NUDI Starter Packet – PCLOB CP
Notes
The counterplan written here is about an independent commission board called the
Privacy and Civil Liberties Oversight Board. Here is an excerpt from an article which
explains what the agency does and is:
Mishkin, J.D. New York University, 2013 Benjamin, NOTE: FILLING THE OVERSIGHT GAP: THE CASE FOR LOCAL
INTELLIGENCE OVERSIGHT 88 N.Y.U.L. Rev. 1414
2. The Privacy and Civil Liberties Oversight Board (PCLOB) The PCLOB, on the other hand, is a
truly independent overseer . Congress created the PCLOB in 2004 to "ensure that concerns
with respect to privacy and civil liberties are appropriately considered in the implementation
of laws, regulations, and executive branch policies related to efforts to protect the Nation
against terrorism." 128 Nearly three years later, in the face of concerns about the independence
and [*1437] effectiveness of the PCLOB, Congress made modifications to the Board's authority
and its position within the executive branch. 129 As presently structured, the PCLOB enjoys
independent agency status and, in accordance with its enabling statute, "shall be composed of
a full-time chairman and 4 additional members, who shall ... be selected solely on the basis of
their professional qualifications, achievements, public stature, expertise in civil liberties and
privacy, and relevant experience." 130 The President appoints and the Senate confirms the
PCLOB's members. 131 Broadly speaking, the PCLOB is tasked with providing advice and
counsel on policy development and implementation, continually reviewing terrorism-related
policies and practices, building relationships with privacy and civil liberties officers, and
testifying before Congress "upon request ." 132 The Board must also submit periodic reports
at least twice a year to the relevant congressional committees and the President regarding
its activities, findings, conclusions, and recommendations . 133 And, to the greatest extent
possible, the PCLOB should make its reports available to the public. 134 To accomplish its
mission, the PCLOB is authorized to have access "from any department, agency, or element of
the executive branch ... to all relevant records, reports, audits, reviews, documents, papers,
recommendations, or other relevant material, including classified information consistent with
applicable law." 135 The Board's power to subpoena persons to produce these materials
bolsters its access. 136 The Attorney General may modify or deny a PCLOB subpoena request,
but, in doing so, she must notify the House and Senate Judiciary Committees. 137 This statutory
framework equips the PCLOB with the potential to achieve key intelligence oversight goals. And,
in theory, the [*1438] PCLOB's narrow mission, independence, and duty to report all promote
robust, proactive intelligence oversight with regard to privacy and civil liberties issues. Unlike
members of the congressional intelligence committees who juggle many responsibilities,
members of the PCLOB have a singular oversight task. Moreover, because of the confirmation
process, PCLOB members are more likely to possess and develop the requisite level of
expertise. They are less susceptible to political pressures and electoral concerns, as they are
appointed for six-year terms, and they must regularly provide updates regarding their
activities and findings . In other words, the PCLOB appears to not be prone to some of the
challenges that hinder congressional oversight of the federal intelligence community. These
factors, along with the fact that members of the PCLOB are compensated for their work, 138
also make the PCLOB better positioned than the PIAB to effectively oversee the federal
intelligence community.
1NC Off Case Shell
Text: The United States federal government should propose <the plan> to the Privacy
and Civil Liberties Oversight Board for review. The board should solicit input from all
relevant stakeholders. The board should recommend that the United States federal
government <do plan>.
The board works, doesn’t link to politics, and builds momentum for effective
curtailment of NSA activities.
Setty, Professor of Law and Associate Dean for Faculty Development & Intellectual
Life, Western New England University School of Law, 2015 Sudha, SYMPOSIUM: Surveillance, Secrecy,
and the Search for Meaningful Accountability, 51 Stan. J Int'l L. 69
One promising move with regard to oversight and transparency has been the establishment and
staffing of the
Privacy and Civil Liberties Oversight Board
aspects of the government's
(PCLOB). 186 This board, tasked
with assessing many
national security apparatus both for efficacy and for potentially
unnecessary incursions into civil liberties, has a broad mandate and , compared with many national security
decision makers,
significant independence from the executive branch . 187 Retrospectively, the PCLOB has,
among other things, issued
the highly critical report of the NSA Metadata Program in January 2014 that led
to further public pressure on the Obama administration to curtail this program; it is
promising that the PCLOB's prospective agenda includes further analysis of various
surveillance programs. 188 However, the PCLOB's potential influence in protecting civil rights may be limited by its position: The
PCLOB is an advisory body that analyzes existing and proposed programs and possibly recommends changes, but it
cannot mandate that those changes be implemented. The
ability to have a high level of access to information
surrounding counterterrorism surveillance programs and to recommend changes
is important
in such programs
and should be lauded, but over-reliance on the PCLOB's non-binding advice to the intelligence community to somehow solve the
accountability and transparency gap with regard to these programs would be a mistake. For example, on prospective matters, it is likely that
intelligence agencies would consult the PCLOB only if the agency itself considers the issue being faced new or novel, as the NSA metadata program was
labeled prior to its inception. In such cases,
decision makers within an agency generally ask whether the
contemplated program is useful or necessary, technologically feasible, and legal . If all three
questions are answered affirmatively, the program can be implemented.
Now that the PCLOB is fully
operational, it seems likely that if a contemplated program is considered new or novel, an intelligence agency would consult the PCLOB at some stage
of this process for its guidance on implementing the program.
This nonpartisan external input may improve self-
policing within the [*102] intelligence community and help intelligence agencies avoid
implementing controversial programs or, even if implemented, set better parameters around
new programs. 189
If the PCLOB is able to exert some degree of soft power in influencing national security decision-making, then the
judiciary represents hard power that could be used to force the protection of civil liberties where it might not otherwise occur. The FISC should be
reformed to include a public advocate lobbying on behalf of privacy concerns, making the process genuinely adversarial and strengthening the FISC
against charges that it merely rubber stamps applications from the intelligence community. 190 Article III courts need to follow the lead of Judge Leon
in Klayman in conceptualizing privacy as broad and defensible, even in a world where electronics-based communication is dominant and relatively easy
for the government to collect. If the judicial defense of privacy were combined with the possibility of liability for violations of that privacy, it is likely
that this would incentivize increased self-policing among the members of the intelligence community. The creation of
an active PCLOB and a
more adversarial process before the FISC will not provide a perfect solution to the dilemmas posed by the government's legitimate need for secrecy
and the protection of the public against potential abuse. Yet
because these changes are institutional and structural,
they are well-placed to improve the dynamic between the intelligence community, oversight
mechanisms, and the public.
Solvency
Overview – 2NC
This isn’t your run of the mill commissions’ cp but rather a nuanced and highly specific
version which the 2AC hasn’t responded effectively to. The counterplan has the fed
request the Privacy and Liberties Oversight Board, which is an independent bipartisan
group to review the plan and to recommend it to congress. The counterplan does NOT
fiat that congress will implement the plan but rather due the board’s recommendation
will build enough momentum in congress to create effective institutionalized reform.
– That’s Setty.
Have a high threshold for a solvency deficit – any reason why congressional action
won’t be enough applies to the aff too.
Evaluate solvency via a lens of sufficiency. Even if the counterplan isn’t as optimal as
the aff it’s sufficient to solve their advantages.
Say Yes – 2NC – Big Stick Aff
The counterplan causes the plan to be adopted by congress – recent momentum
proves – PCLOB reports garner massive public attention which allows for effective
lobbying by the board and parties to get the plan done – That’s Setty. Prefer our
evidence it’s the most recent which is the golden standard in determining how this
congress will respond to our counterplan.
Recommendations will pass:
a) The board will specifically be effective at causing the NSA to curtail surveillance –
unique knowledge over policies, capital, and recent leaks are a game changer for
increasing their influence over congress.
Levy, 2013 Pema, International Business Times Correspondent, “NSA Spying Controversy: The New Agency That Could Change
Government Surveillance” http://www.ibtimes.com/nsa-spying-controversy-new-agency-could-change-government-surveillance1342409
You’ve probably never heard of it, but there
is a new agency in Washington that is working to make sure the
government’s anti-terrorism efforts do not ride roughshod over Americans’ civil liberties.
These days, when
a sharply divided Congress struggles to get nearly anything accomplished, there
is little evidence that such an agency, armed only with the mandate to offer advice, can
influence lawmakers. But the Privacy and Civil Liberties Oversight Board may have a better
chance at reforming the national security apparatus than many assume . In fact, the board is in a
unique position to shape the legislative debate over the government’s spying abilities -- and
has powerful allies to make sure Congress takes up its recommendations.
Referred to as the
PCLOB (sounds like 'pee-klawb'), the new agency has the job of advising the president, federal agencies and
Congress on how to balance the government’s national security efforts with civil liberties
concerns. Board members have top-secret clearances, and agency heads are expected to turn
over any documents the board requests . If the board needs information from the private
sector, the attorney general can issue a subpoena on its behalf.
Created in 2004 at the recommendation of the
9/11 Commission, the PCLOB did not get off to an auspicious start. It was originally located within the Executive Office of the President, and its first
report to Congress was edited by the Bush White House, prompting one Democratic member to resign. In response, in
2007 the new
Democratic Congress made the board an independent agency within the executive branch. ThenPresident George W. Bush clashed with Senate Democrats over board nominees, and ultimately none were confirmed. President Barack Obama
dragged his feet in choosing nominees and when they finally did come, Republicans refused to approve them. Four part-time members were finally
approved in the last nine months. The
board’s chairman, David Medine, was not formally installed on until May 29, 2013.
One week later, the Guardian newspaper published its first scoop, based on leaked National Security Agency
documents, showing the government collected and stored metadata on the phone calls of millions of Americans. Over the next few days, the
documents leaked by Edward Snowden revealed that the government went further, collecting and storing metadata
on the phone calls of virtually all Americans. The government was also scooping up an untold amount of Americans’ electronic communications as part
of its foreign surveillance operations. These
revelations thrust the board into the middle of the most
important debate over privacy and civil liberties in years.
Sen. Tom Udall, D-N.M., sent
a letter to
the board asking it to “ make it an urgent priority to investigate the programs” and provide
an unclassified report on their legality and whether they take the “necessary precautions to protect the privacy and civil liberties
of American citizens under the Constitution.” Twelve additional senators, including two Republicans, signed Udall’s letter. On June 21,
the board met with Obama . All this before its office space was even ready or emails set up. The full board’s first
public appearance came Tuesday at a workshop in Washington, D.C., where the five members -- three Democrats
and two Republicans -- queried three separate panels of experts on how the surveillance programs might be brought more in line with civil liberties
concerns. Civil
liberties advocates appear cautiously optimistic about the new board, whose opinion
could help determine whether Congress decides to take on the massive surveillance
programs . Advocates are also aware of the board’s ability to actually move their cause backward and entrench these programs. “If it blesses
these programs, they are likely to continue,” privacy rights advocate Greg Nojeim, who participated in one of Tuesday’s panels, said in an interview
Wednesday. Whether the board deems the phone metadata collection is unlawful or not will be “one of the most significant tests of PCLOB,” said
Nojeim, a lawyer at the Center for Democracy and Technology. But whatever its recommendations ultimately are, the
PCLOB is armed by
circumstance with the power to shape the laws governing the surveillance state , particularly Section
215 of the USA Patriot Act, also known as the “business records” provision, under which the government claims the authority to collect Americans’ call
data. During Tuesday’s workshop, panelist Michael Davidson, former legal counsel to the Senate Intelligence Committee, hinted at the board’s potential
for influence. “Can I suggest a focus for the board, and that is the Congress will turn to the many important questions that have been discussed through
the day when it has to,” Davidson said. “And it will have to when, initially, when the sunset for business records [provision] is reached in the middle of
2015.” In other words, the government’s authority to carry out the phone metadata collection will expire on June 1, 2015, absent congressional action
– a situation the board can use to shape the debate and even push its recommendations. On June 1, 2017, the portion of the Foreign Intelligence
Surveillance Act under which the NSA conducts electronic foreign intelligence sweeps that also snag domestic communications will expire without
reauthorization, as well. Privacy
advocates don’t want the board or Congress to wait years to address
the surveillance programs they believe are illegal. But at the end of the day, the sunset dates guarantee that a debate
over these programs will take place -- and when it does,
the PCLOB can have its reports and recommendations
ready to shape that conversation . Moreover, because the issues in are so complex from a legal,
practical and technological point of view, lawmakers who want to put forward serious
reforms may not have the ability to craft adequate proposals before the sunset deadline. The
board can help in that practical function to make sure that lawmakers have reforms ready to
be implemented when the debate begins. Nojeim also sees this as an “advantage” unique to
the PCLOB . “The board has a guaranteed congressional audience that other boards don’t
have because it’s making recommendations
leverage the PCLOB has in 2015 and 2017, the
on statutes that will expire unless acted on,” he said Wednesday. Despite the
civil liberties community believes it has a popular mandate to
move reforms -- at least more basic changes like releasing more classified materials -- while the public is engaged on the
issue . The NSA leaks are “ a game-changer ,” said Michelle Richardson, a legislative counsel at the American Civil Liberties
Union, noting that members of Congress on both sides of the aisle have indicated that the NSA’s programs need to be reined in. “This certainly seems
like our best opportunity yet.” Whether or not Congress takes up a range of proposals put forward in the last month to reform the intelligence system,
the board has allies in Congress who will have the power to make sure its recommendations
are debated , even if it takes until 2015 for that to happen. “There are senators and representatives, including
[Vermont Democratic Sen. Patrick] Leahy, who chairs the Senate Judiciary Committee, who
struggled and pushed and cajoled
until the PCLOB members were nominated and approved ,” Nojeim said Wednesday. “ They are not
going to ignore the recommendations of the board they fought for.”
b) The counterplan uniquely positions the PCLOB to be effective in drafting national
policy issues.
Dalal, J.D. Yale Law, 2014 Anjali, ARTICLE: SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE, 2014 Mich. St. L. Rev. 59
Despite these congressional efforts to force internal interagency oversight on intelligence issues, from 2007 until 2012, no members were ever
appointed to the PCLOB. 284 In mid-2013, after significant pressure from both within and outside the Administration, the full board was nominated and
confirmed. 285 Time will ultimately tell how effective the
PCLOB will be as a source of productive tension within
the national security arena . Working against it is the fact that "[f]our of the board members technically must be part time under the
law; only [David] Medine, the fifth, can work on a full-time basis as chairman. The oversight body also lacks much of a workforce: At the moment it's
mostly staff members on loan from other agencies." 286 Assuming
PCLOB is capable of taking on such a huge
responsibility, [*123] its success will be contingent on its members being included in national
security related decision making and its ability to effectively wield power and influence on
these issues.
c) Consensus building
Glassman and Straus 13—*analyst at the Congressional Research Service AND **analyst at the Congressional Research
Service *Matthew Eric AND **Jacob R., “Congressional Commissions: Overview, Structure, and Legislative Considerations,”
Congressional Research Service, 1/22, http://fas.org/sgp/crs/misc/R40076.pdf
Legislators seeking policy changes may be confronted by an array of political interests, some
in favor of proposed changes and some against. When these interests clash, the resulting legislation
may encounter gridlock in the highly structured political institution of the modern
Congress. 28 By creating a commission, Congress can place policy debates in a potentially
more flexible environment, where congressional and public attention can be developed over
time .29
This is empirically proven on the third rail of politics which beats every aff warrant
Fiscal Times 10 [Edmund Andrews, February 18, 2010, “Deficit Panel Faces Obstacles in
Poisonous Political Atmosphere” http://www.thefiscaltimes.com/Issues/BudgetImpact/2010/02/18/Fiscal-Commission-Faces-Big-Obstacles.aspx]
Supporters of a bipartisan deficit commission note that at least two
previous presidential commissions succeeded at
breaking through intractable political problems when Congress was paralyzed. The 1983
Greenspan commission, headed by Alan Greenspan, who later became chairman of the Federal Reserve, reached an historic
agreement to gradually raise Social Security taxes and gradually increase the minimum age at which workers
qualify for Social Security retirement benefits. Those recommendations passed both the House and Senate, and
averted a potentially catastrophic financial crisis with Social Security.
d) Political cover: Since the commission’s recommendation is final, no one in Congress
has to take the blame
The Telegraph 10 “Deficit-cutting panel a missed opportunity,” The Telegraph, 2/14,
http://www.nashuatelegraph.com/opinion/editorials/612140-263/deficit-cutting-panel-a-missed-opportunity.html
At one time, closing
a military base in this country seemed as unlikely as meaningful efforts
toward deficit reduction. Any proposal by the Pentagon for base closure was met by
congressional resistance, until the creation of the Base Realignment and Closure Commission
gave Congress political cover . The commission and its staff conducted extensive research, held public hearings and
managed to get three rounds of base closures through Congress. Hundreds
of out-of-date military installations of
all sorts were closed, many of which had long since lost their strategic value and were little more than local jobs programs.
The base closure process was a great success, largely because Congress did not have the
power to nitpick its recommendations.
The entire list had to be accepted or rejected. This
model may now
be the only practical way for our government to tackle any issue with negative political
fallout.
Say Yes – 2NC – Sarbanes-Oxley
The counterplan causes the plan to be adopted by congress – recent momentum
proves – PCLOB reports garner massive public attention which allows for effective
lobbying by the board and parties to get the plan done – That’s Setty. Prefer our
evidence it’s the most recent which is the golden standard in determining how this
congress will respond to our counterplan.
Recommendations will pass:
a) The commission will be able to do necessary reviews to get congress to promptly
repeal.
Addington, 2011 David, Group Vice President at the Heritage Foundation, “Congress Should Repeal or Fix Section 404 of the
Sarbanes–Oxley Act to Help Create Jobs” http://www.heritage.org/research/reports/2011/09/congress-should-repeal-or-fix-section404-of-the-sarbanes-oxley-act-to-help-create-jobs
Congress waited patiently from 2007 to 2010 for the SEC and the Public Company Accounting Oversight Board (PCAOB), whose rules the SEC
approves, to change rules in a way that would solve the problem of unwarranted costs imposed on the private sector by the rules
implementing section 404 of the Sarbanes–Oxley Act.[7] While the SEC tinkered with the rules, it did not solve the problem to the
satisfaction of Congress.[8] Congress took action in 2010 to address part of the problem, granting by statute to
companies whose stock is publicly traded and whose aggregate worldwide value is $75 million or more an exemption from the requirement in section
404(b) for the company to have the registered public accounting firm that does the company’s audit attest to, and report on, management’s
assessment of the company’s internal control structure and procedures.[9] While
exempting the smaller companies from section 404(b),
Congress took a laudable first step
in
Congress should complete promptly the job of reviewing
the full impact of section 404, including on medium-sized and large-sized companies, and
repealing section 404
or fixing it to eliminate unwarranted costs. Companies could use freed funds, no longer absorbed by section 404
implementation, to invest in their lines of business, creating much-needed jobs. Congress Should Re-examine Whether Section 404 Is Needed and, If So,
How to Cut Its Costly Burden on Businesses Congress
should reconsider carefully the requirements in section
404 for company management to assess the effectiveness of its internal control structure and procedures and then for the
company’s registered public accounting firm to attest to that management assessment. Given
the traditional role of each state in regulating the corporate governance of corporations
incorporated in that state,[10] Congress should first examine anew whether federal law should
address those subjects , or whether they should be left to state law. In a society based on limited government and free enterprise, and
in light of the traditional role of the states in our federal system,
Congress should start its examination with a
presumption in favor of repealing section 404 and leaving the subjects addressed by section
404 to the states .
b) Empirically proven boards can be effective at altering Sarbanes-Oxley
Norris, 2009 Floyd, NYTimes “Goodbye to Reforms of 2002”
http://www.nytimes.com/2009/11/06/business/06norris.html?_r=0
But this
Congress has made clear that independence for the accounting rule writers can go too
far — particularly if the rules force banks to reveal the horrid mistakes they previously made.
This year, a subcommittee of the House Financial Services Committee held a hearing at which
legislators sought no facts but instead threatened dire action if the chairman of the financial
accounting board did not promptly make it easier for banks to ignore market values of the
toxic securities they owned. The board caved in, which may be one reason why banks are
reporting fewer losses these days.
c) Commissions are already used to make modifications to Sarbanes-Oxley, and can be
used to cause repeal.
Schoenthaler, 2011 Vanessa, Qashu and Schoenthaler law co-founder, “How will the Dodd-Frank Wall Street Reform and
Consumer Protection Act Impact Non-Financial Institutions?” Note: No Actual Date given but last cites legislation passed in 2011,
http://www.qsllp.com/InsightIdeas/ArticleDetails/tabid/85/ArticleId/4/-strong-How-will-the-Dodd-Frank-Wall-Street-Reform-andConsumer-Protection-Act-Impact-Non-Financial.aspx
Section 413 also requires that the Commission undertake an initial review
of the definition of accredited
investor, as it applies to natural persons,
to determine whether adjustments or modifications, excluding adjustments or
modifications to the revised net worth standard, are appropriate. Thereafter, the Commission is required, at least once every four years, to
review of the definition of accredited investor, as it applies to natural persons, in its entirety, to determine whether further adjustments or
modifications are appropriate.
d) The counterplan uniquely positions the PCLOB to be effective in drafting national
policy issues.
Dalal, J.D. Yale Law, 2014 Anjali, ARTICLE: SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE, 2014 Mich. St. L. Rev. 59
Despite these congressional efforts to force internal interagency oversight on intelligence issues, from 2007 until 2012, no members were ever
appointed to the PCLOB. 284 In mid-2013, after significant pressure from both within and outside the Administration, the full board was nominated and
confirmed. 285 Time will ultimately tell how effective the
PCLOB will be as a source of productive tension within
the national security arena . Working against it is the fact that "[f]our of the board members technically must be part time under the
law; only [David] Medine, the fifth, can work on a full-time basis as chairman. The oversight body also lacks much of a workforce: At the moment it's
mostly staff members on loan from other agencies." 286 Assuming
PCLOB is capable of taking on such a huge
responsibility, [*123] its success will be contingent on its members being included in national
security related decision making and its ability to effectively wield power and influence on
these issues.
e) Unique knowledge over policies, capital, and recent leaks are a game changer for
increasing their influence over congress.
Levy, 2013 Pema, International Business Times Correspondent, “NSA Spying Controversy: The New Agency That Could Change
Government Surveillance” http://www.ibtimes.com/nsa-spying-controversy-new-agency-could-change-government-surveillance1342409
You’ve probably never heard of it, but there
is a new agency in Washington that is working to make sure the
government’s anti-terrorism efforts do not ride roughshod over Americans’ civil liberties.
These days, when
a sharply divided Congress struggles to get nearly anything accomplished, there
is little evidence that such an agency, armed only with the mandate to offer advice, can
influence lawmakers. But the Privacy and Civil Liberties Oversight Board may have a better
chance at reforming the national security apparatus than many assume . In fact, the board is in a
unique position to shape the legislative debate
over the government’s spying abilities -- and
allies to make sure Congress takes up its recommendations.
klawb'), the new agency has
Referred to as the
has powerful
PCLOB (sounds like 'pee-
the job of advising the president, federal agencies and Congress on how to
balance the government’s national security efforts with civil liberties concerns. Board
members have top-secret clearances, and agency heads are expected to turn over any
documents the board requests . If the board needs information from the private sector, the
attorney general can issue a subpoena on its behalf.
Created in 2004 at the recommendation of the 9/11 Commission,
the PCLOB did not get off to an auspicious start. It was originally located within the Executive Office of the President, and its first report to Congress
was edited by the Bush White House, prompting one Democratic member to resign. In response, in
2007 the new Democratic
Congress made the board an independent agency within the executive branch. Then-President George
W. Bush clashed with Senate Democrats over board nominees, and ultimately none were confirmed. President Barack Obama dragged his feet in
choosing nominees and when they finally did come, Republicans refused to approve them. Four part-time members were finally approved in the last
nine months. The
board’s chairman, David Medine, was not formally installed on until May 29, 2013. One week
later, the Guardian newspaper published its first scoop, based on leaked National Security Agency documents, showing the
government collected and stored metadata on the phone calls of millions of Americans. Over the next few days, the documents leaked by Edward
Snowden revealed that the government went further, collecting and storing metadata on the phone calls of virtually all
Americans. The government was also scooping up an untold amount of Americans’ electronic communications as part of its foreign surveillance
operations. These
revelations thrust the board into the middle of the most important debate
over privacy and civil liberties in years.
Sen. Tom Udall, D-N.M., sent
a letter to the board asking it to
“ make it an urgent priority to investigate the programs” and provide an unclassified report
on their legality and whether they take the “necessary precautions to protect the privacy and civil liberties of American citizens under the
Constitution.” Twelve additional senators, including two Republicans, signed Udall’s letter. On June 21,
the board met with
Obama . All this before its office space was even ready or emails set up. The full board’s first public appearance came
Tuesday at a workshop in Washington, D.C., where the five members -- three Democrats and two Republicans -- queried three
separate panels of experts on how the surveillance programs might be brought more in line with civil liberties concerns. Civil liberties
advocates appear cautiously optimistic about the new board, whose opinion could help
determine whether Congress decides to take on the massive surveillance programs . Advocates are
also aware of the board’s ability to actually move their cause backward and entrench these programs. “If it blesses these programs, they are likely to
continue,” privacy rights advocate Greg Nojeim, who participated in one of Tuesday’s panels, said in an interview Wednesday. Whether the board
deems the phone metadata collection is unlawful or not will be “one of the most significant tests of PCLOB,” said Nojeim, a lawyer at the Center for
Democracy and Technology. But whatever its recommendations ultimately are, the
PCLOB is armed by circumstance with
the power to shape the laws governing the surveillance state , particularly Section 215 of the USA Patriot Act,
also known as the “business records” provision, under which the government claims the authority to collect Americans’ call data. During Tuesday’s
workshop, panelist Michael Davidson, former legal counsel to the Senate Intelligence Committee, hinted at the board’s potential for influence. “Can I
suggest a focus for the board, and that is the Congress will turn to the many important questions that have been discussed through the day when it has
to,” Davidson said. “And it will have to when, initially, when the sunset for business records [provision] is reached in the middle of 2015.” In other
words, the government’s authority to carry out the phone metadata collection will expire on June 1, 2015, absent congressional action – a situation the
board can use to shape the debate and even push its recommendations. On June 1, 2017, the portion of the Foreign Intelligence Surveillance Act under
which the NSA conducts electronic foreign intelligence sweeps that also snag domestic communications will expire without reauthorization, as well.
Privacy advocates don’t want the board or Congress to wait years to address the surveillance
programs they believe are illegal. But at the end of the day, the sunset dates guarantee that a debate over these programs will take
place -- and when it does,
the PCLOB can have its reports and recommendations ready to shape that
conversation . Moreover, because the issues in are so complex from a legal, practical and
technological point of view, lawmakers who want to put forward serious reforms may not
have the ability to craft adequate proposals before the sunset deadline. The board can help
in that practical function to make sure that lawmakers have reforms ready to be
implemented when the debate begins. Nojeim also sees this as an “advantage” unique to the
PCLOB . “The board has a guaranteed congressional audience that other boards don’t have
because it’s making recommendations
the PCLOB has in 2015 and 2017, the
on statutes that will expire unless acted on,” he said Wednesday. Despite the leverage
civil liberties community believes it has a popular mandate to move
reforms -- at least more basic changes like releasing more classified materials -- while the public is engaged on the issue .
The NSA leaks are “ a game-changer ,” said Michelle Richardson, a legislative counsel at the American Civil Liberties Union, noting
that members of Congress on both sides of the aisle have indicated that the NSA’s programs need to be reined in. “This certainly seems like our best
opportunity yet.” Whether or not Congress takes up a range of proposals put forward in the last month to reform the intelligence system, the
board has allies in Congress who will have the power to make sure its recommendations are
debated , even if it takes until 2015 for that to happen. “There are senators and representatives, including
[Vermont Democratic Sen. Patrick] Leahy, who chairs the Senate Judiciary Committee, who
struggled and pushed and cajoled
until the PCLOB members were nominated and approved ,” Nojeim said Wednesday. “ They are not
going to ignore the recommendations of the board they fought for.”
f) Consensus building
Glassman and Straus 13—*analyst at the Congressional Research Service AND **analyst at the Congressional Research
Service *Matthew Eric AND **Jacob R., “Congressional Commissions: Overview, Structure, and Legislative Considerations,”
Congressional Research Service, 1/22, http://fas.org/sgp/crs/misc/R40076.pdf
Legislators seeking policy changes may be confronted by an array of political interests, some
in favor of proposed changes and some against. When these interests clash, the resulting legislation
may encounter gridlock in the highly structured political institution of the modern
Congress. 28 By creating a commission, Congress can place policy debates in a potentially
more flexible environment, where congressional and public attention can be developed over
time .29
This is empirically proven on the third rail of politics which beats every aff warrant
Fiscal Times 10 [Edmund Andrews, February 18, 2010, “Deficit Panel Faces Obstacles in
Poisonous Political Atmosphere” http://www.thefiscaltimes.com/Issues/BudgetImpact/2010/02/18/Fiscal-Commission-Faces-Big-Obstacles.aspx]
Supporters of a bipartisan deficit commission note that at least two
previous presidential commissions succeeded at
breaking through intractable political problems when Congress was paralyzed. The 1983
Greenspan commission, headed by Alan Greenspan, who later became chairman of the Federal Reserve, reached an historic
agreement to gradually raise Social Security taxes and gradually increase the minimum age at which workers
qualify for Social Security retirement benefits. Those recommendations passed both the House and Senate, and
averted a potentially catastrophic financial crisis with Social Security.
g) Political cover: Since the commission’s recommendation is final, no one in Congress
has to take the blame
The Telegraph 10 “Deficit-cutting panel a missed opportunity,” The Telegraph, 2/14,
http://www.nashuatelegraph.com/opinion/editorials/612140-263/deficit-cutting-panel-a-missed-opportunity.html
At one time, closing
a military base in this country seemed as unlikely as meaningful efforts
toward deficit reduction. Any proposal by the Pentagon for base closure was met by
congressional resistance, until the creation of the Base Realignment and Closure Commission
gave Congress political cover . The commission and its staff conducted extensive research, held public hearings and
managed to get three rounds of base closures through Congress. Hundreds
of out-of-date military installations of
all sorts were closed, many of which had long since lost their strategic value and were little more than local jobs programs.
The base closure process was a great success, largely because Congress did not have the
power to nitpick its recommendations.
The entire list had to be accepted or rejected. This
model may now
be the only practical way for our government to tackle any issue with negative political
fallout.
Say Yes – 2NR
Empirics prove – commissions have created effective reform in times of tight
Congressional gridlock.
Andrews 10—economics reporter for The New York Times Edmund, “Deficit Panel Faces Obstacles in Poisonous Political
Atmosphere,” The Fiscal Times, 2/18, http://www.thefiscaltimes.com/Articles/2010/02/18/Fiscal-Commission-Faces-BigObstacles?page=0%2C1
Supporters of a bipartisan deficit commission note that at least
two previous presidential commissions
succeeded at breaking through intractable political problems when Congress was paralyzed .
The 1983
Greenspan commission, headed by Alan Greenspan, who later became chairman of the Federal Reserve,
reached an historic agreement to gradually raise Social Security taxes and gradually increase
the minimum age at which workers qualify for Social Security retirement benefits . Those
recommendations passed both the House and Senate, and averted a potentially catastrophic
financial crisis with Social Security.
Commission solves – creates compromise by shielding both parties from taking the
blame.
Brookings Fiscal Seminar 09—a group of scholars who meet on a regular basis, under the auspices of The Brookings
Institution and The Heritage Foundation, to discuss federal budget and fiscal policy issues Brookings Fiscal Seminar, “THE POTENTIAL
ROLE OF ENTITLEMENT OR BUDGET COMMISSIONS IN ADDRESSING LONG-TERM BUDGET PROBLEMS,” June 2009,
http://www.brookings.edu/~/media/research/files/papers/2009/6/commissions%20sawhill/06_commissions_sawhill
In contrast, the
Greenspan Commission provided a forum for developing a political compromise on
a set of politically unsavory changes. In this case, the political parties shared a deep concern about the
impending insolvency of the Social Security system but feared the exposure of promoting their
own solutions. The commission created political cover for the serious background
negotiations that resulted in the ultimate compromise . The structure of the commission reflected these
concerns and was composed of fifteen members, with the President, the Senate Majority Leader, and the Speaker of the House each
appointing five members to the panel.
Perceived immediacy and magnitude of the aff means that the recommendation will
pass.
Brookings Fiscal Seminar 09—a group of scholars who meet on a regular basis, under the auspices of The Brookings
Institution and The Heritage Foundation, to discuss federal budget and fiscal policy issues (Brookings Fiscal Seminar, “THE
POTENTIAL ROLE OF ENTITLEMENT OR BUDGET COMMISSIONS IN ADDRESSING LONG-TERM BUDGET PROBLEMS,” June 2009,
http://www.brookings.edu/~/media/research/files/papers/2009/6/commissions%20sawhill/06_commissions_sawhill)
The success of
the Greenspan Commission seems to have been due to three things: 1) the
problem that the commission had been set up to deal with, the insolvency of Social Security, was real, imminent and
well-defined ; 2) the costs of failing to resolve the problem would have been too great for
either party; and 3) the membership of the commission included trusted representatives of the
leaders of the two political parties as well as enough pragmatic panelists to offer a high
likelihood of eventual compromise . But despite this consensus amongst the panel members about the imminence
and seriousness of the problem, the panel came close to reporting without recommendations. It was only because of the work of a
subgroup of the commissioners working with high-ranking officials in the Administration that a set of recommendations finally
emerged.4
Commission recommendations get passed by Congress – reduce partisanship
Glassman and Straus 13—*analyst at the Congressional Research Service AND **analyst at the Congressional Research
Service *Matthew Eric AND **Jacob R., “Congressional Commissions: Overview, Structure, and Legislative Considerations,”
Congressional Research Service, 1/22, http://fas.org/sgp/crs/misc/R40076.pdf
Solutions to policy problems produced within the normal legislative process may also suffer
politically from charges of partisanship.30 Similar charges may be made against investigations conducted by
Congress.31
The non-partisan or bipartisan character of most congressional commissions may
make their findings and recommendations less susceptible to such charges and more
politically acceptable to a diverse viewpoints . The bipartisan or nonpartisan arrangement can
potentially give their recommendations strong credibility, both in Congress and among the
public, even when dealing with divisive issues of public policy.32 Commissions may also give political factions
space to negotiate compromises in good faith, bypassing the short-term tactical political
maneuvers that accompany public negotiations.33 Similarly, because commission members
are not elected, they may be better suited to suggesting unpopular, but necessary, policy
solutions.34
It’s Effective – 2NC
The board’s unique makeup and stature ensures it can operate effectively without
external pressures
Mishkin, J.D. New York University, 2013 Benjamin, NOTE: FILLING THE OVERSIGHT GAP: THE CASE FOR LOCAL
INTELLIGENCE OVERSIGHT x88 N.Y.U.L. Rev. 1414
2. The Privacy and Civil Liberties Oversight Board (PCLOB) The PCLOB, on the other hand, is a truly
independent overseer . Congress created the PCLOB in 2004 to "ensure that concerns with
respect to privacy and civil liberties are appropriately considered in the implementation of laws,
regulations, and executive branch policies related to efforts to protect the Nation against terrorism." 128 Nearly three
years later, in the face of concerns about the independence and [*1437] effectiveness of the PCLOB, Congress made modifications to the Board's
authority and its position within the executive branch. 129 As presently structured, the
PCLOB enjoys independent agency
status and, in accordance with its enabling statute, "shall be composed of a full-time chairman and 4
additional members, who shall ... be selected solely on the basis of their professional qualifications, achievements, public stature, expertise
in civil liberties and privacy, and relevant experience." 130 The President appoints and the Senate confirms the
PCLOB's members. 131 Broadly speaking, the PCLOB is tasked with providing advice and counsel on
policy development and implementation, continually reviewing terrorism-related policies
and practices, building relationships with privacy and civil liberties officers, and testifying
before Congress "upon request ." 132 The Board must also submit periodic reports at least
twice a year to the relevant congressional committees and the President regarding its activities,
findings, conclusions, and
recommendations . 133 And, to the greatest extent possible, the PCLOB should make its reports available to the
public. 134 To accomplish its mission, the
PCLOB is authorized to have access "from any department, agency,
or element of the executive branch ... to all relevant records, reports, audits, reviews, documents, papers,
recommendations, or other relevant material,
including classified information
consistent with applicable law." 135 The
Board's power to subpoena persons to produce these materials bolsters its access. 136 The Attorney General may modify or deny a PCLOB subpoena
request, but, in doing so, she must notify the House and Senate Judiciary Committees. 137 This statutory framework equips the PCLOB with the
potential to achieve key intelligence oversight goals. And, in theory, the [*1438] PCLOB's
narrow mission, independence,
and duty to report all promote robust, proactive intelligence oversight with regard to privacy
and civil liberties issues. Unlike members of the congressional intelligence committees who juggle many responsibilities, members of the
PCLOB have a singular oversight task. Moreover, because of the confirmation process, PCLOB members are more
likely to possess and develop the requisite level of expertise. They are less susceptible to
political pressures and electoral concerns, as they are appointed for six-year terms, and they
must regularly provide updates regarding their activities and findings . In other words, the PCLOB
appears to not be prone to some of the challenges that hinder congressional oversight of the
federal intelligence community. These factors, along with the fact that members of the PCLOB
are compensated for their work, 138 also make the PCLOB better positioned than the PIAB to
effectively oversee the federal intelligence community.
And any reason why the board’s recommendation will be watered down and
ineffective applies to the aff too and means you vote neg on presumption.
AT: Section
AT: PCLOB Says No
1. It won’t agree with the NSA – the board will prioritize liberties – empirically proven.
Schlanger, Henry M. Butzel Professor of Law, University of Michigan, 2015 Margo, ARTICLE:
Intelligence Legalism and the National Security Agency's Civil Liberties Gap, 6 Harv. Nat'l Sec. J. 112
Of the oversight institutions thus far described, only NSA's brandnew Civil Liberties and Privacy Office engages in policy-type weighing of civil liberties
interests against the security benefits offered by particular surveillance methods. The one office that remains to be discussed is the
Privacy
and Civil Liberties Oversight Board (PCLOB), an independent bipartisan agency nominally
within the executive branch . 240 As will be seen, and as one would expect from what is essentially a blue-ribbon-commission type
organization with no enforcement or other executive function, the
PCLOB seems so far to be functioning at least
partially free of the role constraints of an executive agency. In its first incarnation, as part of the Executive
Office of the President, 241 the PCLOB was an unimportant player in NSA's operations. In [*167] its second,
242 it
independent, incarnation ,
started operations only recently. President Obama was slow to name the Board's members, and the Senate was even slower
to confirm them 243 Its budget is tiny; it has only a handful of full-time staff members (one on a detail from the Department of Justice), in addition to
its full-time chair and part-time members. 244 But after David Medine's
245 the
long-awaited confirmation as chair in May 2013,
Snowden disclosures, one week later, prompted the Board to undertake a review of FISA,
the first part of which it completed in January 2014. 246 The board's statute commits it
firmly to a policy , not compliance, function, requiring it to:
(1) analyze
and review actions the executive
branch takes to protect the Nation from terrorism, ensuring that the need for such actions is
balanced with the need to protect privacy and civil liberties ; and (2) ensure that liberty
concerns are appropriately considered in the development and implementation of laws,
regulations, and policies related to efforts to protect the Nation against terrorism . 247 Nonetheless,
in its review of the telephony metadata program, the board began with the language of law. Three of its five members--the three Democrats--found
that Section 215 "does not provide an adequate legal basis to support the program," and that the program also violates the Electronic Communications
Privacy Act. 248 The Board acknowledged that the FISA Court had approved the program many times, but explained that it found that approval
unpersuasive: "Having
independently examined this statutory question, the Board disagrees with
the conclusions of the government and the FISA court." 249 Pointing out that the program long predated its
authorization by the FISA Court under Section 215, the Board concluded, after forty-five pages of statutory analysis: "It may have been a laudable goal
for the executive branch to bring this program under the [*168] supervision of the FISA court. Ultimately, however, that effort represents an
unsustainable attempt to shoehorn a preexisting surveillance program into the text of a statute with which it is not compatible." 250 Accordingly,
it
wrote, the program should be halted . 251 The Board also analyzed the constitutional law issues raised by the telephony
metadata program. It explained that under the Supreme Court's existing doctrine, a Fourth Amendment challenge would fail. "It is possible that the
third--party doctrine or its scope will be judicially revised," the Board wrote--making clear its own view that this revision would be very welcome. "To
date, however, the Supreme Court has not modified the third-party doctrine or overruled its conclusion that the Fourth Amendment does not protect
telephone dialing records. Most courts continue to follow those precedents, and government lawyers are entitled to rely on them, including in their
formulation and defense of the Section 215 program." 252 On First Amendment associational rights, the Board noted that standing doctrine had so far
obstructed full court testing of the rights, but that the challenge was far from trivial. 253 It
should be evident, then, that the PCLOB's
perspective on "the law " was quite different from that of any federal agency staff.
report,
In its first
its members, among them a retired federal court of appeals judge, assumed much more the stance of court of
appeals judges. Holdings by courts that are not the Supreme Court were treated as potentially persuasive, but not binding. And even Supreme
Court holdings were deemed potentially undermined by subsequent changes of circumstances or surrounding doctrine. The PCLOB
members obviously felt far freer than agency counsel do with respect to legal analysis and
interpretation; the analysis is not only of precedent but also, in more typically judicial mode,
of the policy pros and cons. The result was that the board took advantage of the authority of
the law/compliance frame, without many of the constraints that frame usually imposes on
executive branch officials . Its pronouncement that the telephony metadata program is illegal,
beyond the statutory authority of the administration, is what got by far the most attention. 254
2. Err neg – their evidence was written before congress voted to change the PCLOB’s
structure to make it fully independent and is written in the context of the Bush
administration which clearly doesn’t apply anymore
Dalal, J.D. Yale Law, 2014 Anjali, ARTICLE: SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE, 2014 Mich. St. L. Rev. 59
[*122]
Congress responded
quickly
by passing legislation in August 2007 to significantly
restructure the PCLOB . 280 Under the new statute, the PCLOB is an independent agency to be
composed of five members, four of whom are part time from outside the government and
the fifth, the chairperson, is the full time member . 281 All five members are appointed by the
President and confirmed by the Senate for a term of six years to prevent wholesale capture
by a given Administration . 282 Its authorizing statute mandates that no more than three
members can be from one political party with the other two chosen by the White House
under consultation with Senate and House minority leadership . 283
3. Recent debates prove – the board is more likely to engage in dissent due to public
outrage than otherwise.
AT: Delay
1. No impact to delay – none of the affs impacts are short term and even if they are
the aff can’t solve quick enough either then.
2. Err neg – all of their delay evidence is in the context of the process of setting up the
PCLOB which is already done and isn’t about their ability to review.
The Grant County Beat, 2013 Online News Service, “Udall Backs Bill to Protect Constitutional Rights, Reform
Surveillance Program” http://www.grantcountybeat.com/news/non-local-news-releases/12473-udall-backs-bill-to-protectconstitutional-rights-reform-surveillance-program
Earlier this year, at a hearing before the Senate Appropriations Committee, Udall challenged the director of the NSA to become more transparent about
the surveillance programs. Udall also led
a bipartisan push to ask for an independent investigation of
these programs by the Privacy and Civil Liberties Oversight Board (PCLOB), which was fully constituted in May
with the Senate confirmation of the board’s chairman.
As chairman of the Appropriations subcommittee with
jurisdiction over the PCLOB, Udall included $4.1 million in the fiscal year 2014 legislation for the board. These
resources, $3.2 million
above the fiscal year 2013 enacted level, will enable the PCLOB to hire staff and pursue its
mission without delay.
3. Recent debates prove – the board quickly gathered information on the NSA after
the Snowden leaks and released a report.
4. No delay or inefficiency
Campbell, 2002 – Colton C. Campbell, Associate Professor of Political Science at Florida International University, visiting
Professor of Political Science at American University, 2002, Discharging Congress: Government by Commission, p. 20
There are a number of ways in which Congress performs its policymaking functions. Ad
hoc commissions are one device at its
disposal. Despite criticisms that these entities are inefficient and frequently evade the issues,
commissions provide a flexible option, the variation in their composition and organization
reflecting the specific mandates that establish them.79 Commissions can provide expert
advice in matters of public policy within a definite time frame. By virtue of their ad hoc status, they can
bypass normal bureaucratic channels. Commissions are a public relations device designed to
draw attention to certain issues, to elicit public support, and to achieve consensus in a
fragmented Congress. Commissions also allow for the direct representation of functional consistencies in the advisory process by seeking
the advice of holders of diverse points of view.80 It is this list of advantages that has encouraged the recent use of
commissions and led to their becoming a stable feature of public policies.
AT: NSA Secrecy
1. This is a solvency take out to the aff and not the cp – the PCLOB has unique access
to information which allows for better policies which congress alone doesn’t.
2. Not true – your evidence is in the context of abstract congressional committees and
not the PCLOB which has been given unique access to NSA information. That’s Setty.
3. Even if the NSA won’t give them the information they can draft a subpoena for it –
which they will b/c the cp text fiats that they solicit all relevant information
Levy, 2013 Pema, International Business Times Correspondent, “NSA Spying Controversy: The New Agency That Could Change
Government Surveillance” http://www.ibtimes.com/nsa-spying-controversy-new-agency-could-change-government-surveillance1342409
Referred to as the
PCLOB (sounds like 'pee-klawb'), the new agency has the job of advising the president, federal
agencies and Congress on how to balance the government’s national security efforts with civil
liberties concerns. Board members have top-secret clearances, and agency heads are
expected to turn over any documents the board requests . If the board needs information
from the private sector, the attorney general can issue a subpoena on its behalf.
4. The board has the most independence and access to info out of all the agencies
Schlanger, Henry M. Butzel Professor of Law, University of Michigan, 2015 Margo, ARTICLE:
Intelligence Legalism and the National Security Agency's Civil Liberties Gap, 6 Harv. Nat'l Sec. J. 112
Of the oversight institutions thus far described, only NSA's brandnew Civil Liberties and Privacy Office engages in policy-type weighing of civil liberties
interests against the security benefits offered by particular surveillance methods. The one office that remains to be discussed is the
Privacy
and Civil Liberties Oversight Board (PCLOB), an independent bipartisan agency nominally
within the executive branch . 240 As will be seen, and as one would expect from what is essentially a blue-ribbon-commission type
organization with no enforcement or other executive function, the
PCLOB seems so far to be functioning at least
partially free of the role constraints of an executive agency. In its first incarnation, as part of the Executive
Office of the President, 241 the PCLOB was an unimportant player in NSA's operations. In [*167] its second,
242 it
independent, incarnation ,
started operations only recently. President Obama was slow to name the Board's members, and the Senate was even slower
to confirm them 243 Its budget is tiny; it has only a handful of full-time staff members (one on a detail from the Department of Justice), in addition to
its full-time chair and part-time members. 244 But after David Medine's
245 the
long-awaited confirmation as chair in May 2013,
Snowden disclosures, one week later, prompted the Board to undertake a review of FISA,
the first part of which it completed in January 2014. 246 The board's statute commits it
firmly to a policy , not compliance, function, requiring it to:
(1) analyze
and review actions the executive
branch takes to protect the Nation from terrorism, ensuring that the need for such actions is
balanced with the need to protect privacy and civil liberties ; and (2) ensure that liberty
concerns are appropriately considered in the development and implementation of laws,
regulations, and policies related to efforts to protect the Nation against terrorism . 247 Nonetheless,
in its review of the telephony metadata program, the board began with the language of law. Three of its five members--the three Democrats--found
that Section 215 "does not provide an adequate legal basis to support the program," and that the program also violates the Electronic Communications
Privacy Act. 248 The Board acknowledged that the FISA Court had approved the program many times, but explained that it found that approval
unpersuasive: "Having
independently examined this statutory question, the Board disagrees with
the conclusions of the government and the FISA court." 249 Pointing out that the program long predated its
authorization by the FISA Court under Section 215, the Board concluded, after forty-five pages of statutory analysis: "It may have been a laudable goal
for the executive branch to bring this program under the [*168] supervision of the FISA court. Ultimately, however, that effort represents an
unsustainable attempt to shoehorn a preexisting surveillance program into the text of a statute with which it is not compatible." 250 Accordingly,
it
wrote, the program should be halted . 251 The Board also analyzed the constitutional law issues raised by the telephony
metadata program. It explained that under the Supreme Court's existing doctrine, a Fourth Amendment challenge would fail. "It is possible that the
third--party doctrine or its scope will be judicially revised," the Board wrote--making clear its own view that this revision would be very welcome. "To
date, however, the Supreme Court has not modified the third-party doctrine or overruled its conclusion that the Fourth Amendment does not protect
telephone dialing records. Most courts continue to follow those precedents, and government lawyers are entitled to rely on them, including in their
formulation and defense of the Section 215 program." 252 On First Amendment associational rights, the Board noted that standing doctrine had so far
obstructed full court testing of the rights, but that the challenge was far from trivial. 253 It
should be evident, then, that the PCLOB's
perspective on "the law " was quite different from that of any federal agency staff.
In its first
report,
its members, among them a retired federal court of appeals judge, assumed much more the stance of court of
appeals judges. Holdings by courts that are not the Supreme Court were treated as potentially persuasive, but not binding. And even Supreme
Court holdings were deemed potentially undermined by subsequent changes of circumstances or surrounding doctrine. The PCLOB
members obviously felt far freer than agency counsel do with respect to legal analysis and
interpretation; the analysis is not only of precedent but also, in more typically judicial mode,
of the policy pros and cons. The result was that the board took advantage of the authority of
the law/compliance frame, without many of the constraints that frame usually imposes on
executive branch officials . Its pronouncement that the telephony metadata program is illegal,
beyond the statutory authority of the administration, is what got by far the most attention. 254
Theory
CP’s Legitimate – 2NC
Our counterplan is uniquely legitimate –
Literature - our evidence proves that it is grounded making it predictable and a
valuable discussion for curtailing NSA surveillance programs.
Net Benefits check abuse and provide a germane policy warrant for voting negative
Doesn’t undermine affirmative offense-There is ample solvency ground based around
the possibility the commission recommendation doesn’t become law and other
defenses of certain curtailment.
Reject the argument not the team – the punishment does not fit the crime—making
the debate hard for the AFF is the NEGs job—have a high threshold to avoid substance
crowd out.
Policy Making--Commissions are a well established alternative to traditional
policymaking—proves the CP is predicable and germane
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida
International University, visiting Professor of Political Science at American University, 2002,
Discharging Congress: Government by Commission, p. 129
Ad hoc commissions as instruments of government have a long history. They are used by almost all
units and levels of government for almost every conceivable task. Ironically, the use which Congress
makes of commissions— preparing the groundwork for legislation, bringing public issues into the
spotlight, whipping legislation into shape, and giving priority to the consideration of complex,
technical, and critical developments—receives relatively little attention from political scientists. As
noted in earlier chapters, following the logic of rational choice theory, individual decisions to delegate
are occasioned by imperfect information; legislators who want to develop effective policies, but who
lack the necessary expertise, often delegate fact-finding and policy development. Others contend that
some commissions are set up to shift blame in order to maximize benefits and minimize losses.
Perm Do Both – 2NC
Doing both links to politics and doesn’t solve--a) Congressional debates---the CP means Congress won’t debate the merits of the
plan---they give an up-or-down vote to a commission report. The perm forces debate
on the substance of the plan now---electoral pressure and fights over the plan trigger
the link---that’s all our politics net-benefit ev.
b) Secrecy---the commission’s deliberations aren’t public, but the plan forces the issue
onto Congress’s radar immediately---ensures backlash
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida
International University, visiting Professor of Political Science at American University, 2002,
Discharging Congress: Government by Commission, p. 13-14
Life on Capitol Hill has frequently become acrimonious because of escalating partisanship between
parties.48 Increasing polarization in Congress49 has led to gridlock50 and stimulated the use of
message politics,51 thereby limiting both the flexibility and the creativity of congressional action
through normal legislative channels. The logic of commissions is that leaders of both parties, or their
designated representatives, can meet to negotiate a deal without the media, the public, or interest groups
present. When deliberations are private, parties can make offers without being denounced either by
their opponents or by affected constituency groups; there is less chance to use an offer from the other side to
curry favor with constituents. Agreement to bipartisan commissions and adherence to their logic are consequential
because they represent a tacit promise not to attack the opponent. On some issues, for instance, the
promise might imply letting the commission pick the solution and relying on party discipline to encourage
lawmakers to go along even if their districts are disadvantaged by the solution; on others it might involve nothing more than a
bipartisan admission that a commission is the next step Congress should take, without any understanding that all the players are
bound ex ante by the commission’s resolution.52 Commissions also mean eschewing partisan attacks and suggest a
strong preference for reaching an agreement.53
Doing both links to politics---only giving the commission time generates political
support---the perm’s not a genuine recommendation and doesn’t allow any time for
negotiation
Biggs 9 [Andrew Biggs is a Social Security analyst and assistant director of the Cato Institute's
Project on Social Security Privatization, “Rumors Of Obama Social Security Reform Commission,”
Feb 17 http://www.frumforum.com/rumors-of-obama-social-security-reform-commission]
One problem with President Bush’s 2001 Commission was that it didn’t represent the reasonable
spectrum of beliefs on Social Security reform. This didn’t make it a dishonest commission; like President
Roosevelt’s Committee on Economic Security, it was designed to put flesh on the bones laid out by the President. In this case,
the Commission was tasked with designing a reform plan that included personal accounts and excluded tax increases. That
said, a commission only builds political capital toward enacting reform if it’s seen as building a
consensus through a process in which all views have been heard. In both the 2001 Commission and
the later 2005 reform drive, Democrats didn’t feel they were part of the process. They clearly will be a
central part of the process this time, but the goal will now be to include Republicans. Just as Republicans shouldn’t reflexively
oppose any Obama administration reform plans for political reasons, so Democrats shouldn’t seek to exclude Republicans from the process. Second, a reform task force
should include a variety of different players, including members of government, both legislative and executive, representatives of outside interest groups, and experts who
can provide technical advice and help ensure the integrity of the reforms decided upon. The 2001 Bush Commission didn’t include any sitting Members of Congress and
, any
task force or commission needs time. The 2001 Commission ran roughly from May through December
of that year and had to conduct a number of public hearings. This was simply too much to do in too
little time, and as a result the plans were fairly bare bones. There is plenty else on the policy agenda
at the moment, so there’s no reason not to give a working group a year or more to put things
together.
only a small fraction of commissioners had the technical expertise needed to make the plans the best they could be. A broader group would be helpful. Third
Only the CP gets perceived as considering options from both sides before
recommending one action---the perm looks like the commission favoring one side
from the beginning---triggers politics and turns the case
Hoyer 10 [Steny, Senator, “Building Momentum for Fiscal Responsibility,” 3/1
http://www.brookings.edu/events/2010/0301_fiscal_responsibility.aspx]
I hope congressional Republicans will take the work as sincerely and seriously as the chairmen take it —
that they will come to the table without preconditions, ready to contribute their ideas and not just their criticism from the sideline. The
commission has a bipartisan pedigree, and it won the votes of 16 Republicans in the Senate. But I was
disappointed to see that seven Republican supporters of the commission bill, including Minority Leader McConnell, decided they were against it as
soon as President Obama said he was for it.
President Reagan and Speaker O’Neill’s work on Social Security reform in the ‘80s, and the Republican
reaction to the Medicare changes in the health care bill, both teach the same lesson: the real work of cutting
deficits is so easy to demagogue that it rarely succeeds without support from both sides. That’s one
of the reasons why the fiscal commission must not take any option off of the table, from raising revenues to
cutting entitlement spending. And that’s why both parties have a duty to appoint members who are willing to
compromise and make tough decisions.
It’s also clear to me that if
the commission takes a one-handed approach, it will fail, both politically and
substantively. Congressman Ryan’s thoughtful budget proposal shows what an approach looks like when it relies entirely on cutting
spending. He should be commended for putting together a serious and detailed plan to tackle the deficit. It doesn’t raise a single tax. But as a
consequence, it significantly changes Medicare.
Presumption stays neg---the CP’s less change than the plan because it’s indefinite---tie
goes to the runner, and use an offense/defense frame because if the CP solves the
case there’s no offensive reason to risk the DA.
Perm Do the Plan Through The Process of the CP – 2NC
The perm’s illegitimate:
a) Intrinsic---adds an element of delay that’s not in the counterplan--- the CP only fiats
the asking of the recommendation over the plan – Intrinsicness is illegitimate because
it makes the affirmative a moving target
b) Severance---if the commission process is genuine and independent then the plan
isn’t certain to be done until the end of the process---severs ‘should’ which requires
immediacy-severance is illegitimate because no counterplan would compete if the
affirmative can pick and choose which parts of the plan to defend
Summers 94 - Justice, Supreme Court of Oklahoma, 11-8-1994, “Kelsey v. Dollarsaver Food
Warehouse of Durant,” online:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn14
Certain contexts
mandate a construction of the term "should" as more than merely indicating
preference or desirability . Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the
amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation
and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) ( one of the
Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the
fee or expenses" was interpreted to mean that a party is under an obligation to include the requested segment); State v.
Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the
triers they "should disregard false testimony").
c) No offense---if the CP fiated that the plan happens in the future their perm would
be legit---this excludes abusive delay and condition CPs. It’s key to test the necessity
of doing the plan---if only recommending it is better, then the aff should lose.
The perm doesn’t solve politics---the commission process has to be independent--perm means Congress has its mind made up from the beginning, the decision to do the
plan is made immediately even if it’s not implemented until after the commission
makes its recommendations.
The perception that the commission is a congressional proxy causes political battles
Brookings Fiscal Seminar 9 – The Brookings Institution Fiscal Seminar, group of scholars who
meet on a regular basis, under the auspices of The Brookings Institution and The Heritage
Foundation, to discuss federal budget and fiscal policy issues, June 2009, “The Potential Role of
Entitlement or Budget Commissions in Addressing Long-Term Budget Problems,” online:
http://www.brookings.edu/~/media/Files/rc/papers/2009/06_commissions_sawhill/06_commis
sions_sawhill.pdf
The use of commissions or advisory councils has a long history in the United States. In the early 1900s, the National Monetary
Commission examined the nation’s distressed financial system and recommended establishing a central banking structure, a recommendation that
was soon translated into the Federal Reserve System. From 1937 to 1996, Social Security policy-making was heavily influenced by the findings and
recommendations of periodic advisory councils, including the National Commission on Social Security Reform (the Greenspan Commission) which
helped to rescue the program from insolvency in 1983. The 1960s saw the Warren Commission investigate the assassination of President Kennedy
and the Kerner Commission examine the causes of civil disorders. The
Base Closure and Realignment Commission (BRAC)
provided an effective mechanism over the past two decades for overcoming the political hurdles
inhibiting the restructuring of U.S. defense facilities across the country. And the recent National Commission on Terrorist
Attacks upon the United States (the 9/11 Commission) delved into the numerous facets of the 2001 terrorist attacks and potential changes in
homeland security.
Commissions can be used for a variety of purposes that suit the needs of the President or the
Congress. The role of some commissions is to develop a knowledge base about certain policies or
problems free from the political machinations that are an unavoidable part of the legislative process.
They can also develop policy options that members of Congress and their staff have too little time or
expertise to formulate. They can serve as consensus-building vehicles from which members of
Congress may garner political protection while addressing contentious issues. At other times,
commissions appear simply to serve as delaying measures that can be employed to defuse a political
issue until a more opportune time for action develops.
Leaks trigger the link to politics:
a) Immigration reform legislation in 2010 included a proposal for a commission
Waslin 10 – Michele, Senior Policy Analyst at the Immigration Policy Center, May 24, 2010,
“Hammering Out Future Immigration Flows: Immigration Commissions in Context,” online:
http://immigrationimpact.com/2010/05/24/hammering-out-future-immigration-flowsimmigration-commissions-in-context/
Today the
Washington Post reported that Senate Democrats are working on a plan to create an
immigration commission to help determine future levels of employment-based immigration as part of a comprehensive
immigration reform bill. While some disagree as to how future immigration flows should be regulated, immigration advocates agree that
planning for future flows of legal immigration is among the most critical elements that comprehensive immigration reform must include.
b) That document leaked immediately and caused GOP backlash---proves likelihood
of Congress leaking their decision to do the plan
Anderson 10 – Stuart Anderson, adjunct scholar at the Cato Institute and executive director,
National Foundation for American Policy, May 2010, “A Look at the Senate Democratic Proposal
for Immigration Reform: Is the Glass Half Empty, Half Full or Shattered on the Ground?,” online:
http://www.cato.org.offcampus.lib.washington.edu/pubs/irb/irb_may2010.pdf
While the new immigration law in Arizona has attracted most of the press attention, a 26-page “Conceptual Proposal for
Immigration Reform” released in May by Democratic senators may be a more relevant policy development in the
long run.1 The Democratic Senate document is important in two ways. First, it could be the legislative vehicle put
forward in the U.S. Senate in 2010 and, as such, has a chance of becoming law. Second, even if the proposal does not become
law this year it serves as an important benchmark for current and future thinking in the immigration policy debate. Senators
Harry Reid (D-NV), Charles Schumer (D-NY) and Robert Menendez (DNJ) took ownership of the proposal and discussed the
document at a Capitol Hill press conference in May. Copies of the document were soon leaked to the press and
began being emailed around Washington, DC. One significant development is that Senator Lindsey Graham (R-SC)
criticized the proposal, even though a month before he had co-authored an op-ed piece with Senator
Schumer in the Washington Post that included a number of the same elements contained in the proposal. 2 Although
there is no legislative language yet to accompany the summary, there is sufficient detail to analyze the current policy direction
in some key areas.
Perm Do the CP – 2NC
a) The permutation is severance – the board is a commission that only inputs review
when it is requested to do so making it not normal means.
Mishkin, J.D. New York University, 2013 Benjamin, NOTE: FILLING THE OVERSIGHT GAP: THE CASE FOR LOCAL
INTELLIGENCE OVERSIGHT x88 N.Y.U.L. Rev. 1414
2. The Privacy and Civil Liberties Oversight Board (PCLOB) The PCLOB, on the other hand, is a truly independent overseer. Congress created the PCLOB
in 2004 to "ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of laws, regulations, and
executive branch policies related to efforts to protect the Nation against terrorism." 128 Nearly three years later, in the face of concerns about the
independence and [*1437] effectiveness of the PCLOB, Congress made modifications to the Board's authority and its position within the executive
branch. 129 As presently structured, the PCLOB enjoys independent agency status and, in accordance with its enabling statute, "shall be composed of a
full-time chairman and 4 additional members, who shall ... be selected solely on the basis of their professional qualifications, achievements, public
stature, expertise in civil liberties and privacy, and relevant experience." 130 The President appoints and the Senate confirms the PCLOB's members.
131 Broadly speaking, the
PCLOB is tasked with providing advice and counsel on policy development
and implementation, continually reviewing terrorism-related policies and practices, building
relationships with privacy and civil liberties officers, and testifying before Congress "upon
request ." 132 The Board must also submit periodic reports at least twice a year to the relevant congressional committees and the President
regarding its activities, findings, conclusions, and recommendations. 133 And, to the greatest extent possible, the PCLOB should make its reports
available to the public. 134 To accomplish its mission, the PCLOB is authorized to have access "from any department, agency, or element of the
executive branch ... to all relevant records, reports, audits, reviews, documents, papers, recommendations, or other relevant material, including
classified information consistent with applicable law." 135 The Board's power to subpoena persons to produce these materials bolsters its access. 136
The Attorney General may modify or deny a PCLOB subpoena request, but, in doing so, she must notify the House and Senate Judiciary Committees.
137 This statutory framework equips the PCLOB with the potential to achieve key intelligence oversight goals. And, in theory, the [*1438] PCLOB's
narrow mission, independence, and duty to report all promote robust, proactive intelligence oversight with regard to privacy and civil liberties issues.
Unlike members of the congressional intelligence committees who juggle many responsibilities, members of the PCLOB have a singular oversight task.
Moreover, because of the confirmation process, PCLOB members are more likely to possess and develop the requisite level of expertise. They are less
susceptible to political pressures and electoral concerns, as they are appointed for six-year terms, and they must regularly provide updates regarding
their activities and findings. In other words, the PCLOB appears to not be prone to some of the challenges that hinder congressional oversight of the
federal intelligence community. These factors, along with the fact that members of the PCLOB are compensated for their work, 138 also make the
PCLOB better positioned than the PIAB to effectively oversee the federal intelligence community.
b) It severs the requirement that the plan should happen:
“Should” means immediate
Summers 94 - Justice, Supreme Court of Oklahoma, 11-8-1994, “Kelsey v. Dollarsaver Food
Warehouse of Durant,” online:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn14
The legal question to be resolved by the court is whether the word "should"13 in the May 18
order connotes futurity or may be deemed a ruling in praesenti.14 ***TO FOOTNOTES In
praesenti means literally "at the present time." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance
the phrase denotes that which in law is presently or immediately effective, as opposed to something
that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).
***END FOOTNOTES The answer to this query is not to be divined from rules of grammar;15 it must be governed
by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May
18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2)
constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record. Nisi prius orders
should be so construed as to give effect to every words and every part of the text, with a view to carrying out the evident intent of the judge's
direction.17 The order's language ought not to be considered abstractly. The actual meaning intended by the document's signatory should be
derived from the context in which the phrase to be interpreted is used.18 When applied to the May 18 memorial, these
told canons
impel my conclusion that the judge doubtless intended his ruling as an in praesenti
resolution of Dollarsaver's quest for judgment n.o.v. Approval of all counsel plainly appears on the face of the critical May 18 entry which is
[885 P.2d 1358] signed by the judge.19 True minutes20 of a court neither call for nor bear the approval of the parties' counsel nor the judge's
signature. To reject out of hand the view that in this context "should" is impliedly followed by the customary, "and the same hereby is", makes the
court once again revert to medieval notions of ritualistic formalism now so thoroughly condemned in national jurisprudence and long abandoned
by the statutory policy of this State.
c) It also means mandatory---introducing uncertainty severs
Summers 94 - Justice, Supreme Court of Oklahoma, 11-8-1994, “Kelsey v. Dollarsaver Food
Warehouse of Durant,” online:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn14
Certain contexts mandate a construction of the term "should" as
more than merely indicating
preference or desirability . Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce
the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an
obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813
(1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief
to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include
the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or "must"
when used in an instruction to the jury which tells the triers they "should disregard false testimony").
c) This is true of the CP---it’s a non-binding recommendation and The CP’s
fundamentally distinct from the normal legislative process---it’s not USFG action
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida
International University, visiting Professor of Political Science at American University, 2002,
Discharging Congress: Government by Commission, p. xv
So why and when does Congress formulate policy by commissions rather than by the normal
legislative process? Lawmakers have historically delegated authority to others who could
accomplish ends they could not. Does this form of congressional delegation thus reflect the
particularities of an issue area? Or does it mirror deeper structural reasons such as legislative
organization, time, or manageability? In the end, what is the impact on representation versus the
effectiveness of delegating discretionary authority to temporary entities composed largely of
unelected officials, or are both attainable together?
Severance is illegitimate-no counterplan would compete if the affirmative can pick
and choose which parts to defend
PCLOB Isn’t Binding – 2NC
The Board can’t make binding suggestions
Thompson, Previous Ranking Member of the Committee on Homeland Security, 2006
Bennie, previous representative from the Second District of Mississippi, ARTICLE: THE NATIONAL COUNTERTERRORISM CENTER:
FOREIGN AND DOMESTIC INTELLIGENCE FUSION AND THE POTENTIAL THREAT TO PRIVACY, 6 PGH. J. Tech. L. & Pol'y 6
P24 Unlike the DHS Privacy Office, however, the
PCLOB has no mandate to inform, educate, or lead privacy practice among those executive
branch components involved in war on terror-related intelligence and law enforcement activities. It likewise
has no power to help
develop consistent, comprehensive, and effective privacy guidelines within those
components . Instead, the PCLOB can only "advise" the President and agency and department
heads to ensure that privacy and civil liberties "are appropriately considered" and advise
when adequate guidelines are lacking.
70 Unlike the DHS Privacy Office, moreover, the PCLOB has practically no independence
from the White House. For example, the PCLOB consists of five members (1) all of whom are appointed by the President, and only two of whom, the
chairman and vice-chairman, require Senate approval; (2) all of whom serve "at the pleasure of the President"; (3) none of whom need be of different
political parties; and (4) none of whom need have any expertise in civil liberties matters. 71 The PCLOB's oversight ability, moreover, is severely
constrained because it lacks the subpoena power. 72
AT: Should=Desirable
This clearly doesn’t apply---“should” only allows conditions when used in that context--i.e., “If the USFG had known, it should have acted differently”---the plan and topic
use the word in a different sense---mandating unconditional obligation
AHID 2009 (American Heritage Dictionary, “should”,
http://dictionary.reference.com/browse/should)
Usage Note: Like the rules governing the use of shall and will on which they are based, the traditional rules governing the use of should and would are
largely ignored in modern American practice. Either should or would can now be
used in the first person to express conditional
futurity: If I had known that, I would (or somewhat more formally, should) have answered differently. But in the
second and third persons only would is used: If he had known that, he would (not should) have answered differently. Would cannot always be
substituted for should, however. Should is used in all three persons in a conditional clause: if I (or you or he) should decide to go. Should
is also
used in all three persons to express duty or obligation (the equivalent of ought to): I (or you or he) should go.
On the other hand, would is used to express volition or promise: I agreed that I would do it. Either would or should is possible as an auxiliary with like,
be inclined, be glad, prefer, and related verbs: I would (or should) like to call your attention to an oversight. Here would was acceptable on all levels to
a large majority of the Usage Panel in an earlier survey and is more common in American usage than should. · Should have is sometimes incorrectly
written should of by writers who have mistaken the source of the spoken contraction should've. See Usage Notes at if, rather, shall.
Politics Net Benefit
Doesn’t Link – 2NC
1. The counterplan doesn’t link to politics –
a) The board is a third party organization and completely independent which allows
for them to garner support and coalition for the plan in congress and shields
controversy. But acting first is key to prevent bias.
b) The board’s reports will create public support for the plan which alters
representative’s decision making calculus which quells opposition.
That’s Setty.
c) The board will be used as a point to coalesce support around
Wyden, 2014 Ron, Senator for Oregon, “Wyden Statement on PCLOB Report on Bulk Collection”
http://www.wyden.senate.gov/news/press-releases/wyden-statement-on-pclob-report-on-bulk-collection
“The
privacy board’s findings closely mirror many of the criticisms made by surveillance reform
advocates.
The bulk collection program was built on a murky legal foundation that raises many constitutional questions and has been proven
to be an ineffective tool for collecting unique intelligence information. Moreover, as the board wrote in its report, a program where the government
collects the telephone records of millions of law-abiding Americans “fundamentally shifts the balance of power between the state and its citizens.” The
board goes on to say that with the government’s “powers of compulsion and criminal prosecution,” collection of data on its own citizens “poses unique
threats to privacy,” and is expected to have a “chilling effect on the free exercise of speech and association.” The board’s recommendations extend to
reforms to the FISA court and the kind of increased transparency that is necessary for a democratic government to function. The reforms to the court
do not go as far toward a true and independent civil liberties advocate as many pro-reformer would like. However, they would extend privacy
protections beyond the legality of any particular program, into the kind of systemic protections of privacy that should have been available in the first
place. The board made several arguments against the legality of the bulk collection program under Section 215 all of which deserve significant
consideration. The board came to the same conclusion as myself and many other pro-reformers that surveillance precedent set by previous Supreme
Court rulings – namely Smith v. Maryland – do not “fully answer whether the Section 215 telephone records is constitutionally sound” and do not
reflect the effects of significant technological advances in telecommunications since that time. There
have now been two in-depth
studies of these programs by unimpeachable government entities that have come to the
same conclusion:
the bulk collection program should be effectively ended. As the President announced last week, the
Administration and the Congress will decide the fate of this problematic program in the coming weeks
and it is my belief that
reports such as those from the PCLOB
and the President’s Review Group
should play a
major role in any reform effort.”
d) The board can draw support from industry and civil society
Swire, 6/8/2015 Peter, Privacy perspectives correspondent, “The USA FREEDOM Act, the President’s Review Group and the
Biggest Intelligence Reform in 40 Years”
Passage of any legislation such as USA FREEDOM has innumerable parents, each of whose support turns out to be vital to eventual enactment. For this
law, important support came from President Obama, the intelligence community and the Obama administration generally; the members of Congress
who brought together a unique coalition in both the House and the Senate; the
whose detailed report on Section 215 raised
Privacy and Civil Liberties Oversight Board,
numerous compelling concerns with the program, and coalitions of outside
supporters from the political left and right, including industry and civil society.
That support is the key factor in getting NSA reforms passed and avoiding opposition –
the industry will lobby
Blunden, 2/9/2015 Bill, Alternet correspondent, “Clear Proof Obama's Surveillance Oversight Board Is a Pathetic
Sideshow” http://www.alternet.org/news-amp-politics/clear-proof-obamas-surveillance-oversight-board-pathetic-sideshow
All told
there are over 1,300 billionaires in the United States and the politically minded
members of this demographic —both Democrats and Republicans— have essentially succeeded in state
capture. The two-party system of the United States is actually a one-party system: the
corporate party . And U.S. spies are the Praetorian Guard of these “deciders.” So if it seems like nothing on the whole
is being done to rein in mass interception, that assessment would be accurate. The NSA’s all-seeing
Eye of Providence, and the even larger
corporate surveillance apparatus that supports it, are incredible
tools of control . The easiest way for leaders to manage public outcry is to put on an elaborate performance of mock reform. It appeases
Main Street without offending the deep sources of wealth and power that tread the corridors of the Deep State.
e) Cross apply the say yes debate here – they all act as reasons why the cp will build
support over the plan.
f) Even if the counterplan links, it links substantially less than the plan does by building
support – that should be threshold for determining net benefits.
g) If it does link presumption still goes neg – the cp’s less change than the aff bcause it
doesn’t make a binding decision.
h) Prefer our evidence over theirs – their Chapman evidence is from a news article
which utilizes hyperbolic language to attract readers while ours is from a law
professor who conducted multiple studies on commissions.
2. And the process of the CP resolves the link to the substance of the plan:
a) Commissions reduce partisanship – they are bipartisan and thus not attached to a
specific political party.
Glassman and Straus 13—*analyst at the Congressional Research Service AND **analyst at the Congressional Research
Service (*Matthew Eric AND **Jacob R., “Congressional Commissions: Overview, Structure, and Legislative Considerations,”
Congressional Research Service, 1/22, http://fas.org/sgp/crs/misc/R40076.pdf)
Solutions to policy problems produced within the normal legislative process may also suffer
politically from charges of partisanship.30 Similar charges may be made against investigations conducted by
Congress.31
The non-partisan or bipartisan character of most congressional commissions may
make their findings and recommendations less susceptible to such charges and more
politically acceptable to a diverse viewpoints . The bipartisan or nonpartisan arrangement can
potentially give their recommendations strong credibility, both in Congress and among the
public, even when dealing with divisive issues of public policy.32 Commissions may also give political factions
space to negotiate compromises in good faith, bypassing the short-term tactical political
maneuvers that accompany public negotiations.33 Similarly, because commission members
are not elected, they may be better suited to suggesting unpopular, but necessary, policy
solutions.34
b) Deliberations are private---prevents politics from getting in the way
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida International
University, visiting Professor of Political Science at American University, 2002, Discharging
Congress: Government by Commission, p. 13-14
Life on Capitol Hill has frequently become acrimonious because of escalating partisanship between
parties.48 Increasing polarization in Congress49 has led to gridlock50 and stimulated the use of
message politics,51 thereby limiting both the flexibility and the creativity of congressional action
through normal legislative channels. The logic of commissions is that leaders of both parties, or their
designated representatives, can meet to negotiate a deal without the media, the public, or interest groups
present. When deliberations are private, parties can make offers without being denounced either by
their opponents or by affected constituency groups; there is less chance to use an offer from the other side to
curry favor with constituents. Agreement to bipartisan commissions and adherence to their logic are consequential
because they represent a tacit promise not to attack the opponent. On some issues, for instance, the
promise might imply letting the commission pick the solution and relying on party discipline to encourage
lawmakers to go along even if their districts are disadvantaged by the solution; on others it might involve nothing more than a
bipartisan admission that a commission is the next step Congress should take, without any understanding that all the players are
bound ex ante by the commission’s resolution.52 Commissions also mean eschewing partisan attacks and suggest a
strong preference for reaching an agreement.53
c) Congress can use the commission as a shield for backlash.
Brookings Fiscal Seminar 9 – The Brookings Institution Fiscal Seminar, group of scholars who meet on a regular basis,
under the auspices of The Brookings Institution and The Heritage Foundation, June 2009, “The Potential Role of Entitlement or
Budget Commissions in Addressing Long-Term Budget Problems,” online:
http://www.brookings.edu/~/media/Files/rc/papers/2009/06_commissions_sawhill/06_commissions_sawhill.pdf
Commissions can be used for a variety of purposes that suit the needs of the President or ¶
the Congress. The role of some commissions is to develop a knowledge base about ¶ certain
policies or problems free from the political machinations that are an unavoidable ¶ part of the legislative
process. They can also develop policy options that members of ¶ Congress and their staff have too little time or expertise to formulate. They can serve as ¶ consensusbuilding vehicles from which members of Congress may garner political ¶ protection while
addressing contentious issues. At other times, commissions appear ¶ simply to serve as delaying measures that can be employed to defuse a political issue ¶ until a more
opportune time for action develops. The best structure for a commission – i.e. its membership, duties, duration, voting rules, ¶ etc. – will often vary
depending on that commission’s purpose, and therefore on the ¶ nature of the problem that
the commission is addressing, the state of scientific or ¶ analytical development of the topic, and the political sensitivity of the subject matter. ¶ Those factors may also
influence the nature and the standing of the commission’s ¶ recommendations. ¶ ¶ For example, in 1988, Congress established the National
Commission on Acquired ¶ Immune Deficiency Syndrome (AIDS) to determine the dimensions of a new and rapidly ¶
spreading communicable disease, assess the degree of understanding about the disease, ¶ and lay out steps toward ultimately controlling and treating the disease.
The commission ¶ focused on the science and largely ignored the potential politics surrounding
the issue.
¶
d) Commissions arrange concessions and tradeoffs that solve the link
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida International
University, visiting Professor of Political Science at American University, 2002, Discharging
Congress: Government by Commission, p. 11
As participants in an incremental decision making process, ad hoc commissions perform three important functions: they
formulate policy recommendations, they garner support for policy proposals, and they offer
concessions to appease the policy demands of various political interests.35 Commissions, therefore, are
instruments of policy incrementalism and vehicles for problem solving and conflict management, because they
define problems, initiate new responses, and mobilize public opinion.36 They themselves become part of the governance
process, playing an independent role in articulating constituents’ concerns
to the extent of forcing new
issues on to the political agenda, a perspective borne out in the work of the Commission on Civil Rights and the National
Commission on Disorders. The reports of the Civil Rights Commission transformed the civil rights debate from a concern about
whether a pattern of voting discrimination actually existed to a consideration of the merits of various proposals to halt
discriminatory practices. Similarly, the conclusions of the Commission on Disorders (the “Kerner Commission”) about white
racism shifted the focus of discourse about the causes of black unrest in America. In both instances, these changes in
orientation generated new pressures for action and altered the evaluation context of subsequent policy deliberations.37
e) Debate won’t even occur on the merits of the commission’s recommendations--empirics prove
Brookings Fiscal Seminar 9 – The Brookings Institution Fiscal Seminar, group of scholars who
meet on a regular basis, under the auspices of The Brookings Institution and The Heritage
Foundation, to discuss federal budget and fiscal policy issues, June 2009, “The Potential Role of
Entitlement or Budget Commissions in Addressing Long-Term Budget Problems,” online:
http://www.brookings.edu/~/media/Files/rc/papers/2009/06_commissions_sawhill/06_commis
sions_sawhill.pdf
reliance on the recommendations of commissions may have political ramifications
the recommendations of a commission have the effect of limiting debate
in the Congress. (Indeed, that may be the intent.) For example, the Greenspan Commission’s set of
recommendations was approved in part because proponents made a persuasive argument that the
package was of a take-it-or-leave-it form. That is, to change or substitute a different proposal for one of those recommended by the
Political. In some cases,
as well. There are some instances where
commission could lead to the collapse of a delicately balanced compromise. Similarly, because amending the package was considered dangerous to the passage of a legislative
debate on the merits of the package and its components was
largely muted. The use of commissions can also be seen as a means of taking an issue outside of the
political arena where unelected nonpartisan experts can be free to produce recommendations
or findings based upon sound and reasoned analysis rather than partisan gains. More technical issues increase
response to the looming Social Security insolvency, even the
the desirability that a panel be comprised of unelected experts rather than elected representatives.2
f) Legislators only backlash against the plan if they perceive they’ll be held personally
responsible---Commission delegation depersonalizes the process
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida International
University, visiting Professor of Political Science at American University, 2002, Discharging
Congress: Government by Commission, p. 29-30
Modern theories of legislative behavior begin with David R. Mayhew’s book, Congress: The Electoral Connection, which suggests that
congressional action has a direct electoral connection, in which legislators are single-minded
seekers of reelection, motivated primarily by self-interest.1 Individuals may enter Congress with altruistic intentions, but their behavior in
office is best explained by the “electoral connection”: the need for reelection. As a consequence lawmakers consider the
preferences of their voters, especially on issues of potentially high salience, that is, issues visible to the
public.2 Congress is thus organized to promote the goal of reelection. Members follow conservative strategies to capitalize upon particularized
benefits, to respond to organized groups, to claim as much credit as possible, and to mobilize only when they can claim credit.3 The incentive to
delegate, therefore, must have some sort of electoral connection. Follow Mayhew’s line of thought, others have developed what has come to be
known as the distributive theory of legislative organization.4 According to this view, the
decision to delegate is a function of
the political costs and benefits for which elected officials will be held electorally accountable.
Legislative action reflects a desire to maximize net benefits to districts in order to increase the chances for reelection. Delegation enables
individual legislators to protect favored constituents5 or to shift blame for political costs6 onto other organizations, but makes
them unable to claim full credit for any perceived benefits. Delegation is a function of this trade-off. Thus, congressional decisions to delegate occur
when the decrease in attributable costs is greater than the decrease in attributable benefits. R. Douglas Arnold notes that legislators are ever mindful
of the direct correlation between their individual performance and the voting booth. According to what he calls the “incumbent performance rule,”
voters tend to punish legislators for undesirable effects only if there are both identifiable
governmental actions and visible individual contributions. Responsibility for unpleasant
decisions is therefore frequently delegated to the president, bureaucrats, regulatory commissions, judges, state and local officials,
or temporary commissions as a procedural strategy for “masking” legislators’ individual
contributions.7 Such delegation is especially prevalent when there is a desire to shed policymaking tasks that are too
onerous or when dealing with issues that are likely to provoke disputes with voters. Challengers will take full
advantage of reminding citizens about issues as traceable as legislative salaries, for example.
Prefer Our Ev – 2NC
Prefer our ev – political science data proves Congress appoints commissions to avoid
political fallout
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida International
University, visiting Professor of Political Science at American University, 2002, Discharging
Congress: Government by Commission, p. xv
There is no easy answer to why Congress
creates ad hoc commissions, because the circumstances of their creation are quite
render nonpartisan recommendations:
to pacify, to promote incremental decision making, to build support for proposals, or to obtain consensus
among different interests. Commissions are often hybrids that result from a multitude of congressional incentives. While disputes over
the desirable or proper extent of delegation are commonplace, our understanding of such congressional action is arguable. The literature
contains several variations on the theme that policymaking is sometimes so costly—both in terms of
expertise and for political reasons—that it must be delegated to others. A number of political scientists
and economists share the assumption that people’s motives in the political arena are essentially the same as their
motives in the marketplace, resting on rational calculations of self-interest.8 The problem of delegation is
frequently derived from economic models,9 portraying delegation as an advantageous way for
lawmakers to favor constituents,10 to minimize political losses,11 or to shift blame.12 Also considered important are the
complex and vary widely. Many variables go into the decision to entrust those bodies to
relationships that are assumed to exist between means and ends, which enable the lawmaker to choose the most rational means to the specified end,
as well as the relationships between the costs and benefits involved, in the interest of efficiency.
CP Captures Link Turns – 2NC
Commission action captures their link turns---anyone in Congress who supports the
plan will claim credit from the commission---it just takes the negative politics out of
base closures
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida International
University, visiting Professor of Political Science at American University, 2002, Discharging
Congress: Government by Commission, p. 123-124
Any congressional action which reduces and relocates functions and civilian personnel positions involves the most conspicuous long-run allocations of
resources. Because
it necessarily means clear winners and losers, the policymaking process is
marked by a high degree of visibility, conflict, and compromise among a broad spectrum of
political actors. Congress responds to this sort of redistributive dilemma by masking legislators’
individual contributions and delegating responsibility for making unpleasant decisions to a
commission. In this case delegating is a technique devised to transfer responsibility but still make it
possible for beneficial outcomes to be attributed to individual legislators . Members avoid
blame by saying the decision is out of their hands; they protect themselves from going on record
in favor of something negative to their district. “Handing over federal authority to the Base Closure
and Realignment Commission to downsize the military infrastructure was clearly a way to take
the politics out of the issue,” a Hill staffer commented. “ Base closing is a political hot potato , and the last thing
somebody wants to do is to vote to have a base closed in their district. By letting Congress deny the commission’s recommendations, rather than
support it, members can cover their backsides.” Shifting
the blame for any negative side effects disguises the pain
to constituents. This method enables lawmakers to vote for the general benefit of the country
without ever having to support specific costs to their constituents. In the strong words of Representative Don Young (RAlaska), “Placing the national interest ahead of the wishes of a particular congressional district is socialism.”44
AT: Obama Gets the Blame
You’re wrong –
a) Your evidence assumes that the PCLOB is still under the authority of the executive
which isn’t the case anymore – that means that Obama won’t be responsible.
Dalal, J.D. Yale Law, 2014 Anjali, ARTICLE: SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE, 2014 Mich. St. L. Rev. 59
[*122]
Congress responded
quickly
by passing legislation in August 2007 to significantly
restructure the PCLOB . 280 Under the new statute, the PCLOB is an independent agency to be
composed of five members, four of whom are part time from outside the government and
the fifth, the chairperson, is the full time member . 281 All five members are appointed by the
President and confirmed by the Senate for a term of six years to prevent wholesale capture
by a given Administration . 282 Its authorizing statute mandates that no more than three
members can be from one political party with the other two chosen by the White House
under consultation with Senate and House minority leadership . 283
b) And blame vs influence – even if congress blames Obama it doesn’t link because he
didn’t have to lobby for votes and expend his capital which is what our disad is about.
Aff
Solvency
Say No – 2AC
Congress will say no to the committee – previous rulings show no traction can be
gained.
Schlanger, Henry M. Butzel Professor of Law, University of Michigan, 2015 Margo, ARTICLE:
Intelligence Legalism and the National Security Agency's Civil Liberties Gap, 6 Harv. Nat'l Sec. J. 112
The PCLOB's two Republican appointees disagreed with the three Democrats both on the merits and on the
Board's role. One wrote:
This legal question will be resolved by the courts, not by this Board,
which does not have
the benefit of traditional adversarial legal briefing and is not particularly well-suited [*169] to conducting de novo review of long-standing statutory interpretations. We are
much better equipped to assess whether this program is sound as a policy matter and whether changes could be made to better protect Americans' privacy and civil liberties
the Democratic PCLOB members also addressed the policy considerations on their own
merits, and urged that those considerations be implemented as new law. Having described the telephony metadata
while also protecting national security. 255 To be clear,
program as extending beyond current statutory parameters, the PCLOB emphasized that the solution was not simply shoring up FISA: The Board also recommends against the
enactment of legislation that would merely codify the existing program or any other program that collected bulk data on such a massive scale regarding individuals with no
suspected ties to terrorism or criminal activity. While new legislation could provide clear statutory authorization for a program that currently lacks a sound statutory footing, any
new bulk collection program would still pose grave threats to privacy and civil liberties. 256 The telephony metadata program was insufficiently central to the counterterrorism
enterprise to justify those threats, the Board argued. "Given the significant privacy and civil liberties interests at stake, Congress should seek the least intrusive alternative and
should not legislate to the outer bounds of its authority." 257 It then proceeded to make several smaller gauge recommendations about operation of the telephony metadata
program, presumably in case Congress rejected the first recommendation, and continued the program in existence. No experience facilitates evaluation of the PCLOB's
effectiveness, but its 215 report is certainly adding to the current pressure for a new wave of intelligence reform. On the other hand, the independence exhibited by its first
report may induce subsequent appointing Presidents to choose tamer members.
abroad, under FISA § 702, similarly
The PCLOB's second report, about targeted surveillance of foreigners
looked at both law and policy. But on this
members and inconsistent
[*170]
one
, a divide among PCLOB
language made the message much less clear. Much of Section 702
surveillance was appropriate, the report said. But: Outside of this fundamental core, certain aspects of the Section 702 program raise questions about whether its impact on U.S.
persons pushes the program over the edge into constitutional unreasonableness. Such aspects include the scope of the incidental collection of U.S. persons' communications,
the use of "about" collection to acquire Internet communications that are neither to nor from the target of surveillance, the collection of MCTs that predictably will include U.S.
persons' Internet communications unrelated to the purpose of the surveillance, the use of database queries to search the information collected under the program for the
communications of specific U.S. persons, and the possible use of communications acquired under the program for criminal assessments, investigations, or proceedings that have
The Board declined to decide whether the 702 program was
constitutional, statutorily authorized, or not. "[R]ather than render a judgment about the constitutionality of the program as a whole, the
no relationship to foreign intelligence. 258
Board instead has addressed the areas of concern it has identified by formulating recommendations for changes to those aspects of the program." 259 It elaborated: Because
the same factors that bear on Fourth Amendment reasonableness under a 'totality of the circumstances' test are equally relevant to an assessment based purely on policy, the
Board opts to present its proposals for changes to the Section 702 program as policy recommendations, without rendering a judgment about which, if any, of those proposals
might be necessary from a constitutional perspective. 260 The Board emphasized the room this approach opened to it. Constitutional avoidance, it stated: permits us to offer
the recommendations that we believe are merited on privacy grounds without making finetuned determinations about whether any aspect of the status quo is constitutionally
fatal, and without limiting our [*171] recommendations to changes that we may deem constitutionally required. 261 But other language the report used sounded rather more
accepting. Rather than ducking the legal issues, on other pages it seemed that the Board was worried not whether the 702 program crossed the constitutional line, but whether
it skirted a bit too close for comfort, while still remaining on the lawful side. For example: [C]ertain aspects of the Section 702 program push the entire program close to the line
of constitutional reasonableness. . . . With these concerns in mind, this Report offers a set of policy proposals designed to push the program more comfortably into the sphere of
reasonableness, ensuring that the program remains tied to its constitutionally legitimate core. This reading of the report as ratifying the legality (rather than declining to address
the legality) of the 702 program was pushed by the Board's two Republicans, Rachel Brand and Elisebeth Collins Cook, each of them a former Bush Administration head of the
Justice Department's Office of Legal Policy. 262 They emphasized in a separate statement that: The Board makes a few targeted recommendations to address concerns raised by
. . . two aspects of the program. We stress that these are policy-based recommendations designed to tighten the program's operation and ameliorate the extent to which these
aspects of the program could affect the privacy and civil liberties of U.S. persons. We do not view them to be essential to the program's statutory or constitutional validity. 263
Two members, Chair David Medine and former Judge Patricia Wald, opined in a separate statement that the recommendations were needed not merely to avoid a potential
legal problem, but to solve both constitutional and statutory infirmities already extant: [W]e feel strongly that the present internal agency procedures for reviewing
communications and purging those portions that are of no foreign intelligence value prior to use [*172] of the information are wholly inadequate to protect Americans'
acknowledged constitutional rights to protection for private information or to give effect to the statutory definition of foreign intelligence information, which, as discussed
below, provides a more stringent test for information relating to Americans. 264 Evidently, however,
they were unable to persuade their
colleagues , and their legal conclusions were portrayed in media coverage as a dissent-type
minority position . Indeed, the Board was widely perceived as having blessed the program. The Washington Post, for example, summarized the report as
"conclud[ing] that a major National Security Agency surveillance program targeting foreigners overseas is lawful and effective but that certain elements push 'close to the line' of
being unconstitutional." 265 The fairer reading of the previously-quoted language of the report--that it avoided any determination on the legal question by an incompletely
theorized agreement as to recommendations--received no play in the media.
The PCLOB's ten recommendations relating to the
702 program have not received nearly as much attention
as its 215 recommendations--
lacking the strong
legitimating language of rights and compliance, its policy ideas seem not to be gaining much
traction.
Say No – 1AR
The counterplan won’t get the aff passed –
1. Internal disagreements – differing ideologies taint the push by watering it down in
partisanship and internal bickering.
2. Minority Position – even if the board is able to agree the plan is a good idea they’ll
be written off as being a dissent opinion and lacking in legitimacy and push.
That’s Schlanger – Err aff – he does empirical analysis on the boards past efforts and
concludes they all were failures – there is no reason why the board will be any more
effective now.
3. And they lack funding to provide any teeth.
Anderson, J.D. Harvard Law, 2014 Tyler, ARTICLE: Toward Institutional Reform of Intelligence Surveillance: A
Proposal to Amend the Foreign Intelligence Surveillance Act 8 Harv. L. & Pol'y Rev. 413
Many critics of the act have already suggested a watchdog agency. For example, Jack Balkin has argued that new legislative
and judicial oversight based on "prior disclosure and explanation and subsequent regular reporting [*431] and minimization" 119 should be coupled
with the creation of a new, independent agency charged with oversight. 120 Balkin describes such an agency as "a cadre of informational ombudsmen
within the executive branch--with the highest security clearances--whose job is to ensure that the government deploys information collection
techniques legally and nonarbitrarily." 121 This would heighten independent oversight and ensure congruence between the spirit and letter of the FAA
and the FAA's application. Congress
designed the Privacy and Civil Liberties Oversight Board (PCLOB) to
perform just such a function following public outcry surrounding the passage of the PATRIOT Act, and later granted
it independent status;
however, as of today the PCLOB still has little teeth (for reasons including its
historical lack of funding ). 122 In fact, the PCLOB itself recently suggested that it requires
more access to information to adequately perform its job . 123 Even before the Snowden disclosures, several critics
of FISA had already suggested the PCLOB be strengthened so that it could effectively monitor intelligence surveillance activities. 124
4. Even Obama sidelined the group
Ackerman, 2014 Spencer, The Guardian Correspondent, “NSA surveillance: privacy board denies being sidelined by Obama”
1/16/2014 http://www.theguardian.com/world/2014/jan/17/nsa-surveillance-privacy-board-denies-being-sidelined-by-obama
Additionally the
PCLOB has been overshadowed by a surveillance review panel Obama
handpicked in August , whose recommendations have captivated a Washington debate the
PCLOB has yet to influence
organization. “It
– and one of those recommendations was to replace the PCLOB with a more institutionally powerful
appears as if the president is thumbing his nose at the PCLOB’s
recommendations ,” said Angela Canterbury of the Project on Government Oversight, a watchdog group. Julian Sanchez , a
privacy researcher at the Cato Institute, said: “The timing here really seems like a bit of a slap
to the PCLOB ; you would think if only for the sake of appearances the White House would
have waited a few weeks for the publication of their full analysis before announcing a policy agenda. “But the president may have
decided it would be even more awkward to announce the rather flaccid reforms we've been led to expect after two of the government's own expert
panels have concluded a more serious overhaul is needed.” While
the PCLOB gave Obama and Biden their recommendations
about bulk domestic phone records collection and the Fisa court, the
board did not advise the president about its
recommendations on the NSA’s foreign-directed mass surveillance
under Section 702 of the Fisa
Amendments Act. That surveillance dragnet – which includes communications between foreigners and Americans, and through which the NSA has
authority to search for Americans’ identifying information – will be the subject of a follow-on report from the PCLOB. Medine said the board still did not
have a publication date. “When I say we’re going to turn to 702 it’s not that as if we’re turning from scratch, it’s based on the study, the research, the
input we’ve received. We’ll turn to the 702 report as soon as we finish the 215 report,” Medine said, using a bureaucratic shorthand for mass domestic
phone metadata collection.
The PCLOB has had a rocky first decade . Despite being created in 2004 as a post-9/11 intelligence
reform the board has not done any substantive work until this year,
struggling with independence from the White
House and persistent vacancies that have left it unable to function as intended. “It’s just
been a total frustration,”
former New Jersey governor and 9/11 commissioner Tom Kean, one of the architects of the board, said in
2012 for a New York Times story about the board’s “troubled life”.
5. And if their politics links are true then it proves that congress will be too polarized
and anti-plan to pass it. And cross apply all of this to the politics link debate – say no is
a reason why it won’t alter the political landscape.
6. The group is a sham – it’ll just provide cover for the fed.
Moran, 2013 Rick, American Thinker Correspondent, “Obama to talk to sham privacy board about NSA snooping” 6/21
http://www.americanthinker.com/blog/2013/06/obama_to_talk_to_sham_privacy_board_about_nsa_snooping.html
The Hill has the background on the Privacy and Civil Liberties Oversight Board (PCLOB), a group that was created 8 years ago and
just last month sawit's 5th and final member confirmed. Does this sound like a sham to you?
The panel was first suggested in the 2004 report by the 9/11 Commission, and was first launched that year. In 2007, the
group was granted independent powers, but both Presidents George W. Bush and Obama resisted nominating members for
years.
The panel operated without offices or staff for years , and the fifth and final member --
Chairman David Medine --
was only confirmed last month , by a narrow 53-45 party line vote. The board still lacks a
website , and until Medine's appointment, had only two federal staffers pulled from other government agencies. It had held only two meetings
before a briefing earlier this week, the first since the top-secret NSA programs were revealed by 29-year old defense contractor Edward Snowden.
Still, the White House believes that meeting with the panel can help assuage privacy concerns
voiced since the revelation of the NSA programs. The senior administration official said the board's functions included
"ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties." In an interview with the Associated Press,
Medine said senior officials at the NSA, FBI, and Justice Department explained how some of the NSA programs functioned in a meeting with the five
panelists Wednesday. "Based on what we've learned so far, further questions are warranted," he told the wire service. Medine also said the group
plans a public meeting on July 9, and will publish a report that includes analysis of and recommendations for the NSA programs. By law, the board is
required to report to Congress not less than semiannually.
This is a crock. Obama knows why this board was
created - to give cover to the administration - and will use it to "assuage" the fears about
privacy from American citizens. Just one more dishonest attempt to excuse the massive
violations of privacy represented by the surveillance programs.
7. Empirically proven the board will just get written off
Saenz, 2014 Arlette, abcnews correspondent, “White House Rejects Board Urging to Halt Surveillance”
http://abcnews.go.com/blogs/politics/2014/01/white-house-rejects-board-urging-to-halt-surveillance/
The White House sharply disagreed today with a report from an oversight board that
concluded the government's surveillance program is illegally collecting phone records
of
Americans and recommended the practice be discontinued. "
We simply disagree with the board's analysis on the
legality of the program ," White House Press Secretary Jay Carney said. The report by the Privacy and Civil
Liberties Oversight Board comes one week after President Obama introduced his suggestions
for reforming the National Security Agency's surveillance practices, including transferring the storage of metadata away from the
government. The president met with the Privacy and Civil Liberties Oversight Board in the weeks prior to his final decision. The PCLOB's
majority maintains that the Bush and Obama administrations have subverted the law , applying a
section of the PATRIOT Act which the administration claims allows the NSA to collect and store vast troves of data on Americans' phone calls. What the
government has been doing, the panel says, "bears almost no resemblance" to the text of Sec. 215 of the PATRIOT Act, and is therefore illegal.
8. Commissions on already politicized issues don’t solve and cause greater backlash --empirically proven
Campbell, 2002 – Colton C. Campbell, Associate Professor of Political Science at Florida International University, visiting
Professor of Political Science at American University, 2002, Discharging Congress: Government by Commission, p. 134
The creation of an ad hoc commission should be the outcome of a wellconsidered decision that
is better suited to resolving the policy problems in the field of its assignment than is the normal
legislative process. In choosing to delegate, Congress should closely examine the advantages and
disadvantages of using ad hoc commissions and check that the applicability of using a commission has been
established with reasonable confidence.20 Many in Congress look to the Base Closure and Realignment Commission as a
template. But the base-closing process cannot be replicated across all issues. Government by commission is
not a panacea. It is important to distinguish between those commissions set up to recommend
solutions to specific problems and those whose mandates are so broad that they can succeed
only if lawmakers have already begun to form a consensus.21 Sharply divided reports do little
to resolve problems. The National Economic Commission (1988–1989), modeled on the National Commission on Social Security
Reform (1981–1983), was expected to produce bipartisan recommendations on how to reduce the
federal budget deficit. Its members divided along partisan lines and issued a majority report
accompanied by a sharp dissent from the minority. The result was a continuation of previous
conflict .22 The Pepper Commission (named after Representative Claude Pepper [D-Fla.], an advocate for the elderly) was intended to
produce a consensus on reform of the American health care system. Its members could not reach a consensus and issued a
divided report, which did nothing to promote either consensus or action in Congress.23
9. Congress says no---Commission recommendations don’t get adopted unless there’s
already consensus about what policy changes need to be made
Mayer 7 – Kenneth R. Mayer, Professor of Political Science at the University of WisconsinMadison, December 2007, “The Base Realignment and Closure Process: Is it Possible to Make
Rational Policy?,” online:
http://users.polisci.wisc.edu/kmayer/Professional/Base%20Realignment%20and%20Closure%20
Process.pdf
The second question is whether the BRAC model can succeed in other policy areas, where Congress
has been similarly unable to act. The success of the BRAC process has spurred many efforts to
replicate it on other controversial issues. In 1999, I argued that independent commissions have a
poor record; there have been very few instances where they have actually resolved legislative
impasses (Mayer 1999).5 The problem is that legislators are usually reluctant to delegate substantial
policy authority, at least without strong procedural safeguards and ongoing monitoring. The
conditions that made BRAC successful were the consensus on the goals, agreement about what
precise policy steps were necessary, and the narrow range (at least initially) of the policy making
authority. These conditions are rarely present, and clearly do not apply to, say, efforts to create BRAClike commissions on entitlement reform, where there is intense controversy over both goals and
specific policies.
10. Any risk that the plan won’t be adopted means that there is a 100% risk of the affs
impacts which outweigh the net benefit.
PCLOB Says No – 2AC
The board won’t agree to push the plan – other agencies will interfere and prevent
them from crafting independent decisions.
Davis, Previous member of the PCLOB, 2007 Lanny, Lawyer, The Hill Correspondent, “”Why I Resigned From
the President's Privacy and Civil Liberties Oversight Board — And Where We Go from Here” https://thehill.com/blogs/punditsblog/the-administration/34214-why-i-resigned-from-the-presidents-privacy-and-civil-liberties-oversight-board--and-where-we-gofrom-here-
I had thought that the hybrid or even contradictory nature of that compromise could be reconciled if senior levels of
the White House — up to and including the highest level — insulated the Board and insisted on three words:
"Leave them alone." But I had underestimated the culture of the vast array of alphabet
soup agencies and bureaucracies in the national security apparatus that would resist that
concept of independence , or at least be unable to resist the temptation to control and
modify the Board's public utterances
House staffing structure. This
so long as they were able to — i.e., so long as the Board was seen as part of the White
phenomenon of control and management by the White House of entities
considered to be part of the White House is neither surprising
administration. Those
nor that unique to this particular Republican
who view this as a partisan issue to criticize a Republican administration and expect it would be
completely different under a Democratic one are missing the larger point . I disagreed strongly with the
view that just because the PCLOB was part of the White House it had to be part of White House management and control, although I do not question
the motives of good faith of those who had that opinion. I was heartened to learn that the current White House counsel, Fred Fielding, who was a
member of the 9/11 Commission and had supported an independent PCLOB, agreed at least in part that the Board's report to the Congress should not
be substantively modified by White House or administration officials. And as a result Mr. Fielding admirably supported restoration of those deletions,
some of which was also supported by other Board members. But the central question remains: Can this hybrid structure work? Fred Fielding cannot be
expected to spend all his time intervening on behalf of the Board. And the
White House culture of control and
management of the Board is likely to continue
so long as the Board continues to be part of the white House. It
is
possible, I suppose, that it could work if the president himself insisted on the Board's independence,
i.e., if
he put out an executive order confined to those three words, "Leave them alone." But even then it is
possible to imagine White House staff and executive agency officials would still find a way to
try to influence the Board, as still part of the White House, while still believing they were
"leaving the Board alone."
CP Can’t Solve – 2AC – Big Stick Aff
The CP isn’t enough – it won’t create effective restrictions.
Schlanger, Henry M. Butzel Professor of Law, University of Michigan, 2015 Margo, ARTICLE:
Intelligence Legalism and the National Security Agency's Civil Liberties Gap, 6 Harv. Nat'l Sec. J. 112
Committee members (Senators) evidently believed that the congressional disclosure it urged would
facilitate liberty as well as accountability, allowing future lawmakers to intervene where
salutary , using either soft or hard methods, to appropriately balance liberty and security. As Loch Johnson- first
Senator Church's special assistant, then the first staff director of the House Subcommittee on Intelligence Oversight, and then an intelligence scholar-has summarized, "The
purpose of these new arrangements was to prevent a further erosion of
American liberties at the hands of the intelligence agencies." 293 Congressional disclosure has
not in practice fulfilled these hopes . New disclosure norms have indeed shifted information,
power, and political risk to the White House and the Congress 294 (although the mandate [*179] operative since 1980, that
the Intelligence Community "keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a
covert action" 295
has not always been scrupulously honored ). But obstacles to development of
legislative expertise and the ordinarily low political salience of intelligence --both themselves rooted in
secrecy--have
meant that congressional interventions have not played much of a civil-liberties-
protective role . 296 Only once, in 1994, has a statute unambiguously increased procedural protections against surveillance--and that
amendment was passed in large part to shore up executive authority. 297 By contrast, the
times, to
executive branch has been able, several
elicit congressional acquiescence for statutes to expand surveillance authority --the USA
PATRIOT Act, the Protect America Act, [*180] and the FISA Amendments Act. 298 (The last of these included some protections along with the expansion
of authority. 299) It is possible that the Snowden disclosures have shifted the political economy enough for Congress to pass a rights-protective
measure in response, but the current prospects of serious legislated reform are dim and getting dimmer. 300 . Thus whatever the Church Committee's
ambitions or expectations for their congressional successors, congressional
disclosure has increased intelligence
accountability but has not so far provided an impetus for responsive additional civil liberties
protections . The civil liberties gap left by the limited ambit of constitutional law, and of FISA,
remains . Present efforts in Congress to update the surveillance rules to be more libertyprotective in the era of big data may succeed and align "can" with the reformers' ideas about
"should "--for a while and for high-salience issues. But even if this happens , it is inevitable
that for issues that have not made it into the press, or for issues in the future , there will
always be a disjunction between what is legal and what even members of Congress
themselves would find to be, on full and public consideration, appropriate policy. Areas of
surveillance practice that have not so far leaked--or in which executive practice changes--will
remain, and so, concomitantly, will at least some civil liberties gap.
CP Can’t Solve – 1AR – Big Stick Aff
The CP won’t be enough to facilitate effective reform – absent the plan the NSA will
sidestep the cp’s restrictions which means they can’t solve any of the aff – that’s
Schlanger. And NSA secrecy will undermine the ability for the PCLOB to garner
sufficient info to cause congressional legislation.
Setty, Professor of Law and Associate Dean for Faculty Development & Intellectual
Life, Western New England University School of Law, 2015 Sudha, SYMPOSIUM: Surveillance, Secrecy,
and the Search for Meaningful Accountability, 51 Stan. J Int'l L. 69
B. Congressional Efforts at Oversight and Accountability Enforcement The
the NSA Metadata Program is not fully known
extent of congressional knowledge regarding
to the public and has been the subject of significant debate. Nonetheless, even
assuming that Congress was sufficiently informed as to the potential reach of the PATRIOT Act with regard to surveillance
59 and, therefore, that the statutory authority for the bulk data collection and storage was sound,
the ability of Congress to effect
significant and meaningful ex post oversight appears to be severely limited.
hearings and investigations have been a powerful tool to rein in executive branch overreaching. 60 However, it
Historically, congressional
seems that the extreme
secrecy surrounding the NSA surveillance programs undermined the efficacy of these
oversight powers , to the point that they may have been reduced to an ersatz form of
accountability . One prominent example stems from a Senate oversight hearing on March 12, 2013, in which Senator Ron Wyden
specifically asked Director of National Intelligence James Clapper
if the NSA was systematically gathering
information on the communications of millions of Americans. 61 Clapper denied this , yet subsequent revelations confirmed that
the broad scope of the data collection included metadata for telephonic communications, as well as content data for emails, texts, a nd other such
writings. 62 After
public discussion of the discrepancy in his testimony, Clapper commented that he gave
the " least most untruthful" answer possible under the circumstances . 63 Senator Wyden
expressed disappointment and frustration that even while under oath at an oversight
hearing, Clapper misled the Senate . 64 The ability for congressional oversight is further
hampered by a general lack of access to information about the details of the NSA Metadata Program 65
and [*82] lack of ability to discuss publicly whatever knowledge is shared with Congre ss. 66 In fact,
it remains unclear whether senators, including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of the
lapses in NSA procedure until after such information was leaked to news sources . 67 Further
revelations indicate that administration statements made to Congress even after the Snowden disclosures were not entirely accurate. 68 These
examples are not determinative, but taken together , they raise significant doubt to the
extent of accurate information regarding surveillance programs being made available to
congressional oversight committees, and whether the oversight committees can function as
effective accountability measures 69 without the benefit of illegally leaked information such
as the Snowden disclosures.
Recent reforms prove – the PCLOB won’t be effective at drafting meaningful change
because its bought out by corporate interests – only the plans full fledged reform can
solve.
Blunden, 2/9/2015 Bill, Alternet correspondent, “Clear Proof Obama's Surveillance Oversight Board Is a Pathetic
Sideshow” http://www.alternet.org/news-amp-politics/clear-proof-obamas-surveillance-oversight-board-pathetic-sideshow
In the aftermath of the Snowden revelations President Obama made a big show of ordering
changes to how American spies operate. Sadly, the reforms implemented by the U.S.
intelligence community reveal that White House officials have opted for a bunch of cosmetic
gestures
as the NSA adds 2,880,000 square feet of real estate and Obama openly boasts to Chinese leaders about tripling American cyber forces
to 6,000 by 2016. On the whole not much has changed. Government spies are still bulk collecting telephone metadata and international communiqués.
Spies be spying, that’s what they do.
To see why this is the case, let’s dig into some details. Specifically,
check out
the reform scorecard written up by the Privacy and Civil Liberties Oversight Board, an agency within
the executive branch. The board recently published its evaluation of how the government instituted its
recommendations regarding NSA spying. Over a year ago the board made a series of proposals for amending programs based
on Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act. Section 215 covers telephone metadata collection and
Section 702 deals with intercepting international communications that cross American borders. The board provided a summary of its recommendations
in table form detailing the measures that were instituted. While there have been modest steps taken to address issues like transparency and introduce
so-called privacy “safeguards” what’s really interesting are the suggestions that were largely ignored. The
oversight board reports
that the recommendation to “End the NSA’s Bulk Telephone Records Program” hasn’t been
implemented, and neither has the recommendation to “Develop a Methodology to Assess the
Value of Counterterrorism Programs.” What we’re witnessing is Reform Theater, a sort of
kabuki act intended to provide the impression that, in the wake of Snowden’s revelations,
something is being done. Officials create the perception of action by occupying themselves
with narrow aspects of mass interception and this is intentional. They wouldn’t dare do
anything substantial that would threaten the gears of the surveillance state. Instead they’ll
leave Big Brother’s infrastructure in place and dither around the edges. Nor would they dare
establish metrics to quantify the usefulness of mass interception. Doing so would only
expose U.S. counter terrorism initiatives for the frauds that they are, leading the public to
question the NSA’s global panopticon or the FBI’s habit of cultivating terrorism plots.
Whose
national security do these secret programs safeguard? Remember J. Edgar Hoover’s “Do Not File” stash or Richard Nixon’s “Enemies” list? Recall how
Truman wrote his wife about Hoover, lamenting that “all Congressmen and Senators are afraid of him.” Noam Chomsky spells it out: “Policy must
assure the security of state authority and concentrations of domestic power, defending them from a frightening enemy: the domestic population,
which can become a great danger if not controlled.” Chomsky’s findings are in line with the conclusions of the NSA’s own Snowden: “These programs
were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.” The
NSA is
aiming for " global network dominance ," a term no doubt derived from the Pentagon's notion
of " full spectrum dominance ." The hyperbolic rhetoric of the Department of Defense in turn reflects the
broader agenda
described by Snowden and Chomsky,
a pathological desire to maintain control both at
home and abroad. Who benefits? Profound sources of influence outside of government;
corporate factions that transmit their wishes through the American "Deep State." Anyone who doubts
this should note how politicians eagerly lined up to audition for the Koch brothers' network of some 300 donors, an organization that has budgeted
close to a billion dollars for the 2016 election cycle. Why did Mitt Romney drop out of the 2016 presidential race? Because funders denied their
support. All told there
are over 1,300 billionaires in the United States and the politically minded
members of this demographic—both Democrats and Republicans— have essentially succeeded in state
capture . The two-party system of the United States is actually a one-party system: the
corporate party. And U.S. spies are the Praetorian Guard of these “deciders.”
nothing on the whole is being done to rein in mass interception, that assessment would be accurate. The
So if it seems like
NSA’s all-seeing Eye of
Providence, and the even larger corporate surveillance apparatus that supports it, are
incredible tools of control. The easiest way for leaders to manage public outcry is to put on
an elaborate performance of mock reform. It appeases Main Street without offending the
deep sources of wealth and power that tread the corridors of the Deep State.
CP Can’t Solve – 2AC – Sarbanes-Oxley
The counterplan doesn’t solve the aff –
1. Authority – the PCLOB doesn’t have authority over the plan, the PCAOB does –
means they won’t be able to get the plan adopted.
2. Empirically commissions won’t solve – they’re perceived as weakening US
competitiveness.
Romano, Professor of Law at Yale, 2008 Oscar, “The Sarbanes-Oxley Act at a crossroads”
http://www.rieti.go.jp/en/events/08062501/pdf/Romano_Paper.pdf
Only a few years post-enactment, however, widespread
dissatisfaction has been expressed over the
regulatory burden imposed by SOX. In particular calls for rolling back the most burdensome
provision of SOX have been occurring with increased frequency, receiving the endorsement
of prominent government and private commissions . The commission’s recommendations
have been informed by a perceived weakening in the competiveness of US capital markets
and the disproportionate impact of SOX on smaller public firms. Their reports point, with varying
degrees of emphasis, to
a significant decrease in the number of new foreign listings and public
offerings on US exchanges, and a commensurate increase in foreign delistings and domestic going private transactions, post-SOX.
3. Doesn’t solve the economy internal links – certainty is key to resolve investor
confidence.
CCIQ 12 Chamber of Commerce and Industry, “Businesses require certainty to grow confidence,”
https://www.cciq.com.au/news/businesses-require-certainty-to-grow-confidence/
According to the latest Commonwealth Bank CCIQ Pulse Survey of Business conditions,
business confidence
in Queensland
has been severely impacted by uncertainty as a result of national and global economic
concerns. Following the surge in business confidence reported in March, the CCIQ Pulse Survey of Business Conditions June
quarter results have highlighted just how fragile the confidence of business owners and
operators is as they face the challenges of a weakening two speed national economy, overseas
uncertainty, a high Australian dollar and increased costs linked to the carbon tax, wage increases and productivity
losses. CCIQ Chief Executive Officer Stephen Tait commented, "Following the state election in March, Queensland businesses
expressed growing optimism as the incoming state government promised to stimulate the Queensland economy, reduce business
costs and ease the burden of regulation." "As you work through the latest findings, it is clear from the responses we have received
from businesses across the state, that the uncertainty
in national and global markets is key to
understanding the drop in confidence. "Time and time again, businesses were highlighting
uncertainty over the impacts of the carbon tax, mineral resources rent tax, business operating costs and a continued
drop off in consumer spending as the reasons for loss of confidence. "What businesses
Queensland
in
really require is a period of economic certainty that will enable them to plan their
future with confidence and security."
CP Can’t Solve – 1AR – Sarbanes-Oxley
The counterplan doesn’t solve the aff –
1. Influence – the PCLOB won’t be able to lobby – they don’t know anything about the
act and won’t be taken seriously.
2. Can’t resolve our internal links even if they get the plan passed –
a) Perceptions – commissions set off the perception that the US economy is in the
tanks – causes investor pullout which is key to solve the aff – that’s Romano.
b) Certainty – businesses won’t be able to compete due to regulatory uncertainty over
the plan – that’s CCIQ
3. Congress won’t listen to commissions input on Sarbanes-Oxley – empirically proven
Bhattacharya, 2003 Utpal, briefly noted correspondent,
http://object.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-noted.pdf#page=1
Without awaiting the Commission’s recommendation, Congress included in the SarbanesOxley Act a provision making ceo and cfo certification mandatory for all publicly listed
firms. The
Sarbanes-Oxley Act, which was enacted in July 2002, put teeth in the requirement by making the penalty for willfully certifying false earnings reports
punishable by a maximum penalty of 20 years in prison, a fine of $5 million, or both.
Delay – 2AC
The counterplan results in mass delays – nobody wants to listen to it.
Stanley, Senior Policy Analyst, 2013 Jay, ACLU https://www.aclu.org/blog/small-significant-privacy-oversightinstitution-almost-reality-after-pathetic-story-delay
Despite the mouse-versus-elephant disparity
in scale between
the PCLOB and the security
establishment it is charged with overseeing, the path to its creation is a pathetic story of foot-dragging
and delay . That painfully long road reflects not only the extreme partisan gridlock of the
times , but also a distinct lack of will within the executive branch to stand up a truly
independent oversight body that could risk making the administration look bad , as well as
the Bush and Obama administrations’ general deference to the interests of the national
security establishment over checks and balances and civil liberties protections.
Delay – 1AR
The counterplan causes mass delay even if it can get the plan done –
a) Mouse vs elephant disparity – the PCLOB will have to fight an uphill battle to even
get the plan adopted – that’ll take years of lobbying
b) Foot-dragging – gridlock will cause the board to be pushed onto the backburner –
delays in setting it up prove.
CP’s delayed by years
Campbell, 2002 – Colton C. Campbell, Associate Professor of Political Science at Florida
International University, visiting Professor of Political Science at American University, 2002,
Discharging Congress: Government by Commission, p. 1-2
Generally speaking, a
commission’s mandate includes a termination date more than three years after
the date of creation or at a specified date upon submittal of its recommendations or alternatives,
which is anywhere from thirty to ninety days after its final report to Congress. Commissions come in
various sizes and shapes, with membership ranging anywhere from nine to twenty commissioners, twelve to fifteen being the normal number of
members. The final number of commissioners will generally accommodate equal appointments by the majority and minority in both the House and
Senate as well as by the president.2
Links to Politics
Links to Politics – 2AC
The cp still links to ptx – even if congress likes the commission it’ll ignore it and still be
drawn into debates.
Chapman, 2014 Steve, member of the Tribune's editorial board, “Bipartisan commissions are a waste of time Politicians set
them up but don't listen to them” 1/26 http://articles.chicagotribune.com/2014-01-26/opinion/ct-oped-chapman-012620140126_1_privacy-board-civil-liberties-oversight-board-president-barack-obama
In the polarized atmosphere of Washington, there is one thing that both parties can usually
agree on: convening independent, bipartisan panels of respected experts to devise solutions to tough problems.
Actually, there's one more thing they can usually agree on: ignoring what those groups
recommend.
Blue-ribbon panels were much in the news this past week. The Presidential Commission on Election Administration came out
with a report making the case for expanding early voting options, allowing online voter registration and eliminating long lines at the polls. The
little-known Privacy and Civil Liberties Oversight Board issued an analysis concluding that the
National Security Agency's domestic phone records surveillance program is illegal and
ineffectual. Know what else is ineffectual? Recommendations from groups like these.
Perhaps
the most famous is the 2010 National Commission on Fiscal Responsibility and Reform, known
as Simpson-Bowles. It is habitually celebrated by Republicans and Democrats who have
somehow managed to avoid enacting most of the measures it proposed. Likewise, the 2006
Iraq Study Group got positive reviews when it called for a phased withdrawal of U.S. forces from the country . But in the
nation's capital, positive reviews pack all the firepower of a T-shirt cannon.
President George W.
Bush did pretty much the opposite of what the study group proposed. The lesson of these
boards is that if they endorse what the crucial players in Washington already want to do,
their proposals will come into being, and if not, they won't. But we could cut out the
middleman and ask Congress and let our leaders adopt their preferred policy without waiting
for recommendations they could predict in advance. The privacy board was particularly
superfluous , because it was replowing ground freshly tilled by President Barack Obama's
Review Group on Intelligence and Communications Technologies. That group also urged major
changes in the National Security Agency programs. Obama responded by accepting a few of the ideas, rejecting
others and generally doing his best to please everyone. Even his acceptances were hedged .
One key proposal was to require the NSA to get judicial approval to gain access to the database. But the president made only a vague commitment to
allow records "to be queried only after a judicial finding or in the case of a true emergency." And the White House press office assures me this
commitment applies only during a 60-day "transition period," with no promise it will be permanent.
The privacy board's
conclusions are likely to have even less effect on policy . This group believes the mass
collection of phone data is illegal under federal law? It uncovered not "a single instance involving a threat to the United
States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation"? So what? If a
bunch of experts say one thing and the spies say the opposite, you can expect the president
to side with the spooks a lot more often than not.
A similar problem exists with respect to the elections panel, which
obviously did its best to decide what changes would be fair, reasonable and good for democracy. But we need this group to tell us all that like we need
it to tell us when the sun is shining.
The knowledge is present. What is absent among many elected
representatives is the desire to act on it. The decision of many states to reduce voting
opportunities and reject electronic registration was not an act of carelessness or ignorance. It
was typically
part of a deliberate Republican strategy to curb the voting strength of racial
minorities, poor people, immigrants and students
Democratic.
— in other words, people who have the regrettable tendency to vote
Noble ideals are no match for political self-interest. That's why setting up
independent bodies to assess the evidence and reach rational conclusions about policy is
usually a waste of time and effort. The documents are a glorious feast for editorial writers
but a bowl of day-old dog food to the people who make policy.
As a rule,
the function of the
panels is either to delay action on issues lawmakers want to duck or to provide a harmless
outlet for the critics of policies that are set in stone.
Ultimately,
they're the equivalent of those
participation trophies handed out to every kid who plays in a sports league. They look nice
on the shelf, but you can't take them seriously.
Links to Politics – 1AR
The counterplan links to politics –
1. The board is perceived as superfluous and won’t be able to garner influence over
congress to create bipartisanship.
2. Ideology trumps – even if the formation of the board is Bipart, congress still defers
to self-ideology over the board’s recommendations – err aff – the National
Commission on Fiscal Responsibility and Reform commission proves – even when a
board is hailed as popular congress views them as day-old dog food.
3. Stall-tactics – reviews over the plan will just stall the debates – not alter them.
That’s all Chapman. Err aff – even if it’s a news source it has empirical studies
regarding commissions which is necessary to understand how congress reacts to them
while there’s is a single professor’s unwarranted opinion.
The counterplan doesn’t resolve the residual links to the plan –
a) Tied to Obama because they’re created by executive order
Wang, Ph.D. candidate in the Department of Political Science at University of
Michigan, 2010 Yuhua, “Congressional Weakness, Political Capital, and the Politics of Presidential Agency Design”,
http://sitemaker.umich.edu/wangyh/files/presidential_agency_design_yuhua_wang.pdf
On August 22, 1996, President Clinton
established the White House Commission on Aviation Safety and
Commission’s major function is to advise the President on matters involving
aviation safety and security, and to develop and recommend to the President a strategy designed to improve aviation
Security (WHCASS). The
safety and security. This
is but one example of Clinton’s executive orders . Washington Times journalist Frank
Murray (1999) noted, “President Clinton is literally writing his legacy with his own pen by signing
one controversial executive order after another.” By the time Clinton left office in 2001, he had posted 364
formal executive orders and generated a storm from opponents who say the orders push the limits of presidential power. Among
these orders,
a fair number of them were about creating administrative agencies . Not only
President Clinton, as Lewis (2003) documents, since 1946, the president
or his subordinates have created
more than half of all administrative agencies in the United States . Many executive-created
agencies
are created with the implicit approval of Congress. Others, like the National Biological Survey (NBS) created by
President Clinton in 1993,
2003: 88). Some
are created over the objections of a significant number of members
(Lewis
are supported in principle by legislators but opposed in practice because of
objections to specific details of their design and policies . Consequently, agency design by executive order
has become an important presidential leverage over Congress and other branches of government.
b) Lobbying will still occur over whether to abide by the panel
Anderson 10 (Stuart, Executive Director – National Foundation for American Policy and Former
Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner –
INS, “Regaining America’s Competitive Advantage: Making Our Immigration System Work”, 8-12,
http://www.uschamber.com/sites/default/fi les/reports/100811_skilledvisastudy_full.pdf)
One argument offered for a commission is it would keep politics out of immigration policy. A
non-political commission in Washington, D.C. is unlikely . Elected officeholders would choose
all of the members. Lobbying from all sides of the issue would move to these commission
members. Employers would need to ask if the commission could certify certain types of
employees, while the AFL-CIO and others would lobby the commission to oppose the entry of
any workers. A commission would not end lobbying, but simply shift its focus to this new,
unelected body of bureaucratic officials.
c) Fails to resolve the controversy but bolsters one side
Mayer 7 – Kenneth R. Mayer, Professor of Political Science at the University of WisconsinMadison, December 2007, “The Base Realignment and Closure Process: Is it Possible to Make
Rational Policy?,” online:
http://users.polisci.wisc.edu/kmayer/Professional/Base%20Realignment%20and%20Closure%20
Process.pdf
There is simply far too much controversy over what sorts of reforms are necessary. Should benefits be
protected, or should cuts be considered? Should taxes be raised, and if so by how much? Should benefits be means tested? The retirement age raised?
No legislator is likely to give up decision making rights in the
presence of such controversy and uncertainty about the scope of the final policy. And this is how it
should be. Automatic delegation comes at the cost of accountability, which as a policy value is at least as
important as rationality and efficiency. Delegating authority to an independent body, or governing via
an automatic rule, is often a “blame avoidance” mechanism designed to obfuscate the ultimate
responsibility and make it difficult for voters to connect cause and effect. As we have seen with
BRAC, sometimes this works, at least in the sense of producing a generally preferred but politically
difficult outcome that cannot be traced back to the actions of any legislator or group of legislators. But
delegation, by itself, does not resolve underlying disagreement and controversies, and the
electorate ought to have enough information to assign blame or credit. Ultimately, BRAC arose
from an unusual set of circumstances, and it should replicated with great caution.
What should the transition period look like?
d) Perceived overuse by Congress causes controversy
Campbell 2 – Colton C. Campbell, Associate Professor of Political Science at Florida International
University, visiting Professor of Political Science at American University, 2002, Discharging
Congress: Government by Commission, p. xiv
Contemporary ad hoc commissions for policy formulation, as opposed to commissions to study specific problems of maladministration, disaster, or
wrongdoing, are largely a development of the twentieth century. President Theodore Roosevelt
was the first to employ the
commission extensively, and he quickly became involved in controversy with Congress over its
use, as legislators believed Roosevelt used commissions to expand presidential parameters
into policy areas that fell within legislative jurisdiction. Ironically, today’s commissions are attaining
considerable importance in the arsenal of legislative devices and techniques for policy
formulation against an expansive presidency. But as ad hoc commissions have proliferated and
their visibility has increased, critics have charged that Congress is debasing the ad hoc
commission by excessive use .3 Washington is awash in special congressionally mandated
commissions, they say. Too many commissions start with the expectation of doing something
either that Congress does not want to do or that it does not want to do openly.
Obama Gets the Blame – 2AC
The CP Links to politics – its tied to Obama.
Dalal, J.D. Yale Law, 2014 Anjali, ARTICLE: SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF
SURVEILLANCE CULTURE, 2014 Mich. St. L. Rev. 59
[*121] That is not to say that there have not been efforts to create an agency dedicated to representing civil liberties concerns within the executive
branch. The Final Report of the National Commission on Terrorist Attacks upon the United States (9/11 Commission) recommended, "[T]here should be
a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our
civil liberties." 275 As a result, the
Privacy and Civil Liberties Oversight Board (PCLOB) was authorized in 2004. 276
However, the path from authorization to operationalization was a long one. Thanks in part to pressure from a bipartisan
group of Senators, the Bush White House finally instituted the Board, and, on March 14, 2006, the PCLOB was finally up and
running. 277 By June 2007
, the PCLOB had fallen apart
sufficiently independent to effectively do its job. 278
indicates: [The
with one member resigning because he felt that the organization was not
The PCLOB was indeed far from independent . As one report
PCLOB] was located in the EOP [ Executive Office of the President ], an enclave of
agencies immediately serving the President . Only two of its five members were subject to
Senate approval, and all five served at the pleasure of the President . Its advice was to be "to
the President or to the head of any department or agency of the executive branch." Although it
was to report to Congress at least annually, it was not clear if its members or chair would
testify before congressional committees or if the board could otherwise assist Congress. The
board's budget was presented as an account within the funding request for the White House Office (WHO), suggesting that it was a subunit of the WHO
(although the board's chartering legislation placed it in the EOP, making it a coequal agency to the WHO). 279
Obama Gets the Blame – 1AR – Booster
Particularly polarizing now – causes Obama to get the blame.
Boyer, 2015 (Dave, Washington Times, “Obama executive actions put Asia free trade deal at risk”,
http://www.washingtontimes.com/news/2015/jan/1/obama-executive-actions-put-asia-free-trade-deal-a/?page=all)
President
Obama’s increasing use of executive power could backfire in the new Congress as he
seeks to persuade lawmakers
to grant him special authority to negotiate his long-sought, mammoth free trade
agreement with Pacific Rim nations. Republican lawmakers have been more inclined than Democrats to give the president trade
promotion authority, which would boost his chances of completing the Trans-Pacific Partnership, centerpiece of his effort to focus
U.S. policy on Asia. But
conservatives increasingly are balking at the idea of granting
Mr.
Obama any
powers given his far-reaching executive actions , which included granting deportation
amnesty to millions of illegal immigrants and re-establishing diplomatic relations with Cuba
after the midterm elections. “An increasing number of members see [trade promotion authority] as a way of giving more power to
President Obama, and therefore the whole debate will be longer,” said Anthony Kim, a specialist on free trade and economics at the
conservative Heritage Foundation
. “After the November election, we knew that President Obama had
limited political capital to spend. He basically wasted that.”
Conservative activist Phyllis Schlafly has joined
forces with Tea Party Nation founder Judson Phillips and former GOP presidential candidate Alan Keyes, trying to persuade
Republican lawmakers to oppose giving Mr. Obama the “fast track” authority.
AT: CP Solves Reasons for Unpopularity
Commission delegation doesn’t solve the link---it doesn’t render any unpopular policy
into a popular one---if the link is true, zero chance the plan gets enacted
Klein, 2010 – Ezra Klein, awesome political blogger, “Sins of Commission,” February 19, 2010, online:
http://voices.washingtonpost.com/ezra-klein/2010/02/sins_of_commission.html
There's nothing magic about a commission . Like a congressional committee, it puts together legislation
that Congress later votes to accept, reject or delay. And as of now, there's simply no reason to
believe that the votes exist for any serious compromise. Republican leaders, for instance, are arguing that the
commission simply shouldn't consider tax increases, which makes a deal impossible. That was their rationale for filibustering the
very formation of a commission, which is why Obama had to do this through an executive order. But elites still like the idea, in part
because elites can see the outlines of a deal that elites would make. Greg Mankiw for instance, thinks Republicans should demand
that the commission include a value-added tax and a carbon tax. I would support that. The problem is that the
Republican
Party opposes both policies, and there's no reason to believe they're going to change their
minds.
Even if the commission is unanimous in its recommendation, it still links to politics
because the GOP will assume Democrats will go beyond the commission’s
recommendations
Hennessey 10 – Keith Hennessey, economic policy analyst, January 20, 2010, “Error of Commission,” online:
http://keithhennessey.com/2010/01/20/error-of-commission/g
The President’s commission does not create any binding fast-track process. Leader Reid cannot
unilaterally bind 100 Senators to an up-or-down vote and no amendments. Even if a
commission were to produce unanimous recommendations, Republicans should fear that a
Democratic Senate majority would use those recommendations as a starting point, substitute even more
tax increases for whatever spending cuts are in the recommendations, and then pass the bill. Scott Brown’s election as the 41st vote has
little effect on this dynamic, since the changes would probably happen in committee. Any commission created by Executive
Order has this weakness: it cannot bind Congress. Only Congress can tie itself to the mast.
Permutations/Theory
PDCP – 2AC
Perm do the Counterplan- it’s just normal means – recent debates show that the
PCLOB will be involved regardless if they’re requested to or not.
PDCP – 1AR
Perm do the CP – its not severance
a) Asking and requesting for input is inevitable – all our evidence elsewhere proves
that congress will include other opinions.
b) AND--Should means desirable
Oxford Dictionary 13 http://oxforddictionaries.com/definition/english/should
verb (3rd sing. should) 1used to indicate obligation, duty, or correctness, typically when criticizing someone’s actions: he should
have been careful I think we should trust our people more you shouldn’t have gone indicating
a desirable or expected
state: by now pupils should be able to read with a large degree of independence used to give or ask advice or suggestions: you
should go back to bed what should I wear?
c) Resolved means by vote
Webster’s 1998 Webster’s Revised Unabridged Dictionary, 1998 (dictionary.com)
Resolved: 5. To express, as an opinion
or determination
, by resolution and vote ; to declare or decide by a
formal vote; — followed by a clause; as, the house resolved (or, it was resolved by the house) that no money should be apropriated
(or, to appropriate no money).
d) Even if it is severance its justified due to the abusive nature of the counterplan
Legitimacy – 2AC
CP’s that do the entire AFF are a voting issue –
1. Leveraging the AFF is impossible because we would need cards in the context of
their external mechanism which rigs the game for the NEG
2. Wrecks education by crowding out topic specific strategies and warping what an
opportunity cost is and incentivizing negs to go for stale process cps instead of specific
args.
CP’s have to be functionally and textually competitive-key to solve bad CP’s like
conditions, consult and delay.
Legitimacy – 1AR
The cp’s illegitimate
1. Education – their model incentives teams to go for cps that do the entire aff over
substantive and specific strategies – undermines the value of debate by shifting the
debate from questions of should the plan be done to how which is the heart of this
topic.
2. Structural side bias – the game will always be rigged to eliminate key aff offense
which undermines clash and contestability which is necessary for decision making
skills and fairness.
3. Prefer our model – functionally and textually competitive incentive better
counterplans and better debate which solves their offense. Reject the team to set a
precedent.
PDCP – 1AR – AT: Should
“Should” is distinct from “must”- it allows exceptions
Franzel, GAO Financial Management and Assurance director, 8
(Jeanette M., US Government Accountability Office, "Exposure Draft of Proposed Changes to the
International Standards for the Professional Practice of Internal Auditing," 3-31-2008,
www.gao.gov/govaud/cl_iia080331.pdf)
The second sentence of the “must” definition used in the exposure draft instructions is more aligned with the definition of “should” as used by other
standards setters, including GAO. The
definition of “should” as used by GAO, which is intended to be consistent with the
the following language:
“…in rare circumstances, auditors and audit organizations may depart from a presumptively
mandatory requirement provided they document their justification for the departure and how the alternative procedures performed in
definition used by the AICPA and the PCAOB, indicates a presumptively mandatory requirement and contains
the circumstances were sufficient to achieve the objectives of the presumptively mandatory requirement.” Page 3 We suggest that the IIA move the
second sentence of the “must” definition to the “should” definition. The
definition of “must” needs to be clear that
“must” indicates an unconditional requirement and that another procedure cannot substitute
for a “must.” Also, we suggest adding language to the definition of “should” to indicate that substituting another procedure for a “should”
requirement is allowed only if the auditors document their justification for the departure from the “should” and how the alternative procedures
performed in the circumstances were sufficient to achieve the objectives of the “should” requirement. The
IIA should review every
“must” requirement in the Standards to determine whether there are acceptable alternatives to the
procedure; if so, “should” is the appropriate word.
PDB – 2AC
Perm do the plan and have the commission review the plan and recommend it to
congress. The permutation shields the link to the net benefit – simultaneous action
will just be perceived as following the commission and avoids fights. Also guarantees
double solvency.
Perm Do the Plan Via the Process – 2AC
Permutation – do the plan through the process of the counterplan – its not severance
because it is still an immediate and certain decision to do the plan but adds the
process of the counterplan.