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Targeted Killings


TK 1NC – Executive Directive[for affs that do not end all strikes]

Text: The President of the United States should issue an executive directive ending CIA targeted killings.

OR

Text: The President of the United States should direct that U.S. drone strikes be conducted as Department of Defense Title 10 operations.

CP Solves the affZenko 13 - Douglas Dillon Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). He currently serves as vice chair of the World Economic Forum Global Agenda Council on Terrorism. Previously, he worked for five years at Harvard University's Kennedy School of Government [Micah Zenko, Douglas Dillon Fellow, Council on Foreign relations, Policy Innovation Memorandum No. 31, April 2013, http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434]The president should direct that U.S. drone strikes be conducted as DOD Title 10 operations . That decision would enhance U.S. national security in the following ways:

Improve the transparency and legitimacy of targeted killings, including what methods are used to prevent civilian harm.Focus the finite resources of the CIA on its original core missions of intelligence collection, analysis, and early warning. (There is no reason for the CIA to maintain a redundant fleet of armed drones, or to conduct military operations that are inherently better suited to JSOC, the premier specialized military organization. As "traditional military activities" under U.S. law, these belong under Title 10 operations.)Place all drone strikes under a single international legal framework, which would be clearly delineated for military operations and can therefore be articulated publicly.Unify congressional oversight of specific operations under the armed services committee, which would end the current situation whereby there is confusion over who has oversight responsibility.Allow U.S. government officials to counter myths and misinformation about targeted killings at home and abroad by acknowledging responsibility for its own strikes.

Increase pressure on other states to be more transparent in their own conduct of military and paramilitary operations in nonbattlefield settings by establishing the precedent that the Obama administration claims can have a normative influence on how others use drones.

CP solves the aff – ending CIA strikes solves drone prolif, leads to better drone use, and increases transparencyZenko 13 - Douglas Dillon Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). He currently serves as vice chair of the World Economic Forum Global Agenda Council on Terrorism. Previously, he worked for five years at Harvard University's Kennedy School of Government [Micah Zenko, Douglas Dillon Fellow, Council on Foreign relations, Policy Innovation Memorandum No. 31, April 2013, http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434]In an interview, President Obama revealed, "I think creating a legal structure, processes, with oversight checks on how we use unmanned weapons is going to be a challenge for me and for my successors for some time to come—partly because technology may evolve fairly rapidly for other countries as well." The Obama administration has two central objectives for its targeted killing reforms: preventing constraints on its ability to conduct lethal operations and setting precedents for the use of armed drones by other states. By law, institutional culture, and customary practice, drone strikes conducted by the CIA cannot reach the minimum thresholds of transparency and accountability required to achieve either objective. JSOC is also a highly secretive organization, but the United States could provide a much clearer and


more detailed explanation of the outstanding issues regarding targeted killing without compromising the military's sources and methods—should the president prioritize such change. Moreover, according to a February 2013 poll,

U.S. public support for military drone strikes (75 percent) was higher than for those conducted by the CIA (65 percent). Without ending CIA targeted killings , the Obama administration cannot undertake any of the reforms that it has stated are necessary both to ensure drone strikes do not go the way of third-country renditions and enhanced interrogation techniques, but also to establish the precedents of greater openness in how such operations are conducted by others.

Directive solves pressure to end strikes and increases transparency – division of authority between JSOC and CIA is the key problemZenko 13 - Douglas Dillon Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). He currently serves as vice chair of the World Economic Forum Global Agenda Council on Terrorism. Previously, he worked for five years at Harvard University's Kennedy School of Government [Micah Zenko, Douglas Dillon Fellow, Council on Foreign relations, Policy Innovation Memorandum No. 31, April 2013, http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434]The main obstacle to acknowledging the scope, legality, and oversight of U.S. targeted killings beyond traditional or "hot"

battlefields is the division of lead executive authority between the Joint Special Operations Command (JSOC)—a subunit of the

Department of Defense (DOD) Special Operations Command—and the Central Intelligence Agency (CIA). In particular, the U.S. government cannot legally acknowledge covert actions undertaken by the CIA. The failure to answer the growing demands for transparency increases the risk that U.S. drone strikes will be curtailed or eliminated due to mounting domestic or international pressure. To take a meaningful first step toward greater transparency, President Barack Obama should sign a directive that consolidates lead executive authority for planning and conducting nonbattlefield targeted killings under DOD.


AT: Doesn’t Solve Transparency

CP leads to increased transparency Zenko 13 - Douglas Dillon Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). He currently serves as vice chair of the World Economic Forum Global Agenda Council on Terrorism. Previously, he worked for five years at Harvard University's Kennedy School of Government [Micah Zenko, Douglas Dillon Fellow, Council on Foreign relations, Policy Innovation Memorandum No. 31, April 2013, http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434]U.S. targeted killings are needlessly made complex and opaque by their division between two separate entities: JSOC and the CIA. Although drone strikes carried out by the two organizations presumably target the same people, the

organizations have different authorities, policies, accountability mechanisms, and oversight. Splitting the drone program between

the JSOC and CIA is apparently intended to allow the plausible deniability of CIA strikes. Strikes by the CIA are classified as Title 50 covert actions, defined as "activities of the United States Government . . . where it is intended that the role . .

. will not be apparent or acknowledged publicly, but does not include traditional . . . military activities." As covert operations, the government cannot legally provide any information about how the CIA conducts targeted killings,

while JSOC operations are guided by Title 10 "armed forces" operations and a publicly available military doctrine. Joint Publication 3-60, Joint Targeting, details steps in the joint targeting cycle, including the processes, responsibilities, and collateral damage estimations intended to reduce the likelihood of civilian casualties. Unlike strikes carried out by the CIA, JSOC operations can be (and are) acknowledged by the U.S. government .


AT: Doesn’t Solve Cred/Soft Power

CP increases US credibility by increasing transparencyZenko 13 - Douglas Dillon Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). He currently serves as vice chair of the World Economic Forum Global Agenda Council on Terrorism. Previously, he worked for five years at Harvard University's Kennedy School of Government [Micah Zenko, Douglas Dillon Fellow, Council on Foreign relations, Policy Innovation Memorandum No. 31, April 2013, http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434]The main objection to consolidating lead executive authority in DOD is that it would eliminate the possibility of deniability for U.S. covert operations. However, any diplomatic or public relations advantages from deniability that once existed are minimal or even nonexistent given the widely reported targeted killings in Pakistan and

Yemen. For instance, because CIA drone strikes cannot be acknowledged, the United States has effectively ceded its strategic communications efforts to the Pakistani army and intelligence service, nongovernmental organizations, and the Taliban. Moreover, Pakistani and Yemeni militaries have often taken advantage of this communications vacuum by shifting the blame of civilian casualties caused by their own airstrikes (or others, like those reportedly conducted by Saudi Arabia in Yemen) to the U.S. government. This perpetuates and exacerbates animosity in civilian populations toward the United States. If the United States acknowledged its drone strikes and collateral damage—only possible under DOD Title 10 authorities—then it would not be held responsible for airstrikes conducted by other countries.


AT: Doesn’t solve Congress

Dual authority wrecks congressional oversight – CP leads to Congressional oversightZenko 13 - Douglas Dillon Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). He currently serves as vice chair of the World Economic Forum Global Agenda Council on Terrorism. Previously, he worked for five years at Harvard University's Kennedy School of Government [Micah Zenko, Douglas Dillon Fellow, Council on Foreign relations, Policy Innovation Memorandum No. 31, April 2013, http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434]The different reporting requirements of JSOC and the CIA mean that congressional oversight of U.S. targeted killings is similarly murky. Sometimes oversight is duplicated among the committees; at other times, there is confusion over who is mandated to oversee which operations. CIA drone strikes are reported to the intelligence committees. Senator Dianne Feinstein (D-CA), chair of the Senate Select Committee on Intelligence (SSCI), has confirmed that the SSCI receives poststrike notifications, reviews video footage, and holds monthly meetings to "question every aspect of the program." Representative Mike Rogers (R-MI), chair of the House Permanent Select Committee on Intelligence (HPSCI), has said that he reviews both CIA and JSOC counterterrorism airstrikes. JSOC does not report to the HPSCI. As of March 2012, all JSOC counterterrorism operations are reported quarterly to the armed services committees. Meanwhile, the foreign relations committees—tasked with overseeing all U.S. foreign policy and counterterrorism strategies—have formally requested briefings on drone strikes that have been repeatedly denied by the White House. However, oversight should not be limited to ensuring compliance with the law and preventing abuses, but rather expanded to ensure that policies are consistent with strategic objectives and aligned with other ongoing military and diplomatic activities. This can only be accomplished by DOD operations because the foreign relations committees cannot hold hearings on covert CIA drone strikes.


AT: Links to Politics

Bipart support for the CPZenko 13 - Douglas Dillon Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). He currently serves as vice chair of the World Economic Forum Global Agenda Council on Terrorism. Previously, he worked for five years at Harvard University's Kennedy School of Government [Micah Zenko, Douglas Dillon Fellow, Council on Foreign relations, Policy Innovation Memorandum No. 31, April 2013, http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434]In 2004, the 9/11 Commission recommended that the "lead responsibility for directing and executing paramilitary operations, whether clandestine or covert, should shift to the Defense Department" to avoid the "creation of redundant, overlapping capabilities and authorities in such sensitive work." The recommendation was never seriously considered because the CIA wanted to retain its covert action authorities and, more important, it was generally believed such operations would remain a rarity. (At the time, there had been only one nonbattlefield targeted killing.) Nearly a decade later, there is increasing bipartisan consensus that consolidating lead executive authority for drone strikes would pave the way for broader strategic reforms, including declassifying

the relevant legal memoranda, explicitly stating which international legal principles apply, and providing information to the public on existing procedures that prevent harm to civilians. During his February 2013 nomination hearing, CIA director

John O. Brennan welcomed the transfer of targeted killings to the DOD: "The CIA should not be doing traditional military activities and operations."


AT: Directives Not Enforceable/Not official

Directives are enforceable and official – they codify proceduresGraziano 1 - focuses on legal and judicial reform and such constitutional issues as ensuring that all citizens are accorded equal treatment under the law. Before joining former Attorney General Edwin Meese at The Heritage Foundation in 1997, Mr. Gaziano served under noted conservative leaders in all three branches of the federal government. [Todd F. Gaziano, The Use and Abuse of Executive Orders and Other Presidential Directives, Texas Review of Law & Politics, 2000, lexis]In order to place issues of legality and policy in their proper context, it is important to begin with an understanding of the nature and history of executive decrees. From the founding of the nation, American Presidents have developed and used various types of presidential or executive "directives."[17] Although executive orders and presidential proclamations are the best known

directives, many other documents have a similar function and effect.[18] Reduced to their common core, presidential directives are simply written, rather than oral, instructions or declarations issued by the President. Because we would neither expect nor want the President to limit himself solely to oral instructions and declarations, it is not surprising that every President has used written directives to run the executive branch of government.


AT: Exec Directives Don’t Solve

Executive Directives hold the weight of lawGordon 7 - Doctoral Student Oxford Brookes University [VIKKI GORDON, The Law: Unilaterally Shaping U.S. National Security Policy: The Role of National Security Directives, Presidential Studies Quarterly, 2007]A growing body of work5¶ has developed in the field of presidential studies in recent¶ years on unilateral presidential power. Unilateral presidential power is the ability of the¶ president to act independently, either with or without the explicit consent

of Congress or¶ the courts, to effect policy change outside the bargaining framework (Howell 2003, 13).¶ As such, the president has the advantages that he acts alone and can make the first move¶ unilaterally to effect policy change and, therefore, places the burden on Congress to¶ counter his action through legislation or on the courts to overturn the action (Mayer¶ 2001, 26). So, then, by acting either unilaterally through the administrative process or¶ through engagement in the legislative process, the president can influence policies which¶ carry the weight of law.


AT: CP is the Squo

CIA still carrying out killings – Mazzetti and Landler 13 [MARK MAZZETTI and MARK LANDLER, Despite Administration Promises, Few Signs of Change in Drone Wars, 8/2/2013, http://www.nytimes.com/2013/08/03/us/politics/drone-war-rages-on-even-as-administration-talks-about-ending-it.html?nl=todaysheadlines&emc=edit_th_20130803]More than two months after President Obama signaled a sharp shift in America’s targeted-killing operations, there is little public evidence of change in a strategy that has come to define the administration’s approach to

combating terrorism.¶ Most elements of the drone program remain in place, including a base in the southern desert of Saudi

Arabia that the Central Intelligence Agency continues to use to carry out drone strikes in Yemen. In late May,

administration officials said that the bulk of drone operations would shift to the Pentagon from the C.I.A.¶ But the C.I.A. continues to run America’s secret air war in Pakistan, where Mr. Kerry’s comments underscored the administration’s haphazard approach to discussing these issues publicly. During a television interview in Pakistan on Thursday, Mr. Kerry said the United States had a “timeline” to end drone strikes in that country’s western mountains, adding, “We hope it’s going to be very, very soon.”¶ But the Obama administration is expected to carry out drone strikes in Pakistan well into the future. Hours after Mr. Kerry’s interview, the State Department issued a statement saying there was no definite timetable to end the targeted killing program in Pakistan, and a department spokeswoman, Marie Harf, said, “In no way would we ever deprive ourselves of a tool to fight a threat if it arises.”¶ Micah Zenko, a fellow with the Council on Foreign Relations, who closely follows American drone operations, said Mr. Kerry seemed to have been out of sync with the rest of the Obama administration in talking about the drone program. “There’s nothing that indicates this administration is going to unilaterally end drone strikes in Pakistan,” Mr. Zenko said, “or Yemen for that matter.”¶ The mixed messages of the past week reveal a deep-seated ambivalence inside the administration about just how much light ought to shine on America’s shadow wars. Even though Mr. Obama pledged a greater transparency and public accountability for drone operations, he and other officials still refuse to discuss specific strikes in public, relying instead on vague statements about “ongoing counterterrorism operations.”¶ Some of those operations originate from a C.I.A. drone base in the southern desert of Saudi Arabia — the continued existence of which encapsulates the hurdles to changing how the United States carries out targeted-killing operations.

CIA still does TK in the squo – Squo is only a preferenceBennett 13 [John T. Bennett, Defense News, 5/24/13, http://www.defensenews.com/article/20130524/DEFREG02/305240010/White-House-Quietly-Shifts-Armed-Drone-Program-from-CIA-DoD]In that classified document, “there’s an indication of a preference for the Department of Defense to engage in the use of

force outside of war zones,” the senior administration official told reporters.¶ That official, however — by calling it “a preference” that

the military take the lead role — provided important wiggle room and signaled the CIA is not out of the targeted-killing business for good.¶ To that end, a former senior CIA official told Defense News earlier this week following a not-for-attribution event in Washington that Obama and his senior national security advisers have wanted for some time to return the CIA to its core missions.¶ “Do you want the nation’s top espionage agency conducting a paramilitary mission or performing espionage?” the former senior official asked rhetorically. “The agency, since 9/11, and it’s understandable, has gotten away from its core missions. A lot of the collection and analysis really is now used for targeting.”¶ The former senior official predicted the revamped drone program will give the president important legal flexibility.

Despite administration announcements, CIA still maintains killing authorityMunoz 13 [Carlo Munoz, McCain: Senate to tee up armed drone ops in defense authorization debate, The Hill, 7/31/13, http://thehill.com/blogs/defcon-hill/policy-and-strategy/314737-mccain-senate-to-tee-up-armed-drone-ops-in-defense-authorization-debate#ixzz2d79Rfosn]Currently, the Pentagon and CIA coordinate and execute their own independent armed drone operations in various hot spots across the globe. That shift was part of an overall effort by the White House to update U.S. counter terrorism strategy from the days directly after the 9/11 attacks. That overall update will rein in some of the expansive powers handed to the Pentagon and intelligence community to wage war against al Qaeda and its affiliates. “Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states,” Obama said at the time. The idea has already generated support from a number of senior Senators.


Handing U.S. military leaders sole control over parts of the program is a major step away from the administration's "status quo" in its aggressive use of armed drone strikes, Sen. Jay Rockefeller (D-W.Va.) told The Hill in June. The new counter terrorism strategy laid out by Obama in May "sort of shifts things toward DOD, and I think that is a good thing," Rockefeller, the No. 2 Democrat on the Senate intelligence panel, said at the time. But since Obama's speech in May, efforts to shift control of armed drone operations to DOD have stalled at the Pentagon and in Langley. Despite the administration's fervor, U.S. military and intelligence leaders "are satisfied with the status quo," according to McCain, who noted the only way to break that impasse is to use the FY' 14 Pentagon budget as leverage.


AT: CP Interbranch Conflict

Graham Dodds, CONTESTED STEWARDSHIP: INTER-BRANCH CONFLICT OVER UNILATERAL PRESIDENTIAL DIRECTIVES FOR PUBLIC LANDS, White House Studies, Volume 11, Number 1, 2011, Congressional attempts to reverse unilateral presidential directives are infrequent and¶ seldom successful. According to Neil Kinopf, special assistant to the Office of Legal Counsel¶ at the Department of Justice under Bill Clinton, "In the 25 years from January 1973 through¶ the end of 1997, legislation to overturn an executive order was introduced on 37 occasions"¶ [6]. And Terry Moe and William Howell report that only three of those thirty-seven attempts¶ were successful [7]. Earlier congressional efforts to reverse unilateral presidential directives¶ were also rare, and rarely successful.¶ In terms of the judiciary's response, Kenneth Mayer reports that "between 1789 and¶ 1956, state and federal courts overturned only 16 executive orders" [8]. The number¶ overturned in more recent years has also been small: according to Moe and Howell, of the¶ roughly 4,000 executive orders issued between 1942 and 1996, only 86 were challenged in¶ court, and presidents won in 86% of those few cases [9]. The rare occasions when courts do¶ overturn executive orders may be dramatic, but they are the exception rather than the rule. By¶ some accounts, even the Court's famous decision in Youngstown Sheet and Tube Co., v.¶ Sawyer (1952) to strike down Harry Truman's executive order nationalizing the nation's steel¶ industry was more of a fluke than a principled curtailment of unilateral presidential action¶ [10]. Scholars are still debating whether several court cases against George W. Bush's orders establishing military tribunals for suspected terrorists and limiting their access to the writ of¶ habeas corpus are a broad judicial rebuke of unilateral presidential excess or of limited¶ significance.¶ The above figures suggest that executive orders and proclamations give presidents a¶ means of unilateral policymaking that is largely immune from the checks of the other two¶ branches, in that Congress and the courts so seldom reverse unilateral presidential directives.¶ There is of course the alternative possibility that the few instances in which the judiciary or¶ the legislature reverses unilateral executive directives demonstrate that the executive is¶

constrained and limits such directives out of fear of being reversed, but this does not appear to¶ be the case [11]. Even though it seems to go against the Madisonian conception of the three¶ branches having the motive and means to resist encroachment on their own constitutional¶ purview, the other two branches largely accept executive unilateralism [12].¶ Political science scholarship offers several possible explanations for this state of affairs.¶ For example, the judiciary's acceptance of unilateral presidential directives may be explained¶ by the "political question" doctrine. This is the practice whereby the federal judiciary tries not¶ to become involved in interbranch conflicts, in the hope that they might better be resolved¶ through regular political processes than by a court decision [13]. Unilateral presidential¶

directives can lead to exactly this sort of difficulty, so the political question doctrine may¶ account for the judiciary's apparent reluctance to strike them down. Additionally or¶ alternatively, the judiciary may accept executive unilateralism because courts are seldom¶ really counter-majoritarian but instead tend to reflect popular political sentiments, possibly¶ because of the confirmation process [14]. Insofar as courts rarely go against dominant¶ political arrangements, the scarcity of decisions against unilateral presidential directives may¶ be understandable. As for the legislature's deference to unilateral presidential directives. Congress may tend¶ to defer because of the difficulties of collective action. It is far easier for the president to¶ quickly write a directive than it is for a majority of the U.S. House and perhaps 60 Senators to¶ agree on legislation to override a unilateral presidential directive. Furthermore, Congress may¶ also accept it because at times Congress likes to punt on big issues, or to pass along political¶ hot potatoes to the other branches. The legislature has often let the judiciary address issues¶

that it will not, and it may also permit the executive branch to perform the same function [15].¶

Alternatively, Congress's inaction may simply be an indication that it is a dysfunctional or¶ even "broken" branch [16].


Detention

Text: The Executive branch of the United States should require [insert mandates of the plan]


Solves Detention

Only the CP solves – Guantanamo proves - the problem is not congressional opposition, it’s the administration fearing the danger of transferring the detainees which means presidential action alone is sufficient to solveJoscelyn 13(Thomas Joscelyn, senior fellow at the Foundation for Defense of Democracies, “Obama, Not Congress, Is the Reason Guantánamo Is Still Open” May 3, 2013, http://www.thedailybeast.com/articles/2013/05/03/obama-not-congress-is-the-reason-guantanamo-is-still-open.html, KB)During a news conference earlier this week, President Obama was asked about the mass hunger strike at the Guantánamo Bay detention facility. The president said it does not surprise him “that we’ve got problems in Guantánamo,” and it’s why he still believes “that we’ve got to close” it down. Obama ordered Guantánamo shuttered as one of his first acts in office, but more than four years later it is open. The president blamed Congress for the failure to deliver on his pledge. “I’m going to go back at this” and “reengage with Congress,” Obama vowed.¶ Congressional restrictions have made it more difficult to transfer or relocate Guantánamo detainees. But congressional opposition is not the only reason Guantánamo’s cells are occupied. Closing Guantánamo

has always been a tricky proposition—one that is far more difficult than the president’s rhetoric implies.¶ Consider the findings of Obama’s

own Guantánamo Review Task Force, which reviewed the files on the 240 detainees held as of January 2009. The task force’s final report, issued in January 2010, outlined the various national security challenges closing Guantánamo entails. Indeed, the report goes a long way toward explaining why 166 detainees remain in their cells to this day.¶ The task force split the detainee population into three

general categories: those who will stay in indefinite detention, those who should be prosecuted, and detainees who have been approved for transfer. ¶ Forty-eight detainees were placed in the first category, as they were “determined to be too dangerous to transfer but not feasible for prosecution.” They will stay in indefinite detention at Guantánamo or some other location for the foreseeable future.¶ Oddly, the president’s discussion of Guantánamo this week was at odds with his own task force’s recommendations. The president ticked off the reasons why he believes indefinite detention is unnecessary. “Why are we doing this?” Obama asked rhetorically. “I mean, we’ve got a whole bunch of individuals who have been tried who are currently in maximum-security prisons around the country. Nothing’s happened to them. Justice has been served.”¶ But the Obama administration has determined that dozens of men must remain in detention without prosecution. Moving them to a maximum-security prison without

trial simply substitutes Gitmo North for Gitmo South.¶ The task force referred a second category of detainees, 36 in all,

“for prosecution either in federal court or a military commission.” These proceedings have progressed far too slowly,

and few trials have been brought to a close. Still, the task force slated these detainees for prosecution, not freedom. ¶ The precise counts have changed since the task force issued its final report in 2010, but about half of today’s detainee population

falls into these first two categories. According to a recent article published by Reuters, 80 of the 166 detainees are held in indefinite detention, awaiting prosecution, or have already been either charged or convicted by a military commission. ¶ The final 86 detainees have been “approved for transfer,” but their status is widely misunderstood. The press frequently reports that these detainees have been “cleared for release.” The implication is that these detainees have been deemed innocent and can be safely released without any cause for concern. If that were true, of course it would be outrageous for the U.S. government to continue holding them.¶ It is not true, however. Obama’s task force made it clear that other than 17 Chinese Uighur detainees, most of whom have since been released from Guantánamo, “no detainees were approved for ‘release’ during the course” of its review. Instead, the task force “approved for transfer” 126 detainees “subject to security measures.” Dozens of the detainees “approved for transfer” have since left Cuba, but 86 of them remain in detention.¶ The task force did not “clear” these men of any wrongdoing, nor does the Obama administration think transferring them out of Guantánamo is a risk-free endeavor.¶ “There were considerable variations among the detainees approved for transfer,” the task force wrote in its final report. “For a small handful of these detainees, there was scant evidence of any involvement with terrorist groups or hostilities against Coalition forces in Afghanistan.” However, “for most of the detainees approved for transfer, there were varying degrees of evidence indicating that they were low-level foreign fighters affiliated with al-Qaida or other groups operating in Afghanistan.”¶ The task force stressed “that a decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism.” On the contrary, the task force concluded that

“any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate security measures in the receiving country.” ¶ And there’s the rub. Mitigating the threat posed by transferred detainees is an inherently difficult proposition. The Obama administration worked hard to transfer detainees, to both their home countries and allied nations. But 56 of the remaining 86 detainees who have been “approved for transfer” are from Yemen. The task force approved 30 of the 56 Yemeni detainees for “conditional” detention. They can only be transferred home if security conditions improve and other measures are met. That isn’t happening anytime soon.¶ Obama himself issued a moratorium on transfers to Yemen on Jan. 5, 2010. The move was in response to al Qaeda in the Arabian Peninsula’s attempted attack on a Detroit-bound airliner on Christmas Day 2009. The White House said this week that the moratorium “remains in place,” despite the president’s pledge “to go back at this.”¶ Look at the numbers again. Obama’s task force slated 80 of the current detainees for indefinite detention or prosecution. An additional 56 Yemeni detainees have been approved for transfer but are in custody because of al Qaeda’s rise in their home country and the president’s subsequent moratorium on


transfers.¶ The bottom line is that most of the Guantánamo detainees—136 out of 166—are in U.S. custody because

that is where the Obama administration thinks they belong.

The power of indefinite detention lies with the ExecutiveZheng 12(Henry Zheng, “NDAA Terrorism Law: Obama and His Unchecked Power Grab” 2012, http://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grab, KB)Holder's response to the criticism is, "There is, quite simply, no inherent contradiction between using military commissions in appropriate cases while still prosecuting other terrorists in civilian courts. Without question, there are differences between these systems that must be – and will continue to be – weighed carefully. Such decisions about how to prosecute suspected terrorists are core Executive Branch functions." ¶ Essentially, Holder is saying that the power to determine suspects who will be tried in a normal civilian court or a military tribunal still lies with the president and those under his authority, not Congress or the Supreme Court.

Past attempts proveReilly 13(Ryan J. Reilly, reporter who covers the Justice Department and the Supreme Court for The Huffington Post, “Obama's Guantanamo Is Never Going To Close, So Everyone Might As Well Get Comfortable”¶ 02/16/2013, http://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.html, KB)Obama shut down the military tribunals as soon as he took office and began exploring ways to transfer the suspected terrorists to American soil -- possibly to a prison in Illinois -- and try them in federal courts. Throughout

the long, hot summer of 2009, however, as the Tea Party movement blossomed, Republicans charged that closing Guantanamo would put Americans in danger, potentially even leading to terrorist prison breaks. Senate Democrats, lead by Majority Leader Harry Reid (D-Nev.), also opposed transfering the detainees and cut off $80 million Obama had requested to do so, claiming the administration had done too little to outline its plans.

CP solves the affPosner 13(Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice, “President Obama Can Shut Guantanamo Whenever He Wants” May 2, 2013, http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html, KB)The NDAA does not, however, ban the president from releasing detainees. Section 1028 authorizes him to release them to foreign countries that will accept them—the problem is that most countries won’t, and others, like Yemen, where about 90 of the 166 detainees are from, can’t guarantee that they will maintain control over detainees, as required by the law.¶ There is another section of the NDAA, however, which has been overlooked. In section 1021(a), Congress “affirms” the authority of the U.S. armed forces under the AUMF to detain members of al-Qaida and affiliated groups “pending disposition under the law of war.” Section 1021(c)(1) further provides that “disposition under the law of war” includes “Detention under the law of war without trial until the end of the hostilities authorized by” the AUMF. Thus, when hostilities end, the detainees may be released.¶ The president has the power to end the hostilities with al-Qaida—simply by declaring their end. This is not a controversial sort of power. Numerous presidents have ended hostilities without any legislative action from Congress—this happened with the Vietnam

War, the Korean War, World War II, and World War I. The Supreme Court has confirmed that the president has this

authority.

http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html


http://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.html

http://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.html

http://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grab

http://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grab


AT: Obama Ignores the CP

Obama would follow the CP – past statements proveJackson 11(David Jackson, White House and political campaign reporter, “Obama objects to plans to bar domestic trials of terrorist suspects” Jan 07, 2011, http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-/1#.Uff6z42fhE8, KB)President Obama signed the military funding bill today, but vowed to roll back a rule that would bar the use of federal money to try Khalid Sheikh Mohammed and other Guantanamo Bay terrorist suspects in U.S. civilian courts.¶ That section "represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests," Obama wrote in a signing statement.¶ The president also said he would seek repeal of a provision that would make it harder to transfer Gitmo detainees to other countries -- thereby making it harder to close the controversial prison facility. ¶ The Obama administration's 2009 proposal to try Khalid Sheik Mohammed in federal court in New York City drew fierce criticism from city officials, congressional Republicans, and some families of 9/11 victims who said he should be subject to a military trial at Guantanamo Bay, Cuba.¶ The controversy inspired a provision in the defense authorization bill that prevents the use of federal funds to transfer Gitmo detainees to the U.S. and put them on trial in U.S. courts.¶ "The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us," Obama wrote in his signing statement. "Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security."

http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-/1#.Uff6z42fhE8

http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-/1#.Uff6z42fhE8


AT: Cant Declare War Over

Obama can declare the war with al-Qaida over – Korea and Vietnam provePosner 13(Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice, “President Obama Can Shut Guantanamo Whenever He Wants” May 2, 2013, http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html, KB)Nor is there any reason why President Obama couldn’t declare the war with al-Qaida at an end. The group’s original core is essentially gone. A Department of Defense official recently hinted that the end of the

conflict with al-Qaida is approaching , while the troop drawdown in Afghanistan will be completed next year. Associates and fellow travelers continue to exist, but the president is free to end hostilities even so; this, too, has

happened many times before, like in Korea and Vietnam.




AT: No Funds

The executive will receive funding – the courts will defer to ObamaPosner 13(Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice, “President Obama Can Shut Guantanamo Whenever He Wants” May 2, 2013, http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html, KB)It’s true that section 1027, the provision of the NDAA that flatly prohibits the use of funds to transfer Guantanamo detainees to U.S. soil, appears to make it impossible to transfer them to prisons inside the U.S. But if that’s the case, and detainees can’t be transferred to foreign countries under section 1028 either, then section 1027 essentially orders the president to detain non-combatants indefinitely, and such an order is of dubious constitutionality at best. When the Supreme Court approved indefinite detention of members of al-Qaida and the Taliban in Hamdi v. Rumsfeld in 2004, the premise was the president’s military authority under the AUMF and the “active combat operations against Taliban fighters” in Afghanistan. When active combat operations cease, this pillar of the Supreme Court’s opinion falls. And while courts have been reluctant to grant rights to detainees that constrain the president’s power, they are likely to take the opposite view if he advances those rights while declaring that hostilities have ended. ¶ The better interpretation of section 1027, one that avoids constitutional difficulties, bans transfers from Guantanamo to the U.S. only as long as hostilities continue. Courts have recognized repeatedly that the president can act on reasonable interpretations of statutes when they are ambiguous or contain internal contradictions; that

statutes should be read to avoid constitutional problems like the one mentioned above; and that the president is entitled to special deference when laws touch on his foreign affairs and military powers. Yet another rule discourages interpretations of statutes that violate international law—which requires enemy combatants to be released at the end of hostilities unless they are convicted of crimes. For all these reasons, if President Obama were to declare an end of hostilities with al-Qaida and release detainees, he would be on reasonable legal ground. And it’s not as though Obama has been shy about asserting executive power when Congress blocks an objective he cares about. His military intervention in Libya in defiance of the War Powers Act (and legal advice from some of his own lawyers) is one example.




Cyber


Armed Forces

COUNTERPLAN: The President of the United States should issue an Executive Order committing the executive branch to Solicitor General Representation and advance consultation with the Office of Legal Counsel over decisions to initiate military action, unless to repel attacks on the United States.

The Department of Justice officials should counsel against doing so without prior Congressional authorization.

The Executive Order should also require written publication of Office of Legal Counsel opinions.

Executive pre-commitment to DOJ advice solves the affPillard 2005 – JD from Harvard, Faculty Director of Supreme Court Institute at Georgetown University Law Center, former Deputy Assistant Attorney General in the DOJ (February, Cornelia T., Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”, 103 Mich. L. Rev. 676-758, http://scholarship.law.georgetown.edu/facpub/189/)

V. ENABLING EXECUTIVE CONSTITUTIONALISMThe courts indisputably do not and cannot fully assure our enjoyment of our constitution al rights, and it is equally

clear that the federal exec utive has an independent constitutional duty to fulfill the Constitution's promise . Executive constitutionalism seems ripe with promise. Yet, it is striking how limited and court-centered the executive's normative and institutional approaches to constitutional questions remain.One conceivable way to avoid the pitfalls of court-centric executive lawyering on one hand and constitutional decisions warped by

political expedience on the other would be to make the Solicitor General and Office of Legal Counsel - or perhaps the

entire Department of Justice - as structurally independent as an independent counsel or independent agency.207

Making the SG and OLC independent in order to insulate them from politics presumably would alleviate the "majoritarian difficulty" resulting from their service to elected clients. Promoting fuller independence in that sense does not, however, appear to be clearly normatively attractive, constitutionally permissible, nor particularly feasible. In all the criticism of our current constitutionalism, there is little call for an SG or OLC that would act, in effect, as a fully insulated and jurisprudentially autonomous constitutional court within the executive branch, operating with even less transparency and accountability than the Supreme Court. Moreover, as a practical matter it would be complex and problematic to increase the independence of the SG and OLC. The federal government faces Article II obstacles to formally insulating executive lawyers from politics and institutional pressures, and the president and his administration likely would be less amenable to guidance from such unaccountable lawyers.208The challenge, rather, is to draw forth from the executive a constitutional consciousness and practice that helps the government actively to seek to fulfill the commitments of the Constitution and its Bill of Rights, interpreted by the executive as guiding principles for government. Adjustments to executive branch constitutional process and culture should be favored if they encourage the executive to use its experience and capacities to fulfill its distinctive role in effectuating constitutional guarantees. There is transformative potential in measures that break ingrained executive branch habits of looking to the Constitution only as it is mediated through the courts, and of reflexively seeking, where there is no clear doctrinal answer, to minimize constitutional constraint. It is difficult fully to imagine what kinds of changes would best prompt executive lawyers and officials to pick up constitutional analysis where the courts leave off, and to rely on the Constitution as an affirmative, guiding mandate for government action; what follows are not worked-out proposals, but are meant to be merely suggestive.A. Correcting the Bias Against Constitutional Constraint


As we have seen, the SG's and OLC's default interpretive approach to individual rights and other forms of constitutional constraints on government is to follow what clear judicial precedents there are and, where precedents are not squarely to the contrary, to favor interpretations that minimize constitutional rights or other constitutional obligations on federal actors. Those court-centered and narrowly self-serving executive traditions produce a systematic skew against individual rights.1. Encourage Express Presidential Articulation of Commitment to Constitutional Rights To the extent that a president articulates his own rights-protective constitutional vision with any specificity, he ameliorates the tension his constitutional lawyers otherwise face between advancing individual rights and serving their boss's presumed interest in maximum governing flexibility. Case or controversy requirements

and restrictions against courts issuing advisory opinions do not, of course, apply to the executive's internal constitutional decisionmaking, and presidents can better serve individual rights to the extent that they expressly stake out their

constitutional commitments in general and in advance of any concrete controversy."° When the president takes a stand for advancing abortion rights, property rights, disability rights, "charitable choice," a right to bear arms, or full remediation of race and sex discrimination, he signals to his lawyers that they should, in those areas, set aside their default bias in favor of preserving

executive prerogative, even if it requires extra executive effort or restraint to do so.If presented in a concrete setting with a choice between interpreting and applying the Constitution in fully rights-protective ways or sparing themselves the effort where Supreme Court precedent can be read not to require it, government officials typically default to the latter course without considering whether they might thereby be giving short shrift to a constitutional duty. A president's stated commitment to protection of particular rights, however, flips the default position with respect to those rights, acting as a spur to executive- branch lawyers and other personnel to work to give effect to constitutional rights even where, for a range of institutional reasons, the courts would not. A president is thus uniquely situated to facilitate full executive-branch constitutional compliance by precommitting himself to a rights-protective constitutional vision, and thereby making clear that respect for constitutional rights is part of the executive's interest, not counter to it.

It has the effect of the aff but doesn’t jeopardize crisis flexMorrison 2011 – Professor of Law, Columbia University (Trevor W., Harvard Law Review, ““Hostilities,” the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation”, 124 HARV. L. REV.F. 62, http://web.law.columbia.edu/sites/default/files/microsites/constitutional-governance/files/Libya-Hostilities-Office-of-Legal-Counsel.pdf)

Once OLC arrived at its conclusion, it should have been clearly conveyed to the relevant parties, ideally in writing. Reducing an opinion to writing is not always possible when time is short, but where it is feasible it helps clarify the precise terms and bounds of OLC’s position. The recipients of OLC’s opinion (whether written or oral) should have regarded it as the presumptively final word on the “hostilities” question. The President certainly retains the authority to overrule OLC, but the traditions of executive branch legal interpretation do not contemplate routine relitigation before the President. Still, on matters of grave consequence where affected agencies strongly disagree with OLC’s analysis, there is nothing categorically inappropriate in their seeking presidential review. Importantly, any such presidential review should proceed on the understanding that OLC’s analysis should be adhered to in all but the most extreme circumstances . Presidential overruling should be rare because it can carry serious costs . To start, it can undermine OLC’s ability to produce legal opinions consistent with its best view of the law. Agency general counsels and the White House Counsel’s Office may approach legal questions not with the goal of seeking the best view of the law, but with the aim of finding the best, professionally responsible legal defense of their client’s preferred policy position. There is nothing wrong with that. But if the President routinely favors legal views of that sort over OLC’s conclusions, the traditional rationale for having an OLC at all will be undermined. OLC’s work product is significant today in large part because of the time-honored understanding that its conclusions are presumptively binding within the executive branch. Routine presidential overruling would weaken the presumption, which in turn would diminish the significance of OLC’s work and reduce its clients’ incentive to seek its views. To remain relevant, OLC would likely start intentionally tilting its analysis in favor of its clients’ (here, the President’s) preferred policies. Put another way, the strong presumption in favor of the authoritativeness of OLC’s analysis provides OLC with the institutional space and cover to provide answers based on its best view of the law. If the former is weakened, the latter is jeopardized.


That's key to Presidential effectiveness—keeping authority is key—the impact is extinctionBaker, 7 - Chief Judge to the United States Court of Appeals for the Armed Forces, former Special Assistant to the President and Legal Advisor to the National Security Council (James, IN THE COMMON DEFENSE: NATIONAL SECURITY LAW FOR PERILOUS TIMES, p. 307-309)

This book has considered national security law and process in the context of four security threats. First is the threat of attack by nonstate and statesponsored or supported actors using terrorist means. Overseas, this threat is realized on a daily basis. Within the United States the threat is continuous, but intermittent. The threat of high-explosive attack, like car and truck

bombs, targeted suicide bombings, or the sabotage of aircraft, is most likely to materialize. The threat of catastrophic attack with nuclear weapons has the greatest potential impact on our way of life and in terms of human cost. It is in relation to this threat in particular that we need to evaluate and test national security law and process, both because of the potential consequence and because of the focus the enemy has placed on this means of attack. Second, U.S. constitutional values may ebb and wane in an endless conflict against state and nonstate actors engaged in acts of terrorism or posing the threat of terrorism. In light of the interminable nature of this threat, assertions of presidential authority made in extremis may become embedded in U.S. practice and law without a corresponding application of checks and balances. Left outside the reach of effective and independent mechanisms of appraisal, broad assertions of executive authority may in time diminish both the principles of law that define American life as well as the physical security at which they are directed. Third, sincere policy differences, as well as those that are politically inspired, regarding the nature of the terrorist threat and the corresponding measure of response may

result in a zero-sum compromise; that is, a diminution of security or a diminution of law, rather than contextual formulas that advance both at once. If the executive needs broad and rapid authority to engage in intelligence collection – as it does – the better course is not to

limit the authority , for fear of misuse, but to increase the opportunities for meaningful internal and

external appraisal. Such appraisal will deter misuse, but as importantly, encourage effective use . In this enduring conflict we may exhaust our resources or our principles in a manner that leaves us unwilling or unable to effectively address this century’s other certain crises, including the prolif eration of weapons of mass destruction to unreliable state actors, the advent of pandemic disease, and environmental degradation and change. This book has focused on the threat of terrorist attack because this is the threat that today drives the legal debate about the president’s constitutional authority. More generally, it drives the purpose and meaning of national security law. It will continue to do so. It is also the threat with the greatest potential to transform U.S. national

security, in both a physical and a values sense. The importance of addressing other issues, such as conflict in the Mid dle East , totalitarian regimes, or pandemic disease, must not be overlooked. Each bears the potential to spiral beyond control resulting in catastrophe at home and overseas. Each of these issues warrants full consideration of the national security instruments and processes described in this book. In each context, law and national security lawyers may contribute to national security in multiple ways. First, the law provides an array of positive or substantive instruments the president may wield to provide for security. Second, the law provides procedural mechanisms offering opportunities to consider, validate, appraise, and improve policy, as well as ensure its lawful execution. These mechanisms include the horizontal separation of constitutional powers at the federal level, and the vertical separation of powers

between the federal government and state government. They are found as well in statute and in internal executive directive. The most effective means of

appraisal are often found through informal practice . Informal contact allows participants to speak with a freedom not permitted or not often

found when bearing the institutional mantle of an office or branch of government. Consider the difference in reaction between the counsel that sits down with the policymaker for a discussion and the counsel who requests the policymaker to put down in a memorandum everything that occurred. With informal practice the role of personality and friendship can serve to facilitate information exchange and the frank exchange of views. Third, in the international context, law provides mechanisms to achieve U.S. national security objectives. This is evident in the context of maritime security, where U.S. law is pegged to an international framework, and effective security requires international as well as domestic participation. In the area of intelligence integration, bilateral and multilateral agreements, like the PSI and bilateral aviation agreements, provide essential mechanisms for identifying intelligence, sharing intelligence, and acting on

intelligence. Fourth, the law reflects and projects American values of democracy and liberty. Values are silent force multipliers as well as positive national security tools. As Lawrence Wright, the author of The Looming Tower, and others argue, jihadists like Osama Bin Laden offer no programs or policies for governance, no alternative to Western democracy. They offer only the opportunity for revenge. Rule of law is the West’s alternative to jihadist terrorism. Law, and respect for law, offers the structure of democracy, the opportunity for individual fulfillment regardless of sex, race, or creed, and a process for the impartial

administration of justice. Sustained commitment to the rule of law in practice and perception will serve as a positive national security tool in curtailing recruitment of the next wave and generation of jihadists .

But law , like homeland security, is an incremental endeavor. It is dependent on sustained action , not rhetoric, and perceptions

can be swept aside in a few ill-chosen moments . Law, like this conflict, requires sustained sacrifice and sustained support. Thus, divisive

legal arguments should be eschewed, unless they are essential to security and there are no alternative means to accomplish the same necessary security end.

CP solves the Aff – president has jurisdiction over entering armed forces into hostilitiesCooper 2Phillip J. Cooper, Gund Professor of Liberal Arts at the University of Vermont and was the first recipient of the Charles Levin Award given by the American Society for Public Administration and the National Association of Schools of Public Affairs and Administration. By Order of the President: The Use & Abuse of Executive Direct Action pg.33 University Press of Kansas, 2002

Among the standard executive orders issued by each administration is a variety of actions


concerning military personel including adjustments of rates of pay and allowances for the uniform services and amendments to the manual for court marshall. Particularly during periods of heightened national security activity, orders are regularly used to transfer responsibility, people

or resources from one part of the government to the military or the reverse. Many orders have been used to manage public lands, but it is often not recognized that frequently the lands are part of military reservations or sites. In fact, many of the orders issued by presidents in time of war or national emergency are very focused actions of this sort. Even in peace time there are manifold organizational issues to detail for statuettes but that require action beyond the Department of Defense. President Clinton’s order of succession of officers to act as secretary of the army is a typical example. (pg. 33)


2nc doj cp overview

Lobel advocates the counterplanLobel 9 – Jules Lobel, Professor of Law at the University of Pittsburgh. "Restore. Protect. Expand. Amend the War Powers Resolution". Center for Constitutional Rights White Paper, http://ccrjustice.org files CCR_White_WarPowers.pdf

President Obama must pledge to help restore the balance of power and work with Congress to support a reform and revision of the War Powers Resolution. As a matter of constitutional integrity, all executive acts of war must be prohibited without Congressional authorization, and must comply with international law. President Obama must also end the wars launched, illegally, by the Bush administration.

Needs to be initiated by the PresidentLobel 9 – Jules Lobel, Professor of Law at the University of Pittsburgh. "Restore. Protect. Expand. Amend the War Powers Resolution". Center for Constitutional Rights White Paper, http://ccrjustice.org files CCR_White_WarPowers.pdf

Reforming the War Powers Resolution is a project that will require leadership from the President and the political will of Congress, working together in the service and preservation of the Constitution. In light of the abuses that have taken place under the Bush administration, it is the responsibility of a new administration to insist on transparency in the drafting of new legislation.There is a long history of attempts to revise the War Powers Resolution. As new legislation is drafted, 7 though, it will be important to focus on the central constitutional issues. Much time has been spent in debating how to address contingencies. It will be impossible to write into law any comprehensive formula for every conceivable situation, though; much more important will be establishing the fundamental principles of reform:[MSU EVIDENCE BEGINS]The War Powers Resolution should explicitly prohibit executive acts of war without previous Congressional authorization. The only exception should be the executive’s power in an emergency to use short-term force to repel sudden attacks on US territories, troops or citizens.

Their Sloane evidence is CP sufficiency evidence—(and its about preventive vs. preemptive war, not the aff…_)Sloane 8 – Sloane, Associate Professor of Law, Boston University School of Law, 2008 (Robert, Boston University Law Review, April, 88 B.U.L. Rev. 341, Lexis)

There is a great deal more constitutional history that arguably bears on the scope of the executive power in the twenty-first century. But it is vital to appreciate that the scope of the executive power , particularly in the twenty-first century, is not only a constitutional or historical issue. As an international lawyer rather than a constitutionalist, I want to stress briefly that these debates and their concrete manifestations in U.S. law and policy potentially exert a profound effect on the shape of i nternational law. Justice Sutherland’s sweeping dicta in United States v. Curtiss-Wright Export Corp., that the President enjoys a “very delicate, plenary and exclusive power . . . as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress,”52 has been (correctly, in my view) criticized on a host of grounds.53 But in practice, in part for institutional and structural reasons,54 it accurately reflects the general preeminence of the President in the realm of U.S. foreign affairs . Because of the nature of the international legal and political system, what U.S. Presidents do and say often establish precedents


that strongly influence what other states do and say – with potentially dramatic consequences for the shape of customary international law. The paradigmatic example is the establishment of customary international law on the continental shelf following the Truman Proclamation of September 28, 1945,55 which produced an echo of similar claims and counterclaims, culminating in a whole new corpus of the international law of the sea for what had previously been understood only as a geological term of art.56 Many states took note, for example, when in the 2002 National Security Strategy of the United States (“NSS”), President Bush asserted that the United States had the right under international law to engage in preventive wars of self-defense. 57 While, contrary to popular belief, the United States never in fact formally relied on that doctrine in practice, many would argue that President Bush de facto exercised this purported right when he initiated an armed conflict with Iraq based on claims, which have since proved unfounded, about its incipient programs to develop catastrophic weapons. The 2006 NSS notably retreats from the 2002 NSS’s robust claims of a right to engage in preventive wars of self-defense.58 Yet even within this brief, four-year period, an astonishing number of other states have asserted a comparable right to engage in preventive self-defense. These include not only states that the United States has described as “rogue states,” such as North Korea and Iran, but Australia, Japan, the United Kingdom, China, India, Iran, Israel, Russia, and (though technically not a state) Taiwan.59 I doubt we will welcome the consequences of this pattern for the evolving jus ad bellum of the twenty-first century. Equally, after President Bush’s decision to declare a global war on terror or terrorism – rather than, for example, the Taliban, al-Qaeda, and their immediate allies – virtually every insurgency or disaffected minority around the world, including peoples suffering under repressive regimes and seeking to assert legitimate rights to liberty and self-determination, has been recharacterized by opportunistic state elites as part of the enemy in this global war.60 The techniques employed and justified by the United States, including the resurrection of rationalized torture as an “enhanced interrogation technique,”61 likewise have emerged – and will continue to emerge – in the practice of other states. Because of customary international law’s acute sensitivity to authoritative assertions of power, the widespread repetition of claims and practices initiated by the U.S. executive may well shape international law in ways the United States ultimately finds disagreeable in the future. So as we debate the scope of the executive power in the twenty-first century, the stakes, as several panelists point out, could not be higher. They include more than national issues such as the potential for executive branch officials to be prosecuted or impeached for exceeding the legal scope of their authority or violating valid statutes.62 They also include international issues like the potential use of catastrophic weapons by a rogue regime asserting a right to engage in preventive war ; the deterioration of international human rights norms against practices like torture, norms which took years to establish; and the atrophy of genuine U.S. power in the international arena, which, as diplomats, statesmen, and international relations theorists of all political persuasions appreciate, demands far more than the largest and most technologically advanced military arsenal. In short, what Presidents do , internationally as well as domestically – the precedents they establish – may affect not only the technical scope of the executive power, as a matter of constitutional law , but the practical ability of future Presidents to exercise that power both at home and abroad. We should candidly debate whether terrorism or other perceived crises require an expanded scope of executive power in the twenty-first century. But it is dangerous to cloak the true stakes of that debate with the expedient of a new – and, in the view of most, indefensible – “monarchical executive” theory, which claims to be coextensive with the defensible, if controversial, original Unitary Executive theory.63 We should also weigh the costs and benefits of an expanded scope of executive power. But it is vital to appreciate that there are costs. They include not only short-term, acute consequences but long-term, systemic consequences that may not become fully apparent for years. In fact, the exorbitant exercise of broad, supposedly inherent, executive powers may well – as in the aftermath of the Nixon administration – culminate in precisely the sort of reactive statutory constraints and de facto diplomatic obstacles that


proponents of a robust executive regard as misguided and a threat to U.S. national security in the twenty-first century.

Err neg—the whole basis for their speculation about Bush Doctrine 2.0 is LEGAL MEMOS used as justification by the administration—that's where the signal is coming fromFeaver 2013 – PhD Harvard, Professor of Political Science at Duke (2/5, Peter, Foreign Policy, “Obama's embrace of the Bush doctrine and the meaning of 'imminence'”, http://shadow.foreignpolicy.com/posts/2013/02/05/obamas_embrace_of_the_bush_doctrine_and_the_meaning_of_imminence)

The Obama Administration has embraced the Bush doctrine, or at least the preemption part of the Bush doctrine. According to news reports about the Justice Department's memo on drone strikes, the Obama Administration bases its policy on an expansive interpretation of the laws of war, which allow countries to act to head off imminent attack. In

particular, according to the reporter who broke the story, the Obama Administration bases its legal reasoning by interpreting "imminence" in a flexible way:


2nc cp = goldilocks

The President can wait on Congress voluntarily without sacrificing war powersTampa Bay Tribune 2011(http://www.politifact.com/truth-o-meter/statements/2011/apr/05/charles-rangel/charlie-rangel-says-last-president-seek-congressio/)• Each president has been careful about the phrasing of his request to Congress. Even as presidents ask for Congress’ support --

something seen as politically useful, even necessary -- they always take pains to note that they are doing so voluntarily, without

ceding any presidential prerogatives . So when Rangel says that "Franklin Roosevelt (was) the last president to come to the Congress to ask for permission" to go to war, he has a point. No president since Roosevelt has come to seek "permission" from Congress for military action. However, presidents have repeatedly come to Congress to seek "support" for military action. • What is the definition of "war"? Of the seven post-War Powers Resolution examples listed above, one came at the end of a genuine war (the fall of Saigon) and three involved more limited peacekeeping or humanitarian missions (Sinai, Lebanon and Somalia). None of these would be solid examples of a president seeking congressional backing to engage in "war" by its strictest definition. However, we think most people would consider the other three cases -- the Persian Gulf War, Afghanistan and Iraq -- genuine wars. And in each of those cases, the president sought congressional support (reluctantly or otherwise) before initiating hostilities and ultimately received it (with varying degrees of unanimity). So where does this leave us? Rangel is right that Roosevelt is the last president, strictly speaking, "to come to the Congress to ask for permission to engage into war." But at least two presidents -- both George Bushes -- have waited to launch

wars until they had an official vote from Congress backing them up . On balance, we rate Rangel’s statement Half True.


AT: XO Can’t solve the aff

CP solves the aff – president control is autonomous and effectivePowell 99(Prof of Law, George Washington Law Review March, 1999 67 Geo. Wash. L. Rev. 527 ESSAY: The President's Authority over Foreign Affairs: An Executive Branch Perspective NAME: H. Jefferson Powell *Professor, Duke Law School, l/n)The President's power of operational control of the armed forces is autonomous, neither dependent on congressional authorization nor subject to congressional regulation that interferes with the President's

discretion. 218 This principle is settled: the Supreme Court, for example, long ago stated that Congress has no authority to "interfere[] with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief." 219 Attorney General Jackson's 1941 opinion was equally emphatic: "in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere. For instance, he may regulate the movements of the army and... of the vessels of the navy, sending them wherever in his judgment it is expedient." 220 Many other judicial and executive branch opinions are to the same effect. 221 The exclusive character of the President's operational control over the military rests on the assumption, embedded in the Constitution as it has been interpreted, that military success can depend on a clear, unified chain of command. "The object of the [Commander in Chief Clause] is evidently to vest in the President the supreme command over all the military forces, - such supreme and undivided command as would be necessary to the prosecution of a successful war." 222 Congress therefore has no power to direct the President in the planning or execution of lawful missions, and it may not lawfully interfere with the President's decisions about which military units to employ: "This power or right of command extends as much to one portion of the Army as to any other, and includes the assignment of any portion thereof to such duty as the Commander in Chief deems best." 223 The power of operational control extends as well to choices about individual service members. 224 The executive therefore has consistently resisted congressional attempts to superintend or constrict the President's discretion.


For All Versions


2NC: AT Perm – Do Both

Links to politics – perm still includes congressional action which sparks opposition, triggering the link

Doesn’t solve presidential power – simultaneous legislative and executive action creates a mixed precedent, undermining presidential authority Bellia 2 [Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary 87, Spring, Lexis]

Second, courts' failure to resolve the contours of the President's constitutional powers creates uncertainty about whether some forms of constitutionally based executive action have the same legal force as a federal statute. Returning to Dames & Moore, the fact that the Court r ested the President's authority on grounds of congressional approval rather than implied constitutional authority avoided the difficult question of how the President could by his sole authority displace the application of the federal statutes that had provided the basis for Dames & Moore's original cause of action against the Iranian enterprises. 291 Similar questions arise with respect to the displacement of state law by operation of sole executive agreements. The result is confusion about whether sole executive agreements are the "supreme Law of the Land," 292 with the available precedents suggesting that they are 293 and the weight of recent commentary suggesting that they are not.

Congressional silence key to presidential powerBellia 2 [Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary 87, Spring, Lexis]

To 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 enactment, n287 or if Congress displaces the state law by occupying the field, n288 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. n289 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 [*151] 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. n290


Solvency – Force of Law

XOs have the force of law and can effectively implement policyMayer 1 [Kenneth, Professor of Political Science @ University of Wisconsin – Madison, With the Stroke of a Pen]

These chronicles of presidential decisiveness and unilateral action are at odds with the prevailing scholarly view of presidential power. Among political scientists the conventional wisdom is that the president is weak, hobbled by the separation of powers and the short reach of his formal legal authority. Presidential power, far from being a matter of prerogative or legal rule, “is the power to persuade,” wrote Richard Neustadt in the single most influential statement about the office in the past fifty years.6 Yet throughout U.S. history presidents have relied on their executive authority to make unilateral policy without interference from either Congress or the courts. In this book, I investigate how presidents have used a tool of executive power—the executive order—to wield their inherent legal authority. Executive orders are, loosely speaking, presidential directives that require or authorize some action within the executive branch (though they often extend far beyond the government).They are presidential edicts, legal instruments that create or modify laws, procedures, and policy by fiat. Working from their position as chief executive and commander in chief, presidents have used executive orders to make momentous policy choices, creating and abolishing executive branch agencies, reorganizing administrative and regulatory processes, determining how legislation is implemented, and taking whatever action is permitted within the boundaries of their constitutional or statutory authority. Even within the confines of their executive powers, presidents have been able to “legislate” in the sense of making policy that goes well beyond simple administrative activity. Y ale Law School professor E. Donald Elliot has argued that many of the thousands of executive orders “plainly ‘make law’ in every sense,”7 and Louis Fisher finds that despite the fact that the Constitution unambiguously vests the legislative function in Congress, “the President’s lawmaking role is substantial, persistent, and in many cases disturbing.”8


AT Delay

XOs are quick and avoid bureaucratic rulemaking – only the plan would get delayed by procedural requirementsCooper 2 [Phillip, Professor of Public Administration @ Portland State University, By Order of the President: The Use and Abuse of Executive Direct Action”]

Executive orders are often used because they are quick, convenient, and relatively easy mechanisms for moving significant policy initiatives. Though it is certainly true that executive orders are employed for symbolic purposes, enough has been said by now to demonstrate that they are also used for serious policymaking or to lay the basis for important actions to be taken by executive branch agencies under the authority of the orders. Unfortunately, as is true of legislation, it is not always possible to know from the title of orders which are significant and which are not, particularly since presidents will often use an existing order as a base for action and then change it in ways that make it far more significant than its predecessors. The relative ease of the use of an order does not merely arise from the fact that presidents may employ one to avoid the cumbersome and time consuming legislative process. They may also use this device to avoid sometimes equally time consuming administrative procedures, particularly the rulemaking processes require by the Administrative Procedure Act. Because those procedural requirements do not apply to the president, it is tempting for the executive branch agencies to seek assistance from the White House to enact by executive order that which might be difficult for the agency itself to more through the process. Moreover, there is the added plus from the agency’s perspective that it can be considerably more difficult for potential adversaries to obtain standing to launch a legal challenge to the president’s order than it is to move an agency to judicial review. There is nothing new about the practice of generating executive orders outside the White House. President Kennedy’s executive order on that process specifically provides orders generated elsewhere.


AT No Funding – “Power of the Purse”

Presidents can easily circumvent Congress’ purse strings – discretionary spendingPika et al 02(Joseph A Pika, John Anthony Maltese, and Norman Thomas, all professors of political science, The Politics of the Presidency, 5th edition, p.233)

In addition to budgeting, presidents have certain discretionary spending powers that increase their leverage over the bureaucracy. They have substantial nonstatutory authority, based on understandings with congressional

appropriations committees, to transfer funds within an appropriation and from one program to another . The

committees expect to be kept informed of such "reprogramming" actions.81 Fund transfer authority is essential to sound financial

management, but it can be abused to circumvent congressional decisions. In 1970, for example, Nixon transferred funds to

support an extensive unauthorized covert military operation in Cambodia. Nevertheless, Congress has given presidents and certain agencies the authority to spend substantial amounts of money on a confidential basis, the largest and most controversial of which are for intelligence activities.

The President has been delegated the ability to determine who receives funding – means an XO would get funded.Ken Mayer, 2001, Princeton University Press, "With the stroke of a pen," p. 45-6

Congress, through its power of the purse, establishes and funds programs to purchase goods and services from the

private sector. Although legislation stipulates many of the goals and processes of these programs, the actual process of awarding and administering contracts is a classic executive function. 65 Congress has long recognized as much, and even though there is a complex statutory framework that governs procurement broadly, "the development of detailed

procurement policies and procedures has generally been left to the procurement agencies" and, by extension, to the

president.66 Within the boundaries and requirements established by law, the president retains the authority to set the conditions under which procurement will take place.


AT Rollback – Fiat Solves

Fiat solves rollback – it’s justified because:

1. Reciprocal – aff gets durable fiat means the neg should too.

2. Ground – ensures aff doesn’t lose on backlash arguments and its key to neg ground.

3. Education – avoids should/would debates and focuses on the merits of the plan.


AT Rollback – (Future Presidents)

Most executive orders aren’t overturned. Murray 99 [Frank, “Clinton’s Executive Orders are Still Packing a Punch: Other Presidents Issued More, but His are Still Sweeping” Washington Times http://www.englishfirst.org/13166/13166wtgeneral.html]

Clearly, Mr. Clinton knew what some detractors do not: Presidential successors of the opposite party do not lightly wipe the slate clean of every order, or even most of them. Still on the books 54 years after his death are 80 executive orders issued by Franklin D. Roosevelt. No less than 187 of Mr. Truman's orders remain, including one to end military racial segregation, which former Joint Chiefs of Staff Chairman Colin Powell praised for starting the "Second Reconstruction." "President Truman gave us the order to march with Executive Order 9981," Mr. Powell said at a July 26, 1998 ceremony marking its 50th anniversary. Mr. Truman's final order, issued one day before he left office in 1953, created a national security medal of honor for the nation's top spies, which is still highly coveted and often revealed only in the obituary of its recipient.

Political barriers check – new, stronger constituenciesBranum 2 [Tara L, Associate, Fulbright & Jaworski L.L.P, “President or King? The Use and Abuse of Executive Orders in Modern Day America” Journal of Legislation]

Congressmen and private citizens besiege the President with demands [*58] that action be taken on various issues. n273 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. n274 Many were controversial and the need for the policies he instituted was debatable. n275 Nevertheless, President Bush found himself unable to reverse the orders without invoking the ire of environmentalists across the country. n276 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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AT Rollback – (Congress)

Its extremely difficult to challenge executive ordersCooper 97 [Phillip, Prof of Public Administration @ Portland State, Nov 97, “Power tools for an effective and responsible presidency” Administration and Society, Vol. 29, p. Proquest]

If Congress does challenge an executive order, then the president must either demonstrate that he properly interpreted the statute in question or that the action can be independently justified from executive powers delegated by the Constitution. However, it can, for a variety of reasons, be very difficult to get a legal challenge into court, and even if such a case does reach a judicial assessment, the broad kinds of grounds that can be asserted by the president can make it extremely difficult to challenge a presidential action. It has been done but it is not a simple matter (Note, 1987a).

There is a 0.2% risk of an overturnKrause and Cohen 2000 [George and David, Professors of Political Science @ South Carolina, “Opportunity, Constraints, and the Development of the Institutional Presidency: The Issuance of Executive Orders” The Journal Of Politics, Vol. 62, No. 1, February 2000, JSTOR]

We 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 institutional-ized 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, ex-ecutive 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 ad-dition, Congress has tended to allow executive orders to stand due to its own collective action problems and the cumbersomeness of using the legislative pro-cess 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 worth-while.9 Such a description will allow us to determine the relative efficacy of these competing perspectives on presidential behavior.10

Congress won’t rollback even the most controversial presidential decisions.Howell 3 [William G, Assistant Professor of Gov’t @ Harvard, Powers Without Persuasion: The Politics of Direct Presidential Action pg. 112]

The real world, obviously, is much more complicated than the unilateral politics model supposes. Uncertainties abound, and presidents frequently set policies without any assurance of congressional acquiescence. It is worth considering then, how presidents fare on those occasions when Congress does respond to a presidential directive. Do presidents tend to win most of the time? Or does Congress consistently crack the legislative whip, effectively enervating imperialistic presidents? Our theoretical expectation are relatively clear. Because the president has access to more (and better) information about goings-on in the executive branch, members of Congress will try to change only a small fraction of all status quo policies in any legislative session, and we should anticipate that members will leave alone the majority of unilateral directives that the president issues. While the president may occasionally overreach on a particularly salient issue, provoking a congressional response, in most instances Congress either will do nothing at all or will endorse the president’s actions.


AT: Rollback – (Courts)

Courts won’t rollback the CP – fears of angering the executiveMoe and Howell 99(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press, http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)In addition to appointments, there is a second—-and probably more important—factor that works to the presidents advantage with the Courts. This one¶ is rooted in the basic design of separation of powers: under the Constitution, ¶ the court is not empowered to enforce its own decisions, but must rely on the executive branch to enforce them. While the Court is said

to be an independent branch of government, then, its power and prestige are profoundly depend on the executive. The decisions that it renders, however well reasoned or legally ¶ significant in the abstract, are little more than meaningless slips of paper unless ¶ they are put into effect, and they can only be put into effect if the executive ¶ is willing to implement them. If the executive refuses to cooperate—or more¶ likely, if it purposely acts very slowly, ineffectively, or in ways that alter or ¶ distort judicial intent—the policy pronouncements of the Court threaten to be ¶ empty, and its integrity and social standing as a political institution are put ¶ seriously at risk (Corwin, 1984).

History provesWashington Times ‘99 Frank J. Murray THE WASHINGTON TIMES August 23, 1999¶ http://www.washtimes.com/news/news1.html#link

Presidents have issued executive orders that exceeded the wishes of Congress since George Washington's 1793 "neutrality order" demanding that citizens stay out of foreign disputes. Such orders have been withdrawn

under political pressure or derailed internally before they were signed, but only twice in history have federal courts directly overturned one, legal experts say. They included Mr. Clinton's 1995 directive barring federal contractors from hiring striker replacements, which conflicted with existing law, and President Truman's 1952 order seizing steel mills in order to avoid a nationwide strike. The Supreme Court nullified the latter because the president acted during the Korean conflict under

"emergency" war powers even though no war was declared. "Unfortunately, the Supreme Court has essentially ruled over time that the executive orders have the force and effect of law. Well, they don't,

but if nobody's there to challenge them they continue to carry the effect and force of law," argued Rep. Jack Metcalf, Washington Republican, leader of a brewing rebellion in the House for which he predicts only symbolic success.

http://www.washtimes.com/news/news1.html#link

http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf


AT Violates Separation of Powers

XO’s don’t require approval of congress but checks and balances system still applies Fox 08 Jeffrey C. Fox (professor at Catawba College) 2008 http://www.thisnation.com/question/040.html zp

Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent. Not all EOs are created equal. Proclamations, for example, are a special type of Executive Order that are generally ceremonial or symbolic, such as when the President declares National Take Your Child To Work Day. Another subset of Executive Orders are those concerned with national security or defense issues. These have generally been known as National Security Directives. Under the Clinton Administration, they have been termed "Presidential Decision Directives." Executive Orders do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II further directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.

http://www.thisnation.com/question/040.html


Net Benefit: Politics


Avoids Politics

Executive action avoids politics and congress can’t match flexSovacool 9Dr. Benjamin K. Sovacool 2009 is a Research Fellow in the Energy Governance Program at the Centre on Asia and Globalization., Kelly E. Sovacool is a Senior Research Associate at the Lee Kuan Yew School of Public Policy at the National University of SingaporeArticle: Preventing National Electricity-Water Crisis Areas in the United States, Columbia Journal of Environmental Law 2009 34 Colum. J. Envtl. L. 333,

¶ 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. E x ecutive O rder s bypass congressional debate and

opposition, along with all of the horsetrading 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.

Executive orders reduce expenditure of political capital – Clinton proves Kassop 2 [Nancy, Chair of the Political Science Department @ State University of New York, The Presidency and the Law: The Clinton Legacy, ed. Alder, p. 6]As a president facing an opposition party in Congress, it is not surprising that President Clinton made bold use of executive orders as a means of circumventing the uncertainties of a legislature that was unlikely to be friendly to his initiatives. Here, too, as in war powers, Clinton followed in the paths of his Republican predecessors, who also operated under conditions of divided government. Thus, Clinton may not have blazed new trails for his successors by his use of executive orders to accomplish indirectly what he was unwilling to spend political capital on to accomplish directly.

Executive orders are fast and build political capitalKrause and Cohen 97 [George + David, Professors of Political Science @ South Carolina, “Presidential Use of Executive Orders” American Politics Quarterly, Vol 25 No 4, October 1997, Sage Journals Online]The aim of this study is to answer the question: What causes presidents to issue executive orders with greater (or less) frequency in a given year? This is an important topic of inquiry, not only because of the dearth of research that has been conducted to date but also because it is a valuable way to assess both the managerial and policymaking characteristics associated with the office of the presidency. Executive orders are another weapon in the arsenal that presidents have at their disposal. They both afford the chief executive the ability to make quick and efficient policy decisions without consultation from Congress or from the public, and they are also a tool that allows presidents to exert bargaining pressure on Congress to enact legislation more favorable to the White House (Wigton 1996). Thus, explaining how and why executive orders are used by presidents allows scholars a better understanding of the presidency and the powers that are inherent in that office.

Executive orders save capital by avoiding involvement with Congress Fleishman 76 [Joel, Prof Law and Policy Sciences, Duke, Law & Contemporary Problems, Summer, p. 38]Several related factors, in particular, make executive orders especially attractive policymaking tools for a President. First is speed. Even if a President is reasonably confident of securing desired legislation from congress, he must wait for congressional deliberations to run their course. Invariably, he can achieve far faster, if not immediate,


results by issuing an executive order. Moreover, when a President acts through an order, he avoids having to subject his policy to public scrutiny and debate. Second is flexibility. Executive orders have the force of law. Yet they differ from congressional legislation in that a President can alter any executive order simply with the stroke of his pen—merely by issuing another executive order. As noted earlier, Presidents have developed the system of classifying national security documents in precisely this manner. Finally, executive orders allow the President, not only to evade hardened congressional opposition, but also to preempt potential or growing opposition—to throw Congress off balance, to reduce its ability to formulate a powerful opposing position.

Executive orders bypass Congressional opposition to the plan – avoids politics Ostrow 87 [Steven, partner in the Business Department and chairs the Financial Restructuring and Bankruptcy Practice Group, B.A., cum laude, from the University of Vermont, .D. from The George Washington University National Law Center, “Enforcing Executive Orders: Judicial Review of Agency Action Under the Administrative Procedure Act” George Washington Law Review, 55 Geo. Wash. L. Rev. 659]In this era of the "Imperial Presidency," n1 executive orders have become an important weapon in the arsenal of presidential policymaking. n2 Because executive orders do not need congressional approval, they enable the President to bypass parliamentary debate and opposition. n3 Historically, most executive orders have related to routine administrative matters and to the internal affairs and organization of the federal bureaucracy. Since the 1930s, however, executive orders have assumed an ever increasing legislative character, directly affecting the rights and duties of private parties as well as those of governmental officials. n4 Scholars have referred [*660] to this recent use of the executive order as "presidential legislation" or "government by executive order."

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AT “XO Sparks Backlash”

Wrong – XOs spark momentum that overcomes any backlashCooper 2 [Phillip, Professor of Public Administration @ Portland State University, By Order of the President: The Use and Abuse of Executive Direct Action” Executive orders can also be used to hit quickly with policies aimed at important problems, providing a strong and immediate sense of momentum for a new administration. These messages are sent to reassure an administration’s supporters that the issue positions for which they campaigned are going to be acted upon. In the case of symbolic orders, which are often used for this purpose, the reward can be given to allies without a serious commitment of political resources in Congress, legal resources in administrative rulemaking, or financial resources associated with building really substantive programs. They also serve to send a message to potential adversaries that the administration is truly in charge and moving. Those seeking to mobilize opposition in such conditions find themselves reactive and defensive.


Not Perceived

XOs aren’t perceivedPhillip Cooper, University of Vermont political science professor, FEDERAL DOCUMENT CLEARING HOUSE CONGRESSIONAL TESTIMONY, October 28, 1999, p. online.

Few Americans, even those normally considered part of the informed public, know anything about executive orders. That is true even for many experienced public service professionals at all levels of government. When informed that there are now some 13,140 numbered executive orders in which the chief executive has sought to issue

directives having binding legal force to agencies in the executive branch, a very common response is that no one ever told them the president could make law with the stroke of a pen.


Net Benefit: Presidential Power


UQ: Low Now


XO key to Prez Power

Obama’s presidential power will only increase with executive ordersZelizer 9 [Julian, professor of history and public affairs at Princeton University's Woodrow Wilson School “Commentary: Can Obama and Congress Share Power?” CNN Online, January 5, http://www.cnn.com/2009/POLITICS/01/05/zelizer.power/index.html]Obama must be held responsible as well. While presidents don't like to give up power, maybe this president will be different. At a minimum, Obama should avoid the techniques used so often in recent years to circumvent legislative will. It is not enough to reverse Bush's executive orders -- the crucial question is whether Obama uses such orders as frequently himself. If the nation can create a better balance between the executive and legislative branches, the country will benefit. The New Deal proved when both branches work together, the nation can produce some of its finest and most effective programs.

Executive orders increase presidential power Risen 4 [Clay, Managing editor of Democracy: A Journal of Ideas, M.A. from the University of Chicago “The Power of the Pen: The Not-So-Secret Weapon of Congress-wary Presidents” The American Prospect, July 16, http://www.prospect.org/cs/articles?article=the_power_of_the_pen]In the modern era, executive orders have gone from being a tool largely reserved for internal White House

operations -deciding how to format agency budgets or creating outlines for diplomatic protocol -- to a powerful weapon in

defining, and expanding, executive powe r . In turn, presidents have increasingly used that power to construct

and promote social policies on some of the country's most controversial issues, from civil rights to labor relations to reproductive health.

Executive orders control policy and set agendas – key to presidential powerMayer 1 [Kenneth, Professor in the Department of Poli Sci @ University of Wisconsin-Madison, Executive Orders and Presidential Power, pg. 28-29]This theoretical perspective offered by the new institutional economics literature provides a way of making sense of the wide range of executive orders issued over the years, and is the centerpiece of my approach. The common theme I find in significant executive orders is control; executive orders are an instrument of executive power that presidents have used to control policy, establish and maintain institutions, shape agendas, manage constituent relationships, and keep control of their political fate generally. Within the boundaries set by statute of the Constitution, presidents have consistently used their executive power – often manifested in executive orders – to shape the institutional and political context in which they sit. There are, to be sure, limits on what presidents can do relying solely on executive orders and executive power, and presidents who push too far will find that Congress and the courts will push back. Yet the president retains significant legal, institutional, and political advantages that make executive authority a more powerful tool than scholars have thus far recognized. This emphasis on control allows for a longer-term view than that generally taken by informal approaches to presidential leadership. I conclude that presidents have used executive orders to alter the institutional and political context in which they operate. The effects of any one effort in this regard may not be immediately apparent, and in many cases presidents succeed only after following up on what their predecessors have done. In this respect I view presidential leadership as both strategic and dynamic, a perspective that brings into sharper relief the utility of executive power to the presidency. I also differ with Neustadt on this score, as he looks at how presidents can be tactically effective within a particular structure context over which they have no control.

http://www.prospect.org/cs/articles?article=the_power_of_the_pen


Link - Zero Sum

Executive/legislative power is zero-sum—increased executive power diminishes the power of CongressHowell 03 (William, Asst Prof of Gov’t @ Harvard, Powers without Persuasion: The Politics of Direct Presidential Action, p. 101)We repeatedly return to a basic theme about systems of governance defined by their separated powers: executive power is inversely proportional to legislative strength. Presidential power expands at exactly the same times when, and precisely the same places that, congressional power weakens. The occurrence is hardly coincidental. Indeed, the forces operate in tandem, for it is the check each places on the other that defines the overall division of power.

Presidential/Congressional power is zero-sumColumbus Dispatch 2/15/06 (lexis)The Constitution empowers Congress to serve as a check on executive power. Over the years, as presidents strengthened their powers in matters of national security and foreign policy, legislative authority has waned.


Pres Good - Heg

Presidential power is critical to sustain the vital functions of American leadership Mallaby 2K (Sebastian, Member, Washington Post’s Editorial Board, Foreign Affairs, Jan/Feb) Finally, some will object that the weakness of the presidency as an institution is not the main explanation for the inadequacies of American diplomacy, even if it is a secondary one. The ad hominem school of thought argues instead that Bill Clinton and his advisers have simply been incompetent. Others make various sociological claims that isolationism or multiculturalism lies at the root of America's diplomatic troubles. All of these arguments may have merit. But the evidence cited by both camps can be better explained by the structural weakness of the presidency. Take, for example, one celebrated error: President Clinton's declaration at the start of the Kosovo war that the Serbs need not fear NATO ground troops. This announcement almost certainly cost lives by encouraging the Serbs to believe that America was not serious about stopping ethnic cleansing. The ad hominem school sees in this example proof of Clinton's incompetence; the sociological school sees in it proof of isolationist pressure, which made the option of ground troops untenable. But a third explanation, offered privately by a top architect of the Kosovo policy, is more plausible. According to this official, the president knew that pundits and Congress would criticize whichever policy he chose. Clinton therefore preemptively took ground troops off the table, aware that his critics would then urge him on to a ground war -- and also aware that these urgings would convince Belgrade that Washington's resolve would stiffen with time, rather than weaken. The president's stand against ground troops was therefore the logical, tactical move of a leader feeling vulnerable to his critics. Other failings of American diplomacy can likewise be accounted for by the advent of the nonexecutive presidency. Several commentators, notably Samuel Huntington and Garry Wills in these pages, have attacked the arrogance of America's presumption to offer moral leadership to the world. But American leaders resort to moral rhetoric largely out of weakness. They fear that their policy will be blocked unless they generate moral momentum powerful enough to overcome domestic opponents. Likewise, critics point to the hypocrisy of the United States on the world stage. America seeks U.N. endorsement when convenient but is slow to pay its U.N. dues; America practices legal abortion at home but denies funds to organizations that do the same abroad. Again, this hypocrisy has everything to do with the weak executive. The president has a favored policy but is powerless to make Congress follow it. Still other critics decry American diplomacy as a rag-bag of narrow agendas: Boeing lobbies for China trade while Cuban-Americans demand sanctions on Cuba. Here, too, presidential power is the issue. A strong presidency might see to it that America pursues its broader national interest, but a weak one cannot. This is why Clinton signed the Helms-Burton sanctions on Cuba even though he knew that these would do disproportionate harm to U.S. relations with Canada and Europe. What if America's nonexecutive presidency is indeed at the root of its diplomatic inadequacy? First, it follows that it is too optimistic to blame America's foreign policy drift on the weak character of the current president. The institution of the presidency itself is weak, and we would be unwise to assume that a President Gore or Bradley or Bush will perform much better. But it also follows that it is too pessimistic to blame America's foreign policy drift on cultural forces that nobody can change, such as isolationism or multiculturalism.

US primacy prevents nuclear great power warsWalt 2 (Stephen, Professor of International Affairs at Harvard's Kennedy School of Government. "American Primacy: Its Prospects and Pitfalls." Naval War College Review, Vol. 55, Iss. 2. pg. 9 (20 pages) Spring 2002. Proquest)A second consequence of U.S. primacy is a decreased danger of great-power rivalry and a higher level of overall international tranquility. Ironically, those who argue that primacy is no longer important, because the danger of war is slight, overlook the fact that the extent of American primacy is one of the main reasons why the risk of great-power war is as low as it is. For most of the past four centuries, relations among the major powers have been intensely competitive, often punctuated by major wars and occasionally by all-out struggles for hegemony. In the first half of the twentieth century, for example, great-power wars killed over eighty million people. Today, however, the dominant position of the United States places significant limits on the possibility of great-power competition, for at least two reasons. One reason is that because the United States is currently so far

ahead, other major powers are not inclined to challenge its dominant position. Not only is there no possibility of a "hegemonic war" (because there is no potential hegemon to mount a challenge), but the risk of war via miscalculation is reduced by the overwhelming gap between the United States and the other major powers. Miscalculation is more likely to lead to war when the balance of power is fairly even, because in this situation both sides can convince themselves that they might be able to win. When the balance of power is heavily skewed, however, the leading state does not need to go to war and weaker states dare not try.8 The second reason is that the continued deployment of roughly two hundred thousand troops in Europe and in Asia provides a further barrier to conflict in each region. So long as U.S. troops are committed abroad, regional powers know that launching a war is likely to lead to a confrontation with the United States. Thus, states within these regions do not worry as much about each other, because the U.S. presence effectively prevents regional conflicts from breaking out. What Joseph Joffe has termed the "American pacifier" is not the only barrier to conflict in Europe and Asia, but it is an important one. This tranquilizing effect is not lost on America's allies in Europe and Asia. They resent U.S. dominance and dislike playing host to American troops, but they also do not want "Uncle Sam" to leave.9 Thus, U.S. primacy is of

benefit to the United States, and to other countries as well, because it dampens the overall level of international


insecurity. World politics might be more interesting if the United States were weaker and if other states were forced to compete with each other more actively, but a more exciting world is not necessarily a better one. A comparatively boring era may provide few opportunities for genuine heroism, but it is probably a good deal more pleasant to live in than "interesting" decades like the 1930s or 1940s.


Pres Good - Nuclear War

Prez power solves India Pakistan, North Korea, Middle East nuclear warsSouth China Morning Post 00 [“Position of Weakness” 12-11-00, p. L/N]A weak president with an unclear mandate is bad news for the rest of the world. For better or worse, the person who rules the United States influences events far beyond the shores of his own country. Both the global economy and international politics will feel the effect of political instability in the US. The first impact will be on American financial markets, which will have a ripple effect on markets and growth across the world. A weakened US presidency will also be felt in global hotspots across the world. The Middle East, the conflict between India and Pakistan, peace on the Korean peninsula, and even the way relations between China and Taiwan play out, will be influenced by the authority the next US president brings to his job. There are those who would welcome a weakening of US global influence. Many Palestinians, for example, feel they would benefit from a less interventionist American policy in the Middle East. Even within the Western alliance, there are those who would probably see opportunities in a weakened US presidency. France, for example, might feel that a less assertive US might force the European Union to be more outward looking. But the dangers of having a weak, insecure US presidency outweigh any benefits that it might bring. US global economic and military power cannot be wished away. A president with a shaky mandate will still command great power and influence, only he will be constrained by his domestic weakness and less certain about how to use his authority. This brings with it the risks of miscalculation and the use of US power in a way that heightens conflict. There are very few conflicts in the world today which can be solved without US influence. The rest of the world needs the United States to use its power deftly and decisively.


Congress Bad – Extinction

Congress wrecks flexibilityVermeule 6Adrian Vermeule, Professor of Law, Harvard Law School, 2006,¶ “THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER: SELF-DEFEATING¶ PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN.The reason for the failure of statutory frameworks is plain. When an emergency or war or crisis arises, the executive needs flexibility; because statutory limitations determined in ¶ advance

can only reduce flexibility , and do so in a way that does not anticipate the particular ¶ requirements of a new emergency, no one has any ex post interest in insisting that these limitations be respected.¶ Ackerman acknowledges the grim historical record but provides no valid reason for thinking that his framework statute - which is far¶ more ambitious than the other ones - might fare differently.

Congressional restrictions limit US ability to prevent and respond to WMD attacks, terrorism, and rogue nations Yoo 5 - law professor at the University of California at Berkeley [An interview with John Yoo, author of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, 2005, http://www.press.uchicago.edu/Misc/Chicago/960315in.htmlQuestion: What has had a greater effect on how we enter into war and conclude a peace: September 11 or globalization? What will have a greater effect in the long run?Yoo: Both will have a significant effect on the making of war and peace. At the end of the cold war, war was still thought of as occurring solely between nation-states. The 1991 Persian Gulf War was a traditional war over territory fought by the regular armed forces of nation-states. Nation-states are usually presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort. Warfare, if it were to come, would take predictable forms with clearly identified armed forces seeking to take control over territory and civilian populations.¶ In 1993, the military strength and economic size of the United States had begun to so outdistance its nearest competitors that American thinkers may well have assumed that there were no significant military threats on the horizon. The Soviet Union's dissolution seemed to render hypothetical what had been the most compelling case against a requirement of ex ante congressional approval for military hostilities: the need for swift presidential action to respond to a Soviet nuclear first strike. The disappearance of the threat of a war that could directly harm American national security allowed policymakers and intellectuals the luxury to envision a future in which they could reduce the overall level of international armed conflict. In such an environment, a constitutional model that required the approval of multiple institutions before the United

States could use force may have made some sense.¶ The world after September 11, 2001, however, is very different.

It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than war disappearing from

the world, the threat of war may well be increasing. Threats now come from at least three primary sources: the easy

availability of the knowledge and technology to create weapons of mass destruction (WMD), the emergence of rogue nations,

and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization. Because of these developments, the optimal level of war for the United States may no longer be zero, but may actually be dramatically higher than before.¶ The emergence of direct threats to the United States that are more difficult to detect and prevent may demand that the United States undertake preemptive military action to prevent these threats from coming to fruition. The costs of inaction, for example, by allowing the vetoes of multiple decision-makers to block warmaking, could entail much higher costs than scholars in the 1990s envisioned. At the time of the cold war, the costs to American national security of refraining from the use of force in places like Haiti, Somalia, or Kosovo would have appeared negligible. The September 11, 2001, terrorist attacks, however, demonstrate that the costs of inaction in a world of terrorist organizations, rogue nations, and more easily available WMD are extremely high—the possibility of a direct attack on the United States and the deaths of thousands of civilians.¶ These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system. The international system allowed the United States to choose a warmaking system that placed a premium on consensus, time for deliberation, and the approval of multiple institutions. If, however, the nature and the level of threats are increasing, the magnitude of expected harm has

risen dramatically, and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war. Given the threats posed by WMD proliferation, rogue nations, and international terrorism, we should not, at the very least, adopt a warmaking process that contains a built-in


presumption against using force abroad. Earlier scholarly approaches assumed that in the absence of government action peace would generally be the default state. September 11 demonstrated that this assumption has become unrealistic in light of the new threats to American national security. These developments in the international system may demand that the United States have the ability to use force earlier and more quickly than in the past.

ExtinctionTalent and Eaglen 10 - The Honorable James Talent is Distinguished Fellow in Military Affairs at The Heritage Foundation and served as a U.S. Senator from 2002 to 2007. Mackenzie Eaglen is Research Fellow for National Security in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation, “Planning for the Future: How and Why to Salvage the Pentagon's Quadrennial Defense Review”, Heritage Foundation, http://www.heritage.org/research/reports/2010/01/planning-for-the-future-how-and-why-to-salvage-the-pentagons-quadrennial-defense-review

With the advent of nuclear weapons , it became clear that a third world war could threaten the very existence of humankind. Under these circumstances, America's leaders decided that the U.S. needed to play a more comprehensive and active global role with a view toward anticipating and managing threats , protecting freedom, and preventing another general war . This has been America's strategic mission since 1945. While the collapse of the Soviet Union was a significant operational success for the United States, it did not change America's strategic leadership role. In fact, the U.S. has been even more active in world affairs since the fall of the Berlin Wall. Moreover, the rise of information technology has made the U.S. increasingly dependent on globally integrated and vulnerable financial, energy, and communications networks, leaving fewer areas of the world that America can safely ignore. As the 2006 QDR cautions, Globalization enables many positive developments such as the free movement of capital, goods and services, information, people and technology, but it is also accelerating the transmission of disease, the transfer of advanced weapons, the spread of extremist ideologies, the movement of terrorists and the vulnerability of major economic segments.[2] The review also cautions that terrorist networks "use the very instruments of globalization--the unfettered flow of information and ideas, goods and services, capital, people, and technology--as their preferred means of attack."[3] As a result, the U.S. is increasingly vulnerable to threats emanating from distant regions. Presidents George W. Bush and Bill Clinton would have preferred the U.S. to play a subordinate role in the Bosnian conflict. However, that proved impossible when genocide in the Balkans threatened the stability of Europe, America's relationship with the Muslim world, and the credibility of American leadership. The lesson is that a definition of America's vital interests must minimally include: * Defending against and deterring strategic attacks on the U.S., including its people, territory, institutions, and infrastructure; * Protecting Americans against threats to their lives and well-being, short of strategic attacks; * Containing and defeating terrorism as a form of warfare; * Monitoring and restricting criminal networks and terrorist organizations in Africa, South America, the Middle East, and Central Asia; * Preventing wars and atrocities across the globe; * Protecting U.S. allies from aggression; * Preventing the rise of a dominant hostile power in East Asia, Europe, or the Persian Gulf ; * Preserving U.S. security interests in the Western Hemisphere; * Maintaining access to foreign trade; and * Retaining unencumbered access to resources. Many Americans across the political spectrum are uncomfortable with the primary role the United States continues to play in world affairs, yet no President of either political party has backed away from America's global leadership role. Nor has any recent President significantly reduced America's commitments by treaty or interest around the globe. Judging by the number and expanded scope of U.S. military missions over the past 15 years, the exact opposite holds true. A de facto bipartisan consensus on America's duties continues to provide evidence that strong American leadership is necessary to protect the nation's vital interests. As long as America undertakes a comprehensive role in guiding the international order toward peace and freedom, the nation's leaders must sustain the power necessary to accomplish that mission. <EVIDENCE CONTINUES SEVERAL PARAGRAPHS LATER> Another reason the U.S. must maintain military primacy is that the military's missions are not only to fight but also to deter conflict . America decisively won Operation Desert Storm because it brought overwhelming--not just sufficient-- power to bear. Clear victory in that conflict is one reason why no other country has since chosen to engage the U.S. in a direct, high-intensity conflict. Similarly, a missile attack is


less likely if America deploys a comprehensive, layered missile defense system. China is less likely to use aggressive means to reunify with Taiwan if U.S . air and naval assets can unquestionably protect the island. Russia will be less adventurous in the former Soviet republics if its leaders feel that NATO is more than prepared for any contingency.


Congress Bad – Terror Mod

Only the CP solves flexibility – need appropriate punishment and rapid action to solve terrorismRoyal 11JOHN PAUL ROYAL, Institute of World Politics, “War Powers and the Age of Terrorism,” Center¶ for the Study of the Presidency & Congress The Fellows Review, 2010-2011Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands of ¶ these terrorists is the most dangerous threat to the U nited States. We know from the 9/11 ¶ Commission Report that Al Qaeda has attempted to make and obtain nuclear weapons for at ¶ least the past fifteen years. Al Qaeda considers the acquisition of weapons of mass destruction ¶ to be a religious obligation while “more than two dozen other terrorist groups are pursing ¶ CBRN [chemical, biological, radiological, and nuclear] materials” (National Commission 2004, 397). Considering these¶

statements, rogue regimes that are openly hostile to the United States and have or seek to develop nuclear

weapons capability¶ such as North Korea and Iran, or extremely unstable nuclear countries such as Pakistan, pose

a special threat to¶ American national security interests . These nations were not necessarily a direct threat to the Unite d States in the¶ past. Now, however, due to proliferation of nuclear weapons and missile technology, they can inflict damage at considerably higher¶ levels and magnitudes than in the past. In addition, these regimes may pursue proliferation of nuclear weapons and missile¶ technology to other nations and to allied terrorist organizations. The United States must pursue condign ¶ punishment and appropriate, rapid action against hostile terrorist organizations, rogue nation ¶ states, and nuclear weapons proliferation threats in order to protect American interests both ¶ at home and abroad. Combating these threats are the “top national security priority for the ¶ United States... with the full support of Congress , both major political parties, the media, and the American¶ people” (National Commission 2004, 361). Operations may take the form of pre-emptive and sustained ¶ action against those who have expressed hostility or declared war on the United States. Only ¶ the executive branch can effectively execute this mission , authorized by the 2001 AUMF. If the national¶ consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.

Terrorism causes extinctionHellman 8 (Martin E, emeritus prof of engineering @ Stanford, “Risk Analysis of Nuclear Deterrence” SPRING, THE BENT OF TAU BETA PI, http://www.nuclearrisk.org/paper.pdf)

The threat of nuclear terrorism looms much larger in the public’s mind than the threat of a full-scale nuclear war, yet this article focuses primarily on the latter.

An explanation is therefore in order before proceeding. A terrorist attack involving a nuclear weapon would be a catastrophe of immense proportions: “A 10-kiloton bomb detonated at Grand Central Station on a typical work day would likely kill some half a million people,

and inflict over a trillion dollars in direct economic damage. America and its way of life would be changed forever.” [Bunn 2003, pages viii-ix]. The likelihood of such an attack is also significant. Former Secretary of Defense William Perry has estimated the chance of a nuclear terrorist incident within the next decade to be roughly 50 percent [Bunn 2007, page 15]. David Albright, a former weapons inspector in Iraq, estimates

those odds at less than one percent, but notes, “We would never accept a situation where the chance of a major nuclear accident like Chernobyl would be anywhere near 1% .... A nuclear terrorism attack is a low-

probability event, but we can’t live in a world where it’s anything but extremely low-probability.” [Hegland 2005]. In a survey of 85 national security experts, Senator Richard Lugar found a median estimate of 20 percent for the “probability of an attack involving a nuclear explosion occurring somewhere in the world in the next 10 years,” with 79 percent of the respondents believing “it more likely to be carried out by terrorists” than by a government [Lugar 2005, pp. 14-15]. I support increased efforts to reduce the threat of nuclear terrorism, but that is not inconsistent with the approach of this article. Because

terrorism is one of the potential trigger mechanisms for a full-scale nuclear war, the risk analyses proposed herein will include

estimating the risk of nuclear terrorism as one component of the overall risk. If that risk, the overall risk, or both are found to be unacceptable, then the proposed remedies would be directed to reduce whichever risk(s) warrant attention. Similar remarks apply to a number of other threats (e.g., nuclear war between the U.S. and China over Taiwan). his article would be incomplete if it only dealt with the threat of nuclear terrorism and neglected the threat of full- scale nuclear war. If both risks are unacceptable, an effort to reduce only the terrorist component would leave humanity in great peril. In fact,

society’s almost total neglect of the threat of full-scale nuclear war makes studying that


risk all the more important. The cosT of World War iii The danger associated with nuclear deterrence depends on both the cost of a failure and the failure rate.3 This

section explores the cost of a failure of nuclear deterrence, and the next section is concerned with the failure rate. While other definitions are possible, this article defines a failure of deterrence to mean a full-scale exchange of all nuclear weapons available to the U.S. and Russia, an event that will be termed World War III. Approximately 20 million people died as a result of the first World War. World War II’s fatalities were double or triple that number—chaos prevented a more precise determination. In both cases humanity recovered, and the world today bears few scars that attest to the horror of those two wars. Many people therefore implicitly believe that a third World War would be horrible but survivable, an extrapola- tion of the effects of the first two global wars. In that view, World War III, while horrible, is something that humanity may just have to face and from which it will then have to recover. In contrast, some of those most qualified to assess the situation hold a very different view. In a 1961 speech to a joint session of

the Philippine Con- gress, General Douglas MacArthur, stated, “Global war has become a Frankenstein to destroy both sides. … If you lose, you are annihilated. If you win, you stand only to lose. No longer does it possess even the chance of the winner of a duel. It contains now only the germs of double suicide.” Former Secretary of Defense Robert McNamara expressed a similar view: “If deterrence fails and conflict develops, the present U.S. and NATO strategy

carries with it a high risk that Western civilization will be destroyed” [McNamara 1986, page 6]. More recently, George Shultz, William Perry, Henry Kissinger,

and Sam Nunn4 echoed those concerns when they quoted President Reagan’s belief that nuclear weapons were “totally irrational, totally inhu- mane, good for nothing but killing, possibly destructive of life on

earth and civilization.” [Shultz 2007] Official studies, while couched in less emotional terms, still convey the horrendous toll that World War III would exact: “The resulting deaths would be far beyond any precedent. Executive branch calculations show a range of U.S. deaths from 35 to 77 percent (i.e., 79-160 million dead) … a change in

targeting could kill somewhere between 20 million and 30 million additional people on each side .... These calculations reflect only deaths during the first 30 days. Additional millions would be injured, and many would eventually die from lack of adequate medical care … millions of people might starve or freeze during the following winter, but it is not possible to estimate how many. … further millions … might eventually die of latent radiation effects.” [OTA 1979, page 8] This OTA report also noted the possibility of serious ecological damage [OTA 1979, page 9], a concern that assumed a new potentiality when the

TTAPS report [TTAPS 1983] proposed that the ash and dust from so many nearly simultaneous nuclear explosions and their resultant fire- storms could usher in a nuclear winter that might erase homo sapiens from the face of the earth , much as many scientists now believe

the K-T Extinction that wiped out the dinosaurs resulted from an impact winter caused by ash and dust from a large asteroid or comet striking Earth. The TTAPS report produced a heated debate, and there is still

no scientific consensus on whether a nuclear winter would follow a full-scale nuclear war. Recent work [Robock 2007, Toon 2007] suggests that even a limited nuclear exchange or one between newer nuclear-weapon states, such as India and Pakistan, could have devastating long-lasting climatic consequences due to the large volumes of smoke that would be generated by fires in modern megacities. While it is uncertain how destructive World War III would be, prudence dictates that

we apply the same engineering conservatism that saved the Golden Gate Bridge from collapsing on its 50th anniversary and assume that preventing World War III is a necessity—not an option.


2NC Yes Solves Terror

Flexibility is key to defeat al-QaedaLi 09(Zheyao, JD Georgetown 2009; “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373, Lexis – JAK)By now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term, and the normal constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for

survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme.¶ As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation should [*399] consider the implications of the OODA Loop: Observe, Orient, Decide, and Act. n144 In the era of fourth-generational warfare, quick reactions, proceeding through the OODA Loop rapidly, and disrupting the enemy's OODA loop are the keys to victory. "In order to win," Colonel Boyd suggested, "we should operate at a faster tempo or rhythm than our adversaries." n145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police." n146 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision-making. [*400] In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute.¶ In America's current situation, however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory. As a slow-acting, deliberative body, Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational

warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization, because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-generational conflicts against fourth-generational opponents.

Restrictions make no sense in the context of terrorism Li 09(Zheyao, JD Georgetown 2009; “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373, Lexis – JAK)As discussed in Part III, supra, the power of Congress to declare war operates only vis-a-vis other nation-states, and it does not apply to transnational organizations, the primary traits of which are that "none is contained completely within a recognized nation's borders, none has official members that must report back to a government, and none owes loyalty to any nation--and sometimes very little

loyalty to its own organization." n147 Congress's ability to control whether to plunge the United States into war or to sue for peace makes perfect sense when the adversary is another nation-state, which has its own policy goals and is merely using the possibility of war as one means of attaining that policy end. In contrast, for Congress to possess the ability to declare war (and to withhold such a declaration) when the adversary is a transnational organization that has sworn to destroy the United States makes no sense at all. n148¶ The question then naturally becomes, what may Congress constitutionally do in the fourth generation of warfare? To say that the President can unilaterally commit American forces to action in response to terrorist attacks or in preemption of terrorist threats is not to say that Congress has no role to play in such conflicts. Congress retains the power to "define and punish . . . offences against [*401] the law of nations," n149 to "make rules concerning captures on land and water," n150 to "make rules for the government and regulation" of the

armed forces, including those that participate in military action against fourth-generational opponents. n151 Thus, while Congress may regulate the treatment of detainees in the GWOT pursuant to the aforementioned Article I powers, and it may cut off funding via the spending


power as a post hoc matter, it may not prohibit the President from sending armed forces into combat against non-state actors ex ante. Thus, the President need not have waited for Congress to enact the Authorization for Use

of Military Force (AUMF) on September 18, 2001 before acting military to combat the terrorists responsible for the September 11 attacks. Furthermore, insofar as the AUMF limits the President's action to those "nations, organizations, or persons" having a specific connection to the September 11 attacks, n152 it is unconstitutional except with respect to nation-states.¶ In reviewing the legislative history of the AUMF, Professors Curtis Bradley and Jack Goldsmith write of how the White House initially sought broad authority to "deter and preempt any future acts of terrorism or aggression against the United States" without regard to any connection they may had to September 11. n153 Congress declined to do so, and instead chose to prescribe a September 11 nexus limitation on the President's ability to use force. n154 As

discussed in Part III, supra, Congress's decision to include this September 11 nexus requirement is consistent with the original understanding of the Declare War Clause only with respect to the President's ability to target nation-states, but, in light of the completely unique nature of the conflict against international terrorist organizations, Congress has no power to enact this nexus requirement to control the President's actions with regard to non-state actors.

Here’s comparative evidenceLi 09(Zheyao, JD Georgetown 2009; “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373, Lexis – JAK)On the other hand, the slow-moving, deliberative Congress has no role to play in authorizing military action against non-state actors in the fourth generation of warfare. The President must have the ability to

react quickly in conducting offensive military action against these transnational enemies, both in response to terrorist attacks that have already occurred and to prevent imminent attacks. Congress's powers over the initiation of war or the seeking of peace have no role in this civilizational conflict against extremist terrorists who will not rest until they destroy the United States and who have made such

intentions known. In light of the fundamental difference in the nature of the threats posed, the nature of the adversaries, and the different strategies and tactics necessary to combat them, these parallel constitutional decision-making processes in the area of war--one conforming to the Framers' conception of traditional Westphalian warfare against

nation-states, and the other adapting to the realities of asymmetric warfare waged by non-state actors--are both necessary to ensure the survival and prosperity of the United States in the twenty-first century and beyond.


Congress Bad Link - Flexibility

Statutory restrictions hinder fast response - causes extinctionYoo 12(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President”¶ Posted Feb 1, 2012,¶ http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)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.

Restrictions destroy flexibility – empirically causes partisan bickering that guarantees rampant terrorismTurner 5Robert F. Turner, Professor, University of Virginia School of Law, The War Powers¶ Resolution: An Unnecessary, Unconstitutional Source of "Friendly Fire" in the War Against¶ International Terrorism?, Feb 15, 2005, http://www.fed-soc.org/publications/detail/the-warpowers-¶ resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-againstinternational-¶ terrorismSadly, the idea that the War Powers Resolution might endanger American lives in the struggle ¶ against terrorism is more than just a hypothetical. Indeed, more Americans were murdered by ¶ terrorists as a direct result of the War Powers Resolution than were killed in all of our military ¶ operations since the end of the Vietnam War. The War Powers Resolution was a primary ¶ factor in the decision by Middle Eastern terrorists to blow up the Battalion Landing Team ¶ Headquarters at the Beirut International Airport on October 23, 1984, killing 241 sleeping marines, sailors,¶ and soldiers. When President Reagan sent the Marines to Lebanon as part of an international peacekeeping force¶ alongside British, French, and Italian forces, the decision was not even arguably an infringement upon the power of Congress "to declare War." We¶ were not going to "War," we were sending a contingent of U.S. forces at the request of all of the warring factions in Lebanon to stand between them so¶ they could meet in confidence and try to negotiate a peaceful end to their conflict. Every country in the region originally endorsed the deployment, and¶ no one in Congress spoke against it on the merits. But several noted there were risks involved-risks the President openly acknowledged-and soon the¶ demands started coming in for a report under Section 4(a)(1) of the War Powers Resolution, the¶ provision governing the sending of U.S. Armed Forces "into hostilities or into situations where

imminent involvement in hostilities is clearly indicated by¶ the circumstances." To begin with, to send such a report to

Congress might well have undermined the¶ mission in Beirut. There were numerous, highly paranoid factions engaged in the Lebanese quarrels who had consented to the American¶ presence on the theory that it was going to be a peacekeeping mission. Had the President notified Congress that he was ¶ taking the nation to "War," militia leaders who had been assured the Americans were coming ¶ in peace might well have concluded that they were going to be the object of the American ¶ hostilities. Why else would President Reagan or his representatives have lied to them about the nature of the mission? As it turned out, the¶ congressional critics were wrong about "imminent involvement in hostilities," as nearly a year ¶ passed before any of the marines came under hostile fire. During that year, the situation in ¶ Beirut became more dangerous because the debate in Congress took a highly partisan turn. ¶ Democrats like Senator Alan Cranston of California and former Majority Leader Robert Byrd announced that ¶ they would not authorize the President to continue the deployment unless he first told Congress, as Cranston put it, "exactly how and when we propose to extricate them." [59] One of the points on which there was no apparent¶ discord at the Federal Convention in Philadelphia was that Congress

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had no role in the actual conduct of military operations. They were given only a¶ "veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack or redeploy troops, and¶ when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been¶ foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction¶ of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United States¶ following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in Beirut¶ would be able to orchestrate their strategy for maximum advantage. For much of the press and many Americans, the issue no longer became whether¶ the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the President¶ was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington Post noted¶ that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are doing push-ups"¶ for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified before the Senate¶ Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life and limb of the¶ Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61] A few days later, when¶ an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats were outraged:¶ "To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally unacceptable," said¶ Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to intimidate the Congress¶ and frighten the American people with this kind of ludicrous argument." This partisan nature of the debate became even more apparent when the¶ Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority Views of All¶ Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to allow the¶ Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and Democrats¶ alike emphasized that Congress could reconsider the issue at any time if there were further casualties among the Marines. All of this ¶ partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign ¶ Minister announced that the United States was "short of breath." [62] The message had also not ¶ escaped radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted ¶ a message between two terrorist units saying: "If we kill 15 Marines, the rest will leave." ¶ Inadvertently, by its partisan debate and repeated pronouncements that further Marine ¶ casualties could provoke another debate and a withdrawal of funds for the deployment (such¶ legislation had already been reported out of a key House subcommittee), in their partisan effort to invoke the War ¶ Powers Resolution, Congress had essentially placed a bounty on the lives of

American forces . ¶ The rest is history. Early on the morning of Sunday, October 23, 1983, a Mercedes truck loaded with highly-

sophisticated explosives drove into the¶ Marine Corps compound at the Beirut International Airport and exploded. America's terrorist enemies had capitalized on ¶ the congressional signals of weakness by murdering 241 sleeping marines, sailors, and ¶ soldiers-more Marines than had been lost on any single day since the height of the Vietnam ¶ War in 1968 and more American military personnel than had been killed in the Gulf War, Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since ¶ Vietnam until the September 11, 2001 attack on the Pentagon.

Congressional restrictions make the US look weak – enemies will exploit our weaknessKahn 2kPaul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law¶ School, “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE WAR POWERS RESOLUTION¶ AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review,¶ November, 2000, pp. LN.Domestically, Congress often works best through a process of articulation of policy differences and ¶ then compromise . The parties set out widely divergent positions as an initial matter. This allows them to establish distinct¶ identities, which in turn allows appeals to different groups of constituents. Difference is then overcome through a process of¶

negotiated compromise. Compromise is often made possible by the fact that it can be multidimensional: in seeking to achieve a

compromise in one area, bargains can be made in other areas. Compromise occurs not only within Congress, but ¶ in the process of negotiation between the Congress and the executive. n58 To fully understand the act¶

of negotiating compromise, moreover, one must consider the role of Washington lobbyists who provide information and coordinate¶

interest group positions. n59 This process of party differentiation followed by compromise produces ¶ consensus around the middle, which is generally the safest position in American politics. ¶ Americans tend to distinguish between politics and government, and do not like it when government [*29] is driven too explicitly by¶

political ends. n60 They generally expect their politicians to shed the party differentiating ideologies that get them elected and to¶ tend to the task of governance under standards of policy rationality. When this process of compromise appears too risky, when it¶ cuts too deeply into the entrenched political positions of the parties, we have seen appeals to bipartisan, expert commissions, the¶ responsibility of which is to articulate the middle ground and so to relieve the pressure on the politicians as they move toward a¶ common ground. n61

With respect to foreign affairs, however, these techniques of congressional ¶ decision-making work poorly. The differentiation that marks the parties as distinct and separate, and is domestically an¶ initial step toward compromise, serves the same differentiating function in foreign policy, but there it tends to freeze party¶ positions. Treaties come before


the Senate too late in the process for compromise to be an option, particularly when they are¶ multiparty covenants. n62 Moreover, compromises can look like concessions of U.S. interests to foreign states, rather than a¶ distribution among competing elements of the polity. Nor is there a great deal of pressure to compromise. Rejecting foreign policy¶ initiatives is a way of preserving the [*30] status quo, and preserving the international status quo is rarely a policy for which one is¶ held politically accountable. It is hard to make an issue out of a failure to change the conditions that prevail internationally, when¶ the country is enjoying power, prestige, and wealth. Unable to compromise, the Senate can end up doing nothing, and then treaty¶ ratification fails. Difference leads to stalemate, rather than to negotiation. The problem is greatly exacerbated by the two-thirds¶ requirement for ratification. n63 This structural bias toward inaction accounts in part for the use of executive agreements in place of¶ treaties. n64 These agreements make use of some of the tactical advantages of presidential initiative. Many of the structural¶ problems remain, however, when executive agreements require subsequent

congressional approval. If the issue involves ¶ the use of force, compromise is particularly difficult. A compromise that produces a less ¶ substantial response to a foreign policy crisis can look like a lack of commitment.¶ Disagreement now threatens to appear to offer an "exploitable

weakness" to adversaries .¶ Congress cannot simply give the president less of what he wants, when what he wants is a

military deployment. There cannot ¶ easily be compromises on a range of unrelated issues in order to achieve support for a military ¶ deployment. While that may happen, it has the look of disregard for the national interests and of putting politics ahead of the¶ public interest. Nor can Congress easily adopt the technique of the expert commission. n65 The timeframe of a crisis usually will not¶ allow it. More importantly, the military - particularly in the form of the Joint Chiefs of Staff - has already preempted the claim of¶ expertise, as well as the claim to be "apolitical." [*31] Finally, there is little room for the private lobbyist

with respect to these¶ decisions. Congress, in short, is not capable of acting because it only knows how to reach ¶ compromise across dissensus. When disagreement looks unpatriotic, and compromise ¶ appears dangerous, Congress is structurally disabled . This produces the double

consequence for American¶ foreign policy of a reluctance to participate in much of the global development of international law - outside of those trade and¶ finance arrangements that are in our immediate self-interest - and a congressional abdication of use of force decisions to the¶ president. The same structural incapacities are behind these seemingly contradictory results.

CP is key to flexibilityYoo 12(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President”¶ Posted Feb 1, 2012,¶ http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)Those in the pro-Congress camp call upon the anti-monarchical origins of the American Revolution for support. If the framers rebelled against King George III’s dictatorial powers, surely they would not give the president much authority. It is true that the revolutionaries rejected the royal prerogative, and they created weak executives at the state level. Americans have long turned a skeptical eye toward the growth of federal powers. But this may mislead some to resist the fundamental difference in the Constitution’s treatment of domestic and foreign affairs. For when the framers wrote the Constitution in 1787 they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs.¶ The 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 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 is 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 they 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’ 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’ 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’ 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 the 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.


AT Flexibility Bad – Unchecked Power

Political consequences prevent a reckless presidentMoe and Howell 99(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press, http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)

This does not mean presidents will be reckless in their pursuit of power .¶ Should they go too far or too fast, or move in to the wrong areas at the wrong ¶ time they would find that there are heavy political costs to be paid—perhaps in ¶ being reversed on the specific issue by Congress or the courts, but more generally ¶ by creating opposition that could threat other aspects of the presidential policy ¶ agenda or even its broader success. It is a matter of strategy. Presidents have ¶ to calculate ex ante the costs as well as the benefits of any attempt to expand ¶ their power and take action when the situation looks promising. They have to¶ pick their spots.

Congress can still check the presidentYoo 12(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President”¶ Posted Feb 1, 2012,¶ http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)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’ 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’ 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.


http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf


AT “XO Won’t Be Perceived”

Presidential action is perceived globallySunstein 95 [Cass, Karl N. Llewellyn Professor of Jurisprudence, University of Chicago Law School and Department of Political Science, “An Eighteenth Century Presidency in a Twenty-First Century World” Arkansas Law Review, 48 Ark. L. Rev. 1, Lexis]With the emergence of the United States as a world power, the President's foreign affairs authority has become far more capacious than was originally anticipated. For the most part this is because the powers originally conferred on the President have turned out - in light of the unanticipated position of the United States in the world - to mean much more than anyone would have thought. The constitutionally granted authorities have led to a great deal of unilateral authority, simply because the United States is so central an actor on the world scene. The posture of the President means a great deal even if the President acts clearly within the scope of his constitutionally-granted power. Indeed, mere words from the President , at a press conference or during an interview, can have enormous consequences for the international community.


AT Separation of Powers Turn

Unitary Executive theory key to Separation of PowerCalabresi, 95 [Calabresi - Associate Professor at Northwestern University School of Law. “Some Normative Arguments for the Unitary Executive” 48 Ark. L. Rev. 23]

The goal, of course, is to ensure that “ambition [will] be made to counteract ambition.” N61 This is accomplished in two ways. First, it is necessary to ensure that each department will have a will of its own. This can be done in part by creating separate electoral channels for each of the three departments back to the ultimate “fountain of authority, the people…”n62 Second, it is necessary to guarantee that “those who administer each department,” will have “the necessary constitutional powers of those offices and the “provision for defence must in this, as in all other [*46] cases, be made commensurate to the danger of attack.” N64 This in turn, leads necessarily to the idea of a unitary executive. The reason for this is because “it is not possible to give to each department an equal power of self defense” as “in republican government the legislative, necessarily, predominate.” N65 Madison explained that “the remedy for this inconveniency is, to divide the legislature into different branches: and to render them by different modes of election, and different principles of action, as little connected with each other as the nature of their common function; and their common dependence on the society, will admit.” N66 But just as key to Madison as the weakening of the legislature was the concomitant strengthening of the executive. Thus, he stated that “ as the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand that it should be fortified.”

Inter branch conflict is a non-unique impact and the last century shows it always balances out and constantly swings like a pendulum Rottinghaus, Assistant Professor (Political Science) and Director of Bureau of Public Affairs Research, University of Idaho. 2006 [Brandon, “Putting the 2006 Bellwood Lecture in Context: Reflections on Executive-Legislative Power Sharing in Modern Foreign Policy Making,” 43 Idaho L. Rev. 1 lexis]

In particular, three historical peaks in the 20th Century characterize the ebb and flow of the dynamic relationship, including the "isolationists" in the aftermath of World War I, n15 the "revisionists" during the height of the Cold War and the "new internationalists" during the Vietnam War. The "isolationists" in Congress were powerful (and savvy) enough to block Woodrow Wilson's proposed League of Nations and force the administration to withdraw troops from revolutionary Russia. n16 During the beginnings of the Cold War, congressional power was again enlarged, with congressional "revisionists" as "players on virtually every key issue of the day, in a bipartisan foreign policy where formal and informal powers seamlessly intersected." n17 Because of strong sentiments from the Republican leadership (and a relatively ineffectual Democratic leadership), several factions of the Republican [*4] Party were permitted to continue their ideological goals to limit the spread of Communism, both at home and abroad. Riding in the wake of the "imperial presidency," Congress again reasserted its power in the mid-1970s. n19 The "new internationalists," who had coalesced years earlier as critics of foreign aid policies that supported anti-Communist regimes in the 1960s, challenged presidential supremacy during the Vietnam War. n20 Stalwart Senators, including Stuart Symington, Edward Kennedy, John Tunney, Dick Clark, Frank Church and members of the "Watergate class of 1974," led the charge with legislation limiting covert assistance, convening hearings on human rights abuses and cutting off aid to governments deemed reckless with power. n21 These idealistic changes prompted many to argue for more transparency in national security affairs and the justification of American international actions to the public, culminating in the War Powers Act of 1974 n22 that ostensibly limited formal presidential war-making power. n23 The most dramatic of these post-Watergate moments, and central for purposes of reflection in the 2006 Bellwood Lecture, was Senator Frank Church's investigation of the United States' intelligence community (including the FBI, CIA and other intelligence agencies) from 1975 to 1976 through the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity. The "Church Committee" (as it came to be known) investigated some of the many abuses of the United States during this time, including assassination plots against foreign leaders and the overthrow of democratically elected governments in Latin America. n24 Out of these proceedings emerged significant legislation restricting presidential power in covert operations by requiring court-granted warrants for international surveillance (called the Foreign Intelligence Surveillance Act). n25 The Ford White House largely viewed the Committee as resultant from the [*5] power shift during Watergate, suggesting emerging political energy (even if temporary) in the legislative branch on foreign policy. n26 As is clear from these examples, this power-sharing relationship is not static. And, as we have seen in the past, this dynamic relationship bends and reforms as function of the political will expended by the political actors involved and as international events unfold. Even as this preface goes to press, the pendulum of power-sharing continues to sway back and forth on contemporary issues, primarily the "war


on terror." In advance of the 2006 elections, the White House and Congress, after key congressional Republicans questioned the White House's blanket authority to detain prisoners, negotiated a compromise on rules for trials for "enemy combatants." Under new rules, detainees have some expanded rights to fair trials where the President is able to establish military tribunals without potential review from federal courts. n27 In addition, while these legislative determinations give the executive more power to classify military detainees, the Congress, even members of the President's party, have been periodically willing to challenge this executive authority. Senator Specter went so far as to initiate Judiciary Committee hearings to investigate President Bush's use of signing statements to interpret laws or statutes as he signs them into law, particularly on the President's ability to interpret Article 3 (regarding "cruel treatment and torture") of the Geneva Convention.

McVey/Munday LabJDI XO CP

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Inter branch conflict is inevitable and cyclical Rottinghaus, Assistant Professor (Political Science) and Director of Bureau of Public Affairs Research, University of Idaho. 2006 [Brandon, “Putting the 2006 Bellwood Lecture in Context: Reflections on Executive-Legislative Power Sharing in Modern Foreign Policy Making,” 43 Idaho L. Rev. 1 lexis]

The events of September 11, 2001 ushered in a complex reorganization of the nation (and perhaps the world) but were an understandable part of a long and incessant struggle in the balance of power in American government between the legislative and executive branches. Indeed, dramatic national events that seek out a national leader tend to allow for a tuning of the thorny relationship between the two lawmaking branches of government. Interestingly, we have witnessed this pattern of inter-branch tension in similar past dramatic events: the Civil War, the Great Depression, and Pearl Harbor (and now 9/11). All have pushed the pressure points of political power. However, because of Constitutional design, political energy among these American political institutions cannot be destroyed-only displaced. In truth, one branch can only absorb so much of this energy before the other branches demand redistribution of these important shared powers. Concerns over these inter-branch tensions are not new and distinct patterns emerge governing how the relationship evolves over time; scholars for generations have labored to describe the complicated and tenuous relationship between the executive and legislative branches. Woodrow Wilson, the most famous scholar and practitioner of the science, suggested in Congressional Government that Congress was ill-equipped to legislate and the president must have a more significant and formal role. n1 Corwin's prescient description of the separated powers as an invitation to struggle, framed scholars' thinking about the Constitutional interaction between the presidency and Congress. n2 Neustadt's concept of the president and the legislature as "separated institutions sharing powers" intellectually echoed Corwin's [*2] finding. n3 He argued separated but shared powers sets the stage for "that great game" where both sides must lobby and bargain with each other "much like collective bargaining, in which each seeks to profit from the other's needs and fears."


77

AT Tyranny Turn

Congressional and Judicial oversight prevent tyrannical powerWetzel ‘7 [Alissa C., Juris Doctor and Master of Science in international commerce and policy degrees May 17 from Valparaiso University, The School of Law, 2007 Valparaiso University Law Review. 42 Val. U.L. Rev. 385. Beyond the Zone of Twilight: How Congress and the Court Can Minimize the Dangers and Maximize the Benefits of Executive Orders. Lexis. Accessed 6/13/09]

As this Part has shown, though executive orders may seem to leave open the possibility of Presidential abuse, in practice, the system, though not perfect, creates appropriate blocks to executive tyranny. n165 First, executive orders allow the President to issue bold prerogatives on [*425] politically sensitive issues. n166 Second, Congress is able to appropriately check any potential for Presidential abuse, though it does not often do so. n167 Finally, the Court's test for the validity of executive orders is proper, though it is improperly applied to intelligence and classification. n168 In short, the Constitutional dialogue on executive orders has been a productive one, producing a test that, if applied correctly, can guard against executive tyranny and abuse. However, Congressional oversight has not been sufficiently effective and the Court's application of the Jackson test is flawed in the area of intelligence and classification. n169 Now, it is up to Congress to take a bolder stance on such issues in order for the Court to apply the test correctly. n170 V. CONCLUSION For two centuries, executive orders have allowed Presidents to exercise enormous power. At times, that power has been used to implement important measures to advance the country. At other times, executive orders have bred scandal and national shame. Upon closer examination of 200 years of Constitutional dialogue among the three branches of government concerning how much unilateral power a President ought to have, however, it becomes clear that although executive orders may appear tyrannical based on the broad power they afford Presidents, in practice executive orders are useful tools of the Presidency, able to be checked by Congressional oversight and controlled by the Court. If correctly wielded, such Congressional and judicial oversight can guarantee that executive orders will not allow Presidents to become the despots so feared by the founding generation. Instead, by moving out of the zone of twilight and exercising proper oversight Congress and the Court can ensure that the President is able to [*430] administer the executive branch effectively, pass measures quickly, and occasionally rise above political divisions and do the right thing.

History proves Executive Orders are Constitutional and that they can be controlledWetzel ‘7 [Alissa C., Juris Doctor and Master of Science in international commerce and policy degrees May 17 from Valparaiso University, The School of Law, 2007 Valparaiso University Law Review. 42 Val. U.L. Rev. 385. Beyond the Zone of Twilight: How Congress and the Court Can Minimize the Dangers and Maximize the Benefits of Executive Orders. Lexis. Accessed 6/13/09]

II. BACKGROUND Like all executive power, the ability of Presidents to issue executive orders has developed through past practice and judicial decisions. n13 Indeed, Supreme Court jurisprudence in the area of executive orders has been called a "constitutional dialogue" between the executive and judicial branches. n14 Moreover, an examination of the long history of executive orders reveals the measures that Congress and the courts can take today to minimize the danger of absolute Presidential power, while preserving the positive attributes of executive orders. n15 [*388] Thus, this Part will cover over 200 years of constitutional dialogue, tracing the rise of the modern presidency and encompassing some of the great political debates and judicial decisions of the past. n16 First, this Part examines the early history of this dialogue, from its Constitutional roots to early executive orders and judicial challenges. n17 Second, this Part considers the manner in which executive orders and court challenges were affected by the Civil War and Gilded Age that followed. n18 Next, this Part focuses on how the dialogue changed with the advent of the modern presidency at the turn of the twentieth century through the duel crises of the Great Depression and World War II. n19 Finally, this Part discusses how contemporary Presidents have used executive orders and how the Supreme Court has developed the modern judicial hurdle of challenging an executive order. n20 A. Executive Orders from Constitutional Roots Through the Dawn of the Civil War: Congress Ignores Early Orders While the Court Firmly Establishes Statutory Supremacy In 1789, the


78

framers drafted the United States Constitution and created an innovative institution: the American Presidency. n21 Though wary of creating too strong an executive figure, the framers drafted the Constitution such that the President possesses both express and implied [*389] powers. n22 The authority to issue executive orders is an implied power that has been used by Presidents dating back to George Washington. n23 Executive orders have allowed Presidents to do that which even the King of England could not: bypass the legislative process by issuing orders that carry the force of law. n24 [*390] Though executive orders did not receive their name until well into the nineteenth century, most authorities agree that the first such order was an administrative order issued by George Washington in June of 1789. n25 However, President Washington's most divisive order did not come until 1793 in the form of a Neutrality Proclamation, declaring that the United States would not get involved in the war between France and Britain. n26 Significantly, though highly controversial, Congress never [*391] overturned the Neutrality Proclamation. n27 However, as history would soon illustrate, Congress was not the only check on Presidential power. n28 In 1804, the Supreme Court first weighed in on Presidential proclamations in Little v. Barreme. n29 The executive order at issue in Little, a naval order that was issued pursuant to a Congressional grant of Presidential authority, conflicted with a statute. n30 Firmly establishing the [*392] supremacy of statutes over executive orders, the Court held that the statute controlled and that the executive order was thus invalid. n31 The years that followed Little saw numerous executive orders unchallenged by Congress, most dealing with civil service issues and the disposition of public lands. n32 Still, two important executive orders were issued prior to the Civil War. n33 First, though seldom classified as such, President Thomas Jefferson's Louisiana Purchase had all the markings of an executive order, since it was done unilaterally by Presidential order without direct statutory or Constitutional authority. n34 Significantly, neither Congress nor the public challenged the Louisiana Purchase on [*393] the grounds that it was issued without Congressional authority. n35 Second, President John Tyler began the tradition of establishing controversial independent Presidential commissions with executive orders when he issued an 1842 order calling for a commission to investigate corruption in the New York City Customshouse. n36 Thus, by the beginning of the Civil War, the practice of issuing executive orders was firmly established in American politics, and, although the Court had established the supremacy of statutes over executive orders, Congress was seldom willing to override an order. n37 In the mid-1800s, as with modern executive orders, the Court had developed a framework for assessing the legality of executive orders; however, in order for the Court to effectively check Presidential power, Congress had to be proactive as well. n38

Youngstown decision prevents unchecked executive powerWetzel ‘7 [Alissa C., Juris Doctor and Master of Science in international commerce and policy degrees May 17 from Valparaiso University, The School of Law, 2007 Valparaiso University Law Review. 42 Val. U.L. Rev. 385. Beyond the Zone of Twilight: How Congress and the Court Can Minimize the Dangers and Maximize the Benefits of Executive Orders. Lexis. Accessed 6/13/09]

Paradoxically, Youngstown, the most dramatic instance of the Court declining to cooperate with the executive branch, also presented the seminal test that the Court has used to uphold subsequent executive orders. n155 Justice Jackson's test, outlined in Youngstown, which grants the President less deference depending upon Congressional action or inaction, properly assures that executive orders will not become instruments of abuse. n156 By allowing Congressional behavior to determine whether an executive order is valid, the Courts have allowed the two political branches of government to draw the territorial line themselves. n157 Congress is able to allow the President to issue an executive order without endorsing it or overturning it. n158 This process [*424] results in a delicate political balance between Congress and the President, and allows the Court to stay out of subjective determinations of whether or not a President has issued a tyrannical executive order. n159 Though Youngstown properly ensures that executive orders do not become mechanisms of executive tyranny, there is one area in which the Court has inexplicably declined to apply the Youngstown analysis--intelligence and government classification. n160 Even following clear Congressional attempts to curb the President's power to classify information under the Freedom of Information Act and allow Courts to review intelligence information in camera, the Court has declined to apply the proper prong of the Jackson Test. n161 Instead, the Court has treated intelligence and classification orders as if they are backed by Constitutional or statutory authority, when they are in fact within the purview of both the executive and legislative branches of government. n162 Thus, the Court offered deference to the President for policy reasons. n163 Yet, avoidance of these types of subjective judicial determinations was the reason behind the Jackson test. Accordingly, under the Jackson test, Congress, and not the Court, should be making the determination of


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how much deference to give to the President in issuing intelligence orders.

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