Court Drones Aff - CFFP
Notes
More advantages will be coming out in Wave 2. Add in your own WOT impacts.
1AC
Plan
The United States federal government should curtail its aerial surveillance by ruling
that such searches constitute a search within the Fourth Amendment and is
unreasonable without a warrant, barring exigent circumstances.
Surveillance State
Domestic drones are rapidly ushering in a total surveillance state
Ghoshray 13 (Dr. Saby [PhD]; “Domestic Surveillance Via Drones: Looking through the Lens of the
Fourth Amendment,” Spring 2013; Lexis )//AJ
This Orwellian dystopia is no imagination. Rather, it may be coming sooner than any of us can imagine.
Welcome to the post-modern America--where society may be heading to a fast track dissent into the
abyss of limitless government surveillance. The domestic drones have arrived, and they are almost ready
to intrude upon our sacrosanct zone of private seclusion. n2 The above scenarios are certainly not this
author's imagination. They are not bad dreams or morbid fantasies either. Instead, they are based on the
recorded incidences of killer drones wreaking havoc in the civilian communities in the rugged mountains of Pakistan, Afghanistan, and
Yemen. n3 The [*581] very same drones are now waiting for either a legislative nod or the regulatory
approval to begin hovering over the byways and alleys of America. Yet, it seems the national discourse
has not awakened to this new reality.
These drones
are relatively cheap to build, remotely controlled, and devoid of emotions and physiological
limitations. Today's drones can both strike with deadly finality n4 and peer deep into individual homes
with see-through imaging capability, n5 high-powered zoom lenses, n6 and night-vision capability.
Drones are enabling the militarized industrial complex to swiftly expand through
discriminatory surveillance and paramilitarized violence
Talai 14 (Andrew, “The Fourth Amendment and Police Discretion in the Digital Age,” 102
Cal. L. Rev. 729, Lexis/SEP)
Law enforcement agencies have begun deploying drones for routine domestic surveillance operations,
unrestrained by constitutional scrutiny. Indeed, Congress has mandated a comprehensive integration of
unmanned aerial systems into the national airspace no later than September 30, 2015. But does the Fourth
Amendment to the United States Constitution proscribe such drone surveillance as an unreasonable search? While this question cannot be easily answered under
conventional precedents, doctrinal inconsistency raises this Comment’s central question: What role will the Fourth Amendment play in an age of pervasive digital
surveillance and limited privacy rights? In the last few decades, the Supreme Court has narrowed its vision of Fourth Amendment rights to an opaque privacy
rationale. The Court has muddled doctrine and strained to avoid difficult issues involving technological progress. A recent example of this phenomenon came in the
2012 decision, United States v. Jones, where the Court paradoxically revived the common law trespass test for Fourth Amendment searches, as a proxy for the
“degree of privacy that existed” at the founding. This Comment argues, instead, for a “pluralist” approach to understanding Fourth Amendment searches that
would—in addition to securing privacy and property—proscribe any search that Copyright © 2014 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of publications. * J.D., University of California, Berkeley, School of Law,
2014; B.A.,
As such, this Comment’s major concern with domestic drone surveillance is not “privacy.” In the vast majority of cases, police will not use
drones to observe “at what hour each night the lady of the house takes her daily sauna and bath.”60 Although this Comment does not focus on
“voyeuristic” or Peeping Tom drones,61 intimate privacy concerns are relevant Fourth Amendment values that deserve protection. To be sure,
one can imagine such distasteful surveillance being used for blackmail and persuasion (among other things), even from public vantage points.
However, those
privacy concerns are being trumpeted so loudly that they have obscured another relevant
problem with drone surveillance—discriminatory sorting through discretionary law enforcement. More
precisely, the fear is “provid[ing] law enforcement with a swift, efficient, invisible, and cheap way of
tracking the movements of virtually anyone and everyone they choose.”62 Police, through legislative
encouragement and judicial acquiescence, now have power—unmatched in history—on the streets of
this country: “a form of paramilitarized violence found in a rapidly expanding criminal justice-industrial
complex, with both ideological and material connections to the military industrial complex.”63 Drone
surveillance is yet another tool in the arsenal of police discretion, including “surveillance,
Drones remove any public anonymity and create an omnipresent Panopticon
Burow 2013 (Matthew L [Candidate for JD @ New England School of Law]; The Sentinel Clouds above
the Nameless Crowd: Prosecuting Anonymity from Domestic Drones; 39 New Eng. J. on Crim. & Civ.
Confinement 443; kdf)
Walking down the street. Driving a car. Sitting on a park bench. By themselves, these actions do not exhibit an iota of privacy. The individual has
no intention to conceal their movements; no confidentiality in their purpose. The individual is in the open, enjoying a quiet day or a peaceful
Sunday drive. Yet as Chief Justice Rehnquist commented,
there is uneasiness if an individual suspected that these
innocuous and benign movements were being recorded and scrutinized for future reference. 119 If the
"uneasy" reaction to which the Chief Justice referred is not based on a sense of privacy invasion, it stems
from something very close to it-a sense that one has a right to public anonymity. 120 Anonymity is the
state of being unnamed. 121 The right to public anonymity is the assurance that, when in public, one is
unremarked and part of the undifferentiated crowd as far as the government is concerned. 122 That right is
usually surrendered only when one does or says something that merits government attention, which most often includes criminal activity. 123
But when that attention is gained by surreptitiously operated UASs that are becoming more affordable
for local law enforcement agencies, 124 "it evades the ordinary checks that constrain abusive law
enforcement practices ... : 'limited police resources and community hostility."' 12 5 This association of public anonymity and privacy is
not new. 126 Privacy expert and Columbia University Law professor Alan F. Westin points out that "anonymity [] occurs when the individual is
in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance." 127 Westin continued by
stating that: [A person] may be riding a subway, attending a ball game, or walking the streets; he is among people and knows that he is being
observed; but unless he is a well-known celebrity, he does not expect to be personally identified and held to the full rules of behavior and role
that would operate if he were known to those observing him. In this state the individual is able to merge into the "situational landscape." 128
While most people would share the intuition of Chief Justice Rehnquist and professor Westin that we expect some degree of anonymity in
public, there is no such right to be found in the Constitution. Therefore,
with a potentially handcuffed judiciary, the
protection of anonymity falls to the legislature. Based on current trends in technology and a keen
interest taken by law enforcement in the advancement of UAS integration into national airspace, it is
clear that drones pose a looming threat to Americans' anonymity. 129 Even when UASs are authorized for noble uses
such as search and rescue missions, fighting wildfires, and assisting in dangerous tactical police operations, UASs are likely to be
quickly embraced by law enforcement for more controversial purposes. 130 What follows are compelling
interdisciplinary reasons why the legislature should take up the call to protect the subspecies of privacy that is anonymity. A. Philosophic: The
Panopticon Harm Between 1789 and 1812, the Panopticon prison was the central obsession of the renowned English philosopher Jeremy
Bentham's life. 131 The Panopticon is a circular building with cells occupying the circumference and the guard tower standing in the center. 132
By using blinds to obscure the guards located in the tower, "the keeper [is] concealed from the observation of the prisoners ... the sentiment of
an invisible omnipresence."'133 The effect of such architectural brilliance is simple: the lone fact that there might be a guard watching is
enough to keep the prisoners on their best behavior. 134 As the twentieth-century French philosopher Michel Foucault observed, the major
effect of the Panopticon is "to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of
power."'135 In Bentham's vision,
there is no need for prison bars, chains or heavy locks; the person who is
subjected to the field of visibility of the omnipresent guard plays both roles and he becomes the subject
of his own subjection. 136 For Foucault, this "panopticism" was not necessarily bad when compared to other methods of exercising
control as this sort of "subtle coercion" could lead people to be more productive and efficient members of society. 137 Following Foucault's
reasoning, an
omnipresent UAS circling above a city may be similar to a Panopticon guard tower and an
effective way of keeping the peace. The mere thought of detection may keep streets safer and potential
criminals at bay. However, the impact on cherished democratic ideals may be too severe. For example, in a case
regarding the constitutionally vague city ordinance that prohibited "nightwalking," Justice Douglas commented on the importance of public
vitality and locomotion in America: The difficulty is that [walking and strolling] are historically part of the amenities of life as we have known
them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our
people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have
honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed,
suffocating silence. 138 As Justice Douglas understood, government
surveillance stifles the cherished ideal of an
American society that thrives on free-spiritedness in public. 39 Without the right to walk the streets in
public, free from the fear of high surveillance, our American values would dissipate into that
resembling a totalitarian state that attacks the idea of privacy as immoral, antisocial and part of the
dissident cult of individualism. 140
Dehumanization effect of drones is the same type that empirically leads to genocidal
warfare
Burow 2013 (Matthew L [Candidate for JD @ New England School of Law]; The Sentinel Clouds above
the Nameless Crowd: Prosecuting Anonymity from Domestic Drones; 39 New Eng. J. on Crim. & Civ.
Confinement 443; kdf)
This Note has explored the philosophical and psychological effects of panoptic surveillance and the need for protection.2 29
A mere suspicion of a
UAS flying high in sky can have a chilling effect on democracy that most Americans would consider
intolerable. 230 But what about the psychological changes UASs will bring about in law enforcement? The following is an excerpt from a news report on the
mindset of UAS pilots who operate military drones in overseas combat missions: Bugsplat is the official term used by US authorities
when humans are killed by drone missiles .... [I]t is deliberately employed as a psychological tactic to
dehumanise targets so operatives overcome their inhibition to kill .... It was Hitler who coined this
phraseology in Nazi Germany during the Holocaust. In Mein Kampf, Hitler refers to Jews as vermin (volksungeziefer) or parasites
(volksschtidling). In the infamous Nazi film, Der ewige Jude, Jews were portrayed as harmful pests that deserve to die. Similarly, in the Rwandan
genocide, the Tutsis were described as "cockroaches." This is not to infer genocidal intent in US drone
warfare, but rather to emphasise the dehumanising effect of this terminology in Nazi Germany and that
the very same terms are used by the US in respect of their Pakistani targets. 231 Will John and Jane Doe-the casual
saunterer-become part of the next group of bugs that must be swatted in the name of effective law
enforcement? In answering that question, we should look to the skies once again and pray to the better angels of
our nature for a worthy answer.
Executive’s unfettered discretion with drones leads to non-stop fear and oppressive
psychological effects
Holmes 09 – Professor of Law, NYU Law School (Stephen, “In Case of Emergency:
Misunderstanding Tradeoffs in the War on Terror,” 97 Calif. L. Rev 301, SEP)
Indeed,
it is “important to remember that governments and law enforcement agencies often abuse their
power.”74 As President Obama acknowledged in his State of the Union address, “[I]n our democracy, no one should just take my word for
it that we’re doing things the right way.”75 To be sure, the Supreme Court has long recognized that the Fourth Amendment “does not
contemplate the executive officers of Government as neutral and disinterested magistrates.”76 Having neutral actors necessarily limits
discretion in order to safeguard the relationship between citizen and government in a democratic society.77
Giving executive officers
discretion over powerful technology can shift this balance. For example, drones have blanketed the skies
in Pakistan since at least 2009—the first strike is widely believed to have occurred in 2004.78 Pakistani
victims of U.S. extraterritorial drone strikes live in constant fear of their power. One such victim
recounts living under drones twenty-four hours per day: “I have been seeing drones since the first one
appeared about four to five years ago.”79 He went on to explain: “People are afraid . . . , they are all
psychologically affected. They look at the sky to see if there are drones.”80 These extraterritorial
accounts are illustrative: the drone’s capabilities alone inspire fear and induce an oppressive
psychological effect without actually or continuously being present. As Justice Sotomayor has recognized:
Government’s unrestrained power to assemble data . . . is susceptible to abuse. The net result is that . . . monitoring—by making available at a
relatively low cost such a substantial quantum of . . . information about any person whom the Government, in its unfettered discretion, chooses
to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.”
War on Terror
An emboldened and unchecked executive is leading the massive expansion of drones
in domestic law enforcement
Ghoshray 13 (Dr. Saby [PhD]; “Domestic Surveillance Via Drones: Looking through the Lens of the
Fourth Amendment,” Spring 2013; Lexis )//AJ
n7 This
emerging new reality will soon be at the horizon of American social landscape for various
reasons. First, the public proclamation of success in containing al-Qaeda n8 has emboldened the current
administration. This has created a fertile ground for law enforcement agencies in various states to
deploy drones for domestic surveillance. n9 Second, previously limited as an aid in border protection,
n10 drones have now become a desirable necessity for law enforcement across the nation. n11 Third,
despite the federal [*582] government's reluctance in allowing pervasive use for fear of aviation safety,
n12 recent presidential declarations n13 and congressional authorization n14 has brought this droneinduced Orwellian dystopia into palpable reality. Domestic drones have the potential to obliterate
individual privacy and transmogrify the traditional way of life. Yet, the public hue and cry is well muted. Why? This
Article examines the issue in two threads. In the first, it dissects the factors that brought us face-to-face with this impending reality. In the
second, it analyzes a set of constitutional, ethical, and philosophical reasons for the illegitimacy of future deployment of domestic drones. Thus,
this Article proceeds as follows:
Courts are highly deferential on executive counterterrorism and surveillance policies
Deeks 13 – Associate Professor of Law, University of Virginia Law School (Ashley S., The
Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference, 82
Fordham L. Review, 827, 2013,
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4941&context=flr)
One of the core tenets of national security doctrine is that courts play a deeply modest role in shaping
and adjudicating the executive’s national security decisions. In most cases, courts use abstention
doctrines and other tools to decline to hear such cases on the merits. When courts do hear these cases,
they often issue decisions that are highly deferential to executive choices.1 The courts’ behavior in the
wake of the September 11, 2001 attacks largely bears this out: courts have declined to reach the merits
of almost all of the cases challenging executive policies on renditions, detainee treatment and transfers,
lethal targeting, and warrantless wiretapping.2 And even where the courts have stepped in, they have
focused on the decisional processes that surround executive decisionmaking, rather than on the
substance of those decisions themselves.3 Some national security scholars celebrate this state of
affairs.4 In their view, courts are structurally ill equipped to assess the executive’s intelligence and
security calculations, which often must be made rapidly and which carry important foreign policy
implications. These scholars also believe that the executive is far more accountable to the public than
courts, such that its decisions will be guided and tempered by the public will. Other scholars, in contrast,
bemoan the absence of courts from the playing field.5 To them, the executive has undue incentives to
emphasize security values over liberty values, and only a vigorous judicial role can counter that. More
broadly, these scholars view robust judicial deference to the executive as weakening a critical tool by
which to inhibit a single branch of government from accruing undue power. Both camps tend to assume,
however, that the courts do play only a limited role in executive calculations about appropriate national
security policies.
Multiple reasons deference undermines executive decision-making in
counterterrorism
First is groupthink – the lack of a need to justify decisions to an external actor creates
insular decisions driven by confirmation bias
Holmes 09 - Walter E. Meyer Professor of Law, New York University School of Law (Stephen, 97
Calif. L. Rev. 301, “In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror”, Lexis)
The most disastrous result of the Bush administration's hostility to adversarial decision making
was the choice to invade Iraq. None of the many books and articles published about the run-up to
the war has managed to discover any trace of a serious debate or discussion, even inside the
executive branch, of the pros and cons of the war. Such a serious and informed debate did [*329] not occur in Congress
either. Members of Congress were presumably reluctant to assume serious responsibility for such a momentous choice, and the voting public,
having been led to believe that Saddam Hussein was somehow responsible for 9/11, would very likely have punished any elected representative
who did not favor retaliation against the alleged perpetrators of the attacks. On the other hand, Congress may not have passed the AUMF of
2002 if certain of its key members had not been deliberately deceived by executive-branch prevarication. n61
Eric Posner
and Adrian Vermeule argue, first, that Congress and especially the courts are less well-informed
about terrorism than experts in the executive branch and, second, that representatives and judges
are subject to the same cognitive biases that plague the president and his agents. Because judges,
in particular, lack national-security expertise, they assert, non-deferential review cannot, on
balance, increase executive effectiveness in the area of counterterrorism. n62 This argument is a
non sequitur. That the executive branch acting alone is more effective than the judicial or
legislative branches acting alone does not imply that the executive branch acting alone is more
effective than the executive branch acting in coordination with the other branches. Indeed, the claim that an
To refute the Founders' claim that the executive branch will, on balance, perform better if compelled to give plausible reasons for its actions,
executive agency will, on balance, perform best when it is never observed or criticized would not be worth discussing were it not so vehemently advanced in defense
of the executive-discretion agenda. The liberty which one-sided advocates of extralegal executive discretion find most odious is the right of citizens and their elected
representatives to demand that the executive branch provide plausible reasons for its actions. If a government no longer has to provide plausible reasons for its actions,
however, it is very likely, in the relative short term, to stop having plausible reasons for its actions. n63
Its capacity for secrecy and dispatch, as mentioned, qualifies the executive branch for acting effectively in a crisis. But such institutional
It
is not at all obvious that its hierarchical structure makes the executive capable, in bunkered
isolation from the other branches, to analyze intelligently a changing and complex national[*330] security environment, to rank various difficult-to-compare threats according to their
gravity and urgency, and to make delicate security-security tradeoffs in a responsible fashion. It has
advantages do not necessarily make the executive the most qualified branch for understanding the shape and scope of an unprecedented threat.
often been insinuated - but never proved - that compelling national-security officials to testify before congressional committees and to explain
their interpretation of the country's national-security environment will have a detrimental chilling effect on zealous counterterrorism efforts.
Reporting requirements can admittedly be onerous. But the assumption that legislative oversight will, on balance,reduce the thoughtfulness
with which the executive branch approaches security-security tradeoffs is questionable.
It should also be said that the executive branch cannot hide from Congress, the courts, the public,
and the press, without hiding from itself as well. Indeed, one of the main reasons why the Bush administration was
reluctant to explain itself to the public was apparently that a small group of fallible individuals inside the Defense Department and the Office of
the Vice President wanted to make sure that their bureaucratic rivals in other executive agencies, such as the State Department, did not learn of
game-changing decisions until it was too late to reverse them. Secrecy was invoked not only to protect national security but, less justifiably, "to
avoid dissent" from other executive-branch officials. n64 The
personal hostility, turf warfare, and information
hoarding that afflicts America's national security bureaucracies is probably more paralyzing than
the government's general commitment to due process or checks and balances. Judge Richard
Posner himself contends that intra-executive pathologies such as bureaucratic fragmentation and
duplication, unclear chains of command, failure to standardize security clearances, and
investment in the wrong set of employee skills pose greater obstacles to effective
counterterrorism than congressional or judicial micromanagement. n65 The extent to which Bush's
counterterrorism policy led executive agencies to withhold important secrets from each other is startling, among other reasons, because the
Bush administration originally singled out the wall between national-security agencies as an important source of governmental dysfunction in
the run-up to 9/11.
Second is resource misdeployment - Executive deference in counterterrorism leads to
systemic analytical failures and misuse of resources and information
Huq 12- Assistant Professor of Law, University of Chicago Law School (Aziz H., “Structural
Constitutionalism as Counterterrorism,” August, 2012, Lexis)
Executive primacy has surprising costs. Evidence suggests that analytic failures are common in federal
counterterrorism policy. n157 Much effort is currently wasted or misdirected, while resources and
information are poorly deployed. Consider as illustration the Christmas 2009 attempt by Nigerian
national Umar Farouk Abdulmutallab to explode a bomb aboard Northwest Airlines Flight 253 from
Amsterdam to Detroit. Two months earlier, Saudi officials had warned U.S. authorities that an attack of
the type Abdulmutallab tried was being planned in Yemen. n158 Weeks before the attempt,
Abdulmutallab's father approached the CIA in Lagos to warn them of his son's links to Yemeni terrorist
groups. n159 Nothing was done. Subsequent presidential and congressional inquiries found an "overall
systemic failure": intelligence agencies had "dots [that] were never connected." n160 Far from an
isolated incident, this failure appears symptomatic. Five years beforehand, the National Commission on
the Terrorist Attacks upon the United States reached a similar diagnosis respecting 9/11. It found that "no
one was firmly in charge of managing [threat information] ... and able to draw relevant intelligence from
anywhere in the government" about the 9/11 attacks. n161 A similar failure of analysis preceded the deadly
November 5, 2009, shootings at Fort Hood, Texas, n162 where the military intelligence unit tasked with
tracking internal threats focused instead on student associations n163 that were more readily analyzed but
ultimately harmless. It is clear, therefore, that the executive branch has not wholly heeded the 9/11
Commission's warnings. To summarize, the internal architecture of national security institutions within
the executive branch can hinder just as much as it can foster rapid, informed responses to terrorism.
Presidential control through Article II's assumed unitary hierarchy provides no panacea. There is hence
no reason to believe that executive responses to terrorism will either be optimal or even as accurate,
timely, and efficient as is generally believed. The institutional competence logic of pro-executive
structural constitutional presumptions thus rests on shaky ground.
All the deference rationales for counterterrorism policy are wrong and uniquely
unwarranted in the domestic sphere
Cover 14 - Assistant Professor of Law, Case Western Reserve University School of Law;
Director, Institute for Global Security Law and Policy
(Avidan, Cardozo Law Review, “Presumed Imminence: Judicial Risk Assessment in the post9/11 World,” 5 Cardozo L. Rev. 1415, Lexis/SEP)
Arguments favoring judicial abdication because of temporary and possibly exigent circumstances are
less persuasive in light of the seeming permanence of the terrorism threat. n274 It is hardly clear when
the threat [*1454] of terrorism will abate. While the government may no doubt be viewed as a
provider of security, it is also a protector of civil liberty. n275 Where the nation is now so fully consumed
by prevention of catastrophic terror attacks and susceptible to cognitive errors, it is incumbent on
judges in a perpetual crisis not to presume imminence but to test the government's risk assessments.
Second, proponents argue that deference is justified in the national security arena because of foreign
and international relations, which are highly sensitive and demand discretion from the
executive branch. Roberts invoked this rationale in Humanitarian Law Project, deferring to
the government's contention that teaching peaceful advocacy to the PKK could upset
relations with Turkey.n276
If Humanitarian Law Project has a limiting principle, it would appear to be its national security and
foreign affairs context. Critical to the decision was that it concerned material support of a
foreign terrorist organization. n277 Although not situated in the "wartime" context of several
of the Court's post-9/11 decisions, n278 the rationale for deference hinges on similar
reasoning. Thus, one might expect that decisions addressing similar communication or teaching of
human rights law to a domestic terrorist organization would come out differently. n279
But there is good reason to question the extent of this limitation. The increasingly globalized
and interconnected world raises questions about the elasticity and malleability of this theory
ofdeference in the terrorism context. The most domestic of threats may well have
an [*1455] international dimension or a foreign connection. n280 Thus, the logical stopping
place of this rationale is unclear.
Third, deference advocates argue that national security issues are of a highly complex and classified
nature, which courts are not competent to handle or assess. Without full information about
potential harms and the expertise to make risk assessments, courts are not equipped to
determine whether the government's infringement of a particular liberty is appropriate. n281
Kennedy articulated the expertise rationale in Boumediene: in contrast to members of the
other branches, most judges do not "begin the day with briefings that may describe new
and serious threats to our Nation and its people." n282 Though the dissenters in Boumediene
criticized its employment as a rhetorical pose, n283 Roberts reified the rationale in
Humanitarian Law Project at the heart of his opinion. n284
Relatedly, deference may be rationalized because the objective in the terrorism context is
prevention, not prosecution. n285 As a result, the government may rely on intelligence
standards as opposed to those utilized in the criminal context. n286 Courts are not familiar
with the intelligence area and are therefore not qualified to evaluate the evidence that the
government may rely on.n287 Finally, deference may be urged due to the lack of precision or
quantification of likelihood of an attack. n288
[*1456] The expertise rationale ignores the fact that courts review the decisions of experts in a
myriad of highly complex subjects. n289 Judges also may be at a greater advantage in terms of
determining the accuracy of information because of the adversarial process, which allows them to weigh
contrary information that executive officials might not have incentive to consider. n290Article III courts
have, of course, overseen scores of terrorism cases, both of domestic and international
dimensions. n291 As for the secretive nature of certain subjects, there are procedures in place that have
permitted courts to have access to classified information. n292 Finally, specialized courts have also
been created that allow for judicial review of information with standards distinct from those
in traditional Article III courts. n293
[*1457] Concerning the lack of quantification, some scholars argue that terrorism risk
analysis can be undertaken as it is in other areas, where threats are analyzed "as a matter
of course," such as nuclear power plant accidents and environmental
protection. n294 Moreover, private entities, such as insurance companies, and various private
and governmental risk analysts commonly engage in the admittedly difficult enterprise of
predicting terrorist attacks. n295
[*1458] Deference can finally be rejected because experts are not always right. n296 Indeed, experts
are often political actors whose predictions and assessments may be both a product of fear of blame
and accountability and objective analysis. n297 Moreover, judicial review that entails an honest
discussion of risk assessments can play an important role in a democratic society; how we deal with the
risks we face should not be left only to the experts. n298
Solvency
Only court action on aerial surveillance solves privacy backsliding, keeps up with
technology, and provides law enforcement with legal bright lines
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT UNREASONABLE
SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
IV. ENSURING A REASONABLE FUTURE BY PREVENTING UNREASONABLE UAS SURVEILLANCE Speaking for the Supreme Court in Kyllo, Justice
Scalia acknowledged that technological advances have reduced the privacy [*489] protections granted by the Fourth Amendment. n252 In
Justice Scalia's mind, the primary issue facing the Court was "what limits there are upon this power of technology to shrink the realm of
guaranteed privacy." n253 Attempting to determine how courts might decide the constitutionality of warrantless UAS surveillance of the home
and its curtilage is context-dependent, and ultimately speculative. n254 As one author has noted, if
UAS surveillance is not a Fourth
Amendment search, then the "realm of guaranteed privacy" referred to by Justice Scalia would not just
be shrunk, but eliminated. n255 Even if UAS surveillance is currently a search subject to the Fourth Amendment that status may be
lost as UAS flights become routine. n256 Furthermore, the Fourth Amendment does not currently protect anyone's
privacy from UAS surveillance, even for extended periods, when they are in public or other open areas.
n257 To ensure that privacy will be protected from the threat posed by UAS surveillance, a new rule
should be added to current Fourth Amendment jurisprudence. Courts should hold that all UAS
surveillance by law enforcement constitutes a search within the meaning of the Fourth Amendment,
and is presumptively unreasonable without a warrant. n258 Under this rule, all warrantless UAS surveillance
used for law enforcement purposes such as criminal investigation, targeted surveillance, and monitoring
property or zones, would violate the Fourth Amendment regardless of where the surveillance took
place. n259 [*490] The justification for this rule should be grounded in the unprecedented technological
capabilities of UAS and the unique threat they represent to privacy. n260 Although the Supreme Court has heard
challenges to law enforcement's use of aerial surveillance, sense enhancing devices, and electronic tracking, it has never considered anything
like UAS, which combine all three capabilities. n261 Historically, the cost of using personnel for traditional surveillance placed a practical
limitation on police surveillance which acted to protect privacy. n262 The affordability of UAS could eliminate this constraint on excessive police
presence and dramatically increase the potential for abuses. n263 In addition,
UAS' small size and silent operation allow them
to operate in relative stealth. n264 Citizens could be observed by law enforcement without ever knowing
they were under surveillance. n265 Although UAS are not invasive by causing "undue noise ... wind, dust, or threat of injury," they
may actually be more intrusive than conventional aircraft. n266 Because people will not have notice of UAS' approach or presence, they will be
unable to keep private those activities which they do not wish to expose to public view. n267 UAS
technology has been described
as providing law enforcement with "permanent, multi-dimensional, multi-sensory surveillance of citizens
twenty-four hours per day." n268 Some have gone as far as claiming that UAS give law enforcement capabilities reserved for deities.
n269 As such, UAS present the potential for unprecedented law enforcement abuses which would be
prevented by the warrant requirement proposed here. [*491] Not only will this proposed rule ensure
that the Fourth Amendment remains the guarantor of privacy, but it provides other advantages as well. n270 First, it
draws a bright-line rule for police who will not have to determine in advance whether or not their
actions are constitutional each time they want to use a UAS in a new context, or when they are armed with a new
technology. n271 Similarly, the courts will not lag behind each new technological advance in UAS technology
because a warrant will always be required. n272 Finally, and most importantly, the rule will accomplish what
current jurisprudence cannot: it will prevent Fourth Amendment protections from being left "at the
mercy of advancing technology." n273 The Supreme Court has established precedent for adopting the
rule proposed here. n274 In Katz, the Court shifted the basis of finding that a Fourth Amendment search had occurred from a physical
trespass to an intrusion on a reasonable expectation of privacy. n275 In doing so, the Court demonstrated its willingness to adopt new rules to
ensure that privacy is protected from threats posed by new technologies. By adopting the rule proposed here, the
courts would be
acting in accordance with the precedent from Katz and would guarantee that UAS technology remains
within the scope of Fourth Amendment protections.
A Supreme Court ruling on aerial surveillance is uniquely key to revitalizing 4th
Amendment’s ability to protect privacy and to stop the onslaught of advancing
technologies
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT UNREASONABLE
SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
[*493] The Katz reasonable expectation of privacy test has been criticized for its circular nature. n284 As long as UAS surveillance remains sufficiently rare, an
individual's expectation of privacy is considered reasonable and it is protected from government intrusion by the Fourth Amendment. n285 Once
UAS
flights become routine, the expectation of privacy is no longer reasonable and its protection is removed.
n286 The result becomes a "paradoxical situation in which law enforcement overreach is legitimized once
it becomes routinized." n287 This could happen as early as 2015 when UAS can be fully integrated into U.S. airspace. n288 Equally
disconcerting is the fact that the Supreme Court's estimation of what society considers reasonable is not necessarily accurate. n289 Justice Scalia facetiously
observed that "unsurprisingly, those "actual (subjective) expectations of privacy' "that society is prepared to recognize as reasonable' bear an uncanny resemblance
to those expectations of privacy that this Court considers reasonable." n290 For example, poll
results indicate that the American public
opposes the use of UAS for routine police work. n291 According to the Court however, if the police used UAS to track
people in public, they would lack constitutional protection because those people have no reasonable
expectation of privacy. n292 Considering these problems with the Katz formulation, some have argued that the protection of
privacy, especially pertaining to sophisticated technologies such as UAS, should be removed from the
courts and given to the legislature. n293 The problem with this solution is that it essentially concedes that,
in the absence of legislation, the [*494] Fourth Amendment cannot protect privacy rights against the government's
use of sophisticated technologies. n294 Instead, the courts need to adopt a novel jurisprudence to protect
actual privacy expectations, rather than defer to Congress. V. CONCLUSION Under the Supreme Court's
current jurisprudence, it is only a matter of time before the Fourth Amendment will no longer be able to
provide protection from warrantless UAS surveillance, even in the home. n295 The answer to the question
posed by Justice Scalia in Kyllo should not be that technology has the power to "shrink the realm of
guaranteed privacy" to the point of elimination. n296 This is especially true given the Court's articulated
concern that it "assures preservation of that degree of privacy against government that existed when
the Fourth Amendment was adopted." n297 Although the original degree of privacy is difficult to ascertain, allowing the
government to use a UAS outfitted with facial recognition software or high-powered cameras to silently
track individuals for extended periods of time without a warrant hardly seems to qualify. n298 Equally unlikely is
the idea that Congress, rather than the Constitution, was expected to be the guarantor of privacy protections at the time the Fourth Amendment was adopted.
n299 It
is clear that the courts need a new approach to their Fourth Amendment jurisprudence to protect
privacy from a technological onslaught. Requiring a warrant for all UAS surveillance will ensure that even
the widespread use of UAS will not erode society's legitimate privacy expectations.
Prescribed evidentiary standards reverse misplaced judicial deference and foster
better executive probability analysis of terrorism
Cover 14 - Assistant Professor of Law, Case Western Reserve University School of Law;
Director, Institute for Global Security Law and Policy
(Avidan, “Presumed Imminence: Judicial Risk Assessment in the post-9/11 World,” 5
Cardozo L. Rev. 1415, Lexis/SEP)
Researchers found, in a series of studies, that judgments of blameworthiness for failing to prevent an
attack are far more likely to affect anti-terror budget priorities than probability judgments. n311The
authors of these studies concluded that because people blame policy makers more for high
consequence events than for more probable ones, n312 policy makers will be tempted to "prevent
attacks that are more [*1461] severe and more upsetting without sufficiently balancing the attack's
likelihood against its outcome." n313 To counteract this emotional tendency, these authors
suggested that policy makers explicitly consider likelihood data in formulating
counterterrorism policy. n314
Similarly, without prescribed evidentiary standards, courts are likely to craft opinions that defer to the
government's interpretation of evidence and ignore probability and imminence, often by diluting the
evidentiary requirements to the point where they favor the government. Indeed, Roberts decried
the dissent's call in Humanitarian Law Project "demanding hard proof - with "detail,'
"specific facts,' and "specific evidence,' - that [the] proposed activities will support terrorist
attacks." n315 Rather, it was sufficient to rely on the Blood and Belief-sourced notion that "[a]
foreign terrorist organization introduced to the structures of the international legal system
might use the information to threaten, manipulate, and disrupt." n316 And Roberts was
content to rely simply on the idea that "this possibility is real, not remote." n317 But failing to
require any demonstrable risk when the First Amendment and national security conflict, invites
imaginings of the possible and plausible, without sufficient regard for the probable. Applying such a rule,
Breyer argued, will grant the government a victory in every instance. n318
Breyer's and Roberts's dispute over the quantum of evidence required to establish a
connection between the human rights advocates' speech and terrorist attacks reverberates
in the lower courts. This has played out most fully in the post-Boumediene litigation in the
D.C. Circuit and district courts. In most instances, the D.C. Circuit has crafted evidentiary
standards that benefit the government. n319
For example, the D.C. Circuit has held that the government need only show by a
preponderance of the evidence that a detainee is a member of Al Qaeda or an associated
force. n320 Yet, many of the judges have chafed at the higher preponderance standard,
advocating a lesser burden of proof. n321 Furthermore, at least one D.C. Circuit member
has [*1462] contended that the courts' opinions merely invoke the "preponderance of the
evidence standard while in fact requiring nothing more than substantial evidence to deny
habeas petitions." n322 Not content with the reduced burden of proof, the D.C. Circuit has
also held that government intelligence reports enjoy a presumption of regularity. n323 The
D.C. Circuit has also insisted that courts undertake "conditional probability analysis," or a
"mosaic approach," which entails reviewing evidence collectively, as opposed to in
isolation. n324
The practical effect of these decisions has been to, in the words of D.C. Circuit Judge David
Tatel, "move the goal posts" and "call[] the game in the government's
favor." n325 Humanitarian Law Project and the [*1463] post-Boumediene litigation
demonstrate that in the absence of clearly prescribed evidentiary standards, courts will craft
a set of standards that support the government's contentions, fearful of both the potential
for harm and the public's ire. n326
Thus, my proposal requires that burdens of proof be placed squarely on the government and that
presumptions about evidence should not tilt against the person or group whose liberty interest has been
implicated. This proposal does not ignore valid security interests or call the game in favor of civil
liberties. What it does recognize, however, is that the government - and judges - often overstate the
harm, the probability, and the imminence of terrorist threats.
In order to justify a limitation on a liberty interest, the government must provide specific evidence
supporting its assessments of the danger, probability, and imminence of a terrorist attack. Evidence
must rise above generality and speculation. n327 Courts should also adopt Cristina Wells's proposed
refined balancing, which entails clarifying the interests implicated and examining the government's
evidence supporting curtailment of the protected activity. n328 A prescribed set of questions or
checklist might have the salutary effect of moving judges from an intuitive process to a
more deliberative one. n329
The judicial observer effect provides a counterweight that shifts executive decisionmaking towards more careful procedures as well as rights-sensitive policies
Deeks 13 – Assistant Professor of Law, University of Virginia Law School, Attorney-Adviser in the Office
of the Legal Adviser at the U.S. Department of State (Ashley S., “The Observer Effect: National Security
Litigation, Executive Policy Changes, and Judicial Deference,” 82 Fordham Law Review 2, SEP)
The observer effect provides an important counterweight to the executive’s instinct to prioritize
national security equities at the expense of individual rights because the executive knows that the
courts may be a future audience for its policies. A primary reason to be concerned about allowing the
executive to completely dominate national security decisionmaking is the fear that the executive will
conduct skewed risk assessments, overstate the threat that the country faces, and establish excessively
draconian policies as a result.151 As Cass Sunstein suggests, “[T]he President has a strong incentive to take precautions even if they
are excessive and even unconstitutional.”152 Ensuring some level of ambiguity about whether a court will step in to review a particular policy
helps counteract that bias. Christina Wells notes that the “lack of predictability regarding a court’s approach . . . should force the executive to
consider that the possibility of rigorous judicial review is very real.”153 In her view, advance
knowledge of the existence of
judicial review can force the executive to assume some “pre-decisional awareness of accountability.”154
That is, when the executive understands that it likely will be forced to explain its reasoning after the fact
for particular security policies it adopts, it will think more carefully ex ante about what those policies
should be and weigh a greater number of alternatives.155 While this element has procedural aspects to
it—forcing a more careful and considered process of adopting policy—it also has important substantive
effects. Assuming that courts as a rule will favor policies that are more rights protective than those favored by the executive, this
perception of future judicial oversight will shift the substantive policy in a more rightssensitive
direction.156
Observer effect spills over to other executive policies, particularly when the triggering
case directly implicates individual rights
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
More systemically, the observer effect reminds the executive of the courts’ presence, and so has a
subtle rights-protective influence on a number of executive policies in the wake of a triggering event.
The observer effect tends to work without regard to the subject matter of the specific case or cases on
which a court is focused. But that fact might leave categories of individual plaintiffs out in the cold in
case after case. Assume the courts are aware of and seek to foster the observer effect in the executive.
If the courts decide not to defer only in cases that do not implicate individual rights, and decide to defer
in national security cases that do implicate individual rights, the courts might preserve the observer
effect while failing to serve their function as individual rights protectors. We might conclude that the
observer effect will have some influence in shifting national security policies that do implicate individual
rights, but those changes might be more modest and less satisfying from a rightsprotective approach
than they would be if the cases on which the courts did not defer were individual rights cases. In short,
the observer effect produces a better “second-best” world when the cases in which the courts show less
deference are those that implicate individual rights.
Potential 1AC Advantages
Economy
1AC Module
A recession is imminent, only growth now can keep it from spiraling out of control
The Economist 2015 (Watch out: It is only a matter of time before the next recession strikes. The
rich world is not ready; Jun 13; www.economist.com/news/leaders/21654053-it-only-matter-time-nextrecession-strikes-rich-world-not-ready-watch?fsrc=scn/tw_ec/watch_out; kdf)
THE struggle has been long and arduous. But gazing across the battered economies of the rich world it is time
to declare that the fight against financial chaos and deflation is won. In 2015, the IMF says, for the first time
since 2007 every advanced economy will expand. Rich-world growth should exceed 2% for the first time since 2010 and
America’s central bank is likely to raise its rock-bottom interest rates. However, the global economy still faces all manner of
hazards, from the Greek debt saga to China’s shaky markets. Few economies have ever gone as long as a decade without
tipping into recession—America’s started growing in 2009. Sod’s law decrees that, sooner or later, policymakers will face another
downturn. The danger is that, having used up their arsenal, governments and central banks will not have the
ammunition to fight the next recession. Paradoxically, reducing that risk requires a willingness to keep policy looser for longer
today. The smoke is clearing The good news comes mainly from America, which leads the rich-world pack. Its unexpected contraction in the
first quarter looks like a blip, owing a lot to factors like the weather (see article). The most recent data, including surging vehicle sales and
another round of robust employment figures, show that the pace of growth is rebounding. American firms took on 280,000 new workers last
month. Bosses are at last having to pay more to find the workers they need. In other parts of the rich world things are also looking up. In the
euro zone unemployment is falling and prices are rising again. Britain’s recovery has lost a bit of puff, but strong employment growth suggests
that expansion will continue. Japan roared ahead in the first quarter, growing by 3.9% at an annualised rate. A recovery so broad-based and
persistent is no fluke. Inevitably
fragilities remain. Europe is deep in debt and dependent on exports. Japan
cannot get inflation to take hold. Wage growth could quickly dent corporate earnings and valuations in
America. Emerging economies, which accounted for the bulk of growth in the post-crisis years, have seen better days. The
economies of both Brazil and Russia are expected to shrink this year. Poor trade data suggest that Chinese growth may be slowing faster than
the government wishes. If any of these worries causes a downturn the world will be in a rotten position to do much about it. Rarely
have
so many large economies been so ill-equipped to manage a recession, whatever its provenance, as our
“wriggle-room” ranking makes clear (see article). Rich countries’ average debt-to-GDP ratio has risen by about 50% since 2007. In
Britain and Spain debt has more than doubled. Nobody knows where the ceiling is, but governments that want to
splurge will have to win over jumpy electorates as well as nervous creditors. Countries with only tenuous
access to bond markets, as in the euro zone’s periphery, may be unable to launch a big fiscal stimulus. Monetary
policy is yet more cramped. The last time the Federal Reserve raised interest rates was in 2006. The Bank of
England’s base rate sits at 0.5%. Records dating back to the 17th century show that, before 2009, it had never fallen below 2%; and futures
prices suggest that in early 2018 it will still be only around 1.5%.
That is healthy compared with the euro area and Japan,
where rates in 2018 are expected to remain stuck near zero. When central banks face their next
recession, in other words, they risk having almost no room to boost their economies by cutting interest rates. That
would make the next downturn even harder to escape.
State regs are grounding all drones now because of public outrage—federal action
that mandates warrants reverses the trend
Sorcher 2013 (Sara [Deputy editor of CSMPasscode, covering security & privacy in the digital age]; The
backlash against drones; Feb 21; www.nationaljournal.com/magazine/the-backlash-against-drones20130221; kdf)
The Seattle Police Department’s planned demonstration of its small surveillance drones quickly devolved into a noisy protest. Angry residents attending the
community meeting in October chanted
“No drones!” drowning out officers’ attempts to explain how the unmanned
aerial vehicles would support certain criminal investigations, help out during natural disasters, and assist in
search-and-rescue operations. Now it’s clear that Seattle’s drones, purchased with federal grants, won’t be flying over the metro area anytime
soon. Amid backlash from civil-liberties advocates and citizens worried about government invasion of their privacy, the mayor earlier this month tabled any drone
ambitions—for now. Public concerns are not limited to Seattle. Lawmakers
in at least 11 states want to restrict the use of
drones because of fears they will spy on Americans, and some are pushing to require warrants before
the robots collect evidence in investigations. Just this month, the Virginia General Assembly passed a two-year moratorium on drones. The
outcry comes after the Electronic Frontier Foundation sued last year for a list of drone applicants within the U.S. When that information went public, staff attorney
Jennifer Lynch says, “it really got people up in arms about how drones are being used, and got people to question their city councils and local law-enforcement
agencies to ask for appropriate policies to be put in place to regulate drone usage.” Drones
change the game: Nearly continuous
surveillance could be possible without a physical intrusion such as a property search or an implanted
listening device. The flying robots can carry high-powered cameras, even facial-recognition software or
thermal imaging to “see” through walls. They can hover, potentially undetected, for hours or days at a time. As of yet, however, there
are no laws governing the use of domestic drones when it comes to privacy. Unless Congress or the
executive branch moves to regulate the robots’ use before they take to the skies en masse, states will
likely continue to try to limit or ban drone use altogether, which could stymie their potential for other,
beneficial uses. And failing to enact privacy limits only increases the likelihood of an incident in which
the public perceives that the technology is being misused. The Federal Aviation Administration, which is charged with overseeing
drone implementation in the U.S., says its focus is “totally on safety,” not privacy worries. “We are concerned about how it’s being used only to the extent it would
affect the safety of the operation,” says FAA spokesman Les Dorr. As it happens, domestic drone operations are relatively limited because of safety concerns. The
FAA has issued nearly 1,500 permits since 2007 for the use of drones by public entities, such as law enforcement or fire departments, or by universities conducting
research. Of those, 327 are active. For example, Customs and Border Protection uses drones to keep tabs on the border with Mexico, and NASA deploys them to
monitor hurricanes. But
the sky will open to drones in 2015. A federal law signed last year directs the FAA to safely integrate the unmanned
vehicles into the U.S. airspace by then, paving the way for businesses and other private entities to fly their own drones. With the agency estimating that some
10,000 commercial drones could be flying by 2017, picture this: news outlets surveying damage from natural disasters, or paparazzi snooping on celebrities. And all
18,000 state and local law-enforcement agencies could be potential customers. The FAA last week began searching for six locations to test drones and is asking for
input on privacy protections for these sites. While the agency acknowledges that privacy is an issue that must be addressed, it does not claim overall rule-making
authority. “It’s unclear who’s responsible for privacy issues at this point and time,” says Gerald Dillingham, director of civil-aviation issues at the Government
Accountability Office. “No one has stepped up to the plate.” GAO recommends that the FAA, along with the Justice and Homeland Security departments, discuss
privacy parameters. “If we wait until there’s a crisis, oftentimes the rules and regulations that are made in crisis aren’t our best showing,” Dillingham says. Congress
can also act; Reps. Ted Poe, R-Texas, and Zoe Lofgren, D-Calif., introduced a bill last week requiring warrants for the use of drones in criminal investigations. The
American Civil Liberties Union sees momentum building to put privacy protections in place before the drones become commonplace. It insists that law-enforcement
agencies should not use them for investigations unless authorities have reasonable suspicion they will turn up a specific criminal act. This is a lower threshold than a
warrant, staff attorney Catherine Crump says, because it does not require officers to go to a judge. “We think that standard is what is necessary to prevent lawenforcement agents to engage in purely suspicionless use of drones, flying them around to see what’s going on.” As it stands, “ there’s
really not a lot
in American privacy law that’s going to be much of a barrier to using drones,” University of Washington law professor
Ryan Calo says. Court cases invoking the Fourth Amendment, which guards against unreasonable searches,
largely hold that a person has no reasonable expectation of privacy in public, or from a public vantage point, such as
from an aircraft overhead, Calo says. There are signs, however, that the Supreme Court is reexamining this doctrine. In a case decided last term, five of the justices
objected to police affixing a GPS device to a car without a warrant, and four more objected to the continuous surveillance of a suspect. Drones can achieve the same
goals without touching a vehicle. Calo thus believes that
drones could be the catalyst for much-needed changes to privacy
laws in a nation in which targeted, unchecked surveillance is becoming increasingly possible. The
danger lies in it becoming the norm.
States bans on drones crush the economy
Wolfgang 2013 (Ben; Drone industry predicts explosive economic boost; Mar 12;
www.washingtontimes.com/news/2013/mar/12/drone-industry-predicts-explosive-economicboost/?page=all; kdf)
Drones as weapons and drones
as spies remain matters of intense debate across the country, but the controversial
aircraft are poised to make an impact as something else: economic engines. Private-sector drones — also called unmanned aerial
systems or UAVs — will create more than 70,000 jobs within three years and will pump more than $82
billion into the U.S. economy by 2025, according to a major new study commissioned by the industry’s leading trade group.
But the report, authored by aerospace specialist and former George Washington University professor Darryl Jenkins, assumes that the White House and Congress
stick to the current schedule and have in place the necessary legal and regulatory frameworks. Current law calls for full drone integration into U.S. airspace by
September 2015, but many key privacy questions surrounding UAVs have yet to be answered. There’s also growing doubt that the Federal Aviation Administration
can meet the congressionally mandated timetable. If deadlines are met and drones become commonplace in American skies, some states will be especially big
winners. Virginia, for example, stands to
gain nearly 2,500 jobs by 2017. It also could take in $4.4 million in tax
revenue and see more than $460 million in overall economic activity by 2017, the report says. Virginia would gain the
eighth-most jobs of any state as a result of drone integration. Maryland isn’t far behind, with projections of more than 1,700 new jobs by 2017. California
would be by far the biggest winner in terms of jobs, with more than 12,000 expected. Florida, Texas, New York,
Washington, Connecticut, Kansas, Arizona and Pennsylvania are also expected to be benefit greatly from the coming drone economy. “This is an
incredibly exciting time for an industry developing technology that will benefit society, as well as the
economy,” said Michael Toscano, president and CEO of the Association for Unmanned Vehicle Systems International, a trade group that has existed for more
than 40 years but has come into the public eye only recently. Drone expansion “means the creation of quality, high-paying
American jobs,” Mr. Toscano continued. But the motivation behind Tuesday’s report — arguably the most sweeping look ever at the economic potential of
drones — runs deeper than just dollars and cents. The industry faces an uncertain future in light of growing public paranoia surrounding the craft — paranoia that
has only been heightened by the debate over whether the Obama administration would ever consider using a drone to kill an American on U.S. soil. While the
drones that will be employed by U.S. companies or law enforcement agencies are far different than the military-style UAVs equipped with Hellfire missiles, those
distinctions aren’t always clear. Tuesday’s report not only offered the industry a chance to shine the spotlight on drones’ positive uses and economic potential, but
also served as an opportunity — or, perhaps a warning — to lawmakers seeking to limit UAVs. More than 20 states are considering bills to establish strict guidelines
for what drones can do. Virginia is mulling a measure that would put a two-year moratorium on all government use of drones. Such a measure would be especially
harsh because first-responders such as police and fire departments are expected to be one of the largest markets for UAVs. Like
other growing and
thriving sectors of the economy, the drone business likely will set up shop in friendly environments. “While
we project more than 100,000 new jobs by 2025, states that create favorable regulatory and business environments for the industry and the technology will likely
siphon jobs away from states that do not,” said Mr. Jenkins, the report’s lead author who used to head George Washington University’s Aviation Institute and also is
a former professor at Embry-Riddle University. On another front, the FAA appears to be in danger of missing the congressionally mandated 2015 deadline for drone
integration. The agency just recently began taking applications for its test-site program, where drones will be studied to see how they respond in different climate
conditions and at different altitudes. More than 30 states have expressed interest in the program, but it’s unclear when it will be fully established; further delays put
the 2015 date in even greater jeopardy. “Every
year that we delay integration, the U.S. will lose more than $10 billion
in total economic impact,” Mr. Jenkins said.
Aviation industry key to U.S. econ
Bristol 14 (Teri L. [Chief Operating Officer Air Traffic Organization Federal Aviation Administration];
The Economic Impact of Civil Aviation on the U.S. Economy; June 2014;
https://www.faa.gov/air_traffic/publications/media/2014-economic-impact-report.pdf; jw)
Flying is an inspiring part of American life. It’s a symbol of our freedom, pioneering spirit, and economic success. As
the nation
continues to revitalize itself following the most recent recession, civil aviation has outpaced the national
economy. In 2012, aviation accounted for 5.4% of our gross domestic product (GDP), contributed $1.5
trillion in total economic activity, and supported 11.8 million jobs. Aviation manufacturing also continues
to be the nation’s top net export. The nation’s economic success depends on having a vibrant civil
aviation industry. To support this effort, the FAA remains committed to ensuring the safest, most efficient aerospace system in the world.
We’re focused on the following four strategic priorities: making aviation safer and smarter, delivering benefits through technology and
infrastructure, enhancing global leadership, and empowering the FAA’s workforce so we can innovate. We’re in the process of transforming the
airspace system by deploying the Next Generation Air Transportation System (NextGen). NextGen will make aviation more fuel and cost
efficient, and more environmentally friendly. This
concise report, ideal for policymakers and industry officials, offers
the latest data on the economic impact of civil aviation. It discusses the economic benefits of passenger and cargo
transportation, from activities by commercial airlines, air couriers, airports, tourism, and manufacturing. This version also estimates the
economic impact of general aviation, a uniquely American achievement. In addition to 2012, this report also includes revised economic impact
estimates for the years 2000 to 2009 and newly estimated economic impacts for 2010 and 2011. Flying remains an economic frontier for
America. We see unmanned aircraft and commercial space launches on the horizon. Through these innovations, civil
continue to inspire the next generation, and bring economic prosperity to our lives.
aviation will
Economic decline causes extinction
Richard N. Haass 13, President of the Council on Foreign Relations, 4/30/13, “The World Without
America,” http://www.project-syndicate.org/commentary/repairing-the-roots-of-american-power-byrichard-n--haass
The most critical threat facing the United States now and for the foreseeable future is not a rising
China, a reckless North Korea, a nuclear Iran, modern terrorism, or climate change. Although all of these constitute potential or actual threats, the
biggest challenges facing the US are its burgeoning debt, crumbling infrastructure, second-rate primary and secondary schools, outdated immigration
system, and slow economic growth – in short, the domestic foundations of American power. Readers in other countries may be
Let me posit a radical idea:
tempted to react to this judgment with a dose of schadenfreude, finding more than a little satisfaction in America’s difficulties. Such a response should not be surprising. The US and those
representing it have been guilty of hubris (the US may often be the indispensable nation, but it would be better if others pointed this out), and examples of inconsistency between America’s
practices and its principles understandably provoke charges of hypocrisy. When America does not adhere to the principles that it preaches to others, it breeds resentment. But, like most
temptations, the urge to gloat at America’s imperfections and struggles ought to be resisted. People around the globe should be careful what they wish for.
America’s failure to
deal with its internal challenges would come at a steep price. Indeed, the rest of the world’s stake in American success is nearly as large as
that of the US itself. Part of the reason is economic. The US economy still accounts for about one-quarter of global output. If US growth accelerates, America’s
capacity to consume other countries’ goods and services will increase, thereby boosting growth around the
world. At a time when Europe is drifting and Asia is slowing, only the US (or, more broadly, North America) has the potential
to drive global economic recovery . The US remains a unique source of innovation. Most of the world’s citizens communicate with mobile devices based on
technology developed in Silicon Valley; likewise, the Internet was made in America. More recently, new technologies developed in the US greatly increase the ability to extract oil and natural
gas from underground formations. This technology is now making its way around the globe, allowing other societies to increase their energy production and decrease both their reliance on
costly imports and their carbon emissions. The US is also an invaluable source of ideas. Its world-class universities educate a significant percentage of future world leaders. More
the US has long been a leading example of what market economies and democratic politics can
accomplish. People and governments around the world are far more likely to become more open if the
American model is perceived to be succeeding. Finally, the world faces many serious challenges, ranging from the need
to halt the spread of weapons of mass destruction, fight climate change, and maintain a functioning world
economic order that promotes trade and investment to regulating practices in cyberspace, improving global
fundamentally,
health, and preventing armed conflicts. These problems will not simply go away or sort themselves
out . While Adam Smith’s “invisible hand” may ensure the success of free markets, it is powerless in the world of geopolitics . Order
requires the visible hand of leadership to formulate and realize global responses to global challenges. Don’t
get me wrong: None of this is meant to suggest that the US can deal effectively with the world’s problems on its own. Unilateralism rarely works. It is not just that the US lacks the means; the
multilateralism is much easier to
advocate than to design and implement. Right now there is only one candidate for this role: the US. No other
country has the necessary combination of capability and outlook. This brings me back to the argument that the US must put
its house in order – economically , physically, socially, and politically – if it is to have the resources needed to promote
order in the world . Everyone should hope that it does: The alternative to a world led by the US is not a world led by China, Europe,
Russia, Japan, India, or any other country, but rather a world that is not led at all . Such a world would almost certainly be
characterized by chronic crisis and conflict. That would be bad not just for Americans, but for the vast majority of the planet’s inhabitants.
very nature of contemporary global problems suggests that only collective responses stand a good chance of succeeding. But
Racial Profiling
1AC Module
Domestic drones will have a hugely disproportionate impact on communities of color
Bernd 2015 (Candice; Proposed Rules Regulating Domestic Drone Use Lack Police Warrant
Requirement; Feb 24; www.truth-out.org/news/item/29250-proposed-rules-regulating-domestic-droneuse-lack-police-warrant-requirement; kdf)
"You're not just
talking about the physical border, you're talking about an area that encompasses many
major cities that have large minority populations, and the idea that these drones can be flown with little or no privacy
protections really mean that, people, just by virtue of living in that region are somehow accepting that they have a right to less privacy," she
said. African-American communities could well
feel the disproportionate impacts of the integrated use of
domestic drones and other surveillance in the coming years, as technologies such as StingRay are
already being used mostly in the ongoing war on drugs to track those suspected of selling and buying
drugs. The drug war has long negatively impacted communities of color, based on racialized drug policies
and racial discrimination by law enforcement; two-thirds of all those convicted of drug crimes are people
of color, despite similar rates of drug use among whites and people of color. These already-existing racial
disparities in intrusive policing tactics and deployment of surveillance technologies are one of the
primary reasons civil liberties experts are saying the government often gets it backward when thinking
about privacy issues: deploying intrusive technologies first, and coming up with privacy policies governing their use afterward (when
they may already be violating many people's civil rights). "What we see with StingRays is the same phenomenon that we're seeing with [UAS],
where federal agencies are using them," Guliani said. "State and local agencies are using them. There's federal dollars that are going to buy
them, and we're kind of having the privacy debate after the fact with very little information."
Drones are uniquely enabling the militarized industrial complex to swiftly expand
through discriminatory surveillance and paramilitarized violence
Talai 14 (Andrew, “The Fourth Amendment and Police Discretion in the Digital Age,” 102
Cal. L. Rev. 729, Lexis/SEP)
Law enforcement agencies have begun deploying drones for routine domestic surveillance operations,
unrestrained by constitutional scrutiny. Indeed, Congress has mandated a comprehensive integration of
unmanned aerial systems into the national airspace no later than September 30, 2015. But does the Fourth
Amendment to the United States Constitution proscribe such drone surveillance as an unreasonable search? While this question cannot be easily answered under
conventional precedents, doctrinal inconsistency raises this Comment’s central question: What role will the Fourth Amendment play in an age of pervasive digital
surveillance and limited privacy rights? In the last few decades, the Supreme Court has narrowed its vision of Fourth Amendment rights to an opaque privacy
rationale. The Court has muddled doctrine and strained to avoid difficult issues involving technological progress. A recent example of this phenomenon came in the
2012 decision, United States v. Jones, where the Court paradoxically revived the common law trespass test for Fourth Amendment searches, as a proxy for the
“degree of privacy that existed” at the founding. This Comment argues, instead, for a “pluralist” approach to understanding Fourth Amendment searches that
would—in addition to securing privacy and property—proscribe any search that Copyright © 2014 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of publications. * J.D., University of California, Berkeley, School of Law,
2014; B.A.,
As such, this Comment’s major concern with domestic drone surveillance is not “privacy.” In the vast majority of cases, police will not use
drones to observe “at what hour each night the lady of the house takes her daily sauna and bath.”60 Although this Comment does not focus on
“voyeuristic” or Peeping Tom drones,61 intimate privacy concerns are relevant Fourth Amendment values that deserve protection. To be sure,
one can imagine such distasteful surveillance being used for blackmail and persuasion (among other things), even from public vantage points.
However, those
privacy concerns are being trumpeted so loudly that they have obscured another relevant
problem with drone surveillance—discriminatory sorting through discretionary law enforcement. More
precisely, the fear is “provid[ing] law enforcement with a swift, efficient, invisible, and cheap way of
tracking the movements of virtually anyone and everyone they choose.”62 Police, through legislative
encouragement and judicial acquiescence, now have power—unmatched in history—on the streets of
this country: “a form of paramilitarized violence found in a rapidly expanding criminal justice-industrial
complex, with both ideological and material connections to the military industrial complex.”63 Drone
surveillance is yet another tool in the arsenal of police discretion, including “surveillance,
Racism must be rejected in every instance - independent reason to vote affirmative
Barndt 91 (Joseph R. Barndt co-director of Ministry Working to Dismantle Racism "Dismantling
Racism" p. 155)
To study racism is to study walls. We have looked at barriers and fences, restraints and limitations, ghettos and prisons. The prison of racism confines
us all, people of color and white people alike. It shackles the victimizer as well as the victim. The walls forcibly keep people of color
and white people separate from each other; in our separate prisons we are all prevented from achieving the human potential God intends for us. The limitations imposed on
people of color by poverty, subservience, and powerlessness are cruel, inhuman, and unjust; the effects of uncontrolled power,
privilege, and greed, which are the marks of our white prison, will inevitably destroy us as well. But we have also
seen that the walls of racism can be dismantled. We are not condemned to an inexorable fate, but are offered the
vision and the possibility of freedom. Brick by brick, stone by stone, the prison of individual, institutional, and
cultural racism can be destroyed. You and I are urgently called to join the efforts of those who know it is time to teardown, once and for all, the walls of racism. The
danger point of self-destruction seems to be drawing even more near. The results of centuries of national and
worldwide conquest and colonialism, of military buildups and violent aggression, of overconsumption and
environmental destruction may be reaching a point of no return. A small and predominantly white minority of the global population derives its
power and privilege from the sufferings of vast majority of peoples of all color. For the sake of the world and ourselves, we dare not allow it to
continue.
Drones=Racist
Drones will be used to perpetuate racism
Cyril 2015 (Malkia Amala [under and executive director of the Center for Media Justice (CMJ) and cofounder of the Media Action Grassroots Network]; Black America's State of Surveillance; Mar 30;
www.progressive.org/news/2015/03/188074/black-americas-state-surveillance; kdf)
Today, media reporting on government surveillance is laser-focused on the revelations by Edward Snowden
that millions of Americans were being spied on by the NSA. Yet my mother’s visit from the FBI reminds me that, from the slave pass system to
laws that deputized white civilians as enforcers of Jim Crow, black
people and other people of color have lived for
centuries with surveillance practices aimed at maintaining a racial hierarchy. It’s time for journalists to tell a new
story that does not start the clock when privileged classes learn they are targets of surveillance. We need to understand that data has
historically been overused to repress dissidence, monitor perceived criminality, and perpetually maintain an impoverished underclass. In an era
of big data, the Internet has increased the speed and secrecy of data collection. Thanks to new surveillance technologies, law enforcement
agencies are now able to collect massive amounts of indiscriminate data. Yet legal protections and policies have not caught up to this
technological advance. Concerned advocates see mass surveillance as the problem and protecting privacy as the goal. Targeted surveillance is
an obvious answer—it may be discriminatory, but it helps protect the privacy perceived as an earned privilege of the inherently innocent. The
trouble is,
targeted surveillance frequently includes the indiscriminate collection of the private data of
people targeted by race but not involved in any crime. For targeted communities, there is little to no
expectation of privacy from government or corporate surveillance. Instead, we are watched, either as
criminals or as consumers. We do not expect policies to protect us. Instead, we’ve birthed a complex and coded culture—from jazz to
spoken dialects—in order to navigate a world in which spying, from AT&T and Walmart to public benefits programs and beat cops on the block,
is as much a part of our built environment as the streets covered in our blood. In a recent address, New York City Police Commissioner Bill
Bratton made it clear: “2015 will be one of the most significant years in the history of this organization. It will be the year of technology, in
which we literally will give to every member of this department technology that would’ve been unheard of even a few years ago.” Predictive
policing, also known as “Total Information Awareness,” is described as using advanced technological tools and data analysis to “preempt”
crime. It utilizes trends, patterns, sequences, and affinities found in data to make determinations about when and where crimes will occur. This
model is deceptive, however, because it presumes data inputs to be neutral. They aren’t. In a racially discriminatory criminal justice system,
surveillance technologies reproduce injustice. Instead of reducing discrimination, predictive policing is a face of what author Michelle Alexander
calls the “New Jim Crow”—a de facto system of separate and unequal application of laws, police practices, conviction rates, sentencing terms,
and conditions of confinement that operate more as a system of social control by racial hierarchy than as crime prevention or punishment. In
New York City, the predictive policing approach in use is “Broken Windows.” This approach to policing places an undue focus on quality of life
crimes—like selling loose cigarettes, the kind of offense for which Eric Garner was choked to death. Without oversight, accountability,
transparency, or rights, predictive policing is just high-tech racial profiling—indiscriminate data collection that drives discriminatory policing
practices. As local law enforcement agencies increasingly adopt surveillance technologies, they use them in three primary ways: to listen in on
specific conversations on and offline; to observe daily movements of individuals and groups; and to observe data trends. Police departments
like Bratton’s aim to use sophisticated technologies to do all three. They will use technologies like license plate readers, which the Electronic
Frontier Foundation found to be disproportionately used in communities of color and communities in the process of being gentrified. They will
use facial recognition, biometric scanning software, which the FBI has now rolled out as a national system, to be adopted by local police
departments for any criminal justice purpose. They intend to use body and dashboard cameras, which have been touted as an effective step
toward accountability based on the results of one study, yet storage and archiving procedures, among many other issues, remain unclear. They
will use Stingray cellphone interceptors. According to the ACLU, Stingray technology is an invasive cellphone surveillance device that mimics
cellphone towers and sends out signals to trick cellphones in the area into transmitting their locations and identifying information. When used
to track a suspect’s cellphone, they also gather information about the phones of countless bystanders who happen to be nearby. The same is
true of domestic
drones, which are in increasing use by U.S. law enforcement to conduct routine aerial
surveillance. While drones are currently unarmed, drone manufacturers are considering arming these
remote-controlled aircraft with weapons like rubber bullets, tasers, and tear gas. They will use fusion centers.
Originally designed to increase interagency collaboration for the purposes of counterterrorism, these have instead become the local arm of the
intelligence community. According to Electronic Frontier Foundation, there are currently seventy-eight on record. They are the clearinghouse
for increasingly used “suspicious activity reports”—described as “official documentation of observed behavior reasonably indicative of preoperational planning related to terrorism or other criminal activity.” These reports and other collected data are often stored in massive
databases like e-Verify and Prism. As anybody who’s ever dealt with gang databases knows, it’s almost impossible to get off a federal or state
database, even when the data collected is incorrect or no longer true. Predictive policing
doesn’t just lead to racial and
religious profiling—it relies on it. Just as stop and frisk legitimized an initial, unwarranted contact between police and people of
color, almost 90 percent of whom turn out to be innocent of any crime, suspicious
activities reporting and the dragnet
approach of fusion centers target communities of color. One review of such reports collected in Los Angeles shows
approximately 75 percent were of people of color. This is the future of policing in America, and it should terrify you as much as it terrifies me.
Unfortunately, it probably doesn’t, because my life is at far greater risk than the lives of white Americans, especially
those reporting on the issue in the media or advocating in the halls of power. One of the most terrifying aspects of high-tech surveillance is the
invisibility of those it disproportionately impacts. The
NSA and FBI have engaged local law enforcement agencies and
electronic surveillance technologies to spy on Muslims living in the United States. According to FBI training
materials uncovered by Wired in 2011, the bureau taught agents to treat “mainstream” Muslims as supporters of terrorism, to view charitable
donations by Muslims as “a funding mechanism for combat,” and to view Islam itself as a “Death Star” that must be destroyed if terrorism is to
be contained. From New York City to Chicago and beyond, local law enforcement agencies have expanded unlawful and covert racial and
religious profiling against Muslims not suspected of any crime. There is no national security reason to profile all Muslims. At the same time,
almost 450,000 migrants are in detention facilities throughout the United States, including survivors of torture, asylum seekers, families with
small children, and the elderly. Undocumented migrant communities enjoy few legal protections, and are therefore subject to brutal policing
practices, including illegal surveillance practices. According to the Sentencing Project, of the more than 2 million people incarcerated in the
United States, more than 60 percent are racial and ethnic minorities. But by far, the widest net is cast over black communities. Black people
alone represent 40 percent of those incarcerated. More black men are incarcerated than were held in slavery in 1850, on the eve of the Civil
War. Lest some misinterpret that statistic as evidence of greater criminality, a 2012 study confirms that black defendants are at least 30 percent
more likely to be imprisoned than whites for the same crime. This is not a broken system, it
is a system working perfectly as
intended, to the detriment of all. The NSA could not have spied on millions of cellphones if it were not already spying on black people,
Muslims, and migrants. As surveillance technologies are increasingly adopted and integrated by law enforcement agencies today, racial
disparities are being made invisible by a media environment that has failed to tell the story of
surveillance in the context of structural racism.
Add-Ons
LAPD
Imposing regulations on drone use can effectively balance privacy concerns and help
combat terrorism/crime
Newton 2014 Editor and Writer at the Los Angeles Times (Jim, “Drones and the LAPD”,
http://www.latimes.com/opinion/op-ed/la-oe-newton-column-lapd-drones-20141117-column.html)//
The LAPD acquired a pair of small drones a few months ago from the Seattle Police Department, which dropped its plans to use them after public objections. Los Angeles has not yet deployed
drones
could be deployed in situations where suspects are barricaded or holding hostages and where an aerial
view might be helpful. It's hard to argue with that — who wouldn't want police to have better information before trying to subdue a hostage taker? But the drones are just
one aspect of a profound reconsideration of the relationship between policing and privacy. Especially in the area of fighting terrorism, police are
moving from solving crimes to anticipating them, aided by data mining and other technologies. The new techniques carry with
them the possibility of enhancing public safety, but they give some people the creeps. Jamie Garcia and Hamid Kahn are two of those people. They and
the drones — they remain, as Chief Charlie Beck told me last week, “in the box.” Beck says he's waiting for direction from the Police Commission on what will be allowed, but the
their organization Stop LAPD Spying are leading an effort to stop the department from using drones. At their offices near skid row last week, they warned of what they see as police
militarization. Other communities are wrestling with similar issues, but Garcia and Kahn note that the LAPD's history of police spying makes the debate especially important here. In one sense,
drones are not that big a deal. Unlike unmanned aircraft operated by the military and CIA, these don't carry missiles, and because they hover above ground, they can't see much that isn't
already visible to a police helicopter or even a satellite. A drone, however, is smaller and more readily deployed, and for many people it changes the notion of what's private. Most of us regard
our backyards, for example, as private space, but is that a reasonable expectation now that a helicopter, a satellite or a drone can peer into it without entering the property? Only the LA times
would give these two radical clowns space. They say Drones invade privacy issues yet the group of 20 for this group go to meetings, yell, scream, verbally assault, threaten anyone who doesn't
agree with them. They attend police commission meetings all the time cause... Similarly, a national effort to collect data on “suspicious activity” can feel awfully invasive. Activity as innocent as
taking a photograph of a government building or engaging in lawful, peaceful protest can trigger alarm in post-9/11 America. “We're all concerned about safety,” Kahn told me last week, “but
at what price?” The policing paradigm, he and Garcia argued, has shifted from solving crimes to gathering, storing and sharing information. The result is an overbearing, wasteful attempt to
head off future crimes. Significant numbers of people agree, and 2,000 have so far signed a petition circulated by Stop LAPD Spying urging the department not to use its new drones. Clear,
thoughtful rules are needed for recordings by LAPD Clear, thoughtful rules are needed for recordings by LAPD Beck is well aware of the uneasiness that technology creates — and not just in a
law enforcement context. As he pointed out in our conversation, the
erosion of privacy is playing out in every sector of modern life.
Cameras are ubiquitous, online activity creates information that is useful for commercial purposes and stores collect data to target advertising. “Nobody knows more about me than the Vons
where I shop,” Beck said. “We are very rapidly entering a time when everyone will know everything about everybody.”
There is, however, a special burden on law
enforcement to gather and use information with care. The local Vons may know a lot about its customers, but it can't arrest them. Recognizing that
— and aware that the LAPD in the 1980s was roundly criticized for spying on its critics — Beck said he's approaching the use of drones with
unusual caution. His staff is working with the ACLU to develop a draft policy on the use of the small aircraft, and they hope to
present a recommendation to the Police Commission in a few weeks. The commission will then hold public hearings before finalizing a
policy. Kahn and Garcia want the department to forswear the drones altogether. That seems unlikely. Rather than leave his drones in the box, Beck proposes to
operate them with clear rules and sound, civilian oversight — ideas that have been fundamental in addressing other
LAPD issues such as racial bias and use of excessive force. Having rules in place may not be much comfort to the person who looks up from his backyard and sees
an LAPD drone overhead. But it could, at least, ensure that the devices are used to fight crime, not to spy or harass.
Terrorist attack on Los Angeles destroys the economy and escalates
Lawrence 2012 won the David Gemmell Legend Awards (Mark, “Could You Fight a Terrorist? How to
Survive a Terrorist Attack on Downtown Los Angeles”,
http://www.secretsofsurvival.com/survival/downtown-los-angeles-brutal-terrorist-attack.html)//AN
It's no secret that terrorists have been crossing both the Mexican and Canadian borders into the US. Several terrori
sts have reportedly been sent here from places like Pakistan and we can
assume Iran and Syria to train U.S. Muslims (aligned with the cause of Radical Islam) for a probable attack. This is what an attack might look like and how to survive. Warning: Graphic violence.
Extreme survival tactics. If you want to live through this kind of attack, you may have to do the unthinkable. With police departments in major cities now on active watch for terrorist plots by
what would happen if a an attack actually took place on a city
street downtown, like Los Angeles, the center of the CBS report? You're caught in the middle of a "hot zone" -- people
are being killed, terrorists with AK-47s are executing men, women, and children. Shots fly over head and glass shatters in
nearby windows. LAPD: Be On the Look Out for Hezbollah, Iranian Special Forces CBS affiliate in Los Angeles reported August 29, 2012 that LAPD is actively on the look
out for Hezbollah linked terror groups believed to be plotting attacks on Southern California. See (CBS affiliate):
agents from Iran and Hezbollah as indicated by CBS news earlier this year,
LAPD: 'Active' Terror Plots Linked To Iran, Hezbollah, 'Sovereign Citizens' The LAPD has it's own counter-terrorism unit, in fact. CBS reports at the first link above: "'In this region we have active
terrorist plots, in this region, right now,' said Deputy Chief Michael Downing, commanding officer of the LAPD's counter-terrorism unit. The Department is currently tracking 'government of
Iran operatives, Hezbollah, sovereign citizen, homegrown violent extremists, animal rights groups' and others, Downing said. He added that Iranian or Hezbollah agents may initiate attacks
terrorist attack probably won't look
like an Al-Qaeda suicide bomber with limited training and no lengthy military experience. It may look a lot more like an attack by
Navy Seals -- but instead of Navy Seals, the attack will come from highly trained soldiers of Iranian and Hezbollah
special forces -- going for "maximum impact". Maximum Impact Terrorist Attacks For those of you familiar with special forces training, it would be like
the local police (perhaps 30 - 40 cops in the vicinity of a terrorist attack) going up against 75 or more Spetznaz (Russian trained special forces). "Special forces" means
they're trained for the most dangerous assignments -- they are swift, strong, excel in hand to hand combat, automatic weapons, fearless fighting,
and sheer brutality. Local police would be no match -- not unless they could round up 300 heavily armed cops to take on 75 Spetznaz (within minutes of an attack)
locally if war erupts between the U.S. and Iran." What would an attack by Iranian / Hezbollah agents look like? This kind of
who are armed with fully automatic weapons and possibly shoulder fired missiles and grenades -- and still that might not be enough. The fact is this -- a small group of highly trained fighters
(foreign special forces) can take down larger groups of fighters (local police) not prepared for this kind of fight. Los Angeles Terrorist Attacks First, let's consider how local police might react
once the initial calls come in.
Major police departments in Los Angeles and New York City nowadays have counter-terrorism squads,
but they also have Swat Teams, as do most other U.S. cities with a population of 50,000 or more. U.S. Swat Teams are armed to the teeth with men highly trained for arrests and take downs of
Jihadist terror cells from Iran and Hezbollah have highly trained men also -- men trained to kill for Islamic
ideals, men trained with weapons and explosives. Some of these men may be Iranian special forces -- special forces a lot like our own Navy Seals and Airborne
dangerous criminals.
Rangers here at home. Many are highly trained, deadly accurate with weapons, dangerous in hand to hand combat. How these two groups (Swat Teams and Jihadist terror cells) aren't running
terror groups (we know they're here, there's no doubt about that) are
communicating with one another at a level that is beating America's surveillance here at home. Jihad: Superior
into one another right now when the terror threat level is so high in America reveals one thing --
Communications No fly-lists, email and phone surveillance, U.S. mosques infiltrated by government informants -- stakeouts by the FBI and other undercover government teams are not getting
anywhere, it seems. Not to say that the FBI isn't good at what they do -- they have done a great job with tracking down and breaking up large scale organized crime rings in the past; they've
arrested the leaders of street gangs and motorcycle clubs, as well as a number of large drug rings that can trace their origins all the way to South American drug lords. In any of these groups,
dozens and sometimes hundreds of arrests can take place at one time in a large FBI sting -- But it's not happening with Jihadist terror cells. Risk of Terrorist Attack Remains High With or
risk remains high for a series of simultaneous terrorist attacks timed to create
"maximum terror" in America; terrorists most likely want to disrupt our already shaky economy and are likely
without arrests of terrorist cells, the
to do that by plotting attacks that cause mass-fear across the United States population. Swat Team Up in Flames What about the local Swat Team? Foreign special forces may already have a
plan for taking on the local Swat Team -- they might blow up their armored vehicle as it leaves base -- the entire Swat Team murdered before they can pose any threat. Or they might have
snipers waiting near the scene, ready to pick off Swat Team members and any others that pose a threat to an active terror attack. Learning From a Real Terrorist Attack with AK-47s In 2008,
Mumbai, India was attacked by trained militants from Pakistan, where multiple locations where attacked at around the same time, or shortly after one another. One group of militants (ten)
that attacked that evening landed on a beach in inflatable speedboats, simply telling local fishermen to "mind their own business" as they set off into the city (a report to police by the
fishermen received little response). One of the first attacks began when two men with AK-47s walked into a train station and began killing people. In all, just in that train station, they killed 58
people and injured 104. Then they left the train station, shooting at pedestrians and police, killing eight police officers. They passed a police station but the police inside were smart -- out
Two
terrorists armed with AK-47s storm a cafe, killing at least 10 people, injuring several more. Multiple other
terrorists seize two hotels, The Taj Mahal and the Oberoi Trident; several people are killed, many more are injured. Hostages are taken at both hotels; many flee from
gunned, they had secured the gates and shut off all the lights and hid. The attackers ignored the police station and continued their attack in the city. Elsewhere in Mumbai...
windows as fire fighters with ladders outside the hotels help several people escape. A Jewish outreach center (the Nariman house) is seized by terrorists, hostages are taken; a few people end
up killed by the time the attack is broken up by counter terrorism teams who are dropped on to the roof by helicopter and covered by nearby snipers. India's counter terrorism forces
eventually are able to infiltrate each location terrorists had seized and had taken hostages; during rescues a few people are killed, including counter terrorism forces; all but one terrorist
it's possible that there had been a
bigger attack planned, thus the reason for the excess weapons stored at the docks.
(arrested and taken into custody) die. Down in the Mumbai harbor police seized a boat carrying guns and explosives --
Cyberwar
2AC – Cyber War turn
Federal regulation of drones is necessary to build safeguards against cyber war
Bernd 2013 (Candice [assistant editor/reporter with Truthout]; The Coming Domestic Drone Wars; Sep
19; www.truth-out.org/news/item/18951-the-coming-domestic-drone-wars#; kdf)
Domestic Drone Weaknesses Cyber
warfare may prove to be the most enduring challenge for the FAA when it
comes to ensuring guidelines that will protect Americans adequately as drone technology makes its
transition into civilian life. Peter Singer is the director of the Center for 21st Century Security and Intelligence and a senior fellow in
the Foreign Policy program at Brookings Institute. He is the author of Wired for War: The Robotics Revolution and Conflict in the 21st Century.
According to him, the
primary weakness of drone technology is many systems' dependence on GPS signals
and remote operation. Even military-grade drone technology can be co-opted, he said. In December 2011, the
Iranian Army's electronic warfare unit brought down an American drone, the RQ-170 Sentinel, after it crossed into Iranian airspace. In Iraq in
2009, Iraqi insurgents were able to use $26 software to intercept the video feeds of US Predator drones in a manner "akin to a criminal listening
in on the police radio scanner," Singer told Truthout. Most recently,
a research team at the University of Texas was able to
demonstrate successfully the spoofing of a UAV by creating false civil GPS signals that trick the drone's
GPS receiver. "There aren't easy answers to these other than good encryption requirements," Singer told Truthout in an email. The Texas
research team hoped to demonstrate the dangers of spoofing early on in the FAA's task to write the mandated rules for UAS integration in the
national airspace, and the Department of Homeland Security invited the team to demonstrate the spoofing in New Mexico. "Vulnerability
to jamming and spoofing depends highly on the design of the aircraft and control systems and vary
across differing architectures. Minimum system performance and design standards developed for civil
UAS designs will address these vulnerabilities," an FAA spokesman told Truthout. Whether minimum standards for
system performance will be enough to address the changing dynamic of cyber warfare, and for that matter,
technology, remains a question, but it's something the FAA and Homeland Security are examining as drone
technology becomes more widespread in the US.
It’s the most probable existential threat
Paikowsky and Baram 2015 (Deganit [post-doctoral fellow at the Davis Institute for International Relations at
Hebrew University in Jerusalem and a senior researcher at the Yuval Nee’man Workshop for Science, Technology, and Security
at Tel-Aviv University, also a research associate at the Space Policy Institute at George Washington University and a consultant
to the space committee of Israel’s National Council for Research and Development] and Gil [Ph.D. candidate in the department
of political science at Tel-Aviv University, and a researcher at the Yuval Nee’man workshop for Science, Technology, and
Security at Tel-Aviv University]; Space Wars; Jan 7; www.foreignaffairs.com/articles/142690/deganit-paikowsky-and-gilbaram/space-wars?cid=rss-rss_xml-space_wars-000000; kdf)
In September 2014, hackers from China broke into the U.S. National Oceanic and Atmospheric Administration (NOAA) network in an attempt to
disrupt data related to disaster planning, aviation, and much more coming from U.S. satellites. This breach was the
latest in a series of cyberattacks on space systems, exposing the Achilles’ heel of such technology: the vulnerability of its computers and
the information it creates and transmits. Cyberattacks, which are on the rise in every industry, pose particularly significant threats to
space systems as they are used so ubiquitously in corporate and military operations, making them increasingly attractive targets for hackers. Although only
about a dozen countries have the capability to launch a satellite into space , billions of people around the world rely on space
systems for nearly every aspect of modern life. Satellites are used to support phones, the Internet, and banking
systems. They are also used to monitor land, air, and maritime traffic; facilitate global communications; transmit mass media in real time;
monitor the earth for climate change or severe weather threats and natural disasters; gather intelligence; and send early
warnings of incoming ballistic missiles. It is no wonder, then, that the global economy depends on communication
satellites, navigation systems, and earth-observation satellites. The backbone of all these services consists of 1,200 operational satellites currently orbiting the
earth, which have the potential to cause significant tangible damage by attacking national or global space systems across countries and continents. Even a small
glitch can wreak havoc. For example, in April 2014, the Glonass System, the Russian equivalent of the American-designed GPS, malfunctioned due to two small
mathematical mistakes in the software. Significantly, fixing the system took more than 13 hours, and the half-day breakdown led to severe disruption of Glonass
receivers, which affected iPhone5 users. While the disruption was not caused by ambitious hackers, it is easy to see why space
systems are the brass
ring of cybercrimes: They are low effort and high return. Therefore, a relatively simple hack can inflict
considerable damage. It is easy to see why space systems are the brass ring of cybercrimes: They are low effort and high return. Therefore, a relatively
simple hack can inflict considerable damage. EASY PREY Although a space system is composed of three connected segments—satellites and spacecraft that orbit the
earth, ground stations, and the communication systems that link the two—cybercriminals only need to find the vulnerabilities in one of these segments. For
example, for a few hundred dollars, a hacker can buy a small jamming device on the Internet to interfere with satellite signals. “We have to make it (satellite
navigation systems) more robust,” warned Colonel Bradford Parkinson, who led the creation of the GPS. “Our cellphone towers are timed with GPS. If they lose that
time, they lose sync and pretty soon they don’t operate. Our power grid is synchronized with GPS [and] so is our banking system.” Space
systems have
become the target of hacking. In July of last year, the United States identified a 28-year-old British citizen who hacked a number of government
networks, including NASA. He attempted to grab highly sensitive data and claimed he would “do some hilarious stuff with it.” Four months later, in November 2013,
viruses infected the computers used by the International Space Station. Japan’s space agency also discovered a computer virus inside a few of its computers in
January 2012 and Germany’s space center recently suffered an espionage attack, with several of its computers getting hit with spyware. Since 2009, the BBC has
complained of disruptions to its Persian-language radio and television programs and has accused Tehran of interfering with international satellite broadcasts
beamed into Iran. Only after the EU made a diplomatic complaint to pressure Iran to cease and desist did the attacks stop. When North Korea jammed South
Korea’s GPS signals in May 2012, it affected the navigation of over 250 flights. The list goes on. One of the reasons space systems, especially commercial ones, are
such easy prey is that they often operate with outdated software. Developing a space system is generally a long process that, depending on the complexity of the
system, takes several years to complete. And once the system is operational, it is expected to last for at least several years—sometimes even more than a decade.
This process makes it difficult to update the system’s security software. Moreover, in many cases, the information systems that are being used to manage space
systems are mostly based on commercial “off-the-shelf” products, with known vulnerabilities and low levels of protection, especially compared to supposedly
better-protected military systems. In 2014, a number of think-tanks, from the Council on Foreign Relations to London-based Chatham House, as well as the
information-security firm IOActive, sounded the alarm on how vulnerable space systems are to cyberattacks. These reports warned of the ease with which
backdoors in software—an undetected remote access to a computer—can be exploited, and of the prevalence of unsecured software, non-protected protocols, and
unencrypted channels. One of the studies’ recommendations was to immediately remove software updates from the public websites of various companies that
provide satellite services and equipment, in order to prevent hackers from reverse-engineering the source code. However, despite these warnings, the
space
industry is barely aware of these risks and its responses are slow. Herein lies a challenge: to produce and put into practice
standards and regulations regarding multinational and commercial activities in space technology and exploration. MOVING FORWARD In the past year, several
space-faring nations have begun to tackle the issue. Three months ago, the U.S. Air Force announced that it hopes to develop technologies that would prevent
hackers from jamming its satellites. Russia intends to significantly update the robustness and security of its military and government satellite communication system
by 2025. Despite these positive steps, national governments and international bodies have more ground to cover. First, governments need to increase their efforts
to raise awareness regarding the growing threat of cyberattacks against both government and commercial space systems. Second, in order to provide better
protection, governments and corporations should take a holistic rather than piecemeal approach regarding the protection of all segments of their systems, and
work toward solutions that will ensure the performance of the systems and their services, rather than protecting a specific asset. For example, satellites are and will
continue to be damaged by cyberattacks; but the ability of an entire system to operate smoothly and recover rapidly is more crucial than the security and safety of a
single satellite. Third, military, civil, and commercial actors should engage in more dialogue in order to strengthen overall protection. They can do so by sharing
information and working jointly toward better standards and regulations. Fourth, governments and international bodies should try to standardize protocols for
protecting space systems. For example, when NOAA was breached in September, the Inspector General for the Commerce Department, which oversees the
network, had just criticized it for an array of “high-risk vulnerabilities” in the security of its satellite information and weather service systems. It took nearly a month
for NOAA to admit it had been hacked. Hiding such information hampers meaningful and timely discussion about the issue and delays the development of
preventive measures. Enforcing a standard protocol could help alleviate this problem. And finally, protecting space systems must be an international effort. Spacefaring nations should work together to achieve international cooperation on all of the areas mentioned above: raising awareness, sharing information, and
developing much-needed standards. The
potential for colossal damage and the relative ease of launching a
cyberattack on space systems make them tantalizing targets for cybercriminals. The threat is already at
our doorstep, and it will only get bigger. It is time for the international space community to muster the political will to rise to this growing
challenge.
SOP
Warrants revitalizes the separation of powers
Reynolds 2014 (Glenn Harlan [prof of law @ U of Tennessee]; NSA spying undermines separation of
powers: Column; www.usatoday.com/story/opinion/2014/02/10/nsa-spying-surveillance-congresscolumn/5340281/; kdf)
Most of the worry about the National Security Agency's bulk interception of telephone calls, e-mail and the
like has centered around threats to privacy. And, in fact, the evidence suggests that if you've got a particularly steamy phoneor Skype-sex session going on, it just might wind up being shared by voyeuristic NSA analysts. But most Americans figure, probably rightly, that
the NSA isn't likely to be interested in their stuff. (Anyone who hacks my e-mail is automatically punished, by having to read it.) There is,
however, a class of people who can't take that disinterest for granted:
members of Congress and the judiciary. What they
have to say is likely to be pretty interesting to anyone with a political ax to grind. And the ability of the
executive branch to snoop on the phone calls of people in the other branches isn't just a threat to privacy,
but a threat to the separation of powers and the Constitution. As the Framers conceived it, our system of government is
divided into three branches -- the executive, legislative and judicial -- each of which is designed to serve as a check on the others. If the
president gets out of control, Congress can defund his efforts, or impeach him, and the judiciary can declare his acts unconstitutional. If
Congress passes unconstitutional laws, the president can veto them, or refuse to enforce them, and the judiciary, again, can declare them
invalid. If the judiciary gets carried away, the president can appoint new judges, and Congress can change the laws, or even impeach. But if
the federal government has broad domestic-spying powers, and if those are controlled by the executive
branch without significant oversight, then the president has the power to snoop on political enemies,
getting an advantage in countering their plans, and gathering material that can be used to blackmail or
destroy them. With such power in the executive, the traditional role of the other branches as checks would be seriously undermined, and
our system of government would veer toward what James Madison in The Federalist No. 47 called "the very definition of tyranny," that is, "the
accumulation of all powers, legislative, executive, and judiciary, in the same hands." That such widespread spying power exists, of course,
doesn't prove that it has actually been abused. But the temptation to make use of such a power for self-serving political ends is likely to be very
great. And, given the secrecy surrounding such programs, outsiders might never know. In fact, given the compartmentalization that goes on in
the intelligence world, almost everyone at the NSA might be acting properly, completely unaware that one small section is devoted to gather
political intelligence. We can hope, of course, that such abuses would leak out, but they might not. Rather
than counting on leakers
to protect us, we need strong structural controls that don't depend on people being heroically honest or
unusually immune to political temptation, two characteristics not in oversupply among our political class. That means that
the government shouldn't be able to spy on Americans without a warrant — a warrant that comes from a
different branch of government, and requires probable cause. The government should also have to keep a clear record
of who was spied on, and why, and of exactly who had access to the information once it was gathered. We need the kind of extensive audit
trails for access to information that, as the Edward Snowden experience clearly illustrates, don't currently exist. In addition, we need civil
damages — with, perhaps, a waiver of governmental immunities — for abuse of power here. Perhaps we should have bounties for
whistleblowers, too, to help encourage wrongdoing to be aired. Is this strong medicine? Yes. But widespread spying on Americans is a threat to
constitutional government. That is a serious disease, one that demands the strongest of medicines.
Strong separation of powers are essential for US global leadership
Ikenberry 2001- Professor at Georgetown University (G. John, National Interest, Spring 2001, Lexis)
America's mature political institutions organized around the rule of law have made it a relatively
predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and security policy is made
reduces surprises and allows other states to build long-term, mutually beneficial relations. The governmental separation of
powers creates a shared decision-making system that opens up the process and reduces the ability of
any one leader to make abrupt or aggressive moves toward other states. An active press and competitive party
First,
system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose. The
messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over the long term, democratic
institutions produce more consistent and credible policies--policies that do not reflect the capricious and
idiosyncratic whims of an autocrat. Think of the United States as a giant corporation that seeks foreign investors. It is more likely to
attract investors if it can demonstrate that it operates according to accepted accounting and fiduciary principles. The rule of law and
the institutions of policymaking in a democracy are the political equivalent of corporate transparency
and accountability. Sharp shifts in policy must ultimately be vetted within the policy process and pass muster by an array of investigatory
and decision-making bodies. Because it is a constitutional, rule-based democracy, outside states are more
willing to work with the United States-or, to return to the corporate metaphor, to invest in ongoing
partnerships.
Restoring legitimacy is vital to continued hegemony
Suzanne Nossel 7, Senior Fellow at the Center for American Progress and the Century Foundation and
previously served as deputy to the Ambassador for UN Management and Reform at the U.S. Mission to
the United Nations, "Going Legit", Winter, www.democracyjournal.org/3/6507.php?page=all
It’s a truism today that America’s position as the world’s superpower is shakier than it used to be. The
nation’s military is overstretched and unable to take on new commitments. Interest payments on the national debt topped
$400 billion in the 2006 fiscal year, threatening to crowd out needed expenditures to sustain economic
competitiveness. And Washington has made little progress on urgent foreign policy objectives, including
stabilizing Iraq, curbing Iran’s and North Korea’s nuclear programs, expanding global trade, and ending antiAmerican extremism in the Arab and Muslim worlds.¶ The Iraq war has directly caused much of this damage. Financially, it has been a huge drain: The
Congressional Budget Office reported in mid-2006 that costs topped $432 billion. Militarily, it has been punishing: The Pentagon admits that the conflict has badly stretched the Armed Forces,
with 70 percent of troops scheduled to return to Iraq next year set to serve their third tours. In human terms, the price has been high: nearly 3,000 American troops have died to date.¶ The
The Iraq intervention has eroded the
esteem, respect, and trust that the United States once commanded on every continent, hampering a host of
current policy objectives and putting ambitious and important new goals out of reach. Rehabilitating America’s legitimacy,
therefore, will be essential to ensuring that the Iraq war does not exact a permanent toll on American global influence.¶
International legitimacy is a measure of the acceptability and justifiability of a state’s actions in the eyes of other
states and their citizens. Legitimacy, a kind of moral capital, reflects a collective judgment that the assertion of power, through a policy or an action, is valid even if it is unpopular. After
war’s dearest casualty, however, has been to America’s international standing, specifically its legitimacy abroad.
all, leadership requires taking the occasional unpopular stand; but whereas popularity is inherently ephemeral, contingent on personalities and temporary alignments of interest,
legitimacy is more enduring. It provides a foundation for respect and understanding that can transcend shortterm, conflicting goals. Practically, when America’s purposes are well-founded, openly articulated, and
broadly consistent with its professed values, the use of power toward those ends is generally judged
legitimate. But when the United States misleads others about its motives, acts on inadequate or selective evidence,
flouts its own principles, or unilaterally exempts itself from broadly agreed standards of conduct, its
legitimacy suffers.¶ The current administration has put little weight on legitimacy as a criteria for policy-making. The Iraq war, for instance, wasn’t waged without regard for
international legitimacy; on the contrary, eschewing legitimacy was part of the plan. From the start, Bush Administration officials derided the idea that American power should answer to
international norms. Vice President Dick Cheney resisted calls by Secretary of State Colin Powell to bring Washington’s case against Iraq to the UN, judging such diplomatic machinations a
waste of time. The Administration even sometimes seemed to suggest, perversely, that if leading European nations or the UN were involved, results would be slower and less effective.¶
Undoing this damage is a precondition for setting U.S. foreign policy back on course. International legitimacy,
viewed by the Bush Administration as constraining American power, must now be recognized as an indispensable
tool for fortifying and extending it. As we look to a post-Bush foreign policy, progressives need to recognize that
a concerted effort to reconstitute America’s legitimacy is the best way to safeguard American
superpowerdom in the long term.¶ The History of Legitimacy¶ The increasing importance of international legitimacy
and the rise of the United States as a global power go hand-in-hand. During the colonial era of great power politics, military prowess
and territorial control ruled the day; countries with resources and armies did not worry much about the court of international opinion. But after World War II, as leading nations grappled with
how to administer war-ravaged Europe and Japan and how to prevent future world wars, legitima0cy moved to the forefront. International law was expounded through treaty-based
organizations like the UN, NATO, and the Bretton Woods institutions. The dismantling of far-flung colonial empires and the emergence of the principle of self-determination helped fulfill the
The United States enjoyed a great deal of legitimacy in
the postwar period. The conservative scholar Robert Kagan argued in Foreign Affairs that U.S. legitimacy derived mainly from the Cold War itself: Among Western European
widening belief that power needed to be made accountable to peoples affected by it.¶
governments and publics American actions were seen as justified to face down a totalitarian menace. While violent proxy wars in Latin America and Asia had some corrupting effects on
political scientists Robert Tucker
and David Hendrickson contend that America’s legitimacy derived not from its struggle against communism per se, but rather from the
respect President Harry Truman and his successors showed for international law and norms.¶ The end of the Cold War scrambled
America’s image, they did not outweigh the perception of credibility in the Cold War’s primary battleground of Europe. In contrast,
the situation. On the one hand, it left the United States as the world’s sole remaining superpower. With liberal democracy ascendant, American values–including the market capitalism that
much of the world once saw as synonymous with imperialist exploitation–now enjoyed wide acceptance in Eastern Europe, Asia, and elsewhere. With the Soviet Union gone, what Kagan
identified as the “legitimizing effect” of the Cold War struggle evaporated. At the same time, America’s legitimacy also came under closer scrutiny. This imbalance led to concern over the
unparalleled degree of U.S. influence over the world economy, decision-making at the UN, and oil supplies in the Middle East. Skeptics impugned American motives and methods by pointing to
examples of Washington’s hypocritical support for oil-rich oligarchies in the Middle East, uneven commitment to global free trade, and insufficiently aggressive efforts to halt greenhouse gas
emissions.¶ The Clinton Administration handled these concerns through balanced policies and a degree of self-regulation. It showed enough respect for the views of allies and for the UN to get
away with circumventing international rules from time to time–as when it failed for many years (due to congressional resistance) to pay its dues to the UN or failed to ratify the International
Criminal Court (ICC) . During the Clinton era, conservatives sharpened their longstanding critique of the idea that American foreign policy needed to enjoy international legitimacy. Many of
these thinkers and politicians had, during the Cold War, seen international institutions like the UN as Soviet-influenced impediments to American interests. Now they argued that America must
not be constricted by external norms of legitimacy, particularly if legitimacy might be arbitrated by international institutions like the UN that, despite the Soviet Union’s collapse, still counted
dictatorships and tyrannies among their ranks.¶ Such an argument was implicit in Kagan and William Kristol’s 1996 call for a foreign policy based on “benevolent hegemony”–a concept that
continued to animate neoconservatives through the 2003 Iraq invasion. Rooted in the Cold War experience in which Eastern European peoples drew inspiration from Western liberal ideals,
benevolent hegemony held that if the United States acted from passionate conviction, its moral rectitude would be recognized and followed, if not immediately then in the long run. The
concept of benevolent hegemony guided the Bush Administration’s foreign policy even before September 11–evident, for example, in its decision in late 2001 to withdraw from the AntiBallistic Missile Treaty. The Administration knew the action would initially be derided, but it believed that the world would come to recognize that the creation of a North American missile
After September 11, Bush’s decision to
frame the battle against terrorism as one of good versus evil also drew on assumptions of benevolent
hegemony. Bush expected that the self-evidently moral basis of the fight against al Qaeda would insulate the United States from any potential questions about the legitimacy of its
shield would ultimately enhance not just American security, but also “the interests for peace in the world.”¶
actions, much as the battle against Soviet totalitarianism had once done in many quarters. For a short time after September 11, that logic seemed to prevail broadly, uniting the world in swift
while the 2001 terrorist attacks
temporarily legitimized an aggressive American foreign policy, they also emboldened the conservative
critique of legitimacy itself. Conservatives–such as Attorney General John Ashcroft and his Deputy John Yoo–crafted arguments on the premise that to be constrained by
approval for the U.S.-led invasion of Afghanistan and other aggressive steps to clamp down on global terrorism. But
internationally accepted legal constructs after the attacks would be to short-change U.S. security and abdicate America’s natural right to defend itself as it saw fit. Bush and his
supporters summoned the visceral patriotism of a wounded nation to argue that the United States must
unshackle itself from the constraints of international rules that could tie its hands. The embrace of the doctrine of
preemptive war in the 2002 National Security Strategy was a deliberate signal to the world that the United States no longer saw itself constrained by norms of legitimacy, arrogating for itself a
unilateral right with no articulated justification as to why it alone was authorized to preempt threats with force.¶ Thus the Administration approached the Iraq conflict with broad confidence
in the world’s belief in America’s benevolent hegemony and a dismissive attitude toward the constraints of legitimacy. Although Powell managed to convince the Administration to make a
pitstop at the UN Security Council to seek approval for its planned invasion, the UN membership (and much of the American public) correctly suspected the decision had already been made.
And indeed, when the Security Council balked at Bush’s case, the Administration moved forward anyway, constrained by neither the holes in its case for intervention nor by the world’s
resistance. Washington was convinced that its rightness, even if not ratified in advance, would be revealed after the fact.¶ But instead the opposite happened. As Francis Fukuyama describes
, it became apparent soon after the invasion that benevolence would not come to
America’s rescue. Instead of welcoming American soldiers with sweets and flowers, Iraqi society exploded into a complex civil war. U.S. forces failed to find weapons of mass
in America at the Crossroads
destruction, debasing the war’s central aim in both domestic and foreign eyes. And high-profile cases of prisoner abuse and war crimes against civilians made a mockery of Bush’s lofty vision of
bringing liberty and democracy to the Middle East. Both at home and abroad, even those who initially believed the invasion was well-intended–not just conservatives, but also many
While the United States remains preeminent in its military and
economic strength, the most potent global challenges it faces–nuclear proliferation, terrorism, failed states,
and the scramble for energy–are not amenable to resolution through money or firepower. They depend
on America’s ability to forge agreements, build consensus, and persuade others, all of which in turn
are contingent on whether Washington enjoys international legitimacy.¶ A drive to restore America’s
legitimacy, then, must rest on a clear understanding of what legitimacy is, how it is attained, and why it is
useful. Bush has caricatured legitimacy as a straitjacket, a “permission slip” from the world. But legitimacy has two rather more respectable
sources: rules and rectitude. The first involves authorization by a formal body or written set of laws, such as an international agreement or treaty. Acts that meet the
Democrats in Congress–came to feel duped.¶ The Case for Legitimacy¶
criterion include measures taken in self-defense against an imminent threat under the UN Charter, policies on detention that match the Geneva Conventions, and extradition agreements
rectitude, cannot be granted or taken away through any
formal process; it must be earned. It revolves around the perception that a policy or action is justified
and is not as easy to come by as following a set of prescribed rules. Indeed, codified international law is too ill-defined, incomplete, and
consistent with the Rome Statute of the ICC.¶ The second source of international legitimacy,
unevenly applied to be the only test of international legitimacy. For example, when the United States has employed the technique of targeted assassinations against al Qaeda leaders,
international outcry has been muted despite the fact that such extralegal killings violate international law. Judgments of the rectitude of particular actions take account of individual
circumstances: whether an action is provoked, what alternatives were available, and whether appropriate methods were used. In the case of targeted terrorist assassinations–where the
provocation is clear, the prospects for capturing an elusive and well-protected terrorist alive are low, and the harm to innocents is nil–the weight of legitimacy may be on the side of the
International legitimacy–whether derived from rules, rectitude, or both–can be affirmed and judged in three different
forums. First, standing multilateral institutions–principally the UN Security Council, but also international courts or regional entities like NATO and the
African Union–can formally ratify actions such as military interventions. Second, states can individually express their support or
assassin.¶
acquiescence with the actions of other states. For example, when the United States, Europe, and others indicated in the spring of 2006 that they would
reduce funding to the elected Hamas-led government in the Palestinian territories because Hamas was a terrorist organization, they helped legitimize Israel’s decision not to turn over
Third, legitimacy gets arbitrated by the public at large in newspapers, cafés, web sites, and street
the concept’s elusiveness does not diminish its
importance. Liberal advocates of legitimacy need to embrace alternative sources of legitimacy when, for example, the UN Security Council is paralyzed in the face of a threat. The
United States can–and should–act alone if it must. While the withholding of international support will suggest that others doubt the legitimacy of an action,
collected tax monies to Hamas.¶
protests. Particularly in this last form, legitimacy can sound slippery and hard to define. But
such misgivings do not–in themselves–render the act illegitimate. While not prohibiting action, broad international reservations should occasion a hard look at why support is not forthcoming
and whether reasonable measures–for example, further attempts at resolution short of the use of force–are warranted. A certain measure of legitimacy will derive from the very willingness to
engage and debate where the boundaries of legitimacy lie, rather than standing aloof and claiming that such questions don’t matter to Washington.¶ The lampooning of legitimacy by the Bush
Administration, of course, has made the concept taboo in some circles. After the first presidential debate in 2004, John Kerry was drubbed by critics for suggesting that acts of preemption
should have some widely recognizable justification (in his ill-chosen words, passing a “global test”). Afraid of being portrayed as weak on defense, many progressives now hedge their
arguments, calling for building support for U.S. policies and rebuilding America’s popular image, but not speaking of restoring international legitimacy.¶ Though a worthy goal in its own right,
renewing America’s popularity is not the same as restoring its legitimacy. A charismatic new president who
traveled the world could help rebuild America’s image and favorability ratings. A generous new foreign aid program might do
the same. But, unless accompanied by visibly increased attention to international norms, these
changes will not allay concerns over America’s motives.¶ The crumbling of American legitimacy has had wide
ripple effects, from the spread of jihadism to the rise of anti-American governments in Latin America to
the inability of the United States to muster UN support for an intervention in Darfur. According to the UN’s special envoy for Sudan, that
country’s beleaguered population is wary that international intervention is a first step to recolonization and has a “genuine fear of the Iraq scenario being repeated.” As human rights advocate
David Rieff has pointed out, even liberal interventionists clamoring to stop the Darfur genocide must confront the fact that, after Iraq, a U.S. invasion may well be more inflammatory than
pacific.¶ Taking Legitimacy Seriously¶ Legitimacy is not a sweeping foreign policy vision, but rather a principle that functions like a set of guardrails to keep the country on course toward the
overriding goal of sustaining American superpowerdom.
Mouthing the rhetoric of legitimacy will not help. The Bush Administration’s Orwellian
invocation of the language of liberal internationalism–active promotion of freedom, human rights, and the rule of law–amid policies marked by unilateralism, preemptive force, and human
In projecting the embrace of legitimacy as a centerpiece of its
foreign policy, the United States will be judged not by its words but by its actions.
and civil rights abuses has all but drained the meaning from those terms.
1AR Impacts
Heg prevents great power wars
Thayer 13 - PhD U Chicago, former research fellow at Harvard Kennedy School’s Belfer Center, Political
Science Professor at Baylor (“Humans, Not Angels: Reasons to Doubt the Decline of War Thesis”,
September, International Studies Review Volume 15, Issue 3, pp. 396–419)
Pinker is sensitive to the importance of power in a domestic context—the Leviathan is good for safety and the decline of violence—he neglects the role
of power in the international context, specifically he neglects US power as a force for stability. So, if a liberal
Accordingly, while
Leviathan is good for domestic politics, a liberal Leviathan should be as well for international politics. The primacy of the United States provides the world with that liberal Leviathan and has
American primacy within
the international system causes many positive outcomes for the world. The first has been a more peaceful
world. During the Cold War, US leadership reduced friction among many states that were historical antagonists,
most notably France and West Germany. Today, American primacy and the security blanket it provides
reduce nuclear proliferation incentives and help keep a number of complicated relationships stable such
as between Greece and Turkey, Israel and Egypt, South Korea and Japan, India and Pakistan, Indonesia and
Australia. Wars still occur where Washington's interests are not seriously threatened, such as in Darfur, but a Pax Americana does reduce war's
likelihood—particularly the worst form—great power wars. Second, American power gives the United States
the ability to spread democracy and many of the other positive forces Pinker identifies. Doing so is a source of much
four major positive consequences for international politics (Thayer 2006). In addition to ensuring the security of the United States and its allies,
good for the countries concerned as well as the United States because liberal democracies are more likely to align with the United States and be sympathetic to the American worldview. In
once states are governed democratically, the likelihood of any type of conflict is significantly
reduced. This is not because democracies do not have clashing interests. Rather, it is because they are
more transparent, more likely to want to resolve things amicably in concurrence with US leadership. Third, along with the growth of the number of
democratic states around the world has been the growth of the global economy. With its allies, the United States has
labored to create an economically liberal worldwide network characterized by free trade and commerce,
respect for international property rights, mobility of capital, and labor markets. The economic stability
and prosperity that stems from this economic order is a global public good. Fourth, and finally, the United States has been willing
to use its power not only to advance its interests but to also promote the welfare of people all over the globe. The United States is the earth's leading
source of positive externalities for the world. The US military has participated in over 50 operations since the end of the Cold War—and most of those
addition,
missions have been humanitarian in nature. Indeed, the US military is the earth's “911 force”—it serves, de facto, as the world's police, the global paramedic, and the planet's fire department.
There is no other state, group of states, or international organizations that can provide these global
benefits. Without US power, the liberal order created by the United States will end just as assuredly. But, the
waning of US power, at least in relative terms, introduces additional problems for Pinker concerning the decline of violence in the international realm. Given the importance
of the distribution of power in international politics, and specifically US power for stability, there is reason to be concerned about the
future as the distribution of relative power changes and not to the benefit of the United States.
Hegemony solves extinction
Barnett 11 - Former Senior Strategic Researcher and Professor in the Warfare Analysis & Research
Department, Center for Naval Warfare Studies, U.S. Naval War College American military geostrategist
and Chief Analyst at Wikistrat (Thomas, “The New Rules: Leadership Fatigue Puts U.S., and Globalization,
at Crossroads,” March 7 http://www.worldpoliticsreview.com/articles/8099/the-new-rules-leadershipfatigue-puts-u-s-and-globalization-at-crossroads)
We live in a time of arguably the greatest structural change in the global order
yet endured, with this historical moment's most amazing feature being its relative and absolute lack of mass
violence . That is something to consider when Americans contemplate military intervention in Libya, because if we do take the step to prevent larger-scale
killing by engaging in some killing of our own, we will not be adding to some fantastically imagined
It is worth first examining the larger picture:
global death count stemming from the ongoing "megalomania" and "evil" of American "empire." We'll
be engaging in the same sort of system-administering activity that has marked our stunningly successful
stewardship of global order since World War II. Let me be more blunt: As the guardian of globalization, the U.S. military
has been the greatest force for peace the world has ever known. Had America been removed from
the global dynamics that governed the 20th century, the mass murder never would have ended.
Indeed, it's entirely conceivable there would now be no identifiable human civilization left, once
nuclear weapons entered the killing equation. But the world did not keep sliding down that path of
perpetual war. Instead, America stepped up and changed everything by ushering in our nowperpetual great-power peace . We introduced the international liberal trade order known as
globalization and played loyal Leviathan over its spread. What resulted was the collapse of empires, an explosion of
democracy , the persistent spread of human rights , the liberation of women, the doubling of life
expectancy , a roughly 10-fold increase in adjusted global GDP and a profound and persistent reduction in
battle deaths from state-based conflicts. That is what American "hubris" actually delivered. Please remember that the next time some TV pundit sells you the image of
"unbridled" American military power as the cause of global disorder instead of its cure. With self-deprecation bordering on self-loathing, we now imagine a post-American world that is anything but. Just watch who scatters
As for the
sheer "evil" that is our military-industrial complex, again, let's examine what the world looked like
before that establishment reared its ugly head. The last great period of global structural change was
the first half of the 20th century, a period that saw a death toll of about 100 million across two
world wars. That comes to an average of 2 million deaths a year in a world of approximately 2 billion souls. Today, with far more comprehensive worldwide reporting, researchers report an average of less than
100,000 battle deaths annually in a world fast approaching 7 billion people. Though admittedly crude , these calculations suggest a 90 percent absolute drop
and a 99 percent relative drop in deaths due to war . We are clearly headed for a world order
characterized by multipolarity, something the American-birthed system was designed to both encourage and accommodate. But given how things
turned out the last time we collectively faced such a fluid structure, we would do well to keep U.S.
power , in all of its forms, deeply embedded in the geometry to come.¶ To continue the historical survey, after salvaging Western Europe from its
half-century of civil war, the U.S. emerged as the progenitor of a new, far more just form of globalization -- one
based on actual free trade rather than colonialism . America then successfully replicated
globalization further in East Asia over the second half of the 20th century, setting the stage for the
Pacific Century now unfolding.
and who steps up as the Facebook revolutions erupt across the Arab world. While we might imagine ourselves the status quo power, we remain the world's most vigorously revisionist force. ¶
AT Hard Power Key
Material power is irrelevant---lack of legitimacy makes heg ineffective
Mendelsohn 10 - Assistant Professor of Political Science at Haverford College and a Senior Fellow of
FPRI (Barak, “The Question of International Cooperation in the War on Terrorism”,
http://www.fpri.org/enotes/201006.mendelsohn.cooperationwarterror.html)
the United States sought to advance more than what it viewed as simply its own interest. The United States stands behind multiple
has overreached, sought to gain special rights other states do not have, or presented
strategies that were not compatible with the general design of the war on terrorism, to which most states subscribed. When it went too far, the
United States found that, while secondary powers could not stop it from taking action, they could deny it legitimacy and make the
achievement of its objectives unattainable. Thus, despite the common narrative, U.S. power was successfully checked, and the United
States found the limitations of its power, even under the Bush administration. Defining Hegemony Let me begin with my conception of hegemony.
While the definition of hegemony is based on its material aspects—the preponderance of power—hegemony should be understood as a part of a
social web comprised of states. A hegemon relates to the other states in the system not merely
through the prism of power balances, but through shared norms and a system of rules providing an umbrella for interstate
Going against common conceptions, I argue that
collaborative enterprises and should be credited for that. Nevertheless, sometimes it
relations. Although interstate conflict is ubiquitous in international society and the pursuit of particularistic interests is common, the international society provides a normative
framework that restricts and moderates the hegemon's actions. This normative framework accounts for the hegemon's inclination toward orderly and peaceful interstate relations and
minimizes its reliance on power
. A hegemon’s role in the international community relies on legitimacy. Legitimacy is
associated with external recognition of the hegemon’s right of primacy, not just the fact of this primacy. States recognize the hegemon’s power, but they develop expectations that go
beyond the idea that the hegemon will act as it wishes because it has the capabilities to do so. Instead, the primacy of the hegemon is manifested in the belief that, while it has special
rights that other members of the international society lack, it also has a set of duties to the members of the international society. As long as the hegemon realizes its commitment to the
collective, its position will be deemed legitimate. International cooperation is hard to achieve. And, in general, international relations is not a story of harmony. A state’s first inclination is
to think about its own interests, and states always prefer doing less over doing more. The inclination to pass the buck or to free ride on the efforts of others is always in the background.
If a hegemon is willing to lead in pursuit of collective interests and to shoulder most of the burden, it
can improve the prospects of international cooperation. However, even when there is a hegemon willing to lead a collective action and
when states accept that action is needed, obstacles may still arise. These difficulties can be attributed to various factors, but especially prominent is the disagreement over the particular
strategy that the hegemon promotes in pursuing the general interest. When states think that the strategy and policies offered by the hegemon are not compatible with the accepted
rules of “rightful conduct” and break established norms, many will disapprove and resist. Indeed, while acceptance of a hegemon’s leadership in international society may result in broad
willingness to cooperate with the hegemon in pursuit of shared interests it does not guarantee immediate and unconditional compliance with all the policies the hegemon articulates.
While its legitimacy does transfer to its actions and grants some leeway, that legitimacy does not justify every policy the hegemon pursues—particularly those policies that are not seen
as naturally deriving from the existing order. As a result, specific policies must be legitimated before cooperation takes place. This process constrains the hegemon’s actions and prevents
the uninhibited exercise of power.
Legitimacy’s the fundamental internal link to effective hegemony---power
distributions perceived as illegitimate are the most likely causes of great power war
Finnemore 9, Professor of Political Science and International Affairs at George Washington
University, (Martha, “Legitimacy, Hypocrisy, and the Social Structure of Unipolarity: Why Being a Unipole
Isn’t All It’s Cracked Up to Be,” January, World Politics, Volume 61, Number 1)
Legitimacy is, by its nature, a social and relational phenomenon. One’s position or power cannot be legitimate
in a vacuum. The concept only has meaning in a particular social context. Actors, even unipoles, cannot create legitimacy
unilaterally. Legitimacy can only be given by others. It is conferred either by peers, as when great powers accept or reject the actions of
another power, or by those upon whom power is exercised. Reasons to confer legitimacy have varied throughout history. Tradition, blood,
and claims of divine right have all provided reasons to confer legitimacy, although in contemporary politics conformity with [End Page 61]
international norms and law is more influential in determining which actors and actions will be accepted as legitimate. 9¶ Recognizing the
legitimacy of power does not mean these others necessarily like the powerful or their policies, but it implies at least tacit acceptance of the
social structure in which power is exercised. One may not like the inequalities of global capitalism but still believe that markets are the only
realistic or likely way to organize successful economic growth. One may not like the P5 vetoes of the Security Council but still understand
that the United Nations cannot exist without this concession to power asymmetries. We
can see the importance of
legitimacy by thinking about its absence. Active rejection of social structures and the withdrawal of
recognition of their legitimacy create a crisis. In domestic politics, regimes suffering legitimacy crises face resistance,
whether passive or active and armed. Internationally, systems suffering legitimacy crises tend to be violent
and noncooperative. Post-Reformation Europe might be an example of such a system. Without at least tacit
acceptance of power’s legitimacy, the wheels of international social life get derailed. Material force
alone remains to impose order, and order creation or maintenance by that means is difficult, even
under unipolarity. Successful and stable orders require the grease of some legitimation structure to persist and prosper.10¶ The
social and relational character of legitimacy thus strongly colors the nature of any unipolar order and
the kinds of orders a unipole can construct. Yes, unipoles can impose their will, but only to an
extent. The willingness of others to recognize the legitimacy of a unipole’s actions and defer to its
wishes or judgment shapes the character of the order that will emerge. Unipolar power without any
underlying legitimacy will have a very particular character. The unipole’s policies will meet with resistance, either
active or passive, at every turn . Cooperation will be induced only through material quid pro quo payoffs. Trust will be thin to
nonexistent. This is obviously an expensive system to run and few unipoles have tried to do so.
Inherency
AT Current Regs
Current regs have loopholes that allow for warrantless invasions of privacy
New York Times 2015 (Editorial Board; Regulating the Drone Economy; Feb 19;
www.nytimes.com/2015/02/19/opinion/regulating-the-drone-economy.html; kdf)
Mr. Obama’s
action on drone use by government agencies is much more problematic. For example, the
president’s memorandum says the government should not retain personally identifiable information
collected by drones for more than 180 days. But agencies can keep the data for longer if it is
“determined to be necessary to an authorized mission of the retaining agency” — a standard that grants
officials far too much latitude. Moreover, the administration says agencies have to provide only a “general summary” of how they
use drones, and only once a year. Law enforcement agencies like the F.B.I. and local police departments are
already using drones and manned aircraft for surveillance, often without obtaining warrants, but they have
said little publicly about what they are doing with the information collected. The use of drones is likely to grow, and the devices
could become as common as utility and delivery trucks. At the dawn of this technology, it’s appropriate to set sound safety and
privacy rules.
AT FAA Solves
Those regs expand the power of the state
Fulton 2015 (Deirdre; Surveillance, Privacy Concerns Raised as FAA Gives Domestic Drones a Nod; Feb
15; www.commondreams.org/news/2015/02/15/surveillance-privacy-concerns-raised-faa-givesdomestic-drones-nod; kdf)
Domestic non-military drone use took one step closer to widespread implementation on Sunday, as the
Federal Aviation Administration issued proposed regulations for small unmanned aircraft systems in the U.S.
According to an FAA press release, the rule would limit flights to daylight and visual-line-of-sight operations. It also addresses height
restrictions, operator certification, aircraft registration and marking, and operational limits. In a blow to Google and Amazon, it does not permit
drone delivery. Also on Sunday, the White House issued an Executive Order requiring every federal agency to develop "a framework regarding
privacy, accountability, and transparency for commercial and private [Unmanned Aircraft Systems] use" within 90 days and with an eye toward
protecting personal privacy, civil rights, and civil liberties. "Together, the
FAA regulations and the White House order
provide some basic rules of the sky that will govern who can fly drones in the United States and under
what conditions, while attempting to prevent aviation disasters and unrestrained government
surveillance," the Washington Post declared. But civil liberties experts warned that the FAA rules and presidential
memo leave the door open for invasions of privacy by the government and corporations. "The proposed
rules do absolutely nothing to address privacy, except perhaps require some identifying markings displayed in the 'largest
practicable manner' such that you may be able to identify who owns the drone that is spying on you," Ryan Calo wrote at Forbes. "I was on the
conference call announcing the new rules and the Secretary of Transportation mentioned the importance of privacy and civil liberties, but this
commitment is not reflected in the proposed rules." The Center for Democracy and Technology called on Congress to raise the bar on domestic
drone standards. "Drones have the potential for significant societal, scientific, and economic benefits, but also pose new and intrusive privacy
problems," CDT senior counsel Harley Geiger said in a press statement. "The White House’s memo requires government agencies to enhance
transparency and develop clear rules to protect the privacy of Americans. This is an important and welcome step in advancing drone
technology, while protecting civil liberties." Still, he added, "the
White House memo itself does not establish strong
privacy and transparency drone standards for agencies, leaving it up to the agencies to develop these
standards. Because the memo’s requirements are not specific, the drone policies the agencies set for themselves will be key to how
individuals’ privacy is actually protected. Congress still has a role to play in setting strong privacy and transparency standards for drone use."
One of the most promising applications for domestic drone use is also one of the most troubling: as an internet service platform, giving
operators access to vast quantities of data and threatening net neutrality, Drew Mitnick and Jack Bussell note at the blog for Access, a global
human rights organization focused on digital freedom. "Drones
also increase the opportunities for governments to
conduct first-hand surveillance of users’ electronic communications by intercepting signals and
information," they write. "Official documents demonstrate that government agencies are already exploring aerial platforms for
surveillance technologies, like Stingray technology, which conducts bulk surveillance of user location information... The potential for drones to
violate individual rights supports the need for legislation and regulations for government uses of drones as well as commercial vehicles."
2AC Surveillance State
New Tech=Surveillance State
Surveillance tech facilitates a surveillance state
Citron and Gray 13 (Danielle Keats [Professor of Law, University of Maryland] and David [Professor of
Law, University of Maryland]; Addressing the Harm of Total Surveillance: A Reply to Professor Neil
Richards; June 21; http://harvardlawreview.org/2013/06/addressing-the-harm-of-total-surveillance-areply-to-professor-neil-richards/)//AJ
The threat posed by contemporary surveillance technologies lies in how much and how often people are
watched. Modern technologies allow observers to detect, gather, and aggregate mass quantities of data
about mundane daily acts and habits as well as “intellectual” ones.66 The continuous and indiscriminate
surveillance they accomplish is damaging because it violates reasonable expectations of quantitative
privacy, by which we mean privacy interests in large aggregations of information that are independent
from particular interests in constituent parts of that whole.68 To be sure, the harms that Richards links
to intellectual privacy are very much at stake in recognizing a right to quantitative privacy. But rather
than being a function of the kind of information gathered, we think that the true threats to projects of
self-development and democratic culture lie in the capacity of new and developing technologies to
facilitate a surveillance state.
In adopting this view, we ally ourselves in part with commitments to a quantitative account of Fourth
Amendment privacy promoted by at least five Justices of the Supreme Court last Term in United States
v. Jones.69 In Jones, police officers investigating drug trafficking in and around the District of Columbia
attached a GPS-enabled tracking device on defendant Jones’s car. By monitoring his movements over
the course of a month, investigators were able to document both the patterns and the particulars of his
travel, which played a critical role in his ultimate conviction. Although the Court resolved Jones on the
narrow grounds of physical trespass, five justices wrote or joined concurring opinions showing sympathy
for the proposition that citizens hold reasonable expectations of privacy in large quantities of data, even
if they lack reasonable expectations of privacy in the constitutive parts of that whole.70 Thus, they
would have held that Jones had a reasonable expectation in the aggregate of data documenting his
public movements over the course of four weeks, even though he did not have any expectation of
privacy in his public movements on any particular afternoon.71
The account of quantitative privacy advanced by the Jones concurrences has much in common with the
views promoted by Warren and Brandeis. Specifically, the concurring Justices in Jones expressed worry
that by “making available at a relatively low cost such a substantial quantum of intimate information
about any person whom the Government, in its unfettered discretion, chooses to track,” programs of
broad and indiscriminate surveillance will “chill[] associational and expressive freedoms,” and “alter the
relationship between citizen and government in a way that is inimical to a democratic society.”72 Their
concerns are well-grounded in original understandings of the Fourth Amendment.73 As Professor
William Stuntz has shown, the Fourth Amendment was drafted partly in reaction to eighteenth-century
cases involving the British government’s use of general warrants to seize personal diaries and letters in
support of seditious-libel prosecutions that were designed to suppress political thought.74 Despite
these roots, quantitative privacy is just beginning to receive recognition because it is only now under
threat of extinction by technologies like Virtual Alabama and fusion centers.
Drones are an unprecedented threat to privacy – capable of monitoring entire cities
Rothfuss 2014 (Ian F [George Mason School of Law]; Student Comment: An Economic Perspective on
the Privacy Implications of Domestic Drone Surveillance; 10 J.L. Econ. & Pol'y 441; kdf)
Introduction A sixteen-hour standoff with police began after a suspect took control of six cows that wandered on to his farm and "chased police
off his land with high powered rifles." n1 Without the suspect's knowledge, police used a Predator drone to locate and apprehend him on his
3,000-acre farm. n2 In addition to law enforcement, anyone may buy a handheld drone. The Parrot AR.Drone 2.0, for example, costs less than
three hundred dollars and can fly up to 165 feet from its controller while recording and transmitting live high-definition video from the sky. n3
Unmanned aerial vehicles (drones) have become essential to government surveillance overseas and are now being deployed
domestically for law enforcement and other purposes. The ability of drones to conduct widespread
domestic surveillance has raised serious privacy concerns. Both government and private actors may use drones. Given the
proliferation of this new technology, Congress has recently directed the Federal Aviation Administration (FAA) to expedite the licensing process
and open the domestic airspace to drones. n4 Situations like the one described above will likely become more common in the near future. n5
Domestic drones [*442] have the potential to allow the government to effectively and efficiently monitor the activities of people across the
nation. Part I of this Comment examines the capabilities of drones, discusses currently planned drone deployments, and examines recent
developments that have brought the topic of domestic drone surveillance to the forefront of national security law discussions. This comment
concludes that current
law does not adequately protect privacy interests from the widespread surveillance
that could result from the unrestricted domestic use of drones. Part II discusses the sources of the right to privacy and
examines the current state of the law. Part III applies an economic perspective to determine the optimal level of domestic drone surveillance
that the law should allow. This analysis is based upon a general economic model of surveillance developed by Andrew Song following the
September 11, 2001 terrorist attacks. n6 Economic analysis shows that the uncontrolled domestic deployment of drones would lead to an
inefficient and unproductive loss of social utility. Prompt legislative action is therefore necessary to address the fundamental privacy challenges
presented by the use of drones. Part IV concludes by proposing a legal framework to balance security and other interests while safeguarding
the privacy rights of U.S. citizens. As discussed in this comment, such legislation should allow constructive use of the technology within a
framework that protects individual privacy rights. I. Background: Domestic Deployment of Drones Recent congressional legislation has directed
the FAA to expedite its current licensing process and allow the private and commercial use of drones in U.S. airspace by October 2015. n7 The
FAA has streamlined the authorization process to "less than 60 days" for nonemergency drone operations. n8 Among other requirements, the
recent legislation directs the FAA to allow government agencies to operate small drones weighing less than 4.4 pounds. n9 The use of drones
can be expected to increase dramatically in the coming years. [*443] The FAA has already authorized many police departments and other
agencies to use drones. n10 As of November 2012, the FAA oversaw 345 active Certificates of Waiver or Authorization that allow public entities
to operate drones in civil airspace. n11 Customs and Border Protection uses Predator drones along the nation's borders "to search for illegal
immigrants and smugglers" n12 and "the FBI and Drug Enforcement Administration have used Predators for other domestic investigations." n13
Predators owned by Customs and Border Protection and based at U.S. Air Force bases have been deployed on numerous occasions to assist
local law enforcement. n14 One law enforcement agency has even deployed a drone capable of being armed with lethal and non-lethal
weapons. n15 Drones also have applications beyond government law enforcement. Drones may be used to provide live video coverage of
events without the need to use piloted helicopters and by paparazzi chasing after pictures of celebrities and other public figures. n16
Individuals may use drones to spy on their neighbors, to keep an eye on their children, or to keep tabs on a potentially unfaithful spouse. n17
The possibilities for corporate espionage and the theft of trade secrets are also endless. Drones range in size from handheld units to units the
size of large aircraft and have a wide variety of capabilities. n18 Nearly fifty companies are reported to be developing an estimated 150 varieties
of drone systems. n19 Users of drones may include the military, federal and local law enforcement agencies, business entities, and private
individuals. Drones have many diverse domestic uses including surveillance of dangerous disaster sites, patrolling borders, helping law
enforcement locate suspects, monitoring traffic, crop dusting, aerial mapping, media coverage, and many others. n20 [*444] Drones
represent an unprecedented convergence of surveillance technologies that could lead to increased
security but could also jeopardize the privacy of U.S. citizens. Drones may be equipped with a variety of technologies
including high-resolution cameras, n21 face-recognition technology, n22 video-recording capability, n23 heat sensors, n24 radar systems, n25
night vision, n26 infrared sensors, n27 thermal-imaging cameras, n28 Wi-Fi and communications interception devices, n29 GPS, n30 licenseplate scanners, n31 and other systems designed to aid in surveillance. Drones
will soon be able to recognize faces and track
the movement of subjects with only minimal visual-image data [*445] obtained from aerial surveillance. n32 Drones
have the ability to break into wireless networks, monitor cell-phone calls, and monitor entire towns
while flying at high altitude. n33 These rapid technological advancements present privacy challenges that
were not contemplated when our existing laws were developed.
Drones will create a surveillance state where Americans never know whether they are
being watched
Gilens 2013 (Naomi [ACLU Speech, Privacy and Technology Project]; New Documents Reveal U.S.
Marshals’ Drones Experiment, Underscoring Need for Government Transparency;
https://www.aclu.org/blog/new-documents-reveal-us-marshals-drones-experiment-underscoring-needgovernment-transparency; kdf)
The use of surveillance drones is growing rapidly in the United States, but we know little about how the
federal government employs this new technology. Now, new information obtained by the ACLU shows for the first time that
the U.S. Marshals Service has experimented with using drones for domestic surveillance. We learned this
through documents we released today, received in response to a Freedom of Information Act request. The documents are available here. (We
also released a short log of drone accidents from the Federal Aviation Administration as well as accident reports and other documents from the
U.S. Air Force.) This revelation comes a week after a bipartisan bill to protect Americans’ privacy from domestic drones was introduced in the
House. Although the Marshals Service told us it found 30 pages about its drones program in response to our FOIA request, it turned over only
two of those pages—and even they were heavily redacted. Here’s what we know from the two short paragraphs of text we were able to see.
Under a header entitled “Unmanned Aerial Vehicle, Man-Portable (UAV) Program,” an agency document overview begins: USMS Technical
Operations Group's UAV Program provides a highly portable, rapidly deployable overhead collection device that will provide a multi-role
surveillance platform to assist in [redacted] detection of targets. Another document reads: This developmental program is designed to provide
[redacted] in support of TOG [presumably the agency’s Technical Operations Group] investigations and operations. This surveillance solution
can be deployed during [multiple redactions] to support ongoing tactical operations. These heavily redacted documents reveal almost no
information about the nature of the Marshals’ drone program. However, the Marshals Service explained to the Los Angeles Times that they
tested two small drones in 2004 and 2005. The experimental program ended after both drones crashed. It is surprising that what seems like a
small-scale experiment remained hidden from the public until our FOIA unearthed it. Even more surprising is that seven years after the program
was discontinued, the Marshals still refuse to disclose almost any records about it. As
drone use becomes more and more
common, it is crucial that the government’s use of these spying machines be transparent and
accountable to the American people. All too often, though, it is unclear which law enforcement agencies are
using these tools, and how they are doing so. We should not have to guess whether our government is using
these eyes in the sky to spy on us. As my colleague ACLU staff attorney Catherine Crump told me, Americans have the
right to know if and how the government is using drones to spy on them. Drones are too invasive a tool
for it to be unclear when the public will be subjected to them. The government needs to respect
Americans’ privacy while using this invasive technology, and the laws on the books need to be brought
up to date to ensure that America does not turn into a drone surveillance state. All over the U.S., states and
localities are trying to figure out through the democratic political process exactly what kind of protections we should put in place in light of the
growing use of what Time Magazine called “the most powerful surveillance tool ever devised, on- or offline.” These debates are essential to a
healthy democracy, and are heartening to see. However, this
production from the Marshals Service underscores the
need for a federal law to ensure that the government’s use of drones remains open and transparent. A
number of federal lawmakers are already pushing to bring the law up to date. Representatives Ted Poe (RTexas) and Zoe Lofgren (D-Calif.) recently introduced the first bipartisan legislation to regulate the government’s
use of drones. The proposed legislation, which is supported by the ACLU, would enact judicial and Congressional
oversight mechanisms, require government agencies to register all drones and get a warrant when using
them for surveillance (except in emergency situations), and prohibit the domestic use of armed drones. We believe
this bill—and hopefully a future companion bill in the Senate—will provide a strong foundation for future legislation protecting our privacy
rights in the face of proliferating drone surveillance and government secrecy.
Unregulated drones threaten to perfect the art of surveillance
Ahsanuddin et al 2014 (Sadia - principal investigator for the report and MPAC research fellow;
Domestic Drones: Implications for Privacy and Due Process in the United States; Sep 8;
www.mpac.org/publications/policy-papers/domestic-drones.php; kdf)
Simultaneously, the IHSS survey respondents indicated apprehensiveness over any domestic drone operations: two-thirds expressed concern
over potential surveillance in homes or public areas; 65 percent were concerned about safety; and 75 percent were concerned about the
government’s ability to regulate use.82 The
rapid pace at which drone technology is developing, the lack of clear
guidelines protecting privacy and civil liberties, and public concern over these issues indicate an urgent
need for action in Congress and state legislatures. Privacy experts agree. In an article in the Stanford Law Review Online,
Professor Ryan Calo of the University of Washington School of Law states that drones “may be just the visceral jolt society
needs to drag privacy law into the twenty-first century.” American privacy law has developed at a
“slow and uneven” pace, whereas technology has developed at a rapid speed. In spite of the development of
computers, the Internet, Global-Positioning Systems (GPS), biometrics, gigapixel cameras, face recognition technology, and the widespread use
of e-mail and other forms of electronic communication, there has been no attendant development in privacy law. Because
drones
“threaten to perfect the art of surveillance,” they make for a good catalyst to update privacy law. The
need for legislation is clear. With recent revelations that the federal government has been conducting
surveillance of the American public on an unprecedented level, the threat that unregulated and
immensely capable technologies pose to civil liberties is profound. The law must catch up with
technology.
Surveillance=Extinction
Mass surveillance causes mass genocide and extinction
Saul 15 (Quincy Saul is the Co-Founder of Ecosocialist Horizons and the senior editor and columnist for
Capitalism Nature Socialism, “The Four Horsemen of the Apocalypse,” 3/25/15, Date Accessed: 6/27/15,
http://www.truth-out.org/opinion/item/29664-the-four-horsemen-of-the-apocalypse)
Surveillance States: 1984 has arrived, only 30 years after Orwell predicted. The revelations brought to us
by Chelsea Manning, Julian Assange and Edward Snowden show us a world in which everything is under
surveillance. Julian Assange has written with great eloquence about the death of civil society overseen
by the surveillance state. (1) Today in the United States alone there are more than 5 million people
working under security clearances - more than the population of Norway. The mirror image of this army
of spies is the enormous number of people in prison, including more African Americans under state
control than there were slaves prior to the Civil War. This is the last stage of the state, the
totalitarianism that is the last gasp of every totality. The surveillance state has the capacity for not only
genocide, but also extinction: It is capable of repressing and destroying the revolutionary movements
that still have hope to fight for life. The surveillance state rides the pale horse of the apocalypse,
representing death.
AT Drones Not Key 4th Amendment
Warrantless drones uniquely trigger 4th amendment backsliding
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT UNREASONABLE
SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
Despite a strong argument that UAS surveillance should not constitute a search as long as it shows
nothing more or different than what is revealed by naked-eye observation, n240 it is not clear that
courts would accept technological surveillance as an equivalent substitute for manned surveillance. n241
In fact, in holding that the use of a camera to photograph an open industrial area is not a search, the Supreme Court emphasized that
commercial property does not have the same heightened expectation of privacy as the home and stated that "the photographs here are not so
revealing of intimate details as to raise constitutional concerns." n242 However,
given the expectation of privacy in the home
and the Supreme Court's assertion that "in the home ... all details are intimate details," n243 it could be
that any [*488] UAS surveillance taken through skylights, windows, or open doors constitutes a search.
n244 Finally, and most importantly, in Kyllo, the Supreme Court may have opened the door to warrantless UAS
surveillance of the home at some point in the not-too-distant future. n245 In holding that the use of
thermal imaging constitutes a search, the Court provided an important caveat by stating that when the
technology used is available to the general public, it does not constitute a search. n246 Therefore, it appears
that the Court's bright-line rule drawn at the entrance to the home may have been written in
"disappearing ink." n247 To date, UAS are not in general public use. n248 That is about to change since certain government agencies are
allowed to operate them, the FAA is required to fully integrate them into U.S. airspace by 2015, and their decreasing cost makes them more
widely accessible. n249 Once the use of UAS becomes commonplace, the government may be able to use them to photograph or scan the
interior of a home without a warrant, regardless of whether the information revealed could not have otherwise been obtained without a
physical intrusion. n250 Therefore,
under the Supreme Court's current jurisprudence, an expectation of privacy
from unmanned aerial surveillance of the home could become unreasonable, removing Fourth
Amendment protections from the place that has historically enjoyed the greatest protection. n251
AT Other Surveillance
Visible surveillance is a unique invasion of privacy
Friedland ’14 (Steven [Elon University School of Law], “The Difference Between Invisible
and Visible Surveillance in a Mass Surveillance World,” February,Elon University Law
Legal Studies Research Paper No. 2014-02 )//MA
With visible surveillance, on the other hand, there is observable nonconsensual government conduct in
the private sphere, often a physical intrusion that violates traditional notions of trespass and private
property rights. When a police officer enters a private home without permission, opens another
person’s laptop and scrolls through it without approval, or follows a driver in a marked police car, the
intrusiveness is palpable. At a minimum, visible surveillance is a display of power that can lead to
embarrassment, psychological harm or anger. 59 In effect, visible surveillance creates a visceral feeling
of ‘un-privacy.’ As one commentator has noted, “Unlike, say, NSA network surveillance or commercial
data brokerage, government or industry surveillance of the populace with drones would be visible and
highly salient. People would feel observed, regardless of how or whether the information was actually
used.”60 Sustained visible surveillance can create great discomfort in the surveilled. When private
individuals engage in such nonconsensual surveillance, for example, it could even become criminal, in
the form of stalking.61
AT Drones Not Weaponized
Law enforcement uses predator drones
Bryan 2014 (Thomas A [J.D. and Master's Degree in International Politics, May 2014, The Catholic
University of America, Columbus School of Law]; STATE V. BROSSART: ADAPTING THE FOURTH
AMENDMENT FOR A FUTURE WITH DRONES; 63 Cath. U.L. Rev. 465; kdf)
C. State v. Brossart: Unmanned Aerial Vehicles Become Part of American Life Against the background of an expected expansion of domestic
UAV use State v. Brossart has attracted widespread media attention because it is among the earliest and most dramatic cases involving UAV use
by law enforcement [*485] officials in United States. n129 The conflict arose in
June 2011 when three cow-calf pairs
belonging to Chris Anderson entered an abandoned missile site rented by Rodney Brossart. n130 After locating
the cattle on Brossart's rented property, Anderson approached Brossart and offered to remove the cattle from
Brossart's land. n131 However, Brossart told Anderson that he could not remove the cattle until he paid for the damages they had done
to his property. n132 Anderson then contacted the Nelson County, North Dakota Sheriff's Office for assistance in recovering the cattle. n133
Upon learning of the disagreement between Anderson and Brossart, the sheriff's office dispatched officers to speak with Brossart regarding the
disputed cattle. n134 During that conversation, the officers advised Brossart that they had proof of Anderson's ownership of the cattle and
offered to confirm ownership by looking at the cattle. n135 In response, Brossart warned the officers that they would not return if they
attempted to enter his property. n136 Taking this warning [*486] as a threat, the officers asked Brossart to cooperate or face arrest. n137
Brossart ignored their request and returned to his tractor, prompting the officers to detain him. n138 The officers then approached Thomas
Brossart, Brossart's adult son who had arrived on the scene, and requested to enter the Brossart property to "check on the cattle." n139
Thomas advised the officers that they would not be allowed on the property to see the cattle until they had a valid search warrant. n140 The
officers then left the scene to obtain a warrant. n141 The officers
obtained a search warrant permitting them to enter
the rented land that afternoon and served the warrant at the Brossart home, which was located a half-mile from
the rented land. n142 However, as they entered onto Brossart's property to serve the search warrant, the three
Brossart sons, Alex, Thomas and Jacob, rushed at the officers with guns drawn. n143 This action resulted in a
standoff between the officers and the three sons. n144 During the standoff, the police deployed an MQ-9 Predator B
Drone obtained through an agreement with [*487] the United States Department of Homeland Security. n145
The UAV was deployed without obtaining an additional warrant, purportedly "to help assure that there weren't any
weapons [on the Brossart property] and to make the arrest safer for both the Brossarts and law enforcement." n146 The next morning, officers
entered the Brossart property to recover the cattle and arrested three of the Brossart children after they again confronted officers. n147 The
Brossarts did not learn that a UAV had been deployed during the standoff until after their arrest. n148
AT FAA Solves
FAA is not instituting privacy safeguards
Oyegunle 13 (Ajoke [J.D. candidate, Columbus School of Law]; Comment: Drones in the Homeland: A
Potential Privacy Obsruction Under the Fourth Amendment and the Common Law Trespass Doctrine;
2013;
http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/auth/checkbrowser.do?ipcounter=1&cookie
State=0&rand=0.194887649987070 98&bhjs=1&bhqs=1)//AJ
In the wake of September 11, 2001, n1 the nation changed in a particularly defining way: it has become
more protective. From the rubble emerged a nation transformed--one guarded and hyper-vigilant,
accepting of less privacy in the name of national security. n2 The PATRIOT Act, a promise for a stronger,
safer America, was one such concession. n3 A broad-ranging law, the PATRIOT Act allows the federal
government greater access to collect private information from individuals and organizations. n4 Years
after the PATRIOT Act was enacted, support for the law n5 illustrated the Zeitgeist of a terror-strewn
nation. n6 Legislation [*366] in the aftermath of September 11th has posed some barriers to Fourth
Amendment protection. n7 Although the intent of the FAA Modernization and Reform Act of 2012 ("FAA
Act") was to respond to terrorism, it has been viewed as a seamless expansion of the policies set forth in
the Patriot Act that ultimately weakened privacy. n8 The impending deployment of drones into the
national airspace is a linear progression of the tradeoff between privacy and national security that the
nation made eleven years ago. n9
As advances in technology have made it easier for the government and private entities to access, collect,
and share the private information of individuals, privacy concerns have become increasingly relevant.
n10 The Fourth Amendment guarantees protection against unreasonable searches and seizures by the
government. This concept is central to cases concerning the collection of private information through
the use of unmanned aerial vehicles (UAVs), which are more commonly referred to as drones. n11 The
FAA Act directs the FAA to license drones and allows for the routine use of unmanned aircraft in
domestic skies. n12 The FAA Act does not, however, institute privacy safeguards. n13 Because drones
have the unique capability of collecting massive amounts of highly sensitive, private information that
could ordinarily be shielded by some form of technology (e.g., computer firewall) or physical structure,
n14 their proliferation [*367] may raise legitimate and urgent privacy concerns. n15 This article is not
intended to impugn domestic drone expansion, but rather, issues a caveat to premature action before
thorough privacy and safety assessments have been conducted.
2AC WOT
Deference High Now
Unchecked executive is leading to ineffective surveillance and drone policies that are
devoid of standards
Brand and Guiora 15 (Jeffrey S., J.D., Dean Emeritus and Professor of Law, Director Center for Law
and Global Justice, University of San Francisco School of Law, and Amos N., Ph.D, Professor of Law, S.J.
Quinney College of Law, University of Utah, Co-Director, Center for Global Justice, The Steep Price of
Executive Power Post 9/11: Reclaiming Our Past to Insure Our Future, Jan. 27, 2015,
http://www.law.utah.edu/the-steep-price-of-executive-power-post-911-reclaiming-our-past-to-insureour-future/)
Each of these accounts is connected by a common thread – the exercise of unrestrained Executive
Branch power that ignores the fundamental principle that the President and his subordinates do not
have unilateral authority to surveil any call, to engage in illegal torture, or to launch attacks almost
certain to kill. Each reflects policies that pursue national security while ignoring a fundamental truth
about our democracy: Absent appropriate checks and balances, the rule of law is undermined and
individual liberty is likely to be sacrificed. Of course, this observation is hardly novel and has been
reiterated constantly throughout the 240 year history of the Republic. James Madison articulated it in
the Federalist Papers: “The accumulation of all powers, legislative, executive, and judiciary, in the same
hands…may justly be pronounced the very definition of tyranny.” Justice Kennedy wrote about it in
2004, upholding the right of habeas corpus for Guantanamo detainees: “The Framers’ inherent distrust
of governmental power was the driving force behind the constitutional plan that allocated powers
among three independent branches. This design serves not only to make Government accountable but
also to secure individual liberty.” America’s post-9/11 response abandons this foundational principle,
ceding unitary authority to the Executive Branch, despite strong evidence that its surveillance,
interrogation and drone policies have been ineffective, counter-productive, lack transparency, and are
devoid of specific standards or oversight for their implementation.
Executive is now an imperial power without restraints from the other branches
Huq ’10 (Aziz Z., assistant professor of law, senior consultant analyst for the International Crisis Group,
researcher of constitutional design, law, criminal procedure, and federal courts, “Binding the Executive
(by Law or by Politics)”, University of Chicago Law School, cl)
It is close to a tenet of faith among constitutional scholars of diverse persuasions that ours is a republic
dominated by the executive branch.5 Economies of bureaucratic scale, coupled with the executive’s
primacy in responding to new security, economic, and environmental crises, are said to have frayed the
Constitution’s delicate interbranch balance of powers. As a consequence, it is conventional wisdom that
our President is now “imperial,” and Congress “broken.”7 Eric Posner and Adrian Vermeule—
hereinafter collectively “PV”—are among the most sophisticated advocates of this dictum. But with a
twist. Drawing on political science, game theory models, and the economics of agency relationships,
their book The Executive Unbound: After the Madisonian Republic proposes that neither law nor legally
constituted institutions (that is, Congress and courts) in practice impose meaningful constraints on the
federal executive. This is so, PV say, not only in the heat of emergency but also in the ordinary run of
administration (pp 4–5).8 Succinctly put, their thesis is that “major constraints on the executive . . . do
not arise from law or from the separation-of-powers framework” (
Deference Hurts WOT
Goal Displacement
Deference leads to goal displacement – planning is key to preventing subordinates
from undermining effectiveness by acting contrary to executive goals
Pearlstein, 9 - Visiting Scholar and Lecturer in Public and International Affairs, Woodrow Wilson
School of Public & International Affairs, Princeton University (Deborah, “Form and Function in the
National Security Constitution,” 41 Conn. L. Rev. 1549, Lexis)
The new functionalists' instinctive attraction to flexibility in decision-making rules or structures-and
its corresponding possibilities of secrecy [*1602] and dispatch-is not without foundation in
organization theory. n183 Flexibility ideally can make it possible for organizations to adapt and
respond quickly in circumstances of substantial strain or uncertainty, as conditions change or
knowledge improves, and to respond to events that cannot be predicted in advance. n184 In a crisis
or emergency setting in particular, one can of course imagine circumstances in which taking the
time to follow a series of structurally required decision-making steps would vitiate the need for
action altogether. n185
What the new functionalists fail to engage, however, are flexibility's substantial costs, especially
in grappling with an emergency. For example,organizations that depend on decentralized
decision-making but leave subordinates too much flexibility can face substantial principal-agent
problems, resulting in effectively arbitrary decisions. The problem of differences in motivation or
understanding between organizational leaders and frontline agents is a familiar one, a disjunction
that can leave agents poorly equipped to translate organizational priorities into priority-consistent
operational goals. As Sagan found in the context of U.S. nuclear weapons safety, whatever level of
importance organizational leadership placed on safety, leaders and operatives would invariably
have conflicting priorities, making it likely that leaders would pay "only arbitrary attention to the
critical details of deciding among trade-offs" faced by operatives in real time. n186 One way of
describing this phenomenon is as "goal displacement"-a narrow interpretation of operational
goals by agents that obscures focus on overarching priorities. n187 In the military context, units in
the field may have different interests than commanders in secure headquarters; n188 prison guards
have different [*1603] interests from prison administrators. n189 Emergencies exacerbate the
risk of such effectively arbitrary decisions. Critical information may be unavailable or inaccessible.
n190 Short-term interests may seek to exploit opportunities that run counter to desired long-term
(or even near-term) outcomes. n191 The distance between what a leader wants and what an agent
knows and does is thus likely even greater.
The Cuban Missile Crisis affords striking examples of such a problem. When informed by the
Joint Chiefs of Staff of the growing tensions with the Soviet Union in late October 1962, NATO's
Supreme Allied Commander in Europe, American General Lauris Norstad, ordered subordinate
commanders in Europe not to take any actions that the Soviets might consider provocative. n192
Putting forces on heightened alert status was just the kind of potentially provocative move Norstad
sought to forestall. Indeed, when the Joint Chiefs of Staff ordered U.S. forces globally to increase
alert status in a directive leaving room for Norstad to exercise his discretion in complying with the
order, Norstad initially decided not to put European-stationed forces on alert. n193 Yet despite
Norstad's no- provocation instruction, his subordinate General Truman Landon, then Commander of
U.S. Air Forces in Europe, increased the alert level of nuclear-armed NATO aircraft in the region.
n194 In Sagan's account, General Landon's first organizational priority-to maximize combat
potential-led him to undermine higher priority political interests in avoiding potential provocations
of the Soviets. n195
It is in part for such reasons that studies of organizational performance in crisis management have
regularly found that "planning and effective [*1604] response are causally connected."
n196 Clear, well-understood rules, formalized training and planning can function to match cultural
and individual instincts that emerge in a crisis with commitments that flow from standard operating
procedures and professional norms. n197 Indeed, "the less an organization has to change its predisaster functions and roles to perform in a disaster, the more effective is its disastetr
[sic] response." n198 In this sense, a decisionmaker with absolute flexibility in an emergencyunconstrained by protocols or plans-may be systematically more prone to error than a decisionmaker who is in some way compelled to follow procedures and guidelines, which have
incorporated professional expertise, and which are set as effective constraints in advance.
Examples of excessive flexibility producing adverse consequences are ample. Following Hurricane
Katrina, one of the most important lessons independent analysis drew from the government
response was the extent to which the disaster was made worse as a result of the lack of experience
and knowledge of crisis procedures among key officials, the absence of expert advisors available to
key officials (including the President), and the failure to follow existing response plans or to draw
from lessons learned from simulations conducted before the fact. n199 Among the many
consequences, [*1605] basic items like food, water, and medicines were in such short supply that
local law enforcement (instead of focusing on security issues) were occupied, in part, with breaking
into businesses and taking what residents needed. n200
Or consider the widespread abuse of prisoners at U.S. detention facilities such as Abu Ghraib.
Whatever the theoretical merits of applying coercive interrogation in a carefully selected way
against key intelligence targets, n201 the systemic torture and abuse of scores of detainees was
an outcome no one purported to seek. There is substantial agreement among security analysts of
both parties that the prisoner abuse scandals have produced predominantly negative
consequences for U.S. national security. n202 While there remain important questions about the
extent to which some of the abuses at Abu Ghraib were the result of civilian or senior military
command actions or omissions, one of the too often overlooked findings of the government
investigations of the incidents is the unanimous agreement that the abuse was (at least in part) the
result of structural organization failuresn203 -failures that one might expect to [*1606] produce
errors either to the benefit or detriment of security.
In particular, military investigators looking at the causes of Abu Ghraib cited vague guidance, as well
as inadequate training and planning for detention and interrogation operations, as key factors
leading to the abuse. Remarkably, "pre-war planning [did] not include[] planning for detainee
operations" in Iraq. n204 Moreover, investigators cited failures at the policy level- decisions to lift
existing detention and interrogation strictures without replacing those rules with more than the
most general guidance about custodial intelligence collection. n205 As one Army General later
investigating the abuses noted: "By October 2003, interrogation policy in Iraq had changed three
times in less than thirty days and it became very confusing as to what techniques could be
employed and at what level non-doctrinal approaches had to be approved." n206 It was thus
unsurprising that detention and interrogation operations were assigned to troops with grossly
inadequate training in any rules that were still recognized. n207 The uncertain effect of broad,
general guidance, coupled [*1607] with the competing imperatives of guidelines that differed
among theaters of operation, agencies, and military units, caused serious confusion among troops
and led to decisionmaking that it is overly kind to call arbitrary. n208
Would the new functionalists disagree with the importance of government planning for detention
operations in an emergency surrounding a terrorist nuclear attack? Not necessarily. Can an
organization anticipate and plan for everything? Certainly not. But such findings should at least call
into question the inclination to simply maximize flexibility and discretion in an emergency, without,
for example, structural incentives that might ensure the engagement of professional expertise.
n209 Particularly if one embraces the view that the most potentially damaging terrorist threats are
nuclear and biological terrorism, involving highly technical information about weapons acquisition
and deployment, a security policy structure based on nothing more than general popular mandate
and political instincts is unlikely to suffice; a structure that systematically excludes knowledge of
and training in emergency response will almost certainly result in mismanagement. n210 In this
light, a general take on role effectiveness might suggest favoring a structure in which the
engagement of relevant expertise in crisis management is required, leaders have incentives to
anticipate and plan in advance for trade-offs, and [*1608] organizations are able to train
subordinates to ensure that plans are adhered to in emergencies. Such structural constraints could
help increase the likelihood that something more than arbitrary attention has been paid before
transcendent priorities are overridden.
Secrecy
Deference leads to secrecy - prevents organizational learning in a crisis that is essential
to effective decision-making
Pearlstein, 9 - Visiting Scholar and Lecturer in Public and International Affairs, Woodrow Wilson
School of Public & International Affairs, Princeton University (Deborah, “Form and Function in the
National Security Constitution,” 41 Conn. L. Rev. 1549, Lexis)
2. Unity and Insularity
As the new functionalists correctly anticipate, organization theorists have also recognized that strict
bureaucratic control, intense socialization, and a highly developed sense of organizational culture
can not only make rapid action possible, but also ensure adherence to an identified, overarching
priority. n211 Indeed, it follows from the prior section that if formal rules and training are
important, some significant level of control is absolutely necessary lest one risk effective top-down
compliance.
At the same time, however, institutions such as the military (and arguably aspects of the
intelligence community) that are defined by such insular organizational cultures have some
important disadvantages. n212 The exceptional degree of control such organizations exercise
over their members has been used both to advance an organization's official goals, and to pursue
the more self- serving or alternative goals of its leaders. Members' intense organizational loyalty
can foster excessive secrecy and disdain for outside expertise, inhibiting the flow of information
both within and from outside the institution, and skewing attention to organizational priorities.
n213 Especially when coupled with political incentives that impact governmental
organizations, such features can limit the institution's ability to take corrective action or learn
from past organizational mistakes. n214
The post-9/11 context is rife with examples of such pathologies in organizations responsible for
counterterrorism operations. Consider the U.S. response to the anthrax mailings of late 2001,
which came at a time of already heightened vigilance against terrorist attack. After
federal [*1609] investigators concluded that the anthrax attacks were most likely launched by
"U.S. nationals, almost certainly ones with experience in and access to the U.S. biodefense
program and its facilities," and after they discovered that major U.S. biodefense facilities had
been working with anthrax (including weapons-grade powder) for decades, military and
intelligence agencies continued to withhold critical information from other federal agencies
about the facilities and employees involved in such programs. This hamstrung post-attack efforts
to identify the likely source of the attack, and therefore the likelihood of subsequent additional
attacks from the same source. n215
Such behavior echoes that described by the 9/11 Commission investigators studying the
September 11th attacks themselves. n216 Among other things, investigators concluded that one of
the key problems leading to the failure to avert the attacks (despite increasingly alarming
warnings) was the dearth of information sharing inside the intelligence and security communities.
n217 Information was overly compartmentalized, "stove-piped" to too few decisionmakers,
hidden by one executive agency from another and by one branch of government from another,
and limited in its relevance and accuracy from an absence of oversight and competing analysis.
n218 Such findings also emerge from studies of the generally effective Japanese response to the
sarin gas attacks on the Tokyo subway system. Essential to the Japanese government's response
was "a willingness to prioritize cooperation over interagency or intergovernment competition."
n219 In all of these cases, it may well be that such behavior could be addressed by different
incentive structures. But in the absence of such guidance, it was the organizations instinctive (and
structural) insularity that prevailed.
The counterproductive effect of such pathologies can infect more than just real- time
responsiveness; it inhibits error correction over time-a [*1610] feature that theorists identify as
central in explaining the success of those organizations that have operated effectively in chronically
unpredictable environments. n220 In the nuclear safety context, for example, Scott Sagan showed
that Americans had been at greater risk than once thought from accidents involving the U.S. nuclear
weapons arsenal-threats ranging from pilot error, malfunctioning computer warnings, the
miscalculation of an individual officer, and a host of other seemingly inconceivable mistakes n221 in part because actors at every organizational level had incentives to cover up safety problems, "in
order to protect the reputation of the institution." n222 While it was perhaps "not surprising that
the military commands that are responsible for controlling nuclear forces would create a veil of
safety to manage their image in front of the [P]resident, the Congress, and the public," Sagan found
that concern for the effect of revealing mistakes skewed assessments at all levels, "influenc[ing] the
reporting of near-accidents by operators, the beliefs of organizational historians about what is
acceptable to record, and the public interpretation of events by senior authorities." n223
Particularly in operations where failure, when it does occur, can come at an extraordinarily high
price, there is a premium on gaining (and implementing) as much insight as possible from those
failures that do occur. n224
Exaggerates Threats
Deference is flawed- officials will overstate the likelihood of a threat to national
security and put it before liberty
Wells 04- Crowder Professor of Law and Associate Dean for Academic Affairs at the University of
Missouri School of Law
(Christina, Questioning Deference,
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3594&context=mlr) JB
The psychological
findings above suggest that substantial errors occur in risk assessment during times of
intense emotions, such as fear. Individuals are generally likely to overestimate the probability of an
event's occurrence if that event is especially familiar or salient. The presence of an intense emotion can further
exacerbate the tendency to overestimate the likelihood of an event, either because it makes an event especially available
or because people begin to focus on the potentially catastrophic nature of a particularly fearful event, essentially dropping probability out of
the equation altogether. Social
influences can reinforce this skewed risk assessment through the phenomenon of
information and reputational cascades, which can cause a widespread, though erroneous, belief regarding the likelihood of an event. These
findings have substantial implications for law and policy during times of crisis. First, since "[p]ublic officials, no
less than ordinary people, are prone to use of the availability heuristic," they may themselves fall prey to skewed risk assessment.
148 To the extent that government officials often reach such assessments after group deliberation, there is the possibility that such
decisions will be skewed even further by polarization or groupthink. Second, the public may fall prey to skewed risk assessment as a
result of private availability entrepreneurs' attempts to fan fear regarding particular threats. As the public becomes excessively "fearful of
statistically small risks," it may demand that government act to prevent that risk regardless of the costs of regulation or the potential harm
caused by regulating the risk.1 49 To the extent that reputational pressures operate on officials, especially elected ones, they will tend to
respond positively to public demands by enacting legislative and regulatory measures regarding small-probability risks.150 Finally, the
government may itself act as an availability entrepreneur, causing the public to call for government action. Once the public's calls are of
sufficient strength, those officials can then pressure others to enact legislation or take action to further their private agendas.
Public Hysteria/Reputation
Deference fails- the executive branch is driven by reputational concerns and public
hysteria
Wells 04- Crowder Professor of Law and Associate Dean for Academic Affairs at the University of
Missouri School of Law
(Christina, Questioning Deference,
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3594&context=mlr) JB
This discussion has substantial implications for the judicial deference debate. Both sides of the debate argue from fundamental assumptions about various decision
makers' capabilities, and the historical pattern above sheds light on some of those assumptions. First, that pattern
casts doubt on judicial
deference proponents' claim that executive officials are particularly adept at making decisions
involving threats to national security. People generally are not adept at assessing risk in times of great
fear, and history shows executive officials are no different, at least when national security decisions
affect civil liberties at home. Moreover, reputational concerns may pressure officials into catering to
public hysteria. Worse, executive officials are sometimes willing to act as availability entrepreneurs, instigating public hysteria for political ends.
2AC Solvency
Courts Balance Security/Rights
Courts shouldn’t defer to the executive branch- the courts are necessary to achieve
balance between security an liberty
Cole 08- B.A. from Yale and teaches constitutional law, national security, and criminal justice at
Georgetown University Law Center
(David, No Reason To Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint, 75
U. CHI. L. REV. 1335) JB
Third, the authors' argument
that the executive is best situated to balance liberty and security in emergencies
fails to consider the full range of qualities that one might want in an agency tasked to strike such a
balance. The authors correctly note that the executive has advantages in terms of speed, experience, flexibility, and access to
secret information. But while these attributes are certainly important from a security standpoint, they are not
necessarily sufficient to balance liberty against security. Precisely because we rely so heavily on the
executive to maintain our security, we should be skeptical of its ability to give sufficient weight to the
liberty side of the balance. Just as Fourth Amendment doctrine insists on warrants issued by magistrates because we do not trust the
police, whose primary responsibility is law enforcement, to balance privacy interests fairly, so we cannot trust the executive to balance liberty
and security fairly on its own. This
is especially true in an emergency when the executive is under intense
pressure to deliver security. As in the Fourth Amendment setting, judicial review plays an essential role
in achieving an appropriate balance; deference to the executive undermines that role.
Courts Best Check Executive
Courts are the best mechanism to check the courts
Wells 04- Crowder Professor of Law and Associate Dean for Academic Affairs at the University of
Missouri School of Law
(Christina, Questioning Deference,
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3594&context=mlr) JB
One can make a strong
argument that judicial review is generally a viable mechanism for executive branch
accountability during national security crises.197 The judicial forum, with its fact-finding capabilities,
requirements of proof, and requirement that the government justify incursions on civil liberties, fits well
within the general definition of accountability as requiring a specific, public accounting of one's
decisions. Consistent with the psychological definition, positive or negative consequences attach to
executive officials' accounting of their behavior in the form of a judicial ruling for or against the
government.
Growing public opposition to drones has primed the Supreme Court to constructively
use the Constitution to limit executive abuse
Michaels 13 – Staff writer specializing in immigration, international affairs and social
justice issues
("Secret Court To Review American Drone Deaths, Ignoring Civilian Casualties Overseas," 2-18-13,
www.mintpressnews.com/legalizing-drone-strikes-courts-give-facade-of-humane-policy/50345/ DOA: 720-13, y2k)
Legal experts remain hopeful that an emboldened Congress and U.S. Supreme Court
could challenge the illegal use of drones. “It looks like the Obama administration does not want judicial review, but if
Congress puts on enough pressure I think probably there will be such a court established. My position is that the checks and balances in the Constitution, if they
mean anything, mean that the judicial and the legislative branches should be checking and balancing the executive. That means revealing these policies that have
thus far been secret,” Cohn said. President Obama agreed to hand over the White Paper, a secretive document upon which the drone policies are based, to the
Senate Intelligence Committee last week, a positive step forward clarifying the methods of illegal surveillance and assassinations. However, it will take much more
The White Paper “poo-poos judicial review and
says judicial enforcement of such orders would require the court to supervise
inherently predictive judgements by the president and his national security
advisers as to when and how to use force against a member of an enemy force
against which Congress has authorized the use of force,” Cohn said. In other words, Congress does have the
to apply sufficient pressure to actually end the use of drone warfare.
power to order President Obama to hand over documents relating to the drone program. Additionally, it also has the power to establish a viable, transparent court
Eleven states including Virginia, Montana,
Maine, Oklahoma, Missouri, North Dakota, Nebraska, Florida, Oregon and
California have already legislated against drone use in their airspace, a sign that
capable of actually challenging the use of drones in the U.S. and abroad.
even among more conservative constituencies, public opposition to drone use is
growing. This could bolster the U.S. Supreme Court, already capable of ruling on
the constitutionality of unmanned drone surveillance. Previously, the U.S. Supreme
Court used its power in a constructive way by declaring wiretaps during the Bush
administration to be illegal. “They really put the breaks on the worst abuses of the Bush administration. The Supreme
Court slapped down Bush administration policies four times, saying you are not
allowed to strip people of habeas corpus, you are not allowed to set up kangaroo
courts and try people for war crimes and execute them,” Cohn said. Although
Guantanamo Bay prison is still open, the Supreme Court also ruled that the prison
located in Cuba, 90 miles off the coast of the United States, is illegal if U.S. laws do
not apply.
Observer Effect Solves
Transparency
Observer effect empirically leads to greater executive transparency and accountability
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
A third type of pressure imposed by the observer effect prompts the executive to reveal nonpublic
executive policies and, in doing so, try to attest to its own responsible behavior. Once the policies are
widely available, foreign governments, NGOs, and legal scholars can assess and debate them.112 The
disclosure provides a baseline against which courts and the public may evaluate future executive
behavior and challenge that behavior when it appears to countermand the stated policy.113 Of course,
these disclosures are self-serving; they reflect an executive calculation that these policy revelations are
likely to benefit the executive’s case at a manageable cost. And not all litigation leads to disclosure: in
some cases, being sued causes government officials to be more cautious than usual about making public
statements on issues implicated by the litigation. Nevertheless, the executive has revealed a number of
policies under the influence of the observer effect. The government’s decision to reveal publicly the
process by which it determines when and how to transfer military detainees to other countries serves as
an example.114 Initially, the government transferred people from Guantánamo to other countries
without publicly explaining the standards and process by which it conducted those transfers. The
government had not revealed when it sought diplomatic assurances that receiving countries would not
mistreat the detainees; when it sought security assurances (by which a receiving country agreed to take
measures to ensure that a transferred detainee would not undertake dangerous activities); and which
government officials were involved in the process.115In addition, several cases have prompted the
government to identify which set of individuals it deems detainable in particular armed conflicts, even
though no court specifically ordered the government to do so.
Empirics
Judicial constraints on executive counterterrorism empirically lead to more rightscentered policies
Prakash et. al ’10 (Saikrishna B. & Michael D. Ramsey, professors of law and J.D. from Yale and B.A.
from Stanford, “The Goldilocks Executive”, Texas Law Review, cl)
But in any event, we think Posner and Vermeule’s examples actually prove the opposite, illustrating
constraints upon the Executive. Posner and Vermeule argue, for example, that the Supreme Court’s waron-terror cases have not meaningfully checked the Executive because the courts have never finally
ordered anyone to be released.100 Yet that hardly makes their case, for the question is what the
Executive would have done in a world with no judicial review of the claims of alleged enemy
combatants. The Executive’s goal has been to thwart attacks in the United States and to blunt attacks on
U.S. forces overseas. Given this goal, the Executive’s incentive is to detain anyone (especially foreigners)
who might plausibly appear to be involved in terrorism against the United States. Members of al Qaeda
and the Taliban generally cannot vote in the United States, and the costs visited upon them will not
enter the Executive’s calculus. Despite this incentive to detain the enemy indefinitely, the Executive
released many suspected enemy combatants once held in Guantanamo, some of whom have taken up
arms against the United States.101 Why did the Bush Administration release detainees knowing that it
was likely that some would take up arms against the United States? We surmise it was done to stave off
judicial release orders. There is little doubt that the prospect of judicial review and release had an in
terrorem effect on the Executive Branch.
Balances Security/Rights
Observer effect provides a balanced approach that promotes both security and rights
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Both of these debates—about how extensively courts do defer to the executive on national security
issues and about how much they should defer—fail to take into account an important dynamic that
should inform our views about national security deference: the observer effect. Understanding the way
the observer effect operates should lower the temperature of the debate. The observer effect ultimately
advances all three core separation-of-powers values just discussed: protecting individual liberty (and
sustaining a more systemic balance of power), preserving democratic accountability, and promoting
efficiency and effectiveness. This is not to argue that the observer effect allows accountability and
effectiveness goals to manifest themselves as vigorously as complete judicial deference would. Nor is it
to argue that reliance on the observer effect advances the protection of individual rights as robustly as a
total absence of judicial deference would. It is to suggest, however, that the observer effect potentially
promotes all three values at once in a way that the alternatives do not. As a result, the current
normative deference debate—which either favors the executive’s functional advantages by allowing the
executive broad discretion to navigate national security issues, or urges judicial involvement to protect
individual rights and preserve structural balance—needlessly frames the discussion as an either/or
proposition. Instead, ample judicial deference to executive security policies—interspersed with
occasional nondeferential decisions—can promote both sets of values simultaneously.
Spillover
Court decision on national security have a wide ripple effect that can have a powerful
effect on executive policies
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
In another sense, though, much of substance has been decided since 2002—by the executive branch
rather than the courts. This Article illustrated an important reason why the executive’s national security
policies have changed significantly since 2001. Many of these changes are due not to the direct sunlight
of court orders, but to the shadow cast by the threat or reality of court decisions on executive
policymaking in related areas of activity. Court decisions, particularly in the national security realm, have
a wider ripple effect than many recognize because the executive has robust incentives to try to preserve
security issues as its sole domain. In areas where the observer effect shifts executive policies closer to
where courts likely would uphold them, demands for deference by the executive turn out to be more
modest than they might seem if considered from the isolated vantage of a single case at a fixed point in
time. It remains critical for courts to police the outer bounds of executive national security policies, but
they need not engage systematically to have a powerful effect on the shape of those policies and,
consequently, the constitutional national security order.
Public Criticism Strengthens
Public criticism makes the executive uniquely prone to the observer effect
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Public Attention It is a truism that issues attracting public attention and debate draw the attention of
executive policymakers as well, especially where the executive’s current approach to those issues has
produced negative congressional and media reactions. The observer effect amplifies the reasons that
the executive will be inclined to alter its policies. The premise of the observer effect is that the executive
responds to certain or probable judicial attention to its national security policies by attempting to
ensure that those policies will survive (or deter) judicial scrutiny. As the executive knows, courts are
attuned to popular discourse.157 Thus, when entities such as Congress, nongovernmental organizations
(NGOs), journalists, human rights groups, or national security “hawks” already have begun to scrutinize
and criticize those policies, the executive reasonably surmises that the courts are aware of this public
criticism. As a result, the executive is more likely to perceive that a court may intervene, especially when
the courts sense a shift in the public’s (and, importantly, the elite’s) views on an issue.158 Because the
executive is aware that courts can mandate specific policy changes in a way that the public cannot, the
executive may be just as conscious of the elite’s influence on court preferences as it is of the direct
influence of the elite on its own decisionmaking. Where public criticism appears pervasive enough to
alter judicial preferences, the executive is prone to feel the observer effect more keenly.
1.
AT CPs
McNeal CP
Time limits get circumvented
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT UNREASONABLE
SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
A. The Inability of the Katz Test to Address UAS Surveillance While the Supreme Court's decision in Jones could be interpreted as an effort to
bolster privacy protections in public places, it will not affect UAS surveillance which involves no trespass. n276 If a challenge [*492] to
prolonged UAS surveillance were to occur, the Court would have to either provide an arbitrarily determined length of time during which UAS
surveillance could pass constitutional muster, n277 or hold that the Fourth Amendment is not implicated. n278 Any
time limit on
warrantless UAS surveillance established by the Court would be based on an analysis of a reasonable
expectation of privacy. n279 Some members of the Court, including Justice Sotomayor n280 and Justice Alito, n281 may
support time limit rules as evidenced by their concerns that long-term tracking may interfere with
privacy expectations. Even if the Court were to establish such a time limit, it would not be difficult for
law enforcement to circumvent it. n282 However, there are more fundamental problems with the Katz test than practical
concerns with its implementation. n283 [*493] The Katz reasonable expectation of privacy test has been criticized for its circular nature. n284
As long as UAS surveillance remains sufficiently rare, an individual's expectation of privacy is considered reasonable and it is protected from
government intrusion by the Fourth Amendment. n285 Once
UAS flights become routine, the expectation of privacy is
no longer reasonable and its protection is removed. n286 The result becomes a "paradoxical situation in
which law enforcement overreach is legitimized once it becomes routinized." n287 This could happen as
early as 2015 when UAS can be fully integrated into U.S. airspace. n288
Curtilage limits fail too – court action on warrants key
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT UNREASONABLE
SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
Critical to a court's analysis would be how it evaluates UAS surveillance in light of the emphasis on aerial
surveillance taking place in navigable airspace and the routine nature of private and commercial flights.
n218 Because the FAA is currently establishing navigable airspace for UAS, private and commercial usage of UAS is [*485] restricted and flights
are rare. n219 In the absence of routine flights, it is reasonable to conclude that UAS surveillance of the curtilage of a home is currently a search
within the meaning of the Fourth Amendment. n220 That analysis is likely to change in 2015 and beyond, when UAS are expected to become
commonplace in U.S. airspace. n221 Under Supreme Court jurisprudence, it
is likely a search if the government uses UAS
surveillance to expose areas within the curtilage which an individual has concealed from aerial
observation. n222 Because the area is not exposed, and curtilage enjoys similar protection as the interior of the home, an expectation of
privacy should be recognized as reasonable. n223 For example, if an individual planted trees in his backyard to conceal his actions from aerial
observation, it would likely be a search if police used laser radar affixed to a UAS frame to see through the foliage. Ultimately, any
Fourth
Amendment protection of the curtilage from warrantless UAS surveillance is likely expiring. n224 Once
UAS are generally available to the public and their flights become routine in public airspace, an
expectation of privacy from UAS surveillance will no longer be reasonable. n225 At that point the litigated issue will
likely become whether the technology employed by a particular UAS is in general public use or not. n226 Many of the technologies, such as
digital cameras, are already in general public use, and it may not be long before others join them. n227 The curtilage
then be vulnerable to UAS surveillance without any Fourth Amendment protections.
of the home may
Congress CP
Congressional oversight empirically fails at creating an observer effect
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Second, although in theory Congress may insert itself into the policymaking process—including by
legislating directly or by conducting oversight hearings—it faces a number of hurdles to doing so. As Aziz
Huq notes, “Terrorism is a subject matter that is especially prone to legislative delegation because it
often entails hard trade-offs. Post-9/11 legislation generally leaves large discretion in executive hands.
For example, when fashioning substitutes for habeas corpus, Congress left open both substantive and
procedural rules.”138 In addition to this delegation, congressional oversight mechanisms have not
proven particularly robust.139 The president may limit executive reporting to Congress by interpreting
particular statutory terms narrowly, as he seems to have done with the term “hostilities” in the War
Powers Resolution.140 Congressional reports on national security issues tend to emerge years after the
fact and thus have limited impact on policy setting that must take place quickly.
Congress does not have an observer effect – it is even more aggressive on security
than the executive
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Second, although in theory Congress may insert itself into the policymaking process—including by
legislating directly or by conducting oversight hearings—it faces a number of hurdles to doing so. As Aziz
Huq notes, “Terrorism is a subject matter that is especially prone to legislative delegation because it
often entails hard trade-offs. Post-9/11 legislation generally leaves large discretion in executive hands.
For example, when fashioning substitutes for habeas corpus, Congress left open both substantive and
procedural rules.”138 In addition to this delegation, congressional oversight mechanisms have not
proven particularly robust.139 The president may limit executive reporting to Congress by interpreting
particular statutory terms narrowly, as he seems to have done with the term “hostilities” in the War
Powers Resolution.140 Congressional reports on national security issues tend to emerge years after the
fact and thus have limited impact on policy setting that must take place quickly.Congressional Pressure
As political scientists have demonstrated, a strategic executive will be attuned not just to the judiciary as
a potential audience for its policymaking, but also to Congress. The executive accordingly will take into
account potential congressional reactions to its policy decisions when finalizing those policies. Perhaps,
then, Congress is a key source of pressure on executive policymaking, leading the executive to alter or
reveal various national security policies and procedures. Two facts indicate that Congress has played a
modest role in shaping the national security policies discussed here. First, the timing of the policy
changes seems closely aligned with activity in courts, and seems unrelated to salient activity in Congress.
In many cases, Congress only became involved in cementing policy changes well after the executive
already had made them on its own. For instance, the 2005 Detainee Treatment Act effectively codified
(with modest amendments) the Bush Administration’s 2004 Combatant Status Review Tribunals.196
Congress has not legislated (or even threatened to legislate) to mandate particular review procedures
for detainees in Afghanistan, the use of secret evidence in immigration proceedings, or the use of lethal
force overseas against American citizens. In most of the examples considered in Part I, Congress has
come late to the game, if it shows up on the field at all. Second, where Congress has chosen to legislate
in the post–September 11 era, it frequently has been more aggressively security focused and less rights
focused than the executive.197 For instance, in 2007, the Senate passed a “Sense of the Senate,” by a
94-3 vote, opposing efforts to bring Guantánamo detainees to the United States, notwithstanding
President George W. Bush’s interest in doing so.198 In the National Defense Authorization Act for Fiscal
Year 2012, Congress sought to require the executive to detain members of al Qaeda within a military
detention paradigm rather than an Article III criminal paradigm.199 President Obama’s signing
statement opposed that policy and triggered relevant 196. Detainee Treatment Act of 2005, Pub. L. No.
109-148, div. A, tit. X, 119 Stat. 2739 (codified in part at 42 U.S.C. §§ 2000dd to 2000dd-1 (2006)). 197.
There are exceptions to this. For example, certain members of Congress hoped to cabin the executive’s
use of the state secrets doctrine. See infra note 308. 198. 153 CONG. REC. 19,719 (2007). 199. National
Defense Authorization Act for the Fiscal Year 2012, Pub. L. No. 112-81, §§ 1021–22, 125 Stat. 1298
(2011). 2013] THE OBSERVER EFFECT 871 waivers built into the legislation.200 It is hard to reconcile
Congress’s security-driven preferences with policy shifts by the executive in more rights-protective
directions. It is possible that private consultations between some members of Congress and the
executive have affected executive decisions to alter executive policy, but records of those discussions
are not publicly available. There even is evidence of situations in which members of Congress objected
to rights-protective shifts in executive security policies shortly after the executive issued those
policies.201 In short, it is hard to see, based on available direct and circumstantial evidence, that
Congress has exercised a potent “observer effect” of its own over the executive in the national security
arena.
Courts are key to establishing a legal precedent – legislative oversight is playing
technological whack-a-mole
Vacek 09 (Joseph [Assistant Professor, University of North Dakota]; Big Brother Will Soon Be Watching
- Or Will He? Constitutional, Regulatory, and Operational Issues Surrounding the Use of Unmanned
Aerial Vehicles In Law Enforcement; 2009;
http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/results/docview/mltHandler.do?bct=A)//AJ
Every technological step forward in remote sensing raises potential Fourth Amendment issues, and the
implications of law enforcement and executive use of ever cheaper and more numerous surveillance
tools are not fleshed out until the highest courts profess their opinions, sometimes years later. And in
the interim, even newer technologies have rendered the original technologies and questions obsolete.
Even legislative oversight is ineffective - a deliberative organ's skills at playing technological "whack-amole" are futile when compared to the rate of industry advancement.
[*675] The societal questions raised by today's law enforcement use of cutting-edge surveillance
technology in day-to-day operations will need to be answered at the same level they are raised - on the
ground. There is no precedent that squarely addresses privacy implications of governmental use of a
technology that allows essentially permanent, multi-dimensional, multi-sensory surveillance of citizens
twenty-four hours per day. A hypothetical example approaching that kind of surveillance ability would
be a police officer's access to a Google Earth n1 like displway, with a point of view that could be moved
or zoomed anywhere in three dimensions, coupled with real-time visual, audio, thermal, or other
sensing. God-like sensory omniscience, in other words. Individual law enforcement officers' abilities
could be multiplied with a flock of small UAVs, exponentially increasing the state's power to continually
monitor its citizenry.
Our Constitutional jurisprudence, demographics, and technological ability to remotely sense almost
anyone, anywhere, at anytime, seem to be the ingredients necessary for a police state. But interestingly,
law enforcement has not taken full advantage of the potential tools available to them - perhaps for
regulatory impediments, for budgetary constraints, or to avoid running afoul of the Constitution. At any
rate, permanent, ubiquitous surveillance is not the stuff of fiction anymore. So what could usher us into
the brave new world of a big brother-like security state? Off-the-shelf technology, an updated
regulatory scheme, and outdated Fourth Amendment cases could.
Only a ruling about the 4th amendment can solve – CP gets circumvented
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT UNREASONABLE
SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
C. Privacy Concerns The
advent of the widespread government use of UAS has raised concerns about the
potential threat to Americans' privacy. n64 Critics warn of a surveillance society in which the government monitors, tracks,
records, and scrutinizes individuals' every move. n65 Individuals have expressed sentiments such as, "I do not want flying spy robots looking
into my private property with infrared cameras ... It's an invasion of my privacy." n66 Survey results indicate that the American public is
opposed to using UAS in routine police matters. n67 Public opposition to drone use has had some effect. In response to
public backlash, the Seattle Police Department recently returned its two UAS to the manufacturer after the mayor banned their use. n68
Virginia's legislature has imposed a two-year moratorium on using UAS for criminal investigations. n69 Similarly,
Congress has
introduced legislation that would establish limitations on law enforcement's use of UAS platforms. n70
Although privacy concerns can be addressed by Congress n71 or state legislatures, the constitutionality of law
enforcement's use of UAS for aerial surveillance will ultimately be determined by the courts. n72 The issue
to be resolved is whether domestic UAS use is lawful under the Fourth Amendment. n73 The remainder of this
comment will analyze the government's use of UAS for aerial surveillance under [*470] the Fourth Amendment and argue for a
jurisprudence that will maximize protections for individual privacy rights.
Courts are key to creating an effective precedent – legislative action will fall behind
technology
Koerner 15 (Matthew [J.D. Duke University School of Law]; Drones and the Fourth Amendment:
Redefining Expectations of Privacy; March, 2015; http://www.lexisnexis.com.p
roxy.lib.umich.edu/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T222512
84585&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T2225
1284591&cisb=22_T22251284590&treeMax=true&treeWidth=0&csi=7336&docNo=5)//AJ
[*1133] Drones, with their current and projected capabilities, present a perfect storm of issues that fall
outside of current Fourth Amendment jurisprudence but still appear to implicate the Fourth
Amendment. n20 Drones can maneuver through each and every loophole of the jurisprudence for
warrantless searches. n21 They travel on public airways at low or high altitudes, undetected and with
little or no undue noise, nuisance, or threat to persons or property. n22 They can utilize senseenhancing technologies that are, or will soon be, in general public use. n23 And drones can use these
technologies to gather an abundance of intimate details and information, previously impossible or
impracticable to acquire. n24 Law enforcement is likely to increasingly use drones for domestic
surveillance, n25 and this will likely propel drones to the forefront of courts' dockets. n26
Scholars have written exhaustively on many aspects of the Fourth Amendment, and its intersection with
drones has recently [*1134] received significant attention. n27 Much of the literature on drones and
the Fourth Amendment recognizes that it is unclear where - and whether - drones fall within current
jurisprudence, and recommends a variety of legislative solutions. n28 But although scholars identify the
legal uncertainties with drones, those recommending legislative action endorse a partial solution that
only perpetuates the problem that the courts have maintained with respect to technology and the
Fourth Amendment. Specifically, just as current Fourth Amendment jurisprudence has failed to keep
pace with advancing technology, a legislative approach will also trail behind. n29 This Note addresses
these [*1135] issues and recommends an adaptive approach to Fourth Amendment jurisprudence in
the age of the drone.
For these reasons, it is highly probable that courts will soon confront issues regarding the use of drones
for domestic surveillance. n30 This Note argues that when these issues arise, courts should apply the
reasonable-expectation-of-privacy test expounded in Katz v. United States, n31 and, in doing so, expand
on the subjective-expectation-of-privacy requirement. This oft-neglected element of the two-pronged
test provides critical analysis that is especially relevant to cases involving drones. In further analyzing
and clarifying the subjective-expectation requirement, courts should proceed in three steps. First, they
should determine whether the surveilled person "exhibited an actual (subjective) expectation of
privacy" - the [*1136] threshold issue in order for the Fourth Amendment to apply. n32 Second, if the
person held a subjective expectation of privacy, courts should evaluate the scope of that privacy
expectation. And third, they should determine whether the person "exposed [information] to the "plain
view' of outsiders" and whether the evidence at issue fell within the scope of that exposure. n33
1AR States Solvency Deficit
More than half the states use drones for law enforcement
O’Connor, December 04, 2014
(William, experience includes aviation, product liability, insurance/reinsurance, toxic tort, and commercial litigation matters. He has tried jury
cases to verdict in federal and state court. His practice involves complex and multidistrict litigation, with a special emphasis on the
representation of aerospace companies in high-stakes litigation. Mr. O’Connor’s areas of focus include litigation arising from significant aviation
accidents and product liability matters. Mr. O’Connor has represented airlines, aerospace manufacturers, and airports in high-profile cases
involving major commercial airline disasters, military and civilian helicopter accidents, and business jet crashes., recommended by Legal 500 US
in the area of aviation litigation and by Best Lawyers in America for product liability litigation. In 2014, Chambers USA ranked him among the
leading lawyers in aviation litigation. In 2015, the Daily Journal named him to their “Top 20 Under 40” list. He was also recognized by his peers
as a finalist for The San Diego Daily Transcript’s “2008 Young Attorneys.” Mr. O’Connor is on the Board of Governors for the San Diego chapter
of the Association of Business Trial Lawyers and is a barrister in the Honorable J. Clifford Wallace Chapter of the American Inns of Court, “May
State And Local Gov't Control Low-Flying Drones?,” Portfolio Media, Inc.,
http://www.mofo.com/~/media/Files/Articles/2014/12/141204MayStateLocalGovControlDrones.pdf, Accesed: June 29, 2015, YDEL)
State and Local Regulation of Drones¶ More than
half of the state governments in the United States have formally
considered legislative¶ actions to address drone operations. At least 10 states have gone further and
enacted such legislation.¶ Alaska, for example, passed a bill creating procedures and policies for the use
of drones by law¶ enforcement, including regulations governing information collected by drones.
Illinois, Indiana, and Iowa¶ have also passed legislation that similarly regulates the use of drones in law
enforcement. Louisiana’s legislation extends to the civil sector, prohibiting the unlawful use of an
unmanned aircraft system,¶ defined as the “intentional use of a UAS to conduct surveillance of a targeted facility without the¶
owner’s prior written consent.”¶ At least two states have passed laws that directly address drone flight as
opposed to privacy. Oregon¶ allows property owners to sue a drone operator if (1) a drone has flown less than
400 feet above the¶ owner’s property at least once, (2) the property owner has told the drone operator that he/she does not ¶ consent to the
drone flying over his/her property, and (3) the operator then flies the drone less than 400¶ feet above the property again. Tennessee
has
gone even further, criminalizing the operation of lowflying¶ drones over private property.¶ Nonfederal efforts
to regulate drones are not limited to the state level; municipalities are also stepping¶ in to regulate drones. St. Bonifacius, Minnesota, for
example, passed a resolution banning anyone from¶ operating a drone “within the airspace of the city,”
making a first offense a misdemeanor and a repeat¶ offense a felony. Northampton, Massachusetts, passed
a resolution affirming that — within the city¶ limits — “the navigable airspace for drone aircraft shall
not be expanded below the long-established¶ airspace for manned aircraft,” and that “landowners subject to state
laws and local ordinances have¶ exclusive control of the immediate reaches of the airspace and that no drone aircraft shall have the¶ ‘public
right of transit’ through this private property.” Some towns have considered legalizing self-help¶ remedies like “drone hunting,” while others
have simply passed resolutions calling for federal action.¶ It
seems plain that laws regulating drones are becoming a
standard part of the regulatory landscape in¶ most states. What is the legal status of such regulations today, and what
will become of these local¶ regulations when the FAA issues drone-specific regulations? Can and should the FAA curtail local¶ authority to
regulate drones? If so, how will the FAA be able to effectively regulate the many¶ inexpensive drones available for myriad uses, benign and
malign, that operate below what traditionally¶ has been considered “navigable airspace.”
Lower Courts CP
Supreme Court precedent is key to promoting international rule of law regarding terrorism
Scharf et al. 09 – (Michael, Counsel of Record, Brief of the Public International Law & Policy Group as
Amicus Curiae in Support of the Petitioners, Jamal Kiyemba, et. Al., v. Barack H. Obama, et al., SCOTUS,
No. 08-1234, 12—09, p. 8-20)
II. PILPG’S EXPERIENCE ADVISING FOREIGN GOVERNMENTS AND JUDICIARIES ILLUSTRATES THE
IMPORTANCE OF SUPREME COURT PRECEDENT IN PROMOTING RULE OF LAW IN FOREIGN STATES
DURING TIMES OF CONFLICT. During PILPG’s work providing pro bono legal assistance to foreign
governments and judiciaries on the rule of law in conflict and post-conflict settings, clients frequently
request guidance on U.S. laws and the role of the judiciary in the U.S. system of governance. In recent
years, as states have watched the U.S. tackle the legal issues surrounding the war on terror, foreign
governments and judiciaries have expressed keen interest in, and have demonstrated reliance on, the
legal mechanisms the U.S. has adopted to address the challenges presented in this new form of
conflict. The U.S. Government, under the guidance of this Court, has set a strong example for
upholding the rule of law during times of conflict, and foreign governments have followed this lead .
When states follow the example set by the U.S. Government, the U.S. can benefit greatly . The U.S.
Government recognizes that foreign states with strong and i ndependent judicial systems and a
commitment to the rule of law make the most stable allies and partners. Stable allies and partners in
turn create the best environment for U.S. business investments and commerce and provide the most
safety for Americans traveling abroad. Through PILPG’s work with foreign governments, PILPG has
observed that U.S. rule of law interests are best represented abroad when foreign governments view
the U.S. as committed to the primacy of law. See Michael P. Scharf, International Law in Crisis: A
Qualitative Empirical Contribution to the Compliance Debate, 31 Cardozo L. Rev. 45, 64-65 (2009). A.
Foreign Governments Rely on U.S. Precedent to Promote Rule of Law in Times of Conflict. As noted
above, PILPG has advised over two dozen states and governments on the negotiation and
implementation of peace agreements and the drafting of post-conflict constitutions. PILPG has also
advised all the international war crimes tribunals. PILPG frequently serves as pro bono counsel to foreign
governments and judiciaries, advising those governments and judiciaries on important legal issues
during times of transition. PILPG’s unique relationship with its clients provides the organization’s
members with rare insight into the decision-making process of foreign governments and judiciaries
and the i nfluence that the U.S. and this Court have on promoting rule of law during times of conflict.
The following examples, from Uganda, Nepal, Somaliland, and South Sudan, illustrate some of the ways
in which foreign governments and judiciaries rely on the leadership of the U.S. and this Court to
promote rule of law in their home states. i. Uganda In Uganda, the precedent established by this Court
in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene v. Bush, 128 S.Ct. 2229 (2008), influenced
judges and legislators to incorporate the principles of judicial review and enforceability in their domestic
war crimes bill. In 2008 members of PILPG began working with the Government of Uganda to establish a
War Crimes Chamber within the Ugandan High Court to prosecute members of the Lord’s Resistance
Army (LRA). The LRA is an insurgent group operating in Northern Uganda, which, over the past twentyfive years, has kidnapped over sixty thousand young Ugandan girls and boys, and forced them to be sex
slaves and child soldiers. PILPG worked closely with the Ugandan government to establish a judicial
mechanism to address this violence in accordance with international legal standards. After discussing
with PILPG this Court’s holdings in Hamdan and Boumediene, the Ugandan government decided to
include a provision in their bill establishing the War Crimes Chamber that provides for appeal to
Uganda’s highest court. Following the example of the U.S., the Ugandans felt that it was important that
such high profile and controversial cases involving war crimes and terrorism should be subject to the
highest level of judicial review in order to promote independence, fairness, and legitimacy. Provided
that this Court issues a robust interpretation of Boumediene, the Ugandan precedent is likely to be
repeated by other countries, such as Liberia, which are also contemplating the establishment of judicial
bodies to prosecute war crimes and terrorism. ii. Nepal This Court has also served as a model for the
nascent Nepal judiciary. Nepal’s 2006 Comprehensive Peace Agreement ended a decade-long civil
conflict between Maoist insurgents and government forces. The Agreement provided for the election of
a Constituent Assembly to serve as an interim government and to draft a new constitution for Nepal.
Elected in May 2008, the Constituent Assembly is currently in the midst of the constitution drafting
process. PILPG is advising the Assembly’s drafting committees on a number of issues, among them the
structure, composition, and role of the judiciary. Members of the Assembly have repeatedly expressed
the view that the judiciary is a crucial component to fully and effectively implementing the constitution
and ensuring the balance of power in the new government. In technical discussions with members of
the Committee on the Judicial System, PILPG discussed several aspects of the U.S. judicial model,
including: the U.S. federal and state judicial structures; the types of cases the Supreme Court can
adjudicate; the powers and functions of the U.S. judicial branch; the devolution of judicial power in the
U.S.; the role of the Supreme Court in establishing precedent for all U.S. courts; and the mechanisms
used by the Supreme Court to ensure enforcement of its decisions in the lower courts. Members of the
Committee on the Judicial System were particularly interested in how the U.S. federal court system
operates at the national level, and how the U.S. model could be applied in Nepal as Nepal moves
towards decentralizing its court system. As the Constituent Assembly moves forward with developing
constitutional and judicial structures for Nepal, members will continue to look to the functioning of this
Court for guidance on the role of a high court in a federal system, particularly how this Court enforces
key decisions in the lower courts. iii. Somaliland In Somaliland, the government relied heavily on U.S.
terrorism legislation when drafting terrorism legislation for the region. In October 2008, Somaliland, an
autonomous region inside the international borders of Somalia, experienced its first large-scale attack
by terrorist-linked suicide bombers. The Somaliland government sought PILPG’s assistance to develop a
legal framework to combat terrorism based on U.S. terrorism legislation. The government believed that
rule of law was the best means to combat terrorism and build international support for Somaliland’s
efforts towards that end. The Somaliland government sought to address gaps in its legal regime that
prevented law enforcement from accessing information necessary to properly combat future terrorist
attacks, such as telecommunications records, financial transfer records, property rental records, and
vehicle records. The government requested PILPG’s assistance in balancing new government authority
with vital due process safeguards that the U.S. and other states use to protect the rights of citizens. iv.
South Sudan In the South Sudan peace process, the Sudan People’s Liberation Movement/Army
(SPLM/A), the leading political party in the Government of Southern Sudan, relied on U.S. precedent to
argue for the primacy of law and the importance of the enforceability of adjudicative decisions in
deciding one of the most important and contentious issues in the ongoing peace process. In May 2008,
large-scale violence in Abyei, South Sudan, resulted in the destruction of Abyei Town and the
displacement of its residents. The violence further threatened to unravel the 2005 Comprehensive
Peace Agreement between the Government of Sudan and the SPLM/A. The violence was a result of
tension between the parties regarding the long-overdue establishment of boundaries of the Abyei Area,
which straddles the North and South of Sudan and was the location of widespread violence during
decades of civil war. The parties had agreed in the Comprehensive Peace Agreement to a specific
process to determine the boundaries of the Abyei Area. When the Abyei Boundaries Commission issued
its binding decision, however, the Government of Sudan refused to implement the ruling. Given the long
and violent history between the parties, the unresolved status of Abyei threatened to re-ignite
widespread conflict. Rather than returning to hostilities, however, the parties elected to refer the Abyei
question to an adjudicative body. On July 7, 2008, the parties signed the Abyei Arbitration Agreement.
Under the terms of the Arbitration Agreement, the parties agreed to submit questions regarding the
boundaries of the Abyei Area to an arbitration tribunal seated at the Permanent Court of Arbitration in
The Hague. The leaders of the SPLM/A told PILPG that they sought recourse to an adjudicative body
because they believed that the ruling would be enforceable and would be supported by the
international community. Based on the belief that the U.S. legal system promotes the primacy of law
and affirms the critical role of adjudicative bodies in a system dedicated to the rule of law, the SPLM/A
cited U.S. court decisions in its submissions to the Abyei Arbitration tribunal. The SPLM/A memorials
specifically cited this Court, as well as U.S. district and circuit court decisions, to bolster the SPLM/A’s
position that the tribunal should respect the finality of the award of an adjudicative body, such as the
Abyei Boundaries Commission.2 When the Abyei Arbitration tribunal issued its binding decision in July
2009, the arbitration decision also cited this Court’s precedent.3 This Court thus played an important
role in the peaceful resolution of one of the most contentious issues in the South Sudan peace process.
As the foregoing examples illustrate, foreign governments rely on the precedent set by the U.S. and this
Court when addressing new and complex issues in times of conflict. Finding for the Petitioners in the
present case will reaffirm this Court’s leadership in promoting respect for rule of law in foreign states
during times of conflict. B. Foreign Judges Follow U.S. and Supreme Court Leadership in Times of
Conflict. In addition to its work advising foreign governments, PILPG has been and continues to be
involved in a number of judicial training initiatives in foreign states. These initiatives aim to foster
independent and fair judicial systems in transitional and post-conflict states throughout Central and
Eastern Europe, Africa, and the Middle East. In these trainings, PILPG frequently relies on the work of
this Court to illustrate and promote adherence to the rule of law. In 2004, for example, PILPG led a
week-long training session for Iraqi judges in Dubai on due process and civil liberties protections to
institute in the new post-Saddam legal system. The training was seen as an important step toward the
democratization of Iraq, and something that would hasten the ability of the U.S. to withdraw its troops
from Iraq. On the second day of the training program, local and international media published the
leaked photos of the abuses at Abu Ghraib. The Iraqi judges would not allow the training sessions to
continue until PILPG answered to their satisfaction questions about whether the U.S. judicial system
could ensure that the perpetrators would be brought to justice, that the victims would be able to bring
suit for their injuries, and that the abuses would be halted. When PILPG returned for another training
session several months later, the Iraqi judges had mixed reactions to the prosecutions of the Abu Ghraib
perpetrators. Some judges perceived the U.S. prosecutions of the perpetrators as not aggressive
enough, which left the Iraqi judges with the impression that the U.S. was not leading by example.
Although other Iraqi judges appreciated and sought to follow the U.S. example to try those responsible
for abuses before an independent tribunal, it was clear that Abu Ghraib temporarily set back U.S. efforts
to establish rule of law in Iraq. A year later, in 2005, PILPG conducted training sessions for the Iraqi High
Tribunal judges who would be presiding over the trial of Saddam Hussein and other former leaders of
the Ba’athist regime. Even more than the human rights training of ordinary Iraqi judges discussed above,
the successful operation of the Iraqi High Tribunal was seen as critical to suppressing the spread of
sectarian violence and heading off a full-scale civil war in Iraq. The objectives of the tribunal were
twofold. First, the tribunal sought to bring those most responsible for the atrocities committed under
the Ba’athist regime before an independent panel of judges to be tried under international standards of
justice. Second, the tribunal sought to establish a model for upholding and implementing rule of law in
Iraq and to demonstrate that the need for rule of law is greatest in response to the gravest atrocities.
During the training sessions, the Iraqi judges requested guidance on controlling disruptive defendants in
the courtroom. Specifically, the judges asked whether they could bind and gag the defendants in the
courtroom as they understood had been done to the defendants in the 1969 “Chicago Seven” trial in the
U.S. PILPG explained that the U.S. Court of Appeals had ultimately overturned the convictions in that
case, in part because of the mistreatment of the defendants in the courtroom. United States v.
Dellinger, 472 F.2d 340 (7th Cir. 1972). This information persuaded the Iraqi judges to seek less
draconian means of control in the trial of Saddam Hussein, which was televised gavel to gavel in Iraq.
See generally Michael Newton and Michael Scharf, Enemy of the State: The Trial and Execution of
Saddam Hussein (2008). Foreign judicial interest in U.S. respect for rule of law during the war on terror is
not limited to Iraqi judges. In 2006, PILPG conducted sessions in a weeklong rule of law training program
in Prague for fifty judges from former Soviet Bloc countries in Eastern Europe. At the start of the first
session, one of the judges asked “Sobriaetes’ li vi goverit’ o slone v komnate?,” which translates to “Are
you going to be addressing the elephant in the room?” Michael P. Scharf, The Elephant in the Room:
Torture and the War on Terror, 37 Case W. Res. J. Int’l L. 145, 145 (2006). The question referred to the
so-called “White House Torture Memos,” released just before the training session began, which
asserted that Common Article 3 of the 1949 Geneva Conventions was not applicable to detainees held at
Guantanamo Bay and which provided justification for Military Commissions whose procedures would
not meet the Geneva standards. Id. at 145-46. The group of judges asked PILPG to explain “how
representatives of the United States could expect to be taken seriously in speaking about the
importance of human rights law when the United States itself has recently done so much that is contrary
to that body of law in the context of the so-called ‘Global War on Terror.’” Id. at 145. PILPG addressed
judges’ concerns by explaining that the President’s decision to establish Military Commissions via
Executive Order, and whether those Commissions had to comport with the Geneva Conventions, was
currently being reviewed by this Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and that the
Executive Branch would be bound to follow the holding of this Court. Scharf, supra, at 148. Foreign
judges closely follow the work of this Court and the example set by the U.S. Government in upholding
the rule of law during the war on terror. As these examples illustrate, when the U.S. upholds the rule
of law, foreign judges are more likely to follow.
Foreign governments model the Supreme Court’s rulings regarding judicial checks on other
branches
Scharf et al. 09 – (Michael, Counsel of Record, Brief of the Public International Law & Policy Group as
Amicus Curiae in Support of the Petitioners, Jamal Kiyemba, et. Al., v. Barack H. Obama, et al., SCOTUS,
No. 08-1234, 12—09, p. 8-20)
III. TRANSNATIONAL JUDICIAL DIALOGUE CONFIRMS THIS COURT’S LEADERSHIP IN PROMOTING
ADHERENCE TO RULE OF LAW IN TIMES OF CONFLICT.
PILPG’s on-the-ground experience demonstrating the leadership of this Court is confirmed by a study of
transnational judicial dialogue. Over the past halfcentury, the world’s constitutional courts have been
engaged in a rich and growing transnational judicial dialogue on a wide range of constitutional law
issues. See, e.g., Melissa A. Waters, Mediating Norms and Identity: The Role of Transnational Judicial
Dialogue in Creating and Enforcing International Law, 93 Geo. L.J. 487 (2005); Anne-Marie Slaughter,
Judicial Globalization, 40 Va. J. Int’l L. 1103 (2000). Courts around the world consider , discuss , and cite
foreign judicial decisions not out of a sense of legal obligation, but out of a developing sense that
foreign decisions are valuable resources in elucidating complex legal issues and suggesting new
approaches to common problems. See Waters, supra, at 493-94.
In this transnational judicial dialogue, the decisions of this Court have exercised a profound — and
profoundly positive — influence on the work of foreign and international courts. See generally
Constitutionalism and Rights: The Influence of the United States Constitution Abroad (Louis Henkin &
Albert J. Rosenthal eds., 1990); Anthony Lester, The Overseas Trade in the American Bill of Rights, 88
Colum. L. Rev. 537 (1988). As Anthony Lester of the British House of Lords has noted, “there is a
vigorous overseas trade in the Bill of Rights, in international and constitutional litigation involving
norms derived from American constitutional law. When life or liberty is at stake, the landmark
judgments of the Supreme Court of the United States, giving fresh meaning to the principles of the Bill
of Rights, are studied with as much attention in New Delhi or Strasbourg as they are in Washington,
D.C.” Id. at 541.
This Court’s overseas influence is not limited to the Bill of Rights. From Australia to India to Israel to
the United Kingdom, foreign courts have looked to the seminal decisions of this Court as support for
their own rulings upholding judicial review , enforcing separation of powers, and providing a judicial check
on the political branches.
Indeed, for foreign courts, this Court’s rulings in seminal cases such as Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803),4 Brown v. Board of Education, 347 U.S. 436 (1954),5 United States v. Nixon, 418
U.S. 683 (1974),6 and Roper v. Simmons, 543 U.S. 551 take on a special significance . Reliance on the
moral authority of this Court can provide invaluable support for those foreign courts struggling to
establish their own legitimacy, to shore up judicial authority against overreaching by powerful
executives, and to develop a strong rule of law within their own national legal systems.
This Court’s potential to positively influence the international rule of law is particularly important in the
nascent transnational judicial dialogue surrounding the war on terrorism and the primacy of rule of
law in times of conflict. As the world’s courts begin to grapple with the novel, complex, and delicate
legal issues surrounding the modern-day war on terrorism, and as states seek to develop judicial
mechanisms to address domestic conflicts, foreign governments and judiciaries are confronting similar
challenges. In particular, foreign governments and judiciaries must consider how to accommodate the
legitimate needs of the executive branch in times of war within the framework of the law. Although
foreign courts are just beginning to address these issues, it is already clear that they are looking to the
experience of the U.S., and to the precedent of this Court, for guidance on upholding the rule of law in
times of conflict. In recent years, courts in Israel, the United Kingdom, Canada, and Australia have relied
on the precedent of this Court in decisions addressing the rights of detainees.8 In short, as a result of
this Court’s robust influence on transnational judicial dialogue, its decisions have proved extraordinarily
important to the development of the rule of law around the world.
International courts have similarly relied on the precedent of this Court in influential decisions. For
example, in the important and developing area of international criminal law, the international war
crimes tribunals for Yugoslavia and Rwanda both relied heavily on the precedent of this Court in their
early opinions. In the first five years of the Yugoslav Tribunal, the first in the modern iteration of the war
crimes tribunals, the justices cited this Court at least seventeen times in decisions establishing the
fundamental legal principles under which the Tribunal would function.9 The International Criminal
Tribunal for Rwanda similarly relied on this Court’s precedent, citing this Court at least twelve times in
its first five years.10 The precedent of this Court has provided a crucial foundation for international
criminal law. The reliance on the precedent of this Court speaks to the Court’s international leadership
on the promotion of respect for the rule of law in times of conflict.
By ruling in favor of the Petitioners, this Court will reaffirm the precedent established in its prior
decisions granting habeas rights to Guantanamo detainees and, in doing so, demonstrate to these
foreign courts, and to other courts who will be addressing these issues in the future, that all branches of
government must be bound by the rule of law, even in the most challenging of times.
States CP
Setting a Constitutional precedent is key to avoiding technological whack-a-mole
Vacek 09 (Joseph [Assistant Professor, University of North Dakota]; Big Brother Will Soon Be Watching
- Or Will He? Constitutional, Regulatory, and Operational Issues Surrounding the Use of Unmanned
Aerial Vehicles In Law Enforcement; 2009; Lexis)//AJ
Every technological step forward in remote sensing raises potential Fourth Amendment issues, and the
implications of law enforcement and executive use of ever cheaper and more numerous surveillance
tools are not fleshed out until the highest courts profess their opinions, sometimes years later. And in
the interim, even newer technologies have rendered the original technologies and questions obsolete.
Even legislative oversight is ineffective - a deliberative organ's skills at playing technological "whack-amole" are futile when compared to the rate of industry advancement.
[*675] The societal questions raised by today's law enforcement use of cutting-edge surveillance
technology in day-to-day operations will need to be answered at the same level they are raised - on the
ground. There is no precedent that squarely addresses privacy implications of governmental use of a
technology that allows essentially permanent, multi-dimensional, multi-sensory surveillance of citizens
twenty-four hours per day. A hypothetical example approaching that kind of surveillance ability would
be a police officer's access to a Google Earth n1 like displway, with a point of view that could be moved
or zoomed anywhere in three dimensions, coupled with real-time visual, audio, thermal, or other
sensing. God-like sensory omniscience, in other words. Individual law enforcement officers' abilities
could be multiplied with a flock of small UAVs, exponentially increasing the state's power to continually
monitor its citizenry.
Our Constitutional jurisprudence, demographics, and technological ability to remotely sense almost
anyone, anywhere, at anytime, seem to be the ingredients necessary for a police state. But interestingly,
law enforcement has not taken full advantage of the potential tools available to them - perhaps for
regulatory impediments, for budgetary constraints, or to avoid running afoul of the Constitution. At any
rate, permanent, ubiquitous surveillance is not the stuff of fiction anymore. So what could usher us into
the brave new world of a big brother-like security state? Off-the-shelf technology, an updated
regulatory scheme, and outdated Fourth Amendment cases could.
Precedent of the plan only sets a constitutional floor for states and municipalities
Rushin 2011 (Stephen [PhD student at the University of California, Berkeley, Jurisprudence and Social
Policy Program; J.D., University of California, Berkeley]; THE JUDICIAL RESPONSE TO MASS POLICE
SURVEILLANCE; 2011 U. Ill. J.L. Tech. & Pol'y 281; kdf)
To begin with, skeptics allege that legislations can more carefully analyze a problem, investigate potential solutions, impanel experts, and make
far-reaching, nuanced policies. n362 Unlike the legislature, which may "command the resources of an extensive bureaucracy ... a judge is
generally limited to a secretary and one or two recent law school ... [graduate clerks]." n363 Kerr has thus argued that the courts simply do not
have the resources to engage in this kind of careful analysis necessary to develop a comprehensive and responsive policy on Fourth
Amendment technologies. n364 On its face, this type of analysis is persuasive, especially considering the fact that the courts lack the funding to
do sweeping investigations into the efficacy of an emerging technology. Nonetheless, this logic ignores a pivotal tactic used by courts in
previous iterations of successful policymaking - the adoption of standards already implemented by other institutions. n365 Malcolm Feeley and
Edward Rubin explained that when the courts attempted to create extensive judicial policy [*325] regulating American prisons, judges turned to
the American Correctional Association and the Federal Bureau of Prisons. n366 Indeed, "Federal judges turned to these standards because they
wanted to impose detailed, administrative-style rules of any sort but lacked the resources to design the rules themselves." n367 Unlike the
prison reform context described by Feeley and Rubin, where the courts created extensive and detailed policy,
the judicial response I
argue for in this Article does not require extensive investigation or uniform implementation. I merely
argue for a judicially mandated floor, which establishes the minimum amount of regulation required for
surveillance technologies. Additionally, there is domestic and international precedent, most notably in Maine, New
Hampshire, Virginia, and Germany, that the courts could use as a model to craft a broad solution. n368 Once the
courts lay out a broad policy objective, police departments and local legislatures would be incentivized
to develop their own, individual policies to implement this judicially mandated, regulatory floor. States
would be free to develop more complex, detailed, and even more stringent protections against data
collection. Some states have already done just that. n369 This pattern can be seen in other areas of criminal judicial policymaking, such as
Miranda requirements. The Court handed down broad general requirements - departments, in implementing the Miranda decision, often went
above and beyond the Court's minimal requirements. Next, critics of judicial regulation of emerging technologies have argued that judges are
not as technically sophisticated as the legislature. Judges often "rely on the crutch of questionable metaphors to aid their comprehension" of
complex technology cases, meaning that "it is easy for judges to misunderstand the context of their decisions and their likely effect when
technology is in flux." n370 But in the unique situation outlined in this Article, judges do not need to be experts in these technological fields to
understand the capabilities of technologies like ALPR and facial recognition software. The danger I discuss in this article is that police will keep a
digital dossier of every single person's movements. This type of monitoring would facilitate fishing expeditions, increase the likelihood of
corrupt behavior by law enforcement, and facilitate some types of racial profiling.
There is little reason to believe that, with
the assistance of knowledgeable advocates, judges could not sufficiently understand the potential
harms posted by digitally efficient investigative technologies to develop a coherent constitutional floor
of protection. And even though the legislature has a broader array of resources at its disposal, the
legislature is an unsatisfactory avenue to protect the unique counter-majoritarian issues at stake. Finally,
some scholars have contended that judicial regulations of [*326] emerging technologies rarely hold up in different factual scenarios. Under this
rationale, critics of this judicial response may contend that while this protection could work when applied to ALPR or facial recognition
software, it would not necessarily be a workable standard for future technological developments. This view certainly has merit. "By the time the
courts decide how a technology should be regulated ... the factual record of the case may be outdated, reflecting older technology rather than
more recent developments." n371 Stuart Benjamin has argued that "rapidly changing facts weaken the force of stare decisis by undermining
the stability of precedents." n372 This provides a forceful case against judicial micromanagement of emerging technologies. But the judicial
response argued for in this Article is sufficiently broad to avoid the predictable antiquation of other, narrower judicial solutions - it merely
distinguishes between observational comparison and indiscriminate data collection, while broadly regulating the identification of data and
interactions with private data aggregators. The collection of extensive, indiscriminate surveillance data is a widespread, pervasive occurrence
common amongst countless investigative technologies. The development of digital dossiers is not a trending fad that will simply disappear in
the near future. We should not expect the legislature to step in and address a problem that may disproportionately affect unpopular minorities.
The Court has long recognized that when making policy in the field of emerging technologies, "the rule
we adopt must take account of more sophisticated systems that are already in use or in development."
n373 The judicial response presented does not prevent the use of surveillance technologies for
observational comparison, but merely offers a sufficiently broad and generalized constitutional limit on
indiscriminate data collection, which can be reasonably exported and applied to future, more
sophisticated technologies. Once more, critics of judicial policymaking seem tacitly concerned that the limited applicability of judicial
rules in the future will weaken the force of stare decisis, thereby undermining the judiciary's legitimacy. But nothing could further de-legitimize
the judiciary more than a failure to serve its fundamental role as a protector against the tyranny of majoritarian preferences. The courts are
therefore the best-positioned actor within our decentralized federal system to protect against the threat of extensive, indiscriminate data
collection. Concerns about the judiciary's institutional competence seem misplaced. And though the courts have limited resources, there is not
enough convincing evidence of a "judicial information deficit" n374 so as to overcome the judiciary's important role as protectors of discrete
and insular minorities.C. Re-conceptualizing the Current Privacy Doctrine in Light of the Digitally Efficient Investigative State A
judicial
response is a step in the right direction in addressing the [*327] growing threat posed by mass police
surveillance. But the proposed judicial response should only be the beginning in a broader shift in our
privacy dialogue. The digitally efficient investigative state has wide-ranging social implications for the entire study of privacy law. I argue
that, given the mounting evidence of efficient retention of public surveillance data and data centralization, it is finally time to re-conceptualize
outdated privacy law assumptions - principal among them the antediluvian notion that an individual has no reasonable expectation to privacy in
public movements. To be clear, I am not arguing that, descriptively, people currently have an honest expectation to privacy in public in today's
world. In the age of GPS, smart phones, Facebook, and Twitter, our socially reasonable expectation to privacy is weaker than ever. Instead, it is
time for a normative reassessment of our entire privacy doctrine. Of course, I am not the first to propose such an argument. Professor Solove
has already observed: Privacy is not simply an empirical and historical question that measures the collective sense in any given society of what
is and has long been considered private. Without a normative component, a conception of privacy can only provide a status report on existing
privacy norms rather than guide us toward shaping privacy law and policy in the future. If we focus simply on people's current expectation of
privacy, our conception of privacy would continually shrink given the increasing surveillance in the modern world. n375 The
judiciary can
and should play a fundamental role in protecting a normatively forceful conception of privacy in all
regards. Do we reasonably expect a person to assume the risk that, every time they enter a public space, the state can monitor their every
movement with ALPR? Do we reasonably expect a person to assume the risk that the state will keep extensive, centralized data on their
movements indefinitely? Or perhaps the more important question is should we expect individuals to completely abandon all anonymity in
public? I believe the clear, normative answer to these questions is a resounding no, and the implications of the digitally efficient investigative
state only add weight to the claims previously made by Professor Solove and others. Ultimately, this Article only scratches the surface of the
broader social implications of the digitally efficient investigative state. Questions remain about the relative criminological benefits of
observational comparison as compared to wholesale data retention. There is an increasing need for empirical research on the effects these
emerging technologies have on individual behavior. And there is a dearth of concrete data on the extent to which law enforcement use these
technologies. I offer only a brief glimpse into this new technological order, the relevant case law, and some general normative
recommendations. This
should only be the beginning of the conversation about the sociological,
psychological, criminological, and legal impacts of the increasingly efficient police surveillance. [*328] 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.
The perm solves
Kaminski 2013 (Margot E [Executive Director of the Information Society Project, Research Scholar,
and Lecturer in Law at Yale Law School]; Drone Federalism: Civilian Drones and the Things They Carry; 4
Calif. L. Rev. Circuit 57; kdf)
DRONE PRIVACY REGULATIONS There are, broadly speaking, two subjects of drone privacy regulation: law enforcement drone use and civilian
drone use. n8 Most advocates and academics have focused on establishing privacy regulations to govern law enforcement drone use. n9 This
task is worthy of immediate attention. The FAA already permits law enforcement drone use, where it does not yet permit commercial private
drone use. n10 A number of state and federal bills thus propose warrant requirements for drone surveillance by law enforcement. n11 The
federal government could regulate law enforcement drone use as it has historically regulated other law
enforcement behavior, by providing a floor for state laws. n12 Federal legislation already governs law
enforcement use of wiretaps and pen registers. n13 Drone surveillance is likely to additionally involve
video surveillance, location tracking, and/or facial recognition, among other possible technologies. Thus
federal legislation governing law enforcement surveillance could be expanded to govern location tracking, video
surveillance, and the use of facial recognition software by law enforcement. n14 [*60] Regulating law enforcement drone use poses few
countervailing dangers from legislating thoughtlessly or in haste; such legislation would implicate Fourth Amendment rights rather than First
Amendment rights, so the worst case scenario is that such legislation might eventually be found by courts not to protect enough privacy. n15
Specialized Courts
Specialized courts undermine the observer effect
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Congress can affect how the observer effect operates between the executive and the courts.298
Specifically, a congressional requirement that certain types of cases be filed in a particular circuit affects
how the observer effect functions. The direction in which the requirement pushes the observer effect is
unpredictable, though, and depends on the substantive inclinations of the designated circuit.299 On one
hand, designating a circuit to handle a particular type of national security case eventually may diminish
the observer effect. The observer effect operates most effectively when courts generally uphold
executive policies but occasionally decline to defer. When a circuit hears a large volume of comparable
cases, the rough edges of the case law become smoothed out as those courts resolve ambiguities. In
these circumstances, the executive is better able to anticipate outcomes. In the short term, as the courts
are moving toward an equilibrium, the executive has incentives to (or is forced by courts to) change its
policies. In the longer term, however, the settled nature of the case law creates few incentives for the
executive to
Specialized courts reduce the executive’s incentives to make policy changes
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
As courts gain confidence and experience in adjudicating these cases, these courts become more willing
to second-guess executive claims that courts lack the institutional capacity and expertise to handle
national security issues.302 If the designated circuit consistently takes a strongly nondeferential
approach to executive policies, the executive has reduced incentives to make modest policy changes to
fend off court involvement. In such cases, the observer effect will wither away. This suggests that
assigning cases by statute to a particular circuit or set of courts has significant disadvantages. Congress
should be attuned to the impact this has on the separation of powers in national security cases and,
where it chooses to designate a circuit, should consider additional ways to ensure a suitable balance
between court oversight and executive flexibility in policymaking.
FBI Planes PIC
CP can’t solve the aff - gets circumvented and more invasive of privacy
Stanley 2015 (Jay [Senior policy analyst, ACLU speech, privacy & tech project]; What's spooky about
the FBI's fleey of spy planes?; https://www.aclu.org/blog/free-future/whats-spooky-about-fbis-fleetspy-planes; kdf)
Following up on a May story by the Washington Post about mysterious aircraft spotted circling over Baltimore, the Associated Press reported
today that the FBI maintains a secret air force with scores of small aircraft registered with 13 front companies under apparently false names,
and that these planes fly over American cities frequently. Obviously law
enforcement has been using aircraft for many
decades. So what’s spooky about this story? Several things: These are not your grandparents’ surveillance
aircraft. As I discussed when the Baltimore story broke, there are several very powerful mass-surveillance
technologies that utilize low-circling manned aircraft, including “Dirtboxes” and persistent wide-area
surveillance in which an entire 25-square mile area can be monitored, and vehicles tracked, for
extended periods of time by a single camera. We need more information about the scope of surveillance these planes are
being used for. The FBI told the AP that its fleet was “not equipped, designed or used for bulk collection
activities or mass surveillance.” We are glad to hear that—but that statement bears more interrogation. For example the AP reports
that the FBI “occasionally” uses Dirtboxes (aka “IMSI catchers” or “cell-site simulators”) on the aircraft. Those certainly
qualify as mass surveillance devices. If the FBI is only using the aircraft when it has a specific target
rather than for broad fishing expeditions, that would be a good thing—but that is not the same thing as saying
that data on masses of people is not being swept up. The FBI told the AP that “under a new policy it has
recently begun obtaining court orders to use cell-site simulators.” But we don’t know what kind of “court orders”
they’re getting to use the devices. Rather than warrants, they may just be obtaining “pen register” orders, as we
have seen done by local police in Baltimore and elsewhere. The sheer scope of the program. A 2010 federal budget document found by the AP
mentions at least 115 planes in the FBI’s fleet, and the FBI has flown over 100 flights over more than 30 American cities in recent weeks, the AP
found. Surveillance
turning inward. One trend we’ve seen in the last 15 years or so is a great “Turning
Inward,” as US surveillance capabilities originally built to spy on the Soviet Union and other overseas
targets have swung inward on the American people. The FBI has a spy plane fleet, hidden behind shell companies with
three-letter names and headed by ghost CEOS with signatures that don’t match over time— it’s all very CIA. Yet these are American cities that
they’re flying over. Cessnas
today, drones tomorrow. Another thing that makes these flights spooky is the
prospect that manned aircraft may soon be replaced with drones. And that will make it all the cheaper and easier to
deploy these flights all the more frequently over even more American cities and towns. And unlike manned aircraft, drones may not be
easy to track through web sites like flightradar24.com, which shows the manned aircraft currently in the air around the world and played a
key role in uncovering the FBI’s air force. It is true that under orders from President Obama the DOJ recently promulgated a privacy policy for its
use of drones, but that policy is not very airtight—for example, it says DOJ
agencies can’t use the planes “solely for the
purpose of monitoring activities protected by the First Amendment.” That is good, but when agencies want
to do surveillance they always claim to have other reasons so the monitoring is not “solely” for such
monitoring. In the end, it doesn’t make sense for drones to be subject to privacy regulations, but not
manned aircraft. Manned aircraft can and do raise very real privacy concerns; for example their use in persistent
wide-area surveillance, and in voyeurism incidents. But manned aircraft are not regulated today, because historically
they have been expensive and their use therefore relatively rare, and their surveillance abilities wellunderstood and relatively limited. What this story tells us is that their use is now more widespread than we thought—and we
know their surveillance capabilities are growing by leaps and bounds. Drones, by raising the prospect of endless
free and easy aerial surveillance, have brought to the fore issues that already existed with manned aircraft, and
new regulations designed to protect against aerial surveillance should not distinguish between manned
and unmanned aircraft. Law enforcement has been using aircraft for many decades. So what’s spooky about reports of FBI fleet of
low-circling planes?
FBI spy planes violate privacy because of unique tech
Storm 15 (Darlene, “Surveillance by FBI's fleet of spy planes raises privacy questions,” Computer
World, 6-3-15, http://www.computerworld.com/article/2930731/security0/surveillance-by-fbis-fleet-ofspy-planes-raises-privacy-questions.html)//BPS
That plane circling overhead might be one of the
FBI’s surveillance aircraft [are] fitted with tech equipment capable
of tricking the cellphones below it into connecting to it – and not a legitimate cellphone tower – and
then indiscriminately sucking up info of subscribers not suspected of any crime. Then again it might not.
In a 30-day period, The
Associated Press “traced at least 50 aircraft back to the FBI, and identified more than
100 flights in 11 states” plus the District of Columbia. Those planes have been flying over “parts of Boston, Chicago, Dallas,
Houston, Minneapolis, Phoenix, Seattle and Southern California” as well rural areas. While you would expect the FBI to use aircraft in
investigations, you might not expect those planes to be registered to shell companies. The AP traced FBI planes “to at least 13 fake companies,
such as FVX Research, KQM Aviation, NBR Aviation and PXW Services.”
Although the FBI said its “aviation program is not a secret,” the agency tried the tactic of asking the AP not to mention the fake companies tied
to the planes as it “would saddle taxpayers with the expense of creating new cover companies to shield the government's involvement, and
could endanger the planes and integrity of the surveillance missions.” The AP must have thought that request was funny and chose to ignore it
because the information about the shell companies and their links to the Justice Department are listed “on public documents and in
government databases.”
115 planes belonging to the FBI, including 90 Cessna aircraft, were mentioned in a 2009 budget document, but while investigating the
Associated Press also discovered:
The planes are equipped with technology that can capture video of unrelated criminal activity on the
ground that could be handed over to prosecutions. One of the planes, photographed in flight last week by the AP in northern
Virginia, bristled with unusual antennas under its fuselage and a camera on its left side.
Some of the aircraft can also be equipped with technology that can identify thousands of people below
through the cellphones they carry, even if they're not making a call or in public. Officials said that practice, which mimics cell
towers and gets phones to reveal basic subscriber information, is used in only limited situations.
“These are not your grandparents' surveillance aircraft,” said ACLU senior policy analyst Jay Stanley. He also explained that “surveillance turning
inward” is just one spooky element about the FBI’s spy planes.
One trend we’ve seen in the last 15 years or so is a great “Turning Inward,” as US surveillance capabilities originally built to spy on the Soviet
Union and other overseas targets have swung inward on the American people. The FBI has a spy plane fleet, hidden behind shell companies
with three-letter names and headed by ghost CEOS with signatures that don’t match over time— it’s all very CIA. Yet these are American cities
that they’re flying over.
After The Washington Post reported that surveillance
planes fitted with infrared cameras to track people’s
movements were flying over Baltimore, the AP discovered that some of those “FBI missions circled above at least 40,000
residents during a single flight over Anaheim, California.” The flight patterns were counter-clockwise and about
one mile above the ground at slow speeds, which suggested to the AP that FLIR cameras were being used.
Earlier this month, the ACLU hit the FAA as well as the DOJ, FBI, DEA, U.S. Marshals Service with Freedom of Information Act requests about the
surveillance planes and flights over Baltimore. The DEA has “at least 92 planes registered to shell companies” and the U.S. Marshals Service use
planes with tech capable of capturing data from thousands of other phones, too.
The Wall Street Journal previously reported the Marshals have been flying Cessna aircraft outfitted with dirtbox devices for seven years,
“snagging a large number of innocent Americans” every time the feds hunt for criminals.
Dirtboxes work like Stingrays, which are in use by “over 46 agencies including law enforcement, the military, and intelligence agencies across 18
states and Washington D.C. for more than a decade.” A
Stingray surveillance device lets law enforcement mimic a cell phone
tower, track
the position of users “who connect to it, and sometimes even intercept calls and Internet traffic, send
fake texts, install spyware on a phone, and determine precise locations.” Dirtboxes can “sweep up identifying
information about tens of thousands of cell phones in a single flight.”
The ACLU’s Stanley said:
Another mass surveillance technique that uses fixed-wing aircraft is known as “Wide-Area Surveillance.” This involves the
installation of super-high, gigapixel resolution cameras on planes, which are then used to monitor entire
cities. Every moving pedestrian and vehicle can be tracked: the beginning and end everyone’s journeys, and the route
taken in between. This gives the authorities the power to press "rewind" on anybody's movements, and learn a lot of
intrusive things about how they live their life.
The investigation by the Associated Press into the FBI’s use of surveillance aircraft does indeed raise questions “about how these surveillance
flights affect Americans' privacy” even if the FBI has started obtaining court orders to use the tech. The agency’s use of cell-site simulators, aka
dirtboxes or IMSI catchers, attached to aircraft is the creepiest part; the technology can track thousands of innocent Americans who did nothing
to deserve having their privacy and civil liberty rights poked with a surveillance stick.
If the FBI is running targeted surveillance in legitimate investigations, then why collect the whole haystack when the agency is investigating one
bad needle inside it?
AT DAs
Util
Privacy first comes before util
Salem 2014 (Jonathan [president of Arcadia Communications Lab]; The eternal value of privacy; Sep
16; endofanonymity.com/2014/09/16/the-eternal-value-of-privacy/; kdf)
The eternal value of privacy seems somewhat quaint or detached from our normal conversations about
privacy, which usually conflate two other topics, namely commerce and security. The former point casts things
in the light of some imagined quid pro quo commercial transactions between monitor and individuals
being watched (I get to use a “free” social platform because I’m actually “paying” for it by giving up facts about myself), and the
latter in terms of the necessity of that oversight to precluding acts of terror (if you have nothing to hide, why are
you worried that your government is watching you?). Both topics confound any true understanding of privacy, and it’s
fascinating how our public dialogue has come to all but rely on one (or both) angles in which to cast engagement on it. It wasn’t always like this,
however. Even Wired magazine ran a commentary back in 2006 by security expert Bruce Schneier, in which he described
the frightening future in which we’ve now come to live: “A future in which privacy would face constant assault was so alien to the framers of
the Constitution that it never occurred to them to call out privacy as an explicit right. Privacy was inherent to the nobility of their being and
their cause. Of course being watched in your own home was unreasonable. Watching at all was an act so unseemly as to be inconceivable
among gentlemen in their day. You
watched convicted criminals, not free citizens. You ruled your own home. It’s
intrinsic to the concept of liberty. For if we are observed in all matters, we are constantly under threat of
correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered
under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind
will be brought back to implicate us, by whatever authority has now become focused upon our onceprivate and innocent acts. We lose our individuality, because everything we do is observable and recordable.” While he was
talking about governmental intrusion into our lives, he could have just as easily been describing the apolitical actions of today’s leading brands
(and the online services providers on which they rely). His point is that privacy
is a subject that we much respect and
understand not only before but during any discussion of how it is affected by governance or business. It’s
also a little perspective on how those opt-in mouseprint agreements that many of us sign when we agree to be watched in order to share cat
videos with one another aren’t just somewhat quaint, but downright scary.
Util makes all impacts inevitable
Albright ’14 – Research Analyst at Freedom Works (Logan, "The NSA's Collateral Spying,"
Freedom Works, 7-8-15, http://www.freedomworks.org/content/nsas-collateral-spying)
In short, the report, based on information obtained by Edward Snowden, reveals that during
the course of its ordinary, otherwise
legal surveillance operations, the NSA also collected data on large numbers of people who were not specifically targeted.
The agency calls this practice “incidental surveillance.” I call it “collateral spying.” The report found that, on average, 9 out of every 10
people spied on were not the intended target. The NSA has the legal authority to obtain a warrant based on probable cause
in order to surveil an individual. No one is disputing that. But when this targeting results in collateral spying on vast numbers of innocents, in
the absence of probable cause and the corresponding warrants, that is a major problem. The NSA has asserted that such incidental data
collection is inevitable, and to a certain extent that’s likely true. It is understandable that in some situations the NSA may learn information
about people other than the direct target, but this should obviously be minimized as far as possible, and at the very least the information
should be immediately purged from government databases, not stored for years on end. In any case, the
whole situation is
indicative of the agency’s cavalier attitude towards individual rights. While national security is a concern we all share,
the ends do not justify the means when those means involve violate the constitutional protections
afforded to citizens by our nation’s founders. It is not okay to violate the rights of an innocent in the
process of achieving a broader goal, even if that goal is noble. The way the NSA has been behaving is
Machiavellian in the most literal sense. In his 16th century political treatise, The Prince, Niccolo Machiavelli recognized a harsh reality of
politics that still plagues us half a millennium later, writing, “A prince wishing to keep his state is very often forced to do
evil.” Taking Machiavelli’s advice as a green light for immoral behavior has been the problem with governments throughout history, a
problem the founding fathers sought to avoid by setting down precise guidelines for what the government
could and could not do in the form of a Constitution. The disregard of these rules, and the argument that there
should be a national security exception to the Fourth Amendment, undermines the entire purpose of
the American experiment, and restores the European-style tyrannies the revolutionaries fought against.
Politics
Link Turns
Regulating UAVs is strongly bipartisan
Hurst 13 (Dustin, “The Bipartisan Opposition to Domestic Drones,” January 29,
http://reason.com/archives/2013/01/29/the-bipartisan-opposition-domestic-droneSEP)
Both the progressive American Civil Liberties Union and the libertarian Rutherford Institute
cheer legislative efforts to place strict limits on unmanned aerial vehicles, or UAVs. And, prodded by
privacy groups, state lawmakers nationwide—Republicans and Democrats alike—have launched
an all-out offensive against the unmanned aerial vehicles. And to think, only the prospect of complete
upheaval of America’s strong tradition of privacy rights spurs bipartisanship. In at least 13 states,
lawmakers this year will examine bills to place strict limits on how government entities can deploy drones. No state has embedded
such regulations into law. Drones are already everywhere—executing search-and-rescue missions, tracking cattle rustlers, or
monitoring wildfires with minimal cost and little risk of loss of life. The Federal Aviation Administration listed 345 active drone
licenses as of November 2012. Congress has directed the federal department to streamline the approval process. Starting in 2015,
commercial entities—think entertainment news outlet TMZ—will have easy access to drone permits. Analysts believe as many as
30,000 drones will populate American skies by 2020. Canyon County, Idaho, already has one, a camera-equipped Draganflyer X-6 it
bought for $33.400 with federal grant money. About a year ago, Mesa County, Colorado, used $14,000 to purchase its drone, a 4foot-long, 9-pound plane that can maintain flight for about an hour. The Seattle Police Department spent $41,000 in August for its
Draganflyer X-6. With the booming interest in the myriad uses of UAVs comes nervous anxiety about the creep of the surveillance
state.
Bipartisan Congressional support exists for curtailing drones
Fox News 13
(Fox News, Lawmakers eye regulating domestic surveillance drones,
http://www.foxnews.com/politics/2013/05/19/congress-eyes-regulating-drones/) JB
Amid growing concern over the use of drones by police and government officials for surveillance, a
bipartisan group of lawmakers is pushing to limit the use of unmanned surveillance "eyes in the sky"
aircraft. Rep. James Sensenbrenner, R-Wis., along with Rep. Zoe Lofgren, D-Calif., and Rep. Ted Poe, R-Texas, is sponsoring legislation that
would codify due process protections for Americans in cases involving drones and make flying armed drones in the U.S.
sky illegal. Sensenbrenner believes it is necessary to develop new standards to address the privacy issues associated
with use of drones — which can be as small as a bird and as large as a plane.
Bipartisan Congressional support for curtailing drones through a warrant requirement
Montopoli 13- senior political reporter
(Brian, Lawmakers move to limit domestic drones, http://www.cbsnews.com/news/lawmakers-moveto-limit-domestic-drones/) JB
Drones are coming to a police station near you, prompting lawmakers to craft legislation designed to
limit what they see as the potential for a previously unthinkable level of Big Brother-style surveillance by
the government. Four states - Florida, Idaho, Montana and Virginia - have already passed laws to control the use of drones by law
enforcement. The first three have barred police from using drones without a warrant in most cases; Virginia has barred their use by law
enforcement (with exceptions) for two years. According to a tally by the American Civil Liberties Union, legislation to limit drone use has been
proposed in 41 states and remains active in 32 states. There is also a push to limit domestic drone use on a federal level.
On Friday, the House Judiciary Committee subcommittee on Crime, Terrorism, Homeland Security and Investigations is holding a hearing called,
"Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems." It is the second congressional
hearing on domestic drones
this year; at the first, Judiciary Committee chairman Sen. Patrick Leahy, D-VT, warned that "the domestic
use of drones to conduct
surveillance and collect other information will have a broad and significant impact on the everyday lives
of millions of Americans." Three bills from the current Congress have been referred to the subcommittee for consideration. The first,
called the Preserving American Privacy Act, would require a governmental entity operating a drone to minimize the collection or disclosure of
identifying information. Another bill, the Preserving Freedom from Unwarranted Surveillance Act, would prevent government officials from
using a drone to gather evidence or other information pertaining to criminal conduct without a warrant. A third would prohibit the use of
drones to kill citizens of the United States within the United States. On the Senate side, both Sen. Mark Udall, D-Colo., and Sen. Rand Paul, RKy., are preparing
to introduce legislation. Paul's bill, which his office says will be released in the coming weeks, is a reintroduction
of his "Preserving Freedom from Unwarranted Surveillance Act" from last year, which bars the use of drones by law
enforcement without a warrant in most cases. The freshman senator gave the issue of domestic drone use national
prominence when he filibustered over what he considered a lack of clarity from the White House over whether it had the authority to use
drones to kill U.S. citizens on American soil with drones. (Attorney General Eric Holder eventually said the answer, when it came to Americans
not engaged in combat, is no.)
Courts Shield
Courts shield – avoid political fallout
Whittington 5- Professor of Politics, Princeton University (Keith, "Interpose Your
Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States
Supreme Court”, The American Political Science Review, Nov., (99)4, p. 583)
There are some issues that politicians cannot easily handle. For individual
legislators, their constituents may be sharply divided on a given issue or
overwhelmingly hostile to a policy that the legislator would nonetheless like to see
adopted. Party leaders, including presidents and legislative leaders, must
similarly sometimes manage deeply divided or cross-pressured coalitions. When faced
with such issues, elected officials may actively seek to turn over controversial
political questions to the courts so as to circumvent a paralyzed
legislature and avoid the political fallout that would come with taking
direct action themselves. As Mark Graber (1993) has detailed in cases such as
slavery and abortion, elected officials may prefer judicial resolution of
disruptive political issues to direct legislative action, especially when the courts
are believed to be sympathetic to the politician's own substantive preferences but
even when the attitude of the courts is uncertain or unfavorable (see also,
Lovell 2003). Even when politicians do not invite judicial intervention, strategically
minded courts will take into account not only the policy preferences of well-positioned
policymakers but also the willingness of those potential policymakers to act if doing so
means that they must assume responsibility for policy outcomes. For cross-pressured
politicians and coalition leaders, shifting blame for controversial decisions
to the Court and obscuring their own relationship to those decisions may preserve
electoral support and coalition unity without threatening active judicial review
(Arnold 1990; Fiorina 1986; Weaver 1986). The conditions for the exercise of judicial
review may be relatively favorable when judicial invalidations of legislative policy can be
managed to the electoral benefit of most legislators. In the cases considered previously,
fractious coalitions produced legislation that presidents and party leaders deplored but
were unwilling to block. Divisions within the governing coalition can also prevent
legislative action that political leaders want taken, as illustrated in the following case.
Judicial review allows political leaders to evade responsibilities
Stoutenborough et al. 6 - (James W., Donald P Haider-Markel, Mahalley D Allen. Political Science Dept - University of Utah,
“Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases”, Political Research Quarterly, Sep., (59)3; p. 419)
In many cases, courts have been empowered by and served the interests of
other political actors. While this undermines the countermajoritarian difficulty as
an empirical hypothesis, it is not at all reassuring from a democratic perspective.
Judicial review can provide an opportunity for elected political actors to
evade responsibilities or to pursue policies while evading electoral
consequences. Such actions may enhance or enable domination by letting those
actors pursue policies that might lead to domination without suffering electoral
consequences. The possibility that judicial review can provide another
outlet that permits legislators to "run from daylight"85 and effect
important policy changes with a minimum of public scrutiny is a serious
concern, and may especially contribute to domination by powerful economic elites. An
additional concern is that judicial review can have the perverse effect of
making legislators less attentive to their constitutional responsibilities,
as they may vote for legislation they believe to be unconstitutional under the
assumption that the courts will correct their mistake.86
Courts shield – insulate from political pressure
Whittington 5- Professor of Politics, Princeton University (Keith, "Interpose Your
Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States
Supreme Court”, The American Political Science Review, Nov., (99)4, p. 583)
The establishment and maintenance of judicial review is a
way of delegating some kinds of political decisions to a relatively politically
insulated institution. This delegation aspect of judicial review drives the
entrenchment thesis, as current political majorities attempt to insulate their policy
preferences from future political majorities by empowering sympathetic judges who will
endure through the electoral transition. This is only one of the potential uses to which
such an institution may be put, however. Political majorities may effectively
delegate a range of tasks to a judicial agent that the courts may be able to
perform more effectively or reliably than the elected officials can acting
directly. It is well recognized that explicit or implicit "delegation" of political tasks
to differently situated institutions and actors can be valuable in a range of political
contexts (see generally, Voigt and Salzberger 2002). Legislative party leaders can solve
collective action problems and protect the value of party labels (Cox and McCubbins
1993; Kiewiet and McCubbins 1991). Legislative committees can develop expertise and
provide the information needed to make good policy (Krehbiel 1991). Central banks and
independent judiciaries can allow legislators to credibly commit to
policies valued by key constituencies (Landes and Posner 1975; Maxfield 1997).
Interest groups can develop cheap information on the performance of bureaucracies or
the preferences of the electorate (Hansen 1991; McCubbins and Schwartz 1984). At the
same time, it should be recognized that apparent legislative delegations may be
better understood as the exploitation of available political resources and
legislative weaknesses by other actors, such as executive branch officials,
to enhance their own institutional position (Whittington and Carpenter 2003).
Thus, we should be sensitive to the interaction between courts exploiting political
opportunities and legislative leaders managing political risk. The courts exercising a
power of judicial review may be a vehicle for overcoming political
barriers that hamper a governing coalition. There are two preconditions for this
possibility to be reasonable. The first is that courts often be ideologically friendly to the
governing coalition. Political majorities are unlikely to benefit from supporting courts
that are ideologically divergent from them and are unlikely often to be able to work in
tandem with them to achieve common political goals. There are reasons to believe that
this precondition is often met in the American context, with the selection of individual
judges (Dahl 1957), the departure of current judges (Spriggs and Wahlbeck 1995), the
expansion of the judiciary as a whole (Barrow, Zuk, and Gryski 1996; De Figueiredo and
Tiller 1996), and the structure of court jurisdiction (Gillman 2002) all facilitating the
creation of a sympathetic judiciary. This is not to say that presidents and parties are
never surprised by their judicial appointments or by judicial decisions, but merely that
the Court often shares the constitutional and ideological sensibilities of political leaders.
The second precondition is that judicial review is actually useful to current
political majorities. The usefulness to legislators of other judicial powers, such as
the power to interpret statutes and enforce the law, is fairly evident. The utility of the
power of judicial review to current legislators is less immediately evident, but it is easy
to see once we note that judicial review may be used to void statutes passed by
previous governing coalitions, thus displacing the current legislative baseline. When
governing coalitions are unable or unwilling to displace the legislative
baseline themselves, then the courts may usefully do this work for them.
Those invested in the status quo have less to gain from judicial review (Graber 2000),
and so judicial review is likely to be more useful to some political coalitions than others,
depending in part on their substantive agenda and in part on the extent to which they
have been able to define the status quo. Nonetheless, as is illustrated in the following, it
is unrealistic to assume that only political actors currently out of power stand to benefit
from an active judiciary.
WOT
Drones are ineffective at surveillance – US borders prove
Bennett, January 7, 2015
(Brian, writes about national security and intelligence in Washington, D.C. He has documented a pattern of excessive force by U.S. Border Patrol
agents and revealed the first arrest on U.S. soil using a Predator drone. He started as a reporter for Time magazine in Hong Kong in 2000,
reported from Pakistan and Afghanistan after the Sept. 11, 2001, attacks and was Time’s Baghdad bureau chief in 2003 and 2004, “Border
drones are ineffective, badly managed, too expensive, official says,” LA Times,
http://www.latimes.com/nation/immigration/la-na-border-drones-20150107-story.html, Accessed June 24,
2015, YDEL)
Drones patrolling the U.S. border are poorly managed and ineffective at stopping illegal immigration,
and the government should abandon a $400-million plan to expand their use, according to an internal watchdog
report released Tuesday.¶ The 8-year-old drone program has cost more than expected, according to a report by the Department of Homeland
Security's inspector general, John Roth.¶ Rather
than spend more on drones, the department should "put those
funds to better use," Roth recommended. He described the Predator B drones flown along the border by U.S. Customs and Border
Protection as "dubious achievers."¶ It's time for Congress to agree on a humane immigration solution¶ It's time for Congress to agree on a
humane immigration solution¶ "Notwithstanding the significant investment, we
see no evidence that the drones contribute
to a more secure border, and there is no reason to invest additional taxpayer funds at this time," Roth
said in a statement.¶ The audit concluded that Customs and Border Protection could better use the funds on manned aircraft and
ground surveillance technology.¶ The drones were designed to fly over the border to spot smugglers and illegal
border crossers. But auditors found that 78% of the time that agents had planned to use the craft, they
were grounded because of bad weather, budget constraints or maintenance problems.¶ lRelated Proposed U.S.
regulations for drones expected soon amid soaring sales¶ BUSINESS¶ Proposed U.S. regulations for drones expected soon amid soaring sales¶
SEE ALL RELATED ¶ 8¶ Even when aloft, auditors found, the drones contributed little. Three
drones flying around the Tucson
area helped apprehend about 2,200 people illegally crossing the border in 2013, fewer than 2% of the
120,939 apprehended that year in the area.¶ Border Patrol supervisors had planned on using drones to
inspect ground-sensor alerts. But a drone was used in that scenario only six times in 2013.¶ Auditors found
that officials underestimated the cost of the drones by leaving out operating costs such as pilot salaries, equipment and overhead. Adding such
items increased the flying cost nearly fivefold, to $12,255 per hour.¶ People think these kinds of surveillance technologies
will be a silver bullet. Time after time, we see the practical realities of these systems don't live up to the hype.¶ - Jay Stanley, ACLU privacy
expert¶ "It really doesn't feel like [Customs and Border Protection] has a good handle on how it is using its drones, how much it costs to operate
the drones, where that money is coming from or whether it is meeting any of its performance metrics," said Jennifer Lynch, a lawyer for the
Electronic Frontier Foundation, a San Francisco-based privacy and digital rights group.¶ The report's conclusions will make it harder for officials
to justify further investment in the border surveillance drones, especially at a time when Homeland Security's budget is at the center of the
battle over President Obama's program to give work permits to millions of immigrants in the country illegally¶ 18, 2015¶ ADD A COMMENTSEE
ALL COMMENTS ¶ 21¶ "People think these kinds of surveillance technologies will be a silver bullet," said Jay Stanley, a privacy expert at the
American Civil Liberties Union. "Time
after time, we see the practical realities of these systems don't live up to
the hype."¶ Customs and Border Protection, which is part of Homeland Security, operates the fleet of nine long-range Predator B drones
from bases in Arizona, Texas and North Dakota.¶ The agency purchased 11 drones, but one crashed in Arizona in 2006 and another fell into the
Pacific Ocean off San Diego after a mechanical failure last year.¶ Agency officials said in response to the audit that they
had no plans to
expand the fleet aside from replacing the Predator that crashed last year. The agency is authorized to
spend an additional $433 million to buy up to 14 more drones.
Drones are statistically useless in apprehensions – border patrol proves
Lee, 2015
(Brianna, joined IBT in July 2014 and covers U.S. immigration and Latin America. Previously she worked
as a writer and editor at the Council on Foreign Relations and as a staff writer for the PBS news program
"Need to Know,” “Immigration Reform: Drones At The U.S. Border Are Expensive, Not Proven Effective,
Report Says,” International Business Times, http://www.ibtimes.com/immigration-reform-drones-usborder-are-expensive-not-proven-effective-report-says-1775076, Accessed: June 26, 2015, YDEL)
About half of the 1,954-mile border between the U.S. and Mexico is patrolled by drones thanks to a federal program launched nearly 10 years ago. But a new
watchdog report
says there’s no evidence that the drones are effectively policing the border, and that taxpayers
footing the bill to the tune of more than $12,000 per hour of flight aren't getting their money's worth. ¶ The Department of Homeland Security’s Office of the
Inspector General issued a biting review of the border drone program, operated by the
Customs and Border Protection agency (CBP). After
eight years, the report states, “CBP has invested significant funds in a program that has not achieved the
expected results, and it cannot demonstrate how much the program has improved border security.Ӧ The
use of military-grade Predator B drones for border surveillance has ballooned since CBP’s program launched in 2005, with proponents saying they had more
endurance and better capacity than other manned flying vehicles like helicopters. There are nine drones currently in operation (CBP has purchased 11 in total, but
one crashed in 2006 and another crashed in January 2014) and they primarily patrol two areas of the border: the Arizona-Tucson sector and the Rio Grande Valley
sector.¶ The
audit, which surveyed border drone operations through fiscal year 2013, found that “relatively
few” apprehensions of border crossers were attributed to drone operations. Drones led to about 1.8
percent of apprehensions in the Tucson sector and a mere 0.7 percent in the Rio Grande Valley,
according to CBP’s data. The agency had aimed to fly the drones for 16 hours a day to patrol, but the report found they were
airborne only for 22 percent of that time.¶ Moreover, the report said, the program is far more expensive than CBP’s cost estimates suggest.
CBP estimates that each flight hour costs around $2,468, but the inspector general’s office said that figure was closer to $12,255, factoring in additional operating
costs of pilots, equipment, support staff and other overhead. (By comparison, the similar MQ-9 Reaper drone used by the Air Force costs an estimated $3,624 per
flight hour, while the manned F-16C fighter-bomber costs more than $20,000 per flight hour, according to Time magazine's calculations.) “The
$443 million
CBP plans to spend on program expansion could be put to better use by investing in alternatives,” the
report said, referring to the agency’s 2012 proposal to buy an additional 14 aircraft to survey the border.
¶ The inspector general’s office noted that CBP agreed with one of its recommendations to work with another Homeland Security office to evaluate the necessity
and cost-effectiveness of purchasing any additional drones. But CBP said it wouldn’t revise its cost calculation methodology to more accurately reflect the total cost
of operating drones on the border, saying its current methods met all federal requirements. ¶ This isn’t the first internal report to challenge the cost-effectiveness of
the border drone program. The
inspector general’s office issued another review in 2012 that pointed out
inadequacies in the agency’s resource planning for the unmanned aircraft mission. The Government
Accountability Office (GAO) also noted in a report last year that around 20 percent of drone flights from
2011 to April 2014 were conducted in the interior of the U.S., away from the border and coastal areas.
However, the GAO’s findings countered criticisms that the border drone program would raise privacy issues, saying that the Department of Homeland Security was
complying with privacy and civil liberty laws in its use of unmanned vehicles. ¶
Drones are inefficient mechanism to solve terrorism
Rothfuss 2014 (Ian F [George Mason School of Law]; Student Comment: An Economic Perspective on
the Privacy Implications of Domestic Drone Surveillance; 10 J.L. Econ. & Pol'y 441; kdf)
Conclusion
U.S. citizens want to be safe from terrorist attacks and other threats, but not at the expense of their
privacy rights. Therefore, a delicate balance must be achieved between privacy and security interests.
Drones represent a surveillance technology advancement that threatens to dramatically alter the
balance between these interests. As discussed in this comment, the current legal framework does not
adequately protect privacy from the widespread surveillance that will likely result from the unrestricted
domestic use of drones. Therefore, prompt legislative action is necessary to address the fundamental
privacy challenges presented by the use of drones. Such legislation should allow for constructive use of
drones within a framework that contains restrictions to protect individual privacy rights. While
widespread general surveillance could make the nation safer from crime and terrorism, such extensive
surveillance will ultimately be inefficient. The surveillance that could result from the domestic use of
drones would detract from individual privacy and cause individuals to reduce productive activities and
invest in countermeasures. Such "privacy disutility" will outweigh the societal benefits unless domestic
drone surveillance is restricted. Therefore, [*462] without legislative action we may soon live in a world
where "every time we walk out of our front door we have to look up and wonder whether some invisible
eye in the sky is monitoring us." n175
Circumvention
The judicial observer effect provides a counterweight that shifts executive decisionmaking towards more careful procedures as well as rights-sensitive policies
Deeks 13 – Assistant Professor of Law, University of Virginia Law School, Attorney-Adviser in the Office
of the Legal Adviser at the U.S. Department of State (Ashley S., “The Observer Effect: National Security
Litigation, Executive Policy Changes, and Judicial Deference,” 82 Fordham Law Review 2, SEP)
The observer effect provides an important counterweight to the executive’s instinct to prioritize
national security equities at the expense of individual rights because the executive knows that the
courts may be a future audience for its policies. A primary reason to be concerned about allowing the
executive to completely dominate national security decisionmaking is the fear that the executive will
conduct skewed risk assessments, overstate the threat that the country faces, and establish excessively
draconian policies as a result.151 As Cass Sunstein suggests, “[T]he President has a strong incentive to take precautions even if they
are excessive and even unconstitutional.”152 Ensuring some level of ambiguity about whether a court will step in to review a particular policy
helps counteract that bias. Christina Wells notes that the “lack of predictability regarding a court’s approach . . . should force the executive to
consider that the possibility of rigorous judicial review is very real.”153 In her view, advance
knowledge of the existence of
judicial review can force the executive to assume some “pre-decisional awareness of accountability.”154
That is, when the executive understands that it likely will be forced to explain its reasoning after the fact
for particular security policies it adopts, it will think more carefully ex ante about what those policies
should be and weigh a greater number of alternatives.155 While this element has procedural aspects to
it—forcing a more careful and considered process of adopting policy—it also has important substantive
effects. Assuming that courts as a rule will favor policies that are more rights protective than those favored by the executive, this
perception of future judicial oversight will shift the substantive policy in a more rightssensitive
direction.156
Observer effect spills over to other executive policies, particularly when the triggering
case directly implicates individual rights
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
More systemically, the observer effect reminds the executive of the courts’ presence, and so has a
subtle rights-protective influence on a number of executive policies in the wake of a triggering event.
The observer effect tends to work without regard to the subject matter of the specific case or cases on
which a court is focused. But that fact might leave categories of individual plaintiffs out in the cold in
case after case. Assume the courts are aware of and seek to foster the observer effect in the executive.
If the courts decide not to defer only in cases that do not implicate individual rights, and decide to defer
in national security cases that do implicate individual rights, the courts might preserve the observer
effect while failing to serve their function as individual rights protectors. We might conclude that the
observer effect will have some influence in shifting national security policies that do implicate individual
rights, but those changes might be more modest and less satisfying from a rightsprotective approach
than they would be if the cases on which the courts did not defer were individual rights cases. In short,
the observer effect produces a better “second-best” world when the cases in which the courts show less
deference are those that implicate individual rights.
Executives empirically follow court decisions on counterrorism policy
Bradley and Morrison 13 (Curtis, Professor of Law, Duke Law School, and Trevor, Professor of Law,
Columbia Law School , “Presidential Power, Historical Practice, and Legal Constraint” Duke Law
Scholarship Repository,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5451&context=faculty_scholarship)
Insisting on a sharp distinction between the law governing presidential authority that is subject to
judicial review and the law that is not also takes for granted a phenomenon that merits attention—that
Presidents follow judicial decisions.118 That assumption is generally accurate in the United States
today. To take one relatively recent example, despite disagreeing with the Supreme Court’s
determination in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to the
war on terror, the Bush Administration quickly accepted it.119 But the reason why Presidents abide by
court decisions has a connection to the broader issue of the constraining effect of law. An executive
obligation to comply with judicial decisions is itself part of the practice-based constitutional law of the
United States, so presidential compliance with this obligation may demonstrate that such law can in
fact constrain the President. This is true, as we explain further in Part III, even if the effect on
presidential behavior is motivated by concerns about external political Executive is particularly
responsive to the observer effect in national security because of limited court involvement
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Where the executive is used to receiving deference from the courts in a particular area of law, the
executive grows accustomed to its freedom of operation. The executive perceives judicial “intrusions”
into this area as particularly unwelcome, and has strong incentives to preserve the status quo. Ironically,
this may cause the executive to act with particular flexibility in setting and amending policy, in response
to perceived looming court participation in this area of decisionmaking. If the executive alters its policy
in a manner that persuades courts to continue to defer to it (jurisdictionally or on the merits), the
executive is able to preserve that area of operations as relatively untouched by courts. Although
intuition might suggest that the executive would be disinclined to amend its policies in an area in which
courts traditionally have limited their involvement, the opposite is true: the executive is particularly
prone to the observer effect in this area. National security and wartime activities are areas in which
courts’ involvement historically has been limited.128 In earlier wars, the President determined when,
how, and where to surveil, target, detain, transfer, and interrogate enemy soldiers, often without public
knowledge, and almost entirely without unwanted legal interference from within the executive branch
itself or from the other branches of government. . . . [N]ever before has the Commander in Chief been
so influenced, and constrained, by law.129 Others concur that the courts’ approach to national security
cases after September 11 differed dramatically from their pre–September 11 approach.130 This history
of deference to the executive in national security cases means that there are more likely to be triggering
events that shock the system. It also means that the executive is particularly sensitive—because it is not
acclimated—to judicial review in this area.
The unbound executive theory is empirically false and doesn’t dispute the
documented observer effect
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
The theory that the executive responds to an observer effect contains a critical assumption worth
stating plainly: the executive views law— including case law—as binding and tends to comply with it. In
The Executive Unbound, Eric Posner and Adrian Vermeule express doubt about this proposition, arguing
that the executive is unfettered by legal constraints.21 Their critics highlight various ways in which that
statement is false as a descriptive matter, including by offering examples of situations in which the
executive has declined to pursue its preferred course of actionbecause it viewed that course as legally
unavailable.22 The observer effect offers additional support for the conclusion that the executive
branch is attuned to the power of law by showing how the executive internalizes anticipated judicial
responses to its policies when drawing policy lines.23
perceptions rather than an internal sense of fidelity to law (or judicial review).120
A norm need not be perfectly enforced to constrain the executive and may be bolstered by
informal enforcement
Bradley and Morrison 13 (Curtis, Professor of Law, Duke Law School, and Trevor, Professor of Law,
Columbia Law School , “Presidential Power, Historical Practice, and Legal Constraint” Duke Law
Scholarship Repository,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5451&context=faculty_scholarship)
One of the grounds of skepticism about whether the presidency is constrained by law concerns the
frequent lack of formal enforcement mechanisms. There is an extensive jurisprudential literature on
whether and to what extent enforcement is necessary in order for norms to qualify as law.105 Modern
perspectives on law, in the tradition of H.L.A. Hart, tend to de-emphasize the importance of external
enforcement and focus instead on internal perceptions, a point we return to in Part III. For present
purposes, we simply note two things. First, a norm need not be perfectly enforced in order to
constrain. Of course, as the legal realists emphasized, one cannot get an accurate picture of the law by
looking only at the law on the books rather than the law in action.106 Our point here, however, is simply
that the lack of perfect enforcement of a legal rule does not mean the rule does not exist, or that it does
not constrain. The fact that homicides continue to be committed in the United States—and that not
everyone who commits such a crime is apprehended and prosecuted—does not remove or render
meaningless the legal prohibition against homicide. Second, enforcement need not be formal.
Domestic criminal laws, of course, are typically implemented through a range of formal enforcement
mechanisms, such as state-sanctioned incarceration. Even such formal modes of enforcement,
however, are probably enhanced by informal mechanisms such as public shaming and exclusion. For
example, the formal punishment-based deterrence against committing an offense like embezzlement is
likely enhanced by a desire to avoid public embarrassment and a worry about the difficulty of obtaining
future employment.107 Even when the likely enforcement mechanisms are entirely informal, we think
they should count for purposes of evaluating whether law operates as a constraint. For some issues of
presidential power, there are very few potential modes of formal enforcement (impeachment may be
the only formal mode), and the likelihood that they would be employed to sanction any particular
presidential act is generally very low. But there may still be enforcement through informal mechanisms
such as congressional backlash and public disapproval. If those enforcement measures are triggered or
intensified at least in part by the legal status of a norm, then we believe one can meaningfully
describe them as a type of legal enforcement. On this point it is worth noting that, outside of the area
of constitutional law, it is generally accepted that law can act as a constraint even when it takes the
form of customary norms, and even when it is subject primarily to informal enforcement. There is a
rich literature, for example, on the customary “law merchant” in medieval Europe, the enforcement of
which was based heavily on reputation.108 Gillian Hadfield and Barry Weingast have recently
supplemented that literature with modeling that shows how legal norms in general can be effective
even in the absence of centralized enforcement.109 As applied to presidential power, this analysis
suggests, once again, that the interrelationship of law and politics does not by itself negate the
importance of law.
Executive internalizes legal norms—branch is filled with lawyers
Bradley and Morrison 13 (Curtis, Professor of Law, Duke Law School, and Trevor, Professor of Law,
Columbia Law School , “Presidential Power, Historical Practice, And
Legal Constraint” Duke Law Scholarship Repository)
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5451&context=faculty_scholarship
Perhaps the most obvious way that law can have a constraining effect is if the relevant actors have
internalized the legal norms, whether those norms are embodied in authoritative text, judicial
decisions, or institutional practice. As a general matter, the internalization of legal norms is a
phenomenon that can potentially take place wherever the law is thought to operate, in both the private
and public sectors. But precisely how that internalization operates, including how it affects actual
conduct, depends heavily on institutional context. When speaking of legal norm internalization as it
relates to the presidency, it is important first to note that Presidents act through a wide array of
agencies and departments, and that presidential decisions are informed—and often made, for all
practical purposes—by officials other than the President. In most instances involving presidential
power, therefore, the relevant question is whether there has been an internalization of legal norms by
the executive branch. The executive branch contains thousands of lawyers.124 The President and
other executive officials are regularly advised by these lawyers, and sometimes they themselves are
lawyers. Although lawyers serve in a wide variety of roles throughout the executive branch, their
experience of attending law school means that they have all had a common socialization—a
socialization that typically entails taking law seriously on its own terms.125 Moreover, the law schools
attended by virtually all U.S. government lawyers are American law schools, which means that the
lawyers are socialized in an ethos associated with the American polity and the American style of law
and government.126 These lawyers are also part of a professional community (including the state bars
to which they are admitted) with at least a loosely shared set of norms of argumentative plausibility.
Deference Good
Observer effect allows the executive to retain control over national security
judgments while making policy corrections
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Hamilton famously remarked that housing powers in a unitary executive provides the advantages of
“[d]ecision, activity, secrecy, and dispatch.”275 Executive unilateralists have pointed to the particular
salience of these characteristics when the United States is faced with an imminent or actual threat to its
own national security.276 Assuming that the executive (by virtue of its expertise, access to classified
information, and ability to act expeditiously in response to real-world events) tends to be better suited
than courts to make difficult legal policy judgments, the observer effect allows the executive to retain
control over the bulk of those judgments. It often results in executive control over policy corrections as
well, even as the possibility of court review prompts the executive to make those corrections. The
effect, when functioning well, helps the executive avoid most direct court intercessions by focusing the
executive’s attention more keenly on those equities the courts would evaluate if forced to review those
policies. If one believes, as many do, that the executive branch holds particular advantages in
responding to questions that implicate national security and the conduct of military or intelligence
operations, this is a positive result. Those who adopt strong executive unilateralist positions will not be
fully satisfied by the observer effect phenomenon because, in order for the effect to operate, the
judiciary must retain some role in evaluating the legality of the executive’s national security policies.
Courts may do so on the merits, or they may choose to do so more indirectly, through dialogue and
signaling. Either way, courts retain a hand in developing national security policies by serving as a specter
in the executive conference rooms in which policies are made. At the same time, the fact that the
observer effect moderates executive policies means that the courts often are able to avoid wading into
areas that fall outside their core spheres of competence. The executive branch continues to shape the
details—the procedures, scope, and substance—of national security policy, but the observer effect
ensures that the executive does not govern “nearly alone.”2
Observer effect provides a balanced approach that promotes both security and rights
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Both of these debates—about how extensively courts do defer to the executive on national security
issues and about how much they should defer—fail to take into account an important dynamic that
should inform our views about national security deference: the observer effect. Understanding the way
the observer effect operates should lower the temperature of the debate. The observer effect ultimately
advances all three core separation-of-powers values just discussed: protecting individual liberty (and
sustaining a more systemic balance of power), preserving democratic accountability, and promoting
efficiency and effectiveness. This is not to argue that the observer effect allows accountability and
effectiveness goals to manifest themselves as vigorously as complete judicial deference would. Nor is it
to argue that reliance on the observer effect advances the protection of individual rights as robustly as a
total absence of judicial deference would. It is to suggest, however, that the observer effect potentially
promotes all three values at once in a way that the alternatives do not. As a result, the current
normative deference debate—which either favors the executive’s functional advantages by allowing the
executive broad discretion to navigate national security issues, or urges judicial involvement to protect
individual rights and preserve structural balance—needlessly frames the discussion as an either/or
proposition. Instead, ample judicial deference to executive security policies—interspersed with
occasional nondeferential decisions—can promote both sets of values simultaneously.
Deference theory is wrong - relies on outdated Cold War thinking
Knowles 09 – Assistant Professor, NYU School of Law (Robert, "American Hegemony and the
Foreign Affairs Constitution," Arizona State Law Journal, Lexis)
American courts treat foreign affairs issues as unique and requiring very strong, sometimes absolute,
deference to the Executive. n1 These "special deference" doctrines are a swamp of under-justification
and inconsistent application. n2 But when courts and scholars do seek to justify special deference in foreign
affairs, they usually resort to received wisdom about superior executive branch competence - attributes such as
speed, flexibility, secrecy, and uniformity - contrasted with judicial incompetence. n3 In the [*90] years since
9/11, in particular, these pragmatic arguments have been the weapon of choice for defenders of special
deference. n4 The courts are, apparently, bringing a knife to a gunfight. n5 Why do foreign affairs demand
that the executive branch enjoy vast discretion? The courts' view of their own competence has been shaped
by America's role in the world. There is a deep, if usually unarticulated, connection between the assumed
need for special deference and a popular theory of international relations known as realism. Realism depicts
an anarchic international realm, populated only by nation-states, and dominated by roughly co-equal great
powers carefully balancing one another. n6 Executive competences are required to handle this dangerous
and unstable external environment. n7 This classic realist model of comparative institutional competence
seemed appropriate when America was one of several, or even two, great powers. But even then, importing
international relations ("IR") realism into constitutional foreign affairs doctrine was a recipe for chaos.
Realpolitik teaches that the state must do whatever is necessary to protect itself. n8 But how can courts
successfully balance this overriding principle against other constitutional values such as the protection of
liberty? Moreover, the post-Cold War world has provoked a crisis in realism. n9 The U nited S tates is a
global hegemon. It is unrivaled in its ability to deploy force throughout the globe, and it provides "public
goods" for the world - such as the protection of sea lanes - in exchange for broad acceptance of [*91]
U.S. leadership. n10 Although realism predicts counter-balancing, no great power or coalition has yet
emerged to challenge America's predominance. And despite a new round of predictions about American
decline, the U.S. is still projected to have by far the largest economy and the largest military for decades. n11
Political scientists have struggled to define this American-led system, but courts and scholars of
constitutional law have largely ignored it. n12 Instead, most debates about special deference have simply
accepted outmoded classic realist assumptions that became conventional wisdom in the 1930s and 40s.
This Article offers a new model for assessing appropriate judicial deference in foreign affairs that takes
account of American-led order. By maintaining consistent interpretation of U.S. and international law over
time and providing virtual representation for other nations and non-citizens, U.S. courts bestow legitimacy
on the acts of the political branches, provide public goods for the world, and increase America's soft power - all
of which assist in maintaining the stability and legitimacy of the American-led hegemonic order.
Courts DAs Generic
Observer effect allows the courts to take more modest approaches towards national
security policies – because the executive has voluntarily reduced its powers
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Yet the implications of deferential and nondeferential judicial decisions in the national security context
are not completely intuitive. A nondeferential court decision achieves more separation of powers
“balance” than may be apparent at first glance. That is because, as Part I showed, the court’s
involvement casts a shadow longer than the individual court decision that struck down or modified an
executive policy. Conversely, the observer effect allows courts in many cases to take more modest
approaches to executive national security policies because the executive has reduced— under its own
steam—its claims of authority. The executive has, in other words, voluntarily surrendered some of its
accreted power, a fact that contributes to the structural balance among branches.
Observer effect enables courts to preserve SOP and avoid making controversial
decisions that might reduce legitimacy
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Courts are sensitive to the reputational costs of deciding controversial cases—and cases involving
wartime or emergency policies are particularly likely to be controversial. Many scholars have highlighted
the institutional costs of deciding such cases.284 Judicial decisions on the merits force courts to bear
certain reputational costs. The operation of the observer effect means that courts need to decide fewer
such cases (or decide them in a more modest manner) than they may think in order to preserve
separationof-powers values. This approach allows courts largely (though not entirely) to avoid making
politically controversial decisions that might cast questions on their institutional competence, while
allowing the courts on limited occasions to stake out their more popular role as defender of rights.285
At the same time, there are ways in which courts can distance themselves from the policies in question,
thus ensuring that political accountability for the policy falls squarely on the executive.
1.
Legitimacy
Expanding 4th Amendment rights in the face of a major technological advance like
drones is well within Court precedent
Black 13- J.D. Candidate Washington and Lee Law School
(Tyler, Over Your Head, Under the Radar: An Examination of Changing Legislation, Aging Case Law, and
Possible Solutions to the Domestic Police Drone Puzzle, 2013, 19 Washington and Lee Law Review, Lexis
Nexis) JB
The Court acknowledged that
"[i]t would be foolish to contend that the degree of privacy secured to
citizens by the Fourth Amendment has been entirely unaffected by the advance of technology." n147 As an
example, the majority pointed to aerial observation cases. n148 The Court wondered openly "what limits there are upon this
power of technology to shrink the realm of guaranteed privacy." n149 This statement acknowledges two important concepts-
technological advances will continue to stress constitutional protections from undue searches, and the
Court has a role in defining appropriate boundaries for those advances. n150 As drones represent a
major advance in technology, [*1861] the Court would therefore be well within precedent to adjust the
rules accordingly.
Observer effect enables courts to preserve SOP and avoid making controversial
decisions that might reduce legitimacy
Deeks ’13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the U.S. Department of
State, advised on the law of armed conflict, including detention, the U.S. relationship with the
International Committee of the Red Cross, intelligence issues, conventional weapons, and the legal
framework for the conflict with al-Qaeda, “The Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference”, Fordham Law Review, Vol. 82, No. 2, cl)
Courts are sensitive to the reputational costs of deciding controversial cases—and cases involving
wartime or emergency policies are particularly likely to be controversial. Many scholars have highlighted
the institutional costs of deciding such cases.284 Judicial decisions on the merits force courts to bear
certain reputational costs. The operation of the observer effect means that courts need to decide fewer
such cases (or decide them in a more modest manner) than they may think in order to preserve
separationof-powers values. This approach allows courts largely (though not entirely) to avoid making
politically controversial decisions that might cast questions on their institutional competence, while
allowing the courts on limited occasions to stake out their more popular role as defender of rights.285
At the same time, there are ways in which courts can distance themselves from the policies in question,
thus ensuring that political accountability for the policy falls squarely on the executive.
Economy
Their link is just industry hype – plan wont hurt the economy
Bernd 2013 (Candice [assistant editor/reporter with Truthout]; The Coming Domestic Drone Wars; Sep
19; www.truth-out.org/news/item/18951-the-coming-domestic-drone-wars#; kdf)
States Push to Regulate Domestic Drones as Industry Pushes Back The Texas law is just one of many pieces of legislation placing restrictions on
the use of domestic drones to be introduced in 43 states this year, passing in eight. Many
of these state-level bills seek to
require search warrants for surveillance drones used by local police departments, and at least six states have
required warrants. In 2013, Virginia put in place a two-year moratorium on the use of drones by law enforcement to develop more stringent
guidelines. Legislation restricting civilian drone use has passed in states such as Florida, Tennessee, Idaho, Montana and Oregon, but other
states such as North Dakota have tried to pass laws that would ban weapons from domestic drones and have failed. But the
industry is
pushing back against privacy restrictions and regulations on civilian drones, saying the restrictions will
hinder job creation. In Maine, Gov. Paul LePage backed up the claim by vetoing a bill that would have required police to obtain a
warrant before deploying a drone, citing concerns it would kill new aerospace jobs. "We don't support rewriting existing search
warrant requirements under the guise of privacy," Mario Mairena told the AP. Mairena is a government relations manager
for the Virginia-based Association for Unmanned Vehicle Systems International (AUVSI), an industry group. The group's website boasts
hundreds of corporate members, many of which are defense contractors. The group also has ties to the Unmanned Systems Caucus in
Congress. Whether or
not requiring a warrant in law enforcement drone operations would kill jobs remains
to be seen, but the integration of civilian drones into the NAS would create a considerable economic
impact, to be sure. An AUVSI report estimates that that the integration of unmanned systems in the U.S. will
generate more than $13.6 billion and create 74,000 jobs within the first three years. But strong
regulations of domestic drones in the states may prove especially important depending on what
guidelines the FAA puts in place to integrate the technology into the national airspace by 2015, as some
experts fear the susceptibility to co-option of unmanned systems by third-party operators could pose serious risks to domestic security.
Surveillance guts competitiveness
Stiennon 2013 (Richard; NSA Surveillance Threatens US Competitiveness; Jun 7;
www.forbes.com/sites/richardstiennon/2013/06/07/nsa-surveillance-threatens-us-competitiveness/;
kdf)
The vast foreign and domestic spying by the NSA revealed this week threatens the
global competitiveness of US tech
companies. We are told we live in a digital world and the future is bright for tech startups as costs of launching new products and services
plummet and global markets open up to the smallest vendor. Yet, there is a world wide perception that any data that is
stored or even routed through the United States is sucked into cavernous NSA data centers for analysis
and cataloging. That perception was solidified in 2006 when former AT&T technician Mark Klein blew the whistle on the fiber tap that ATT
had provided to the NSA in some of its data centers. Those perceptions have had real consequences for US tech firms seeking to offer global
services. Email
archiving services such as ProofPoint could not sell to even Canadian customers without
building local infrastructure. Even establishing separate data centers in Canada and Europe is not enough to assure customers that
their data would forever stay out of the grasp of US intelligence services. One of the fastest growing segments of the tech
industry is cloud services, with Salesforce.com one of the leading examples. Box.net, and other cloud storage solutions, are
burgeoning. Cloud infrastructure providers like Amazon, Microsoft, and Rackspace are investing billions to serve markets that should be global
but will be barred from most countries thanks to the complete abandonment of trust caused by NSA/FBI spying. Since 2006, every time I
present outside the US the same question has been asked: “Is the US reading our email?” Answers that allude to ‘protections from abuse’ and
‘oversight’ now seem specious. From this week forward a universal suspicion has transformed into acknowledged fact. Yes, US government
agencies are reading email, tracking phone calls, and monitoring all communications. Brian Honan Board Member of the UK & Ireland Chapter
of the Cloud Security Alliance provided this opinion: The
revelations about the PRISM program could have major
implications for US companies doing business within the European Union. Under the EU Data Protection directive it
is illegal for European companies to export the personal data of EU citizens to countries outside of the EU and the European Economic Area.
Exceptions to this are for certain countries that have similar privacy legislation in place to that of the EU or where the strong contracts
protecting the privacy of that data are in place. The US in not one of the approved countries but has put in place the EU Safe Harbor program
which US companies can sign up to and agree to apply EU privacy protections to private data. Many of the companies allegedly involved in
PRISM are part of the Safe Harbor program. The fact the US government is potentially accessing that data could place the European
organisations in breach of EU Data Protection regulations. The news will also heighten concerns many European organisations, especially EU
government ones, will have in selecting a US Cloud Provider for their services. Gabriel Yoran, Managing Director and Founder of German
security company Steganos added: “The European Union traditionally favors strong privacy regulations. However, this policy has been under
attack recently, being seen as a competitive disadvantage in the cloud services space. This could dramatically change now in the light of the
recent Verizon findings. Privacy software maker Steganos traditionally stresses it being headquartered in Berlin and therefore subject to the
even stricter German data protection law (one of the strictest in the world). According to a February survey, 64% of Steganos customers said it
was important or very important to them that Steganos is a Germany-based company.” Trust
is the very foundation of all
commerce. Once lost it is almost impossible to regain. This week’s revelations that the NSA has blanket data harvesting
arrangements with Verizon, ATT, Sprint-Nextel, Google, Microsoft, Apple, Skype, Yahoo, FaceBook and even credit card processors, will have
immediate repercussions. Non-US customers of any US business will immediately evaluate their exposure to these new risks and look for
alternatives. European, Canadian, and Australian tech companies will profit from this. Competitors in those regions will offer alternatives that
will also draw US customers away from the compromised US services. While
the FBI and NSA leverage the dramatic
intelligence opportunities of a digital world, their Orwellian actions are crushing opportunity for tech
giants and startups in the United States.
US risks stalling now, especially in high tech services—prevents sustainable growth
Muro, et al, February 15 [Mark Muro, a senior fellow and director of policy for the Metropolitan
Policy Program, manages the program's economic work and key policy projects. Jonathan Rothwell,
February 2015, “Advanced Industries Drive Broad-Based Growth and Prosperity New Brookings report
analyzes U.S. advanced industries sector”, http://www.brookings.edu/research/reports2/2015/02/03advanced-industries#/M10420]
The need for economic renewal in the U S remains urgent
new technologies ranging from
robotics and “3-D printing” to digitization
provoking genuine excitement
nited
frustrated. At the same time, astonishing
—
tates
. Years of disappointing job growth and stagnant incomes for the majority of workers have left the nation shaken and
advanced
the “
of everything”—
are
even as they make it hard to see where things are going. Hence this paper: At a critical moment, this report asserts the special importance to America’s future of what the paper calls America’s “advanced
industries” sector. Characterized by its deep involvement with technology research and development (R&D) and STEM (science, technology, engineering, and math) workers, the sector encompasses 50 industries ranging from manufacturing industries such as automaking and aerospace
high-tech services
Their dynamism is going to be a central component of any future revitalized U.S. economy.
these industries encompass the country’s best shot at supporting innovative
and sustainable
growth.
Advanced industries represent a sizable economic anchor for the U.S. economy and have
led the post-recession employment recovery.
the sector packs a massive economic punch.
to energy industries such as oil and gas extraction to
such as computer software and computer system design, including for health applications. These industries encompass the nation’s “tech” sector at its broadest and most
consequential.
As such,
, inclusive,
For that reason, this report provides a wide-angle overview of the advanced industry sector that reviews its role in American prosperity, assesses key trends, and maps its metropolitan and global competitive standing before outlining high-level strategies to
enhance that.The overview finds that: 1.
Modest in size,
As an employer and
source of economic activity the advanced industry sector plays a major role in the U.S. economy. As of 2013, the nation’s 50 a dvanced industries (see nearby box for selection criteria) employed 12.3 million U.S. workers. That amounts to about 9 percent of total U.S. employment. And yet,
U.S. advanced industries produce $2.7 trillion in value added annually 17 percent of all
GDP That is more than any other sector
the sector employs 80 percent
of the nation’s engineers; performs 90 percent of private-sector R&D; generates approximately 85
percent of all U.S. patents; and accounts for 60 percent of U.S. exports. Advanced industries also
support unusually extensive supply chains and other forms of ancillary economic activity.
even with this modest employment base,
gross domestic product (
).
—
U.S.
, including healthcare, finance, or real estate. At the same time,
On a per worker basis, advanced
industries purchase $236,000 in goods and services from other businesses annually, compared with $67,000 in purchasing by other industries. This spending sustains and creates more jobs. In fact, 2.2 jobs are created domestically for every new advanced industry job—0.8 locally and 1.4
outside of the region. This means that in addition to the 12.3 million workers employed by advanced industries, another 27.1 million U.S. workers owe their jobs to economic activity supported by advanced industries. Direc tly and indirectly, then, the sector supports almost 39 million
jobs—nearly one-fourth of all U.S. employment. In terms of the sector’s growth and change, the total number of jobs in the sector has remained mostly flat since 1980 but its output has soared. From 1980 to 2013 advanced industries expanded at a rate of 5.4 percent annually—30
percent faster than the economy as a whole. Since the Great Recession, moreover, both employment and output have risen dramatically. The sector has added nearly one million jobs since 2010, with employment and output growth rates 1.9 and 2.3 times higher, respectively, than in the
rest of the economy. Advanced services led this post-recession surge, and created 65 percent of the new jobs. Computer systems design alone generated 250,000 new jobs. Certain advanced manufacturing industries—especially those involved in transportation equipment—have also
added thousands of jobs after decades of losses. Advanced industries also provide extremely high-quality economic opportunities for workers. Workers in advanced industries are extraordinarily productive and generate some $210,000 in annual value added per worker compared with
$101,000, on average, outside advanced industries. Because of this, advanced industries compensate their workers handsomely a nd, in contrast to the rest of the economy, wages are rising sharply. In 2013, the average advanced industries w orker earned $90,000 in total compensation,
nearly twice as much as the average worker outside of the sector. Over time, absolute earnings in advanced industries grew by 63 percent from 1975 to 2013, after adjusting for inflation. This compares with 17 percent gains outside the sector. Even workers with lower levels of education
can earn salaries in advanced industries that far exceed their peers in other industries. In this regard, the sector is in fact accessible: More than half of the sector’s workers possess less than a bachelor’s degree. 2. The advanced industries sector is highly metropolitan and varies
considerably in its composition and depth across regions. Advanced industries are present in nearly every U.S. region, but the sector’s geography is uneven. Advanced industries tend to cluster in large metropolitan areas. Looking across the country, the 100 largest metro areas contain 70
percent of all U.S. advanced industries jobs. In terms of the sector’s local clustering, San Jose is the nation’s leading advanced industry hub with 30.0 percent of its workforce employed in the sector. Seattle follows with 16.0 percent of its local jobs in advanced industries. Wichita (15.5
percent); Detroit (14.8 percent), and San Francisco (14.0 percent) follow. Overall, advanced industries account for more than one in 10 jobs in nearly one-quarter of the country’s major metro areas. This clustering occurs in a variety of configurations. Some metropolitan areas—such as
Grand Rapids, MI; Portland, OR; and Wichita—focus heavily on advanced manufacturing pursuits such as automotive, semiconductor, or aerospace manufacturing, respectively, while metros like Bakersfield and Oklahoma City exhibit strong energy specializations. By contrast, services
such as computer systems design, software, and research and development predominate in metropolitan areas like Boston, San Francisco, and Washington. For their part, San Jose, Detroit, and Seattle exhibit depth and balance across multiple advanced industry categories. Overall, the
number of extremely dense concentrations of advanced industry actually has declined. In 1980, 59 of the country’s 100 largest metropolitan areas had at least 10 percent of their workforce in advanced industries. By 2013, only 23 major metro areas contained such sizable concentrations.
3.
The U S is losing ground to other countries on advanced industry competitiveness
nited
tates
advanced industries in the world, behind only energy-intensive Norway. However, this
declining concentration
. The United States has the most productive
competitiveness appears to be eroding. The nation’s
in advanced industries and its negative trade balance in the sector
employment and output as a share of the
measures now lags world leaders.
do not bode well Since 2000, the sector’s
total U.S.
.
economy has shrunk The nation’s standing on these
.
Equally worrisome is the balance of trade in the sector. Although advanced industries export $1.1 trillion worth of goods and services each year and account for roughly 60 percent of total U.S.
exports, the United States ran a $632 billion trade deficit in the sector in 2012, in line with similar yearly balances since 1999. To be sure, a handful of individual advanced industries such as royalties and other intellectual property and aerospace manufacturing enjoy trade surpluses that
exceeded $60 billion and $80 billion in 2012. However, numerous areas of historical strength such as communications equipment , computer equipment, motor vehicles, and pharmaceuticals now run sizeable deficits, as do high-value R&D services and computer and information services.
Notwithstanding the nation’s strong innovation enterprise the U S advantage on this front is slipping
For certain the advanced industry sector remains the key site of U.S. technology gains.
For example, the U.S. share of global R&D and patenting is falling
America’s research dominance looks less
impressive after adjusting for the size of its working age population
nited
tates’
.
However, the United States is losing ground
relative to other countries on measures of innovation performance and capacity.
much faster than its
share of global GDP and population, meaning that U.S. slippage cannot simply be attributed to demography or macroeconomic convergence. Likewise,
. Turning to the nation’s critical regional innovation ecosystems, surprisingly few U.S. metropolitan
areas rank among the world’s most innovative—as measured by patent cooperation treaty applications per capita. Among the nation’s most patent-intensive regions, just two—San Diego and the San Jose-San Francisco combined area—rank in the global top 20 and just two more (Boston
and Rochester) score in the top 50.
The US isn’t key to the global economy
Kenny 2015 (Charles; Why the Developing World Won't Catch the U.S. Economy's Cold; May 4;
www.bloomberg.com/news/articles/2015-05-04/why-the-developing-world-won-t-catch-the-u-seconomy-s-cold; kdf)
Last week the U.S. Commerce Department announced that first-quarter
GDP growth for 2015 was an anemic 0.2 percent. This
immediately sparked fears that a U.S. slowdown could lead to a global recession. But the cliché about
America sneezing and the rest of the world catching the cold doesn’t hold like it used to . The U.S. isn’t as
contagious as it was, and developing countries in particular are far more robust to economic shocks. That’s good
news for everyone. It means less volatility in Asia, Africa, and Latin America, which contributes to happier people, greater political
stability, and stronger long-term growth—all of which should help lift the U.S. out of its own doldrums. A team of IMF researchers
has looked at the long-term record of the world’s economies when it comes to growth and recession.
They measured how long economies expanded without interruption, as well as the depth and length of downturns. Over the past two decades,
low and middle-income economies have spent more time in expansions, while downturns and recoveries have become shallower and shorter.
This suggests countries have become more resilient to shocks. In the 1970s and '80s, the median developing economy took more than 10 years
after a downturn to recover to the GDP per capita it had prior to that slump. By the early 2000s, that recovery time had dropped to two years.
In the 1970s and '80s, countries of the developing world spent more than a third of their time in downturns, but by the 2000s they spent 80
percent of their time in expansions. The first decade of the 21st century was the first time that developing economies saw more expansion and
shorter downturns than did advanced economies: Median growth in the developing world was at its highest since 1950 and volatility at its
lowest. Developing countries still face a larger risk of deeper recession when terms of trade turn against them, capital flows dry up, or advanced
economies enter recessions themselves. But the scale of that risk has diminished. That’s because low and middle-income economies have
introduced policy reforms that increase resilience: flexible exchange rates, inflation targeting, and lower debt. Economies with inflationtargeting regimes see recovery periods less than a third as long as economies without targeting, for example. Larger reserves are associated
with longer expansions. And median reserves in developing countries more than doubled as a percentage of GDP between the 1990s and 2010.
Median external debt has dropped from 60 percent to 35 percent of GDP over that same period. Such policy changes account for two-thirds of
the increased recession-resilience of developing countries since the turn of the century, suggest the IMF researchers—leaving external factors,
such as positive terms of trade, accounting for just one-third. That’s good news for the developing world—not least because volatile growth is
particularly bad for poorer people, who are most at risk of falling into malnutrition or being forced to take children out of school, which has
long-term consequences for future earnings. That might help explain the relationship between growth volatility, slower reductions in poverty,
and rising inequality. Sudden negative income shocks can also be a factor in sparking violence: When rains fail, the risk of civil war in Africa
spikes, and when coffee prices in Colombia fall, municipalities cultivating more coffee see increased drug-related conflict. The African analysis
suggests that a five percentage-point drop in income growth is associated with a 10 percent increase in the risk of civil conflict in the following
year. Finally,
because volatility increases the uncertainty attached to investments, it can also be a drag on
overall long-term economic performance. Viktoria Hnatkovska and Norman Loayza of the World Bank estimated that moving
from a comparatively stable to a relatively volatile growth trajectory is associated with a drop in average annual growth of as much as 2 percent
of GDP. Lower volatility
in the developing world and its associated long-term growth performance is also
good news for the U.S. A strong global economy is still a positive force for growth in every country, including developed nations. And
with the developing world accounting for about one-third of trade and GDP at market rates, as well as three-fifths of U.S. exports, its role in
supporting American economic performance has never been greater. Those
hoping for a recovery in U.S. output should be
grateful for stronger economic immune systems in the rest of the world.
1AR – Link Turn Extension
Domestic surveillance causes massive offshoring—undermines the economy
Miller 2014 (Hugo; NSA Spying Sends Data Clients North of the Border; Jan 9;
www.bloomberg.com/news/articles/2014-01-09/nsa-spying-sends-data-clients-north-of-the-border;
kdf)
In the British Columbia town of Kamloops, arid as a desert with cool summer nights, Telus Corp. only has to turn on the air conditioning about
40 hours a year to keep its computer servers from overheating. The chilly
temperatures are part of Canadian companies’
sales pitch to businesses looking for places to store their growing troves of digital information as cheaply as
possible. They also boast of inexpensive hydroelectric power and low seismic activity. And now they’re touting what they say is
a new advantage: less snooping. Revelations that the U.S. National Security Agency has spied on data
networks run by American companies have given Canadian data-center operators an opportunity.
They’re telling customers from Europe and Asia that laws north of the border are more protective of privacy.
Sales of storage services in Canada are growing 20 percent a year at Telus and Rogers Communications Inc. U.S.-based technology
companies, meanwhile, complain that the NSA scandal has hurt their business. “There is a structural advantage in
Canada in that the data is here and the privacy protection is more stringent,” said Lloyd Switzer, who runs Telus’s network of data centers. The
company has 10 data centers in Quebec, Ontario, Alberta and British Columbia, where it opened a C$75 million, 215,000-square-foot (20,000square-meter) facility in Kamloops last year. That site has room for six more modules of expansion, which would increase the investment into
the hundreds of millions of dollars.
Federalism
Precedent of the plan only sets a constitutional floor for states and municipalities
Rushin 2011 (Stephen [PhD student at the University of California, Berkeley, Jurisprudence and Social
Policy Program; J.D., University of California, Berkeley]; THE JUDICIAL RESPONSE TO MASS POLICE
SURVEILLANCE; 2011 U. Ill. J.L. Tech. & Pol'y 281; kdf)
To begin with, skeptics allege that legislations can more carefully analyze a problem, investigate potential solutions, impanel experts, and make
far-reaching, nuanced policies. n362 Unlike the legislature, which may "command the resources of an extensive bureaucracy ... a judge is
generally limited to a secretary and one or two recent law school ... [graduate clerks]." n363 Kerr has thus argued that the courts simply do not
have the resources to engage in this kind of careful analysis necessary to develop a comprehensive and responsive policy on Fourth
Amendment technologies. n364 On its face, this type of analysis is persuasive, especially considering the fact that the courts lack the funding to
do sweeping investigations into the efficacy of an emerging technology. Nonetheless, this logic ignores a pivotal tactic used by courts in
previous iterations of successful policymaking - the adoption of standards already implemented by other institutions. n365 Malcolm Feeley and
Edward Rubin explained that when the courts attempted to create extensive judicial policy [*325] regulating American prisons, judges turned to
the American Correctional Association and the Federal Bureau of Prisons. n366 Indeed, "Federal judges turned to these standards because they
wanted to impose detailed, administrative-style rules of any sort but lacked the resources to design the rules themselves." n367 Unlike the
prison reform context described by Feeley and Rubin, where the courts created extensive and detailed policy,
the judicial response I
argue for in this Article does not require extensive investigation or uniform implementation. I merely
argue for a judicially mandated floor, which establishes the minimum amount of regulation required for
surveillance technologies. Additionally, there is domestic and international precedent, most notably in Maine, New
Hampshire, Virginia, and Germany, that the courts could use as a model to craft a broad solution. n368 Once the
courts lay out a broad policy objective, police departments and local legislatures would be incentivized
to develop their own, individual policies to implement this judicially mandated, regulatory floor. States
would be free to develop more complex, detailed, and even more stringent protections against data
collection. Some states have already done just that. n369 This pattern can be seen in other areas of criminal judicial policymaking, such as
Miranda requirements. The Court handed down broad general requirements - departments, in implementing the Miranda decision, often went
above and beyond the Court's minimal requirements. Next, critics of judicial regulation of emerging technologies have argued that judges are
not as technically sophisticated as the legislature. Judges often "rely on the crutch of questionable metaphors to aid their comprehension" of
complex technology cases, meaning that "it is easy for judges to misunderstand the context of their decisions and their likely effect when
technology is in flux." n370 But in the unique situation outlined in this Article, judges do not need to be experts in these technological fields to
understand the capabilities of technologies like ALPR and facial recognition software. The danger I discuss in this article is that police will keep a
digital dossier of every single person's movements. This type of monitoring would facilitate fishing expeditions, increase the likelihood of
corrupt behavior by law enforcement, and facilitate some types of racial profiling.
There is little reason to believe that, with
the assistance of knowledgeable advocates, judges could not sufficiently understand the potential
harms posted by digitally efficient investigative technologies to develop a coherent constitutional floor
of protection. And even though the legislature has a broader array of resources at its disposal, the
legislature is an unsatisfactory avenue to protect the unique counter-majoritarian issues at stake. Finally,
some scholars have contended that judicial regulations of [*326] emerging technologies rarely hold up in different factual scenarios. Under this
rationale, critics of this judicial response may contend that while this protection could work when applied to ALPR or facial recognition
software, it would not necessarily be a workable standard for future technological developments. This view certainly has merit. "By the time the
courts decide how a technology should be regulated ... the factual record of the case may be outdated, reflecting older technology rather than
more recent developments." n371 Stuart Benjamin has argued that "rapidly changing facts weaken the force of stare decisis by undermining
the stability of precedents." n372 This provides a forceful case against judicial micromanagement of emerging technologies. But the judicial
response argued for in this Article is sufficiently broad to avoid the predictable antiquation of other, narrower judicial solutions - it merely
distinguishes between observational comparison and indiscriminate data collection, while broadly regulating the identification of data and
interactions with private data aggregators. The collection of extensive, indiscriminate surveillance data is a widespread, pervasive occurrence
common amongst countless investigative technologies. The development of digital dossiers is not a trending fad that will simply disappear in
the near future. We should not expect the legislature to step in and address a problem that may disproportionately affect unpopular minorities.
The Court has long recognized that when making policy in the field of emerging technologies, "the rule
we adopt must take account of more sophisticated systems that are already in use or in development."
n373 The judicial response presented does not prevent the use of surveillance technologies for
observational comparison, but merely offers a sufficiently broad and generalized constitutional limit on
indiscriminate data collection, which can be reasonably exported and applied to future, more
sophisticated technologies. Once more, critics of judicial policymaking seem tacitly concerned that the limited applicability of judicial
rules in the future will weaken the force of stare decisis, thereby undermining the judiciary's legitimacy. But nothing could further de-legitimize
the judiciary more than a failure to serve its fundamental role as a protector against the tyranny of majoritarian preferences. The courts are
therefore the best-positioned actor within our decentralized federal system to protect against the threat of extensive, indiscriminate data
collection. Concerns about the judiciary's institutional competence seem misplaced. And though the courts have limited resources, there is not
enough convincing evidence of a "judicial information deficit" n374 so as to overcome the judiciary's important role as protectors of discrete
and insular minorities.C. Re-conceptualizing the Current Privacy Doctrine in Light of the Digitally Efficient Investigative State A
judicial
response is a step in the right direction in addressing the [*327] growing threat posed by mass police
surveillance. But the proposed judicial response should only be the beginning in a broader shift in our
privacy dialogue. The digitally efficient investigative state has wide-ranging social implications for the entire study of privacy law. I argue
that, given the mounting evidence of efficient retention of public surveillance data and data centralization, it is finally time to re-conceptualize
outdated privacy law assumptions - principal among them the antediluvian notion that an individual has no reasonable expectation to privacy in
public movements. To be clear, I am not arguing that, descriptively, people currently have an honest expectation to privacy in public in today's
world. In the age of GPS, smart phones, Facebook, and Twitter, our socially reasonable expectation to privacy is weaker than ever. Instead, it is
time for a normative reassessment of our entire privacy doctrine. Of course, I am not the first to propose such an argument. Professor Solove
has already observed: Privacy is not simply an empirical and historical question that measures the collective sense in any given society of what
is and has long been considered private. Without a normative component, a conception of privacy can only provide a status report on existing
privacy norms rather than guide us toward shaping privacy law and policy in the future. If we focus simply on people's current expectation of
privacy, our conception of privacy would continually shrink given the increasing surveillance in the modern world. n375 The
judiciary can
and should play a fundamental role in protecting a normatively forceful conception of privacy in all
regards. Do we reasonably expect a person to assume the risk that, every time they enter a public space, the state can monitor their every
movement with ALPR? Do we reasonably expect a person to assume the risk that the state will keep extensive, centralized data on their
movements indefinitely? Or perhaps the more important question is should we expect individuals to completely abandon all anonymity in
public? I believe the clear, normative answer to these questions is a resounding no, and the implications of the digitally efficient investigative
state only add weight to the claims previously made by Professor Solove and others. Ultimately, this Article only scratches the surface of the
broader social implications of the digitally efficient investigative state. Questions remain about the relative criminological benefits of
observational comparison as compared to wholesale data retention. There is an increasing need for empirical research on the effects these
emerging technologies have on individual behavior. And there is a dearth of concrete data on the extent to which law enforcement use these
technologies. I offer only a brief glimpse into this new technological order, the relevant case law, and some general normative
recommendations. This
should only be the beginning of the conversation about the sociological,
psychological, criminological, and legal impacts of the increasingly efficient police surveillance. [*328] 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.
The plan sets a floor – states can go beyond it
Kaminski 2013 (Margot E [Executive Director of the Information Society Project, Research Scholar,
and Lecturer in Law at Yale Law School]; Drone Federalism: Civilian Drones and the Things They Carry; 4
Calif. L. Rev. Circuit 57; kdf)
DRONE PRIVACY REGULATIONS There are, broadly speaking, two subjects of drone privacy regulation: law enforcement drone use and civilian
drone use. n8 Most advocates and academics have focused on establishing privacy regulations to govern law enforcement drone use. n9 This
task is worthy of immediate attention. The FAA already permits law enforcement drone use, where it does not yet permit commercial private
drone use. n10 A number of state and federal bills thus propose warrant requirements for drone surveillance by law enforcement. n11 The
federal government could regulate law enforcement drone use as it has historically regulated other law
enforcement behavior, by providing a floor for state laws. n12 Federal legislation already governs law
enforcement use of wiretaps and pen registers. n13 Drone surveillance is likely to additionally involve
video surveillance, location tracking, and/or facial recognition, among other possible technologies. Thus
federal legislation governing law enforcement surveillance could be expanded to govern location tracking, video
surveillance, and the use of facial recognition software by law enforcement. n14 [*60] Regulating law enforcement drone use poses few
countervailing dangers from legislating thoughtlessly or in haste; such legislation would implicate Fourth Amendment rights rather than First
Amendment rights, so the worst case scenario is that such legislation might eventually be found by courts not to protect enough privacy. n15
Potential Privacy Grounds
Informational Privacy
Drones are a violation of informational privacy
Olivito 13— attorney practicing commercial litigation and employment law. He previously worked at
The Ohio State University Office of Legal Affairs
(Jonathan, “Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional
Right to Informational Privacy” December 8,
http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/8-Olivito.pdf) JB
To remedy these privacy concerns, courts should adjudicate cases involving drone surveillance under the
constitutional right to informational privacy. As already recognized by most courts applying the right, the constitutional right to
privacy creates a right of action against the government.177 This right of action stands independent of the Fourth
Amendment, augmenting the Fourth Amendment’s protections rather than replacing them.178 When
courts confront the claim that drone surveillance has invaded an individual’s constitutional right to
privacy, courts should apply the following test. First, courts should require a claimant to establish a threshold requirement:
that a government action has implicated a privacy interest. Once this threshold criterion is met, the court should engage
in a balancing test that weighs the individual’s privacy interests against the government’s interests in
conducting the challenged drone surveillance. Courts should consider five factors when applying the
balancing test: (a) the duration of the surveillance; (b) the invasiveness of the technologies used; (c) the
thoroughness of the surveillance; (d) the individualized nature of the surveillance; (e) and the presence
of a warrant or probable cause. If the individual’s privacy interests outweigh the government’s interests, then the court would, as a
remedy, prohibit the government from storing, aggregating, transferring, or distributing any information gathered in the challenged
surveillance. The
court’s remedy would apply both to any information that the government had already
gathered and to information that the government might observe through the challenged drone
surveillance in the future.179 The subsequent discussion elucidates the elements of this balancing test.
Aggregate Theory
Supreme Court precedent supports an aggregate theory of privacy
Citron and Gray 13 (Danielle Keats [Professor of Law, University of Maryland] and David [Professor of
Law, University of Maryland]; Addressing the Harm of Total Surveillance: A Reply to Professor Neil
Richards; June 21; http://harvardlawreview.org/2013/06/addressing-the-harm-of-total-surveillance-areply-to-professor-neil-richards/)//AJ
The threat posed by contemporary surveillance technologies lies in how much and how often people are
watched. Modern technologies allow observers to detect, gather, and aggregate mass quantities of data
about mundane daily acts and habits as well as “intellectual” ones.66 The continuous and indiscriminate
surveillance they accomplish is damaging because it violates reasonable expectations of quantitative
privacy, by which we mean privacy interests in large aggregations of information that are independent
from particular interests in constituent parts of that whole.68 To be sure, the harms that Richards links
to intellectual privacy are very much at stake in recognizing a right to quantitative privacy. But rather
than being a function of the kind of information gathered, we think that the true threats to projects of
self-development and democratic culture lie in the capacity of new and developing technologies to
facilitate a surveillance state.
In adopting this view, we ally ourselves in part with commitments to a quantitative account of Fourth
Amendment privacy promoted by at least five Justices of the Supreme Court last Term in United States
v. Jones.69 In Jones, police officers investigating drug trafficking in and around the District of Columbia
attached a GPS-enabled tracking device on defendant Jones’s car. By monitoring his movements over
the course of a month, investigators were able to document both the patterns and the particulars of his
travel, which played a critical role in his ultimate conviction. Although the Court resolved Jones on the
narrow grounds of physical trespass, five justices wrote or joined concurring opinions showing sympathy
for the proposition that citizens hold reasonable expectations of privacy in large quantities of data, even
if they lack reasonable expectations of privacy in the constitutive parts of that whole.70 Thus, they
would have held that Jones had a reasonable expectation in the aggregate of data documenting his
public movements over the course of four weeks, even though he did not have any expectation of
privacy in his public movements on any particular afternoon.71
The account of quantitative privacy advanced by the Jones concurrences has much in common with the
views promoted by Warren and Brandeis. Specifically, the concurring Justices in Jones expressed worry
that by “making available at a relatively low cost such a substantial quantum of intimate information
about any person whom the Government, in its unfettered discretion, chooses to track,” programs of
broad and indiscriminate surveillance will “chill[] associational and expressive freedoms,” and “alter the
relationship between citizen and government in a way that is inimical to a democratic society.”72 Their
concerns are well-grounded in original understandings of the Fourth Amendment.73 As Professor
William Stuntz has shown, the Fourth Amendment was drafted partly in reaction to eighteenth-century
cases involving the British government’s use of general warrants to seize personal diaries and letters in
support of seditious-libel prosecutions that were designed to suppress political thought.74 Despite
these roots, quantitative privacy is just beginning to receive recognition because it is only now under
threat of extinction by technologies like Virtual Alabama and fusion centers.
Katz/Subjective Expectation of Privacy
Courts should rule drones violate a person’s subjective expectation of privacy
Koerner 15 (Matthew [J.D. Duke University School of Law]; Drones and the Fourth Amendment:
Redefining Expectations of Privacy; March, 2015; http://www.lexisnexis.com.p
roxy.lib.umich.edu/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T222512
84585&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T2225
1284591&cisb=22_T22251284590&treeMax=true&treeWidth=0&csi=7336&docNo=5)//AJ
[*1133] Drones, with their current and projected capabilities, present a perfect storm of issues that fall
outside of current Fourth Amendment jurisprudence but still appear to implicate the Fourth
Amendment. n20 Drones can maneuver through each and every loophole of the jurisprudence for
warrantless searches. n21 They travel on public airways at low or high altitudes, undetected and with
little or no undue noise, nuisance, or threat to persons or property. n22 They can utilize senseenhancing technologies that are, or will soon be, in general public use. n23 And drones can use these
technologies to gather an abundance of intimate details and information, previously impossible or
impracticable to acquire. n24 Law enforcement is likely to increasingly use drones for domestic
surveillance, n25 and this will likely propel drones to the forefront of courts' dockets. n26
Scholars have written exhaustively on many aspects of the Fourth Amendment, and its intersection with
drones has recently [*1134] received significant attention. n27 Much of the literature on drones and
the Fourth Amendment recognizes that it is unclear where - and whether - drones fall within current
jurisprudence, and recommends a variety of legislative solutions. n28 But although scholars identify the
legal uncertainties with drones, those recommending legislative action endorse a partial solution that
only perpetuates the problem that the courts have maintained with respect to technology and the
Fourth Amendment. Specifically, just as current Fourth Amendment jurisprudence has failed to keep
pace with advancing technology, a legislative approach will also trail behind. n29 This Note addresses
these [*1135] issues and recommends an adaptive approach to Fourth Amendment jurisprudence in
the age of the drone.
For these reasons, it is highly probable that courts will soon confront issues regarding the use of drones
for domestic surveillance. n30 This Note argues that when these issues arise, courts should apply the
reasonable-expectation-of-privacy test expounded in Katz v. United States, n31 and, in doing so, expand
on the subjective-expectation-of-privacy requirement. This oft-neglected element of the two-pronged
test provides critical analysis that is especially relevant to cases involving drones. In further analyzing
and clarifying the subjective-expectation requirement, courts should proceed in three steps. First, they
should determine whether the surveilled person "exhibited an actual (subjective) expectation of
privacy" - the [*1136] threshold issue in order for the Fourth Amendment to apply. n32 Second, if the
person held a subjective expectation of privacy, courts should evaluate the scope of that privacy
expectation. And third, they should determine whether the person "exposed [information] to the "plain
view' of outsiders" and whether the evidence at issue fell within the scope of that exposure. n33