MDAW 2015
Legalism Kritik
Legalism K
Negative
Legalism K: 1NC....................................................................................................................2
Legalism K: 1NC....................................................................................................................3
Legalism K: 1NC....................................................................................................................4
L: Legitimization.....................................................................................................................5
L: Palliative ............................................................................................................................6
L: Palliative ............................................................................................................................7
L: A2 “Perm” ..........................................................................................................................8
M: Race .................................................................................................................................9
M: Turns Case/SPF .............................................................................................................10
Alt: Top—2NC .....................................................................................................................11
Alt: Top—2NC .....................................................................................................................12
Alt: FW—2NC ......................................................................................................................13
Affirmative
Aff: Alt Fails .........................................................................................................................14
Aff: Cedes the political .........................................................................................................15
Aff: Legal Restraints Work ...................................................................................................16
Aff: Perm .............................................................................................................................17
Aff: A2 “Law Racist” .............................................................................................................18
Aff: A2 “Causes Wars” .........................................................................................................19
1
MDAW 2015
Legalism Kritik
Legalism K: 1NC
The affs legal restrictions on surveillance fail, prevent meaningful change, and legitimize
the surveillance system- that turns the case
Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan, Intelligence Legalism and the National Security Agency’s Civil
Liberties Gap, 2015, Harvard National Security Journal / Vol. 6,
In addition,
judicial review legitimates the American surveillance system; that is why reference to court supervision is
surveillance proponents’ first recourse when they want to suggest that everything is fine. It is, for example, a rare
speech by a government official that fails to make reference to the FISA Court and its ratification of the
government’s surveillance programs. Below are passages, chosen essentially at random, from a speech by President Obama on the topic of signals intelligence
reform326: • “I ordered that our programs be reviewed by my national security team and our lawyers . . . . We increased oversight and auditing, including new structures aimed at compliance.
Improved rules were proposed by the government and approved by the Foreign Intelligence Surveillance Court.” • “[T]he Foreign Intelligence Surveillance Court . . . provides judicial review of
court involvement is offered as evidence of both legality and
appropriateness; indeed, the two are conceptually merged. My point is not that FISA Court legitimation is phony. In fact, judicial review has real effects on the system—we know
from the recently declassified documents that FISA Court review disciplines the surveillance system, holding it at least to the government’s own representations.327 Yet the oversight
gain carries with it a legitimation cost; the existence of judicial review makes political change more difficult.
Scholars, particularly critical legal studies scholars, have made this point in a large number of other contexts. For example, Alan Freeman argued
that civil rights law —and law more generally—exists “largely to legitimize the existing social structure.”328 The polity at large
is soothed, and the effect is felt even by rights beneficiaries, who frame and tame their aspirations to suit the
inherently limited scope of potential judicial interventions. Freeman described his view that American civil rights litigation has
amounted to a “process of containing and stabilizing the aspirations of the oppressed through tokenism and
formal gestures which actually enhance the material lives of few.”329 He wrote: Rights are granted to, or bestowed
upon, the powerless by the powerful. They are ultimately within the control of those with authority to interpret or
rewrite the sacred texts from which they derive. To enjoy them, one must respect the forms and norms laid down
by those in power. One must especially avoid excesses in behavior or demands.330 The point is not, for Freeman (and the plentiful
some of our most sensitive intelligence activities.” In language like the above,
literature he adduced), that law accomplishes nothing for its purported beneficiaries. If that were true, it could not legitimate: “[I]f law is to serve its legitimation function, [the] ultimate constraints
[that come from politics] must yield up just enough autonomy to the legal system to make its operations credible for those whose allegiance it seeks as well as those whose self-interest it
rationalizes.”331 But gains
from rights may—and in the surveillance situation clearly do—make gains from politics less
available. To sum up this Part, neither the Constitution nor FISA aims to optimally balance security and liberty—and
frequently analyzed difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill
that gap. Likewise the existing foundational Executive Order, 12,333, is at the very least out-of-date. Accordingly
intelligence legalism, and its compliance mindset, cannot achieve optimal policy. Its concomitant empowerment of lawyers is real and
important, but does not deputize a procivil liberties force. Indeed, legalism actually both crowds out the consideration
of policy and interests (as opposed to law and rights), and legitimates the surveillance state, making it less susceptible to
policy reform. Are there, then, non-legalistic reforms that could play a productive part? I turn next to this issue.
2
MDAW 2015
Legalism Kritik
Legalism K: 1NC
The impact is militarism
Smith 2 – prof of phil @ U of South Florida
(Thomas, International Studies Quarterly 46, The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence)
the Pentagon wields law with
technical precision. During the Gulf War and the Kosovo campaign, JAGs opined on the legal status of multinational forces, the U.S. War Powers Resolution, rules of engagement and
targeting, country fly-overs, maritime interceptions, treatment of prisoners, hostages and “human shields,” and methods used to gather intelligence. Long before the bombing began, lawyers had joined in
The role of military lawyers in all this has, according to one study, “changed irrevocably” ~Keeva, 1991:59!. Although liberal theor ists point to the broad normative contours that law lends to international relations,
the development and acquisition of weapons systems, tactical planning, and troop training. In the Gulf War, the U.S. deployed approximately 430 military lawyers, the allies far fewer, leading to some amusing but perhaps apposite observations about the legalistic culture of America
~Garratt, 1993!. Many lawyers reviewed daily Air Tasking Orders as well as land tactics. Others found themselves on the ground and at the front. According to Colonel Rup- pert, the idea was to “put the lawyer as far forward as possible” ~Myrow, 1996–97!. During the Kosovo campaign,
lawyers based at the Combined Allied Operations Center in Vicenza, Italy, and at NATO headquarters in Brussels approved every single targeting decision. We do not know precisely how decisions were taken in either Iraq or Kosovo or the extent to which the lawyers reined in their
masters. Some “corrections and adjustments” to the target lists were made ~Shot- well, 1993:26!, but by all accounts the lawyers—and the law—were extremely accommodating. The exigencies of war invite professional hazards as military lawyers seek to “find the law” an d to determine
their own responsibilities as legal counselors. A 1990 article in Military Law Review admonished judge advocates not to neglect their duty to point out breaches of the law, but not to become military ombuds- men either. The article acknowledged that the JAG faces pressure to demonstrate
that he can be a “force multiplier” who can “show the tactical and political soundness of his interpretation of the law” ~Winter, 1990:8–9!. Some tension between law and necessity is inevitable, but over the past decade the
focus has shifted visibly
from restraining violence to legitimizing it. The Vietnam-era perception that law was a drag on operations has been replaced by a zealous “client culture” among judge advocates. Commanding officers “have come to
the JAG’s role is not to create obstacles, but to find legal ways to achieve his client’s goals—even when
those goals are to blow things up and kill people” ~Keeva, 1991:59!. Lt. Col. Tony Montgomery, the JAG who approved the bombing of the Belgrade television studios, said recently that “judges don’t lay down
the law. We take guidance from our government on how much of the consequences they are willing to accept” ~The Guardian, 2001!. Military
necessity is undeterred. In a permissive legal atmosphere, hi-tech states can meet their goals and remain within the letter of the law. As noted, humanitarian law is firmest in areas of marginal military utility. When opera- tional demands intrude, however, even fundamental rules begin to
realize that, as in the relationship of corporate counsel to CEO,
erode. The Defense Department’s final report to Congress on the Gulf War ~DOD, 1992! found nothing in the principle of noncombatant immunity to curb necessity. Heartened by the knowledge that civilian discrimination is “one of the least codified portions” of the law of war ~p. 611!, the
authors argued that “to the degree possible and consistent with allowable risk to aircraft and aircrews,” muni- tions and delivery systems were chosen to reduce collateral damage ~p. 612!. “An attacker must exercise reasonable precautions to minimize incidental or collat- eral injury to the
civilian population or damage to civilian objects, consistent with mission accomplishments and allowable risk to the attacking forces” ~p. 615!. The report notes that planners targeted “specific military objects in populated areas which the law of war permits” and acknowledges the
“commingling” of civilian and military objects, yet the authors maintain that “at no time were civilian areas as such attacked” ~p. 613!. The report carefully constructed a precedent for future conflicts in which human shields might be deployed, noting “the presence of civilians will not render a
target immune from attack” ~p. 615!. The report insisted ~pp. 606–607! that Protocol I as well as the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons “were not legally applicable” to the Gulf War because Iraq as well as some Coalition members
had not ratified them. More to the point that law follows practice, the report claimed that certain provisions of Protocol I “are not a codification of the customary practice of nations,” and thus “ignore the realities of war” ~p. 616!. Nor can there be any doubt that a more elaborate legal regime
has kept pace with evolving strategy and technology. Michael Ignatieff details in Virtual War ~2000! how targets were “developed” in 72-hour cycles that involved collecting and reviewing aerial reconnaissance, gauging military necessity, and coding antici - pated collateral damage down to
the directional spray of bomb debris. A judge advocate then vetted each target in light of the Geneva Conventions and calcu- lated whether or not the overall advantage to be gained outweighed any expected civilian spillover. Ignatieff argues ~2000:198–199! that this elaborate symbiosis of
Legal fine print, hand-in-hand with new technology, replaced deeper deliberation about the use of violence in war. The
law provided “harried decision-makers with a critical guarantee of legal coverage, turning complex issues of morality into
technical issues of legality.” Astonishingly fine discrimination also meant that unintentional civilian casualties were assumed to have been unintentional, not foreseen tragedies to be justified under the rule of double effect or the fog of war. The
crowning irony is that NATO went to such lengths to justify its targets and limit collateral damage, even as it assured long-term civilian harm by destroy- ing the country’s infrastructure. Perhaps the most powerful justification was
provided by law itself. War is often dressed up in patriotic abstractions—Periclean oratory, jingoistic newsreels, or heroic memorials. Bellum Americanum is cloaked in the stylized language of law.
law and technology has given birth to a “veritable casuistry of war.”
The DOD report is padded with references to treaty law, some of it obscure, that was “applicable” to the Gulf War, as if a surfeit of legal citation would convince skeptics of the propriety of the war. Instances of humane restraint invariably were presented as the rule of law in action. Thus the
Allies did not gas Iraqi troops, torture POWs, or commit acts of perfidy. Most striking is the use of legal language to justify the erosion of noncombatant immunity. Hewing to the legal- isms of double effect, the Allies never intentionally targeted civilians as such. As noted, by codifying double
effect the law artificially bifurcates intentions. Har- vard theologian Bryan Hehir ~1996:7! marveled at the Coalition’s legalistic word- play, noting that the “briefers out of Riyadh sounded like Jesuits as they sought to defend the policy from any charge of attempting to directly attack civilians.”
The Pentagon’s legal narrative is certainly detached from the carnage on the ground, but it also oversimplifies and even actively obscures
the moral choices involved in aerial bombing. Lawyers and tacticians made very deliberate decisions about aircraft, flight altitudes, time of day, ordnance dropped, confidence in intelligence, and so forth. By expanding military necessity to
encompass an extremely prudential reading of “force protection,” these choices were calculated to protect pilots and planes at the expense of civilians on the ground, departing from the just war tradition that combatants assume greater risks than civilians. While it is tempting to bl ame
collateral damage on the fog of war, much of that uncertainty has been lifted by technology and precision law. Similarly, in Ir aq and in Yugoslavia the focus was on “degrading” military capabilities, yet a loose view of dual use spelled the destruction of what were essentially social, economic,
and political targets. Coalition and NATO officials were quick to apologize for accidental civilian casualties, but in hi-tech war most noncombatant suffering is by design. Does the law of war reduce death and destruction? International law certainly has helped to delegitimize, and in rare
cases effectively criminalize, direct attacks on civilians. But in general humanitarian law has mirrored wartime practice. On the ad bellum side, the erosion of right authority and just cause
has eased the path toward war. Today, foreign
offices rarely even bother with formal declara- tions of war. Under the United Nations system it is the responsibility of the Security Council to denounce illegal war, but f or a number of reasons its mem- bers have been extremely reluctant to brand states as aggressors. If the law were less
accommodating, greater effort might be devoted to diplomacy and war might be averted. On the in bello side the ban on direct civilian strikes remains intact, but double effect and military demands have been contrived to justify unnecessary civilian deaths. Dual use law has been stretched
to sanction new forms of violence against civilians.
than the rhetoric
Though not as spectacular as the obliteration bombing to which it so often is favorably compared, infrastructural war is far deadlier
suggests. It is true that rough estimates of the ratio of bomb tonnage to civilian deaths in air attacks show remarkable reductions in immediate collateral damage. There were some 40.83 deaths per
of a “clean and legal” conflict
ton in the bombing of Guernica in 1937 and 50.33 deaths per ton in the bombing of Tokyo in 1945. In the Kosovo campaign, by contrast, there were between .077 and .084 deaths per ton. In Iraq there were a mere .034 ~Thomas, 2001:169!. According to the classical definition of collateral
damage, civilian protection has improved dramatically, but if one takes into account the staggering long-term effects of the war in Iraq, for example, aerial bombing looks anything but humane. For aerial bombers themselves modern war does live up to its clean and legal image. While war
and intervention have few steadfast constituents,
the myth of immaculate warfare has eased fears that intervening soldiers may come to harm, which polls in the U.S., at least, rank as being of great public
concern, and even greater military concern. A new survey of U.S. civilian and military attitudes found that soldiers were two to four times more casualty-averse than civilians thought they should be ~Feaver and Kohn, 2001!. By removing what is perhaps the greatest restraint on the use of
law and tech
have given rise to the
moral hazards of a
risk-free, painless war”
force—the possibility of soldiers dying—
nology
novel
“postmodern,
~Woollacott, 1999!.
“We’ve come to expect the immacu- late,” notes Martin Cook, who teaches ethics at the U.S. Army War College in Carlisle, PA. “Precision-guided munitions make it very much easier to go to war than it ever has been historically.” Albert Pierce, director of the Center for the Study of
Professional Military Ethics at the U.S. Naval Academy argues, “standoff precision weapons give you the option to lower costs and risks . . . but you might be tempted to do things that you might otherwise not do” ~Belsie, 1999!. Conclusion The utility of law to legitimize modern warfare
use of law that has oiled the
skids of hi-tech violence. Not only does the law defer to military necessity, even when very broadly defined, but more importantly it bestows on those same military demands all the moral and psychological trappings of legality. The
result has been to legalize and thus to justify in the public mind “inhumane military methods and their consequences,” as violence against civilians is carried out “behind the
protective veil of justice” ~af Jochnick and Normand, 1994a:50!. Hi-tech states can defend hugely destructive, essentially unopposed, aerial bombardment by citing the authority of seemingly secular and universal legal standards. The growing
gap between hi- and low-tech means may exacerbate inequalities in moral capital as well, as the sheer barbarism of “premodern” violence committed by ethnic cleansers or atavistic warlords makes the methods employed by hi-tech
warriors seem all the more clean and legal by contrast . This fusion of law and technology is likely to propel future American interventions. Despite
should not be underestimated. Even in the midst of war, legal arguments retain an aura of legitimacy that is missing in “political” justifications. The aspirations of humanitarian l aw are sound. Rather, it is the instrumental
assurances that the campaign against terrorism would differ from past conflicts, the allied air war in Afghanistan, marked by record numbers of unmanned drones and bomber flights at up to 35,000 feet, or nearly 7 miles aloft, rarely strayed from the hi-tech and legalistic script. While the
attack on the World Trade Center confirmed a thousand times over the illegality and inhu- manity of terrorism, the U.S. response has raised further issues of legality and inhumanity in conventional warfare. Civilian deaths in the campaign have been substantial because “military objects”
have been targeted on the basis of extremely low-confidence intelligence. In several cases targets appear to have been chosen based on misinformation and even rank rumor. A liberal reading of dual use and the authorization of bombers to strike unvetted “targets of opportunity” also
increased collateral damage. Although 10,000 of the 18,000 bombs, missiles, and other ordnance used in Afghanistan were precision-guided munitions, the war resulted in roughly 1000 to 4000 direct civilian deaths, and, according to the UNHCR, produced 900,000 new refugees and
displaced persons. The Pentagon has nevertheless viewed the campaign as “a more antiseptic air war even than the one waged in Kosovo” ~Dao, 2001!. General Tommy Franks, who commanded the campaign, called it “the most accurate war ever fought in this nation’s history” ~Schmitt,
2002!.9 No fundamental change is in sight. Governments continue to justify collateral damage by citing the marvels of technol ogy and the authority of international law. One does see a widening rift between governments and independent human rights and humanitarian relief groups over
the interpretation of targeting and dual-use law. But these disputes have only underscored the ambiguities of human- itarian law. As long as interventionist states dominate the way that the rules of war are crafted and construed, hopes of rescuing law from politics will be dim indeed.
3
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Legalism Kritik
Legalism K: 1NC
The alt is to reject the aff in favor of political restraints through public dissent
Vermeule and Posner 11 Adrian Vermeule, prof of Law at Harvard University Law School, Eric A Posner., prof of Law at the
University of Chicago Law School, Executive Unbound: After the Madisonian Republic, Oxford University Press 2011
We do not yet live under a plebiscitary presidency. In such a system, the president has unchecked legal powers except for the obligation to submit to periodic elections. In our system, Congress
retains the formal power to make law. It has subjected presidential lawmaking to complex procedures and bureaucratic checks,1 and it has created independent agencies over which the
president in theory has limited control. The federal courts can expect the executive to submit to their orders, and the Supreme Court retains certain quasi-lawmaking powers, which it exercises
legal
checks on executive authority (aside from the electoral constraint) have eroded considerably over the last two hundred years. Congress has delegated extensive
powers to the executive. For new initiatives, the executive leads and Congress follows. Congress can certainly slow down policymaking, and block bills
proposed by the executive; but it cannot set the agenda. It is hard to quantify the extent of congressional control over regulatory agencies, but it is fair to say that congressional
by striking down statutes and blocking executive actions. The federal system is still in place. State legal institutions retain considerable power over their populations. But these
intervention is episodic and limited, while presidential control over both the executive and independent agencies is strong and growing stronger. The states increasingly exercise authority at the
sufferance of the national government and hence the president. The federal courts have not tried to stop the erosion of congressional power and state power. Some commentators argue that
the federal courts have taken over Congress’s role as an institutional check. It is true that the Supreme Court has shown little compunction about striking down statutes (although usually state
statutes), and that it rejected some of the legal theories that the Bush administration used to justify its counterterrorism policies. However,
the Court remains a marginal
player . The Court ducked any legal rulings on counterterror policies until the 2004 Hamdi decision, and even after the Boumediene decision in 2008, no detainee has been released by
final judicial order, from Guantanamo or elsewhere, except in cases where the government chose not to appeal the order of a district judge. The vast majority of detainees have received merely
another round of legal process. Some speculate that judicial threats to release detainees have caused the administration to release them preemptively. Yet the judges would incur large political
costs for actual orders to release suspected terrorists, and the government knows this, so it is unclear that the government sees the judicial threats as credible or takes them very seriously. The
government, of course, has many administrative and political reasons to release detainees, quite apart from anything the courts do. So the executive submits to judicial orders in part because
the courts are careful not to give orders that the executive will resist. In general, judicial opposition to the Bush administration’s counterterrorism policies took the form of incremental rulings
handed down at a glacial pace, none of which actually stopped any of the major counterterrorism tactics of that administration, including the application of military power against Al Qaeda, the
The (limited) modifications of those
tactics that have occurred resulted not from legal interventions but from policy adjustments driven by changed
circumstances and public opinion , and by electoral victory of the Obama administration. However, the Obama administration has mostly confirmed and in some areas
indefinite detention of members of Al Qaeda, targeted assassinations, the immigration sweeps, even coercive interrogation.
even expanded the counterterrorism policies of the Bush administration. Strong executive government is bipartisan. The 9/11 attack provided a reminder of just how extensive the president’s
power is. The executive claimed the constitutional authority to, in effect, use emergency powers. Because Congress provided redundant statutory authority, and the Supreme Court has
steadfastly refused to address the ultimate merits of the executives constitutional claims, these claims were never tested in a legal or public forum. But it is worth trying to imagine what would
have happened if Congress had refused to pass the Authorization for Use of Military Force and the Supreme Court had ordered the executive to release detainees in a contested case. We think
that the executive, backed up as it was by popular opinion, would have refused to obey. And, indeed, for just that reason, Congress would, never have refused its imprimatur and the Supreme
The major check on the executives power to declare an emergency and to use
emergency powers is—political. The financial crisis of 2008-2009 also revealed the extent of executive power. Acting together, the Fed, the Treasury, and other
Court would never have stood in the executive’s way.
executive agencies spent hundreds of billions of dollars, virtually nationalizing parts of the financial system. Congress put up a fuss, but it could not make policy and indeed hardly even
influenced policy. Congress initially refused to supply a blank check, then in world-record time changed its mind and gave the blank check, then watched helplessly as the administration
adopted policies different from those for which it said the legislation would be needed. Courts played no role in the crisis except to ratify executive actions in tension with the law.2 What, then,
prevents the executive from declaring spurious emergencies and using the occasion to consolidate its power—or for that matter, consolidating its power during real emergencies so that it
retains that power even after normal times return? In many countries, notably in Latin America, presidents have done just that. Citing an economic crisis, or a military threat, or congressional
gridlock, executives have shut down independent media, replaced judges with their cronies, suppressed political opposition, and ruled by dictate. Could this happen in the United States? The
answer is, very probably, no. The
political check on the executive is real. Declarations of emergency not justified by publicly
visible events would be met with skepticism. Actions said, to be justified by emergency would not be approved if
the justification were not plausible. Separation of powers may be suffering through an enfeebled old age, but
electoral democracy is alive and well. We have suggested that the historical developments that have undermined
separation of powers have strengthened democracy. Consider, for example, the communications revolution, which has culminated (so far) in the Internet
Age. As communication costs decrease, the size of markets expand, and hence the scale of regulatory activity must increase. Localities and states lose their ability to regulate markets, and the
national government takes over. Meanwhile, reduced communication costs increase the relative value of administration (monitoring firms and ordering them to change their behavior) and
reduce the relative value of legislation (issuing broad-gauged rules), favoring the executive over Congress. At the same time, reduced communication costs make it easier for the public to monitor the executive. Today, whistleblowers can easily find an audience on the Internet,; people can put together groups that focus on a tiny aspect of the government s behavior; gigabytes of
government data are uploaded onto the Internet and downloaded by researchers who can subject them to rigorous statistical analysis. It need not have worked out this way. Governments can
also use technology to monitor citizens for the purpose of suppressing political opposition. But this has not, so far, happened in the United States. Nixon fell in part because his monitoring of
political enemies caused an overwhelming political backlash, and although the Bush administration monitored suspected terrorists, no reputable critic suggested that it targeted domestic
political opponents. Our main argument has been methodological and programmatic: researchers should no longer view American political life through the Madisonian prism, while normative
. The center of gravity has shifted to the
executive , which both makes policy and administers it, subject to weak constraints imposed by Congress, the
theorists should cease bemoaning the decline of Madisonianism and instead make their peace with the new political order
judiciary, and the states. It is pointless to bewail these developments, and futile to argue that Madisonian structures should be reinvigorated. Instead, attention should shift to the political
constraints on the president and the institutions through, which those political constraints operate—chief among them elections, parties, bureaucracy, and the media. As
long as the
public informs itself and maintains a skeptical attitude toward the motivations of government officials, the executive can operate
effectively only by proving over and over that it deserves the public s trust. The irony of the new political order is that the executive, freed
from the bonds of law, inspires more distrust than in the past, and thus must enter ad hoc partnerships with political rivals in order to persuade people that it means well. But the new system is
more fluid, allowing the executive to form those partnerships when they are needed to advance its goals, and not otherwise. Certain types of partnership have become recurrent patterns—for
example, inviting a member of the opposite party to join the president’s cabinet. Others are likely in the future. In the place of the clockwork mechanism bequeathed to us by the Enlightenment
thinking of the founders, there has emerged a more organic system of power sharing and power constraint that depends on shifting political alliances, currents of public opinion, and the
particular exigencies that demand government action. It might seem that such a system requires more attention from the public than can reasonably be expected, but the old system of checks
and balances always depended on public opinion as well. The centuries-old British parliamentary system, which operated in. just this way, should provide reason, for optimism. The British
record on executive abuses, although hardly perfect, is no worse than the American record and arguably better, despite the lack of a Madisonian separation of legislative and executive powers
4
MDAW 2015
Legalism Kritik
L: Legitimization
The aff is a national security lawyers occasional “no” that legitimizes the legalism that
underpins the surveillance state writ large
Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan, Intelligence Legalism and the National Security Agency’s Civil
Liberties Gap, 2105, Harvard National Security Journal / Vol. 6,
I think not. Rather, when lawyers (in an office where they are understood to be practicing law) are given policy roles, those
lawyers’ legal sign-off frequently stands in as sufficient justification to undertake the policy. To quote Goldsmith one
last time, describing the Bush administration’s aggressive stance on a variety of national security topics, the role
of lawyers was part of why “‘What should we do?’ . . . often collapsed into ‘What can we lawfully do?’” 313 The
emerging evidence suggests that national security agency counsel are implementers of two major sets of values—
fiduciary/counselor, and rule of law—but not civil liberties. Judge James E. Baker’s book-long defense and explication of the role
of lawyers in the national security state barely mentions the key civil liberties values of freedom of speech or religion, the right to travel, or due
process, but repeatedly emphasizes the centrality of building “a society and a government bound by law, and respect for law.”314 Consider one
last time that 2005 speech to the NSA’s lawyers and their colleagues, by then-Deputy Attorney General James Comey, in which he praised the
NSA’s lawyers as “custodian[s] of our constitution and the rule of law.” Comey did not exhort his audience of intelligence lawyers to ask the
“should” question, rather than the “can” question. Rather, the commitment he attempted to bolster was to legal compliance, not to
individual liberty. To quote his revealing phrase again, he pleaded for “‘yes’ when it can be, . . . ‘no’ when it must
be.”315 And as I pointed out in this article’s introduction, the “no’s” Comey praises may make remarkably little difference, in the end. The
hospital-bed confrontation leading to the brief shut-down of part of the “President’s Surveillance Program”—the modern urepisode of intelligence legalism—is a perfect case in point. Lawyers, it seems to me, are far more likely to move
an organization towards this kind of nearly symbolic compliance than to effect any more significant constraint
on executive activity, particularly with respect to a program important to the President. Indeed, lawyers are attractive to
intelligence organizations because they are simultaneously able to give agency operations an imprimatur of
lawfulness and to maintain their agency affiliation/loyalty.316 Their occasional “no’s,” which like as not have
formal rather than major substantive effects, are a price worth paying for those traits.
5
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Legalism Kritik
L: Palliative
The squo guarantees increasing public resistance- the aff is a palliative
Michael J. Glennon 14, I-law prof at Tufts, National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf
If Bagehot’s theory is correct, the
United States now confronts a precarious situation. Maintaining the appearance that Madisonian
institutions control the course of national security policy requires that those institutions play a large enough role
in the decision-making process to maintain the illusion. But the Madisonians’ role is too visibly shrinking, and
the Trumanites’ too visibly expanding, to maintain the plausible impression of Madisonian governance.504 For this
reason and others, public confidence in the Madisonians has sunk to new lows .505 The Trumanites have resisted
transparency far more successfully than have the Madisonians, with unsurprising results. The success of the whole dual
institutional model depends upon the maintenance of public enchantment with the dignified/ Madisonian institutions. This requires
allowing no daylight to spoil their magic,506 as Bagehot put it. An element of mystery must be preserved to excite public imagination. But transparency—driven
hugely by modern internet technology, multiple informational sources, and social media— leaves little to the imagination. “The cure for admiring the House of Lords,”
Bagehot observed, “was to go and look at it.”507 The public has gone and looked at Congress, the Supreme Court, and the President, and their standing in public
opinion surveys is the result. Justices, senators, and presidents are not masters of the universe after all, the public has
discovered. They are just like us. Enquiring minds may not have read enough of Foreign Affairs508 to assess the Trumanites’ national security polices, but they
have read enough of People Magazine509 to know that the Madisonians are not who they pretend to be. While the public’s unfamiliarity with national security
matters has no doubt hastened the Trumanites’ rise, too many people will soon be too savvy to be misled by the Madisonian veneer,510 and those people often are
opinion leaders whose influence on public opinion is disproportionate to their numbers. There is no point in telling ghost stories, Holmes said, if people do not believe
in ghosts.511 It might be supposed at this point that the phenomenon of double government is nothing new. Anyone familiar with the management of the Vietnam
War 512 or the un-killable ABM program 513 knows that double government has been around for a while. Other realms of law, policy, and business also have come
to be dominated by specialists, made necessary and empowered by ever-increasing divisions of labor; is not national security duality merely a contemporary
manifestation of the challenge long posed to democracy by the administrative state-cum-technocracy?515 Why is national security different? There is validity to this
intuition and no dearth of examples of the frustration confronted by Madisonians who are left to shrug their shoulders when presented with complex policy options,
the desirability of which cannot be assessed without high levels of technical expertise. International trade issues, for example, turn frequently upon esoteric
econometric analysis beyond the grasp of all but a few Madisonians. Climate change and global warming present questions that depend ultimately upon the validity
of one intricate computer model versus another. The financial crisis of 2008 posed similar complexity when experts insisted to hastily-gathered executive officials and
legislators that—absent massive and immediate intervention—the nation’s and perhaps the world’s entire financial infrastructure would face imminent collapse.516 In
the “choice” made by the Madisonians is increasingly hollow; the real choices
are made by technocrats who present options to Madisonians that the Madisonians are in no position to assess. Why
is national security any different? It is different for a reason that I described in 1981: the organizations in question “do not regulate truck widths or set train
these and a growing number of similar situations,
schedules. They have the capability of radically and permanently altering the political and legal contours of our society.”517 An unrestrained security apparatus has
throughout history been one of the principal reasons that free governments have failed. The Trumanite network holds within its power something far greater than the
ability to recommend higher import duties or more windmills or even gargantuan corporate bailouts: it has the power to kill and arrest and jail, the power to see and
hear and read peoples’ every word and action, the power to instill fear and suspicion, the power to quash investigations and quell speech, the power to shape public
debate or to curtail it, and the power to hide its deeds and evade its weak-kneed overseers. It holds, in short, the power of irreversibility. No democracy worthy of its
name can permit that power to escape the control of the people. It might also be supposed that existing, non-Madisonian, external restraints pose counterweights
that compensate for the weakness of internal, Madisonian checks. The press, and the public sentiment it partially shapes, do constrain the abuse of power—but only
up to a point. To the extent that the “marketplace of ideas” analogy ever was apt, that marketplace, like other marketplaces, is given to distortion. Public outrage is
notoriously fickle, manipulable, and selective, particularly when driven by anger, fear, and indolence. Sizeable segments of the public—often egged
on by public officials—lash out unpredictably at imaginary transgressors, failing even in the ability to identify
sympathetic allies.518 "[P]ublic opinion," Sorensen wryly observed, "is not always identical with the public interest."519 The influence of the
media, whether to rouse or dampen, is thus limited. The handful of investigative journalists active in the United States today are the
truest contemporary example of Churchill's tribute to the Royal Air Force.520 In the end, though, access remains everything to the
press. Explicit or implicit threats by the targets of its inquiries to curtail access often yield editorial acquiescence. Members of the
public obviously are in no position to complain when a story does not appear. Further, even the best of investigative
journalists confront a high wall of secrecy. Finding and communicating with (on deep background, of course) a knowledgeable, candid source
within an opaque Trumanite network resistant to efforts to pinpoint decision-makers 521 can take years. Few publishers can afford the necessary financial
investment; newspapers are, after all, businesses, and the bottom line of their financial statements ultimately governs investigatory expenditures. Often, a second
corroborating source is required. Even after scaling the Trumanite wall of secrecy, reporters and their editors often become victims of the deal-making tactics they
must adopt to live comfortably with the Trumanites. Finally, members of the mass media are subject to the same organizational pressures that shape the behavior of
other groups. They eat together, travel together, and think together. A case in point was the Iraq War. The Washington Post ran twenty seven editorials in favor of
the war along with dozens of op-ed pieces, with only a few from skeptics.522 The New York Times, Time, Newsweek, the Los Angeles Tunes, and the Wall Street
Journal all marched along in lockstep.523 As Senator Eugene McCarthy aptly put it, reporters are like blackbirds; when one flies off the telephone wire, they all fly
off.524 More importantly, the premise—that a vigilant electorate fueled by a skeptical press together will successfully fill the void created by the hollowed-out
Madisonian institutions—is wrong.525 This premise supposes that those outside constraints operate independently, that their efficacy is not a function of the efficacy
of internal, Madisonian checks.526 But the internal and external checks are woven together and depend upon one another.527 Non-disclosure agreements
(Judicially-enforced gag orders, in truth) are prevalent among those best positioned to criticize/28 Heightened efforts have been undertaken to crush vigorous
investigative journalism and to prosecute and humiliate whistleblowers and to equate them with spies under the espionage laws. National security documents have
been breathtakingly over-classified. The evasion of Madisonian constraints by these sorts of policies has the net effect of narrowing the marketplace of ideas,
curtaining public debate, and gutting both the media and public opinion as effective restraints.529 The vitality of external checks depends upon the vitality of internal
Madisonian checks, and the internal Madisonian checks only minimally constrain the Trumanites. Some suggest that the answer is to admit the failure of the
Madisonian institutions, recognize that for all their faults the external checks are all that really exist, acknowledge that the Trumanite network cannot be unseated,
and try to work within the current framework.530 But the idea that external checks alone do or can provide the needed safeguards is false. If politics were the
6
MDAW 2015
Legalism Kritik
L: Palliative
effective restraint that some have argued it is,531 politics—intertwined as it is with law—would have produced more effective legalist constraints. It has not. The
failure of law is and has been a failure of politics. If the press and public opinion were sufficient to safeguard what the Madisonian institutions were designed to
protect, the story of democracy would consist of little more than a series of elected kings, with the rule of law having frozen with the signing of Magna Carta in 1215.
Even with effective rules to protect free, informed, and robust expression—which is an enormous assumption—public opinion alone cannot be counted upon to
protect what law is needed to protect. The hope that it can do so recalls earlier reactions to Bagehot’s insights—the faith that “the people” can simply “throw off” their
“deferential attitude and reshape the political system,” insisting that the Madisonian, or dignified, institutions must “once again provide the popular check” that they
were intended to provide.532 That, however, is exactly what many thought they were doing in electing Barack Obama as President. The results need not be
rehearsed; little reason exists to expect that some future public effort to resuscitate withered Madisonian institutions would be any more successful. Indeed, the
added power that the Trumanite network has taken on under the BushObama policies would make that all the more difficult. It is simply naive to believe that a
sufficiently large segment of informed and intelligent voters can somehow come together to ensure that sufficiently vigilant Madisonian surrogates will somehow be
included in the national security decisionmaking process to ensure that the Trumanite network is infused with the right values. Those who believe that do not
understand why that network was formed, how it operates, or why it survives. They want it, in short, to become more Madisonian. The Trumanite network, of course,
would not mind appearing more Madisonian, bul its enduring ambilion is lo become, in reality, less Madisonian. It is not clear what precisely might occur should
Bagehot's cone of government "fall to earth." United States history provides no precedent. One possibility is a prolongation of what are now long-standing trends,
with the arc of power continuing to shift gradually from the Madisonian institutions to the Trumanite network. Under this scenario, those institutions continue to
subcontract national security decisionmaking to the Trumanites; a majority of the public remains satisfied with tradeoffs between liberty and security; and members of
a dissatisfied minority are at a loss to know what to do and are, in any event, chilled by widely-feared Trumanite surveillance capabilities. The Madisonian institutions,
in this future, fade gradually into museum pieces, like the British House of Lords and monarchy; Madisonians kiss babies, cut ribbons, and read Trumanite talking
points, while the Trumanite network, careful to retain historic forms and familiar symbols, takes on the substance of a silent directorate. Another possibility, however,
is that the fall to earth could entail consequences that are profoundly disruptive, both for the government and the people. This scenario would be more
likely in the aftermath of a catastrophic terrorist attack that takes place in an environment lacking the safety-valve checks that the Madisonian institutions once
provided. In this future, an initial "rally round the flag" fervor and associated crack-down are followed, later, by an increasing spiral of recriminatory
reactions and counter-reactions. The government is seen increasingly by elements of the public as hiding what they ought to know, criminalizing what
they ought to be able to do, and spying upon what ought to be private. The people are seen increasingly by the government as unable to comprehend the gravity of
security threats, unappreciative of its security-protection efforts, and unworthy of its own trust. Recent public opinion surveys are portentous. A September 2013
Gallup Poll revealed that Americans' trust and confidence in the federal government's ability to handle international problems had reached an all-time low;533 a June
2013 Time magazine poll disclosed that 70% of those age eighteen to thirty-four believed that Edward Snowden "did a good thing" in leaking the news of the NSA's
surveillance program.534 This yawning attitudinal gap between the people and the government could reflect itself in multiple ways. Most obviously, the Trumanite
network must draw upon the U.S. population to fill the five million positions needed to staff its projects that require security clearances.535
That would be increasingly difficult, however, if the pool of available recruits comprises a growing and
indeterminate number of Edward Snowdens—individuals with nothing in their records that indicates
disqualifying unreliability but who, once hired, are willing nonetheless to act against perceived authoritarian
tendencies by leaving open the vault of secrecy. A smaller, less reliable pool of potential recruits would hardly be the worst of it, however.
Lacking perceived legitimacy, the government could expect a lesser level of cooperation, if not outright
obstruction, from the general public. Many national security programs presuppose public support for their
efficient operation. This ranges from compliance with national security letters and library records disclosure under the PATRIOT Act
to the design, manufacture, and sale of drones, and cooperation with counterintelligence activities and criminal
investigations involving national security prosecutions. Moreover, distrust of government tends to become generalized; people who doubt
governmental officials' assertions on national security threats are inclined to extend their skepticism. Governmental assurances concerning
everything from vaccine and food safety to the fairness of stock-market regulation and IRS investigations (not
without evidence536) become widely suspect. Inevitably, therefore, daily life would become more difficult. Government, after all, exists for a reason. It
carries out many helpful and indeed essential functions in a highly specialized society. When those functions cannot be fulfilled, work-arounds emerge, and social
dislocation results. Most seriously, the protection of legitimate national security interests would itself suffer if the public were unable to distinguish between
measures vital to its protection and those assumed to be undertaken merely through bureaucratic inertia or lack of imagination. The government itself, meanwhile,
could not be counted upon to remain passive in the face of growing public obduracy in response to its efforts to do what it thinks essential to safeguard national
security. Here we do have historical precedents, and none is comfortably revisited. The Alien and Sedition Acts in the 1790s;537 the Palmer Raids of 1919 and
1920;538 the round-up of Japanese-American citizens in the 1940s;539 governmental spying on and disruption of civil rights, draft protesters, and anti-war activists
in the 1960s and 1970s;540 and the incommunicado incarceration without charges, counsel, or trial of "unlawful combatants" only a few short years ago541—all are
examples of what can happen when government sees limited options in confronting nerve-center security threats. No one can be certain, but the ultimate danger
posed if the system were to fall to earth in the aftermath of a devastating terrorist attack could be intensely divisive and potentially destabilizing—not unlike what was
envisioned by conservative Republicans in Congress who opposed Truman's national security programs when the managerial network was established.542 It is
therefore appropriate to move beyond explanation and to turn to possibilities for reform—to consider steps that might be taken to prevent the entire structure from
falling to earth.
7
MDAW 2015
Legalism Kritik
L: A2 “Perm”
The kneejerk jump to legalism crowds out critical examination of state power
Robert Knox, PhD Candidate, London School of Economics and Political Science.2012, paper presented at the Fourth Annual Conference of
the Toronto Group for the Study of International, Transnational and Comparative Law and the Towards a Radical International Law workshop,
“Strategy and Tactics,”
this warning is of great relevance to the type of ‘strategic’ interventions advocated by the authors. there are serious perils involved in making any
intervention in liberal-legalist terms for critical scholars. the first is that – as per their own analysis – liberal legalism is not a neutral
ground , but one which is likely to favour certain claims and positions. Consequently, it will be incredibly difficult to win the argument.
Moreover, even if the argument is won, the victory is likely to be a very particular one – inasmuch as it will foreclose any wider consideration
of the structural or systemic causes of any particular ‘violation’ of the law. All of these issues are to some degree considered by the
authors.44 However, given the way in which ‘strategy’ is understood, the effects of these issues are generally confined to the immediate,
conjunctural context. As such, the emphasis was placed upon the way that the language of liberal legalism blocked effective action and criticism
of the war.45 Much less consideration is placed on the way in which advancing such argument impacts upon the long term effectiveness of
achieving the strategic goals outlined above. Here, the problems become even more widespread. Choosing to couch the intervention in liberal
legal terms ultimately reinforces the structure of liberal legalism, rendering it more difficult to transcend these arguments.46 In the
best case scenario that such an intervention is victorious, this victory would precisely seem to underscore the liberal position on international
law. Given that international law is in fact bound up with processes of exploitation and domination on a global scale, such a victory contributes to
the legitimation of this system, making it very difficult to argue against its logic. this process takes place in three ways. Firstly, by
intervening in the debate on its own terms, critical scholars reinforce those very terms, as their political goals are incorporated into it.47 It
can then be argued the law is in fact neutral, because it is able to encompass such a wide variety of viewpoints. Secondly, in discarding their
critical tools in order to make a public intervention, these scholars abandon their structural critique at the very moment when they
should hold to it most strongly. that is to say, that at the point where there is actually a space to publicise their position, they choose instead
to cleave to liberal legalism. thus, even if, in the ‘purely academic’ context, they continue to adhere to a ‘critical’ position, in public political terms,
they advocate liberal legalism . Finally, from a purely ‘personal’ standpoint, in advocating such a position, they undercut their ability to
articulate a critique in the future, precisely because they will be contradicting a position that they have already taken. the second point becomes
increasingly problematic absent a guide for when it is that liberal legalism should be used and when it should not. Although the ‘embrace’ of
liberal legalism is always described as ‘ temporary’ or ‘strategic’ , there is actually very little discussion about the specific conditions in
which it is prudent to adopt the language of liberal legalism. It is simply noted at various points that this will be determined by the ‘context’.48 As
is often the case, the term ‘context’ is invoked49 without specifying precisely which contexts are those that would necessitate intervening in
liberal legal terms. Traditionally, such a context would be provided by a strategic understanding. that is to say, that the specific tactics to be
undertaken in a given conjunctural engagement would be understood by reference to the larger structural aim. But here, there are simply no
considerations of this. It seems likely therefore, that again context is understood in purely tactical terms. Martti Koskenniemi can be
seen as representative in this respect, when he argued: What works as a professional argument depends on the circumstances. I like to think of
the choice lawyers are faced with as being not one of method (in the sense of external, determinate guidelines about legal certainty) but of
language or, perhaps better, of style. the various styles – including the styles of ‘academic theory’ and ‘professional practice’ – are neither
derived from nor stand in determinate hierarchical relationships to each other. the final arbiter of what works is nothing other than the context
(academic or professional) in which one argues.50 On this reading, the ‘context’ in which prudence operates seems to the immediate
circumstances in which an intervention takes place. this would be consistent with the idea, expressed by the authors, that the ‘strategic’ context
for adopting liberal legalism was that the debate was conducted in these terms. But the problem with this understanding is surely evident. As
critical scholars have shown time and time again, the contemporary world is one that is deeply saturated with, and partly constituted by, juridical
relations.51 Accordingly, there are really very few contexts (indeed perhaps none) in which political debate is not conducted in juridical terms. A
brief perusal of world events would bear this out.52 the logical conclusion of this would seem to be that in terms of abstract, immediate
effectiveness, the ‘context’ of public debate will almost always call for an intervention that is couched in liberal legalist terms. This raises a final
vital question about what exactly distinguishes critical scholars from liberal scholars. If the above analysis holds true, then the ‘strategic’
interventions of critical scholars in legal and political debates will almost always take the form of arguing these debates in their own terms, and
simply picking the ‘left’ side. thus, whilst their academic and theoretical writings and interventions may (or may not) retain the basic critical tools,
the public political interventions will basically be ‘liberal’. The question then becomes, in what sense can we really characterise such
interventions (and indeed such scholars) as ‘critical’? The practical consequence of understanding ‘strategy’ in essentially tactical terms seems
to mean always struggling within the coordinates of the existing order . Given the exclusion of strategic concerns as they
have been traditionally understood, there is no practical account for how these coordinates will ever be transcended (or how the debate
will be reconfigured). As such, we have a group of people struggling within liberalism, on liberal terms, who may or may not also have
some ‘critical’ understandings which are never actualised in public interventions. We might ask then, apart from ‘ good intentions’ (although
liberals presumably have these as well) what differentiates these scholars from liberals? Because of course liberals too can sincerely believe in
political causes that are ‘of the left’. It seems therefore, that just as – in practical terms – strategic essentialism collapses into essentialism, so
too does ‘strategic’ liberal legalism collapse into plain old liberal legalism .53
8
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Legalism Kritik
M: Race
Their faith in legalism promotes racism
Cho and Gott 10. Sumi Cho, professor of law at DePaul University, and Gil Gott, professor of international studies at DePaul University,
“The Racial Sovereign,” Sovereignty, Emergency, Legality, ed. Austin Sarat, Cambridge University Press 2010: pg. 190
Sovereignty and other foundational legal principles in the United States developed homologously with the
structures of societal racial formation .24 So, for example, how federalism would be defined, who could be a “ citizen ,” or what is meant by “ military necessity ” or “ national security ” all “grew up” next to the question of what
it meant to be white , what it meant for “America” to be white , and what it meant to lack whiteness in the United
States. Courts developed the lofty but racially contingent foundational legal principles in a way that effectively
solidified the stratifications of racial caste . These foundational legal principles transcended legal rationales or distinc- tions, and
asked the big questions of what it meant to be a nation, what the relationship was between state and federal governments, and how private
property became constructed in the United States. National sovereignty ,25 federalism ,26 s eparation o f p owers,27 and
plenary power 28 are all central legal principles on which the United States was founded. Each term embeds a
racialized history in which race and law were mutually constructed . That these foundational legal principles
originate in racial contingency and become defined and refined in the context of racial conflict reveals the historical processes by which race and law have been mutually constitutive in the United States.29
9
MDAW 2015
Legalism Kritik
M: Turns Case/SPF
Legalism turns the case- causes serial policy failiure
Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan, Intelligence Legalism and the National Security Agency’s Civil
Liberties Gap, 2105, Harvard National Security Journal / Vol. 6,
Intelligence legalism brings lawyers’ rule-of-law commitment into the realm of national security and surveillance,
where secrecy molds its impact in a number of important ways. I see intelligence legalism’s three crucial and
simultaneous features as: imposition of substantive rules given the status of law rather than policy, limited court
enforcement of those rules, and empowerment of lawyers. All three were in evidence in the 2004 drama. Yet it is no
coincidence that that incident did not catalyze a civil liberties advance. In fact, this Article’s core argument is that
intelligence legalism, though useful, gives systematically insufficient weight to individual liberty. Legalism
legitimates liberty-infringing programs. And its relentless focus on rights and compliance and law (with a definition of
law that includes regulation, executive orders, court orders, etc.) has obscured the absence of what should be an additional
focus on interests, or balancing, or policy. That additional focus is necessary, I argue, for optimal policy, which I take to
be the safeguarding of liberty where there is no cost, or acceptable cost, to security.
10
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Legalism Kritik
Alt: Top—2NC
The alternative is to reject legal restrictions on surveillance in favor of political
restrictions—they’re the only check—it’s empirically effective in every application
because the government thinks it’s effective
Eric A. Posner and Adrian Vermeule 11, law profs at the University of Chicago and Harvard, Demystifying Schmitt, January,
http://www.law.uchicago.edu/files/file/333-eap-Schmitt.pdf
Finally, the models of the political foundations of constitutionalism allow a demystifying and less ominous interpretation of Schmitt’s insistence
that the public’s role under constitutionalism is in effect restricted to negative measures – either rejection of proposals in
a referendum or, in extreme cases, resistance to the ruling power.22 In the models we have canvassed, political groups exert
influence on incumbents and competitors for powers not through persuasion or democratic deliberation, but
through credible threats of resistance or armed conflict. In the lurid context of Weimar these ideas call up associations with
torchlight rallies and thuggish street violence – “soccer-stadium democracy” – but this is to overlook that a credible threat of mass
public resistance to exploitative action by incumbents can be necessary for the health of constitutionalism and
democratic institutions. As Schmitt put it, “the ancient problem of ‘resistance against the tyrant’ remains, that is,
resistance against injustice and misuse of state power, and the functionalistic-formalistic hollowing out of the
parliamentary legislative state is not able to resolve it.”23 Here too, Schmitt’s distinction between legality and legitimacy opens up
a way of thinking about constitutionalism that proves more fruitful, because more politically realistic, than liberal insistence that legitimacy can
straightforwardly be reduced to legality.
11
MDAW 2015
Legalism Kritik
Alt: Top—2NC
Democratic restraints solve
Stephanie A. Levin
92, law prof at Hampshire College, Grassroots Voices: Local Action and National Military Policy, 40 Buff. L. Rev. 372
In this sense, what
is important about federalism is not that it locates power "here" or "there" — not that some things are assigned
that it creates a tension about power, so that there are competing
sources of authority rather than one unitary sovereign. Hannah Arendt has written that "perhaps the greatest American innovation in politics as such was
the consistent abolition of sovereignty within the body politic of the republic, the insight that in the realm of human affairs sovereignty and tyranny are
the same."194 Akhil Amar has expressed what is actually the same basic insight in a very different formulation, writing that the American innovation was to
place sovereignty "in the People themselves. "I9S Whether one views unitary sovereignty as abolished or relocated
to the people, the key point is that it is no longer considered to be in any unitary government. Governmental
institutions are divided and kept in tension. At the federal level, this is the familiar doctrine of separation of powers. The same principle animates federalism.
The tension is valued because it creates space for the expression of suppressed viewpoints and helps to prevent
any one orthodoxy from achieving complete hegemony. Amar sums up the contribution that this governmental innovation makes to the liberty of the
irretrievably to the federal government or others to the states — but
people by writing: "As with separation of powers, federalism enabled the American People to conquer government power by dividing it. Each government agency, state and national, would have
incentives to win the principal's affections by monitoring and challenging the other's misdeeds."196 This is a compelling insight, but the way Professor Amar has framed it presents two
naming only the "state" and "national" governments, it ignores the field of local government
action, a field particularly accessible to the direct involvement of the very citizens who constitute Amar's sovereign "People."197 Second, by
making the subject of the verb the "government agency," the sentence makes it sound as if it were the "government agency" which acts , rather
than recognizing that it is people who act though the agencies of government . Since the focus here is on federalism as a means of
difficulties for present purposes. First, by
fostering civic participation, both of these qualifications are crucial. While state government will sometimes be an excellent locus for citizen action, often local government will provide the best
forum for ordinary citizens to find their voices in civic conversation. And because the value of federalism for our purposes is in the enhanced opportunities it provides for citizen participation in
policy development, the
focus must be not on government institutions acting, but on people acting through them. In summary,
what is most important is not where government power is
assigned — to the federal government, the states, or the localities — but the very fact that there are shared and overlapping powers. This
dispersion of power means that the citizen is better protected from the dangers that are inherent in being subject
to any one unitary sovereign.198 A second key attribute is that the value of this federalism lies not in the empowerment of government, but in the empowerment of people.
Its animating purpose is not to add to or detract from the powers of any particular level of government, but to provide the most fruitful
arrangements for enhancing the possibility of genuine citizen control over government. Third, the only meaningful
measure of the success or failure of this type of federalism is the extent to which it contributes to increased opportunities
for citizens to have a voice in government. This must be not at the level of deceptive abstraction — "the People
speak" — but at the very concrete level of actual people with actual voices. The goal is for more people to be able
to speak up in settings more empowering than their living rooms — and certainly state and local governments, while not the only possible settings, provide such an opportunity. In
three key attributes of participatory federalism must be highlighted. The first is that
conclusion, these general principles of participatory federalism must be linked to the specific case of federalism in connection with military policy. The constitutional arrangements concerning
military power which were described in Section II fit with these three attributes of participatory federalism quite well. The first attribute calls for dispersing power by sharing it. As has already
been suggested, the military arrangements in the Constitution were designed to achieve exactly this sort of liberating tension between the national government's military powers and the
decentralized state and locally-controlled institutions by which these powers were to be carried out. The second attribute calls for empowering people rather than governmental institutions.
Here, too, the constitutional arrangements seem to fit. The purpose of the grants of power in the relevant constitutional clauses was not to endow any unit of government with the prerogatives of
military power for its own sake. The reason for creating these powers was not to strengthen government but to protect the citizenry — to "provide for the common defense." Given this, it
seems anomalous for the federal government — or any branch of the American government — to claim a right to control or use
military violence as an inherent attribute of sovereignty.'99 The only justification for this power is in whether it
contributes to the security of the citizens. Finally, the idea that federalism should serve the purpose of enhancing citizen voice can also be linked to decentralized
arrangements for the control of military power. In the eighteenth century, as I have suggested earlier, the mechanism for expressing "voice" was physical: the militiamember showed up at
muster, rifle on shoulder, to participate bodily in a "conversation" about military force.200 Today, it can be hoped that our civic conversation can be more verbal. However, we should translate
the underlying meaning of the eighteenth century mechanism — a meaning of citizen participation and consent — into a modality more appropriate to contemporary life rather than relinquish it
altogether. I would argue that such a translation leads to three central conclusions. The first is theoretical: we
must challenge those mental preconceptions
which favor totally centralized power in the military policy arena. We must stop seeing control over military
power as belonging "naturally" to the federal government and even more narrowly to the executive branch
within it. Instead, we must reconceptualize our understanding of the national arrangements to envision a dynamic
and uncertain balance among different sources of power, not only among the three branches of the federal
government, but between centralized and decentralized institutions of government as well.201 While the role of the federal
government is, of course, crucial, the roles of the states and localities are more than interstitial and should not be allowed to atrophy. Only in this dynamic tension does
the best protection for the citizenry lie.
12
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Legalism Kritik
Alt: FW—2NC
Plan focus is the legalist logic of neutrality—that naturalizes violence
Dossa 99
Shiraz, Department of Political Science, St. Francis Xavier University, Antigonish, Nova Scotia, “Liberal Legalism: Law, Culture and Identity,”
The European Legacy, Vol. 4, No. 3, pp. 73-87,1
Law's imperial reach, it massive authority, in liberal politics is a brute, recurring fact. In Law's Empire, Dworkin attests to its scope and power
with candour: "We live in and by the law. It makes us what we are" (vii). But he fails to appreciate that law equally traduces others, it
systematically unmakes them. For Dworkin, a militant liberal legalist, law is the insiders' domain : legal argument has to be understood
internally from the "judge's point of view"; sociological or historical readings are irrelevant and " perverse ".2 Praising the decencies of
liberal law is necessary in this world: rule of law, judicial integrity, fairness, justice are integral facets of tolerable human life. Lawfulness is and
ought to be part of any decent regime of politics. But law's rhetoric on its own behalf systematically scants law's violent, dark
underside , it skillfully masks law's commerce with destruction and death. None of this is visible from the internalist
standpoint , and Dworkin's liberal apologia serves to mystify the gross reality of law's empire. In liberal political science, law's presumed ,
Olympian impartiality , is thus not a contested notion. Liberals still presuppose as a matter of course the juristic community's impartiality
and neutrality, despite empirical evidence to the contrary.3 One consequence of the assumed sanctity of the judicial torso within the body
politic, has been that law's genealogy, law's chronological disposition towards political and cultural questions, have simply not been of interest or
concern to most liberal scholars. A further result of this attitude is the political science community's nearly total ignorance of liberal law's
complicity in western imperialism, and in shaping western attitudes to the lands and cultures of the conquered natives. Liberal jurisprudence's
subterranean life, its invidious consciousness is, however, not an archaic, intermittent annoyance as sensitive liberals are inclined to think:
indeed law is as potent now as it has been in last two centuries in articulating a dismissive image of the native Other.
13
MDAW 2015
Legalism Kritik
Aff: Alt Fails
No alternative---other ideas bring more inequality and abuse
Jerold S. Auerbach 83, Professor of History at Wellesley, “Justice Without Law?”, 1983, p. 144-146
As cynicism about the legal system increases, so does enthusiasm for alternative dispute-settlement institutions. The
search for alternatives accelerates, as Richard Abel has suggested, "when some fairly powerful interest is threatened by an increase in the number or magnitude of legal rights.*'6 Alternatives
are designed to provide a safety valve, to siphon discontent from courts. With the danger of political confrontation reduced, the ruling power of legal institutions is preserved, and the stability of
alternatives prevent the use of courts for redistributive purposes in the interest of
equality, by consigning the rights of disadvantaged citizens to institutions with minimal power to enforce or
protect them . It is, therefore, necessary to beware of the seductive appeal of alternative institutions . They
may deflect energy from political organization by groups of people with common grievances; or
discourage effective litigation strategies that could provide substantial benefits. They may, in the end, create a two-track justice system
the social system reinforced. Not incidentally,
that dispenses informal "justice" to poor people with "small" claims and "minor" disputes, who cannot afford legal services, and who are denied access to courts. (Bar associations do not
Justice
according to law will be reserved for the affluent , hardly a novel development in American history but one that needs little encouragement from the spread
recommend that corporate law firms divert their clients to mediation, or that business deductions for legal expenses—a gigantic government subsidy for litigation—be eliminated.)
of alternative dispute-settlement institutions.¶ It is social context and political choice that determine whether courts, or alternative institutions, can render justice more or less accessible—and to
whom. Both can be discretionary, arbitrary, domineering—and unjust. Law can symbolize justice, or conceal repression. It can reduce exploitation, or facilitate it. It can prohibit the abuse of
Despite the resiliency and power of law, it seems unable
to eradicate the tension between legality and justice: even in a society of (legal) equals, some still remain more equal than others. But
power, or disguise abuse in procedural forms. It can promote equality, or sustain inequality.
diversion from the legal system is likely to accentuate that inequality . Without legal power the imbalance
between aggrieved individuals and corporations, or government agencies, cannot be redressed . In
American society , as Laura Nader has observed, " disputing without the force of law ... [is| doomed to fail ."7 Instructive
examples document the deleterious effect of coerced informality (even if others demonstrate the creative possibilities of indigenous
experimentation). Freed slaves after the Civil War and factory workers at the turn of the century, like inner-city poor
people now, have all been assigned places in informal proceedings that offer substantially weaker
safeguards than law can provide. Legal institutions may not provide equal justice under law, but in a society ruled by law it is their responsibility.¶ It is
chimerical to believe that mediation or arbitration can now accomplish what law seems powerless to
achieve . The American deification of individual rights requires an accessible legal system for their
protection . Understandably, diminished faith in its capacities will encourage the yearning for alternatives. But the rhetoric of "community" and "justice" should not be permitted to
conceal the deterioration of community life and the unraveling of substantive notions of justice that has accompanied its demise. There is every reason why the values that historically are
associated with informal justice should remain compelling: especially the preference for trust, harmony, and reciprocity within a communal setting. These are not, however, the values that
in their absence there is no effective alternative to legal institutions
American society encourages or sustains;
.¶ The quest for community
may indeed be "timeless and universal."8 In this century, however, the communitarian search for justice without law has deteriorated beyond recognition into a stunted off-shoot of the legal
But injustice without law is
an even worse possibility, which misguided enthusiasm for alternative dispute settlement now seems likely to
encourage. Our legal culture too accurately expresses the individualistic and materialistic values that most Americans deeply cherish to inspire optimism about the imminent restoration
of communitarian purpose. For law to be less conspicuous Americans would have to moderate their expansive freedom
to compete, to acquire, and to possess, while simultaneously elevating shared responsibilities above
individual rights. That is an unlikely prospect unless Americans become, in effect, un-American . Until
system. The historical progression is clear: from community justice without formal legal institutions to the rule of law, all too often without justice.
then, the pursuit of justice without law does incalculable harm to the prospect of equal justice.
14
MDAW 2015
Legalism Kritik
Aff: Cedes the political
The negative’s micropolitical strategy fails to achieve broader change and cedes the
political to reactionary elites—only engagement with legal institutions solves
Lobel 07 (Orly Lobel, Assistant Professor of Law, University of San Diego, THE PARADOX OF EXTRALEGAL ACTIVISM: CRITICAL LEGAL CONSCIOUSNESS AND
TRANSFORMATIVE POLITICS, Harvard Law Review, 2007, Vol. 120)
Both the practical failures and the fallacy of rigid boundaries generated by extralegal activism rhetoric permit us to broaden our inquiry to the underlying assumptions of current proposals
regarding
transformative politics — that is, attempts to produce meaningful changes in the political and socioeconomic landscapes. The suggested alternatives produce a
rejects a
formal programmatic agendas,
new image of social and political action. This vision
shared theory of social reform, rejects
and embraces a multiplicity
of forms and practices. Thus, it is described in such terms as a plan of no plan,211 “a project of pro- jects,”212 “anti-theory theory,”213 politics rather than goals,214 presence rather than
the contemporary message rarely includes a comprehensive vision of
fragmented efforts
power,215 “practice over theory,”216 and chaos and openness over order and formality. As a result,
engages in
common social claims, but rather
the description of
. As Professor Joel Handler argues, the commonality of struggle and social
vision that existed during the civil rights movement has disappeared.217 There is no unifying discourse or set of values, but rather an aversion to any metanarrative and a resignation from
theory. Professor Handler warns that
this move away from grand narratives is self-defeating precisely because only certain parts of
the political spectrum have accepted this new stance : “[T]he opposition is not playing that game . . . . [E]veryone
else is operating as if there were Grand Narratives . . . .”218 Intertwined with the resignation from law and policy, the new bromide of “neither left nor right” has become axiomatic only for
some.219 The contemporary critical legal consciousness informs the scholarship of those who are interested in progressive social activism, but less so that of those who are interested, for
example, in a more competitive securities market. Indeed, an interesting recent development has been the rise of “conservative public interest lawyer[ing].”220 Although “public interest law” was
originally associated exclusively with liberal projects, in the past three decades conservative advocacy groups have rapidly grown both in number and in their vigorous use of traditional legal
growth in conservative advocacy is particularly salient
strategies to promote their causes.221 This
in juxtaposition to the decline of traditional
progressive advocacy. Most recently, some thinkers have even suggested that there may be “something inherent in the left’s conception of social change — focused as it is on participation and
Although
the new extralegal frames present themselves as apt alternatives to legal reform models and as capable of producing significant
changes to the social map, in practice they generate very limited improvement in existing social arrangements. Most strikingly, the cooptation effect
here can be explained in terms of the most profound risk of the typology — that of legitimation. The common pattern of extralegal scholarship is to
describe an inherent instability in dominant structures by pointing, for example, to grassroots strategies,223 and then to assume that specific instances of
counterhegemonic activities translate into a more complete transformation. This celebration of multiple microresistances seems to rely on an aggregate approach — an idea that the multiplication of practices will evolve into something substantial. In fact , the
myth of engagement obscures the actual lack of change being produced , while the broader pattern of equating extralegal activism
empowerment — that produces a unique distrust of legal expertise.”222 Once again, this conclusion reveals flaws parallel to the original disenchantment with legal reform.
with social reform produces a false belief in the potential of change.
There are few instances of meaningful reordering
of social and economic
arrangements and macro-redistribution. Scholars write about decoding what is really happening, as though the scholarly narrative has the power to unpack more than the actual conventional
, the elephant in the room — the rising level of
is left unaddressed and comes to be understood as natural and inevitable.225 This is precisely the problematic
process that critical theorists decry as losers’ self-mystification, through which marginalized groups come to see systemic losses as the
product of their own actions and thereby begin to focus on minor achievements as representing the boundaries of
their willed reality. The explorations of micro-instances of activism are often fundamentally performative, obscuring the distance between the descriptive and the prescriptive. The
manifestations of extralegal activism — the law and organizing model; the proliferation of informal, soft norms and norm-generating actors; and the celebrated, separate
nongovernmental sphere of action — all produce a fantasy that change can be brought about through small-scale,
experience will admit.224 Unrelated efforts become related and part of a whole through mere reframing. At the same time
economic inequality —
decentralized transformation . The emphasis is local, but the locality is described as a microcosm of the whole and the audience is national and global. In the context of
the humanities, Professor Carol Greenhouse poses a comparable challenge to ethnographic studies from the 1990s, which utilized the genres of narrative and community studies, the latter
including works on American cities and neighborhoods in trouble.226 The aspiration of these genres was that each individual story could translate into a “time of the nation” body of knowledge
and motivation.227 In contemporary legal thought, a corresponding gap opens between the local scale and the larger, translocal one. In reality, although there has been a recent proliferation of
associations and grassroots groups, few new local-state national federations have emerged in the United States since the 1960s and 1970s, and many of the existing voluntary federations that
There is, therefore, an absence of links between the local and the national, an
absent intermediate public sphere, which has been termed “the missing middle” by Professor Theda Skocpol.229 New social movements
have for the most part failed in sustaining coalitions or producing significant institutional change through
grassroots activism. Professor Handler concludes that this failure is due in part to the ideas of contingency, pluralism, and localism that are so embedded in current
activism.230 Is the focus on small-scale dynamics simply an evasion of the need to engage in broader
flourished in the mid-twentieth century are in decline.228
substantive debate ? It is important for next-generation progressive legal scholars, while maintaining a critical legal consciousness, to recognize that not all extralegal
associational life is transformative. We must differentiate, for example, between inward-looking groups, which tend to be self- regarding and depoliticized, and social movements that participate
in political activities, engage the public debate, and aim to challenge and reform existing realities.231 We must differentiate between professional associations and more inclusive forms of
institutions that act as trustees for larger segments of the community.232 As described above, extralegal activism tends to operate on a more divided and hence a smaller scale than earlier
there is a need to recognize the limited capacity of
small-scale action. We should question the narrative that imagines consciousness-raising as directly
translating into action and action as directly translating into change. Certainly not every cultural description is political. Indeed, it is questionable whether forms of
social movements, which had national reform agendas. Consequently, within critical discourse
activism that are opposed to programmatic reconstruction of a social agenda should even be understood as social movements. In fact, when groups are situated in opposition to any form of
institutionalized power, they may be simply mirroring what they are fighting against and merely producing moot activism that settles for what seems possible within the narrow space that is left
in a rising convergence of ideologies. The original vision is consequently coopted, and contemporary discontent is legitimated through a process of self-mystification.
15
MDAW 2015
Legalism Kritik
Aff: Legal Restraints Work
Legal restraints work---exception theory is self-serving and wrong
William E. Scheuerman 6, Professor of Political Science at Indiana University, Carl Schmitt and the Road to Abu Ghraib, Constellations,
Volume 13, Issue 1
Yet this argument relies on Schmitt’s controversial model of politics, as outlined eloquently but unconvincingly in his famous Concept of the Political. To
be
sure, there are intense conflicts in which it is naïve to expect an easy resolution by legal or juridical means.
But the argument suffers from a troubling circularity: Schmitt occasionally wants to define “political” conflicts as those
irresolvable by legal or juridical devices in order then to argue against legal or juridical solutions to them.
The claim also suffers from a certain vagueness and lack of conceptual precision. At times, it seems to be directed against trying
to resolve conflicts in the courts or juridical system narrowly understood; at other times it is directed against any legal regulation of intense conflict. The former
legal devices have undoubtedly played a positive role in taming or at
least minimizing the potential dangers of harsh political antagonisms. In the Cold War, for example,
international law contributed to the peaceful resolution of conflicts which otherwise might have exploded
into horrific violence, even if attempts to bring such conflicts before an international court or tribunal
probably would have failed.22¶ Second, Schmitt dwells on the legal inconsistencies that result from modifying the traditional state-centered system of
argument is surely stronger than the latter. After all,
international law by expanding protections to non-state fighters. His view is that irregular combatants logically enjoyed no protections in the state-centered
Westphalian model. By broadening protections to include them, international law helps undermine the traditional state system and its accompanying legal framework.
Why is this troubling? The most obvious answer is that Schmitt believes that the traditional state system is normatively superior to recent attempts to modify it by, for
example, extending international human rights protections to individuals against states. 23 But what if we refuse to endorse his nostalgic preference for the traditional
state system? Then a sympathetic reading of the argument would take the form of suggesting that the project of regulating irregular combatants by ordinary law must
fail for another reason: it rests on a misguided quest to integrate incongruent models of interstate relations and international law. We cannot, in short, maintain core
features of the (state-centered) Westphalian system while extending ambitious new protections to non-state actors.¶ This is a powerful argument, but it remains
flawed. Every
modern legal order rests on diverse and even conflicting normative elements and ideals, in part
because human existence itself is always “in transition .” When one examines the so-called classical liberal legal systems of
nineteenth-century England or the United States, for example, one quickly identifies liberal elements coexisting uneasily alongside paternalistic and authoritarian
(e.g., the law of slavery in the United States), monarchist, as well as republican and communitarian moments. The same may be said of the legal moorings of the
modern welfare state, which arguably rest on a hodgepodge of socialist, liberal, and Christian and even Catholic (for example, in some European maternity policies)
programmatic sources. In
short, it is by no means self-evident that trying to give coherent legal form to a
transitional political and social moment is always doomed to fail. Moreover, there may be sound reasons for
claiming that the contemporary transitional juncture in the rules of war is by no means as incongruent as
Schmitt asserts. In some recent accounts, the general trend towards extending basic protections to nonstate actors is plausibly interpreted in a more positive – and by no means incoherent – light.24¶ Third, Schmitt
identifies a deep tension between the classical quest for codified and stable law and the empirical reality of a social world subject to permanent change: “The
tendency to modify or even dissolve classical [legal] concepts…is general, and in view of the rapid change of the world it is entirely understandable” (12). Schmitt’s
postwar writings include many provocative comments about what contemporary legal scholars describe as the dilemma of legal obsolescence. 25 In The Partisan, he
suggests that the “great transformations and modifications” in the technological apparatus of modern warfare place strains on the aspiration for cogent legal norms
capable of regulating human affairs (17; see also 48–50). Given the ever-changing character of warfare and the fast pace of change in military technology, it
inevitably proves difficult to codify a set of cogent and stable rules of war. The Geneva Convention proviso that legal combatants must bear their weapons openly, for
example, seems poorly attuned to a world where military might ultimately depends on nuclear silos buried deep beneath the surface of the earth, and not the success
of traditional standing armies massed in battle on the open field. “Or what does the requirement mean of an insignia visible from afar in night battle, or in battle with
the long-range weapons of modern technology of war?” (17).¶ As I have tried to show elsewhere, these are powerful considerations deserving of close scrutiny;
Schmitt is probably right to argue that the enigma of legal obsolescence takes on special significance in the context of rapid-fire social change.26 Unfortunately,
he seems uninterested in the slightest possibility that we might successfully adapt the process of
lawmaking to our dynamic social universe. To be sure, he discusses the “motorization of lawmaking” in a fascinating 1950 publication, but
only in order to underscore its pathological core.27 Yet one possible resolution of the dilemma he describes would be to
figure how to reform the process whereby rules of war are adapted to novel changes in military affairs in
order to minimize the danger of anachronistic or out-of-date law. Instead, Schmitt simply employs the
dilemma of legal obsolescence as a battering ram against the rule of law and the quest to develop a legal
apparatus suited to the special problem of irregular combatants.
16
MDAW 2015
Legalism Kritik
Aff: Perm
The permutation is best—legal reforms can utilized to protect vulnerable populations if
we remain conscious of its dangers—the alternative leaves groups stranded
Lobel 7, Assistant Professor of Law
[February, 2007; Orly Lobel is an Assistant Professor of Law, University of San Diego. LL.M. 2000 (waived), Harvard Law School; LL.B. 1998, Tel-Aviv University, “THE PARADOX OF
EXTRALEGAL ACTIVISM: CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS”, 120 Harv. L. Rev. 937]
B. Conceptual Boundaries: When the Dichotomies of Exit Are Unchecked At first glance,
space using alternative modes of social activism
may seem attractive
the idea of opting out of the legal sphere and moving to an extralegal
to new social movements. We are used to thinking in binary categories, constantly carving out different
aspects of life as belonging to different spatial and temporal spheres. Moreover, we are attracted to declarations about newness - new paradigms, new spheres of action, and new strategies
that are seemingly untainted by prior failures. n186 However, the critical insights about law's reach must not be abandoned in the process of critical analysis. Just as advocates of a laissez-faire
market are incorrect in imagining a purely private space free of regulation, and just as the "state" is not a single organism but a multiplicity of legislative, administrative, and judicial organs,
The focus on action in a separate sphere broadly defined as civil society can be selfdefeating precisely because it conceals the many ways in which law continues to play a crucial role in all
"nonstate arenas" are dispersed, multiple, and constructed.
spheres of life. Today, the lines between private and public functions are increasingly blurred, forming what Professor Gunther Teubner terms "polycorporatist regimes," a symbiosis between
private and public sectors. n187 Similarly, new economic partnerships and structures blur the lines between for-profit and nonprofit entities. n188 Yet much of the current literature on the limits
of legal reform and the crisis of government action is built upon a privatization/regulation binary, particularly with regard [*979] to social commitments, paying little attention to how the
background conditions of a privatized market can sustain or curtail new conceptions of the public good. n189 In the same way, legal scholars often emphasize sharp shifts between regulation
and deregulation, overlooking the continuing presence of legal norms that shape and inform these shifts. n190 These false dichotomies should resonate well with classic cooptation analysis,
which shows how social reformers overestimate the possibilities of one channel for reform while crowding out other paths and more complex alternatives. Indeed, in the contemporary extralegal
climate, and contrary to the conservative portrayal of federal social policies as harmful to the nonprofit sector, voluntary associations have flourished in mutually beneficial relationships with
federal regulations. n191 A dichotomized notion of a shift between spheres - between law and informalization, and between regulatory and nonregulatory schemes - therefore neglects the
The challenge for social reform groups and
for policymakers today is to identify the diverse ways in which some legal regulations and formal structures
contribute to socially responsible practices while others produce new forms of exclusion and inequality.
ongoing possibilities within the legal system to develop and sustain desired outcomes and to eliminate others.
Community empowerment requires ongoing government commitment. n192 In fact, the most successful community-based projects have been those which were not only supported by public
funds, but in which public administration also continued to play some coordination role. n193 At both the global and local levels, with the growing enthusiasm around the proliferation of new norm-generating actors, many envision a
nonprofit, nongovernmental organization-led democratization of new informal processes. n194 Yet this Article has begun to explore the problems with some of the assumptions underlying the potential of these new actors. Recalling
the unbundled taxonomy of the cooptation critique, it becomes easier to identify the ways extralegal activism is prone to problems of fragmentation, institutional limitation, and professionalization. [*980] Private associations, even
when structured as nonprofit entities, are frequently undemocratic institutions whose legitimacy is often questionable. n195 There are problematic structural differences among NGOs, for example between Northern and Southern
NGOs in international fora, stemming from asymmetrical resources and funding, n196 and between large foundations and struggling organizations at the national level. Moreover, direct regulation of private associations is becoming
particularly important as the roles of nonprofits increase in the new political economy. Scholars have pointed to the fact that nonprofit organizations operate in many of the same areas as for-profit corporations and government
bureaucracies. n197 This phenomenon raises a wide variety of difficulties, which range from ordinary financial corruption to the misrepresentation of certain partnerships as "nonprofit" or "private." n198 Incidents of corruption within
nongovernmental organizations, as well as reports that these organizations serve merely as covers for either for-profit or governmental institutions, have increasingly come to the attention of the government and the public. n199
Recently, for example, the IRS revoked the tax-exempt nonprofit status of countless "credit counseling services" because these firms were in fact motivated primarily by profit and not by the not-for-profit cause of helping consumers
get out of debt. n200 Courts have long recognized that the mere fact that an entity is a nonprofit does not preclude it from being concerned about raising cash revenues and maximizing profits or affecting competition in the market.
n201 In the [*981] application of antitrust laws, for example, almost every court has rejected the "pure motives" argument when it has been put forth in defense of nonprofits. n202 Moreover, akin to other sectors and arenas,
nongovernmental organizations - even when they do not operate within the formal legal system - frequently report both the need to fit their arguments into the contemporary dominant rhetoric and strong pressures to subjugate
themselves in the service of other negotiating interests. This is often the case when they appear before international fora, such as the World Bank and the World Trade Organization, and each of the parties in a given debate
attempts to look as though it has formed a well-rounded team by enlisting the support of local voluntary associations. n203 One NGO member observes that "when so many different actors are drawn into the process, there is a
danger that our demands may be blunted ... . Consequently, we may end up with a "lowest common denominator' which is no better than the kind of compromises the officials and diplomats engage in." n204 Finally, local NGOs that
begin to receive funding for their projects from private investors report the limitations of binding themselves to other interests. Funding is rarely unaccompanied by requirements as to the nature and types of uses to which it is put.
n205 These concessions to those who have the authority and resources to recognize some social demands but not others are indicative of the sorts of institutional and structural limitations that have been part of the traditional
critique of cooptation. In this situation, local NGOs become dependent on players with greater repeat access and are induced to compromise their initial vision in return for limited victories. The concerns about the nature of both civil
. When we understand
we can explore new ways in which legality relates
society and nongovernmental actors illuminate the need to reject the notion of avoiding the legal system and opting into a nonregulated sphere of alternative social activism
these different realities and processes as also being formed and sustained by law,
to social reform . Some of these ways include efforts to design mechanisms of accountability that address the concerns of the new political economy. Such efforts include [*982]
treating private entities as state actors by revising the tests of joint participation and public function that are employed in the state action doctrine; extending public requirements such as
nondiscrimination, due process, and transparency to private actors; and developing procedural rules for such activities as standard-setting and certification by private groups. n206 They may
also include using the nondelegation doctrine to prevent certain processes of privatization and rethinking the tax exemption criteria for nonprofits. n207 All of these avenues understand the law
as performing significant roles in the quest for reform and accountability while recognizing that new realities require creative rethinking of existing courses of action. Rather than opting out of the
it is possible to accept the need to diversify modes of activism and legal categories while using
legal reform in ways that are responsive to new realities. Focusing on function and architecture, rather than on labels
or distinct sectors, requires legal scholars to consider the desirability of new legal models of governmental and nongovernmental
legal arena,
partnerships and of the direct regulation of nonstate actors. In recent years, scholars and policymakers have produced a body of literature, rooted primarily in administrative law, describing
ways in which the government can harness the potential of private individuals to contribute to the project of governance. n208 These new insights develop the idea that administrative agencies
must be cognizant of, and actively involve, the private actors that they are charged with regulating. These studies, in fields ranging from occupational risk prevention to environmental policy to
financial regulation, draw on the idea that groups and individuals will [*983] better comply with state norms once they internalize them. n209 For example, in the context of occupational safety,
there is a growing body of evidence that focusing on the implementation of a culture of safety, rather than on the promulgation of rules, can enhance compliance and induce effective selfmonitoring by private firms. n210 Consequently, social activists interested in improving the conditions of safety and health for workers should advocate for the involvement of employees in
cooperative compliance regimes that involve both top-down agency regulation and firm-and industry-wide risk-management techniques. Importantly, in all of these new models of governance,
the government agency and the courts must preserve their authority to discipline those who lack the willingness or the capacity to participate actively and dynamically in collaborative
governance. Thus, unlike the contemporary message regarding extralegal activism that privileges private actors and nonlegal techniques to promote social goals,
governance scholarship is engaged in developing a broad menu of legal reform strategies
and nongovernmental actors in a variety of ways
welfare and equity.
while maintaining the necessary role of the state
A responsive legal architecture has the potential to
the new
that involve private industry
to aid weaker groups in order to promote overall
generate new forms of accountability and social responsibility and to
link
hard law with "softer" practices and normativities . Reformers can potentially use law to increase the power and
access of vulnerable individuals and groups and to develop tools to increase fair practices and knowledge building within the new market.
17
MDAW 2015
Legalism Kritik
Aff: A2 “Law Racist”
Legal change has resulted in racial advancement and more is still possible
Randall Kennedy
12, Harvard Law Professor, Race, Crime, and the Law, Knopf Doubleday Publishing Group, pp. 388-389
True, it
is sometimes genuinely difficult to determine an appropriate remedial response. The proper way to
address that difficulty, however, is to acknowledge and grapple with it, not bury it beneath unbelievable assertions that, in
fact, no real problem exists. Whitewashing racial wrongs (especially while simultaneously proclaiming that courts are doing everything
reasonably possible to combat racially invidious government action) corrupts officials and jades onlookers, nourishing simplistic, despairing,
and defeatist critiques of the law that are profoundly destructive . The second impression that I want to leave with readers should
serve as an antidote to these overwrought, defeatist critiques by acknowledging that the administration of criminal law has changed
substantially for the better over the past half century and that there is reason to believe that, properly guided, it
can be improved even more . Today there are more formal and informal protections against racial bias than ever
before , both in terms of the protections accorded to blacks against criminality and the treatment accorded to
black suspects, defendants, and convicts. That deficiencies, large deficiencies, remain is clear. But comparing racial
policies today to those that prevailed in 1940 or 1960 or even 1980 should expose the fallacy of asserting that
nothing substantial has been changed for the better . This point is worth stressing because of the prevalence and
prominence of pessimistic thinking about the race question in American life. Some commentators maintain, in all
seriousness, that there has been no significant improvement in the overall fortunes of black Americans during the past half
century, that advances that appear to have been made are merely cosmetic, and that the U nited States is doomed to
remain a pigmentocracy. This pessimistic strain often turns paranoid and apocalyptic in commentary about the
administration of criminal law . It is profoundly misleading , however, to focus exclusively on the ugliest aspects of
the American legal order . Doing so conceals real achievements: the Reconstruction Constitutional
Amendments, the Reconstruction civil rights laws, Strauder v. Alabama, Dempsey v. Moore, Brown v. Mississippi, Powell
v. Alabama, Norris v. Alabama, Batson v. Kentucky, the resuscitation of Reconstruction by the civil rights movement, the
changing demographics of the bench, bar, and police departments—in sum, the stigmatization (albeit incomplete) of
invidious racial bias. Neglecting these achievements robs them of support . Recent sharp attacks upon basic
guarantees bequeathed by the New Deal ought to put everyone on notice of the perils of permitting social
accomplishments to lose their rightful stature in the public's estimation. Moreover, one-dimensional condemnations of
the racial situation in America renders attractive certain subversive proposals that are, given actual conditions ,
foolish, counterproductive , and immoral. I think here in particular of the call for racially selective jury nullification. Such proposals
should be openly challenged on the grounds that they fundamentally misperceive the racial realities of American
life.
18
MDAW 2015
Legalism Kritik
Aff: A2 “Causes Wars”
Legal norms don’t cause wars and the alt can’t effect liberalism
David Luban 10, law prof at Georgetown, Beyond Traditional Concepts of Lawfare: Carl Schmitt and the Critique of Lawfare, 43 Case W.
Res. J. Int'l L. 457
the positive, constructive side of politics, the very foundation of Aristotle's conception of politics, which
Schmitt completely ignores. Politics, we often say, is the art of the possible. It is the medium for organizing all human
cooperation. Peaceable civilization, civil institutions, and elemental tasks such as collecting the garbage
and delivering food to hungry mouths all depend on politics . Of course, peering into the sausage factory of even such mundane
Among these associations is
municipal institutions as the town mayor's office will reveal plenty of nasty politicking, jockeying for position and patronage, and downright corruption. Schmitt sneers
at these as "banal forms of politics, . . . all sorts of tactics and practices, competitions and intrigues" and dismisses them contemptuously as "parasite- and
caricature-like formations." n55 The
fact is that Schmitt has nothing whatever to say about the constructive side of
politics, and his entire theory focuses on enemies, not friends. In my small community, political meetings
debate issues as trivial as whether to close a street and divert the traffic to another street. It is hard to see
mortal combat as even a remote possibility in such disputes, and so, in Schmitt's view, they would not count as politics, but merely
administration. Yet issues like these are the stuff of peaceable human politics . Schmitt, I have said, uses the word "political"
polemically--in his sense, politically. I have suggested that his very choice of the word "political" to describe mortal enmity is tendentious, attaching to mortal enmity
Aristotelian and republican associations quite foreign to it. But the more basic point is that Schmitt's critique of humanitarianism as political and polemical is itself
political and polemical. In a word, the critique of lawfare is itself lawfare. It is self-undermining because to the extent that it succeeds in showing that
lawfare is illegitimate, it de-legitimizes itself. What about the merits of Schmitt's critique of humanitarianism? His argument is straightforward: either humanitarianism
is toothless and [*471] apolitical, in which case ruthless political actors will destroy the humanitarians; or else humanitarianism is a fighting faith, in which case it has
succumbed to the political but made matters worse, because wars on behalf of humanity are the most inhuman wars of all. Liberal humanitarianism is either too
weak or too savage. The argument has obvious merit. When Schmitt wrote in 1932 that wars against "outlaws of humanity" would be the most horrible of all, it is hard
not to salute him as a prophet of Hiroshima. The same is true when Schmitt writes about the League of Nations' resolution to use "economic sanctions and
severance of the food supply," n56 which he calls "imperialism based on pure economic power." n57 Schmitt is no warmonger--he calls the killing of human beings
for any reason other than warding off an existential threat "sinister and crazy" n58 --nor is he indifferent to human suffering. But international
humanitarian law and criminal law are not the same thing as wars to end all war or humanitarian military
interventions, so Schmitt's important moral warning against ultimate military self-righteousness does not
really apply . n59 Nor does "bracketing" war by humanitarian constraints on war-fighting presuppose a
vanished order of European public law. The fact is that in nine years of conventional war, the United States has significantly bracketed warfighting, even against enemies who do not recognize duties of reciprocity. n60 This may frustrate current lawfare critics who complain that American soldiers in
Bracketing warfare is a decision--Schmitt might call it an existential decision--that rests
in part on values that transcend the friend-enemy distinction. Liberal values are not alien extrusions into
Afghanistan are being forced to put down their guns.
politics or evasions of politics; they are part of politics, and, as Stephen Holmes argued against Schmitt,
liberalism has proven remarkably strong, not weak . n61 We could choose to abandon liberal
humanitarianism, and that would be a political decision. It would simply be a bad one.
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