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presidents for Congress with regard to declarations of war did not begin with Obama. It extends back decades and
has been evidenced by Republican and Democratic presidents. Pauls proposal to have Congress declare
that a state of war exists between the organization identifying itself as the Islamic State and the government and
the people of the United States is flawed on many levels. For instance, despite the senators
protestations to the contrary, it opens too much space for the assignment of ground troops to a fight in a region
Constitution. This parlor game has been going on for a long time. The United States has not formally declared war
many of the same Republicans who are now screaming about the
president issuing an executive order with regard to immigration as Republican
Presidents Eisenhower, Nixon, Ford, Reagan and Bush did before him have engaged in the warand-peace parlor game quite willingly. Indeed, interventionist Republicans such
as Arizona Senator John McCain and South Carolina Senator Lindsey Graham are frequently
heard urging presidents to be more aggressive and unilaterally inclined in
their executive warmaking. The war hawks have been aided and abetted
by Republican congressional leadersalong with Democratswho have declined to take
since World War II. And
even the most minimal steps to check and balance presidential warmaking
since the days when George W. Bush began overreaching. When President Obama began ramping up the current
fight with Islamic State militants in September, a CNN poll found that, while Americans were alarmed and
concerned about reports of conflict in Iraq and Syria, they were also skeptical about getting too deeply engaged
in that conflict. Specifically the poll found that: 1. Americans want limits placed on the US military response to the
Islamic State in Iraq and the Levant and to the broader political challenges that have developed in those countries.
For instance, a majority of Americans, 61 percent of Americans oppose placing US troops on the ground in Iraq and
Syria. 2. More than 70 percent of Americans believe that President Obama should seek congressional authorization
for military strikes against ISIL. Amid all the examples of alarm and concern, the American people remain wary
about any rush to war. They believe that Congressnot just the presidentshould have a say with regard to
expansion of military action. And, make no mistake, what President Obama has embarked upon involves a dramatic
expansion of US military involvement and action in Iraq and Syria. As Congresswoman Barbara Lee, D-California,
said in a statement in September, The facts are clear. We are no longer talking about limited strikes to prevent
genocide and protect US personnel. We are talking about sustained bombing and the use of military force. The US
troop presence in the region has risen steadily since September. Yet even now, House Speaker John Boehner, who
so noisily objects to executive initiatives on the domestic front, remains cautious about challenging executive
warmaking. As such Obama simply says, I have the authority to address the threat from ISIL. But I believe we are
strongest as a nation when the President and Congress work together. So I welcome congressional support for this
Translation: While
the president is happy to accept endorsements of his actionsand may, in fact,
get from this Congress or the nexthe is in no rush to seek the congressional advice and
consent on matters of war and peace that is imagined and intended by the
Constitution. Congressman Jim McDermott, D-Washington, has described the presidents
I welcome congressional support line as really kind of condescending .
Yet, Congress has been absurdly slow in asserting its clear authority as a
co-equal branch of government to debate and vote on plans for war and, through the
power of the purse, to define the scope and character of warmaking . While
effort in order to show the world that Americans are united in confronting this danger.
Republican and Democratic leaders have been derelict in their duty, there are members of the House and Senate
who continue to voice concerns about the lack of clear congressional authorization for military action in Iraq and
Syria. Congresswoman Lee has long championed the view that the Constitution requires Congress to vote on the
Grijalva, D-Arizona, and Keith Ellison, D-Minnesota, have joined Lee in asking for immediate and genuine debate.
The voices of the American people must be heard during a full and robust debate in Congress on the use of
military force, they have said. Speaker Boehner should put legislation authorizing military action on the floor of
the House of Representatives before Congress leaves for the upcoming district work period. House Armed Services
Committee member John Garamendi, D-California, has for months been specific in arguing that the U.S.
Constitution and War Powers Resolution are clear: Congress is obligated to weigh in on extended U.S. military
actions. No matter how noble the cause, no matter how just the engagement, Congress voice and vote are required
within a 60-90 day window. The sixty-to-ninety-day window that Garamendi spoke of in that September statement
has passed. For months, Speaker Boehner and other congressional leaders have ignored what the California
congressman correctly describes as our Constitutionally-required duty. Now, it appears that Congress may finally
send a signal regarding its sentiments. But, as The New York Times notes: Some (Republican) conservatives may
balk at setting up a narrow set of parameters for the president. Senator James M. Inhofe of Oklahoma, the senior
Republican on the Armed Services Committee, has introduced a resolution that would give the president all
necessary and appropriate force to defend the country against the Islamic State but would require him to report
back to Congress on the effort every 90 days. The debate will probably continue into the next Congress.
Republicans will then control both chambers, which is likely to make it more difficult to pass a resolution that sets
major limits. Congress has ceded to successive presidents immense authority to act on domestic and foreign-policy
concerns. This has created a confusing circumstance that favors the executive. The White House has broad
authority to act when emergencies arise, and when crises go unaddressed by obstructionist or dysfunctional
In many areas of domestic policy, the courts and Congress have helped to
define for presidents a good deal of flexibility. Yet when it comes to
matters of war and peace, there has been little in the war of responsible
defintion. Instead, the power of presidents has expanded to a point where
congresses.
archive of documents released by NSA whistleblower Edward Snowden has revealed many other programs that
pose equal or greater risks to Americans privacy.But Hayden is too quick to assume that the phone records
communications have grown exponentially in the last years as it has become easier and cheaper to talk and text
with people abroad. In our increasingly interconnected world ,
the defense appropriations bill (the National Defense Authorization Act) that would end these backdoor searches by
cables to scoop up all information that flows through them they operate under an order issued by President
providers overseas, sometimes in multiple locations. Domestic websites often have ads, pop-ups and other such
links that are hosted on foreign servers, effectively sending search queries into the international ether. Americans
the mandatory disclosure of documents in the possession of the Executive Branch.130 However, the executive
branch has argued that the Commander-in-Chief Clause of Article II bestows upon the President independent power
Congresss
generally broad ability to require disclosure of agency documents may be
constrained when it implicates national security.132 The executive branch has typically
to control access to national security information.131 As such, according to this line of reasoning,
exercised discretion to determine what particular information should be classified; and the Supreme Court has
observed in dicta that the President is Commander in Chief, and his authority to classify and control access to
information bearing on national security ... flows primarily from this Constitutional investment of power in the
courts have
crafted common law privileges that protect the executive branch from
revealing certain military secrets.134 Nonetheless, Supreme Court
jurisprudence does not establish absolute power by any branch over
classified information135 and recognizes room for Congress to impose
classification procedures .136 Moreover, Congress, pursuant to its
oversight function, requires consistent disclosure of sensitive national
security information to the relevant intelligence and defense committees
and has regulated control over access to national security information.137
President and exists quite apart from any explicit congressional grant.133 In addition,
Pursuant to these statutes, courts have required the executive branch to disclose information to the public and the
Its the key issue for separation of powers and spills over
AT: FISC Fails/Inefective No authority now, plan gives it
authority. Youve read uniqueness args for us.
HLRA 3 (Harvard Law Review Association, May 2003, CONSTITUTIONAL LAW FOURTH AMENDMENT - SEPARATION OF POWERS - FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW HOLDS THAT PROSECUTORS MAY SPY ON
AMERICAN AGENTS OF FOREIGN POWERS WITHOUT A WARRANT,
https://www.law.upenn.edu/live/files/2477-fisc--harvard-law-reviewpdf)
The review court's narrow conception of the FISA court's statutory and
constitutional authority raises serious Fourth Amendment and separation
of powers concerns. First, it potentially blindfolds the FISA court to blatant violations
of the Fourth Amendment. The review court recognized in Sealed Case that FISA surveillance
conducted primarily to gather evidence of "ordinary criminal wrongdoing," as
opposed to a foreign intelligence crime, would clearly violate both FISA and the
Fourth Amendment.60 The court also recognized that any "manifestation of such a purpose ... would continue to
disqualify an application."6' Nevertheless, the review court denounced any "FISA court inquiry into
the origins of the investigation [or] examination of the personnel involved" as judicial usurpation of executive
prerogative62 - even though such an inquiry may well reveal a blatantly unconstitutional purpose . Second, by demanding
virtually unqualified deference to the Attorney General, the review court's opinion
"impermissibly threatens the institutional integrity of the Judicial Branch "63 and thus
violates the spirit of Article III, which "serves both to protect the role of the independent judiciary within the constitutional scheme of
tripartite government and to safeguard litigants' right to have claims decided before judges who are free from potential domination
discovery and suppression of information obtained through surveillance when the government intends to use it in a trial or other
proceeding,69 motions to disclose or suppress must be reviewed in camera and ex parte if the Attorney General determines that
the institutional
independence of the FISA court is crucial to the constitutionality of the surveillance
that it approves. The review court noted in Sealed Case that FISA surveillance is reasonable under the
Fourth Amendment partly because it must be approved by a neutral and detached
magistrate.7' But if a FISA judge has no real authority to question executive
procedures for conducting foreign intelligence surveillance, he or she functions
more like "a compliant arm of the government"72 than like a neutral and detached magistrate.
According to the Supreme Court, "the greatest security against tyranny - the accumulation of excessive
authority in a single Branch lies not in a hermetic division among the Branches, but in a
carefully crafted system of checked and balanced power within each Branch ."73 By
erroneously interpreting the separation of powers doctrine to require a
hermetic division between the FISA court and the Justice Department, the
review court's opinion in Sealed Case threatens not only privacy interests but
also the separation of powers itself.
"disclosure or an adversary hearing would harm the national security of the United States."70 Finally,
the height of the Cold War. Our countrys overinvestment in the Pentagon makes it more difficult to invest in other
lies between jihadist fighters prowling Libyas deserts to the north, AlQaeda in the Islamic Maghreb active in the west and rebels and janjaweed
militia battling in Sudans Darfur region to the east. Chadian President Idriss Dby, who came
to power in a 1990 coup, has used these security threats to strengthen ties with
foreign powers, particularly France and the United States. The Flintlock exercise is intended to bolster
border security and help limit the movement of rebel groups, human traffickers and criminal networks. Toward that
country has only grown in recent years. TomDispatchs Nick Turse pointed out last year: The United States has for
more than a decade poured copious amounts of money, time and effort into making Chad a stable regional
counterterrorism partner, sending troops there, training and equipping its army, counseling its military leaders,
providing tens of millions of dollars in aid, funding its military expeditions, supplying its army with equipment
ranging from tents to trucks, donating additional equipment for its domestic security forces, providing a surveillance
and security system for its border security agents and looking the other way when its military employed child
soldiers. Oil imports from Chad hardly justify such a robust security partnership .
But Chads willingness to intervene in regional crises helps Washington to avoid getting dragged into African
Dby
has used regional turmoil to strengthen ties with Western allies and flex Chads muscle. In
conflicts. Chad has proved useful in carrying out the tasks that the United States is unwilling to take on.
2013, Chad played a key role in the French-led offensive to wrest control back from armed Islamic groups in
northern Mali. In July 2014, France chose Chad as the primary base for Operation Barkhane, a 3,000-strong
permanent French force meant to counter terrorism and ethnic strife in the Sahel. Similarly, in April 2014, the U.S.
used Chadian bases to operate drones and conduct surveillance to help find Nigerias Chibok schoolgirls kidnapped
by Boko Haram. In
While the U.S. and France might be relieved to have a battlehardened military ally in the region, Chads previous involvements in regional
conflicts should give them pause. True, Chad is relatively stable among its
conflict-ridden neighbors, which include the Central African Republic, Mali, Libya and Sudan. But
NDjamena has been responsible for a significant amount of the instability
in those countries . In 2013, Dby allegedly facilitated the coup against
President Franois Bozize in the Central African Republic by lending support to the Seleka
rebels. The situation there has since devolved into brutal fighting between rival armed groups,
skyrocketed.
resulting in a humanitarian crisis and a flood of refugees and internally displaced people. (Ten years earlier, Dby
provided sanctuary for Bozize during his attempt to overthrow then-President Ange-Felix Patasse.) Having facilitated
the crisis,
Chadian troops were then sent into the Central African Republic as a part
Chads support
for rebel groups in Sudan and the Central Africa Republic has spun out of
control and devastated local communities . And its enthusiastic military
intervention in Nigeria is being viewed with suspicion . Some Nigerians have
even suggested that Dby has provided support for Boko Haram. The claim
Chads eastern region and Sudans west have become deeply divided and ungovernable.
in their operations as a result of the U.N.-backed French intervention in Mali (for which strategic airlift and refueling
were provided by the U.S. in coordination with the United Kingdom, Canada, and Sweden), the threat from Islamist
This
arc extends from the coast of West Africa, across the Sahelian zone, along
the northern reaches of the continent, and down through East Africa to
include Ethiopia and Somalia. As a result of cross-border raids and kidnappings, Islamist
terrorism is bleeding into Cameroon. The metamorphosis of the conflict in the
Central African Republic for control of state resources and a vast illicit economy21
terrorists remains real and credible, particularly within the zone known as the arc of instability in Africa.
into a conflict that is defined primarily in religious terms highlights the extent to
which religious extremism and ethnic conflicts are mixing to create an
even more dangerous threat to regional stability.
Contention 2 NATO
U.S. surveillance practices short circuit intelligence sharing
with all of Europe -- surveillance reform is a prerequisite to
new agreements.
- Spying pause in the status quo due to U.S. surveillance
practices to their own citizens
- Surveillance reforms are a pre-requisite to intelligence
sharing agreements
- Lack of intelligence sharing afects NATO coordination all
across Europe
Eichensehr 14 (Kristen, graduate of Harvard University, the University of
Cambridge, and Yale Law School, United States Stops Spying on Western Europe
for Now, September 23, 2014, http://justsecurity.org/15414/united-states-stopsspying-western-europe-for/)//ghs-VA
It seems highly unlikely that restrictions would be unilateral or total, as the pause
appears to be. It makes little sense for the U.S. to engage in unilateral
intelligence disarmament when it could bargain for mutual intelligence
restrictions and increased intelligence sharing. Moreover, given the lack of precedent for
a total no-spy agreement, the Obama Administration is unlikely to relinquish the right to spy, even on allies, in
Although Germany apparently rejected a similar offer in July, the espionage pause may provide room for diplomacy
and scope for negotiation that were not possible in the midst of the spying scandal over the summer. Another
question is which countries might get the Five Eyes-style deal. Although Ive focused on the recent history with
the pause
reaches beyond Germany to friendly governments in Western Europe . (It
Germany and events in Germany reportedly triggered the pause, the AP report indicates that
does not specify which governments or indicate whether it means all friendly Western European governments.) But
Countries, including
Germany and France, whose publics have been incensed by reports of U.S. spying
on their citizens have incentives to publicize any agreement that limits
U.S. collection activities vis--vis their citizens. The disclosure of any new
agreements with particular countries could create diplomatic strife for the
U.S. with other countries that want, but have not been offered, the same deal. When the no-spy
from the perspective of other friendly governments, why stop with Western Europe?
agreement issue arose last fall, Stewart Baker proposed in congressional testimony substantive and procedural
criteria for entering spying agreements, and in December, the Presidents Review Group on Intelligence and
the president
was kept in the dark about the blown spying operation at a particularly
delicate moment in American relations with Germany has led frustrated White House
Intelligence Agency. While Ms. Merkel chose not to raise the issue during the call, the fact that
officials to question who in the C.I.A.s chain of command was aware of the case and why that information did not
make it to the Oval Office before the call. The details of this spying case remain murky. Intelligence officials have
the
episode sheds light on the tensions that arise from the colliding cultures
of spycraft and statecraft one driven by the need to vacuum as much secret material as possible;
declined to comment, and it is still not clear what the German operative has told the authorities. But
the other giving primacy to diplomatic objectives. It also reinforces the problem that surfaced a year ago in the
wake of revelations about National Security Agency surveillance practices from the rogue contractor Edward J.
Snowden: whether the costs of spying on close allies outweigh the gains. At the White House, senior officials have
cellphone. What is particularly baffling to these officials is that the C.I.A. did not inform the White House that its
agent a 31-year-old employee of Germanys federal intelligence service, the BND had been compromised,
given his arrest the day before the two leaders spoke. According to German news media reports, the agency may
have been aware three weeks before the arrest that the German authorities were monitoring the man. A central
question, one American official said, is how high the information about the agent went in the C.I.A.s command
whether it was bottled up at the level of the station chief in Berlin or transmitted to senior officials, including the
director, John O. Brennan, who is responsible for briefing the White House. For all his concerns, Mr. Obama does not
plan any extraordinary outreach to Ms. Merkel, an official said, noting that some in the administration also feel that
Germany should not overreact to the case or conflate it with the privacy issues raised by the N.S.A.s surveillance.
further American involvement, said John C. Kornblum, a former American ambassador to Germany. Recent events
have demonstrated that just the opposite is the case. Germany is still deeply conflicted about itself and about the
world around it. The White House and the C.I.A. both declined to comment on the case, with a spokeswoman for
the National Security Council, Caitlin M. Hayden, saying, Were certainly not going to discuss who knew what and
when in regards to the allegations. On Tuesday, the chairwoman and the ranking member of the Senate
Intelligence Committee said in separate interviews that Mr. Brennan had briefed them about the matter, but they
refused to divulge any details of the conversations. Senator Dianne Feinstein, the California Democrat who is
chairwoman of the committee, expressed concern about the damage that could come to American-German
relations. We need to relook at this whole situation, how we handle our allies, said Ms. Feinstein, who said she met
with German Parliament members who she said were very upset by the reports. The ranking Republican, Senator
Saxby Chambliss of Georgia, sounded a note of caution about the allegations. Im not sure how much of it is true,
he said. Thats going to dictate how serious it is. Over the past year, the German government has tried to use the
Snowden revelations chiefly the embarrassing disclosure about Ms. Merkels cellphone as leverage to
negotiate a non-spying pact between the United States and Germany. The United States has such arrangements
with Australia, Britain, Canada and New Zealand. But the White House has resisted, in part because officials worry
that it would prompt other countries to request similar deals. In early 2010, the director of national intelligence,
Dennis C. Blair, explored a nonspying pact with French intelligence officials, partly because Mr. Blair believed such a
deal would ease the burden on the F.B.I., which has the task of hunting French spies in the United States. The
French are reputed to be particularly aggressive in pursuing American industrial secrets. In contrast, current and
former American officials said that German operatives are far less active in the United States, making the benefits
of a nonspying deal with Berlin less obvious. Likewise, some question the value of spying on Germany.
Such
that American
and German spies have developed in recent years. Since the Sept. 11 attacks, the BND has aggressively pursued
terror suspects in Germany and played a role in the crippling Stuxnet cyberattack on Irans nuclear program.
Theres only so much that spying on the Germans is going to get you, said a former C.I.A. official once posted in
Europe. Its not like the Germans are planning to establish relations with Iran. Last weeks disclosure came at a
delicate moment: Mr. Obama needs Ms. Merkels support to impose additional sanctions against Russia for its role in
the Ukraine crisis. Germany, with extensive energy ties to Russia, has many reasons to resist, though Ms. Merkel
has signaled she is running out of patience with President Vladimir V. Putin. The American authorities are also
pursuing heavy financial penalties from German banks, including Commerzbank and Deutsche Bank, for dealing
with Iran and other countries that are blacklisted by the United States. The German government owns 17 percent of
Tuesday.
roles and missions for the alliance. Unfortunately, the document is so general that it
provides little guidance as new challenges emerge, leaving member states still
debating the institutions responsibilities and priorities . With the support of NATOs Public Diplomacy
Division, the UK Foreign & Commonwealth Office, and the Canadian Department of National Defence, the US Project at Chatham House held three
roundtables to discuss the way forward for NATO. The discussions culminated in this paper, which aims to inform debate leading up to the September
summit in Wales. The paper briefly lays out the principal external challenges that NATO members face, what tasks are required of the institution, its
current resources and capabilities, the gaps between strategy and capabilities, and what actions NATO needs to take to fill these gaps. Starting from the
threats that the NATO member states prioritize, and remaining in the confines of the Strategic Concept, the paper is intended to offer a path forward for
NATO. It provides guidance on how the alliance can move ahead in the coming years to address current and emerging challenges. Over the past few
events have challenged the assumptions that many NATO members have made
regarding the stability of the international environment and, accordingly, their own
national security. The grand strategic project to make Europe whole and free and at peace with itself, once considered complete, is now
months,
very much in question largely as a result of Russian aggression.4 To Europes southeast, the Syrian conflict has metastasized to dangerous levels and has
spilled over into Iraq, with profoundly worrying counter-terrorism implications for Turkey (a key NATO member) and Europe.5 While it is absolutely vital
NATO members respond to the pressing nature of the above concerns, they must also keep in mind the
longer-term strategic and future trends that will affect them . The organization needs to be able to react
that
to the former while making progress on others, including overthe-horizon, critical issues such as grappling with natural resource constraints (particularly in
Mediterranean members contending with refugee inflows stemming from instability in the region. In order to understand whether, and how, countries
differ in their views of the emerging threat environment, Chatham House asked national security experts how their respective countries prioritized their
security requirements. Table 1, derived from a combination of their responses as well as relevant government policy statements, reflects the similarities
and differences of opinion on critical national security priorities across the alliance.6 It is important to note that Table 1 reflects issues that both national
security experts and national strategy documents deemed critically core interests of their countries. As such, it necessarily excludes other issues that are
important, but not considered truly crucial by those surveyed. It is illustrative rather than definitive. In some cases the respondents did not prioritize
issues such as violations of national territorial integrity, probably not because they are unimportant but because they are, in the minds of those
commenting, so unlikely to occur as to be irrelevant. Discussed below are the principal challenges that most member states studied here could agree are
critical to their national interests. While this paper largely follows the organization of Table 1, some categories have been merged given the significant
overlap, such as attacks on allies, violations of territorial integrity, and Russia; and crises emanating from failed and failing states, and Middle East and
Top priorities Attacks on allies While Russia is not the only possible
adversary for NATO members, it is certainly the most potent one today. Since the end
North Africa.
of the Cold War, NATO has placed significant emphasis on engaging with it. In 1994, Russia joined the NATO-led Partnership for Peace, a programme
designed to promote democratic values, strengthen military-to-military ties, and help reform security institutions in former Warsaw Pact countries. Building
on that partnership, and despite frictions associated with NATOs operations in the Balkans (and in Kosovo specifically), the NATO-Russia Council (NRC) was
established in 2004 to promote transparency and cooperation between the two former adversaries, and to allow NATO and Russia to discuss matters of
mutual concern. While NRC talks were suspended in 2008 following Russian incursions into Georgia, by 2010 the two parties had agreed to begin
reconvening such meetings. Over the past few months, however, Russia has taken actions in Ukraine that emphasize that its interests go against the
President Vladimir Putins words, protect Crimea, [which] has always been an inseparable part of Russia.7 Apparently in order to continue to ensure
Many believe that in the coming months, Putin will further probe the
alliances solidarity. And many NATO members and partners alike now worry
that probing might in time lead to territorial loss. What makes this challenge difficult to manage are
relationship with it.
the levels of economic and energy interdependence between Russia and some European countries. Russian individuals and firms have invested heavily in
Europe, making both sides increasingly reliant on one another and Europe loath to risk the economic consequences of sanctioning Russian entities or
individuals (although Russia is more dependent upon Europe than the reverse).8 As such it becomes even more difficult to organize a coherent,
crossgovernmental response to Russias assertive behaviour. Given the urgency and attention that recent Russian moves have inspired within NATO and
its member states, it is perhaps surprising that there is less strategic consensus among those surveyed about the degree to which it presents an
overwhelming threat to national interests. However, this is likely to be due in large part to the economic and energy ties that Russia has with many of the
member states, making it a necessary partner as well as a cause of concern. It also reflects the geopolitical realities of different member states: the
further a NATO member is from Russias borders, the less likely that the latters moves will be seen as a critical and direct national security threat. More
protecting allies is perhaps today all the more pertinent given the broadening
array of possible forms of attack, and the recognition that borders are porous an
attack against one can have real implications for its neighbours . However, strategic-level agreement
broadly,
belies some likely disconnects among allies as to what the Article V provision means in practice. With the rise of asymmetric threats and non-traditional
challenges such as cyber security, serious questions have been levelled as to what today might constitute an attack on allies, and what the appropriate
NATO has
become involved in a number of military operations designed to tackle the
challenges posed by failing states .9 Susceptible to disruptive actors such as insurgent or terrorist groups, and in the absence
of legitimate governance, these territories can be used as launching points for terrorist attacks
and other regionally, if not globally, destabilizing activities (as was demonstrated in the 11 September
2001 attacks). As a result, NATO and its member states have conducted interventions in the
Balkans and Afghanistan, as well as counter-piracy missions off the Horn of Africa .
Unfortunately, over that period, the world, and particularly Europes near neighbourhood, has become significantly less stable. Governments
and civil society institutions are being shaken to their foundations and in many
instances, terrorist and other radical groups are filling the void created by
the absence of state institutions. Looking forward, instability is increasing across the Middle
East and in subSaharan Africa areas that are deemed critically important to
several NATO member states. While the region is outside the European theatre, most NATO member states have critical
responses might be to those attacks. Crises emanating from failed and failing states Particularly since the end of the Cold War,
interests in the Middle East and North Africa (MENA). Among other things this is due to its proximity to Europes southern and southeastern borders,
cultural ties between citizens on either side of the Mediterranean and particularly between France and Algeria, energy supplies, shipping routes through
interests have
increasingly been at risk given the instability in the broader MENA region . Egypt, a longstanding ally of the United States, has been through six governments over the past three
years and continues to be disrupted by competition between vastly differing
groups, each with differing interests that would like to lead it in divergent directions. Despite a NATO-led intervention to protect Libyan citizens in
anti-Gaddafi areas of Libya (most notably Benghazi), which subsequently led to the overthrow of the regime, instability in Libya
continues. Events in Syria are perhaps of most concern and raise tensions
with regard to humanitarian, refugee and terrorism issues. The conflict has recently
spilled into northern and central Iraq (which has remained unsettled following the exit of US and other foreign troops in
the Suez Canal and around the Horn of Africa and, recently, operations in Iraq. Since the Arab revolutions in 2011, these
2011), and raised the spectre of a radical jihadist group, in this case the Islamic State of Iraq and the Levant (ISIS/L), once again having control over
11 September 2001 attacks on the United States perpetrated by Al-Qaeda. And despite interventions in Afghanistan and elsewhere to eradicate the Al-
the organization has evolved into a series of loosely affiliated (or franchised)
groups, each with its own objectives. Some states feel the threat of terrorism more
than others, and the direction from which it emanates is different. For example, of
particular concern to France is Al-Qaeda in the Islamic Maghreb, which has been
Qaeda threat,
working to destabilize key areas in North Africa , and which led to Frances intervention in Mali. The United
States and the United Kingdom are more focused on ISIS/L in Iraq and Syria as well
as radical groups based in Afghanistan and Pakistan. Cyber attacks In 2007, following the relocation of a
Russian war monument, Estonia experienced a massive denial of service attack that crippled
many of its governmental websites for several days, an act that was particularly
damaging, as a relatively high number of Estonias governmental functions are conducted online. While Russia denied involvement, it did
suggest that Russian patriot hackers beyond the states control might bear some
responsibility for the attacks.11 Less visibly, but no less importantly, cyber attacks
against allied governments, as well as private companies, are on the rise. In 2012, the United
States alone contended with over 10 million attacks against its military networks every day.12 More broadly, cyber attacks appear
increasingly to have become a feature of conflict ; the escalation of physical
hostilities between Russia and Ukraine has been mirrored by a commensurate
increase in online attacks.13 They have also been used by other actors beyond the region including, allegedly, the Chinese and North
Korean governments, and Israel and the US against Irans nuclear programme.14 Given the increasing propensity for government systems, processes and
a central interest
of NATO member states was to prevent and deter the use of weapons of mass
destruction. This is still on the minds of most of them. However, while historically the fear was focused on
Russias potential use of nuclear weapons against NATO members, today it is on
Iran (although given the recent concerns about Russian aggression discussed above, many countries are increasingly
worried about Russias recent moves to modernize its nuclear arsenal ).15 The
question of Irans nuclear capabilities whether they are truly civilian or military in nature has been much
debated since shortly after the overthrow of the shahs regime in 1979 . Regardless of the
nuclear programmes ultimate intent, Iran has also worked to improve its long-range ballistic missile
capabilities, and several of its Shahab missile configurations are capable of reaching
European soil.16 While there is little evidence to suggest that Iran would target Europe with a nuclear capability (if acquired), it appears that
its desire for such a capability stems from the belief that it will both enhance its
security (against regime change by the United States or Israel, for example) and support its aspiration to regional
leadership. It is clear that a nuclear Iran would have a significantly destabilizing
effect on its region. It is not in the Wests interests to have any one power dominate
the Middle East. And the likelihood of further proliferation would increase
significantly were Iran able to gain nuclear weapons capabilities . Critical challenges
information to be put online, this challenge is of growing concern to many. WMD and missile proliferation For decades,
with less consensus Insecurity of natural resources, particularly energy Instability in the Middle East, combined with Russian aggression in its
neighbourhood, have prompted many NATO member states to question the reliability of their energy supplies. This is particularly true with respect to
Europes reliance on Russian natural gas (which accounted for 34 per cent of its imports in 2012), as Moscow has been willing to use its leverage
aggressively in the energy sector to advance its own strategic objectives. Notably, Russia shut off gas supplies to Ukraine in January 2009, and June 2014
a tactic it has used with some regularity, including against Ukraine in 2006.17 While Russia cited commercial disputes in 2009, several observers at the
time argued that the shutoff was a proxy for much more fundamental issues between the two countries, in particular Ukraines attempts to forge stronger
relations with the West.18 Furthermore, according to its 2030 Energy Strategy, Russia is working actively to diversify away from its reliance upon the
European gas market for its exports. In particular, it is exploring options for building its infrastructure to support increased exports to China and the
Central Asian states.19 If successful, this would translate into significantly less Russian dependence on Europe. Although Europe is working to further
diversify its energy supplies, if it fails to do so adequately, it could in fact become more dependent upon Russia.20 Organized crime Given the
comparative porousness of Europes borders, and the relative ease of illicit transit across the Mediterranean Sea, it is hardly surprising that organized
crime is of paramount concern to a number of NATOs members. Gangs and other organized crime actors can not only corrupt legitimate state institutions
but also construct illicit trans-shipment networks for smuggling anything from drugs to weapons to people. Further, as gangs become more powerful, they
can challenge state authority, especially as addressing their activities often blurs the lines between military and police responses. The US experience with
Central America, and particularly Mexico, is a notable example of how serious organized crime can raise fundamental questions about the ability of a state
to provide security and stability to its population, and have profound consequences for its relations with its neighbours. 3. What Functions Are Needed to
Address These Diverse Challenges? Meeting the security needs laid out above will require NATO to focus on five major functions that, taken together,
provide the capabilities to address them. These are: deterrence and reassurance, crisis management, public diplomacy, resilience, and
members but also with their neighbours and partners. And finally, NATO and its member states will require much more sophisticated public diplomacy
capabilities if they are to explain to their citizens the alliances enduring relevance as well as countering the narratives of adversaries. Deterrence and
Rasmussen noted recently at Chatham House, since 2008, Russia has increased its defence spending by around 50 per cent while, on average, NATO
combinations of capabilities, that will most effectively deter aggression and develop full-spectrum deterrence. It is likely that a wide variety of tools,
military (from Special Operations Forces to nuclear, and air and sea policing) and non-military, will be necessary. NATO will also need to coordinate its
actions with non-military organizations such as the EU, the Organization for Security and Co-operation in Europe (OSCE) and the World Bank, that are
In addition to military
resources, a robust public relations strategy will be necessary to underscore the
alliances political credibility, consensus and the international legitimacy of any
actions taken. It will also have to respond to the public narrative of an adversary (something that Russia has used very effectively over the past
better positioned to leverage economic and other instruments to bring greater pressure to bear on an adversary.
decade, if not longer) and make transparent not just to elites but also to the public the intentions and objectives of the NATO response and limit any sense
of provocation. As noted, it is not just states that need deterring. So too do terrorist groups or other non-state actors that might use weapons such as
cyber attacks against NATO members. In many respects these actors are harder to deter. It is often more difficult to prove that they are the instigator of
deterring them is
likely to require fewer large-scale military capabilities but far more
targeted resources , including, as will be elaborated below, intelligence
and resilience. However, being able to identify and then act against these
groups is a necessary part of the deterrence portfolio. Crisis management Crisis management
will also remain a fundamental task for NATO. Since the end of the Cold War, it has become involved in or
led a number of such operations. All of these missions from Bosnia and
Herzegovina to Kosovo and Libya have been responses to mounting instability,
and have translated into a variety of different mission types, from peacekeeping
(Bosnia) to peace enforcement (Bosnia and Kosovo) to preventing mass atrocities
(Kosovo and, to some extent, Libya). All these missions have required rapidly
deployable expeditionary capabilities. And, with the exception of Libya, the initial intervention was followed by a
any attack, and targeting them is more challenging as they often lack a clearly defined territory. Therefore,
longer-term ground force presence. As noted above, todays crisis-management challenges are focused principally around the Middle East and North
Africa. Yet the experience in Afghanistan, as well as other operations, indicates that success on the ground requires a comprehensive effort involving the
provision of military security as well as commensurate improvements in local governance and, in some instances, economic conditions. These latter tasks
are well beyond NATOs military remit. Therefore, the organization must not only be capable of performing expeditionary military operations; it must also
be able to work closely and effectively with other partners on the ground, including host governments, other international organizations such as the United
Nations, the EU or the African Union, nongovernmental organizations and non-NATO partners, in order to manage crises effectively and prevent their
structures and processes, to allow it to respond more effectively to such events. While much progress has been made (as Secretary General Rasmussen
noted recently, it took six months for NATO to agree to respond to the events in Bosnia, but only six days to respond to those in Libya24), much more is
still needed. This is particularly true with respect to how NATOs crisismanagement operations are conducted: political-level consensus has often been
required for approval on operational or tactical-level matters, often constraining the ability of military commanders to act or react quickly to changing
developments on the ground. Resilience A necessary, yet often overlooked aspect of defence planning pertains to a states ability to withstand and
recover from a catastrophic attack or accident. By demonstrating that such an event would not critically impair its functioning or change its decisionmaking, the rationale for an attack is ultimately undermined. Building resilience is therefore a critical task for NATO as a whole, as well as for its partners;
NATO can and should assist with the latter. Building resilience within NATO Given the myriad strategic challenges that NATO members face, resilience to
threats must be built in a number of areas, including withstanding an attack on a members territorial integrity as well as the ability to recover from cyber
and terrorist attacks. It further includes managing the consequences of restricted energy supplies and economic shocks or downturns, which can often be
used as an instrument of leverage against NATO members (or partners). Increasingly, given the instability on NATOs eastern and southern flanks, member
as the United Nations, World Bank and EU as it does so. Effective consequence management does have an important military component, particularly in
the event of a catastrophic attack where military forces are often called upon to support first responders, such as fire brigades and police. But there are
also aspects of resilience for which the military must lead cross-governmental emergency responses. Building the capacity to respond to and counter a
radiological or nuclear device starts with the military. So too, resilience in the cyber world requires strong engagement between the military, civilian
government and private sector. One of the most important aspects of resilience, particularly among NATO members, is political in nature. While there is a
strong role for the military in building resilience in advance, it is often the political response to an attack, which the military can support, that matters
most. Military actions provide the reassurance to politicians that they will be able to withstand such an attack. But this requires significant political
coordination and collaboration among allies and partners before a crisis takes place. Without this, political leaders are left responding on the hoof and are
thus more uncertain at times when what is most needed is clarity. This, however, can be provided if there is a firm understanding of appropriate
procedures in advance. NATO should thus consider testing more routinely the North Atlantic Councils ability to respond to a crisis (perhaps in coordination
with others such as the EU), particularly through scenario-based exercises on matters that are likely to require a strong military component, such as a
radiological or nuclear attack. Building resilience with partners and neighbours As the events in Ukraine have shown, NATO also needs to strengthen
further the resilience of its immediate neighbours and other friends and partners, not least with respect to their own military and security capabilities.
NATO has already done much work in this area: over the past two decades, it has built working relationships with several countries, particularly former
Soviet states but also Iraq and Afghanistan, in order to build their defence institutions and underscore key principles, such as civilian authority over
military instruments. These activities are broadly labelled security sector reform. In so doing, NATO members have also established valuable military-tomilitary connections and partnerships. Instability along Europes periphery is due in part to weakening state institutions. As government entities become
less capable of managing internal security, non-state actors including terrorist and insurgent groups are finding ways to fill the vacuum. Thus it is
important for NATO to invest in enhancing and supporting the security establishments of its neighbours. Recent events in Iraq, where the Iraqi Security
Forces collapsed in the face of a smaller group of ISIS/L fighters, demonstrate not only how difficult it can be to build and sustain security institutions
effectively, but also the importance NATO must give to such missions. Failure to build effective institutions can have significant strategic repercussions for
NATO and its member states. Building the capabilities of NATOs partners and neighbours thus has the benefit of minimizing the chance that members
might be called on to act outside NATOs geographic area. It also ensures that NATO can augment its capabilities through good relationships with militaries
beyond its membership wherever this is needed or useful. Furthermore, as threats and challenges are not necessarily constrained by borders, the
resilience of NATOs partners has significant repercussions for that of member states. Building this resilience in traditional and non-traditional areas is thus
tendency to predict and prepare for the next attack on the basis of the manner in which the last crisis unfolded is strong. It is vital that NATO learns from,
and builds on, lessons from Afghanistan, Libya and Ukraine. But the alliance also needs to draw from much of the longer-term thinking that it and its
member states have been doing to focus on the less immediate but still tangible threats ahead. This requires better intelligence and early-warning
capabilities. Many NATO member states, including the United States, have recognized the decline of their intelligence on, and understanding of, Russia
Russia or prevented the fait accompli in Crimea and protected the eastern part of
Ukraine from what might now develop into a civil war . Equally, improving the understanding of events taking
place in the Middle East and North Africa (and working with other countries in the region and further afield to do this) in order to prevent conflicts from
breaking out or to mitigate them will be increasingly important. Another lesson learned from the recent events in Ukraine is that while the threat there
was not on the screens of NATO or of many Western European countries, those members that are geographically closer to Russia were very aware of it and
bearing in mind, for example, that a senior Estonian defence official was discovered to be a Russian mole (four Russian moles have been found in Estonias
Putin, at a youth forum north of Moscow last week, reminded the world that "Russia is
one of the most powerful nuclear nations. This is a reality, not just words ." (Indeed it is.)
Fifteen days earlier, on Aug. 14, at a conference in Yalta, the Russian president had told the
assembled factions of the State Duma that he soon planned to "surprise the West with our
new developments in ofensive nuclear weapons about which we do not talk
yet." This came as Russian strategic nuclear bombers and fighter jets have been accused
of violating the airspace of the United States and Western European countries with
mounting frequency, while under the surface of the worlds seas Russian and U.S. nuclear
submarines have been involved in confrontations recalling the worst days of the
Cold War. As NATO leaders convene for their summit in Wales, Russia just announced that its strategic
nuclear forces will hold exercises of unprecedented dimensions this month. And the
President Vladimir
Kremlin, for its part, just declared that it will amend its military doctrine to reflect Russias growing tensions with NATO. What this
means exactly remains unclear, but in view of the rising tensions with the Western alliance, it cannot be good. Russia
has
Piontkovsky
published a troubling account of what he believes Putin might do to win the current
standoff with the West and, in one blow, destroy NATO as an organization and
finish off whats left of Americas credibility as the worlds guardian of peace. In view of the Russian
Center in Moscow and a political commentator for the BBC World Service, believes he might. In August,
leaders recent remarks and provocative actions, the scenario Piontkovsky lays out becomes terrifyingly relevant. Worse, if the
into retirement following his failed, and nearly catastrophic, 1962 attempt to secure communism in Cuba by stationing nuclear
World, now risen from its knees, against the rotting and decadent Anglo-Saxon World." (World War III, in his view, has already
happened: the Cold War.) This World War IV would be a conventional war with NATO and it would
not go well. Given NATOs superior armed forces and Russias comparative economic, scientific, and technological weaknesses, a
conventional campaign would, Piontkovsky concludes, end with Russias defeat. That leaves Putin only one option: a nuclear attack.
Not a massive launch of intercontinental ballistic missiles at the United States or Western Europe, which would bring about a suicidal
atomic holocaust, but a small, tactical strike or two against a NATO member that few in the West would be willing to die to protect.
Piontkovsky surmises that, in such a conflict, the nuclear-armed country with the "superior political will" to alter the geopolitical
"status quo" and most importantly with the "greater indifference to values concerning human lives" would prevail. Any guesses
summit in Wales, this is just what Obama promised. "The defense of Tallinn and Riga and Vilnius is just as important as the defense
as he contemplates unleashing a planetary holocaust over a "damned little city no one has even heard of" while the American public
cries out, "We dont want to die for fucking Narva, Mr. President!" Piontkovsky also cites a German public opinion poll asking what
Berlin should do if Estonia enters an armed conflict with Russia: 70 percent would want their country to remain neutral.
Piontkovsky then tries to envision the situation in which Putin would find himself if
NATO intervened to drive his little green men from Narva. Would Putin commit
suicide by letting his missiles fly against the United States? No. Rather, he would
respond with a limited nuclear strike against a couple of European capitals not
London or Paris, but smaller ones, presumably in Eastern European countries that
have only recently joined NATO. Warsaw, against which Russia has already conducted a drill simulating a Russian
nuclear attack, first comes to mind. Or, say, Vilnius, Lithuanias capital. The point is, Putin would bet on decisionmakers in Washington, Berlin, London, and Paris not retaliating with nuclear weapons against
Russia if it had "only" hit a city or two most Westerners have barely heard of and
certainly do not want to die for. The outcome of Putins putative gambit is that NATO
efectively capitulates. The alliances credibility as guarantor of security
for its member states would be utterly destroyed, as would U.S.
hegemony, which largely rests on the threat of using force. Putin would then be free to do what
he wanted in Ukraine and anywhere else he perceived Russias interests to be threatened.
when great powers accept or reject the actions of another power, or by those upon whom power is exercised.
Reasons to confer legitimacy have varied throughout history. Tradition, blood, and claims of
divine right have all provided reasons to confer legitimacy, although in contemporary politics conformity with
international norms and law is more influential in determining which actors and actions will be accepted as
Recognizing the legitimacy of power does not mean these others necessarily
like the powerful or their policies, but it implies at least tacit acceptance of the
social structure in which power is exercised. One may not like the inequalities of global capitalism
legitimate. 9
but still believe that markets are the only realistic or likely way to organize successful economic growth. One may
not like the P5 vetoes of the Security Council but still understand that the United Nations cannot exist without this
concession to power asymmetries. We can see the importance of legitimacy by thinking about its absence.
legitimating their power and policies . In part this invocation of values may be strategic;
acceptance by or overt support from others makes exercise of power by the unipole cheaper
and more effective. Smart leaders know how to sell their policies. Wrapping policies in
shared values or interests smoothes the path to policy success by reassuring skeptics.11 Rhetoric about shared
interests in prosperity and economic growth accompanies efforts to push free trade deals on unwilling partners
2003 Iraq war in this issue of World Politics, Jack Snyder, Robert Shapiro, and Yaeli Bloch-Elkon provide an example
of unipolar attempts to create legitimacy through strategic use of rhetoric. They show how evocative and evasive
rhetoric allowed proponents of the war to imply links between the 9/11 attacks, weapons of mass destruction, and
Saddam Husseins regime. Potentially unpopular or controversial policies were rationalized by situating them in a
larger strategic vision built on more widely held values, as when the authors of the 2002 National Security
Strategy memorandum wove together the global war on terror, the promotion of American democratic values
abroad, and the struggle against authoritarian regimes to create a justification for preventive war.12 Indeed, as
Ronald Krebs and Patrick Jackson argue, rhetorical sales pitches of this kind can be highly coercive. Examining
the same case (the selling of the Iraq war), Krebs and Jennifer Lobasz show how the administrations war-onterror discourse, which cast the U.S. as a blameless victim (attacked for who we are rather than anything we
did), was designed in such a way as to leave opponents with very few arguments they could use to rally effective
Decision makers
and publics in the unipole actually hold these values and believe their own rhetoric
to some significant degree. Unipole states, like all states, are social creatures. They are composed of
opposition in Congress.13 Usually this articulation of values is not simply a strategic ploy.
domestic societies that cohere around some set of national beliefs. Their leaders are products of those societies
and often share those beliefs. Even where leaders may be skeptical, they likely became leaders by virtue of their
abilities to rally publics around shared goals and to construct foreign and domestic policies that reflect domestic
values. Even authoritarian (and certainly totalitarian) regimes articulate shared goals and function only because
of the web of social ties that knit people together. Certainly all recent and contemporary strong states that could
be candidates for unipolesthe U.S., China, Russia, Germany, and Britaindo.14 Thus unipole states, like all
states, find naked self-aggrandizement or even the prescriptions of Machiavellian virt difficult to pursue.15
Even
national interest as most people and states conceive of it involves some broader
vision of social good beyond mere self-aggrandizement. Americans like to see democracy
Unipoles and the people who lead them pursue a variety of goals derived from many different values.
spread around the world in part for instrumental reasonsthey believe a world of democracies is a safer, more
prosperous world for Americansand also for normative onesthey believe in the virtues of democracy for all.
Likewise, Americans like to see markets open in part for instrumental reasonsthey believe a world of markets
will make Americans richerand also for normative onesthey believe that markets are the ticket out of poverty.
Much of unipolar politics is thus likely to revolve around the degree to which policies promoting the unipoles goals
are accepted or resisted by others. Other states and foreign publics may need to be persuaded, but often
influential domestic constituencies must also be brought on board. Channels for such persuasion are many and
varied, as is evident from past U.S. diplomatic efforts to sell its policies under bipolarity. The shift from laissezfaire to what John Ruggie terms the embedded liberal compromise as the basis for the U.S.-led economic order
after WWII required extensive diplomatic effort to persuade other states and New Yorks financial elite to go along.
The tools of influence used to accomplish this were sometimes material but also intellectual and ideological. It
the shared social purposes of these economic arrangements that gave them
legitimacy among both state and societal actors cross-nationally.16 A unipoles policies
are thus circumscribed on two fronts. The policies must reflect values held at home, making
them legitimate domestically. At the same time, in order to induce acquiescence or
support from abroad, they must appeal to the leaders and publics of other states.
was
Constructing policies across these two spheresdomestic and internationalmay be more or less difficult,
decreased cooperation and increased resistance internationally. Creating legitimacy for its policies is thus essential
for the unipole but it is also difficult, dangerous, and prone to unforeseen consequences. Domestically, the need
to cement winning coalitions in place has polarized U.S. politics, creating incentives to exploit wedge issues and
ideological narratives. As Snyder, Shapiro, and Bloch-Elkon describe, neoconservatives, particularly after 9/11,
used these tools to great effect to generate support for the Bush administrations policies. Such ideologicallydriven persuasion efforts entail risks, however. Constructing coherent ideological narratives often involves
sidelining inconvenient facts, what Snyder and his coauthors call fact bulldozing. This is more than just
highlighting some facts at the expense of others. It may (or may not) begin with that aim, but it can also involve
changing the facts people believe to be true, as when large numbers of people came to believe that weapons of
mass destruction were indeed found in Iraq. Thus, to the degree that these persuasion efforts are successful, if
their ideology does not allow them to entertain contrary facts, policymakers and publics may make decisions
based on bad information. This kind of self-delusion would seem unlikely to result in smart policy. To the extent
that ideological narratives become entrenched, these delusions may extend to future generations of policymakers
and make them victims of blowback. Even if successors come to terms with the facts, they may be entrapped by
the powerful legitimating rhetoric constructed by their predecessors.17
1AC Plan
The United States federal government should require de novo
review of FISC domestic surveillance determinations that
involve significant construction of any statue or judicial
precedent by the FISCR including:
- a rebuttable presumption in favor of curtailing
surveillance after a statutory 180 day review period, and
- a requirement that FISCR publicly releases the legal
justification for any determination that contravenes a
person's expectation of privacy
Contention 3 Solvency
Plans process of reform is key it rebalances separation of
powers and efectively constrains surveillance
McNeal 2/16 (Gregory McNeal PhD, professor of law at Pepperdine University
School of Law, 2/16/15, REFORMING THE FOREIGN INTELLIGENCE SURVEILLANCE
COURTS INTERPRETIVE SECRECY PROBLEM, http://www.harvard-jlpp.com/wpcontent/uploads/2015/02/McNeal_Final.pdf)
The government cannot be faulted for
following the system that was put into place by Congress, but the system
is nevertheless faulty. Congress created a structure whereby the
government can argue in an ex parte proceeding for an expansive interpretation of a
IV. PROBLEMS WITH THE FISCS STATUTORY ANALYSIS
statute, the initial application will only be reviewed by one judge, and that judge can issue an order in secret,
judgments and opinions. The PCLOBs analysis and critique of the governments relevance arguments
relevance, the PCLOB wrote: First, had Congress wished to inscribe a standard of relevance in Section 215 even
less exacting than those developed in analogous legal contexts, it could have done so. But contemporary
statements from legislators, highlighted by the government itself, evince an intent to match Section 215 to the
standards used in those contexts. The reference to grand jury subpoenas added to the statute in 2006 was meant
to reassure those with concerns about the scope of Section 215 that the statute was consistent with practice in
other fields.55 This statement by the PCLOB is not remarkable on its face. In fact it is the type of analysis one
Thus it is
remarkable that this argument did not occur to the FISC. But, when
presented with only one side of an argument, and not fearing appellate
review , one can understand how the FISC got their analysis wrong .
would expect an opposing party to raise in court, or a judge to raise on appellate review.
Furthermore, the PCLOB looked at the statutory reasonable grounds to believe standard, again engaging in basic statutory analysis
of the type that an opposing party or appellate court would engage in. The PCLOB stated: By demanding only reasonable grounds
to believe, rather than certainty, that items sought are relevant to an investigation, the statute ensures that Section 215 is
consistent with the analogous civil and criminal contextswhere the requester need not show that every item sought actually is
relevant in an evidentiary sense, but merely that the items reasonably may be. The statutes reference to a reasonable belief about
the items requested shows that it contemplates the same scenario faced in the subpoena and discovery arenas: the government
seeks a category of items that it reasonably suspects, but cannot be sure, includes material pertinent to its investigation. That
scenario, and the legal standards that govern it, still require some factual correlation between the category of documents defined by
the government and the circumstances of the investigation for which they are sought.56 Again, the PCLOB engaged in statutory
analysis, not complex legal reasoning. In so doing, it found that not only was the governments definition of relevance too expansive,
but it also found that compelling providers to continuously hand over records to the government was also incompatible with the
statutory text. While the PCLOB recognized the compelling nature of national security threats, such considerations in the view of the
PCLOB did not call for the wholesale elimination of rele- vance as a meaningful check on the governments acquisition of items.57
In other words, the statutory protections Congress created (specifically relevance) were important to the statutory scheme Congress
contemplated and that the public expects. The PCLOB made reference to the statutory text and the changes Congress made to
that text, noting in a footnote that: Congress amended Section 215 to clarify that there must be reasonable grounds to believe that
records obtained under the statute are relevant to an investigation, not merely sought for an investigation; it further required a
statement of facts supporting that belief . . . . It inserted the concept of relevance into the statute not to broaden it, but to
No
matter how critical national security investigations are, therefore, some
reassure those with concerns that the statute was tethered to concepts well known in other areas.58 The PCLOB continued:
before the court. Another solution that can serve a similar function would be to require appellate review and
presumptive transparency on all significant FISC opinions; presumptive appellate review is the subject of the next
V. INTERPRETIVE SECRECY AND THE NEED FOR TRANSPARENCY AND REVIEWABILITY Interpretive
secrecy is a significant problem in terms of democratic accountability . As
Senator Ron Wyden once said, secret operations and secret law are very diferent
things . . . . Secret law is wrong. Our laws are supposed to be public.60 That quote draws into focus the dividing
section.
line for determining the appropriateness of secrecy on the FISC. While there are good arguments for keeping
know that the law that is on the books differs substantially from the law that is actually being used to justify a
surveillance program. If the nation is to have democratic accountability, it requires appellate review of judgments
and orders that do not comport with the law as it is written, and transparency regarding those judgments or orders.
Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).62 That law required the Attorney General to
provide a summary of significant legal interpretations of FISA involving matters before the FISC or the Court of
Review.63 The summary must include interpretations presented in applications or pleadings filed with the Foreign
Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review by the Department of
Justice.64 The law requires disclosure of opinions or orders if they include significant construction or
interpretation of FISA.65
A de novo
standard of review is appropriate for surveillance activities as it allows
multijudge panels that permit reflective dialogue and collective judgment with regard
to legal issues.68 As the Supreme Court has explained, [i]ndependent appellate review of
legal issues best serves the dual goals of doctrinal coherence and
economy of judicial administration, and while the Supreme Court was not
speaking of surveillance, its admonitions regarding appellate review are
perhaps stronger in the context of national security.69 However, national security
Those courts review cases for legal error, factual sufficiency and sentence appropriateness.
surveillance oftentimes requires rapid action on the part of the courts; thus while this essay argues that FISC
opinions should be presumptively reviewed, the order or opinion issued by the FISC should be immediately
of action.71 Again, an analogy to administrative law practice can help to make clear how the reviewability here
two
conditions must be satisfied for agency action to be final: First, the
action must mark the consummation of the agencys decisionmaking
processit must not be of a merely tentative or interlocutory nature. And
second, the action must be one by which rights or obligations have been
determined, or from which legal consequences will flow .72 This essays
proposal of automatic appellate review upon issuing of an opinion or order
satisfies the finality standard of Bennett in that once the FISC authorizes a
surveillance activity, the agency is free to act on the opinion or order, and
legal consequences clearly flow from actions on that opinion or order. The
would function. Consider what the Supreme Court held in Bennett v. Spear: As a general matter,
only issue raised by this essays proposed process is that the opinion or order has the effects of a final order, but is
not in fact finalized until the FISCR completes its review. VII. PRESUMPTIVE PUBLICATION OF OPINIONS With regard
and non-publication decisions are, like the significant legal interpretations discussed above, subject to automatic
published, subject to appropriate redactions, the FISCR is now placed in the position of seeking ways to publish
opinions, making only those redactions that are necessary to protect national security. This is admittedly a more
difficult task for the FISCR than the task of reviewing orders and opinions. Consider what David Kris and J. Douglas
Some of
the most significant legal issues under FISA arise at the intersection of
(old) law and (new) technology , and FISA applications must discuss such
issues if the Intelligence Community develops a new classified source or
method of acquiring information that is subject to FISA . To take a fanciful case for
Wilson have written with regard to disclosure of FISA related information to the Judiciary Committees:
purposes of illustration, imagine that the National Security Agency develops a new device that can read minds from
a distance, like a kind of mental boom microphone. Information concerning this device would surely be classified
summary of that FISA application, or of the interpretation of FISA from within it, would be hard to create without
revealing the existence of the device. Such a revelation, of course, could compromise the use of the device, as
spies, terrorists, and ordinary persons who value their privacy would immediately don tin-foil hats as a
countermeasure.73
a 99.97% rate of approval. This win rate, enviable even to the Harlem
Globetrotters, is almost always interpreted as evidence that that the court is failing
to do its job. In the media, in legal scholarship, and in Congress, there is a
widespread sense that a court in which the executive always wins can be nothing more than a
rubber stamp.[2] That perception is now helping fuel legislative reforms . Both the
House and Senate are considering bills to reform the FISC .[3] In January 2014, President
Obama added wind to their sails by endorsing a proposal to let outside advocates
appear before the court.[4] And, in a nod to the fact that FISC skepticism runs deep,
the President expressed openness to working with Congress on a broader set of
changes at the court.
rest:
backlash was aided by the growth of interconnected communication networks run by companies that have felt
the
government must petition a special federal court for permission to search
them. Even with the congressional action, the government will continue to maintain
robust surveillance power, an authority highlighted by Senator Rand Paul, Republican of
Kentucky, whose opposition to the phone records program forced it to be shut
down at 12:01 a.m. Monday. Mr. Paul and other critics of the legislation
said the governments reach into individuals lives remained too intrusive.
manhandled by government prying. The storage of those records now shifts to the phone companies, and
The bill cleared the Senate 67 to 32 after a fierce floor fight; at least four of the opponents voted no because they
lapse in important national security authorities, my administration will work expeditiously to ensure our national
security professionals again have the full set of vital tools they need to continue protecting the country, Mr. Obama
said. Just as important, enactment of this legislation will strengthen civil liberty safeguards and provide greater
public confidence in these programs. The Senates longest-serving member, Patrick J. Leahy, the seven-term
Democrats and a new generation of Republicans in the House and the Senate who were elected a decade after the
Lankford, Republican of Oklahoma, a freshman who like several other younger Republicans voted against the senior
even scores of
senators who loathed the actions of Mr. Snowden voted for the legislation .
The legislations goals are twofold: to rein in aspects of the governments
data collection authority and to crack open the workings of the secret
national security court that oversees it. After six months, the phone companies,
not the N.S.A., will hold the bulk phone records logs of calls placed from one number to
another, and the time and the duration of those contacts , but not the content of what was said. A
new kind of court order will permit the government to swiftly analyze them.
mood if they think Americans are concerned about the privacy implications. But
Photo Senators Patrick J. Leahy and Mike Lee conferring outside the Senate chamber while amendments to the
surveillance bill were being wrangled and rejected. Credit Stephen Crowley/The New York Times The Foreign
Intelligence Surveillance Court, for the first time, will be required to declassify some of its most significant decisions,
The battle
over the legislation, the USA Freedom Act, made for unusual alliances. Mr.
Boehner joined forces with Mr. Obama, the bipartisan leadership of the
House Judiciary Committee, and a bipartisan coalition of senators against
Mr. McConnell and his Intelligence Committee chairman, Senator Richard
Burr, Republican of North Carolina. Mr. McConnell made a series of
miscalculations, stretching back to last year, when he filibustered a similar
surveillance overhaul measure. Last month, after Republicans blocked consideration of the
and outside voices will be allowed to argue for privacy rights before the court in certain cases.
Freedom Act, Mr. McConnell sent the Senate on a weeklong Memorial Day recess, pushing Washington up against a
When Mr. McConnell then argued in favor of amending the Freedom Act, senators in both parties even some who
Mr.
McConnell dragged senators back for an unusual Sunday session, only to
end up with the very bill he tried to kill. This should have been planned on over a week
supported him said any changes would only extend the surveillance blackout and risk the countrys security.
ago, said Senator Bill Nelson, Democrat of Florida, who had backed Mr. McConnells efforts but found his timing
untenable. In a heated meeting of House Republicans on Tuesday morning, one of the architects of the post-Sept.
11 USA Patriot Act, Representative Jim Sensenbrenner of Wisconsin, angrily told Senator John Barrasso of Wyoming,
an emissary from the Senate leadership, to deliver a message to his colleagues: Any change to the House bill would
be flatly rejected. About a dozen Republican senators most of them recent House members took the warning
to heart, joined Democrats and voted down all of Mr. McConnells proposed changes. As the debate over the bulk
phone records program unfolded, supporters and opponents both trotted out worst case scenarios to make their
argument. Opponents warned that the government could root through the records to learn who was calling
psychiatrists and political groups, while supporters said ending it would lead to terrorist attacks on the United
States. Neither of those warnings was supported by how the program had performed in its nearly 14 years of
existence. Repeated studies found no evidence of intentional abuse for personal or political gain, but also found no
evidence that it had ever thwarted a terrorist attack. Still, the debaters on each side also made other points.
Opponents said that the mere collection of Americans calling records by the government was a privacy violation
and that it risked being abused in the future. Supporters said it had helped flesh out investigations in other ways,
and could still prove to be crucial in the future. Senator Mike Lee, a Utah Republican, and Senator Leahy made it
clear after passage that curtailing the phone sweeps might be only the beginning. The two are collaborating on
legislation to undo a provision in the Electronic Communications Privacy Act of 1986 that allows the government to
read the contents of email over six months old. House members and senators from both parties are already eyeing
a section of the Foreign Intelligence Surveillance Act that they say has also been abused by the government. But
opponents of the law said they imagined further fights going forward for
their positions, too. Senator Susan Collins, Republican of Maine, said she
and others would continue to seek reforms and oversight . Its not the
end, she said.
Legislation
Legislation Inevitable
Litigation over surveillance is high now in all levels of the
federal courts huge list of cases are pending acceptance.
Vladeck 15 Stephen I. Vladeck, Professor of Law and Associate Dean for
Scholarship, American University, Washington College of Law, co-authored an
amicus brief on behalf of the Petitioner in In re EPIC, 2015 (THE CASE FOR A FISA
SPECIAL ADVOCATE, Utah Bar, January 5th, Available Online at:
http://litigation.utahbar.org/assets/materials/2015FedSymposium/3b_The%20Case
%20for%20a%20FISA%20special%20advocate.pdf, Accessed: 7-5-2015)
the Snowden disclosures also precipitated a wave of litigation , primarily
focused on the telephone metadata program under section 215. Although the
Supreme Court turned away an early effort by the Electronic Privacy Information
Center to seek direct review of the underlying FISC production orders, three
different district courts have allowed private plaintiffs to challenge the
constitutionality of the metadata program, with the first two dividing as to the merits of the
plaintiffs Fourth Amendment claims in decisions handed down 11 days apart in December 2013. Appeals in all
three of those cases are now pending in the Second, Ninth, and D.C. Circuits, respectively.
Separate statutory and constitutional challenges to various of the governments
foreign intelligence surveillance activities have also begun to surface in criminal cases,
Unsurprisingly,
especially in light of the Solicitor Generals admission that the Justice Department had not always provided the
notice to criminal defendants required by Congress in cases in which evidence derived from FISA was utilized.
capabilities of these surveillance agencies to collect, store, and seek out information or identify
those involved with the terrorist groups or those who had a substantial part in planning or executing the attacks.85 However,
the impact of these newly granted powers has precipitated an extreme
backlash from concerned citizens who feel that their liberties had been
quickly ignored or abandoned. The conflict of these previously secret
programs is deeply rooted in a catch-22 of how to ensure fundamental
rights of privacy while maintaining national security. What is required to
maintain the protection of privacy and the civil liberties of U.S. citizens is
an open forum of debate and a clearly established legal framework for
plaintifs to challenge the substantive processes of NSA surveillance
programs collection of information.88 Public debate is necessary to uphold the nature of why these
programs were created in the first place. As Stephen Baker, former general counsel at the NSA, states: Doing something through
legislation requires that you have an open debate about exactly what limits you're imposing. But if you're going to have an open
debate about what limits you're imposing, you're going to have to talk a lot about your capabilities. And the difficulty we have had
engaging in intelligence under law has been that the debate has gradually revealed more and more of sources and methods, to the
point that it's not clear that we have intelligence under law because we can't gather that much intelligence due to the loss of our
sources and methods ... you have to ask yourself, if I were a target of intelligence, what could I learn from the disclosures to this
point? And almost every one of these disclosures allows you to avoid the intelligence-gathering if you're a target.89 Therefore,
without a public debate or at least discussion of the policies of the various organizations conducting surveillance, the social and
In the months
following Clapper, there has been a deluge of leaked court documents,
memos, NSA documents, and other classified information that shows the
extent of NSA surveillance programs under the FAA.90 The leak of PowerPoint slides,
political backlash from these programs will undermine the reason for the programs' creation.
detailing how the NSA uses its program PRISM to collect and store communications, by former NSA contractor Edward Snowden, has
shown that the threat of U.S. persons being swept up in the broad drag net surveillance conducted is a highly likely scenario.9'
These leaks and the subsequent backlash since The Guardian published the PowerPoint slides
have shown enough information for previous plaintifs to reassert their
claims of injury and rechallenge the constitutionality of the FAA.92 The leaks by
Snowden will not be directly addressed in this Comment, but they are important to understand the evolution of the discussion and
the increase in public interest.9
Lawsuits Now
Governmental lawsuits escalating now due to increased
transparency.
Goitein and Patel 15 Elizabeth Goitein, co-directs the Brennan Center for
Justices Liberty and National Security Program. Before coming to the Brennan
Center, Ms. Goitein served as counsel to Sen. Russell Feingold, Chairman of the
Constitution Subcommittee of the Senate Judiciary Committee. and Faiza Patel,
serves as co-director of the Brennan Center for Justices Liberty and National
Security Program. She has testified before Congress opposing the dragnet
surveillance of Muslims, organized advocacy efforts against state laws designed to
incite fear of Islam, and developed legislation creating an independent Inspector
General for the NYPD. Before joining the Brennan Center, Ms. Patel worked as a
senior policy officer at the Organization for the Prohibition of Chemical Weapons,
2015 (What went wrong with the FISA Court, Brennan Center for Justice, Available
Online at:
http://litigation.utahbar.org/assets/materials/2015FedSymposium/3c_What_Went_
%20Wrong_With_The_FISA_Court.pdf, Accessed: 7-11-2015)
The special procedures governing a defendants access to FISA application
materials, under which a defendant is almost never given any hint of their contents,
should be jettisoned. Instead, the process under the Classified Information
Procedures Act (CIPA)280 which has been used successfully in the most sensitive
national security and espionage cases, and which allows the government to use
summaries or admissions of fact in place of classified information should
apply.281 WhAT WENT WRONG WITH THE FISA COURT | 47 Finally, the
governments attempt to shut down every civil lawsuit that has been
brought to challenge the constitutionality of foreign intelligence
surveillance must end. Even where plaintifs have had reasonable grounds
to fear that they were being surveilled282 indeed, even where they have
had irrefutable proof283 the government has tried to have the lawsuit
dismissed, arguing that the plaintiffs lacked evidence or that the evidence
contained state secrets. Today, after Snowdens disclosures, many secret
programs are public knowledge and dismissing plaintifs fears of
surveillance as speculative is increasingly disingenuous. Moreover,
warrantless surveillance is no longer a secret, it is the law and, given the
broad scope of collection, acknowledging that a plaintif has standing to
challenge FISA surveillance does not reveal the identity of any
investigations target. If ever the governments jurisdictional and national
security defenses had merit, they no longer do.
a 99.97% rate of approval. This win rate, enviable even to the Harlem
Globetrotters, is almost always interpreted as evidence that that the court is failing
to do its job. In the media, in legal scholarship, and in Congress, there is a
widespread sense that a court in which the executive always wins can be nothing more than a
rubber stamp.[2] That perception is now helping fuel legislative reforms . Both the
House and Senate are considering bills to reform the FISC .[3] In January 2014, President
Obama added wind to their sails by endorsing a proposal to let outside advocates
appear before the court.[4] And, in a nod to the fact that FISC skepticism runs deep,
the President expressed openness to working with Congress on a broader set of
changes at the court.
rest:
important as we head to 2017 and the debate over reauthorization of the FISA
Amendments Act. It now seems plain the USA Freedom Act will pass: the Senate voted to move forward on
the bill by a vote of 7717, opposed only by the strange bedfellows coalition of Rand Paul and 16 of the Senates
most hardcore NSA cheerleaders. McConnell has proposed an array of amendments weakening or diluting it, though
perhaps less because he think theyll pass than because doing so fills the tree for amendments and prevents folks
like Ron Wyden or Rand Paul from offering amendments that would strengthen the bill. Among these are a data
retention notice mandate (which would compel phone companies to notify the government in advance if they plan
to retain call records for less than 18 months, a way of encouraging without strictly requiring retention) and
an
Foreign Intelligence Surveillance Court ruled late Monday that the National
Security Agency may temporarily resume its once-secret program that
systematically collects records of Americans domestic phone calls in bulk. But the
American Civil Liberties Union said Tuesday that it would ask the United States Court of Appeals for the Second
Circuit, which had ruled that the surveillance program was illegal, to issue an injunction to halt the program, setting
up a potential conflict between the two courts. The program lapsed on June 1, when a law on which it was based,
Section 215 of the USA Patriot Act, expired. Congress revived that provision on June 2 with a bill called the USA
Freedom Act, which said the provision could not be used for bulk collection after six months. The six-month period
was intended to give intelligence agencies time to move to a new system in which the phone records which
include information like phone numbers and the duration of calls but not the contents of conversations would
stay in the hands of phone companies. Under those rules, the agency would still be able to gain access to the
records to analyze links between callers and suspected terrorists. But, complicating matters, in May the Court of
Appeals for the Second Circuit, in New York, ruled in a lawsuit brought by the A.C.L.U. that Section 215 of the Patriot
Freedom Act on June 2, his administration applied to restart the program for six months. But a conservative and
libertarian advocacy group, FreedomWorks, filed a motion in the surveillance court saying it had no legal authority
to permit the program to resume, even for the interim period. In a 26-page opinion made public on Tuesday, Judge
Michael W. Mosman of the surveillance court rejected the challenge by FreedomWorks, which was represented by a
former Virginia attorney general, Ken Cuccinelli, a Republican. And Judge Mosman said the Second Circuit was
Second Circuit rulings are not binding on the surveillance court, he wrote,
and this court respectfully disagrees with that courts analysis, especially in view of
the intervening enactment of the USA Freedom Act. When the Second Circuit
issued its ruling that the program was illegal, it did not issue any injunction ordering
the program halted, saying it would be prudent to see what Congress did as Section
215 neared its June 1 expiration. Jameel Jaffer, an A.C.L.U. lawyer, said on Tuesday that the group would
wrong, too.
now ask for one. Neither the statute nor the Constitution permits the government to subject millions of innocent
people to this kind of intrusive surveillance, Mr. Jaffer said. We intend to ask the court to prohibit the surveillance
and to order the N.S.A. to purge the records its already collected. The bulk phone records program traces back to
October 2001, when the Bush administration secretly authorized the N.S.A. to collect records of Americans
domestic phone calls in bulk as part of a broader set of post-Sept. 11 counterterrorism efforts. The program began
on the basis of presidential power alone. In 2006, the Bush administration persuaded the surveillance court to begin
blessing it under of Section 215 of the Patriot Act, which says the government may collect records that are
relevant to a national security investigation. The program was declassified in June 2013 after its existence was
disclosed by the former intelligence contractor Edward J. Snowden. It remains unclear whether the Second Circuit
still considers the surveillance program to be illegal during this six-month transition period. The basis for its ruling in
May was that Congress had never intended for Section 215 to authorize bulk collection. In his ruling, Judge Mosman
said that because Congress knew how the surveillance court was interpreting Section 215 when it passed the
Freedom Act, lawmakers implicitly authorized bulk collection to resume for the transition period. Congress
The Freedom Act also contains a provision saying that whenever the
surveillance court addresses a novel and significant legal issue, it must either
appoint an outside friend of the court who can offer arguments contrary to what
the government is saying, or explain why appointing one is not appropriate. The first
Columbia.
test of that reform came last month when another judge on the court, F. Dennis Saylor IV, addressed a separate
issue raised by the passage of the Freedom Act. Judge Saylor acknowledged that it was novel and significant, but
declined to appoint an outside advocate, saying the answer to the legal question was sufficiently clear to him
without hearing from one.
further change the governments surveillance programs. The Senate this week passed the USA Freedom Act, which aims to end the
NSAs mass collection of domestic phone records, and President Barack Obama signed the bill hours later. After that action, expect
Republican leaders in both the Senate and the House of Representatives to resist further calls for surveillance reform. That
resistance is at odds with many rank-and-file lawmakers, including many House Republicans, who want to further limit NSA
public will not accept that. Other activists are less optimistic about more congressional action. It will a long slog getting more
restraints, J. Kirk Wiebe, a former NSA analyst and whistleblower said by email. The length of that journey will depend on public
changes. Whats in the USA Freedom Act? Some critics have blasted the USA Freedom Act as fake reform, while supporters have
called it the biggest overhaul of U.S. surveillance program in decades. Many civil liberties and privacy groups have come down in the
12 years to be released to the public. The new law limits bulk collection of U.S. telephone and business records by requiring the FBI,
the agency that applies for data collection, to use a specific selection term when asking the surveillance court to authorize records
searches. The law prohibits the FBI and NSA from using a broad geographic region, including a city, county, state or zip code, as a
The
surveillance court could allow, for example, AT&T as a specific search
term and give the NSA the authority to collect all of the carriers customer
records. Such a ruling from FISC would seem to run counter to congressional intent, but this is the same
court that defined all U.S. phone records as relevant to a
counterterrorism investigation under the old version of the Patriot Acts Section 215. The USA
search term, but it doesnt otherwise define specific search term. Thats a problem, according to critics.
Freedom Act also does nothing to limit the NSAs surveillance of overseas
Internet traffic, including the content of emails and IP voice calls. Significantly limiting that NSA program, called Prism in
2013 Snowden leaks, will be a difficult task in Congress, with many lawmakers unconcerned about the privacy rights of people who
covered in the USA Freedom Act. The House Judiciary Committee will continue its oversight of U.S. surveillance programs, and the
committee will address FISA before its provisions expire, an aide to the committee said.
took more tangible steps against surveillance, increasing the default security and encryption provided to users on their platforms
records by the NSA, replacing it with a program that requires the government to make specific requests to
the phone companies. After Snowdens leak of NSA documents revealed it, the program was repeatedly
found to violate the law, first by legal experts and blue-ribbon panels, and just last month by a federal
appellate court. Its rejection by Congress is hardly a radical act it simply
reasserts the meaning of the word relevant (the language of the statute) as distinct from
everything (how the government interpreted it). At the same time, the Freedom Act explicitly
reauthorizes or, rather, reinstates, since they technically expired at midnight May 31 other
programs involving the collection of business records that the Bush and Obama administrations
claimed were authorized by Section 215 of the Patriot Act. In fact, even the bulk collection of phone records, which
was abruptly wound down last week in anticipation of a possible expiration, may wind up again, because the
communications. It wont in any way limit the agencys mass surveillance of non-American communications. As I
wrote after Sunday nights legislative action, which paved the way for Tuesdays vote, this marks the end of a vast
the
Freedom Act represents the single greatest surveillance reform package
since the 1970s. But thats a low bar. After 14 years of rubber-stamping executive-branch
requests for pretty much anything related to terrorism, Congress had an extraordinary moment of
opportunity to pass genuine reform. The Snowden revelations had changed the publics attitude about
expansion in surveillance authorities that began almost immediately after the 9/11 terror attacks. Indeed,
government surveillance. And three provisions of the Patriot Act were set to expire.
order to end it. We are taking the appropriate steps to obtain a court order reauthorizing the program. If such an order is granted, well make an appropriate
announcement at that time as we have with respect to past renewal applications, said Marc Raimondi, the Justice Departments national security spokesman. [Senate Majority Leader
Mitch] McConnells gamble on a clean reauthorization of [parts of the Patriot Act] without reform and his further attempts to weaken the privacy protections contained in the USA
Freedom Act has caused this ridiculous situation in which the bulk metadata program is being reanimated in order to be shut down for good, said Amie Stepanovich, an attorney with
While the USA Freedom Act allows for a period of six months
to transition the collection of data outside of the NSA, the administration should
actively work to move the program as quickly as possible. If the NSA takes the
entire six months to stop indiscriminately collecting our data it is in violation of the
spirit of the transition and needlessly continues to harm the privacy of users en
masse. We need to move to the targeted collection codified by the USA Freedom Act without any delay. Unclear is whether or not the
FISA court will hear arguments from the newly established amicus, who will be
empowered by the new law to contest the governments contentions before the
previously non-adversarial court. The law permits the amicus to argue before the court in novel circumstances. Whether the NSA can restart this
bulk collection is a novel question, and this decision should not be made in secret. The FISA court should appoint an amicus
thats what this provision of USA Freedom is for . And the decision and its reasoning should be made public, said Jennifer
Granick, director of civil liberties at the Stanford University Law Schools Center on Internet and Society. The start-up to shutdown question
will be decided against the backdrop over continuing debate over government
surveillance. While reformers hope this weeks victory is an appetizer to a multiple-course meal to rein in the NSA, security hawksmany of them Republicans vying for the
the digital-rights group Access. Stepanovich added:
White Househope to halt the post-Snowden momentum behind surveillance reform. And some already are talking about unraveling the new law. Sen. Ron Wyden, a civil-liberties
build their phones with "too-tough-to-crack" encryption standards, the FBI has warned that the technology locks out the bad guys and the goodand can impede law-enforcement
investigations.
By a 67-32 margin Tuesday, Congress passed the USA Freedom Act a significant
milestone in our efforts to rein in NSA surveillance. The bill marks the first time
since passage of the Foreign Intelligence Surveillance Act in 1978 that Congress has
taken steps to restrict rather than expand the governments surveillance
authority.
Uniqueness
circles as "twelve triple three," gives incredible leeway to intelligence agencies sweeping up vast quantities of
Americans' data. That data ranges from e-mail content to Facebook messages, from Skype chats to practically
anything that passes over the Internet on an incidental basis. In other words, EO 12333 protects the tangential
collection of Americans' data even when Americans aren't specifically targetedotherwise it would be forbidden
under the Foreign Intelligence Surveillance Act (FISA) of 1978.
Overreach Now9/11
Congress has abdicated its role in foreign policyintricacies of
surveillance and special ops warfare has only made that worse
http://nationalinterest.org/article/congressional-abdication-8138
But in the aftermath of the analytically simpler challenges of the Cold War,
present-day crises have become more complicated to explain with any
expertise, even as the electoral process has become more obsessed with the
necessities of fund-raising and as the political messages themselves have been
reduced to blunt one-line phrases. As former House Speaker Thomas P. Tip ONeill
famously put it decades ago, most politics are local, and most politicians learn
about the essentials of foreign policy only after they have been elected, if at all.
This dichotomy explains the nearly total absence of any real foreign-policy debate in
our electoral process, whether at the congressional or presidential level. Nowhere is
this truth more self-evident than in the national discussions that have emerged in
the aftermath of the 9/11 terrorist attacks. Despite more than ten years of
ongoing combat operations, and despite the frequent congressional trips to
places such as Iraq and Afghanistan (usually on highly structured visits lasting only
a few hours, or at the most a day or two), Congress has become largely
irrelevant to the shaping, execution and future of our foreign policy. Detailed
PowerPoint briefings may be given by colonels and generals in the battle zones.
Adversarial confrontations might mark certain congressional hearings. Reports
might be demanded. Passionate speeches might be made on the floor of the House
and the Senate. But on the issues of who should decide when and where to
use force and for how long, and what our countrys long-term relations should
consist of in the aftermath, Congress is mostly tolerated and frequently
ignored. The few exceptions come when certain members are adamant in
their determination to stop something from happening, but even then they do not
truly participate in the shaping of policy. The failure of Congress to meet its
historical obligations while the president unilaterally engaged in combat
operations in Libya promises even deeper consequences for future crises. In
many international situations the future promises a diferent kind of warfare,
made possible (and politically more complex) by the use of specialoperations
forces, cia operatives, drones and precision munitions, thus removing the
average American from the consequences and even the direct knowledge of
military actions that a president might undertake at his or her sole discretion. But
to what extent should this cleaner way of war also remove Congress as
an arbiter of when and where our nation should become involved in overseas
hostilities? The inherent right of self-defense allows the president, as commander in
chief, to order strikes anywhere in the world against legitimate terrorist targets if
the country in which they operate either cannot or will not take appropriate action
itself. But this is a different concept than unilaterally commencing hostilities in
situations that do not directly threaten our country. When we examine the
conditions under which the president ordered our military into action in Libya, we
are faced with the prospect of a very troubling, if not downright odd, historical
precedent that has the potential to haunt us for decades.
the Judiciary has virtually relinquished its valuable role in the U.S. system of
governance, which depends on judicial review . In the face of governmental claims of crisis and
national security needs, the courts have refused to examine, or have examined with
undue deference, the actions of government officials. Oddly enough, the mostly Republican
is that
Supreme Court has shown more stiff 1. Wayne McCormack, Responses to the Ten Questions, 36 WM. MITCHELL L.
REV. 5095, 5110 (2010). U.S. JUDICIAL INDEPENDENCE 307 resistance than most of the lower courts,2 but still
has ducked some significant issues.3 In the cases considered here, the U.S. government has taken the position that
inquiry by the Judiciary into a variety of actions against alleged malfeasors would threaten the safety of the nation.4
found foreign affairs powers to be vested in the federal government by the Constitution. Further, the notion that the
federal government was to have major powers outside the Constitution is not insinuated in the document itself, the
Sutherland's
opinion is grounded in sovereignty, but it is also possible to interpret the
Declaration of Independence as creating thirteen sovereign states, and many
did conduct their own foreign relations until the Articles of Confederation. Sutherland's reliance on
political philosophy and international law, rather than constitutional
interpretation , as a basis for foreign policy powers is also controversial. Finally, drawing a clear
records of the Constitutional Convention, the Federalist Papers, or contemporary debates.
distinction between foreign and domestic policy is becoming increasingly difficult to do, and an approach that
derives different sources of power for each is bound to generate legal challenges. Sutherland's position holds up
best if one takes the view that the Constitution is a document whose principle objective is to distribute power
between the states and federal government, and among the branches of the federal government. Despite the
criticisms, Curtiss-Wright is a landmark case in the broadening of federal and, in particular, presidential authority in
foreign affairs. Presidents have found additional means to increase their foreign policy powers. One is to use
executive agreements, since they do not require Senate ratification but have been held by the Court to have the
same legal status as treaties ( United States v. Pink, 1942). Executive agreements are of two forms: those
authorized by Congress and those made on presidential initiative. Authorized executive agreements have provided
authority for presidents to negotiate the lowering of tariff barriers and trade agreements. The Lend-Lease Act
(1941) granted President Roosevelt the power to enter into executive agreements that would provide war material
to "any country deemed vital to the defense of the United States." Numerous executive agreements have been
Executive agreements
made on presidential initiative have often been obtained during
international conflict, including the ending of the Spanish-American War and the deployment of troops
during China's Boxer Rebellion. The Supreme Court, in United States v. Belmont (1937),
upheld Roosevelt's use of an executive agreement to formalize his
decision to recognize the Soviet Union, noting that it had the efect of a
treaty and overruled conflicting state laws . Roosevelt used executive agreements
negotiated regarding the stationing of U.S. military forces in other countries.
extensively in the years leading up to World War II and to negotiate agreements at the Cairo, Tehran, and Yalta
conferences. President Lyndon Johnson made many secret agreements with Asian countries during the 1960s, and
President Jimmy Carter used executive agreements that constituted the financial arrangement necessary to free
Africom Unpopular
Africom is unpopular in Congressperceived as inefective and
cumbersome
Burgess 08 (Stephen F, Associate Professor, Department of International
Security, U.S. Air War College, US AFRICA COMMAND, CHANGING SECURITY
DYNAMICS, AND
PERCEPTIONS OF US AFRICA POLICY, 2008)
In the wake of the AU summit. US officials pressed on towards AFRICOM's full
operational capability on October 1, 2008. However, in response to strong
African resistance to the prospect of an enhanced US military presence on
the continent, the directive to place an AFRICOM headquarters somewhere
in Africa was shelved.5 Even more modest proposals for AFRICOM -regional
integration teams" or -regional offices", which would work with sub- regional
organizations, were dropped.6 It was hoped that these changes would make it
easier for AFRICOM to engage with African countries and regional organizations.
With the end of plans to expeditiously place AFRICOM headquarters on the
continent, resistance diminished in some African countries, and with offers of
training and other forms of assistance, states began to engage AFRICOM. Even so.
AFRICOM faces an uphill struggle to succeed as a combatant command. It
is probable that Congress will not be wholly convinced about AFRICOM S
strategic importance and will not provide adequate funding; and African
leaders will be disappointed at the commands inability to provide the level
of training and other services that EUCOM and CEXTCOM do presently for
African countries.
2AC NATO
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Russia Expose
Recent intelligence scandals have wrecked relations conflict
is inevitable in the status quo.
Farmer 6/14 (Ben, Defence Correspondent, Russia 'could expose British agents
to its allies after Snowden files cracked', June 14 th, 2015,
http://www.telegraph.co.uk/news/worldnews/europe/russia/11674201/Russia-couldexpose-British-agents-to-its-allies-after-Snowden-files-cracked.html)//ghs-VA
Russia may expose British intelligence agents to its allies around the world after
Kremlin spies have reportedly cracked the top-secret cache of files stolen by the fugitive US whistle blower Edward
Snowden, a former security minister has said. The British intelligence agency MI6 has
been forced to pull agents out of live operations in hostile countries, after Moscow
gained access to more than 1 million classified files held by the former American security contractor. Senior
government sources say China has also cracked the encrypted documents, which contain secret intelligence
techniques and information that could allow British and American spies to be identified, the Sunday Times reported.
As well as potentially endangering agents in Russia or China, Lord West, a former security minister and First Sea
Lord, said the intelligence could be shared with Russian allies such as Bashar al-Assad in Syria. The Russians would
do that if it was of benefit to them, he said. Agents in the Middle East are at risk one Russia
expert said, because of long-standing intelligence sharing with the Kremlins allies and proxies in the area. Andrew
Mitchell, the former Tory cabinet minister, said it was "no accident" it had come in the wake of last weeks review by
David Anderson QC, and amid controversy over the revival of communications interception legislation dubbed a
"snoopers' charter. Asked if the disclosure of Russia and China breaking the Snowden files was part of a
Government propaganda drive, he said: "Well, there is a big debate going on, you know. Sir David Omand, a former
intelligence, a senior Home Office official accused Snowden of having blood on his hands. A British intelligence
source added: "We know Russia and China have access to Snowden's material and will be going through it for years
to come, searching for clues to identify potential targets. "Snowden has done incalculable damage. In some cases
agencies have been forced to intervene and lift their agents from
operations to prevent them from being identified and killed ." Snowden has
the
previously said his files were encrypted and could not be uncoded by any intelligence agencies. Lord West
described Mr Snowden as a slightly foolish traitor. He added: "If it was wartime, he would have been shot". He
said the information would be also be vital in Eastern Europe. He said Vladimir Putin would now be seeing all sorts
of intelligence which will enable him to see what we are doing, how we are doing it and enable him to be one step
ahead, he said. Dr Igor Sutyagin, a Russia expert at the Royal United Services Institute, said he expected that
British agents in the Middle East could have been afected. He said: I suspect that
now when Britain says that they pull people out of hostile nations, thats not Russia or China, thats something like
Lebanon or Syria.
the things that we're trying out in this trial work and we're able to
incorporate them into NATO doctrine, NATO processes, then absolutely it will
help us mitigate collateral damage," said Lt. Col. Matt J. Martin, a U.S. Air Force officer who acted
as the overall commander in the trial. "We'll have a much better understanding of the
environment that we're operating in." The challenge facing NATO intelligence-sharing is how to
blend information from many different sources operated by the alliance's 28 nations into one database . This
trial tested whether information provided by equipment including drones
from the U.S. and elsewhere, NATO Awacs radar planes and Romanian-operated spy balloons can be fed into
a single system. In this test, NATO commanders had to then use the information to launch simulated attacks using
Norwegian F-16s, artillery, or a high-speed attack boat.
Germany
NATO Alliance shaky now recent events have caused
controversy.
Rosen and Kelley 14 (Armin Rosen Business, Insider's defense and military
editor, Michael Kelley, senior news editor, The Worst Crisis In Modern US-German
Relations Was Based On Something That May Be False, Dec. 12, 2014,
http://www.businessinsider.com/der-spiegel-and-nsa-phone-tapping-story-201412)//ghs-VA
This development is astonishing considering the stir that the Merkel
phone tap caused at the time it was reported, and its continuing impact on
US-German relations. "The German press has worked itself into a state of self-righteous hysteria; the
German foreign minister is talking about severing alliances and
suspending trade discussions ," author and columnist Anne Applebaum wrote in November 2013,
calling the controversy "the worst crisis in German-American relations in decades ."
In a profile of Merkel in the New Yorker this month, George Packer chronicled the still-unfolding consequences of the
NSA revelation. "With the German public the sense of betrayal was deep ... particularly because Obama, while
promising that the eavesdropping had stopped, never publicly apologized," Packer wrote. He reported that Germany
asked for a "no-spy agreement" with the US and was refused. This past July, Germany expelled the CIA station chief
in Berlin after a bureaucrat for Germany's intelligence service was caught passing documents to the agency. The
NSA uproar gave deeper public and political resonance to what would might have been an otherwise-minor incident.
As Packer put it, "The
Spying Pause
Recent revelations have created a spying pause that wrecks
intelligence sharing.
Eichensehr 14 (Kristen, graduate of Harvard University, the University of
Cambridge, and Yale Law School, United States Stops Spying on Western Europe
for Now, September 23, 2014, http://justsecurity.org/15414/united-states-stopsspying-western-europe-for/)//ghs-VA
It seems highly unlikely that restrictions would be unilateral or total, as the pause
appears to be. It makes little sense for the U.S. to engage in unilateral intelligence disarmament when it could
bargain for mutual intelligence restrictions and increased intelligence sharing. Moreover, given the lack of
precedent for a total no-spy agreement, the Obama Administration is unlikely to relinquish the right to spy, even on
A more likely outcome would be a series of FiveEyes style intelligence partnership agreements that ensure mutual benefit
from intelligence-sharing and some limits, but not a total ban, on spying on the agreement party or
allies, in particular circumstances.
parties. Although Germany apparently rejected a similar offer in July, the espionage pause may provide room for
diplomacy and scope for negotiation that were not possible in the midst of the spying scandal over the summer.
Another question is which countries might get the Five Eyes-style deal. Although Ive focused on the recent history
the pause
reaches beyond Germany to friendly governments in Western Europe . (It
with Germany and events in Germany reportedly triggered the pause, the AP report indicates that
does not specify which governments or indicate whether it means all friendly Western European governments.) But
Countries, including
whose publics have been incensed by reports of U.S. spying
on their citizens have incentives to publicize any agreement that limits
U.S. collection activities vis--vis their citizens . The disclosure of any new
agreements with particular countries could create diplomatic strife for the
U.S. with other countries that want, but have not been offered, the same deal. When the no-spy
from the perspective of other friendly governments, why stop with Western Europe?
Germany and France,
agreement issue arose last fall, Stewart Baker proposed in congressional testimony substantive and procedural
criteria for entering spying agreements, and in December, the Presidents Review Group on Intelligence and
revelations. Plus, Germany is probably going to conduct a mole-hunt or two, which will distract their intelligence
services and potentially impact their effectiveness, and thats bad news all over. Normally, wed see a tit-for-tat
expulsion after this kind of move, but the Obama administration will likely let this slide. The US and Germany have
too many common security interests to allow for a really serious breach to develop, and there should be some
leeway given to Merkel under the circumstances. So far, the White House is keeping their collective lips sealed:
the president
was kept in the dark about the blown spying operation at a particularly
delicate moment in American relations with Germany has led frustrated White House
Intelligence Agency. While Ms. Merkel chose not to raise the issue during the call, the fact that
officials to question who in the C.I.A.s chain of command was aware of the case and why that information did not
make it to the Oval Office before the call. The details of this spying case remain murky. Intelligence officials have
the
episode sheds light on the tensions that arise from the colliding cultures
of spycraft and statecraft one driven by the need to vacuum as much secret material as possible;
declined to comment, and it is still not clear what the German operative has told the authorities. But
the other giving primacy to diplomatic objectives. It also reinforces the problem that surfaced a year ago in the
wake of revelations about National Security Agency surveillance practices from the rogue contractor Edward J.
Snowden: whether the costs of spying on close allies outweigh the gains. At the White House, senior officials have
cellphone. What is particularly baffling to these officials is that the C.I.A. did not inform the White House that its
agent a 31-year-old employee of Germanys federal intelligence service, the BND had been compromised,
given his arrest the day before the two leaders spoke. According to German news media reports, the agency may
have been aware three weeks before the arrest that the German authorities were monitoring the man. A central
question, one American official said, is how high the information about the agent went in the C.I.A.s command
whether it was bottled up at the level of the station chief in Berlin or transmitted to senior officials, including the
director, John O. Brennan, who is responsible for briefing the White House. For all his concerns, Mr. Obama does not
plan any extraordinary outreach to Ms. Merkel, an official said, noting that some in the administration also feel that
Germany should not overreact to the case or conflate it with the privacy issues raised by the N.S.A.s surveillance.
further American involvement, said John C. Kornblum, a former American ambassador to Germany. Recent events
have demonstrated that just the opposite is the case. Germany is still deeply conflicted about itself and about the
world around it. The White House and the C.I.A. both declined to comment on the case, with a spokeswoman for
the National Security Council, Caitlin M. Hayden, saying, Were certainly not going to discuss who knew what and
when in regards to the allegations. On Tuesday, the chairwoman and the ranking member of the Senate
Intelligence Committee said in separate interviews that Mr. Brennan had briefed them about the matter, but they
refused to divulge any details of the conversations. Senator Dianne Feinstein, the California Democrat who is
chairwoman of the committee, expressed concern about the damage that could come to American-German
relations. We need to relook at this whole situation, how we handle our allies, said Ms. Feinstein, who said she met
with German Parliament members who she said were very upset by the reports. The ranking Republican, Senator
Saxby Chambliss of Georgia, sounded a note of caution about the allegations. Im not sure how much of it is true,
he said. Thats going to dictate how serious it is. Over the past year, the German government has tried to use the
Snowden revelations chiefly the embarrassing disclosure about Ms. Merkels cellphone as leverage to
negotiate a non-spying pact between the United States and Germany. The United States has such arrangements
with Australia, Britain, Canada and New Zealand. But the White House has resisted, in part because officials worry
that it would prompt other countries to request similar deals. In early 2010, the director of national intelligence,
Dennis C. Blair, explored a nonspying pact with French intelligence officials, partly because Mr. Blair believed such a
deal would ease the burden on the F.B.I., which has the task of hunting French spies in the United States. The
French are reputed to be particularly aggressive in pursuing American industrial secrets. In contrast, current and
former American officials said that German operatives are far less active in the United States, making the benefits
of a nonspying deal with Berlin less obvious. Likewise, some question the value of spying on Germany.
Such
that American
and German spies have developed in recent years. Since the Sept. 11 attacks, the BND has aggressively pursued
terror suspects in Germany and played a role in the crippling Stuxnet cyberattack on Irans nuclear program.
Theres only so much that spying on the Germans is going to get you, said a former C.I.A. official once posted in
Europe. Its not like the Germans are planning to establish relations with Iran. Last weeks disclosure came at a
delicate moment: Mr. Obama needs Ms. Merkels support to impose additional sanctions against Russia for its role in
the Ukraine crisis. Germany, with extensive energy ties to Russia, has many reasons to resist, though Ms. Merkel
has signaled she is running out of patience with President Vladimir V. Putin. The American authorities are also
pursuing heavy financial penalties from German banks, including Commerzbank and Deutsche Bank, for dealing
with Iran and other countries that are blacklisted by the United States. The German government owns 17 percent of
Tuesday.
intelligence, a senior Home Office official accused Snowden of having blood on his hands. A British intelligence
and could not be uncoded by any intelligence agencies. Lord West described Mr Snowden as a slightly foolish
traitor. He added: "If it was wartime, he would have been shot". He said the information would be also be vital in
Eastern Europe. He said Vladimir Putin would now be seeing all sorts of intelligence which will enable him to see
what we are doing, how we are doing it and enable him to be one step ahead, he said. Dr Igor Sutyagin, a Russia
expert at the Royal United Services Institute, said he expected that
East could have been afected. He said: I suspect that now when Britain says that they pull people
out of hostile nations, thats not Russia or China, thats something like Lebanon or Syria.
WSJ Germany
European nations have curtailed intelligence sharing because
of recent scandals U.S. legitimacy is critical to rectify public
outcry.
Troianovski 5/7 (Anton, writes about German politics, economics, and society
for The Wall Street Journals Berlin bureau, Germany Halts Some Intelligence
Sharing With U.S. Berlin moves amid controversy over accusations Germany helped
NSA spy on European allies, 07 May 2015, http://www.wsj.com/articles/germanyrestricts-some-data-sharing-with-u-s-1431021158)//ghs-VA
BERLIN-- Germany
Germany's foreign intelligence service, known as the BND, will no longer provide the U.S. with Internet surveillance data from a
Bavarian satellite eavesdropping post that has been at the center of a recent espionage controversy, a parliamentary official briefed
on the matter said. A second German official, though, stressed the decision only affected the outpost in Bavaria, which he described
as a small part of the BND's intelligence sharing with the U.S. The decision to ease back on the data-sharing, starting this week,
came after law makers said the German government had disclosed that the BND had eavesdropped on European allies as part of an
intelligence-sharing agreement with the U.S. National Security Agency. "It's clear the emergency brake has been pulled here," said
Konstantin von Notz, a member of parliament representing the opposition Greens who co-chairs a special committee investigating
populace especially sensitive to privacy issues. In 2013, in the wake of accusations that the NSA had monitored Chancellor Angela
Merkel's cellphone, Ms. Merkel declared that spying "among friends" was unacceptable. The newest disclosures, though, have turned
the spotlight onto her own government's policies. Newsweekly Der Spiegel put an image of Ms. Merkel and two other senior officials
chancellor has said is vital to German security. Government officials haven't commented publicly on the decision to curtail sharing
with the U.S. of intelligence from the Bavarian listening post, which was disclosed in a classified briefing to select members of
parliament on Wednesday. It wasn't immediately clear who ordered the move, though the Chancellery officially oversees Germany's
intelligence agencies. Though she repeated that allies shouldn't spy on each other, Ms. Merkel said this week that "the government
will do all it can to allow the intelligence agencies to do their work, which must include cooperation with other intelligence agencies,
given the threat of international terrorism. That certainly includes, in part, the NSA."
from a controversy rooted in a 2002 intelligence-sharing agreement between the U.S. and Germany that allowed the NSA
to provide phone numbers, email addresses and other so-called selectors to be targeted by the BND's satellite listening post in the
Bavarian town of Bad Aibling. The U.S. established the facility, which features an array of huge satellite dishes masked by golf-balllike hulls, as a communications-monitoring station during the Cold War to listen in on the Soviets. The BND, which helped operate
the station for years and officially took over in 2004, has used the Bad Aibling site to intercept satellite communications in crisis
regions such as the Middle East and Afghanistan, German officials said. The point of the 2002 agreement, German officials say, was
members of parliament
investigating NSA activities have raised questions about whether Bad
Aibling was also used to spy on European or German targets on behalf of the
NSA.
to share resources in pursuing terrorism and arms smuggling. But the
Internal Links
Intel Sharing
Intelligence sharing with NATO is necessary to fight hybrid
wars and counteract emerging threats like Russia
Korkisch 2010 Friedrich W. Korkisch, PhD, expert in military and international
law, April 2010, NATO Gets Better Intelligence,
http://www.natowatch.org/sites/default/files/NATO_Gets_Better_Intell_April_PDP_0.pd
f
Hybrid Wars Interventions
(Generals David Petraeus, Stanley McChrystal, Raymond Odierno) and new strategy papers and field manuals like
1900 is the assumption that always the next war would be short; after victory, life would go on undisturbed and
troops would go home. In fact, most wars are long, like Korea, Vietnam or now Iraq (finally winding down) or
Afghanistan. The Gulf War of 1991 was very short, pre-decided by airpower, so was the air war against Serbia in
1999. Iraq in 2003 was in Phase III a short war, but it did not end as anticipated. The war in Iraq lasts now for more
than six years, even when now winding down it still has the potency to escalate again. The civil war in Somalia had
no clear beginning and sees no end either. U.S. Intelligence Guidance for NATO Earlier Intelligence
National Security Act of 1947 saw always a need for military reform, but besides the creation of the CIA, NSA and DIA many decades ago, changed the
military and civilian intelligence organizations only sporadically.24 Even when the powerful National Security Council was reorganized by each President,
the intelligence structure below was rarely altered, and if, mainly administrative issues. Many commissions and boards (so under Eaton, Schlesinger,
Taylor, Childs, Murphy, Church, Pike, Simon and others) recommended minor or larger changes, but they were mainly ignored. The National Security
Agency (NSA) was created in 1952, the Defense Intelligence Agency (DIA) in 1961. Small changes did occur during the presidency of Eisenhower, Nixon
and Ford. Of consequence were E.O. 11905 and E.O. 12036, but many changes came with E.O. 12333 of December 4, 1981, signed by President Reagan,
which extended the scope of intelligence and operations. Congress (Senate Select Committee on Intelligence, House Permanent Select Committee on
Intelligence) often demanded not only budgetary oversight, but also supervision of activities and even of secret operations as written into the Hughes
Ryan Act of December 1974, and proposed by the Church Committee report in 1975. Congress also debated for decades about improvements in
intelligence, voted for the Intelligence Oversight Act of 1980, which demanded prior information of Congress about major clandestine operations, followed
by the Intelligence Oversight Act of 1991. These must be seen as fallouts from the Watergate affair, but intelligence knew how to overcome such
demands and rules: The White House and the intelligence organizations insisted on their right to keep top secret documents locked, and sensitive
activities out of reach of any Congressional oversight. The large number of organizations and reorganizations, and hundreds of ongoing operations, made
supervision anyway impossible. Recent Intelligence Reorganizations 30 different organizations today have a budget of 75 Bio. US $,25 and employ some
290.000 people.26 Many of these reforms had an impact on NATO. Non-Military Intelligence Reforms President Clinton looked into a more innovative
the NSC is the main arbitrator for intelligence activities and is more or less
also the final authority. Many changes have altered responsibilities and supervision .
Since 1947,
Various NSC committees and planning groups often changed their names and structures, but involved always the
President, Vice President, National Security Adviser, Secretary of State, Secretary of Defense, Director of the CIA,
(and since 2004) the DNI, the Chief of Staff to the President, the Chairman of the Joint Chiefs of Staff, and the
Counsellor to the President. Others, like experts, the Director of the OMB, the Attorney General, or the Director of
NATO is basically
providing the important link between U.S. and European security requirements in
the Northern Atlantic-EUCOM region. From a U.S. geopolitical-geostrategic point of view, it permits
the U.S. to control of the opposite coast, which is seen by strategy experts as a
paramount U.S. security requirement. NATO is fulfilling this task, and the U.S. is paying back
with security guarantees. Seen from a geopolitical point of view, the United States wanted after 1945 to
the FBI might attend. The Links Between U.S. Defense Requirements and NATO
contain any power or any combination of powers on the Eurasian landmass, which might become a dangerous
European Union and other nations, which are cooperative partners, either within NATO or in other regions of the
CENTCOM and AFRICOM, the same governments who send troops to Afghanistan were as EU-members insisting on a
different agenda, based on Soft Power, international law and humanitarian considerations, with a public that
strangely accepts NATO operations but declines military interventions by the EU.49
Proliferation
Proliferation causes extinction it destabilizes hegemony and
all other nations and escalates to nuclear war deterrence
doesnt account for irrational actors
Maass 10 Richard Maass, working for his Ph. D. in political science at Notre dame
University, currently teaches classes there on International Relations, 2010,
Nuclear Proliferation and Declining U.S. Hegemony,
http://www.hamilton.edu/documents//levitt-center/Maass_article.pdf
On August 29, 1949, The Soviet Union successfully tested its first nuclear fission
bomb, signaling the end of U.S. hegemony in the international arena. On
September 11th, 2001, the worlds single most powerful nation watched in awe as
the very symbols of its prosperity fell to rubble in the streets of New York City. The
United States undisputedly has a greater share of world power than any other
country in history (Brooks and Wolforth, 2008, pg. 2). Yet even a global hegemon is
ultimately fallible and vulnerable to rash acts of violence as it conducts itself in a
rational manner and assumes the same from other states . Conventional strategic thought and
military action no longer prevail in an era of increased globalization. Developing states and irrational
actors play increasingly influential roles in the international arena . Beginning with the
U.S.S.R. in 1949, nuclear proliferation has exponentially increased states
relative military capabilities as well as global levels of political instability .
Through ideas such as nuclear peace theory, liberal political scholars developed
several models under which nuclear weapons not only maintain but increase global
tranquility. These philosophies assume rationality on the part of political actors in an
increasingly irrational world plagued by terrorism, despotic totalitarianism, geopolitical instability and failed international institutionalism. Realistically,
proliferation of nuclear [weapons]constitutes a threat to international peace and
security (UN Security Council, 2006, pg. 1). Nuclear security threats arise in four forms: the
threat of existing arsenals, the emergence of new nuclear states, the collapse of
international non-proliferation regimes and the rise of nuclear terrorism. Due to
their asymmetric destabilizing and equalizing efects, nuclear weapons erode
the unipolarity of the international system by balancing political actors
relative military power and security. In the face of this inevitable nuclear proliferation and its
effects on relative power, the United States must accept a position of declining hegemony .
Despite nuclear proliferations controversial nature, states continue to develop the technologies requisite for
constructing nuclear weapons. What motivates men to create the most terrifying weapons ever created by human
kindunique in their destructive power and in their lack of direct military utility(Cirincione, 2007, pg. 47)? Why
nuclear weapons
comprise a symbolic asset of strength and as a prerequisite for great power status
then do states pursue the controversial and costly path of proliferation? To states,
(Cirincione, 2007, pg. 47). On a simplistic level, nuclear weapons make states feel more powerful, respected and
Nuclear proliferation exponentially increases the possibility of nonproliferation regime collapse and nuclear conflict, reducing all states relative power.
Nuclear peace theory seems plausible, but like any mathematical model it may only
marginally apply to world politics and the dynamics of nuclear proliferation, due to
the fact that international security is not reducible to the theory of mathematical
games (Bracken, 2002, pg. 403). Rather, the spread of nuclear weapons exponentially
decreases the stability of regional and global politics by intensifying regional
rivalries and political tensions, both of which may potentially catalyze a nuclear
catastrophe. Frustrated with a lack of results through conventional conflict, desperate states may look to
nuclear arsenals as a source of absolute resolution for any given conflict. The use of nuclear weapons,
even in a limited theater, could plausibly trigger chain reactions rippling across the
globe. With their interests and sovereignty threatened, other nuclear states will
eventually use their own weapons in an effort to ensure national security . President
evidence.
Kennedy warned of the danger of nuclear proliferation in 1963: I ask you to stop and think for a moment what it
would mean to have nuclear weapons in so many hands, in the hands of countriesthere would be no rest for
anyone then, no stability, no real securitythere would only be the increased chance of accidental war, and an
increased necessity for the great powers to involve themselves in what otherwise would be local conflicts
only China has not reduced its stockpile , which is estimated at 250
warheads. Beijing has also made significant investments in modernizing its forces ,
Soviet Union, and China),
developing new mobile intercontinental ballistic missiles as well as submarine-launched ballistic missiles.
Three new countries (India, Pakistan, and North Korea) have joined the list of
acknowledged nuclear weapons states , and one (South Africa) has been removed. Finally, in recent
years a series of aspirants (Iraq, Libya, and Syria) have seen their nuclear ambitions foiled, while one (Iran)
down through the South Asian subcontinent, and into the Persian Gulf region? The essays in this roundtable have
the
further spread of nuclear weapons, the next chapters of the story in the broader
Middle East will depend a great deal on what happens in Iran. If Tehran succeeds in
developing nuclear weapons, other states may feel compelled to follow suit , including
helped shed light on three aspects of this question: proliferation, arms racing, and stability. Regarding
Saudi Arabia and Turkey. If it does not, Israel may remain the regions only nuclear weapons state. In East Asia,
states most likely to contemplate pursuing nuclear status are also anxious
friends and allies of the United States. Japan, South Korea, and (albeit implicitly) Taiwan
have until now been content to take shelter under the U.S. nuclear umbrella. But
they could come to doubt the reliability of U.S. guarantees in the face of North
Koreas new capabilities, Chinas nuclear modernization programs, or, especially in
the case of Japan, both developments taken together. While this once-taboo topic has been
discussed more openly in both Japan and South Korea in recent years, neither country shows any overt
signs of moving to acquire its own nuclear forces. Still, as Noboru Yamaguchi
explains in his essay, there is nothing in Japans peace constitution that absolutely
precludes the possibility, should the nations leaders deem it necessary for selfdefense. Like South Korea and Taiwan, Japan has shown an interest in acquiring rocket and cruise missile
those
technology that could someday serve as the basis for an independent deterrent force. For the moment, however,
while the possibility exists for even more complex arrangements, the degree of interaction among the actors to date remains limited. As Benjamin Schreer
describes, Chinas modernization of its long-range nuclear forces appears to be motivated in large part by a desire to reduce its vulnerability to a possible
U.S. conventional precision strike. An increase in the number of weapons deployed, perhaps on multiple warhead delivery systems, could also reflect
concern over the possible thickening of the U.S. national missile defenses. For the moment, however, there is no strong evidence to support the view that
China aims eventually to achieve nuclear parity with the United States. Nor are there any indications to suggest that Washington will respond to Beijings
India and
Pakistan are following distinct paths in developing their nuclear capacities, with the
former seeking a secure second-strike force to deter attack on its troops or territory
and the latter attempting to acquire weapons that could be used to offset its
inferiority in conventional ground and air forces . Singh asserts that the two states are not
currently engaged in a nuclear arms race, but he notes the possibility that their programs could
become more closely coupled, especially if China continues to provide nuclear assistance to Pakistan
limited buildup with measures designed to retain (or reacquire) a viable damage-limiting option against China. According to P.K. Singh,
while its own forces expand beyond currently projected levels. This development, in particular, would likely have an
impact on the United States, and perhaps on Russia as well, setting in motion a genuinely multisided rivalry, with
Pakistan and India responding to one another; China interacting with the United States and Russia, as well as India;
Ultimately
the most important question that must be asked about recent developments is
whether they will increase or decrease the risk of war, including the possibility
of nuclear war. As Rajesh Basrur makes clear, there are plausible theoretical arguments that can be made
and Russia and the United States once again engaged in an active nuclear competition. Stability
on either side of this question. On the one hand, it is possible that the mutual possession of nuclear weapons will
nuclear-armed
nations may feel emboldened to engage in provocations or conventional aggression,
impose extreme caution on states that might otherwise be prone to conflict. On the other hand,
even against other nuclear powers. The empirical evidence regarding this issue is sparse and subject to varying
interpretations. North Korea has behaved aggressively toward the South on several occasions since conducting its first nuclear tests, but it did so often in
the past as well. For the most part, as Kang Chois essay suggests, the North Korean regime seems to regard its small arsenal as the ultimate insurance
manipulate the risk of escalation to get the United States to exert pressure on their behalf. Even when its own forces were smaller and less secure,
Chinese strategists appear to have believed that they were sufficient to discourage
the United States from ever using nuclear weapons against their country. Beijings
modernization programs may be intended simply to bolster that confidence in the
face of growing U.S. precision-strike capabilities . Now that China is developing similar conventional capabilities of
its own, however, it has options for the use of force that it previously lacked and that it may be more likely to exercise if it believes it can deter the United
States from nuclear escalation. This is a possibility about which U.S. and Japanese strategists have begun to worry and to which they will likely devote
weapons (in the case of India, Pakistan, and North Korea) and the development of more secure arsenals (in the case
of China) have not resulted in radically increased recklessness. But there are indications that states equipped with
such capabilities may assess that they provide a backstop for greater assertiveness. Such beliefs could raise the
risk of conventional conflict and bring the world much closer to critical mass than it appears to be at present.
AT: MAD
Mutually Assured Destruction fails nations are given
incentives to threaten nuclear war in exchange for geopolitical
advantages this increases the risk of nuclear war
Kroenig 2012 Matthew Kroenig, proliferation expert, 5/26/12, The History of
Proliferation Optimism: Does It Have A Future?, http://www.npolicy.org/article.php?
aid=1182&rtid=2
The proliferation optimist position has a distinguished
pedigree, and provides a useful rationale for actors interested in developing
strategic deterrence with limited means, but it provides a weaker intellectual
framework for comprehensively understanding the likely effects of nuclear
proliferation on international politics. Scott Sagan and other contemporary
proliferation pessimists have provided systematic and thoroughgoing critiques of
the proliferation optimism position.32 Sagan shows that the spread of nuclear
weapons leads to greater levels of international instability because: states
might conduct preventive strikes on the nuclear facilities of proliferant states,
proliferant states might not take the necessary steps to build a secure, secondstrike capability, and organizational pathologies within nuclear states could lead
to accidental or inadvertent nuclear launch .33 As Frank Gavin writes in his review of the
Proliferation through Rose-Colored Glasses.
optimism/pessimism debate, The real problem, however, is that Sagan plays small ball in his debate with Waltz, conceding the big
issues. Why not challenge Waltz on his core arguments about deterrence and stability?34 Rather than repeat the substantial efforts
of previous pessimists, therefore, I will take up Gavins challenge and focus on three big issues. In particular, this section maintains
on peculiar beliefs about the possibility of escaping MAD.37 Rather, as we will discuss below, these theorists understand that
been devoted almost exclusively to answering this question.39 And their answers do not give us reasons to be optimistic. Thomas
Schelling was the first to devise a rational means by which states can threaten nuclear-armed opponents.40 He argued that
leaders cannot credibly threaten to intentionally launch a suicidal nuclear war, but they can make a threat that
leaves something to chance.41 They can engage in a process, the nuclear crisis,
which increases the risk of nuclear war in an attempt to force a less resolved
adversary to back down. As states escalate a nuclear crisis there is an increasing
probability that the conflict will spiral out of control and result in an
inadvertent or accidental nuclear exchange . As long as the benefit of winning the crisis is greater than the
incremental increase in the risk of nuclear war, however, threats to escalate nuclear crises are inherently
credible. In these games of nuclear brinkmanship, the state that is willing to run the greatest risk of
nuclear war before backing down will win the crisis, as long as it does not end in
catastrophe. It is for this reason that Thomas Schelling called great power politics in the nuclear era a competition in risk
taking.42 This does not mean that states eagerly bid up the risk of nuclear war. Rather, they face gut-wrenching decisions at each
They can quit the crisis to avoid nuclear war, but only by ceding an
important geopolitical issue to an opponent. Or they can the escalate the crisis in an attempt to prevail, but
stage of the crisis.
only at the risk of suffering a possible nuclear exchange. Since 1945 there were have been twenty high stakes nuclear crises in
which rational states like the United States run a frighteningly-real risk of nuclear war. 43 By asking whether states can be
what risk of
nuclear war is a specific state willing to run against a particular opponent in a given
crisis? Optimists are likely correct when they assert that a nuclear-armed Iran will not intentionally
commit national suicide by launching a bolt-from-the-blue nuclear attack on the
United States or Israel. This does not mean that Iran will never use nuclear
weapons, however. Indeed, it is almost inconceivable to think that a nuclear-armed Iran
would not, at some point, find itself in a crisis with another nuclear-armed power . It is
deterred, therefore, proliferation optimists are asking the wrong question. The right question to ask is:
also inconceivable that in those circumstances, Iran would not be willing to run some risk of nuclear war in order to achieve its
proliferation optimists are wrong to dismiss it out of hand. An optimist might counter that nuclear weapons will never be used, even
in a crisis situation, because states have such a strong incentive, namely national survival, to ensure that nuclear weapons are not
optimists first principles about the irrelevance of nuclear posture stand up to scrutiny. Not all nuclear wars would be equally
greater risks and are, therefore, more likely to win nuclear crises when they enjoy nuclear superiority over their opponents.45
Proliferation optimists might be correct that no rational leader would choose to launch a suicidal nuclear war, but, depending on the
context, any sane leader would almost certainly be willing to risk one.
Russia
The US is prepared to retaliate with nuclear weapons against
Russia if NATO conflict occurs even a small conflict kills
hundreds of millions
Gaist 6/26 Thomas Gaist, reporter citing ongoing talks about NATO nuclear
policy, published by the International Committee of the Fourth International,
6/26/15, US, NATO powers intensify preparations for nuclear war,
https://www.wsws.org/en/articles/2015/06/26/nuke-j26.html
The NATO military alliance is preparing to implement a more aggressive nuclear
weapons strategy in response to alleged Russian aggression , according to NATO sources
cited by the Guardian Wednesday evening. Proposed changes include provisions for greater
involvement of nuclear forces in ongoing NATO military exercises along Russias borders and
new guidelines for nuclear escalation against Russia , according to the NATO officials.
The alliances nuclear doctrine has been the subject of quiet, informal discussions
on the sidelines of the ongoing NATO summit. The new policies will be confirmed
at an upcoming conference of the alliances Nuclear Planning Group , which was
rescheduled for an earlier date this week as word got around about the secretive planning. There is very
real concern about the way in which Russia publicly bandies around nuclear stuff. So
there are quite a lot of deliberations in the alliance about nuclear weapons, an
unnamed NATO diplomat told the Guardian. The claim that discussion about a revision of
nuclear weapons policy is in response to Russian aggression turns reality on its
head. In the aftermath of the US and NATO-backed coup in Ukraine last year, the
major imperialist powers have engaged in a relentless militarization of Eastern
Europe, including the establishment of a rapid reaction force of 40,000 troops. This week, US Defense
Secretary Ashton Carter announced that the US would permanently deploy tanks, military
vehicles and other equipment to countries bordering Russia. There are also ongoing
discussions about directly arming Ukraine, beyond the extensive assistance the
right-wing government already receives. NATO is now planning to respond to any
attempt by Russia to maintain or counter US imperialisms aggressive moves in
Eastern Europe with even more massive military response, including nuclear
weapons. An indication of the thinking of NATO strategists was provided by a report in the Financial Times. In
the event of a conflict involving one of the Baltic countries, Russia mightaccuse
the alliance of escalating the conflict and threaten to use intermediate range
nuclear weapons. The Times quotes Elbridge Colby, of the Center for a New American Security (CNAS):
NATO does not need a total nuclear rethink. But it needs to be realistic about how
it would respond and willing to show Putin that he would not get away with it. This
scenario builds on allegations from the US that Russia has violated the Intermediate Range Nuclear Forces Treaty
Strategic and International Studies (CSIS). The main portions of the report were authored by a
career US government strategist and senior CSIS analyst, Clark Murdock, a man who previously worked in high-level
strategy jobs at the Central Intelligence Agency (CIA), the Department of Defense (DOD), the US Air Force and the
National War College. The report included contributions from a large team of researchers and experts, including
erosion of American technological superiority by the growth of the Chinese and Russian nuclear arsenals, together
with the addition of as many as nine new governments to the nuclear club. Under the Measured Response
theory advocated by the CSIS and Murdock, these types of highly mobile nuclear strike forces could engage in
controlled nuclear operations, firing low yield, accurate, special effects nukes against enemy targets without
Terror
Terrorists attacks cause nuclear war finger-pointing and
retaliation
Ayson 2010 Robert Ayson, Professor of Strategic Studies, PhD in War Studies,
6/21/10, After a Terrorist Nuclear Attack: Envisaging Catalytic Effects,
http://www.tandfonline.com/doi/abs/10.1080/1057610X.2010.483756?
journalCode=uter20#.VaKMWflViko
But these two nuclear worldsa
in the
event of a terrorist nuclear attack on the United States, it might well be wondered
just how Russia and/or China could plausibly be brought into the picture, not least
because they seem unlikely to be fingered as the most obvious state sponsors or
encouragers of terrorist groups. They would seem far too responsible to be involved in supporting that sort of
plausible situation where an act of nuclear terrorism could lead to such a massive inter-state nuclear war. For example,
terrorist behavior that could just as easily threaten them as well. Some possibilities, however remote, do suggest themselves. For
how might the United States react if it was thought or discovered that the
fissile material used in the act of nuclear terrorism had come from Russian stocks ,40
example,
and if for some reason Moscow denied any responsibility for nuclear laxity? The correct attribution of that nuclear material to a
particular country might not be a case of science fiction given the observation by Michael May et al. that while the debris resulting
from a nuclear explosion would be spread over a wide area in tiny fragments, its radioactivity makes it detectable, identifiable and
collectable, and a wealth of information can be obtained from its analysis: the efficiency of the explosion, the materials used and,
probably Israel and India as well, authorities in Washington would be left with a very short list consisting of North Korea, perhaps Iran
if its program continues, and possibly Pakistan. But at what stage would Russia and China be definitely ruled out in this high stakes
terrorist nuclear attack on its own soil might also raise the possibility of an unwanted (and nuclear aided) confrontation with Russia
and/or China. For example, in the noise and confusion during the immediate aftermath of the terrorist nuclear attack, the U.S.
president might be expected to place the countrys armed forces, including its nuclear arsenal, on a higher stage of alert. In such a
tense environment, when careful planning runs up against the friction of reality, it is just possible that Moscow and/or China might
mistakenly read this as a sign of U.S. intentions to use force (and possibly nuclear force) against them. In that situation, the
temptations to preempt such actions might grow, although it must be admitted that any preemption would probably still meet with a
Washington
might decide to order a significant conventional (or nuclear) retaliatory or
disarming attack against the leadership of the terrorist group and/or
states seen to support that group. Depending on the identity and especially the location of these targets,
Russia and/or China might interpret such action as being far too close for their
comfort, and potentially as an infringement on their spheres of influence and even
on their sovereignty. One far-fetched but perhaps not impossible scenario might stem from a judgment in Washington
devastating response. As part of its initial response to the act of nuclear terrorism (as discussed earlier)
that some of the main aiders and abetters of the terrorist action resided somewhere such as Chechnya, perhaps in connection with
American pressure on
that part of the world would almost certainly raise alarms in Moscow that might
require a degree of advanced consultation from Washington that the latter found
itself unable or unwilling to provide. There is also the question of how other nucleararmed states respond to the act of nuclear terrorism on another member of that
special club. It could reasonably be expected that following a nuclear terrorist attack on the United States, bothRussia and
what Allison claims is the Chechen insurgents long-standing interest in all things nuclear.42
China would extend immediate sympathy and support to Washington and would work alongside the United States in the Security
there is just a chance, albeit a slim one, where the support of Russia and/or
China is less automatic in some cases than in others . For example, what would happen if the United
Council. But
States wished to discuss its right to retaliate against groups based in their territory? If, for some reason, Washington found the
responses of Russia and China deeply underwhelming, (neither for us or against us) might it also suspect that they secretly were
If the terrorist
group had some connections to groups in Russia and China, or existed in areas of
the world over which Russia and China held sway, and if Washington felt that
Moscow or Beijing were placing a curiously modest level of pressure on them, what
conclusions might it then draw about their culpability.
in cahoots with the group, increasing (again perhaps ever so slightly) the chances of a major exchange.
2AC Solvency
Lower Courts
Spillover
FISA reform creates more efective review over surveillance
within the lower courts and provides coherence within the
judicial system.
McNeal 15 Gregory S. McNeal, J.D., Ph.D., Associate Professor of Law,
Pepperdine, University School of Law, 2015 (REFORMING THE FOREIGN
INTELLIGENCE SURVEILLANCE COURTS INTERPRETIVE SECRECY PROBLEM,
Federalist Edition, Vol.2, 2015, Available Online at: http://www.harvard-jlpp.com/wpcontent/uploads/2015/02/McNeal_Final.pdf, Accessed: 7-6-2015)
This standard of significant construction or interpretation of FISA could be
modified to become a trigger for appellate review by requiring that all opinions of
the Foreign Intelligence Surveillance Court that involve significant construction or
interpretation of any statute or judicial precedent are subject to de novo review by
the Foreign Intelligence Surveillance Court of Review. Automatic review of lower
court opinions is not unheard of in the national security cases. For example, in
courts martial proceedings, trials that result in a conviction are auto-matically
reviewed by the convening authority, and the convening authority has discretion to
mitigate the findings and sentence.66 Furthermore, if the sentence imposed by the
convening authority includes death, dishonorable or bad conduct discharge, or
confinement for one year or more, the case is automatically reviewed by an
intermediate court.67 Those courts review cases for legal error, factual sufficiency
and sentence appropriateness. A de novo standard of review is appropriate for
surveillance activities as it allows multijudge panels that permit reflective dialogue
and collective judgment with regard to legal issues.68 As the Supreme Court has
explained, [i]ndependent appellate review of legal issues best serves the dual
goals of doctrinal coherence and economy of judicial administration, and while the
Supreme Court was not speaking of surveillance, its admonitions regarding
appellate review are perhaps stronger in the context of national security.69
However, national security surveillance oftentimes requires rapid action on the part
of the courts; thus while this essay argues that FISC opinions should be
presumptively reviewed, the order or opinion issued by the FISC should be
immediately effective, and finalized pending review by the FISCR. A FISC judge
should have the ability to stay his order or opinion, subject to FISCR review, but
absent such an order by the judge, the opinion or order on the substantive
surveillance matter should be effective immediately. This idea draws from concepts
found in the ordinary course of appellate review of administrative action where
appellate review is only available after an administrative action is final.70 In fact,
under the Administrative Procedure Act, final agency action is a prerequisite to
most causes of action.
Solvency Mechanism
Revitalizes Competition
The plan revitalizes US company interest back homeit
recreates operational and reputational advantages that makes
companies return
Eoyang and Bishai 15 (Mieke, Director of Third Way's National Security
Program, Chrissy, Restoring Trust between U.S. Companies and Their Government
on Surveillance Issues, March 19 2015, http://www.thirdway.org/report/restoringtrust-between-us-companies-and-their-government-on-surveillance-issues)
Others have argued that the FAA shifts the burden of cooperation solely onto the
company, which will suffer greater reputational harm as a more witting participant
in affirmatively granting the governments requests. However, companies have
suffered reputational harm as a result of allegations of unwitting cooperation.
Making the cooperation known, even if its secret, gives the companies the
opportunity to account for it in their own planning. The move by certain U.S.
companies to place subsidiaries in foreign ownership to resist requests by the U.S.
government presents an interesting twist on this idea. In shifting the balance back
to increased protections for U.S. companies, this legislation would change the
incentives so that claiming U.S. law would have operational advantages in
giving companies uniformity of law for all their data. This would also encourage the
use of a single choice of law for all data governed by a companythat of the
nationality of incorporationrather than encouraging a choice of law patchwork to
govern the data as it flows around the world. Finally, some foreign multinational
companies operating in the U.S. and abroad may argue that this is inconsistent with
principles that we treat all companies operating in the U.S. the same way for
purposes of law. While that would remain true under this proposal, it would create a
difference in how the U.S. treats U.S. companies operating abroad compared to how
it treats foreign companies abroad. But stretching the U.S. Constitution to foreign
companies abroad is to stretch the document too far. If, on the other hand, those
companies see advantage in changing their nationality to U.S. in order to claim
protections of those laws, then that is the corporate version of the kind of
immigration patterns that America has seen since its founding.
Medina Solves
The plan solves declassification and the sunset clause
legitimizes the courts.
Medine 2014 David Medine, chairman of PCLOB, 2/4/2014,
RECOMMENDATIONS TO REFORM FOREIGN INTELLIGENCE PROGRAMS,
https://www.pclob.gov/library/Medine-Testimony-20140204House_Judiciary_Comm.pdf
Congress should enact legislation to expand the opportunities
for appellate review of FISC decisions by the Foreign Intelligence Surveillance Court of Review, and for
review of those decisions by the Supreme Court of the United States. Providing for greater appellate review of
rulings by the FISC and by its companion appellate court , the Foreign Intelligence Surveillance Court
of Review (FISCR), will strengthen the integrity of judicial review under FISA . Providing a role for
Recommendation 4:
the Special Advocate in seeking that appellate review will further increase public confidence in the integrity of the process.
initial applications or in compliance reviews. In addition, the FISC and the FISCR should develop procedures to facilitate amicus
participation by third parties in cases involving questions that are of broad public interest, where it is feasible to do so consistent
the government
should create and release with minimal redactions declassified versions of new
decisions, orders and opinions by the FISC and FISCR in cases involving novel interpretations of FISA or
other significant questions of law, technology or compliance. FISC judges should continue their recent
practice of drafting opinions in cases involving novel issues and other significant
decisions in the expectation that declassified versions will be released to the public .
with national security. Recommendation 6: To the maximum extent consistent with national security,
The government should promptly create and release declassified versions of these FISC opinions. Recommendation 7: Regarding
China Add On
Squo surveillance policy allows China to justify protectionist
measures which intensifies on going US-China tensions
Castro and McQuinn 15 (Daniel, vice President of the Information Technology
and Innovation Foundation and Director of the Center for Data Innovation, Alan,
Beyond the USA Freedom Act: How U.S. Surveillance Still Subverts U.S.
Competitiveness, June 2015, http://www2.itif.org/2015-beyond-usa-freedomact.pdf)
Protectionist policies in China have further strained the U.S. tech industry. In January
2015, the Chinese government adopted new regulations that forced companies that
sold equipment to Chinese banks to turn over secret source code, submit to
aggressive audits, and build encryption keys into their products.38 While ostensibly
an attempt to strengthen cybersecurity in critical Chinese industries, many western
tech companies saw these policies as a shot across the bow trying to force them out
of Chinas markets. After all, the Chinese government had already launched a deIOE movementIOE stands for IBM, Oracle and EMC to convince its state-owned
banks to stop buying from these U.S. tech giants. 39 To be sure, the Chinese
government recently halted this policy under U.S. pressure.40 However, the halted
policy can be seen as a part of a larger clash between China and the United States
over trade and cybersecurity. Indeed, these proposed barriers were in part a quid
pro quo from China, after the United States barred Huawei, a major Chinese
computer maker, from selling its products in the United States due to the fear that
this equipment had back doors for the Chinese government.41 Since the Snowden
revelations essentially gave them cover, Chinese lawmakers have openly called for
the use of domestic tech products over foreign goods both to boost the Chinese
economy and in response to U.S. surveillance tactics. This system of retaliation has
not only led to a degradation of business interests for U.S. tech companies in China,
but also disrupted the dialogue between the U.S. government and China on
cybersecurity issues.42
Competitiveness/Econ Add On
Direct correlation with sales lossforeign companies have
made US surveillance a centerpiece of their sales strategy
turns away corporate and individual customers
Castro and McQuinn 15 (Daniel, vice President of the Information Technology
and Innovation Foundation and Director of the Center for Data Innovation, Alan,
Beyond the USA Freedom Act: How U.S. Surveillance Still Subverts U.S.
Competitiveness, June 2015, http://www2.itif.org/2015-beyond-usa-freedomact.pdf)
At the same time, foreign companies have made the U.S. digital surveillance policy
a centerpiece of their own effective marketing strategy. Some European companies
have begun to highlight where their digital services are hosted as an alternative to
U.S. companies. German cloud companies like Hortnetsecurity bill themselves as
Cloud Services: Made in Germany, while French companies like Cloudwatt have
joined the Sovereign Cloud, a service advertised as resistant to NSA spying. 23 In
another example, F-Secure, the European online cloud storage company whose
service resembles that of Dropbox, has leveraged government surveillance into a
sales pitch. Based out of Finland, FSecure has made the promise that it will never
share an individuals data with other companies or governments. As a result, FSecure signed up over one million users within its first 9 months.24 Similarly, the
French telecommunications company Orange has also leveraged the perceived
belief that European companies protect privacy better than U.S. alternatives to
make deeper inroads into European markets. 25
customers could certainly decide to switch their data providers for greater privacy
protection. Simply put, the reputational harm had a direct impact on
American companies competitivenesssome estimate that it has cost U.S.
tech firms $180 billion thus far.12 Defenders of the programs may argue that the
Snowden allegations are overblown or that foreign companies are just using the
revelations for their own protectionist purposes. But it doesnt matter if the
allegations are actually true because the global public believes them to be true, and
they are therefore real in their consequences. In many ways, the Snowden
revelations have created a sense of betrayal among American companies. Some
had been providing information to the NSA through existing legislative means
either under Section 215 of the USA Patriot Act,13 or under Section 702 of the FISA
Amendments Act (FAA).14 It was unsettling to read stories that, outside of this
statutorily compelled cooperation, the government had been getting access to huge
amounts of their data in other unauthorized ways. As one tech employee said, the
back door makes a mockery of the front door.
Cloud Computing
But expansion isnt possible because American businesses look
like pawns of the USFGspecifically undermines cloud
computing and mergers and acquisitions
Sensenbrenner 13 (Jim, chair of the House Judiciary Subcommittee on Crime,
Terrorism, Homeland Security and Investigations, The NSA overreach poses a
serious threat to our economy, November 20 2013,
http://www.theguardian.com/commentisfree/2013/nov/20/jim-sensenbrenner-nsaoverreach-hurts-business)
The overreach by the National Security Agency (NSA) does more than infringe on
American civil liberties. It poses a serious threat to our economic vitality. Reports
from the business community are clear: indiscriminate collection of data by the NSA
damages American companies' growth, credibility, competitive advantage and
bottom line. US companies seeking to expand to lucrative markets in Europe and
Asia will find regulatory environments much less receptive to mergers and
acquisitions because of NSA programs. German regulatory officials have made it
clear, for instance, that AT&T, a massive American telecommunications company
that provided customer telephone numbers to the NSA as ordered by the Foreign
Intelligence Surveillance Court (known as the Fisa court), would undergo intense
scrutiny to ensure it complies with German privacy laws before it can acquire a
German telecommunications company. This mandate would certainly impede efforts
to expand its presence in the region. Of course, US tech companies do not exist in a
vacuum, free from competition. Companies like Google, which exhibit clear
dominance in the United States, compete intensely with foreign competitors around
the world. American businesses will lose considerable market share if foreign
competitors and regulators paint them as pawns of the US intelligence
community. Cisco Systems warned that its revenues could fall by as much as 10%
because of the level of uncertainty or concerns engendered by NSA operations.
Cisco saw its new orders fall by 12% in the developing world, 25% in Brazil and 30%
in Russia. This is in contrast to the 8% growth Cisco saw in the previous quarter. The
cloud computing industry will also suffer. Since many industries rely heavily on
this technology, any disruption would ripple across all segments of the national
economy. According to the Information Technology and Innovation Foundation, the
US cloud computing industry could lose between $22 and $35bn (pdf) over the next
three years because of the NSA's overreach. And smaller cloud service providers
that partner with U.S. companies have already cancelled contracts.
Terror Add On
authorizations under FISA.132 In the first eighteen months after 9/ 11, the attorney general issued more than 170
emergency authorizations.133 Furthermore, the FISC rejected and modified more FISA warrants in
2003 and 2004 than even before in its history . The FISA judges modified 179 of the 5645 requests for
court-ordered surveillance and rejected or deferred at least six [warrant requests] the first outright rejections in the courts
modified still shows much deference to the executive), improper surveillance requests. Regardless, no matter how one interprets the
may have been based on a belief that the substantive probable cause standard was too demanding, or the TSP was preferred in
order to simply bypass the procedural requirements of FISA in seeking a warrant. The reality may be a little of both. Although
Gonzales stated in 2005 that the TSP required the Bush administration have a reasonable basis for believing that one party to the
the same as probable cause under the Fourth Amendment,138 reports indicate that General Hayden stated that the Bush
administration had adopted a reasonable suspicion standard in applying the TSP because the probable cause standard in FISA was
too onerous.139 Complicating matters more, in 2002, a senator tried to change the probable cause standard to reasonable
suspicion for non-US persons under FISA, but the Justice Department did not support the change, arguing that the probable cause
standard was not an obstacle to effective use of FISA and that the change to reasonable suspicion would probably be
unconstitutional.140 Such a revelation is especially troubling given General Haydens statement regarding adopting reasonable
suspicion as the TSP standard. In essence,
John Yoo, because FISA assumes that the government already has [probable cause] to believe that a target is the agent of the
foreign power before it even asks for a warrant, FISA works well when the foreign agents are easy to detect like foreign embassy,
Al Qaeda poses
a diferent challenge, however; its members do not work for embassies
and are not part of any one nation. Yoos claims are also supported by former federal prosecutor Andrew
McCarthy,143 and Seventh Circuit appellate judge Richard Posner.144 As McCarthy explains, To have probable-cause
on a target is to know already that he is dangerous. Thats too late. Todays
challenge is to discover the unknown Mohamed Atta in our midst, something that
cant be done unless surveillance begins whenever it is reasonable to suspect a
foreign operative.145 As Yoo describes, counterterrorism agencies must search for clues among millions of potentially
officials working for a hostile nation, or a Soviet KGB agent operating undercover as a diplomat.142
innocent connections, communications, and links.146 Judge Posner observes that innocent people may not even be aware that
The success of
constitutional courts is closely tied to the success of constitutional
democracy in the region. Constitutional courts are often called upon to decide on a countrys
political insurance for opposition parties and symbolizing the end of a period of authoritarian rule.
most pressing political issues, including questions about electoral laws and results, regulating the activities of political parties,
constitutional court
appointment procedures can be designed to promote both judicial independence
and judicial accountability to a democratically elected government . The fact that
process determines who will interpret the constitution. This report investigates how
constitutional courts cannot avoid adjudicating disputes with partisan dimensions logically suggests that political actors should play
a role in selecting constitutional court judges. Involving a wide range of political actors in the appointments process fosters a broad
sense of political investment in the court, so that all actors have an incentive to continue supporting the court even when they are
on the losing side of its decisions. Another reason to involve a broad variety of political actors in the appointment process is that
although judges strive to interpret the law fairly and issue impartial decisions, they are only human, and a judges political ideology
will naturally play some role in how he or she views the law. The appointments process should be designed to strike an appropriate
balance between the constitutional courts independence (insulating the court from political interference) and its need to be
responsive to the democratic society in which it operates. This report refers to this balance as relative judicial independence. In the
protected the interests of the executive or the small group of elites that formed the court. Even in the midst of the Arab Spring,
many of the newly formed constitutional courts in the region continue to give the executive significant, or even total, control over
court appointments.
Few people not even the absolute rulers who still cling to power in some places would openly
argue against democracy as a worthy goal. And people bristle at any suggestion
that the region's culture is somehow at odds with freedom. But with the most
populous Arab nation having stumbled so badly in its first attempt, there is now an
audience for those saying total democracy must grow from the ground up, needs
time to evolve, and need not be the same everywhere. "Democracy is not a matter
of principle or faith for most people" in the region, said political scientist Shadi Hamid, director of research at the Brookings Doha Center. " It
is something they believe in to the extent that it brings good results. ... If
democracy does not bring those things, then people lose faith in the
democratic process."
rethink, subtle but persistent, are starting to be felt.
competition, which more often than not promotes similar international conduct for governments. There has long
been controversy about whether democracy enhances economic development. The
dramatic growth of China certainly challenges this notion. Still, history will likely show that democracy
yields the most prosperity. Notwithstanding the global financial turbulence of the past three years,
democracys elements facilitate long-term economic growth. These elements
include above all freedom of expression and learning to promote innovation, and rule of law to foster
predictability for investors and stop corruption from stunting growth. It is for that reason that the UN Development
Programme (UNDP) and the 2002 UN Financing for Development Conference in Monterey, Mexico, embraced good governance as
opportunity to shine as assets in a countrys economy. Democracys support for pluralism prevents human assetsincluding
Indeed, a shortage of
economic opportunities and outlets for grievances has contributed
significantly to the ongoing upheaval in the Middle East. Pluralism is also
precisely what is needed to stop violent extremism from wreaking havoc
on the world. Evolving U.S. Policy To say there are major interests in democracys enlargementthat central concept
religious and ethnic minorities, women, and migrantsfrom being squandered.
in both national security strategy blueprints of the Clinton presidencydoes not settle what role the United States should play and
what policy tools are appropriate. These are the questions not of why but of how. A look at waves of U.S. policy since World War II
West European democracies, and NATO was a bulwark within which Italy, West Germany, Portugal, and Spain democratized. Later,
after the Cold War, the twin institutions of NATO and an integrated Europe together created powerful incentives for emerging East
European democracies to join Western multilateral institutions. Cold War competition with the Soviet Union, however, frequently led
the United States to support illiberal governments. (President Franklin D. Roosevelts revealing quip about Nicaraguan dictator
Anastasio SomozaHe may be a bastard, but hes our bastardtoo often became U.S. policy during the Cold War years.)
Eventually, a consensus emerged in the 1980sarguably President Ronald Reagans greatest legacythat the United States had
strategic interests in urging its autocratic Latin American and East Asian allies toward democracy. And so, in the 1980s, the United
States supported land reforms in El Salvador that were deeply unpopular among ruling elites; facilitated the departure of General
Augusto Pinochet as Chiles leader; and pushed Taiwan, South Korea, and the Philippines in the direction of veritable electoral
democracy. After 9/11, President George W.
strategic priority. This apt aim, however, was undermined by several factors : the association of
democracy promotion with military intervention in Iraq (which did not yield democracy with ease); the use of harsh counterterrorism
measures that undercut the symbolism of freedom; the tendency to flinch when likely winners of elections were worrisome (such as
The
protests sweeping the Middle East in early 2011, which have so far caused
the ouster of President Zine El Abidine Ben Ali of Tunisia and rocked the government
of President Hosni Mubarak in Egypt, are now confronting President Barack
Obama with a familiar challenge. In Egypt, the United States appears to face a
classic dilemma: how to handle the potential demise of a friendly autocrat in a
strategically important country. On the one hand, President Obama is under pressure to
offer more vocal support to those demanding democracy on the streets of Cairo and
call for an early change of leadership. On the other, many argue that President Mubarak has protected
in the Palestinian territories); and the failure to meet democracy rhetoric with action in places like Egypt and Pakistan.
American interests in the Middle East for thirty years, and there is no guarantee that a new democratic government in Egypt would
do the same if the Islamist Muslim Brotherhood should be elected.
***2AC Blocks***
T Surveillance
Defense of publication
conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the
application; (3) the identity, if known, or a description of the target of the electronic surveillance; (4) a statement of the facts and
circumstances relied upon by The applicant to justify his belief that (A) the target of the electronic surveillance is a foreign power
or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used,
or is about to be used, by a foreign power or an agent of a foreign power; (5) a statement of the proposed minimization
procedures; (6) a detailed description of the nature of the information sought and the type of communications or activities to be
subjected to the surveillance; (7) a certification or certifications by the Assistant to the President for National Security Affairs or an
executive branch official or officials designated by the President from among those executive officers employed in the area of
national security or defense and appointed by the President with the advice and consent of the Senate (A) that the certifying
official deems the information sought to be foreign intelligence information; (B) that the purpose of the surveillance is to obtain
foreign intelligence information; (C) that such information cannot reasonably be obtained by normal investigative techniques; (D)
that designates the type of foreign intelligence information being sought according to the categories described in section 101 (e);
and (E) including a statement of the basis for the certification that (i) the information sought is the type of foreign intelligence
information designated; and (ii) such information cannot reasonably be obtained by normal investigative techniques; (8) a
statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the
surveillance: (9) a statement of the facts concerning all previous applications that have been made to any judge under this title
involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10)
a statement of the period of time for which the electronic surveillance is required
to be maintained, and if the nature of the intelligence gathering is such that
the approval of the use of electronic surveillance under this title should
not automatically terminate when the described type of information has first been obtained, a
description of facts supporting the belief that additional information of
the same type will be obtained thereafter ; and (11) whenever more than one electronic,
mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of
the devices involved and what minimization procedures apply to information acquired by each device.
Turkey DA
and the AKP as follows: Demonstrating that coalition governments are less stable and effective is what Erdogan may now be
hoping for. Some Turkish voters may already be feeling buyers (or sellers) remorse. One post-election poll suggested that the AKP
[Justice and Development Party] would increase its vote share from 41% to 45% if snap elections were held. However, what Hamid
says is totally incorrect as the one post-election poll he cited was held by a staunchly pro-AKP company. Having not much
If these nonTurkish observers were to be true Turkey experts or patient enough to wait for the
findings of credible pollsters, they would reach diferent and better
analyses. For instance, one of the most credible pollsters in Turkey, Metropoll, shared its findings on June 26. According to
the survey, confidence in President Erdogan is at its lowest level ever. This poll,
which was conducted in the aftermath of the June 7 elections, indicates that the public confidence in Erdogan
stands at 37.5%. This figure was as high as 71.7% in December 2011 and around
49% in 2014, right after the March 30 local elections. According to the same survey, 50.6% of the electorate
put the blame for the AKPs election failure on Erdogan , while 11% blamed Ahmet Davutoglu, the
credibility, its findings allegedly based on a June 8 poll did not get much attention from the Turkish public.
partys chairman and prime minister. In an interview with influential daily Hurriyet, Ozer Sencer, the director of the Metropoll
Strategic and Social Research Center, disclosed the findings of another survey that the center conducted in the post-election period,
a possible re-election would not yield much different results than those
of the June 7 elections. Sencer, whose polling company had the most accurate forecast of the June 7 elections, said in
case of a possible re-run elections the result would be as follows: 41.6% for the AKP; 25.1%
which indicates that
for the Republican People's Party; 16.2% for the Nationalist Action Party; and 12.9% for the Peoples Democratic Party. These figures
suggest very minimal deviation from the June 7 elections. Erdogan is banking on
the failure of the parties to form a coalition government within the legal period. This
would lead to a crisis, with snap elections to likely be held in November. This
scenario presumes that Erdogan can make a comeback in order to push his agenda of an
executive presidency once again; he would ask for a safe AKP majority, saying that otherwise the country would enter
an insurmountable political and economical crisis. Seemingly, Turkey may end up with snap elections, as
the parties elected may be unable to form a government because of their incapacity
and democratic immaturity.
the allies in the infamous Gallipoli campaign, rose to power in World War I's tumultuous aftermath. He became the first president of
the Republic of Turkey and took on the name Ataturk ("Father of the Turks"), which parliament reserved for him. His ubiquitous
image dominates the landscape; his mausoleum and memorial cover an entire city block in the capital of Ankara. The only
comparable personality cult which I've seen is in North Korea. Ataturk was no self-effacing republican. He ruthlessly modernized,
enforced secularism, and constructed a one-party state. After his death there were elections but the politicians didn't really rule. The
military staged three hard coups, the last in 1980, and a softer putsch in 1997. The generals executed and jailed opponents. Even
criticism of Ataturk and "Kemalism" resulted in prosecution. Academics and journalists risked their jobs. Ruthless repression of the
Kurds (which Ankara denied were a separate people) led to a 30-year war which cost 40,000 lives. In 1974 Turkey invaded Cyprus,
seized nearly 40 percent of the island, and ethnically cleansed the occupied zone of Greeks; the division of the island lives on four
decades later. Religious minorities, such as the Armenian and Greek Orthodox, were marginalized. The military attempted to
suppress even moderate Islamic sentiments. As Istanbul mayor Erdogan read an Islamist poem in public, for which he was ousted
more business-friendly environment, moved towards Europe, and pushed social reforms. A few years ago, a female journalist told
me that the mildly-Islamic AKP paid more attention to problems of domestic violence than had previous nationalist-secularist
regimes. Author Graham Fuller argued that the AKP's first decade was "extraordinary" and "may have been the best government
Turkey has ever had since it adopted democratic rule in the 1950s." Turkey grew wealthier and more influential, and the Turkish
when Fuller dates Erdogan's shift. That year the AKP purged more moderate members. By then several more liberal Turks told me
While switching positions, he constructed a $615 million presidential palace, four times the size of Versailles. No Sultan lived so
fallen, the current account deficit is the biggest in the OECD, stock values have declined, and the lira has lost some 40 percent of its
value compared to the dollar since 2013. Growth greatly increased opportunities for corruption .
Charges of misconduct reached the cabinet and Erdogan, as prosecutors began investigating. After stealth recordings of damning
conversations leaked to the public, Erdogan blamed an earlier ally, cleric Fethullah Gulen, and purged police, prosecutors and
judges. The charges were dropped. Although elections remain free,
middling. Overall Freedom House rated Turkey as partly free. The organization downgraded Ankara in its latest report because
of the government's "more pronounced political interference in anticorruption mechanisms and judicial processes, and greater
freedom of assembly and expression, uses excessive force in breaking up protests, makes arbitrary arrests, politicizes the judiciary,
maintains impunity for security forces despite claims of torture and unlawful killings, and provides inadequate protection for
vulnerable populations. Despite some reforms, noted State, "The penal code and antiterror law retain multiple articles that restrict
freedom of expression, the press, and the internet." After battling against misuse of security laws, including against himself, Erdogan
deployed the legislation against military officers and civilians. The government claimed improbably vast conspiracies, most notably
the Diyarbakir KCK (Kurdish), Ergenekon (nationalist), and Sledgehammer (military) cases. Roughly 500 people were arrested and
300 charged in the Ergenekon case alone. Although some of the convictions were ultimately overturned, many defendants spent
roughly 150 awaited trial. In its latest media freedom report, Freedom House ranked Turkey as "not free" and 142 out of 199
countries. The group noted that press freedom continued to fall "as the government moved more aggressively to close the space for
dissent." Turkey registered the ninth biggest drop worldwide from 2010 to 2014. Of course, officials denied any impropriety and
regime supporters insisted to me that the media was conspiring with the military. However, the New Yorker's Dexter Filkins cited
journalists lost their jobs. Affirmed Freedom House: "Government harassment of journalists is also common, leading to self-
month a government prosecutor sought to ban two television stations associated with Fethullah Gulen. Businessmen privately admit
that they fear political retaliation. The dearth of coverage of the 2013 protests and disproportionate attention given the supposedly
nonpartisan President Erdogan campaigning for the AKP in the recent election demonstrate government tactics at work. After
taming the traditional press the Erdogan government began targeting internet freedoms, with, noted Freedom House, "an overall
strategy of demonizing and discrediting social media." Although half of Turks are online, Freedom House rated Turkey as only partly
free. People face significant obstacles to access, limits on content, and restrictions on use. In recent months the government has
blocked access to Soundcloud, Twitter, Vimeo and YouTube as well as thousands of websites, arrested dozens of individuals for
comments on social media, prosecuted bloggers and websites for postings, and mandated access to user information through ISPs.
Those charged include a former Miss Turkey and 16-year-old student. Government critics also suffer from organized online attacks,
including denial-of-service assaults on newspapers. While relaxing unfair restrictions on Muslims -- such as the ban on women
wearing headscarves -- the government has yet to address the lack of legal protection for religious worship and practice by every
faith. Indeed, individuals critical of Islam or the Prophet Mohammed face prosecution under the blasphemy statute. Religious
minorities remain particularly vulnerable to arbitrary state decisions. For instance, the government continues to interfere with
internal operation of the Armenian and Greek Orthodox churches. Ankara has returned a number of confiscated religious properties,
but the Greek Orthodox Halki Seminary, remains closed despite government promises to act. Jews can worship freely but, warned
the latest report of the U.S. Commission on International Religious Freedom, "they remain concerned about rising anti-Semitism in
society and in the media and occasional derogatory comments by government officials." One Turkish Jew hoping to emigrate told the
In short, Turkey is
headed in a dangerous direction, toward a corrupt, authoritarian state. The
country needs an Arab Spring of sorts , but within the democratic process. An electoral revolution,
not a street putsch. The use of the rule of law to end an illiberal government. The ballot box
must make political power accountable. On Sunday that process began. One article last
week pessimistically warned: "This might be Turkey's last election." However, the AKP received less than 41
percent of the vote, down from roughly 50 percent four years ago (and 52 percent in last
year's presidential contest). The ruling party fell 18 seats short of a majority in the 550-member Grand
National Assembly. None of the opposition parties is a likely coalition partner , though
New York Times: "last year the level of hate speech in Turkey reached an unnerving level."
the lure of power might prove attractive. The Republican People's Party (CHP) upholds the Kemalist vision and is nationalist and
social democratic. More extreme is the Nationalist Action Party (MHP), described as "a stone's throw from fascist" by Aaron Stein of
the RUSI think tank. Making a dramatic entrance in fourth place was the People's Democratic Party (HDP), a liberal-left Kurdishbased coalition which came together less than three years ago. But these parties also are unlikely to form a countervailing coalition.
The AKP could establish a minority ministry and dare its opponents to oust it or trigger early elections. In any case, Prime Minister
Ahmet Davutoglu may not survive, despite claiming victory and calling the AKP the "backbone of Turkey." Certainly
Functionalism and Neo-Functionalism. However, this result is not certain. Why? Because whether or not this step towards regional
integration will occur depend on the structural changes which will take place on the institutional level in particular - the level at
the context of their power games, have no political intention of undertaking such structural changes which will eventually lead to
which the absorption capacity can be constructed. Otherwise, the EU can not proceed towards normal and successful
and institutional power within the Institutions of the EU. If this occurs Turkey will play a regional or even global role of high
Muslim
European citizens will turn to Turkey, as a powerful member state of the EU, for protection and
promotion of their interests. As Muslims, they feel close to Ankara or Istanbul, which will be turned
into their second unofficial capital of the EU, after the official one, i.e. Brussels. They will
have more confidence in Turkey unless their interests impose them a different reaction. However, it is not
importance (see Chapter 4.9.2 and 4.10). 3) A centre of attraction for Muslims living in Europe and elsewhere.
certain whether the other European countries will feel comfortable with such a development.
Turkey No Accession
Human rights violations, Cyprus and international politics
mean that Turkey will never join the EU
Riegert 2013 Bernd Riegert, Deutsche Welle reporter specializing in European
policy, 5/11/2013, Turkey stumbles over Cyprus on way to EU,
http://www.dw.com/en/turkey-stumbles-over-cyprus-on-way-to-eu/a-17204257
The EU is restarting negotiations with Turkey over membership , but only halfheartedly. Turkish occupation of part of the island of Cyprus remains the biggest obstacle. But
Turkey's human rights record doesn't help. Talks between the European Union and Turkey on Tuesday
(05.11.2013), where negotiations over Turkish accession were resumed after a gap of
three years, were set to last just one hour: a couple of speeches, a photo and a press conference. It's a
symbolic meeting where little of substance was to be discussed. The topic of the meeting, the consideration of a new "chapter" in
accession negotiations, is scarcely controversial. It deals with regional policy and the possibility of EU support for rural areas if
EU
Enlargement Commissioner Stefan Fle has issued a positive report on Turkish progress, although he
recognized deficits in the fields of freedom of expression and religion and the
independence of the judiciary. But the violent suppression of demonstrations in May and June
led some of the foreign ministers to refuse to take up discussions on more difficult
issues, such as human rights or the judicial system . Fle has advised member states to withdraw their
Turkey should become a member. This is the 14th of a grand total of 35 chapters which have to be discussed.
objections. "If we want Turkey to address issues of fundamental freedoms and rights, let's use the most effective instrument we
Cyprus was due to join the EU, a referendum over a reunification plan drawn up by the United Nations was defeated when the Greek
Cypriots of the south voted against it.
Oomen-Ruijten, acts as a total brake on the negotiations . Although there are talks between the two
ethnic groups in North and South Cyprus, she thinks Turkey ought to put more effort into the process. North-South mediation
Secretary-General of the United Nations Ban Ki-Moon, who has been mediating the conflict for years, said last
Friday that he was hopeful the two sides would soon put aside their differences of
opinion. A new round of talks was to have begun by the end of the October, but negotiators couldn't agree on a joint statement.
This week, the UN is planning to continue its efforts to bring the two sides together. Political scientist Hubert Faustmann, who heads
the German Friedrich Ebert political foundation in the Cypriot capital Nicosia, sees multifarious interests at work.
Turkey has
little reason to give way, but "it could relatively quickly move things forward a lot if it wanted to." It's also not
clear where things are going in relations between the EU and Turkey. "But it's clear that the Cyprus problem is a
significant hurdle in the whole story, " he said. Conditions unfulfilled Before leaving for the
talks in Brussels, the Turkish minister for European affairs, Egemen Bagis, wrote in the Turkish newspaper "Hrriyet" that Turkey
had been waiting longer for membership in the EU than any other country . He saw the
new chapter as a "late, but positive step," and hoped "that the senseless political blockade of other chapters will be lifted as soon as
possible." As far as the EU is concerned, Turkey itself could make a contribution to this process if it
were at least to recognize Cyprus indirectly. In the so-called Ankara Protocol, Turkey committed itself to allowing Cypriot ships and
planes into its country. So far, it has not done so. On Monday, Cypriot's interior minister, Socratis Hasikos, told the "Cyprus Mail"
the government did not want the talks between the two groups on the island to
break down. That meant they had to be very careful - and thoroughly prepared. He called on Turkey to show
more commitment. The EU, he argued, should also play a role. 'Full membership
impossible' All this does not meet with the approval of the German conservative
that
member of European Parliament, Markus Ferber. He told "Forbes" magazine that he wanted Chancellor Angela
Merkel to change direction. Up to now, the German government has always supported the talks,
but pointed out that they did not necessarily have to end with full Turkish
membership. Ferber says the government should cease to do anything which could
move towards accession: Turkey, he says, cannot become a full member. The
German Left party also opposes the continuation of talks , but for different reasons. Sevim Dagdelen,
a member of German parliament whose parents immigrated to Germany from Turkey, says, " There's a fatal
impression that the government of Prime Minister Erdogan is being rewarded for its
policy of moving towards a repressive Islamist state ." No new chapters should be
opened, Dagdelen says, so long as police violence and serious human rights abuses
continue.
ThumperGreece
Negotiations over Greek debt are failing now that collapses
the EU
Jones 2/9 Gavin Jones, journalist for Reuters, 2/9/15, Greek finance minister says
euro will collapse if Greece exits, http://www.reuters.com/article/2015/02/09/useurozone-greece-varoufakis-idUSKBN0LC0QO20150209
If Greece is forced out of the euro zone, other countries will inevitably follow and the
currency bloc will collapse, Greek Finance Minister Yanis Varoufakis said on Sunday, in comments which drew a
rebuke from Italy. Greece's new leftist government is trying to re-negotiate its debt
repayments and has begun to roll back austerity policies agreed with its international
creditors. In an interview with Italian state television network RAI, Varoufakis said Greece's debt problems must
be solved as part of a rejection of austerity policies for the euro zone as a whole . He
called for a massive "new deal" investment program funded by the European Investment Bank. "The euro is fragile,
it's like building a castle of cards, if you take out the Greek card the others
will collapse." Varoufakis said according to an Italian transcript of the interview released by RAI ahead of broadcast.
The euro zone faces a risk of fragmentation and "de-construction" unless it
faces up to the fact that Greece, and not only Greece, is unable to pay back its debt
under the current terms, Varoufakis said. "I would warn anyone who is considering strategically amputating Greece
from Europe because this is very dangerous," he said. "Who will be next after us? Portugal? What will happen when Italy discovers it
is impossible to remain inside the straitjacket of austerity?" Varoufakis and his
friendly words but no support for debt re-negotiation from their Italian counterparts when they visited Rome last
week. But Varoufakis said things were different behind the scenes. "Italian officials, I can't tell you from which big institution,
approached me to tell me they backed us but they can't tell the truth because Italy also risks bankruptcy and they are afraid of the
reaction from Germany," he said. "Let's face it, Italy's debt situation is unsustainable ," he added, a comment
that drew a sharp response from Italian Economy Minister Pier Carlo Padoan, who said in a tweet that Italy's debt was "solid and
sustainable."
AT EU War
No EU conflict political will and mindset shift
Bacevich 2010 Andrew Bacevich, professor of international relations, 2/11/10,
Let Europe be Europe, http://foreignpolicy.com/2010/02/11/let-europe-be-europe/
Over the course of the disastrous 20th century, inhabitants of the liberal
democratic world in ever-increasing numbers reached this conclusion: War
doesnt pay and usually doesnt work. As recounted by historian James J. Sheehan in his excellent book,
Where Have All the Soldiers Gone?, the countries possessing the greatest capability to
employ force to further their political aims lost their enthusiasm for doing
so . Over time, they turned away from war. Of course, there were lingering exceptions. The United States and Israel have
remained adamant in their determination to harness war and demonstrate its utility. Europe, however, is another
matter. By the dawn of this century, Europeans had long since lost their stomach for
battle . The change was not simply political. It was profoundly cultural.
The cradle of Western civilization and incubator of ambitions that
drenched the contemporary age in blood had become thoroughly
debellicized. As a consequence, however willing they are to spend money updating military museums or
maintaining war memorials, present-day Europeans have become altogether stingy when it
comes to raising and equipping fighting armies. This pacification of
Europe is quite likely to prove irreversible . Yet even if reigniting an affinity for war among the
people of, say, Germany and France were possible, why would any sane person even try? Why not
allow Europeans to busy themselves with their never-ending European unification project? It keeps them out of mischief.
Elections
Disad non-unique: Surveillance bills have already been
debated and passed in Congress thats Steinhauer and
Weisman
No link Plan popular with the public thats Steinhauer and
Weisman
Politics
Disad non-unique: Surveillance bills have already been
debated and passed in Congress thats Steinhauer and
Weisman
No link - bipartisan support for the plan theres momentum
for privacy now thats Steinhauer and Weisman
Further reform is key plan is popular
ACLU 6/6 American Civil Liberties Union, 6/6/15, Whats Next For Surveillance
Reform After The USA Freedom Act, http://www.mintpressnews.com/whats-next-forsurveillance-reform-after-the-usa-freedom-act/206315/
To be clear, the bill that passed is not as strong as we wanted . It is markedly weaker than the
original version of the USA Freedom Act that the ACLU first supported in 2013, which itself left many serious surveillance abuses
we were a vocal
critic of its shortcomings and supported a sunset of the provisions in an
efort to advance more comprehensive reform. Notwithstanding this, however, it is very clear
that the USA Freedom Act is a historic step forward. On the road to its passage, pro-reform advocates beat back
efforts led by Senate Majority Leader Mitch McConnell (R-Ky.) to simply extend expiring Patriot Act
provisions. A week before the scheduled expiration, he failed to garner enough support for even a
one-day extension. Opposition came from many within his own party, with senator after senator taking the floor in
untouched. And while the ACLU was neutral on the version of USA Freedom that ultimately passed,
support of reforming surveillance laws. When gridlock resulted in a temporary sunset of the provisions, a majority of the Senate
(D-Wis.) and Sens. Patrick Leahy (D-Vt.) and Ron Wyden (D-Ore.), who were once lone voices expressing concern over the Patriot Act,
have now been joined by a broad coalition, including Rep. Jim Sensenbrenner (R-Ill.) and Sens. Mike Lee (R-Utah) and Al Franken (DMinn.), among others. For nearly two years, this coalition crafted and shepherded the USA Freedom Act through Congress, ignoring
a
new technologically savvy generation is increasingly concerned that unchecked
intelligence agencies threaten technological progress, the economy, and the global
free flow of ideas. They are overwhelmingly supportive of a new era in which
intelligence practices comport with Americas democratic values. The USA Freedom
Act, we hope, is only the beginning of this new era. The coalition that helped to advance the USA
Freedom Act must now work to advance additional reforms. This includes: Urging both the president and
Congress to rein in surveillance under Executive Order 12333 , which has been used
to collect information about millions of Americans absent any judicial process Reforming Section 702 of the
Foreign Intelligence Surveillance Act (set to expire in 2017), which allows the government to collect the
content of Americans communications with individuals abroad Reforming other authorities, such as
the administrative subpoena statutes, which have been used for bulk
collection in the past Further reforming the authorities addressed in the
USA Freedom Act, including Section 215, FISAs pen-register and trap-andtrace provisions, and national security letters Rejecting eforts to expand
surveillance through cybersecurity information-sharing legislation .
the calls to abandon surveillance reform in the face of ever more heated national security rhetoric around ISIS. At the same time,
Circumvention
Only statutory reform solves 12333 will circumvent the court/
self-discretion thats Patel
FISC is a rubber stamp now it has no legal authority to curtail
because of previous precedents de novo review solves
because it allows the court to create genuine review the
courts have the authority to check back the executive thats
HLRA
Terror DA
Information overload is occurring within US surveillance now
makes counterterror less efective
Mueller and Stewart 14 John Mueller, Department of Political Science Ohio
State University, Mark Stewart, Senior Fellow, Cato Institute, Secret without Reason
and Costly without Accomplishment: Questioning the National Security Agencys
Metadata Program, p. 10-12
Important in this have been increases in intelligence and policing as the
questing enterprise, central to which is the NSA, continues to be
expanded, searching for the needle by adding more and more hay. In the process,
information has been folded into a Threat Matrix, an itemized catalogue of
all the threatsor more accurately leadsneeding to be followed up . As Garrett Graff
explains, the government pursues upwards of 5,000 threats per day. 45 Impelled by what some have called
The 9/11 Commission Syndromean obsession with the career dangers in failing to connect the dots it is in no ones interest to cull the
threats because it was possible youd cull the wrong threat and end up, after the
next attack, at the green felt witness table before the next congressional inquiry. 46
Consequently, the Threat Matrix tracks all the unfolding terrorist plots and
intelligence rumors and is filled to the brim with whispers, rumors, and
vacuous, unconfirmed information.47 In result, claims that ordinarily wouldnt have
made it past the intake agent, claims that wouldnt even be written down weeks
earlier, suddenly became the subject of briefs to the President in the Oval Office.48 Graff supplies an example. One entry in the Threat
Matrix is crisply cited as a threat from the Philippines to attack the United States
unless blackmail money was paid. It turns out that this entry was based on an email that said, Dear America. I will attack you if you dont pay me
999999999999999999999999999999999999999999 dollars.
MUHAHAHA.49 If, aided by the Threat Matrix, the government pursues some 5000 threats or leads each day, and if each lead takes an average of a half a
week to investigate, the FBI has pursued some six million or more of them over the
years since 9/11a process that has led to, at the very most, a few
hundred prosecutions, most of them on quite minor charges.50 Moreover,
whatever the ratio of needle to hay, living with the Threat Matrix seems to take a
psychological toll on its daily readers. As Graff vividly describes the process, the Threat Matrix comes off
as a catalogue of horrors, as the daily looming prognoses of Armageddon, and as a seeming tidal wave of Islamic extremist anger that threatened to
unhinge American society, and it could become all-consuming and paralyzingas one reader puts it, Your mind comes to be dominated by the horrific consequences of lowprobability events.51 In essence, it is like being barricaded in an apartment and listening only to the police radio. Or one reader offers another comparison: Reading the Threat Matrix
De Novo PIC
Although previous scholarship has discussed the proper role of stare decisis in the context of unpublished opinions,7 which make
up around eighty percent of all United States courts of appeals opinions8 (and are usually publicly available despite their name),9
this Comment provides the first examination of the tenability of stare decisis as
applied to truly secret opinions like those of the FISC . Many have noted that stare decisis typically
comes with both costs and benefits. But, we argue, in the absence of publication these costs are
exacerbated and the benefits are substantially reduced . Therefore, without publication, stare decisis
becomes harder to justify and should be avoided when it comes to truly secret opinions of the type the FISA courts produce. Part I
provides general background on the FISA courts and examines when and how they generate binding precedent. Part II proceeds by
discussing the nature of stare decisis: its central role in creating judge-made law and its costs and justifications, particularly as
applied to secret opinions. We ultimately determine that FISA judges should either label an opinion as binding precedent and publish
it or mark the opinion as non-precedential and retain discretion not to publish it. Part III concludes with concrete recommendations
for implementing our suggestions in the FISA courts. I. PRECEDENT IN THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS A. The
Foreign Intelligence Surveillance Court The Foreign Intelligence Surveillance Act, enacted in 1978,10 sets up the Foreign
Intelligence Surveillance Court (FISC), a specialized Article III court with the power to hear and grant government requests for
of eleven Article III district court judges, selected by the Chief Justice of the United States.13 All applications are considered by a
single judge and cannot be reheard by another judge of the FISC except when the court sits en banc.14 FISA provides for both en
banc consideration and appeals to the Foreign Intelligence Surveillance Court of Review (Court of Review). En bancreview involves a
panel of all eleven FISC judges and must be ordered by a majority of the FISC judges based on a determination that (i) en banc
consideration is necessary to secure or maintain uniformity of the courts decisions; or (ii) the proceeding involves a question of
exceptional importance.15 According to public records, the FISC has sat en banc only once,16 but it is impossible to know how
many sittings and opinions remain secret. The Court of Review, which consists of three district or circuit judges also designated by
the Chief Justice, has issued only two public decisions.17 B. Stare Decisis and the FISA Courts In terms of its core function,
the
FISC is effectively a federal district court.18 The vast majority of its work involves a single judges
determinations of the legality of government requests to authorize surveillance or compel production. Although it is hard to be
certain without more publicly available information, FISC judges likely treat their opinions as non-precedential, as is standard
probably has the same discretion as federal courts of appeals to designate opinions as precedential and non-precedential; at least,
no statutory provision declares otherwise.23 The two public Court of Review opinions are published in redacted form in the Federal
II, we take up the task of determining whether the justifications for the doctrine of stare decisis support affording secret opinions of
Judges
power to bind future judges to the reasoning and interpretations of law advanced in
their opinions comes from the doctrine of stare decisis,27 Latin for to stand by
decided matters.28 Stare decisis can operate either horizontally, by binding other judges on the issuing court, or
vertically, by binding judges at lower levels of the judicial hierarchy.29 Stare decisis gives a panel of judges
the power to make law within any jurisdiction where they have horizontal or vertical
stare decisis authority, because judges in that jurisdiction will be obligated to
respect precedent even when they would otherwise be inclined to reason
differently. A. The Costs of Stare Decisis in the FISA Context The benefits of and justifications for stare decisis are discussed
this type binding precedential force. We conclude, ultimately, that they do not. II. STARE DECISIS AND SECRET LAW
in the next Part, but it is important to establish as an initial matter that stare decisis also involves serious costs, which are
Courts CP
Only statutory reform solves 12333 will circumvent the court
absent an increase in authority thats Patel
PCLOB
CP = Squo
The counterplan is the status quo FISC reforms have already
been proposed and were not implemented kills solvency
PCLOB 2015 Privacy and Civil Liberties Board, 1/29/15, Fact Sheet: PCLOB
Recommendations and Their Implementation,
https://www.pclob.gov/library/Recommendations_Assessment-FactSheet.pdf
the Privacy and Civil Liberties Board issued detailed reports on
two government intelligence surveillance programs . The first report addressed the NSAs bulk
In January and July of 2014,
collection of telephone calling records under Section 215 of the USA PATRIOT Act, as well as the operations of the Foreign
authorizes collection by the NSA, CIA, and FBI of the contents of communications of non-U.S. persons reasonably believed to be
all recommendations in the Boards Section 702 report and has made substantial progress toward implementing many of them,
while also accepting most of the recommendations in the Boards Section 215 report. Most recommendations directed at the
Administration are still in the process of being implemented, however, or have only been accepted in principle, without substantial
progress yet made toward their implementation. We note that only six months have elapsed since the release of the Section 702
involvement, but instead has continued the program, with modifications. At the same time, the Administration has supported
legislation, which has not yet been enacted, to create a new system for government access to telephone records under Section
Congress has not yet enacted legislation that would, consistent with
the Boards recommendation, reform the operations of the Foreign
Intelligence Surveillance Court. The Administration has made substantial progress in implementing some
215.
of the Boards recommendations regarding transparency. The Board has established a productive relationship with elements of
the Intelligence Community and looks forward to working constructively with them on the implementation of its recommendations.
SECTION 215 REPORT RECOMMENDATIONS Bulk Telephone Records Program 1 End the NSAs Bulk Telephone Records Program Not
Implemented (Legislation Proposed) 2 Immediately Add Additional Privacy Safeguards to the Bulk Telephone Records Program
2AC K Blocks
Expectation of Privacy