Wyden Committee CP
Explanation for Negative
This is a generic counterplan that can be read against any intelligence agency affirmative. Instead of enacting the plan, it
proposes creating a new Church Committee to conduct a full, public investigation into the domestic surveillance of
Americans by United States intelligence agencies. This investigation will result in a report to Congress outlining the
committee’s recommendations for legislative and regulatory reform. The negative argues that the result of this report will
be the implementation of the plan (along with other beneficial reforms, perhaps).
There are several net-benefits, but the “do both” permutation beats many of them.
1.
Terrorism — the negative argues that the committee will be in the best position to determine whether the
program or authority curtailed by the plan is necessary for effective counter-terrorism. If the committee
determines that the program or authority is not necessary, it will propose curtailing it. If the committee
determines that the program or authority is necessary, it will propose maintaining it. This allows the negative to
argue that the counterplan results in the plan only if the plan does not link to the terrorism DA. The permutation
arguably still links to this net-benefit.
2.
Politics — the negative argues that the committee shifts political responsibility for surveillance reform away
from the President, saving his political capital. The negative can argue that the process of creating a new
Church Committee will be bipartisan and relatively insulated from typical Congressional politics. The
permutation arguably still links to this net-benefit.
3.
Circumvention — the negative argues that investigation must precede legislation to ensure that policy reforms
aren’t circumvented by the intelligence agencies. The permutation resolves most of this, but the negative can
argue that circumvention applies more to the permutation than to the counterplan alone.
4.
Trust — the negative argues that the counterplan restores public trust in the federal government, something
that is necessary to address a host of important policy challenges. Again, the permutation resolves most of this
net-benefit. However, the negative can argue that the permutation sends mixed messages to the public while
the counterplan stays consistent.
5.
Secrecy — the negative argues that the counterplan provides oversight review of the intelligence agencies,
lessening the risk of groupthink and its associated dangers. In this way, the counterplan allows Congress to
check overreach by the executive branch. The permutation resolves most of this net-benefit.
When crafting a counterplan text, the negative should consider customizing it to use the language of the plan. A version
could be written which fiats that the plan be recommended as part of the committee’s report, but this carries a lot of
theoretical baggage. The blocks in this file assume that the negative has read the counterplan text in the 1NC, not a
version that fiats recommendation of the plan.
Explanation for Affirmative
In response to this counterplan, the affirmative should argue that the plan is necessary to solve the advantages. If the
counterplan might not result in the plan, it might not solve the advantages. To win that the counterplan wouldn’t result in
the plan, the affirmative should argue that the committee’s recommendations won’t be adopted by Congress or that
intelligence agencies will attempt to stall the committee’s investigation.
The “do both” permutation is a powerful affirmative option. The affirmative can argue that this permutation avoids the
link to the net-benefits. If there is a chance that the counterplan doesn’t result in the plan, the affirmative can argue that
the risk of a solvency deficit outweighs the risk of the net-benefits.
Negative
1NC
1NC — Wyden Committee CP
The United States federal government should conduct a full, public
investigation into the domestic surveillance of Americans by United States
intelligence agencies. This investigation should be modeled after the Church
Committee, headed by Senator Ron Wyden, and tasked with producing a
report to Congress outlining recommendations for appropriate legislative and
regulatory reforms.
The counterplan solves the case and is net-beneficial.
First, it results in sustainable reforms and rebuilds public trust in government.
Church Committee Alums 14 — Counsel, Advisers, and Professional Staff Members of the Church
Committee including Chief Counsel Frederick A.O. Schwarz Jr., Loch Johnson, John T. Elliff, Burt Wides, Jim Dick,
Frederick Baron, Joseph Dennin, Peter Fenn, Anne Karalekas, Michael Madigan, Elliot Maxwell, Gordon Rhea, Eric
Richard, Athan Theoharis, and Christopher Pyle, 2014 (Open Letter to Congress and the President, March 17 th, Available
Online at https://www.eff.org/files/2014/03/16/church_committee_-_march_17_2014__0.pdf, Accessed 07-08-2015, p.
1-2)
In 1975, the public learned that the National Security Agency (NSA) had been collecting and
analyzing international telegrams of American citizens since the 1940s under secret
agreements with all the major telegram companies. Years later, the NSA instituted another "Watch List" program to
intercept the international communications of key figures in the civil rights and anti-Vietnam War movements among
other prominent citizens. Innocent
Americans were targeted by their government. These
actions were only uncovered—and stopped—because of a special Senate investigative
committee known as the United States Senate Select Committee to Study Governmental Operations with Respect to
Intelligence Activities, commonly known as the
Church Committee.
We are former members and staff of the committee and write today as witnesses to
history and as citizens with decades of collective experience in Congress, the
federal courts, the executive branch, and the intelligence community. We write today
to encourage Congress to create a Church Committee for the 21st Century—a
special investigatory committee to undertake a thorough, and public, examination
of current intelligence community practices affecting the rights of Americans and
to make specific recommendations for future oversight and reform. Such a
committee would work in good faith with the president, hold public and private
hearings, and be empowered to obtain documents. Such congressional action is
urgently needed to restore the faith of citizens in the intelligence community
and, indeed, in our federal government.
The actions uncovered by the Church Committee in the 1970s bear striking
similarities to the actions we've learned about over the past year. In the early 1970s,
allegations of impropriety and illegal activity concerning the intelligence community spurred Congress to create
committees to investigate those allegations. Our
committee, chaired by Senator Frank Church, was charged
with investigating illegal and unethical conduct of the intelligence community
and with making legislative recommendations to govern the intelligence
community's conduct. The bipartisan committee's reports remain one of the most
searching reviews of intelligence agency practices in our nation's history.
Our findings were startling. Broadly speaking, we determined that sweeping domestic surveillance programs, conducted
under the guise of foreign intelligence collection, had repeatedly undermined the privacy rights of US citizens. A
number of reforms were implemented as a result, including the creation of
permanent intelligence oversight committees in Congress and the passage of the
Foreign Intelligence Surveillance Act.
Even though our work was over 30 years ago, our conclusions seem eerily prescient today. For example, our final report
noted:
We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal
violence or identifying foreign spies, were expanded to what witnesses characterized as "vacuum cleaners,"
[end page 1] sweeping in information about lawful activities of American citizens. The tendency of intelligence
activities to expand beyond their initial scope is a theme, which runs through every aspect of our investigative
findings.
The need for another thorough, independent, and public congressional
investigation of intelligence activity practices that affect the rights of Americans
is apparent. There is a crisis of public confidence. Misleading statements by
agency officials to Congress, the courts, and the public have undermined public
trust in the intelligence community and in the capacity for the branches of
government to provide meaningful oversight.
The scale of domestic communications surveillance the NSA engages in today
dwarfs the programs revealed by the Church Committee. Indeed, 30 years ago, the NSA's
surveillance practices raised similar concerns as those today. For instance, Senator Church explained:
In the case of the NSA, which is of particular concern to us today, the rapid development of technology in this
area of electronic surveillance has seriously aggravated present ambiguities in the law. The broad sweep of
communications interception by NSA takes us far beyond the previous Fourth Amendment controversies
where particular individuals and specific telephone lines were the target.
As former members and staff of the Church Committee we can authoritatively
say: the erosion of public trust currently facing our intelligence community is not
novel, nor is its solution. A Church Committee for the 21st Century—a special
congressional investigatory committee that undertakes a significant and public
reexamination of intelligence community practices that affect the rights of
Americans and the laws governing those actions—is urgently needed. Nothing
less than the confidence of the American public in our intelligence agencies and,
indeed, the federal government, is at stake.
Second, investigation before legislation is the only way to avoid
circumvention. The counterplan solves; the plan doesn’t.
Bump 13 — Philip Bump, Staff Writer at the Wire—an Atlantic publication, former Writer for Grist, former Senior
Designer at Adobe Systems, 2013 (“How Do You Solve a Problem Like NSA?,” The Wire—an Atlantic publication,
November 1st, Available Online at http://www.thewire.com/politics/2013/11/how-do-you-solve-problem-nsa/71154/,
Accessed 07-08-2015)
Legal roadblocks
Advocates of the NSA's surveillance, like Feinstein, are quick to point out that what the
NSA is doing is legal. It is overseen by (largely acquiescent) intelligence
committees in the House and Senate. It is approved by the Department of Justice and White
House. It is given a stamp of approval by the Foreign Intelligence Surveillance Court in a
purposefully one-sided process. But, as American history has repeatedly shown, "legal" doesn't
always correlate to "appropriate." And in this case, the assessment that the tools fall within the
boundaries of the Fourth Amendment essentially hasn't been challenged before the Supreme Court.
The NSA says it wants to collect metadata on every phone call in the United States, and
that the Patriot Act's Section 215 lets it do so. The FISC agrees. Therefore, these
activities are legal — despite the author of the Patriot Act asserting that the data
collection exceeds the boundaries of the law. Doesn't matter. The NSA and a secret
court interpret the law to allow the NSA to conduct all of the activity that's mentioned in this
article. A majority of members of Congress are not disposed to challenge this
interpretation. There exist proposals that, unlike Feinstein's, would actually block certain NSA behavior, but they
aren't likely to be make it into law without being watered down by amendments.
We reached out to staff attorneys from two of the organizations that have been
most fervent in their critiques of the NSA's surveillance tools, asking them how,
given the power, they'd revise the government's surveillance tools to ensure that
public privacy was maintained. The question we posed: Knowing that the NSA is
experienced at massaging laws to meet their needs, what legislation might
prevent that?
Alex Abdo, staff attorney at the American Civil Liberties Union, advocated transparency
above all else. "Our country's founders believed that tyranny could be prevented
through checks and balances. I think the same holds true today." For that to happen,
though, people need to know what's happening.
[I]t should mean that the public has access to significant or novel legal
interpretations issued by the FISC. That would have gone a long way
toward preventing the 215 program, because Congress and the public
would have been able to judge the lawfulness and necessity of the
government's programs for themselves.
"In short," Abdo said, "our privacy rights shouldn't be interpreted away in secret. …
Secrecy has its place, but it should not be used as an excuse to keep any branch of
government or the public out of the debate entirely. This type of solution is also
key to long-term legitimacy."
In the 1970s, following revelations of domestic surveillance by the NSA — and rampant abuses by other intelligence
services — the Church Committee was formed in the Senate in an effort to better
determine the guidelines under which the agencies should operate. There were
eventually other steps: the 1978 Foreign Intelligence Surveillance Act itself, which codified
some of the committee's findings, and President Ronald Reagan's 1981 executive order
extending the agencies' power while adding some new boundaries. (The vast majority of
the NSA violations revealed in the Snowden leaks were violations of this order.)
Kurt Opsahl,
senior staff attorney at the Electronic Frontier Foundation, suggested revisiting
the idea of forming a new Congressional commission to tackle these issues. "If
Congress has the political will," he told us, "it can easily write language to stop bulk
collection." But:
[T]o really be sure that Congress can legislate well, we really need a new
Church Commission. … The key idea behind a new Church Committee would be to
investigate first, and then legislate later with a better understanding. It
may not result in restrictions that will be effective for all time, in light of
technologies not dreamed about now, but it's the right thing to do now.
Neither Opsahl nor Abdo, you'll notice, are advocating specific proposals since
without further exploration of what's actually happening, it's difficult to draw
policy. The most important part of Opsahl's statement, though, is the first part. "If Congress has the political will." The
Senate Intelligence Committee, in passing the tweaks encompassed in the FISA Improvements Act has shown a lack of
will to try and figure out how to create new limits on the NSA's activity. But perhaps the most obvious example of a lack
of will comes from Feinstein's House counterpart, Rep. Mike Rogers of Michigan. In a hearing this week, he confronted
American University law professor Steve Vladeck, as reported by MSNBC.
Rogers: I would argue the fact that we haven’t had any complaints come forward with any specificity arguing
that their privacy has been violated, clearly indicates, in 10 years, clearly indicates that something must be
doing right. Somebody must be doing something exactly right.
Vladeck: But who would be complaining?
Rogers: Somebody who’s privacy was violated. You can’t have your privacy violated if you don’t know your
privacy is violated.
This is a corollary to the Supreme Court's rejection, earlier this year, of a lawsuit targeting the NSA. The Court ruled that
the plaintiffs weren't affected by the surveillance and therefore couldn't sue; assured by the government that those being
watched would be told — and so could knowingly bring a suit — the Court threw out the case. It then turned out that the
government wasn't informing people that NSA surveillance generated the evidence against them.
Rogers lacks the political will to figure out how to rein in the NSA so that the privacy of Americans using email or Google
or Tor is ensured. The
will to study the problem may emerge as leaks continue and
political pressure builds. As Rogers might note, you can't fix your surveillance system
until you know that your surveillance system needs to be fixed. Assuming it can be
fixed at all.
2NC/1NR — Net-Benefits
Circumvention Net-Benefit
To avoid circumvention, investigation must precede legislation. NSA relies on
secret interpretations of statutory authority to justify their activities. Unless
these secret interpretations are scrutinized by Congress, it is impossible to
craft effective policy language — that’s Bump.
Prefer our evidence: it quotes the ACLU’s Abdo and the EFF’s Opsahl, two
leading civil liberties attorneys. Both agree that a new Church Committee—not
a specific policy reform—is the best option for reigning in NSA. Here’s more
evidence.
Cohn and Jaycox 13 — Cindy Cohn, Executive Director and former Legal Director and General Counsel of the
Electronic Frontier Foundation, holds a J.D. from the University of Michigan Law School, and Mark Jaycox, Legislative
Analyst at the Electronic Frontier Foundation, former Contributor to ArsTechnica, former Legislative Research Assistant
for LexisNexis, holds a B.A. in Political History from Reed College, 2013 (“Why A Special Congressional Committee Must
Be Created To Investigate NSA's Unconstitutional Domestic Spying,” Electronic Frontier Foundation, June 19th, Available
Online at https://www.eff.org/deeplinks/2013/06/why-special-congressional-committee-must-be-created-investigatensas, Accessed 07-09-2015)
In the past couple of weeks, the NSA has, unsurprisingly, responded with a series of secret briefings to Congress that
have left the public in the dark and vulnerable to misstatements and word games. Congress
has many
options at its disposal, but for true accountability any response must start with a
special investigative committee. A coalition of over 100 civil liberties groups
agrees. Such a committee is the right way the American people can make
informed decisions about the level of transparency and the reform needed.
A Special Investigatory Committee is the Right Way to Shine the Light and Create True Accountability
A special investigatory committee should be bipartisan, consist of selected
Intelligence and Judiciary committee members on both sides of the issue, and
have full subpoena powers. After Watergate, Congress created the Church Committee
to investigate domestic spying and other illegal actions committed by the intelligence
community. What it found was staggering: in one example of abuse, the NSA was reading and copying all telegrams
entering and exiting the country. In another, NSA had intercepted, opened and photographed more than 215,000 pieces of
mail—mass surveillance circa 1970. The
Church Committee brought these revelations to light,
informed the American people, and took steps to limit the broad nature of the
surveillance.
The contemporary Congress must create a similar, independent, and
empowered committee. The President and some members of Congress prefer an investigation by the
President’s appointed Privacy and Civil Liberties Oversight Board (PCLOB), but the Board is not even empowered to
issue subpoenas. And the two key committees that rubber-stamped the expansion of the NSA spying from foreignersonly to ordinary Americans have proven themselves unable to rein in the spying.
President Obama
says he welcomes a public debate on the programs. If he’s serious,
he and Congress need to take the path of a modern day Church Committee.
The PCLOB
Last week, Senators called for an investigation by the PCLOB. The PCLOB was one of the recommendations of the 9/11
Commission and was set up to try to ensure that privacy and civil liberties played a role in the enormous expansion of
surveillance laws like the PATRIOT Act and Foreign Intelligence Surveillance Amendments Act. Yet it has not. Instead,
the PCLOB has lingered without a chairman—making it inoperable—for almost five years. It was only until this spring
that the Senate finally confirmed David Medine as the chair, however the PCLOB has done little, if anything, since then.
That’s because it has no real power. If the PCLOB asked the NSA for certain documents related to the spying, for instance,
the NSA would not have to hand the documents over or present testimony under oath. In a hearing this week, General
Alexander, the Director of the National Security Agency, committed to cooperating with any investigation by the PCLOB.
But given the NSA’s history of gross misdirection, word games and limited answers to direct questions—including
General Alexander’s own falsehoods in Congressional testimony—this investigation should not rely on the good will of
the NSA. Yet, that’s exactly what the PCLOB would have to rely upon.
Hearings in Front of the Judiciary or Intelligence Committees
Nor do the Judiciary or Intelligence committees hold great promise. These committees should serve as the American
people’s robust window into—and constitutional check on—intelligence operations. For instance, in 2005, when the New
York Times first reported on the warrantless wiretapping, many hearings took place in front of both the Senate and House
Judiciary and Intelligence committees. The Committees certainly did not reveal the full extent of the spying, even though
they had the opportunity. Instead, politicians were stonewalled, swallowed grossly misleading answers, and revealed few
details.
Currently, the Senate Intelligence committee has met publicly only 2 times this year; from 2011 to 2012 it only met 8 times.
The House of Representatives is no different. The House Intelligence committee's Subcommittee on Oversight has not met
once this year. Yes, not once. And the full House Intelligence committee has only met four times. History tells us a similar
story about the Judiciary Committees.
The public demands for a robust debate require more transparency and tenacity than these committees seem able to
provide.
The Secret Veil Must Be Lifted
In short, the lessons of 2005 is that the
standing Congressional committees are unable to get
at the bottom of the NSA spying and the PCLOB does not have sufficient power to
do so either. A special investigative committee with full subpoena powers, the
ability to force testimony under oath, and the ability to issue sanctions for
failure to cooperate is the best hope that the American people have to ensure the
NSA's domestic spying isn't swept under the NSA’s giant secrecy cloak once
again. Tell Congress now to act.
Only the counterplan results in a complete audit of domestic surveillance.
Without it, circumvention is inevitable.
Friedersdorf 13 — Conor Friedersdorf, Staff Writer for The Atlantic, 2013 (“Lawbreaking at the NSA: Bring On a
New Church Committee,” The Atlantic, August 16th, Available Online at
http://www.theatlantic.com/politics/archive/2013/08/lawbreaking-at-the-nsa-bring-on-a-new-churchcommittee/278750/, Accessed 07-08-2015)
The time is ripe for a new Church Committee, the surveillance oversight effort named for Senator
Frank Church, who oversaw a mid-1970s investigation into decades of jaw-dropping abuses by U.S. intelligence agencies.
If recent stories about the NSA don't alarm you, odds are that you've never read the Church Committee findings, which
ought to be part of the standard high-school curriculum. Their lesson is clear: Under cover of secrecy, government agents
will commit abuses with impunity for years on end, and only intrusive Congressional snooping can stop them.
Why is another Church Committee needed now? For more than a decade, the
NSA has repeatedly engaged in activity that violated the law and the
Constitutional rights of many thousands or perhaps millions of Americans.
Let's review the NSA's recent history of serial illegality. President George W. Bush presided over the first wave. After the
September 11 terrorist attacks, he signed a secret order that triggered a massive program of warrantless wiretapping. NSA
analysts believed they possessed the authority to spy on the phone calls and emails of American citizens without a judge's
permission. Circa October 2001, 90 NSA employees knew about the illegal program, but the public didn't. Later that
month, four members of Congress, including Nancy Pelosi, were told of its existence, and subsequently discredited White
House lawyer John Yoo wrote the first analysis of its legality. By 2002, 500 people knew about it, at which point telecom
providers were participating.
The public didn't find out about warrantless wiretapping until December 2005, more than four years after it started, when
the New York Times published a story that they'd long been holding.
How effective was the illegal spying?
"In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of
telephone numbers, e-mail addresses and names to the FBI in search of terrorists. The stream soon became a flood,
requiring hundreds of agents to check out thousands of tips a month," The New York Times reported in a January 2006
followup article. "But virtually all of them, current and former officials say, led to dead ends or innocent Americans. FBI
officials repeatedly complained to the spy agency, which was collecting much of the data by eavesdropping on some
Americans' international communications and conducting computer searches of foreign-related phone and Internet
traffic, that the unfiltered information was swamping investigators. Some FBI officials and prosecutors also thought the
checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy."
On July 9, 2008, telecom companies that participated in illegal warrantless wiretapping were granted retroactive
immunity in a bill that Senator Barack Obama supported, despite a promise to oppose it.
Soon after, the Obama Administration took power.
On April 15, 2009, The New York Times reported on abuses in the NSA's surveillance activities (emphasis added):
The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent
months on a scale that went beyond the broad legal limits established by Congress last year, government
officials said in recent interviews. Several intelligence officials... said the N.S.A. had been engaged in
"overcollection" of domestic communications of Americans. They described the practice as significant and
systemic, although one official said it was believed to have been unintentional... The Justice Department, in
response to inquiries from The New York Times, acknowledged Wednesday night that there had been
problems with the N.S.A. surveillance operation, but said they had been resolved.
That July, an unclassified report produced by the inspectors general of five federal agencies "had difficulty citing specific
instances when the National Security Agency's wiretapping program contributed to successes against terrorists," and
"found that other intelligence tools used in assessing security threats posed by terrorists provided more timely and
detailed information." The CIA found it "a useful tool but could not link it directly to counterterrorism successes."
Team Obama pressed on anyway.
Skip ahead to Edward Snowden's revelations, which began earlier this summer. The Obama Administration has insisted
all along that Snowden wasn't able to document abuses because there aren't any. That claim was always dubious. As I
noted earlier this week, the Obama Administration itself had already admitted that legal violations occurred, though it
did so in the most vague terms. As of Monday, when I published my article, there was already enough documented bad
behavior and official dissembling about surveillance to justify a sweeping investigation.
Now any
member of Congress who doesn't press for an investigation is behaving
indefensibly, for the Washington Post has just reported that the NSA violated the law on a much larger scale than
anyone admitted. Its report shows that current oversight is laughably inadequate, and includes enough details to suggest
that multiple NSA defenders have been lying in their public statements.
What would justify a Congressional investigation if not all that? If you're still not persuaded, recall the claims made by
the Obama Administration alongside the latest scoops by Barton Gellman and Carol Leonnig. Team Obama's case has
been straightforward: there are not NSA abuses, and adequate oversight is being conducted by all three branches of the
U.S. government.
Now look at the facts reported Thursday evening:
* "The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year
since Congress granted the agency broad new powers in 2008."
* "Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United
States, both of which are restricted by statute and executive order."
* "In one instance, the NSA decided that it need not report the unintended surveillance of Americans."
* "In another case, the Foreign Intelligence Surveillance Court, which has authority over some NSA operations, did not
learn about a new collection method until it had been in operation for many months. The court ruled it unconstitutional."
* "The NSA audit obtained by The Post, dated May 2012, counted 2,776 incidents in the preceding 12 months of
unauthorized collection, storage, access to or distribution of legally protected communications. Most were unintended.
Many involved failures of due diligence or violations of standard operating procedure. The most serious incidents
included a violation of a court order and unauthorized use of data about more than 3,000 Americans and green-card
holders."
This is a good place to pause. Note that the 2,776 incidents of illegal surveillance don't mean that just 2,766 people had
their rights violated -- in just a single one of those 2,776 incidents, 3,000 people had their rights violated. As the story
notes, "There
is no reliable way to calculate from the number of recorded
compliance issues how many Americans have had their communications
improperly collected, stored or distributed by the NSA." And that is another reason an
intrusive Congressional investigation into these practices is urgently necessary.
What possible objection could there be to nailing down the number of Americans whose rights were violated? I'd like
someone to explain how that could possibly make us less safe from al-Qaeda.
Here's something else I'd like to see investigated:
The causes and severity of NSA infractions vary widely. One in 10 incidents is attributed to a typographical
error in which an analyst enters an incorrect query and retrieves data about U.S phone calls or e-mails.
Does anyone else find it implausible that 10 percent of errors are due to typos? And even if that's true, are you telling me
there's no way to eliminate typos when the consequences are intrusive spying in violation of the law and the
Constitution? I find it hard to imagine how anyone isn't on board for a Congressional investigation at this point, but just
in case, get this next part (emphasis added):
The May 2012 audit, intended for the agency's top leaders, counts only incidents at the NSA's Fort Meade
headquarters and other -facilities in the Washington area. Three government officials, speak-ing on the
condition of anonymity to discuss classified matters, said the number would be substantially higher if it
included other NSA operating units and regional collection centers.
That brings us to the head of the Senate intelligence committee, who has sworn all along that she engages in thorough
oversight of NSA surveillance, and that large-scale abuses just don't happen:
Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.), who did not receive a copy of the 2012
audit until The Post asked her staff about it, said in a statement late Thursday that the committee "can and
should do more to independently verify that NSA's operations are appropriate, and its reports of compliance
incidents are accurate."
The newspaper got its hands on the audit -- more than a year after the fact -- before she did! And the trend? "Despite the
quadrupling of the NSA's oversight staff after a series of significant violations in 2009," Gellman reports, "the rate of
infractions increased throughout 2011 and early 2012."
There is a lot more to his article, which everyone should read in full. I'll excerpt just one more passage:
The NSA uses the term "incidental" when it sweeps up the records of an American while targeting a foreigner
or a U.S. person who is believed to be involved in terrorism. Official guidelines for NSA personnel say that kind
of incident, pervasive under current practices, "does not constitute a ... violation" and "does not have to be
reported" to the NSA inspector general for inclusion in quarterly reports to Congress. Once added to its
databases, absent other restrictions, the communications of Americans may be searched freely.
Suffice it to say that the
scale of actual NSA abuses is substantially hidden. An
alarming number of communications are being illegally collected. But the truth
could turn out to be shocking even to people who've been following this story
closely. An investigation is the only way to find out.
The average member of Congress knows far less than Feinstein, and the only other check on the NSA, the FISA
court, also provides inadequate oversight, according to the man in charge of it:
The leader of the secret court that is supposed to provide critical oversight
of the government's vast spying programs said that its ability do so is limited and that it
must trust the government to report when it improperly spies on
Americans.
The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the
tools to independently verify how often the government's surveillance
breaks the court's rules that aim to protect Americans' privacy. Without taking
drastic steps, it also cannot check the veracity of the government's
assertions that the violations its staff members report are unintentional
mistakes.
All told, it's an airtight case for dramatically more oversight. Senator Ron Wyden
has long led the lonely effort in his body to expose NSA abuses, and he is the
natural choice to lead both an investigation and a Wyden Committee Report to
Study Intelligence Activities in the War on Terror. Were there any justice in the world, Feinstein
would be kept far away from the effort.
Trust Net-Benefit
The counterplan rebuilds trust in government. Revelations of illegal NSA
spying has decimated overall public confidence in the federal government.
Only a comprehensive Congressional investigation can rebuild trust — that’s
the Church Committee Alums.
Public trust in government is a prerequisite to solving all global problems. It’s
an existential risk.
Small 6 — Jonathan Small, former Americorps VISTA for the Human Services Coalition, 2006 (“Moving Forward,”
The Journal for Civic Commitment, Available Online via the Internet Archive’s Wayback Machine at
http://web.archive.org/web/
20060711184600/http://www.mc.maricopa.edu/other/engagement/Journal/Issue7/Small.jsp, Accessed 09-22-2009)
What will be the challenges of the new millennium? And how should we equip young people to face these challenges?
While we cannot be sure of the exact nature of the challenges, we can say unequivocally that humankind will face them
together. If the end of the twentieth century marked the triumph of the capitalists, individualism, and personal
responsibility, the
new century will present challenges that require collective action,
unity, and enlightened self-interest. Confronting global warming, depleted
natural resources, global super viruses, global crime syndicates, and
multinational corporations with no conscience and no accountability will
require cooperation, openness, honesty, compromise, and most of all solidarity
– ideals not exactly cultivated in the twentieth century. We can no longer suffer to see life through
the tiny lens of our own existence. Never in the history of the world has our
collective fate been so intricately interwoven. Our very existence depends upon
our ability to adapt to this new paradigm, to envision a more cohesive society.
With humankind’s next great challenge comes also great opportunity. Ironically, modern individualism backed us into a
corner. We
have two choices, work together in solidarity or perish together in
alienation. Unlike any other crisis before, the noose is truly around the neck of
the whole world at once. Global super viruses will ravage rich and poor alike,
developed and developing nations, white and black, woman, man, and child. Global warming and damage
to the environment will affect climate change and destroy ecosystems across the
globe. Air pollution will force gas masks on our faces, our depleted atmosphere will make a predator of the sun, and
chemicals will invade and corrupt our water supplies. Every single day we are presented the
opportunity to change our current course, to survive modernity in a manner befitting our better
nature. Through zealous cooperation and radical solidarity we can alter the course
of human events.
Regarding the practical matter of equipping young people to face the challenges of a global, interconnected world, we
need to teach cooperation, community, solidarity, balance and tolerance in schools. We need to take a holistic approach to
education. Standardized test scores alone will not begin to prepare young people for the world they will inherit. The three
staples of traditional education (reading, writing, and arithmetic) need to be supplemented by three cornerstones of a
modern education, exposure, exposure, and more exposure. How can we teach solidarity? How can we teach community
in the age of rugged individualism? How can we counterbalance crass commercialism and materialism? How can we
impart the true meaning of power? These are the educational challenges we face in the new century. It will require a
radical transformation of our conception of education. We’ll need to trust a bit more, control a bit less, and put our faith in
the potential of youth to make sense of their world.
In addition to a declaration of the gauntlet set before educators in the twenty-first century, this paper is a proposal and a
case study of sorts toward a new paradigm of social justice and civic engagement education. Unfortunately, the current
pedagogical climate of public K-12 education does not lend itself well to an exploratory study and trial of holistic
education. Consequently, this proposal and case study targets a higher education model. Specifically, we will look at
some possibilities for a large community college in an urban setting with a diverse student body.
Our guides through this process are specifically identified by the journal Equity and Excellence in Education. The
dynamic interplay between ideas of social justice, civic engagement, and service learning in education will be the lantern
in the dark cave of uncertainty. As such, a simple and straightforward explanation of the three terms is helpful to direct
this inquiry. Before we look at a proposal and case study and the possible consequences contained therein, this paper will
draw out a clear understanding of how we should characterize these ubiquitous terms and how their relationship to each
other affects our study.
Social Justice, Civic Engagement, Service Learning and Other Commie Crap
Social justice is often ascribed long, complicated, and convoluted definitions. In fact, one could fill a good-sized library
with treatises on this subject alone. Here we do not wish to belabor the issue or argue over fine points. For our purposes,
it will suffice to have a general characterization of the term, focusing instead on the dynamics of its interaction with civic
engagement and service learning. Social justice refers quite simply to a community vision and a community conscience
that values inclusion, fairness, tolerance, and equality. The idea of social justice in America has been around since the
Revolution and is intimately linked to the idea of a social contract. The Declaration of Independence is the best example of
the prominence of social contract theory in the US. It states quite emphatically that the government has a contract with its
citizens, from which we get the famous lines about life, liberty and the pursuit of happiness. Social contract theory and
specifically the Declaration of Independence are concrete expressions of the spirit of social justice.
Similar clamor has been made over the appropriate definitions of civic engagement and service learning, respectively.
Once again, let’s not get bogged down on subtleties. Civic
engagement is a measure or degree of
the interest and/or involvement an individual and a community demonstrate
around community issues. There is a longstanding dispute over how to properly quantify civic engagement.
Some will say that today’s youth are less involved politically and hence demonstrate a lower degree of civic engagement.
Others cite high volunteer rates among the youth and claim it demonstrates a high exhibition of civic engagement. And
there are about a hundred other theories put forward on the subject of civic engagement and today’s youth. But one thing
is for sure; today’s
youth no longer see government and politics as an effective or
valuable tool for affecting positive change in the world. Instead of criticizing this judgment,
perhaps we should come to sympathize and even admire it. Author Kurt Vonnegut said, “There is a tragic flaw in our
precious Constitution, and I don’t know what can be done to fix it. This is it: only nut cases want to be president.” Maybe
the youth’s rejection of American politics isn’t a shortcoming but rather a rational and appropriate response to their
experience. Consequently, the term civic engagement takes on new meaning for us today. In
order to foster
fundamental change on the systemic level, which we have already said is necessary for
our survival in the twenty-first century, we need to fundamentally change our
systems. Therefore, part of our challenge becomes convincing the youth that these systems, and by systems we mean
government and commerce, have the potential for positive change. Civic engagement consequently
takes on a more specific and political meaning in this context.
Independently, public trust in government is key to progressive public policies
that address poverty and racism.
Hetherington 6 — Marc J. Hetherington, Associate Professor of Political Science at Vanderbilt University, 2006
(“Why Political Trust Matters,” Why Trust Matters: Declining Political Trust and the Demise of American Liberalism, Published
by Princeton University Press, ISBN, Available Online at http://press.princeton.edu/chapters/s7877.html, Accessed 0430-2012)
Even more importantly, declining
political trust has played the central role in the
demise of progressive public policy in the United States over the last several
decades. My claim defies the conventional wisdom. In explaining why public policy has grown more conservative
since the 1960s, pundits and political scientists alike tend to identify a conservative turn
in public opinion as the cause. However, little evidence exists to support this explanation.
There remains constant and widespread support for big government in areas
where most Americans benefit. For example, almost everyone wants to maintain or
increase investment in the vast majority of federal programs, such as Medicare, Social
Security, education, highways, environmental protection, and the like. Had public opinion truly grown more
conservative, support for these initiatives would have decreased because conservatives have a philosophical aversion to
government.
Contemporary political rhetoric fuels this misunderstanding. By railing against "big government" in general, conservative
and moderate politicians imply that people want less government across the board. However, public
opposition
to government is focused entirely on programs that require political majorities
to make sacrifices for political minorities, such as antipoverty and racetargeted initiatives. In short, Americans continue to support big government when
they benefit from it, but they want limited government when they are asked to
make sacrifices.
The massive deterioration in political trust that has occurred since the 1960s
explains this disjuncture. Declining trust should not affect support for all things that government does.
Indeed, people do not need to trust the government much when they benefit from it. Instead, people need to
trust the government when they pay the costs but do not receive the benefits,
which is exactly what antipoverty and race-targeted programs require of most
Americans. When government programs require people to make sacrifices, they
need to trust that the result will be a better future for everyone. Absent that
trust, people will deem such sacrifices as unfair, even punitive, and, thus, will not
support the programs that require them.
Progressive policies are vital to reduce widespread suffering and inequality.
We have a moral obligation to collectively address these injustices through
state action.
West 99 — Robin West, Professor of Law at the Georgetown University Law Center, holds a J.D. from the University
of Maryland Law School and a J.S.M. from Stanford Law School, 1999 (“Is American Progressive Constitutionalism
Dead?: I. Conceptual And Critical Themes In Normative Progressive Constitutionalism: Is Progressive Constitutionalism
Possible?,” Widener Law Symposium (4 Wid. L. Symp. J. 1), Spring, Available Online to Subscribing Institutions via LexisNexis)
Progressivism is in part a particular moral and political response to the sadness of lesser
lives, lives unnecessarily diminished by economic, psychic and physical insecurity
in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the
suffering should be alleviated, and those lives should be enriched. To do so
must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser
lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither
entirely chargeable to our societal account, nor is it within our control. A "lesser life" marred by the early loss of a parent,
a parent's mourning occasioned by the accidental death of a child, or an adult's ongoing trauma set off by a childhood
disease, although cosmically unjust, is neither unjust in the ordinary sense, nor is it easily ameliorated through politics. In
contrast, the
suffering attendant to poverty or stunted opportunities for growth, the
suffering attendant to the absence of supportive communities, or the suffering
attendant to the desperate attempt to nurture children while unsure of one's own
physical or economic safety is largely chargeable to our moral account and may
be ameliorated through politics--at least in a social world like our own, marked by abundant natural
resources, vast economic opportunity, thriving neighborhoods, and competent police and security forces.
That such suffering exists on a shockingly widespread scale in our world is a
product of two states of affairs. First, it is the consequence of the decision to allow not simply
"property," but vast quantities of wealth to accumulate in a few private hands, and social
and sexual esteem as well as physical security and well-being to reside in one race and sex. Second, the suffering is
a product of our collective, political and legal inattention to the suffering those
distributions leave in their wake. Progressivism, I will assume, is marked by a
distinctive moral response to that suffering. When brought on by collective
inattention to private maldistributions of wealth, security or privilege, that
suffering is unjust, and for that reason gives rise to a moral and political imperative:
the conditions which give rise to the [*2] suffering must be changed, and changed
through some form of collective action, which in turn may (although often times may not)
require the coercive power of the state.
Secrecy Net-Benefit
Only the counterplan solves openness, preventing intelligence community
groupthink.
Benkler 13 — Yochai Benkler, Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School, Faculty
Co-Director of the Berkman Center for Internet and Society at Harvard University, former Professor at New York
University School of Law, recipient of the Electronic Frontier Foundation’s Pioneer Award and the Ford Foundation
Visionaries Award, holds an LL.B. from Tel-Aviv University and a J.D. from Harvard Law School, 2013 (“We Need a New
Church Committee,” The New Republic, June 11th, Available Online at http://www.newrepublic.com/article/113433/nsascandal-requires-new-church-committee, Accessed 07-08-2015)
Last week's groundbreaking reporting by The Guardian and The Washington Post exposed an NSA surveillance system
of breathtaking scale, breadth, and depth. Even if legal under some tortured interpretation of the law, this system leaves
the Fourth Amendment an empty vessel. The
sheer audacity of the NSA surveillance and the
complicity of segments of all three branches of government and the private
sector suggest that we need a basic re-evaluation of intelligence operations on the
scale of the Church Committee in the post-Watergate era. On Sunday, The Guardian disclosed—at his
request—that the source of the leak was Edward Snowden, a 29-year-old former technical assistant at the CIA and current
employee of a defense contractor.
The president's defense of the surveillance programs last Friday depended on our
trust in congressional oversight and judicial process. These made the program legitimate, he
argued, as he doubled down on his aggressive denunciation of the whistle-blowing that exposed the abuses. The
president's defense, however, merely underscores the subversion of checks and
balances by the post-September 11 constitution. It is precisely when traditional
checks and balances fail that the fourth estate is so crucial.
Secrecy breeds error
Secrecy undermines the foundation of learning: criticism. People on the inside of
the national security establishment cannot be trusted to make reasonable
judgments—not because they are bad people (one assumes that, for the most part, they are deeply committed and
well-intentioned)—but because they inhabit a deeply error-prone system that lacks the
basic elements of self-correction. Saddam Hussein is dead today because he created a system in which no
one could tell him that if he kept obscuring the fact that he had no WMD, he would die.
Open societies thrive not because they have smarter people, or better armies, or perfect markets. They thrive
because, in their very imperfection, they enable continuous learning. Open
societies can’t always act as effectively as non-open societies. For a while, planned
economies looked like they were better at putting Sputnik in orbit, and spy agencies unfettered by democratic qualms, we
feared, could foment revolution from Korea to Cuba. But
in the long run, openness made us learn,
adapt, and become better. That is why, eventually, either China will open up or America will continue to lead
into the twenty-first century. But only if we stay an open society.
Secrecy has been allowed to metastasize under the Bush-Obama national security
system. As the FISA Court order to Verizon showed, even the operation of the law is secret. The
Department of Justice issues secret memos; these become unchallenged interpretations
of law that FISA Court judges are asked to endorse without the benefit of an
opponent's criticism. Any good lawyer knows that if you read the briefs of one
side only, they seem overwhelmingly persuasive—until you read the other side's
brief. These decisions, in turn, remain secret, and thus immune to criticism even
after they have been issued. And that complete immunity from criticism
insulates them from good reason. They are, by design, hobbled, incapable of
embodying good judgment.
Congressional oversight suffers from similar information imbalances. When
Senators Feinstein and Chambliss tell us that the intelligence gathered is invaluable and
the civil rights violations minimal, we cannot trust their judgment: Their honest
judgments reflect information that is one side's brief for its own perspective.
Legislators can work their way out of this dynamic in extraordinary cases, but such divergence is not the normal course.
Congressional overseers who come with a critical frame of reference and
interpret the information skeptically—like Senators Wyden and Udall, who obliquely raised the
alarm for years—are caught in a Catch-22: They can only learn enough to criticize
knowledgeably by signing away their freedom to criticize publicly.
We’re told to trust the government’s surveillance package as a whole, as a black
box. But when we see two products of that opaque system that are so totally out of
whack with the proper balance between national security and constitutional
rights, we can have no confidence in the system. Asking us to simply trust the
black box is a completely inadequate response.
The torture program was enabled by spooks cooperating with national security types in the executive
manipulating the information available to the select few who participated in
congressional oversight and wildly overstating the value of their work. The Senate Select Committee on Intelligence
report on the incompetence, dissimulation, and sheer futility of that program remains a national security secret. But we
know the basic storyline. And there
is absolutely no reason to believe that the system of
checks and balances that failed so spectacularly there has performed impeccably
here, or that the self-affirming assertions of the spies about the critical value of
their work are systematically more credible.
Only a genuine, aggressive, independent, and transparent review process can
restore the confidence necessary to maintain security under the American
Constitution. We need a new Church Committee to assess the NSA's work in this
post-September 11, big data moment.
Groupthink risks extinction. Decentralized, open decision-making is key.
Adler 96 — David Gray Adler, Professor of Political Science at Idaho State University, 1996 (“The Judiciary and
Presidential Power In Foreign Affairs: A Critique,” Perspectives on Law and the Public Interest (1 Persp. on L. & Pub. Int. 1),
Fall, Available Online to Subscribing Institutions via Hein Online, p. 1-9)
{4} The
Constitution envisions the conduct of foreign policy as a partnership
between the President and Congress. Perhaps surprisingly, the Constitution assigns
Congress the role of senior partner. This assignment reflects, first, the
overwhelming preference of both the framers at the Constitutional Convention and the ratifiers in state
conventions for collective decision-making in both foreign and domestic affairs. Second, this assignment
of powers reflects their equally adamant opposition to unilateral executive control of U.S.
foreign policy. This constitutional arrangement is evidenced by specific, unambiguous textual language, almost
undisputed arguments by framers and ratifiers, and by logical-structural inferences from the doctrine of separation of
powers.[5]
{5} The
constitutional assignment of powers, moreover, is compelling and relevant for
twentieth century America for at least three reasons. First, separation of powers issues are perennial, for
they require consideration of the proper repository of power. Contemporary questions about the allocation of power
between the President and Congress in foreign affairs are largely the same as those addressed two centuries ago. Second,
the logic of collective decisionmaking in the realm of foreign relations is as
sound today as it was in the founding period. Third, although the world and the role of the United
States in international relations have changed considerably over the past 200 years, most questions of foreign affairs still
involve routine policy formulation and do not place a premium on immediate responsive action.
{6} The
preference for collective, rather than individual, decisionmaking runs
throughout those provisions of the Constitution that govern the conduct of
foreign policy. Congress, as a collective governing body, derives broad and
exclusive powers from Article I to regulate foreign commerce and to initiate all
hostilities on behalf of the United States, including war. As Article II indicates, the President shares
with the Senate the treaty-making power and the power to appoint ambassadors. Only two powers in foreign relations
are assigned exclusively to the
President. First, he is commander-in-chief, but he acts in this
capacity by and under the authority of Congress. As Alexander Hamilton and James Iredell
argued, the President, in this capacity, is merely first admiral or general of the armed forces, after war has been
authorized by Congress or in the event of a sudden attack against the United States.[6] Secondly, the President has the
power to receive ambassadors. Hamilton, James Madison, and Thomas Jefferson agreed that this clerk-like function was
purely ceremonial in character. Although this function has come to entail recognition of states at international law, which
carries with it certain legal implications, this founding trio contended that the duty of recognizing states was more
conveniently placed in the hands of the executive than in the legislature.[7] These two powers exhaust the textual grant of
authority to the President regarding foreign affairs jurisdiction. The
President's constitutional
authority pales in comparison to the powers of Congress.
{7} This Constitutional preference for shared decisionmaking is emphasized again in the construction of the shared treaty
power: "He shall have Power, by and with the Advice and consent of the Senate, to make Treaties, provided two-thirds of
the Senators present concur."[8] The compelling simplicity and clarity of the plain words of this clause leave no room to
doubt its meaning.[9] There is no other clause that even intimates a presidential power to make agreements with foreign
nations. Therefore, as Hamilton argued, the treaty power constitutes the principal vehicle for conducting U.S. foreign
relations.[10] In fact, there was no hint at the Constitutional Convention of an exclusive Presidential power to make
foreign policy. To the contrary, all the arguments of the framers and ratifiers were to the effect that the Senate and
President, which Hamilton and Madison described as a "fourth branch of government" in their capacity as treaty
maker,[11] are to manage concerns with foreign nations.[12] While a number of factors contributed to this decision,[13]
the pervasive fear of unbridled executive power loomed largest.[14] Hamilton's statement fairly represents these
sentiments:
The history of human conduct does not warrant that exalted opinion of human nature which would make it wise in a
nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the
world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.[15]
{8} The widespread fear of executive power that precluded presidential control of foreign policy also greatly influenced
the Convention's design of the War Clause. Article I, section 8, paragraph 11 states: "The Congress shall have Power . . .
To declare War."[16] The plain meaning of the clause is buttressed by the unanimous agreement among both framers and
ratifiers that Congress was granted the sole and exclusive authority to initiate war. The warmaking power, which was
viewed as a legislative power by Madison and Wilson, among others, was specifically withheld from the President.[17]
James Wilson, second only to Madison as an architect of the Constitution, summed up the values and concerns
underlying the war clause for the Pennsylvania Ratifying Convention:
This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single body of
men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large. This
declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a
certain conclusion that nothing but our national interest can draw us into war.[18]
No member of the Constitutional Convention and no member of any state ratifying convention ever attributed a different
meaning to the War Clause.[19]
{9} This undisputed interpretation draws further support from early judicial decisions, the views of eminent treatise
writers, and from nineteenth-century practice. I have discussed these factors elsewhere; here the barest review must
suffice.[20] The meaning of the War Clause was put beyond doubt by several early judicial decisions. No court since has
departed from this early view. In 1800, in Bas v. Tingy, the Supreme Court held that it is for Congress alone to declare
either an "imperfect" (limited) war or a "perfect" (general) war.[21] In 1801, in Talbot v. Seeman, Chief Justice John
Marshall, a member of the Virginia Ratifying Convention, stated that the "whole powers of war [are], by the Constitution
of the United States, vested in [C]ongress. . . ."[22] In Little v. Barreme, decided in 1804, Marshall concluded that President
John Adams' instructions to seize ships were in conflict with an act of Congress and were therefore illegal.[23] In 1806, in
United States v. Smith, the question of whether the President may initiate hostilities was decided by Justice William
Paterson, riding circuit, who wrote for himself and District Judge Tallmadge: "Does he [the President] possess the power
of making war? That power is exclusively vested in Congress . . . It is the exclusive province of Congress to change a state
of peace into a state of war."[24] In 1863, the Prize Cases presented the Court with its first opportunity to consider the
power of the President to respond to sudden attacks.[25] Justice Robert C. Grier delivered the opinion of the Court:
By the Constitution, Congress alone has the power to declare a natural or foreign war . . . If a war be made by invasion of
a foreign nation, the President is not only authorized but bound to resist force, by force. He does not initiate the war, but
is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a
foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be "unilateral."[26]
These judicial decisions established the constitutional fact that it is for Congress alone to initiate hostilities, whether in the
form of general or limited war; the President, in his capacity as commander-in-chief, is granted only the power to repel
sudden attacks against the United States.[27]
{10} The Convention's attachment to collective judgment and its decision to create a structure of shared power in foreign
affairs provided, in the words of Wilson, "a security to the people," for it was a cardinal tenet of republican ideology that
the conjoined wisdom of many is superior to that of one.[28] The emphasis on group decisionmaking came, of course, at
the expense of unilateral executive authority. This hardly posed a difficult choice, however; for the framers and ratifiers
held a pervasive distrust of executive power, a deeply held suspicion that dated to colonial times.[29] As a result of this
aversion to executive authority, the Convention placed control of foreign policy beyond the unilateral capacity of the
President. Furthermore, as Madison said, the Convention "defined and confined" the authority of the President so that a
power not granted could not be assumed.[30]
{11} The
structure of shared powers in foreign relations serves to deter abuse of
power, misguided policies, irrational action, and unaccountable behavior.[31] As
a fundamental matter, emphasis on joint policymaking permits the airing of sundry
political, social, and economic values and concerns. Such a structure wisely
ensures that the ultimate policies will not merely reflect the private preferences
or the short-term political interests of the President.[32]
{12} Of course, this arrangement has come under fire in the postwar period on a number of policy grounds. Some have
argued, for example, that fundamental political and technological changes in the character of international relations and
the position of the United States in the world have rendered obsolete an eighteenth century document designed for a
peripheral, small state in the European system of diplomatic relations. Moreover, it has been asserted that quick action
and a single, authoritative voice are necessary to deal with an increasingly complex, interdependent, and technologically
linked world capable of almost instantaneous massive destruction. Extollers of presidential dominance also have
contended that only the President has the qualitative information, the expertise, and the capacity to act with the necessary
dispatch to conduct U.S. foreign policy.[33]
{13} These policy arguments have been reviewed, and discredited, elsewhere; space limitations here permit only a brief
commentary.[34] Above all else, the
implications of U.S. power and action in the twentieth
century have brought about an even greater need for institutional
accountability and collective judgment than existed two hundred years ago.
The devastating, incomprehensible destruction of nuclear war and the possible
extermination of the human race demonstrate the need for joint participation in
any decision to initiate war. Moreover, most of the disputes at stake between the
executive and legislative branches in foreign affairs have virtually nothing to do
with the need for rapid response to crisis. Rather, they are concerned only with
routine policy formulation and execution, a classic example of the authority
exercised under the separation of powers doctrine.[35]
{14} Nevertheless, these joint functions have been fused by the executive branch and
have become increasingly unilateral, secretive, insulated from public debate,
and hence unaccountable.[36] In the wake of Vietnam, Watergate, and the Irancontra scandal, unilateral executive behavior has become ever more difficult to
defend. Scholarly appraisals have destroyed arguments about intrinsic executive
expertise and wisdom in foreign affairs and the alleged superiority of
information available to the President.[37] Moreover, the inattentiveness of presidents
to important details and the effects of "groupthink" that have dramatized and
exacerbated the relative inexperience of various presidents in international
relations have also devalued the extollers' arguments. Finally, foreign policies, like
domestic policies, are
reflections of values. Against the strength of democratic
principles, recent occupants of the White House have failed to demonstrate the
superiority of their values in comparison to those of the American people and
their representatives in Congress.
{15} The assumption of foreign affairs powers by recent presidents represents a
fundamental alteration of the Constitution that is both imprudent and
dangerous. We turn now to an examination of the judiciary's contribution to executive hegemony in foreign affairs.
The counterplan solves this impact — it checks executive overreach.
German et al. 15 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center
for Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, et al.,
co-authored and endorsed by Counsel, Advisers, and Professional Staff Members of the Church Committee including
Chief Counsel Frederick A.O. Schwarz Jr., Loch Johnson, John T. Elliff, Burt Wides, Jim Dick, Frederick Baron, Joseph
Dennin, Peter Fenn, Anne Karalekas, Michael Madigan, Elliot Maxwell, Gordon Rhea, Eric Richard, Athan Theoharis, and
Christopher Pyle, 2015 (“Strengthening Intelligence Oversight,” Report by the Brennan Center for Justice at the New York
University School of Law, Available Online at
https://www.brennancenter.org/sites/default/files/publications/Church_Committee_Web_REVISED.pdf, Accessed 0709-2015, p. 4)
Moreover, as important as the Privacy and Civil Liberties Oversight Board and President’s Review Group investigations
are, it
is the constitutional responsibility of Congress, as a co-equal branch of
government and the direct representatives of the people, to restore the public
trust in U.S. intelligence programs. The Senate Intelligence Committee’s five-year inquiry into the CIA’s
abusive detention and interrogation practices provides a striking example of the diligence Congress can apply in
meticulously scrutinizing covert government activities, and preparing a report suitable for public release. But it also
exposes its limits. The summarized report details how the CIA successfully frustrated oversight of its torture program for
several years by refusing, delaying, or inappropriately limiting congressional briefings, and providing incomplete,
inaccurate, and misleading information to its overseers. The resources necessary to conduct such an investigation of one
program within one agency reveal the depth of the challenge Congress faces in fulfilling its intelligence oversight
responsibilities.
Congress needs to demonstrate its ability to check executive branch overreach
across the multiple programs and agencies, re-establish democratic controls over
intelligence policies, and ensure public accountability of intelligence practices. As
part of a comprehensive review of the intelligence enterprise, Congress must
examine its own performance in overseeing all 17 intelligence community
member agencies, including the Federal Bureau of Investigation, the Central Intelligence Agency, the Drug
Enforcement Administration, intelligence components of the Departments of Defense (including the National Security
Agency), State, Treasury, Energy, and particularly the more recently established Department of Homeland Security.3
The purpose of such a review should be to evaluate whether current legal
controls and congressional oversight structures and practices are effective in
allocating intelligence resources properly and efficiently; to check agency
abuses; and to adequately inform all members of Congress and the American
public about the scope, necessity, and effectiveness of all authorized intelligence
activities, to the greatest extent possible.
To their credit, both the House and Senate have periodically reviewed various aspects of their oversight operations to
assess how to improve them. But their day-to-day duties of monitoring burgeoning, complex intelligence collection,
counterintelligence, and covert action is extremely time consuming for committee members, even apart from their other
congressional responsibilities. It would not be realistic for them to also undertake the kind of comprehensive and
integrated review of the myriad intelligence oversight issues we raise below.
The Church Committee’s work is perhaps best remembered for exposing significant wrongdoing by the
intelligence agencies, often secretly authorized by presidents of both political parties, which undermined American
freedoms and democratic values. But its lasting
legacy was providing Congress with the
factual foundation and legal framework for crafting appropriate organizational
structures and constitutional controls to ensure that intelligence operations
remain effective, lawful, and consistent with our national interests. Examining
whether the controls and structures created four decades ago remain an effective
bulwark against error and abuse is necessary and appropriate. And the growing
mistrust of U.S. intelligence activities at home and abroad make it essential.
Terrorism Net-Benefit
The terrorism DA is a net-benefit. If particular intelligence programs are
necessary to prevent terrorism, the committee will recommend they be
continued. Only programs that aren’t necessary for counter-terrorism will be
on the chopping block — figuring out which is which is the committee’s job.
The counterplan best protects national security — a comprehensive review of
intelligence operations is vital.
German et al. 15 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center
for Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, et al.,
co-authored and endorsed by Counsel, Advisers, and Professional Staff Members of the Church Committee including
Chief Counsel Frederick A.O. Schwarz Jr., Loch Johnson, John T. Elliff, Burt Wides, Jim Dick, Frederick Baron, Joseph
Dennin, Peter Fenn, Anne Karalekas, Michael Madigan, Elliot Maxwell, Gordon Rhea, Eric Richard, Athan Theoharis, and
Christopher Pyle, 2015 (“Strengthening Intelligence Oversight,” Report by the Brennan Center for Justice at the New York
University School of Law, Available Online at
https://www.brennancenter.org/sites/default/files/publications/Church_Committee_Web_REVISED.pdf, Accessed 0709-2015, p. 3-4)
Lawful, properly controlled intelligence activities are critical to our national
security. But they require public support, which can only be achieved through
sound governance, independent oversight, and public accountability. To this
end, several former Church Committee staff members signed a letter last year
requesting that Congress establish a new special investigative committee to
conduct a thorough public re-examination of intelligence community authorities
and practices, and their impact on privacy and civil liberties. While recent
investigations by the Privacy and Civil Liberties Oversight Board and the
President’s Review Group on Intelligence and Communications Technologies are
extraordinarily helpful and will undoubtedly inform this new committee’s work, they focused on just a few
intelligence collection programs.2 Only a comprehensive examination of how the
multitude of intelligence [end page 3] programs, agencies, and authorities work in
combination can measure the cumulative effect on privacy and civil liberties,
ensure compliance with the law, and identify waste and redundancy that
undermines performance.
We don’t need to win a decisive link. If there’s any chance that the plan
imperils important counter-terrorism programs, the counterplan is a better
option: it results in effective reform and oversight without jeopardizing
national security.
Jaycox and Tien 14 — Mark Jaycox, Legislative Analyst at the Electronic Frontier Foundation, former
Contributor to ArsTechnica, former Legislative Research Assistant for LexisNexis, holds a B.A. in Political History from
Reed College, and Lee Tien, Senior Staff Attorney and Adams Chair for Internet Rights at the Electronic Frontier
Foundation, holds a J.D. from the University of California-Berkeley School of Law, 2014 (“Three Hearings, Nine Hours,
and One Accurate Statement: Why Congress Must Begin a Full Investigation into NSA Spying,” Electronic Frontier
Foundation, January 7th, Available Online at https://www.eff.org/deeplinks/2013/12/three-hearings-nine-hours-andone-accurate-statement-why-congress-must-begin-full, Accessed 07-09-2015)
Regaining Congressional Oversight
Something is very wrong when Congress and the public learn more about the
NSA's activities from newspaper leaks than from the Senate and House intelligence
committees. The committees are supposed to oversee the intelligence community
activities on behalf of the public, but more often—as the New Yorker describes it—"treat[]
senior intelligence officials like matinée idols.”
It's time for Congress to reassert its oversight role and begin a full-scale
investigation into the NSA’s surveillance and analytic activities. The current
investigations—which aren't led by Congress—are unable to fully investigate
the revelations, Congressional committees' hearings have added little, and
Congress cannot rely solely on mandating more reports from the NSA as a
solution.
Hearings Inside Congress
So far, Senate Judiciary Committee Chair Patrick Leahy is valiantly attempting to shine more light on the NSA's activities,
but the hearings have only served as venues for administration officials to parrot talking points and provide non-answers
to important questions. This is very similar to what happened after the New York Times released the first reports of
warrantless wiretapping in December 2005.
The hearings’ ineffectiveness are shown by the fact that it took three hearings—nine hours—for Senator Leahy to clarify
just how many terrorist attacks the collection of all Americans' calling records stopped. In the first hearing (July),
government witnesses said the program stopped "54 terrorist attacks." By the third hearing (October)—and after much
pressure by Senator Leahy—General Alexander corrected his statement: it turns out the program had only stopped "one,
perhaps two" terror plots, one of which involved "material support." Aside from this, there are still two sets of questions
from the hearings by Senator Richard Blumenthal and Senator Ron Wyden that the intelligence community has still left
unanswered.
It shouldn’t take three hearings over several months for a member of Congress to obtain accurate and understandable
information from the Director of the NSA.
A Congressional Investigation is Needed
Congress must initiate a full-scale, targeted, investigation outside of its regular
committees. Such an investigation would normally fall under Congress' intelligence or other oversight committees.
But any investigation into the NSA's activities must include a review of the current
Congressional oversight regime. Since the creation of the intelligence committees
in 1978, there has been no external audit or examination of how the system has
performed.
A review is needed when the Senate intelligence committee's own chair, Senator Dianne Feinstein,
admits how extraordinary difficult it is to obtain information from the
intelligence community. Members of Congress have complained that briefings
are like "playing a game of 20 questions" and other members have even noted how the House
intelligence committee may have neglected to pass information to members before a key vote.
Current members of Congress aren't the only ones complaining: former Vice President Walter Mondale and Senator Gary
Hart—two former members of Congress who were instrumental in creating the Senate intelligence committee—have also
said that the intelligence committees are not operating as they were originally intended.
Increasing Reports is a Start
So far, Congress favors increasing reporting requirements or asking for an investigation by an Inspector General (IG).
Transparency bills—like bills brought by both Senator Al Franken and Representative Zoe Lofgren—are a fantastic start.
But such reports won't uncover the secret law the NSA is using or the secret collection of ordinary people’s information. It
also won't tell us about the use of Executive Order 12333. The bills will only provide a numerical range regarding the
orders the government sends, companies receive, and the number of users or accounts the orders impact.
What’s worse, the Inspector General of the Intelligence Community—who reports directly to the very officials who
authorized the spying—told Senators he is unable to carry out a review of the programs due to a lack of resources. And
even if such an investigation were to occur, the IG is unable to even request documents without the approval of the
Director of National Intelligence.
Time for a New Investigation
The NSA
leaks are ushering in a new day regarding Congressional oversight of
the intelligence community. And it's why Congress must dedicate the resources
to a full-scale investigation by a special committee. Such a committee will allow
Congress to delve into what other data the NSA may be collecting en masse about
Americans, to learn about how the surveillance laws it passed are being used,
and to inform the American public—all while protecting national security. It's a
tough balancing act, but Congress was able to do it in the 1970s with the
Church and Pike Committees. And it should have the courage to do it again
today.
Politics Net-Benefit
The counterplan avoids politics — it is insulated from partisanship.
German et al. 15 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center
for Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, et al.,
co-authored and endorsed by Counsel, Advisers, and Professional Staff Members of the Church Committee including
Chief Counsel Frederick A.O. Schwarz Jr., Loch Johnson, John T. Elliff, Burt Wides, Jim Dick, Frederick Baron, Joseph
Dennin, Peter Fenn, Anne Karalekas, Michael Madigan, Elliot Maxwell, Gordon Rhea, Eric Richard, Athan Theoharis, and
Christopher Pyle, 2015 (“Strengthening Intelligence Oversight,” Report by the Brennan Center for Justice at the New York
University School of Law, Available Online at
https://www.brennancenter.org/sites/default/files/publications/Church_Committee_Web_REVISED.pdf, Accessed 0709-2015, p. 14)
The success of the Church Committee holds many lessons for those that would attempt a
similar undertaking today. It conducted a thorough public examination of secret
intelligence operations that revealed unnecessary, flawed, and abusive activities.
At the same time, it won public support for reform while still protecting
properly classified information and retaining the trust of the intelligence
community.
Certainly, many of the Committee’s achievements can be attributed to the leadership of Sens. Frank Church and John
Tower, who ran the investigation in a strictly bipartisan manner. Defining
the scope of the
investigation to include intelligence activities undertaken under the authority of
presidents of both parties helped to alleviate any claims the Committee’s
criticisms were partisan.
Since the intelligence activities now under public scrutiny have spanned the
terms of two presidents of different parties, conducting a rigorous examination
unaffected by party politics should be similarly achievable.
The counterplan removes Obama from the equation — the Committee will
push the plan, not the President.
There is bipartisan support for a new Church Committee. It avoids partisan
fights.
German et al. 15 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center
for Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, et al.,
co-authored and endorsed by Counsel, Advisers, and Professional Staff Members of the Church Committee including
Chief Counsel Frederick A.O. Schwarz Jr., Loch Johnson, John T. Elliff, Burt Wides, Jim Dick, Frederick Baron, Joseph
Dennin, Peter Fenn, Anne Karalekas, Michael Madigan, Elliot Maxwell, Gordon Rhea, Eric Richard, Athan Theoharis, and
Christopher Pyle, 2015 (“Strengthening Intelligence Oversight,” Report by the Brennan Center for Justice at the New York
University School of Law, Available Online at
https://www.brennancenter.org/sites/default/files/publications/Church_Committee_Web_REVISED.pdf, Accessed 0709-2015, p. 20-21)
A comprehensive evaluation of U.S. intelligence activities and the effectiveness
of congressional oversight is necessary to ensure compliance with law and
American values. This is not a partisan matter. Members of both parties have
expressed deep concerns about recent revelations and joined to propose
legislative controls. Nor is it a matter of inevitable legislative-executive conflict.
Over the long term, the executive branch has a great interest in having Congress,
and, to the extent possible, the public, understand what intelligence is all about — and
how it may affect Americans’ private lives as well as our national security.
The Church Committee was formed by a newly elected Congress at a moment
when the public demanded answers. Four decades later, 2015 offers a similar
opportunity for Congress to engage seriously with the intelligence challenges of
the 21st century.
This is empirically proven by the Church Committee.
German 14 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center for
Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, 2014
(“The US Needs a New Church Committee,” Defense One, December 11th, Available Online at
http://www.defenseone.com/ideas/2014/12/us-needs-new-church-committee/101046/, Accessed 07-08-2015)
The Church Committee protected legitimate secrets while exposing the abusive
intelligence activities that had taken place under the orders of sequential
presidential administrations. The committee’s caution engendered cooperation
with the agencies amid an already bi-partisan consensus for reform.
In the years that followed, Congress established permanent select intelligence
committees to oversee intelligence activities and passed the Foreign Intelligence Surveillance
Act, which placed domestic electronic surveillance for national security purposes
under judicial supervision for the first time. A legislative charter limiting the investigative powers of
the FBI failed, however, after Attorney General Edward Levi issued Justice Department guidelines serving that same
purpose.
While these reforms certainly didn’t prevent every future intelligence abuse and
overreach, there can be no doubt that they made the intelligence agencies more
deliberative and accountable. The Church Committee report warned that a new national security crisis
would test its recommended reforms, and the terrorist attacks of September 11, 2001 have done just that. The 2013 leaks
by National Security Agency contractor Edward Snowden revealed that the intelligence committees and the FISA Court
had been complicit in expanding the intelligence agencies’ power to collect excessive amounts of information about
Americans not suspected of any wrongdoing, shocking even members of Congress who voted on these authorities. New
questions are now being asked not only about the conduct of the intelligence agencies, but the competence of the postChurch Committee oversight structures to identify and curb abuses.
2NC/1NR — Solvency
They Say: “No Solvency — CP Doesn’t Pass Plan”
1. Yes, Results In Plan: if the plan is a good idea, the committee will
recommend it as part of its report. This will result in a short delay, but the netbenefits outweigh.
2. Plan Doesn’t Solve: investigation is needed before legislation to avoid
circumvention. Otherwise, policy language will be lawyered — that’s Bump.
3. Counterplan Deters NSA: “anticipated reaction” prevents future abuse even
if the counterplan doesn’t pass the plan.
German 14 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center for
Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, 2014
(“The US Needs a New Church Committee,” Defense One, December 11th, Available Online at
http://www.defenseone.com/ideas/2014/12/us-needs-new-church-committee/101046/, Accessed 07-08-2015)
Dr. John Elliff, the Church Committee’s domestic intelligence task force leader,
argued that while oversight doesn’t prevent errant intelligence activities — it
exposes them after the fact — the resulting criticism creates a lasting
bureaucratic chilling effect that inhibits abuse. In short, this phenomena, called
“anticipated reaction” means that an agency that gets in trouble will seek to
avoid that trouble in the future.
Elliff, who went on to serve on the Senate Intelligence and Judiciary Committees as well as in intelligence positions
within the FBI, CIA and Defense Department, describes the current oversight system as
“inadequate.”
4. Process Trumps Policy: investigation is more important than the policy
outcome.
German 14 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center for
Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, 2014
(“The US Needs a New Church Committee,” Defense One, December 11th, Available Online at
http://www.defenseone.com/ideas/2014/12/us-needs-new-church-committee/101046/, Accessed 07-08-2015)
However, because
so little is publicly known about how oversight by intelligence
committees and the FISA Court work in practice, it is difficult to know whether
fixing problems that lead to weaker congressional oversight would really
improve the results we receive from our intelligence agencies. Asking the
questions, then, becomes just as important as finding solutions. It is more
important than ever to start evaluating what is needed to create meaningful and
lasting intelligence oversight.
The U.S. has reinitiated military engagement in Iraq, and started a new one in Syria. The president and intelligence
officials have acknowledged this military intervention was necessary because the intelligence agencies were slow to
recognize the growing threat the Islamic State posed to the U.S. Rigorous
oversight is essential to
ensuring our intelligence agencies operate at peak efficiency and effectiveness.
Last year, Schwarz and Elliff joined 13 other former Church Committee staff
members in calling for a new comprehensive examination of the intelligence
agencies. This examination must certainly include an evaluation of how we can
existing strengthen oversight structures or whether new mechanisms need to be
created.
They Say: “No Solvency — CP Doesn’t Pass Legislation”
1. Committee Mandate: the counterplan results in specific recommendations
for legislative and regulatory changes — this is part of its mandate.
Cohn and Jaycox 13 — Cindy Cohn, Executive Director and former Legal Director and General Counsel of the
Electronic Frontier Foundation, holds a J.D. from the University of Michigan Law School, and Mark Jaycox, Legislative
Analyst at the Electronic Frontier Foundation, former Contributor to ArsTechnica, former Legislative Research Assistant
for LexisNexis, holds a B.A. in Political History from Reed College, 2013 (“NSA Spying: The Three Pillars of Government
Trust Have Fallen,” Electronic Frontier Foundation, August 15th, Available Online at
https://www.eff.org/deeplinks/2013/08/nsa-spying-three-pillars-government-trust-have-fallen, Accessed 07-09-2015)
The pattern is now clear and it's getting old. With
each new revelation the government comes
out with a new story for why things are really just fine, only to have that
assertion demolished by the next revelation. It's time for those in government
who want to rebuild the trust of the American people and others all over the
world to come clean and take some actual steps to rein in the NSA. And if they don't, the
American people and the public, adversarial courts, must force change upon it.
We still think the
first step ought to be a truly independent investigatory body that is
assigned to look into the unconstitutional spying. It must be empowered to
search, read and compel documents and testimony, must be required to give a
public report that only redacts sensitive operational details, and must suggest
specific legislation and regulatory changes to fix the problem—something like
the Church Committee or maybe even the 9/11 Commission. The President made a mockery of this idea
recently, by initially handing control of the "independent" investigation he announced in his press conference to the man
who most famously lied to Congress and the American people about the spying, the Director of National Intelligence
James Clapper.
The three pillars of American trust have fallen. It's
time to get a full reckoning and build a new
house from the wreckage, but it has to start with some honesty.
2. Church Committee Proves: it recommended a series of reforms that
Congress then implemented.
3. Trust Wyden: he will push through meaningful reforms. His record of
challenging the intelligence agencies is unmatched.
Peterson 13 — Andrea Peterson, Technology Policy Reporter for the Washington Post covering cybersecurity,
consumer privacy, transparency, surveillance, and open government, 2013 (“Wyden is trying to tell us something about
the opinion justifying the phone records program,” The Switch—a Washington Post blog, October 14th, Available Online at
https://www.washingtonpost.com/blogs/the-switch/wp/2013/10/14/wyden-is-trying-to-tell-us-something-about-theopinion-justifying-the-phone-records-program/, Accessed 07-09-2015)
As a member of the Senate Intelligence Committee, Wyden has access to more
details about intelligence community activities than almost anyone not part of them
carrying them out. And for years he has asked very pointed questions in public
hearings, argued for declassification of significant FISA Court opinions, and
introduced legislation aimed at curbing spying programs. You might remember that time just
months before the NSA documents came out that one of Wyden's questions caught Director of National
Intelligence James Clapper in what sounded an awful lot like a lie about if the U.S. collected any
sort of data on U.S. persons. If not, we've helpfully included the video below.
[Video of James Clapper lying omitted]
Rep. Justin Amash (R-Mich.) recently called
him a sort of "congressional whistleblower." But
because of the classified nature of many of the things he is objecting to, often
Wyden has been forced to keep his warnings vague. For instance, he warned that "when the
American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they
will be angry,” on the Senate floor in May 2011.
But there are other times his efforts have been more explicit — for instance, his repeated
suggestions that Americans should be worried about the privacy of their geolocation data. Not only did he bring it up
during speeches and hearings, he's introduced legislation addressing the topic for the past several years.
Wyden has been so dogged about geolocation that the NSA did finally give him some sort of on-the-record response,
admitting that they ran a test program a few years ago. But he has implied that that's not a full answer, saying their
response still leaves "most of the real story secret."
Considering Wyden's history of nudging the conversation toward meaningful disclosure, I'd be willing to bet there's more
for us to learn about geolocation programs. Just like I'm willing to bet there's something interesting in the original FISA
Court justification for the bulk collection of domestic phone records. Because if
the ongoing surveillance
debate is a coal mine, Wyden is the canary for privacy issues.
4. Yes, Votes: Democrats will line up behind Wyden — he’ll get the votes.
Clift 14 — Eleanor Clift, Political Correspondent for The Daily Beast, 2014 (“Ron Wyden and Rand Paul, the Senate's
NSA-Busting ‘Ben Franklin Caucus’,” The Daily Beast, June 14th, Available Online at
http://www.thedailybeast.com/articles/2014/06/14/ron-wyden-and-rand-paul-the-senate-s-nsa-busting-ben-franklincaucus.html, Accessed 07-09-2015)
Just as Paul’s apostasy on some issues irks Republicans, Wyden’s
assertiveness on the NSA hasn’t
always been welcomed by fellow Democrats, notably Intelligence Committee Chair Dianne
Feinstein. The Snowden disclosures have moved more colleagues into his camp.
“If Democrats could choose between Wyden and Feinstein by a secret ballot, he
would win a substantial number of votes, maybe even a majority,” says William
Galston with the Brookings Institution. That’s not true of Paul, who represents more of a dissident
voice within Republican ranks. That could change after November if the GOP gains control of the senate.
5. Meaningful Reform: the counterplan is the only way to push through
serious legislation.
Fenn 15 — Peter Fenn, Democratic Political Strategist and Head of Fenn Communications—a leading political and
public affairs media firm, Adjunct Professor in the Graduate School of Political Management at George Washington
University, holds an M.A. in International Relations from the University of Southern California, 2015 (“'No Place to
Hide',” U.S. News & World Report, June 3rd, Available Online at http://www.usnews.com/opinion/blogs/peterfenn/2015/06/03/nsa-fbi-spying-excesses-underscore-need-for-a-new-church-committee, Accessed 07-08-2015)
The Electronic Frontier Foundation and the Brennan Center for Justice at New York University School of
Law are both calling for increased oversight, reform of the Foreign Intelligence Surveillance Act
legislation and serious examination of the impact of the new technology on Americans'
basic privacy. Section 702 of the FISA Amendments Act allows for mass
surveillance of online communications, and the Electronic Frontier Foundation believes it
should be curtailed.
The House and the Senate passed the new USA Freedom Act and the president signed it, but that is only
a first step. If we are truly going to get a handle on everything from drones to detention camps
to torture, as well as NSA surveillance, we need a full investigation of our intelligence
agencies similar to the Church Committee and serious legal and executive
remedies.
They Say: “No Solvency — CP Doesn’t Solve Privacy”
1. Yes, Privacy: the counterplan results in sustainable reform that protects
individual rights.
Ellsberg 13 — Daniel Ellsberg, Whistleblower who leaked the Pentagon Papers in 1971, Co-Founder of the Freedom
of the Press Foundation, served as a Strategic Analyst for the RAND Corporation, holds a Ph.D. in Economics from
Harvard University, 2013 (“Tell Congress: Investigate Nsa Abuses And Protect Our Constitutional Rights,” Petition to
Congress, Available Online at https://www.credomobilize.com/petitions/tell-congress-investigate-nsa-abuses-andprotect-our-constitutional-rights, Accessed 07-09-2015)
We need a new Church Committee that is fully empowered to investigate the
abuses of the NSA and make public its findings, and that is charged with
recommending new laws to ensure the U.S. government does not violate our
constitutional rights.
Why is this important?
In 1975, Senator Frank Church, who led
a committee charged with investigating and
making public the abuses of American intelligence agencies, spoke of the National Security
Agency in these terms:
"I
know the capacity that is there to make tyranny total in America, and we must
see to it that this agency and all agencies that possess this technology operate
within the law and under proper supervision, so that we never cross over that
abyss. That is the abyss from which there is no return."
The dangerous prospect of which he warned was that America's intelligencegathering capability – which is today beyond any comparison with what existed in his pre-digital era – "at
any time could be turned around on the American people and no American
would have any privacy left."
That has now happened. And so we need a new congressional committee like the
one Senator Church led to investigate the revelations by Edward Snowden. The
existing Intelligence Committees in House and Senate, gagged by secrecy and co-opted
by the intelligence community they supposedly oversee, have failed to check
dangerously excessive surveillance of Americans’ communications.
Pressure by an informed public on Congress to form a select committee to
investigate these revelations might lead us to bring the NSA and the rest of the
intelligence community under real supervision and restraint and restore the
protections of the Bill of Rights.
2. Wyden Proves: he’s the biggest privacy defender in Congress. He’ll steer the
recommendations to protect civil liberties.
3. Best Balancing Act: the counterplan results in effective cost-benefit analysis
that balances privacy and security. It solve the case but avoids the DA.
German et al. 15 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center
for Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, et al.,
co-authored and endorsed by Counsel, Advisers, and Professional Staff Members of the Church Committee including
Chief Counsel Frederick A.O. Schwarz Jr., Loch Johnson, John T. Elliff, Burt Wides, Jim Dick, Frederick Baron, Joseph
Dennin, Peter Fenn, Anne Karalekas, Michael Madigan, Elliot Maxwell, Gordon Rhea, Eric Richard, Athan Theoharis, and
Christopher Pyle, 2015 (“Strengthening Intelligence Oversight,” Report by the Brennan Center for Justice at the New York
University School of Law, Available Online at
https://www.brennancenter.org/sites/default/files/publications/Church_Committee_Web_REVISED.pdf, Accessed 0709-2015, p. 20-21)
The Privacy and Civil Liberties Board’s report on the government’s intelligence activities under the FISA Amendments
Act included a recommendation that the government “should develop a comprehensive methodology for assessing the
efficacy and relative value of counterterrorism programs.”60 It
would be improper for any
government agency to operate major programs without evaluating their
effectiveness, much less agencies with such important security missions. Congress must fill the void
and, in consultation with the agencies, develop metrics to measure the
performance of all intelligence, law enforcement, and homeland security
programs. In conducting such an evaluation it is important to recognize, as the
President’s Review Group suggested, that all risks must be considered and addressed.
a. Impact on individual rights
As the Church Committee reported, most intelligence activities take place in secret, and the victim of abusive government
activity may never know the source of his misfortune.61 The
scope of today’s mass surveillance
programs threaten everyone’s privacy rights by their mere existence, and potentially
chill free speech and association, particularly over the Internet. The President’s Review Group highlighted these concerns,
identifying privacy as a “central aspect of liberty” that must be protected.62 Legislators
with responsibility
over intelligence, law enforcement, and homeland security programs owe a
special obligation to ensure these activities do not infringe on individual rights.
b. Impact on other interests
Other important interests to protect include our relations with foreign nations.
Treating allies with respect is essential, of course, but the rule of law should be our guide even when dealing with
adversaries. American values should not just be something we talk about. Our actions in the international arena will set
an example for other nations, so we must ensure that our actions match our words.
Congress is also responsible to ensure the taxpayers’ money is spent wisely, so the financial
costs of the
programs must be weighed against their effectiveness. Waste, fraud, and abuse
in these programs does real harm to our security, not just the bottom line. And spending
government resources on security measures means other priorities cannot be
addressed. There are also other ancillary economic consequences of intelligence activities, which U.S. tech companies
are currently experiencing as a result of the global response to NSA surveillance activities.63
Government officials working in the national security field have a natural
tendency to overestimate near-term threats and favor quick and decisive action
to address them. As policymakers responsible for a broad range of national
interests, Congress must be more deliberative and compel these agencies to
consider the long-term impacts of their activities. [end page 20]
C. Cost-benefit analysis
Finally, these
costs must be measured against the benefits, which are often much
harder to evaluate. If an agency overestimates a potential threat, then employs expensive and intrusive means to
deter it, does the fact that the threat did not materialize mean the methods were effective? After more than a dozen years
of war, pervasive surveillance, infringements on liberty, as well as trillions of dollars spent and thousands of soldiers lost,
can we tell if Americans are any safer or more prosperous? Congress
must develop its own ability to
independently evaluate the threats we face and the proper means to address
them to ensure all the interests of the American people are being served,
including the right to be free from unwarranted government interference.
They Say: “No Solvency — CP Doesn’t Solve X”
* This is a blueprint for how to answer solvency deficit arguments about advantages other than privacy/civil liberties. It
requires editing to apply it to particular advantages.
1. Yes, [Advantage]: the committee will take into account the importance of
[the advantage] and propose recommendations based on it in their report.
2. Best Cost-Benefit Analysis: the counterplan results in more effective costbenefit analysis that balances short- and long-term interests.
German et al. 15 — Michael German, Fellow in the Liberty and National Security Program at the Brennan Center
for Justice at the New York University School of Law, former Policy Counsel for National Security and Privacy for the
American Civil Liberties Union Washington Legislative Office, former Adjunct Professor for Law Enforcement and
Terrorism at the National Defense University, former Special Agent with the Federal Bureau of Investigation specializing
in domestic terrorism and covert operations, served as a Counterterrorism Instructor at the FBI National Academy, et al.,
co-authored and endorsed by Counsel, Advisers, and Professional Staff Members of the Church Committee including
Chief Counsel Frederick A.O. Schwarz Jr., Loch Johnson, John T. Elliff, Burt Wides, Jim Dick, Frederick Baron, Joseph
Dennin, Peter Fenn, Anne Karalekas, Michael Madigan, Elliot Maxwell, Gordon Rhea, Eric Richard, Athan Theoharis, and
Christopher Pyle, 2015 (“Strengthening Intelligence Oversight,” Report by the Brennan Center for Justice at the New York
University School of Law, Available Online at
https://www.brennancenter.org/sites/default/files/publications/Church_Committee_Web_REVISED.pdf, Accessed 0709-2015, p. 8)
Part of Congress’s
oversight responsibility includes assisting the intelligence
agencies in conducting this type of pre-operational cost-benefit analysis. Members
of Congress often have a much greater awareness of and appreciation for the
breadth of U.S. interests involved in international relations, and the patience for
taking a long-term approach that many working in the national security and
intelligence professions do not. Not surprisingly, given the nature of their jobs, national
security officials have a tendency to view potential threats as imminent and favor
action over deliberation, which is what leads to a focus on resolving short-term
problems without appropriately considering the long-term impact.
They Say: “No Solvency — Delays”
1. Plan Gets Delayed, Too: even if it isn’t outright circumvented, agencies will
push back and delay reforms. Section 215 proves — despite the Freedom Act,
NSA got a six-month extension from the FISC.
2. No Significant Delay: it won’t take long to produce a report — the Church
Committee proves.
Hartmann 14 — The Thom Hartmann Program—a progressive radio program, 2014 (“Is It Time for a New Church
Committee?,” Truthout, February 25th, Available Online at http://www.truth-out.org/opinion/item/22103-is-it-time-fora-new-church-committee, Accessed 07-09-2015)
Once the Watergate scandal broke open and news of illegal intelligence
gathering by government agencies began to spread, Senator Frank Church, a Democrat from
Idaho, formed the Church Committee, which was tasked with investigating illegal
intelligence gathering activities by the FBI, NSA, and CIA.
Between 1975 and 1976, the Church Committee published fourteen reports on
intelligence gathering abuses by U.S. intelligence agencies.
In August of 1975, the Church Committee released its findings.
They Say: “No Solvency — Church Committee Failed”
The Church Committee didn’t fail — FISA worked until it was gutted in 2008.
Cohn and Timm 13 — Cindy Cohn, Executive Director and former Legal Director and General Counsel of the
Electronic Frontier Foundation, holds a J.D. from the University of Michigan Law School, and Trevor Timm, Activist at
the Electronic Frontier Foundation, holds a J.D. from New York Law School, 2013 (“In Response to the NSA, We Need A
New Church Committee and We Need It Now,” Electronic Frontier Foundation, June 7 th, Available Online at
https://www.eff.org/deeplinks/2013/06/response-nsa-we-need-new-church-commission-and-we-need-it-now,
Accessed 07-09-2015)
Following on the heels of the Guardian reporting that the NSA is collecting all US call data records of Verizon customers,
the Guardian and Washington Post yesterday reported that nine of the biggest Internet companies, including Facebook,
Google, Yahoo, and Microsoft, are also working with the government in a vast spying program, where a massive amount
of online data flows to the NSA, all in secret.
The revelations not only confirmed what EFF has long alleged, they went even further and honestly, we’re still reeling.
EFF will, of course, be continuing its efforts to get this egregious situation addressed by the courts.
Congress now has a responsibility to the American people to
conduct a full, public investigation into the domestic surveillance of Americans
by the intelligence communities, whether done directly or in concert with the
FBI. And it then has a duty to make changes in the law to stop the spying and
ensure that it does not happen again.
In short, we need a new Church Committee.
In the mid-70s, in response to revelation that the government was engaging in systematic domestic surveillance on
But one thing is clear.
domestic targets—including anti-war activists, academics, and government critics like Martin Luther King Jr., John
Lennon and Daniel Ellsberg—the distinguished Senator from Idaho, Frank Church, convened
a Senate
investigative committee that ultimately put a stop to large scale domestic spying
for decades.
The Church Committee report, which can be read in full here, led to the passage of the Foreign
Intelligence Surveillance Act (FISA), setting up the secret FISA court that put strict procedures
in place for conducting surveillance for intelligence activities. Most importantly, following
a Supreme Court ruling in 1973, FISA required an individualized, probable cause warrant
for national security spying, just as the Fourth Amendment requires.
While there is much to criticize in the original FISA, it did rein in the
government, and its system of checks and balances remained largely in place
until shortly after September 11, 2001, when President George W. Bush first authorized a broad
warrantless wiretapping program. The government decided to illegally bypass
the FISA court and started warrantlessly wiretapping the communications, as well as collecting and data-mining
the communications records of innocent Americans.
When a portion of the NSA warrantless surveillance was revealed by the New York Times
in 2005, there was widespread outrage among the American people. Unfortunately, Congress
reacted in the opposite way as the Church Committee once did. Instead of fixing the
problems, they institutionalized most of them and swept the rest under the rug.
In 2008, Congress gutted the original balance of FISA with the FISA Amendments Act,
which allowed the government to get court orders with less than probable cause
that would target groups of people—instead of individuals, like the Constitution requires. The law also
allowed the NSA to collect information on innocent Americans when they are talking to people outside the US who are
targeted by the government.
But it gets worse. EFF and others had long alleged that, despite the rhetoric surrounding the Patriot Act and the
FISA Amendments Act, the government was still vacuuming up the records of the purely
domestic communications of millions of Americans. And yesterday, of course, with the Verizon
order, we got solid proof.. And it appears that the reach of this vacuum goes much further, into the records of our
Internet service providers as well.
Now it’s not as if these efforts haven’t been challenged. EFF has been seeking judicial review of the dragnet surveillance,
both wiretapping and records collection, since 2006, facing one procedural maneuver after another by the government.
The ACLU brought a strong constitutional challenge to the FISA Amendments Act that was dismissed by the Supreme
Court only two months ago for lack of “standing.” The court ruled in a contentious 5-4 decision that because the ACLU
couldn’t prove for a “certainty” that their clients were being surveilled, they couldn’t challenge the law.
Well, it turns out, the new revelations prove everything the ACLU was arguing, in addition to confirming all of the
allegations in EFF’s warrantless wiretapping case, Jewel v. NSA.
Of course, the evidence has been there all along. Even after the FISA Amendments Act passed, the New York Times
reported in 2009 the NSA was still collecting purely domestic communications in a “significant and systematic” way after
the original bill passed in 2008. And just last year, the government admitted, the secret FISA court has ruled “on at least
one occasion” that the government’s surveillance under the law had violated the Fourth Amendment.
That secret FISA court ruling is still classified, as are the OLC memos that supposedly give the government’s best case
that all this purely domestic surveillance is legal. But one has to wonder, if the FISA court “routinely” authorizes the
collection of all US call data, what kind of surveillance was the NSA conducting that they couldn’t approve?
Shamefully, Congress has had a chance to add provisions to both the Patriot Act and FISA Amendments Act in the last
two years. In 2011, the Obama administration opposed all transparency and accountability amendments to the Patriot Act
when key provisions were renewed for another five years. Just six months ago in December 2012, the administration
again opposed all oversight amendments, even those more moderate than the ones he voted for as Senator in 2008.
So here’s your wake up call Congress, and an opportunity to be a hero. We need
a Church Committee for a new era. It could be headed by Ron Wyden and Mark Udall,
the two Senators who have been trying to warn the American people about the government dangerous interpretation of
the Patriot Act for years. Udall said today, he “did everything short of leaking classified information” to stop it.
But someone in Congress needs to step up and fill Frank Church’s shoes. They are big
ones, but EFF stands willing to help. And so, we suspect, will millions of innocent Americans whose privacy has been
violated and who are ready to have their constitutional rights back.
They Say: “SQ Solves — General”
1. They can’t make this argument. If oversight is effective, there shouldn’t be
an inherent advantage.
2. Status Quo Oversight Fails: investigations are worthless.
Jaycox 13 — Mark Jaycox, Legislative Analyst at the Electronic Frontier Foundation, former Contributor to
ArsTechnica, former Legislative Research Assistant for LexisNexis, holds a B.A. in Political History from Reed College,
2013 (“Three Illusory ‘Investigations’ of the NSA Spying Are Unable to Succeed,” Electronic Frontier Foundation, August
23rd, Available Online at https://www.eff.org/deeplinks/2013/08/three-illusory-investigations-nsa-spying-are-unablesucceed, Accessed 07-08-2015)
Since the revelations of confirmed National Security Agency spying in June, three different
"investigations" have been announced. One by the Privacy and Civil Liberties Oversight Board
(PCLOB), another by the Director of National Intelligence, Gen. James Clapper, and the
third by the Senate Intelligence Committee, formally called the Senate Select Committee on
Intelligence (SSCI).
All three investigations are insufficient, because they are unable to find out the
full details needed to stop the government's abuse of Section 215 of the PATRIOT Act
and Section 702 of the Foreign Intelligence Surveillance Act. The PCLOB can only request—not
require—documents from the NSA and must rely on its goodwill, while the
investigation led by Gen. Clapper is led by a man who not only lied to Congress,
but also oversees the spying. And the Senate Intelligence Committee—which was
originally designed to effectively oversee the intelligence community—has failed time and time again.
What's needed is a new, independent, Congressional committee to fully delve
into the spying.
3. Counterplan Key: only the counterplan provides effective oversight.
Jaycox 13 — Mark Jaycox, Legislative Analyst at the Electronic Frontier Foundation, former Contributor to
ArsTechnica, former Legislative Research Assistant for LexisNexis, holds a B.A. in Political History from Reed College,
2013 (“Three Illusory ‘Investigations’ of the NSA Spying Are Unable to Succeed,” Electronic Frontier Foundation, August
23rd, Available Online at https://www.eff.org/deeplinks/2013/08/three-illusory-investigations-nsa-spying-are-unablesucceed, Accessed 07-08-2015)
A New Church Committee
All three of these investigations are destined to fail. What's
needed is a new, special, investigatory
committee to look into the abuses of by the NSA, its use of spying powers, its legal
justifications, and why the intelligence committees were unable to rein in the
spying. In short, we need a contemporary Church Committee. It's time for Congress
to reassert its oversight capacity. The American public must be provided more
information about the NSA's unconstitutional actions and the NSA must be held
accountable. Tell your Congressperson now to join the effort.
They Say: “SQ Solves —PCLOB”
The PCLOB can’t compel disclosure — it’s toothless.
Jaycox 13 — Mark Jaycox, Legislative Analyst at the Electronic Frontier Foundation, former Contributor to
ArsTechnica, former Legislative Research Assistant for LexisNexis, holds a B.A. in Political History from Reed College,
2013 (“Three Illusory ‘Investigations’ of the NSA Spying Are Unable to Succeed,” Electronic Frontier Foundation, August
23rd, Available Online at https://www.eff.org/deeplinks/2013/08/three-illusory-investigations-nsa-spying-are-unablesucceed, Accessed 07-08-2015)
The PCLOB: Powerless to Obtain Documents
The PCLOB was created after a recommendation from the 9/11 Commission to
ensure civil liberties and privacy were included in the government's surveillance and spying policies and practices.
But it languished. From 2008 until May of this year, the board was without a Chair and unable to hire staff or
perform any work. It was only after the June revelations that the President asked the board to begin an investigation into
the unconstitutional NSA spying. Yet even
with the full board constituted, it is unable to
fulfill its mission as it has no choice but to base its analysis on a steady diet of
carefully crafted statements from the intelligence community.
As we explained, the board must rely on the goodwill of the NSA's director, Gen. Keith
Alexander, and Gen. Clapper—two men who have repeatedly said the NSA doesn't
collect information on Americans.
In order to conduct a full investigation, the PCLOB will need access to all
relevant NSA, FBI, and DOJ files. But the PCLOB is unable to compel testimony
or documents because Congress did not give it the same powers as a
Congressional committee or independent agency. This is a major problem. If the
NSA won't hand over documents to Congress, then it will certainly not give
them to the PCLOB.
They Say: “SQ Solves —Clapper Task Force”
The Clapper investigation is obviously a joke.
Jaycox 13 — Mark Jaycox, Legislative Analyst at the Electronic Frontier Foundation, former Contributor to
ArsTechnica, former Legislative Research Assistant for LexisNexis, holds a B.A. in Political History from Reed College,
2013 (“Three Illusory ‘Investigations’ of the NSA Spying Are Unable to Succeed,” Electronic Frontier Foundation, August
23rd, Available Online at https://www.eff.org/deeplinks/2013/08/three-illusory-investigations-nsa-spying-are-unablesucceed, Accessed 07-08-2015)
The Clapper Investigation: Overseen by a Man Accused of Lying to Congress
The second investigation was announced by President Obama in a Friday afternoon news conference. The
President called for the creation of an "independent" task force with "outside
experts" to make sure "there absolutely is no abuse in terms of how these surveillance
technologies are used." Less than two days later, the White House followed up with a press
release announcing the task force would be led by Gen. Clapper and would also
report to him. What's even worse: the task force was not tasked with looking at
any abuse. It was told to focus on how to "protect our national security and
advance our foreign policy." And just this week, ABC News reported the task force will be
full of Washington insiders—not "outside experts." For instance, one has advocated the
Department of Homeland Security be allowed to scan all Internet traffic going in and out of the US. And another, while a
noted legal scholar on regulatory issues, has written a paper about government campaigns to infiltrate online groups and
activists. In one good act, the White House selected Peter Swire to be on the task force. Swire is a professor at Georgia
Tech and has served as the White House's first ever Chief Privacy Officer. Recently, he signed an amicus brief in a case
against the NSA spying by the Electronic Privacy Information Center arguing that the NSA's telephony metadata
program is illegal under Section 215 of the PATRIOT Act. Despite this, and at
the end of the day, a task
force led by General Clapper full of insiders—and not directed to look at the
extensive abuse—will never get at the bottom of the unconstitutional spying.
They Say: “SQ Solves —Intelligence Committees”
Oversight by the Senate Intelligence Committee has failed — the counterplan
is needed.
Jaycox 13 — Mark Jaycox, Legislative Analyst at the Electronic Frontier Foundation, former Contributor to
ArsTechnica, former Legislative Research Assistant for LexisNexis, holds a B.A. in Political History from Reed College,
2013 (“Three Illusory ‘Investigations’ of the NSA Spying Are Unable to Succeed,” Electronic Frontier Foundation, August
23rd, Available Online at https://www.eff.org/deeplinks/2013/08/three-illusory-investigations-nsa-spying-are-unablesucceed, Accessed 07-08-2015)
The Senate Intelligence Committee Has Already Failed
The last "investigation" occurring is a "review" led by the Senate Intelligence
Committee overseeing the intelligence community. But time and time again the committee has
failed at providing any semblance of oversight. First, the chair and ranking
member of the committee, Senators Dianne Feinstein (CA) and Saxby Chambliss (GA),
respectively, are stalwart defenders of the NSA and its spying activities. They have both
justified the spying, brushed aside any complaints, and denied any ideas of
abuse by the NSA.
Besides defending the intelligence community, the committee leadership have utterly failed in
oversight—the reason why the Senate Intelligence Committee was originally created by the Church Committee. As
was revealed last week, Senator Feinstein was not shown or even told about the thousands
of violations of the spying programs in NSA audits of the programs. This is in
direct contradiction to her statements touting the "robust" oversight of the
Intelligence Committee. Lastly, the committee is prone to secrets and hiding behind
closed doors: this year, the Senate Intelligence Committee has met publicly only twice. What's clear is that the
Intelligence Committee has been unable to carry out its oversight role and fresh
eyes are needed to protect the American people from the abuses of the NSA.
2NC/1NR — Theory/Competition
They Say: “Permute — Do CP”
1. This severs the whole plan. The counterplan establishes a committee and
tasks it with producing a report; it doesn’t implement the plan. The
counterplan might eventually result in the plan, but that’s an effect—not a
mandate.
2. Reject severance permutations — they evade clash and undermine
comparative policy analysis. Requiring a stable advocacy protects neg ground
and creates more productive debates.
They Say: “Permute — Do Both”
( ) Links to Politics: the immediate fight over the plan drains Obama’s
political capital. The Committee Report can’t shield the link before it exists.
( ) Links to Terrorism: immediate passage of the plan before the Wyden
Committee’s review jeopardizes national security. Only comprehensive review
of intelligence programs enables holistic, informed legislative action. Even if
they’re right that the plan isn’t key to counter-terrorism, don’t take the risk:
waiting for the Committee’s report is a small price to pay for national security.
( ) Doesn’t Restore Trust: the counterplan alone is key to rebuild public trust
because it reassures the public that Congress has the intelligence agencies
under control. The permutation creates the perception of confusion and chaos:
passing the plan before the Wyden Committee has a chance to investigate
doesn’t make sense.
( ) Sequencing DA: investigation before legislation is crucial to effective
implementation of surveillance reforms. The plan and permutation will be
circumvented; the counterplan alone is the only way to write policy language
that sticks — that’s Bump. A consensus of experts agrees.
Marczak 13 — Trisha Marczak, Reporter for Mint Press News, 2013 (“New Petition Website Calls For Congressional
Investigation Of NSA Surveillance Program,” Mint Press News, June 11th, Available Online at
http://www.mintpressnews.com/petition-website-launches-calling-for-congressional-investigation-of-nsa-surveillanceprogram/, Accessed 07-09-2015)
A coalition of 85 technology companies, organizations and privacy advocates —
including the American Civil Liberties Union and the Electronic Frontier Foundation — is launching
a website Tuesday calling for a special congressional committee to investigate the
National Security Agency’s secret surveillance program.
Sina Khanifar, participating advocate and founder of FixtheDMCA.org, told Mint Press News in a statement that the
“Stop Watching Us” movement is intended to push the government to create an
investigative Congressional body similar to the Church Committee, which was formed
to investigate the Watergate scandal in the 1970s.
“As
it stands, we simply don’t know the scope of the NSA’s surveillance
programs,” he said. “Greater transparency is critical.”
( ) No Net-Benefit: singular reforms like the plan don’t solve without a
comprehensive overhaul.
Rumold 13 — Mark Rumold, Staff Attorney at the Electronic Frontier Foundation, quoted in an article by Rainey
Reitman, 2013 (“86 Civil Liberties Groups and Internet Companies Demand an End to NSA Spying,” Electronic Frontier
Foundation, June 10th, Available Online at https://www.eff.org/deeplinks/2013/06/86-civil-liberties-groups-andinternet-companies-demand-end-nsa-spying, Accessed 07-09-2015)
As Mark Rumold, a staff attorney at the Electronic Frontier Foundation who focuses on government transparency and
national security, says, "Now
is the time for Congress to act. We don’t need a narrow fix
to one part of the PATRIOT Act; we need a full public accounting of how the
United States is turning sophisticated spying technology on its own citizens, we
need accountability from public officials, and we need an overhaul of the laws to
ensure these abuses can never happen again."
( ) Credibility DA: the permutation makes the Committee look like a puppet
by spoiling its report with preemptive legislation.
Westby 12 — Jody Westby, Chief Executive Officer of Global Cyber Risk—a consulting firm specializing in privacy,
security, cybercrime, and IT governance, Adjunct Professor in the School of Computer Science at the Georgia Institute of
Technology, Distinguished Fellow for Carnegie Mellon University’s CyLab, Chair of the American Bar Association’s
Privacy & Computer Crime Committee, former Co-Chair of the World Federation of Scientists’ Permanent Monitoring
Panel on Information Security, holds a J.D. from Georgetown University Law School, 2012 (“The Sheep Stop Here:
Another Church Committee or Full Review of Privacy Laws Needed?,” Forbes, September 20th, Available Online at
http://www.forbes.com/sites/jodywestby/2012/09/20/the-sheep-stop-here-another-church-committee-or-full-reviewof-privacy-laws-needed/2/, Accessed 07-09-2015)
A full Congressional review of privacy laws and intelligence community practices is
needed so informed decisions can be made going forward and any violations of
rights or laws can be addressed. Steven Aftergood, head of the Federation of American Scientists’ Project
on Government Secrecy notes that, “Mr. Binney and his colleagues raise compelling questions that deserve an answer; it
is up to Congress to assert itself and represent the public interest in getting to the
bottom of these tough questions. This is what we have oversight for.” Of course, the process by
which such a review is conducted — whether by Congressional Committee or
another less formal means of review — is critical. Lee Tien, Senior Staff Attorney for EFF, noted
that, “Such a review could not be a whitewash; it cannot be conducted by
puppets or so redacted that it is meaningless.”
Those who protest against such a review have a hard climb. If all is proceeding
according to law, then there is nothing to hide and prior justifications will be
vindicated. And we will not need to count sheep to get to sleep.
They Say: “CP Theoretically Illegitimate”
( ) Not Plan-Inclusive: even if could result in the plan, the counterplan doesn’t
“steal the aff.” Our evidence proves that implementing the plan as a
standalone policy and recommending the plan as part of a Committee Report
are distinct policy options. The counterplan never “fiats” the plan.
( ) Core Neg Ground: it’s a core reform proposal with several qualified
solvency advocates. Even if some commission counterplans are illegitimate,
this one boosts topic knowledge, tests the desirability of the plan, and is
crucial to neg ground.
Affirmative
No Solvency — Won’t Enact Reform
The counterplan won’t result in legislative action — empirically proven.
Lupo 14 — Lindsey Lupo, Professor of Political Science at Point Loma Nazarene University, holds a Ph.D. in Political
Science from the University of California-Irvine, 2014 (“What Happened to the 9/11 Commission? What a Century of Riot
Commissions Teaches us about America’s Dependence on Independent Commissions,” Ralph Bunche Journal of Public
Affairs, Volume 3, Issue 1, Available Online at
http://digitalscholarship.tsu.edu/cgi/viewcontent.cgi?article=1002&context=rbjpa, Accessed 07-10-2015, p. 22)
But, what is the efficacy of these independent
commissions? Herein lies the puzzle - they are at once
incredibly ineffective and effective. As problem-solving entities that affect real
change in the political system, they are ineffective, as evidenced by the 9/11
Commission’s own self-issued failing report card on progress. One woman widowed by
the 9/11 attacks expressed her disappointment: “If you were to tell me that two years after the murder of my husband on
live television that we wouldn't have one question answered, I wouldn't believe it” (Breitweiser 2003). However,
as
mechanisms of evasion that allow the government to delay action or elude
responsibility altogether, they are incredibly effective. Both sides of this
paradox are harmful to the basic function of democracy, a system of
government reliant on government responsiveness. Indeed, the U.S. government
continues to depend on independent commissions to provide answers and
presumably affect change, but neither is the typical outcome of these
commissions. Even if some clarity does emerge, it is often ignored. It has been
over two hundred years since Washington’s commission on the Whiskey
Rebellion and during that time, policy change through independent commissions
has been rare or non-existent. Why then does the American public continue to be comforted and satiated
when the government appoints a commission?
The plan enacts a meaningful reform. The counterplan enacts the illusion of
reform.
Lupo 14 — Lindsey Lupo, Professor of Political Science at Point Loma Nazarene University, holds a Ph.D. in Political
Science from the University of California-Irvine, 2014 (“What Happened to the 9/11 Commission? What a Century of Riot
Commissions Teaches us about America’s Dependence on Independent Commissions,” Ralph Bunche Journal of Public
Affairs, Volume 3, Issue 1, Available Online at
http://digitalscholarship.tsu.edu/cgi/viewcontent.cgi?article=1002&context=rbjpa, Accessed 07-10-2015, p. 22)
This article looks at independent commissions in the United States and the role they play
as “flak-catchers” – stopgaps for uncertain or unfavorable judgments cast onto
the political system. Because they work as effective mechanisms of evasion,
giving the appearance of government action while at the same time dodging
responsibility, government bodies, particularly executives, have frequently and
readily turned to independent commissions. However, independent commissions
are typically riddled with inefficiencies that inevitably hinder their work. This
article will look at the obstacles faced by these commissions as they deal with some of the most complex social and
political issues of our time. Some
of the obstacles are a product of the bureaucratic nature
of the commission process, while others are created by the commission itself, in
order to preserve the status quo. Still others are the creation of the instituting
body who finds little incentive in implementing the recommendations of a
temporary, nonelected body that lacks any real power. Thus, the central issue
discussed here is
the way in which independent commissions are utilized as equivocal
tools that both ease public anxiety and allow public officials to claim credit for
decisive action. Independent commissions are an easy and effective go-to for
U.S. public officials because they act as deflectors, giving the appearance of
action and serving to satiate the public’s demand for explanation and answers,
while at the same time evading actual policy response. Government officials
have therefore developed a dependence on these commissions. This article specifically
focuses on the barriers commissions face, comparing the commissions that have often followed U.S. urban race riots to the
9/11 Commission. The riots that have occurred over the last century in America have typically been followed by an
investigative, blue-ribbon commission, and therefore provide us with a catalog of comparative cases for the 9/11
Commission.
The counterplan’s report will never pass — 9/11 Commission proves.
Lupo 14 — Lindsey Lupo, Professor of Political Science at Point Loma Nazarene University, holds a Ph.D. in Political
Science from the University of California-Irvine, 2014 (“What Happened to the 9/11 Commission? What a Century of Riot
Commissions Teaches us about America’s Dependence on Independent Commissions,” Ralph Bunche Journal of Public
Affairs, Volume 3, Issue 1, Available Online at
http://digitalscholarship.tsu.edu/cgi/viewcontent.cgi?article=1002&context=rbjpa, Accessed 07-10-2015, p. 22)
The 9/11 Commission
The 9/11 Commission (formally, the National Commission on Terrorist Attacks upon the United States) was born out of
the intense and unrelenting lobbying of the families of the 9/11 victims. Its mandate—“to investigate the facts and
circumstances relating to the terrorist attacks of September 11, 2001” (9/11 Commission Report 2004, xv)—was sweeping.
According to Chairman Kean and Vice Chairman Hamilton, the mandate was perhaps too broad, asking them to
investigate the entire U.S. government in an effort to understand an unprecedented event (Kean and Hamilton 2006, 14).
The wide-ranging nature of the Commission was likely a result of the hesitance of both the White House and Congress to
institute the Commission at all.i The Bush administration made clear from the beginning that the Commission not be a
“runaway commission” used as an institutionalized stage for public Bush-bashing. In those same early meetings in which
top White House officials expressed runaway commission concerns, they also emphasized the limitations of time and
money awarded to the Commission – and warned not to ask for more of either. It is therefore not surprising that two
years after the 9/11 Commission report was released, Kean and Hamilton declared: “We were set up to fail” (Kean and
Hamilton 2006, 14).
The chief obstacle to the formation of the 9/11 Commission was the most likely target of such an
investigation—the White House. House Republicans were almost as wary of the Commission and
according to Kean and Hamilton, “not inclined to help the Commission succeed [and]
holding the budget at $3 million was one way to ensure that [it] did not” (Kean and
Hamilton 2006, 43). The Commission was indeed given just $3 million to work with, far below what is normal for an
independent commission, particularly one with such an expansive mandate. In comparison, the commission set up
twenty years earlier to investigate the Challenger space shuttle disaster was given a budget of $40 million. Even early
estimates of the 9/11 Commission projected it would run out of money a full year before its scheduled reporting date. In
early 2003, the Commission pushed both Congress and the White House for more money but faced resistance from both.
The White House initially denied requests while House Republicans continued to stonewall. In the end, both branches
provided enough money to comfortably sustain the Commission for its duration. [end page 29] Thus, despite dire
concerns at the outset, funding would prove to be the least of the problems for the 9/11 Commission. Even more
troublesome issues would arise to hinder the Commission from the beginning: lack of infrastructure, timing, and
subpoena power. Each is discussed below.
From the beginning, the Commission lacked the infrastructure required to run a
proper investigation of such a huge crisis. Two months after its inception, the commissioners still had
no office, no schedule for work, no security clearance, and only one employee. Staff interviews took place in executive
director Philip Zelikow’s hotel room in Washington, DC. Lacking a commission telephone, the cell phone of Zelikow’s
assistant became the main commission telephone number. Four months into the commission process, the commissioners
finally held their first public hearing, but found themselves with no gavel.
As with the riot commissions above, timing for the 9/11 Commission was
also an obstacle. It was
given just a year and a half to conduct research, hold hearings, and write the
final report. Again, such timing restrictions illustrate that appointing bodies often do
not want commissions to delve too deeply into the issues, preferring that they instead
engage in a surface-level investigation. Ultimately, the 9/11 Commission asked for only a two month
extension, pushing its report release from May 2004 to July 2004. This did not please anyone, as it meant that the report
would be released at the height of the presidential election cycle and amidst the Republican and Democratic National
Conventions. With the help of Senators McCain and Lieberman, the extension was granted by Congress but not without a
fight from politicians from both parties.
Finally, the issue of subpoena power was a contentious one from the beginning, both within the
Commission and for the 9/11 families. The Commission was granted the power when it was created, but it required the
vote of 6 out of 10 commissioners to issue a subpoena. Partisanship crept in, with Democratic commissioners generally
favoring the wide use of subpoenas and Republican commissioners favoring a more limited, if any, use of subpoena
power. Vice Chairman Hamilton broke from his Democratic colleagues on this issue and sided with Kean, thus ending
debate on the possibility of the aggressive use of the subpoena. Those who favored reserving the subpoenas for noncompliance felt that blanket subpoenas would be unnecessarily antagonistic toward the White House; something they
feared would backfire and cause more non-compliance. The argument was that the Commission should make the
administration see the Commission as on its side, as part of the same team looking for answers. In the end, the
subpoenas were used infrequently and only against non-compliant agencies like the
FAA and the Pentagon. Two things seemed to work more effectively in gaining compliance: threat of subpoena and
public shaming. The latter was achieved through such mechanisms as interim reports that mentioned “slow starts” and
“delays” and through media interviews that hinted at some executive branch recalcitrance. All of the tactics worked to
some extent, with the Commission eventually gaining access to the coveted Presidential Daily Briefings (PDBs), but the
9/11 Commission process can generally be categorized as involving high levels of non-cooperation from government
agencies. It is the nature of the independent commission – the appointing body has little incentive to cooperate beyond
the creation of the Commission, which lacks any true authority in holding the appointing body accountable.
Thus, these issues
of funding, infrastructure, timing, and subpoena power were
overshadowed by the biggest obstacle of all—government resistance in
cooperating with the Commission. Many government officials showed disdain for the
Commission from the beginning, which seemed to only foreshadow the eventual
dismissal of the final [end page 30] Commission report. Thus, while the commissioners publicly
stated that they eventually got what they needed from government officials, their frustration with regard to lack
of government compliance during the process was widely recognized as media outlets
continued to report on the stonewalling of many government agencies and branches. The result was what many,
particularly the 9/11 families, viewed as a watered-down final report with weak
recommendations that would likely never be enacted.
No Solvency — Won’t Provide Oversight
The counterplan won’t create effective oversight.
Setty 15 — Sudha Setty, Professor of Law and Associate Dean for Faculty Development and Intellectual Life at
Western New England University School of Law, holds a J.D. from Columbia Law School, 2015 (“Surveillance, Secrecy,
and the Search for Meaningful Accountability,” Stanford Journal of International Law (51 Stan. J Int'l L. 69), Winter,
Available Online to Subscribing Institutions via Lexis-Nexis)
Although Congress could launch a large-scale investigation into the programs Snowden
disclosed, like the Church Committee in its time, n176 its ability to serve effectively as an
ongoing accountability mechanism over intelligence gathering in the manner of a
parliament seems unlikely. For the political and structural reasons discussed above, the
apparatus of national security policy-making is somewhat intentionally insulated
from Congress. On the one hand, the benefit of this structural arrangement is that it
may facilitate expertise and efficient decision-making, but a key effect is also that
this apparatus is not really accessible to the other branches of government or the
public. n177 This consolidation of decision-making authority in the executive
branch, plus the difference between congressional and parliamentary access to executive branch information,
accounts for a different potential for legislative oversight in the United States as
compared to the United Kingdom and India. Further, the lack of widespread and sustained public
pressure [*100] on Congress n178 toward reform suggests that a meaningful
increase in legislative oversight of the intelligence community will not occur in
the near future.
Double-bind: either existing committees solve.
Sledge 14 — Matt Sledge, Reporter for The Huffington Post, 2014 (“John McCain Wants A Special NSA Committee,
And Dianne Feinstein Isn't Too Happy About That,” The Huffington Post, February 5th, Available Online at
http://www.huffingtonpost.com/2014/02/05/john-mccain-nsa-committee_n_4732759.html, Accessed 07-08-2015)
Sen. Dianne Feinstein (D-Calif.), who
chairs the Intelligence Committee, threw cold
water on McCain's idea.
"There is no need for a select committee to review the Snowden leaks or NSA
collection," Feinstein told HuffPost in a statement Wednesday. "The Senate Intelligence Committee
has conducted and continues to conduct thorough oversight of all intelligence
collection activities by the National Security Agency and other intelligence agencies."
OR — if existing committees fail, so will the counterplan.
Sledge 13 — Matt Sledge, Reporter for The Huffington Post, 2013 (“NSA Spying Sparks Calls For New Senate Church
Committee,” The Huffington Post, November 7th, Available Online at http://www.huffingtonpost.com/2013/11/06/nsasenate-church-committee_n_4228614.html, Accessed 07-08-2015)
Another Church Committee member -- former Sen. Gary Hart (D-Colo.) -- told HuffPost he did
not think
much of McCain's call for a new select committee.
"It seems to me that Senator McCain is in a way scoring political points here," Hart said. "He's poking the Senate
Intelligence Committee in the eye.
"If
established committees are not doing their job for whatever reason … you
don't layer on top another committee, that is to compound the problems of
congressional oversight," Hart said. Instead, he suggested reforms like
"reconstituting" the committees with new members and imposing term limits on
committee memberships to prevent so-called agency capture.
Links To Politics
The counterplan saps political capital.
Dalal 14 — Anjali S. Dalal, Resident Fellow of the Information Society Project at Yale Law School, holds a J.D. from
Yale Law School and a B.A. in Philosophy and B.S. in Economics from the University of Pennsylvania, 2014 (“Shadow
Administrative Constitutionalism And The Creation Of Surveillance Culture,” Michigan State Law Review (2014 Mich. St.
L. Rev. 59), Available Online to Subscribing Institutions via Lexis-Nexis)
The solution to a lack of congressional oversight is conceptually easy but
practically difficult. It requires Congress to pass legislation governing the FBI and
regularly exercise its statutory oversight authority, both of which require
significant political capital and effort. However, the Snowden scandal may have
created the momentum necessary to motivate congressional action in this area.
Senator Ron Wyden recently echoed this sentiment while imploring his colleagues to act
stating, "'If we do not seize this unique moment in out [sic] constitutional history to
reform our surveillance laws and practices we are all going to live to regret it.'"
n337
There’s minimal political support for the counterplan.
Sledge 13 — Matt Sledge, Reporter for The Huffington Post, 2013 (“NSA Spying Sparks Calls For New Senate Church
Committee,” The Huffington Post, November 7th, Available Online at http://www.huffingtonpost.com/2013/11/06/nsasenate-church-committee_n_4228614.html, Accessed 07-08-2015)
So far, said Trevor Timm of the Electronic Frontier Foundation, there has been little
momentum in Congress for a new Church Committee.
"Unfortunately, we haven't seen much legislative movement," Timm wrote in an email to
HuffPost. "Better late than never though, and it seems with each revelation more and more are calling for one."
Creating a new committee causes political backlash — empirically proven.
Politico 11 — Politico, 2011 (“Commissions grow on Obama,” Byline MJ Lee, May 9th, Available Online at
http://dyn.politico.com/printstory.cfm?uuid=D1EAB8B1-F951-3C6F-6656270CEFFF3919, Accessed 10-13-2011)
When presidential candidate Sen. John McCain (R-Ariz.) proposed a commission to
investigate the 2008 financial crisis, then-Sen. Barack Obama disparaged the idea, calling commissions
“the oldest Washington stunt in the book.”
“Instead of offering up concrete plans to solve these issues ... You pass the buck to a commission to study the problem,”
Obama said in a speech on the economy in Golden, Colo., on Sept. 16, 2008. “But here’s the thing: This isn’t 9/11 — we
know how we got into this mess.”
But after he took office, Obama’s distaste for commissions seemed to fade. During his
first 2½ years in the White House, the president has issued countless executive orders creating advisory commissions,
working groups, committees, councils and task forces on subjects ranging from the restoration of the Chesapeake Bay to
bioethical issues, to fitness, sports and nutrition.
Douglas Holtz-Eakin, economic adviser to McCain’s presidential campaign, dismissed Obama’s 2008 comments as
campaign rhetoric. “He can and has said anything to become president, and he’s flip-flopped on every policy position,”
Holtz-Eakin told POLITICO.
Other Republicans
have criticized the president’s use of commissions. When
Obama announced in April that Vice President Joe Biden would lead negotiations with a
bipartisan group of lawmakers on a deficit reduction plan, Republicans derided
the outcome of Obama’s earlier deficit commission.
“The
president ... utterly ignored the recommendations of his last deficit
commission and submitted a budget that would add $9 trillion to the debt and raise taxes on job creators,” said
House Speaker John Boehner (R-Ohio).
They Say: “Trust Net-Benefit”
Turn — the counterplan increases cynicism in government.
Bernstein 11 — Jared Bernstein, Senior Fellow at the Center on Budget and Policy Priorities, former Chief
Economist and Economic Adviser to Vice President Joe Biden, executive director of the White House Task Force on the
Middle Class, and a member of President Obama’s economic team, holds a Ph.D. in Social Welfare from Columbia
University, 2011 (“Commission Overload,” On The Economy—Jared Bernstein’s blog, September 28th, Available Online at
http://jaredbernsteinblog.com/commission-overload/, Accessed 10-13-2011)
That’s one problem. The other is that when
you constantly kick tough calls to commissions,
you amplify cynicism about government. Too often in this town, when you want to
show you care about something that you don’t really want to do anything about
(or, less snarkily, you’re not ready to do anything about), you kick it to a commission.
I haven’t seen polls on this, but I’ll bet most people’s reaction to “so, we created a commission
to study the issue and make binding recommendations, etc.” is “those guys just
can’t do their jobs.”