GBS Template - Verbatim - Wikispaces Web viewOne possibility would be for Congress to task...

SELF-RESTRAINT COUNTERPLAN MICHIGAN ‘15 HJPV

Self-Restraint CPs – HJPV


Executive Self-Restraint Mechanism


1ncText: the President of the United States should reduce [object of the plan].

The counterplan solves the case while preserving executive flexibility Metzger 15 [Gillian, Professor of Law, Columbia Law School, April 2015, “ARTICLE: The Constitutional Duty To Supervise”, Yale Law Review, LexisNexis, 124 Yale L.J. 1836] SchlossSupervision and oversight are similarly pivotal when it comes to legal accountability. While courts play a central role in enforcing legal constraints on government, a variety of factors can limit the effectiveness and availability of such judicial review. 252

Internal supervision is free of many of these obstacles, and thus plays a critical role in guaranteeing administrative adherence to governing legal requirements .253 Reliance on internal supervision and oversight to achieve legal accountability, instead of just on courts, also minimizes the risk that enforcing legal constraints will undermine managerial control and accountability. 254 Despite its resistance to according supervision much constitutional significance, the Court has noted the role bureaucratic supervision plays in ensuring legal adherence. Thus, for example, it has emphasized the availability of internal administrative complaint mechanisms that could uncover and address constitutional violations in refusing to imply a

Bivens right to challenge such violations in court.255 A number of scholars have gone further, underscoring the importance of internal administrative constraints in ensuring that delegated power is not wielded in an arbitrary fashion.256 And while the scope of delegated federal power is much vaster today, similar concerns with ensuring that government officials adhere to governing legal requirements have fueled bureaucratic supervision since the birth of the nation.257 Indeed, the Take Care Clause formally links supervision and legal accountability by tying supervision to faithful execution of the laws.258¶ Put starkly,

bureaucratic and managerial accountability in the form of internal executive branch supervision is an essential precondition for political and legal accountability, given the phenomenon of delegation. Scholars debate whether the broad delegations that characterize modern administrative government can ever accord with the Constitution’s grant of legislative power to Congress and separation of power principles. That debate will no doubt continue, but has been eclipsed by reality; modern delegation is here to stay.259 The more pressing question today is how best to integrate the inevitable phenomenon of delegation into the Constitution’s structure. The answer, to my mind, is recognizing that delegation creates a constitutional imperative to ensure that the powers

transferred are used in accordance with constitutional accountability principles. In short, delegation creates a duty to supervise delegated power


2nc SolvencyExecutive self-restraint’s best – anything else is overly restrictive, which ruins solvency in the long run Christenson and Kriner 15 [Dino and Douglas, Assistant Professor of Political Science at Boston University, Associate Professor of Political Science at Boston University, EXECUTIVE DISCRETION AND THE ADMINISTRATIVE STATE: POLITICAL CONSTRAINTS ON UNILATERAL EXECUTIVE ACTION, http://law.case.edu/journals/LawReview/Documents/Hill%20Introduction.pdf] SchlossZachary Price, Associate Professor at University of California Hastings College of Law, places his focus on informal political constraints on presidential inaction. In particular, Professor Price asks how strong the norm of executive enforcement duty should be. He concludes that it

should be relatively robust, since citizens of all stripes have an interest in ensuring that legislative achievements retain lasting force beyond the administration in which they are enacted. In addition, Professor Price contends that

transparency, centralization, and definiteness—though arguably desirable in most administrative

contexts—are detrimental to ensuring fidelity to statutory commands in the agency enforcement context. Thus, both Price’s and White’s contributions show that the nation’s long-term interest is not always well-served when short-term concerns motivate the political branches to take actions affecting the distribution of power between them.

Only the executive acting alone solves Moe and Howell 99 [Terry and William, a professor of political science at Stanford University and a senior fellow at the Hoover Institution, Howell is a graduate student in political science at Stanford University. He is currently writing a dissertation on the politics of unilateral action, Unilateral Action and Presidential Power: A Theory, http://onlinelibrary.wiley.com/doi/10.1111/1741-5705.00070/epdf] SchlossIf the president had the power to act unilaterally in this same situation, as

depicted in Figure 1B, things would turn out much more favorably . He would not have to accept Congress’s shift in policy from SQ2 to SQ2* and could take action on his own to move the status quo from SQ2* to V—using his veto to prevent any movement away from this point. V would be the equilibrium outcome (as it was in the earlier case of unilateral action). And although the president would still lose some ground as policy moves from the original SQ2 to V, unilateral action allows him to keep policy much closer to his ideal point—and farther from Congress’s ideal point—than would otherwise have been the case. He clearly has more power over outcomes when he can act unilaterally.

The president has a unique role in national securityMcGinnis 93 [John O., Assistant Professor, Benjamin N. Cardozo School of Law. From 1985-1987 1 was an attorney-adviser and from 1987-1991 Deputy Assistant Attorney General in the Office of Legal Counsel, Department of Justice. I thus participated in drafting some of the materials discussed in this article, CONSTITUTIONAL REVIEW BY THE EXECUTIVE IN FOREIGN AFFAIRS AND WAR POWERS: A CONSEQUENCE OF RATIONAL CHOICE IN THE SEPARATION OF POWERS, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4213&context=lcp] SchlossThe output under the model depends on the relative interests and aptitudes of the institutions that will bargain with and accommodate each other. 8 These are partly defined by the textual provisions whose core is less likely to

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4213&context=lcp


http://onlinelibrary.wiley.com/doi/10.1111/1741-5705.00070/epdf

http://law.case.edu/journals/LawReview/Documents/Hill%20Introduction.pdf


be disputed. 9 The president's power as commander-in-chief is relevant to his interests both because this gives him some power of initiative of action in war powers and because it creates the expectation that the president is immediately responsible for protecting the security of the nation and the safety of its citizens.' Given these expectations, the president will want to acquire the rights of governance over areas, such as diplomacy, which imminently affect the exercise of this responsibility. Additionally, the structure of the presidency as a single office possessed by one person also gives the executive unique capabilities of acting with "secrecy and dispatch,, 61 giving him a comparative advantage in carrying out these functions . Thus, because of the president's constitutional powers and because of expectations that have developed about his responsibilities in the area of foreign affairs and war powers, the president generally places a very high value on control of the rights of governance in foreign affairs .62

Congress and the Courts fail – internal checks are key Metzger 09 Gillian E. Metzger, is a United States Constitutional Law scholar and a professor of law at Columbia University, “THE INTERDEPENDENT RELATIONSHIP BETWEEN INTERNAL AND EXTERNAL SEPARATION OF POWERS,” October 7, 2009, Columbia Law School Public Law and Legal Theory Working Paper Group, Google Scholar/NVEqually important, the relationship between internal and external separation of powers is not unidimensional: Internal mechanisms can, in turn, play a pivotal role in enabling external checks on the executive branch to function. Congress needs information in order to conduct meaningful oversight of the executive branch. Internal agency experts and watchdogs are 94 important sources of that information, whether in the guise of formal reports, studies, and testimony or more informal conversations and leaks. Procedural constraints within agencies 95 can serve a similar function of ensuring that Congress is aware of agency activities. Internal 96 mechanisms also reinforce Congress’s role by creating bodies of personnel within the executive branch who are committed to enforcing the governing statutory regime, which sets out the parameters of their authority and regulatory responsibilities, and on whose expertise functioning of those regimes often depends. Courts are equally dependent on information and evidence 97 compiled by agency personnel to adequately review agency actions, and have invoked this dependence in justifying the requirement that agencies disclose underlying information and offer detailed explanations of their decisions. Moreover, despite regularly intoning that “it [is] not 98 the function of the court to probe the mental processes of Secretar[ies] in reaching [their] conclusions,” judicial review of agency actions often appear to turn on judges’ perceptions of 99 the role politics played in agency officials’ decisionmaking. Evidence that decisions were 100 made over the objections of career staff and agency professionals—sometimes indicated by inconsistency in an agency’s position from its previous stance—often triggers more rigorous review. A particularly striking suggestion of how internal checks can effect judicial review 101 came in the recent Boumediene litigation: Just a few months after refusing to grant certiorari in order to allow the CSRT process to proceed, the Court reversed course and granted review, apparently influenced in part by concerns expressed by military lawyers about how the tribunals were functioning.102


Internal checks are net-better than external onesKatyal 06Neal Kumar Katyal, professor of law at Georgetown University, “Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within,” May 5, 2006, The Yale Law Journal, Google Scholar/NVAgency design can replicate some functional overlap of responsibilities amongst the branches. One of the classic divisions of power in the Constitution concerns war: While Congress declares it, the President is the Commander-inChief.25 That division is structurally inefficient, in the sense that it creates the possibility of dissension and rivalry, yet its inefficiency is the point.26 Today, the locus of academic concern centers on disputes between whether and to what extent the President and Congress should control agency decisionmaking. These discussions center along the President v.

Agency axis. Instead, legal reform could focus on a lower rung: President v. (Agency1 + Agency2). Partially overlapping agency jurisdiction could create friction on issues before they are teed up to the President for decision. Otherwise, the President could easily surround himself with people of a similar worldview who lack expertise. Redundancy has a pejorative connotation–conjuring up images of inefficiency and waste. In private markets, attacks on redundancy became a dominant component of Taylorism (the early twentieth-century scientific management theory) and has motivated many recent agency

consolidations.27 But there are a number of positive redundancies–starting with those in the Constitution itself, which creates two houses of Congress and divides functions between two political branches. And reliance on one agency is often risky, for “organizational systems of this sort are a form of administrative brinkmanship. They are extraordinary gambles. When one bulb blows, everything goes.”28 As the common saying goes, “where you stand is a function of where you sit.” By placing individuals in different organizational structures, different viewpoints emerge. Colin Powell as Secretary of State is a different entity than Colin Powell as head of the Joint Chiefs of Staff. And that point goes not simply for leaders but others within an agency as well.29

Bureaucratic overlap allows agencies to function more like laboratories–devising new solutions to new problems. That is one rationale for the division of antitrust authority between the Federal Trade Commission and Department of Justice.30 Moreover, to the extent particular agencies are captured by interest groups, overlapping bureaucratic entities can mitigate capture’s effects.31 The notion of overlapping agency jurisdiction is not unlike the idea of a free market. We do not want one supplier of information to the President; a market better supplies

clients than a monopolist. Without bureaucratic overlaps, agencies are not pushed to develop innovative ways of dealing with problems and may ossify.32 It is therefore surprising that market-oriented scholars resist conceptualizing the executive branch in this way. The story of the unitary executive

has morphed into a myth of an executive that must have seamless control over all its components. But there is a counter-story to be told, one that emphasizes checks and balances within the Executive Branch, such as those resulting from the 1947 National Security Act. Just as bicameralism and two political branches produce better decisions, there is powerful evidence that presidents succeed because redundancy generates the information a President needs.33 Perhaps no

analysis of a modern presidency so condemns the status quo as Richard Neustadt’s comparison of FDR and Eisenhower. FDR succeeded because he guaranteed a flow of information to him, using his own contacts in agencies. He would call you in . . . and he’d ask you to get the story on some complicated business, and you’d come back after a couple of days of hard labor and present the juicy morsel you’d uncovered under a stone

somewhere, and then you’d find out he knew all about it, along with something else you didn’t know.34 FDR used bureaucratic overlaps to produce better policy and information: “His favorite technique was to keep grants of authority incomplete, jurisdictions uncertain, charters overlapping.”35 Eisenhower, by contrast, imparted “more superficial symmetry and

order to his flow of information . . . . Thereby, he became typically the last man in his office to know tangible details and the last to come to grips with acts of choice.”36


Inspector General Mechanism


1ncText: The United States federal government should submit [the object of the plan] to Inspector General investigative review. The Inspector General of [the agency that oversees the plan] should report all relevant abuses in the area of domestic surveillance to the executive branch. The executive branch should fully and immediately implement the recommendations of the Inspector General.

Inspector generals can better scrutinize internal agencies and increases internal compliance.Renan, 15 (Daphna; Alexander Fellow, New York University School of Law; formerly Attorney Advisor, Office of Legal Counsel, and Counsel, Office of the Deputy Attorney General; “POOLING POWERS”; March 2015; http://columbialawreview.org/wp-content/uploads/2015/03/Renan-Daphna.pdf) KWInstitutional strategies might not have the same drawbacks and, at a minimum, offer an additional course to pursue. We might ask how Congress can use institutions embedded inside the executive to make pooling more accountable. Congress, for instance, has tasked inspectors general inside individual agencies with preventing fraud and abuse.385 Because they are ensconced within the agencies, inspectors general can be more sensitive than courts or Congress to nuanced forms of legal evasion. And their formal and informal features of independence can help protect their ability to scrutinize the conduct of the agencies within which they are housed .386 Though inspectors general

have not performed uniformly, they have had beneficial effects on administrative compliance .387 We might use this type of oversight structure but think about how to extend it into the interstices. One possibility would be for Congress to task inspectors general with investigating when pooling exceeds an agency’s legal mandate or poses a threat to civil rights and civil liberties .388

http://columbialawreview.org/wp-content/uploads/2015/03/Renan-Daphna.pdf


2nc SolvencyCounterplan solves the whole case – IG review is durable and thoroughBrenner, 4 (Joel, NSA Inspector General 2002-2007, “Information Oversight: Practical Lessons from Foreign Intelligence”, 9/30/4, http://www.heritage.org/research/lecture/information-oversight-practical-lessons-from-foreign-intelligence) KWThere are numerous additional layers of oversight within the executive branch itself. The Justice Department engages in broad oversight of NSA's policies through its Office of Intelligence Policy and Review, as does the President's Foreign Intelligence Advisory Board. The Assistant to the Secretary of Defense for Intelligence Oversight is further empowered to review activities as well as policies throughout the intelligence community. And the Inspector General of the Department of Defense is empowered to review any aspect of that Department, including the operations of the Defense Agencies, of which NSA is one. As a practical matter, however, NSA's Inspector General conducts the most intense and effective executive oversight of NSA's operations.21 In that capacity I have broad authority to audit, investigate, and inspect virtually any activity in the Agency, and I exercise that authority through a competent and experienced staff of more than 60 professionals and support personnel. Our collective experience in conducting oversight of a large, far-flung, and technically sophisticated intelligence agency may have something to teach legislators and policy-makers contemplating an expanded role for domestic antiterrorism activities. I will not enter here into the debate over the wisdom or necessity of such activities; but to the extent that they may be done, they should be done well--and scrupulously according to law.

Inspector General review solves the aff and ensures accountability Goldsmith, 12 (Jack, Professor of Law at Harvard University, former assistant Attorney General to the Office of Legal Counsel under the Bush Administration; March 12, 2012; “Power and Constraint: The Accountable Presidency After 9/11”; W. W. Norton & Company; 1 edition)//JPMThe point for now is to recognize how important the inspector general has become as a fount of accountability inside the presidency's secretive national security bureaucracy. The leaders of the congressional intelligence committees lacked the political will to thoroughly examine the CIA program, as well as the time and resources of Helgerson's team. Moreover, in the early years after 9/11, separation-of-powers objections by the executive branch—classified information, executive privilege, attorney-client privilege, and the like—would have prevented them from anything close to Helgerson's full access to CIA personnel and documents as well as to Department of Justice and CIA legal memoranda. But by giving Helgerson a perch inside the CIA and comprehensive power to investigate, to collect information, to analyze it, and to send it to the Hill, Congress circumvents these hurdles and gets deep inside the presidency. Congress in effect delegates its initial oversight function to the inspector general, who can quickly gather a much more complete understanding of executive branch activity than Congress itself could have.¶ What Helgerson did inside the CIA is emblematic of the role that inspectors general across the government have played since 9/11.

Glenn Fine, the inspector general of the Department of Justice, was just as forceful. On his own initiative he launched critical investigations into the FBI 's roundup of illegal aliens in the panicked weeks and months after 9/11 and into its involvement with Defense Department and CIA interrogation practices in Guantanamo Bay, Afghanistan, and Iraq.76 Like Helgerson, Fine saw his office "as an

http://www.heritage.org/research/lecture/information-oversight-practical-lessons-from-foreign-intelligence

http://www.heritage.org/research/lecture/information-oversight-practical-lessons-from-foreign-intelligence


independent entity that reports to both the Attorney General and Congress."77 But in truth, Fine , like

Helgerson, acted more as an agent of Congress than of the President. In

the post-9/11 period, Congress increasingly asked inspectors general to do national security investigations within the executive branch that Congress never could have done as quickly or effectively. Helgerson's investigation of responsibility for 9/11 was an example of this, as were Fine's reform-minded reports on FBI terrorist watch lists and the FBI's methods of obtaining personal and business records.78 Since 2001, pursuant to a

requirement of the PATRIOT Act, Fine also r eviewed allegations of civil liberties abuses and dutifully reported them to Congress (and the public) twice each year, which then acted on them .79 Congress also charged Fine and a team of inspectors general to do a "comprehensive report" of the controversial Terrorist Surveillance Program of warrantless wiretapping.80 Congress continued this pattern in a 2010 intelligence of the Director of National Intelligence and gave inspectors eral around the national security world many new tanks,"¶ In 1978, Jimmy Carter's Justice Department concluded that the placement of powerful independent inspectors general inside the presidency "violates the doctrine of separation of powers.'* Two decades later, and just three years before 9/11, a bipartisan group of distinguished experts described inspectors general at "congressional ferrets of dubious constitutionality."*3 Today, constitutional doubts about these congressional ferrets are largely gone.

Inspectors general have grown in stature and power and have become an established, legitimate, and consequential mechanism of executive branch accountability, even in wartime . Despite presidential

resistance, Congress has expanded their jurisdiction to every corner of the national security bureaucracy except the White House itself. It has steadily increased their size, power, and responsibilities over the years. And it consistently gives them political support in their clashes with the executive branch.¶ Many executive branch officials dislike or distrust inspectors general, sometimes with good reason. Inspectors general are not angels. Like all bureaucrats, they have biases, their competence varies, and they make mistakes. There is a genuine question, which I examine later, about who

guards these powerful guardians. But on the whole, executive branch anxiety about inspectors general is a testament to their independence and effectiveness . What critics fail to appreciate is how credible independent inspectors general inside the executive branch can enhance executive power.¶ The 2008 amendments to the Foreign Intelligence Surveillance Act are a good

example. Beginning in 2004, lawyers inside the government, and then leaks to the press, and then a secret surveillance court, pushed back against excesses in President Bush's controversial Terrorist Surveillance Program. By 2008, President Bush needed new legislation to keep the program going, and Congress obliged with new surveillance powers that were viewed by some as a capitulation to presidential unilateralism. "A weak Democratic Congress passed a law giving the Bush administration virtually unchecked power to intercept Americans* international email messages and telephone calls," charged ACLU Executive Director Anthony Romero." But this characterization is wrong. The Democratic Congress was convinced that the pre-9/11 surveillance regime had been overtaken by technological developments and needed to be more flexible to redress modern terrorism and related foreign intelligence collection challenges. The consensus was that the executive branch should be given power to surveil persons reasonably believed to be outside the United States as long as it took careful steps to redact or eliminate conversations of innocent


Americans.¶ The problems were that Congress did not trust the executive branch, especially the Bush administration, to use these new powers faithfully; and it did not trust itself to undertake the hard work of oversight needed to ensure compliance with its mandate. A major part of the solution to these problems was to empower inspectors general around the national security bureaucracy to regularly analyze the procedures used for targeting persons outside the United States and for redacting U.S.-person conversations, and to regularly report its results to Congress, which can then decide—after the hard information-gathering work has been done, inside the executive branch—if the law is being implemented as it wishes.86 In explaining his vote for the law, the then senator and presidential candidate Barack Obama specifically referenced the inspector general guarantees that he believed "ensures that there will be accountability going forward."87 (The new law also imposed other credible constraints, including advance review by a court of the legality of the procedures, and scores of legal restrictions on the executive branch that are enforced by "a bevy of lawyers crawling up their asses all the time," as one senior Department of Justice official said.)88 The executive branch likely would not have received the modernized surveillance powers that are so crucial in the fight against hard-to-find terrorists if not for the existence of a credible inspector general that Congress could trust to monitor and enforce restrictions on presidential discretion in secret. In these and other What John Helgerson uncovered and put in his report comprised the foundation of many subsequent government-wide investigations of the CIA detention and interrogation program, some of which are still going on today. No CIA program—including the ones that underlay the Iran-Contra scandal and the many mitigated during the Church and the Pike Committee hearings has ever undergone so much extended or critical scrutiny. In tjw process both the CIA and the accountability system governing changed fundamentally. ¶ Helgerson followed up the initial review with more focused I investigations of the detention program and the CIA's rendition program as well.89 He eventually referred twenty or so cases for criminal investigation by career Justice Department prosecutors.90 One of these cases—Helgerson called it the most severe—resulted in a prosecution: CIA contractor David Passaro was convicted of assaulting Abdul Wali, who died in an Afghanistan prison in the summer of 2003.91 Some saw a whitewash in the refusal to prosecute others in 2003, but the truth is more benign. "The fact that we do a crime report does not necessarily mean that we believe it should be prosecuted," Helgerson explained.92 Congress required him to tell the Justice Department about "any information, allegation, or complaint" relating to a possible violation of federal criminal law, regardless of whether he thinks an actual crime was committed.93 Prosecutors, by contrast, must convince a jury of a crime beyond a reasonable doubt. The career prosecutors who first examined the inspector general referrals concluded that they lacked sufficient evidence of criminal conduct, criminal intent, or the subject's involvement to bring charges.94 A few cases were close calls, and would later be reopened. But after circling the globe to examine witnesses and evidence, the career prosecutors in 2004 concluded that they could not "probably obtain and sustain a conviction as justice Department regulations require before bringing charges.95 "The professionals at DOJ looked with considerable care at the various serious cases" and "spent countless hours in our work spaces/5 Helgerson later said, satisfied with their decisions.¶ This was not nearly the end of the matter. After the Justice Department review came scrutiny before the CIA "Accountability Boards-" An Accountability Board is an ad hoc group of CIA officials convened by the CIA Director to assess whether CIA officials failed to act "in a professional and satisfactory manner," and if so, whether they should be subject to disciplinary action ranging from a reprimand to termination.97 Time before a CIA Accountability Board is a mark of dishonor that, during the review (which can

take a long time), puts one's career on hold. Some CIA officials involved in detention and interrogation quit the Agency rather than face an Accountability Board .¶


IG review causes internal reform, even if the findings remain confidential Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWIn addition, the CIA IG interrogations review suggests that the information from IG investigations informed decisionmaking within the executive branch , even in the absence of public transparency. Although the CIA IG report was publicly blocked for years, at the time of its release within the executive branch it revealed critical information about actual CIA interrogation practices, apparently with some impact. For instance, the report has been credited with influencing OLC head Goldsmith to withdraw an OLC memo approving extreme interrogations in June 2004211 and possibly contributing to the decision to end waterboarding.212 At the time the report was first issued internally—before the release of the Abu Ghraib photos—it supplied one of the earliest graphic depictions of extreme interrogations. In addition, because the CIA National Clandestine Service later destroyed ninety-two videotapes of detainee interrogations that the IG had reviewed,213 the IG report’s description of those interrogations, including the repeated use of waterboarding, remains an essential source on those interrogations.

Identifying rights violations and wrongful conduct IG reviews solve better than courts – can critique actions where there aren’t laws.Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KW

In several cases, IG reviews concluded that executive officials had violated the law or, even in the absence of a legal violation, had engaged in wrongdoing . Like judicial findings , IGs’ declarations of government wrongdoing had expressive significance, perhaps drawing even greater legitimacy from an expectation that executive institutions would not lightly criticize executive conduct. The DOJ IG reports on September 11 detainees and NSLs, and the CIA IG report on harsh interrogations, provided powerful statements of the wrongfulness of government actions.¶

IG investigations sometimes proceeded where the underlying rights concerns eluded judicial review . The DHS IG investigated Arar’s rendition where separation of powers and state secrets concerns ultimately led courts to decline review of his case and others challenging renditions.231 The DOJ IG NSL reviews exposed noncompliance with the law where courts could not have intervened, for lack of a private plaintiff with the knowledge, incentive, and standing to mount a legal challenge.232 Even where courts could have intervened, IGs had the institutional advantage of being able to assess compliance against a broad range of legal authorities, including

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186





agency rules and internal policies, which did not create judicially enforceable rights.¶ Furthermore, IGs sometimes showed a willingness to hold the executive accountable even in the “ gaps of the law .” Particularly in the national security context , the lack of judicial review can result in substantive underdevelopment of the law. Cornelia Pillard has criticized the OLC and Solicitor General’s office for taking advantage of this non-enforcement, arguing that where courts had not prohibited certain executive

conduct, these institutions simply concluded that no constitutional problem existed.233¶ By contrast, IGs in several cases critiqued government action even where no specific legal provision applied or where interpretations of the law were strongly contested. For instance, in the DOJ IG September 11 detainees review, the IG criticized the INS’s protracted service of immigration charging documents on detainees, which impeded their ability to contest the charges or apply for bond, even though no regulation or policy specified when the INS should serve those documents.234 Similarly, the IG strongly criticized prolonged detentions even though it noted that the lawfulness of detention past a statutory ninety-day removal period had yet to be adjudicated.235 Ultimately, the Second Circuit in Turkmen sidestepped the merits of that question: the court concluded that government defendants were entitled to qualified immunity and chose not to reach the underlying constitutional issue.236 In view of judicial disinclination to resolve

the matter, the IG’s sharp critique of the prolonged detention of September 11 detainees remains the most authoritative “official” judgment that the government’s actions were wrong.¶ In fact, IGs sometimes went further in actually challenging the legal judgments of others within the executive branch. For

example, in its NSL reviews, the DOJ IG rejected FBI counsel’s after-the-fact legal justifications for the use of exigent letters.237 The FBI General Counsel argued that a provision in the Electronic Communications Privacy Act permitting voluntary disclosure of records by telecommunications companies in emergencies could justify the use of exigent letters.238 But the IG pronounced that justification unconvincing because the exigent letters did not frame their requests as voluntary, because the department issuing exigent letters denied relying upon the provision, and because the FBI did not recite the factual predication required to invoke the cited provision.239¶

Even more striking, in its 2010 report on exigent letters, the DOJ IG warned against a new legal argument that the FBI asserted would justify future voluntary disclosure of records by communications providers.240 The statutory provision on which the FBI based this new argument was redacted in the IG report, although it appears to relate to the voluntary disclosure of international communications.241 The IG cautioned that invocation of the new legal authority created a “ significant gap in FBI accountability and oversight,” and that Con-gress and the Department of Justice should consider controlling the exercise of that authority in light of recent abuses.242 Thus, moving beyond an assessment of how past agency practices complied with the law, the IG did what courts are rarely in a position to do —warn against a prospective legal justification that would bypass


ordinary legal requirements.¶ Moreover, on several occasions, IGs criticized, on normative grounds, practices specifically declared lawful by the OLC, the executive branch’s “chief legal adviser” whose opinions are binding on requesting agencies.243 In the NSL review, the DOJ IG warned against the FBI’s new argument for voluntary disclosure even though the OLC had at least partly approved the FBI’s legal interpretation of the relevant provision.244 Before the release of the September 11 detainees report, the OLC concluded that it was not unlawful to hold aliens for investigative purposes past a statutory 90-day removal period,245 but the IG still censured INS officials for not raising legal concerns over the practice as promptly and strongly as they should have.246

IG investigations cause reform – empirical evidence Apaza, 11 (Dr Carmen R. Apaza, Assistant Professor, John Jay College of Criminal Justice, City University of New York. “Integrity and Accountability in Government : Homeland Security and the Inspector General”. 2011) KW

These are successful resolutions of issues arising from oIg investigations , audits, inspections, and evaluations through legal or legal-related action

other than criminal prosecution. they include: (1) civil judgments or forfeitures in favor of the united States in federal, state, local, or foreign government legal systems; (2) settlements negotiated by a governmental authority prior to or following filing a formal civil complaint; and (3) settlements or agreements in cases governed by the Program Fraud Civil Remedies Act or other agency-specific civil litigation authority (PcIe and ecIe 2004: 35). ¶ during Fy 2007, the oIgs produced 1,277 successful civil actions, an increase of nearly 35 percent above the Fy 2006 total of 947. cumulatively, during Fys 2003 through 2007, the oIgs were responsible for 4,022 successful civil actions. ¶ contrasting the number of civil actions with the number of criminal prosecutions, civil actions remain short for Fys 2003 through 2007. the main reason for this is related to the crucial mission of the dHS. the dHS mission includes protection of our borders from criminal activities such as illegal immigration, contraband, and smuggling. “We need to protect our nation from illegal activities that are determined by law as crime,” said deputy dHS Inspector general taylor in an interview on July 22, 2009. those illegal activities mostly involve corruption committed by DHS officials (e.g., CBP officials). “For the nature of its mission, CBP is vulnerable to corruption. In most instances we found that CBP officials were involved with smugglers and drug traffickers,” said Carlton Mann,

assistant inspector general for inspections, in an interview on July 22, 2009. In the same these are successful resolutions of issues arising from oIg investigations, audits, inspections, and evaluations

through legal or legal-related action other than criminal prosecution. they include: (1) civil judgments or forfeitures in favor of the united States in federal, state, local, or foreign government legal systems; (2) settlements negotiated by a governmental authority prior to or following filing a formal civil complaint; and (3) settlements or agreements in cases governed by the Program Fraud Civil Remedies Act or other agency-specific civil litigation authority (PcIe and ecIe 2004:

35). during Fy 2007, the oIgs produced 1,277 successful civil actions, an increase of nearly 35 percent above the Fy 2006 total of 947. cumulatively, during Fys 2003 through 2007, the oIgs were responsible for 4,022 successful civil actions. contrasting the number of civil actions with the number of criminal prosecutions, civil actions remain short for Fys 2003 through 2007. the main reason for this is related to the crucial mission of the dHS. the dHS mission includes

protection of our borders from criminal activities such as illegal immigration, contraband, and smuggling. “ We need to protect our nation from illegal activities that are determined by law as crime ,” said deputy dHS Inspector general taylor in an interview on July 22, 2009.


Increased inspector general enforcement solves – internal powers to investigate any agency activity and Congressional reporting solves.Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KW*IG is the Inspector General

Among internal executive structures that might protect civil liberties or

constrain executive power, IGs stand out in two ways. First, despite their location within the executive branch, IGs enjoy several statutory protections from agency interference. The Inspector General Act provides for presidential appointment and Senate confirmation of IGs “without regard to political affiliation and solely on the basis of integrity and demonstrated ability.”31 While the President can remove an IG without cause, the Act requires that the President communicate to Congress the reasons for any removal no later than thirty days before the removal.32 Even more significantly, IGs have a dual-reporting role that requires them to serve their agencies as well as Congress. They are required to keep both their agencies and Congress “fully and currently informed,” through submitting detailed semiannual reports to Congress as well as notifying Congress seven days after reporting any particularly serious problems to their agencies.33 Among other extensive

requirements, the semiannual reports must identify any significant IG recommendation that the agency has not fully ad-dressed ,34

facilitating congressional monitoring of agency follow-through. These detailed reporting requirements distinguish IGs from institutions such as the Justice Department OLC or Office of Professional Responsibility, which report only to the Attorney General, and help Congress overcome information problems in supervising agencies.35Other recently adopted features further protect IG independence: in budget submissions to Congress, the President must now include a statement from an IG who concludes that the budget request for the office would substantially inhibit IG performance, and the Act guarantees independent counsel for IGs.36 Second, IGs enjoy broad investigative powers. The Act authorizes IGs to undertake and carry out audits and investigations without interference from agency leadership and to access documents within and beyond their agencies.37 By law, IGs can access all records within their host agency, request information from other federal agencies, which are required to furnish it, and subpoena documents (but not testimony) outside federal agencies.38 IGs must generally guarantee confidentiality to agency whistleblowers, and agencies are prohibited from retaliating against employees who provide information in good faith.39 Despite granting IGs these broad powers, Congress accommodated national security agencies’ concerns over information disclosure by permitting certain agencies to block IG investigations in sensitive circumstances. Thus, while agency heads ordinarily may not interfere with IG reviews,40 the heads of the Departments of Defense, Justice, and Homeland Security may block investigations or




reports involving sensitive information on intelligence, counterterrorism, undercover operations, or any other matters for which information disclosure would seriously threaten national security.41 Where an agency head invokes such a statutory exception to impede an IG investigation, the Inspector General Act requires a written explanation to the IG and congressional oversight committees within a set time period.42 Slightly broader escape clauses apply to the CIA IG and other IGs for the intelligence community, though they preserve a congressional reporting requirement.43

Agencies appear to have rarely invoked these escape clauses .44 The Department of Homeland Security has never invoked its authority to impede an investigation,45 and the Department of Justice has done so only once.46 While the congressional reporting requirement may deter agencies from using this authority,47 the latent threat of obstruction may also influence IGs to stay within perceived limits. National security IGs thus face an additional constraint beyond the threat of presidential removal common to all IGs.

IGs best for addressing issues surrounding counter terrorism policies. Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KW

IGs now play a significant role in addressing the impact of counterterrorism policies on individual rights, despite their traditional association with detecting fraud, waste, and abuse. In the post-9/11 period, Congress explicitly required two IGs, those at the Departments of Justice and Homeland Security, to monitor complaints of individual rights violations. The Patriot Act, passed six weeks after the September 11 attacks, required the DOJ IG to designate an official to “review information and receive complaints alleging abuses of civil rights and civil liberties” by department officials and to report twice a year to Congress on its activities.48 Notably, this provision did not apply solely to complaints related to the Patriot Act, but encompassed civil liberties or civil rights complaints against any department official.49 Congress also made explicit a civil rights role for the new DHS IG, requiring the IG to designate a senior official to investigate civil rights allegations and to work with the DHS Officer for Civil Rights and Civil Liberties on policy recommendations.50¶ On other occasions,

Congress mandated that IGs conduct special investigations into counterterrorism programs that raised civil liberties concerns. When Congress reauthorized expiring provisions of the Patriot Act in 2006, it directed the DOJ IG to review several controversial investigative tools used by the FBI.51 In 2008, Congress directed multiple IGs to review the warrantless surveillance program initiated by President Bush after the September 11 attacks and to report on the impact of expanded surveillance authorities on U.S. persons.52 The new statutory mandates have raised the profile of IGs’ rightsmonitoring roles. The DOJ IG has been particularly




visible in investigating national security practices implicating individual rights. In response to the Patriot Act mandate, the IG established a new branch to investigate civil rights complaints, coordinated with the Justice Department Civil Rights Division on post- 9/11 backlash complaints, and publicized its new role.53 From September 2001 through September 2011, the IG completed approximately twenty-one special reviews and audits that it deemed related to its Patriot Act responsibilities.54 These reviews covered such topics as the Department’s treatment of September 11 detainees, use of investigative tools, investigations of domestic advocacy groups, terrorist watch list processes, and participation in detainee abuse abroad. Importantly, these reviews addressed systemic civil rights concerns raised by Congress, the media, or public interest groups, not just fact-specific individual complaints.55

IG oversight solves – only internal check that actually worksSinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWNot only do IGs benefit from statutory independence and significant information-gathering powers, but they also benefit from their existing stature, which newer institutions created specifically for rights oversight still struggle to acquire. For instance, while several national security agencies have appointed civil liberties officers to review counterterrorism policies, responding to a congressional mandate, few have the budget, staff, or visibility of IGs, with the possible exception of the DHS Office for Civil Rights and Civil Liberties.305 Even that office enjoys less stature and information-gathering authority than the agency’s IG: the head of the Office for Civil Rights and Civil Liberties is not subject to Senate confirmation306 and lacks the power to subpoena documents.307 Meanwhile, the Privacy and Civil Liberties Oversight Board, created in 2004 to review government terrorism policies, first lacked independence from the White House and then lay dormant for years, without board members, an agenda, meetings, or staff.308 It remains to be seen whether the recently reconstituted board will be successful. Given the scope and pace with which the executive has acquired and employed new national security powers, no single internal institution is sufficient to provide oversight, but the independence, powers, stature, and past successes of IGs are a good reason to support, and indeed strengthen, their rights oversight role.




Solves: CIACIA IG solves – investigation into human rights concerns and racial profiling.Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWThe CIA IG has also investigated human rights concerns presented by its programs, particularly with respect to detainee interrogations and treatment. Most prominently, the IG reviewed the CIA’s use of “enhanced” interrogation techniques against CIA detainees in the two-year period following the Septem-ber 11 attacks.56 The IG also reportedly investigated the agency’s detention and interrogations of suspects in Iraq, the rendition of suspects to other governments, the registration of “ghost” detainees, and the deaths of several detainees in CIA custody, although reports from these investigations have not been made public.57 The IG reportedly referred twenty-four detainee abuse cases to the Justice Department for possible prosecution.58 Most recently, the CIA IG reviewed the agency’s role in building a New York Police Department intelligence unit that mapped and monitored Muslim communities.59




Solves: DHS

IG oversight works – DHS proves that department management accepts changesApaza, 11 (Dr Carmen R. Apaza, Assistant Professor, John Jay College of Criminal Justice, City University of New York. “Integrity and Accountability in Government : Homeland Security and the Inspector General”. 2011) KWBy analyzing statistical highlights of the Office of the Inspector General (OIG) of DHS, this chapter tests the second and fifth case study propositions proposed in chapter 1. In contrast to the second case study proposition, which says few of the IGs’ investigations result in a recommendation for management improvement, evidence from the dHS oIg Semiannual reports to congress and dHS Performance report fails to support this proposition. data show that the dHS oIg has not only issued a significant number of recommendations but it has also been receiving great concurrence and acceptance from dHS management. moreover, data analyzed in this chapter support the fifth case study proposition that says IGs achieve increased savings, indictments, and convictions, and their interventions, findings, and recommendations influence agency management.

DHS IGs solveSinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWOther IGs, including those at the Department of Homeland Security, the Department of Defense (DOD), and the National Security Agency (NSA), have on occasion reviewed individual rights concerns arising out of their agencies’ national security programs, although the extent of their work is difficult to assess, in part because many reports remain classified. The DOD IG reported on department-ordered investigations of detainee abuse,60 allegations that the military used mind-altering drugs on detainees,61 and intelligence collection activities.62 The DHS IG investigated the rendition of Maher Arar, a Canadian citizen, to Syria, and the effectiveness of a redress process for travelers facing difdifficulties from terrorist watch list screening.63 The NSA IG, a nonpresidentially appointed IG, is said to have monitored the President’s post- 9/11 NSA surveillance program while it was secret, though little is known bout what such monitoring entailed.64 The NSA IG and others conducted a joint review of the program in 2009.65 It is not publicly known whether the first IG for the Intelligence Community, confirmed in late 2011, has issued any reports pertaining to individual rights.




Solves: Insider Threats

Solve for whistleblowersApaza, 11 (Dr Carmen R. Apaza, Assistant Professor, John Jay College of Criminal Justice, City University of New York. “Integrity and Accountability in Government : Homeland Security and the Inspector General”. 2011) KWThe Inspector General Act of 1978 included provisions that specifically authorize an Ig to receive and investigate complaints from an employee of the agency concerning any mismanagement, violations of law or rules, or “gross waste of funds, abuse of authority or a substantial and specific danger to the public health and safety.” (1978 IG Act, Sec. 7(a).) The bill specifically prohibits any action against the employee “as a reprisal for making a complaint or disclosing information to an Inspector general.” (1978

Ig act, Sec. 7 (a)-(c)) the 2008 Ig reform act added further provisions to aid whistleblowers and other complainants in bringing information to the attention of oIgs, by requiring “establishing and maintaining a direct link on the homepage of the oIg’s website for reporting waste, fraud, and abuse.” (2008 Ig reform act, Sec. 13 (b)(2))


Solves: NSAThe NSA’s current IG isn’t independent – an independent IG is best suited to challenge unethical NSA practicesSnider and Bttaglia, 13 (Britt Snider was general counsel of the Senate Select Committee on Intelligence from 1987 to 1995 and inspector general of the CIA from 1998 to 2001. Charles Battaglia was a senior staff member and staff director of the Senate intelligence committee from 1985 to 1997. “National Security Agency needs an independent inspector general”. 9/26/13. http://www.washingtonpost.com/pb/opinions/national-security-agency-needs-an-independent-inspector-general/2013/09/26/ae37d7fc-25f4-11e3-ad0d-b7c8d2a594b9_story.html) KWPublic confidence in the National Security Agency (NSA) and the efficacy of the oversight system in which it operates is at a low. Ultimately, the NSA needs the support of the public to succeed. It cannot accomplish its mission without the cooperation of the private sector and, like all government agencies, it depends on Congress for funding and legal authority. Without public consensus regarding limits on the NSA’s activities, it is more likely that those activities will be challenged by Congress and in court.Several institutional reforms have been suggested in an effort to boost public support for the agency’s data-collection systems, including creating an advocate for the public within the framework of the Foreign Intelligence Surveillance Court and requiring public disclosure of its opinions. But one important option has yet to be proposed: creating an independent inspector general’s office at the NSA , comparable to the office that was created within the CIA in 1989.As staff members of the Senate Select Committee on Intelligence, we were deeply involved in writing the legislation that made independent the Central Intelligence Agency’s inspector general. We saw how the law made a difference.Not only was the inspector general’s office viewed differently after the law was passed, but the office itself was different. It decided which of the CIA’s activities would be investigated, inspected or audited without waiting for direction or approval from agency management. Employees of the IG’s office no longer had to worry about the potential effect on their careers if their findings and conclusions were critical of the agency. They may not have always gotten everything right, but they were freer to call things as they saw them and did so, at times to the chagrin of CIA management.Having an independent inspector general at the CIA produced other advantages for the oversight process: It gave the congressional intelligence committees a more reliable partner — an office that lawmakers could call upon to conduct investigations beyond their own capabilities — and they learned of problems they otherwise might not have come across.The same dynamic is not possible at the NSA today because the agency’s inspector general is appointed by and works for the NSA director . For all

practical purposes, he is a member of the director’s staff and does not report directly to the intelligence committees.The inspector general of the CIA, by contrast, is appointed by the president and can be dismissed only by the president . That person reports to both the CIA director and the congressional intelligence committees. Although the director may impose constraints on the inspector general’s work, the committees must be advised of such constraints and the reasons for their imposition. This has rarely happened because, as a practical

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matter, the CIA director has not wanted to put himself in that position vis-à-vis the committees.Some may point out that the NSA falls under the jurisdiction of the Defense Department’s inspector general, whose office is independent. The NSA, of course, is one of numerous defense agencies, not all of which require an independent inspector general. But a stronger, more independent inspector general is necessary , given the NSA’s size, capabilities, mission and, most important, potential for violating the rights of Americans on a grand scale.In addition, the Defense Department inspector general’s office lacks the personnel and expertise to oversee the highly technical, compartmentalized world in which the NSA operates. Although the Pentagon inspector general should retain the ability to undertake oversight reviews as may be appropriate — such as studying alleged violations of departmental regulations — the lion’s share of the oversight work belongs with an inspector general within the agency.An independent inspector general at the NSA with statutory authority would not guarantee that every violation of law or applicable procedure would be detected, investigated or reported to appropriate authorities. But it would improve the chances that this would happen, which should lead to more effective and timely oversight.Far from being a threat to the agency’s sensitive yet necessary operations, an independent inspector general at the NSA would boost public support for that work.


Solves: Racial Profiling

IG solves for racial profiling – DOJ IG empirically stopped FBI and DOG overreachSinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWSoon after the September 11 attacks, the Department of Justice began detaining hundreds of aliens for suspected terrorist ties, mostly from Muslim countries, and ultimately held more than 750 of them on immigration violations.76 In 2003, DOJ IG Glenn Fine issued two highly critical reports on the treatment of September 11 detainees: the first a 198-page report covering the decisionmaking behind the prolonged detentions and the second addressing harsh conditions and physical abuse at the Metropolitan Detention Center in Brooklyn.77 While recognizing the “monumental challenges” facing the Department after the September 11 attacks, the IG concluded that the “chaotic situation” did not excuse actions that resulted in “significant” mistreatment of the detainees.78The reports concluded that the FBI had indiscriminately and haphazardly labeled aliens as being of interest to the terrorism investigation and then lagged in clearing them of terrorist ties, resulting in lengthy detentions.79 Prison officials subjected detainees at the Metropolitan Detention Center to particularly harsh conditions of confinement, including an initial total communications blackout, “lockdown” for twenty-three hours a day, and physical abuse by federal prison guards.80 Most notoriously, prison guards slammed detainees into a soon-bloodied T-shirt taped to a wall that pictured the American flag and the motto, “These colors don’t run.”81

The scope, access, and rigor of the IG investigation are striking. Justified as an exercise of the IG’s responsibilities under the Patriot Act and IG Act,82 the investigation went beyond individual allegations of detainee abuse, squarely targeting the Justice Department’s “hold until cleared” detention policy that led to lengthy confinement.83 Released with almost no redactions,84 the reports also provided an exceptionally detailed accounting of the government’s post-9/11 detention decisions. In addition, the IG surmounted the one significant attempt to obstruct the investigation noted in the reports: although Metropolitan Detention Center officials repeatedly impeded IG attempts to obtain videotapes of detainees, IG investigators discovered more than 300 videotapes in a prison storage room, many of which revealed prison staff engaging in “the very conduct they specifically denied in their interviews.”85




Solves: Transparency

IGs solve for transparency – increase oversight and keep Congress informedSinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWIncreasing transparency. Perhaps the least controversial function of rights oversight is to provide enough information about national security conduct to enable external assessment.197 Excessive secrecy allows abuses to go undetected and stymies assessment of whether the security benefits of a program justify burdens on individual rights. Congress , the public, and agencies themselves require information on the scope, effectiveness, and rights implications of national security programs. Moreover, the IG Act squarely mandates a transparency function for IGs , requiring them to keep agencies and Congress fully informed about serious problems in agencies and ordering agencies, in general, to make semiannual IG reports public.198

IG reviews increase transparency about programsSinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWMost of the IG reviews studied here disclosed significant new information about national security programs, and several created remarkable transparency

on issues that were previously highly secret. IG reviews frequently brought to light information on civil liberties violations that had not surfaced through litigation or alternative forms of congressional oversight.Most notably, the DOJ IG’s reviews of NSLs disclosed both the unprecedented extent to which the FBI relied on NSLs—information that public interest organizations had unsuccessfully sued to obtain205 and that the FBI had “significantly understated” to Congress206—and the fact that the FBI had used exigent letters to bypass legal processes altogether. Legal and practical barriers made it almost impossible for such information to surface through other channels: a statutory “gag order” forbade NSL recipients from revealing the records requests, phone companies complying with exigent letters had no incentive to expose their circumvention of privacy laws, and targets of either practice had no way of knowing that the government had sought their records. Moreover, the law only required the FBI to provide limited, classified reports to Congress on NSLs, and until 2006 did not require any public disclosure.207 Without identifiable victims of abuse, the information that might reveal abuses of authority resided almost exclusively within the executive branch.IGs made use of their auditing expertise and broad investigative powers to access and analyze information. In the DOJ IG NSL review, the IG not only drew on a large sample of publicly unavailable data, but also used a






detailed, resource-intensive audit to make the raw data on NSL usage comprehensible.208 In other cases, IGs appeared to enjoy extraordinary access to high-level government officials and individual employees under scrutiny. In the Septem-ber 11 detainees review, for instance, the DOJ IG interviewed Attorney General John Ashcroft, FBI Director Robert Mueller, and INS Commissioner James Ziglar,209 and “administratively compelled” interviews with staff at the Metropolitan Detention Center, who could then be subject to discipline for refusing to answer questions or for not responding truthfully.210


Solves: TSA Inspector general solves – behind report on TSA’s failureBowman, 15 (Michael, 6/9/15, “Top US Inspector 'Deeply Concerned' About TSA Terror Vulnerability”, http://www.voanews.com/content/report-us-transportation-security-agency-fails-to-identify-workers-with-terrorist-links/2813393.html)The top inspector for the agency that protects America’s flying public said he is “deeply concerned about its ability to execute its important mission.”Homeland Security Inspector General John Roth said Tuesday his team has uncovered “significant vulnerabilities” in the Transportation Security Administration’s conduct of airport screenings, among other shortcomings.Roth’s testimony before the Senate Homeland Security Committee followed IG reports that the TSA failed to identify 73 workers with links to terrorism, and failed to detect simulated weapons and other dangerous items in 96 percent of tests conducted at airport screening checkpoints.“We have deep concerns about the manner in which TSA manages this risk,” Roth said.


AT//IG Investigations Don’t Find AbusesEven if reports don’t reveal tons of information they still cause change within the agencySinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KW

Even weaker IG reviews revealed important facts: despite the DHS IG Arar rendition report’s spotty account of the decisionmaking behind Arar’s transfer to Syria, for instance, the report did reveal that the Acting Attorney General had deemed Arar’s return to Canada prejudicial to U.S. interests and that the government had issued an “operations order” to fly Arar to the Middle East even before it received assurances that he would not be tortured.214 Information disclosed through IG reports helped civil rights plaintiffs corroborate allegations of government abuse. A number of plaintiffs cited or incorporated IG reports into their complaints and courts took judicial notice of their contents. Using the DOJ IG September 11 detainee reports, former detain-ees survived motions to dismiss their civil rights claims against Justice Department officials215 and obtained the dismissal of a criminal indictment based on speedy trial right violations.216 And former counsels for detainees brought a new suit challenging the secret recording of attorney-client conversations at the Metropolitan Detention Center.217 For instance, in Turkmen v. Ashcroft, eight September 11 detainees who had sued Attorney General Ashcroft, FBI Director Robert Mueller, and officials at federal detention facilities twice amended their complaint with new information from the DOJ IG’s detainee reports.218 In partially rejecting motions to dismiss, the district court extensively cited those reports, noting that they substantiated plaintiffs’ claims of physical and verbal abuse,219 and further ruled that the reports enabled plaintiffs to plead that certain high-ranking defendants were personally involved in establishing wrongful policies.220 In fact, the IG reports had a second-order transparency benefit for plaintiffs: the Turkmen plaintiffs were not only able to use the findings of the reports, but also obtained through discovery notes of interviews that IG investigators had conducted with a number of high-level Justice Department officials.221 Five of the named plaintiffs in Turkmen eventually reached a $1.26 million settlement with the U.S. government.222




AT//Manipulated Findings The IG has a statutory obligation to report its COMPLETE findings Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KW Identifying rights violations and wrongful conduct. Where the object of concern is individual rights, an agency’s compliance with laws or regulations put in place to protect rights is the logical starting point for evaluation. But in the national security context, legal doctrine itself might be underdeveloped as a result of procedural and substantive barriers to judicial review or because legislation lags behind fast-moving executive national security policymaking.199 Thus, a focus on legal compliance alone might not adequately protect individual liberty or equality interests. IGs have a statutory obligation to report on serious problems, not just legal abuses,200 permitting them to identify government conduct that unfairly harms individuals or constrains liberty even where the conduct does not violate existing law.

IGs know what the important issues are and don’t avoid themProject On Government Oversight, 9 (Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. 3/20/9. “Inspectors General: Accountability is a Balancing Act”. http://www.pogoarchives.org/m/go/ig/accountability/ig-accountability-20090320.pdf) KW

It is possible to prioritize appropriately . For instance, the DOJ IG seems to know which windows need washing: he conducted significant investigations into the FBI’s involvement in interrogations at Guantanamo, and then-Attorney General Alberto Gonzales’s mishandling of classified documents.46 The OIG also issued three reports on investigations conducted jointly with the Department’s Office of Professional Responsibility into allegations of politicized hiring practices and the firing of nine U.S. Attorneys.47Similarly, the now-departing IG at CIA has managed to focus on sensitive and controversial issues—programs whose scrutiny did not win the IG any love from his agency—that go to the agency’s fundamental mission and let the American people know what is being done in their name. For instance, the CIA IG investigated the Agency’s interrogation methods for alleged terrorists; issued a blistering report on its failure to prevent or warn about the attacks of September 11, 2001; and issued a report on the circumstances surrounding the shoot-down of a U.S. missionary plane over Peru, based on CIA officers’ mistaken identification of the aircraft, and the subsequent cover-up.48Sometimes what appear to be small windows are actually indications of a systemic problem. But former NSF IG Boesz cautioned:Unfortunately IGs must get into “internal issues” when there is a broad management failure. Inappropriate use of computers, postage and other agency resources are symptoms of such management failure. An IG fails when he or she does not use this information to point out the broader issue. Sometimes pebbles turn into boulders—even mountains. It depends on the IG to put the story together.49

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AT//IG Fails (General)2008 IG reform act solves any issues regarding IGs.Project On Government Oversight, 9 (Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. 3/20/9. “Inspectors General: Accountability is a Balancing Act”. http://www.pogoarchives.org/m/go/ig/accountability/ig-accountability-20090320.pdf) KWThe 2008 IG Reform Act generally buttressed IGs’ independence, increased their resources, and held them more accountable for their performance. The changes to the IG law made the system a much better tool for the U.S. taxpayer; the watchdogs now had keener eyes and sharper teeth, and were to be held to tougher standards. Major provisions of the amended law of particular interest to this report are:• The appointment of all IGs “without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.”4• The newly created council of all IGs—the Council of the Inspectors General on Integrity and Efficiency (CIGIE or IG Council)—which will now finally be given resources.5• Compromise language that, because the Senate and Bush administration balked at the idea of dismissal of IGs only for cause, merely requires that the President notify both Chambers of Congress at least 30 days in advance before the transfer or removal of any Inspector General.6 (Appendix B)

IGs work with prosecutors and form task forces to make sure change is implementedProject On Government Oversight, 9 (Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. 3/20/9. “Inspectors General: Accountability is a Balancing Act”. http://www.pogoarchives.org/m/go/ig/accountability/ig-accountability-20090320.pdf) KWSince then, the mantra has largely become early cooperation and consultation. Both OIGs and prosecutors’ shops have reached out to each other, and in the very best relationships the cases are worked together. POGO heard particularly good comments from prosecutors about working with investigators from the IGs at HUD, HHS, Education, and the Social Security Administration. The Small Business Administration and General Services Administration were also mentioned by one. In response to POGO’s questionnaire, only one IG office said it waits until an investigation is largely completed before consulting with prosecutors.Thus, as more than one source pointed out, the statistics of cases referred could be lower than a decade ago, but the cases are of higher quality and may be declined for prosecution less often. Nowadays the focus is on task forces, to leverage not only expertise but also scarce resources. Multi-agency task forces combining OIGs with other federal, state, and local agencies have become a force multiplier. Good examples of the task forces are the Medicare Fraud Strike Force, Gulf Coast Hurricane-related Fraud Task Force, and the National Procurement Fraud Task Force.40 The most significant joint effort by IGs may well turn out to be the Recovery Accountability and Transparency Board (Recovery Board), chaired by a former longtime IG, to oversee the spending of the $787 billion Recovery Act.41




Solvency Common to Any Mechanism


AT//CIA KeyThe CIA cannot be trusted to restrain itself Buttar 14Shahid Buttar, civil rights lawyer who also leads the Bill of Rights Defense committee and is the Co-director of the Rule of Law Institute, “Beyond CIA and NSA Spying: Corruption,” May 19, 2014, The Huffington Post, http://www.huffingtonpost.com/shahid-buttar/beyond-cia-and-nsa-spying-corruption_b_4981558.html/NVEven before open war erupted last week between the CIA and Senate Intelligence Committee Chair Dianne Feinstein (D-Calif.), embattled NSA officials had woven tangled skeins to downplay public crimes including lying to Congress. Many observers have noted the double standard apparent in Feinstein challenging the CIA while deferring to the NSA. Few have recognized that both the NSA's pattern of spying and then lying about it and the CIA's trajectory of first committing torture crimes, then spying on Congress to cover it up, then lying about the spying when caught, can be described in a single word: corruption. CIA: Spying on Congress to Cover Up Criminal Human-Rights Violations Sen. Feinstein knows as much about the CIA's detention and torture programs under the Bush administration -- which went well beyond the acts depicted in photographs from Abu Ghraib -- as anyone outside the CIA. She described them as "un-American and brutal," and her colleague Mark Udall (D-

Colo.) called them both "brutal and ineffective." Beyond their brutality, their ineffectiveness as an intelligence tool, and the fact that they violated fundamental American values and foreign-policy interests , the programs were also international crimes at least partly responsible for the deaths of U.S. military servicemembers. Releasing the Senate's authoritative, 6,000-page, $40-million report to the public is long overdue -- especially for an administration that falsely champions transparency while routinely undermining it .

While the CIA's torture program prompted Feinstein to begin her committee's investigation, it was the agency's continuing coverup that prompted her to voice her concerns on the Senate floor in a speech described by her colleague Patrick Leahy (D-Vt.) as the most important he had ever witnessed in his 40-year career in the Senate. Feinstein revealed that CIA personnel had removed files from the computers used by Senate staff to conduct their investigation, and that a CIA lawyer himself complicit in human-rights abuses has tried to intimidate Senate investigators by outrageously seeking their prosecution -- for obtaining an internal CIA document confirming facts that the agency is trying to continue covering up. Ultimately, the CIA's attempt to limit what material its congressional overseers can review smacks of self-interest and reflects an evasion of accountability for severe institutional crimes. Brennan's confirmation by the committee last spring entitled him to lead the CIA, not to place it above the law.

Internal attempts to restrain the CIA fail – empiricsSledge 14Matt Sledge, writer for the Huffington Post, “Mark Udall Says The CIA Is Still Lying,” December 10, 2014, The Huffington Post, http://www.huffingtonpost.com/2014/12/10/mark-udall-cia-lying_n_6302894.html/NVThe CIA is still lying about its post-9/11 torture program, even in the face of a devastating Senate report, Sen. Mark Udall (D-Colo.) said Wednesday. In a dramatic floor speech during his final month in the Senate, Udall said the CIA's lies have been aided and abetted by President Barack Obama's White House and called on the president to "purge" his administration of CIA officials who were involved in the interrogation program detailed in the report. “It’s bad enough to not prosecute

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these officials, but to reward and promote them is incomprehensible,” Udall said. “The president needs to purge his administration.” Udall said the lies are "not a problem of the past," citing the CIA's response to the 6,000-page torture report. He said the agency took seven months to write a formal comment after the Senate Intelligence Committee approved the report in December 2012 -- and when it did, it was full of lies and half-truths meant to justify the agency's actions. "The CIA's formal response to this study under Director Brennan clings to false narratives about the CIA's effectiveness when it comes to the CIA's detention and interrogation program. It includes many factual inaccuracies, defends the use of torture and attacks the committee's oversight and findings," Udall said. "I believe its flippant and dismissive tone represents the CIA's approach to oversight, and the White House's willingness to let the CIA to do whatever it likes -- even if it's actively undermining the president's stated policies." Udall said a never-released internal CIA report begun under the agency's previous director, Leon Panetta, in fact supported many of the Senate's findings. But, he said, the CIA sought to bury it -- even taking the inflammatory step of spying on Senate staffers to find out how they gained access to it. That surveillance was the subject of a CIA inspector general report that found the agency had acted improperly. The only solution for the CIA, Udall said, is a culture change, which should start with the departure of Brennan. Udall previously called for his resignation in July.

" While the study clearly shows that the CIA detention and interrogation program itself was deeply flawed, the deeper, more endemic problem lies in the CIA, assisted by a White House, that continues to try to cover up the truth ," Udall said. Brennan has defended the agency and criticized the Senate report, claiming it provided "an incomplete and selective picture of what occurred." Shortly after the Senate Intelligence Committee released its summary of the report Tuesday, Obama said the interrogation program was "troubling" and included practices "contrary to our values." "That is why I unequivocally banned torture when I took office, because one of our most effective tools in fighting terrorism and keeping Americans safe is staying true to our ideals at home and abroad," the president said.


AT//Congress KeyCongress can’t check the executive—polarization and ideologyBendix and Quirk 15 (William Bendix and Paul J. Quirk , assistant professor of political science at Keene State College; Phil Lind Chair in U.S. Politics and Representation at the University of British Columbia, “Secrecy and negligence: How Congress lost control of domestic surveillance”, Issues in Governance Studies, March 2015, http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf)//DBI

We argue that Congress as an institution has great difficulty acting in any consistent, balanced way to protect privacy interests on surveillance issues. On one hand, when setting broad priorities in general terms, it attaches considerable weight to privacy interests. On the other hand, when faced with specific issues of investigatory authority, it readily makes sweeping, indiscriminate sacrifices of those same interests—even without distinct evidence of serious threat.¶ The lack of consistency in defending privacy interests has several sources. Most fundamental, legislators reflect the attitudes and demands of their constituencies . The American public has generally been quite willing to surrender

privacy rights for the sake of enhanced security, against even unspecified, highly indefinite terrorist threats.1 In addition, there

are generally no well-organized, powerful constituencies for privacy interests.2¶ But several factors exaggerate the effect. First, decisions on surveillance are largely about risk (for example, the

probability of an abusive “fishing expedition” versus that of a major terrorist attack). Congress members have strong temptations to defer to the executive branch on decisions that could, therefore, turn out badly . Second, the president’s party is more interested in defending the executive than in checking its decisions .3 Third, surveillance politics is complicated by long-term partisan and ideological divisions that were shaped by the particular conflicts of the Cold War era.

For generations, the main targets of intelligence-agency surveillance have been mostly on the political left. This history may inhibit the response of many Republicans to the threat of intrusive government, even though the main targets and likely victims of

intrusive surveillance are no longer a well-defined ideological category. Fourth, the committee system has been another impediment: overlapping jurisdictions among the Homeland Security,

Intelligence, and Judiciary panels prevent any one of them from being held accountable for stalled policy or lapses in oversight .4¶ Finally, and very important,

Congress has particular difficulties with policies that must be decided in secret —such as those for controlling technologically advanced surveillance methods. To prevent profuse leaks, Congress and the executive have imposed severe restrictions on

members’ access to information. When the full House or Senate decides policy, however, the restricted information encourages some members to opt out of serious participation, degrading the

intelligence of deliberation and promoting deference to the executive.¶ Lacking any settled disposition

on surveillance issues, Congress will respond to the leadership, and sometimes merely the

political cover, provided by other institutions—especially the president, the intelligence agencies, and the FISA Court. It may take cues from the Justice Department or other executive agencies, and it will defer to rulings by the regular federal courts. In the end, Congress’s performance in protecting privacy may depend on the design of the legislative arrangements for dealing with secret programs and on the structures and missions of relevant administrative and judicial institutions.


Congress failsSudha Setty 15, Professor at Western New England University School of Law, 2015, “Surveillance, Secrecy, and the Search for Meaningful Accountability”, 51 STAN. J. INT'L L 16, http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1305&context=facscholOne of the most intractable problems in the debate around maintaining ¶ the rule of law while combating the threat of terrorism is the question of ¶ secrecy and transparency. In peacetime, important tenets to the rule of law ¶ include transparency of the law, limits on government power, and consistency ¶ of the law as applied to individuals in the polity. Yet the post-9/11 decision making¶ by the Bush and Obama administrations has been characterized by ¶ excessive secrecy that stymies most efforts to hold the government¶ accountable for its abuses. Executive branch policy with regard to detention,¶ interrogation, targeted killing, and surveillance are kept secret, and that ¶ secrecy has been largely validated by a compliant judicial that has ¶ dismissed almost all suits challenging human and civil rights abuses resulting ¶ from counterterrorism programs . Efforts by Congress to engage in ¶ meaningful oversight have met with mixed results ; in the area of government ¶ surveillance, such efforts have been fruitless without the

benefit of leaked¶ information on warrantless surveillance by government insiders. The ¶ executive branch has generally refused to make public vital aspects of its ¶ surveillance programs in ways that could give oversight efforts more muscle.¶ At the same time, the executive branch has consistently defended the legality¶ and efficacy of these surveillance programs.¶ This paper considers the nature and effect of the warrantless surveillance ¶ infrastructure constructed in the United States since the terrorist attacks of¶ September 11, 2001, and discusses surveillance-related powers and ¶ accountability measures in the United Kingdom and India as comparative¶ examples.

Congressional reforms lack credibility tooEric Posner 7, Professor of Law at The University of Chicago Law School, 8/10/2007, “The Credible Executive”, University of Chicago Law Review, 74 U. Chi. L. Rev. 865, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2737&context=journal_articles5. Congressional motivation and credibility.Like the executive, Congress has a credibility problem. Members¶ of Congress may be well motivated or ill motivated; the public does¶ not know. Thus, when Congress passes a resolution criticizing presidential¶ action or refuses to delegate power that he seeks, observers do¶ not know whether Congress or the president is right. Ill-motivated¶ members of Congress will constrain public-spirited presidents; thus¶ the Madisonian cure for the problem of executive credibility could be¶ worse than the disease.¶ Even if members of Congress are generally well motivated, Congress¶ has a problem of institutional credibility that the president lacks.¶ Although a voter might trust the member of Congress for whom she¶ voted because she knows about his efforts on his district's behalf, she¶ will usually know nothing about other members of Congress, so when¶ her representative is outvoted, she might well believe that the other¶ members are ill motivated. And, with respect to her own representative,¶ he will often lack credibility compared to the president because he has¶ much less information. Further, the reputation of congressional leaders¶ is only very loosely tied to the reputation of the institution, while there¶ is a closer tie between the president's reputation and the presidency. As¶ a result, Congress is likely to act less consistently than the president,¶ further reducing its relative credibility. Congressional


lack of credibility¶ undermines its ability to constrain the president : Congress can monitor¶ the president and tell the public that the president has acted properly or¶ improperly, but if the public does not believe Congress, then Congress's¶ power to check the president is limited.¶ We neither make, nor need to make, any general empirical claim¶ that Congress has no control over executive discretion. That is surely¶ not the case; there is a large debate, or set of related debates, about¶ the extent of congressional dominance." We have reviewed the institutional¶ problems piecemeal; perhaps some of them are mutually offsetting,¶ although we do not see any concrete examples. Our assertion is¶ just that there is at least a real gap, and during emergencies and wars¶ an even larger gap, between the extent of executive discretion and¶ legislative capacity for monitorin g. It is hard to say how great that gap¶ is, but we know of no one who thinks it is nonexistent. Within that gap,¶ the dilemma of executive credibility arises. To the extent that legislators¶ cannot monitor the executive's exercise of discretion, they must¶ either withhold discretion from an executive who might be well motivated,¶ or grant discretion to an executive who might be ill motivated.

Congressional checks on the executive fail—structural barriersMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBIThe expansion of presidential power is only part of the story. Because the constitutional commitment to separation of powers depends on a balance between the executive and legislative branches,86 the related question that must be

addressed is how the expansion of presidential power relates to the powers of the Congress. In this respect, it does not appear that any expansion in the powers of Congress have kept pace with the increasing power of the President .87At least two significant changes since the Founding have worked to Congress’s advantage in its battles with the Presidency. First, the Supreme Court has recognized Congress’s non-textual power to investigate and oversee the executive branch.88 This power is significant and, indeed, has at times been enormously effective in uncovering executive branch malfeasance.89 But the power to investigate has not, and likely cannot, fully compensate for the power the Presidency enjoys in controlling information. After all, Congress’s oversight authority is not self-executing, and, as the experience of both the Clinton and Bush II presidencies have shown, frequently can be frustrated by a combative President. Moreover, even if Congress has the political will to force a recalcitrant administration to turn over information, the President’s control over information may be so absolute that Congress does not even know what to ask for.90 How can Congress, for example, request materials relating to a domestic surveillance program if it does not know that such a program exists ?

Congress fails – no expertise Eric Posner 7, Professor of Law at The University of Chicago Law School, 8/10/2007, “The Credible Executive”, University of Chicago Law Review, 74 U. Chi. L. Rev. 865, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2737&context=journal_articles1. Information asymmetries.¶ Monitoring the executive requires expertise in the area being¶ monitored. In many cases, Congress lacks the information necessary to¶ monitor discretionary policy choices by the executive. Although the¶ committee


system has the effect, among others, of generating legislative¶ information and expertise, 2 and although Congress has a large¶ internal staff, there are domains in which no amount of legislative expertise¶ suffices for effective oversight. Prime among these are areas of¶ foreign policy and national security. Here legislative expertise is beside¶ the point, because the legislature lacks the raw information that¶ experts need to make assessments.¶ The problem would disappear if legislators could cheaply acquire¶ information from the president, but they cannot . One obstacle is a¶ suite of legal doctrines protecting executive secrecy and creating deliberative¶ privileges43 -doctrines which may or may not be justified¶ from some higher-order systemic point of view as means for producing¶ optimal deliberation within the executive branch. Although such privileges¶ are waivable, the executive often fears to set a bad institutional¶ precedent. Another obstacle is the standard executive claim that Congress¶ leaks like a sieve, so that sharing secret information with legislators¶ will result in public disclosure. The credibility dilemma becomes¶ most acute when, as in the recent controversy over surveillance by the¶ National Security Agency, the executive claims that the very scope or¶ rationale of a program cannot be discussed with Congress, because to¶ do so would vitiate the very secrecy that makes the program possible¶ and beneficial. In any particular case the claim might be right or¶ wrong; legislators have no real way to judge, and they know that the¶ claim might be made either by a well-motivated executive or an illmotivated¶ executive, albeit for very different reasons.

Congress comparatively fails--- lack of interest and ulterior motives McGinnis 93 [John O., Assistant Professor, Benjamin N. Cardozo School of Law. From 1985-1987 1 was an attorney-adviser and from 1987-1991 Deputy Assistant Attorney General in the Office of Legal Counsel, Department of Justice. I thus participated in drafting some of the materials discussed in this article, CONSTITUTIONAL REVIEW BY THE EXECUTIVE IN FOREIGN AFFAIRS AND WAR POWERS: A CONSEQUENCE OF RATIONAL CHOICE IN THE SEPARATION OF POWERS, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4213&context=lcp] SchlossOn the other hand, Congress's structure is so much more diffuse than the executive that it impedes the rapid decisionmaking necessary in the fluctuating world of foreign affairs.63 Thus, because of its comparative disadvantage as an institution, operational control of foreign affairs may actually be at odds with its interests because such control threatens Congress with responsibilities it is not well-equipped to handle. In determining how much interest Congress has in exercising this power as compared to the executive, one must compare this interest to other rights of governance. Spending on constituents, for example, is more highly prized by Congress since it can directly help individual members of Congress retain office.' Of course, even if Congress rationally shuns operational control of war and foreign policy matters, it may be interested in increasing its mechanisms to criticize the executive's performance after the fact, so that it can act in effect as the ululating Greek chorus that comments on the executive's tragic choices.'

Not all models are credible but most suggest that the largest check on presidential power is the presidentMoe and Howell 99 [Terry and William, a professor of political science at Stanford University and a senior fellow at the Hoover Institution, Howell is a graduate student in political science at Stanford University. He is currently writing a dissertation on the politics of unilateral action, Unilateral Action and Presidential Power: A Theory, http://onlinelibrary.wiley.com/doi/10.1111/1741-5705.00070/epdf] Schloss

http://onlinelibrary.wiley.com/doi/10.1111/1741-5705.00070/epdf




This is a simple model that leaves out key aspects of the power struggle. Congress, for

instance, can write restrictive statutes in an effort to limit the president’s ability to act unilaterally, and the courts can declare a president’s actions illegal if he

goes too far. If these were put to effective use—a big if, as we will see—they would obviously introduce additional constraints on the president that need to be recognized. Far and away the most important factor omitted from this model, however, and indeed from virtually all spatial models, would have the effect of

expanding the scope for presidential power considerably. This is that Congress is burdened by collective action problems and heavy transaction costs that make it extremely difficult for that institution to fashion a timely, coherent response to presidential action or even

to respond at all. Until spatial models can incorporate these fundamental features of Congress, they will

systematically overstate Congress’s capacity for taking strategic action—and understate presidential power. ¶ We have to be wary, then, of putting too much

stock in simple models. Still, the one we have employed here does help to illustrate two points that are quite central to our theoretical argument. The first is that unilateral action can make a big difference in determining what presidents are able to achieve—and this is why they value it and want more of it. The second is that, even when they can act unilaterally, they are constrained to act strategically and with moderation. They cannot have everything they want.


AT//Courts KeyExecutive self-restraint shapes executive powers—judicial vagueness proves courts failAtkinson 13 – US Department of Justice, National Security Division, JD in law (Lawrence, “The Fourth Amendment’s National Security Exception: Its History and Limits”, Vanderbilt Law Review, October 2013, http://www.vanderbiltlawreview.org/content/articles/2013/10/Atkinson_66_Vand_L_Rev_1343.pdf)//DBIC. The Constitutional Gloss of Early Executive PracticeTo help address the uncertainty surrounding security investigations, this Article surveys the historical boundaries of such operations. The history examined here primarily involves executive conduct, which can carry precedential weight in matters of constitutional law.44 In Youngstown Sheet & Tube Co. v. Sawyer, Justice Frankfurter explained in his concurrence how executive practice informs our constitutional understanding:[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by §1 of Art. II.45Subsequent Supreme Court decisions have embraced the probative value of longstanding executive practice.46

When identifying the constitutional parameters of the executive’s power, historical moments of restraint are particularly instructive. When congressional prohibition draws executive power to its “ebb,” for example, one can identify the executive’s core inextinguishable powers.47 Constitutional boundaries are similarly discernible in some cases where the executive branch limits its own conduct.48 Specifically, the

executive’s self-restraint is precedential when it stems from a sense of constitutional obligation.49 Such executive branch fealty toward the Constitution might be unprompted by a coordinate branch’s action, so there may be no record as evident as a judicial opinion or legislative bill. Nevertheless, where a discernible opinio juris shapes executive action, we should consider such legal opinion both for its persuasive power and for its reflection of historical understandings about what protections the Constitution establishes.50Historical conduct is particularly important in the national security context. “National security law and foreign affairs law,” Julian Mortenson explains, have a “pronounced concern for post- enactment history as a source of constitutional meaning.”51 Neil Katyal and Richard Caplan note that “[i]n the crucible of legal

questions surrounding war and peace, few judicial precedents will provide concrete answers,” making executive practice one of the few constitutional guides .52

Judiciary cannot check the executive, especially on questions of surveillance – no expertise Eric Posner 7, Professor of Law at The University of Chicago Law School, 8/10/2007, “The Credible Executive”, University of Chicago Law Review, 74 U. Chi. L. Rev. 865, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2737&context=journal_articlesThe gap between the executive and the judiciary, in information¶ and expertise, is even wider than between the executive and Congress.¶ Whereas many legislators have a narrowly defined field of policy expertise,¶ particularly in


the House, federal judges are mostly generalists, barring¶ a few specialized courts. Furthermore, the partial insulation from¶ current politics that federal judges enjoy, by virtue of life tenure and¶ salary protection , brings with it a kind of informational impoverishment.6¶ Legislators, who must please other people at least some of the¶ time, interact with the outside world far more systematically than generalist¶ judges, whose main source of information is the briefs and arguments¶ of litigants. The credibility dilemma thus appears quite acutely¶ in judicial proceedings. When the executive says that resolving a plaintiff's¶ claim would require disclosure of "state secrets,"61 with dangerous¶ consequences for national security, judges know that either an illmotivated¶ or a well-motivated executive might be making the claim and¶ that they have no easy means to assess whether the claim is credible.¶

Executive restraint sets a precedent as long as it is constitutionalAtkinson 13 [Rush, U.S. Department of Justice, National Security Division. A.B., University of Chicago; M.Phil., University of Cambridge; J.D., New York University, The Fourth Amendment’s National Security Exception: Its History and Limits, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226404] SchlossTo help address the uncertainty surrounding security investigations, this Article surveys the historical boundaries of such operations. The history examined here primarily involves executive conduct, which can carry precedential weight in matters of constitutional law.44 In Youngstown Sheet & Tube Co. v. Sawyer, Justice Frankfurter explained in his concurrence how executive practice informs our constitutional understanding:[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by §1 of Art. II.45Subsequent Supreme Court decisions have embraced the probative value of longstanding executive practice.46 When identifying the constitutional parameters of the executive’s power, historical moments of restraint are particularly instructive. When congressional prohibition draws executive power to its “ebb,” for example, one can identify the executive’s core inextinguishable powers.47 Constitutional boundaries are similarly discernible in some cases where the executive branch limits its own conduct.48 Specifically, the

executive’s self-restraint is precedential when it stems from a sense of constitutional obligation. 49 Such executive branch fealty toward the Constitution might be unprompted by a coordinate branch’s action, so there may be no record as evident as a judicial opinion or legislative bill. Nevertheless, where a discernible opinion juris shapes executive action, we should consider such legal opinion both for its persuasive power and for its reflection of historical understandings about what protections the Constitution establishes.50

Executive action doesn’t change the judicial recourse which preserves the constitutionality of the actionGaziano 01 [Todd, Senior Fellow in Legal Studies and the Director of the Center for Legal and Judicial Studies at The Heritage Foundation, The Use and Abuse of Executive Orders and Other Presidential Directives, http://www.heritage.org/research/reports/2001/02/the-use-and-abuse-of-executive-orders-and-other-presidential-directives] SchlossSome directives may not be subject to judicial review if the effect on private citizens is indirect or if the directive is implemented through agency regulations or other agency action. Both President Reagan's and President Clinton's regulatory review

http://www.heritage.org/research/reports/2001/02/the-use-and-abuse-of-executive-orders-and-other-presidential-directives

http://www.heritage.org/research/reports/2001/02/the-use-and-abuse-of-executive-orders-and-other-presidential-directives


executive orders (Executive Orders 12291 and 12866, respectively) are examples of orders with indirect effects on private citizens. The orders required regulatory agencies to prepare certain analyses of proposed rules and to take various factors into account in their regulatory decisions, and they allowed the Office of Management and Budget to oversee the rulemaking process. However, neither order altered the statutory obligations of the regulatory agencies to issue particular substantive rules. A citizen adversely affected by a regulation (or lack thereof) has the same judicial recourse regardless of the type of executive branch review the rule underwent. Thus, the citizen may challenge the resulting substantive rule but may not challenge the type of executive branch review it received.The lack of judicial review to challenge a regulatory review executive order does not mean that such orders have no impact on the regulations issued. Presidents Reagan and Clinton would not have altered the type of review if they did not think it mattered. But it would be highly speculative to predict ex ante (assuming it can be discerned at all) what effect OMB review will have on a particular rule in the future. More important, the type of executive branch review, in itself, does not alter the rights of the private citizens who are regulated to challenge the regulation directly in court.

Even if the order doesn’t have a constitutional effect it won’t be challenged on the basis of constitutionalityPosner 14 [Eric, professor at the University of Chicago Law School, Executive Orders on Immigration Is Clear, http://www.nytimes.com/roomfordebate/2014/11/18/constitutional-limits-of-presidential-action-on-immigration-12/the-constitutional-authority-for-executive-orders-on-immigration-is-clear] SchlossCritics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.Executive power has always included the power to allocate resources among enforcement efforts. The power has grown over the years.Yet the Constitution also gives the president “executive power,” which has always been understood to include the discretionary power to allocate resources among enforcement efforts. The significance of this power has grown over the last century, as Congress has created vast regulatory agencies and given the president control over them.Congress typically appropriates money for regulators, gives the president some vague guidelines and enacts far more laws than he could possibly enforce, and then allows him to set enforcement priorities as he sees fit. That’s why different administrations can pursue such different policies from each other without getting Congress’s permission first. The Reagan administration came to power promising to deregulate the economy, which often meant not enforcing the law, whether it was antitrust, environmental or financial.If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn? It might be surprising that after two centuries of constitutional experience, we don’t know the answer. Probably the reason is that most of the time, the president’s nonenforcement decisions are not controversial. Every day, an executive branch official decides to drop an investigation, or not to prosecute a case, because resources are scarce and the harm caused by a particular legal violation does not seem serious. We don’t object because that’s a sensible thing to do.And the sensible thing to do in the area of immigration law is to bring removal proceedings against the most serious violators — typically, criminals — while leaving otherwise law-abiding noncitizens alone. Given that Congress has not appropriated nearly enough money to deport 10 million or more people, this type of priority-setting is unavoidable, and not merely wise. Indeed, the president is just following in the footsteps of his predecessors, who also focused removal efforts on dangerous aliens. Congress has acquiesced in this practice for years. The president’s discretion over immigration is deeply interwoven in our law. As the Supreme Court

http://www.nytimes.com/roomfordebate/2014/11/18/constitutional-limits-of-presidential-action-on-immigration-12/the-constitutional-authority-for-executive-orders-on-immigration-is-clear

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recognized just two years ago, in the course of summarizing the statutory scheme: “A principal feature of the removal system is the broad discretion exercised by immigration officials.”The only difference between the president and his predecessors is that the president has openly declared the de facto policy of his predecessors. We might disagree about whether this move is wise, but it’s not a constitutional violation.

Court rulings lead to legislation changes – causes greater decrease of executive powers. Bellia ’11 (Patricia L, Notre Dame Law School, Arizona State Law Journal, Vol. 43, No. 293, 2011, Notre Dame Legal Studies Paper No. 12-58, 2011, “Designing Surveillance Law,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033217) KWReactive statutes can take two quite different forms, depending upon whether the initial judicial decision approves or disapproves of the executive practice that preceded it. If the initial judicial decision finds existing procedures inadequate, the legislature must attempt to meet whatever constitutional bar the court sets. In a sense, the statute codifies the standards the court has articulated. If, however, the initial judicial decision finds existing procedures fully adequate (as, for example, by determining that the executive conduct in question is not a "search" for Fourth Amendment purposes), the legislature may seek to provide more procedural protections than a court has deemed the Fourth Amendment to require. We might regard the statute as corrective - as intended to reset the level of privacy

protection to what the legislature perceives to be a more appropriate level.The Wiretap Act and arguably FISA fit the former category. Congress adopted each statute in the wake of a Supreme Court decision that directly limited executive discretion to use certain surveillance tactics - in particular, to acquire communications in which a target could reasonably expect privacy. The judicial decisions left some room for legislative discretion, but made clear that the Fourth Amendment required robust constraints on executive conduct. In the case of the Wiretap Act, the protections Congress set essentially tracked those the Supreme Court outlined in Berger v. New York. n53 The statute at issue in Berger had allowed court authorization of eavesdropping activities, but the Court found the statutory procedures deficient in several respects. First, although the statute required a showing of reasonable grounds to believe that the surveillance would reveal evidence of criminal activity, the statute failed to satisfy the Fourth Amendment requirement that the crime to be investigated, the place to be searched, and the persons or things to be seized be particularly described. n54 Second, the statute imposed no limitations on which conversations could be seized or the duration of the surveillance, nor did it require termination of surveillance activities once the goals of the surveillance were met. n55 Third, the statute allowed law enforcement officials to secure renewal of a surveillance order on the basis of the initial showing. n56 Fourth, the statute did not provide for prior notice of the search [*307] to the subject of the surveillance and required no showing of exigency to justify the lack of notice. n57 Finally, the statute did not provide for a "return" on the warrant to a judge, "thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties." n58With the Wiretap Act, Congress sought to overcome each of these deficiencies. The Wiretap Act requires that the application specify the offense being investigated, the nature and location of the facilities where the communications are to be intercepted, and a particular description of the communications sought to be intercepted. n59 To grant the order, the court must find probable cause to believe that a particular enumerated



offense is being committed and that targeting the specified facility will yield particular communications concerning that offense. n60 Congress dealt with Berger's objection to the indeterminate length of surveillance under the New York statute by providing that orders may authorize surveillance only as long as necessary for achievement of the objective, up to thirty days . n61

A court may grant an extension, but only subject to the same showings and findings as the original order. The statute also requires a court to order officials to "minimize" the interception of communications unrelated to criminal activity. n62In light of Berger's objection that the New York statute required no showing of exigency to justify the lack of notice, the Wiretap Act requires a finding that normal investigative procedures are unlikely to be successful or are too dangerous, and generally requires notice to the target of the investigation within ninety days of the termination of the surveillance. n63 Finally, Congress required law enforcement officials to take a variety of steps that provide the functional equivalent of a return to a judge. For example, the Wiretap Act requires law enforcement officials to record intercepted communications and to make the recordings available to the judge. n64 The statute also authorizes a judge to require periodic reports on the progress of the surveillance. n65The circumstances surrounding FISA's passage were slightly different, because the Supreme Court never spoke directly to the question whether warrantless national security surveillance of a foreign power or its agent [*308] violated the Fourth Amendment. n66 In Keith, however, the Court clarified that national security surveillance of a domestic target must comply with the Fourth Amendment. The Court acknowledged both that Congress could tailor specific statutory requirements to the peculiarities of national security surveillance n67 and that Congress could properly place the power to review surveillance applications in a specially designated court. n68 Although Congress never took up the Supreme Court's invitation to legislate distinct standards for national security surveillance of a domestic target, it enacted in FISA a special framework for surveillance of a foreign power or an agent of a foreign power. n69 More specifically, it established a specialized court, the FISC, to hear applications for electronic surveillance within the United States to gather foreign intelligence information. n70 In light of the Keith court's acknowledgement that special standards could be appropriate even for national security surveillance of domestic targets, FISA can be understood as Congress's attempt to map the Court's reasoning in Keith onto foreign intelligence gathering. n71 [*309] Several statutes fall within the second, "corrective" category of reactive statutes - that is, providing additional statutory protection in response to a judicial decision that approves executive conduct undertaken with few procedural protections. As noted earlier, ECPA's pen/trap provisions were in part a legislative response to the Supreme Court's decision in Smith v. Maryland. n72 The Court's holding would have permitted federal and state officials (absent statutory constraints) to use pen registers and similar devices without prior judicial authorization. The pen/trap device statute is one of several statutes in which Congress sought to restore a measure of procedural protection to activities that the Supreme Court deemed not to constitute a search for Fourth Amendment purposes. n73

Courts limit presidential powers more than Congress Bellia ’11 (Patricia L, Notre Dame Law School, Arizona State Law Journal, Vol. 43, No. 293, 2011, Notre Dame Legal Studies Paper No. 12-58, 2011, “Designing Surveillance Law,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033217) KWApart from these general observations about the problems of institutional competence arguments in cases where the legislature has chosen the rule that constrains the executive, it is worth making two additional points with respect to proactive statutes. First, I noted that Congress often confides important statutory questions in courts, but in the particular context of ECPA, Congress has limited courts' ability to interpret the relevant provisions by withholding a statutory suppression remedy. Without such a remedy, statutory challenges to executive action do not arise in criminal proceedings. No doubt the omission of a suppression remedy was motivated in part by a belief that no



such remedy was warranted, n154 not a specific desire to foreclose judicial interpretation. The absence of a tool for courts to evaluate the SCA's terms in a criminal context, however, can hamper not only judicial evaluation, but also legislative evaluation. To the extent that judicial decision-making exposes an executive interpretation of the law, it facilitates public and legislative oversight. The paucity of judicial decisions under the SCA makes it unsurprising that Congress has made few significant changes to the SCA. Executive interpretations of the statute are largely shielded from view in the absence of other more direct oversight mechanisms. Although Congress has updated ECPA on nearly a dozen occasions over the last twenty-five years, most of the amendments other than the Patriot Act reflect fairly technical changes to the existing statutory framework.

Limitations make it impossible for the executive to act – Wiretap Act provesBellia ’11 (Patricia L, Notre Dame Law School, Arizona State Law Journal, Vol. 43, No. 293, 2011, Notre Dame Legal Studies Paper No. 12-58, 2011, “Designing Surveillance Law,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033217) KWConsider the limitation that information gathered under the Wiretap Act must pertain to a crime. By statute, applications for surveillance of wire and oral communications require the approval of a high-level Justice Department official, and thus proceed through a centralized executive [*334] branch review process. n156 In theory, the effect of such a requirement is to centralize decision-making and vest it in politically accountable officials, and perhaps even to place certain executive officials in a quasi-judicial rule. By most accounts, in practice this requirement has had the effect of making the wiretap application process a fairly burdensome one for investigators. n157 The Wiretap Act's high-level executive review requirements no doubt contributed to the institutional evolution within the Justice Department, with the Criminal Division's Office of Enforcement Operations serving as a gatekeeper for the Title III order process. The statute, however, does not rest on executive assessment alone; it requires a judicial finding of probable cause, and at the federal level even confines that authority to district court judges (rather than magistrates). n158 Other aspects of the statute reflect a different allocation of responsibility. Law enforcement officials must "minimize" interception of communications not authorized to be intercepted, but judicial checks on whether they have done so are limited. n159 Indeed, the statute does not require judicial evaluation of whether evidence of crimes other than those set forth in the application should be disclosed, thus leaving the matter to executive discretion. n160 The statute does, however, require judicial evaluation of whether other-crimes evidence should be admitted into court. n161It should be obvious that second-order design mechanisms will often move with first-order preferences, in the sense that a preference for greater limits on executive discretion will lead to the selection of design mechanisms that rely less on executive policy and more on other institutional arrangements. Nevertheless, many different design combinations are available to meet first-order preferences. A goal of preventing unlawful executive surveillance, for example, might be achieved equally well through a statutory suppression mechanism and through the availability of a civil damages remedy against executive officials who authorize the surveillance.



AT//DEA KeyThe DEA cannot check itself – corrupt, lies and no internal checksGranick and Sprigman 14Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society and former director of the EFF, Christopher Sprigman, professor of law at NYU, “NSA, DEA, IRS Lie About Fact That Americans Are Routinely Spied On By Our Government: Time For A Special Prosecutor,” October 14, 2013, Forbes, http://www.forbes.com/sites/jennifergranick/2013/08/14/nsa-dea-irs-lie-about-fact-that-americans-are-routinely-spied-on-by-our-government-time-for-a-special-prosecutor-2/NVIt seems that every day brings a new revelation about the scope of the NSA’s heretofore secret warrantless mass surveillance programs. And as we learn more, the picture becomes increasingly alarming. Last week we discovered that the NSA shares information with a division of the Drug Enforcement Administration called the Special Operations Division (SOD). The DEA uses the information in drug investigations. But it also gives NSA data out to other agencies – in particular, the Internal Revenue Service, which, as you might imagine, is always looking for

information on tax cheats. The Obama Administration repeatedly has assured us that the NSA does not collect the private information of ordinary Americans. Those statements simply are not true. We now know that the agency regularly intercepts and inspects Americans’ phone calls, emails, and other communications, and it shares this information with other federal agencies that use it to

investigate drug trafficking and tax evasion. Worse, DEA and IRS agents are told to lie to judges and defense attorneys about their use of NSA data, and about the very existence of the SOD, and to make up stories about how these investigations started so that no one will know information is coming from the NSA’s top secret surveillance programs. “Now, wait a minute,” you might be saying. “How does a foreign intelligence agency which supposedly is looking for terrorists and only targets non-U.S. persons get ahold of information

useful in IRS investigations of American tax cheats?” To answer that question, let’s review this week’s revelations. Back in 2005, several media outlets reported that NSA has direct access to the stream of communications data, carried over fiber optic cables that connect central telephone switching

facilities in the U.S. with one another and with networks in foreign countries. Reports suggested that the NSA had installed equipment referred to as “splitter cabinets” at main phone company offices, where they make a copy of all data traveling on the fiber optic cable and route it into a secret room where computers scan through the information – searching for names and terms that are themselves secret — as it goes by. For years, the federal government refused to comment on these reports. But on August 8, an unnamed senior administration official

confirmed this practice to the New York Times. We also learned that the NSA can grab information off these fiber optic cables in near real time using a tool called XKeyscore (XKS). Searching the firehose of Internet and telephone data as it flows takes an immense amount of computing power. The XKS system dumps a portion of the communications information NSA snatches into a truly immense local storage “cache.” This cache can keep network information for a few days, depending on the amount of traffic. This gives the NSA’s computers time to search through what otherwise would be an unmanageable torrent of emails, phone calls, chats, social network posts, and other communications. And importantly, XKS searches do not involve just communications “metadata”. The XKS system searches the contents of our Internet and telephone communications. Which is directly at odds with repeated Administration statements suggesting that NSA mass surveillance was limited to metadata. To seize and search through all of this information without a warrant, the agency must comply with just a few legal limitations. Under the FISA Amendments Act, the NSA is not

allowed to intentionally collect purely domestic information. That is, the NSA can search communications it believes begin or terminate in another country, either based on the facility where the information is collected (for example, an undersea cable) or

other signifier, like an IP address that suggests origination abroad. Of course, these determinations are

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subject to error, particularly when the surveilled facility is in the U.S. and carries a substantial amount of purely domestic traffic. To reduce the amount of purely domestic traffic that ends up on the desks of NSA analysts, the agency relies on post-seizure “minimization” procedures. For

several reasons, however, these procedures are fundamentally inadequate to protect communications privacy. First, the minimization procedures are themselves secret. Moreover, by law, purely domestic communications that the NSA inadvertently collects need be deleted only if they “could not be” foreign intelligence information – a provision that requires the NSA to delete very little. Some minimization procedures have been leaked to the public, and these show that the government may “retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.” Even otherwise privileged communications between individuals and their lawyers are not deleted. The agency merely stores those in a separate database so they are not sent to a law enforcement agency for use in a criminal case. Once the NSA identifies the subset of international or “one-end” foreign communications (i.e., those where a foreigner is either a sender or recipient), analysts are supposed to search only for “foreign intelligence” information. But since “foreign intelligence” includes anything relevant to the conduct of U.S. foreign affairs, this limitation alone imposes no real restraint on NSA’s warrantless spying. Certainly, the NSA isn’t limited to counterterrorism operations. In undertaking their searches, NSA analysts use either “strong” or “soft” selectors. “Soft” selectors are a broad kind of search that pulls up messages based on content or even the language in which a message is written. When the NSA uses soft selectors, it can search the vast amounts of information it collects to retrieve all Internet users’ discussions of particular topics or in particular languages. The potentially very broad scope of searches using soft selectors is quite frightening, as ordinary Americans’ communications are likely to show up in search results. “Strong” selectors pull up information associated with a particular known individual. The Obama Administration has repeatedly assured us that these strong selectors may only target non-U.S. persons. But screenshots of the user interface for submitting selector queries tell a different story. Published by the Guardian, they show that NSA analysts are presented with dropdown lists of preapproved factors the NSA accepts as sufficient proof that a person is a foreigner, including being “in direct contact with (a) target overseas” or the use of storage media (like a server located abroad) seized outside the U.S. So any U.S. person who talks to a foreigner that the NSA has identified as a target, or who stores data on a server outside the U.S. (as someone might well do if emailing from a foreign hotel room) may be presumed to be a foreigner. And that’s not even the worst of it. Leaked NSA documents also suggest that the agency will presume that a person is a foreigner whenever there is no information suggesting otherwise. That sort of willful blindness gives the NSA a lot of leeway to target Americans. Worse, we now know that the NSA’s assertion that it does not “target” U.S. persons is either a lie, or is about to become one. Leaked NSA documents show that in 2011, the NSA changed its “minimization” rules to allow its operatives to search for individual Americans’ communications using their name or other identifying information. Such a change would turn “minimization” into a blanket authority to warrantlessly spy on Americans – in defiance of specific legal restrictions prohibiting this sort of domestic spying. Senator Ron Wyden has said that the law provides the NSA with a loophole potentially allowing “warrantless searches for the phone calls or emails of law-abiding Americans”, and raised the issue when he met with President Obama on August 1. This is the first time we’ve had evidence that the NSA has — or will have — the authority to warrantlessly search its databases with the specific intent of digging up information on specific U.S. individuals. We can sum up very simply – at this moment, the NSA enjoys virtually unrestricted power to spy on Americans, without a warrant or any particular suspicion that any person spied upon has done anything wrong. Our phone, email and potentially other records are fair game for bulk collection. The contents of our communications with people overseas are also fair game, so long as there is an approved foreign intelligence purpose for the collection. The NSA does not believe that any stored emails are protected by the Fourth Amendment, so it can collect them from providers with little restraint. As far as we know, the only category of information the NSA currently believes is off limits to mass surveillance are the contents of phone calls it knows in advance are solely between Americans. This is an astonishing development in the U.S., a nation that, until recently, carefully restricted the power of its domestic spying agencies by forcing them to submit narrow requests for spying authority to a court, which would issue a warrant if the government showed probable cause to believe that the surveillance target was engaged in some sort of wrongdoing. At this point, it’s clear those limits are gone. The United States is now a mass surveillance state. In last week’s press conference, President Obama reassured the nation that “America isn’t interested in spying on ordinary people.” In other words, do not worry, because the information will only be used for narrow counterterrorism or broader foreign intelligence purposes. But the latest revelations show that these assurances too are a lie. Under current U.S. surveillance law, the NSA may share with domestic law enforcement information obtained both through authorized surveillance, and information unlawfully but unintentionally collected, if it contains evidence of a crime. This rule was

worrisome when the NSA was only conducting targeted surveillance of foreign powers. It is terrifying now that the NSA scans virtually all American cross-border communications. And this is especially true in light of the recent reports showing that any number of

other three-letter agencies are howling for access to NSA data for use in investigations of Americans’ drug use, tax evasion, and even copyright infringement. Usually, these agencies would need at least warrants based on probable cause that an individual was committing a crime before they could obtain the contents of our communications, and would need to certify to a public court that email or phone records are relevant to an ongoing criminal investigation before it could collect such traffic data. But if they get their hands on NSA data, all these

bothersome civil liberties protections simply vanish. Which brings us to the Drug Enforcement Administration

(DEA). As we noted previously, the DEA has a secret division called the Special Operations Division or SOD. The SOD receives intelligence intercepts, wiretaps, informants and a massive database of telephone records from its partner agencies, of which the NSA is just one, to distribute to authorities across the nation to help them launch criminal investigations of Americans. The SOD gets information from the NSA and shares it with, among other agencies, the IRS. And this is where things get truly ugly. When agents


receive SOD information and rely on it to trigger investigations, they are directed to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.” IRS agents receiving SOD data, which presumably can

include information from the NSA, have been similarly instructed. They are instructed, in other words, to create a

fake investigative file, and to lie. To lie, in particular, to defense lawyers and to judges, about the source of the evidence used in criminal prosecutions. By hiding the fact that information comes from NSA surveillance, the government both masks the extent to which NSA’s domestic spying is used to trigger investigations of Americans, and prevents legal challenges to highly questionable surveillance practices like bulk phone record collection, warrantless access to American communications with friends and family overseas, and retention and use of illegally obtained domestic calls and emails. This is outrageous conduct. It is the sort of thing you expect from the Chinese government, or one of the now-vanished governments of the Warsaw Pact. And there is no stronger proof of the dangers of the NSA’s domestic spying effort than the fact that the government has consistently lied about it and attempted to cover it up. Think for just a moment about the stories J. Edgar Hoover could have plausibly concocted about Dr. Martin Luther King, Jr. or any other civil rights activist with this kind of detailed

information. The Obama Administration has gone after leakers, and the journalists at outlets like the Associated Press or the New York Times who use them as sources, with unprecedented force. Think about what the current Attorney General, Eric Holder, could do to bring down these reporters who cover – sometimes in ways the Obama Administration doesn’t like — the conduct of American foreign policy.

At this point, it’s plain to see that the Obama Administration has no intention of honestly fixing this mess. So it’s time now for Congress to act . A good first step would be to appoint a Special Prosecutor with wide power to subpoena Administration officials, and

to bring criminal indictments where appropriate. Congress should then begin the process of reforming surveillance law to make absolutely clear that the NSA has no power to conduct warrantless mass surveillance of Americans. First they came for the terrorists and the foreigners, and no one did anything. Then they came for the drug dealers. Then the tax cheats. Then the journalists. And that’s just what we know

about. How much worse does it have to get before we say enough is enough?Parallel construction undermines any internal solvency – our ev is predictive Masnick 14Mike Masnick, is the founder and CEO of Floor64 and editor of Tech Dirt, “Parallel Construction Revealed: How The DEA Is Trained To Launder Classified Surveillance Info,” February 3, 2014, Tech Dirt, https://www.techdirt.com/articles/20140203/11143926078/parallel-construction-revealed-how-dea-is-trained-to-launder-classified-surveillance-info.shtml/NVLast summer, Reuters revealed how the NSA and other surveillance organizations would share info with the DEA and other law enforcement agencies, but then tell them to reconstruct the evidence via a process called "parallel construction," so that the surveillance would not then be discussed in court. This is highly questionable, and probably illegal, as a defendant has the right to know all of the evidence being used against him or her, and should also be told how that evidence was gathered, to make sure the collection was legal. But what's being done with parallel construction, is that the intelligence community is able to give "hints" to law enforcement, allowing them to come up with various pretenses for an investigation, avoiding ever having to reveal that the NSA or others used potentially illegal surveillance efforts. One example given in that Reuters report was how DEA agents would suddenly be given a tip like this: "Be at a certain truck stop at a certain time and look for a certain vehicle." The DEA would then have the local police come up with some pretense to stop the truck... and then when evidence is found they can claim it was a random traffic stop, when the reality is anything but that. After the Reuters report, C.J. Ciaramella

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used Muckrock to request all DEA training material and official policies concerning "parallel construction" and recently received nearly 300 pages of documents, much of it redacted, but still which reveals that this is common practice at the DEA and widely known. Much of it is in the form of PowerPoint presentations, complete with speaker notes, which say things like how careful DEA agents need to be around classified information because "it can screw up your investigation." Another slide notes "the devil's in the details" and explains: Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community. If they find Bin Laden's satellite phone and then pin point his location, they don't have to go to a court to get permission to put a missile up his nose. We are bound, however, by different rules. Our investigations must be transparent. We must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did. No hiding here. However, we are also bound to protect certain pieces of information so as to protect the sources and methods. To use it....we must properly protect it. There are also training materials that discuss how parallel construction works, as well as the fact that in "the new post-9/11" era, a "national consensus" has been formed making it easier for the intelligence community and law enforcement to share information. It even refers to the federal courts as the intelligence community's "nemesis ." A lot of the documentation deals with how to deal with having classified information, and the focus seems to be on keeping that information away from anyone involved in the case. There is -- I kid you not -- a special group of prosecutors called "the Taint Review Team" -- to be called in when things get... well... tainted. In one part of the presentation, they talk about all sorts of ways to try to get a judge to avoid revealing classified information to defendants, and then have a plan "if all else fails" which includes redoing the indictment or dropping the case. That same presentation shows that there should be a "see no evil" plan -- which explains why DEA agents are often just told "go to this truck stop and look for this truck" without knowing any more. That way they "saw no evil" with evil being defined as questionably obtained intelligence. It appears that much of the DEA's arguments here rely on the Supreme Court's ruling in 1938 in Scher v. United States, in which a law enforcement agent was told some things by a source, and used that information to find and arrest the defendant handling whiskey (during Prohibition). The court said that how the agent found out about the information doesn't matter, so long as the agent saw illegal acts himself. And thus, the Supreme Court "enabled" the idea of parallel construction. That case pops up repeatedly throughout the documents, basically telling DEA agents: expect information to come from intelligence sources, but do your best to never find out why they know this stuff. Another presentation asks "what is the problem with combining IC (Intelligence Community) collection efforts & LEA (Law Enforcement Agency) investigations in US courtrooms?" and then explains that it presents constitutional problems... and that "Americans don't like it!" The note on that one points out that "even though we seek to protect our citizens, generally, we can only use techniques to achieve that objective, which are acceptable to our citizens." But that's not what they're actually doing or teaching. Instead, they're teaching how to keep doing the constitutionally questionable things that Americans don't like... and then hiding it from the courts, the American public and even the law enforcement folks themselves, in order to create a sort of plausible deniability that launders the fact that potentially illegal and unconstitutional surveillance was used to create the basis of the legal case. There's some more information in the documents, but it all basically points to the same basic thing: the less that law enforcement folks know, the better. If the law enforcement knows too much, call in the "Taint Review Team" to see what they can do to clean up, and see what you can use to get the judge to exclude classified evidence. All in all, it adds up to


a nice little plan to allow the NSA to illegally spy on people, tell law enforcement just enough to target people, without ever revealing how they were caught via unconstitutional means.


AT//DelayPresidential action more effective than Congressional – based on the ConstitutionHuq, 12 (Aziz, Assistant professor of law, University of Chicago Law School, “Structural Constitutionalism as Counterterrorism”, 8/23/12, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2135249) KWThe first presumption derived from the Separation of Powers turns on the executive's assumed comparative advantage in national security matters. This argument for executive primacy is rooted in the textual allocation of "the" executive power in the President and the concomitant authorizations of the "Take Care" Clause and the "Commander in Chief' Clause.20 It further finds support in Founding-era writings of Alexander Hamilton, an early advocate of broad executive prerogatives. 21 In the Federalist No. 70, Hamilton famously emphasized the capacity of the President to act with "[ d]ecision, activity, secrecy, and dispatch ., 22 Modem commentators amplify the Hamiltonianposition by underscoring the functional advantages of the presidency over the legislature in matters of security. 23 They assert that the executive has "critical advantages over a multi-member legislature in reaching foreign policy and national security decisions." 24 To exploit these advantages, " the executive branch needs the flexibility to act quickly, possibly in situations where congressional consent cannot be obtained in time to act on the intelligence. " 25



AT//FBI KeyThe FBI cannot restraint itselfLynch 11Jennifer Lynch, is a senior staff attorney with the Electronic Frontier Foundation, “FBI Sanctioned for Lying About Existence of Surveillance Records,” November 21, 2011, Electronic Frontier Foundation, https://www.eff.org/deeplinks/2011/05/fbi-chastised-court-lying-about-existence/NVAn order from the U.S. District Court for the Central District of California has revealed the FBI lied to the court about the existence of records requested under the Freedom of Information Act (FOIA), taking the position that FOIA allows it to withhold information from the court whenever it thinks this is in the interest of national security. Using the strongest possible language, the court disagreed: “The Government cannot, under any circumstance, affirmatively mislead the Court.” Islamic Shura Council of S. Cal. v. FBI (“Shura Council I”), No. 07-1088, 3 (C.D. Cal. April 27, 2011) (emphasis added). This case may prove relevant in EFF’s ongoing FOIA litigation against the FBI. As discussed further below, one of the issues in Shura Council was the FBI’s extensive and improper use of “outside the scope” redactions. The agency has also used these heavily in at least one of our current cases — in areas where it is highly unlikely the material blocked out is actually outside the scope of our FOIA request. (see example to the left from our case seeking records on the government’s push to expand federal surveillance laws). We’ll be writing more about that case in the coming weeks and posting the documents we received on this site soon. Shura Council started five years ago in May 2006, after widespread reporting on the FBI’s programs targeting Muslims after September 11, 2001. At that time, several Muslim citizens and organizations in Southern California, including the Islamic Shura Council of Southern California and the Council on American Islamic Relations (CAIR), submitted a broad joint FOIA request to the FBI seeking “[a]ny records relating or referring” to themselves, “including . . . records that document any collection of information about monitoring, surveillance, observation, questioning, interrogation, investigation and/or infiltration[.]” Shura Council I at 4. In 2008, after the FBI produced only minimal records, the requesters filed a federal lawsuit. The FBI then searched for and located additional records for nine of the plaintiffs, but these records were heavily redacted, with much of the information withheld as “outside the scope” of the plaintiffs’ FOIA request. The FBI attested, in documents and declarations it submitted under oath to the court, that these were all the records that existed about the plaintiffs and that the materials labeled “outside the scope” were “not responsive” to the plaintiffs’ FOIA request. After court ordered the FBI to submit full versions of the records in camera, along with a new declaration about the agency’s search, the FBI revealed for the first time that it had materially and fundamentally mislead the court in its earlier filings. The unaltered versions of the documents showed that the information the agency had withheld as “outside the scope” was actually well within the scope of the plaintiffs’ FOIA request. The government also admitted it had a large number of additional responsive documents that it hadn’t told the plaintiffs or the court about. Id. at 7-8. If these revelations weren’t bad enough, the FBI also argued FOIA allows it to mislead the court where it believes revealing information would “compromise national security.” Id. at 9. The FBI also argued, that “its initial representations to the Court were not technically false” because although the information might have been “factually” responsive to the plaintiffs’ FOIA request, it was “legally nonresponsive.” Id. at 9, n. 4 (emphasis added). The court noted, this “argument is indefensible,” id. at 9-10, and held, “the FOIA does not permit the government to withhold responsive information from the court.” (Id.)(upheld on appeal in Islamic Shura Council of S. Cal. v. FBI, __ F.3d __, No. 09-56035, at 4280-81 (9th Cir. Mar. 30, 2011) (“Shura Council II”).1 The court stated: The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully

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deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it. (Shura Council I at 17) (emphasis added). This is an important opinion for FOIA requesters because sometimes the only protection a FOIA requester has from the government's potentially arbitrary withholding of information is a court's in camera review of the full versions of documents. If the government were allowed to withhold information from the court, this protection would be meaningless and the role of judicial oversight in FOIA cases would be compromised. Unfortunately for the plaintiffs in Shura Council, this seems to be a hollow victory. Although the court did not restrain itself from using the strongest possible language to criticize the government’s actions (calling the FBI’s arguments “untenable,” id. at 3, “indefensible,” id. at 10, and “not credible” id. at 17) it also held that “disclosing the number and nature of the documents the Government possesses could reasonably be expected to compromise national security.” Id. 18. Therefore it did not order the government to release the records to the plaintiffs or even to reveal how many records turned up in the second search. And on appeal, the Ninth Circuit held that neither the plaintiffs nor their attorneys had the right to see the original version of the district court’s order (filed under seal) because it contained information the FBI considered to be “national security and sensitive law enforcement information.” (Shura Council II at 4286). It seems unlikely that, five years after the plaintiffs filed their FOIA request, the release of the information the FBI has on these individuals and organizations would truly threaten national security or an ongoing criminal investigation. None of the plaintiffs appears to have been arrested or retained in conjunction with a crime or foreign terrorist plot, so it seems more likely that this is yet another example of the government valuing secrecy over transparency. The district court’s April 27, 2011 order after remand is here, and the Ninth Circuit opinion remanding the case is here. UPDATE (November 21, 2011): In a later opinion, the district court sanctioned the government for lying. In issuing monetary sanctions against the DOJ, the court held, "the Government’s deception of the Court was without any factual or legal basis and simply wrong." (p. 19). The court noted issuing sanctions was necessary to "deter the Government from deceiving the Court again." (p. 2). Unfortunately, it's not clear this practice will end any time soon. The DOJ has been attempting to change its FOIA regulations to codify the procedures it used in

this case. As the court noted, even though the proposed changes were withdrawn, " the deceptive policy and practice of the DOJ with respect to asserting and applying exclusions under FOIA apparently remains intact." (p. 19).

Laws will do nothing to stop FBI spying Cushing 15Tim Cushing, writer on technology misusage for Techdirt, “New York's Top Prosecutor Says We Need New Laws To Fight iPhone/Android Encryption,” January 13, 2015, Tech Dirt, https://www.techdirt.com/articles/20150109/06144429646/new-yorks-top-prosecutor-says-we-need-new-laws-to-fight-iphoneandroid-encryption.shtml/NVThe greatest threat to law enforcement since the motocar continues to receive attention from entities aghast at the notion that peoples' communications and data might not be instantly accessible by law enforcement. Apple's decision (followed shortly thereafter by Google) to offer default encryption for phone users has kicked off an avalanche of paranoid hyperbole declaring this effort to be a boon for pedophiles, murders and drug dealers. New

laws have been called for and efforts are being made to modify existing laws to force Apple and Google into providing "law enforcement-only" backdoors, as if such a thing were actually possible. New

York County's top prosecutor, Manhattan DA Cyrus Vance -- speaking at an FBI-hosted cybersecurity conference -- is the latest to offer up a version of "there ought to be a law." Federal and state governments should consider passing laws that forbid smartphones, tablets and other such devices from being “sealed off from law enforcement,” Manhattan District Attorney Cyrus Vance said today in an interview at a cybersecurity conference in New York. Sure. These entities could "consider" this. And then swiftly discard the idea. There's no good reason why millions of people's data and communications should be made less secure just to make capturing criminals -- a

small minority of the population -- easier. There are only law enforcement reasons. And those reasons are specious, at best. Cops have been catching criminals since long

https://www.techdirt.com/articles/20150109/06144429646/new-yorks-top-prosecutor-says-we-need-new-laws-to-fight-iphoneandroid-encryption.shtml/NV

https://www.techdirt.com/articles/20150109/06144429646/new-yorks-top-prosecutor-says-we-need-new-laws-to-fight-iphoneandroid-encryption.shtml/NV


before the rise of the cellphone and they'll continue to do so long after default encryption becomes standard operating procedure. But to hear opponents of Apple's move tell it, encryption-by-default is an unfair impediment to investigative and law enforcement agencies. “It’s developed into a sort of high-stakes game,” Vance said. “They’ve eliminated accessibility in order to market the product. Now that means we have to figure out how to solve a problem that we didn’t create.” Vance's portrayal of this decision is dishonest and self-serving, but it's his last sentence that is the most skewed. Law enforcement (along with investigative and national security agencies) did create this problem. They abused their powers to obtain warrantless access to metadata, data, communications, and anything stored locally on the phone. Cops routinely searched phones of those they detained without a warrant, something that was finally

curbed by a Supreme Court decison. The NSA, FBI and law enforcement agencies all use the Third Party Doctrine to access call records, cell site location data and anything else that can be easily had without ever approaching a judge. So, they did bring this on themselves. And that's why (as the oft-used quote goes) the

"pendulum" has "swung the other way." It's not marketing. It's a very specific reaction to years of unchecked government power. It's obvious the government can't restrain itself. So, these companies have made it "easier" for the government to refrain from abusing its power by making this decision for them. Sure, there's a limited market for more security, but making it default going forward gains these companies nothing in terms of new customers. It's not an option that's only available to people who buy certain phones or certain service contracts. It's for everyone who buys a phone. Vance echoes the statements of others in his attempt to portray this as a purely mercenary decision but the only thing this does is make him look stupider. After ticking the mandatory "crimes against children/murderers" emotional-plea checkbox, Vance goes on to cross "public safety" off the list of talking points. “This is an issue of public safety,” Vance said. “The companies made a conscious decision -- which they marketed -- to make these devices inaccessible. Now it’s our job to figure out how we can do our

job in that environment.” Incredibly, Vance portrays his deployment of every anti-encryption cliche as special and unique, claiming he's "going rogue" by speaking up on the subject. (Because everyone else has been oh so silent...) But there's nothing new being said here. Again, Vance pushes the "greed" angle, but it's his last sentence that's the most ridiculous. Vance -- and others like him -- aren't "figuring out" how to do their jobs in "this environment." They have no desire to do that. What they want is to change the environment. The new environment doesn't cater to their instant access desires, but rather than deal with the limitations and approach them intelligently, they've chosen to portray encryption-by-default as Google and Apple's new plan to make a ton of money selling smartphones to child molesters and

murderers. They want the laws to change, rather than law enforcement. And all they've offered in support are panic-button-mashing "arguments" and heated hyperbole. The problem is that panic buttons and hyperbole are effective legislative mobilizers. As bad as Vance's ideas are, there's a good chance he'll be able to find a number of politicians that agree with him. In all likelihood, the environment will be forced to adapt to law enforcement, rather than the other way around.


AT//FISA FailsFISA is not a rubber stamp, it can check the executive Sales 14Nathan Alexander Sales 14, Associate Professor of Law, Syracuse University College of Law, Summer 2014, “NSA SURVEILLANCE: ISSUES OF SECURITY, PRIVACY AND CIVIL LIBERTY: ARTICLE: Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy”, LexisNexis, 10 ISJLP 523/NVThe FISA court is often derided as a rubber stamp. But there are a number of indications that it does in fact serve as a real constraint on the executive branch. Over the three month period between July and September 2013, the court refused to approve nearly a quarter of the government’s surveillance requests, insisting on “substantive changes” before okaying the applications—e.g., requiring officials to submit more information to justify the monitoring or altering the scope of the authority sought.92 The FISA court may not say “no” very often, but it pretty frequently says “not yet.” Recently declassified documents suggest that the FISA court has meaningfully checked NSA bulk collection in particular.93 In May 2011, the administration told the FISA court about an over-collection problem in the PRISM program. Because of the way some communications are bundled, the NSA had been collecting some purely domestic communications (which may not be intercepted under section 702) in the course of collecting communications involving persons reasonably believed to be outside the United States (which may). After a series of written submissions, meetings between court and government personnel, and a hearing, the court on October 3, 2011 issued an 81-page opinion concluding that the program violated both the Fourth Amendment and section 702, principally because the NSA’s minimization procedures were inadequate.94 The government responded by developing new procedures to segregate the permissible intercepts from the impermissible ones, applying the procedures to previous acquisitions, and purging tainted records from its database. The FISA court then ruled in opinions dated November 30, 2011 and September 25, 2012 that the revised program passed muster. A 2009 episode involving the telephony metadata program followed a similar pattern—the executive’s discovery of violations, disclosure to the FISA court, judicial rebuke, institution of reforms, and judicial approval of the revised program.95

Executive self-restraint solves - FISA and other oversight mechanisms ensure accountabilitySales 14Nathan Alexander Sales 14, Associate Professor of Law, Syracuse University College of Law, Summer 2014, “NSA SURVEILLANCE: ISSUES OF SECURITY, PRIVACY AND CIVIL LIBERTY: ARTICLE: Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy”, LexisNexis, 10 ISJLP 523/NVAt one level this is a dishearteningly familiar story of government misconduct. But the deeper lesson the episode reveals is that, when confronted with such errors, the FISA court is willing to intervene and enforce basic constitutional and statutory guarantees—which is

exactly what we would expect an Article III court to do. The PRISM incident also suggests that the government takes seriously its obligations to self-police and disclose problems to the court. Indeed, officials have an interest in doing so. The government’s ability to persuade the FISA court to approve its surveillance requests depends in large part on its credibility with the judges. And that goodwill would dissipate if the court independently learned, such as though leaks, about


violations that officials had failed to disclose. It would be a mistake to take too much comfort from this incident, since it is impossible to say how representative it is. Still, it provides some reason for optimism that FISA court oversight—and the internal oversight on which it depends—is more than perfunctory. A third noteworthy feature of PRISM, though not the metadata program, is the unusual transparency surrounding its adoption. PRISM appears to be a straightforward application of FISA section 702, which Congress enacted in 2008. The legislation was the result of a lengthy and detailed public debate touched off by revelations in late 2005 that the Terrorist Surveillance Program was intercepting certain international communications without judicial approval. During the ensuing three year national conversation, intelligence officials repeatedly explained to Congress and the public why they thought new statutory authority was necessary, and advocacy groups and other interested parties repeatedly challenged these representations and urged Congress to reject, or at least curtail, any new surveillance powers. Newspaper editorial pages, blogs, talk radio programs, and many other media organs hashed out the legal and policy issues. FISA was front-page news. In short, the section 702 program shouldn’t come as a surprise because the nation thoroughly debated it for three years before Congress expressly approved it.


AT//Future President RollbackThe counterplan’s binding and causes reticent agencies to follow on Duncan ‘10[Prof Law Florida A&M. “A Critical Consideration of Executive Orders” The Vermont Law Review, 2010 ln]

Executive orders can serve the purpose of allowing the President to generate favorable publicity, such as when President Clinton signed an executive order on ethics, n493 and when President George W. Bush signed the first of a series of executive orders to launch his Faith-Based and Community Initiatives. n494 While these orders pay off political debts and thus

may seem trivial, they nevertheless create both infrastructural and regulatory precedents for future administrations . Hence, they create an avenue for key constituencies of each administration to influence the executive structure as a whole without necessarily permitting that influence to extend to arenas of reserved for Congress. That is, while the President can act more swiftly and precisely to satisfy political commitments, the impact of his action will fall considerably short of analogous congressional action. This in turn serves to satisfy selected constituencies without giving them undue power via the

presidency.¶ Executive orders have even served to create presidential commissions to investigate and research problems, and have been instrumental in solving remedial

issues. n495 Commission reports that result from such orders can in [*398] turn put pressure on Congress to enact legislation to respond to those problems . President

Franklin Roosevelt pursued this process when he issued a report of the Committee on Economic Security studying financial insecurity due to "unemployment, old age, disability, and health." n496 This report led to the Social Security Act. n497

No rollback of executive orders---empirics proveKraus and Cohen 2000 [George and Jeffrey, Chemistry Professor at University of Southern Carolina, Ph. D. in Political Science in 1979 from the University of Michigan and his major teaching and research interests include American Political Institutions and Public Policy, more particularly the Presidency, the Mass Media, and Economic Policy, Opportunity, Constraints, and the Development of the Institutional Presidency: The Issuance of Executive Orders, 1939-96, http://www.jstor.org/stable/2647599?seq=1#page_scan_tab_contents] SchlossWe use the annual number of executive orders issued by presidents from 1939 to 1996 to test our hypotheses. Executive orders possess a number of properties that make them appropriate for our purposes. First, the series of executive orders is long, and we can cover the entirety of the institutionalizing and institutionalized eras to date.6 Second, unlike research on presidential vetoes (Shields and Huang 1997) and public activities (Hager and Sullivan 1994), which have found support for presidency-centered variables but not president-centered factors, executive orders offer a stronger possibility that the latter set of factors will be more prominent in explaining their use. One, they are more highly discretionary than vetoes.7 More critically, presidents take action first and unilaterally. In addition, Congress has tended to allow executive orders to stand due to its own collective action problems and the cumbersomeness of using the legislative process to reverse or stop such presidential actions. Moe and Howell (1998) report that between 1973 and 1997, Congress challenged only 36 of more than 1,000 executive orders issued. And only two of these 36 challenges led to overturning the president's executive order. Therefore, presidents are likely to be very successful in implementing their own agendas through such actions. In fact, the nature of executive orders leads one to surmise that idiopathic factors will be relatively more important than presidency-centered variables in explaining this form of presidential action. Finally, executive orders have rarely been studied quantitatively (see Gleiber and Shull 1992; Gomez and Shull 1995; Krause and Cohen 1997)8, so a description of the factors motivating their use is worthwhile.9 Such a description will allow us to determine the relative efficacy of these competing perspectives on presidential behavior.10

http://www.jstor.org/stable/2647599?seq=1#page_scan_tab_contents


Empirics prove there are political barriers that check future rollbacksBranum 02 [Tara, Associate, Fulbright & Jaworski L.L.P., Houston, Texas. J.D. University of Texas; Austin, Texas (2001); B.A. Rice University; Houston, Texas (1994). Texas Review of Law & Politics; Editor-in-Chief (Spring 2000-Spring 2001), Managing Editor, PRESIDENT OR KING? THE USE AND ABUSE OFEXECUTIVE ORDERS IN MODERN-DAY AMERICA, http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1163&context=jleg] SchlossThe public perception problem is not limited to promises by political candidates. Congressmen and private citizens besiege the President with demands that action be taken on various issues.273 To make matters worse, once a president has signed an executive order, he often makes it impossible for a subsequent administration to undo his action without enduring the political fallout of such a reversal. For instance, President Clinton issued a slew of executive orders on environmental issues in the weeks before he left office.274 Many were controversial and the need for the policies he instituted was debatable.7 5 Nevertheless, President Bush found himself unable to reverse the orders without invoking the ire of environmentalists across the country. 276 A policy became law by the action of one man without the healthy debate and discussion in Congress intended by the Framers. Subsequent presidents undo this policy and send the matter to Congress for such debate only at their own peril. This is not the way it is supposed to be.

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http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1163&context=jleg


AT//IRS KeyThe IRS cannot check itself – corrupt, lies and no internal checksGranick and Sprigman 14Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society and former director of the EFF, Christopher Sprigman, professor of law at NYU, “NSA, DEA, IRS Lie About Fact That Americans Are Routinely Spied On By Our Government: Time For A Special Prosecutor,” October 14, 2013, Forbes, http://www.forbes.com/sites/jennifergranick/2013/08/14/nsa-dea-irs-lie-about-fact-that-americans-are-routinely-spied-on-by-our-government-time-for-a-special-prosecutor-2/NVIt seems that every day brings a new revelation about the scope of the NSA’s heretofore secret warrantless mass surveillance programs. And as we learn more, the picture becomes increasingly alarming. Last week we discovered that the NSA shares information with a division of the Drug Enforcement Administration called the Special Operations Division (SOD). The DEA uses the information in drug investigations.

But it also gives NSA data out to other agencies – in particular, the Internal Revenue Service, which, as you might imagine, is always looking for information on tax cheats. The Obama Administration repeatedly has assured us that the NSA does not collect the private information of ordinary Americans. Those statements simply are not true. We now know that the agency regularly intercepts and inspects Americans’ phone calls, emails, and other communications, and it shares this information with other federal

agencies that use it to investigate drug trafficking and tax evasion. Worse, DEA and IRS agents are told to lie to judges and defense attorneys about their use of NSA data, and about the very existence of the SOD, and to make up stories about how these investigations started so that no one will know information is coming from the NSA’s top secret surveillance programs. “Now, wait a minute,” you might be saying. “How does a foreign intelligence agency which supposedly is looking for terrorists and only targets non-U.S. persons get ahold of information useful in IRS investigations of American tax cheats?” To answer that question, let’s review this week’s revelations. Back in 2005, several media outlets reported that NSA has direct access to the stream of communications data, carried over fiber optic cables that connect central telephone switching facilities in the U.S. with one another and with networks in foreign countries. Reports suggested that the NSA had installed equipment referred to as “splitter cabinets” at main phone company offices, where they make a copy of all data traveling on the fiber optic cable and route it into a secret room where computers scan through the information – searching for names and terms that are themselves secret — as it goes by. For years, the federal government refused to comment on these reports. But on August 8, an unnamed senior administration official confirmed this practice to the New York Times. We also learned that the NSA can grab information off these fiber optic cables in near real time using a tool called XKeyscore (XKS). Searching the firehose of Internet and telephone data as it flows takes an immense amount of computing power. The XKS system dumps a portion of the communications information NSA snatches into a truly immense local storage “cache.” This cache can keep network information for a few days, depending on the amount of traffic. This gives the NSA’s computers time to search through what otherwise would be an unmanageable torrent of emails, phone calls, chats, social network posts, and other communications. And importantly, XKS searches do not involve just communications “metadata”. The XKS system searches the contents of our Internet and telephone communications. Which is directly at odds with repeated Administration statements suggesting that NSA mass surveillance was limited to metadata. To seize and search through all of this information without a warrant, the agency must comply with just a few legal limitations. Under the FISA Amendments Act, the NSA is not allowed to intentionally collect purely domestic information. That is, the NSA




can search communications it believes begin or terminate in another country, either based on the facility where the information is collected (for example, an undersea cable) or other signifier, like an IP address that suggests origination abroad. Of course, these determinations are subject to error, particularly when the surveilled facility is in the U.S. and carries a substantial amount of purely domestic traffic. To reduce the amount of purely domestic traffic that ends up on the desks of NSA analysts, the agency relies on post-seizure “minimization” procedures. For several reasons, however, these procedures are fundamentally inadequate to protect communications privacy. First, the minimization procedures are themselves secret. Moreover, by law, purely domestic communications that the NSA inadvertently collects need be deleted only if they “could not be” foreign intelligence information – a provision that requires the NSA to delete very little. Some minimization procedures have been leaked to the public, and these show that the government may “retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.” Even otherwise privileged communications between individuals and their lawyers are not deleted. The agency merely stores those in a separate database so they are not sent to a law enforcement agency for use in a criminal case. Once the NSA identifies the subset of international or “one-end” foreign communications (i.e., those where a foreigner is either a sender or recipient), analysts are supposed to search only for “foreign intelligence” information. But since “foreign intelligence” includes anything relevant to the conduct of U.S. foreign affairs, this limitation alone imposes no real restraint on NSA’s warrantless spying. Certainly, the NSA isn’t limited to counterterrorism operations. In undertaking their searches, NSA analysts use either “strong” or “soft” selectors. “Soft” selectors are a broad kind of search that pulls up messages based on content or even the language in which a message is written. When the NSA uses soft selectors, it can search the vast amounts of information it collects to retrieve all Internet users’ discussions of particular topics or in particular languages. The potentially very broad scope of searches using soft selectors is quite frightening, as ordinary Americans’ communications are likely to show up in search results. “Strong” selectors pull up information associated with a particular known individual. The Obama Administration has repeatedly assured us that these strong selectors may only target non-U.S. persons. But screenshots of the user interface for submitting selector queries tell a different story. Published by the Guardian, they show that NSA analysts are presented with dropdown lists of preapproved factors the NSA accepts as sufficient proof that a person is a foreigner, including being “in direct contact with (a) target overseas” or the use of storage media (like a server located abroad) seized outside the U.S. So any U.S. person who talks to a foreigner that the NSA has identified as a target, or who stores data on a server outside the U.S. (as someone might well do if emailing from a foreign hotel room) may be presumed to be a foreigner. And that’s not even the worst of it. Leaked NSA documents also suggest that the agency will presume that a person is a foreigner whenever there is no information suggesting otherwise. That sort of willful blindness gives the NSA a lot of leeway to target Americans. Worse, we now know that the NSA’s assertion that it does not “target” U.S. persons is either a lie, or is about to become one. Leaked NSA documents show that in 2011, the NSA changed its “minimization” rules to allow its operatives to search for individual Americans’ communications using their name or other identifying information. Such a change would turn “minimization” into a blanket authority to warrantlessly spy on Americans – in defiance of specific legal restrictions prohibiting this sort of domestic spying. Senator Ron Wyden has said that the law provides the NSA with a loophole potentially allowing “warrantless searches for the phone calls or emails of law-abiding Americans”, and raised the issue when he met with President Obama on August 1. This is the first time we’ve had evidence that the NSA has — or will have — the authority to warrantlessly search its databases with the specific intent of digging up information on specific U.S. individuals. We can sum up very simply – at this moment, the NSA enjoys virtually unrestricted power to spy on Americans, without a warrant or any particular suspicion that any person spied upon has done anything wrong. Our phone, email and potentially other records are fair game for bulk collection. The contents of our communications with people overseas are also fair game, so long as there is an approved foreign intelligence purpose for the collection. The NSA does not believe that any stored emails are protected by the Fourth Amendment, so it can collect them from providers with little restraint. As far as we know, the only category of information the NSA currently believes is off limits to mass surveillance are the contents of phone calls it knows in advance are solely between Americans. This is an astonishing development in the U.S., a nation that, until recently, carefully restricted the power of its domestic spying agencies by forcing them to submit narrow requests for spying authority to a court, which would issue a warrant if the government showed probable cause to believe that the surveillance target was engaged in some sort of wrongdoing. At this point, it’s clear those limits are gone. The United States is now a mass surveillance state. In last week’s press conference, President Obama reassured the nation that “America isn’t interested in spying on ordinary people.” In other words, do not worry, because the information will only be used for narrow counterterrorism or broader foreign intelligence purposes. But the latest revelations show that these assurances too are a lie. Under current U.S. surveillance law, the NSA may share with domestic law enforcement information obtained both through authorized surveillance, and information unlawfully but unintentionally collected, if it contains evidence of a crime. This rule was worrisome when the NSA was only conducting targeted surveillance of foreign powers. It is terrifying now that the NSA scans virtually all American cross-border communications. And this is especially true


in light of the recent reports showing that any number of other three-letter agencies are howling for access to NSA data for use in investigations of Americans’ drug use, tax evasion, and even copyright infringement. Usually, these agencies would need at least warrants based on probable cause that an individual was committing a crime before they could obtain the contents of our communications, and would need to certify to a public court that email or phone records are relevant to an ongoing criminal investigation before it could collect such traffic data. But if they get their hands on NSA data, all these bothersome civil liberties protections simply vanish. Which brings us to the Drug Enforcement Administration (DEA). As we noted previously, the DEA has a secret division called the Special Operations Division or SOD. The SOD receives intelligence intercepts, wiretaps, informants and a massive database of telephone records from its partner agencies, of which the NSA is just one, to distribute to authorities across the nation to help them launch criminal investigations of Americans. The SOD gets information from the NSA and shares it with, among other agencies, the IRS. And this is where things get truly ugly. When agents receive SOD information and rely on it to trigger investigations, they are directed to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.” IRS agents receiving SOD data, which presumably can include information from the NSA, have been similarly instructed. They are instructed, in other words, to create a fake investigative file, and to lie. To lie, in particular, to defense lawyers and to judges, about the source of the evidence used in criminal prosecutions. By hiding the fact that information comes from NSA surveillance, the government both masks the extent to which NSA’s domestic spying is used to trigger investigations of Americans, and prevents legal challenges to highly questionable surveillance practices like bulk phone record collection, warrantless access to American communications with friends and family overseas, and retention and use of illegally obtained domestic calls and emails. This is outrageous conduct. It is the sort of thing you expect from the Chinese government, or one of the now-vanished governments of the Warsaw Pact. And there is no stronger proof of the dangers of the NSA’s domestic spying effort than the fact that the government has consistently lied about it and attempted to cover it up. Think for just a moment about the stories J. Edgar Hoover could have plausibly concocted about Dr. Martin Luther King, Jr. or any other civil rights activist with this kind of detailed information. The Obama Administration has gone after leakers, and the journalists at outlets like the Associated Press or the New York Times who use them as sources, with unprecedented force. Think about what the current Attorney General, Eric Holder, could do to bring down these reporters who cover – sometimes in ways the Obama Administration doesn’t like — the conduct of American

foreign policy. At this point, it’s plain to see that the Obama Administration has no intention of honestly fixing this mess. So it’s time now for Congress to act . A good first step would be to appoint a Special Prosecutor with wide power to subpoena Administration officials, and to bring criminal indictments where appropriate. Congress should then begin the process of reforming surveillance law to make absolutely clear that the NSA has no power to conduct warrantless mass surveillance of Americans. First they came for the terrorists and the foreigners, and no one did anything. Then they came for the drug dealers. Then the tax cheats. Then the journalists. And that’s just what we know about. How much worse does it have to get before we say enough is enough?


AT//No AuthorityPresident has the authority – Congressional authorization is unnecessary and doesn’t have necessary expertise. Yoo, 7 (John, Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute, 3/27/7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975333) KWCritics have argued that the NSA's electronic surveillance is illegal because the AUMF did not explicitly mention wiretapping or surveillance. ' 2 Of course it does not mention detentions, either, which the Supreme Court later upheld as authorized by Congress, in spite of a law on the books known as the Anti-Detention Act.'83 Critics essentially argue that Congress must enact a grocery list of specific powers and otherwise the President cannot fight a war. For instance, FISA prohibits electronic surveillance within the United States without congressional permission .' However, in the AUMF, Congress authorized the President "to use all necessary and appropriate force . . . [against those] he determines" were involved with the 9/11 attacks, or those who aid, support, or harbor those involved.'85 Individuals who are communicating with suspected al Qaeda operatives after 9/11 are likely to fall within the scope of the AUMF. The power to use force impliedly includes the power to use surveillance and intelligence to find the targets.'86 According to the critics, Congress authorized the President to pull the trigger, but also ordered him to wear a blindfold.Obviously, Congress cannot legislate in anticipation of every circumstance that may arise in the future. That is one of the reasons, along with the executive branch's advantages in expertise and structural organization, why Congress delegates authority. Those who consider themselves legal progressives generally support the administrative state and vigorously defend broad grants of authority from Congress to the agencies of the executive branch." 7 Agencies such as the Federal Communications Commission or the Environmental Protection Agency exercise powers over broad sectors of the economy under the incredibly vague and broad congressional mandate that they regulate in the "public interest."' s These agencies make decisions with enormous effects, such as which parts of the radio spectrum to sell, s9 or how much pollution to allow into the air, 9° all with little explicit guidance or thought from Congress.Yet, when Congress delegates broad authority to the President to defend the nation from attack, critics demand that Congress list every power it wishes to authorize.' While the threats to individual liberty may be greater in this setting, it makes little sense to place Congress under a heavier burden to describe every conceivable future contingency that might arise when we are fighting a war, perhaps the most unpredictable and certainly the most dangerous of human endeavors. Rather, we would expect and want Congress to delegate power to that branch, the Executive, which is best able to act with speed to combat threats to our national security.'92 War is too difficult to plan for with fixed, antecedent legislative rules, and war also is better run by the executive, which is structurally designed to take quick,



decisive action. If the AUMF authorized the President to detain and kill the enemy,'93 the ability to search for them is necessarily included.

Constitutional framers intentionally gave Executive more power than Congress.Yoo, 7 (John, Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute, 3/27/7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975333) KWThe Framers well understood this principle. They rejected extreme republicanism, which concentrated power in the legislature, and created an executive with its own independent powers to manage foreign affairs and address emergencies which, almost by definition, cannot be addressed by existing laws."' The power to protect the nation, Hamilton wrote in the Federalist Papers, "ought to exist without limitation," because "it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them."2'13 It would be foolhardy to limit the constitutional power to protect the nation from foreign threats: "[t]he circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."2 4The Framers located the responsibility to respond to emergency and war in the Presidency because of its ability to act with unity, speed, and secrecy.2 "5 In the Federalist Papers, Hamilton observed that "[d]ecision, activity, secrecy, and dispatch will generally characterise [sic] the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number."2 6 "Energy in the executive," said Hamilton, "is essential to the protection of the community against foreign attacks."2 7 Wartime, that most unpredictable and dangerous of human endeavors, therefore ought to be managed by the President.218 "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand."2'19

Congress defers to the president – Constitutional practice and action proves Yoo, 7 (John, Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute, 3/27/7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975333) KWIf ever there were an emergency that Congress could not prepare for, it was the war brought upon the United States on 9/11. FISA was a law written with Soviet spies working out of their embassy in Washington, D.C. in mind. 2 ° No one then anticipated war with an international terrorist organization wielding the destructive power of a nation. The Presidency was the institution of government best able to respond quickly to the 9/11 attacks and to take measures to defeat al Qaeda's further efforts . While the certainty and openness of a congressional act would certainly be desirable, the success of the NSA surveillance program depends on secrecy and agility, two characteristics Congress as an institution lacks.But, critics respond, Congress foresaw that war might increase demands for domestic wiretapping, and still prohibited the President from using electronic surveillance without its permission. Why should Con gress's view not prevail here, as it would prevail in any other domestic question? It is




simply not the case that the President must carry out every law enacted by Congress. 222 The Constitution is the supreme law of the land, and neither an act of Congress nor an act of the President can supersede it.223 If Congress passes an unconstitutional act, such as a law ordering the imprisonment of those who criticize the government, the President must give force to the higher law, that of the Constitution. 24 Jefferson did just that as President when faced with the Alien and Sedition Acts. 25 He took the position that he, "believing the law to be unconstitutional, was bound to remit the execution of it, because that power has been confided to him by the Constitution. '226 That does not mean that the President is "above the law, ' 227 it only means that the Constitution is above the Congress, and the President. FISA might be unconstitutional if it were read to forbid the President from gathering information necessary to prevent attacks on the United States in wartime.2 8If the critics were right, and Presidents are duty bound to obey any and all acts of Congress, even those involving the Commander-in-Chief power, Congress could have ordered FDR not to attempt an amphibious landing in France in World War II, Truman to attack China during the Korean War, or JFK to invade Cuba in 1962. But Presidents such as Jefferson, Jackson, Lincoln, and FDR believed that they had the right to take action, following their interpretation of the Constitution rather than the views of Congress or the Supreme Court, especially in their role as Commander-in-Chief.229

Decades of American constitutional practice reject the notion of an omnipotent Congress . While Congress has the sole power to declare war, neither Presidents nor Congresses have acted under the belief that a declaration of war must come before military hostilities abroad.23° Without declarations of war or any other congressional authorization, Presidents have sent troops into hostilities abroad many times.' Other conflicts, such as both Persian Gulf Wars, received "authorization" from Congress but not declarations of war.232


AT//No EmpiricsCP solves--- empirics prove that self-restraint is possible especially when there could be large scale lossesSales 10 [Nathan, Assistant Professor of Law, George Mason University School of Law, SELF RESTRAINT AND NATIONAL SECURITY, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664610] SchlossThe wall offers a third example of how worries about excessive operational costs can produce self restraints. A good deal of information sharing between intelligence officials and criminal investigators would have been permissible under the law as it stood in the 1990s. FISA itself contained no express limits on data exchange, and a pair of Justice Department directives established a mechanism for information to flow between the department’s cops and spies. From the standpoint of operators, information sharing was utility-maximizing. It enabled analysts to piece together the entire intelligence “mosaic” – the bits and pieces of information that, taken individually, might not signify much at all, but that take on new meaning when seen in light of other data points.169 Yet officials nevertheless restricted data exchange between the intelligence and law enforcement worlds. In their eyes, sharing was utility-reducing.Consider first the decision to interpret FISA as barring surveillance unless its primary purpose was foreign intelligence, as well as their use of sharing as the metric by which the purpose of an operation was judged. Policymakers plausibly could have construed FISA as permitting “hybrid” operations – i.e., where the government has a dual purpose of collecting foreign intelligence and enforcing criminal laws against national security offenses – just as the FISA court of review did in 2002.170 Their reluctance to do so may have stemmed from a belief that the expected costs of such a reading were excessive. If the FISA court disagreed with that interpretation – i.e., if the court concluded that information sharing had so altered the nature of an operation that its primary purpose was no longer foreign intelligence – it would reject the agency’s surveillance applications. The consequences would be dire indeed: DOJ’s wiretaps would go dark. With those consequences looming, the expected benefits of sharing must have seemed inchoate and remote. Intelligence analysts theoretically could improve their products by “connecting the dots,” but no one could point to a particular terrorist plot that had ever been disrupted as a result. By contrast, the expected costs of pursuing an aggressive interpretation of FISA were concrete and immediate – an adverse ruling from the FISA court might bring much (if not all) of the department’s national security surveillance to a screeching halt.

Empirics prove the executive can establish self-restraint--- blockade on info sharingSales 10 [Nathan, Assistant Professor of Law, George Mason University School of Law, SELF RESTRAINT AND NATIONAL SECURITY, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664610] SchlossA final example of self-restraint concerns information sharing. On its face, the Foreign Intelligence Surveillance Act does nothing to restrict agencies from exchanging data with one another. Yet over the course of several decades, the Justice Department applied that statute to erect a “wall” between intelligence officials and criminal investigators. Two related developments were instrumental in the wall’s construction. First, the Justice Department as a whole concluded that FISA’s surveillance tools were unavailable in situations where the government had a hybrid purpose of both collecting foreign intelligence and enforcing federal criminal laws; FISA could only be used if the government’s purpose did not have a significant law enforcement element. Second, the DOJ division responsible for overseeing FISA matters began to police the flow of information between law-enforcement officers and intelligence agents. The result was to choke off information sharing and other forms of coordination between cops




and spies. The USA PATRIOT Act of 2001 proverbially “tore down the wall,” but the now moribund restrictions remain an illuminating example of how and why the government ties its own hands. Enacted in 1978, FISA established a legal framework for wiretapping foreign national security threats. While the executive branch previously conducted such surveillance unilaterally, FISA required it to receive approval from a special tribunal known as the Foreign Intelligence Surveillance Court. FISA’s standards for electronic surveillance are similar to Title III, the federal law that governs wiretaps in ordinary criminal investigations, but they are looser in several important respects. Perhaps the most important difference is that, while criminal investigators ordinarily must establish probable cause to believe that a crime has been, is being, or is about to be committed, FISA requires only probable cause to believe that the target is a foreign power or an agent of a foreign power.99 Because of FISA’s lower standards, there was a risk that investigators might use it to circumvent Title III’s more rigorous requirements.100 To minimize that danger, Congress provided that FISA tools would only be available if the government certified to the FISA court that “the purpose” of the proposed surveillance was foreign intelligence.101The first major development in the wall’s construction occurred in the 1980s, when the executive branch, along with some courts and members of Congress, began to interpret FISA as requiring that foreign intelligence be “the primary purpose” of proposed surveillance.102 How did one discern purpose? A great deal hinged on that question. If a wiretap’s aim was foreign intelligence, authorities were allowed to use FISA. If not – e.g., if an intelligence-related purpose was diluted by the presence of an ancillary purpose of, say, enforcing federal narcotics laws – then FISA was off the table. Investigators would have to make do with the ordinary Title III authorities. The Justice Department answered the question by measuring the amount of information sharing between law-enforcement and intelligence officials. The more sharing there was, the less likely the primary purpose of the surveillance was to gather foreign intelligence (and the more likely the FISA court would reject the surveillance application). By contrast, the more rigidly intelligence operations were cordoned off from law enforcement, the more likely it was that the surveillance would have foreign intelligence as its primary purpose (and the more likely it was to receive the FISA court’s blessing).This reading of FISA’s purpose requirement was not the only plausible way to parse that statutory language. As the Foreign Intelligence Surveillance Court of Review pointed out in 2002, enforcing criminal laws and pursuing foreign intelligence objectives are not mutually exclusive.103 Sometimes criminal prosecution will serve the government’s intelligence needs; one way to neutralize the threat posed by a spy would be to indict him for espionage. One can imagine the Justice Department adopting a broad interpretation that would permit FISA tools to be used in a wide range of cases – and, derivatively, that would permit extensive information sharing. This is not to say that the court’s aggressive interpretation of FISA is more persuasive than DOJ’s cramped reading. What’s significant is that, instead of adopting a (plausible) reading that would have maximized its discretion to coordinate intelligence and criminal investigations, DOJ embraced an (equally plausible) interpretation that sharply limited its discretion.By the mid-1990s the wall’s foundation had been laid. The second development occurred in 1995, when the Justice Department issued a pair of internal information-sharing directives. The first, issued by Deputy Attorney General Jamie Gorelick, applied to the parallel criminal and intelligence investigations of the 1993 World Trade Center bombing. The directive’s purpose was to “clearly separate the counterintelligence investigation from the more limited . . . criminal investigations” in order to “prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation.”104 Toward that end, DOJ directed that information uncovered by intelligence officials in the course of their investigation “will not be provided either to the criminal agents, the [U.S. Attorney’s office], or the Criminal Division” except in special circumstances. That “include[ed] all foreign counterintelligence relating to future terrorist activities.”105 DOJ was quite clear that the guidelines were not an interpretation of what was required by FISA, but rather “go beyond what is legally required.”106Though the Gorelick memo imposed severe information-sharing limits on agents working the World Trade Center investigations, they weren’t supposed to be insurmountable. The directive expressly contemplated that intelligence and law-enforcement officials would share information about their parallel investigations in certain circumstances. In particular, FBI intelligence officials were ordered to notify criminal investigators if, during their investigation of the bombing, “facts or circumstances are developed that reasonably indicate that a significant federal crime has been, is being, or may be committed.”107The second set of guidelines, issued by Attorney General Janet Reno on July 19, 1995, applied to all DOJ criminal and intelligence investigations. It directed that criminal investigators “shall not . . . instruct the FBI on the operation, continuation, or expansion of FISA electronic surveillance.”108 It further insisted that cops and spies must avoid “either the fact or the appearance of the Criminal Division’s directing or controlling the [foreign intelligence] or [foreign counterintelligence] investigation toward law enforcement objectives.”109 The Reno guidelines did not impose strong limits on information sharing between cops and spies. Instead, they were aimed squarely at the one type of coordination that was likely to raise the FISA court’s hackles – criminal investigators directing an intelligence operation. Indeed, the Reno guidelines affirmatively directed cops and spies to share information in certain circumstances. Echoing the Gorelick memo, the Reno directive provided that if “facts or circumstances are developed that reasonably indicate that a significant federal crime has been, is being, or may be committed,” the FBI was to share the information with the criminal division.110Despite these escape valves, cops and spies did not in fact exchange information freely.111 A fair amount of the responsibility can be laid at the feet of the Office of Intelligence Policy and Review. OIPR is the DOJ component


charged with overseeing FISA matters. Its lawyers present surveillance applications to the FISA court and otherwise represent the government in proceedings before that body. They also serve an internal screening function, reviewing proposed applications to ensure compliance with the applicable legal rules, and weeding out the ones they don’t think will pass muster before the court.OIPR took three steps that solidified its role as DOJ’s information-sharing watchdog. First, almost immediately after the 1995 directives were issued, OIPR began applying the Gorelick memo’s strict limits to all foreign intelligence investigations, not merely the 1993 World Trade Center investigation. The Gorelick restrictions metastasized; rules that were adopted for a single investigation came to govern all cases. “As a result, there was far less information sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the department’s procedures.”112 Second, OIRP played “gatekeeper,”113 policing whatever information flow did take place. Neither the Gorelick nor Reno directives mentioned any role for OIPR in regulating exchanges of information tending to suggest “that a significant federal crime has been, is being, or may be committed.” But OIPR assumed responsibility for doing so, apparently on the basis of a threat. According to the 9/11 Commission, “[t]he Office threatened that if it could not regulate the flow of information to criminal prosecutors, it would no longer present the FBI’s warrant requests to the FISA Court.”114 OIPR used its status as the government’s sole representative before the FISA court as leverage to establish a role for itself in policing internal information flow.The office’s third move was the boldest of all. At some point in late 1998, as the Justice Department was ramping up its investigation of the East Africa embassy bombings, a senior OIPR lawyer met with the chief judge of the FISA court and encouraged him to issue an order adopting the wall restrictions, solidifying them into a firm legal requirement. The judge agreed; “[t]he FISA court simply annexed the attorney general’s guidelines, making the wall a matter of court order.”115 The court wasn’t shy about enforcing those restrictions. In 2000, the court went even further. Now assisted by the same lawyer who had lobbied it to adopt the OIPR restrictions (he’d left DOJ and now was serving as the FISA court’s first clerk in several decades), the court issued a standing order that “every [FBI] agent who had access to FISA-derived intelligence would have to sign a special certification, promising that none of the information would be conveyed to criminal investigators without the FISA court’s permission.”116 In effect, the court had become OIPR’s surrogate; it was enforcing as a matter of law the information-sharing limits that OIPR had developed and applied internally within the Justice Department.It’s now become conventional wisdom that the wall resulted in chronic information sharing failures. Yet it was not legally required – at least not until OIPR’s crafty lobbying of the FISA court. FISA itself did not restrict information sharing. Neither did the Justice Department’s internal directives – one applied only to the 1993 World Trade Center investigation, the other only barred prosecutors from directing intelligence investigations, and both allowed officials to share evidence that significant crimes were afoot. Instead, the wall was built by bureaucratic choice. Rather than applying FISA and the 1995 directives according to their literal terms – to say nothing of aggressively construing them to have even less bite – OIPR embraced a maximalist vision of the limits on information sharing. The wall thus represents a classic case of self restraint – one element within the government imposed restrictions on other elements’ ability to conduct national security operations, restrictions that the governing law did not clearly require.


AT//Internal Restraints Fail Distributed checks and balances solve Bodansky, 12 (Daniel, Lincoln Professor of Law, Ethics and Sustainability Arizona State University Sandra Day O'Connor College of Law; “Book Review of Jack Goldsmith, Power and Constraint: The Accountable Presidency after 9/11”; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296192)//JPMPower and Constrain analyzes the system of “distributed checks and¶ balances ” that led to these results – suggesting a new way of thinking about¶ who is doing the checks and balances. Goldsmith goes beyond the traditional¶ focus on the interactions between

the three branches of the federal¶ government . As he describes it, many of the checks on the President came¶ not from Congress or the Courts but from “giant distributed networks of¶ lawyers, investigators, and auditors, both inside and outside the executive¶ branch ” (xi-xii): from within the executive branch, military and national¶ security lawyers and inspector generals; from without, the press and the¶ human rights bar.

Internal checks are sufficient to solve – and external restrains fail Johnsen 07 [Dawn - Professor of Law, Indiana University School of Law - Bloomington; Acting Assistant Attorney General (1997-98), Deputy Assistant Attorney General (1993-96), Office of Legal Counsel, U.S. Department of Justice. “SYMPOSIUM: Constitutional "Niches": The Role of Institutional Context in Constitutional Law: Faithfully Executing the Laws: Internal Legal Constraints on Executive Power”, The Regents of the University of California UCLA Law Review, August 2007, lexis] BJSThe most obvious checks on the President are the other two branches of the federal government: the U.S. Congress and the courts. Our constitutional system of separate and overlapping powers creates the potential for a vibrant legislature and judiciary to check a President who transgresses legal [*1561] boundaries and violates rights in order to accomplish policy ends. n1 Debate has raged, domestically and internationally, about the details of desirable external checks on the Bush Administration's counterterrorism policies. While the Republicans controlled Congress prior to 2007, most attention understandably focused on the courts, with commentators differing passionately about the level of deference the courts should afford the political branches n2 and about the judiciary's potential to safeguard civil liberties in times of emergency. n3 Thus far, the U.S. Supreme Court has taken a relatively aggressive and nondeferential stance in favor of protecting those whose rights the President's policies may have violated. n4 The Court's approach is warranted: Regardless of the underlying policies' substantive merits, the courts as well as Congress should hold the President [*1562] accountable for attempts to implement policies with arrogant disrespect for legal constraints and for the coordinate branches' constitutional

authorities. Our recent history, though, has demonstrated the inherent inadequacies of the courts and Congress as external checks on the President. An approach of issue-by-issue review and oversight even by a vigilant judiciary and Congress will incompletely constrain a President who, in the name of national security, is willing to undermine the rule of law . This Article therefore seeks to elevate an essential source of constraint that often is underappreciated and underestimated: legal advisors within the executive branch. The obstacles to judicial or congressional review of particular executive branch actions on matters of war and national security - especially during times of crisis - are familiar. The courts face (and create) difficult justiciability requirements, in part out of respect for executive authority and expertise. These impediments to judicial review mean, for example, that there may be no party who ever has standing to challenge a clearly unlawful governmental action. Courts may deny or delay relief even to parties with standing because of the political question doctrine, the state secrets privilege, deferential standards of review, or years of complex litigation. With regard to Congress, oversight obviously tends to be least effective when the President's political party


dominates, but even with the shift to Democratic control in 2007, significant obstacles remain to Congress's ability to check executive action. Congress tends to defer strongly to the commander-in-chief on matters of war and national security even in times of divided government. Legislative efforts face the possibility of a filibuster or a presidential veto. Perhaps the greatest challenge to legislative oversight is that Congress has already enacted legislation with regard to many of the Bush Administration's most objectionable policies. Much of the controversy in fact stems from President Bush's claimed authority to refuse to comply with congressional statutes, including the Foreign Intelligence Surveillance Act (FISA), n5 the anti-torture statute, n6 and the numerous other laws that are [*1563] the subjects of signing statements in which Bush asserts the right to refuse to enforce the laws in ways that conflict with his view of his office's constitutional authority. n7 When Congress already has legislated and the President unjustifiably threatens nonenforcement, Congress is left with the options of resource-intensive oversight to attempt to police compliance, indirect retribution (such as through appropriations and appointments), and the blunt instrument of impeachment. Executive branch secrecy further hinders both judicial and congressional review. At times, of course, secrecy is essential to preserving national security , but the Bush Administration has taken the level of executive

branch secrecy to a new and unwarranted extreme. By its nature, secrecy undercuts the efficacy of external checks. Congress or potential litigants may not even know about unlawful executive action unless someone in the government violates administration policy, and perhaps statutory prohibitions, to leak information. Such leaks were responsible for the public disclosure of the Bush Administration's legal opinions and policies on coercive interrogations and torture, n8 the National Security Administration's domestic surveillance program that operated outside the requirements of FISA, n9 and the use of secret prisons overseas to detain and interrogate suspected terrorists. n10 Ultimately, even with the current Supreme Court's relatively strong willingness to protect rights in the face of unlawful executive action, coupled with scrutiny from the press and advocacy organizations, the Bush Administration has engaged in years of largely unconstrained illegal practices. [*1564] On a daily basis, the President engages in decisionmaking that implicates important questions of constitutionality and legality. Whether to seek congressional authorization before committing the nation to war or other hostilities, what limits, if any, to set (or when set by Congress, to respect) on torture and other coercive interrogation techniques, when to publicly release information regarding the course of war or counterterrorism efforts - all are issues over which the President exercises enormous practical control, and all can profoundly affect individual lives and the course of history. The possibility of after-the-fact external review of questionable executive action is an inadequate check on executive excesses. Presidents also must face effective internal constraints in the form of executive branch processes and advice aimed at ensuring the legality of the multitude of executive decisions. The proposition that the President's own legal advisors can provide an effective constraint on unlawful action understandably engenders a high degree of skepticism - especially in light of recent events. One of President Bush's legacies undoubtedly will be the deepening of Americans' cynicism about presidential adherence to the rule of law. The Bush Administration, however, also provides some evidence to the contrary, for example, in the resistance to advice given by the U.S. Department of Justice's Office of Legal Counsel (OLC) regarding torture from lawyers and other advisors elsewhere in the executive branch and later from within OLC itself. n11 Internal checks alone, of course, are insufficient. But we debase our commitment to democracy and justice if we do not view legal advice from within the executive branch as an essential component of efforts to safeguard civil liberties, the constitutional allocation of governmental authority, and the rule of law. We invite failure if we allow our cynicism to excuse presidential abuses as simply expected - in effect relieving Presidents (and those who serve them) of their obligation to take care that the laws be faithfully executed, as the U.S. Constitution commands. [*1565] This Article therefore considers questions of executive branch legal interpretation. How can internal interpretive processes and standards foster or undermine adherence to the rule of law? What norms and procedures should govern executive action? What may be gleaned from recent strains and failures? How might the courts and Congress not only hold Presidents accountable for particular failures to uphold the law, but also encourage processes that generally enhance the quality of executive branch legal advice and decision making?


The executive can check itself – many mechanisms

1. Inter-agenciesRaven-Hansen 09Peter Raven-Hansen, received his B.A. and J.D. at Harvard University and teaches national security law, counterterrorism law and civil procedure and evidence at Georgetown Washington University, “Executive Self-Controls: Madison's Other Check on National Security Initiatives By The Executive,” Spring of 2009, Journal of Civil Rights and Economic Development Volume 23 Issue 4, http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1051&context=jcred/NVThe first internal control or check is the check of inter-agency process. By this, I mean nothing more than sending a proposed decision out of an agency to obtain approval or input from other agencies. Inter-agency process is common across the government, but particularly common in matters of national security that fall to an iron triangle of the Defense, State, and Justice Departments, all of which ordinarily would have to be consulted on many national security decisions. The details of this internal check vary, but typically the inter-agency consultation operates at a relatively unseen and unglamorous level of inter-agency working groups. Even more prosaically, it can take the highly informal form of circulating drafts among agencies for comment. Occasionally, it will operate at a higher level in principals' committees involving Cabinet-level or subcabinet people and their deputies. The designation of U.S. citizen enemy combatants may seem an unlikely example of this check, given the seemingly haphazard way in which alien enemy combatants have been designated according to press accounts and the fitful Combatant Status Review Tribunal process. But the former designation process was described in detail by then-Attorney General Alberto Gonzales.2 Judge Gonzales told a Bar Association meeting that the process begins with a written assessment of intelligence by the CIA and its recommendation to the Department of Defense about whether a U.S. citizen should be designated an enemy combatant for purposes of military detention. The Department of Defense then makes an independent written assessment, which it forwards with the CIA package to the Attorney General. The Attorney General solicits a formal legal opinion from the Office of Legal Counsel, based in part on the materials supplied by the CIA and Department of Defense. He also gets a factual recommendation from his Criminal Division. All of these materials are then sent back to the Secretary of Defense with a recommendation. The Secretary of Defense assembles this package and the CIA package and sends the whole thing over to the President with his final recommendation. The White House Counsel reviews the package, repackages it, and makes his own recommendation to the President. The President reviews the package (this is perhaps the least credible part of this account), gets briefed, and then makes his decision. Even if, at this remove from 9/11, you are skeptical of Bush Administration assertions about national security processes, and therefore doubt the details of this one, I would wager that something like this must go on. No administration designates U.S. citizens as enemy combatants with a dartboard, given the dire consequences (military detention and possibly trial and even execution, without the protections of the ordinary criminal process). So what? Exactly how does the inter-agency process serve as a check on the abuse of power? First, the overlap of interested agency jurisdictions brings different constituencies of lawyers and other experts into play. They supply some diversity of viewpoints, even if the involved agencies have no veto. Although the President calls the final shots, even Presidents desire consensus, which generates some pressure in the process to accommodate divergent views. A search for consensus or even more limited agreement, in turn, empowers dissidents within the agencies because it provides allies, influence, and cover. The net result is less group think and, in theory, better decisions.

2. Intra-agenciesRaven-Hansen 09Peter Raven-Hansen, received his B.A. and J.D. at Harvard University and teaches national security law, counterterrorism law and civil procedure and evidence at Georgetown Washington University, “Executive Self-Controls: Madison's Other Check on National Security Initiatives By The Executive,” Spring of 2009, Journal of Civil Rights and Economic Development Volume 23 Issue 4,


http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1051&context=jcred/NVA second internal check is afforded by intra-agency process, which presumably works in much the same way and with the same consequences as the inter-agency process. The circulation of proposed decisions within the agency also empowers dissidents and harnesses diversity of thinking. And, if nothing else, it catches errors, or at least increases the odds of avoiding them. Consider, for example, the reported process for preparing and submitting an application to the Foreign Intelligence Surveillance Court (FISC) for electronic

surveillance under the Foreign Intelligence Surveillance Act (FISA). The statute actually doesn't specify any internal process, other than requiring the Attorney General to sign off on an application; but the FBI and the Department of Justice have necessarily created one anyway. Oversimplifying, I understand that an application or request is made at the field agent level. A supervisor has to sign off on it. It goes up to the next layer of command. They sign off on it, and they, in turn, send it over to the National Security Law Section of the FBI or its successor for

approval and to package the application. Then it goes to independent lawyers at Justice. They sign off on it and then it goes to the Attorney General for approval, before it is finally submitted to the FISC. The result is another check on the government's use of FISA,3 indeed, one that may well be more effective, as a practical matter, in policing illfounded or overbroad applications than the external check of judicial approval by the FISC itself.4

3. Agency culture Raven-Hansen 09Peter Raven-Hansen, received his B.A. and J.D. at Harvard University and teaches national security law, counterterrorism law and civil procedure and evidence at Georgetown Washington University, “Executive Self-Controls: Madison's Other Check on National Security Initiatives By The Executive,” Spring of 2009, Journal of Civil Rights and Economic Development Volume 23 Issue 4, http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1051&context=jcred/NVAgency culture is another internal check, perhaps the most important, but at the same time, the most nebulous. I am referring to an institutional self-awareness, almost an institutional ego about the quality of its products (decisions, opinions, etc.) and about how its professional personnel differ from (are better than) everybody else in the Executive Branch. A classic example with which most of us (lawyers) are familiar is the "officer-of-the Court" culture of Solicitor General's Office. 5 The Office of the Legal Adviser to the State Department also has a distinctive culture.6 The Legal Adviser is the highest authority in international law. The Adviser is a representative of international law in the U.S. government - a voice not just for interpreting but, consistent with U.S. national interests, for advocating international law. 7 The Office of Legal Counsel [hereinafter "OLC"] notoriously in the loop in the torture debate and other major national security initiatives by this Administration, historically had a distinctive culture, too, to which I will turn shortly. The bedrock attributes of all these agency cultures is what I would call the lawyer culture. What is it? Well, we've all in this room been trained in it, so you can answer this for yourself. But as both a long-time trainer and long-past trainee, I can attest that the number one principle that we bring out without fail in every class in every law school in the United States is competency. It's no accident that the first rule of the ABA Model Rules of Professional Conduct is that "[a] lawyer shall provide competent representation to a client." 8 A competent lawyer researches thoroughly. She anticipates contrary arguments. She deals carefully with precedent. She analyzes and advises objectively. Thus, OLC alumnae declared as first principle that the OLC provide "accurate and honest appraisals of applicable law." 9 The competent lawyer looks at the bad precedent, as well as the good, and tells the client about both. Business clients may hate their lawyers for being "nay-sayers," but the opposite of nay-sayer is "yes-man." Nay-saying

http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1051&context=jcred/NV


objectivity is especially important in the small inner circle of presidential decisionmaking to counter the tendency towards groupthink and a vulnerability to sycophancy. Finally, a competent lawyer also respects precedent, at least so far as to explain it away when the client contemplates a departure. In national security law, where there are fewer relevant judicial precedents, prior OLC opinions may substitute, and respect for this "precedent" requires explaining away or distinguishing them. The drag of precedent may well make legal analysis inherently conservative, but that is just another way of saying that it serves as an internal check on government conduct informed by such analysis.

4. BlackmailingRaven-Hansen 09Peter Raven-Hansen, received his B.A. and J.D. at Harvard University and teaches national security law, counterterrorism law and civil procedure and evidence at Georgetown Washington University, “Executive Self-Controls: Madison's Other Check on National Security Initiatives By The Executive,” Spring of 2009, Journal of Civil Rights and Economic Development Volume 23 Issue 4, http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1051&context=jcred/NVFourth (and appropriately last because this is really an internal check that only comes into play when the rest have failed), is the check provided by threats to "go public" by leaking embarrassing information or publicly resigning. After 9/11, we have seen a series of leaks of OLC and Department of Defense legal analyses, and of details of legally controversial national security initiatives, such as the Terrorist Surveillance Program and coercive interrogation. While we have had almost no public protest resignations by senior government officers since the Saturday night massacre in the Watergate era, the press reported that then-Deputy Attorney General James Comey and thirty other Justice Department lawyers successfully threatened to resign in order to get the Terrorist Surveillance Program changed. 10

5. Self-interest Raven-Hansen 09Peter Raven-Hansen, received his B.A. and J.D. at Harvard University and teaches national security law, counterterrorism law and civil procedure and evidence at Georgetown Washington University, “Executive Self-Controls: Madison's Other Check on National Security Initiatives By The Executive,” Spring of 2009, Journal of Civil Rights and Economic Development Volume 23 Issue 4, http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1051&context=jcred/NVA final answer to the Cheney objection is that many of the internal checks are imposed by the Executive in its own self-interest - the interest of avoiding an external check. The intra-agency FISA procedures which I summarized are driven by the prospect of FISC disapproval. The Executive uses the process in part to earn deference from the court. Other inter-agency and intra-agency procedures are driven by the possibility of due process review. They anticipate procedures that courts might impose. Internal checks are also put in place and enforced to forestall new legislation, should Congress eventually examine the initiatives that




result. It gives the President the argument that, "We vetted this carefully and oversaw it closely, so there is no need for new legislation [that is, a statutory check]."

The executive imposes privacy barriers for communication on itselfSales 12Sales 2012 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law & Policy, 6.227, “Self-Restraint and National Security/NVA final example of self-restraint concerns information sharing. On its face, the Foreign Intelligence Surveillance Act does not restrict agencies from exchanging data with one another. Yet over the course of several decades, Justice Department officials applied that statute to erect a “wall” between intelligence analysts and criminal investigators. Two related developments were instrumental in the wall’s construction. First, the Justice Department as a whole concluded that FISA’s surveillance tools were unavailable in situations where the government had a hybrid purpose of both collecting foreign intelligence and enforcing federal criminal laws; FISA could only be used if the government’s purpose did not have a significant law enforcement element. Second, the DOJ division responsible for overseeing FISA matters began to police the flow of data between the law enforcement and intelligence worlds. The result was to choke off information sharing and other forms of coordination between cops and spies. The USA PATRIOT Act of 2001 proverbially “tore down the wall,” but the now moribund restrictions remain an illuminating example of how and why officials tie their own hands. Enacted in 1978, FISA established a legal framework for wiretapping foreign national security threats. While the executive branch previously conducted such surveillance unilaterally, FISA required it to receive approval from a special tribunal known as the Foreign Intelligence Surveillance Court. FISA’s standards for electronic surveillance are similar to Title III, the federal law that governs wiretaps in ordinary criminal investigations, but they are looser in several important respects. Perhaps the most important difference is that, while criminal investigators ordinarily must establish probable cause to believe that a crime has been, is being, or is about to be committed, FISA requires only probable cause to believe that the target is a foreign power or an agent of a foreign power.134 To minimize the danger that investigators might use FISA to circumvent Title III’s more rigorous requirements,135 Congress provided that FISA tools would only be available if the government certified to the FISA Court that “the purpose” of the proposed surveillance was foreign intelligence.136


AT//NSA KeySelf-restraint solves NSA advantages Risen 13 [Tom, technology and business reporter for U.S. News & World Report, President Obama Proposing 'Self-Restraint' on NSA, http://www.usnews.com/news/articles/2013/12/06/president-obama-proposing-self-restraint-on-nsa] SchlossPresident Barack Obama said he will propose new limits on the surveillance of the National Security Agency during an interview when he defended the national security importance of the spying while conceding it has been "more aggressive" overseas.¶ Obama in August ordered a review group of legal and technology experts to "assess whether, in light of

advancement in communications technologies," national security surveillance by U.S. intelligence agencies fails to maintain the public trust. The five-member group, consisting of

academics and former government officials, is scheduled to submit its final report to Obama by Dec. 15.¶ "I'll be proposing some self-restraint on the NSA, and to initiate some reforms that can give people more confidence, " Obama said during an interview with MSNBC on Thursday. "The NSA actually does a very good job about not engaging in domestic surveillance, not reading people's emails, not listening to the contents of their phone calls. Outside of our borders, the NSA's more aggressive. It's not constrained by laws."¶ This interview came on the heels of the Washington Post's report on Wednesday that

the NSA is collecting nearly 5 billion records each day on the location of cell phones around the world. The media has reported numerous similar examples of the NSA's extensive monitoring of Internet traffic and phone calls, citing classified documents leaked to the press by former agency contractor Edward Snowden.

Since those reports began in June, the Obama administration ordered increased transparency of documents related to the surveillance, including opinions from the Foreign Intelligence Surveillance Court, which oversees requests for data from intelligence agencies. During the MSNBC interview,

Obama said "we do have people who are trying to hurt us," but added that national security needs can be balanced with oversight on privacy rights from the FISC and Congress.¶ "Young people, rightly, are sensitive to the needs to preserve their privacy and to retain Internet

freedom," Obama said. "And by the way, so am I."¶ Obama may announce increased transparency, along with new limits and oversight on the NSA, but that may not be enough to address the privacy concerns of the agency's bulk data collection, said Kevin Bankston, policy director of the New America Foundation's Open Technology Institute.¶ "Rather than allowing the NSA to engage in mass surveillance to collect

everyone's data and then decide who to target, the president should ensure that the NSA engages only in targeted surveillance; that is, first deciding who to target and then collecting only their data," said Bankston, a privacy and free expression lawyer. " True leadership in this moment would be for President Obama to say to the American people and to the rest of the world 'I am putting an end to the NSA's bulk collection programs , because it is contrary to the American way to

treat every person who uses the telephone or the Internet like a terrorism suspect."

The NSA cannot restrain itselfFriedersdorf 13Conor Friedersdorf, is a staff writer at the Atlantic for national affairs and politics, “The High Likelihood That Future NSA Abuses Will Occur,” August 1, 2013, The Atlantic, http://www.theatlantic.com/politics/archive/2013/08/the-high-likelihood-that-future-nsa-abuses-will-occur/278261/NV The Guardian's latest scoop concerns the ability of National Security Agency analysts to search vast databases of emails, online chats, and web browsing histories, among other online activity. Glenn Greenwald notes that the NSA is lawfully required to obtain a FISA warrant if the target of surveillance is a U.S. person. But it provides analysts "the technological capability, if not the legal authority, to target even US persons for extensive electronic

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surveillance without a warrant," he reports, and to reveal IP addresses of everyone who visits "any website the analyst specifies." That alarms many Americans. The Guardian article doesn't provide any evidence of NSA analysts targeting U.S. persons without a warrant, as critics of the newspaper are quick to note. Yet there is still ample reason to worry. It is naive -- in fact, it is absurd -- to imagine that the scores or hundreds of NSA analysts given access to these databases will never commit abuses. There are bad apples in every human enterprise. Agencies that operate under the cover of secrecy are that much more vulnerable to abuses. U.S. surveillance agencies have a particularly sordid history of abusing the power given them. Illegal, warrantless spying on Americans was secretly conducted as recently as the Bush years, and the people responsible for the illegal abuses were granted retroactive immunity. Edward Snowden himself demonstrated that the NSA cannot predict when one of its own might suddenly abscond with top secret information that no one planned to be made public. Then there is the lesson that 9/11 taught us. In its aftermath, the U.S. government panicked. Federal officials institutionalized behavior, including the torture of other humans, that would've been unthinkable before the terrorist attack, and a traumatized nation required years of reflection to turn against the most extreme practices. Could the NSA be trusted to restrain itself after a future terrorist attack, or would the safeguards its defenders keep referencing be swept away by a new generation of panicked officials? Or what if a higher-up at the NSA didn't panic, but exploited the panic of everyone else? Unless the NSA is reined in, it is all but certain that future abuses will occur. The question its defenders ought to be asked is, "Would you support these programs even if you knew future abuses were inevitable?" True, every law-enforcement tool is abused at one time or another. But the consequences of NSA abuses are catastrophic in a way without precedent in American history because their law enforcement tool contains private information about almost every citizen. How many government officials could be blackmailed with already collected material that no one has looked at ... yet? The NSA is nevertheless out with another defense of its program. The statement, posted online Wednesday, is worth a close look. "The implication that NSA's collection is arbitrary and unconstrained is false," it begins. Recall that this is an agency that collects metadata on all phone calls. In other words, its approach to data collection isn't "arbitrary," it's virtually comprehensive. "NSA's activities are focused and specifically deployed against -- and only against -- legitimate foreign intelligence targets in response to requirements that our leaders need for information necessary to protect our nation and its interest," the NSA's statement continues. Let's read carefully. The NSA's activities may be "focused and specifically deployed against -- and only against" foreign targets. But the fact that it isn't "focused" on American citizens doesn't mean their phone data, Internet behavior, and other information isn't being collected in vast, searchable databases. If and when access to that information is abused, the focus of the program that first collected it won't matter. The NSA says: XKEYSCORE is used as part of NSA's lawful foreign signals intelligence collection system. By the nature of NSA's mission, which is the collection of foreign intelligence, all of our analytic tools are aimed at information we collect pursuant to lawful authority to respond to foreign intelligence requirements - nothing more. The analytic tools may be "aimed at" information relevant to foreign intelligence. That doesn't mean that those same tools aren't hoovering up lots of domestic information with no relevance to foreign intelligence, or that an abuse-minded NSA employee couldn't aim the tools elsewhere. NSA: Allegations of widespread, unchecked analyst access to NSA collection data are simply not true. Access to XKEYSCORE, as well as all of NSA's analytic tools, is limited to only those personnel who require access for their assigned tasks. Those personnel must complete appropriate training prior to being granted such access - training which must be repeated on a regular basis. This training not only covers the mechanics of the tool but also each analyst's ethical and legal obligations. In addition, there are multiple technical, manual and supervisory checks and balances within the system to prevent deliberate misuse from occurring. In other words, analyst access to the data isn't "widespread and unchecked," it is widespread and checked. Given the secrecy surrounding the agency, it is actually impossible to verify the system of checks. But even presuming that there is excellent ethical training, as well as "multiple technical, manual and supervisory checks and balances within the system to prevent deliberate misuse," the same can be said of the U.S. military, the IRS, the NYPD, the prison at Gitmo --

serious abuses happen all the time in government agencies despite


government training and checks and balances. Operating as if they won't ever happen is ahistorical and reckless . "Our tools have stringent oversight and compliance mechanisms built in at several levels," the NSA states. Similarly, there were stringent oversight and compliance mechanisms to prevent telecom companies from conspiring with the government to wiretap Americans without warrants. But it still happened after 9/11. So long as the NSA operates largely in secret, with tools that enable intrusions into privacy on an extreme scale, the odds that there will eventually be serious abuses approach 100 percent. If and when that happens, Presidents Bush and Obama, NSA Director General Keith Alexander, Senator Dianne Feinstein, and many others will share the responsibility for the totally preventable catastrophe they enabled. The annals of history encompass people who helped to build vast surveillance states. Do we think well of any of them?

Internal restraints for the NSA will not work – five warrantsWaldman 13Paul Waldman, is a senior writer for the American Prospect who also blogs for the Washington Post and the Week, “Is It Already Too Late to Stop the NSA?” December 16, 2013, American Prospect, http://prospect.org/article/it-already-too-late-stop-nsa/NVThe revelations about the scope of National Security Agency surveillance from the documents released to the public by Edward Snowden have been so numerous and so extraordinary that I fear we may be becoming numb to them. That's partly because there's just been so much, one revelation after another to the point where the latest one doesn't surprise us anymore. It's also partly because mixed in with the genuinely distressing surveillance programs are some things that seem almost ridiculous, like the idea of NSA agents trying to unearth terrorist plots in World of Warcraft. But there are some basic facts about this whole affair that should make us all frightened. We can sum it up as follows: 1. The scope of the NSA's surveillance is far greater than almost anyone imagined. 2. Barack Obama is not only perfectly fine with that surveillance, he was perfectly fine with it being kept secret from the American public. 3. As much discussion and consternation as Snowden's revelations produced, there has been no restraint on those surveillance powers, nor is there likely to be any time soon. 4. As new technologies and techniques of surveillance are developed, the NSA will incorporate them into its arsenal, continually expanding its reach. 5. Before long, there will be a Republican president who will appoint hundreds of other Republicans to high-ranking positions within the intelligence apparatus. Many of these will be former Bush administration officials and/or people who would like nothing more than to expand the NSA's surveillance of both foreigners and Americans as much as is technologically feasible. We may have no more than three years to do something about it. Or it may be too late already. Most of this you don't need to be reminded of. Every day, the NSA gathers information on who we call and who we email. They're exploiting browser cookies and the location-tracking information in smartphones to monitor people's movements online and in the real world. They're using social media to reconstruct Americans' social networks, to keep tabs on who they're associating with. They track text messages and credit-card purchases. They tap into phone and data lines. President Obama responded to these revelations by appointing an advisory panel to assess the situation; that panel's findings will be released soon. They're going to recommend some modest oversight, but they're not going to recommend that the NSA stop any of the surveillance it's currently doing. The administration will probably take one or two of the recommendations they find least inconvenient, then throw the rest of it in the trash. The NSA will continue to use every kind of surveillance it was using before the Snowden revelations. That brings us to the future. Imagine it's five years from now, and some new technology (or advancement in an existing technology) allows a whole new kind of data collection. For instance, let's say that face-recognition software takes a

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dramatic leap forward. Let's also say that new kinds of data-sorting algorithms allow the huge amount of face-recognition data available from the millions of security cameras spread throughout the country to be gathered, arranged, and analyzed, to the point where the government can assemble a comprehensive record of where much of the population of the United States is at any given time, so long as they're outside. If and when that becomes possible, do you think the NSA will say, "We really shouldn't gather this information; the privacy concerns are too great"? Not on your life. They'll say, "Just think of how valuable this will be in stopping the next terrorist attack!" We don't know how long it will be before the government can do that, but we can be all but certain that they will be able to do it eventually. Now I want you to imagine one more thing. As disappointed as many liberals are with how aggressive the Obama administration has been in conducting surveillance, what do you think will happen when the next Republican administration comes into office and finds itself in possession of all these wonderful toys? In case you've forgotten what the last Republican administration was like, you can get a nice refresher from Ryan Lizza's recent article in the New Yorker on the development of our surveillance state. I want to point to just one extraordinary excerpt:

Despite attempts at transparency, the NSA will not stop squo surveillanceTurley 15Jonathan Turley, is a national recognized legal scholar who has lead journals from famous schools such as Harvard, Duke, Northwestern and Cornell, “NSA Abuses Never End,” January 4, 2015, Jonathan Turley.com, http://jonathanturley.org/2015/01/04/nsa-abuses-never-end/NV***We do not support the ableist language in this card***The instances of reported abuse of our country’s laws by our Intelligence services seems never-ending. The National Security Agency, or NSA is at the top of the list when it comes to violations of our laws and even its own rules and procedures that are allegedly designed to protect our privacy. Pursuant to a court order in a case brought by the ACLU, the NSA is required to provide a list of its abuses on a quarterly basis. Of course, the NSA redacts most of what it puts in its own disclosures. “Every quarter, the National Security Agency generates a report on its own lawbreaking and policy violations. The reports are classified and sent to the President’s Intelligence Oversight Board. It’s unclear what happens once they get there. Those reports are now online dating back to late 2001. The NSA has posted redacted versions of the documents to its website. “These materials show, over a sustained period of time, the depth and rigor of NSA’s commitment to compliance,” the agency’s self-congratulatory introduction declares. “By emphasizing accountability across all levels of the enterprise, and transparently reporting errors and violations to outside oversight authorities, NSA protects privacy and civil liberties while safeguarding the nation and our allies.” These NSA characterizations are not credible. Even the uninformed observer will be suspicious of the spy agency’s account upon learning that far from voluntarily releasing redacted versions of these documents, it was forced to do so by Freedom of Information Act requests filed by the ACLU. The NSA fought to continue suppressing these documents from the public, even though the redacted versions in no way harm U.S. national security. A court ordered the documents released.” Reader Supported News Only in Washington, D.C., would anyone, let alone a government agency, claim it is being transparent in reporting its mistakes, when it refused to release a listing of those “errors” until a court ordered them to do so! This is the same agency that the New York Times disclosed in February of 2014 was caught spying on American attorneys working on behalf of a foreign government. Professor Turley discussed this case here. It shouldn’t surprise anyone that this willful violation of the law was only learned through the Snowden document disclosures. So much for willing transparency . The NSA has been caught violating a client’s right to discuss their legal case with their

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attorneys in private and numerous instances of spying on individual citizens and what repercussions have resulted? It is hard to find any substantial penalties or sanctions due to exposed or disclosed illegal activities by the NSA. To further the point that the NSA seems immune to prosecution or sanctions for its illegal activities is one case that was uncovered in the quarterly reports discussed earlier. “For the most part, the reports don’t appear to contain anything especially new, but I was struck by this particular violation: The OIG’s Office of Investigation initiated an investigation of an allegation than an NSA analyst had conducted an unauthorized intelligence activity. In an interview conducted by the NSA/CSS Office of Security and Counterintelligence, the analyst reported that, during the past two or three years, she had searched her spouse’s personal telephone directory without his knowledge to obtain names and telephone numbers for targeting….Although the investigation is ongoing, the analyst has been advised to cease her activities. Wait a second. She was caught using NSA surveillance facilities to spy on her husband and was merely told to cease her activities? Wouldn’t it be more appropriate to, say, fire her instantly and bar her from possessing any kind of security clearance ever again in her life? What am I missing here?” Mother Jones While the idea of spying on a spouse or maybe a significant other might not be a danger to National Security, it is still an obvious violation of the law, or at the least, a violation of the NSA’s rules that this analyst was supposed to be working under. As the Mother Jones link above suggests, shouldn’t this analyst be fired or maybe, God forbid, be prosecuted for illegally spying? Who can forget the case Professor Turley discussed in 2009 when it was discovered that the NSA was illegally attempting to wiretap members of Congress? Of course, Congress was outraged, just like Sen. Diane Feinstein was outraged when it was discovered that the CIA has been spying on the Senate’s computers. Of course heads rolled when the CIA admitted hacking into Senate computers, right? Uh, no, just a few apologies and the Senate moved on. The same immunity to the law and to common sense can be found at the NSA. What do we have to do to bring the NSA into legal bounds and prevent illegal and unauthorized spying on ordinary citizens and other agencies and branches of the government while at the same time acknowledging our need to spy on legitimate enemies? It seems obvious to this observer that the internal controls that are in place at the NSA are ineffective at best and likely useless at worst. Can The NSA or any intelligence agency investigate itself? Are internal agency watchdogs a waste of time? Would a civilian agency or board set up to oversee these rogue intelligence agencies be useful in bringing these agencies into compliance, and is that even possible in our current political climate? A quick review before the pop quiz; the NSA admits to spying illegally and not doing anything about it and there are no repercussions. How stupid are we to allow this to happen? Additional Source: Bloomberg “The views expressed in this posting are the author’s alone and not those of the blog, the host, or other bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.”

Specifically the executive fails to restrain the NSAButtar 14Shahid Buttar, civil rights lawyer who also leads the Bill of Rights Defense committee and is the Co-director of the Rule of Law Institute, “Beyond CIA and NSA Spying: Corruption,” May 19, 2014, The Huffington Post, http://www.huffingtonpost.com/shahid-buttar/beyond-cia-and-nsa-spying-corruption_b_4981558.html/NVNSA: Lies to Congress and the Public to Cover Up Mass Surveillance Observers from across the political spectrum have agreed that Director of National Intelligence James Clapper either misled Congress or lied outright when asked a straightforward question by Sen. Ron Wyden (D-Ore.) in a March 2013 Senate hearing. With advance notice, Clapper was asked whether the NSA collects "any type of data at all on millions ... of Americans." He answered, "No sir. Not wittingly." In June the Snowden revelations shocked the globe and proved that his statement was simply not true, not to mention self-serving. Many people have gone to prison for less-significant lies than that. Responding to Clapper's admittedly false answer to Wyden, seven Republican members of Congress wrote to the attorney general in December seeking a Justice Department investigation into potential perjury. They correctly noted, "Congressional oversight depends on truthful testimony," which is why "witnesses cannot be allowed to lie to Congress." Members of Congress from both parties and both chambers are not alone in calling for accountability: Citizens for Responsibility and Ethics in


Washington called for an investigation nearly a year ago, followed by the Bill of Rights Defense Committee and grassroots activists and organizations from across the country. Obama: On the Sidelines While His Legacy Is Sealed How else might we describe demonstrably false, self-serving statements by NSA officials paid by taxpayers to perform a public service, or CIA efforts to secretly hamstring investigations into their activities by the elected officials charged with overseeing them? In any country that claims to be a democracy, the most elegant answer is a single word -- corruption -- with crucial connotations for a contemporary debate that remains limited, even after the Snowden revelations. As members of Congress have challenged executive agencies covering up their crimes, President Obama has absurdly attempted to evade responsibility. This maneuver, like his initial decision to "look forward, not back" on torture, is what I described then as "an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world." President Obama's evasion is the antithesis of President Truman's reminder that "the buck stops here" and undermines his own prior commitment to releasing at least parts of the Senate's torture report. Coming from an administration that has accepted poorly deserved awards for transparency in ironically appropriate secret meetings, this tacit support for executive lawlessness is a spectacular -- though entirely unsurprising -- failure.


AT//Perception/Signal Solvency Deficits The counterplan may be process-based, but it still requires Presidential implementation of the aff – that solves any signaling args Brzezinski ‘12[Zbigniew Brzezinski, national security advisor under U.S. President Jimmy Carter, 12/3/12, Obama's Moment, www.foreignpolicy.com/articles/2012/12/03/obamas_moment]In foreign affairs, the central challenge now facing President Barack Obama is how to regain some of the ground lost in recent years in shaping U.S. national security policy. Historically and politically, in America's system of separation of powers, it is the president who has the greatest leeway for decisive action in foreign affairs. He is viewed by the country as responsible for Americans' safety in an increasingly turbulent world. He is seen as the ultimate definer of the goals that the U nited States should pursue through its

diplomacy, economic leverage, and, if need be, military compulsion. And the world at large sees him

-- for better or for worse -- as the authentic voice of America . To be sure, he is not a dictator. Congress has a voice. So does the public. And so do vested interests and foreign-policy lobbies. The congressional role in declaring war is especially important not when the United States is the victim of an attack, but when the United States is planning to wage war abroad. Because America is a democracy, public support for presidential

foreign-policy decisions is essential. But no one in the government or outside it can match the president's authoritative voice when he speaks and then decisively acts for America . This is true even in the face of determined opposition. Even when some lobbies succeed in gaining congressional support for their particular foreign clients in defiance of the president, for instance, many congressional signatories still quietly convey to the White House their readiness to support the president if he stands firm for "the national interest." And a president who is willing to do so publicly, while skillfully cultivating friends and allies on Capitol Hill, can then establish such intimidating credibility that it is politically unwise to confront him. This is exactly what Obama needs to do now.

Obama’s sufficiently credible to Goldsmith, 12 (Jack, Professor of Law at Harvard University, former assistant Attorney General to the Office of Legal Counsel under the Bush Administration; March 12, 2012; “Power and Constraint: The Accountable Presidency After 9/11”; W. W. Norton & Company; 1 edition)//JPMthe Obama team early on developed a reputation for restraint and commitment to the rule of law in its counterterrorism policies. This reputation helped legitimate the extraordinary powers the President must exercise in the long war against Islamist terrorists. The President simply cannot exercise these war powers over an indefinite period unless Congress and the courts support him. And they will not support him unless they think he is exercising his powers responsibly, under law, with real constraints, to address a real threat. The Obama administration successfully conveyed this impression and was rewarded for it. The administration's superficial changes to the military detention rationale, combined with President Obama's reputation for commitment to the rule of law, helped to make military detention relatively uncontroversial to judges. New internal procedures for employing the state secrets doctrine brought no apparent


change in the executive branch's employment of the doctrine. But it did help in the courts, one of which cited the procedures to support its conclusion that "the government is not invoking the privilege to avoid embarrassment or escape scrutiny" of its policies.50 The mall changes that Obama helped to foster in military commis-ions, combined with his robust embrace of them, put the commissions on a much stronger footing than they were under Bud . In these and other ways, the Obama administrations self-imposed checks combined with its reputation for law-abidingness and rhetoric of self-constraint to strengthen—and validate—the Bush counterterrorism program as it stood in late 2008.

Executive unilateral action solves the same signal of credibilityEric Posner 7, Professor of Law at The University of Chicago Law School, 8/10/2007, “The Credible Executive”, University of Chicago Law Review, 74 U. Chi. L. Rev. 865, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2737&context=journal_articlesWhere the executive is indeed ill motivated in any of these ways, constraining his discretion (more than the voters would otherwise choose) may be sensible. But the executive may not be ill motivated at all. Where the executive is in fact a faithful agent, using his increased discretion to promote the public good according to whatever conception of the public good voters hold, then constraints on executive discretion are all cost and no benefit. Voters, legislators, and judges know that different executive officials have different motivations. Not all presidents are power maximizers or empire builders.' Of course, the executive need not be pure of heart; his devotion to the public interest may in turn be based on concern for the judgment of history. But so long as that motivation makes him a faithful agent of the principal(s), he counts as well motivated. The problem, however, is that the public has no simple way to know which type of executive it is dealing with. An ill-motivated executive will just mimic the statements of a well-motivated one, saying the right things and offering plausible rationales for policies that outsiders, lacking crucial information, find difficult to evaluate-policies that turn out not to be in the public interest. The ability of the illmotivated executive to mimic the public-spirited executive's statements gives rise to the executive's dilemma of credibility: the wellmotivated executive has no simple way to identify himself as such. Distrust causes voters (and the legislators they elect) to withhold discretion that they would like to grant and that the well-motivated executive would like to receive. Of course, the ill-motivated executive might also want discretion. The problem is that voters who would want to give discretion (only) to the well-motivated executive may choose not to do so, because they are not sure what type he actually is. The risk that the public and legislators will fail to trust a well-motivated president is just as serious as the risk that they will trust an ill-motivated president, yet legal scholars have felled forests on the second topic while largely neglecting the first.' Our aim in this Article is to identify this dilemma of credibility that afflicts the well-motivated executive and to propose mechanisms for ameliorating it. We focus on emergencies and national security but cast the analysis within a broader framework. Our basic claim is that the credibility dilemma can be addressed by executive signaling. Without any new constitutional amendments, statutes, or legislative action, law and executive practice already contain resources to allow a wellmotivated executive to send a credible signal of his motivations, committing to use increased discretion in public-spirited ways. By tying policies to institutional mechanisms that impose heavier costs on ill


motivated actors than on well-motivated ones, the well-motivated executive can credibly signal his good intentions and thus persuade voters that his policies are those that

voters would want if fully informed. We focus particularly on mechanisms of executive self-binding that send a signal of credibility by committing presidents to actions or policies that only a well-motivated president would adopt.

Self-restraint solves credibilityEric Posner 7, Professor of Law at The University of Chicago Law School, 8/10/2007, “The Credible Executive”, University of Chicago Law Review, 74 U. Chi. L. Rev. 865, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2737&context=journal_articlesMore schematically, we may speak of formal and informal means¶ of self-binding: ¶ 1. The president might use formal means to bind himself. This is¶ possible in the sense that an executive order, if otherwise valid,¶ legally binds the president while it is in effect and may be enforced¶ by the courts. It is not possible in the sense that the

president¶ can always repeal the executive order if he can bear the political¶ and reputational costs of doing so.¶ 2. The president might use informal means to bind himself. This is¶ not only possible but frequent and important. Issuing an executive¶ rule providing for the appointment of special prosecutors,¶ as Nixon did, is not a formal self- binding." However, there may¶ be large political costs to repealing the order. This effect does¶ not depend on the courts' willingness to enforce the order, even¶ against Nixon himself. Court enforcement makes the order legally¶ binding while it is in place, but only political

and reputational¶ enforcement can protect it from repeal. Just as a dessert¶ addict might announce to his friends that he is going on a nodessert¶ diet in order to raise the reputational costs of backsliding¶ and thus commit himself, so, too, the executive's issuance of a¶ self-binding order can trigger reputational cos ts. In

such cases, repeal of an executive order may be seen as a breach of faith¶ even if no other institution ever enforces it.¶ In what follows, we will invoke both formal and informal

mechanisms.¶ For our purposes, the distinction between the authority to engage¶ in de jure self-binding (legally limited and well-defined) and the¶ power to engage in de facto self- binding (broad and amorphous) is¶ secondary. So long as policies are deliberately chosen with a view to¶ generating credibility , and do so by constraining the president's own¶ future

choices in ways that impose greater costs on ill-motivated¶ presidents than on well-motivated ones, it does not matter whether¶ the constraint is formal or informal.


AT//Presidential Overreach / Circumvention Internal checks ensure a culture of compliance Katyal ‘6[Prof National Security Law @ Georgetown. “Toward Internal Separation of Powers” Yale Law Journal 2006 ln]The downside of incorporating a presidential-overrule mechanism is that it may politicize the Director. The Director might fear being overruled and tailor opinions accordingly. But that dark scenario is unlikely to

unfold—a rational Director would appreciate the myriad reasons why a President’s formal power would not be exercised, such as fear of publicity and lack of expertise.89 Yet the formality trap looms far larger in executive power debates than it should. We do not clamor for legislation to restrict federal courts from issuing advisory opinions simply because they are the only ones to have announced this restriction on their

jurisdiction. So too we do not clamor for legislation to prevent Congress from easily

declaring war simply because it could. Instead, in both cases we rely on obvious internal checks . Here, too, publicity, expertise, and good judgment will make it structurally difficult for the President to overrule the Director in many instances. ¶ Government has confronted a similar problem before. The Ethics in Government Act of 1978 created something akin to a Director of Adjudication, albeit in the form of a prosecutor instead of a judge.90 The Independent Counsel lacked accountability and was often insensitive to a decision’s longterm cost.91 Congress eventually let these powers return to the Justice Department. But the Department then issued regulations creating Special Prosecutors removed from the day-to-day control and influence of political actors.92 Special Prosecutors are free to conduct their investigations and, after deciding on particular courses of action, must present their proposals to the Attorney General, who retains a veto power.

¶ Critics relied on the formality trap, arguing that internal regulations would falter under the Attorney General’s veto power. In response, the regulations required the Attorney General to notify Congress if he interfered with a Special Prosecutor. As a result, lines of accountability were preserved, so much that the Attorney General could be held responsible for trying to bury an investigation. Thus, the matter would receive political, though perhaps not public, oversight. Similarly, a presidential overruling of

the Director of Adjudication could trigger reporting to Congress. Congress, though unlikely to begin legislating after a single override (for

reasons offered in Part I), could use formal pressures of oversight hearings and informal pressures through

the media to demand some accountability. While the executive would therefore be accountable to the other branches, instead of directly to the public, these mechanisms would nevertheless function as a valuable constraint. Over time, a culture of compliance might emerge, in which Presidents would not second-guess the opinions of the Director except in extreme instances.

No Presidential abuse of powerRaven-Hansen 09Peter Raven-Hansen, received his B.A. and J.D. at Harvard University and teaches national security law, counterterrorism law and civil procedure and evidence at Georgetown Washington University, “Executive Self-Controls: Madison's Other Check on National Security Initiatives By The Executive,” Spring of 2009, Journal of Civil Rights and Economic Development Volume 23 Issue 4, http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1051&context=jcred/NVFirst, neither the President nor the Vice President can systematically bypass such internal checks because neither actually does anything. They are only "Deciders." The President, after all, is not charged by the Constitution with executing the law, although we often say that in a sloppy paraphrase of the actual text. He's charged with "tak[ing] care that the laws be faithfully executed."19 The Decider is inevitably dependent on others to carry out his decision. He can issue a military order ordering trial by military commission for enemy combatants, but he must use the JAG lawyers ultimately to develop the procedures by which the commissions operate and to operate the commissions. He can order surveillance, but has to use career lawyers in the Justice Department



to implement FISA, or even to circumvent it to operate the Terrorist Surveillance Program. The result is that he necessarily is going to run into some of the internal checks I have described, no matter how bent he is on blowing through them. Secondly, while the President or Vice President, or their delegates, can try to change the architecture of decision making, (alter the inter-agency process), they cannot change the agency or lawyer culture nearly as quickly. The lawyer culture is implanted in law school and nurtured in practice, taking years and years to develop. As a result, it also takes years and years to root it out.

Internal constraints check Metzger 09 Gillian E. Metzger, is a United States Constitutional Law scholar and a professor of law at Columbia University, “THE INTERDEPENDENT RELATIONSHIP BETWEEN INTERNAL AND EXTERNAL SEPARATION OF POWERS,” October 7, 2009, Columbia Law School Public Law and Legal Theory Working Paper Group, Google Scholar/NVYet it does not follow that efforts to strengthen internal checking mechanisms are necessarily misdirected. The potential separation of powers benefits of such mechanisms, particularly given the limitations of external checks, makes these efforts worthwhile.85 Moreover, high profile political disputes are too narrow a frame against which to assess the effectiveness of internal constraints. Even if unable to check a determined president in contexts of deep political disagreement, internal constraints may still prove potent in more run of the mill policy disputes or in contexts in which political allegiances are more divided. Nor does this mean that internal constraints are ineffective just when it counts. To the contrary, high-profile political disputes are arguably situations in which presidents should be able to implement their policies of choice in order to ensure democratic accountability of the executive branch, assuming these policies accord with governing law. In such contexts, success and effectiveness for internal constraints may be better understood not as forestalling presidential control of policy but rather as ensuring that contentious policy choices are made by the president and that the president’s role.

The Executive can check itself – incentives will stay their handSales 12Sales 2012 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law & Policy, 6.227, “Self-Restraint and National Security/NVMuch of the caselaw and scholarship concerning national security rests on the assumption that the executive branch is institutionally prone to overreach - that, left to its own devices, it will inch ever closer to the line that separates illegal from legal, and sometimes enthusiastically leap across it. The obvious conclusion is that external, principally judicial, checks are needed to keep the Executive in line.2 In many cases the Executive does indeed push the envelope. But not always.' The government often has powerful incentives to stay its own hand -

to forbear from military and intelligence operations that it believes are perfectly legal. Officials may conclude that a proposed mission - a decapitation strike on al Qaeda's leadership, say, or the use of mildly coercive interrogation techniques on a captured terrorist - is entirely permissible under domestic and international law. Yet they nevertheless might rule it out. In other words, the government sometimes adopts self-restraints that limit its ability to conduct operations it regards as legally justified; it "fight[s] with one hand behind its back," to borrow Aharon Barak's memorable phrase.4 This article tries to explain


these restraints by consulting public choice theory - in particular, the notion that government officials are rationally self-interested actors who seek to maximize their respective welfare. Part I develops an analytical framework. Part II identifies four examples of self- restraint. Parts III and IV offer hypotheses for why the government adopts them. One example of self-restraint is Executive Order 13,491, which limits counterterrorism interrogations, including those conducted by the CIA, to the techniques listed in the Army Field Manual. The AFM prohibits or severely restricts a number of fairly mild interrogation methods such as low-grade threats, the "good cop, bad cop" routine, and other staples of garden-variety law enforcement investigations. A second example, sketched above, is the White House's onetime reluctance to use targeted killings against Osama bin Laden, despite its belief that doing so would be consistent with domestic and international laws against assassination. Third, lawyers in the Judge Advocate General corps sometimes reject military strikes that would be permissible under the law of war, but that they regard as problematic for moral, economic, social, or political reasons. A fourth example is the Justice Department's erection of a "wall" that restricted information sharing between intelligence officials and criminal investigators, despite the fact that the applicable statute (the Foreign Intelligence Surveillance Act of 1978) contained no such limits, and despite the fact that the governing DOJ guidelines established mechanisms for swapping such data. The question then becomes why officials adopt these restraints even when they believe them to be legally unnecessary. Public choice theory suggests two possible explanations. First, self-restraint might result from systematic asymmetries in military and intelligence officials’ expected value calculations. The expected costs of a given national security operation often dwarf the expected benefits; officials have more to lose from being aggressive than they have to gain. In particular, operations – even concededly lawful ones – can inspire adversaries to launch demoralizing propaganda campaigns accusing the United States of war crimes, can sap the willingness of allies to assist this country, and can even result in criminal prosecutions or private lawsuits against the responsible officials. In addition, the resulting costs can be internalized onto the responsible officials more easily than the resulting benefits. While all national security players experience a degree of costbenefit asymmetry, some experience more than others. In particular, the senior policymakers who approve operations, and the lawyers who review them, seem even more cautious than the operators who actually carry them out. This may be because policymakers and lawyers discount some of the benefits that operators expect to gain (e.g., certain forms of psychic income), and also account for certain costs that operators overlook (e.g., ramifications for the country’s broader strategic priorities). Policymakers and lawyers therefore will veto proposed missions when they calculate – as they often will – that their costs exceed their benefits. Second, self-restraint might result from bureaucratic “empire building,”5 as lawyers and other officials seek to magnify their clout by rejecting operations planned by their inter- and intra-agency competitors. Military and intelligence figures seek to maximize, among other values, the influence they hold over senior policymakers as well as autonomy to pursue the priorities they deem important. One way for an official to do that is to interfere with a rival’s plans. A bureaucratic player typically gains no power by serving as a competitor’s yes man. Often, it gains by saying no, because its obstruction forces the rival to be responsive to its concerns. Reviewers in the government’s national security apparatus therefore will veto operations planned by other entities when doing so will enhance their welfare.

Presidents restrict themselves – credibility Sales 12Sales 2012 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law & Policy, 6.227, “Self-Restraint and National Security/NVMy use of this analytical framework is not intended to deny the validity of other possible explanations for self-restraint. For instance, Eric Posner and Adrian Vermeule argue that Presidents have an incentive to engage in “self binding,” because it will enhance their


credibility and “generate support from the public and other members of the government.”45 Elizabeth Magill likewise argues that bureaucrats sometimes find it advantageous to “self-regulate” – i.e., “limit their options when no source of authority requires them to do so” – as a means of controlling subordinates , inducing reliance by outside parties, and entrenching today’s policy choices.46 Still more

accounts emerge if we widen the analytical lens beyond public choice principles. One might explain self-restraints by consulting theories of bounded rationality – the notion that imperfect information, cognitive failures, and other factors prevent bureaucratic players from accurately measuring the expected costs and benefits of a given action.47 Or one might look to new institutionalism – the notion that bureaucratic outputs are determined in large part by organizations’ cultures, histories, and structures.48 And, of course, there are the public interest explanations: Officials might embrace a particular restraint because they believe in good faith that it represents sound public policy. The public interest framework may actually complement, not contradict, this article’s public choice story. One of the reasons officials might build their bureaucratic empires is because they calculate that doing so will position them to achieve desirable policy outcomes. In any event, the point of this article is to generate hypotheses that can account for the occasional tendency of national security figures to restrain themselves. Other frameworks are likely to yield equally plausible alternative hypotheses.

Qualified studies support out pointSales 12Sales 2012 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law & Policy, 6.227, “Self-Restraint and National Security/NVThis Part identifies four examples of self-restraint in military and intelligence operations – that is, circumstances in which officials vetoed a mission despite their belief that it was perfectly lawful. In 2009, the White House barred counterterrorism investigators from using any interrogation technique other than the limited methods in the Army Field Manual. In the late 1990s, Clinton administration officials rejected the CIA’s plans to kill Osama bin Laden. Members of the military’s JAG Corps have recommended against air strikes that might result in adverse publicity or other harms. And in the mid-1990s, Justice Department officials erected a “wall” that kept the DOJ’s intelligence analysts from sharing information with its criminal investigators.49 In each instance, the government’s reason for adopting these restraints was not that it believed them to be legally necessary. To the contrary, officials – often but not always lawyers – concluded that the relevant laws allowed them to carry out the operation in question, but they nevertheless vetoed it. Self-restraints thus supplement what the law requires; officials proscribe conduct that the applicable laws do not actually reach. In other words, military and intelligence figures sometimes overenforce the relevant legal norms. I do not mean to suggest that the quantity of legal enforcement is suboptimally high – i.e., that it would be efficient or otherwise preferable for some conduct that is unlawful to go unpunished. Rather, by overenforcement I mean officials’ occasional tendency to restrict themselves from acting in ways that are not in fact unlawful (or, more precisely, that they do not regard as unlawful).50 A. Interrogation The first example of self-restraint is also the most recent. On January 22, 2009, his second full day in office, President Barack Obama announced a clean break from his predecessor’s interrogation policies. The George W. Bush administration had incurred widespread condemnation for authorizing the CIA to subject several captured al Qaeda leaders to aggressive questioning methods, including waterboarding, a form of simulated drowning. Executive Order 13,491 – which reportedly was the brainchild of lawyers in the White House Counsel’s Office51 –


directed that anyone detained by the United States in an armed conflict “shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2- 22.3.”52 The AFM, the current version of which was adopted in 2006, is quite restrictive. In addition to prohibiting severe coercion like waterboarding, it rules out mildly coercive methods that are commonly used in ordinary criminal investigations in precincts throughout the country. These new limits are hailed by many as sound policy, but they probably are not legally necessary. Or, to be more precise, the Army Field Manual restrictions almost certainly go farther than what the White House believes is legally required. Administration lawyers thus supplemented the domestic and international prohibitions on torture and coercion, ruling out some relatively benign techniques that they likely do not regard as illegal.


AT//Private Sector Circumvention The private sector is restrained and anti-surveillance Wyatt and Miller 13 [Edward and Claire Cain, New York Times Financial Reporter, Ms. Miller is a graduate of Yale University and the University of California at Berkeley’s Graduate School of Journalism., Tech Giants Issue Call for Limits on Government Surveillance of Users, http://www.nytimes.com/2013/12/09/technology/tech-giants-issue-call-for-limits-on-government-surveillance-of-users.html?pagewanted=all&_r=0] SchlossEight prominent technology companies, bruised by revelations of government spying on their customers’ data and scrambling to repair the damage to their reputations, are mounting a public campaign to urge President Obama and Congress to set new limits on government surveillance.¶ Executive Appeal¶ Executives from prominent technology companies called for greater limits on government surveillance of their

users.¶ Reports about government surveillance have shown there is a real need for greater disclosure and new limits on how governments collect information. The U.S.

government should take this opportunity to lead this reform effort and make things right.¶ —Mark Zuckerberg, Facebook¶ Larry Page, chief of Google, called for reform of security laws worldwide, saying, “We urge the U.S. government to lead the way.”¶ On Monday the companies, led by Google and Microsoft, presented a plan to regulate online spying and urged the United States to lead a worldwide effort to restrict it. They accompanied it with an open letter, in the form of full-page ads in national newspapers, including The New York Times, and a website detailing their concerns.¶ It is the broadest and strongest effort by the companies, often archrivals, to speak with one voice to pressure the government. The tech industry, whose billionaire founders and executives are highly sought as political donors, forms a powerful interest group that is increasingly flexing its muscle in Washington.¶ “It’s now in their business and economic interest to protect their users’ privacy and

to aggressively push for changes,” said Trevor Timm, an activist at the Electronic Frontier Foundation. “The N.S.A. mass-surveillance programs exist for a simple reason: cooperation with the tech and telecom companies. If the tech companies no longer want to cooperate, they have a lot of leverage to force significant reform.”¶ The political push by the technology companies opens a third front in their battle against government surveillance, which has escalated with recent revelations about government spying without the companies’ knowledge. The companies have also been making technical changes to try to thwart spying and have been waging a public-relations campaign to convince users that they are protecting their privacy.¶ “People won’t use technology they don’t trust,” Brad Smith, Microsoft’s general counsel, said in a statement. “Governments have put this trust at risk, and governments need to help restore it.”¶ Apple, Yahoo, Facebook, Twitter, AOL and LinkedIn joined Google and Microsoft in saying that they believed in governments’ right to protect their citizens. But, they said, the spying revelations that began last summer with leaks of National Security Agency materials by Edward J. Snowden showed

that “the balance in many countries has tipped too far in favor of the state and away from the rights of the individual.”¶ The Obama administration has already begun a review of N.S.A. procedures in reaction to public outrage. The results of that review

could be presented to the White House as soon as this week.¶ “Having done an independent review and brought in a whole bunch of folks — civil libertarians and lawyers and others — to examine what’s being done, I’ll be proposing some self-restraint on the N.S.A., and you know, to initiate some reforms that can give people more confidence,” Mr. Obama said Thursday on the MSNBC program “Hardball.”¶ While the Internet companies fight to maintain authority over their customers’ data, their business models depend on collecting the same information that the spy agencies want, and they have long cooperated with the government to some extent by handing over data in response to legal requests.¶ The new principles outlined by the companies contain little information and few promises about their own practices, which privacy advocates say contribute to the government’s desire to tap into the companies’ data systems.¶ “The companies are placing their users at risk by collecting and retaining so much information,” said Marc Rotenberg, president and executive director of the Electronic Privacy Information Center, a nonprofit research and advocacy organization. “As long as this much personal data is collected and kept by these companies, they are always going to be the target of government collection efforts.”¶ For instance, Internet companies store email messages, search queries, payment details and other personal information to provide online services and show personalized ads.¶ They are trying to blunt the spying revelations’ effects on their businesses. Each disclosure risks alienating users, and foreign governments are considering laws that would discourage their citizens from using services from American Internet companies. The cloud computing industry could lose $180 billion, or a quarter of its revenue, by 2016, according to Forrester Research.¶ Telecom companies, which were not included in the proposal to Congress, have had a closer working relationship with the government than the Internet companies, such as longstanding partnerships to hand over customer information. While the

Internet companies have published so-called transparency reports about government requests, for example, the telecoms have not.¶ “For the phone companies,” said Tim Wu, a professor at Columbia studying the Internet and the law, “help with federal spying is a longstanding tradition with roots in the Cold War. It’s another

area where there’s a split between old tech and new tech — the latter taking a much more libertarian position.”¶ The new

http://www.nytimes.com/2013/12/09/technology/tech-giants-issue-call-for-limits-on-government-surveillance-of-users.html?pagewanted=all&_r=0

http://www.nytimes.com/2013/12/09/technology/tech-giants-issue-call-for-limits-on-government-surveillance-of-users.html?pagewanted=all&_r=0


surveillance principles, the Internet companies said, should include limiting governments’ authority to collect users’ information, setting up a legal system of oversight and accountability for that authority, allowing the companies to publish the number and nature of the demands for data, ensuring that users’ online data can be stored in different countries and establishing a framework to govern data requests between countries.¶ In a statement, Larry Page, Google’s co-founder and chief executive, criticized governments for the “apparent wholesale collection of data, in secret and without independent oversight.” He added, “It’s time for reform and we urge the U.S. government to lead the way.”¶ In their open letter, the companies maintain they are fighting for their customers’ privacy. “We are focused on keeping users’ data secure,” the letter said, “deploying the latest encryption technology to prevent unauthorized surveillance on our networks, and by pushing back on government requests to ensure that they are legal and reasonable in scope.”¶ The global principles outlined by the companies make no specific mention of any country and call on “the world’s governments to address the practices and laws regulating government surveillance of individuals and access to their information.” But the open letter to American officials specifically cites the United States Constitution as the guidepost for new restrictions on

government surveillance.¶ Chief among the companies’ proposals is a demand to write “sensible limitations” on the ability of government agencies to compel Internet companies to disclose user data, forbidding the wholesale vacuuming of user information.


Executive Flexibility Net Benefit ***note: lots more link and impact work for this in the MAGS “war powers DA”


1nc Exec Flex N/BThe counterplan sufficiently curtails surveillance while maintaining crisis flexibility Neal Katyal 6, prof, Georgetown law, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314This Essay's proposed reforms reflect a more textured conception of the presidency than either the unitary executivists or their

critics espouse. In contrast to the unitary executivists, I believe that the simple fact that the President should be in control of the executive branch does not answer the question of how institutions should be structured to encourage the most robust flow of advice to the President. Nor does that fact weigh against modest internal checks that, while subject to presidential override, could constrain presidential adventurism on a day-to-day basis. And in contrast to the doubters of the unitary executive, I believe a unitary executive serves important values, particularly in times of crisis . Speed and dispatch are

often virtues to be celebrated.¶ Instead of doing away with the unitary executive , this Essay proposes designs that force internal checks but permit temporary departures when the need is great . Of course, the risk of incorporating a presidential override is that its great formal power will eclipse everything else, leading agency officials to fear that the President will overrule or fire them. But just as a filibuster does not tremendously constrain presidential action, modest internal checks, buoyed by reporting requirements, can create sufficient deterrent costs.¶ [*2319] Let me offer a brief word about what this Essay does not attempt. It does not propose a far-reaching internal

checking system on all presidential power, domestic and foreign. Instead, this Essay takes a case study, the war on terror, and uses the collapse of external checks and balances to demonstrate the need for internal ones . In this arena, public accountability is low - not only

because decisions are made in secret, but also because they routinely impact only people who cannot vote (such as detainees). In addition to these process defects, decisions in this area often have subtle long-term consequences that short-term executivists may not fully appreciate. n9

The alternative to executive flexibility is a laundry list of conflicts that escalate to war Yoo 13 - Emanuel S. Heller Professor of Law at UC-Berkeley Law, visiting scholar at the American Enterprise Institute, former Fulbright Distinguished Chair in Law at the University of Trento, served as a deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice between 2001 and 2003, J.D. from Yale and degree from Harvard (John, “Like it or not, Constitution allows Obama to strike Syria without Congressional approval,” Fox News, 8-30-13, http://www.foxnews.com/opinion/2013/08/30/constitution-allows-obama-to-strike-syria-without-congressional-approval/) //ADThe most important of the president’s powers are commander-in-chief and chief executive.¶ As Alexander Hamilton wrote in Federalist 74, “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.” ¶ Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy, and dispatch.” In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in the definition of good government. . . It is essential to the protection of the community against foreign attacks.” ¶ The Framers realized the obvious. Foreign affairs are

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http://www.foxnews.com/opinion/2013/08/30/constitution-allows-obama-to-strike-syria-without-congressional-approval/


unpredictable and involve the highest of stakes, making them unsuitable to regulation by pre-existing legislation. Instead, they can demand swift, decisive action, sometimes under pressured or even emergency circumstances, that are best carried out by a branch of government that does not suffer from multiple vetoes or is delayed by disagreements. ¶ Congress is too large and unwieldy to take the swift and decisive action required in wartime. ¶ Our Framers replaced the Articles of Confederation, which had failed in the management of foreign relations because it had no single executive, with the Constitution’s single president for precisely this reason. Even when it has access to the same intelligence as the executive branch, Congress’s loose, decentralized structure would paralyze American policy while foreign threats grow. ¶ Congress has no political incentive to mount and see through its own wartime policy. Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of the electorate. They prefer that the president take the political risks and be held accountable for failure.¶ Congress's track record when it has opposed presidential leadership has not been a happy one. ¶ Perhaps the most telling example was the Senate's rejection of the Treaty of Versailles at the end of World War I. Congress's isolationist urge kept the United States out of Europe at a time when democracies fell and fascism grew in their place. Even as Europe and Asia plunged into war, Congress passed Neutrality Acts designed to keep the United States out of the conflict.¶ President Franklin Roosevelt violated those laws to help the Allies and draw the nation into war against the Axis. While pro-Congress critics worry about a president's foreign adventurism, the real threat to our national security may come from inaction and isolationism.¶ Many point to the Vietnam War as an example of the faults of the “imperial presidency.” Vietnam, however, could not have continued without the consistent support of Congress in raising a large military and paying for hostilities. And Vietnam ushered in a period of congressional dominance that witnessed American setbacks in the Cold War, and the passage of the ineffectual War Powers Resolution. Congress passed the Resolution in 1973 over President Nixon's veto, and no president, Republican or Democrat, George W. Bush or Obama, has ever accepted the constitutionality of its 60-day limit on the use of troops abroad. No federal court has ever upheld the resolution. Even Congress has never enforced it.¶ Despite the record of practice and the Constitution’s institutional design, critics nevertheless argue for a radical remaking of the American way of war. They typically base their claim on Article I, Section 8, of the Constitution, which gives Congress the power to “declare War.” But these observers read the eighteenth-century constitutional text through a modern lens by interpreting “declare War” to mean “start war.” ¶ When the Constitution was written, however, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain – where the Framers got the idea of the declare-war power – fought numerous major conflicts but declared war only once beforehand.¶ Our Constitution sets out specific procedures for passing laws, appointing officers, and making treaties. There are none for waging war, because the Framers expected the president and Congress to struggle over war through the national political process.¶ In fact, other parts of the Constitution, properly read, support this reading. Article I, Section 10, for example, declares that the states shall not “engage” in war “without the consent of Congress” unless “actually invaded, or in such imminent Danger as will not admit of delay.” ¶ This provision creates exactly the limits desired by anti-war critics, complete with an exception for self-defense. If the Framers had wanted to require congressional permission before the president could wage war, they simply could have repeated this provision and applied it to the executive.¶ Presidents, of course, do not have complete freedom to take the nation to war. Congress has ample powers to control presidential policy, if it wants to. ¶ Only Congress can raise the military, which gives it the power to block, delay, or modify war plans.¶ Before 1945, for example, the United States had such a small peacetime military that presidents who started a war would have to go hat in hand to Congress to build an army to fight it. ¶ Since World War II, it has been Congress that has authorized and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically on 9/11) and to swiftly project power worldwide. ¶ If Congress wanted to discourage presidential initiative in war, it could build a smaller, less offensive-minded military. ¶ Congress’s check on the presidency lies not just in the long-term raising of the military. It can also block any immediate armed conflict through the power of the purse.¶ If Congress feels it has been misled in authorizing war, or it disagrees with the president's decisions, all it need do is cut off funds, either all at once or gradually.¶ It can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the power of the purse does not even require affirmative congressional action.¶ Congress can just sit on its hands and refuse to pass a law funding the latest presidential adventure, and the war will end quickly. ¶ Even the Kosovo war, which lasted


little more than two months and involved no ground troops, required special funding legislation.¶ The Framers expected Congress's power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.” Congress ended America’s involvement in Vietnam by cutting off all funds for the war.¶ Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’s funding power. If a president continues to wage war without congressional authorization, as in Libya, Kosovo, or Korea, it is only because Congress has chosen not to exercise its easy check.¶ We should not confuse a desire to escape political responsibility for a defect in the Constitution. A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security. ¶ In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility. ¶ It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed and secrecy. ¶ The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. ¶ Presidents can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the Framers left war to politics.¶ As we confront the new challenges of terrorism, rogue nations and WMD proliferation, now is not the time to introduce sweeping, untested changes in the way we make war.


AT//Permutation – Do Both Executive action ALONE is key to effective flexibility – the counterplan is superior to the permutation because it keeps Congress and the Courts out of the equation Bellia 2 [Patricia, Professor of Law Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1089&context=law_faculty_scholarship] SchlossTo see the problems in giving dispositive weight to inferences from congressional action (or inaction), we need only examine the similarities between courts' approach to executive power questions and courts' approach to federal-state preemption questions. If a state law conflicts with a specific federal en- 287 actment, or if Congress displaces the state law by occupying the field,"'8 a court cannot give the state law effect. Similarly, if executive action conflicts with a specific congressional policy (reflected in a statute or, as Youngstown suggests, legislative history), or if Congress passes related measures not authorizing the presidential conduct, courts cannot give the executive action effect.289 When Congress is silent, however, the state law will stand; when Congress is silent, the executive action will stand. This analysis makes much sense with respect to state governments with

reserved powers, but it makes little sense with respect to an Executive Branch lacking such powers. The combination of congressional silence and judicial inaction has the practical effect of creating power.¶ Courts' reluctance to face questions about the scope of the President's constitutional powers-express

and implied-creates three other problems. First, the implied presidential power given effect by virtue of congressional silence and judicial inaction can solidify into a broader claim . When the Executive exercises an "initiating" or "concurrent" power, it will tie that power to a textual provision or to a claim about the structure of the Constitution . Congress's silence as a practical matter tends to validate the executive rationale , and the Executive Branch may then claim a power not only to exercise the disputed authority in the face of congressional silence, but also to exercise the disputed authority in the face of congressional opposition. In other

words, a power that the Executive Branch claims is "implied" in the Constitution may soon become an "implied" and "plenary" one. Questions about

presidential power to terminate treaties provide a ready example. The Executive's claim that the President has the power to terminate a treaty-the power in controversy in Goldwater v. Carter, where Congress was silent-now takes a stronger form: that congressional efforts to curb the power are themselves unconstitutional.29 °

The permutation links to our flexibility DADeats ’10 (Caleb, J.D. Candidate, Columbia Law School, 7/2/10, “Obliging The Executive Branch To Control Itself,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633922)2. Restraining the Executive’s Interpretive Power Weakens the Government’s Ability to Respond to Crises. --- Second, one might argue that restraining the executive’s interpretive power might devastatingly weaken the country’s ability to confront emergencies, particularly threats to national security. As Professor Goldsmith notes, “sharp disagreement over the requirements of national security law and the meaning of the imponderable phrases of the U.S. Constitution” exists even within the executive branch: “Whether and how aggressively to check the terrorist threat, and whether and how far to push the law in so doing, are rarely obvious, especially during blizzards of frightening reports, when one is blinded by ignorance and desperately worried about not doing enough.”51 Disagreement in Congress over these


http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1089&context=law_faculty_scholarship


issues would presumably prove more intractable than that within the executive branch . Moreover, airing these issues in courts would likely require disclosure of classified information . Thus, requiring the executive to defer to other branches when parsing these “imponderable phrases” prevents the swift resolution of controversy that results from consolidating authority in the President. As Hamilton writes, “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution . . . .”52 However, while the this paper’s proposal may prescribe procedures that cannot adequately resolve emergencies, designing procedures with emergencies in mind seems more likely to pervert normal politics than it does to adequately resolve such extraordinary situations. No set of procedures can provide for every eventuality. Moreover, as Justice Jackson wrote, dissenting in Korematsu, “if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.”53 Once we incorporate emergency exceptions into the Constitution, such exceptions will increase in number until they cease to be exceptional.54 Professor Goldsmith adverts to the danger of confusing the exception with the norm when he describes the terrorist threat as a “permanent emergency.”55 Thus, if we must in emergencies rely on “leaders who will be beholden to constitutional values,” we should do so completely, i.e. without creating procedural justifications for doing so. A different approach might substitute “leaders” for procedures simply by making the two indistinguishable.

Unimpeded executive authority over domestic surveillance is key Yoo, 14 (John C., Harvard alma mater, Yale Law grad, clerked for Justice Clarence Thomas of the U.S. Supreme Court, served as general counsel of the U.S. Senate Judiciary Committee from 1995-96. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers; 2014; The Legality of the National Security Agency's Bulk Data Surveillance Programs; http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3432&context=facpubs)//JPM

The need for executive authority over electronic intelligence ¶ gathering becomes apparent when we consider the facts of the war ¶ against al Qaeda . In the hours and days after 9/11, members of the ¶ government thought that al Qaeda would try to crash other airliners or ¶ use a weapon of mass destruction in a major East Coast city, probably ¶ Washington, D.C . In response, combat air patrols began flying above¶ New York and Washington. Suppose a plane was hijacked and would¶ not respond to air traffic controllers. It would be reasonable for U.S. ¶ anti-terrorism personnel to intercept any radio or cell phone calls to ¶ or from the airliner, in order to discover the hijackers' intentions,¶ what was happening on the plane, and ultimately whether it would be¶ necessary for the fighters to shoot down the plane. Under the civil ¶ libertarian approach to privacy, the government could not monitor the ¶ suspected hijackers' phone or radio calls unless they received a ¶ judicial warrant first-the calls, after all, are electronic ¶ communications within the United States. A warrant would be hard to get because it is unlikely that the government would then know the ¶ identities of all the hijackers, who might be U.S. citizens or permanent ¶ resident aliens. But because the U.S. is in a state of war, the military ¶ can intercept the communications of the plane to see if it poses a ¶ threat, and target the enemy if necessary-without a judicial warrant,¶ because the purpose is not arrest and trial, but to prevent an attack.¶ This comports far better with


the principle of reasonableness that¶ guides the Fourth Amendment.¶ As Commander-in-Chief, the President has the constitutional ¶ power and the responsibility to wage war in response to a direct attack ¶ against the United States . In the Civil War, President Lincoln¶ undertook several actions-raised an army, withdrew money from the¶ treasury, launched a blockade-on his own authority in response to¶ the Confederate attack on Fort Sumter. Congress and the Supreme¶ Court later approved Lincoln's moves.8 4 During World War II, the¶ Supreme Court similarly recognized that once war began, the ¶ President's authority as Commander-in-Chief and Chief Executive ¶ gave him the tools necessary to effectively wage war. 5 In the wake of ¶ the 9/11 attacks, Congress agreed that "the President has authority ¶ under the Constitution to take action to deter and prevent acts of ¶ international terrorism against the United States," which recognizes ¶ the President's authority to use force to respond to al Qaeda, and any ¶ powers necessary and proper to that end.86 ¶ Even legal scholars who argue against this historical practice¶ concede that once the United States has been attacked, the President ¶ can respond immediately with force. The ability to collect intelligence ¶ is intrinsic to the use of military force . It is inconceivable that the ¶ Constitution would vest in the President the powers of Commander in-Chief ¶ and Chief Executive, give him the responsibility to protect the ¶ nation from attack, but then disable him from gathering intelligence ¶ to use the military most effectively to defeat the enemy. All evidence of¶ the Framers'

understanding of the Constitution supports the notion ¶ that the government would have every ability to meet a foreign ¶ danger . As James Madison wrote in The Federalist, "security against foreign danger is one of the primitive objects of civil society."8 7¶ Therefore, the "powers requisite for attaining it must be effectually¶ confided to the federal councils."88 After World War II, the Supreme¶ Court declared, "this grant of war power includes all that is necessary ¶ and proper for carrying these powers into execution." Covert ¶ operations and electronic surveillance are clearly part of this ¶ authority.¶ During the writing of the Constitution, some Framers believed that ¶ the President alone should manage intelligence because only he could ¶ keep secrets. 90 Several Supreme Court cases have recognized that the ¶ President's role as Commander-in-Chief and the sole organ of the ¶ nation in its foreign relations must include the power to collect ¶ intelligence .91 These

authorities agree that intelligence rests with the ¶ President because its structure allows it to act with unity, secrecy, and ¶ speed . ¶ Presidents have long ordered electronic surveillance without any ¶ judicial or congressional participation.

Keeping congress out of the equation is key Yoo, 7 (John, Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute, 3/27/7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975333) KWCritics of the NSA program want to overturn American historical practice in favor of a new and untested theory about the wartime powers of the President and Congress.256 We should encourage innovation and creativity in our intelligence and military-and the NSA program is precisely that-to



confront the unprecedented challenges of al Qaeda. For too long, our system retarded aggressive measures to pre-empt terrorist attacks. 257 But seeking to give Congress the dominant hand in setting wartime policy would render our tactics against al Qaeda less, rather than more, effective . It would slow down decisions, make sensitive policies and intelligence public, and encourage risk aversion rather than risk taking. Requiring the President to obtain Congressional approval prior to every important policy change ignores the reality the al Qaeda challenge presents .

Executive CIC powers vital to deter conflict – the plan and permutation both undermine crucial tools in the fight against terrorism Yoo, 14 (John C., Harvard alma mater, Yale Law grad, clerked for Justice Clarence Thomas of the U.S. Supreme Court, served as general counsel of the U.S. Senate Judiciary Committee from 1995-96. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers; 2014; The Legality of the National Security Agency's Bulk Data Surveillance Programs; http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3432&context=facpubs)//JPMIt is al Qaeda's nature as a decentralized network that pressures ¶ the normal division between military and intelligence surveillance and ¶ the warrant- based approach of the criminal justice system. The ¶ Constitution vests the President with the executive power and ¶ designates him Commander-in-Chief .2 The Framers understood these ¶ powers to place the duty on the executive to protect the nation from¶ foreign attack and the right to control the conduct of military ¶ hostilities.3 To exercise that power effectively, the President must have ¶ the ability to engage in electronic surveillance that gathers intelligence ¶ on the enemy . Regular military intelligence need not follow standards ¶ of probable cause for a warrant or reasonableness for a search , just as¶ the use of force against the enemy does not have to comply with the ¶ Fourth Amendment. During war, military signals intelligence might ¶ throw out a broad net to capture all communications within a certain ¶ area or by an enemy nation . Unlike the criminal justice system, which¶ seeks to detain criminals,

protection of national security need not rest ¶ on particularized suspicion of a specific individual. ¶ This approach applies to national security activity that occurs ¶ within the U nited States as well as outside it. In 1972, the Supreme Court refused to subject surveillance for national security purposes to¶ the Fourth Amendment warrant requirement.4 It has extended these¶ protections to purely domestic terrorist groups, out of concern that ¶ the government might use its powers to suppress political liberties. ¶ Lower courts , however, have found that when the government ¶ conducts a search of a foreign power or its agents, it need not meet the ¶ requirements that apply to criminal law enforcement. In a leading¶ 1980 case, the Fourth Circuit held that

" the needs of the executive are ¶ so compelling in the area of foreign intelligence, unlike the area of ¶ domestic security, that a uniform


warrant requirement would unduly ¶ frustrate the President in carrying out his foreign affairs ¶ responsibilities. "5 A warrant for national security searches would¶ reduce the flexibility of the executive branch, which possesses "unparalleled expertise to make the decision whether to conduct¶ foreign intelligence surveillance" and is "constitutionally designated as¶ the pre-eminent authority in foreign affairs ." 6 A warrant requirement ¶ would place the national security decisions in the hands of the ¶ judiciary, which "is largely inexperienced in making the delicate and ¶ complex decisions that lie behind foreign intelligence surveillance. "7¶ Under this framework, Presidents had conducted national security ¶ surveillance under their executive authority for decades. President¶ Nixon's abuses, however, led Congress to enact the FISA in 1978.s¶

President best suited to deal with threats – only one that can act quickly and secretlyYoo, 7 (John, Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute, 3/27/7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975333) KWCritics of the NSA program appeal to the Constitution as it works in peacetime, when Congress authorizes a policy and the President carries it out.2 " Critics imagine that the Constitution requires the President to check back with Congress on every strategy and tactic in the war on terrorism.2 5 The NSA program is thus illegal, they say, because President Bush neglected to obtain yet another amendment to FISA approving it.206 It is true that Congress offers more transparency and perhaps greater accountability to the public.0 7 But it should also be clear that, over time, the Presidency has gained the leading role in war and national security because of its superior ability to take the initiative in response to emergencies.0 8War's unpredictability makes unique demands for decisive and often secret action. John Locke first observed that a constitution ought to give the foreign affairs power to the executive because foreign threats are "much less capable to be directed by antecedent, standing, positive [f]aws" and the executive can act to protect the "security and interest of the public .... Legislatures are too slow and its members too numerous to respond effectively to unforeseen situations."0 "Many things there are, which the [1]aw can by no means provide for; and those must necessarily be left to the discretion of him that has the [e]xecutive power in his hands, to be ordered by him as the public good and advantage shall require."2 " 1

Presidents empirically had control over intelligence gathering – any changes kills current balance of powersYoo, 7 (John, Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute, 3/27/7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975333) KWSome of the Framers of the Constitution believed that the President needed to manage intelligence because only he could keep secrets. 5 Several Supreme Court cases have recognized that the President's role as the sole organ of




the nation in foreign relations and as Commander-in-Chief must include the power to collect intelligence. 5 9 These authorities agree that intelligence rests with the President because the office's structure allows the President to act with unity, secrecy, and speed. 6 °¶ Presidents have long ordered electronic surveillance without any judicial or congressional participation. More than a year before the Pearl Harbor attacks, but with war clearly looming with the Axis powers, President Franklin Roosevelt authorized the FBI to intercept any communications, whether wholly inside the country or international, of persons "suspected of subversive activities against the Government of the United States, including suspected spies."'' FDR was concerned that "fifth columns"-those people believed to be loyalists who clandestinely undermine the nation-could wreak havoc on the war effort. 6 "It is too late to do anything about it after sabotage, assassinations and 'fifth column' activities are completed," FDR wrote in his

order.'63 FDR ordered the surveillance even though a Supreme Court decision and a federal statute at the time prohibited electronic surveillance without a warrant." FDR continued to authorize the interception of electronic communications even after Congress rejected proposals for wiretapping for national security reasons.'65¶ Until FISA, Presidents continued to monitor the communications of national security threats on their own authority, even in peacetime.'66 If Presidents could order surveillance of spies and terrorists during peacetime , as President Roosevelt did in 1940, or as Presidents from Truman through Carter did during the Cold War, then executive authority is all the more certain now, after the events of September 11 . This is a view held by the Justice Departments in several recent administrations. The Clinton Justice Department, for example, held a similar view of the executive branch's authority to conduct surveillance outside the FISA framework.'67 Courts have never opposed a President's authority to engage in warrantless electronic surveillance to protect national security. When the Supreme Court first considered this question in 1972, it held that the Fourth Amendment required a judicial warrant if a President wanted to conduct surveillance of a purely domestic group, but it refused to address surveillance of foreign threats to national security.'68 In the years since, every federal appeals court to address the question, including the FISA Appeals Court, has "held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."' 6 9 The FISA Appeals Court did not even feel that it was worth much discussion. It took the President's power to do so "for granted," and observed that "FISA could not encroach on the President's constitutional power.' 17°

The counterplan doesn’t link to the terror DA – president’s unique powers allow for surveillance of those believed to be agents of a foreign power like ISIS or Al Qaeda.Yoo, 7 (John, Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute, 3/27/7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975333) KWIn United States v. Truong Dinh Hung, for example, the Fourth Circuit observed that "the needs of the Executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, 'unduly frustrate,' the President in carrying out his foreign affairs responsibilities.''7 Several reasons led the Fourth Circuit to find that the warrant requirement did not apply to searches for foreign intelligence information:



(1) A warrant requirement ... would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations[;] (2) the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance ...[flew, if any, district courts would be truly competent to judge the importance of particular information to the security of the United States or the 'probable cause' to demonstrate that the government in fact needs to recover that information from one particular source[;] and (3) the executive branch. is also constitutionally designated as the pre-eminent authority in foreign affairs. 72To summarize, the Fourth Circuit held that the government was relieved of the warrant requirement when the surveillance involves both a foreign power and a foreign intelligence motive. First, warrants are not required when the object of the search or surveillance is a foreign power, its agents, or its collaborators since such cases are "most likely to call into play difficult and subtle judgments about foreign and military affairs."' 74 Second, "when the surveillance is conducted 'primarily' for foreign intelligence reasons," warrants are unnecessary for two reasons: (1) "once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination[;]" and (2) "individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution."' 75 Several other circuits have employed a similar logic, and no federal appeals court has taken a different view.'76 The factors favoring warrantless searches for national security reasons are compelling under the current circumstances created by the war on terrorism.After the attacks on September 11, 2001, the government interest in conducting searches related to fighting terrorism is perhaps of the highest order-to defend the nation from direct attack. "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation."'77

Congress also implicitly authorized the President to carry out electronic surveillance to prevent further attacks on the United States.'78 Congress's September 18, 2001 Authorization for Use of Military Force ("AUMF") is sweeping; it has no limitation on time or place-the only directive is that the President pursues terrorists, such as al Qaeda.'79 Although the President did not need, as a constitutional matter, Congress's permission to pursue and attack al Qaeda after the attacks on New York City and the Pentagon, 8' AUMF's passage shows that the President and Congress fully agreed that military action would be appropriate. Congress's support for the President cannot just be limited to the right to use force, but to all the necessary subcomponents that permit effective military action. 8' Congress's approval of the killing and capture of al Qaeda must obviously include the tools to locate them in the first place.B. A Policy Analysis Affirms the Need for the NSA Surveillance Program


AT//Executive Flex Low No meaningful check on flexibility now Sudha Setty 15, Professor at Western New England University School of Law, 2015, “Surveillance, Secrecy, and the Search for Meaningful Accountability”, 51 STAN. J. INT'L L 16, http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1305&context=facschol One of the most intractable problems in the debate around maintaining¶ the rule of law while combating the threat of terrorism is the question of¶ secrecy and transparency. In peacetime, important tenets to the rule of law¶ include transparency of the law, limits on government power, and consistency¶ of the law as applied to individuals in the polity. Yet the post-9/11 decision making¶ by the Bush and Obama administrations has been characterized by¶ excessive secrecy that stymies most efforts to hold the government¶ accountable for its abuses. Executive branch policy with regard to detention,¶ interrogation, targeted killing, and surveillance are kept secret, and that¶ secrecy has been largely validated by a compliant judicial that has¶ dismissed almost all suits challenging human and civil rights abuses resulting¶ from counterterrorism programs . Efforts by Congress to engage in¶ meaningful oversight have met with mixed results ; in the area of government ¶ surveillance, such efforts have been fruitless without the

benefit of leaked¶ information on warrantless surveillance by government insiders. The¶ executive branch has generally refused to make public vital aspects of its¶ surveillance programs in ways that could give oversight efforts more muscle.¶ At the same time, the executive branch has consistently defended the legality¶ and efficacy of these surveillance programs.¶ This paper considers the nature and effect of the warrantless surveillance¶ infrastructure constructed in the United States since the terrorist attacks of¶ September 11, 2001, and discusses surveillance-related powers and¶

accountability measures in the United Kingdom and India as comparative¶ examples.


AT//IG Links to Exec Flex IG reform avoids the war powers disadSinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWA final reservation might come from those who fear that strengthening IGs’ capacity for rights oversight might deflect more robust attempts to constrain the executive. Indeed, some scholars who defend expanded executive national security powers view the potential for internal institutions to ward off external checks on the executive as a strength: Eric Posner and Adrian Vermeule have argued that executive “self-binding” mechanisms help the executive gain public trust to pursue aggressive policies without undue constraint,309 while Goldsmith argues that IGs, in particular, can enhance executive power.310 Certainly, executive officials have invoked IGs in an attempt to abate civil liberties concerns and thereby

preserve or strengthen executive power. The Bush Administration sought to defend the National Security Agency warrantless surveillance program by claiming it had been thoroughly vetted by the Justice Department and the NSA Inspector General.311 FBI Director Mueller sought to allay senators’ concerns over FBI surveillance of a peaceful antiwar rally by inviting an IG review of the matter.312 And the Obama Administration sought to reassure courts that it could be trusted in invoking the state secrets privilege by issuing a policy that, among other provisions, required the Justice Department to refer “credible allegations of government wrongdoing” to IGs.313




Politics Net Benefit


Politics N/B – ESRThe executive solves better than Congress or the Courts Metzger 09 Gillian E. Metzger, is a United States Constitutional Law scholar and a professor of law at Columbia University, “THE INTERDEPENDENT RELATIONSHIP BETWEEN INTERNAL AND EXTERNAL SEPARATION OF POWERS,” October 7, 2009, Columbia Law School Public Law and Legal Theory Working Paper Group, Google Scholar/NVSeveral bases exist for thinking that internal separation of powers mechanisms may have a comparative advantage. Internal mechanisms operate ex ante , at the time

when the executive branch is formulating and implementing policy, rather than ex post ; they are therefore able to avoid the delay in application that can hamper both judicial and congressional oversight .76 Internal mechanisms often operate continuously, rather than being limited to issues that generate congressional attention or arise in the form of a justiciable challenge. Internal mechanisms 77 operate not just at the points at which policy proposals originate and are implemented but also at higher managerial levels, and thus can address policy and administration in both a granular and a systemic fashion. In addition, policy recommendations generated through internal checks may face less resistance than those offered externally , because the latter

frequently arise after executive officials have already decided upon a policy course and are more likely to take an adversarial form. Internal mechanisms may also gain credibility with executive branch officials 78 to the extent they are perceived as contributing to more fully informed and expertise-based decisionmaking.79

CP avoids politics--- takes too long for congress to review and preserves other topics Sovacool 10 [Ben and Kelly, Dr. Benjamin K. Sovacool is a Research Fellow in the Energy Governance Program at the Centre on Asia and Globalization. He is also an Assistant Professor at the Lee Kuan Yew School of Public Policy at the National University of Singapore., Kelly E. Sovacool is a Senior Research Associate at the Lee Kuan Yew School of Public Policy at the National University of Singapore. She received her MS in geography from the Virginia Polytechnic Institute & State University in Blacksburg, “Crisis Areas in the United States”, http://www.circleofblue.org/waternews/wp-content/uploads/2010/08/sovacool-and-sovacool-water-columbia.pdf] Schloss

Executive Orders also save time in a second sense. The President does not have to expend scarce political capital trying to persuade Congress to adopt his or her proposal . Executive Orders thus save presidential attention for other topics. Executive Orders bypass congressional debate and opposition, along with all of the horse trading and compromise such legislative activity entails.292 Speediness of implementation can be especially important when challenges require rapid and decisive action. After the September 11, 2001 attacks on the Pentagon and World Trade Center, for instance, the Bush Administration almost immediately passed Executive Orders forcing airlines to reinforce cockpit doors and freezing the U.S. based assets of individuals and organizations involved with terrorist groups.293 These actions took Congress nearly four months to debate and subsequently endorse with legislation. Executive Orders therefore enable presidents to rapidly change law without having to wait for congressional action or agency regulatory rulemaking.

http://www.circleofblue.org/waternews/wp-content/uploads/2010/08/sovacool-and-sovacool-water-columbia.pdf


No backlash against executive action---Obama is uniquely differentRamsey 12 [Michael, Professor of Law, University of San Diego School of Law, THE FEDERALIST SOCIETY NATIONAL LAWYERS CONVENTION--2011: MEET THE NEW BOSS: CONTINUITY IN PRESIDENTIAL WAR POWERS?, Harvard Journal of Law & Public Policy, 35 Harv. J.L. & Pub. Pol'y 863, http://www.lexisnexis.com.proxy.lib.umich.edu/hottopics/lnacademic/] SchlossThus there has been an escalation in the use of unconstitutional executive war power under President Obama, yet there has not been an outcry against him resembling the outcry against the Bush Administration, which was routinely attacked for exceeding the limits of executive power. n29 Although some voices have

been raised against President Obama's claims of executive power, n30 they have been marginalized. They have not [*871] been taken up by the mainstream in the manner of similar criticisms of

President Bush. My speculation is that there is an identification by legal and media elites with the establishment Democratic Party that makes it difficult for these criticisms to gain traction in the way they did in the Bush Administration.¶ I

think this makes it easier for Democratic presidents than for Republican presidents to unconstitutionally extend executive power. Thus Obama's policies, which are much more deserving of constitutional criticism, do not generate the popular pushback that we saw, perhaps unjustifiably, against President Bush. In any event, what is most striking about executive war power under President Obama is not the commonly recognized continuity as compared to the prior administration, but rather the increased disregard of constitutional limits.

http://www.lexisnexis.com.proxy.lib.umich.edu/hottopics/lnacademic/


Politics N/B – IG IG changes get implemented at the agency level – doesn’t require congressional involvement Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWRevising agency rules to prevent future abuses. The ultimate objective of any system of oversight is to prevent future abuses. IGs can support prospective reform by recommending changes to agency managerial or oversight processes or new statutory or administrative substantive rules , such as heightened legal constraints on agency discretion. Such proposals fall within IGs’ mandate to prevent future abuse by recommending policy changes and commenting on existing and

proposed legislation and regulations.204 Procedural reforms might include requiring higher-level approval of actions implicating rights, greater oversight by agency counsel, or improving agency databases or systems to enable better oversight. IGs can also recommend greater substantive constraints on agency discretion, such as the prohibition of a controversial practice or a requirement of ex ante judicial approval.

Inspector General review shields the link Sinnar, 13 (Shirin; Assistant Professor of Law, Stanford Law School; “Protecting Rights from Within? Inspectors General and National Security Oversight”; June 11, 2013; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025186) KWFor Congress, too, the promise of IG oversight may attract, or at least allow members to justify, support for legislation to expand executive counterterrorism powers that threaten civil liberties. In a committee hearing on the September 11 detainees report, Senator Arlen Specter argued that an aggressive IG would “ease the public concern so that when [the Attorney General] comes back for the next PATRIOT Act we do not have a wave of

public opposition.”314 Indeed, Congress has often required IG reviews of national security programs in the course of increasing government investigative or surveillance powers,315

and some members of Congress have cited these provisions, among other checks, as enabling broader support for the legislation .316






Competition/Theory


AT//PDCP – TopThe counterplan’s competitive –

Curtail means to restrict Oxford 15 – Oxford Dictionaries, “curtail”, http://www.oxforddictionaries.com/us/definition/american_english/curtailDefinition of curtail in English:verb[WITH OBJECT]1Reduce in extent or quantity; impose a restriction on:civil liberties were further curtailed

That’s distinct from the counterplan’s reduction Randall 7 (Judge – Court of Appeals of the State of Minnesota, “Dee Marie Duckwall, Petitioner, Respondent, vs. Adam Andrew Duckwall, Appellant”, 3-13, http://law.justia.com/cases/minnesota/court-of-appeals/2007/opa0606 95-0313.html#_ftnref2)

[2] When referring to parenting time, the term "restriction[,]" is a term of art that is not the equivalent of "reduction" of parenting time. "A modification of visitation

that results in a reduction of total visitation time, is not necessarily a restriction' of

visitation.' Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986). When determining whether a reduction constitutes a restriction , the court should consider the reasons for the change as well as the amount of the reduction." Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993).

It mandates that the aff discontinue the authority or program Dembling, 78 – General Counsel, General Accounting Office; (Paul, “OVERSIGHT HEARING ON THE IMPOUNDMENT CONTROL ACT OF 1974” HEARING BEFORE THE TASK FORCE ON BUDGET PROCESS OF THE COMMITTEE ON THE BUDGET HOUSE OF REPRESENTATIVES NINETY-FIFTH CONGRESS SECOND SESSION JUNE 29, 1978, Hein Online)

(3) "Curtail" means to discontinue, in whole or in part, the execution of a program , resulting in the application of less budget authority in furtherance of the program than provided by law.

There must be a third party restriction on domestic surveillance – executive self-restraint cannot be an example of the plan8th Circuit Court of Appeals 10(Public Water Supply Dist. No. 3 v. City of Leb., 605 F.3d 511, Lexis)HN9 7 U.S.C.S. § 1926(b) provides that a rural district's service shall not be curtailed or limited. In this context,

the verbs "curtail" and "limit" connote something being taken from the current holder, rather than something being retained by the holder to the exclusion of another. "Curtail" is defined as shorten in extent or amount; abridge; "limit" is defined as set bounds to; restrict. The available cases and fragments of legislative history all seem to have in mind curtailment resulting from substitution of

some third party as a water-supplier for the rural district. Shepardize - Narrow by this Headnote

http://law.justia.com/cases/minnesota/court-of-appeals/2007/opa0606

http://law.justia.com/cases/minnesota/court-of-appeals/2007/opa0606


Prefer this interpretation in the context of domestic surveillance Ackerman 14 (Spencer, national security editor for Guardian US. A former senior writer for Wired, “Failure to pass US surveillance reform bill could still curtail NSA powers,” October 3rd, 2014, http://www.theguardian.com/world/2014/oct/03/usa-freedom-act-house-surveillance-powers)Two members of the US House of Representatives are warning that a failure to pass landmark surveillance reform will result in a far more drastic curtailment of US surveillance powers – one that will occur simply by the House doing nothing at all. As the clock ticks down on the 113th Congress, time is running out for the USA Freedom Act, the first legislative attempt at reining in the National Security Agency during the 9/11 era. Unless the Senate passes the stalled bill in the brief session following November’s midterm elections, the NSA will keep all of its existing powers to collect US phone records in bulk, despite support for the bill from the White House, the House of Representatives and, formally, the NSA itself. But supporters of the Freedom Act are warning that the intelligence agencies and their congressional allies will find the reform bill’s legislative death to be a cold comfort. On 1 June 2015, Section 215 of the Patriot Act will expire. The loss of Section 215 will deprive the NSA of the legal pretext for its bulk domestic phone records dragnet. But it will cut deeper than that: the Federal Bureau of Investigation will lose its controversial post-9/11 powers to obtain vast amounts of business records relevant to terrorism or espionage investigations. Those are investigative authorities the USA Freedom Act leaves largely untouched. Section 215’s expiration will occur through simple legislative inertia, a characteristic of the House of

Representatives in recent years. Already, the House has voted to sharply curtail domestic dragnet surveillance , both by passing the Freedom Act in May and voting the

following month to ban the NSA from warrantlessly searching through its troves of international communications for Americans’ identifying information. Legislators are warning that the next Congress, expected to be more Republican and more hostile to domestic spying, is unlikely to reauthorise Section 215.

Context is key O'Niell 45 – O'Niell, Chief Justice, Supreme Court of Louisiana, “STATE v. EDWARDS”, 207 La. 506; 21 So. 2d 624; 1945 La. LEXIS 783, 2-19, LexisThe argument for the prosecution is that the ordinance abolished the three open seasons, namely, the open season from October 1, 1943, to January 15, [*511] 1944, and the open season from October 1, 1944, to January 15, 1945, and the open season from October 1, 1945, to January 15, 1946; and that, in that way, the ordinance suspended altogether the right to hunt wild deer, bear or squirrels for the [***6] period of three years. The ordinance does not read that way, or convey any such meaning. According to Webster's New International Dictionary, 2 Ed., unabridged, the word "curtail" means "to cut off the end, or any part, of; hence to shorten; abridge; diminish; lessen; reduce." The word "abolish" or the word "suspend" is not given in the dictionaries as one of the definitions of the word "curtail". In fact, in common parlance, or in law composition, the word "curtail" has no such meaning as "abolish". The ordinance declares that the three open seasons which are thereby declared curtailed are the open season of 1943-1944, -- meaning from October 1, 1943, to January 15, 1944; and the open season 1944-1945, -- meaning from October 1, 1944, to January 15, 1945; and the open season

1945-1946, -- meaning from October 1, 1945, to January 15, 1946. To declare that these three open

seasons , 1943-1944, 1944-1945, and 1945-1946, "are hereby curtailed", without indicating how, or the extent to which, they are "curtailed", means nothing .¶ Conceding, for the sake of argument, that the authority given by the statute, to each parish, "to curtail the open season, but for not more than three consecutive [***7] years", includes the authority to "abolish" the open season for a continuous period not exceeding three years, the [*512] ordinance in this instance does not purport to "abolish" the open season for the three [**626] consecutive years, or to suspend the right to hunt wild deer, bear or squirrels for the continuous period of three years. If the author of the ordinance intended to abolish the open seasons for hunting wild deer, bear and squirrels for a period of three years, he need not have specified the three annual open seasons, 1943-1944, 1944-1945, and 1945-1946; nor should he have used the word "curtail", with reference to the three annual open seasons, and without


indicating the extent of the curtailment . It would have been an easy matter to word the ordinance so as to have no open season for hunting wild deer, bear and squirrels in the parish for a period of three years, if the police jury intended -- and if the statute gave the authority to the police jury -- to suspend the right to hunt wild deer, bear and squirrels in the parish for a period of three years.

Also vital to affirmative ground – affs that don’t terminate the authority will just lose to circumvention Bendix & Quirk, 15 --- *assistant professor of political science at Keene State College, AND **Phil Lind Chair in U.S. Politics and Representation at the University of British Columbia (March 2015, William Bendix and Paul J. Quirk, “Secrecy and negligence: How Congress lost control of domestic surveillance,” http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf, JMP)Even if Congress at some point enacted new restrictions on surveillance, the executive might ignore the law and continue to make policy unilaterally . The job of reviewing executive conduct would again fall to the FISA Court.56 In view of this court’s history of broad deference to the executive , Congress would have a challenge to ensure that legislative policies were faithfully implemented .

“Substantial” means durableBallantine’s 94 (Thesaurus for Legal Research and Writing, p. 173)substantial [sub . stan . shel] adj. abundant, consequential, durable, extraordinary, heavyweight, plentiful (“a substantial supply”); actual, concrete, existent, physical, righteous, sensible, tangible

(“substantial problem”); affluent, comfortable, easy, opulent, prosperous, solvent .

http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf

http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf


Ext. Curtail = Remove Authority / TerminateCurtail means reducing the budget authority for a program – the aff is only a regulatory changeDembling, 78 – General Counsel, General Accounting Office; (Paul, “OVERSIGHT HEARING ON THE IMPOUNDMENT CONTROL ACT OF 1974” HEARING BEFORE THE TASK FORCE ON BUDGET PROCESS OF THE COMMITTEE ON THE BUDGET HOUSE OF REPRESENTATIVES NINETY-FIFTH CONGRESS SECOND SESSION JUNE 29, 1978, Hein Online)

Application of curtailment procedure.-The review procedure is triggered by an executive branch decision to 'curtail" a program which has been made subject to the bill. The definition of "curtail" (subsection (a)

(3)) requires that the executive branch decision result in a reduction of budget authority applied in furtherance of the program . As noted above, the level of budget authority for this purpose would be the amount so specified in an appropriation act. The reduction relates to the use of funds "in furtherance of the program." Thus, although the full amount of budget authority may be spent in some manner, e.g., to pay contract termination costs or other liabilities incident to the curtailment, such a use of funds still involves a reduction in funding for affirmative program purposes which triggers the review provisions.Curtailment review procedure.-The review procedure would generally be similar to the procedure for reviewing deferrals of budget authority under the Impoundment Control Act, except that congressional disapproval would take the form of a concurrent resolution. The President would report a proposed curtailment decision to Congress, together with appropriate information (subsection (b)), and supplementary reports would be made for any revisions (subsection (c)(3)). The proposal, and any supplementary reports, would be printed in the Federal Register (subsection (c)(4)).

Curtailment requires a removal of authorityMay and Ides 7 - James P. Bradley Professor of Constitutional Law at Loyola Law School; Professor of Law at Loyola Law School and former Chief Judge of the United States Court of Appeals for the Fourth Circuit (Christopher and Allan, Constitutional Law National Power and Federalism: Examples and Explanations, Aspen Publishers, 2007, p. 312-313)//DBIAssigning Removal Authority to an Executive Official Other Than the PresidentWhile Congress cannot participate directly in the removal of executive or judicial officers other than through

impeachment, Congress can in other ways curtail the President’s ability to remove executive officers . One possibility is to vest the authority to remove a particular official in some executive branch official other than the President . For example, federal law provides that “[e]ach assistant United States attorney is

subject to removal by the Attorney General” 28 U.S.C. §542(b). If the President wanted to fire an assistant US attorney, she could not dismiss that officer herself but would have to go through the attorney general. If the attorney general refused to comply with the President’s wishes, the President would have to dismiss the attorney general and name a successor willing to carry out the President’s wishes. By thus shielding front-line federal prosecutors from direct removal by the President, Congress has to a limited degree insulated federal law enforcement operations from executive or political control.

To curtail means to end Merriam-Webster, 15 (‘curtail’, http://www.merriam-webster.com/dictionary/curtailFull Definition of CURTAILtransitive verb

: to make less by or as if by cutting off or away some part <curtail the power of the executive branch> <curtail inflation>

http://www.merriam-webster.com/dictionary/curtail


Ext. Must Include 3 rd Party Curtailment must be done by a third party—prefer contextual definitionsSugiyama and Perry 6 - *University of Michigan Law School, expected JD 2007; **University of Michigan Law School, JD 2006 (Tara and Marisa, “THE NSA DOMESTIC SURVEILLANCE PROGRAM: AN ANALYSIS OF CONGRESSIONAL OVERSIGHT DURING AN ERA OF ONE-PARTY RULE”, University of Michigan Journal of Law Reform, Fall 2006, http://heinonline.org/HOL/Page?handle=hein.journals/umijlr40&div=10&g_sent=1&collection=journals)//DBI

Congress designed FISA to curtail executive authority for surveillance rather than for law enforcement purposes .6 FISA limited warrantless surveillance to "foreign powers" and surveillance under court order to situations where probable cause justified surveillance of a "foreign power" or an "agent of a foreign power."3 7 As a result, Congress approved surveillance under FISA only where its purpose was intelligence gathering. That limitation fell with the Twin Towers on September 11,2001.

It’s predictable—Congress empirically curtails executive powersZelizer 8 - Professor of History and Public Affairs at Princeton University (Julian, “THE CONSERVATIVE EMBRACE OF PRESIDENTIAL POWER”, Boston University Law Review, April 2008, http://heinonline.org/HOL/Page?handle=hein.journals/bulr88&div=23&g_sent=1&collection=journals)//DBIRichard Nixon demonstrated how the executive could use presidential power as a force against liberalism when he relied on that power to implement budget cuts and achieve his military objectives.6 Conservative interest in presidential power accelerated between 1973 and 1978 as Congress passed reforms to curtail the executive branch's power . During Gerald Ford's and Jimmy Carter's presidencies, congressional reforms to constrain the extra-constitutional powers and common abuses of presidents angered many conservatives. In 1978, for example, Congress passed the Foreign Intelligence Surveillance Act ("FISA"), subjecting domestic surveillance to court supervision. 7 Given the battles of the era, conservatives saw the congressional reforms of the executive branch as a liberal objective.


Theory The counterplan’s a core question on in the context of domestic surveillance and national security Sales 12Sales 2012 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law & Policy, 6.227, “Self-Restraint and National Security/NVWith this framework in mind, we can begin to offer some preliminary hypotheses about why national security officials sometimes adopt selfrestraints. From a policymaker’s standpoint, the expected benefits of a national security operation often will be dwarfed by its expected costs (enemy propaganda, loss of national prestige, individual criminal liability, and so on). For rational policymakers, the welfare maximizing choice sometimes will be to avoid bold and aggressive operations . Reviewers likewise can find inaction to be welfare maximizing. For an influence- and autonomy-maximizing reviewer, vetoing an operation proposed by a bureaucratic competitor can redistribute power and turf away from one’s rival and to oneself. Operators, by contrast, are likely to have a very different cost-benefit calculus. An operator’s expected benefits typically will be larger than a policymaker’s or a reviewer’s, because he will account for the psychic income (such as feelings of exhilaration and satisfaction) that accrues to those who personally participate in a mission. As a result, rational operators may regard a given operation as welfare-enhancing even when policymakers and reviewers regard the same mission as welfare reducing.


Affirmative Answers


2ac – Congress KeyCP will be circumvented—structural, CONGRESSIONAL change is keyBendix and Quirk 15 (William Bendix and Paul J. Quirk , assistant professor of political science at Keene State College; Phil Lind Chair in U.S. Politics and Representation at the University of British Columbia, “Secrecy and negligence: How Congress lost control of domestic surveillance”, Issues in Governance Studies, March 2015, http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf)//DBIIn enacting the USA PATRIOT Act just weeks after the 9/11 terrorist attacks, Congress sought to enhance investigations against specific, named persons suspected of terrorism. As voluminous documents leaked by whistleblower Edward Snowden have revealed, however, the president and the National Security Agency (NSA) have relied on that law to authorize the daily, ongoing capture of all U.S. communication records. These documents make clear that the Bush and Obama administrations ignored statutory constraints to authorize exceptionally broad intelligence-gathering programs. But from our review of legislative hearings and debates on the PATRIOT Act over the last five years, along with numerous declassified documents on surveillance, we find that unilateral action by the executive branch was only partly to blame for unrestrained domestic spying. After the relatively balanced and cautious provisions of the 2001 PATRIOT Act, Congress virtually absented itself from substantive decision making on surveillance. It failed to conduct serious oversight of intelligence agencies, ignored government violations of law, and worked harder to preserve the secrecy of surveillance practices than to control them . Even after the

Obama administration made the essential facts about phone and email surveillance available in classified briefings to all members, Congress mostly ignored the information and debated the reauthorizations on the basis of demonstrably false factual premises. Until the Snowden revelations, only a handful of well-briefed and conscientious legislators—too few to be effective in the legislative process—understood the full extent of domestic intelligence gathering.We describe and explain Congress’s deliberative failure on phone and Internet surveillance policy. We show that along with a lack of consistent public concern for privacy, and the increasing tendency toward partisan gridlock, Congress’s institutional methods for dealing with secret surveillance programs have undermined its capacity to deliberate and act effectively with respect to those programs. Although the current political environment is hardly conducive to addressing such problems, we discuss long-term goals for institutional reform to enhance this capacity. We see no

easy or decisive institutional fix. But without some structural change , the prospects look dim for maintaining significant limitations on investigatory intrusion in an era of overwhelming concern for security.

Executive self-regulation fails—legislation is keyBendix and Quirk 15 (William Bendix and Paul J. Quirk , assistant professor of political science at Keene State College; Phil Lind Chair in U.S. Politics and Representation at the University of British Columbia, “Secrecy and negligence: How Congress lost control of domestic surveillance”, Issues in Governance Studies, March 2015, http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf)//DBI


For the immediate future, however, Congress appears to have gone out of the business of determining policy for antiterrorism surveillance. In the near term, the best hope for privacy interests is for President Obama to make good on his post-Snowden pledge, repeated in his 2015 State of the Union Address, to reform surveillance programs in order to instill “public confidence...that the privacy of ordinary people is not being violated.” He promised to work with Congress on the issue. If Congress is not capable of acting, the executive branch can impose its own constraints on surveillance practices.57 But the maintenance of self-imposed executive-branch constraints would depend entirely on the strength of the administration’s commitment—and, in two years’ time, on the disposition of the next president. Because of the president’s central responsibility for national security, the presidency is hardly a reliable institutional champion for privacy interests. If over the long run surveillance practices are to afford significant protection to privacy interests, Congress will need to overcome its partisan gridlock and strengthen the institutional framework for surveillance policymaking. We suggest two long-term goals. First, Congress should seek some means of enhancing its capacity for oversight and policymaking on secret surveillance practices. Some reformers have called for abolishing or prohibiting any secret laws or interpretations that control investigations. In his 2011 speech mentioned above, Senator Wyden acknowledged that surveillance activities are necessarily secret.58 He insisted, however, that the policies governing those activities should be debated and decided openly, through normal democratic processes. He argued that secret laws, or secretly sanctioned interpretations of laws, are incompatible with democracy.

Executive oversight fails—mandates and empiricsBendix and Quirk 15 (William Bendix and Paul J. Quirk , assistant professor of political science at Keene State College; Phil Lind Chair in U.S. Politics and Representation at the University of British Columbia, “Secrecy and negligence: How Congress lost control of domestic surveillance”, Issues in Governance Studies, March 2015, http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf)//DBIThe executive branch has a several watchdogs that monitor surveillance practices, including the Inspectors General of the NSA and Justice Department, the President’s Intelligence Advisory Board, and the Privacy and

Civil Liberties Oversight Board (PCLOB). Although all serve important oversight functions, they have mandates that minimize privacy concerns or they are vulnerable to White House interference. The inspectors general are concerned about waste and fraud, among many other types of violations, while the Intelligence Advisory Board serves exclusively the president, making sure that executive orders and other directives are followed. Currently, only the PCLOB has a mission that considers and advocates for civil-liberties protections. Over the last year, it has produced several important reviews that weigh the surveillance benefits of eavesdropping programs against the privacy costs to Americans. However, prior to the Snowden leaks, both Presidents Bush and Obama let the Board sit empty for long periods , ensuring that it produced no oversight reports for most of its ten-year history.61 A president hostile to oversight and accountability could take similar steps to undermine the Board’s activities, especially once the Snowden scandals have faded.


2ac – Courts key

The courts force executive compliance bestWu 6 - Associate Dean and Professor, Thurgood Marshall School of Law (Edieth, “Domestic Spying and Why America Should Avoid the Slippery Slope”, Review of Law and Social Justice, 2006, http://weblaw.usc.edu/why/students/orgs/rlsj/assets/docs/Wu_Final.pdf)//DBI The judiciary branch, specifically the Supreme Court, is emphatically the arm of government with the province and duty to “say what the law is.”60 And in the context of executive power, the Court has “long since made clear that a state of war is not a blank check for the President.”61 For example, the Supreme Court was recently “asked to use [the Padilla] case to define the extent of presidential power over U.S. citizens who are detained on American soil on suspicion of terrorism.”62 The Court exercised its authority to “end [the] unusual stalemate between the executive and judiciary branches” by ordering Padilla’s transfer from military to civilian custody.63FISA, of course, specifically permits an “undeniably larger role” for the judiciary when U.S. persons, such as Padilla, are or may be concerned.64 In such a case, courts limit executive discretion by “approv[ing] surveillance of U.S. persons [only if] the Government can show that [the target] ‘knowingly engaged in clandestine intelligence activities which involve or may involve a [criminal] violation’... or knowingly commits, prepares to commit, or aids in the preparation or commission of, acts of sabotage or terrorism.”65 In addition to directly limiting executive discretion, the judiciary is in a unique position to indirectly elicit executive compliance with the established rule of law by raising public consciousness of an issue . Throughout history, the judiciary has raised public consciousness by vociferously adhering to the rule of law, thereby forcing the executive into “de facto compliance. ”66

Judiciary participation makes executive circumvention less likelyBellia ’11 (Patricia L, Notre Dame Law School, Arizona State Law Journal, Vol. 43, No. 293, 2011, Notre Dame Legal Studies Paper No. 12-58, 2011, “Designing Surveillance Law,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033217) KWThe institutional patterns of Part I illustrated that scholars often understate the judicial role in the surveillance law landscape. Because Congress reacts to judicial decisions, whether to implement the decision or to supplement weak procedural rules the court prescribes, the judicial decision fades into to the background. As I argued in Part I, however, even where a statute immediately follows a judicial decision, the initial decision likely determines whether there will be strong or weak checks on the executive's use of a particular surveillance tactic. n191It follows that judicial responses to instances of executive rule-selection represent the most important point of judicial decision, for they likely set the path of future legislative action. This fact counsels in favor of courts seeking the fullest possible participation when a new question about executive rule-selection arises. The magistrate judges who invited amicus participation at the ex parte application stage had precisely this instinct. Amicus participation not only reduces the information costs and lowers participation barriers for potential targets



(represented by privacy groups), it also raises the government's participation costs, and may thereby cause law enforcement officials to gauge more precisely the need for the tactic [*345] involved. In late 2006, for example, the government filed an application in the Southern District of New York seeking disclosure of the contents of text messages logged with a service provider. When the court notified the government that it intended to invite amicus participation and request briefing, the government immediately withdrew the application. n192

Harshness of court rulings good – more durable and enduring than the CPBellia ’11 (Patricia L, Notre Dame Law School, Arizona State Law Journal, Vol. 43, No. 293, 2011, Notre Dame Legal Studies Paper No. 12-58, 2011, “Designing Surveillance Law,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033217) KWSimilarly, the covert video surveillance cases reflect courts' determination that the technique invades a reasonable expectation of privacy and that agents must meet stringent procedural requirements to use it . n109 Congress placed video surveillance outside of the ambit of the Wiretap Act, but courts imposed the Wiretap Act's requirements anyway. To be sure, courts adopted the Wiretap Act's requirements rather than developing new judicial standards. n110 Adoption of those requirements, however, was premised upon the threshold determination that the technique invades a reasonable expectation of privacy. That determination is one that Professor Kerr implicitly expects, if not explicitly urges, courts to leave to the legislature. As a descriptive matter, then, the example is not one of deference to legislative choices.



2ac – Inspector General Fails IGs fail – appointees have connections to the White House HOUSE OF REPRESENTATIVES COMMITTEE ON GOVERNMENT REFORM, 5 (Minority Staff, 1/7/5, “THE POLITICIZATION OF INSPECTORS GENERAL”, http://www.yuricareport.com/Corruption/PoliticizationOfInspectorsGeneral.pdf) KWOver one-third of the IGs appointed by President Bush (36%) worked in a Republican White House prior to their IG appointments. These included senior positions in both the White House of President George W. Bush and the White House of his father, President George H.W. Bush. In contrast, none of the IGs appointed by President Clinton worked in a Democratic White House before his or her appointment. Figure 2.One example of an IG appointed by President Bush with White House experience is Janet Rehnquist, who was appointed Inspector General of the Department of Health and Human Services. Ms. Rehnquist, who is also the daughter of Supreme Court Chief Justice William Rehnquist, served in the first Bush Administration for three years as Associate Counsel to the President. Other examples include Robert W. Cobb, who served as Associate Counsel in the second Bush Administration before his appointment as Inspector General of NASA, and Clark Ervin, who served as Associate Director of Policy in the Office of National Service in the first Bush Administration prior to his appointment as Inspector General of the State Department and later the Department of Homeland Security.Another example of an IG with White House experience is Stuart Bowen, who was appointed as Inspector General of the Coalition Provisional Authority by President Bush. Prior to his appointment as Inspector General, Mr. Bowen had held numerous positions in President George W. Bush’s White House, including Deputy Assistant to the Secretary and Deputy Staff Secretary, and Special Assistant to the President and Associate Counsel. He also served as Deputy Counsel to the Bush-Cheney transition

team and was a “ key player ” in the Florida recount.7 Although Mr. Bowen is an IG with previous White House experience, he is not included in the tally of Bush Administration IGs because the CPA IG does not technically fall under the Inspector General Act.

IG reports don’t do anything – too number heavyProject On Government Oversight, 9 (Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. 3/20/9. “Inspectors General: Accountability is a Balancing Act”. http://www.pogoarchives.org/m/go/ig/accountability/ig-accountability-20090320.pdf) KW

The current system of monitoring IG work heavily favors numbers . For instance, IGs are required to file Semi-Annual Reports (SARs) at the end of each April and October, recording their

activities for the preceding six months. The specific items that must be included in each SAR are many and some are frankly mind-deadening . In fact, it is these requirements that probably account for the fact that so many SARs go unread by their supposed readers on Capitol Hill. Although some of the required reporting is of course quite useful in keeping tabs on an OIG, many of the required lists and tables are not particularly meaningful for any but the most avid number-cruncher. Very briefly, the reports must include:¶ • any significant problems, abuses, and deficiencies¶ • recommendations for corrective actions¶ • identification of each significant recommendation from previous SARs on which¶ corrective action has not been completed ¶ • matters referred to prosecutors and resulting actions¶ • a list of every audit, inspection, and investigation report issued¶ • a summary of each particularly significant report¶ • statistical tables showing the total number of reports and total dollar value of questioned¶ costs, the dollar value of recommendations that funds be put to better use, and a¶ breakdown of management decisions taken or pending32¶ These requirements have for decades resulted in SARs that


http://www.yuricareport.com/Corruption/PoliticizationOfInspectorsGeneral.pdf


frequently open with a long list of facts and figures that do little to illuminate the work that has actually occurred —or not—in the OIG.

Reports fail – take too longProject On Government Oversight, 9 (Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. 3/20/9. “Inspectors General: Accountability is a Balancing Act”. http://www.pogoarchives.org/m/go/ig/accountability/ig-accountability-20090320.pdf) KWAn almost universal complaint is that, as one IG himself admitted, “IG work always takes too long ,” and even the agencies frequently complain that audits drag on for too long and that IG reports aren’t timely. For instance, in its Strategic Plan Results Report for FY 2007, the NASA OIG bravely conducted a “customer feedback survey” for its Office of Audits. One of the results was that only 55 percent of its agency customers found the particular OIG project to have been performed in time to be useful.61 Further self-analysis by the NASA OIG found that “Supervisors did not always review and approve working papers and supporting documentation in a timely manner.”62 However, a chart of the average number of days to complete an audit showed that the number had dropped from 358 days in FY 2003 to 280 days in FY 2007, and the target beginning in FY 2008 would be to complete audits in 260 days on average.63 Of course, getting things done in a timely manner should never come at the expense of quality.

Inspector General recommendations are too imprecise to achieve changeProject On Government Oversight, 9 (Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. 3/20/9. “Inspectors General: Accountability is a Balancing Act”. http://www.pogoarchives.org/m/go/ig/accountability/ig-accountability-20090320.pdf) KWThe IC cannot be a serious mechanism for holding IGs accountable if it can get away with essentially punting rather than making specific recommendations when it concludes an IG has not met its standards of behavior and performance. Furthermore, POGO believes the public has a right and an interest in being informed of the recommendations and results, especially when a matter such as the case of the NASA IG has achieved such notoriety that it is addressed in a joint hearing by two congressional committees.27Another weakness of the IC is that an FBI official instead of an IG chairs it. A former DoD OIG official put it bluntly: criminal investigators should not be in charge of administrative inquiries. The FBI Assistant Director could perhaps serve as an investigative advisor to the IC, in the same way that the head of the Justice Department's Public Integrity Section provides legal advice, and the FBI could still assist the IC with staff and other resources in the conduct of investigations. Not all allegations received by the IC amount to violations of law, with which the FBI is primarily concerned. Rather, the allegations are generally about inappropriate behavior or other misconduct that, while not rising to the level of a crime, are nevertheless significant when alleged against an IG. The risk is that if the head of the Committee is trained to be looking for criminality, he or she may overlook

misconduct or inappropriate behavior that does not actually violate any laws. For instance, DoD IG Joseph Schmitz was accused of protecting senior officials in investigations. In addition, Senator Charles Grassley (R-IA) decried Schmitz’s decision to submit “IG reports to the White House Counsel for review” because it resulted in the White House redacting “large chunks of critical evidence” from Schmitz’s final report on the Boeing tanker leasing deal.28 However, the IC exonerated Schmitz, finding that he had not violated “any law, rule, or regulation,” or engaged




in “gross mismanagement, gross waste of funds, or abuse of authority in connection with any of the matters under review.” (Appendix G) The question remains, however, did he act inappropriately for an IG?


2ac – Leaks The counterplan causes leaks that risk terrorismCrawford 10 [Crawford, Robert. Global Dialogue (Online)12.1 (Winter 2010): 1-15. Proquest] BJSHayden and Mukasey draw upon a justification for torture that has been employed by its advocates for years: "terrorists" are able to resist conventional (i.e., lawful) interrogation. Interrogation techniques must remain secret (in contrast to the Army Field Manual, "which is available online [and] already used by al Qaeda for training purposes") because only ambiguity about how far interrogators are willing to go will assure co-operation: "[P]ublic disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques." In other words, the success of interrogation depends on terrorising the captive (assumed to be a terrorist); that is, making the trained-to-resist terrorist

believe that anything is possible in the black sites of cruelty.¶ Not mentioned is that in order to be credible, interrogators must demonstrate their willingness to go to the extreme; terrorising a prisoner cannot work on threat alone. Nor does such a formula mention the law, except in the implied negative: the existence of a legal bright line that cannot be crossed will only enable the terrorist enemy to employ his resistance training successfully. Recall that President Bush, explaining his veto of the 2008 defence authorisation bill because it contained a provision to rein in CIA interrogations, used the same logic to justify his approval of "alternative procedures". In a radio address to the nation on 8 March, Bush said: "Shortly after 9/11, we learned that key al-Qaeda operatives had been trained to resist the methods outlined in the [Army Field] manual. And this is why we created alternative procedures.">>


2ac – Permutation “Do Both”The perm solves best—oversight must involve all three branchesBalkin 8 (Jack, Professor of Constitutional Law and the First Amendment at Yale Law School, “The Constitution in the National Surveillance State”, Minnesota Law Review, November 2008, http://heinonline.org/HOL/Page?handle=hein.journals/mnlr93&div=4&g_sent=1&collection=journals)//DBIOversight of executive branch officials may be the single most important goal in securing freedom in the National Surveillance State. Without appropriate checks and oversight mechanisms, executive officials will too easily slide into the bad tendencies that characterize authoritarian information states. They will increase secrecy, avoid accountability, cover up mistakes, and confuse their interest with the public interest.Recent events in the Bush administration suggest that legislative oversight increasingly plays only a limited role in checking the executive. Meaningful oversight is most likely to occur only when there is divided government. Even then the executive will resist sharing any information about its internal processes or about the legal justifications for its decisions. A vast number of different programs affect personal privacy and it is unrealistic to expect that Congress can supervise them all. National security often demands that only a small number of legislators know about particularly sensitive programs and how they operate, which makes it easy for the administration to co- opt them.79 The Bush administration's history demonstrates the many ways that Presidents can feign consultation with Congress without really doing so. 8 0Judicial oversight need not require a traditional system of warrants. It could be a system of prior disclosure and explanation and subsequent regular reporting and minimization. This is especially important as surveillance practices shift from operations targeted at individual suspected persons to surveillance programs that do not begin with identified individuals and focus on matching and discovering patterns based on the analysis of large amounts of data and contact information.81 We need a set of procedures that translate the values of the Fourth Amendment (with its warrant requirement) and the Fifth Amendment's Due Process Clause8 2 into a new technological context. Currently, however, we exclude more and more executive action from judicial review on the twin grounds of secrecy and efficiency. The Bush administration's secret NSA program is one example; the explosion in the use of administrative warrants that require no judicial oversight is another.8 3 Yet an independent judiciary plays an important role in making sure that zealous officials do not overreach. If the executive seeks greater efficiency, this requires a corresponding duty of greater disclosure before the fact and reporting after the fact to determine whether its surveillance programs are targeting the right people or are being abused. Judges must also counter the executive's increasing use of secrecy and the state secrets privilege to avoid accountability for its actions. Executive officials have institutional incentives to label their operations as secret and beyond the reach of judicial scrutiny. Unless legislatures and courts can devise effective procedures for inspecting and evaluating secret programs, the Presidency will become a law unto itself.Given the limits of legislative and judicial oversight, oversight within the executive branch will prove especially crucial. Congress can design institutional structures that require the executive to police itself and make regular reports about its conduct. For example, if Congress wants to bolster legal protections against warrantless surveillance, it might create a cadre of informational ombudsmen within the


executive branch- with the highest security clearances-whose job is to ensure that the government deploys information collection techniques legally and nonarbitrarily.8 4 Unfortunately, the Bush administration has made extreme claims of inherent presidential power that it says allow it to disregard oversight and reporting mechanisms.85 Rejecting those claims about presidential power will be crucial to securing the rule of law in the National Surveillance State.


2ac – Permutation “Do the Counterplan” Curtail is a temporary change in authority DAS ‘15(Department of Administrative Services, Chief Human Resources Office, 02/24/15, “Temporary Interruption of Employment”, http://www.oregon.gov/das/chro/docs/advice/p6001501.pdf, SS)

“Curtailment” means a temporary change in agency operations due to extreme conditions. Curtailment may involve continuing some but not all of an agency’s services.

“Curtail” means to diminish and includes actions less than terminationZuccaro 6 – Edward R. Zuccaro, Chairperson of the Vermont Labor Relations Board, “GRIEVANCE OF VERMONT STATE COLLEGES FACULTY FEDERATION,”, 4-14, http://vlrb.vermont.gov/sites/vlrb/files/AlchemyDecisions/Volume%2028/28%20VLRB%20220.pdfWe first address whether the President was obligated by the Contract to bring his decision to not enroll new students to the attention of the Faculty Assembly. Article 19 of the Contract provides: “Recognizing the final determining authority of the President, matters of academic concern shall be initiated by the Faculty Assembly or by the President through the Faculty Assembly which shall consider the matter and respond within a reasonable time”. Included among “matters of academic concern” is the “curtailment . . . of academic programs”. The Employer contends that the decision to stop the enrollment of new students in a program is not a ”curtailment” of a program because curtailment means that the program is actually being closed, and the non-enrollment of new students is not the same as final termination of a program.

We disagree with the Employer’s interpretation of the word “curtailment”. A contract will

be interpreted by the common meaning of its words where the language is clear . In re Stacey, 138 Vt. 68, 71 (1980). Black’s Law Dictionary (6th Ed., West Pub. Co., 1990) defines “curtail” as “to shorten, abridge, diminish, lessen, or reduce”. Thus, curtailment of a program may constitute something less than closure of a program. The non- enrollment of new students squarely fits within the dictionary definition of “curtail” . Accordingly, we conclude that the VTC President had a contractual obligation to consult with the Faculty Assembly with respect to the matter of academic concern of the non-enrollment of students in the Bioscience program for the Fall 2005 semester.

“Curtailment” reduces a part of a program---it’s not the same as closureTatro 15 – Wendy K. Tatro, Director and Asst. General Counsel, Union Electric Company d/b/a Ameren Missouri, “REPLY BRIEF OF AMERENMISSOURI”, 4-10, https://www.efis.psc.mo.gov/mpsc/commoncomponents/viewdocument.asp?DocId=935923768Noranda does describe some options if it should encounter problems. In its brief, Noranda quotes from its SEC filings on this issue.345 Notably, these filings never say “close,” let alone “will close.” They do, however, use the term “curtailment.”346 Webster’s defines “curtail” as “to make less by or as if by cutting off or away some part ,” as in “curtail the power of the executive branch.”347 Thus, Noranda discusses reducing its operations, but not closure . In these same filings, Noranda also uses the terms “restructuring,” “bankruptcy,” and “divest.”348 Thus, while Noranda argues to this Commission that closure “will” occur, the fine print in Noranda’s SEC filings list every option but closure. Outside of illogical and factually unsupported threats, Noranda presents nothing that suggests the smelter’s mandatory closure.

http://www.oregon.gov/das/chro/docs/advice/p6001501.pdf


“Curtail” does not mean to terminateChase 49 – Chase, Circuit Judge on the United States Court of Appeals for the Second Circuit, “UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT”, 12-13, LexisWhen these provisions are read in the light of the background stated and particularly the rejection of express provisions for the power now claimed by the New Haven, it is obviously difficult to accept the New Haven's present view that a complete abandonment of passenger service was not intended. Even the words used point to the decisive and- under the circumstances- clean-cut step. The word 'discontinue' is defined by Webster's New International [**29] Dictionary, 2d Ed. 1939, as meaning ' * * * to put an end to; to cause to cease; to cease using; to give up'- meanings quite other than

the connotations implicit in the word 'curtail,' which it defines ' * * * to shorten; abridge;

diminish; lessen; reduce .' It goes on to give the meaning of 'discontinue' at law as being 'to abandon or terminate by a discontinuance'- an even more direct interpretation of the critical term. An interesting bit of support from the court itself for this view is found in Art. XI, §. 2(m), of the final Consummation Order and Decree, which reserved jurisdiction in the District Court: 'To consider and act on any question respecting the 'Critical Figures' established by the Plan with respect to the termination by the

Reorganized Company of passenger service on the Old Colony Lines.' A 'termination' is quite different from a 'reduction.'

“Curtail” does not mean “abolish”O'Niell 45 – O'Niell, Chief Justice, Supreme Court of Louisiana, “STATE v. EDWARDS”, 207 La. 506; 21 So. 2d 624; 1945 La. LEXIS 783, 2-19, LexisThe argument for the prosecution is that the ordinance abolished the three open seasons, namely, the open season from October 1, 1943, to January 15, [*511] 1944, and the open season from October 1, 1944, to January 15, 1945, and the open season from October 1, 1945, to January 15, 1946; and that, in that way, the ordinance suspended altogether the right to hunt wild deer, bear or squirrels for the [***6] period of three years. The ordinance does not read that way, or convey any such meaning. According to Webster's New International Dictionary, 2 Ed., unabridged, the word "curtail" means "to cut off the end, or any part, of; hence to shorten; abridge; diminish; lessen; reduce." The word "abolish" or the

word "suspend" is not given in the dictionaries as one of the definitions of the word "curtail" . In fact, in common parlance , or in law composition, the word "curtail" has no such meaning as "abolish". The ordinance declares that the three open seasons which are thereby declared curtailed are the open season of 1943-1944, -- meaning from October 1, 1943, to January 15, 1944; and the open season 1944-1945, -- meaning from October 1, 1944, to January 15, 1945; and the open season 1945-1946, -- meaning from October 1, 1945, to January 15, 1946. To declare that these three open seasons, 1943-1944, 1944-1945, and 1945-1946, "are hereby curtailed", without indicating how, or the extent to which, they are "curtailed", means nothing.Conceding, for the sake of argument, that the authority given by the statute, to each parish, "to curtail the open season, but for not more than three consecutive [***7] years", includes the authority to "abolish" the open season for a continuous period not exceeding three years, the [*512] ordinance in this instance does not purport to "abolish" the open season for the three [**626] consecutive years, or to suspend the right to hunt wild deer, bear or squirrels for the continuous period of three years. If the author of the ordinance intended to abolish the open seasons for hunting wild deer, bear and squirrels for a period of three years, he need not have specified the three annual open seasons, 1943-1944, 1944-1945, and 1945-1946; nor should he have used the word "curtail", with reference to the three annual open seasons, and without indicating the extent of the curtailment. It would have been an easy matter to word the ordinance so as to have no open season for hunting wild deer, bear and squirrels in the parish for a period of three years, if the police jury intended -- and if the statute gave the authority to the police jury -- to suspend the right to hunt wild deer, bear and squirrels in the parish for a period of three years.

“Curtail” does not mean “eliminate”Simons 94 – J. Simons, Judge of the Municipal Court for the Mt. Diablo Judicial District, “NOTIDES v. WESTINGHOUSE CREDIT CORPORATION”, 40 Cal. App. 4th 148; 37 Cal. Rptr. 2d 585; 1994 Cal. App. LEXIS 1321, 12-12, Lexis4 Appellant suggests that Jenkins knew that the problem would be handled by curtailing new deals, not simply being selective. In his deposition he stated that "the step of curtailing new business is a logical one to take."


Appellant seems to misunderstand the word "curtail" to mean "eliminate." Even if Jenkins made the same error, he said that this decision to curtail was not made until the Fall of 1990, several months after the hiring and shortly before Notides was informed of the decision.

“Curtail” means to reduce but not totally eliminate surveillanceWilliams 00 – Cary J. Williams, Arbitrator, American Federation of Government Employees, Local 1145 and Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Atlanta, GA, cyberFEDS® Case Report, 10-4, http://www.cpl33.info/files/USP_Atlanta_-_Annual_Leave_during_ART.pdfThe Agency relies on the language of Article 19, Section 1.2. for its right to "curtail" scheduled annual leave during training. The record is clear that the Agency has limited or curtailed leave during ART in the

past, and has the right to do so in the future. But there is a difference in curtailing leave during ART and totally eliminating it . There was no testimony regarding the intent of the parties in including the term "curtail" in Section 1.2., but Websters New Twentieth Century Dictionary (2nd Ed) defines the term as, "to cut short, reduce, shorten, lessen, diminish, decrease or abbreviate". The import of the term "curtail" in the Agreement based on these definitions is to cut back the number of leave slots, but there is no proof the parties intended to give the Agency the right to totally eliminate leave slots in the absence of clear proof of an emergency or other unusual situation. The same dictionary on the other hand defines "eliminate" as, "to take out, get rid of, reject or ornit". From a comparison of the two terms there is clearly a difference in curtailing and eliminating annual leave. I disagree with the Agency's contention that curtailing leave can also mean allowing zero leave slots. If the parties had intended such a result they would have simply stated the Agency could terminate or eliminate annual leave during training and/or other causes. This language would leave no doubt the Agency had the right to implement the policy it put in place for January I through March 25, 2000. That language, however, is not in the Agreement,

and the term "curtail" does not allow the Agency to totally eliminate all scheduled annual leave during the year.


2ac – RollbackFuture presidents roll backFriedersdorfa 13 [Conor, staff writer at The Atlantic where he focuses on politics and national affairs, Does Obama Really Believe He Can Limit the Next President's Power?, The Atlantic, May 28 2013, http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believe-he-can-limit-the-next-presidents-power/276279/] AWSo unlike Hume, I don't think it's "stop me before I kill again," so much as, "I trust myself with this power more than anyone. You won't always be so lucky as to have me, but don't worry, I'm leaving instructions."¶ Will anyone follow them? That's what I don't understand. Why does Obama seem to think his successors will constrain themselves within whatever limits he sets? Won't they just set their own limits? Won't those limits be very different? What would Chris Christie do in the White House? I have no idea, but I'm guessing that preserving the decisionmaking framework Obama established isn't what he'd do.¶ Does anyone think Hilary Clinton would preserve it?¶ Obama doesn't seem to realize that his legacy won't be shaped by any perspicacious limits he places on the executive branch, if he ever gets around to placing any on it. The next president can just undo those "self- imposed" limits with the same wave of a hand that Obama uses to create them. His influence in the realm of executive power will be to expand it. By 2016 we'll be four terms deep in major policy decisions being driven by secret memos from the Office of Legal Counsel. The White House will have a kill list, and if the next president wants to add names to it using standards twice as lax as Obama's, he or she can do it, in secret, per his precedent.¶ Some new John Brennan-like figure, with different values and a different personality, will serve as Moral Rectitude Czar.¶ Even ending torture was done by executive order. The folks guilty of perpetrating it weren't punished. Congress wasn't asked to act. (There was an ambitious domestic agenda to focus on!) So who knows what we'll get next, save for a new president who witnessed all the previously unthinkable things post-9/11 presidents got away with so long as they invoked fighting "terror."¶ The fact that every new president is likely to be a power-seeking egomaniac seems like too obvious a flaw in Obama's plan for a smart guy like him not to see it. So what gives? Is all the talk of limiting the executive branch just talk? But why even talk at this point, if so? He isn't running again. Yet if he really does think his office wields too much power, why is he putting in place safeguards the next president can and probably will undo instead of zealously trying to get Congress to act? Yet he does seem to be concerned. Here's Peter Baker reporting in The New York Times:¶ For nearly four years, the president had waged a relentless war from the skies against Al Qaeda and its allies, and he trusted that he had found what he considered a reasonable balance even if his critics did not see it that way. But now, he told his aides, he wanted to institutionalize what in effect had been an ad hoc war, effectively shaping the parameters for years to come "whether he was re-elected or somebody else became president," as one aide said.¶ Ultimately, he would decide to write a new playbook that would scale back the use of drones, target only those who really threatened the United States, eventually get the C.I.A. out of the targeted killing business and, more generally, begin moving the United States past the "perpetual war" it had waged since Sept. 11, 2001. Whether the policy shifts will actually accomplish that remains to be seen, given vague language and compromises forced by internal debate, but they represent an effort to set the rules even after he leaves office. ¶ "We've got this technology, and we're not going to be the only ones to use it," said a senior White House official who, like others involved, declined to be identified talking about internal deliberations. "We

have to set standards so it doesn't get abused in the future."¶ There's that same obvious flaw, but everyone seems oblivious to it. The standards you're setting? The next president can just change them. In secret, even! That's the problem with extreme executive power: It is capricious, prone to abuse, and difficult to meaningfully check. Does Obama think the next man or woman will just behold the wisdom of his approach and embrace it? That error, unthinkable as it seems, would not be without precedent for this president.

http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believe-he-can-limit-the-next-presidents-power/276279/

http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believe-he-can-limit-the-next-presidents-power/276279/


2ac – Self-Restraint Fails Self-restraint collapses during times of crisis – if they’re correct about the net benefit, the counterplan cannot achieve a meaningful reduction in surveillance

No solvency—self-restraint fails during emergenciesSales 2012 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law & Policy, 6.227, “Self-Restraint and National Security”)

The framework developed above is largely static. This article considers ¶ the behavior of national security officials during periods of relative ¶ stability, and does not explore whether the hypothesized explanations for ¶ self-restraint hold true across a range of timeframes and scenarios .39 In ¶ other words, it largely overlooks the “cycles of timidity and aggression” ¶ that Jack Goldsmith has diagnosed in military and intelligence agencies.40¶ Still, the

framework may be rich enough to explain why self-restraints are ¶ more likely to emerge

during periods of stasis than during emergencies . It ¶ is a commonplace observation that

officials are especially prone to ¶ overreach in times of crisis, such as the aftermath of a terrorist attack.41¶ Public choice principles can help explain why. During a crisis, officials’ ¶ expected costs of inaction can be quite significant. Policymakers justifiably ¶ may worry that, if the nation’s security suffers on their watch, voters will ¶ hold them accountable at the ballot

box. These concerns can influence the ¶ behavior of the lawyers who review

proposed operations . To the extent ¶ lawyers approve or reject operations based on whether they would

promote ¶ policymakers’ welfare,42 policymaker concerns about being perceived as ¶ “weak on security” will tend to yield fewer restraints than in times of stasis. ¶ Alternatively, to the extent lawyers issue vetoes to promote their own ¶ welfare,43 policymakers’ preferences for aggressive operations likewise will ¶ tend to yield fewer restraints. A lawyer who vetoes a course of action ¶ favored by policymakers risks alienating them.44 Absent such a crisis ¶ environment, policymakers’ expected costs of inaction may seem lower. In ¶ these ordinary circumstances, we should expect to see more self-restraint.

The executive cannot check itself – empiricsLee 13Timothy B. Lee, reporter for the Washington Post, “Obama says the NSA has had plenty of oversight. Here’s why he’s wrong.” June 7, 2013, The Washington Post, http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/07/obama-says-the-nsa-has-had-plenty-of-oversight-heres-why-hes-wrong/NVPresident Obama was in San Jose on Friday to talk about the Affordable Care Act. But he took the opportunity to try to calm the furor over new revelations that his administration is presiding over unprecedented surveillance of telephone and digital communications. "These programs were originally authorized by Congress," President Obama said. "They have been repeatedly authorized by Congress. Bipartisan majorities have approved them. Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout." Obama's comments make it sound like the programs are subject to rigorous and continuous oversight. But the simple fact that Congress is briefed and federal judges are involved doesn't mean either branch is actually able to serve as an effective check. The excessive secrecy surrounding these programs makes that unlikely. Take Congress. When the government has briefed members of Congress on its surveillance activities, it has often been in meetings where "aides were barred and note-taking was

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/07/obama-says-the-nsa-has-had-plenty-of-oversight-heres-why-hes-wrong/NV

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/07/obama-says-the-nsa-has-had-plenty-of-oversight-heres-why-hes-wrong/NV


prohibited." It's impossible for Congress to provide effective oversight under those conditions. Members of Congress rely on staff to help them keep track of legislative details. They need independent experts to advise them on complex technical issues. And they need feedback from the constituents they ultimately represent. But the senators briefed on these programs couldn't speak about them. Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) were reduced to spending years trying to hint at the existence of programs they weren't able to actually tell anyone about. Only now can anyone see what it is they were trying to tell us. Meanwhile, the 2008 FISA Amendments Act cut judges out of their traditional role of reviewing individual surveillance requests. Instead, it asks judges to approve broad categories of surveillance. The law gives judges little leeway to reject proposed surveillance programs, and in any event judges lack the expertise and resources to perform this quasi-legislative oversight role effectively. With both Congress and the courts effectively neutered, their traditional functions — defining the rules and making sure they're enforced — are now largely being performed inside the executive branch. In place of legal standards defined by Congress and enforced by an independent judge, we now have "minimization procedures" defined by some executive branch officials and applied by others. There's no opportunity for public debate about these rules and no independent oversight into whether the rules are being followed in individual cases. And there's ample evidence that letting the executive branch police itself is a recipe for abuse.

The executive cannot restrain itself – national security and rollbackBendix and Quirk 15Will Bendix and Paul J. Quirk, assistant professor of political science at Keene State College; Phil Lind Chair in U.S. Politics and Representation at the University of British Columbia, “Secrecy and negligence: How Congress lost control of domestic surveillance, Issues in Governance Studies,” March of 2015, Issues in Governance Number 68, http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf/NVIdeally, in the aftermath of the Snowden scandals, Congress would undertake to restore order and legal regularity to surveillance policy by passing new legislation on the metadata program. Conceivably, it could choose to end bulk collection of phone records and reaffirm the original requirement of individual orders for the seizure of a target’s business records. Given the prevailing sense of urgency about antiterrorism security, however, we think a constructive measure would more likely sanction metadata collection, subject to conditions and requirements designed to avoid unnecessary harm to privacy interests. For the immediate future, however, Congress appears to have gone out of the business of determining policy for antiterrorism surveillance. In the near term, the best hope for privacy interests is for President Obama to make good on his post-Snowden pledge, repeated in his 2015 State of the Union Address, to reform surveillance programs in order to instill “public confidence…that the privacy of ordinary people is not being violated.” He promised to work with Congress on the issue. If Congress is not capable of acting, the executive branch can impose its own constraints on surveillance practices.57 But the maintenance of self-imposed executive-branch constraints would depend entirely on the strength of the administration’s commitment—and, in two years’ time, on the disposition of the next president. Because of the president’s central responsibility for national security, the presidency is hardly a reliable institutional champion for privacy interests.

http://arstechnica.com/security/2008/03/progress-on-national-security-letters-has-been-slow/


2ac – Termination KeyTerminating the authority and the entirety of the program are key – merely reducing the scope isn’t sufficient Sudha Setty 15, Professor at Western New England University School of Law, 2015, “Surveillance, Secrecy, and the Search for Meaningful Accountability”, 51 STAN. J. INT'L L 16, http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1305&context=facscholIn late March 2014, the Obama administration announced that it would¶ propose legislation to dismantle the bulk

collection program, leaving metadata in¶ the exclusive possession of telecommunications companies and requiring FISC¶ authorization prior to the NSA accessing the metadata. 48 The type and scope of¶ legislative restrictions were debated

extensively in 2014, but no bill was passed,¶ leaving open the question of whether any additional legislative control will be¶ exerted by Congress-if not, the status quo of executive control over the scope and¶ intrusiveness of the program will continue. 49 Section 215 of the Patr·iot Act,¶ arguably providing statutory authorization of the NSA

Metadata Program, is set to¶ expire in July 2015, a deadline that is sure to prompt legislative debate on whether¶ to renew the program, curtail the authority granted to the administration, or¶ eliminate the program altogether . The effect of any legislation in curtailing¶ intrusive surveillance practices is yet to be seen , but the fact that the administration¶ has already shifted its public willingness to improving protections of privacy and¶ civil liberties and increase transparency when

compatible with intelligence¶ gathering interests, is noteworthy as well. 50 Assessment of whether those changes¶ will

be meaningful must wait for further developments, particularly as it may be¶ institutionally and politically difficult for the president and Congress to shift course¶

dramatically in the face of still-existing terrorist threats and the political pressure¶ created by the public perception of those threats .

51¶ The primary message from the Obama administration since the Snowden¶ disclosures has been that the administration itself is best suited to address whether¶ and to what extent any recommended changes to NSA surveillance were¶ appropriate , 52 and that the Snowden disclosures themselves have been unnecessary, illegal, and counterproductive to both the intelligence gathering programs¶ themselves and the public discourse. 53 However,

there is no indication that any of¶ the accountability measures now being promoted by the administration would have¶ existed or gained significant purchase but for the Snowden public disclosures. 54¶ The various institutional accountability mechanisms that currently exist within the¶ executive branch do not appear to be equipped to consider concerns stemming from¶ intelligence community insiders who have a fuller understanding than the public of¶ the scope and nature of surveillance programs and who question the basic premise¶ or constitutionality of programs such as the NSA

metadata collection. To the¶ contrary, there are indications that some within the NSA have actively attempted to¶ avoid oversight by the Department of Justice. 55 The Office of the Inspector General¶ for the NSA, appointed by and reporting to the director of the NSA, 56 is suited to¶ deal with allegations of statutory and policy compliance violations, but not with a¶ large scale systemic complaint about privacy and accountability such

as that of¶ Snowden. 57 Other potential avenues for accountability, such as the Office of the¶ Inspector

General for the Defense Department, are rendered irrelevant by the lack¶ of information


access. 58 In fact, the extreme secrecy that surrounded these¶ surveillance programs, even within the administration, suggests that many existing¶ executive branch mechanisms were, in the time before the Snowden disclosures, not¶ engaged in effective oversight.


2ac – Transparency Key Transparency’s key – the secretive nature of their mechanism ruins solvency Finkelstein ‘13[Prof Law Penn. “Secrecy, Targeted Killing and the Rule of Law” 2013 https://www.law.upenn.edu/live/files/1796-finkelstein-sovereignty-abstract. ]

The upshot of the foregoing trends is the collective endorsement of three significant principles: 1. The executive branch has largely virtually unlimited discretion to make life or

death decisions with regard to suspected enemies of the state in time of heightened national security threat, 2. The executive branch has unlimited discretion to declare sensitive documents secret, with virtually no review or oversight, and 3.

Article III courts are committed to a judicial philosophy that declares both 1)

and 2) unreviewable . While each individual proposition may seem reasonable on its face, the trio of principles, taken together, poses a significant threat to the rule of law .

The seeds of this triumvirate were arguably sown many years ago – most notably with the Bush Administration’s decision to label al-Qu’aida affiliates “unlawful combatants” and its asymmetric conception of the rights of such persons relative to traditional combatants – the internal logic of this policy is only now being clearly felt. What the public is beginning to observe is that in our haste to secure our nation from terrorist threat, the logic of unlawful combatancy may have worked a permanent transformation in the traditional safeguards for the protection of personal liberty of which Americans have historically been so proud. In his confirmation hearing on February 28, John Brennan noted the public interest in the “thresholds, criteria, processes, procedures, approvals and reviews” for drone strikes and he claimed that “our system of government and our commitment to transparency demand

nothing less” than a public discussion of those criteria. This is a lofty ideal, but we cannot meaningfully debate what we don’t know . Of course Brennan understands this, as shown by his call for codifying his own procedures for targeting decisions. This would be crucial to ensure that our practices conform to the rule of law and would impose self-restraint on the Executive’s decisionmaking capacity over the awesome power of life and death. But there is a catch: just as the Bush Administration went through the exercise of articulating rules for the use of enhanced interrogation techniques, but kept such rules secret, so the Obama Administration has engaged in an elaborate exercise of private law-making. Articulating limits on discretion will do little to protect the rule of law if the rules and standards that establish those limits remain clandestine. The necessary protection can only come from the articulation of publicly available rules and standards which are then subject to public scrutiny and debate.


2ac – AT: Executive Flexibility N/BEXTERNAL CONSTRAINTS – not self-restraint – is key to effective warfighting Bodansky, 12 (Daniel, Lincoln Professor of Law, Ethics and Sustainability Arizona State University Sandra Day O'Connor College of Law; “Book Review of Jack Goldsmith, Power and Constraint: The Accountable Presidency after 9/11”; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296192)//JPMUltimately, the President’s counter-terrorism policies are on a stronger¶ footing now than at the beginning of the Bush administration, Goldsmith¶ argues, because of the legal limits on presidential authority. The new normal¶ reflects “a general consensus … about what tools the President [can] use in¶ fighting the threat [of terrorism], including military detention, refined¶ military commissions, aggressive surveillance with accountability strings¶ attached, habeas corpus for GTMO but not beyond, narrowed interrogation¶ policies, aggressive targeted killing, and the like” (210). “[A]mong politicians, judges, and most of the American people, there is agreement on the¶ legitimacy of and basic constraints on these powers” (210).¶ In the final chapter of Power and Constraint, Goldsmith provides a brief¶ but very interesting assessment of the new normal. On the whole, his¶

assessment is positive, emphasizing the system’s “ability to self-correct” (xv).¶ Although increased transparency, legalization and accountability can have a¶ detrimental effect on national security , he concludes that “press coverage of¶

secret executive branch action serves a vital function in American democracy”¶ (222), that human rights lawsuits are “healthy for the presidency and for¶ national security ” (241), and that “the strategic use of law during wartime¶ resulted in better planning, better policies, [and] self-corrections ” (232).¶ Indeed, if the father of the Constitution, James Madison, were to survey this¶ “harmonious system of mutual frustration,” he “would smile” (243). I found myself in agreement with much of Goldsmith’s assessment,¶ subject to two significant caveats. First, Goldsmith’s conclusion about the¶ “accountable Presidency” is not fully convincing, because he evaluates¶ accountability almost exclusively in prospective rather than retrospective¶ terms . For him, “ the continuing debates about the past are less important ¶ than … correcting systemic shortfalls ” for the future so that “abuses don’t¶ recur ” (149). Thus, when Goldsmith speaks of the “accountable Presidency,”¶ what he means is not an executive branch that can be held responsible for ¶ 7¶ past misconduct, but rather an executive branch that is subject to¶ “democratic (and judicial) control” and to “strong legal and constitutional¶ constraints ” (xvi).

Executive power expansion is inevitable—eleven warrantsMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBINotably, the reasons Justice Jackson offered as to why power has concentrated in the executive go far beyond the ambitions and personalities of those who have held the office.17 Rather, they are the inevitable results of technological,


social, and legal changes encompassing a variety of factors .18 These

factors include: 1) the constitutional indeterminacy of presidential power, 2) the precedential effects of executive branch action, 3) the role of executive-branch lawyering 4) the expansion of the federal executive branch, 5) presidential control of the administrative state, 6) presidential access to and control of information, 7) the inter-relationship between the media and the Presidency, 8) the role of the Presidency in popular culture, 9) military and intelligence capabilities, 10) the need for the government to act quickly, and 11) the rise of a strong two-party system in which party loyalty trumps institutional prerogative. I shall discuss each of these factors in turn.

High presidential power is inevitable—the executive lacks the necessary restraint to check itselfMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBIMeanwhile, many of the other factors discussed in the previous Section serve to benefit only the presidency and do so largely at Congress’s expense . The President’s ability to respond quickly to emergencies, for example, leaves Congress out of the decision-making process and makes any subsequent actions by Congress seem untimely and ineffectual . 95 The military and covert agencies’ increased capabilities benefit only the President who directs them. The fact that the President can demand media attention and use the public culture to his advantage diminishes the visibility, and therefore the effectiveness, of a Congress that does not have similar tools.The result of all this, I would suggest, is that the system of checks and balances that the Framers envisioned now lacks effective checks and is no longer in balance . The implications of this are serious. The Framers designed a system of separation of powers to

combat government excess and abuse and to curb incompetence.96 They also believed that, in the absence of an effective separation-of-powers structure, such ills would inevitably follow.

Unfortunately, however, power once taken is not easily surrendered . Regardless of

which party nominee wins the 2008 presidential election, therefore, it is unlikely that the imbalance of power that has developed in recent years will be easily remedied. Not using all available power requires a principled restraint that likely extends beyond the capabilities of most politicians .


1ar – AT: Executive Flexibility N/B

Laundry list of reasons why executive power expansion is inevitable:

a) Constitutional indeterminacyMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI1. The Constitutional Indeterminacy of the PresidencyThe first and perhaps overarching reason underlying the growth of presidential power is that the constitutional text on the subject is notoriously unspecific , allowing as one writer maintains, for the office “to grow with the developing nation.”19 Unlike Article I, which sets forth the specific powers granted to Congress,20 the key provisions of Article II that grant authority to the President are written in indeterminate terms such as “executive power,”21 or the duty “to take care that the laws be faithfully executed.”22 Moreover, unlike the other branches, the Presidency has consistently been deemed to possess significant inherent powers.23 Thus, many of the President’s recognized powers, such as the authority to act in times of national emergency24 or the right to keep advice from subordinates confidential,25 are nowhere mentioned in the Constitution itself . In addition, case law on presidential power is underdeveloped . Unlike the many

precedents addressing Congressional26 or federal judicial27 power, there are remarkably few Supreme Court cases analyzing presidential power. And the leading case on the subject, Youngstown Sheet & Tube Co. v. Sawyer,28 is known less for its majority opinion than for its concurrence by Justice Jackson, an opinion primarily celebrated for its rather less-than-definitive announcement that much of presidential power exists in a “zone of twilight.” 29

Accordingly, the question whether a President has exceeded her authority is seldom immediately obvious because the powers of the office are so open- ended .30 This fluidity in definition, in turn, allows presidential power to readily expand when factors such as national crisis, military action, or other matters of expedience call for its exercise.31 Additionally, such fluidity allows political expectations to affect public perceptions of the presidential office in a manner that can lead to expanded notions of the office’s power.32 This perception of expanded powers, in turn, can then lead to the perceived legitimacy of the President actually exercising those powers. Without direct prohibitions to the contrary, expectations easily translate into political reality .33


b) PrecedentMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI2. The Precedential Effects of Executive Branch ActionPresidential power also inevitably expands because of the way executive branch precedent is used to support later exercises of power.34 Many of the defenders of broad presidential power cite historical examples, such as President Lincoln’s suspension of habeas corpus, as authority for the position that Presidents have considerable powers in times of war and national emergency.35 Their position is straight-forward. The use of such powers by previous Presidents stands as authority for a current or future President to engage in similar actions.36 Such arguments have considerable force, but they also

create a one-way ratchet in favor of expanding the power of the presidency . The fact is that every President but Lincoln did not suspend habeas corpus. But it is a President’s action in using power, rather than forsaking its use, that has the precedential significance .37 In this manner, every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.

c) LawyeringMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI3. The Role of Executive Branch LawyeringThe expansion of presidential power is also a product of executive branch lawyering. Because of justiciability limitations, many of the questions surrounding the scope of presidential power, such as war powers ,38 never reach the courts.39 In these circumstances, the Department of Justice (DOJ) and its Office of Legal Counsel (OLC), the division that is charged with advising the President as to the scope of his or her powers, are the final legal authorities opining on these issues.40This means, in effect, that the executive branch is the final judge of its own authority. Not surprisingly, this dynamic leads to broad interpretations of executive power for a variety of reasons.41 To begin with, the President, simply by his power of appointment, can assure that his Attorney General views the primary duty of the office is to empower the administration and not to some abstract, dispassionate view of the law.42 President Kennedy selected his brother to be Attorney General, President Nixon his campaign manager. Neither appointment, I suspect, was based on the desire to have a recalcitrant DOJ. Moreover, even

when the President chooses a person renowned for her independence, the pressures to bend to the President’s will are considerable. Not only does the Attorney General act under the threat of removal, but she is likely to feel beholden to the President and bound, at least in part, by personal loyalty.43Some might argue that even if the Attorney General may be overly susceptible to the influence of the President who appointed her, the same should not be true of the career legal staff of the DOJ, many of whom see their role as upholding the Constitution rather than implementing any President’s specific agenda. But the ability of the line lawyers at DOJ to effectively check executive branch power may be


more illusory than real . First, the lawyers in the DOJ are likely to have some disposition in favor of the government if only because their clients are the President and the executive branch.44 Second, those DOJ lawyers who are hired for their ideological and political support of the President will likely have little inclination to oppose the President’s position in any case. Third, as a recent instance at DOJ demonstrates, the President’s political appointees can always remove or redeploy staff attorneys if they find them too independent.45 Fourth, even if some staff lawyers have initial resistance to the President’s position, the internal pressures created by so-called “group-think” may eventually take over.46 The ability of a staff attorney to withstand the pressures of her peers in adhering to legal principle in the face of arguments based on public safety or national security can often be tenuous, particularly when the result of nay-saying may lead the lawyer to exile in a less attractive assignment.

d) Executive growthMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI4. The Growth of the Executive BranchA further reason for the growth of presidential power relates to the expansion of the federal executive branch. The massive federal bureaucracy existing today extends far beyond what the framers likely imagined.50 And significantly, for our purposes, the head of that bureaucracy is the President who thereby has all the capabilities and powers of the administrative state at his disposal.51 The substantive scope of his authority, moreover, is breathtaking .52 The President leads

a federal bureaucracy that, among other powers, sets pollution standards for private industry, regulates labor relations, creates food and product safety standards, manages the nation’s lands and natural resources, enforces the federal criminal law, oversees the banking industry, and governs a host of other activities too numerous to mention.53 This may not have been the way it was intended. As Gary Lawson has written, it is questionable whether the delegation of powers to the executive, upon which the administrative state is based, is consistent with the original understanding.54 Yet whether consistent with the Framers’ design or not, the expansion of the federal bureaucracy necessarily invests the Presidency with enormous powers .55 And as the federal bureaucracy continues to expand, so does the power of the Presidency.56 Indeed, even if Congress were able to limit the President’s direct control over the administrative state (a matter that will be discussed in the next Subsection), the President’s powers stemming from an expanded federal bureaucracy would still increase , if only through his powers of appointment.

e) Presidential controlMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI5. Presidential Control of the Administrative State


Related to the expansion of the federal administrative bureaucracy is the increased ability of the president to control that bureaucracy. For many years, the federal bureaucracy stood literally as a “fourth branch of government,” enjoying considerable independence from both Congress and the Presidency.57 Recently, however, as Deans Harold Krent58 and Elena Kagan have stated,59

Presidents are beginning to control the federal bureaucracy for their own political agendas in a manner that has not occurred previously. Krent demonstrates

how President George W. Bush has been able to circumvent congressional efforts to delegate decision making to office holders and to retain such authority for himself,60 while Kagan shows how President Clinton was able to use directives and other measures to more effectively control and claim ownership of agency action.61 The Clinton and Bush Presidencies will likely serve as lessons to future administrations, suggesting that increased control of the federal bureaucracy is yet another way that presidential power will continue to expand.

f) InformationMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI6. Presidential Access to and Control of Information

If, “[i]n the information age, information is power ”62 then most of that power rests with the executive . Because of its vast resources, the executive branch

has far greater access to information than do the co-branches of government.63 In addition, the executive branch has far greater ability and expertise to gather, examine, and cull that information than do the transitory legislative staffs in the Congress. Congress, for example, does not have at its disposal the information gathering capabilities of the intelligence agencies or the technical expertise of the military in determining when there is a threat to national security.64 Instead, it must rely on the executive for that appraisal and therefore must continually negotiate with the executive from a position of weakness and dependence . 65 Moreover, this disparity in access and control of information is only likely to worsen as the world becomes more complex, because complexity necessarily requires increasingly sophisticated methods of information collection, analysis, distillation, and dissemination. And because only the executive branch is likely to have the expertise and the resources to perform these functions, its relative powers will again increase.

g) MediaMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI7. The Media and the Presidency


As Justice Jackson recognized in Youngstown, the power of the Presidency has also been magnified by the nature of media coverage. This coverage, which focuses on the President as the center of national power ,66 has only increased since Jackson’s day as the dominance of television has increasingly identified the image of the nation with the image of the particular President holding office.67 The effects of this image are substantial. Because the President is seen as speaking for the nation, the Presidency is imbued with a unique credibility . The President thereby holds an immediate and substantial advantage in any political confrontation.68 Additionally, unlike the Congress or the Court, the President is uniquely able to demand the attention of the media and, in that way, can influence the Nation’s political agenda to an extent that no other individual, or institution, can even approximate.

h) Popular cultureMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI8. The Presidency in Popular CultureRelatedly, the role of the institution of the President in popular culture also enhances presidential power. As numerous commentators have noted, the public often perceives national power as directly related to the power of the incumbent President.69 For that reason, the citizenry tends to rally behind the President because he is seen as standing for the country.70 This is why the citizenry tends to become invested in a President as soon as he is elected, and is why his popularity always rises immediately after an election.71 Of course, it may be true that the perception of the President as all-powerful can work to his detriment in that he can be held responsible, sometimes unfairly, for matters that are beyond his control.72 But the fact that the President is held responsible in these circumstances is a testament to his perceived power and authority.To be sure, the role of public culture in enhancing the power of the presidency is not exclusively a modern phenomenon. Efforts were made to create a popular mythology surrounding the President as far back as President Washington.73 But as the political and popular culture surrounding the Presidency continue to coalesce, a sitting President’s ability to use popular culture for political benefit is seemingly enhanced as well.74

i) Military and intelligence capabilitiesMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI9. Military and Intelligence CapabilitiesThe President’s power is also enhanced by the vast military and intelligence capabilities under his command. In his roles as Commander-in-Chief and head of the Executive Branch, the President directly controls the most powerful military in the world and directs clandestine agencies such as the


Central Intelligence Agency and National Security Agency.75 That control provides the President with immensely effective, non-transparent capabilities to further his political agenda and/or diminish the political abilities of his opponents. 76 Whether a President would cynically use such power solely for his political advantage has, of course, been the subject of political thrillers and the occasional political attack. President Clinton, for one, was accused of ordering the bombing of terrorist bases in Afghanistan to distract the nation from the Lewinsky scandal,77 and President Nixon purportedly used the Federal Bureau of Investigation to

investigate his political enemies.78 But regardless whether such abuses actually occurred, there is no doubt that control of covert agencies provides ample opportunity for political mischief , particularly since the inherently secretive nature of these agencies means their actions often are hidden from public view . And as the capabilities of these agencies increase through technological advances in surveillance and other methods of investigation, so does the power of the President.

j) Exigent circumstancesMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI10. The Need for Government To Act QuicklyPresidential power also has increased because of the exigencies of decision making in the modern world. At the time of the founding, it would take weeks, if not months, for a foreign government to attack American soil. In the twenty- first

century, the weapons of war take only seconds to arrive. The increased speed of warfare necessarily vests power in the institution that is able to respond the fastest – the presidency , not the Congress.79 Consequently, the President has unparalleled ability to direct the nation’s political agenda.80 The power that comes with being the first to act, moreover, does not end when the immediate emergency is over. Decisions made in times of emergency are not easily reversed ; this is particularly true in the context of armed conflict. The President’s commitment of troops inevitably creates a “rally round the flag” reaction that reinforces the initial decision.81 As Vietnam and now Iraq have shown, Congress is likely to be very slow in second guessing a President’s decision that places soldiers’ lives in harm’s way. That Congress would use its powers (as opposed to its rhetoric) to directly confront the President by cutting off military appropriations seems fanciful .

k) PolarizationMarshall 8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977), B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)//DBI11. The Inceasingly Polarized Two-Party System


The final reason why presidential power has increased relates to the rise of a highly polarized two-party system in which party loyalty trumps institutional concerns. The beginnings of this polarization can be traced to the enactment of the Civil Rights Act of 1964.82 The passage of that Act ended an era that had effectively been a three-party system in the United States: the northern Democrats, the southern Democrats, and the Republicans. During this “three- party” era, members of Congress needed to work across party lines to develop working majorities on particular issues.83 Their political fortunes and reputations, therefore, were closely tied to the success of Congress as an institution.In contrast, in the highly polarized two-party system currently dominating national politics, a member’s political success depends more on the fortunes of her particular party than on the stature of Congress. This means members of Congress have a greater personal interest in the President’s success as leader of their party than they have in Congress as an institution. Correspondingly, because the President is the leader of his or her political party, the President can expect greater loyalty and discipline from party members than occurred in previous eras. The result of this is that when the President’s party controls the Congress, he or she can proceed virtually uncontested.84

Consequently, in an era of highly polarized parties, there no longer exists the constitutional balance purportedly fostered by separation of powers .

Rather, the constitutional balance becomes what Daryl Levinson and Richard Pildes term

a “separation of parties .” 85 The problem, of course, is that separation of parties serves as no balance at all when both the Presidency and the Congress are controlled by the same party. In those circumstances, the power of the Presidency is effectively unchecked.


2ac – AT: Politics Net BenefitThe counterplan links to politics – the curtailing of domestic surveillance angers congress regardless of process Bouie ‘10(Jamelle, “Targeted killings, Barack Obama, and the natural expansion of executive power”, http://trueslant.com/jamellebouie/2010/05/17/targeted-killings-barack-obama-and-the-natural-expansion-of-executive-power/)Granted, these things aren’t always linear. Inevitably, one claim of executive power gives rise to another. Following the Civil War, executive power was severely curtailed by Congress, and presidents remained fairly weak until Woodrow Wilson, who took the powers bequeathed to him by Lincoln and expanded them to meet the challenges — real and imagined — of the First World War. Likewise, executive power waned during the Coolidge and Hoover presidencies, only to explode with FDR and the New Deal. If there’s anything unique about the current era, it’s that we’ve seen a sustained expansion of executive power, beginning with 9/11 and continuing into the non-crisis present with Barack Obama’s broad claims of executive authority . Now, I’m not arguing that every expansion in executive authority is bad, nor am I arguing that civil liberties are inviolate. Balancing liberty and security is incredibly difficult, and I can appreciate the challenge of maintaining the latter without relinquishing the former. As far as I’m concerned, the larger problem lies with the other constitutional actors. Absent a few cases, neither Congress nor the courts seem to have much interest in restraining the president . Moreover, there doesn’t seem to be a large political constituency for executive restraint . The public tends to favor

draconian security measures, Democrats have never been invested in protecting civil liberties, and the GOP has all but morphed into the party of torture and unlimited executive authority . Indeed, the Republican Party’s pro-police state consensus is one of the most frightening things in American politics today, given the virtual certainty of a Republican president in the next decade.

http://trueslant.com/jamellebouie/2010/05/17/targeted-killings-barack-obama-and-the-natural-expansion-of-executive-power/

http://trueslant.com/jamellebouie/2010/05/17/targeted-killings-barack-obama-and-the-natural-expansion-of-executive-power/

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