility requirements also lack the proper tailoring to allow the FBI to make use of them while still guarding against overbroad informant recruitment and use which leads to religious and ethnic profiling. Changing the eligibility standards could better protect informants and produce more reliable intelligence for the FBI. For
example, one potential change would do away with requiring informants to also be eligible for the State Department's Rewards for Justice Program established by the Act to Combat International Terrorism. n260 As previously mentioned, the Act gives the Secretary of State sole discretion to monetarily reward individuals who provide information leading to the arrest or conviction of anyone committing or conspiring to commit international terrorism against the United States. n261 Those who frustrate acts of terrorism or dismantle terrorist organizations are also covered by the Act. n262 In short,
Abolishing the requirement that an informant be
eligible for a monetary reward under the Rewards for Justice Program would make S-6 visas available to more
terrorism informants. While this would not [*273] necessarily curtail the FBI's ethnic and religious profiling, making the visa available to more informants may
the Rewards for Justice Program eligibility requirements are quite high. Many informants may have useful terrorism intelligence that may not necessarily lead to an arrest or conviction. Furthermore, both the Attorney General and the Secretary of State approve awards on a discretionary basis not subject to judicial review. n263
encourage the FBI to actually use it, thereby creating a more legitimate and transparent path to immigration rewards than that afforded by current government practices.
Similarly, the S-6 visa requirement that informants be in danger of retaliation for providing critical and reliable intelligence n264 will likely not be met when immigration
benefits are the impetuses for cooperation. Because informants recruited for counterterrorism investigations often have no connection to foreign terrorist organizations,
n265 and are tasked with preventing "lone wolf" terrorists, they would likely not face threats from legitimate terrorist organizations if deported to their country of origin.
Abolishing the "danger of retaliation" requirement would make the S-6 visa available to more informants and
give them more incentive to cooperate with the FBI. It would also give the FBI greater assurance that
informants' cooperation is not based on empty promises. In all, removing this requirement, along with the requirement that informants be
eligible for the Rewards for Justice Program, would remove some of the barriers to receiving an S-6 visa.
2nc – Solvency / Terrorism Net Benefit
CP yields more trustworthy intelligence and limits ethnic profiling
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
Conclusion Offering
S-6 visas to immigrant informants with established connections to terrorist organizations in
exchange for their cooperation would be a legitimate way for the FBI to reward these informants. Further,
informants would be able to rely on the FBI's promise and seek review should the [*276] agreement go awry. Gaining informants' trust and
lessening the coercive aspect of recruitment would lead to more trustworthy intelligence, and thereby
enhance national security. A larger but less committed group of informants - characterized by the current underused S-6 visa program does the country little good. Likewise, the indiscriminate and widespread surveillance of Muslims and Middle Easterners damages American
communities and reifies assumptions and stereotypes about terrorists' identities and backgrounds. These assumptions may also blind law enforcement
to real threats taking place in non-Muslim or non-Middle Eastern communities. Expanding
and modifying the use of S-6 visas
would turn a small, poorly designed program into a helpful law enforcement tool that better procures reliable
intelligence. Furthermore, providing more oversight for FBI informant use and restricting practices that
contribute to ethnic and religious profiling would improve Muslim and Middle Eastern communities'
confidence in and cooperation with the government. This, in turn, would encourage communities to
effectively work with law enforcement and report suspicious activities. Information offered from within a community is more likely
to be accurate, n272 leading to more counterterrorism prosecutions that enhance national security and less waste of law enforcement resources on
bogus threats. n273
2nc – Solves Profiling
Counterplan limits religious and ethnic profiling
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
To limit the religious and ethnic profiling created through the widespread use of informants, the S-6 visa
should also require that informants possess critical and reliable intelligence prior to agreeing to inform.
Critical and reliable information is based on preexisting ties to terrorists or terrorist organizations rather than
on ethnicity or religion. In the cases at issue in this Comment, the FBI typically recruits informants without a specific surveillance target in
mind. In some cases, "FBI handlers have tasked [informants] with infiltrating mosques without a specific target or "predicate' - the term of art for the
reason why someone is investigated. They were, [informants] say, directed to surveil law-abiding Americans with no indication of criminal intent."
n266 Informants receiving such directions from the FBI would not meet the "critical and reliable information" requirement. Hence, requiring
informants to have potentially useful information that is not based purely on ethnicity or religion, but rather
on preexisting ties to terrorists or terrorist organizations, would lessen the indiscriminate surveillance
practices of the FBI without implementing the higher standards imposed by the Rewards for Justice Program. Finally, individuals who agree
to provide information in exchange for an S-6 visa should not be forced to waive their right to a deportation hearing. Currently, informants must
knowingly waive their rights to any deportation hearings and appeals should deportation proceedings occur. They must also waive their rights to
contest their detention pending deportation until lawful [*274] permanent resident status is obtained. n267 Strikingly, informants relinquish all access
to judicial review if their applications are mishandled or forgotten and they subsequently face deportation. In the past, informants have alleged that the
FBI has mismanaged and reneged on promises, including immigration promises. n268 Allowing judicial review of the S-6 visa process would help lift
the veil of secrecy under which the FBI operates. Furthermore, through redaction or other methods that preserve informants' identities, judicial review
could be carried out without threatening national security. n269 Another
benefit of this requirement would be increased
transparency in the way the FBI recruits informants. Wider use of the S-6 visa, as well as greater judicial review, would
allow the government to ascertain the number of individuals enlisted by the FBI as counterterrorism
informants. This may further help curb informant mishandling, a problem that plagues the agency. Because informants
would still be required to provide critical and reliable intelligence, the FBI would be required to articulate clear predicates for recruiting individuals,
such as a close relationship between an individual and a known member of a foreign terrorist organization. This, in turn, would provide due process
and could vindicate informants' rights. The
proposed changes to the S-6 visa program would not only force the FBI to
adjust its recruitment and use of counterterrorism informants, but would also help the FBI obtain more
reliable and valuable intelligence while rebuilding relationships with Muslim and Middle Eastern
communities. Despite the FBI's limited resources and financial limitations, the FBI and Congress should focus on finding the most accurate and
efficient methods of acquiring intelligence. n270 Although the FBI's budget has not suffered greatly in the financial crisis, n271 the agency does have a
finite amount of resources to work with. Sending unwilling informants into mosques in search of vulnerable and receptive attendees with no ties to
terrorist organizations and with no independent plans to commit terrorist acts is not efficient. Requiring the FBI to only use a modified version of the
S-6 visa would channel the FBI's pursuit of existing leads. In turn, the FBI's presence in mosques would decrease, which would assuage community
fears. Lastly, requiring the FBI to seek informants [*275] who possess reliable terrorist intelligence has the potential to reduce the possibility of
informant entrapment, which would help repair the FBI's relationship with Muslim and Middle Eastern communities.
2nc – Regulates FBI
Revisions to S-6 visas increase transparency and regulate FBI practices
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
IV. A Possible Solution: The S-6 Visa As it currently exists, the S-6 visa may be a way of controlling the FBI-informant relationship in cases involving
promised immigration benefits. The S-6 visa rewards terrorism informants with permanent residency status. However, as discussed infra, in order for
the S-6 visa to effectively restrain the FBI and produce useful intelligence, the S-6 visa needs to be modified. The examples discussed supra in Part II
illustrate how the
overbroad and indiscriminate use of informants, particularly those recruited with immigration threats or
rewards, harms the acquisition of useful information, fails to identify and protect against legitimate threats, chills
speech, and encourages ethnic and religious profiling. Immigration law offers less protection to informants than promises of
leniency in criminal matters, thus increasing the potential for informants to produce faulty intelligence. Part III, supra, demonstrates that
limitations on FBI dealings with informants are practically nonexistent. This Part proposes a revision to the S-6 visa
that would help diminish the harmful effects discussed in Part II by increasing transparency and providing [*268]
more procedure for FBI informant recruitment via immigration law. Specifically, providing immigrant informants with better
bargaining power and ways to vindicate their agreements through the S-6 visa would alleviate some of the aforementioned harms. Although there have
been few reports of the FBI abandoning immigration promises in counterterrorism investigations, n223 the FBI has repeatedly broken alleged
immigration and monetary n224 promises made to informants in exchange for participation in drug investigations, n225 human trafficking
investigations, n226 and pre-9/11 terrorism prosecutions. n227 Providing
a more straightforward and transparent way for the
FBI to offer immigration benefits to informants would help decrease informants' potential vulnerability and
limit the FBI's power. With modifications, the S-6 visa could help resolve these problems.
2nc – Reforms Informants
Current informants recruited with immigration measures degrade the quality and
credibility of counterterrorism efforts
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
While there are no detailed studies on the differences between terrorism informants and traditional informants because the FBI keeps most of this
information confidential, n47 broad observations can still be made. First, the
FBI's preventative stance on terrorism has
significantly increased reliance on informants' intelligence. n48 After 9/11, the FBI drastically expanded the use of [*244]
informants n49 from around 1,500 in 1975 n50 to an estimated 15,000 today. n51 Informants have become the number one tool
for preventing terrorist acts. n52 Second, law enforcement dealings with terrorism informants receive greater deference from courts and
other limiting actors because terrorism is considered a national security matter instead of simply a domestic law enforcement matter. n53 The executive
branch has greater control over national security and foreign intelligence matters than over domestic law enforcement, an area traditionally reserved to
the states. n54 Thus, the post-9/11 characterization of terrorism as a national security matter results in courts affording more leeway to terrorism
investigations than domestic criminal investigations. n55 In other words, the
federal government is afforded more secrecy in
matters of national security. n56 Hence, because the government can invoke national security concerns to keep
information about the informant and handler privileged, there is less regulation governing the recruitment
and handling of terrorism informants than traditional criminal informants. n57 [*245] Third, while false and inaccurate
intelligence has generally been a problem with informants, n58 recent terrorism investigations raise the question of whether
the alleged terrorist crimes would have occurred without law enforcement instigating the terrorist
activities. n59 Informants in these cases aggressively instigated the defendants' participation in the plot. n60 Recruiting informants who lack ties to
terrorist organizations may be at the root of this problem, because they lack predetermined targets known to be involved in terrorist groups. n61
Without these targets, informants
under pressure to avoid deportation or other immigration consequences, for
example, are more likely to produce false information. n62 Further complicating this issue, the government has
suffered from credibility problems in terrorism investigations for not always fulfilling the promises made to informants. n63 One FBI
informant, a Yemeni citizen named Mohamed Alanssi, set himself on fire in front of the White House after alleging that the FBI had broken numerous
promises to him. n64 Governmental
credibility is critical to maintaining a relationship of trust between law
enforcement and informants, and thereby facilitates the gathering of credible intelligence. Due to the vast number
of terrorism informants today, the secrecy underlying the investigations, n65 and the potential for false intelligence, the recruitment and use of
informants in terrorism investigations present unique problems to the FBI. Because
of increased confidentiality surrounding
national security issues, the government has the means and incentives to shield the true extent of its
recruitment and use of terrorism informants from courts and the public. n66 To increase accountability and lessen the risk
of abuse, more oversight over the FBI's dealings with terrorism informants is needed. Notably, some limits on the FBI's use of informants do exist.
However, given the secrecy [*246] surrounding national security concerns, whether these limits apply in terrorism investigations remains unclear.
The presence of informants creates an unwarranted distrust and chilling effect undermines counterterrorism cooperation
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
II. Problems with Recruiting Informants Based on Immigrant Status The FBI's use of immigration rewards and threats to recruit informants
undermines civil liberties and cooperation with Muslim, Middle Eastern, and other immigrant communities. n67 In general, the
presence of
informants in mosques and the surrounding community creates suspicion and distrust of law enforcement
efforts, chilling free speech. That is, when community members know that informants are potentially monitoring their speech,
community members are less likely to cooperate with law enforcement efforts. Furthermore, by sending
informants into Muslim and Middle Eastern communities without specific targets to surveil, the FBI
encourages ethnic and religious profiling and helps conflate Islam and terrorism in the public eye. Because
informants recruited via immigration law possess less bargaining power and face potentially more serious consequences than those recruited via
criminal law incentives, there is greater incentive for these informants to supply false information and accuse innocent individuals. Ethnic
and
religious profiling, combined with the indiscriminate surveillance carried out by informants, can entrap
individuals who do not pose a threat. Entrapment wastes government resources and undermines public
confidence in the justice system and law enforcement. Although the FBI's problematic surveillance of Muslim and Middle Eastern communities
stems from the use of all types of informants and not merely those recruited with immigration promises, a modification to the use of immigration law
in rewarding or coercing terrorism informants would provide a step toward producing more useful intelligence and reducing the risk of harm to
innocent individuals. A. Mosque Surveillance Chills Free Speech In 2002, Attorney General John Ashcroft updated the Attorney General's FBI
Guidelines, n68 and did away with restrictions on entering mosques and other places of worship. n69 The Guidelines read in pertinent part: "For the
purpose of [*247] detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on
the same terms and conditions as members of the public generally." n70 Thus, FBI
agents can now enter any mosque or attend any
religious gathering without probable cause. Under the previous Guidelines, issued in 1979 by Attorney General Benjamin Civiletti,
an agent could only conduct an investigation where "the facts or circumstances reasonably indicate that two or more persons are engaged in an
enterprise for the purpose of furthering the political or social goals ... through activities that involve force or violence and a violation of the criminal
laws of the United States." n71
The presence of current immigrant informants chills freedom of speech
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
The very knowledge of potential surveillance may caution people against discussing their political and
religious viewpoints for fear of being targeted by informants like Monteilh. Consequently, mosque attendance falls n85
and community cohesion suffers, thwarting the First Amendment's protection of free expression. Even
those not harboring extreme viewpoints may be [*249] dissuaded from political speech for fear of
misinterpretation. For example, after revelations of potential FBI surveillance surfaced at the Islamic Center of Irvine, congregant Omar Turbi
attested, "It gives you a little bit of apprehension about who you trust ... . Makes you think twice about what you say; what if people misunderstand
you?" n86 Similarly, the executive director of the Council on American-Islamic Relations in Anaheim stated, "Some average Muslims interested only in
praying are avoiding mosques for fear of somehow being monitored or profiled ... . Everybody is afraid, and it is leading to an infringement of the free
practice of our religion." n87 Although some states like Indiana, Pennsylvania, and Oregon have enacted laws prohibiting the surveillance of religious
sites without reasonable suspicion, n88 it should not be necessary to rely on state laws to protect the integrity and values of the First Amendment.
AT: CP Not Sufficient
Counterplan creates a more transparent system, increases quality of intelligence, and
regulates the FBI’s surveilling power
Stabile 14 – J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily, California
Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and the S-6
Visa,” 102 Calif. L. Rev. 235, Lexis, //11)
Changing the S-6 visa program and focusing on the FBI's use of immigration incentives to recruit informants may seem too narrow to appreciably
influence national security and community relations. However, the point of this Comment is a narrow one: to showcase one problematic aspect in the
way the FBI handles human intelligence. The recommendations here would not fully solve the problems of privacy violations, ethnic and religious
profiling, and informant misuse. The use of immigration law and status to leverage informants is not the only way that the FBI recruits informants, and
the S-6 visa program would likely remain relatively small even if expanded. However, as previously explained, the
proposed changes to the
S-6 visa would generate a more transparent system and more fruitful intelligence, and would help ensure
the FBI operates within the scope of its power. Individuals pressured to provide intelligence information would have a
legitimate chance to receive an S-6 visa, and the FBI would have a greater incentive to stop its overtly coercive
recruitment tactics such as deportation threats. Due to the popularity and longstanding use of informants, it is unrealistic to think that
the FBI will stop using immigration law as a way to leverage cooperation. In the past, informants have aided national security by providing useful
intelligence, and so they are highly valued as a source of intelligence. Hence, no
matter how narrow in scope the proposed
changes are, changes to the S-6 visa would greatly benefit the FBI, informants, and Muslim and Middle
Eastern communities. Better intelligence may mean the difference between wasting government resources on
empty threats and preventing the loss of life in future terrorist attacks. While narrow, the proposed changes to the
S-6 visa provide a promising way for expending law enforcement resources where needed, preventing
manipulative informant recruitment tactics, and adding transparency to informant dealings with the FBI.
Congress has the power to increase the allotment of S-6 visas and to explicitly restrict the FBI from promising immigration benefits outside of this
program. The FBI should be forced to use the S-6 visa program when using immigration status as an incentive. The
proposed changes
would allow the FBI to use the S-6 visa as an incentive, while inhibiting its use of unnecessarily forceful
tactics that lead to faulty intelligence, entrapment, and religious and ethnic profiling.
Negotiated Agreements CP
1nc Negotiated Agreement CP (Long Version)
CP Text: Local Law Enforcement within the United States should engage in
informal negotiations with Muslim communities with regards to the use of
informants
The CP solves the case and avoids politics / courts disads
Harris, 10 --- Professor of Law, University of Pittsburgh School of Law (David, New York University
Review of Law & Social Change, “LAW ENFORCEMENT AND INTELLIGENCE GATHERING IN
MUSLIM AND IMMIGRANT COMMUNITIES AFTER 9/11,” 34 N.Y.U. Rev. L. & Soc. Change 123,
Lexis)//Jmoney
B. An Attainable Alternative: The Negotiated Approach
If change with respect to the use of informants seems unlikely to happen via either judicial or legislative
action, there is still another way in which change in how law enforcement uses informants in mosques might
yet occur. This solution depends not on raw political power or legal reasoning but on something else: the
recognition of how the interests of law enforcement and the community overlap. n234 Viewed correctly,
these [*176] mutual interests can serve as the springboard for the negotiation of a set of agreed-upon local
practices for using informants. Such negotiation could get law enforcement what it most needs: good (or at
least workable) relations with Muslim communities, a continued flow of information from these same
communities, and an ability to use informants when a real need exists for them. This process could also get
Muslim communities at least some of what they need: a formal recognition of their opposition to the use of
informants, as well as protection from some of the most egregious (as they may see it) uses of informants
against them. Law enforcement would give up the right to use informants with total freedom, and the
community would find itself protected, to a degree, from the possibility that police would place informants
into mosques or other religious settings without a solid, fact-based reason. n235 The path would be difficult,
fraught with obstacles, and, in certain respects, downright unsatisfactory. But it represents the most
promising - and perhaps the only - way forward for both law enforcement and Muslim communities.
1. What the Negotiated Approach Is and What It Might Strive to Attain
a) Description of the Process
What might such a negotiated approach look like? To start, such arrangements would be both local and
informal. Any given mosque or Muslim organization would work toward agreement on the use of
informants with its local FBI field office, local agents of the Department of Homeland Security, and the local
police department (if the local [*177] department involves itself in this type of informant-based
investigation). n236 A negotiation between locals on both sides of the issue stands the best chance of
succeeding, because those involved in the negotiations may know each other from efforts already made to
build bridges and connections. The negotiations themselves can serve as trust-building measures, enhancing
and strengthening relationships that already exist, or helping to create new relationships. These efforts would
be informal in the sense that they would strive not for the imposition of a strict set of legal standards - for
example, a free-standing system for procuring "informant warrants" - but rather for a set of agreed-upon
practices that the parties would then follow. If one of the parties came to feel that the agreed-upon
practices no longer work, the parties could, together, agree to adjust them. Best and most importantly,
these practices could be tailored to fit local facts and circumstances - the specific realities that both the
community and law enforcement agencies face daily.
Why would any law enforcement agency agree to negotiate away any of its power to use informants as part of
an arrangement with precisely the people whom it may want to spy on? The fact that some police agencies
already use internal guidelines to - or at least attempt to - limit some of the ways in which they use
informants, highlights the idea that limiting agency power to something less than what the Fourth
Amendment would allow can in fact represent the best available practice. n237 Given that the FBI, NYPD,
and other law enforcement groups want something from the Muslim communities - continued and increased
cooperation, especially intelligence on suspicious activities - and given that use of informants in an
unregulated fashion puts those very benefits in jeopardy by undermining connections with the
community, law enforcement may prove more willing than one might initially assume to engage in such a
negotiation.
b) What Might Negotiations Strive to Attain?
What exactly might the Muslim community and the police try to agree upon? Both the interests of the parties
and the contours of different types of anti-terror investigations suggest some initial goals.
[*178]
i) Passive Versus Active Informants and the Standards for Using Them
First, we must examine the methods by which, and the circumstances within which, law enforcement might
use informants. For the sake of simplicity, let us break the methods of using informants - that is, the types of
informants - into two categories: passive informants and active informants. In passive informant activity, the
informant attends or participates in any activity - goes to a political rally, takes part in a worship service,
listens to a speech or a sermon, or the like - to the same extent that any private citizen might. The passive
informant observes and reports to the police what she sees and hears. In other words, the passive informant
acts as a walking camera and audio recorder, n238 absorbing everything around her and reporting what she
sees. The passive informant cannot target any particular individual, and she cannot do anything more than
observe. She might interact with other individuals who are present at the scene of the observation, but only in
ways that prove necessary to deflect suspicion.
An active informant, on the other hand, would target a particular person or specific group for observation
and interaction. She would seek to actively connect with these individuals in an effort to gather evidence of
wrongdoing, plotting, or other behavior. An active informant might "work" a targeted individual closely,
perhaps befriending the target and her family, as long as the informant did not in any way press the target
toward illegal conduct. n239
[*179] The critical distinction between passive and active informants could serve as the basis for negotiating
the circumstances under which law enforcement could use informants. The parties could pledge to have
informants work only in a strictly passive way, unless and until some proof of activity indicating possible
terrorist or criminal behavior emerged during passive observation - exactly as the FBI's rules used to dictate
under the Levi Guidelines. n240 The idea would be an informant who would blend in completely and act no
differently from any other person present.
Given that we cannot exclude the possibility that religious groups might (knowingly or unknowingly) harbor
small groups or individuals bent on terrorism, law enforcement should retain the ability to use informants in
these settings, but only passively, as a way to check leads or find out if any activity exists which deserves some
greater degree of attention. A negotiated agreement would allow law enforcement to have the presence it
sometimes needs, and to have it without any proof of wrongdoing; in other words, they could use passive
informants at their discretion, as they may now under existing law. At the same time, law enforcement would
agree to exercise this power only passively, so as to minimize intrusion and interference. This arrangement
seems like a good idea from both the point of view of law enforcementsuccess, because it allows police and
security agencies to look and listen for any indicators of real trouble, and from the point of view of the
communities, because they would have assurance that the worship and fellowship that form the core of
activities at religious institutions would not encounter government interference or disruption, unless
absolutely necessary. n241
[*180] Something more would be required for law enforcement to make use of active informants under a
negotiated agreement. In particular, the use of active informants would require some evidence. Law
enforcement could use active informants only if some reasonable, fact-based suspicion existed to link a
particular suspect or suspects to engagement in terrorist activity or other criminal conduct. That is, the police
would agree not to use an active informant just to make sure nothing is happening. Rather, the use of active
informants would require some minimal evidence - something more than a hunch, feeling, or intuition indicating that illegal activity has been, is, or will be taking place. Police officers involved in any investigation
should have little difficulty understanding this reasonable, fact-based suspicion rule because it comes from
Terry v. Ohio, under which courts have used the same standard to test police officers' decisions to stop and
frisk suspects for almost forty years. n242 A system regulating informant use according to whether the facts
would support a passive or active informant operation would allow the government to use relatively
unintrusive passive informants without seeking permission; more intrusive (i.e., active) informant activity
would require fact-based suspicion that terrorist or other criminal activity might be afoot. This bifurcation
would give the government the flexibility it needs to gather information or investigate leads, but it would also
require some evidence to conduct active informant investigations and limit these investigations to situations
potentially posing danger.
[*181]
ii) The "Entrapment" Problem: No Encouragement
Second, communities and police departments could use negotiated agreements to address the issue of
entrapment. As earlier discussion makes clear, neither the entrapment defense nor its cousin, the claim of
outrageous government conduct, does much to safeguard targets of police informants against government or
informant overreaching. n243 At worst, entrapment actually permits the government to create crimes as long
as the defendant has the appropriate "predispostion." n244
The lack of protection these defenses provide targeted individuals in practice begins to rankle when viewed
with an eye more lay than legal. For example, in Hamid Hayat's case in Lodi, California, the jury convicted
Hayat of providing material support or resources to terrorists, even though an informant deliberately and
purposely pushed and goaded Hayat to attend a terrorist training camp. n245 Even the U.S. Attorney whose
office charged and convicted Hayat stated that he wished that "other things had occurred" during the course
of conversations between the informant and Hayat. n246
Cases like these may not constitute entrapment in the legal sense, but they leave the impression that law
enforcement may not play fair in pursuit of a conviction. Put another way, just because the police can use
informants in this aggressive way without running afoul of entrapment law, does not mean that law
enforcement should do just that. All Americans want law enforcement to apprehend dangerous terrorists and
halt their plans. However, the government's use of overly aggressive and possibly unfair tactics to pursue
individuals who seem to pose no real threat to our national security undermines the public's confidence in
anti-terror work. Whether right or wrong, these perceptions that the government has not played fair do
damage to law enforcement's ability to obtain cooperation from the public.
Thus, as an element of their negotiations, police and Muslim communities could agree that informants
would not act in any way to encourage or shape the behavior of those under surveillance, either
through incitement or agitation. In some instances, it might be difficult to [*182] tell the difference
between encouragement and providing an opportunity for criminal conduct, but an agreed-upon rule against
pushing or goading targets would, in most cases, not prove difficult to apply. For example, a rule of this
nature would not allow the type of behavior reflected in the testimony in the Hayat case, in which the
informant threatened the target and belittled him for failing to go to a terrorist camp. n247
iii) Use of Informants as a Last (or at Least Latter) Option
When it becomes known or suspected, the placement of informants in religious institutions like mosques
does considerable damage. The presence of informants, either real or imagined, can undermine religious
custom and practices, undercut the ability of believers to trust each other, and pull apart the social fabric that
binds co-religionists together. n248 Given the explicit First Amendment protections provided for the free
exercise of religion in the United States n249 and the chilling effect that even the possibility of informant use
may have, the use of informants in mosques and other religious settings ought not to occur regularly.
As part of an agreement, communities and local police or the FBI might agree that, because the insertion of
informants into religious institutions carries with it significant First Amendment implications and the
potential for damage both to individuals and to the whole religious community spied on, the use of
informants in religious settings will not be a routine practice. The agreements can establish that law
enforcement can use informants in these settings only when other, less intrusive methods either have not
worked or could not work, and where use of an informant will most likely produce evidence. Both law
enforcement and Muslim communities gain if the use of informants becomes a tactic of last resort (or nearly
so) and not a method employed regularly. For many Muslim communities, the use of informants only when
other methods will not work will reassure them that they need not fear the presence of informants at every
point and that the government will exercise some restraint in using this tactic. It should also maximize the
chances that informants will catch those who pose a real danger and minimize the chances that
informants [*183] will snare only those most susceptible to persuasion.
1nc Negotiated Agreement CP (Short Version)
CP Text: Local Law Enforcement within the United States should engage in
informal negotiations with Muslim communities with regards to the use of
informants
The CP solves the aff and avoids link to politics
Harris, 10 --- Professor of Law, University of Pittsburgh School of Law (David, New York University
Review of Law & Social Change, “LAW ENFORCEMENT AND INTELLIGENCE GATHERING IN
MUSLIM AND IMMIGRANT COMMUNITIES AFTER 9/11,” 34 N.Y.U. Rev. L. & Soc. Change 123,
Lexis)//Jmoney
The possibility of terrorists on American soil, particularly the prospect of homegrown terrorists, means that
we should expect law enforcement to use every legal tool at its disposal to gather intelligence necessary to
thwart attacks. Given the law as it now stands, these tools include the almost complete discretion for police to
plant and use informants. Thus, we [*190] should expect to see informants do almost anything to succeed in
producing cases against targets.
Every person living in this country, whether she is an American citizen or not, has a strong interest in
securing the nation against terrorist attacks. However, just because the law says that police can use
informants at almost any time, in any setting, does not mean that they should do so. And the
particular contours of the struggle in which we now find ourselves illuminates this can/should distinction as
few others have. As the law enforcement officials and intelligence officers in charge of our safety and security
know better than almost anyone, our ability to track potential terrorists and stop them before they act
depends wholly on the availability of intelligence. Because the best, if not the only, source of crucial
intelligence on potential extremists with Islamic backgrounds will continue to be American Muslim
communities, we must have solid, well-grounded relationships with these communities, both native
and foreign-born.
These relationships are not just a matter of public relations, political correctness, or appeasement. Rather,
these communities must feel that they can regard law enforcement as trusted partners, because such
relationships create the avenues and opportunities for the passing of critical information from the
communities on the ground to law enforcement. The widespread use of informants in Muslim institutions,
particularly mosques, will corrode these important relationships by sowing distrust. By causing Muslims to
think that the FBI or any other police agency regards them not as trusted partners but as potential suspects,
fear displaces trust. Moreover, fear will cause members of the Muslim community to become less likely to
come forward with information - just as the members of any community would, given this type of scrutiny.
On the one hand, we simply cannot afford for this to happen, but, on the other hand, we know that there will
be cases - indeed, from the government's point of view, there already have been cases - in which the use of
informants can play a crucial role.
Given these tensions, as well as the mutual interests of law enforcement and Muslim communities in the
United States, the situation presents an ideal context in which to try regulating the government's use of
informants through local, negotiated agreements on acceptable practices. In at least the four ways
identified here, law enforcement and Muslim communities could agree to limit the use of informants, without
either ruling out their use or allowing their unrestricted use. Both sides would benefit. While the approach
proposed here would certainly face substantial obstacles, it represents a chance to recalibrate an important
aspect of the government's power to investigate, while at the same time preserving the sanctity of the
community's institutions of worship to the greatest extent possible.
2nc Solvency
Mutual Education solves-Muslims can educate local police on culture while the
police can education Muslim communities about suspicious activities and how to
identify plots effectively
Harris, 10 --- Professor of Law, University of Pittsburgh School of Law (David, New York University
Review of Law & Social Change, “LAW ENFORCEMENT AND INTELLIGENCE GATHERING IN
MUSLIM AND IMMIGRANT COMMUNITIES AFTER 9/11,” 34 N.Y.U. Rev. L. & Soc. Change 123,
Lexis)
iv) Education Across the Divide
Fourth, the parties might agree on a process of mutual education. For its part, law enforcement might educate
Muslim groups and congregations so that they could recognize actual suspicious behavior, as opposed to
simply relying on hunches about people who have unusual opinions. It has become common for police
departments and the FBI to appeal to Muslim communities to report anything suspicious, much as FBI
Director Mueller did in the speech quoted at the beginning of this article. n250 While there is no reason to
doubt the sincerity of Mueller's exhortation, it was also quite general. It is all very well to ask community
members to report their suspicions, and even such a general request may produce leads for law enforcement.
It is true that not all leads may actually help law enforcement; this is true even when all the leads in an
investigation originate from law enforcement professionals. It seems likely that an untrained member of the
public, if asked to provide information to the police about something as unusual as possible terrorist activity,
would, in good faith, inevitably produce mostly (if not wholly) useless leads, which officers and agents must
then spend their valuable time pursuing. Without some concrete indication of what "suspicious action"
means, most lay people would stand little chance of spotting the real thing.
Training communities regarding the types of information that law enforcement agencies want is one way to
improve the amount of useful information law enforcement receives. Moreover, the FBI, the Department of
Homeland Security, and even local police are in a good position to provide such training. For their part,
Muslim communities could educate law enforcement about social and religious customs, particularly habits of
language. Considerable amounts of such cultural and religious training regarding the customs and mores of
Islam, by Muslims for police and FBI agents, already takes place. n251 Many police chiefs and law
enforcement administrators at all levels have expressed enthusiastic support for these efforts and stated that
this type of training has greatly enhanced their agencies' capabilities, as well as relationships with the Muslim
communities. n252
Language is a special area of concern that these trainings should [*184] specifically address. Arabic speakers
may sometimes express opinions in Arabic in stronger, more vehement ways than one might hear in English;
these kinds of comments can hit Western ears as angry, radical, or extremist - even when speakers intend
nothing of the sort. n253 While it is true that law enforcement must react vigorously to any words expressing
an intention to take some illegal or dangerous action, they must also exercise caution, because linguistic,
stylistic, and idiomatic differences can give a listener a misleading impression.
A couple of recent examples help illustrate just how important linguistic understanding - or misunderstanding
- can be. In Hamid Hayat's trial for, among other things, providing material support for a transnational
terrorist act, prosecutors needed to prove that Hayat intended to commit terrorism. n254 To do so, they
offered into evidence what became known as "the throat note," n255 a fragment of paper with Arabic writing
on it that police had found in Hayat's wallet when they arrested him. n256 The prosecution first translated the
words as "Lord, let us be at their throats, and we ask you to give us refuge from their evil." n257 After the
defense protested, the prosecution amended the translation to "Oh Allah, we place you at their throats, and
we seek refuge in you from their evil." n258 According to authoritative sources, the defense had been right to
object because the passage contained a traditional prayer "reported to have been said by the Prophet
[Mohammad] when he feared harm from a group of people." n259 Still, the prosecution told the jury that the
note proved that Hayat had the "requisite jihadist intent." n260 In the end, Hayat's intent became the central
question in jury deliberations, and the note played a crucial role in persuading the jury to convict him. n261
[*185] In the case of accused terrorist Jose Padilla, similar questions about language arose. The government's
case against Padilla and two co-defendants relied heavily on hours of wiretapped phone calls, and a
government witness testified that Padilla's co-defendants had used "code words" to speak about
jihad. n262 An expert witness, an Arabic translator, disagreed; he said that the men were simply speaking
indirectly - something common in the Arab world - and not in code. n263
Police need education so that they can tell the difference between an opinion - even a strongly expressed,
non-mainstream, anti-American one - and clues to acts of terrorism. Having such opinions does not
necessarily make people dangerous, and American citizens (if not all people living in America) have a right to
hold and express such views. A person who says she approves of the actions of Osama Bin Laden, or who
expresses her wish that the President of the United States were dead, or who says that America deserved what
it got on 9/11, may strike us as intemperate, wrongheaded, or repugnant. But those statements make the
person only a holder of repellent and terribly misinformed opinions, not a terrorist. Expressing opinions,
even objectionable ones, remains an American right; doing so in a fashion that seems harsh or even
aggressive has to do with style and custom of speech, and it does not necessarily make it likely that these
opinions will ripen into action.
The CP allows law enforcement and Muslim communities to tailor policies to the
local needs
Harris, 10 --- Professor of Law, University of Pittsburgh School of Law (David, New York University
Review of Law & Social Change, “LAW ENFORCEMENT AND INTELLIGENCE GATHERING IN
MUSLIM AND IMMIGRANT COMMUNITIES AFTER 9/11,” 34 N.Y.U. Rev. L. & Soc. Change 123,
Lexis)//Jmoney
These four suggestions - distinguishing between active and passive informant activity and regulating
accordingly, prohibiting encouragement, using informants only as a last resort, and instituting mutual
education - just scratch the surface of what police agencies and the members of American Muslim
communities could agree to. Given the local focus of the negotiations, many concerns particular to the
jurisdiction might also surface. These focused elements would constitute a major advantage for this process,
because the better tailored the process is to its own context, the better its chances for success. The
local negotiation of a set of practices acceptable to both sides in the debate presents a workable alternative,
and one that takes advantage of mutually reinforcing needs of law enforcement and the Muslim communities
in our country, as well as the common need to protect ourselves from terrorism.
The negotiation process works-empirics
Harris, 10 --- Professor of Law, University of Pittsburgh School of Law (David, New York University
Review of Law & Social Change, “LAW ENFORCEMENT AND INTELLIGENCE GATHERING IN
MUSLIM AND IMMIGRANT COMMUNITIES AFTER 9/11,” 34 N.Y.U. Rev. L. & Soc. Change 123,
Lexis)//Jmoney
Given these obstacles, the outlook for local control of policy on informant use is decidedly mixed, but it is
not hopeless. In the recent past, locally-generated ideas have proven very helpful to the FBI in some sensitive
anti-terrorism efforts. For example, after the Department of Justice ordered the FBI to conduct 5000
"voluntary" interviews with young Arab and Muslim men not suspected of terrorism in late 2001, n271 many
in law enforcement expressed doubts about this plan. n272 More important, many thought that the FBI
would endanger the budding relationships it had built with the Arab and Muslim communities after
9/11. n273 When FBI agents and others in Detroit came up with an alternative plan - sending letters
to potential interviewees - the Department of Justice showed flexibility and allowed them to try
this.n274 The alternative plan was unmistakably successful; the Detroit field office had the highest rate
of successfully completed interviews of any office in the nation. n275 Thus, it is certainly possible that the
FBI and its governmental parent could negotiate localized solutions to intelligence gathering.
International Language CP
1nc Reframe Terrorism Language CP
Text: the United States Federal Government should reframe terrorism as a violation
of international law.
The counterplan distances terrorism from religion and garners broader support for
counterterrorism efforts
Corman, Trethewey, and Goodall 08 – *Corman: Professor and director of the Consortium for Strategic
Communication in the Hugh Downs School of Human Communication at Arizona State University,
consultant to the Department of Defense and Department of State on issues of strategic communication;
*Trethewey: Associate Professor and Associate Director in the Hugh Downs School of Human
Communication at Arizona State University, co-author of Organizational Communication: Balancing Creativity and
Constraing, 5th ed.; *Goodall: Professor and Director of the Hugh Downs School of Communication at Arizona
State University, serves as a U.S. Department of State International Speaker on countering ideological support
for countering terrorism and improving public diplomacy (Steven R. Trethewey, Angela Trethewey, and H.L.
Goodall Jr., “Weapons of Mass Persuasion: Strategic Communication to Combat Violent Extremism”, Peter
Lang Publishers, Frontiers in Political Communication Vol. 15, p.135-138, //11)
Policy Recommendations We propose that the
United States Federal Government should adopt a new vocabulary in
reference to what is now called the Global War on Terrorism. In discussing the debate over the language of war, Walid Phares
calls for a clear alternative to present language, and alternative that presents the conflict as both ideological and global. We answer that call by
providing a
framework that confers international legitimacy to counterterrorism efforts as well as belittling
the motivations for violent acts by groups such as al-Qaeda. Phares warns that to re-label the war would to embolden terrorist
groups by not recognizing that they are “one ideology, a focused identity, [with] a global strategy,” but we do not agree that any re-labeling would have
this effect. On the contrary re-labeling
it as a different kind of threat – as an organized criminal enterprise rather than
a military struggle – can help resist terrorists’ religious legitimation efforts, better mobilize domestic
Muslim support, and could revitalize non-Muslim domestic attitudes at a time when support for the war frame is waning.
The focus on criminal activity is a natural one given the strong connection between criminal activity and terrorism. Focusing on terrorism as a violation
of international law accomplishes several purposes. Framing
Terrorism as a Violation of International Law Makes it
Possible to Communicate Success Americans understand that crime cannot be eliminated but that it can be
contained. This means that when the coalition undertakes a successful operation it will be judged as to whether or not it decreased criminal
activity, not whether or not it was a “total victory.” Having attainable goals means that Americans are more likely to sustain support for the effort.
Framing Terrorism as a Violation of International Law Increases Awareness of the Problem as a Global One This language reframes the discussion of
terrorism against the backdrop of international standards. Hence, when the United States takes action against terrorism, we take action on behalf of the
laws of the international community. This framing increases the opportunities for cooperation with other international actors who seek a more just
world based on rule of law. Framing
Terrorism as a Violation of International Means that Terrorists are Reduced to
the Level of Criminals Positioning the conflict as a “war” confers a certain amount of legitimacy on terrorists, as a force defending a large
collective interest. Reducing terrorists to criminals who seek money and power detracts from the allure of
terrorism to possible recruits. Framing Terrorism as a Violation of International Law Removes Any
Connection of the Language to Religion Referring to terrorists as criminals rather than “jihadis”
completely separates them from the Muslim faith. Distancing the conflicts from religion means that we are
more likely to win moderate Muslim cooperation because we will implicitly acknowledge the disconnection
between terrorist activity and Islam. Conversely, the current policy runs the constant risk of conflating “terrorist”
with “Muslim.” We cannot sustain this policy if we expect to win friends within the Muslim community. The new language of terrorism will
require development, refinement, and contributions from a variety of sources. However, within the same framework we utilized in the analysis of
presidential speeches, we have devised the basis for a vocabulary of terrorism that distinguishes the current situation from traditional warfare (Table 2).
From our newly established vocabulary, we have rewritten one of Bush’s speeches from his campaign during the anniversary of 9/11 (see appendix).
In our modification, we have left much of the President’s words intact, but have changed the instances where the traditional war frame appears. We are
confident that readers who give this a fair reading will find that the language equally as tough, determined, and unfavorable to the terrorists.
Conclusion With increasing doubts toward the Bush administration’s policies in the War on Terror, new frameworks and vocabularies are necessary to
revitalize public support. The War on Terror provides a new type of battle on an ambiguous front where victory will not be realized through peace
treaties and flags atop hills. We have offered a new vocabulary, that of international crime, to reframe the War on Terror. This
strategic new
vocabulary paints terrorism as a persistent international problem and undermines the religious justification
commonly asserted by Al Qaeda and other extremists. Removing the religious connotation of the War on
Terror will help mobilize moderate Muslims in support of efforts that reduce international crime.
Finally, reframing the War on Terror as an international crime problem allows international bodies to enforce existing law systems which already
govern criminal acts.
2nc Solvency
The CP’s change in language solves – helps build support domestically and globally
to solve terrorism
Corman, Trethewey, and Goodall 08 – *Corman: Professor and director of the Consortium for Strategic
Communication in the Hugh Downs School of Human Communication at Arizona State University,
consultant to the Department of Defense and Department of State on issues of strategic communication;
*Trethewey: Associate Professor and Associate Director in the Hugh Downs School of Human
Communication at Arizona State University, co-author of Organizational Communication: Balancing Creativity and
Constraing, 5th ed.; *Goodall: Professor and Director of the Hugh Downs School of Communication at Arizona
State University, serves as a U.S. Department of State International Speaker on countering ideological support
for countering terrorism and improving public diplomacy (Steven R. Trethewey, Angela Trethewey, and H.L.
Goodall Jr., “Weapons of Mass Persuasion: Strategic Communication to Combat Violent Extremism”, Peter
Lang Publishers, Frontiers in Political Communication Vol. 15, p.129-130, //11)
As the fight against terrorism continues, language plays a pivotal role. In current policies, the language of war
continues to dominate. Based on analysis of President Bush’s September 11th anniversary campaign speeches,
we propose that war metaphors and language, such as victory, enemies, and allies, occlude the reality of
counterterrorism efforts. It is difficult to pinpoint victory in this conflict, a requisite of the vocabulary of war
familiar to lay audiences.
We call for a new language to illustrate the nature of our present conflict, a new vocabulary of international
crime as an effective replacement for discussions of counterterrorism. There are four main benefits of this new language.
First, domestic audiences are accustomed to the persistence of crime; it is a manageable social ill. Second,
the labeling of terrorist organizations as “criminal” decreases the perceived legitimacy of their acts by
potential recruits. Third, international crime is a global problem, not a war perpetrated by the United States. Global
problems require global solutions, and such a language will help garner support from the global community. Finally,
crime language separates the religious connotation associated with labels of terrorism or “jihadism.” This
allows moderate Muslims to reframe their faith away from extremist and violent acts.
State Legislatures CP
1nc State Legislation CP
Text: The fifty states and all relevant United States’ territories should pass legislation
that requires law enforcement to:
-differentiate between observational comparison and indiscriminate data collection
-abide by data integrity, access, privacy restrictions, and establish and publicly announce a
formalized policy on data retention
-limit the retention, identification, access, and sharing of data
-have a legitimate law enforcement purpose in identifying the person associated with any data
retained by community surveillance technologies
-establish a formal internal policy documenting each time a police employee accesses community
surveillance databases, departments shall not allow anyone except authorized and trained police
employees to access and search these databases
-share information contained in community surveillance databases with other government agencies,
as long as all participating departments honor the minimum requirements established in this
statute.
-all evidence acquired by law enforcement in violation of this statute shall be inadmissible in state
criminal courts
-the Attorney General of this state shall have a civil right of action against any police department that
engages in a pattern or practice of violating this statute
-the Attorney General of this state shall have the authority to periodically audit departmental policies
to ensure compliance with this statute. The Attorney General will publicly post the results of this
audit to bring attention to noncompliant departments
Counterplan solves the case
Rushin, 13 --- Visiting Assistant Professor, University of Illinois College of Law (Fall 2013, Stephen,
Brooklyn Law Review, “The Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1,
Lexis,)//Mnush
[*51] C. Model Statute to Regulate Police Surveillance The presently available statutes and model guidelines suggest a key set of
concerns that any future state legislative body must consider. They demonstrate five common regulatory needs: data
retention, identification, access, sharing, and training. The model statutory language I offer includes a possible solution for each of these areas. In doing so, I
also try to honor the foundational principles for the regulation of police surveillance identified above. The model statute provides a clear standard that law enforcement agencies can implement. It
attempts to give departments some latitude to alter their own policies to meet local needs. But the law also includes specific and detailed regulations in hopes of preventing organizational mediation. The
proposed statute also includes multiple enforcement mechanisms to ensure compliance. The model excludes from criminal court any evidence obtained in violation of this statute, thus removing the
incentive for police departments to violate the policy. Of course, evidentiary exclusion is "limited as a means for promoting institutional change" because it is filled with exceptions and is narrower than
the scope of police misconduct. n330 Thus, I propose two additional enforcement mechanisms. First, the model statute gives the state attorney general authority to initiate litigation against departments
that fail to comply with these mandates. Other statutes regulating police misconduct, like 42 U.S.C. § 14141, have used a similar mechanism. n331 Second, the model mandates periodic state audits of
departmental policies and data records to ensure compliance. Overall, the proposed law broadly addresses many of the problems implicit in the digitally efficient state and establishes a number of
enforcement mechanisms to ensure organizational compliance. 1. Applicability, Definitions, and Scope
The first part of the proposed statute defines the scope of the legislation, including the
technologies regulated by the statute. In this section of the statute, I tried to reflect the foundational principle of regulating police surveillance technologies by creating a tightly defined scope of
presently available technologies that fall under the statute's regulatory purview. This might make the statute under-inclusive at some point in [*52] the future, but works to the benefit of avoiding over-
inclusivity that can stifle the development of new technologies. n332 § 1 Applicability, Definitions, and Scope This statute applies to all community surveillance technologies used by law enforcement
that collect personally identifiable, locational data. "Community surveillance technology" means any device intended to observe, compare, record, or ascertain information about individuals in public
through the recording of personally identifiable information. This includes, but is not limited to, surveillance collected with automatic license plate readers, surveillance cameras, and surveillance cameras
with biometric recognition. This scope provision specifically addresses community surveillance devices, such as ALPR and surveillance cameras, as distinguished from traditional surveillance tools like
GPS devices and wiretaps. As I have previously argued, "networked community surveillance technologies like ALPR surveil an entire community as opposed to a specific individual." n333 While the use
of a GPS device to monitor the movements of one criminal suspect over a long period of time might be constitutionally problematic, such a practice raises an entirely different set of public policy
The digitally efficient investigative state uses
community surveillance technologies like ALPR and surveillance cameras that can potentially track the
movements of all individuals within an entire community regardless of whether there is any suspicion of
criminal wrongdoing. Hence, this statute is carefully limited to a small subset of technologies that pose similar
risks and thus require similar regulation. 2. Differential Treatment of Observational Comparison and Indiscriminate Data Collection Next, I propose that state
laws should differentiate between observational comparison and indiscriminate data collection. n334 The model
law permits the use of community [*53] surveillance technologies for observational comparison. When a
department uses these technologies for observational comparison, the device is "an incredibly efficient law
enforcement tool that is reasonably tailored to only flag the suspicious." n335 § 2 Observational Comparison and Indiscriminate Data
Collection Police departments may use community surveillance technologies as needed for observational
comparison. But police departments using community surveillance technologies for indiscriminate data
retention must abide by data integrity, access, and privacy restrictions outlined in § 3 through § 6. "Observational comparison" is defined as the
questions. At minimum, the kind of tracking at issue in Jones was narrowly tailored to only affect one criminal suspect.
retention of locational or identifying data after an instantaneous cross-reference with a law enforcement database reveals reasonable suspicion of criminal wrongdoing. "Indiscriminate data collection" is
This distinction strikes a reasonable balance by
facilitating law enforcement efficiency in identifying lawbreakers, but also avoiding the unlimited and
unregulated collection of data. When applied to ALPR, this statute would mean that police could use that technology to flag passing license plates that match lists of stolen cars
defined as the retention of locational or identifying data without any suspicion of criminal wrongdoing.
or active warrants. But they could not retain locational data on license plates that do not raise any concerns of criminal activity without abiding by the regulations that follow. 3. Data Integrity, Access,
the indiscriminate collection of data be subject to four separate requirements that limit the
retention, identification, access, and sharing of data. The statutory language below was designed to give law enforcement some leeway to create workable
and Privacy I recommend that
internal policies that meet organizational and community needs. As a result, the policy simply serves as a minimum floor of regulation, above which departments could adopt their own regulations. [*54]
Police departments using community surveillance technologies for indiscriminate data collection
must establish and publicly announce a formalized policy on data retention. Departments may not retain and
store data for more than one calendar year unless the data is connected to a specific and ongoing criminal
investigation. The one-year retention period is the most significant regulation this statute would place on
indiscriminate data collection. Even the IACP acknowledges that the "indefinite retention of law enforcement information makes a vast amount of data available for potential
misuse or accidental disclosure." n336 Without limits on retention, police surveillance can develop into "a form of undesirable
social control" that can actually "prevent people from engaging in activities that further their own selfdevelopment, and inhibit individuals from associating with others, which is sometimes critical for the
promotion of free expression." n337 At the same time, law enforcement often claim that information that seems irrelevant today may someday have significance to a future
§ 3 Data Retention
investigation. n338 Without regulation, there is a cogent argument to be made that police would have every incentive to keep as much data as possible. n339 Thus, I recommend that data retention be
This would prevent the potential harms of the digitally efficient investigative state that come from
long-term data aggregation. The one-year time window represents a reasonable compromise. The median law enforcement
capped at one year.
department today retains data for around six months or less. n340 But before accepting this retention limit, state legislatures should critically assess their own state needs to determine whether there is a
Police employees
must have a legitimate law enforcement purpose in identifying the person associated with any data retained by
community surveillance technologies. The limit on data identification is somewhat different than most current statutory arrangements. This measure
would, potentially, limit the ability of law enforcement to use the stored data for secondary uses. A secondary
use is the use of data collected for one purpose for an unrelated, additional purpose. n341 This kind of secondary use can
legitimate and verifiable need for retention beyond this point. The next section of the statute addresses identification of stored data. [*55] § 4 Data Identification
generate[] fear and uncertainty over how one's information will be used in the future." n342 By limiting the identification of the data, the statute attempts to prevent such secondary use. Another way to
Departments must
establish a formal internal policy documenting each time a police employee accesses community surveillance
databases. Departments shall not allow anyone except authorized and trained police employees to access and
search these databases. § 6 External Data Sharing Police departments may share information contained in community
surveillance databases with other government agencies, as long as all participating departments honor the
minimum requirements established in this statute. I propose that police limit access to data even among police employees. And each time a police employee
accesses data, I require that the department document this event. This achieves two results. First, it creates a record of previous access points that the
attorney general or state criminal courts can, theoretically, use to hold police accountable for improper data
access. Secondly, and relatedly, this formalized documentation process may prevent nefarious secondary uses of the
avoid secondary use is to limit access to data and external sharing, as I attempt to do in the next portions of the statute. § 5 Internal Access to Stored Data
information. Because some evidence suggests that police retain community surveillance data in databases accessible to [*56] private companies and civilians, n343 this would place the impetus
on police departments to take responsibility for internal data management. And while the model statute does not limit the sharing of digitally efficient data, it does require that all departments with
access to data abide by the statutory limits. This would promote the sharing of data across jurisdictional lines to facilitate efficient investigations, while providing a consistent level of minimum privacy
protection in the state. 4. Enforcement Mechanisms To ensure that departments abide by these minimal regulations, I propose a combination of enforcement mechanisms. The judicial and legislative
branches have previously used these three enforcement mechanisms in other contexts to regulate police misconduct. By permitting a wide range of enforcement mechanisms, the statute attempts to
All evidence
acquired by law enforcement in violation of this statute shall be inadmissible in state criminal courts. The judiciary
avoid the traditional problems associated with police and organizational regulation. The first enforcement mechanism involves evidentiary exclusion. § 7 Evidentiary Exclusion
generally excludes evidence obtained in violation of the constitution. This mechanism is "by far the most commonly used means of discouraging police misconduct and perhaps the most successful."
n344 Empirical evidence suggests that evidentiary exclusion can change law enforcement behavior and incentivize compliance with the law. n345 But the exclusionary rule suffers from several
limitations. As Rachel Harmon has explained, the exclusionary rule is "riddled with exceptions and limitations, many of which are inconsistent with using the exclusionary rule as an [*57] effective
deterrent of police misconduct." n346 Thus, if the misconduct happens to fall into one of these many exceptions, the exclusionary rule may not be an effective deterrent. But perhaps more importantly,
as Harmon explains, "the scope of the exclusionary rule is inevitably much narrower than the scope of illegal police misconduct." n347 After all, the exclusionary rule would only work as a mechanism
for preventing police misuse of digitally efficient databases if the police intended to use the resulting evidence in a criminal trial. But much of the misconduct I discuss in this article and previous work
involves police utilizing retained data for undetermined secondary purposes. The exclusionary rule may do little to prevent this type of misconduct. To remedy this problem, I propose two other
The Attorney General of this state shall have a civil right of action against
any police department that engages in a pattern or practice of violating this statute. § 9 State Audit of Departmental Policy The
Attorney General of this state shall have the authority to periodically audit departmental policies to ensure
compliance with this statute. The Attorney General will publicly post the results of this audit to bring
attention to noncompliant departments. Two of the statutes currently in operation only classify the violation of data retention and access policies as a minor criminal
enforcement mechanisms. § 8 Attorney General Right of Action
act. n348 In theory, these laws could result in the prosecution of a police officer who fails to abide by their parameters. But as Harmon concludes, "prosecutions against police officers are too rare to
deter misconduct." n349 This is because juries tend to sympathize with defendant police officers, and the criminal prosecution of minor misconduct is rarely among the top priorities for over-worked
I suggest that the state [*58] attorney general
office should take on a proactive role in ensuring compliance through suing noncompliant agencies and
occasionally auditing departmental policies. The first alternative enforcement mechanism gives the state attorney general statutory authority to bring suit against
prosecutors. n350 Consequently, I avoid establishing criminal liability for officers who violate this statute. Instead,
departments that engage in a pattern of practice of violating this statute. This is similar to the statutory mandate given to the Department of Justice (DOJ) by 42 U.S.C. § 14141. n351 Police scholar
Barbara Armacost has called § 14141 "perhaps the most promising mechanism" for addressing organizational misconduct. n352 The late Bill Stuntz even believed that § 14141 may be "more significant,
in the long run, than Mapp v. Ohio . . . which mandated the exclusion of evidence obtained in violation of the Fourth Amendment." n353 Pattern and practice litigation, as authorized in § 14141, is
unique because it permits the DOJ to bring federal suit against police departments that engage in systematic misconduct; in practice, the DOJ successfully ensured the appointment of judicial monitors
in targeted cities to oversee organizational and policy reform. n354 Although there is only a small amount of empirical research on the effectiveness of § 14141 in reducing police misconduct, the
available evidence suggests it is one of the most effective means of bringing about organizational change. n355 One of the only potential pitfalls of this form of regulation is that the state attorney
general may have limited resources. n356 If resource constraints make lawsuits unlikely for noncompliant departments, a police agency might rationally calculate that the benefits of noncompliance
To remedy the concern over resource limitations, I propose that the state attorney
general have statutory [*59] authority to audit police departments. This would expand the regulatory reach of the statute while also harnessing the
power of public opinion to force police compliance. This would also guarantee regular interaction between the attorney general and
local departments, allowing the attorney general to check up on data practices. Rather than facing only the remote possibility of a
outweigh the potential costs of litigation. n357
pattern or practice lawsuit, departments would be faced with regular, random audits of their data policies. Because the results of this regular audit system would be posted online, the departments would
This could incentivize administrators to follow state law for fear of public
embarrassment that could threaten their job security. Rachel Harmon has suggested the DOJ utilize a similar policy to overcome resource limits and expand
the potential impact of § 14141. n358 In sum, these regulations attempt to holistically regulate the digitally efficient investigative
state by limiting data retention and ensuring stored data are handled in a way that protects individual privacy,
while still leaving ample room for legitimate law enforcement purposes. The enforcement mechanisms are sufficiently varied to ensure
widespread compliance. And the statute as a whole follows the foundational principles of police surveillance regulations. The regulations are clear enough to avoid
organizational mediation. They allow for individual variation. And they define the scope narrowly to only
include a small subset of technologies like ALPR and surveillance cameras that pose a similar social risk.
also be publicly accountable if they fail to abide by the statute.
CONCLUSION The digitally efficient investigative state is here to stay. The empirical evidence clearly demonstrates that extremely efficient community surveillance technologies are an increasingly
important part of American law enforcement. The language in Jones suggests that the judiciary may somehow limit public surveillance technologies in the future. To do so, the Court will have to
confront the jurisprudential assumptions of police surveillance. That is no easy task. Much of the Court's previous treatment of police surveillance has rested on the belief that individuals have no
expectation of privacy in public places, and [*60] that surveillance technologies that merely improve the efficiency of police investigations comport with the Fourth Amendment. At present, it remains
even when the Court does eventually
broach this subject, the judiciary's institutional limitations will prevent it from crafting the type of expansive
solution necessary to protect against the harms of the digitally efficient investigative state. In the absence of
regulation, police departments across the country have developed dramatically different policies on the use of
public surveillance technologies. Legislative bodies must take the lead and proactively
unclear how and when the Court will begin to alter these important assumptions. The language in Jones offers little guidance. But
limit the retention, identification, access, and sharing of personal data
acquired by digitally efficient public surveillance technologies. The model state
statute proposed in this Article would be a substantial step in reigning in the "unregulated
efficiency of emerging investigative and surveillance technologies."
State Legislation Solvency
State legislation solves – they have the requisite mechanisms and oversight to end
digitally efficient investigation
Rushin, 13 --- Visiting Assistant Professor, University of Illinois College of Law (Fall 2013, Stephen,
Brooklyn Law Review, “The Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1,
Lexis,)//Mnush
III. THE LEGISLATIVE RESPONSE Any future judicial response must be coupled with state legislation. Even
if the judiciary eventually
accepts some version of the mosaic theory in interpreting the Fourth Amendment, we should not expect the
Court to hand down detailed regulations for the use of these technologies. Justice Alito's concurrence in Jones is telling.
His proposal to regulate the efficiency of surveillance technologies would only control data retention. n261 And the amount of data that a police
department could reasonably retain without a warrant would vary from one situation to the next based upon the relative seriousness of the possible
crime at issue. n262 This barely scratches the surface of broader problems posed by the digitally efficient state. Under what conditions should we
permit extensive data retention? When should we limit this kind of retention? Is data aggregation more acceptable as long as the data is not crossreferenced with other databases, thereby personally identifying individuals? Should we regulate law enforcement's access to this personal data? And
where should this data be stored? Even my original proposal for judicial regulation of mass police surveillance only addressed a handful of these
questions. I recommended that courts require police to develop clear data retention policies that are tailored to only retain data as long as necessary to
serve a legitimate law enforcement [*42] purpose. n263 Like Alito's proposal, such a standard would vary according to the seriousness of the crime
under investigation and the individual circumstance. I also argued that in cases where police retain surveillance data without a warrant through
electronic means, they should have a legitimate law enforcement purpose before cross-referencing that data with other databases for the purposes of
identifying individuals. n264 Both the Jones concurrence and my previous proposal would establish a broad judicial principle mandating that police
regulate data retention according to the seriousness of the crime under investigation and the legitimate need for such retention. This type of judicial
response is limited in nature. Legislative bodies would likely need to step in to provide more detailed standards. The
legislative branch has
several advantages over the judiciary that make it appropriate for this type of detailed policy building. The
legislature has a wider range of enforcement mechanisms than the judiciary. The legislature can
mandate in-depth and regular oversight. And it has the resources and tools to develop extensive, complex
regulations. As a result, the legislature is the best-positioned branch to address some of
the critical issues raised by the digitally efficient investigative state, such as
data storage, access, and sharing policies. In this Part, I offer guidelines for a legislative response to mass police
surveillance. I first detail some of the foundational principles that legislative bodies ought to recognize in regulating police use of technology. Next, I
give a brief overview of how a handful of states have attempted to regulate these technologies. I conclude by offering and defending my statutory
recommendations. A. Foundational Principles for Regulating Police Surveillance Technology In making this legislative recommendation, I rely on three
foundational principles about legislative regulation of law enforcement technologies. First, any
regulation must provide clear and
articulable standards that law enforcement can and will easily enforce. n265 Courts and legislators have often
agreed [*43] that police regulations should be easy to apply across many different factual circumstances. n266 If a
regulation is unclear, there is a higher probability that law enforcement will, even in good faith,
misapply the standard. For example, in Atwater v. City of Lago Vista, Texas state law permitted officers to arrest offenders who violated
traffic laws for failure to wear a seatbelt, even though the final punishment for such a violation was a mere fine. n267 In upholding an officer's decision
to arrest a woman for failure to buckle her seatbelt, the Court stressed that police need rules that emphasize "clarity and simplicity." n268 Earlier
regulations have encountered resistance from law enforcement because they were not easily administrable standards. For example, in Arizona v. Gant,
the Court upended a longstanding doctrine that said police could search an automobile incident to an arrest of a person in that vehicle. n269 The new
standard said that police "may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." n270 Justice Alito found
this new standard undesirable compared to the previous standard. In Alito's mind, the Court should strive for "a test that would be relatively easy for
police officers and judges to apply." n271 While some commentators disagree about the relative importance of clear and simple rules, n272 most
judges and policymakers agree that any policymaker should consider the administrability of a mandate. Clear and simple rules also have another
advantage over ambiguous mandates--these kinds of clear directives are less susceptible to organizational mediation. n273 If a state regulation of a
policing organization is "vague or ambiguous," the police organization may "mediate the implementation and impact the law." n274 Lauren Edelman
had demonstrated this [*44] type of mediation in the case of equal employment and affirmative action laws that are intended to change the behavior of
private organizations. n275 These initial laws only established broad regulatory goals without offering clear and explicit procedural limitations. n276
This type of ambiguous mandate gave private companies room to interpret the laws and construct the meaning of compliance, thereby mediating "the
impact of the law on society." n277 In
the past, the police have been guilty of organizational mediation of a variety of
legal mandates. The general police response to Miranda is particularly demonstrative of this phenomenon. Scholars like Richard Leo and Charles
Weisselberg have carefully shown how police have navigated around the limitations of the original Miranda decision to nonetheless engage in
seemingly coercive interrogation techniques aimed at acquiring information. n278 The original Miranda opinion provided some limitations on
interrogations, but the decision and subsequent holdings may have been ambiguous, thereby allowing for departments to navigate around them
without technically violating the law. Thus, in
crafting rules for police, both the Court and legislatures should aim to
create easily administrable law enforcement rules if at all possible, but also laws that are specific enough to
avoid organizational mediation. Second, communities differ in their need for public surveillance. For example,
New York City and Washington, D.C. have previously been targets for international terrorism. Given their plethora of high value targets and
landmarks, these two cities may have a legitimate need for more public surveillance than other communities. n279 In arguing for a malleable standard
for local departments, the IACP has suggested that some locations--namely bridges, critical infrastructure, and other high value targets--demand more
surveillance and data retention to ensure public safety. n280 As an example, the IACP cites the fact that locations targeted on September 11, 2001 were
part of a terrorist attack that took many years to plan and execute. n281 [*45] Thus, certain
communities may legitimately need and
prefer longer retention periods around certain important targets. Conversely, a medium-sized suburb with low
crime that places a higher value on privacy might prefer a bar on the retention of surveillance data all
together. While any state statute should establish minimally acceptable requirements on data retention, the law must be sufficiently broad to permit
necessary variation at the local level. A one-size-fits-all approach may not be workable, given the unique law enforcement needs of each city. Third,
any regulation must clearly articulate the narrow scope of technologies and devices that fall under its
regulatory purview. Because technology changes rapidly, this ensures that the law will not be misapplied to
future, emerging technologies. Kerr has previously argued that regulations of technology ought to proceed cautiously until the technology
has stabilized. n282 Technology may have unforeseen uses that will take time to develop and understand. For example, in 1988, Congress passed the
Video Privacy Protection Act. n283 This law protected the privacy of videotape rental information. n284 Congress passed the law after Judge Robert
Bork's video rental history became public during his Supreme Court nomination process. n285 But in crafting this limitation on video rentals,
Congress defined the term "video tape service provider" expansively as "any person, engaged in the business . . . of rental, sale, or delivery of
prerecorded video cassette tapes or similar audio visual material." n286 On one hand, this expansive definition of a videotape service provider is useful
because it is broad enough to avoid antiquation. As videotape technology waned in popularity and DVDs became the chosen medium for most movie
rental providers, the law maintained its statutory force. But the vague language used by the original drafters of the law left online streaming content
providers like Netflix wondering whether the law actually applied to their services. n287 It was also unclear what kind of approval Netflix and other
providers had [*46] to obtain to allow users to share their viewing history on social media platforms like Facebook. n288 After years of ambiguity,
Congress recently amended the law to permit users to share content watching habits on streaming sites like Netflix after they have given one-time
approval. n289 Before the law change, Netflix complained that the law's language was confusing, making them hesitant to adopt social media
integration. n290 Similarly, when
regulating police technology use, legislative bodies should adopt language that is
sufficiently broad to avoid immediate antiquation. They should also be careful not to select language that is so
overly broad as to limit the use of new, potentially important technological tools.
State regulations can be reformed to ensure less discriminatory surveillance
Rushin, 13 --- Visiting Assistant Professor, University of Illinois College of Law (Fall 2013, Stephen,
Brooklyn Law Review, “The Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1,
Lexis,)//Mnush
The legislative recommendation I make in this Part attempts to follow these three guiding principles: it attempts to (1) clearly define the limited scope of the applicable
technologies, (2) be clear and simple for law enforcement to administer, and (3) permit some level of local variation to meet the needs of unique municipalities. My starting
point for crafting this model was to analyze the small number of statutes already passed by state legislators. The next section looks at these statutes to demonstrate common
trends B. Current State Regulations A handful of states have laid out regulations of the digitally efficient investigative state.
These state laws operate by either regulating ALPR and surveillance cameras specifically, or by establishing broad standards for data retention. For example, states like
Virginia have passed relatively broad laws that regulate the retention of data by the government in all forms. n291 In other states, like New Jersey, the state attorney general
has used state constitutional authority to hand down directives regulating the use of ALPR and establishing limitations on data collection. n292 States like Maine, Arkansas,
New Hampshire, Vermont, and Utah have regulated ALPR through legislative measures. n293 Some states, like New York, have also handed down suggested model
guidelines to inform [*47] internal policymakers. n294 In this section, I demonstrate that most of these early efforts to regulate the digitally efficient surveillance
technologies share a handful of common concerns. They limit the identification of personal data, the length of data retention, the sharing of information with other
departments, and law enforcement access to stored data. These early models also rely on a bevy of enforcement mechanisms. Thus, any model legislation aimed at
holistically managing the digitally efficient investigative state should consider the possible solutions offered by existing laws. First, the
laws generally limit the
length of data retention in some way. Maine's law on ALPR limits retention to 21 days. n295 New Hampshire also puts a strict limit on the collection of
law enforcement data, barring "retention of surveillance data except for a few, specific situations." n296 By stark contrast, the New Jersey Attorney General has ordered that
data be retained for no more than five years. n297 Model guidelines like those offered by the State of New York do not establish a maximum length of data retention, n298
but the New York recommendations do encourage departments to establish a clear policy on the length of data retention. n299 Arkansas limits retention to 150 days, n300
Utah allows retention by government agents for nine months, n301 and Vermont permits retention for up to 18 months. n302 Each of these statutes reaches a different
conclusion on the appropriate length of data retention. The disparity between the New Jersey data retention limit of five years and relatively strict retention limits in states
like Maine and New Hampshire is striking. But the Maine law might not be as restrictive as it initially appears. Although it does limit retention in most cases to 21 days, it
also makes an exception for cases where law enforcement is engaged in an ongoing investigation or intelligence operation. n303 Overall, state
legislatures have
reached dramatically different conclusions on the relative threat posed by long-term data retention. [*48] Second, a
few of the available laws demonstrate a concern for the identification of personal data collected by the state.
The New Jersey Attorney General Directive intends in part to limit the "disclos[ure] [of] personal identifying information about an individual unless there is a legitimate and
documented law enforcement reason for disclosing such personal information to a law enforcement officer or civilian crime analyst." n304 In New York, the model
guidelines would also require that officers attempting to query stored data for identifying matches have a legitimate law enforcement purpose for doing so, and that they
record their identification procedure. n305 Neither Maine nor New Hampshire has a substantial policy on the identification of data, likely due in large part to their strict
limitations on retention. n306 The
longer a state legislature permits data retention, the more legitimately concerned it
may be about the possibility of this data becoming personally identified. After all, the combination of long-scale
retention and data identification procedures may allow law enforcement to create "digital dossiers" on
innocent people that reveal private information about their habits, preferences, and daily movements. n307 Third,
the available laws and recommended models tend to put restrictions on the sharing of information with other
agencies. The New Jersey directive permits the sharing of ALPR data among police departments in the state, provided that the departments keep records of the data
being shared and all departments involved abide by the New Jersey rules. n308 Nonetheless, New Jersey uses regulations on sharing as a way to encourage the development
of a consistent and organized state database. n309 The Utah law permits sharing and disclosure only under narrow circumstances. n310 Arkansas, by contrast, strictly
prohibits sharing of collected data. n311 Other states, like New York, have been relatively hands-off when it comes to data sharing. They simply urge departments to build
procedures for sharing data that are consistent with their overall recommendations on data protection. n312 We may expect states [*49] to want to encourage departments
to share whatever data they can legally retain. By doing so, departments
can have access to significantly more information on the
potential whereabouts of criminal suspects who travel outside jurisdictional lines. n313 Fourth, available and model
rules document and limit access to stored data. New Jersey's regulation requires departments to record all user access to stored ALPR data,
including the name of the user accessing the data, the time and date of the access, whether the person used automated software to analyze the data, and the name of the
supervisor who authorized the access. n314 New York's model guidelines also suggest that departments document when officers search and analyze stored data. n315
Officers should also only analyze data if they have a legitimate law enforcement purpose for doing so. n316 Additionally, the Maine provision stresses the importance of
confidentiality in stored data. n317 That
law restricts access to law enforcement officers. n318 And in Vermont, the law explicitly states that
the current array of statutes acknowledges the
need for limited access to available data and confidentiality of stored information. Fifth, some of the model
regulations require departments to train employees in the proper procedures for handling data. They also
discipline employees who fail to follow policy parameters. The New York suggested guidelines recommend that departments establish a list
access to stored data should be limited to specified or previously designated personnel. n319 Thus,
of designated personnel who are authorized to access ALPR data, n320 and encourage departments to establish a training program to teach officers about the proper use of
ALPR technology. n321 The New Jersey directive also requires that departments "designate all authorized users, and that no officer or civilian employee will be authorized
to operate an ALPR, or to access or use ALPR stored data, unless the officer or civilian employee has received training by the department on the proper operation of these
devices." n322 Once more, the New Jersey directive mandates that "any sworn officer or civilian employee of the [*50] agency who knowingly violates the agency's policy,
or these Guidelines, shall be subject to discipline." n323 Conversely, neither the Maine nor New Hampshire laws touch on officers' training in data retention. n324 But this
is likely because they do not permit significant data accumulation, thereby making training in data management less imperative. On the whole,
those states and
entities that do permit large-scale data collection also encourage officer training as a safeguard against abuse.
Sixth, the current array of regulations uses a wide range of enforcement mechanisms. In New Jersey, as a penalty for noncompliance, the Attorney General maintains the authority to temporarily or permanently revoke a department's right to use ALPR devices. n325 Arkansas provides for civil
remedies for individuals when a violation of the law causes them actual harm. n326 Utah, by contrast, simply makes violation of the statute a criminal misdemeanor. n327
Both the New Hampshire and the Maine laws have made the violation of ALPR regulations a criminal act in the state. n328 Although New York's regulations are nonmandatory, they still recommend
that departments begin creating records in case the state someday begins to audit
data access and retention records. n329 In sum, current state statutes and recommended guidelines address a
number of concerns related to the digitally efficient state. It is worth noting again that these laws go far beyond anything
the judiciary would likely implement. The Supreme Court is institutionally limited in its capacity to develop a response to the digitally efficient
investigative state. The variation on the mosaic theory adopted by Alito in his Jones concurrence would only establish a broad principle that long-term data retention by
efficient public surveillance technologies may eventually violate a person's reasonable expectation of privacy. Such a rule is ambiguous and does not touch on data storage,
access, and identification. State
legislation offers the possibility of establishing detailed and definitive standards.
Legislation solves best
Rushin, 13 --- Visiting Assistant Professor, University of Illinois College of Law (Fall 2013, Stephen,
Brooklyn Law Review, “The Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1,
Lexis,)//Mnush
In this article, I
present a model statute that a state could enact to regulate the digitally efficient investigative state.
This statute adheres to three major principles about the regulation of police surveillance. First, any regulation
must provide clear standards that law enforcement can easily understand and apply. n23 Second, as communities differ
substantially in their need for public surveillance, any legislation must provide local municipalities with some ability to vary
standards to meet their legitimate law enforcement needs. Third, any regulation must articulate the narrow scope
of technologies and devices that fall under its regulatory purview. Because technology changes rapidly, this
ensures that the law will not be misapplied to future, emerging technologies. The model statute I offer in this article honors
these three important principles. The statute regulates the indiscriminate collection and retention of data by law
enforcement surveillance technologies, while also permitting the use of technological surveillance for mere
observational comparison. The statute [*5] establishes a maximum length of time for data retention. It also limits
the sharing of personally identifiable information, and requires that law enforcement demonstrate a legitimate
investigative purpose for identifying and accessing data. To enforce these broad regulations, the statute gives the state
attorney general the authority to bring lawsuits against police departments that fail to abide by these
regulations and excludes from criminal court any locational evidence obtained in violation of the statute. This
statute would not address all of the concerns of the digitally efficient investigative state. After all, no statute can fully predict and control the development of new and
emerging technologies. Nevertheless, it would be a major step toward coherency. This
legislation would give a police department discretion
to craft unique data policies tailored to its community's specific needs, while also encouraging some level of
statewide consistency. To date, only a small handful of law review articles have addressed the unique issues raised by digitally efficient community surveillance
technology, such as automatic license plate readers (ALPR). n24 Furthermore, none of this work has offered a comprehensive legislative response that could guide future
regulation. Thus, this article fills a void in the available legal scholarship.
Police departments have expanded advanced surveillance technologies and the
Supreme Court can’t stop it without State legislatures
Rushin, 13 --- Visiting Assistant Professor, University of Illinois College of Law (Fall 2013, Stephen,
Brooklyn Law Review, “The Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1,
Lexis,)//Mnush
Over the last two decades, police departments have dramatically expanded the use of advanced surveillance
technologies. In 1997, around 20% of American police departments reported using some type of technological surveillance. n1 By 2007, that number had risen to
over 70%. n2 And no longer do police rely exclusively on basic surveillance technologies. The increasingly efficient
and technologically advanced law enforcement of the twenty-first century utilizes a wide range of surveillance
devices including automatic license plate readers (ALPR), n3 surveillance cameras, n4 red light cameras, n5 speed
cameras, n6 and biometric technology like facial recognition. n7 [*2] I have previously called this radical shift in policing
the beginning of the digitally efficient investigative state. n8 By this, I mean that police today utilize technological
replacements for traditional investigations that dramatically improve the efficiency of surveillance. These digitally
efficient technologies do not give police any unique extrasensory ability. n9 They merely improve the efficiency of public surveillance. Furthermore, these technologies only
collect information on public movements and behaviors. They do not intrude on any constitutionally protected or private space. n10 However, these
tools have
developed into a form of widespread community surveillance, which presents privacy concerns for many
members of the community. In addressing public surveillance under the Fourth Amendment, the Supreme Court has previously operated under two
important presumptions. I call these two general rules the jurisprudential assumptions of police surveillance. First, individuals have no reasonable expectation of privacy in
any activities they make in public that may be visible to law enforcement. n11 So while officers need probable cause or a warrant to enter a home or automobile, they do not
need any [*3] authorization to investigate or record a person's activities in public. Second, while technologies that give the state an extrasensory ability may violate an
individual's reasonable expectation of privacy, technologies that merely improve the efficiency of otherwise permissible investigation techniques are presumptively
permissible. n12 Thus, while officers must obtain a warrant before using some extrasensory technologies, the
Court generally does not regulate
efficiency-enhancing technologies. These jurisprudential assumptions of police surveillance have been workable in the past because of the limited use and
capability of efficiency-enhancing technologies. I have previously argued, however, that in the age of the digitally efficient investigative state,
efficiency-enhancing technologies have become sufficiently intrusive as to demand a new doctrinal path. n13 In
United States v. Jones, the Supreme Court considered one such efficiency-enhancing surveillance technology-global positioning systems (GPS). n14 There, law enforcement officers installed a GPS device on a suspect's car without
a valid warrant. n15 The government argued that the police did not need a warrant to install the GPS device
because it was merely an efficient replacement for an otherwise legal police investigation tactic--public
surveillance. n16 But Antoine Jones claimed that he had a reasonable expectation that all of his movements
over the course of a month would not be recorded in great detail by the state, even if they were executed in
public. n17 The Jones case presented the perfect opportunity for the Court to amend one or both of the
jurisprudential assumptions of police surveillance, but the Court punted the issue. The majority merely found that the
installation of a GPS device violated the Fourth Amendment because of the device's physical installation on the automobile. n18 Post-Jones, many academics
criticized the Court for not addressing the privacy issues raised by police surveillance technologies. n19 I believe the
Court will eventually regulate the digitally efficient investigative state in some manner. Indeed, dicta in the concurrences by Justices Sotomayor and Alito [*4] suggest that
the Court will be receptive to broader regulation of efficiency-enhancing surveillance technology in the near future. n20 Nevertheless, history dictates that any judicial
regulation will be limited and likely rely on the often-ineffective exclusionary rule for enforcement. n21 As a result, Congress and state legislators must play a significant role
in any future regulation of police surveillance. Given
that law enforcement in the United States is highly decentralized, n22
much of this regulation will have to come from state legislatures.
Counterplans vs State Secrets Privilege / Judicial
Independence Advs
1nc CP Executive
CP Text: The executive branch should:
-conduct an across-the-board review of pending litigation where the state secrets privilege was
invoked
-issue an executive order that sets out substantive legal standards regarding use of the privilege
-create a durable and extensive review process within the executive branch for deciding when to
assert the privilege in future cases
-institute a formal process for invoking the privilege, by setting out a list of offices or officials who
must sign off on the decision
-institute a system to automatically refer evidence that it asserts is privileged to an Office of the
Inspector General
-encourage the Congress to enact the State Secrets Protection Act
CP solves
Frost ’09 --- American University Washington College of Law (Amanda, “Reforming the State Secrets
Privilege,” American University College of Law, 4/1/2009,
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1001&context=fac_works_pubs)//
Mnush
The next administration should consider implementing the following measures upon taking office. These
proposals could be adopted individually, or grouped together as a comprehensive package. The list below is not intended
to be exhaustive, but rather to suggest useful avenues for the new administration to pursue. First, the new administration should conduct an
across-the-board review of all pending litigation in which the government—either as a party or an
intervenor—has invoked the state secrets privilege. Just because the Bush Administration invoked the privilege in a particular case does not
mean the new administration should consider itself bound by its predecessor’s litigation approach. This across-the-board review should be carried out by a joint group of
career employees and political appointees of the new administration, and should include officials from both the Justice Department and the intelligence and national security
communities. It
should cover not only cases that are pending in district courts, but also those in which the state
secrets privilege is at issue on appeal. Second, the next president should issue an executive order, binding on all
federal agencies, that sets out substantive legal standards regarding use of the privilege. This order might
include a new definition of what constitutes a state secret and what evidence the government believes is
appropriately subject to the privilege, based either on the current classification system,80 or the definitions of
“state secrets” in proposed legislation that is currently pending before Congress. An important element of an executive order
on the privilege would be creating a standard for when the government may seek outright dismissal of a case, at the pleadings stage, on the basis of the privilege. For
example, an effective order could emphasize that this approach is supported by precedent only in cases involving secret espionage agreements, such as those at issue in
Totten v. United States and Tenet v. Doe, and may not be appropriate in cases relating to other subjects. The executive order should take into account the harm to litigants
The president’s constitutional
responsibilities include not only protecting the nation’s security, but also taking care that the laws
are properly enforced.81 If important evidence is kept out of court, or entire cases are dismissed on the pleadings, the law cannot be optimally followed and
and the public of invoking the privilege either to prevent introduction of evidence or seek dismissal of the case.
enforced. Accordingly, the executive branch should adopt a substantive standard that requires it to evaluate the harm that will result when invoking the state secrets
privilege. Third,
either as part of an executive order or through a formal memorandum issued by the new
attorney general, the administration should create a durable and extensive review process within the executive
branch for deciding when to assert the privilege in future cases. Internal procedural requirements within the
bureaucracy can create a strong layer of checks and balances, taking advantage of the benefits of multiple
viewpoints and the experience and judgment of career civil servants.82 When just a few executive branch officials make decisions
without broader consultation and input, the results can be severely flawed. This is especially the case with complex legal analysis, as demonstrated by the failures resulting
from the Bush Administration’s refusal to seek input from different officials within the administration.83 As Professor Goldsmith testified before the Senate Judiciary
Committee, “[c]lose-looped decisionmaking by like-minded lawyers resulted in legal and political errors that would be very costly to the administration down the road. Many
of these errors were unnecessary and would have been avoided with wider deliberation and consultation.” Judicial doctrine provides that the state secrets privilege may only
be “lodged by the head of the department which has control over the matter”—not a low-level official.85 That official must give “actual personal consideration” to the
issue, and attest to this in a formal declaration.86 Recent practice suggests, however, that these doctrinal procedural requirements are insufficient in light of the significant
impact of invocation of the privilege. And although officials from the Bush Justice Department have asserted that attorneys from the Department, in addition to counsel
from the relevant agency, are involved in determining when to invoke the privilege, they have not indicated the existence of any formal review process within the Justice
Department. The new administration or Justice Department should
institute a formal process for invoking the privilege, by setting
out a list of offices or officials who must sign off on the decision. To begin, a senior official within the Department, perhaps the
deputy attorney general, should be required to personally approve all invocations of the privilege. This will provide accountability for secrecy at the highest levels of the
administration. Moreover, a
new review process might include a referral to the Department’s Professional Responsibility Advisory Office
(PRAO) to ensure that the privilege is not being invoked out of a conflict of interest.88 Further, the Justice Department
should consider establishing a litigant’s ombudsman who could serve as an advocate for the members of the public who would be harmed by invocation of the privilege.89
By requiring that these offices approve the government’s exercise of the privilege, the new administration would bring more viewpoints into its deliberations and reduce the
likelihood of error or unnecessary harm to the interests of justice. Fourth, the
administration should institute a system to automatically
refer evidence that it asserts is privileged to an Office of the Inspector General (OIG). Even if the privilege is invoked appropriately and
narrowly by the administration, and subjected to careful review by the courts, the state secrets privilege will prevent the introduction of some important evidence in court.
This
is the very purpose of the privilege, and it may sometimes be necessary to prevent the disclosure of secret
information that would harm the nation’s security—even when that evidence demonstrates illegal activity.
Because even proper use of the privilege can disrupt the usual system of checks and balances and limit oversight of the executive branch, it is important that an independent
body within the executive branch review the evidence and take action to prevent or ameliorate violations of the law that cannot be disclosed in court. By mandating referral
of assertedly privileged evidence to an OIG, the new administration can ensure that any evidence of abuse or wrongdoing—even if properly covered by the privilege—will
be addressed and corrected. The Justice Department’s OIG has demonstrated extraordinary integrity and independence in recent years, and thus would be the appropriate
office to conduct the review. However, if the administration believes it appropriate, the privileged evidence could be referred to the relevant department or agency OIG, for
example that within the Department of Defense or the CIA. The
OIG could then serve as a partial substitute for the courts by
investigating and providing accountability for any wrongdoing revealed by the privileged evidence. Finally, the new
administration should encourage the next Congress to enact the State Secrets Protection Act, discussed below, or similar legislation.
Rather than work with Congress to craft state secrets legislation, the Bush Administration has attempted to undermine the proposed legislation by making specious attacks
on its constitutionality and vowing to veto any bill passed by Congress.90 The new administration should work with members of the House and Senate Judiciary
Committees to pass and sign into law the State Secrets Protection Act. At a minimum, it should cooperate with the Judiciary Committees to modify these bills to address its
Adopting these measures would enable the new
administration to restore a proper balance between the branches of government, fulfill its constitutional
responsibilities to enforce the rule of law, and protect both national security and the interests of justice.
concerns. The next section discusses the legislation and its benefits in more detail.
Congress Solvency
Congress can pass legislation changing how state secrets are evaluated --- boosts
judicial independence
Fisher 08’ --- specialist in Constitutional Law (Louis, “Reform of the State Secrets Privilege,” House
Committee on the Judiciary , 1/29/2008,
http://www.loc.gov/law/help/usconlaw/pdf/Fisher_statement_12508.pdf)//Mnush
There should be little doubt that Congress has constitutional authority to provide new guidelines for the
courts. It has full authority to adopt rules of evidence and assure private parties that they have a reasonable
opportunity to bring claims in court. What is at stake is more than the claim or assertion by the executive branch regarding state secrets. Congress
needs to protect the vitality of a political system that is based on separation of powers, checks and balances,
and safeguards to individual rights. In the past-half century, Congress has repeatedly passed legislation to fortify
judicial independence in cases involving national security and classified information. Federal judges now gain
access to and make judgments about highly sensitive documents. Congressional action with the FOIA amendments of 1974, the FISA
statute of 1978, and the CIPA statute of 1980 were conscious decisions by Congress to empower federal judges to review and
evaluate highly classified information. Congress now has an opportunity to pass effective state secrets
legislation.
Congress solves --- can regulate the process through which the privilege is asserted
Chesney ’08 --- Wake Forest Law School (Robert M, “Legislative Reform of the State Secrets Privilege,”
Roger Williams University Law Review, spring 2008,
http://docs.rwu.edu/cgi/viewcontent.cgi?article=1389&context=rwu_LR)//Mnush
In any event, let us assume for the sake of argument that the state secrets privilege serves constitutionally-protected values relating to the executive
branch's national security and diplomatic functions. Would it follow that Congress is disabled from regulating in this area? It is not obvious that it
would. Indeed, some
forms of regulation would seem clearly to remain within the control of Congress in the exercise
if other forms of legislation might prove more controversial. The key is to
distinguish between legislation regulating the process by which privilege assertions are to be adjudicated, and
legislation that functions to override or waive the privilege itself. At a minimum, Congress should have authority
to regulate the process through which assertions of the privilege are adjudicated. This would include, for example, the
power to codify prerequisites to the assertion of the privilege (such as the Reynolds requirement that the privilege be invoked by
the head of the relevant department based on personal consideration of the matter)34 or to require particular procedures to be
followed by the court in the course of resolving the government's invocation. Whether Congress should be able to
of the authorities mentioned above, even
override the privilege once it attaches-for example, by compelling the executive branch to choose between conceding liability in civil litigation and
disclosure of privileged information in a public setting-is far less clear. That question may be academic, however, at least so far as the SSPA is
concerned. A
close review of the bill suggests that most if not all of its provisions are best viewed as process
regulations. It does not follow, of course, that all the changes contemplated in the SSPA are wise. On the contrary, there are at least a few
elements in the bill that go too far in seeking to ameliorate the impact of the privilege. Congress may have the authority to adopt
these measures notwithstanding the competing constitutional values involved, but it is advisable to emphasize
less-intrusive reform options whenever possible.
Subjecting the states secrets privilege to a procedural framework solves
Chesney ’08 --- Wake Forest Law School (Robert M, “Legislative Reform of the State Secrets Privilege,”
Roger Williams University Law Review, spring 2008,
http://docs.rwu.edu/cgi/viewcontent.cgi?article=1389&context=rwu_LR)//Mnush
Note* SSPA = State Secret’s Privilege Act
By subjecting the privilege to a more
rigorous procedural framework, the SSPA may reduce the range of cases in which the privilege is found to
apply, and in some respects it may cause marginal increases in the risk that sensitive information will be
disclosed (though with the amendments proposed above such risks would be significantly diminished). On the other hand, even under the SSPA, the privilege
will continue to have a harsh impact on litigants who bring claims that implicate protected information: discovery will still be denied, complaints
will still be dismissed, and summary judgment will still be granted. Such tradeoffs are inevitable, however, in crafting legislation designed
to reconcile such important public values as national security, access to justice, and democratic
accountability. The SSPA has its flaws, to be sure, but subject to the caveats noted above it marks an
important step forward in the ongoing evolution of the state secrets privilege.
IV: Conclusion The SSPA will not entirely please either critics or supporters of the state secrets status quo.
CPs vs Religious Freedom Adv
1nc Religious Diplomacy CP
CP: The United States federal Government should mandate that all State Department
Diplomats receive courses in religious literacy
Allows the US to utilize effective religious diplomacy
Mandaville and Silvestri, 15 – *Peter, Professor in Government & International Affairs at George
Mason U and ** Sara, Senior Lecturer in Religion and International Politics at City University London and
Director of Research at U of Cambridge (“Integrating Religious Engagement into Diplomacy: Challenges &
Opportunities” 1/29/15, Brookings Institution,
http://www.brookings.edu/~/media/research/files/papers/2015/01/29-religious-engagement-diplomacymandaville-silvestri/issuesingovstudiesmandavillesilvestriefinal.pdf,//BR/)
<In recent years, diplomatic
training schools in the United States and some European countries have begun to offer courses and
religion
and foreign policy. This course, however, is offered on an ad hoc, elective (i.e. non-mandatory) basis and tends to be taken by Foreign
Service officers who are already comfortable with and committed to religious engagement. This means the
capacity of such courses to significantly widen the ranks of those equipped to do such work is limited.10 Similar
efforts run by the British government also operate on an exclusively voluntary basis. The topics covered in such classes also tend to
reinforce existing paradigms for religion in foreign policy—such as international religious freedom and
interfaith work—and as such do not serve to broaden the aperture or take in sectors and issue areas less
commonly associated with religion. The training on religion offered by EU member states and EU institutions for their respective
officials tends to be even more ad hoc than in the United States. For instance, training on Islamism—which generally takes the form of guest
lectures by outside speakers—has been regularly provided to EU officials since Islamic radicalization became a major
issue in the mid-2000s. Yet there is a risk that for lack of experience or bandwidth, European countries end up
uncritically adopting initiatives and approaches created in Washington D.C. or London, without re-adapting them to different
cultural and social system and, simultaneously, importing the many oversimplifications and blind spots that
characterize government approaches to the quite distinct issues of countering violent extremism (CVE) and
Islamist engagement. For training and professional development efforts around religion to truly make a lasting difference, they would
need to be baked into the mandatory preparation that all diplomats receive. The US State Department has
tentatively started a process to explore ways that this can be achieved via the A-100 Class, the basic training platform for all
Foreign Service officers regardless of eventual postings or career specializations. Providing “religious literacy” as a fundamental
diplomatic competency is a complex and fraught undertaking. What are the appropriate approaches and modalities for teaching
seminars on religious engagement. The State Department’s Foreign Service Institute (FSI) now regularly offers a week-long seminar on
these issues given the legal sensitivities and institutional culture concerns raised above? What, precisely, is to be taught? It is unrealistic and
inappropriate to think that purpose of such training would be to teach foreign services officers to think and talk like theologians, or to use religious
reasoning to justify foreign policy or national security interests. Rather, a
“religious literacy” paradigm for training diplomats
would have three core components: 1. World religions and global religious demography – A basic overview of
major world religions including history, core beliefs, and key contemporary institutions/leaders. Introduction to major
trends in religious demography 2. Religion and the advancement of foreign policy interests – A module to introduce diplomats to the
varying roles that religions play in different societies and to develop analytic capacity to better understand
where religion is (and, conversely, is not) relevant to various issues and topics in diplomatic practice. This should also
include coverage of policy areas not previously or conventionally associated with religion. 3. Religious engagement in diplomacy – An
introduction to the practical aspects of engaging with religious leaders, faith-based organizations, and other
religious actors. In addition to protocol issues and questions of cultural sensitivity to faith requirements for example, this module would also help
diplomats develop a capacity to engage the subject matter of their work in terms that relate to values, culture, and
philosophy. The pedagogy here would be informed more by the sorts of questions and debates typical of the humanities—meaning, morality, and
purpose—than by theology, per se. At a time when higher and professional education place an increasing premium on science, technology,
engineering, and math (STEM) subject areas, the clear centrality of religion to international affairs reminds us that the fields comprising the
humanities—philosophy, history, literature, the arts—continue to be of vital importance for the advancement of foreign policy and national security
interests. The introduction of such a curriculum as a core aspect of diplomatic training faces numerous challenges, not least of all the likelihood of
certain objections being raised on principle. Given time pressures and scarcity of resources, any new subject area competing to enter the fray of a
major governmental training system has to compete with other new priority areas as well as well-established topics that already feel they get short
shrift. Such training will also have maximum impact in the shortest amount of time if accompanied by aspects of mid-career training and professional
development tailored for middle managers and senior officials. The
more those in positions of authority are able to appreciate
the importance of religion and religious engagement to fulfilling the mission of the units they lead, the more
likely they are to help those who serve under them to feel incentivized and “safe” in taking some of the risks
associated with religious outreach and engagement. >
1nc Democracy Adv CP
Text: The United States Federal Government should integrate an agenda of
International Religious Freedom into its foreign democracy programs.
Secures the efficacy of democratization
Farr, 9 - Thomas F., Professor of Religion and International Affairs – Georgetown's Edmund A. Walsh
School of Foreign Service and Director – Berkley Center for Religion, Peace, and World Affairs (“The Future
of U.S. International Religious Freedom Policy”, Research Gate,//BR/)
Successfully integrating religious freedom promotion into U .S. policy on democratization and civil society
will require understanding the significant obstacles that exist, both abroad and at home, to doing so. Of all the tasks of
democratic consolidation, embracing religious liberty is, for many cultures, the most difficult. Many majority religious communities (e .g.,
Russian Orthodox, Afghan Sunnis, Indian Hindu nationalists) see religious freedom in general, and U .S . Religious freedom
policy in particular, as a threat to communal identity or an attack on religious tradition. These communities often
seek to maintain a national monopoly over belief and practice by reliance on civil law and policy as a means
of keeping competing religious groups at a disadvantage and retaining their own adherents. The result is public
policies that are incompatible with and destructive of stable democracy, such as anti-apostasy, blasphemy, conversion, and defamation laws.
Moreover, there is a widespread perception in Muslim-majority societies and elsewhere that America’s
democracy promotion policy is fundamentally anti-religious because it seeks a strict separation of religion
from public life and the marginalization of religious ideas and actors in matters of public policy. That
perception extends to U.S. IRF policy, which is often seen as designed to pave the way for American
missionary efforts. When it comes to encouraging religious communities to consider themselves as elements of a broader civil society, U .S.
democracy programs are key. It will be important for those programs not only to target religious communities
but also to fund civil society institutions, religious and secular, that advance religious freedom. Unfortunately,
the United States does not now do this in any systematic way. None of its direct or indirect grant making—e .g. the U .S.
Agency for International Development (USAID), the State Department, the National Endowment for Democracy, the National Democratic Institute,
the International Republican Institute—see religious freedom as critical to the rooting of democracy. While each pays rhetorical tribute to religious
freedom, and each has important individual programs that engage religious actors or communities, none has a comprehensive strategy that integrates
religious freedom into its operational planning or programs.