Civil Liberties Starter Set 1

Civil Liberties Starter Set
Table of Contents
##Introductory Issues...........................................................................................................5
Introduction to the Starter Set..........................................................................................5
Issue Introduction............................................................................................................6
Preparing for Your Practice Debates................................................................................7
Introductory Essay.........................................................................................................11
##Immigrant Detention Affirmative..................................................................................18
First Affirmative Constructive.......................................................................................18
Inherency: General Inherency Extensions.....................................................................32
Inherency: Answers to: The Courts Have Prohibited Detention Without Charge....34
Inherency: Patriot Act Allow Detention Without Charge.............................................36
INS Has Extensive Detention Without Charge Authority.............................................37
Inherency: No Congressional Oversight.......................................................................38
Advantage: Precedent for Future Rights Abuses..........................................................39
Advantage: Detention Threatens Core Liberty Interests..............................................40
Advantage: Fourth Amendment Violations................................................................41
Advantage: General Rights Extensions.........................................................................42
Advantage: Fourth Amendment Violations..................................................................43
Advantage: Answers to: Rights Dont Apply to Aliens..............................................46
Democracy Promotes Peace General..........................................................................48
Linearity More Democracy, Less War........................................................................49
Answers to: U.S. Predominance Is Responsible for Peace.......................................50
Answers to: Democratic Transitions Cause War -- General.....................................51
Answers to: Democracies Do Fight Wars.................................................................51
Answers to: Middle East Democracy Bad................................................................53
Advantage: Civil Liberties Violations Threaten Global Democracy............................54
Democracy Promotes Development 2AC Impact Module.........................................55
Democracy Promotes Development 2AC Impact Module.........................................56
Democracy Stops Terrorism 2AC Module.................................................................57
Democracy Solves Many Impacts.................................................................................58
Democracy Stops Democide..........................................................................................59
Add-On: Abuse in Detention Facilities.........................................................................61
International Law Add-On.............................................................................................62
Human Rights Add-On (2AC Modular)........................................................................63
Human Rights Add-On: Detention Without Charge Undermines Human Rights
Leadership......................................................................................................................65
Add-On: Racial Conflict................................................................................................66
Due Process Add-On: Detention Without Charge Threatens Due Process...................69
Due Process Add-On: Aliens Have Real Notice.......................................................71
Due Process Add-On: Aliens Entitled to Due Process..................................................72
Answers to: Illegals Dont Have Constitutional Protections.....................................73
Add-On: Racism...........................................................................................................74
Solvency: Should Require Probable Cause..................................................................75
DA Answers: Court Clog Answers................................................................................76
Foucault Answers...........................................................................................................77
States Counterplan Answers..........................................................................................78
##Immigrant Detention Negative......................................................................................79
Copyright 2005 Harvard Debate, Inc.

Table of Contents
Inherency Answers.........................................................................................................79
Rights Advantage Answers............................................................................................80
Rights Answers: General Takeout Extensions..............................................................82
Human Rights Leadership Ad-On Answers...................................................................84
Rights Bad: Frontline....................................................................................................85
Rights Solvency Answers..............................................................................................89
Solvency Answers: Ext: Just Charge With A Crime....................................................90
Answers to Politics Link Turns......................................................................................91
Democratization Triggers War.......................................................................................94
Democratization Triggers War.......................................................................................96
Answers to No War Between Democracies During the Cold War.............................97
Answers to: Popular Politics Means Democracies Dont Go to War........................99
Answers to: Democracies More Likely to Intervene...............................................101
Secret Evidence Answers.............................................................................................104
Answers to Politics Link Turns....................................................................................105
##Terrorism Disadvantage...............................................................................................107
Terrorism 1NC.............................................................................................................107
Immigration Link Extensions......................................................................................108
General Detention Link Extensions.............................................................................109
Answers to: We Can Deter Terrorists.......................................................................111
Nuclear Terrorism Threat.............................................................................................112
Al Qaeda Is A Nuclear Threat......................................................................................113
Terrorists Can Gain Access to Nuclear Material..........................................................114
Nuclear Material Vulnerable To Terrorist Theft...........................................................115
Nuclear Materials Are Not Secure...............................................................................116
Terrorists Will Get Nukes From States........................................................................118
Answers to: Terrorists Cant Make Nukes...............................................................119
Nuclear Terrorism Economy Impacts..........................................................................120
Answers to: Plan Increases Soft Power, Reducing Terrorism..................................121
2AC Answers...............................................................................................................122
2AC Answers (Cont)....................................................................................................123
2AC Answers (Cont)....................................................................................................125
1AR: Ext: Terrorists Not Detained.............................................................................126
1AR Extensions: Bioterrorism Take-Outs..................................................................127
Critiques of the DA......................................................................................................130
1AR Militarization of Terrorism Bad.......................................................................131
## Congress Counterplan.................................................................................................132
Congress Counterplan 1NC.........................................................................................132
Critical 2NC Extensions..............................................................................................137
Answers To: Need Courts To Protect Rights...........................................................139
Answers To: The Court Is De-Politicized...............................................................141
Answers To: Brown V. Board Proves Courts Cause Social Change.......................142
Permutation Answers...................................................................................................147
2ac Answers.................................................................................................................151
1ar Extensions: The Political Process Does Not Protect Minority Rights..................158
Extensions: Judicial Review Facilitates Populism......................................................161

Table of Contents
## Critical Legal Studies Critique...................................................................................164

Introduction to CLS.....................................................................................................164
Critical Legal Studies Kritik Shell...............................................................................165
Link: Rights................................................................................................................168
Links: Judicial Decisions............................................................................................169
Impacts: Judicial Power Is Bad...................................................................................170
Impacts: Capitalism Bad Scenario..............................................................................171
Internal Links: Rights Destroy Social Movements......................................................175
2NC: The Kritik Proves There Is No Solvency..........................................................176
AFF: General Rights Critique Answers.......................................................................177
Affirmative Answers To: No Solvency...................................................................181
Affirmative Rights Are Good......................................................................................183
Specific Rights Are Good............................................................................................185
Rule Of Law Is Good...................................................................................................188
Duncan Kennedy Answers...........................................................................................191
No Alternative: The Alternative Of The CLS Movement Is Bad.............................192
No Alternative: The Alternative Of Reject Rights Is Bad.......................................196
##Debriefing: Learning from Your Debate......................................................................199
Basic Debriefing..........................................................................................................199
Keep a List of Additional Blocks/Briefs You Need.....................................................200
Keep a List of Cards You Need...................................................................................201

Table of Contents
Blank page for indexing purposes

Preparing For Practice Debates
##Introductory Issues
Introduction to the Starter Set
One of the best ways to learn about a new topic is to jump right in with a practice debate.
The practice debate should not necessarily be on the best case on the topic, but rather a
case the invites debate about the core issues, including key disadvantages, counterplans,
and kritiks. The arguments in this book were selected with that purpose in mind.
Before you jump right into the debate, however, it is important that you have a basic
understanding of some of the arguments involved. The first section of the volume
introduces the basics of the core arguments in the book and suggestions for answering
them. With this knowledge, you should be able to move right into your practice debates.
After the essays, some brief suggestions for preparing for your first debates are included.
When your debate is over, you should discuss with your teammates and your coach what
the strengths and weakness of the different arguments are. A guide for evaluating each of
the arguments and your own performance is included. The book is organized into seven
sections. It is important to understand the organization of the book in order to fully take
advantage of the evidence briefs.

Issue Introduction
Detention without charge affirmative. This affirmative argues that the Supreme Court
should restrict the authority of the President to detain un-naturalized immigrants
without charge.
Terrorism Disadvantage. This disadvantage argues that restricting the ability of the
federal government to detain un-naturalized immigrants without charge undermines the
war on terrorism.
Critical Legal Studies. This critique argues that protecting rights only serves to reinforce
the powers of the legal system and undermines social change.
Congress Counterplan. This counterplan argues that it would be better if the courts were
to interpret the Constitution to require the protections rather than the Congress.

Preparing for Your Practice Debates

This essay contains basic instructions for preparing for any practice debate that you may
participate in. The precise circumstances of your particular debate may be unique, so you
should adapt the instructions here to that particular debate. The instructions are general
and geared toward the unique situation of a practice debate where each side is likely to
have access to their opponents arguments and evidence before the debate. Some of the
advice is generally relevant to preparing for any debate, and some of it is generally useful
for preparing for any given practice debate. With this in mind, if you are using this set for
your first practice debate, you may wish to limit your arguments to only those that are
available here. That way, both sides will be equally prepared and you will be able to
concentrate on learning that arguments that you have at your disposal.
General Preparation
Before embarking on some more specific tasks, you should follow these general
preparation instructions. These instructions will make following-through on the more
specific tasks below that much easier.
General Negative Preparation
A. Read through the first affirmative constructive. When reading through the first
affirmative constructive, try to answer the following questions:
1. Which affirmative advantage do you think the affirmative will most likely try to win
the debate on? Why?
2. Which affirmative advantage will probably outweigh the disadvantage that the
negative will likely go for in the 2NR?
3. Which affirmative inherency cards strengthen the uniqueness of your disadvantage(s).
Why?
4. What arguments in the 1AC will the affirmative use to answers specific arguments that
you plan on making in your 1AC? Can those arguments be defeated? How so?

B. Read the off- case negative shells. When reading through these arguments, try to
answer the following questions:
1. Which negative argument is the strongest? Why?
2. What arguments is the negative team (yourself if you are the negative) strongest at?
3. What arguments do you think that the negative will go for in the negative block or in
the 2NR?
First Negative Preparation
1. Practice reading the off-case arguments that you are reading in the 1NC. How long will
it take you to read each argument? Write down how long it will take you to make read
each argument at the top of the shell.
2. Select 3-5 negative arguments to make against harms and 3-5 to make against
solvency. When making your selections, try to chose arguments that:
Can be defended throughout the debate. Some argument on the blocks you have may
simply not be very good. If those arguments arent very good, why bother making them
in the first place?
Are not already answered in the 1AC. Arguments that are already answered in the
1AC are easy for the affirmative to quickly answer because the 2AC will not need to read
any additional evidence, substantially reducing time pressure.
Are not repetitive. Reading two cards that make the same argument in the 1NC is not
helpful because the 2AC will not have to answer each argument separately. You should
prune your 1NC briefs for repetitive arguments.
Are offensive. Offensive arguments are arguments that are turns. If you win one of
these arguments you could win the debate on it alone. This is similar to winning a
disadvantage.
3. Keep your arguments organized. Do not simply present a case dump. Attach each of
the affirmative harms and solvency separately. This will help keep the debate organized
and make it easier to divide-up the bloc. 4. Select some arguments to read on each of the
case harms/advantages.
5. Include some analytic or logical arguments against some of the affirmative
evidence, particular weaker evidence.

Second Negative/1NR Preparation

1. Divide-up the Block. Dividing up the block simply refers to the idea of you and your
partner each defending, or kicking-out of major negative arguments. For example, in
the 2NC you make extend the Business Confidence Disadvantage and your partner may
extend the Incentives Counterplan. In a practice debate, and as in as many other debates
as possible, you should try to decide this before the debate starts.
2. Prepare to extend specific arguments. Write an overview. Write an overview that
quickly summarizes the argument that you are extending and read the overview before
extending the arguments on the flow. The overview should be 10-15 seconds.
3. Prepare to answer 2AC arguments. In a practice debates, you will often know precisely
what the 2AC will say to particular arguments that you will make in the 1NC. You may
even have the blocks that they are going to read in front of you.
2NR Preparation
Try to anticipate what arguments you think you be the farthest ahead on in the 2NR and
prepare to go for those arguments.
General Affirmative Preparation
A. Read through the first affirmative constructive. When reading through the first
affirmative constructive, try to answer the following questions:
1. What are the strengths and weaknesses of the affirmative advantages?
How will you compensate for the weaknesses?
2. Why do you think the affirmative advantage will probably outweigh the disadvantage
that the negative will likely go for in the 2NR?
First Affirmative Preparation 1. Practice reading the 1AC to be sure you can read all of it
in 8 minutes. If you cannot, underline the evidence to be sure that you can get the whole
1AC in.
2. Read through the negative arguments so that you are familiar with the basic thesis of
the arguments.

10
Second Affirmative Preparation
1. Read over the arguments that you think the negative will present.
2. Make a 1NC flow of each negative argument.
3. Prepare a 2AC frontline against each of the negatives arguments. Although not always wise in
a more competitive debate, in a practice debate it is particularly useful to make a variety of
arguments against off case arguments, such as link take-outs, link turns, internal link take-outs,
and impact answers.
4. Prepare answers to each 1NC case argument.
5. Direct most of your answers at the strongest negative arguments and the arguments that you
think the negative will try to win the debate on.
6. Be sure to answer every negative argume nt. Do not simply ignore an argument because you do
not think it is very good or because you do not think that the negative will go for it.
1AR Preparation
Select in advance what you think are the best affirmative arguments that can be used to defeat
negative arguments. Prepare a block/brief in advance to extend each of these arguments.
2AR Preparation
Prepare to select your very best arguments to defeat negative arguments.
General Tips
1. Familiarize yourself with your opponents arguments. The better you know the other sides
arguments, the easier it will be for you to answer them.
2. Read the evidence. The better you know the evidence, easier it will be for you to make logical
arguments against your opponent.
3. Practice unfamiliar arguments. If you are a good kritik debater, you may be tempted to go for
the Deep Ecology Kritik. Remember, however, that this is a practice debate. It may be good to
practice going for the counterplan and the kritik.
4. If you are a very inexperienced debater, dont try to go for arguments that you find are too
complex.
5. Write your own blocks. When you write your own blocks you will be more familiar with your
own arguments. You may wish to re-write the blocks in here and include your own logical
arguments.

Introductory Essay
11
Introductory Essay
The focus of this volume is on the detention of immigrants, particularly non-citizen
immigrants, to the United States. In order to understand the detention issues specific to
that group, however, it is important to generally understand issues related to detention
without charge and the war on terrorism. This essay outlines and highlights some of
those important issues. I strongly suggest reading it before you enter into debates on the
issue.
Individuals who are detained for a considerable length of time without charge fit into one
of three categories: (1) war fighters from other countries who detained on the battlefield,
(2) U.S. citizens detained on the battlefield (the battlefield has been defined both as U.S.
territory and foreign territory), and (3) non-citizens (unnaturalized aliens) who are living
in the United States. These individuals are likely to be detained in one of three places:
(1) a foreign country occupied by U.S. forces or in a foreign area controlled by U.S.
forces, (2) Guantanamo Bay Cuba, or (3) a standard legal detention facility in the United
States.
Guantanamo Bay is the site of a U.S Naval Base in Cuba. Located on the Southeast side
of the island, it is the only naval base the U.S. has in a Communist country. The U.S.
gained access to the base in 1904 under a leasing arrangement that makes cessation of the
lease possible only if both sides agree or if the U.S. abandons the base. Although the
U.S. leases the base, we concede full sovereignty over the base to Cuba. For more on the
history of the base visit http://www.nsgtmo.navy.mil/history%201a.htm
The U.S. agreement that Cuba retains full sovereignty over the base is what likely
motivated the Bush administration to house all enemy combatants and many others the
U.S. wishes to detain indefinitely. The administration hoped that the courts would agree
that they had no authority over the base, though as we will see later, the courts have not
accepted that and have intervened. Although detention at Guantanamo Bay is what is
often discussed in the literature, most immigrants who are subject to detention under this
authorities that will soon be discussed, are not detained here, but are detained in standard
detention facilities.
The authority of the President (acting as Command-in-Chief) and the military to detain
foreign enemy combatants without charge until the cessation of hostilities is generally
accepted. Although prisoners of war must be treated in particular ways, they do not need
to be charged with a crime unless held beyond the duration of hostilities. The authority
of the President and the military to detain U.S. citizens on the battlefield, particularly on
U.S. soil, without charge is somewhat more controversial. In the only known instance
prior to this new September 11th era, a U.S. citizen who was accused of aiding and
abetting the enemy was charged with a crime and tried in a civilian court.

Introductory Essay
12
The authority of the President and the Attorney General to indefinitely detain
unnaturalized aliens is even more, and arguably the most, controversial since it affects the
greatest number of people. The authority for these indefinite detentions was created both
before and after 9-11 under legislation that will be discussed shortly. Generally, the
government will defend this authority as part of its Plenary Power, which includes
authority over immigration.
Some of the authority that the Attorney General the chief law officer of the federal1
government -- claims for making such detentions without charge of un-naturalized aliens
or U.S. citizens not engaged in direct hostile action against U.S. forces is found in the
PATRIOT Act. Under the PATRIOT ACT, the Attorney General has expansive powers to
indefinitely detain non-citizens and individuals who are identified as contributing directly
or indirectly to terrorist operations. As long as the Attorney General has reasonable
grounds to believe that person at issue is described in the anti-terrorism provisions of
the law, the individual is subject to indefinite detention (Cole, 2003, p. 65).
Chang (2002) explains that the authority to detain non-citizens springs from Section 411
of the PATRIOT Act that authorizes the attorney general to detain noncitizens that he has
reasonable grounds to believe are involved in terrorism as long a seven days without
charging him or her with an immigration or criminal violation (p. 64). Although the
seven day window to charge seems reasonable, the government often claims that there are
necessary circumstances that prevent a charge from being issued within that time period.
Cole argues that the PATRIOT Acts definition of terrorism is so broad for immigration
purposes that even individuals who have provided humanitarian assistance to these
groups could be deemed a terrorist. Individuals detained under this authority do not
necessarily have to be certified as enemy combatants.
The authority to detain non-citizens does not stem exclusively from the PATRIOT Act,
however. Some authority also springs from changes made shortly after September 11th.
On September 17, 2001, well before the PATRIOT Act was passed, the Code of Federal
Regulations was amended to permit indefinite detention of aliens without arrest or
bringing charge against them.
Immigrant Rights Clinic, New York University School of Law, New York
University Review of Law & Social Change, REVIEW OF LAW & SOCIAL
CHANGE, 2000/1, p. 398
The amendment to 8 C.F.R. 287.3(d), effected September 17, 2001, published in
66 Fed. Reg. 10,390 (Sept. 20, 2001) [hereinafter "amended rule" or "amended
regulation"], has gone a long way toward creating this fear. In times of
"emergency or extraordinary circumstance," as the current situation un-doubtably
has been called, the INS now may detain individuals indefinitely following a
warrantless arrest without bringing any charges against them. The amended rule
provides no definition of emergency or extraordinary circumstance nor any
explanation of how long "an additional reasonable period" of detention may be.
1
States also have attorney generals.

Introductory Essay
13
It is important to note that many individuals, particularly unnaturalized aliens, who are
subject to indefinite detention have been charged with a crime usually a minor
immigration violation (most of those detained are immigrants). Chang (2002) explains
that if a non-citizen is certified as a terrorist and charged with an immigration violation
he or she is subject to mandatory detention without release on bond until either he is
deported from the Untied States or the attorney general determines that he should no
longer be certified as a terrorist (p. 64). Change continues to explain that Section 412
does not direct the Attorney General to notify the non-citizen of the evidence on which
the certification is based, or to provide him with an opportunity to contest that evidence,
either at an immigration judge hearing or through other administrative review procedure
(p. 64)
Another source of authority to detain is the Creppy Memorandum, which was issued by a
U.S. Immigration Judge Michael Creppy. Acting under direct instruction from
Attorney General Aschroft, Creppy issued a sweeping order that excludes normal due
process rights from cases deemed of special interest. U.S. Court of Appeals Judge
Edward Becker, writing the decision for the court in North Jersey Media Group, Inc. v.
Ashcroft, explained the terms of the Creppy Memorandum:
Chief Immigration Judge Creppy issued a memorandum (the Creppy
Directive) implementing heightened security measures. The Directive
requires immigration judges to close the hearing[s] to the public, and to
avoid discussing the case[s] or otherwise disclosing any information about
the case[s] to anyone outside the Immigration Court: It further instructs
that [t]he courtroom must be closed for these cases no visitors, no
family, and no press, and explains that the restriction even includes
confirming or denying whether such a case is on the docket or scheduled
for a hearing. In short, the Directive contemplates a complete information
blackout along both substantive and procedural dimensions. (Becker,
2003, pp. 310-311)
According to Muzaffar Chishti, director of the Migration Policy Institute, more than 600
cases have been designated for this special treatment under the Creppy Memorandum:
In our report we found that at least six hundred cases were classified as
special interest cases. The courts barred access to records of the persons in
detention, closed their deportation hearings and the cases were not listed on the
immigration docket. Such practices not only violate the rights of the individual
detainees, they also violate important First Amendment rights of the press to have
access to public hearings. As we maintain in our report, there certainly can be
situations when secrecy may be warranted, but it must be allowed only on a case
by case basis, and only by judicial intervention. (Chishti, America After 9/11,
2003, pp. 86-87)2
The rationale for detention without charge is basically an argument in favor of
preventive detention detaining someone in order to prevent him or her from
This description of the Creppy Memorandum is taken from Rich Edwards forthcoming
FORENSICS QUARTERLY.
2

Introductory Essay
14
committing a crime. The government contends that if these individuals are released they
could commit terrorist acts or support the commission of terrorist acts. In 2003, in
Denmore v. Kim, the Supreme Court upheld a statute a law passed by a legislature -mandating preventative detention during deportation proceedings of foreign nationals,
even if the person posed no risk of flight or danger to the community (Cole, 2003, p.
224).
Unnaturalized immigrants immigrants who do not yet have their citizenship but are in
the United States are usually detained under one of the previously discussed authorities.
There are other categories of detained individuals U.S. citizens detained at home and
U.S. citizens detained abroad. It is important to understand that these unnaturalized
immigrants can be in the United States either legally (with an appropriate visa) or
illegally. Often, the literature, particularly popular press literature, simply refers to these
individuals as immigrants, although immigrants include people who have come from
another country and have obtained their citizenship.
It is also useful to understand that issues surrounding the detention of immigrants did not
begin with September 11, the PATRIOT Act, and the Creppy Memorandum. () explains
U.S. policy that lasted through the 1980s:
Beginning in the 1950s and lasting through the 1980s, the legal structure
governing the detention of noncitizens was relatively clear and understood. First,
a critical distinction was made between resident noncitizens who had obtained
entry into the United States, but who had yet to qualify for naturalization
(including both legal and illegal resident noncitizens), and excludable noncitizens
who had been detained at the border (including noncitizens who had been paroled
into the United States). If a noncitizen was deemed excludable, and thus was
stopped at the port of entry, the individual could be detained indefinitely.
Conversely, if the noncitizen was found deportable, meaning that the noncitizen
had already procured entry into the United States, he could only be held for six
months. This distinction was extremely important because at that time it was
widely held that the U.S. Constitution afforded greater rights to noncitizens
already in the United States than to those who had only just arrived at the border.
After the expiration of this six-month period, the deportable noncitizen could be
released. The release of the noncitizen, however, was often conditioned on certain
supervision and reporting requirements. In 1988, however, the statutory picture
became considerably more complicated when Congress began to mandate the
detention of particular undesirable noncitizens. For example, in response to public
outrage over high crime rates and increased drug consumption, Congress enacted
the Anti-Drug Abuse Act of 1988 (ADAA), which amended the Immigration and
Nationality Act (INA) to mandate detention of any alien convicted of an
"aggravated felony."
One very important Supreme Court case related to this issues is Zadvysas v. Davis
(2001). The case was decided prior to September 11th (on June 28th) and did not deal
specifically with issues related terrorism. In the case, the Supreme Court prohibited

Introductory Essay
15
indefinite detention of unnaturlalized aliens, but left open the possibility that such
detention could be permitted in extreme circumstances, such as to fight terrorism. ()
explains the decision.
On June 28, 2001, the United States Supreme Court compromised the power of
the IIRIRA and arguably, congressional plenary power, with its decision in
Zadvydas v. Davis. The Zadvydas holding also represents the principal argument
against the constitutionality of "indefinite" detention of aliens. The case
considered two separate instances of detention. The first involved Kestutis
Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in
Germany. Zadvydas had a long criminal record involving drug crimes, attempted
robbery, attempted burglary and theft. In addition, he had a history of flight from
both criminal and deportation proceedings. He was released on parole and taken
into INS custody and, in 1994, ordered deported. Upon his order of removal, the
INS made several attempts to have Zadvydas deported to both Lithuania and
Germany. Lithuania refused to accept him because he was neither a Lithuanian
citizen nor a permanent resident. Similarly, Germany would not accept him
because he was not a German citizen. Thus, the INS kept him in custody after the
expiration of the removal period in order to conduct further attempts to deport
him. In September 1995, he filed a petition for a writ of habeas corpus under 28
U.S.C. 2241 challenging his continued detention. The second case involved Kim
Ho Ma, a Cambodian who fled to the United States at the age of seven. In 1995, at
the age of 17, Ma was involved in a gang-related shooting, convicted of
manslaughter, and sentenced to thirty-eight months' imprisonment. He served two
years, after which he was released into INS custody. In light of his conviction of
an aggravated felony, a deportable offense, Ma was ordered removed. Similar to
Zadvydas, the country of Ma's birth, Cambodia, refused to accept him before the
expiration of the ninety day removal period. Nonetheless, the INS continued to
keep Ma in custody because, in light of his former gang membership, the nature
of his crime, and his planned participation in a prison hunger strike, the INS was
"unable to conclude that Mr. Ma would remain nonviolent and not violate the
conditions of his release." Generally, when an alien is found to be unlawfully
present in the United States and a final order of removal has been entered, the
government secures the alien's removal during a subsequent ninety day statutory
"removal period." When the government is unable to remove an alien, like
Zadvydas and Ma, further detention is authorized under 8 U.S.C. 1231 (a)(6).
This statute states that a removable alien whom poses a risk to the community
"may be detained" beyond the ninety day removal period. The issue in Zadvydas
was whether 8 U.S.C. 1231 (a)(6) grants the Attorney General the authority to
detain deportable aliens indefinitely or merely for a "period reasonably necessary"
after the expiration of the removal period. The government maintained that
indefinite civil detention is justified under the statute since it prevents flight and
protects the community. Furthermore, the government argued that there was clear
congressional intent to grant the Attorney General the power indefinitely to detain
an alien ordered removed, and therefore the Court must defer to Congress under

Introductory Essay
16
the doctrine of plenary power. In what purported to be full constitutional scrutiny,

the Court held that indefinite detention of aliens would raise "serious
constitutional concerns," and therefore the statute contains an implicit "reasonable
time" limitation. The Court reasoned that if the goal of detention is no longer
practically attainable, detention no longer "bears [a] reasonable relation to the
purpose for which the individual [was] committed." Therefore, there was a
violation of the due process rights of the detainees. The Court stated that the
government's first justification, prevention of flight, was "weak or nonexistent
where removal seems a remote possibility." Similarly, the Court discounted
preventative detention based upon the second justification, protection of the
community, since it is limited only to "specially dangerous individuals." The
Zadvydas Court did not utilize the doctrine of plenary power and the heightened
deference it invokes. The majority found no clear indication that Congress
intended to give the Attorney General authority indefinitely to detain aliens. The
statute at issue was premised on 8 U.S.C. 1231(a)(6), which stated that when an
alien has been found unlawfully to be present in the United States and a final
order of removal has been entered, the government ordinarily secures the alien's
removal during a subsequent ninety day statutory "removal period," during which
time the alien normally is held in custody. However, a special statute at issue in
Zadvydas, authorized further detention if the government fails to remove the alien
during those ninety days. It stated: An alien ordered removed [1] who is
inadmissible . . . [2] [or] removable [as a result of violations of status
requirements or entry conditions, violations of criminal law, or reasons of security
or foreign policy] or [3] who has been determined by the Attorney General to be a
risk to the community or unlikely to comply with the order of removal, may be
detained beyond the removal period and, if released, shall be subject to [certain]
terms of supervision. Ultimately, the Court determined that the word "may" is
ambiguous and does not afford the Attorney General unlimited discretion to detain
an alien indefinitely. Furthermore, the Court maintained that the protection of the
community from dangerous aliens, in this statute, was merely a secondary
statutory purpose. Thus, the government's argument under the guise of plenary
power was rejected. Justice Brennan also noted that plenary power is subject to
important constitutional limitations. Congressional authority is limited "by the
Constitution itself and the considerations of public policy and justice which
control, more or less, the conduct of all civilized nations." Here, the Court stated
that Congress did not utilize constitutional means since aliens are subject to an
indefinite term of imprisonment (pp. 406-8).
This decision is important to understand for a few reasons: (1) It is the most recent
Supreme Court case to date (March 9, 2005) that deals with the detention of
immigrants; (2) If you read through the court case, which you can find by indexed
on Planet Debate, and the relevant Supreme Court Amicus briefs, you can find a lot
of additional evidence; (3) Some of the literature surrounding the issue that
discusses what the courts have ruled talks about this case.

Introductory Essay
17
The detention of unnnaturalized aliens is a core part of the detention without charge part
of the debate topic. The other part of the issues primarily deals with the detention of U.S.
citizens that the government has deemed enemy combatants. For additional information
on the detention of enemy combatants, see the Wake Forest Debaters Strategy Guide.

Immigrant Detention Affirmative
18
##Immigrant Detention Affirmative

First Affirmative Constructive
Contention I. Inherency
THE GOVERNMENT IS TARGETING IMMIGRANTS FOR DETENTION
Lawyers Committee for Human Rights, ASSESSING THE NEW NORMAL: CIVIL
LIBERTIES AFTER SEPTEMBER 11TH, 2003,
http://www.humanrightsfirst.org/pubs/descriptions/Assessing/AssessingtheNewNormal.p
df
Through the expenditure of enormous resources, the civil immigration system has
become a principal instrument to secure the detention of .suspicious. individuals when a
government trawling for information can find no conduct that would justify their
detention on any criminal charge. And through a series of nationality-specific information
and detention sweeps. from special registration requirements to .voluntary. interviews to
the detention of all those seeking asylum from a list of predominantly Muslim countries .
The administration has acted on an assumption that all such individuals are of concern.
On September 17, 2001, WELL BEFORE THE PATRIOT ACT WAS PASSED, THE
CODE OF FEDERAL REGULATIONS WAS AMENDED TO PERMIT INDEFINITE
DETENTION OF ALIENS WITHOUT ARREST OR BRINGING CHARGE AGAINST
THEM.
Immigrant Rights Clinic, New York University School of Law, New York University
Review of Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p.
398
The amendment to 8 C.F.R. 287.3(d), effected September 17, 2001, published in 66 Fed.
Reg. 10,390 (Sept. 20, 2001) [hereinafter "amended rule" or "amended regulation"], has
gone a long way toward creating this fear. In times of "emergency or extraordinary
circumstance," as the current situation un-doubtably has been called, the INS now may
detain individuals indefinitely following a warrantless arrest without bringing any
charges against them. The amended rule provides no definition of emergency or
extraordinary circumstance nor any explanation of how long "an additional reasonable
period" of detention may be.

19
1AC (Cont)
AND, NEW DIRECTIVES ISSUED SINCE THEN FURTHER EXPAND THE POWER
OF THE FEDERAL GOVERNMENT TO ENGAGE IN DETENTION WITHOUT
CHARGE
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 416
The government did not rely on the newly minted USA Patriot Act for these detentions,
n15 for the Act only provides the Attorney General with authority to detain suspected
non-citizen terrorists for as long as seven days without being charged with a crime and
provides for judicial review. Instead the Administration relied on an extraordinary
emergency interim regulation announced by the Attorney General on September 17, 2001
prior to the passage of the Patriot Act, which permits the INS, in times of "emergency or
extraordinary circumstances" to detain an alien whom it believes may have violated the
law "for a reasonable period of time" while it investigates the detainee. Indeed, many
detainees were held for many weeks prior to being charged with any violation
whatsoever.
THE AMENDED REGULATION GIVES THE INS TOO MUCH DISCRETION
Immigrant Rights Clinic, New York University School of Law, New York University
Review of Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p.
411
Second, the amended regulation gives the INS an unconstitutional level of discretion.
Amended 8 C.F.R. 287.3 plainly suggests that INS officials have the unchecked
discretion to determine whether an emergency or extraordinary circumstance exists,
triggering its ability to indefinitely detain individuals. Under McLaughlin, this grant of
authority exceeds constitutional bounds. The Court in McLaughlin intended the existence
of an emergency or extraordinary circumstance to be determined by judges in individual
circumstances, not by law enforcement officials as the amended regulation contemplates.
Regardless of whether the government determines that an emergency exists, the
justification will be subject to de novo review by a judge, the delay will be presumed
unconstitutional, and the government will bear the burden of defeating that presumption
by establishing the existence of a bona fide emergency justifying the delay. Thus, even if
INS officials decide generally that circumstances constitute an emergency, the INS will
still be found to have acted unconstitutionally and will be subject to liability if a judge
finds that the INS failed to prove its case or erred in its judgment. Since the amended
regulation endows INS officials with the authority to make decisions which will subject
the INS to liability for conduct in violation of the Fourth Amendment, it is
unconstitutional.

20
1AC (Cont)
Contention II. Advantages
A. Rights
NOTHING THREATENS INDIVIDUAL FREEDOM MORE THAN UNAUTHORIZED DETENTION
Philip Hayman, Professor, Harvard Law, Julliette Kayyem, Professor, JFK School of
Government, PRESERVING SECURITY AND DEMOCRATIC FREEDOM IN THE
WAR ON TERRORISM, November 2004,
http://bcsia.ksg.harvard.edu/BCSIA_content/documents/LTLS_final_02_05.pdf
Finally, any form of congressional authorization should be unmistakable giving clear
indication that it is deliberate if it is to permit exceptions to such broadly assumed
limits on executive power in dealing with citizens and others as the prohibition of
detention without trial. In particular, for hundreds of years since the Magna Carta, it has
been recognized that no power is more plainly threatening to individual freedom and the
rule of law than the power to detain without a showing to a judicial officer of a violation
of a statute. This is especially pertinent if the legislation is intended to overcome the
explicit terms of 18 U.S.C. 4001, which prohibits the administrative detention (that is,
the detention without charge or trial, authorized by administrative order rather than by
judicial decree) of U.S. citizens without express congressional authorization
INDEFINITE DETENTIONS THREATEN ALL CONSTITUTIONAL RIGHTS
The Committee on Federal Courts, THE RECORD OF THE ASSOCATION OF THE
BAR OF NEW YORK CITY, v. 59, 2004, pp. 43-4
There is also the danger of further extensions of the war power to curtail other civil
liberties. A jurisprudence that holds that the domestic war on terror is indistinguishable
from the "total war" circumstances of World War II and the Civil War, and on that basis
defers to the President all decisions on the best means to prosecute the war on terror
within the United States, leaves the door wide open to an almost unlimited expansion of
executive power. Why should the First Amendment right of free speech, or the Fourth
Amendment right to be free of unreasonable searches, be any less subordinate to the
President's war power than the core due process right to remain free of unilateral
executive detention? Pick your favorite constitutional amendment or right: its survival
during the war on terror cannot be assumed if the legitimacy of these indefinite detentions
is sustained.

21
THE PROTECTION OF FREEDOM IS APRIORI IT CANNOT BE SACRIFICED TO

SECURITY INTERESTS
Sylvester Petro, Law Professor, Wake Forest, TOLEDO LAW REVIEW, Spring 1974, p.
480
However, one may still insist echoing Ernest Hemingway I believe in only one thing:
liberty. And it is always well to bear in mind David Humes observation: It is seldom
that liberty of any kind is lost all at once. Thus, it is unacceptable to say that the invasion
of one aspect of freedom is of no import because there have been invasions of so many
other aspects. That road leads to chaos, tyranny, despotism, and the end of all human
aspiration. As Solzhenstyn, As Milovan Djilas. In sum, if one believes in freedom as a
supreme value and proper ordering principle for any society aiming to maximize spiritual
and material welfare, then every invasion of freedom must be emphatically identified and
resisted with undying spirit.

22
1AC (Cont)
B. Global Democracy
CONTINUATION OF INDIFINITE DETENTIONS UNDERMINES THE ABILITY OF

THE U.S. TO PROMOTE DEMOCRACY AROUND THE GLOBE
BAR OF NEW YORK CITY, v. 59, 2004, p. 45
The fact that the administration concedes that habeas corpus petitions can be brought on
behalf of the detainees provides cold comfort for due process rights, if the basic principle
of the detentions is upheld. This is especially so if, as the administration contends, no
rebuttal in court is to be permitted to its claim, supported only by "some evidence," that
the detainee is an enemy combatant. The Great Writ, under these restrictions, becomes
perilously close to an empty gesture. Finally, to sustain these lawless executive detentions
would undermine the position of the United States in promoting the rule of law abroad,
and would provide encouragement and cover for repression around the globe. If the
United States feels justified in departing from the rule of law in combating terrorism at
home, notwithstanding our strong tradition of constitutionalism, regimes in other
countries with no such tradition may see such conduct as justifying crackdowns against
political dissidents.
THE COURTS HAVE REQUIRED THE INS TO MAKE ITS ENFORCEMENT DECISIONS CONSISTENT WITH
4A PROTECTION IN THE PAST
Immigrant Rights Clinic, New York University School of Law, New York University Review of Law & Social Change,
REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 403-5
Courts have long held that the Fourth Amendment imposes significant con-straints on the INS's enforcement powers
over noncitizens and have consistently applied Fourth Amendment limitations on the INS. Courts have ruled that the
Fourth Amendment requires INS officers to have probable cause before stopping and searching the vehicles of
noncitizens, the INS to have reasonable suspicion before subjecting a noncitizen to a brief but forcible stop, n30 that
arrests made by INS officers be supported by probable cause, that the INS not enter or search dwellings and containers
without a judicially issued warrant or consent, and that the INS not detain people for unreasonable periods of time n33
or use unreasonable force. Even though the exclusionary rule does not ordinarily apply as a remedy to civil
proceedings, courts nevertheless have excluded from deportation hearings evidence that was gathered as the result of
egregious violations of the Fourth Amendment. Fourth Amendment concerns have shaped courts' construction of the
INS's enforcement powers under the INA. n37 Although INA 287(a)(2) authorizes the Attorney General to arrest any
alien "if he has reason to believe that the alien arrested is in the United States in violation of any law or regulation," n38
courts uniformly have interpreted the "reason to believe" language as requiring probable cause to arrest. n39 In
Almeida-Sanchez v. United States, the Supreme Court ruled that in light of the Fourth Amendment's protections, INA
287(a)(3) n41 could not be read to authorize the search of an automobile twenty miles north of the Mexican border
when the search was not based on probable cause. he Supreme Court also has emphasized that the INS has a
responsibility to structure its operations in a way that conforms with Fourth Amendment rights. In United States v.
Lopez-Mendozo, the Supreme Court stressed that the INS's "comprehensive scheme for deterring Fourth Amendment
violations" played a critical role in determining what procedures governed deportation hearings. The Court specifically
cited INS "regulations requiring that no one be detained without reasonable suspicion of illegal alienage, and that no
one be arrested un-less there is an admission of illegal alienage or other strong evidence thereof." The Court also
endorsed INS "procedures for investigating and punishing immigration officers who commit Fourth Amendment
violations" as crucial components for securing compliance with the Fourth Amendment in the course of enforcing
immigration laws. The Supreme Court has recommended the use of suits seeking declaratory judgment as "a means for
challenging the validity of INS practices" which violate the Fourth Amendment.

23
DEMOCRACY IS EXPANDING ALL OVER THE GLOBE

Kiki Edozie, Ph.D, Assistant Professor, Department of Political Science and International
Relations, The University of Delaware, Newark, DE, U.S.-AFRICA RELATIONS IN
THE AGE OF GLOBALIZATION , 2004, http://www.globalizationafrica.org/papers/31.html
Global democracy recognizes therefore that in the contemporary global order,
democracy is increasingly being sustained by ensuring the accountability of all related
and interconnected power systems, from economics to politics, cutting across the
territorial boundaries of nation-states. Thereby using multi-party democratic elections as
the test of democratic legitimacy, by 2000- aside from the Middle East- much of the
developing world, including the region of Africa, had established or reestablished liberal
democratic polities. Progress toward Third Wave democracy began to define African
political processes when a period of military and one party regimes come to an end
ushering in a new era of fledgling democratic governments across the continent (Joseph,
1999). Freedom House in 1994 registered the worlds largest number of advances of
freedom in Africa (FHR,1995), and in the US, the Bush Administration (1988) aided by
the new democracy promotion industry began to position Africa within the dynamic
trends of democratization, market reforms and global cosmopolitism.i
UNFORTUNATELY, THESE TRANSITIONS ARE AT-RISK MANY ARE SLIDING
BACKWARD
Kiki Edozie, Ph.D, Assistant Professor, Department of Political Science and International
Relations, The University of Delaware, Newark, DE, U.S.-AFRICA RELATIONS IN
THE AGE OF GLOBALIZATION , 2004, http://www.globalizationafrica.org/papers/31.html
Third Wave transitions for these countries were established in very complex and
different terms than the rest of Africa. In 2004, Freedom House classifies five of the
countries in the survey as Not Free despite the fact that these countries having undergone
complex democratic transitions- Rwanda, Burundi, Angola, Liberia and Zimbabwe. Four
countries are considered Partially Free- Mozambique, Sierra Leone, Uganda and Kenya,
which while not undergoing international-supervised democratic transitions, however,
have been included in the country case survey. For Uganda and Kenya, unlike their
counterparts in Anglophone and Francophone Africa, the Third Wave democratization
transition for these countries was delayed until 2002 in Kenya and is yet to occur in
Uganda, making these countries special recipients of global democracy policies. South
Africa is the only country classified as Free in the survey. Yet that countrys globally
symbolic, late de-colonization-democratization transition fostered by global events that
occurred in the 1990s presents an important positive case study in several respects for
examining US/Global and Africa democracy relations.

24
1AC (Cont)
DEMOCRATIC SETBACKS WILL INCREASE GLOBAL AUTHORITARIANISM
Carl Gensham, President of the National Endowment for Democracy, 1991
(JOURNAL OF DEMOCRACY, Spring, p. 19)
For the moment, no united antidemocratic "bloc" has developed, but this could
still happen, especially if there are more setbacks in countries undergoing democratic
transitions and the view takes hold that economic discipline and success go hand in hand.
A REVERSE SNOWBALLING WILL SPREAD
Samuel Huntington, Harvard, 1991 (JOURNAL OF DEMOCRACY, Spring, p.
19)
Second, a shift to authoritarianism by any democratic or democratizing great
power could trigger reverse snowballing. The reinvigoration of authoritarianism in Russia
or the Soviet Union would have unsettling effects on democratization in other Soviet
Republics. It could send the message to would-be despots everywhere: "You can get back
into business."
DEMOCIDE BY TOTALITARIAN REGIMES HAS KILLED HUNDREDS OF
MILLIONS AND HAS CAUSED MORE DEATHS THAN ALL THE WARS OF THE
20TH CENTURY

25
AUTOCRATIC STATES ARE MORE LIKELY TO ENGAGE IN DEMOCIDE AND

MASS MURDER
RJ Rummel, Political Scientist, University of Hawaii, DEATH BY GOVERNMENT,
2001, http://www.hawaii.edu/powerkills/DBG.CHAP1.HTM
Power kills, absolute Power kills absolutely. This new Power Principle is the message
emerging from my previous work on the causes of war and this book on genocide and
government mass murder--what I call democide--in this century. The more power a
government has, the more it can act arbitrarily according to the whims and desires of the
elite, the more it will make war on others and murder its foreign and domestic subjects.
The more constrained the power of governments, the more it is diffused, checked and
balanced, the less it will aggress on others and commit democide. At the extremes of
Power2, totalitarian communist governments slaughter their people by the tens of
millions, while many democracies can barely bring themselves to execute even serial
murderers. These assertions are extreme and categorical, but so is the evidence
accumulated in this book, Death By Government, and its complement Statistics of
Democide. Consider first war. Table 1.1 shows the occurrence of war between nations
since 1816. In no case has there been a war involving violent military action between
stable democracies3, although they have fought, as everyone knows, non-democracies.
Most wars are between nondemocracies. Indeed, we have here a general principle that is
gaining acceptance among students of international relations and war. That is that
democracies don't make war on each other. To this I would add that the less democratic
two states the more likely that they will fight each other. This belligerence of
unrestrained Power is not an artifact of either a small number of democracies nor of our
era. For one thing the number of democratic states in 1993 number around seventy-five,
or also taking into account forty-eight related territories, about one-fourth of the world's
population. Yet we have had no war--none--among them. Nor is there any threat of war.
They create an oasis of peace. Moreover, this is historically true of democracies as well.
If one relaxes the definition of democracy to mean simply the restraint on Power by the
participation of middle and lower classes in the determination of power holders and
policy making, then there have been many democracies throughout history. And whether
considering the classical Greek democracies, the forest democracies of medieval
Switzerland, or modern democracies, they did or do not fight each other (depending on
how war and democracy is defined, some might prefer to say that they rarely fought or
fight each other).5 Moreover, once those states that had been mortal enemies, that had
frequently gone to war (as have France and Germany in recent centuries), became
democratic, war ceased between them.6 Paradigmatic of this is Western Europe since
1945. The cauldron of our most disastrous wars for many centuries, in 1945 one would
not find an expert so foolhardy as to predict not only forty-five years of peace, but that at
the end of that time there would be a European community with central government
institutions, moves toward a joint European military force by France and Germany, and
zero expectation of violence between any of these formerly hostile states. Yet such has
happened. All because they are all democracies. Even among primitive tribes, it seems,
where Power is divided and limited, war is less likely.7 Were all to be said about absolute

26
and arbitrary Power is that it causes war and the attendant slaughter of the young and
most capable of our species, this would be enough. But much worse, as the case studies
in this book will more than attest, even without the excuse of combat Power also
massacres in cold blood those helpless people it controls. Several times more of them.
Consider table 1.2 and figure 1.1, the list and its graph of this century's megamurderers-those states killing in cold blood, aside from warfare, 1,000,000 or more men, women,
and children. These fifteen megamurderers have wiped out over 151,000,000 people,
almost four times the almost 38,500,000 battle-dead for all this century's international
and civil wars up to 1987. The most absolute Power, that is the communist U.S.S.R.,
China and preceding Mao guerrillas, Khmer Rouge Cambodia, Vietnam, and Yugoslavia,
as well fascist Nazi Germany, account for near 128,000,000 of them, or 84 percent. Table
1.2 also shows the annual percentage democide rate (the percent of its population that a
regime murders per year) for each megamurderer and figure 1.1 graphically overlays the
plot of this on the total murdered. However, such massive megamurderers as the Soviet
Union and communist China had huge populations with a resulting small annual
democide rate. For their populations as a whole some less than megamurderers were far
more lethal. Table 1.3 lists the fifteen most lethal regimes and figure 1.2 bar graphs
them. As can be seen, no other megamurderer comes even close to the lethality of the
communist Khmer Rouge in Cambodia during 1975 through 1978. As described in
Chapter 9 of Death By Government, in less than four years of governing they
exterminated over 31 percent of their men, women, and children; the odds of any
Cambodian surviving these four long years was only about 2.2 to 1. Then there are the
kilomurderers, or those states that have killed innocents by the tens or hundreds of
thousands, such as the top five listed in table 1.2: China Warlords (1917-1949), Atatrk's
Turkey (1919-1923), the United Kingdom (primarily due to the 1914-1919 food blockade
of the Central Powers in and after World War I, and the 1940-45 indiscriminate bombing
of German cities), Portugal (1926-1982), and Indonesia (1965-87). Some lesser
kilomurderers were communist Afghanistan, Angola, Albania, Rumania, and Ethiopia, as
well as authoritarian Hungary, Burundi, Croatia (1941-44), Czechoslovakia (1945-46),
Indonesia, Iraq, Russia, and Uganda. For its indiscriminate bombing of German and
Japanese civilians, the United States must also be added to this list (see Statistics of
Democide). These and other kilomurderers add almost 15,000,000 people killed to the
democide for this century, as shown in table 1.2. Of course, saying that a state or regime
is a murderer is a convenient personification of an abstraction. Regimes are in reality
people with the power to command a whole society. It is these people that have
committed the kilo and megamurders of our century and we must not lose their identity
under the abstraction of "state," "regime," "government," or "communist." Table 1.4 lists
those men most notorious and singularly responsible for the megamurders of this century.
Stalin, by far, leads the list. He ordered the death of millions, knowingly set in train
events leading to the death of millions of others, and as the ultimate dictator, was
responsible for the death of still millions more killed by his henchman. It may come as a
surprise to find Mao Tse-tung is next in line as this century's greatest murderers, but this
would only be because the full extent of communist killing in China under his leadership
has not been widely known in the West. Hitler and Pol Pot are of course among these
bloody tyrants and as for the others whose names may appear strange, their megamurders
are described in detail in Death By Governments. The monstrous bloodletting of at least

27
these nine men should be entered into a Hall of Infamy. Their names should forever warn
us of the deadly potential of Power. The major and better known episodes and
institutions for which these and other murderers were responsible are listed in table 1.5.
Far above all is gulag--the Soviet slave--labor system created by Lenin and built up under
Stalin. In some 70 years it likely chewed up almost 40,000,000 lives, over twice as many
as probably died in some 400 years of the African slave trade, from capture to sale in an
Arab, Oriental, or New World market. In total, during the first eighty-eight years of this
century, almost 170,000,000 men, women, and children have been shot, beaten, tortured,
knifed, burned, starved, frozen, crushed, or worked to death; or buried alive, drowned,
hung, bombed, or killed in any other of the myriad ways governments have inflicted
death on unarmed, helpless citizens or foreigners. The dead even could conceivably be
near 360,000,000 people. This is as though our species has been devastated by a modern
Black Plague. And indeed it has, but a plague of Power and not germs. The souls of this
monstrous pile of dead have created a new land, a new nation, among us. Let in
Shakespeare's word's "This Land be calle'd The field of Golgotha, and dead men's
Skulls"10 As clear from the megamurderers listed in table 1.2 alone, this land is
multicultural and multiethnic, its inhabitants believed in all the world's religions and
spoke all its languages. Its demography has yet to be precisely measured and only two
rough censuses, the most recent constituting Death By Government, have so far been
taken.11 But this last census does allow us to rank this land of the murdered sixth in
population among the nations of the living, as shown in figure 1.3. His census and the
estimates of explorers also enables us to estimate Golgotha's racial and ethnic
composition, which is pictured in figure 1.4. Chinese make up 30 percent of its souls,
with Russians next at 24 percent. Then there is a much lower percentage of Ukrainians (6
percent), Germans (4 percent), Poles (4 percent), and Cambodians (2 percent). The
remaining 30 percent is made up of a diverse Koreans, Mexicans, Pakistanis (largely
ethnic Bengalis and Hindus), Turk subjects, and Vietnamese. But still, is Golgotha
dominantly Asian? European? What region did most of its dead souls come from. Figure
1.5 displays two different ways of looking at this: the percent of Golgothians from a
particular region and also the percent of a region's 1987 population in Golgotha. While
most, some 40 percent, are from Asia and the Middle East, the highest proportion of any
region's population in Golgotha, around 22 percent, is from the territory of the former
Soviet Union. In other words, Asians are the largest group while the former Soviet Union
has contributed the most of its population. Note that 18 percent of Golgothians are former
Europeans, including those from all of Eastern Europe except the former USSR; Europe
has contributed 6 percent of its population to this land of the murdered. So much for
Golgotha and a summary overview of its statistics. As I already have made clear,
Golgotha owes its existence to Power. I can now be more specific about this. Table 1.6
summarizes the most prudent democide results and contrasts them to this century's battledead. Figure 1.6 gives a bar chart of these totals.12 Note immediately in the figure that the
human cost of democide is far greater than war for authoritarian and totalitarian regimes,
while although for democracies they suffer fewer battle-dead than other regimes, this
total is still greater than democratic domestic and foreign democide. In evaluating the
battle-dead for democracies keep in mind that most of these dead were the result of wars
that democracies fought against authoritarian or totalitarian aggression, particularly
World War I and II, the Korean and Vietnam Wars.13

28
Putting the human cost of war and democide together, Power has killed over 203,000,000
people in this century. If one were to sit at a table and have this many people come in one
door, walk at three miles per hour across the room with three feet between them (assume
generously that each person is also one foot thick, naval to spine), and exit an opposite
door, it would take over five years and nine months for them all to pass, twenty-four
hours a day, 365 days a year. If all these dead were laid out head to toe, and assuming
each is an average 5 feet tall, they would reach from Honolulu, Hawaii, across the vast
Pacific and then the huge continental United States to Washington D.C. on the East coast,
and then back again almost twenty times. Were each of these people also an average of
two-feet wide, then to bury them side-to-side and head-to-toe would take fifty-five square
miles. Even digging up every foot of all of San Marino, Monaco, and Vatican city to bury
these democide and war battle-dead would not be sufficient to bury half of them. Now,
as shown in table 1.6 and figure 1.6, democracies themselves are responsible for some of
the democide. Almost all of this is foreign democide during war, and mainly those enemy
civilians killed in indiscriminate urban bombing, as of Germany and Japan in World War
II.15 It also includes the large scale massacres of Filipinos during the bloody American
colonization of the Philippines at the beginning of this century, deaths in British
concentration camps in South Africa during the Boar War, civilian deaths due to
starvation during the British blockade of Germany in and after World War I, the rape and
murder of helpless Chinese in and around Peking in 1900, the atrocities committed by
Americans in Vietnam, the murder of helpless Algerians during the Algerian War by the
French, and the unnatural deaths of German prisoners of war in French and American
POW camps after World War II. All this killing of foreigners by democracies may seem
to violate the Power Principle, but really underlines it. For in each case, the killing was
carried out in secret, behind a conscious cover of lies and deceit by those agencies and
power-holders involved. All were shielded by tight censorship of the press and control of
journalists. Even the indiscriminate bombing of German cities by the British was
disguised before the House of Commons and in press releases as attacks on German
military targets. That the general strategic bombing policy was to attack working men's
homes was kept secret still long after the war. Finally, with the summary statistics on
democide and war shown in table 1.6, we now can display the role of Power. Figures
1.7A-D illustrate the power curves for the total democide and battle-dead (figures 1.7AB); and for the intensity of democide and battle-dead, both measured as a percent of a
regime's population killed. In each case, as the arbitrary power of a regime increases
massively, that is, as we move from democratic through authoritarian to totalitarian
regimes, the amount of killing jumps by huge multiples. Two more figures will exhibit
the sheer lethality of Power. Figure 1.8 shows the proportion of war and democide dead
accounted for by authoritarian or totalitarian power together and compares this to the
democratic dead. For all this killing in this century, democide and war by democracies
contributes only 1 and 2.2 percent, respectively to the total.

29
1AC (Cont)
TOTALITARIANISM IS AN EVEN GREATER THREAT THAN NUCLEAR WAR
RJ Rummel, Political Scientist, University of Hawaii, DEATH BY GOVERNMENT,
2001, http://www.hawaii.edu/powerkills/DBG.CHAP1.HTM
Consider also that library stacks have been written on the possible nature and
consequences of nuclear war and how it might be avoided. Yet, in the life of some still
living we have experienced in the toll from democide (and related destruction and misery
among the survivors) the equivalent of a nuclear war, especially at the high near
360,000,000 end of the estimates. It is as though one had already occurred! Yet to my
knowledge, there is only one book dealing with the overall human cost of this "nuclear
war"--Gil Elliot's Twentieth Century Book of the Dead.

30
1AC (Cont)
PLAN: The U.S. Supreme Court, in a relevant test case on the upcoming docket,
should rule that the federal government must charge anyone that is detained for
more than 48 hours, including resident aliens.
Contention III: Solvency
CHARGES AND ESTABLISHING PROBABLE CAUSE SHOULD BE REQUIRED

FOR DETENTION OF U.S. CITIZENS AND RESIDENT ALIENS
Recommendation (applicable except within officially designated zones of active
combat): U.S. citizens and resident aliens (hereinafter, U.S. persons) should not be
subject to detention except with probable cause. The detention decision on criminal
charges and about conditions incident to such charges should be made by the trial judge.
Where the trial judge finds that the basis for detention and criminal charges is persuasive
evidence that cannot be revealed publicly at trial without endangering national security,
the judge should be authorized to grant ninety-day extensions of the trial date for up to
two years during which the government may pursue alternative, publicly usable evidence.
The assistance of counsel or, where the judge finds that the evidence cannot be shown
to counsel, a cleared advocate to argue for the suspect s release shall be guaranteed
at all stages. Only if these procedures are shown to a judge to be inadequate, may even
an alien visiting the United States be subject to a judicial detention order and then only on
a specific finding of concrete danger by clear and convincing evidence. Again and in
similar ways, an attorney or substitute advocate should be made available at all stages.
Renewals of ninety-day detentions can not exceed a two-year period, after which the
alien would have to be deported, tried or released.

31
FOUR REASONS JUSTIFY COURT INTERVENTION THE PLAN PROTECTS IMMIGRANTS AND
BOOSTS U.S. GLOBAL LEADERSHIP
Victor Romero, Professor of Law, Penn State, The Dickinson School of Law, JOURNAL OF GENDER,
RACE, AND JUSTICE, Spring 2003, pp. 210-11
The federal courts have at least four good reasons to be skeptical of the federal political branches,
especially during times of real or perceived crisis. First, while the legitimate goal of immigration law
enforcement is deportation, Ashcroft's true objective in targeting noncitizens appears to be criminal
prosecution for terrorism and subversion. After all, why would the INS risk letting a terrorist get awaywhich is what the deportation remedy would be -rather than prosecuting him with the goal of life
imprisonment or the death penalty? Thus, the constitutional defense of political plenary power is even less
persuasive, especially when, as here, the foreign threat comes not from another nation (thus justifying the
political branches' plenary international relations power), but instead from a multinational, multiethnic
guerilla force that uses unconventional methods of attack, as it did on 9/11. Second, we can well expect that
Ashcroft will dispatch criminal law enforcement and immigration agents that might be tempted, at the
margin, to play fast and loose with suspects' civil liberties, as evidenced by the FBI's deceptive practices in
over seventy-five post-9/11 cases. I do not mean to suggest bad faith on the agents' part; indeed, I
understand that if one believes that one is restoring "the rule of law to the immigration law," as Assistant
Attorney General Viet Dinh has stated, one's noble ends might justify a liberal interpretation of otherwise
suspect governmental means. Indeed, the recent decision to split the service and enforcement functions of
the INS was prompted in part by the desire to ensure that civil servants long bent on enforcement do not
end up in the petition processing section looking for ways to deny admission to family members of lawful
permanent residents. It is the role of impartial courts to ensure that the constitutional equality principle is
not unduly compromised. Third, history is replete with examples of federal government zealotry, and the
federal courts would do well not to bow to majority sentiment especially when racial, ethnic, religious,
gender, and age stereotypes are reinforced at the expense of the egalitarian ideal. The legacy of Brown v.
Board of Education should be that the Supreme Court will never reaffirm Korematsu's n39 principles. And
fourth, controlling political overreaching enhances our standing abroad. As I mentioned at the very
beginning of this piece, domestic immigration policy and international relations are indeed interrelated, and
as such, if we value human rights at home, our ambassadors abroad will have a stronger case when they
accuse other nations of transgressing civil liberties. Nicholas Kristof, describing the near month-long
detention without charge or cause of a Yemeni "material witness" married to a U.S. citizen, summarized the
argument thusly: "Imprisoning a Yemeni because he is a Yemeni will not destroy our freedoms. But it
undermines our ability to project our values abroad."

32
Inherency: General Inherency Extensions

IMMIGRANTS CAN BE DETAINED INDEFINETLY WITHOUT NOTICE OF EVEN WHAT
IMMIGRATION VIOLATION HAS OCCURRED
Immigrant Rights Clinic, New York University School of Law, New York University Review of
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 399-400
Section 287(a)(2) of the Immigration and Nationality Act ("INA") authorizes the Immigration
and Naturalization Service ("INS") to make warrantless arrests where the INS officer "has
reason to believe that the alien so arrested is in the United States in violation of any such law
or regulation and is likely to escape before a warrant can be obtained for his arrest." n6 The
provision further requires that "the alien arrested shall be taken without unnecessary delay
before an officer of the Service having authority to examine aliens as to their right to enter or
remain in the United States." Amended 8 C.F.R. 287.3 sets forth INS procedures for
warrantless arrests authorized by INA 287(a)(2). The regulation first requires that the arrestee
be examined "by an officer other than the arresting officer" or, alternatively, by the arresting
officer (if qualified) if securing an examining officer would entail "unnecessary delay." n8 The
examining INS officer must make a determination as to whether there is prima facie evidence
that the arrestee indeed was in violation of immigration laws. The examining officer then
either refers the case to an immigration judge, orders expedited removal, or takes other
appropriate action pursuant to the specific facts of the case. If the examining officer places the
arrestee in formal immigration proceedings, the regulation then requires that the arrestee be
informed of the reasons for the arrest and the right to representation. The examining officer
also must provide the immigrant with a list of free legal service providers and note that the list
was provided. In addition, the regulation requires that the examining officer advise the
arrestee that "any statement may be used against him or her in a subsequent proceeding."
The amended rule repeals the requirement that the INS bring the arrestee in front of an
examining officer within twenty-four hours and replaces it with a forty-eight hour
requirement. The amended rule also provides that in the event of "an emergency or other
extraordinary circumstance," the INS is afforded "an additional reasonable period of time" to
examine the arrestee, and is not subject to any specific time period within which it must
perform this examination. The amended regulation thus allows immigrants arrested without a
warrant to be held indefinitely without even the minimal protection of a determination that the
INS has prima facie evidence of any violation.

33
Inherency: General Inherency Extensions

SECTION 412 SAYS THE ATTORNEY GENERAL CAN DETAIN ANYONE SUSPECTED OF BEING A
TERRORIST
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 433)
Section 411 greatly expands the class of noncitizens who are subject to deportation on
grounds of terrorism through its expanded definitions of the terms "terrorist activity," "engage
in terrorist activity," and "terrorist organization." Section 412 substantially enlarges the
authority of the Attorney General to place noncitizens he suspects engage in terrorist activities
in detention while their deportation proceedings are pending.
UNDER SECTION 412 OF THE PATRIOT ACT, THE GOVERNMENT CAN DETAIN SOMEONE THEY
THINK IS A TERRORIST EVEN IF THAT PERSON IS NOT DEEMED TO BE A FLIGHT RISK
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 439-40
At the same time that section 411 expands the class of noncitizens who are deportable on
grounds of terrorism, section 412 inflates the Attorney General's power to detain noncitizens
who are suspected of terrorism and radically revises the rules governing detention of
noncitizens. Prior to September 11, 2001, noncitizens in removal proceedings were subject to
preventative detention under essentially the same standards that apply to defendants in
criminal proceedings they could be detained without bond if they posed a danger to the
community or a risk of flight. If the government could not make such a showing in a hearing
before an immigration judge, noncitizens were entitled to release on bond. Conversely, Section
412 of the Patriot Act authorizes the Attorney General to detain noncitizens without a hearing
and without showing that they pose a threat to national security or a flight risk. He need only
certify that he "has reasonable grounds to believe" that a noncitizen is engaged in terrorist
activity or in any other activity endangering the national security of the United States, and the
noncitizen is then subject to potentially indefinite mandatory detention.

34
Inherency: Answers to: The Courts Have Prohibited Detention Without Charge
ZADVYDAS DID NOT PROHIBIT INDEFINITE DETENTION IN ALL CIRCUMSTANCES IT
NEW YORK LAW SCHOOL REVIEW, Fall 2003, p. 412
The Zadvydas majority did state that there might be "special circumstances" that would
outweigh an alien's right to due process or allow Congress to utilize the doctrine of plenary
power. For example, the Court reasoned that due process can be overcome if the preventative
detention is limited to "specially dangerous individuals." The Court stated that the provision
authorizing detention in Zadvydas "did not apply narrowly to 'a small segment of particularly
dangerous individuals,' [like] suspected terrorists, but broadly to aliens ordered removed for
many and various reasons." Therefore, a key factor in the Zadvydas holding was the unlimited
scope of the detention provision. With regard to plenary power, the majority holding in
Zadvydas noted, "neither do we consider terrorism . . . where special arguments might be
made for forms of preventative detention and for heightened deference to the judgments of
the political branches with respect to matters of national security." In sum, the dictum in
Zadvydas has left the door open for litigation with regard to alien-terrorist detention.
THE ZYDAS DECISION DOES NOT REQUIRE THE RELEASE OF ALIENS BECAUSE IT ALLOWS
FOR DETENTION IN SPECIAL CIRCUMSTANCES SUCH AS TERRORISM
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, pp. 462-3
Despite the Court's expression of serious doubt about the constitutionality of the INA's postorder detention mandate, the majority did recognize, in language that now appears prescient,
that the cases before it did not require it "to consider terrorism or other special circumstances
where special arguments might be made for forms of preventative detention and for
heightened deference to the judgments of the political branch with respect to matters of
national security." In doing so, the Court essentially carved out a potential exception for
certain noncitizen terrorists and recognized that terrorism creates a type of public fear that
may not be present with other national threats of security. The acknowledgment by the
majority of the genuine danger represented by terrorism or other exceptional circumstances
seems to eerily foreshadow the events of September 11, 2001 and the subsequent struggles
now facing our nation. While lessons from the past may counsel against such a rule that
affords heightened judicial deference to the political branch in cases that implicate national
security, this loophole created by the majority undoubtedly gives the political branch room to
maneuver and for the Court to utilize detention in the current war on terrorism. The Zadvydas
decision, therefore, would not require the release of noncitizens held on allegations of
terrorism who have no prospect of being able to return to their home country. What the Patriot
Act appears to do is effectively codify this exception requiring the continued detention of
removable noncitizens suspected of terrorism.
EXISTING SUPREME COURT DECISIONS WILL NOT LIMIT THE DETENTION OF TERROR
SUSPECTS BY THE EXECUTIVE
NEW YORK LAW SCHOOL REVIEW, Fall 2003, pp. 395-6
The war on terrorism is unlike any other war this country has ever faced; our enemy targets innocent civilians - on
American soil. In response to this unprecedented dilemma, Congress enacted the USA Patriot Act, legislation that was
designed to grant the government the tools necessary to effectively fight terrorism. One such tool is 412 of the Act,
which enables the Attorney General to detain a terrorist suspect until he is no longer deemed a threat. Of course, this
may lead to the indefinite detention of suspected terrorists, if doing so is necessary for national security. Critics argue
that the prospect of indefinite detention conflicts with the Supreme Court's holding in Zadvydas v. Davis. There, the
Court stated that the indefinite detention of aliens was unconstitutional, but left open the possibility of detaining
terrorist suspects. This Note argues that the holding in Zadvydas would not apply to the USA Patriot Act since
Congress acted pursuant to the doctrine of plenary power. Moreover, the war on terrorism represents a "special
circumstance" that may necessitate preventative detention.

35
Inherency: PATRIOT Act Allows Detention Without Charge

UNDER THE PATRIOT ACT, NON-CITIZENS CAN BE DETAINED ON THE BASIS OF SUSPICION
ALONE
Daniel Kanstroom. Clinical Professor and Director, Boston College Immigration and Asylum
Project, New England Journal of International and Comparative Law, v. 9, 2003, p. 58
Statutory changes also proceeded apace. The so-called USA Patriot Act, proposed in its first
form by Attorney General Ashcroft (as MATA) shortly after the attacks and signed by President
Bush on October 26, 2001, contained dramatic expansions of government surveillance
authority and criminal provisions that applied to both citizens and non-citizens. Some of its
most specific provisions authorize the Attorney General to incarcerate and detain non-citizens
on the basis of suspicion alone.
SECTIONS 411 AND 412 AUTHORIZE INDEFINITE DETENTION OF ANY NONCITIZEN DEEMED A
TERRORIST BY THE ATTORNEY GENERAL
These provisions stand out as radical in the degree in which they sacrifice freedom in the
name of national security. More specifically, the focus will be limited to sections 411 and 412
of the Patriot Act and part 4 of the ATCSA, which provide the governments of the United
States and United Kingdom with extensive powers to take into custody and detain noncitizens
suspected of terrorism. Each piece of legislation respectively enables the Attorney General of
the United States and the Secretary of State of the United Kingdom to certify any noncitizen
whom he suspects to be a terrorist. Upon certification, the provisions which will be examined
require the mandatory detention of these individuals until the noncitizen is either ordered
removed from the country or found not to be removable, and authorize the potential indefinite
detention of these noncitizens who have been certified as terrorists.
THE PATRIOT ACT WLLOWS DETENTION OF AN IMMIGRANT ON ANY

SUSPICION THAT HE OR SHE HAS BEEN ASSOCIATED IN ANY WAY WITH A
TERRORIST GROUP
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION, 2003, p.
152
The PATRIOT Act: (1) imposes guilt by association on immigrants, extending the reach of that philosophy beyond the
1996 Act; (2) authorizes executive detention on mere suspicion that an immigrant has at some point engage in a violent
crime or provided humanitarian aid to a proscribed organization.
UNDER THE PATRIOT ACT, AND IMMIGRAANT CAN BE DETAINED THROUGHOUT THE ENTIRE
DEPORTATION HEARING IF THE ATTORNEY GENERAL DETERMINES HE IS A THREAT TO SAFET
NEW YORK LAW SCHOOL REVIEW, Fall 2003, p. 399-400
Congress eventually agreed on the provisions for the "Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act
of 2001." Under this Act, 8 U.S.C 1101 of the Immigration and Nationality Act was amended
to allow officials to detain individuals suspected of terrorist activity for up to seven days
without filing charges against them or allowing them to petition a court for their release. After
the seven days, pursuant to 412(a)(5), the alien will either be released or detained if there is
any immigration violation, subject to deportation hearings. Most notably, the Patriot Act
affords the Attorney General the ability to detain an immigrant during the entire deportation
hearing if he "reasonably believes" the alien may have engaged or assisted in any terrorist
activity and his removal is unlikely in the reasonably foreseeable future

36
Inherency: Patriot Act Allow Detention Without Charge

SECTION 412 DOES NOT REQUIRE THE ATTORNEY GENERAL TO CERTIFY THAT SOMEONE IS
DANGEROUS
STANFORD LAW REVIEW, April 2003, p. 1424
Section 412 of the USA Patriot Act provides for the certification of aliens suspected of terrorist
involvement and for their mandatory detention until removal from the United States. Under
that section, the Attorney General may certify an alien if he has "reasonable grounds to
believe" that the alien falls under any of the security-based grounds for deportation in the INA,
or that the alien otherwise endangers U.S. national security. Under the INA, a noncitizen can
be excluded or deported for national security reasons, including involvement in espionage, the
attempted overthrow of the government by unlawful means, or terrorist activities. Now, any
alien whom the Attorney General believes is inadmissible or deportable under the terrorismrelated grounds of U.S. law, including the expansive new grounds in section 411, may be
certified under the USA Patriot Act. Even if an alien is not deportable based on these grounds,
he may be certified if the Attorney General has "reasonable grounds to believe" that he
otherwise endangers national security. The statute does not require the Attorney General to
limit certification to aliens who are believed to be dangerous or pose a high risk of flight, or to
make any finding to that effect.
SECTION 412 CREATES MANDATORY DETENTION FOR ANYONE WHO EVEN GAVE A DIME TO A
CHARITY ASSOCIATED WITH A TERRORIST ORGANIZATION AND THERE IS NO REBUTTABLE
PRESUMPTION
STANFORD LAW REVIEW, April 2003, P. 426-7
The principal change that section 412 introduces into immigration law is in establishing a
certification process that triggers mandatory detention. Previously, aliens suspected of
involvement in terrorist activities could be arrested on the basis of terrorism offenses or other
immigration charges, and then granted or denied bail upon the discretion of the Immigration
and Naturalization Service (INS). In general, the INS has statutory discretion to decide
whether to detain aliens or release them on bail pending deportation hearings. In practice, the
INS denied bail only where an alien was believed to present a threat to national security or a
high risk of failing to appear for deportation proceedings. The Board of Immigration Appeals
stated a policy to that effect in In re Patel, a 1976 decision, which the Supreme Court cited in
Reno v. Flores: Congress has given the Attorney General broad discretion to determine
whether, and on what terms, an alien arrested on suspicion of being deportable should be
released pending the deportation hearing. The Board of Immigration Appeals has stated that
"an alien generally ... should not be detained or required to post bond except on a finding that
he is a threat to the national security ... or that he is a poor bail risk." When the District
Commissioner of the INS made a decision to detain an alien on the basis of either of these
factors - threat to security or poor bail risk - the alien retained a number of procedural rights
to contest that determination. He had the right to request a hearing with an immigration judge
to review the denial of bond, and could appeal a negative decision to the Board of Immigration
Appeals. Beyond administrative review, an alien could also contest detention through appeal to
a district court on a habeas petition. Under the new law, detention is mandatory for aliens
certified by the Attorney General, and any alien that the government has "reasonable grounds
to believe" meets any of the broad grounds for inadmissibility or deportation in section 412, or
is otherwise considered a national security threat, may be certified. Thus, certification could
apply to an alien whose sole offense was a donation to an undesignated organization intended
for charitable purposes, and who neither presents a danger to the public nor appears likely to
abscond. Aliens may potentially be certified by the Attorney General for reasons other than
threat to the public or bail risk. Certified aliens are automatically ineligible for bail; there is no
opportunity for an adversarial hearing to contest their detention. In sum, section 412
introduces an irrebuttable presumption that aliens subject to certification are unfit for release.

37
INS Has Extensive Detention Without Charge Authority

THE INS ONLY NEEDS REASONABLE SUSPICION, NOT PROBABLE CAUSE TO
DETAIN
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION,
2003, pp. 157-8
Third, the evidentiary standard for detention raises serious Constitutional concerns It is
important to keep in mind that the law authorizes potentially indefinite detention. That is
a far more severe deprivation of liberty than holding a person for interrogation or trial.
Yet the INS has standard now for detention is essentially equivalent to the reasonable
suspicion standard. But if reasonable suspicion does not even authorize a full arrest in
criminal law enforcement it surely cannot authorize indefinite detention in immigration
law enforcement to the constitutionality of any detention provision that the government
bear the burden of justifying any preventive detention promptly in a scrupulously fair
proceeding. Few intrusions on liberty are more severe than being locket up. Yet the
PATRIOT Act imposes no affirmative burden of proof on the government, provides for no
hearing, and authorizes detention on the Attorney Grnenils say-so. The only process
the alien is afforded is the right to go to federal court and sue the government for its
actions. But due process requires that the agency seeking to deprive a person of his
liberty afford him a fair procedure in which to be heard; the availability of a lawsuit after
the fact is not sufficient.
THE EXECUTIVE IS DETAINING ON SUSPICION, NOT ON EVIDENCE THAT A
CRIME WILL BE COMMITTED
Jules Lobel, Professor, University of Pittsburgh Law School; Vice President, Center for
Constitutional Rights, THOMAS JEFFERSON LAW REVIEW, Spring 2003, p. 331
Domestically a centerpiece of the Administration's response to terrorism has been its use
of prolonged preventive detention of suspected terrorists without judicial review. Through
a myriad of mechanisms, none explicitly authorized by Congress, the Executive has
detained people under harsh conditions on the mere suspicion that they may commit a
crime, rather than any evidence that they've done so or will do so.

38
Inherency: No Congressional Oversight

THERE IS NO CONGRESSIONAL OVERSIGHT OF DETENTION FACILITIES
Human Rights Watch, ENDING SECRET DETENTIONS, 2004,

http://www.humanrightsfirst.org/us_law/PDF/EndingSecretDetentions_w
eb.pdf
Indeed, Human Rights First has been unable to identify any official list of U.S.
detention facilities abroad employed in the course of the .war on terrorism.. There is
likewise no public accounting of how many are detained or for what reason they are
held. And there has been a disturbing absence of serious congressional oversight of
both known and undisclosed detention facilities.

39
Advantage: Precedent for Future Rights Abuses

TEMPORARY ABUSES OF CIVIL LIBERTIES WILL CREATE A PRECEDENT FOR
FUTURE ABUSES
Nor can the assertion of this detention power be comfortably assumed to be only a
temporary departure from the rule of law. The war on terror is likely to be a prolonged, if
not a permanent feature of our times. Thus, extraordinary departures from due process
justified by the existence of this war may prove to be enduring features of the
constitutional landscape, not short-term measures easily reversed.

40
Advantage: Detention Threatens Core Liberty Interests

A KEY PROTECTION OF LIBERTY IS THE REQUIREMENT THAT THE GOVERNMENT JUSTIFY
DETENTION
Richard Leone, THE WAR ON OUR FREEDOMS, 2002, p. 63)
A cardinal protection of liberty in this country, the Washington Post said in one of a
remarkable series of editorials on the Haindi case, is the requirement that the
government justify deprivations of freedom. Yet the emerging hallmark of the enemy
combatant cases is the unwillingness of the government to do precisely that. In Hamdis
case, the Justice Department initially argued that its designation was unreviewable by any
court. Even now the government contends that the courts should rightly look beyond the
sketchiest of evidentiary statements it has offered in justifying its view of Hamdi. . . It is
critical that Judges remember how the doctrine they are creating could be used against
people other than the ones whose cases they are currently seeing. The governments case
against Hamdi may be solid. But if it is allowed to detain him without some procedure
that requires a persuasive showing, it will create a rule that allows Americans to be
exempted from the protections of the Bill of Rights on the strength of a two-page
statement the government condescends to present in court.
IF THE EXECUTIVE RETAINS THE AUTHORITY TO DETAIN INDEFINETLY, THERE IS NO
FREEDOM
Philip Heyman, Political Scientist, MIT, TERRORISM, FREEDOM, AND SECURITY,

2003, p. 91
Quite simply, a country
cannot be free if the Executive retains the power, on its own

determination that certain conditions are met, to detain citizens for an indefinite period.
In both the case of citizens and the case of aliens there was an explicit effort to deny
judicial review of the crucial findings on the basis of which it was claimed that the
individual could be detained indefinitely

41
Advantage: Fourth Amendment Violations

REFUSING TO RESTRICT DELAYS IN CHARGING BEYOND 48 HOURS VIOLATES THE FOURTH
AMENDMENT
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, pp. 409-11.

42
The amended regulation's exception to the forty-eight hour rule, allowing detention
for an undefined period beyond forty-eight hours, also clearly violates the
Fourth Amendment. Amended 8 C.F.R. 287.3 provides that "a determination
will be made within 48 hours of the arrest, except in the event of an emergency
or other extraordinary circumstance in which case a determination will be
made within an additional reasonable period of time, whether the alien will be
continued in custody or released." This exception is blatantly at odds with the
Fourth Amendment as it deliberately institutes a scheme permitting delays of
probable cause determinations for more than forty-eight hours, and failing to
specify that the emergency or extraordinary circumstance must be the reason
for the additional delay. In a case where an individual has not received a
probable cause determination within forty-eight hours, the Supreme Court in
McLaughlin considered an arrested individuals' continued detention
presumptively unreasonable. The court stated: Where an arrested individual
does not receive a probable cause determination within 48-hours, the calculus
changes. In such a case, the arrested individual does not bear the burden of
proving an unreasonable delay. Rather, the burden shifts to the government to
demonstrate the existence of a bona fide emergency or other extraordinary
circumstance. The Court thus narrowed the issues in contention after a delay
of more than forty-eight hours to one: whether the delay was unreasonable. In
addition, the Court allocated to the government the burden of persuasion on
the issue of delay, consistent with the Court's view that the detention is
presumptively unreasonable. The Court also provided the government with
only one affirmative defense to holding a particular individual beyond fortyeight hours - demonstration that a bona fide emergency was the reason for the
specific delay. The McLaughlin Court held that any delay violates the Fourth
Amendment, except in the narrow circumstance where the delay resulted from
an emergency or extraordinary circumstance. In contrast, the amended rule
authorizes "an additional reasonable period of time" whenever delay coincides
with a situation deemed an emergency or extraordinary circumstance. The
Court did not intend for mere coincidence to justify delay. It made this clear
by condemning "delay for delay's sake" as an illegitimate reason. To justify
the delay, the emergency must be the cause of it. In addition to failing to
require a causal link between delay and the emergency, the amended
regulation fails to set a firm limit on how long a person can be held before
proceedings are initiated. The amended rule's language of an "additional
reasonable period of time" provides no assurance that individuals will not be
arbitrarily held for indefinite lengths of time because the phrase has no clear
meaning. The McLaughlin Court's strong presumption that a delay of over
forty-eight hours was unreasonable strongly suggests that such an open-ended
indefinite authorization cannot pass constitutional muster

43
Advantage: General Rights Extensions

INDEFINITE DETENTION VIOLATES FUNDAMENTAL RIGHTS
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 398)
Amended 8 C.F.R. 287.3 stands contrary to the federal statute that authorizes its
promulgation. The amended regulation infringes upon Fourth Amendment rights both in the
context of immigration law enforcement itself and in the Attorney General's repeated
suggestion that immigration law enforcement is being used to effectuate criminal law
enforcement purposes. The amended rule also violates fundamental principles of due process
rights by detaining individuals for indefinite periods of time without establishing cause. Finally,
the rule creates a policy that undermines its purposes by simultaneously sweeping up
thousands of innocent individuals whose rights effectively have been terminated, and creating
a sense of fear in communities already reeling from violence directed at them by the public

44
Advantage: Fourth Amendment Violations

THE AMENDEDED REGULATION THREATENS CRITICAL FOURTH AMENDMENT PROTECTIONS
A 24 HOUR RULES SOLVES
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, pp. 411-2
The Repealed Twenty-Four Hour Rule Properly Accommodated Fourth Amendment Rights
Prior to September 20, 2001, 8 C.F.R. 287.3(d) required the INS to determine whether to
initiate proceedings within twenty-four hours of arrest. The prior rule was superior in a number
of respects. First, it properly accommodated Fourth Amendment rights and limited the
potential for excessive delay. Although it was not entirely free from abuse, abuse was
minimized. Given the few documents and procedures which accompany a warrantless arrest,
even an officer who sought to delay for the full twenty-four hour period was in danger of
violating the rule. This danger acts as a natural deterrent for violating an arrested individuals'
Fourth Amendment rights. The twenty-four hour rule ensured that individuals properly
arrested were processed with the utmost speed - an important goal of the enforcement of the
immigration law - and also ensured that someone unlawfully arrested will likely not spend the
night in jail. Second, the twenty-four hour rule deterred wrongful arrests. By limiting the time
available to gather evidence after the fact, a prompt probable cause determination helped to
ensure that illegal arrests would not subsequently be unlawfully justified. A speedy
determination ensured that the assessment of probable cause would be accurate, avoiding the
inaccuracies in the officer's and suspect's accounts caused by the passage of time Third, the
twenty-four hour rule provided clear guidelines to INS officers who operate under this
regulation. The INS has always had a high work burden. In past years, INS officers averaged
500 arrests each per year. INS officers under such workloads will inevitably take the time
allotted to them to process individuals arrested without a warrant. At a minimum, the INS will
take the full forty-eight hours to make a probable cause determination even when twenty-four
hours or less would suffice. The critical advantage of the previous rule was that its lack of
exceptions effectively discouraged INS from running past the twenty-four hour deadline. The
amended rule's vague exceptions create the opposite effect: the benefit of greater leeway in
times of "emergency' may cause INS officials to claim emergency conditions more frequently.
The amended rule thus invites abuse and inefficient operation. The twenty-four hour rule
respected constitutional rights, helped to prevent illegal arrests, and contributed to the
efficient operation of INS enforcement better then the amended rule's forty-eight hour clause
and emergency exception. These benefits, when compared with the serious deficiencies of the
amended regulation call for its rejection and the reinstitution of the rule in its pre-amended
form.
III. The Proposed Regulation Violates Immigrants' Constitutional Guarantees by Conflating
Civil and Criminal Arrests and Failing To Extend Full Criminal Constitutional Protections When
Applicable
Both citizens and noncitizens, when arrested for mixed civil and criminal purposes, are
guaranteed the full panoply of protections pursuant to the Fourth, Fifth and Sixth Amendments
that are attendant to arrests and detentions for criminal charges. Individuals also are
accorded criminal procedural protections when they are arrested for a civil violation as a
pretext for developing a criminal charge. Amended 8 C.F.R. 287.3, in its attempt to regulate
both pretextual and mixed civil and criminal warrantless arrests, triggers and violates these
criminal procedural rights, in addition to violating immigrants' Fourth Amendment rights
guaranteed during civil proceedings as discussed in the previous section.
The text and purpose of the amended regulation, as well as the public statements Attorney
General John Ashcroft has made regarding the government's anti-terrorism law enforcement
strategies, indicate that this regulation applies to arrests for mixed civil and criminal purposes.

45
The express purpose for the immediate implementation of the amended regulation is to allow
for additional time to process cases due to the "emergency posed by the recent terrorist
activities perpetrated on United States soil." Terrorist activity is predominantly prosecuted and
regulated under criminal laws, although there are related civil repercussions as well. This
mixed character of counterterrorist law enforcement requires the INS to work with criminal law
enforcement agencies as it arrests and charges immigrant suspects. The INS acknowledges
these necessary ties in its justification for holding detained individuals for an indefinite period
of time during emergencies, explaining that it needs the time "to coordinate with other law
enforcement agencies" and to process cases. The INS similarly explains its need to extend its
standard holding period of individuals arrested without a warrant from twenty-four to fortyeight hours so it can "check domestic, foreign, or international databases and record systems
for relevant information regarding the alien; and to liaise with appropriate law enforcement
agencies in the United States and abroad." Together, these justifications for extending the
detention period and the anti-terrorist purposes underlying the creation and immediate
implementation of the amended regulation intimates that the amended regulation will be
applied to individuals arrested in connection to both civil and criminal offenses. Criminal law
enforcement purposes can also be inferred from the indefinite amount of time the INS requires
under amended 8 C.F.R. 287.3 before it can prove adequate cause to justify the warrantless
arrests. As discussed in Part II, the only permissible reasons the INS can delay bringing an
immigrant arrested without a warrant in front of an examining officer are administrative,
mainly to secure the personnel to confirm that a prima face case existed to support the arrest.
The INS should not require an indefinite period of time to find an officer and confirm that
probable cause existed at the time of the arrest. The INS is not permitted to use this time to
build its case post hoc to establish that it had cause at the time of the arrest. Attorney General
John Ashcroft publicly has confirmed that the amended regulation is designed for a mixed
criminal and civil purpose: "we seek to hold them as suspected terrorists, while their cases are
being processed on other grounds." n83 In a speech to the National Conference of Mayors,
Attorney General Ashcroft reemphasized this point: "Let the terrorists among us be warned... .
If you overstay your visas even by one day, we will arrest you... If you violate a local law, we
will ... work to make sure that you are put in jail and ... kept in custody as long as possible."
The government is open and unequivocal in its intent to hold individuals pretextually on civil
charges while it investigates criminal allegations or, at a minimum, to arrest immigrants for
both immigration and criminal purposes. Amended 8 C.F.R. 287.3 is a critical component of the
government's pretext strategy, as it regulates the procedures for civil arrests. These mixed
civil and criminal purposes of the amended regulation, however, require the regulation to be in
line with rights specifically safeguarded during criminal arrests. Courts have extended
constitutional and statutory criminal procedural protections during mixed civil and criminal
arrests and charges in various situations. First, immigrants are guaranteed criminal procedural
protections when arrested for both a civil and a criminal charge. Second, immigrants' criminalrelated protections are triggered when the civil detention is used as a "ruse" for criminal law
enforcement purposes. Courts have found foul play in situations where there has been
evidence of collusion between the INS and criminal law enforcement or when the INS did not
act with deliberate speed on immigration charges. In several cases where the government
used civil detention to advance criminal charges, courts have actually dismissed criminal
charges with prejudice to sanction the INS for its unlawful behavior. n88 Courts also have
protected immigrants' criminal procedural rights when the charges underlying both the civil
offense and criminal offense were identical. In safeguarding immigrants' criminal rights in
pretextual and mixed civil and criminal cases, courts have been motivated by the need to
prevent the government from abusing the rules in civil detention to undercut immigrants'
substantive rights. As the Ninth Circuit pointed out, "requirements [of Speedy Trial Act
protections] ... would lose all meaning if federal criminal authorities could collude with civil or
state officials to have those authorities detain a defendant pending federal criminal charges
solely for the purpose of bypassing the requirements of the Speedy Trial Act." The amended
rule acts in precisely the manner denounced by the Ninth Circuit; it allows the government to
withhold immigrants' fundamental rights in criminal proceedings. In authorizing a potentially
indefinite delay between a warrantless arrest and any kind of hearing during emergencies, it
violates both the statutory and constitutional requirements of "reasonably prompt" hearing by
a magistrate to establish probable cause, bypasses the requirement to file an indictment
thereby forestalling Sixth Amendment prohibitions on interrogation and the right "to be

46
informed of the nature and cause of the accusation," and jeopardizes the Eighth Amendment
right to a bail hearing. In addition, the regulation ignores the duty of arresting officers to
apprise the arrestee of his or her right to remain silent and the right to legal counsel at the
time of custodial interrogation. The amended rule's intent to evade these critical components
of criminal procedural safeguards invokes the deep constitutional concerns the Court raised in
McNabb v. United States: A democratic society, in which respect for the dignity of all men is
central, naturally guards against the misuse of the law enforcement process. Zeal in tracking
down crime is not in itself an assurance of soberness of judgment... . Experience has therefore
counseled that safeguards must be provided against the dangers of the overzealous as well as
the despotic ... . Legislation ... requiring that the police must with reasonable promptness
show legal cause for detaining arrested persons, constitutes an important safeguard - not only
in assuring protection for the innocent but also in securing conviction of the guilty by methods
that commend themselves to a progressive and self-confident society. For this procedural
requirement checks resort to those reprehensible practices known as the "third degree' which,
though universally rejected as indefensible, still find their way into use. It aims to avoid all the
evil implications of secret interrogation of persons accused of crime. It reflects not a
sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in
which brutality is substituted for brains as an instrument of crime detection. The amended
regulation permits warrantless arrests and indefinite detentions without these protections. It is
thus an unconstitutional end-run around the protections of the Fourth, Fifth and Sixth
Amendments.

47
Advantage: Answers to: Rights Dont Apply to Aliens

ALIENS ENJOY THE PROTECTIONS OF THE BILL OF RIGHTS
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, pp. 402-3
Although Congress retains plenary power to designate the nation's policy with respect to
immigration, that power is "subject to judicial intervention under the paramount law of the
constitution." Aliens present in the United States are within the fold of the Constitution's
protection, substantially enjoying the rights guaranteed by the Bill of Rights and the
Fourteenth Amendment.

48
Advantage: Detention Without Charge Threatens Due Process

DETENTION WITHOUT CHARGE THREATENS DUE PROCESS RIGHTS
Victor Romero, Professor of Law, Penn State, The Dickinson School of Law, JOURNAL
OF GENDER, RACE, AND JUSTICE, Spring 2003, pp. 203-4
Why, then, has Attorney General Ashcroft used immigration proceedings to seek out
terrorists? Following the September 11 attacks, the Immigration and Naturalization
Service (INS) arrested and detained approximately one thousand mostly Arab and
Muslim noncitizens for immigration code violations in an effort to uncover possible
terrorists among them. Notwithstanding the questionable desirability of deporting a
known terrorist, using immigration rather than criminal proceedings to screen persons
makes sense from the government's perspective. First, the process gives the government
the most number of remedial options: if it decides a noncitizen is not a terrorist, it can
deport her; if she is a terrorist, it can charge her criminally. In addition, the government is
able to take advantage of the administrative and civil nature of immigration proceedings
to aggressively prosecute its claims without providing as much due process protection to
the individuals charged. For example, because attorneys are not automatically provided
to noncitizens in deportation proceedings, the government is at a distinct advantage in
investigating possible terrorist links in the context of deportation than if it had to proceed
in a criminal court

49
Democracy Promotes Peace General

INDEPENDENT WORK BY MULTIPLE AUTHORS SUPPORTS THE
CONCLUSION THAT DEMOCRACIES DO NOT FIGHT ONE ANOTHER
Susan S. Gibson, Lieutenant Colonel, Judge Advocate Generals Corps US Army,
HOUSTON JOURNAL OF INTERNATIONAL LAW, Fall 1998, p. 1 (DRG/C802)
Along with the growing recognition that democracy brings domestic peace and
stability, there is an expanding consensus that democracies also bring international
peace. As one author points out, "In the modern international system, democracies
have almost never fought each other." In a paper on a "new paradigm" for peace,
John Norton Moore champions the dual roles of democracy and deterrence and lays
out the case for the democratic peace. As Moore indicates, there are many theories
on why nations go to war or remain at peace; however, only "one factor has a
startlingly strong real-world correlation with war." Independent works by several
authors "have all concluded that democracies rarely, if ever, wage war against one
another."
DEMOCRACY PROMOTES NEGOTIATION AND PREVENTS WARFARE
One has only to look at recent history to see the peaceful power of democracy and
free market economies. Countries that had been sworn enemies for years have
ceased to fight and begun to cooperate after they made the transition to democracy
and free market economies. This phenomenon can be seen in the West with the
relations between France and Germany, and in the East between South Korea and
Japan. Wars are, however, just one form of "non-peaceful" behavior. By other
measures as well, democracies tend to resolve their differences by peaceful means.
Democracies are more adept at negotiation and compromise because they are built
on these very foundations. A democratic ruler is a person who understands the need
to consider all sides of an issue, to negotiate, to work together toward a common
goal, and to compromise. "In contrast, totalitarian and non-democratic systems are
more likely to see specialists in violence and ruthless leaders take charge."
DEMOCRACIES RARELY GO TO WAR UNLESS ATTACKED
John Norton Moore, Professor of Law, University of Virginia, VIRGINIA JOURNAL OF
INTERNATIONAL LAW ASSOCIATION, Winter 2004, p. 359-60. (DRG/C809)
If the "theory of government failure," and incentives for government decision makers generally, is an
important part of the explanation for major war, one would expect to find that democracies are, in
fact, getting into major war principally, though not exclusively, as a result of aggression by
nondemocratic states, either against the democracies directly or against nations on whose behalf the
democracies then go to war.

50
Linearity More Democracy, Less War

ITS LINEAR THE MORE DEMOCRATIC A COUNTRY IS THE LOWER THE RISK
OF DEMOCIDE
RJ Rummel, Professor of Political Science, University of Hawaii, JOURNAL OF
CONFLICT RESOLUTION, March 1995, p. 6. (DRGOC/E351)
Second, the closer one gets to democracy on the hypothetical democracy-totalitarianism
scale, the more restraints on democide should kick in. This is because even a moderate
liberalization of a totalitarian regime, as after the death of Stalin or Mao Tse-tung, creates
countervailing forces that make democide difficult to carry out or less the approved means
to achieve policies. When power at the center is limited by tradition or other power groups,
even in authoritarian regimes such as those of Saudi Arabia, Iraq, or Iran, the ability to kill
unlimited numbers of people is sharply limited. We should expect, therefore, that as regime
types vary from democratic to somewhat democratic to authoritarian to somewhat
totalitarian to totalitarian, there should be a virtual logarithmic increase in the number of
people a regime kills. And finally, this should not be an absolute relationship between the
democratic-totalitarian scale and domestic deomcide but also one with the number killed as
a proportion of the population per year of the regime the rate of democide. Democratic
restraints should operate not only on the sheer number killed over the life of a regime but
also on the relative number killed. That is, the inverse relationship between democracy and
democide should hold regardless of the regime and its population.
MORE DEMOCRATIC STATES ARE MORE PEACEFUL
Zeev Maoz, Professor of Political Science, Tel Aviv University, INTERNATIONAL
SECURITY, Summer 1997, p.191. (MHSOLT0498)
Thus, as the standards of democracy tightened, the association with peace also
strengthened. This is not only consistent with the democratic peace result as an empirical
generalization, it is also consistent with the models that account for this generalization. As
more states adopted higher standards of democracy, as the norms of conduct became more
rooted, and as the institutional constraints became increasingly higher, the tendency of
democracies to engage in conflict with each other lessened.
THE EFFECTIVENESS OF DEMOCRATIC PEACE RISES WITH THE NUMBER OF
DEMOCRACIES
Zeev Maoz, Professor of Political Science, Tel Aviv University, INTERNATIONAL
SECURITY, Summer 1997, p.190. (MHSOLT0497)
The relationship between elements of democracy and peace increases over time, and is the result of
several factors. First, it is a function of the growth in the number of democratic dyads and their
increased proportion in the interstate system. In the nineteenth century jointly democratic dyads
constituted an annual average of less than 2 percent of all politically relevant dyads. In the 1900-45
period, jointly democratic dyads averaged over 13 percent of all dyads, and in the nuclear era (194686) jointly democratic dyads averaged over 11 percent of all possible dyads. Given the exponential
growth of the interstate system in terms of interaction opportunities over the 1946-86 period, the fact
that the proportion of democratic-democratic dyads in the twentieth century is nearly six times
higher than in the nineteenth century is highly significant.

51
Answers to: U.S. Predominance Is Responsible for Peace

DEMOCRATIC PEACE CANNOT BE EXPLAINED BY PREDOMINANT
U.S.POWER
Independent Review, Fall 2004 v9 i2 p165(22)
First, democracies rarely fight each other (Russett 1993; Russett and Oneal 2001). This
finding does not necessarily imply that democracies fight fewer wars than do other
regimes. It is even compatible with the view widely shared until recently that the risk of
war between democracies and autocracies might be even higher than the risk of war
between autocracies. I agree with critics of the democratic peace that we do not yet
understand fully why democracies rarely fight each other and whether normative or
institutional characteristics of democracies matter most. Explaining the democratic peace
between Western democracies as "an imperial peace based on American power" (Rosato
2003, 599) is not justified, however. Admittedly, I held this view thirty years ago (Weede
1975). Then I explained peace among U.S. allies by their common ties or even by their
subordination to the United States. Later, however, I discovered that autocratic U.S.
allies, in contrast to democratic U.S. allies, fought each other or against democratic U.S.
allies, as the football war in Central America and the Falklands War illustrate. Thus, I
became a convert to the democratic-peace proposition.

52
Answers to: Democratic Transitions Cause War -- General

AUTOCRACY WILL KILL MORE THAN ANY DEMOCRATIC TRANSITION
Rummel (1994) has pointed out that autocracy--itself frequently the result of rebellion,
civil war, and revolution--killed even more people than interstate war, rebellion, or
revolution in the twentieth century. Even if an autocratic peace within or between
nations should exist--in spite of studies (Peceny, Beer, and Sanchez-Terry 2002; Fearon
and Laitin 2003, 85) that call these claims into question--the autocratic cure looks even
bloodier than the diseases of war and civil war. Therefore, the preservation of democracy
where it already exists and the establishment of democracy elsewhere must be part of the
solution to the problems of rebellion, political violence, and war
VIOLENCE IN THE TRANSITION IS SHORT-RUN
Havard Hegre is a Researcher, and Scott Gates and Nils Petter Gleditsch are Research
Professors at the International Peace Research Institute, Oslo (PRIO), Fuglehauggata 11,
Oslo, Norway. Tanja Ellingsen is Research Fellow at the Department of Political Science,
University of Oslo, Norway, American Political Science Review, March 2001 v95 i1 p33
Toward a Democratic Civil Peace? Democracy, Political Change, and Civil War,
1816-1992.
Eventually, then, countries are more likely to end up at the democratic end of the scale.
The conflict-generating effect of democratization when moving from autocracy to
intermediacy produces violence in the short run only.
Answers to: Democracies Do Fight Wars
DEMOCRACIES ONLY FIGHT AS ALLIES
Kofi A. Annan is secretary-general of the United Nations, Global Governance, AprilJune 2002 v8 i2 p135(8), Democracy as an international issue. (Global Insights).
Many associate connections between democracy and international peace with Immanuel
Kant, whose essay of 1795, "Perpetual Peace," argued that "republics"--which meant
essentially what today we call liberal or pluralistic democracies--were less likely than
other forms of state to go to war with one another. Broadly speaking, the last 200 years
have proved him right. During that time there have been many horrible wars, which
technology has made ever more destructive. Liberal democracies played a big part in
those wars. But almost always they fought as allies. Dynastic states have fought each
other throughout history--as have religious states, totalitarian states, and military
dictatorships. But liberal democracies have generally found other ways to settle their
disputes.

53
Answers to: Democracy Undermines Deterrence

DEMOCRATIZATION DOESNT WEAKEN DETERRENCE
John Norton Moore, Professor of Law, University of Virginia, VIRGINIA
JOURNAL OF INTERNATIONAL LAW ASSOCIATION, Winter 2004, p. 391-2.
(DRG/C821)
It is doubtful, however, that democracies are uniquely poor at deterrence. Rummel's
analysis of major wars between 1816 and 1991 shows that there were 198 war
pairings between nondemocracies, the largest category of war in this period. If the
earlier analysis of the importance of deterrence in war avoidance when dealing with
potential aggressors is correct, then this level of war between nondemocracies
suggests that nondemocratic regimes also may have great, if not greater, difficulty
deterring.
DEMOCRATIZATION DOESNT WEAKEN DETERRENCE BECAUSE
DEMOCRACIES WIN WARS
JOURNAL OF INTERNATIONAL LAW ASSOCIATION, Winter 2004, p. 392.
(DRG/C822)
Further, the fact that democracies overwhelmingly win the wars they fight should
add to their effectiveness in deterrence. Evidence also suggests that "when
democratic states are strongly resolved to use force, they are better able to convince
their opponents of that fact than are nondemocratic states."
DEMOCRATIC STATES ARE MORE CAPABLE OF DETERRING CONFLICT
THROUGH MORE CREDIBLE COMMITMENTS
James Lee Ray, Department of Political Science, Vanderbilt University, Nashville, DOES
DEMOCRACY CAUSES PEACE?, 1998, Annu. Rev. Polit. Sci. 1998. 1:27-46.,
http://www.mtholyoke.edu/acad/intrel/ray.htm
The ability of democratic states to make credible commitments (Fearon 1994), because
they are visibly faced with greater "audience costs" if they back down (see also Eyerman
& Hart 1996). In other words, the processes leading to wars between unequal states are
distinct from those leading to wars between equal states. For example, fear of failure (a
lost war) may be more likely to have a constraining effect on the leaders of states roughly
equivalent in capabilities (Bueno de Mesquita & Siverson, unpublished data). However, if
the capabilities of the disputing democratic states are highly disparate, intangible
elements may play a particularly important role in the decisionmaking processes on both
sides of the dispute (Bueno de Mesquita et al 1997). The superior ability of democratic
states to make credible commitments or to demonstrate resolve may help unequal,

democratic states avoid the confusion or uncertainty that makes disputes involving
unequal, undemocratic states more likely to escalate to war.
54

55
Answers to: Middle East Democracy Bad

NON-UNIQUE ANTI-AMERICANISM AND POLITICAL INSTABILITY IS RAMPANT IN THE MIDDLE EAST
NOW
Tamara Cofman Wittes is a research fellow in the Saban Center for Middle East Policy at the Brookings Institution,
Policy Review, June-July 2004 i125 p61(16) The promise of Arab liberalism.
But this counterterrorist variant of democratic peace theory is not the only driver for the new policy. The necessity of
promoting Arab reform is also rooted in the inevitability of change over the coming years in the fundamentals of Arab
politics and U.S.-Arab relations. While American interests in the Middle East have generally favored status quo
regimes that could guarantee regional stability, those status quo regimes rest on increasingly tenuous foundations. A
massive bulge of youth entering the labor force, stagnated state-led economies, bureaucratic stasis, and rampant
corruption all suggest looming instability as the gap for Arab citizens between expectations and reality widens. With the
decline of pan-Arab ideology as a way to legitimate governments and insulate them from citizens' demands, and with
the growth of independent information sources through satellite television, the internet, and video and cassette tape,
popular resentment against local leaderships has grown. At the same time, developments in Iraq and Israel, and
sustained American support for conservative Arab autocrats, all have led over the past 10 years to an increase in
popular anti-Americanism, which many regimes have tolerated as a way of diverting public attention from domestic
troubles. In short, the political status quo in the region is unsustainable, and achievement of a new equilibrium in Arab
politics and a new environment for U.S.-Arab relations will necessitate short-term disruption and change
NON-UNIQUE: THE U.S. IS ALREADY PROMOTING DEMOCRACY IN THE MIDDLE EAST
Tamara Cofman Wittes is a research fellow in the Saban Center for Middle East Policy at the Brookings Institution,
Policy Review, June-July 2004 i125 p61(16) The promise of Arab liberalism.
So far the administration's forward strategy of freedom contains four concrete elements to back up the rhetorical
escalation evident since 9-11. The Middle East Partnership Initiative (MEPI), launched in December 2002, is meant to
provide assistance to Arab civil society groups; to promote economic, educational, and political reforms; and to
improve the status of women. In Fall 2003, Bush also called for a Middle East Free Trade Area by 2010: So far, the
"area" includes signed free trade treaties with Jordan and Morocco and negotiations underway with Bahrain. The
United States is also, through MEPI, supporting WTO membership bids by several other Arab states. More recently, in
January of this year, the administration added to its pro-democracy phalanx a proposal to double funding for the
National Endowment for Democracy (NED), a government-supported foundation that sponsors pro-democracy research
and activism. Finally, the State Department is negotiating with its European counterparts a joint statement of reform
principles and a series of coordinating bodies that would guide Western engagement with Arab governments in the
economic, diplomatic, and defense arenas.

56
Advantage: Civil Liberties Violations Threaten Global Democracy

LACK OF RESPECT FOR CIVIL LIBERTIES IN THE U.S. IS UNDERMINING GLOBAL
DEMOCRACY
df
Finally, the United States detachment from its own rule-of-law principles is having a
profound effect on human rights around the world. Counterterrorism has become the new
rubric under which opportunistic governments seek to justify their actions, however
offensive to human rights. Indeed, governments long criticized for human rights abuses
have publicly applauded U.S. policies, which they now see as an endorsement of their
own longstanding practices. Shortly after September 11, for example, Egypts President
Hosni Mubarak declared that new U.S. policies proved .that we were right from the
beginning in using all means, including military tribunals, to combat terrorism. . . . There
is no doubt that the events of September 11 created a new concept of democracy that
differs from the concept that Western states defended before these events, especially in
regard to the freedom of the individual..

57
Answers to: Democracies More Likely to Intervene

KEGLEY & HERMAN ARE WRONG
John Turres, Evidence Based Research, Inc. JOURNAL OF PEACE RESEARCH, 38(2), 2001p. 233
The work of Kegley & Hermann on interventions and the democratic peace presents an overly
pessimistic view of democracies conflict tendencies. Highly questionable cases, including non-state
entities, countries occupied by a foreign power, and invited interventions, are removed from my
reanalysis of Kegley & Hermanns work. Data are provided about regime changes occurring within a
year, leading us to have more confidence in our measure of regime type than one strictly relying upon
aggregate figures. When I analyze all cases between 1945 and 1991 (as well as the two sub-periods
before and after 1974), I find strong support for the Democratic Peace Proposition. Democracies are
less likely to intervene in other democracies in both time periods than what an expected model predict
NO IMPACT HERMAN AGREES INTERVENTION IS A SAFETY VALVE MEASURE THAT
STOPS SHORT OF WAR
Margaret Herman, Maxwell School of Citizenship and Public Affairs, Syracuse

University, JOURNAL OF PEACE RESEARCH, 38(2), 2001p. 240
What is interesting about all these cases is that they provide the analyst with
examples of near misses. As Kegley & Hermann (1995: 13) have observed,
whereas democracies are inclined on occasion to initiate short, restrained
military interventions against other states in the liberal democratic
community, they exhibit reluctance to exercise the full military power
available to them and escalate to war. Intervention appears to operate as a
safety valve, offering democracies a method of conflict resolution with one
another short of war.

58
Democracy Promotes Development 2AC Impact Module

DEMOCRATIZATION IS KEY TO POST CONFLICT DEVELOPMENT
John Linarelli, Adjunct Professor of Law, Georgetown University, DENVER
JOURNAL OF INTERNATIONAL LAW AND POLICY, Spring 1996, p. 253
(DRG/C796)
There can be no flowering of development without the parallel advance of another
key concept: democratization. Peace is a prerequisite to development; democracy is
essential if development is to succeed over the long term. The real development of a
State must be based on the participation of its population; that requires human
rights and democracy.
Development is key to prevent nuclear proliferation and war
Bernard Lown, MD Co-Founder, IPPNW, 1996, http://www.ippnw.org/, Crude Nuclear
Weapons Proliferation and the Terrorist Threat
Nuclear apartheid cannot endure. The stimulus to proliferation derives largely from an inequitable
world order and the growing economic divide between rich and poor countries. One fifth of the world
lives on the edge of subsistence. At a time of potential abundance, more people are hungry than ever
before. We end the century with far more desperately poor, illiterate, homeless, starving, and sick than
we began. Nowhere are the inequities more in evidence than in the health sector. Eight hundred
million people are without any health care at all. One-third of the worlds population lives in countries
whose health care expenditures are far less than $12 per person per year (the bare minimum
recommended by the World Bank) while the industrialized North spends more than $1,000 for health
per person annually. Recent UN figures indicate that from 1960 to 1990, per capita income rose eightfold in the North while increasing only half as much in the deprived lands of the South. This divide is
likely to widen further while accelerating over-consumption in the North and burgeoning population
pressures in the developing countries. As vital raw materials, scarce minerals, fossil fuels, and
especially water become depleted, Northern affluence will be sustained by imposed belt tightening of
impoverished multitudes struggling for mere subsistence. This is an agenda for endless conflict and
colossal violence. The global pressure cooker will further superheat by the ongoing worldwide
information revolution that exposes everyone to the promissory note of unlimited consumption, there
by instilling impatience and igniting more embers of social upheaval. If desperation grows, the
deprived will be tempted to challenge the affluent in the only conceivable way that can make an
impact, namely by going nuclear. Their possession enables the weak to inflict unacceptable damage on
the strong. Desperation and hopelessness breed religious fundamentalism and provide endless recruits
ready to wreak vengeance, if necessary by self immolation in the process of inflicting unspeakable
violence on others. A nuclear bomb affords the cheapest and biggest bang for the buck. No
blackmail is as compelling as holding an entire city hostage. No other destructive device can cause
greater societal disruption or exact a larger human toll. Terrorists will soon raise their sights to
vaporizing a metropolitan area rather than merely pulverizing a building.

59
Democracy Stops Terrorism 2AC Module

1. DEMOCRACY PROMOTION IS KEY TO STOP TERRORISM -DEMOCRACIES DO NOT SUPPORT TERRORIST ACTIVITIES
A survey of countries that support terrorism will show a similar correlation between
democracies and terrorism: in general, democracies do not support terrorist
activities.
2. TOTALITARIAN GOVERNMENTS SPONSOR TERRORISM
(DRG/C819)
As one rough indicator of the correlation between government structures and
terrorism, the seven nations on a recent State Department list of sponsors of
terrorism - including Cuba, Iran, Iraq, Sudan, and North Korea - are all either
totalitarian or autocratic, at least in their foreign policy apparatus.

60
Democracy Solves Many Impacts

DEMOCRATIZATION STOPS WAR, FAMINE, REFUGEE FLOWS, AND
PROTECTS THE ENVIRONMENT
(DRG/C806)
Most now accept that the democratic peace is one of the most important correlations
found to date about the nature of war. The significance of this finding is powerfully
supported by studies of the relationship between the type or "structure" of
government and other widely shared goals, including human rights, economic
development, environmental protection, famine avoidance, control of terrorism,
corruption avoidance, and even ending mass refugee flows. On each of these major
human goals, government structures rooted in democracy, the rule of law, and
human freedom perform impressively better than totalitarian and authoritarian
models rooted in Hegelian statist mystique.
DEMOCRATIZATION STOPS WAR, FAMINE, REFUGEE FLOWS, AND
PROTECTS THE ENVIRONMENT
(DRG/C807)
Once we realize that the correlation with government structures holds across a wide
range of the most important human goals and that nondemocratic structures and a
lack of human freedom go hand in hand with a wide variety of failures, including
war, terrorism, democide, famine, poverty, environmental degradation, corruption,
narcotics trafficking, n50 infant mortality, and refugees, inquiry is pointed in the
direction of a general explanation for this government failure in nondemocratic
regimes.

61
Democracy Stops Democide

DEMOCRATIZATION IS KEY TO STOP DEMOCIDE
(DRG/C814)
Most dramatically, we now know that nondemocratic regimes, in the century just
completed, have slaughtered their populations at a rate that may be as much as four
times greater than that of all combatant war deaths. In his classic work, Death by
Government, published in 1994, R. J. Rummel has estimated this total twentieth
century "democide" at over 169 million. Further, this death by government breaks
down powerfully across a spectrum of government structures ranging from
totalitarianism through authoritarianism to electoral and liberal democracy. The
"megamurderers," with over a million victims, are all totalitarian governments. The
"kilokillers," with tens of thousands dead, are found among authoritarian
governments. And though the democracies account for less than one percent of this
carnage, no government is perfect. As James Madison brilliantly understood, all
government must be checked by law, and liberty requires constant vigilance. Lest
these huge numbers cause the mind to go numb, the Diary of Anne Frank captures
for us their personal horror and, sadly, Zlata's Diary: A Child's Life in Sarajevo,
from the 1990s siege of Sarajevo reminds us that the slaughter did not end with the
Holocaust.
GOVERNMENTS KILL MILLIONS NOT PROTECT THE POPULACE
RJ Rummel, Political Scientist, University of Hawaii, DEATH BY GOVERNMENT, 2001,
http://www.hawaii.edu/powerkills/DBG.CHAP1.HTM
For instance, one textbook I recently read spends a chapter on describing the functions of government. Among these
were law and order, individual security, cultural maintenance, and social welfare. Political scientists are still
writing this stuff, when we have numerous examples of governments that kill hundreds of thousands and
even millions of their own citizens, enslave the rest, and abolish traditional culture (it took only about a year
for the Khmer Rouge to completely suppress Buddhism, which had been the heart and soul of Cambodian
culture). A systems approach to politics still dominates the field. Through this lens politics is a matter of
inputs and outputs, of citizen inputs, aggregation by political parties, government determining policy, and
bureaucracies implementing it. Then there is the common and fundamental justification of government that it
exists to protect citizens against the anarchic jungle that would otherwise threaten their lives and property.
Such archaic or sterile views show no appreciation of democide's existence and all its related horrors and
suffering. They are inconsistent with a regime that stands astride society like a gang of thugs over hikers they
have captured in the woods, robbing all, raping some, torturing others for fun, murdering those they don't
like, and terrorizing the rest into servile obedience. This exact characterization of many past and present
governments, such as Idi Amin's Uganda, hardly squares with conventional political science.

62
Soft-Power Add-On
U.S. DETENTION PRACTICES THREATEN OUR SOFT POWER

eb.pdf
The United States. practices in its global network of detention facilities also has a
deeply
negative effect on the U.S. ability to combat the threat of terrorism. As national
security experts
have pointed out, military power is only one of a set of tools in the nation.s toolbox to
reduce
the chances of more terrorist attacks on U.S. soil. Other critical tools . what some
have called
.soft power. . include diplomatic and economic measures, cultural and educational
exchange,
and the ability to credibly leverage moral and popular authority. 196 This last tool
depends
critically on visible demonstration that the United States deeds match its words in
supporting
democracy and human rights

63
Add-On: Abuse in Detention Facilities

PHYSICAL & SEXUAL ABUSE ARE COMMON IN DETENTION FACILITIES
Theresa Sidebothom was raised in Java and graduated summa cum laude from Wheaton
College. She and her husband taught English and assisted with development projects in
Sumatra for seven years. This paper was originally written for Prof. Ved Nanda's International
Law class at the University of Denver College of Law, for which she received a Scholastic
Excellence Award, DENVER JOURNAL OF INTERNATIONAL LAW & POLICY, Summer 2004, p.
555-6
Conditions can be very poor in detention. The only access to fresh air may be "an hour in a
walled-in cement courtyard with a chain-link roof." Refugees must wear a prison uniform,
which is difficult for women who culturally wear long dresses. A typical setting is a large dormtype room and open showers and toilets separated by three foot walls and no doors. At times
there have been unsanitary conditions, inadequate medical care, and physical and sexual
abuse. One active tuberculosis patient at Wackenhurt apparently exposed 90 other people,
who then tested positive for tuberculosis. Sometimes detainees are mixed with criminals and
sometimes shocked with stun guns, cursed, or beaten. Guards have been prosecuted for
putting detainees' heads in the toilet, pulling their genitals with pliers, and forcing sexual acts.
Adelaide Abankwah, a woman from Ghana who spent two years in detention said, "Please tell
[the INS] that I am not a criminal. I just want to be free... .I feel like I am dead here. There is
no fresh air. I cannot eat. I feel that this is where I will die."

64
International Law Add-On

INDEFINITE DETENTIONS UNDERMINE INTERNATIONA LAW
These preventive detentions are contrary to international law as well as the U.S. Constitution.
The Working Group on Arbitrary Detention of the United Nations Human Rights Commission is
currently reviewing a filing by a U.S. human rights group claiming that these detentions violate
the International Covenant on Civil & Political Rights (ICCPR) prohibition against arbitrary
detention.

65
Human Rights Add-On (2AC Modular)

U.S. DETENTION PRACTICES ARE MODELLED AROUND THE WORLD, LEADING TO
GLOBAL HUMAN RIGHTS VIOLATIONS

eb.pdf
Finally, U.S. policies that promote secrecy and lack of accountability have encouraged
authoritarian regimes around the globe to commit abuses in the name of
counterterrorism . abuses that undermine efforts to promote democracy and human
rights. These regimes selfconsciously invoke the very language the United States
uses to justify such security policies in order to suppress lawful dissent and quell
political opposition in their own countries. To cite a few examples:
In Egypt (where President Mubarak has endorsed a diminished post-September 11
concept of the .freedom of the individual.);
In Liberia (where former President Taylor ordered a critical journalist declared an
.enemy combatant.; the journalist was subsequently jailed and tortured);
In Zimbabwe (where President Mugabe, while voicing agreement with the Bush
Administration.s policies in the .war on terrorism,. declared foreign journalists and
others critical of his regime .terrorists. and suppressed their work);
In Eritrea (where the governing party arrested 11 political opponents, has held
them incommunicado and without charge, and defended its actions as being
consistent with United States actions after September 11); and
In China (where the Chinese government charged a peaceful political activist with
terrorism and sentenced him to life in prison, leading the U.S. State Department to
note .with particular concern the charge of terrorism in this case, given the apparent
lack of evidence [and] due process.).

66
Human Rights Add-On (2AC Modular)

PROTECTION OF HUMAN RIGHTS IS NECESSARY FOR THE SECURITY OF MILLIONS
Paul Hoffman is the Chair of the International Executive Committee of Amnesty International. He is a civil
rights and human rights lawyer with the Venice-based law firm of Schonbrun, DeSimone, Seplow, Harris &
Hoffman LLP, Human Rights Quarterly, Nov 2004, p. 932-955
Without denying the legitimacy of responding to threats of terrorist attacks, a central

problem with the "war on terrorism" is that it ignores other equally or more pressing
challenges to human security. For hundreds of millions of people in the world today, the
most important source of insecurity is not a terrorist threat but grinding, extreme poverty.
More than a billion of the world's six billion people live on less than one dollar a day. The
Universal Declaration of Human Rights and the entire human rights framework is based
on the indivisibility of human rights. This includes not only civil and political rights but
also economic, social, and cultural rights. The discrepancy between these human rights
promises and the reality of life for more than one-sixth of the world's people must be
eliminated if terrorism is to be controlled. Every human being is entitled to a standard of
living that allows for their health and wellbeing, including food, shelter, and medical
care. Yet more than three thousand African children die of malaria each day. Only a tiny
percentage of the twenty-six million people infected with HIV/AIDS have access to the
health care and medicine they need to survive. Many additional examples could be given.
Many governments have adopted the Millennium Development Goals to be achieved by
2015.51 The goals include targets for child and infant mortality, the availability of
primary education for all children, halving the number of people without access to clean
water along with many others. According to the World Bank,52 these goals will not be
achieved, in part because the "war on terrorism" is shifting attention and resources away
from long-term development issues. How can we eradicate violent challenges to the
existing world order if education is not universal? Without education and peaceful
exchanges between peoples, the "war on terrorism" will only succeed in creating new
generations of warriors. Why is terrorism given more attention than the scourge of
violence against women? Millions of women are terrorized in their daily lives, yet no
"war" on violence against women is being waged. Clearly, this problem is more
widespread than terrorist violence and invariably makes women insecure as well as
second-class citizens in every corner of the world. If some of the resources and attention
devoted to the "war on terrorism" were diverted to the eradication of world poverty or
eliminating violence against women, would the world be more secure? There is no easy
answer to this question, but the "war on terrorism" seems to sideline any serious
discussions, along with any serious action on the other pressing causes of human
insecurity. True security depends on all of the world's peoples having a stake in the
international system and receiving the basic rights promised by the Universal Declaration
of Human Rights, regardless of race, gender, religion, or any other status. The "war on
terrorism" undermines that prospect by ignoring all other causes of human insecurity,
while undermining human rights norms that offer a promise of human security for all
human beings. The challenge of terrorism is real and cannot be ignored; however, it must
not blind states of the other challenges just as pressing as the fight against terrorism

67
Human Rights Add-On: Detention Without Charge Undermines Human Rights

Leadership
ABUSIVE SEARCHES AND DETENTIONS UNDERMINE OUR HUMAN RIGHTS LEADERSHIP
ABROAD

2003p. 82
Thus the most serious questions of human rights, and of the price we are prepared to pay in terms of lost
respect for the United States, will arise not here but abroad if we attempt to export the human
counterterrorism costs of extensive searches, electronic surveillance, coercive interrogation, detention, and
limitations on association and speech. Each of these measures, controlled or forbidden at home by the U.S.
Constitution and abroad by international conventions, are likely to be promising ways of getting needed
information about terrorists plans and of otherwise preventing terrorist planning. But each can prove
extremely costly in the longer run
A NUMBER OF FOREIGN GOVERNMENTS ARE MODELLING U.S. POLICIES

df
In the two years since September 11, a growing number of foreign governments have
passed aggressive new counterterrorism laws that undermine established norms of due
process, including access to counsel and judicial review. On June 30, 2003, experts
associated with the UN Commission on Human Rights issued a joint statement
emphasizing their .profound concern at the multiplication of policies, legislations and
practices increasingly being adopted by many countries in the name of the fight against
terrorism, which affect negatively the enjoyment of virtually all human rights -- civil,
cultural, economic, political and social. They also drew attention to the dangers inherent
in the indiscriminate use of the term terrorism and the resulting new categories of
discrimination.

68
Add-On: Racial Conflict

INDEFINITE DETENTION TRIGGERS ANIMOSITY AND RACIAL VIOLENCE
Finally, in addition to incurring financial costs, this regulation contributes to the large social
cost of racism and violent racial targeting. Racial violence against Arab, Muslim and South
Asian Americans increased dramatically after September 11, 2001. In the week following the
attack, 645 bias incidents were reported by media outlets serving large communities in the
U.S. These incidents included serious hate crimes such as assault, arson, shootings and
murder. Hate crimes targeting these communities do not occur in isolation from government
actions. This link between law enforcement targeting of Arabs and Muslims and hate crimes
directed at these groups was noted following the bombing of the Alfred P. Murrah Building in
Oklahoma City as well. Despite occasional rhetoric by politicians denouncing hate violence, the
actions of the INS, law enforcement agencies, and Congress supporting policies that target
immigrants has added to the fervor and anger of those who would viciously attack Arabs,
Muslims and South Asians. The INS amended regulation and practices not only seem to be
targeting Arab, Muslim and South Asian minorities, but they do so in a very public way. At a
time when racist violence against these groups is a critical problem, government policies that
can be perceived as racial targeting by law enforcement agencies serves as a bad example and
sets the stage for increased violence by validating public discrimination. Such a blatant and
public disregard by the government and law enforcement for the rights and protections of
immigrants and immigrant communities encourages the general public to ignore those rights
and protections as well. Justice Brandeis wrote in Olmstead v. United States that "our
government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people
by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto himself; it invites anarchy." His
words could not be more true today. In the government's zealous pursuit of leads in its
criminal investigation of the September 11 attacks, it has publicly trampled upon the
constitutional rights of hundreds of Arabs, Muslims and South Asians. In doing so, it has bred
contempt for the rights of people living in those communities, and it has created an
environment which breeds racist violence against those communities.

69
Due Process Add-On

THE AMENDED REGULATION DOES NOT PROTECT DUE PROCESS
The Amended Rule Fails Substantive Due Process Requirements by Providing for Civil
Detention not Narrowly Tailored to a Justifying Regulatory Interest Government detention
violates these fundamental substantive Due Process rights guaranteed to noncitizens unless it
is either ordered in a criminal proceeding with adequate procedural protections or it falls into
"special and narrow non-punitive circumstances where a special justification ... outweighs the
individual's constitutionally protected interest in avoiding physical restraint." For a civil
detention provision to survive constitutional scrutiny, it must be for a legitimate regulatory
purpose and be narrowly tailored so as not to be excessive in relation to its purpose. Assuming
arguendo that it is authorized by statute, the amended rule is not narrowly tailored to its
regulatory interest and therefore fails to pass constitutional muster. The government's stated
interest in promulgating this rule is to "process cases that arise in connection with terrorist
activities" surrounding the September 11, 2001 attack on the World Trade Center. The
amended regulation is not narrowly tailored to meet its goals. Nowhere does the text of the
rule even mention terrorism. Amended 8 C.F.R. 287.3 lacks procedural safeguards required to
ensure the government's imposed restraints on liberty are not broader than necessary. The
Supreme Court has upheld provisions allowing extended detention only when substantial
hearings prior to detention establish that such regulatory detention is warranted - and even
then, a definite time limit and a clear subclass of persons must be defined. Following these
strict requirements, the Court has found fatal constitutional deficiencies in provisions that
authorize detention without a specified time limitation or were not targeted at a narrow
segment of the population. The amended regulation does not provide any semblance of the
"sharply focused" scheme the Supreme Court demands for civil detention. Although the stated
purpose of the amendment is to facilitate processing of suspected terrorists, the amended
regulation is not limited to people suspected of terrorist activities. Instead, the amended rule
has been placed under a section of the authorizing statute encompassing all immigrants who
are reasonably believed to be in violation of a "law or regulation made in pursuance of law
regulating the admission, exclusion expulsion or removal of aliens." Under this broadly
applicable provision, amended rule 8 C.F.R. 287.3 effectively threatens all immigrants with
potentially indefinite detention without a demonstrated basis of probable clause. Rather than
targeting suspected terrorism, the amended regulation constitutes the kind of "scattershot
attempt to incapacitate those who are merely suspected of these serious crimes" that the
Supreme Court has indicated would be constitutionally problematic. Furthermore, during times
of "emergency," the proposed regulation provides for indefinite detention without any sort of
hearing to justify the government's detention of immigrants who fall into this category. The
scheme for detention created by the amended rule is thus even more deficient than the
schemes struck down in Zadvydas, which required an administrative process to continue
immigrants' detention, or Foucha, which provided for a limited process that put the burden of
proof on the detainee. The amended regulation contains the same flaws which doomed the
schemes in Zadvydas and Foucha; like those unconstitutional schemes, it fails to set a
maximum length of time that the government may detain an individual. The amended rule
also does not place detainees in facilities separate from prisoners facing purely criminal
charges. Civil detention in an immigration context only has been upheld if it is incident to
deportation proceedings and occurs after the INS has established probable cause and
commenced deportation proceedings. Detention in these circumstances is intended only to
effectuate deportation proceedings and "not to punish past transgressions." In contrast,
individuals arrested pursuant to this amended regulation are detained prior to - not following the initiation of any immigration proceeding.
B. The Amended Rule Fails to Meet Procedural Due Process Requirements Under the Balancing
Test Laid Out in Mathews v. Eldridge

70
The amended regulation blatantly violates Fifth Amendment procedural due process
requirements. Procedural due process considerations require balancing three factors: (1) the
private interest affected by the official action; (2) the risk of an erroneous deprivation of the
interest and the value of any additional or substitute procedural safeguards; and (3) the
government's interest, including the fiscal and administrative burdens that additional or
substitute procedures would entail. Procedural due process protections have long been
extended to aliens within United States borders, subject to the same "entry fiction"
considerations discussed above. The government interest in preventing terrorism is obviously
strong. However, the government interest relevant for the procedural due process inquiry is
the much narrower interest in using indefinite detention following warrantless arrests for
immigration violations over other procedures to combat terrorism. The amended rule creates a
dragnet that allows a low level INS officer to impose indefinite detention on any immigrant he
or she suspects of violating an immigration law. This hardly seems the most effective method
of fighting terrorism. On the other side of the balance, the private interest in avoiding
indefinite detention not based on probable cause is overwhelming. But the amendment's
obvious failing is that it contains no procedures attendant to detention to ensure the
deprivation of liberty was not erroneous. Under the amended regulation, the government is at
no specified time required to justify the detention or establish probable cause for detention
before any independent officer, or to inform the immigrant of the reasons for her detention or
allow a detainee to contest her detention. There are no individualized bail or release
procedures. Where, as here, the deprivation is based only on an unconfirmed suspicion of an
INS officer with no required administrative precautions or even a written record, the risk of
erroneous deprivation of liberty is great. Amended 8 C.F.R. 287.3 indefinitely postpones the
only post-arrest protection that an immigrant receives to ensure against erroneous deprivation
of liberty - appearance in front of the examining officer who is required to confirm the
arresting officer's "reasonable belief" under INA 287(a)(2) and inform the immigrant of her
rights and the charges against her. n118 Schemes which have survived procedural due process
tests have succeeded only because of the numerous safeguards protecting against erroneous
deprivations of liberty. In Schall v. Martin, for example, the Court held that a scheme allowing
the pretrial detention of juveniles survived the procedural due process inquiry because the
detained juvenile was initially given (1) an informal appearance, (2) "full notice of the charges
against him and a complete stenographic record of a hearing," (3) informed of his or her
rights, allowed a representative from a presentment agency, (4) and a full-blown probable
cause hearing replete with the ability to call witnesses and an appeal process. n119 Even
under more deferential tests, the Supreme Court has noted the importance of some form of
procedural safeguards to avoid an erroneous deprivation of liberty. In Reno v. Flores, the Court
upheld procedures for detaining noncitizen [*423] juveniles. The Court specifically relied on
the very protection that the amended regulation has eviscerated:
DUE PROCESS IS CRITICAL TO HUMAN DIGNITY

George Kateb, Philosopher, Princeton, THE INNER OCEAN, 1992, p. 8-9
Due process accommodates values by giving various individuals the opportunity for
certain kids of valuable experience. It gives relevant officeholders the experience of
restraint; judges, the experience of impartiality; juries, the experience of deliberation; and
lawyers, the experience of serious play. But, above all, it gives suspects, defendants, and
prisoners the experience of having their dignity respected when they seem, in the eyes of
others and often in their own, to have lost their dignity because they failed to respect that
of others. In that sense, they are the principle experiencers of the intrinsic value of due
process.

71
Due Process Add-On: Detention Without Charge Threatens Due Process

DETENTION UNDER SECTION 412 OF THE PATRIOT ACT VIOLATES DUE PROCESS BECAUSE
NO REVIEW IS POSSIBLE
The procedural due process claim, considered first in this Note, finds constitutional fault in the
absence of fair procedures protecting against wrongful certification. The opportunity for a
meaningful hearing is a critical component of procedural due process, yet the USA Patriot Act
offers an alien no opportunity for a hearing before certification and only tenuous and uncertain
opportunities for judicial review after certification. As argued below, whether or not this
problem amounts to an actual constitutional violation will depend largely on how courts
construe the scope of habeas corpus review of certification. Meanwhile, the substantive due
process challenge stems from the excessive scope of the grounds for certification in section
412: The USA Patriot Act authorizes the certification of individuals who may neither be
dangerous nor present a risk of flight, permitting detention for substantively inadequate
grounds.
MANDATORY DETENTION OF IMMIGRANTS VIOLATES DUE PROCESS
STANFORD LAW REVIEW, April 2003, p.1420
This Note argues that the USA Patriot Act's provisions for certification and mandatory
detention contravene the Fifth Amendment's guarantee of due process of law. By denying
noncitizens the opportunity for meaningful review of the certification decision, and by
authorizing the detention of aliens on substantively inadequate grounds, the USA Patriot Act
raises serious constitutional concerns under both the procedural and substantive prongs of the
Due Process Clause.
DETAINING INDIVIDUALS WHO ARE NOT A SECURITY OR A FLIGHT RISK VIOLATES
SUBSTANTIVE DUE PROCESS
While the procedural due process argument finds section 412 deficient in not providing
constitutionally adequate procedures, the substantive due process claim derives from the
wrongfulness of the detention irrespective of the procedures available. This challenge rests on
the arbitrariness of government detention legislated in the USA Patriot Act: Section 412
violates substantive due process by authorizing government detention of some aliens who
pose neither a danger to the community nor a risk of flight. While it is constitutional to detain
an alien charged with a deportable offense if the individual endangers society or appears likely
to abscond, the detention of an alien who meets neither of these criteria violates the
individual's substantive rights. This argument, therefore, rests not on the absence of an
individualized hearing to determine whether an alien should be detained, but on the fact that
section 412 authorizes certification and detention of aliens who meet neither justification for
detention.

72
BROAD GROUNDS FOR MANDATORY DETENTION VIOLATE SUBSTANTIVE DUE PROCESS

STANFORD LAW REVIEW, April 2003, pp. 1441-2
Under the new law, an alien who is not dangerous and who does not pose a high risk of flight
may be certified and detained. Under section 411, a noncitizen can be deported for providing
material support to an organization, even one which is not officially designated a terrorist
group. An immigrant who makes such a donation can be expelled even if she intended to fund
only the humanitarian or social activities of an organization that engages in a range of social
and political functions. The individual may oppose terrorism and pose no threat of violence;
she may also have strong community ties that make it unlikely that she would abscond. Yet
because her offense now subjects her to the terrorism-related grounds for deportation, she
can be certified by the Attorney General and face mandatory detention. When mandatory
detention is considered in light of the newly expanded substantive grounds for removal, its
justification appears less compelling. The broad grounds for mandatory detention - and its
impact in depriving individuals of liberty, sometimes for years - arguably constitute a violation
of substantive due process.

73
Due Process Add-On: Aliens Have Real Notice

THE ALIENS DONT HAVE REAL NOTICE BECAUSE THE EVIDENCE IS SECRET
Yet section 241.14 suggests that even then, the level of notice and review provided might be
truncated on national security grounds. That regulation states that the alien will be given
notice of the factual basis for detention only to the extent "consistent with the protection of
national security and classified information." In recent years, the INS has regularly denied
bond to aliens on the basis of "secret evidence" allegedly connecting them with terrorist
groups; in such cases, the detainee sometimes received no more than a vague, one-sentence
summary of the government's allegations. The INS defended its practice in federal district
court proceedings when detained aliens challenged the use of classified evidence. Since
September 11, the government has regularly defended the use of "secret evidence" and other
secrecy measures it says are necessary to protect national security. Given that history, it is
likely that in cases arising under section 412, the government would disclose very little
information. With limited disclosure, it is questionable whether an alien would have real notice
of the basis for his certification or a meaningful opportunity to rebut it.

74
Due Process Add-On: Aliens Entitled to Due Process

ALIENS ARE ENTITLED TO DUE PROCESS PROTECTIONS A LIBERTY INTEREST IS AT STAKE
STANFORD LAW REVIEW, April 2003, p. 1429-30

Government detention by definition deprives an alien of physical liberty, but the question arises whether
the alien has a protected interest in that liberty. The Supreme Court has upheld as constitutional the
detention of aliens pending deportation, so aliens awaiting the conclusion of removal proceedings do not
have an absolute legal right to be free from detention. Furthermore, as the Court has affirmed, the decision
to grant bond is within the discretion of the Attorney General. Some lower courts have held that given the
absence of a statutory entitlement to bond, aliens cannot contest INS detention because they have no
protected liberty interest at stake - squashing the procedural due process inquiry at the first step. Several
district courts reached that conclusion in considering whether the mandatory detention of aliens in the
nonterrorism context ran afoul of the Fifth Amendment. In 1996, the Illegal Immigration Reform and
Immigrant Responsibility Act required that aliens with certain criminal convictions be held in custody
pending removal, foreclosing the possibility of bail for a broad class of aliens. Challenges to the
constitutionality of this mandatory detention provision, codified as section 236(c) of the INA, reached
numerous courts. Five federal courts of appeal have now considered whether section 236(c) violates the
Due Process Clause, and the Supreme Court has granted certiorari over the issue. n51 Although all four
appeals courts to consider the question after the Supreme Court's decision in Zadvydas have invalidated the
provision, these courts reached their conclusion on substantive due process grounds and did not rule on
whether the statute also violated the aliens' procedural due process rights. Meanwhile, the Seventh Circuit,
ruling before Zadvydas, sustained the law but did not rule out procedural due process inquiry altogether.
Therefore, the argument that aliens challenging detention do not have a protected liberty interest has not
succeeded at the appellate level in the section 236(c) context, but has also not been explicitly overruled by
higher courts. Yet Supreme Court cases outside the section 236(c) context indicate that aliens do have a
protected liberty interest in freedom pending removal proceedings. Zadvydas in particular, though not
resolved as a procedural due process case, suggests that the Supreme Court would reject a claim that an
alien detained by the government has no procedural rights with respect to his detention. In Zadvydas, the
Supreme Court reaffirmed that "freedom from imprisonment - from government custody, detention, or
other forms of physical restraint - lies at the heart of the liberty that [the Due Process] Clause protects." n53
If aliens ordered removed from the country still have substantive rights to liberty protected by the Due
Process Clause, they must surely have the less exacting right to fair procedures in the implementation of
detention. The Supreme Court has in fact explicitly held that aliens in deportation proceedings are entitled
to procedural due process. Well-settled precedent affirms that deportation is a deprivation sufficient to
trigger the requirement of procedural due process. n54 Because detention is part of the deportation process,
it must accordingly be covered by procedural due process standards. That is, not only must the substantive
evaluation of an alien's deportability be subject to due process of law, but the detention of an alien pursuant
to deportation hearings must also comport with due process. The Supreme Court's decision in Reno v.
Flores n56 confirms that alien detention implicates a protected liberty interest. In Flores, the Court
explicitly subjected alien custody to a procedural due process inquiry. That case concerned an INS
regulation permitting the release of arrested alien juveniles only to their parents or close family members. A
class of alien juveniles argued that the regulation violated due process because it did not require the INS to
determine in each individual case whether the best interests of the minor lay in INS custody or in release to
a "responsible adult" beyond those authorized under the regulation. The Court approached the procedural
due process inquiry first by repeating the point that it is "well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings." Having cited that principle, it turned immediately
to a determination of whether the specific custody procedures met those standards. Although it ultimately
found that the procedures were adequate, the Flores Court reached that conclusion through a detailed
assessment of the procedures, and not by questioning whether INS custody implicated a liberty interest of
the alien. The Court apparently found its own precedent conclusive on the issue. This precedent appears to
settle the point that detention of an alien pursuant to removal does implicate a protected interest.

75
Answers to: Illegals Dont Have Constitutional Protections

ALIENS ENTITLED TO 4A PROTECTIONS
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION, 2003, p. 100
There are literally millions of aliens within the jurisciction of the United States. The Fifth Amendment, as well as the
Fourteenth Amendment, protects everyone of these persons from deprivations of life, liberty, or property without due
process of law. Even one who presence in this country is unlawaul, involuntary, or transitory is entitled to that
constitutional protect (Matthews v. Diaz, 426 U.S. 67, 77 (1976).

76
Add-On: Racism
THE IMMIGRATION DRAGNET EXACERBATES RACIAL, SOCIAL, AND
GENDER STEREOTYPES
OF GENDER, RACE, AND JUSTICE, Spring 2003, p. 206
On the latter point, Ashcroft's Arab-Muslim immigration dragnet exacerbates racial,
religious, and gender stereotypes. As many have documented, exclusively targeting
certain groups, even among noncitizens, is unacceptably both over-and under-inclusive.
Targeting certain groups is overinclusive because interrogating and detaining thousands
of noncitizens based on accidents of birth offends our notions of liberal equality and
individual civil rights. It is also underinclusive because, as mentioned before, there are
U.S. citizens and other foreign nationals who may also be terrorist threats.
TARGETING IMMIGRANTS UNDERMINES EQUALITY IN TWO WAYS
OF GENDER, RACE, AND JUSTICE, Spring 2003, p. 208
While the likelihood that vigilant immigration enforcement will continue to be the
majority's will, our country also subscribes to an equality principle designed to protect
the least powerful among us. The under-policing of U.S. citizen terrorists, and the
perpetuation of invidious stereotypes evident in our current immigration policy,
undermines equality in two ways. First, because immigration law is premised on the
unequal status of U.S. citizens and noncitizens, broad policies that apply only to
noncitizens, even those enacted in the name of national security, are likely to widen the
citizen-noncitizen divide and enhance tensions between the two groups. Second, to the
extent that most U.S. immigrants today are people of color from Asia and Latin America,
the unintended burden of stringent immigration enforcement will fall upon racial
outsiders, exacerbating tensions between whites and nonwhites.

77
Solvency: Should Require Probable Cause

U.S CITIZENS SHOULD ONLY BE DETAINED IF THERE IS PROBABLE CAUSE TO BELIEVE
THEY WILL COMMIT A CRIME
The central issue our proposal presents is whether, at least absent capture in a zone of
active combat, any U.S. person should be subject to detention without counsel, access to
friends or a judicial determination of justification without there being probable cause to
believe that the individual has planned or agreed to help violate one of the large number
of statutes against terrorism that now exist or any statute that Congress may choose to
pass to fill perceived gaps in the present array. We believe that neither citizen nor resident
alien should be subject to detention unless there is probable cause for concluding that the
individual is planning or directly supporting a planned act criminalized by a
congressionally enacted statute. For those who agree that this is a minimum standard for
the detention of U.S. persons, maintaining the rule of law with regard to detention
becomes straightforward.

78
DA Answers: Court Clog Answers

THE AMENDED, INDEFENITE DETENTION REGULATION WILL INCREASE LITIGATION
The Amended Rule Will Result in Considerable Litigation Costs
When immigrants do litigate to protect their rights in court, this amended regulation will result
in significant litigation costs for the government and injured parties. It is evident that by
violating and pushing the envelope of constitutionally permissible procedures, the interim rule
creates serious claims which will foster litigation as injured parties seek relief. Given the
violations discussed in this comment, these injured parties will have three main litigation
strategies for challenging the effects of the amended rule, all of which will be costly for the
government. First, parties detained by the INS for more than twenty-four hours have the right
to challenge their immediate detention by writ of habeas corpus. In each instance, they will be
able to argue that the INS's failure to issue a Notice to Appear is not due to practical
necessities. It therefore would be unreasonable and in violation of their Fourth Amendment
right to have a prompt finding that probable cause exists to support their detention. The
imprisoned individual could further argue that the detention was in violation of the INS's
statutory authority under 8 U.S.C. 1357(a)(2) which requires the INS to determine whether to
institute proceedings "without unnecessary delay." After forty-eight hours, a detainee has even
more compelling Fourth Amendment and due process arguments. When the detainee files a
writ in this instance, the burden of persuasion is on the government to justify its failure to
issue the notice within forty-eight hours. As discussed in Section Two, the INS's only defense
will lie in proving that an emergency or extraordinary circumstance prevented all of its
available officers from determining whether prima facie evidence existed for the arrest.
Furthermore, any individual detained for days without having proceedings initiated have a
cause of action for declaratory and injunctive relief that the INS's practices violated the Fourth
and Fifth Amendments and exceeded its statutory power. Although the individual would
presumably be either released in deportation hearings by the time the suit was brought, the
highly repetitive character of INS operations means that individuals remaining in the country
are "realistically threatened" by similar violations in the future and therefore are entitled to
injunctive relief. For example, in past cases where the INS placed central reliance on ethnic
characteristics in its enforcement campaigns, courts certified plaintiff classes along those same
ethnic lines. Suits against the INS seeking injunctive relief for violations of Fourth Amendment
have been successful in the past. Individuals whom the INS detains for days without making a
finding of prima facie evidence can recover against the INS on a Fourth Amendment claim
based on Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics. Under this theory,
individuals have prevailed against the INS for Fourth Amendment violations and have collected
punitive damages upon a showing that the defendant acted with "evil motive or intent" or
"callous indifference." Individuals imprisoned by the INS in violation of the Fourth Amendment
also will have a cause of action against the INS under the Federal Tort Claims Act. Under the
FTCA, plaintiffs have been entitled to recovery against the government for false arrest and
imprisonment after courts have determined that the INS arrested or detained the plaintiffs in
violation of the Fourth Amendment.

79
Foucault Answers
TURN: TARGETING IMMIGRANTS THROUGH AGGRESSIVE LAW ENFORCEMENT IS A METHOD
OF SOCIAL CONTROL IT IS GOVERNING THROUGH CRIME CONTROL
Teresa Miller, Associate Professor of Law, State University of New York at Buffalo School of
Law, Visiting Associate Professor of Law, University of Miami School of Law, GEORGETOWN
IMMIGRATION LAW JOURNAL, Summer 2003, p. 618
The work of Jonathan Simon and other proponents of the "new penology" describe this process
as "governing through crime." Derived from the work of Michel Foucault, Simon's theory is
that "crime and punishment have become the occasions and institutional contexts" for shaping
the conduct of others. In other words, we are governed through crime whenever crime and its
punishment become the occasion or the opportunity for exercising power over others.
Governing through crime characterizes the recent trend to increasingly construe problems of
regulation as problems of crime, and in doing so, makes available a whole host of tools and
techniques of criminal punishment that would otherwise be inappropriate and unavailable.
Thus, the increasing salience of crime as a rationale for harsher, more punitive treatment of
immigrants demonstrates how non-U.S. citizens are being governed through crime

80
States Counterplan Answers

IMMIGRATION LAW IS UNDER THE PURVIEW OF THE FEDERAL GOVERNMENT
Victor Romero, Professor of Law, Penn State, The Dickinson School of Law, JOURNAL OF
GENDER, RACE, AND JUSTICE, Spring 2003, p. 201
Immigration law is traditionally understood to encompass the rules that govern foreign
citizens' entry into and departure from the United States, and may therefore be seen as an
important domestic arm of the nation's foreign policy power. Immigration law is the exclusive
purview of the federal government. While there are times when federal law might have
unintended effects upon noncitizens, as a vehicle for effectuating foreign policy, immigration
law can serve as an effective complement

Immigrant Detention Negative
81
##Immigrant Detention Negative

Inherency Answers
CONGRESS HAS NEVER AUTHORIZED INDEFINITE DETENTION AND THE
SUPREME COURT KNOWS THAT
WILLIAM MITCHELL LAW REVIEW, v. 29, 2003, p. 966
From a historical perspective, the Court concluded that despite the statute's continuous
historical change, Congress has never authorized, nor did it intend to authorize, indefinite
and permanent confinement. Ultimately, the Court followed the historical theory of
constitutional avoidance, and construed the statute to avoid a constitutional threat. As a
result, once the removal of an alien ordered deported is no longer foreseeable, continued
detention is no longer authorized by statute.
THE COURTS HAVE ALREADY RULED THAT SOMEONE CANOT BE DETAINED
WITHOUT CHARGE FOR MORE THAN 48 HOURS
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION,
2003, p. 158
Finally, the PATRIOT Act permits detention of certified aliens for up to seven days
without the filing of any charges. Yet the Supreme Court has ruled in the criminal setting
that charges must be filed within 48 hours except in the most extraordinary
circumstances.

82
Rights Advantage Answers

DUE PROCESS IS NOT ABSOLUTE SECURITY CONCERNS TRUMP
Liberty interests are not impenetrable, however, because "the Government's regulatory interest in
community safety can, in appropriate circumstances, outweigh an individual's liberty interest." Government
detention will be upheld in certain "special and 'narrow' non-punitive 'circumstances' where a special
justification ... outweighs the 'individual's constitutionally protected interest in avoiding physical restraint.'"
For example, in times of war or insurrection, the government may detain individuals it deems dangerous, or
suspend the writ of habeas corpus. The constitutionality of detention, therefore, rests in large part on its
purpose. A court must examine whether the deprivation of liberty is imposed for the purpose of punishment
or rather in furtherance of regulatory goals and, if in furtherance of regulatory goals, whether the
deprivation is excessive in relation to the purpose of deprivation.
THE PATRIOT ACTS DETENTIONS PROCEDURES ARE A RATIONAL RESPONSE TO THE
TERRORIST THREAT AND ADEQUATE PROVISIONS EXIST TO PROTECT AGAINST RIGHTS
ABUSES
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, P. 412
Finally, this Article will argue that despite the indisputable curtailment of the civil liberties of noncitizens
under both acts, the detention provisions embodied in the Patriot Act represent a reasoned and
proportionate response to the terrorist attacks of September 11, while those under the ATCSA cannot be
similarly justified. Even though the Patriot Act has come under heavy fire in both the United States and
throughout the world, in researching the state of liberty and security after September 11, it is astounding to
observe how restrained the legal response of the United States appears when contrasted with that of the
United Kingdom. Although the United Kingdom was not directly attacked, the detention provisions of the
ATCSA are far more sweeping than those authorized under the Patriot Act. In comparing the legislative
responses of both the United States and the United Kingdom to the terrorist attacks, it becomes apparent
that while the Patriot Act is a rational legislative response which includes sufficient protections to defend
those subject to the Patriot Act's detention provisions, the unrestrained powers of the British government
under the ATCSA are neither strictly necessary, nor balanced, nor accompanied by adequate procedural
safeguards to protect the rights of those detained under the ATCSA.
THOSE DETAINED UNDER SECTION 412 OF THE PATRIOT ACT HAVE ACCESS TO THE
COURTS, HAVE HABAUS CORPUS PROTECTION, AND CAN HAVE THEIR CASE REVIEWED
EVERY 6 MONTHS
Section 412 also requires the Attorney General to review the detention of noncitizens certified under the
Act every six months and to report to the Congress on the number of aliens certified, their nationality, the
grounds for certification, and the duration of detention. In addition, certified individuals who are detained
under the Patriot Act do have access to judicial review. Detainees are allowed to initiate habeas corpus
proceedings in any district court having jurisdiction. Appeals from unfavorable decisions, however, are
limited and more difficult to obtain than prior to September 11, 2001. Appeals may be made only to the
U.S. Court of Appeals for the District of Columbia and the law which must be applied in such cases is
limited to the law applied by that court or the U.S. Supreme Court.

83
Rights Advantage Answers

THE FIGHT FOR FREEDOM NECESSITATES CIVIL LIBERTIES RESTRICTIONS AND
ADEQUATE DETENTION SAFEGUARDS EXIST
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, pp. 455-6
Thus, it is not only possible but probable that the detention provisions of the Patriot Act would pass
constitutional muster. Furthermore, this Article will argue that the Patriot Act's detention provisions, while
possibly hostile to the traditional civil liberties of noncitizens in the United States, are more justifiable than
the detention provisions enacted by the United Kingdom under the ATCSA. In addition, not only are the
detention measures under the Patriot Act reasoned responses to the terrorist attacks of September 11, but
they may be necessary responses in this uncertain time. While history tells us that in our fight for freedom
we may inevitably impinge upon certain civil liberties, history also reassures us that these emergency
measures have had no lasting effect on American society once our battles have been won and peace has
been restored. In fact, the Patriot Act, with its explicit safeguards, may illustrate how previous
infringements on civil liberties have heightened our sensitivity to the importance of protecting civil
liberties. It must be recognized that if we lose our fight against terrorism, the civil liberties of all people,
citizens and noncitizens alike, will no longer survive. Nevertheless, it cannot be ignored that detention
theories are inherently flawed and thus, in the long-term, the detention provisions under the Patriot Act,
while possibly reasoned responses in the name of liberty and security, may ultimately fail in their goal to
eliminate the terrorist threat to the United States
NO SNOWBALL CURRENT INFRINGEMENTS ON CIVIL LIBERTIES WILL BE TURNED BACK
Assuming that public safety and a secure and civil society is the primary goal of both the United States and
the United Kingdom, the detention provisions of the Patriot Act are a well-reasoned response to the terrorist
attacks of September 11, 2001. In the face of great stress, the American system of checks and balances has
worked relatively well to protect the United States from another terrorist attack as well as to detain only
those noncitizens who pose a legitimate threat to the national security of the nation. That being said,
however, the U.S. government should not necessarily be praised for the detention measures found in the
Patriot Act. While the American public may have initially supported or at least acquiesced to the detention
provisions of the Patriot Act, almost two years have passed since the attacks of September 11, 2001. It is
essential for the U.S. government to be mindful that these detention provisions do not have to be permanent
and to recognize that they most probably should not be permanent. In other words, it is important to reevaluate these provisions provided the situation stabilizes. The U.S. government must remember that even
those emergency measures enacted in previous conflicts that most adversely compromised traditional civil
liberties Lincoln's suspension of habeas corpus, FDR's internment of Japanese-Americans were reevaluated once the wars were won. Quite possibly, if history is any indication, the current infringements on
the civil liberties of noncitizens in the United States will heighten our sensitivity so that our concern for
civil liberties in the future will be far greater than it is today.
THE GOVERNMENT HAS PREACHED TOLERANCE NOT INTERNED OR SUSPENDED THE WRITE OF
HABEAUS CORPUS
Richard Leone, THE WAR ON OUR FREEDOMS, 2002, p. 75

An accounting of the state of our liberties should begin with the positives. To his credit, President Bush has
preached tolerance and respect for our Muslim neighbors. Unlike previous wartime governments, this
administration has not sought to prosecute dissenters for political speech, has not attempted anything
comparable to the internment of Japanese Americans during World War II, and (technically, at least) has not
tried to suspend the writ of habeas corpus.

84
Rights Answers: General Takeout Extensions

DETENTION PROVISIONS IN THE PATRIOT ACT ARE A REASONABLE
RESPONSE TO TERRORISM
Extraordinary times call for extraordinary measures. During this uncertain time, it is
impossible for the United States to predict the future with any type of certainty. History
has warned us that in a struggle against evil, the traditional civil liberties of some
individuals may have to be curtailed. Nevertheless, history also assures us that once the
emergency is over, the provisions which adversely compromised traditional civil liberties
will be eliminated and peace can be restored. The detention provisions of the Patriot Act,
while certainly hostile to the traditional civil liberties of noncitizens, can be defended as a
reasoned and justifiable response to the terrorist attacks of September 11, 2001. While the
provisions do subject more individuals than ever to deportation on terrorism grounds due
to the newly expanded definitions of the terms "terrorist activity" and "terrorist
organization," safeguards have been built into the Patriot Act in an effort to adequately
protect noncitizens from the possibility of arbitrary indefinite detention. Some of these
protections include a limitation on the Attorney General's power to delegate his
certification power to the Deputy Attorney General alone, a requirement to initiate
removal proceedings or bring criminal charges within seven days of the commencement
of detention, a limitation on the detention of noncitizens who cannot be removed and
those noncitizens who are waiting to be removed if it is determined that the release of
these noncitizens would threaten national security or public safety, mandatory review of
certification by the Attorney General every six months, and a provision for judicial
review through the filing of a habeas petition and appeals.
NO LASTING THREAT TO CVIL LIBERTIES, AND FIGHTING TERRORISM IS AN APRIORI VALUE
Jan Ting, Professor of Law, Temple University Beasley School of Law, TEMPLE INTERNATIONAL
AND COMPARATIVE LAW REVIEW, Fall 2003, p. 521
History reassures us that the emergency measures enacted by our government during
previous wars, even Lincoln's suspension of habeas corpus during the Civil War, have had no
lasting effects on American society once the war was won and peace restored. Indeed, our
sensitivity over civil liberties is greater now than it has ever been in our history. The liberty
U.S. citizens should be most concerned about right now is the right of all Americans, and nonAmericans, too, to live in peace, free of the threat of terrorism. Defense of that civil liberty is
what this war is all about. But if this war against terrorism is lost, no person's civil liberties will
survive. Accordingly, U.S. national indecisiveness over immigration policy must end.
Immigration law must finally be recognized for what it has always been, an instrument of
national security policy.

85
General Rights Take-Out Extensions

IF THE TERRORISTS KILL US, WELL HAVE NO LIBERTIES TO DEFEND
All Americans must expect restrictions on their personal freedoms. Supreme Court Justice
Sandra Day O'Connor recognized this after inspecting the disaster site in New York City:
"We're likely to experience more restrictions on our personal freedom than has ever been the
case in this country." Simply stated, if we do not prevent terrorists from taking away our
liberties, we will not have any liberties and we will not have the freedoms that we have all
taken for granted.

86
Human Rights Leadership Ad-On Answers

NO SOLVENCY: MILITARY COMMISSION PROCEDURES AND DEATH PENALTY OPTIONS
UNDERMINE INTERNTATIONAL HUMAN RIGHTS NORMS
Trials before the military commissions, established pursuant to the November 2001 order, will not
comply with essential international fair trial safeguards or guarantees of an independent judiciary.
Indeed, the proceedings appear to be no different from military tribunals the international community
has criticized in many other settings as a violation of international human rights standards. The
availability of the death penalty in these military commissions undermines the human rights goal of
eventual abolition of the death penalty; especially in light of the important strides the international
community has made toward abolition of the death penalty in the Rome Statute and elsewhere, for
even the most egregious crimes. These commissions also inhibit international cooperation to
combat terrorism given the strong views of many states that abolition of the death penalty
is an important human rights issue.

87
Rights Bad: Frontline

1. LIBERAL CONSTITUTIONAL RIGHTS UNDERMINE THE ABILITY OF THE
STATE TO SECURE PROTECTION FOR MINIMAL SUBSISTENCE
Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM
LAW REVIEW, April, SYMPOSIUM THE CONSTITUTION AND THE
OBLIGATIONS OF GOVERNMENT TO SECURE THE MATERIAL
PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES, AND THE
GOOD SOCIETY, pp. 1904-5)
Worse, liberal constitutional rights, as they are sometimes authoritatively interpreted in
this country and others, actually limit the state's authority to take action to secure the
material preconditions of the good society. According to some strands of liberal rights
theory as construed by at least some United States constitutional and legal theorists,
individual rights on the one hand, and the state's obligation to ensure the minimal
material preconditions of either well-being, civic virtue, or capabilities on the other, do
not support one another but rather inevitably collide. And individual rights trump state's
obligations. Essentially and inevitably then, liberal rights undercut, rather than support,
efforts to even conceive, much less achieve, an obligatory state role to secure general
well-being. As liberal rights expand, any state role, including any obligatory role,
contracts. This result would hold were well-being defined in terms of capabilities rather
than basic human goods or civic virtue. The good society, and the state's obligation to
ensure that citizens have access to the minimal capabilities necessary to participate in it,
must then be both conceived and achieved by recourse to some means other than rights.
2. STATES HAVE AN ETHICAL OBLIGATION TO ENSURE A MINIMAL LEVEL
OF SURVIVAL
GOOD SOCIETY, p. 1902)
More basically, the state must ensure some minimal level of well-being because such a
threshold is necessary if citizens are to live fully human lives and have the dignity to
which their humanity entitles them. Many citizens of even prosperous democratic states
cannot possibly enjoy such a minimal threshold, furthermore, without some state
involvement in the distribution of resources, particularly with the inequalities that persist
and threaten to worsen today.

88
Rights Bad (Cont)

3. RIGHTS ATOMITIZE AND SO UNDERMINE OUR ABILITY TO OBTAIN THE
GOOD SOCIETY
The second major way in which rights undercut efforts to secure a state obligation to
ensure the minimal material preconditions of those human capabilities themselves
requisite to the enjoyment of a fully human life, according to our major rights critics and
good society theorists, is existential: it goes to how rights envision and then construct our
self-identity. Rights and rights-consciousness render us unduly atomized. In liberal
societies that take rights seriously, individuals are described as, and then tragically
become, isolated from each other in individualized rights-spun cocoons, increasingly
incapable of even approaching each other, much less achieving any meaningful moral or
political empathic connections with fellow citizens.
4. RIGHTS UNDERMINE HUMAN SOLIDARITY
Rights erode rather than enhance our feelings of obligation toward our neighbors, co-citizens, and arguably
even our intimates and family members. Rights leave us identified with our possessions, rather than with
each other. For that reason alone, they seriously undercut the empathic solidarity necessary to sustain a
democratic case for a state obligation to provide for the well-being of others.

89
Rights Bad (Cont)
6. FOLLOWING THE RULE OF LAW ENTRENCHES US IN MATRIX OF

ALIENATION
Peter Gabel, Professor of Law, New College of California School of Law, 1984 (TEXAS
LAW REVIEW, A CRITIQUE OF RIGHTS: The Phenomenology of RightsConsciousness and the Pact of the Withdrawn Selves. May, pp. 1573-4)
For those of us gathered within the geographical borders of the United States, the verbal
concepts that purport to constitute our group in this fashion are contained in "the
Constitution," which signifies both an original moment in which we supposedly came
together to form "a union," and the schema by which we are to reproduce our group
connection through the reproduction of "the State," and through "the following of laws"
created and interpreted by this "State." These laws define how we are "allowed to act" in
the form of "rights." If we now examine the relationship of this schema to the inner
experience of the alienated individual that I have just summarized, we can discover how
the schema is intended to "legalize" this experience and in so doing make the
reproduction of alienation a condition of group membership.
7. THE EXPERIENCE OF THE LAW IS ONTOLOGICALLY BANKRUPT;
ALIENATION IS NOT AUTHENTIC
LAW REVIEW, A CRITIQUE OF RIGHTS: The Phenomenology of RightsConsciousness and the Pact of the Withdrawn Selves. May, p. 1750)
To understand how the law is constructed to this end, we must begin by uncovering the
origins in consciousness of "belief in authority," which is an existential constituent of all
alienated cultural phenomena and which provides the foundation for the law's magical
credibility. To do this, we must focus again on the ontological predicament of the false
self -- on its quality as and absence of being. For if we seek to keep the other at a distance
by using gestures that are not real gestures and adopting moods that are not real moods,
and if the other responds to us with the same intention and in the same way, how can we
sustain our commitment to the reality of these performances in spite of the transparency
of their falseness? We cannot manage this "on our own" because it is precisely the quality
of the roles we "play" that we do not own them. They come to us from an experiential
"outside" via the circle of collective denial that constitutes our cultural conditioning, and
as a result they lack any anchorage with which to secure themselves, in a milieu of
contingency, against the anxiety-producing movement of desire. To put this another way,
our roles lack an "author" that would allow us to claim their authenticity with conviction.

90
Rights Bad (Cont)

8. RIGHTS ARE USED TO SUPPORT COERCION
Michael McCubbin & David Cohen, 2001 (THE RIGHTS OF USERS OF THE
MENTAL HEALTH SYSTEM, http://www.oikos.org/mentalrights.htm)
The paternalistic gift of rights risks being made in bad faith, serving the interests of the
givers rather more than those of the recipients. For vulnerable or marginalized persons,
such a gift too often consists mostly of pretty wrapping paper which nevertheless imposes
an obligation on the person who receives it - hence the coercive exchanges that can occur
under the name of "therapeutic alliance" or "contract", and hence the insistence
frequently found in professional psychiatry literature which in the name of ethics evokes
the duty of patients to "cooperate" with the treatment plan as the quid pro quo for their
right to treatment.

91
Rights Solvency Answers

ONCE CHARGED THEY CAN STILL BE DETAINED
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, P. 414
Other clear misuses of preventative detention have been documented. A lawyer representing
many of the post September 11 detainees stated that "when the feds no longer have any
justification to keep detainees on immigration issues, they resort to criminal charges to keep
them." For example, Shakic Ali Baloch, a Canadian citizen, was held in a maximum security
jail without charges or explanation for three and a half months. When his attorney filed a
habeas corpus petition, he was immediately charged with the federal offense of illegally
reentering the United States.
REMOVING SECTIONS 411 & 412 OF THE PATRIOT ACT ARE INADEQUATE INS
ADMINISTRATIVE REGULATIONS PERMIT INDEFINITE DETENTION
The government did not rely on the newly minted USA Patriot Act for these detentions, for the
Act only provides the Attorney General with authority to detain suspected non-citizen terrorists
for as long as seven days without being charged with a crime and provides for judicial review.
Instead the Administration relied on an extraordinary emergency interim regulation announced
by the Attorney General on September 17, 2001 prior to the passage of the Patriot Act, which
permits the INS, in times of "emergency or extraordinary circumstances" to detain an alien
whom it believes may have violated the law "for a reasonable period of time" while it
investigates the detainee. Indeed, many detainees were held for many weeks prior to being
charged with any violation whatsoever.

92
Solvency Answers: Ext: Just Charge With A Crime

ALMOST ALL OF THOSE DETAINED HAVE BEEN CHARGED WITH A CRIME
Jan Ting, Professor of Law, Temple University Beasley School of Law, TEMPLE INTERNATIONAL AND
COMPARATIVE LAW REVIEW, Fall 2003, p. 506
Much criticism has been directed at the U.S. government because of its arrest and detention of thousands of individuals
since 9/11. Some of these individuals have been charged with criminal law violations. Some have been arrested and
detained on material witness warrants issued by Federal Courts. But the overwhelming majority of those arrested and
detained have been charged with immigration law violations, and the majority of those so charged have been brought
before immigration judges who have ordered them deported from the United States
MILLIONS CAN BE DETAINED ON UNRELATED CHARGES
Philip Heyman, Political Scientist, MIT, TERRORISM, FREEDOM, AND SECURITY, 2003p. 92
In developing a strategy for use of its powers for purposes for which the powers were never intended, the
administration has gone well beyond the carefully targeted use of the power to arrest. In the case of immigration laws,
it has also used its right to control many enforcement choices to delay filing charges, delay hearings, and delay
deportation orders after decision. All of this discretion was given because of the administrative needs of enforcing the
immigration laws. There are about 20 million aliens in the United States at any given time, a high percentage of whom
are at least technically in violation of one or another visa regulation. But that fact is now being used as a device for
holding suspectsmost only weakly linked to terrorismfor purposes of interrogation or incapacitation
IMMIGRANTS CAN BE CHARGED AND DEPORTED ON UNRELATED CRIMES

2003p. 75
Commitment to a prison (as in the case of those responsible for the first World Trade Center bombing or the
African embassy bombings) requires conviction of a crime, which in turn requires proof beyond a
reasonable doubt. Deportation requires something less, but still clear and convincing evidence. Detention
pending trial for a crime or for an immigration violation requires only probable cause, as does the seizure
of assets. And detention and conviction or deportation intended to disable a terrorist can be for an unrelated
minor crime or for an immigration violation.
MOST WHO ARE DETAINED ARE DETAINED FOR MINOR VIOLATIONS
Richard Leone, THE WAR ON OUR FREEDOMS, 2002, p. 9
The administration has also required male immigrants already legally in the United States from twenty
different countries, mostly Arab and South Asian, to register with the Immigration and Naturalization
Service, regardless of their status. Those who fail to register are subject to fines, entry in the National
Crime Information Center database, and possible deportation. In the process, the administration detained
almost 2000 men, almost all for immigration violations, and refused to release their names or any other
information about them. Many of the detainees were held without any charges filed against them for weeks
and months) or on minor immigration violations, others as material witnesses. Some have been deported,
others have been released, but several are still incarcerated. While a few news outlets have reported about
particular individuals who appear to have been unfairly detained, by and large these policies have not
evoked significant public concern.

93
Answers to Politics Link Turns

NO PUBLIC OPPOSITION TO THE DETENTION OF ILLEGAL IMMIGRANTS
Richard Leone, THE WAR ON OUR FREEDOMS, 2002, p. 9)
Fhe administration has also required male immigrants already legally in the United States from twenty
different countries, mostly Arab and South Asian, to register with the Immigration and Naturalization
Service, regardless of their status. Those who fail to register are subject to fines, entry in the National
Crime Information Center database, and possible deportation. In the process, the administration detained
almost 2000 men, almost all for immigration violations, and refused to release their names or any other
information about them. Many of the detainees were held without any charges filed against them for weeks
and months) on minor immigration violations, others as material witnesses. Some have been deported,
others have been released, but several are still incarcerated. While a few news outlets have reported about
particular individuals who appear to have been unfairly detained, by and large these policies have not
evoked significant public concern.

94
Democracy Doesnt Stop War/Wont Solve the Disadvantage Impacts

WAR IS STILL POSSIBLE IN A WORLD OF DEMOCRACY MANY LIMITATIONS
TO THE DEMOCRATIC PEACE THEORY
Stephen Haggard is the Lawrence and Sally Krause Professor at the Graduate School of
International Relations and Pacific Studies, of the University of California-San Diego.
Journal of East Asian Studies, Jan-April 2004 v4 i1 p1(38) The balance of power,
globalization, and democracy: international relations theory in Northeast Asia.
But a number of important reservations have quickly crept into the vast literature on
democratization and the democratic peace. I focus here on four that are relevant for
understanding Northeast Asia.
1. The theory of the democratic peace did not foreclose the possibility of conflict between
democracies and autocracies; to the contrary.
2. The effect of democracy on peace thus hinged on the geographic extent of the
community of democratic nations. As the 1990s wore on, it became clear that the
apparent global trend toward democracy bad limits. Many countries were either not "in
transition" to democracy at all, or new democracies were hobbled by a variety of
weaknesses, from fragmentation and what Thomas Carrothers called "feckless pluralism"
to residual authoritarian controls.
3. Important work by Edward Mansfield and Jack Snyder, popularized and extended by
Fareed Zakaria, (74) showed that democratic peace arguments did not hold with respect
to "transitional," "illberal," or other "qualified" democracies. Such regimes were more
war-prone than either democracies or authoritarian regimes.
4. Even if new democracies did not increase the risk of war, they nonetheless were likely
to redefine their foreign policies in ways that could upset the status quo.

95
Democracy Doesnt Stop War/Wont Solve the Disadvantage Impacts

NO NET REDUCTIN IN WAR NO GOOD EVIDENCE DEMOCRACIES DO NOT
FIGHT AND NO EVIDENCE THAT A REVERSAL TO AUTOCRACY INCREASES
THE WAR RISKS
EDWARD D. MANSFIELD is Associate Professor of Political Science at Columbia University and
author of Power, Trade, and War. JACK SNYDER, Professor of Political Science and Director of
the Institute of War and Peace Studies at Columbia University, is the author of Myths of
Empire, , International Organization, Spring2002, Vol. 56, Issue 2
Consistent with the hypothesis advanced earlier, our resultswhich are reported in the
first columns of Tables 1, 3, 4, and 5indicate that incomplete democratic transitions
(that is, those from autocracy to anocracy) are especially likely to promote the outbreak
of war. Furthermore, such transitions become an increasingly potent impetus to war as a
state's institutional strength degrades. By contrast, there is only scattered evidence that
transitions culminating in a coherent democracy influence war, and there is very little
indication that autocratic transitionseither those from democracy to anocracy or those
culminating in a coherent autocracyprecipitate hostilities.
CLAIMS AS TO WHY DEMOCRACY ENHANCES THE PROSPECTS FOR PEACE ARE FALSE
Sebastian Ratio, Political Scientist, University of Chicago, American
Political Science Review (2003), 97:585-602
Democratic peace theory is probably the most powerful liberal contribution to the
debate on the causes of war and peace. In this paper I examine the causal logics
that underpin the theory to determine whether they offer compelling explanations for
the finding of mutual democratic pacifism. I find that they do not. Democracies do
not reliably externalize their domestic norms of conflict resolution and do not trust or
respect one another when their interests clash. Moreover, elected leaders are not
especially accountable to peace loving publics or pacific interest groups, democracies
are not particularly slow to mobilize or incapable of surprise attack, and open political
competition does not guarantee that a democracy will reveal private information
about its level of resolve thereby avoiding conflict

96
Democratization Triggers War

DEMOCRATIZATION IN A SEA OF AUTHORITARIAN STATES TRIGGERS WAR
If we accept, as I do, the idea that democracy causes peace only among democracies, then
democratization does not contribute everywhere to peace. Imagine the democratization of
a nation located in the middle of a deeply autocratic area. Its democratization would
generate a number of autocratic-democratic dyads and thereby increase the risk of war
PROMOTING DEMOCRACY IN UNSTABLE STATES INCREASES THE RISK OF
WAR
Furthermore, an imposition of democracy in poor and politically unstable countries, as
currently being attempted in Afghanistan and Iraq, is at least as likely to produce hostility
as democratization and stability.
DEMOCRATIZATION EMPOWERS THE POOR, TRIGGERING MASS VIOLENCE AND
ETHNIC CLEANSING
Amy Chua is a professor of law at Yale University in New Haven, Connecticut, ard Business
Review; Aug2003, Vol. 81 Issue 8, p14, 3p, 1c
When democratic reforms give voice to this previously silenced majority, opportunistic
demagogues can swiftly marshal majoritarian animosity into powerful ethnonationalist
movements that can subvert both markets and democracy. That's what happened in
Indonesia and is happening around the world. The same dynamic--in which markets and
democracy pit a poor, frustrated majority against a rich outsider minority--has produced
retaliation, violence, and even mass slaughter of market-dominant minorities, from Croats
in the former Yugoslavia to Ibo in Nigeria.

97

DEMOCRATIC TRANSITIONS RISK NATIONALISM AND CONFLICT
Stephen Haggard is the Lawrence and Sally Krause Professor at the Graduate School of
International Relations and Pacific Studies, of the University of California-San Diego.
Journal of East Asian Studies, Jan-April 2004 v4 i1 p1(38) The balance of power,
globalization, and democracy: international relations theory in Northeast Asia
Yet even were regime change to occur--either gradually or suddenly--recent theory and
empirical research suggest that such change may not be a source of international stability
unless the transition to democracy is rapid and complete. If government institutions and
bases of support are weak, elites revert to nationalist rhetoric as a means of garnering
support "but then get drawn into the belligerent foreign policies unleashed by the
process." One reason why nationalism emerges as a political tool in such settings is
because the breakdown of authoritarian rule threatens incumbent political elites and their
allies in the military and security services and linked economic sectors--in sum,
Solingen's backlash coalitions. If the democratic transition is incomplete or imperfect,
such elites are capable of controlling aspects of foreign policy or forcing opposing
coalitions to make political concessions to them. Such backlash coalitions have not
triumphed in Russia, but they are part of the political landscape, and we have certainly
seen the Chinese Communist Party leadership using nationalist appeals as a unifying
force in the face of political and economic change. North Korea's use of mobilizing
myths is well-known, and the articulation of a self-conscious "military-first" ideological
line in early 2003 demonstrated the political priorities that emerge when countries
experience foreign policy threats.

98

THE TRANSITION TO DEMOCRACY INCREASES THE RISKS OF CIVIL WAR
Havard Hegre is a Researcher, and Scott Gates and Nils Petter Gleditsch are Research
Professors at the International Peace Research Institute, Oslo (PRIO), Fuglehauggata 11,
Oslo, Norway. Tanja Ellingsen is Research Fellow at the Department of Political Science,
University of Oslo, Norway, American Political Science Review, March 2001 v95 i1 p33
Toward a Democratic Civil Peace? Democracy, Political Change, and Civil War,
1816-1992.
The road to democracy is complicated and can be marked by internal violence and even
collapse of the state (Bratton and van de Walle 1996; Casper and Taylor 1996). Autocratic
countries do not become mature consolidated democracies overnight. They usually go
through a rocky transition, in which mass politics mixes with authoritarian elite politics in
a volatile way. Political change deconsolidates political institutions and heightens the risk
of civil war, as discussed by a number of scholars.
DEMOCRACIES OFTEN ATTACK NON-DEMOCRACIES WITH IMPERIALISTIC
JUSTIFICATIONS
Kofi A. Annan is secretary-general of the United Nations, Global Governance, April-June 2002
v8 i2 p135(8), Democracy as an international issue. (Global Insights).
Let me qualify that observation to avoid building too many hopes upon it! Until recently only a
few liberal democracies existed. So we lack enough case histories to justify sweeping
generalizations or confident predictions. Also, democracies often have behaved aggressively
toward nondemocracies. These wars are not always the fault of nondemocracies, as the history of
colonialism illustrates. Sometimes democracies argue that their opponents are illiberal, autocratic,
or undemocratic. They may be right, but saying so does not justify war.
THE RISE OF DEMOCRACY COINCIDED WITH THE RISE OF WAR
Gregory Hess, Political Economist, Oberlin, Journal of Political Economy, August 2001 v109
i4 p776
Such optimistic assessments of prospects for perpetual peace in the face of an increasingly
democratic world, however, are not universally shared. Howard (1983) points to the irony of how
the ascendancy of Kant's liberal peace view coincided with the rise of national militarism in
Europe during the late eighteenth to mid-twentieth centuries. He observes that the spread of
democracy brought by "the French revolution ushered in an era of wars even greater in their
savagery and scope."

99
Answers to No War Between Democracies During the Cold War

NATO AND BIPOLARITY ARE RESPONSIBLE FOR THE ABSENCE OF WAR
BETWEEN DEMOCRATIC STATES, NOT THE DEMOCRATIC NATURE OF
THE COUNRIES
Thomas Schwartz is Professor of Political Science at University of California, Los
Angeles. Kiron K. Skinner is a Fellow at the council on Foreign Relations and the
Hoover Institution and Assistant Professor of History and Political Science at Carnegie
Mellon University, ORBIS, Winter 2001 v46 i1 p159(14) The Myth of the Democratic
Peace.
Here we show that neither the historical record nor the theoretical arguments advanced
for the purpose provide any support for democratic pacifism. It does not matter how high
or low one sets the bar of democracy. Set it high enough to avoid major exceptions and
you find few, if any, democracies until the Cold War era. Then there were no wars
between them, of course. But that fact is better explained by NATO and bipolarity than
by any shared form of government
MAOZS STATISTICAL WORK IS EXPLAINED BY NATO, NOT DEMOCRACY
Peace. (America and the West)..
In their statistical work, Maoz and Russett found that during the Cold War, pairs of
democracies were less likely than pairs of states in general to have militarized interstate
disputes, or MIDs, short of war. But that too is fully explained by NATO and bipolarity.
Of course NATO put a lid on MIDs between its own members. But between NATO and
Warsaw Pact members, what was the Cold War itself if not one big MID? Of course the
developed world, unlike the First World alone, was afflicted by internal MIDs. But far
from increasing the likelihood of war (the sole reason for caring about them), those MIDs
were instances of the very bipolarity that, if anything, helped keep the peace.

100
Answers to No War Between Democracies During the Cold War

MANY REASONS OTHER THAN THE NATURE OF THEIR GOVERNMENTS
THAT DEMOCRACIES DIDNT FIGHT EACH OTHER DURING THE COLD WAR
Thomas Schwartz is Professor of Political Science at University of California, Los Angeles.
Kiron K. Skinner is a Fellow at the council on Foreign Relations and the Hoover Institution and
Assistant Professor of History and Political Science at Carnegie Mellon University, ORBIS,
Winter 2001 v46 i1 p159(14) The Myth of the Democratic Peace. (America and the West)..
Even if we ignore the wider pattern of peace, there is another reason why the observed peace
among Cold War democracies is no evidence that democracy was responsible, no evidence that
shared democracy explains the observation: there is a far better explanation. It has two parts. Part
One is that, regime types aside, war was never likely to begin with. As we have said, most states
do not fight most states most of the time. More to the point, much of the post-1945 world had
been exhausted by war, and no casus belli was evident. The potential revanchists, Germany and
Japan, were in effect occupied by the victorious allies and in military and foreign policy were
semi-sovereign. Also the handful of colonial powers were too occupied trying to hold onto their
remaining colonies to have time to seek more. Part Two is that there existed a potent set of
obstacles to war among the Cold War democracies. Most of them formed a North Atlantic cluster
menaced by the Soviet Union, which did nothing to lure any of them away. That made them do
two things: aim their weapons eastward, and pool their forces in a security organization-- one
sufficiently strong and integrated to block combat among them. Of the Cold War democracies
outside NATO, some (Sweden, Finland, Austria, Switzerland) were neutrally clamped in the vice
jaws of NATO and the Soviet empire, while others (Costa Rica, India, Australia, New Zealand,
Japan) lay far from sister democracies, and the remaining few (perhaps Ireland, San Marino) were
tabbies nestled next to tigers, war for them an impossibility. We are not saying that NATO and the
other obstacles prevented some democracy-democracy war, as though such a war were in the
offing. Thanks to Part One, those obstacles probably were not necessary. Rather, our point is this:
because those obstacles indisputa bly existed, and because, unlike democracy, they indisputably
stood as obstacles to war, we have no grounds to infer that democracy played any pacifying role.
To rule out rival explanations, Maoz and Russett examine pairs of states and regress a war
dummy against mutual democracy and four control variables: contiguity, wealth, growth, and
alliance. But controlling for "alliance" does not come close to controlling for the effects of
NATO membership. Of the thousands of so-called alliances on their list, most are little more than
pieces of paper containing joint declarations of nonenmity. By contrast, NATO was an armed,
integrated, semi-mobilized organization under U.S. political leadership and military command. It
would have been exceedingly hard for a member to start a war against another member. The close
confrontations between Greece and Turkey confirm the point: they never fought. A state might
have pulled out (France did in a limited way), but the Soviet menace helped prevent that, and a
renegade threatening war would have been in near the position of a rebellious province of a single
state: the organization would undoubtedly have found some countermeasure . To control for
"alliance" and find that NATO and our other factors do not fully explain peace between the Cold
War democracies is like controlling for "passage of laws" and finding that the Social Security Act
does not fully explain why retirees received checks after 1935 but not before.

101
Answers to: Popular Politics Means Democracies Dont Go to War

POPULAR POLITICS HAS NOT CONSTRAINED THE U.S. FROM INITAITING
WAR-LIKE ADVENTURES
Patrick Hayden is Assistant Professor of Philosophy and Director of Peace and Justice
Studies at New England College, Henniker, New Hampshire, American Political Science
Review, June 2000 v94 i2 p508 Must Global Politics Constrain Democracy? GreatPower Realism, Democratic Peace and Democratic Internationalism.
Gilbert launches a grassroots-based guerilla assault on the epistemologies of both
positions, and he also raises serious challenges to both liberal and realist conventional
wisdom. He argues that the United States is better understood as an "oligarchy with
parliamentary forms," with the result that public opinion, normally thought to constrain
warlike behavior through democratic practices, is largely ineffective. He points, in
particular, to the American propensity to destabilize and overthrow regimes that are,
paradoxically, too democratic for Washington (e.g., Guatemala in 1953, Iran in 1954,
Chile in 1973). Such interventions, although violent, are not normally counted as "wars"
because they are "domestic" and result in too few casualties. Such omissions matter
because the United States represents one member of the many democratic dyads whose
historical behavior is deemed to constitute the empirical validation of the democratic
peace thesis.
POPULAR MAJORITIES OFTEN CLAMOR FOR WAR
Peace. (America and the West)..
The War Loathing Theory, advanced by Kant and entertained by Morgan and Campbell, is that a
democracy is a state ruled by the mass of its inhabitants, and they are loathe to spend lives and
wealth on war. Of course they might be compelled to do so by an aggressor unconstrained by
such loathing, but it could not be another democracy. But as Hamilton pointed out, popular
majorities might clamor for war not forced by foes. President James Madison was urged to attack
Canada by his Republican majority, which also welcomed Andrew Jackson's conquest of Spanish
West Florida under James Monroe. President James K. Polk wanted to fight Mexico, but massive
Democratic support was already there, and he had to resist popular pressure to fight Britain too,
over the Oregon-Canada boundary. President William McKinley sought no war with Spain but
yielded to popular demand. President Woodrow Wilson ran on a peace platform in 1916 but easily
found public support when he reversed course before his second term even began. Prior to the
public disillusionment over Vietnam, American presidents had no trouble kindling public
belligerency. And of course the United States is not exceptional. Nationalistic mass hysteria
currently drives the somewhat democratic warring regimes of the Balkans and Middle East.

102
Answers to: Popular Politics Means Democracies Dont Go to War

IRAQ PROVES THAT DEMOCATIC LEADERS CAN MOBILIZE POPULATIONS
FOR WAR
David Spiro, Political Scientist, University of Arizona, International Security, Fall 1994
v19 n2 p50(37)
If the reason for liberal alliances has to do with representative government, then future
research must take into account differences in the relative autonomy of liberal states.
Kant viewed democracy as a form of despotism precisely because he took the classical
view that pluralist governments were completely permeable to popular interests. The
tyranny of mob rule gives us little reason to think that liberal regimes would never go to
war with other liberal regimes. On the other hand, Kant's republican governments, which
resemble modern notions of relatively autonomous states, have the capacity to mobilize
the masses for war. In 1991 the democratically elected president of the United States
likened the president of Iraq to Hitler in order to garner popular support for the
commitment of 500,000 troops to the defense of a feudal desert monarchy with whom the
United States had no history of alliance or even friendship. Checks and balances may
make America less war-prone, but there is nothing intrinsic about its form of government
to prevent it from ever going to war with one another democracy. Liberal regimes can
incite their populace to foolish wars just as easily as illiberal regimes.
DEMOCRATIC LEADERS ARE NOT CONSTRAINED FROM WAR THEY CAN MOBILIZE
POPULATIONS
David Spiro, Political Scientist, University of Arizona, International Security, Fall 1994
v19 n2 p50(37)
Kant's reasoning about popular consent does not lead us to expect a complete absence of
wars between constitutional republics. Indeed, while the monarchs Kant had in mind
seemed unconstrained in their ability to fight short and limited wars with mercenaries,
modern leaders even of autocracies are rarely free of societal constraints. Even though
they lack democratic checks and balances, modern autocrats cannot remain in power for
long if they do not respond to societal pressures. Conversely, every democracy contains a
state with some degree of autonomy, and leaders can and do mobilize public opinion for
wars that the leaders wish to initiate. Leaders in modern democracies may be more
constrained than leaders in autocracies in their ability to prosecute unpopular wars, but
the constraints are a matter of degree.

103
Answers to: Democracies More Likely to Intervene

DEMOCRATIC COUNTRIES ARE LESS LIKELY TO INTERVENE
John Turres, Evidence Based Research, Inc. JOURNAL OF PEACE RESEARCH, 38(2),
2001, p.
The Democratic Peace Proposition, which contends that no two democracies have gone
to war with each other, has been challenged by scholars who claim that such an argument
does not apply to lower forms of conflict. In a series of articles, Margaret Hermann and
Charles Kegley argue that democracies often intervene in the internal affairs of other
liberal states. But their criteria for case selection and democracy are problematic. In this
study, I retest their arguments over a broader time-span, omitting cases of invited
intervention, non-state entities, and occupied territories. I also employ new intervention
data and a regime-type dataset which accounts for within-year regime changes. I find that
liberal countries are less likely to intervene in the affairs of other free states than is
expected given the democratic presence in the interstate system. The statistical rarity of
such dyadic democratic intervention increases confidence in the applicability of the
Democratic Peace to conflicts falling short of war.
HISTORICAL EVIDENCE SUPPORTS THE CLAIM THAT DEMOCERACIES ARE LESS LIKELY TO INTERVENE
AGAINST OTHER STATES
John Turres, Evidence Based Research, Inc. JOURNAL OF PEACE RESEARCH, 38(2), 2001p. 232
In my re-analysis of Kegley & Hermanns work, I compute a chi-squared statistic for

three temporal domains (194573, 197491, and 194591) to test whether democracies are more
likely to conduct interventions against democracies than would be expected in a null model. 10 From
1945 to 1973 we find that democracies are less likely to intervene against fellow liberal states, as
indicated in Table I. Six interventions have a democratic initiator and target, or 2.95% of all
intervention dyads. This is far less than the 39.8 dyadic democratic interventions a null model (based
upon number of democratic dyads in the international system) would lead us to expect. The chisquared statistic of 43.57 is significant at the 0.001 level. I find similar results when focusing on the
temporal domain suggested by Kegley & Hermann (1974 to 1991). Table I shows that of the 132
foreign overt military interventions during this time-frame, only 6 involved a democracy intervening
against another democracy (or less than 5% of all interventions). An expected model based upon the
number of democratic dyads in the international system predicts that 26.2 dyadic democratic
interventions should have occurred, given the frequency of the democracy in the 197491
interventions. The Pearson chi-squared statistic of 54.23 is statistically significant at the 0.001 level.
Table I indicates that there is more support for the liberal peace arguments when analyzing the 335
foreign overt military interventions from 1945 to 1991. Only 12 involved democracies intervening in
the affairs of other democracies, or 3.6% of the total number of interventions in the Cold War era. 11 An
expected model would lead us to anticipate over five times as many dyadic democratic interventions
(66.3).

104
Democratic Peace Generally False

THE THEORY IS INCOMPLETE
John Norton Moore, Professor of Law, University of Virginia, VIRGINIA JOURNAL OF INTERNATIONAL
LAW ASSOCIATION, Winter 2004, p. 352-3. (DRG/C856)
For all its power, however, the democratic peace proposition is by itself incomplete. In its most common
formulations, it focuses only on the correlation between democracy and war, and this in turn fails to capture the
real strength of the case for democracy, the rule of law, and human freedom across virtually all of the most
commonly shared goals of mankind. Statistical quarrels with the proposition have less ability to persuade when
we see that the same correlation is common across a wide variety of human goals and on some, as with the
staggering twentieth century democide, it is even more conclusive. Perhaps most importantly, since democracies
are all too frequently engaged in major war, as World Wars I and II and numerous "limited wars" since attest,
the concept of the "democratic peace" by itself has not explained war. After all, Rummel's analysis of wars
between 1816 and 1991, which concludes that there were no wars between established democracies in this
period, also shows 155 major war pairings between democracies and nondemocracies.
THE DEMOCRATIC PEACE THEORY DOESNT ACCOUNT FOR NON-DEMOCRACIES
John Norton Moore, Professor of Law, University of Virginia, VIRGINIA JOURNAL OF INTERNATIONAL
LAW ASSOCIATION, Winter 2004, p. 341. (DRG/C860)
As has been seen, the democratic peace proposition by itself does not deal with the issue of how democracies get
into war with nondemocracies. Indeed, for the most part, the social science community, not being international
lawyers comfortable with the normative dimension of war, have been averse to characterizing actions as
aggression.
LIBERAL PEACE THEORY WRONG EMPIRICALLY LIBERAL PEACE DOES NOT EXIST
Alex J. Bellamy, Paul Williams & Stuart Griffin, Lecturers University of Queensland, University of Birmingham
& Kings College, Understanding Peacekeeping, 2004, p. 30 (HARVUN2884)
The liberal peace does not exist. Many critics doubt the empirical evidence for the claim that liberal democracies
tend not to fight each other. Some argue that the evidence is so sparse that peace could be attributed to chance.
Others point out that definitions of democracy and war are so vague that they can be manipulated to
provide favorable evidence for the thesis. A third group of critics point out that there are plenty of cases where
democracies have fought each other. The most commonly cited example of this is the Spanish-American war in
1898.

105
Democratic Peace Generally False

LIBERAL PEACE WRONG DEMOCRACY DOES NOT CAUSE PEACE
Alex J. Bellamy, Paul Williams & Stuart Griffin, Lecturers University of
Queensland, University of Birmingham & Kings College, Understanding
Peacekeeping, 2004, p. 30 (HARVUN2885)
Democracy alone does not account for peace. Neo-realists argue that the domestic
nature of a state does not determine whether or not it goes to war. That is
determined by the logic of international anarchy and the clash of sovereign entities
pursuing their own interests. If this is the case, peace cannot be achieved solely
through the spread of liberal democracy.

106
Secret Evidence Answers

ATTEMPTS TO USE SECRET EVIDENCE IN DEPORTATION HEARINGS HAVE BEEN REJECTED BY THE
COURTS
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION, 2003, p. 101)
In recent years, however, the INS, in the name of fighting terrorism, has repeatedly tried to assert the power to
use secret evidence in deportation hearings. The federal courts have often rejected the efforts, but the INS
persists. For example. when the INS sought to use secret evidence to expel Fouad Rafeedie, a permanent
resident alien, the D.C. Circuit Court of Appeals rejected the governments effort
ALIENS CANNOT BE DEPORTED WITH SECRET EVIDENCE
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION, 2003, p. 101
The due process clause of the Fifth Amendment is another critical constraint on government discretion in the
name of fighting terrorism. A fundamental component of due process is the right to confront ones accusers It is
founded on the premise that the truth is most likely to emerge in an adversarial proceeding, where the accused,
who is in the best position to defend herself, can confront the sources of evidence against her, and can challenge
their veracity reveal their bias, and catch them in contradiction Thus, it is well-established that in no criminal
trial even involving the most dangerous of crimes and the most secret of information may the government
rely on evidence not disclosed to the defendant If the government wants to use an informants testimony, the
informant must take the witness stand. If the government wants to rely on classified information, it must reveal
it in court. Even under the Classified Information Procedures Act, which permits the government to substitute
as evidence an unclassified summary of classified evidence, the courts can accept the substitution only if it
affords the (defendant the same opportunity to defend herself as the full classified record would. The courts
have ruled that the due process clause, which protects all persons living in the United States, citizens or
noncitizens, whether here lawfully or unlawfully, bars the use of secret evidence to deport noncitizens living
here.)

107

NO PRESS COVERAGE OF IMMIGRANT DETAINEES
In contrast, the continued detention and investigation of immigration violators for possible
terrorist links has received unending press coverage over the past year.
NO PUBLIC SUPPORT FOR REIGNING IN IMMIGRATION LAWS POWER TO FIGHT THE WAR ON
TERROR
Moreover, there are no significant signs that the public is willing to shelve immigration policy
as a weapon in the war against terrorism, and thus we cannot expect that the political
branches will either. And perhaps that is as it should be
THE PUBLIC CUPPORTS IMMIGRANT CIVIL LIBERTIES CURTAILMENT, AND WE ARE A POPULAR
DEMOCRACY
Moreover, there are no significant signs that the public is willing to shelve immigration policy
as a weapon in the war against terrorism, and thus we cannot expect that the political
branches will either. And perhaps that is as it should be. Our national policies, for better or
worse, are determined by our representative government, duly elected by our voting public,
and in theory, they try to capture majoritarian sentiment. If, despite the apparent flaws in
implementation, most of the public feels comfortable using immigration law to combat
terrorism, then our republican democracy should support that.
NO PUBLIC SCRUTINTY FOR INDEFINTE DETENTION
Recently, indefinite, prolonged administrative detention has been widely used against another
disfavored group with virtually no public scrutiny whatsoever. Tens of thousands of prisoners
held in State and Federal prisons have been dumped into long-term, sometimes permanent
solitary confinement under draconian and often humiliating conditions
MORE PEOPLE FAVOR TERRORISM PROTECTION THAN CIVIL LIBERTIES PROTECTION

Carol W. Lewis is a professor of political science and public administration at the University of Connecticut.
She is the author of scholarly works published in Public Administration Review, Urban Affairs Quarterly,
Municipal Finance Journal, and other journals, Public Administration Review, Jan/Feb 2005, p. 18-30
A national survey on civil liberties conducted in August 2002 found an even split on the issues of civil
liberties and security: "A small but statistically significant number of Americans have shifted toward the
civil liberties side of the issue since last year, although majorities still support some government
actions that could be seen as curtailing such liberties" (NPR/Kaiser/Kennedy School of Government,
August 7-11, 2002).

108

A LARGE MAJORITY OF THE PUBLIC SUPPORTS THE PROTECTION AGAINST TERRORISM
OVER THE PROTECTION OF CIVIL LIBERTIES
Carol W. Lewis is a professor of political science and public administration at the University of Connecticut.
She is the author of scholarly works published in Public Administration Review, Urban Affairs Quarterly,
Municipal Finance Journal, and other journals, Public Administration Review, Jan/Feb 2005, p. 18-30
Public opinion about civil liberties in the context of terrorism is often formulated in terms of a trade-off,
that is, the extent to which civil liberties must be or should be sacrificed for security. One example is
the standard question, "What concerns you more right now?" (table 4). Another example is the
question asked in an ABC News/Washington Post poll (June 7-9, 2002): "What do you think is more
important right now-for the FBI (Federal Bureau of Investigation) to investigate possible terrorist
threats, even if that intrudes on personal privacy, or for the FBI not to intrude on personal privacy, even
if that limits its ability to investigate possible terrorist threats?" Seventy-one percent responded in favor
of investigating threats, compared to 18 percent responding in favor of personal privacy.

Terrorism Disadvantage & Answers
109
##Terrorism Disadvantage
Terrorism 1NC
A.UNIQUENESS: THE U.S. GOVERNMENT HAS EFFECTIVELY BROUGHT TERRORISM UNDER
CONTROL
CNN 8/24/04, http://www.cnn.com/2004/ALLPOLITICS/08/23/intel.reform.reax/

Tenet said the lack of terrorist attacks inside the United States since September 11, 2001,
and the fact that al Qaeda "has been so badly damaged as an organization" are both "the
direct result of human and technical intelligence working hand-in-hand with analysts both
at home and abroad," a collaboration "inside the CIA that the Roberts proposal would
destroy.
B. Link:
REQUIRING DUE PROCESS PROTECTIONS WILL UNDERMINE THE WAR ON

TERRORISM
LOUIS KLAREVAS is Assistant Professor of Political Science at City University of New York, Harvard
International Review, Fall 2004, p. 18-23

First, the "due process" model fails fully to take into account the magnitude of the challenge involved in
convicting terrorists as criminals by demonstrating culpability beyond a reasonable doubt. The
obstacles include not only the risk to the prosecution of revealing sources and methods, which is likely
to be much greater than in an ordinary criminal trial, but also the limitations imposed by criminal law on
means of obtaining evidence. Means commonly employed overseas in covert operations, unauthorized
wiretaps, for example, may render their fruits inadmissible in domestic criminal proceedings. Moreover,
prosecutors are likely to find it difficult to persuade witnesses to come forward to testify, given the
heightened danger of retaliation.
C. A NUCLEAR TERRORIST ATTACKS WILL RESULT IN RETALIATION THAT WILL KILL 100
MILLION PEOPLE
Gregg Easterbrook, New Republic, November 2, 2001 (AMERICA'S NEW WAR: NUCLEAR THREATS,
http://www.cnn.com/TRANSCRIPTS/0111/01/gal.00.html) (HARV2530) (PDOCSS3500)
Terrorists may not be held by this, especially suicidal terrorists, of the kind that al Qaeda is
attempting to cultivate. But I think, if I could leave you with one message, it would be this: that the
search for terrorist atomic weapons would be of great benefit to the Muslim peoples of the world in
addition to members, to people of the United States and Western Europe, because if an atomic
warhead goes off in Washington, say, in the current environment or anything like it, in the 24 hours
that followed, a hundred million Muslims would die as U.S. nuclear bombs rained down on every
conceivable military target in a dozen Muslim countries.

110
Immigration Link Extensions

DEPORTING POTENTIAL ALIENS TERRORISTS HELPS THE WAR ON TERRORISM
Jan Ting, Professor of Law, Temple University Beasley School of Law, TEMPLE INTERNATIONAL
AND COMPARATIVE LAW REVIEW, Fall 2003, p. 507
So there is nothing per se wrong with simply enforcing U.S. immigration laws regardless of
whether those removed are terrorist suspects or not. Such removals indirectly serve the war
on terrorism by reducing the number of illegal aliens and the resulting culture of fraudulent
documents among whom and in which foreign terrorists can conceal themselves. That the U.S.
government lacks the resources to remove all of the estimated ten million illegal aliens from
the United States at once ought not preclude the United States from removing some of them.
To the allegation of selective enforcement, Justice Antonin Scalia has said: An alien unlawfully
in this country has no constitutional right to assert selective enforcement as a defense against
his deportation ... . When an alien's continuing presence in this country is in violation of the
immigration laws, the Government does not offend the Constitution by deporting him for the
additional reason that it believes him to be a member of an organization that supports
terrorist activity.
HUGE RISKS INVOLVED IN RELEASING A POTENTIAL TERRORIST

LOUIS KLAREVAS is Assistant Professor of Political Science at City University of New York, Harvard
International Review, Fall 2004, p. 18-23

Second, no one questions that the costs of releasing a potential terrorist are likely to be greater than
those that ordinarily accrue in the event of an accused's discharge for lack of evidence or procedural
error. The adage that it is better for a hundred guilty persons to go free than for one innocent person to
be incarcerated takes on a different hue in the age of high-technology terror.
IN TIMES OF WAR IT IS UNREASONABLE TO EXPECT THE GOVERNMENT TO FURNISH ENOUGH
EVIDENCE FOR PROBABLE CAUSE FOR EACH POTENTIAL TERRORIST
The Patriot Act provides that the Attorney General may detain an alien if he has reasonable
grounds to believe he is either a threat to national security or is involved in an activity related
to terrorism or government overthrow. Critics maintain that the reasonable grounds standard
is subject to abuse because it is too subjective. In times of war, it is unreasonable to expect
the Department of Justice to furnish evidence amounting to probable cause for each suspected
terrorist. Terrorists operate on a variety of levels. As the hypothetical presented in section (IV)
(B)(1) illustrates, some activities by aliens raise serious concern. However, this concern may
not reach the level of probable cause - at least not without further investigation.
IF ALIENS ARE NOT DETAINED THEY MAY COMMIT CRIMES
WILLIAM MITCHELL LAW REVIEW, v. 29, 2003, p. 967
Third, release of these aliens may increase crime, rather than prevent it. If aliens are not
detained, they may commit crimes against the general population, which they would not have
been able to commit had they been detained. Additionally, releasing an alien pending
deportation increases the risk of unsuccessful deportation, because it is likely that the alien
will disappear into the country, frustrating the process

111
General Detention Link Extensions

THREE REASONS WHY GENERAL MANDATORY DETENTION REDUCES THE RISK OF ILLEGAL
ACTIVITY
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 412-3
First, mandatory detention saves money because it avoids the expense of individualized
hearings. The government has limited resources and cannot afford to do a case-by-case
adjudication of each noncitizen who is suspected of being a terrorist. Second, mandatory
detention diminishes the possibility of errors that arise when a detention determination is done
on a case-by-case basis. Predictions about the threat of a person to the public's safety or the
individual's likeliness to disappear are inherently risky. Often in the course of an individualized
hearing, not all the evidence will be discovered or presented and the findings of fact may not
be accurate. In essence, mandatory detention, by eliminating the risk of prosecutorial error,
protects the public more thoroughly. Finally, mandatory detention deters further immigration
violations. It both advances the government's interest in ensuring the removal of aliens who
are ordered deported and sends a message to those noncitizens contemplating criminal or
terrorist acts in the United States. Arguably, if suspected terrorists are aware that they could
be detained indefinitely, they may be discouraged from attempting to enter the United States
illegally or from filing frivolous asylum claims.
INDEFINITE DETENTION BOLSTERS TERRORIST CRIMINAL INVESTIGATIONS
NEW YORK LAW SCHOOL REVIEW, Fall 2003, P. 414
The first justification behind 412 of the Patriot Act is that it allows the Department of Justice to
continuously investigate individuals it reasonably believes may have involvement in terrorism.
In essence, mass detention of terrorist suspects will assist authorities in the largest criminal
investigation in U.S. history. The complexity of the case requires officials to hold on to anyone
who may have information, especially if that person already is living illegally in the United
States.
INDEFINITE DETENTION PROTECTS FROM SUBSEQUENT TERRORIST ACTIVITY
NEW YORK LAW SCHOOL REVIEW, Fall 2003, pp. 414-5
Next, the detention of the alien-terrorist suspect protects the nation from any subsequent
terrorist activity that the alien may engage in. The Patriot Act prevents instances where
terrorists can be released on bond, only to commit crimes of mass murder. Their ability to be
released on bond, and subsequently escape, would put the nation in grave danger. Consider
the unprecedented problem that may well be presented by some of the individuals that the
Justice Department has arrested or taken into custody for questioning with regard to the
September 11th attacks

112
General Detention Link Extensions

DETENTION UNDER SECTION 412 IS NECESSARY TO ENSURE THE TERRORIST SHOWS-UP AT
THE DEPORTATION HEARING
Finally, 412 ensures that the terrorist suspect will be present at future deportation hearings. In
the months following September 11th, over 1,000 people were detained for possible
connections to the attacks. Many of these individuals are being held in custody based on a
violation of immigration status - they have violated the law. Attorney General John Ashcroft
states that the Department of Justice must have the ability to keep them in jail and not have
them bonded out. Statistical studies show high recidivism rates for released aliens. One
Government Accounting Office study, cited by Congress in floor debates on the Antiterrorism
and Effective Death Penalty Act of 1996, put the figure as high as seventy-seven percent. This
means that over three-quarters of those aliens that have an immigration hearing fail to
appear. This must not be allowed to happen with potential terrorists. "Illegal aliens who have
links to those who are part of a terrorist network, pose an increased risk and must be kept off
the streets."

113
Answers to: We Can Deter Terrorists

TERRORISTS CANT BE DETERRED
Graham Allison is the founding dean of Harvard's modern John F. Kennedy School of Government and
Director of the Belfer Center for Science and International Affairs. He was Assistant Secretary of Defense in
the first Clinton Administration, The American Prospect, March 2005, p. 48
First, it has made an important conceptual advance in recognizing that the gravest danger lies in what
Vice President Dick Cheney termed the "nexus between terrorists and weapons of mass destruction"terrorists armed with nuclear weapons. It rightly rejected a status quo that let terrorists and weaponsof-mass-destruction threats hide behind a shield of state sovereignty. It employed the full spectrum of
American military power to topple the Taliban in Afghanistan and deny terrorists sanctuary anywhere in
the world. And it has been prepared to revise traditional Cold War policies of deterrence and
containment in those cases where they are no longer sufficient. Deterrence, which discouraged other
states from launching a nuclear attack on the United States through the threat of overwhelming
retaliation, is less applicable to suicide bombers or terrorists with no return address.

114
Nuclear Terrorism Threat

AL QAEDA COULD DETONATE A NUCLEAR BOMB IN THE U.S. WITHIN 5-10 YEARS
Robert L Gallucci, Dean of the Edmund A. Walsh School of Foreign Service at Georgetown University, He
was the US Department of State's Special Envoy for Nonproliferation from 1998 to 2001, Harvard
International Review Winter 2005, p. 84
For more than 50 years, the United States has depended on deterrence for defense against its
principal adversaries. But deterrence can be trusted no longer. Today's adversary values his life less
than the death of Americans. This adversary is not a candidate for deterrence. Moreover, while he
lacks a ballistic missile delivery system, he has such a variety of other means to deliver a nuclear
weapon that the United States cannot have any confidence in its ability to mount a sustained defense
by denial. Unless many changes are made, it is more likely than not that Al Qaeda or one of its
affiliates will detonate a nuclear weapon in a US city within the next 5 to 10 years
LARGE RISK OF NUCLEAR TERRORISM

Jon B. Wolfsthal, Council on Foreign Relations, Foreign Affairs, Jan-Feb 2005 v84 i1 p156
There are more than 28,000 nuclear devices in existence today, more and more countries are
acquiring the means to produce them, and there is mounting evidence that al Qaeda has every
intention of using a nuclear weapon if only it can get its hands on one. Simply recognizing these
dangers, however, is not a strategy for confronting them; workable remedies are sorely needed.
Nuclear threats fall into two basic categories. In the short term, nuclear terrorism poses the most
acute risk. Once al Qaeda or another group possesses a weapon, deterring or preventing an
attack will be all but impossible. Luck, as much as money and hard work, has helped prevent
such an attack to date.

115
Al Qaeda Is A Nuclear Threat

AL QAEDA HAS NUCLEAR AMBITIONS
Al-Qaeda remains a formidable enemy with clear nuclear ambitions. The former head of CIA'S bin
Laden task force, Michael Scheuer, has detailed how in May 2003, Osama Bin Laden acquired a fatwa
from a Saudi cleric, providing a religious justification to use nuclear weapons against America. Titled "A
Treatise on the Legal Status of Using Weapons of Mass Destruction Against Infidels," it asserts that "if
a bomb that killed 10 million of them and burned as much of their land as they have burned Muslims'
land were dropped on them, it would be permissible." Scheuer, who followed terrorism and militant
Islam for much of his 22-year career, is particularly troubled by "the careful, professional manner in
which al-Qaeda was seeking to acquire nuclear weapons."
AL AQEDA WANTS NUCLEAR WEAPONS
Matthew Bunn, senior research associate in the Project on Managing the Atom in the Belfer Center for
Science and International Affairs at Harvard University's John F. Kennedy School of Government, Issues in
Science and Technology, Winter 2005, PP. 55-62

First, by word and deed, al Qaeda and the global movement it has spawned have made it clear that
they want nuclear weapons. Osama bin Laden has called acquiring nuclear weapons a "religious duty."
Al Qaeda operatives have repeatedly attempted to obtain nuclear material and recruit nuclear
expertise. Two senior Pakistani nuclear weapons scientists met with bin Laden at length and discussed
nuclear weapons. Documents recovered in Afghanistan reveal a significant nuclear research effort

116
Terrorists Can Gain Access to Nuclear Material

MULTIPLE OPPORTUNITIES FOR TERRORISTS TO GAIN ACCESS TO NUCLEAR MATERIAL
This scenario, however grim, depends on highly enriched uranium "leaking" out of a country without
the assistance or knowledge of the government. A nuclear facility might lose uranium to theft by
criminals, terrorists, or even insiders cooperating for ideological or financial reasons. Either way, fissile
material today is inadequately secured. After more than a decade of efforts to improve physical
security in the former Soviet Union, much is still to be done. The situation in Pakistan is less clear, but
clear enough to be a cause for concern
TERRORISTS COULD GET NUKES VIA THEFT OR DIRECT ACQUISITION
Another scenario, equally worrying, is the transfer of fissile material by a government or with one's
acquiescence, which could become plausible in the not-too-distant future should North Korea or Iran
continue on their current course. A third scenario involves the acquisition, by theft or transfer, of a
completed nuclear weapon. Some are designed to prevent unauthorized use, but many are not.
Russian stockpiles of tactical nuclear weapons, including so-called suitcase bombs, are large, and
their security remains a concern. While the numbers of weapons in North Korea and Iran are orders of
magnitude smaller, the possibility of loss or transfer exists and is presumably increasing as stockpiles
grow

117
Nuclear Material Vulnerable To Terrorist Theft

RUSSIAS NUCLEAR MATERIAL IS NOT SECURE
Russia's 12-time-zone expanse contains more nuclear weapons and materials than any country in the
world, including more than 8,000 assembled warheads and enough weapons-usable material for
80,000 more, much of it vulnerable to theft. Thirteen years on, according to Department of Energy
data, not even half of Russia's nuclear weapons and materials have been secured to acceptable
standards. These present attractive targets for terrorists shopping for a bomb. In her confirmation
hearing, Secretary of State Condoleezza Rice agreed, stating, "I really can think of nothing more
important than being able to proceed with the safe dismantlement of the Soviet arsenal, with nuclear
safeguards to make certain that nuclear-weapons facilities and the like are well secured."
FEWER WEAPONS ARE BEING SECURED IN RUSSIA
But after America was attacked by bin Laden, what happened to U.S. spending and related efforts to
secure nuclear weapons? Funding for the critical Nunn-Lugar Cooperative Threat Reduction program
for securing loose fissile material remained at about the same level. And the brute fact is that in
Russia, fewer potential nuclear bombs were secured in the two years after 9-11 than in the two years
before.
NUCLEAR MATERIALS ARE VULNERABLE TO THEFT WORLD-WIDE
Nuclear materials remain vulnerable to theft in a number of other countries as well. As inspectors have
been unraveling and retracing A.Q. Khan's global black-market network, we now know that Libya was
not his only customer. Clearly he traded nuclear secrets and technologies to the North Koreans for
their assistance with Pakistani missile programs, and inspectors are still searching for the results of his
dozen trips to Iran in the '90s. Although in the past four years some highly enriched uranium has been
removed from five countries, bombs-worth amounts of nuclear material remain at risky research
reactors in more than 20 transitional and developing states, including Belarus and Uzbekistan. In some
cases, there is little more protecting the weapons-quality material than a padlock and an unarmed
guard.

118
Nuclear Materials Are Not Secure

GLOBALLY, NUCLEAR MATERIAL IS NOT SECURE
Jon B. Wolfsthal, Council on Foreign Relations, Foreign Affairs, Jan-Feb 2005 v84 i1 p156
But nuclear weapons do not grow on trees, and terrorist groups cannot at the moment produce
highly enriched uranium or plutonium--the key ingredients in a nuclear device--which can come
only from the existing military or civilian stocks of nations. The bad news, as Allison lays out in
great detail, is that the world is losing the race to secure its nuclear material. The International
Atomic Energy Agency (IAEA) has documented close to two dozen cases of nuclear smuggling,
raising the terrifying question of what might have gone unnoticed. Although some of his examples
are less substantiated than others, Allison provides ample evidence that terrorists have
opportunity to buy or steal either a nuclear device or the material to build one. Interspersed with
graphic images of recent terrorist attacks in Russia, reports of such opportunities do more than
enough to communicate the gravity of the threat.
MUCH NUCLEAR MATERIAL IS NOT SECURE WORLD-WIDE

Currently, however, the scope and pace of the U.S. and world response simply do not match the
urgency of the threat. As the new presidential term begins, much of the work of securing the world's
nuclear stockpiles so that they cannot fall into terrorist hands remains unfinished. Scores of nuclear
terrorist opportunities lie in wait in countries all around the world-sites that have enough nuclear
material for a bomb and are demonstrably not adequately defended against the threats that terrorists
and criminals have already shown they can mount. These insecure caches also represent
opportunities for hostile states, because stolen nuclear material could cut years off the time needed to
obtain their first bomb.
100S OF TONS OF NUCLEAR MATERIAL IS VULNERABLE TO THEFT

Third, hundreds of tons of nuclear material in dozens of countries around the world today remain
dangerously vulnerable to theft. There are no binding global nuclear security standards, and nuclear
security around the world varies from excellent to appalling, Many of the more than 130 civilian
research reactors using HEU fuel, which are found in some 40 countries, on every inhabited continent,
have no more security than a night watchman and a chain-link fence. Most of the nuclear facilities in
the world, including many in the United States, would not be able to provide a reliable defense against
attacks as large as terrorists have already proved they can mount, such as the four coordinated,
independent teams of four to five suicidal terrorists each that struck on September 11, 2001, or the 40
terrorists armed with automatic weapons and explosives who seized a crowded Moscow theater in
October 2002. Theft of the essential ingredients of nuclear weapons is not a hypothetical worry, it is a
current reality: The International Atomic Energy Agency (IAEA) has documented 18 cases of theft
involving weapons-usable plutonium or HEU.

119
Nuclear Materials Not Secure

NUCLEAR MATERIAL IS BEING SECURED NOW

The United States, other countries, and the IAEA have a wide range of efforts under way to secure,
monitor, and reduce stockpiles of nuclear weapons and materials in the former Soviet Union and
around the world. These efforts have had real, demonstrable successes, representing an excellent
investment in U.S. and world security. Enough material for thousands of nuclear weapons has been
permanently destroyed. Indeed, half of the nuclear-generated electricity in the United States now
comes from blended-down HEU from dismantled Russian nuclear weapons. Security for scores of
vulnerable nuclear sites has been demonstrably improved. At least temporary civilian employment has
been provided for thousands of nuclear weapons scientists and workers who might otherwise have
been driven by desperation to seek to sell their knowledge or the materials to which they had access.
But in virtually every aspect of these efforts, much more remains to be done.
By the end of fiscal year (FY) 2004, the Department of Energy (DOE) estimates that at least the first
round of U.S.-sponsored "rapid upgrades"-for example, bricking over windows and installing nuclear
material detectors at doors-had been completed for some 46 percent of the estimated 600 tons of HEU
and separated plutonium in the former Soviet Union. Within that total, more complete "comprehensive
upgrades" had been completed for roughly 26 percent of the material. On the other hand,
comprehensive upgrades have been completed for some 70 percent of the sites where these materials
exist, but most of the nuclear material is at the 30 percent of the sites where these upgrades have not
yet been completed. Under an accelerated plan developed after the 9/11 terrorist attacks, DOE hopes
to complete comprehensive upgrades for all of this material by the end of 2008, but achieving that
objective will require a dramatic acceleration of the current pace of progress. During FY 2004, the
amount of material covered by either rapid or comprehensive upgrades increased by only a few
percent

120
Terrorists Will Get Nukes From States

AL QAEDA HAS CBW RESOURCES
HUMAN EVENTS, February 21, 2005, p. 1
Al Qaeda and affiliated elements currently have the capability to produce small amounts of crude
biological weapons, and may have acquired small amounts of radioactive materials," Loy said. FBI
Director Robert Mueller told the committee: "[B]ecause of al Qaeda's directed efforts this year to
infiltrate covert operatives into the U.S., I am also very concerned with the growing body of sensitive
reporting that continues to show al Qaeda's clear intention to obtain and ultimately use some form of
chemical, biological, radiological, nuclear or high-energy explosives material in attacks against
America.

121
Answers to: Terrorists Cant Make Nukes

TERRORISTS CAN GET NUKES ONCE THEY HAVE THE MATERIAL

Second, if terrorists could obtain the HEU or plutonium that are the essential ingredients of a nuclear
bomb, making a bomb might well be within the capabilities of a sophisticated group. One study by the
now-defunct congressional Office of Technology Assessment summarized the threat: "A small group of
people, none of whom have ever had access to the classified literature, could possibly design and
build a crude nuclear explosive device . . . Only modest machine-shop facilities that could be
contracted for without arousing suspicion would be required."
LAW ENFORCEMENT APPROACHES TO TERRORISM FAIL TOO LATE
Elizabeth Rindskop Parker, dean of the University of the Pacific McGeorge School of Law in Sacramento,
California. Issues in Science and Technology, Winter 2005, p. 86
Heymann's analysis of current policy and doctrine establishes why the practical realities of terrorism
require such fundamental changes in the approach to domestic security. Law enforcement, traditionally
central to domestic security, is organized to react to, not prevent, catastrophic attacks. Its approach
typically is to delay action until a problem occurs or at least until there is strong evidence showing that
it will occur. Because its principal goal is to convict criminals, the law enforcement community generally
accepts an increase in the risk that a crime will occur in exchange for an increase in the likelihood of
obtaining a conviction at trial. Heymann suggests that terrorism requires a different approach.

122
Nuclear Terrorism Economy Impacts

A NUCLEAR TERRORIST ATTACK IN THE U.S. WILL DESTROY THE GLOBAL ECONOMY

Fifth, such a crude terrorist bomb would potentially be capable of incinerating the heart of any city. A
bomb with the explosive power of 10,000 tons of TNT (smaller than the Hiroshima bomb), if set off in
midtown Manhattan on a typical workday, could kill half a million people and cause more than $ 1
trillion in direct economic damage. Devastating economic aftershocks would reverberate throughout
the world

123
Answers to: Plan Increases Soft Power, Reducing Terrorism

1. POINTLESS THEY JUST INCREASE THE SHARING OF BAD INTELLIGENCE
2. THE EU IS COMMITTED TO COOPERATING ON TERRORISM WITH THE U.S.
NOW
GIJS DE VRIES, EUROPEAN UNION COUNTER-TERRORISM COORDINATOR,
FDCH, September 14, 2004
Thank you for the invitation to be with you today. I appreciate the opportunity to discuss
with you the policy of the European Union in the fight against terrorism. Terrorism is a
global scourge. It must be countered globally. The European Union is fully committed to
do so, and to act in close concentration with the United States. I am particularly pleased,
therefore, to reflect today, together with Mr. William Pope, on the joint efforts of the
European Union and the United States in the field of counter-terrorism.
3. DESPITE DIFFERENCES, THE U.S. IS COOPERATING WITH EUROPE ON
TERRORISM
GIJS DE VRIES, EUROPEAN UNION COUNTER-TERRORISM COORDINATOR,
FDCH, September 14, 2004
But these differences of perspective should not--and do not--impede our continuing cooperation which is ongoing in a wide range of areas, as was highlighted by the EU-US
declaration on combating terrorism adopted at our summit in June. This set an ambitious
agenda for the months ahead, which I look forward to discussing with Secretary Ridge
and Attorney-General Ashcroft later this month.

124
2AC Answers
1. NO LINK: THE AMENDED, INDEFINITE DETENTION REGULATION DOES WILL NOT
REDUCE TERRORISM AND ALIENATES ETHNIC COMMUNITIES WHOSE COOPERATION IS
NEEDED TO FIGHT TERRORISM
Immigrant Rights Clinic, New York University School of Law, New York University Review of Law &
Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, pp. 424-6
A.The Amended Regulation Is Not An Effective Means of Investigating Terrorist Activity
The INS already has stopped, arrested and interrogated hundreds of Arabs, Muslims and South Asians in
order to find potential terrorists and their supporters. Many of these people have been held with little or no
access to their families or lawyers. The amended regulation attempts to institutionalize these civil rights
violations by allowing the INS to hold undocumented immigrants indefinitely. Writing forty days after the
investigation began, one journalist noted that the government "has failed to develop evidence that anyone
now in custody was a conspirator in the Sept. 11 terror attacks." These sweeping investigations of an entire
ethnic group in hopes of discovering a minute number of dangerous elements evoke memories of one of the
most atrocious episodes of our nation's history: the internment of Japanese Americans during World War II
under Executive Order 9066. Recent reports indicate that private prison companies have seen their stock
jump as high as 300 percent in anticipation of an increased demand to hold "suspects and illegal aliens" in
internment camps. These reports highlight the risk that our nation is succumbing to the same racist and
xenophobic fears that led to Japanese internment. Not only does this "needle in a haystack" approach run
counter to antidiscrimination principles by targeting large populations of immigrants in order to find a few
scattered individuals, it also wastes the time, efforts and resources of law enforcement. The "profiling" of
Arab, Muslim and South Asian immigrants has other costs as well. Most significantly, profiling alienates
the populations that could be of crucial help to law enforcement. Arab communities are poised to provide
significant assistance in the current circumstances. The New York Times noted that "for decades, federal
law-enforcement and intelligence agencies ignored the huge reservoir of Arabic-English language skills" in
settlements of Arab immigrants. These agencies have now recognized this crucial gap and are working with
these communities. However, these same agencies simultaneously are using immigration violations to
indefinitely detain Arabs, Muslims and South Asians. Thus, "largely minority communities are denied an
official explanation and are left to connect the dots and fill in their own theory of racial prejudice in
policing." By proposing and implementing the amended regulation, the INS is creating the perceptions that
alienate the very communities in which federal agencies need to cultivate a sense of trust and cooperation.
This loss of trust has profound effects on the relationship between law enforcement and targeted
communities. In particular, the perception of procedural fairness strongly influences the perceived
legitimacy of authorities. "If people feel unfairly treated when they deal with legal authorities, they then
view the authorities as less legitimate." The INS regulations add to a perception of procedural unfairness
both by creating the possibility of indefinite detentions and by granting authorities such expansive
discretion to employ them. Furthermore, to implement such a regulation in response to a terrorist attack
adds to the idea that immigrants are being targeted on the basis of race and/or religion, thus undermining
the state's legitimacy as an actor actually concerned about the welfare of these communities.
This perception of mass persecution ultimately will make Arab and Muslim communities less willing to
help law enforcement. "Personal experiences and popular images of police brutality or prejudice only
confirm widely held suspicions, solidifying distrust on both an individual and group level... . Members of
distrusting communities will shy away from cooperation with law enforcement, withholding valuable
information or creative solutions to social ills." The procedural unfairness of the amended rule will
reinforce existing notions of police and INS prejudice toward Arab and Muslim peoples, magnify
community distrust and reduce the communities' critical support for and involvement in law enforcement
efforts.

125
2AC Answers (Cont)

UNDERMINING HUMAN RIGHTS IN THE NAME OF SECURITY LEADS TO GENOCIDE AND
VIOLENCE
History shows that when societies trade human rights for security, most often they get neither. Instead,
minorities and other marginalized groups pay the price through violation of their human rights.
Sometimes this trade-off comes in the form of mass murder or genocide, other times in the form of
arbitrary arrest and imprisonment, or the suppression of speech or religion. Indeed, millions of lives
have been destroyed in the last sixty years when human rights norms have not been observed.''
Undermining the strength of international human rights law and institutions will only facilitate such
human rights violations in the future and confound efforts to bring violators to justice.'
THIS ADD-ON TURNS YOUR TERRORISM DA: VIOLATING HUMAN RIGHTS INCREASES
TERRORIST RECRUITMENT
Also, a state's failure to adhere to fundamental human rights norms makes it more likely that terrorist
organizations will find it easier to recruit adherents among the discontented and disenfranchised and
among the family and friends of those whose human rights have been violated. Human rights
violations in the name of fighting terrorism undermine efforts to respond to the threats of terrorism,
making us less rather than more secure in both the short and long run.
TURN: FAILURE TO RESPECT HUMAN RIGHTS ALSO UNDERMINES GLOBAL COOPERATION

IN THE WAR ON TERROR
Failure to respect universal human rights norms not only undermines our shared values, it undermines
the international cooperation and public support so crucial to developing effective antiterrorism efforts.
No nation, no matter how powerful, can solve the problem of terrorism on its own. All governments
need the voluntary cooperation of every segment of its society to be effective in preventing acts of
terrorism. Without adherence to international human rights standards, such cooperation will be more
difficult, if not impossible, to obtain at the international, national, and local levels
TURN: ETHNICITY-BASED DETENTIONS INCREASE THE RISK OF ERROR

There is a significant risk that persons will be detained erroneously, since they would be
permitted no access to counsel or opportunity to rebut their classification as enemy
combatants. This risk of error is all the graver because of the obvious potential for ethnicbased actions against men of Middle Eastern extraction, already evidenced in fact in
immigration contexts, given the distinct ethnic cast of the terrorists apprehended to date.

126
Terrorism Answers (2AC)

TURN: DEFINING OUR CONFLICT WITH TERRORISM AS A WAR MILITARIZES THE PROBLEM AND
DESTROYS SOLVENCY

2003, p.29
Finally, a definition of the situation we face as war strongly suggests that our primary reliance will
continue to be on military force, even after our military victories in Afghanistan and Iraq. If use of the
military was in fact the most promising avenue to deal with the variety of forms of terrorism that threaten
us, there would be nothing affirmatively misleading (although nothing very helpful) about describing the
situation we face as war. The danger is that, for several reasons, the use of the term war points us in the
wrong direction. The very term suggests a primacy for military force; thats what war has always been
about. The military is the group to whom we have generally turned in situations of grave danger from
hostile forces. In that sense, we may be captives of the dictum that to a man with a hammer, everything
looks like a nail. Finally, the military, recognizing the vulnerabilities of its traditional strategies for
fighting wars to what it calls asymmetrical threats, has invested its pride in efforts to meet such low-level
threats. But a little thought reveals sharp limits on the usefulness of military force against terrorists
sheltered by a sympathetic population or even against a state harboring terrorists. Ultimately, success
against secretive, violent terrorist groups requires either denying all who might fit into this category access
to targets and the resources they need for particular attacks (for example, fissile materials), or identifying
the potential terrorists in advance and blocking their plans in any of a variety of ways, from arrest or
detention of the suspects to disruption or frustration of their actions by asset-freezing or seizure. Either of
these ways of preventing terrorism can take place within the United States or abroad, and can be carried
out either by Americans or by officials of a friendly nation. In this complex of possibilities, the military has
an important but distinctly limited role.
BIOTERRORISM DIFFICULT BECAUSE IT'S HARD TO HANDLE THE AGENTS

Glenn E. Schweitzer, Director for Central Europe and Eurasia, National Academy of
Sciences, Super Terrorism, 1998, p. 122 At the same time, we should not lightly dismiss
the technical problems in handling an agent as dangerous as the Ebola virus. The Iraqi
program indicates that bioterrorism, like chemoterrorism, is dangerous for both the
instigators and the intended victims. Even if well-designed laboratories and protective
clothing are available, the procedures to ensure personal safety are not learned overnight.
Nor should we forget the difficulties encountered by the Japanese army during World War
II. Though they were successful in developing a host of virulent pathogens, they could
not solve the problem of effective dispersal on the Chinese or other target populations.
They tried using explosives to disseminate the agents, but only a limited number of
particles, small enough to breath, were successfully released. This failure provides at
least some level of consolation.

127
2AC Answers (Cont)

GLOBAL TERRORISM IS INCREASING, NOT DECREASING
Alan B. Krueger is Bendheim Professor of Economics and Public Policy at Princeton

University. David D. Laitin is Watkins Professor of Political Science at Stanford
University, Foreign Affairs New York:Sep/Oct 2004, p. 8
Each foreign country ... in which acts of international terrorism occurred which were, in the opinion of
the Secretary, of major significance." The global terrorism reports are intended to satisfy this
requirement, but, over time, they have become glossy advertisements of Washington's achievements
in combating terrorism, aimed as much at the public and the press as at congressional overseers. The
2003 global terrorism report was launched at a celebratory news conference in April. Deputy Secretary
of State Richard Armitage and Ambassador J. Cofer Black, the State Department coordinator for
counterterrorism, outlined some remaining challenges, but principally they announced the Bush
administration's success in turning the terrorist tide. Black called the report "good news," and Armitage
introduced it by saying, "You will find in these pages clear evidence that we are prevailing in the fight."
The document's first paragraph claimed that worldwide terrorism dropped by 45 percent between 2001
and 2003 and that the number of acts committed last year "represents the lowest annual total of
international terrorist attacks since 1969." The report was transmitted to Congress with a cover letter
that interpreted the data as "an indication of the great progress that has been made in fighting
terrorism" after the horrific events of September 11. But we immediately spotted errors in the report
and evidence contradicting the administration's claims. For example, the chronology in Appendix A,
which lists each significant terrorist incident occurring in the year, stopped on November 11-an unusual
end to the calendar year. Clearly, this was a mistake, as four terrorist attacks occurred in Turkey
between November 12 and the end of 2003. Yet it was impossible to tell whether the post- November
11 incidents were inadvertently dropped off the chronology and included in figures in the body of the
report or completely overlooked. More important, even with the incomplete data, the number of
significant incidents listed in the chronology was very high. It tallied a total of 169 significant events for
2003 alone, the highest annual count in 20 years; the annual average over the previous five years was
131. How could the number of significant attacks be at a record high, when the State Department was
claiming the lowest total number of attacks since 1969? The answer is that the implied number of
"nonsignificant" attacks has declined sharply in recent years. But because nonsignificant events were
not listed in the chronology, the drop could not be verified. And if, by definition, they were not
significant, it is unclear why their decrease should merit attention. On June 10, after a critical op-ed we
wrote in The Washington Post, a follow-up letter to Powell from Representative Henry Waxman (DCalif.), and a call for review from the Congressional Research Service, the State Department
acknowledged errors in the report. "We did not check andverify the data sufficiently," spokesman
Richard Boucher said. "... [T]he figures for the number of attacks and casualties will be up sharply from
what was published."
RUSSIA NUCLEAR MATERIAL IS BEING SECURED
Arms Control Today Washington:Oct 2004, P. 45
A series of recent terrorist attacks in Beslan and Moscow attributed to Chechen rebels have spurred
the United States and the Kremlin to step up activities to guard Russia's high-risk nuclear materials.
The Russian Atomic Energy Agency announced Sept. 1 that Russia had moved additional troops to
guard dozens of its nuclear facilities in the wake of the attacks, which included the seizure of a school
in North Ossetia, a suicide bombing in Moscow, and the downing of two Russian airplanes. The
announcement, reported by Reuters, did not specify the number of troops dispatched or the names of
nuclear facilities slated to receive the additional security.

128
1AR: Ext: Terrorists Not Detained

VERY FEW TERROR SUSPECTS AMONGST DETAINED INDIVIDUALS
Any conditions and procedures for detention must be consistent with the International
Covenant on Political and Civil Rights (ICCPR), as well as with any applicable
provisions of the Third and Fourth Geneva Conventions. These impose restrictions on
detention without criminal charges. The present system of detention under presidential
orders may not satisfy these requirements. Clearly, the rareness of terror suspects among
the hundreds of earlier detentions for security purposes using immigration laws also
creates a serious concern about the accuracy and fairness of any purely administrative
detention without judicial review.
IMMIGRANT DETAINEES HAVE NOT BEEN LINKED TO TERRORISM
CATO Institute, HANDBOOK FOR CONGRESS, 2004,
http://www.cato.org/pubs/handbook/hb108/hb108-12.pdf
According to a representative of the New York Legal Aid Society,
several Arab detainees had been limited to one phone call per week to
a lawyer and, if the line was busy, they had to wait another week. On
November 25, the New York Times cited a senior law enforcement
official who said that just 10 to 15 of 1,200 detainees were suspected
al-Qaeda sympathizers. The government had not found evidence
linking a single one of them to the September 11 attacks.

129
1AR Extensions: Bioterrorism Take-Outs

DISPERSAL IS THE GREATEST OBSTACLE TO BIOTERRORISM
Newsweek, October 8, 2001, Pg. 20
Dispersal: Aum Shinrikyo's failures show that the greatest obstacle to bioterrorism is
disseminating the pathogen. Aerosolizing germs and spewing a powder through a tiny
nozzle poses severe engineering problems, says Franz. Powders are hard to work with.
Pumps with powders are hard to work with. Nozzles clog, jam, sputter and backfire. That
applies to crop-dusters, too--fears of which, said an FBI source at the weekend, had
"gotten out of hand." Because anthrax is not contagious, only people who inhale the
airborne spores get sick. But that has to happen fast: ultraviolet light in sunshine degrades
anthrax spores within minutes
MASS CASUALTIES CBW SCENARIOS HIGHLY UNLIKELY
Ambassador James F. Leonard, Former Ambassador to UN Conference on Disarmament,
De-Mystifying the Biological Weapon Debate, November, 2001, http://www.basicint.org/
Though governments face a multitude of threats of chemical and biological terrorism
most analysts believe that the catastrophic scenarios involving mass casualties, though
possible, are highly unlikely to occur. According to Leitenberg, for example: "A terrorist
use of a BW agent is best characterized as an event of extremely low probability, which
might - depending on the agent, its quality and its means of dispersion - produce high
mortality (or economic damage if it is an anti-plant or anti-animal agent)".
THERE IS A MINUSCULE RISK OF A SMALLPOX ATTACK
WASHINGTON POST, 2001 (October 24, http://www.washingtonpost.com/wpdyn/articles/A42547-2001Oct23.html) (MHHARV2577)
How likely, then, is a smallpox attack? Jonathan Tucker, director of the Chemical and
Biological Weapons Nonproliferation Program at the Monterey Institute of International
Studies, and author of Scourge: The Once and Future Threat of Smallpox, estimates that
the risk is minuscule -- even in light of September 11. "The number of groups that could
use smallpox is very, very small," he says. "They need a motive to cause widespread
destruction" that could eventually wash over them and their backers as well. And, he said,
"they have to be able to cloak their activities."

130

THERE ARE MANY HURDLES TO CBW CAPABILITIES
Stimson Center, November 7, 2001 (LIKELIHOOD OF TERRORISTS ACQUIRING
AND USING CBWS, http://www.stimson.org/cwc/acquse.htm) (MHHARV2578)
However, for the reasons discussed below, the technical hurdles to actually developing an
effective large-scale chemical or biological weapons program---as opposed to
investigating or experimenting with them---may well turn out to be so sizeable that
terrorists would choose to remain reliant on more conventional means of attack.
SMALLPOX IS VERY DIFFICULT FOR TERRORISTS TO USE
NEWSWEEK, October 18, 2001 (p. 21) (MHHARV2579)
Acquiring, producing, and delivering the smallpox virus would pose a series of
challenging technical hurdles for terrorists, making an attack with the virus unlikely-although potentially catastrophic were it to occur. First, because the smallpox virus no
longer exists in nature, terrorists would have to acquire it from a state with undeclared
laboratory stocks of the virus, or perhaps from former Soviet bioweapons scientists who
had smuggled out samples of the virus. Second, the terrorists would have to grow the
virus in eggs or animal cells, which is technically challenging. Third, they would have to
find some means of disseminating the virus as a fine, inhalable mist of microscopic
particles or droplets (called an aerosol), which would require specialized technology and
know-how. For a low-tech attack, suicide terrorists might consider infecting themselves
and spreading the disease, but they would have only a few days to do so before the facial
rash became obvious. Moreover, even terrorists prepared for instant martyrdom in an
explosion might hesitate before willingly suffering a slow, painful, and hideous death
from a disease like smallpox.
A BIOLOGICAL WEAPONS ATTACK WILL NOT DESTROY THE U.S.
GOVERNMENT
John Parachini Policy Analyst RAND Washington Office, November 6, 2001 (FEDERAL
DOCUMENT CLEARING HOUSE CONGRESSIONAL TESTIMONY, p. Ebscohost)
(MHHARV2580)
Short of a barrage attack of ballistic missiles, the U.S.'s ability to reconstitute itself
remains robust. Even a significant clandestine biological strike on a major city would not
topple the system of government in the United States. Thus, the inherent limits of hiding
a significant attack constrain the realm of the possible.

131

THERE ARE MANY DISINCENTIVES TO BW USE
John Parachini Policy Analyst RAND Washington Office, November 6, 2001 (FEDERAL
DOCUMENT CLEARING HOUSE CONGRESSIONAL TESTIMONY, p. Ebscohost)
(MHHARV2581)
There are a number of countervailing disincentives for states and terrorists to use
biological weapons, which help explain why their use is so infrequent. The technical and
operational challenges biological weapons pose are considerable. Acquiring the material,
skills of production, knowledge of weaponization, and successfully delivering the
weapon, to the target is difficult. In cases where the populations of the terrorist supporters
and adversaries are mixed, biological weapons risk inadvertently hitting the same people
for whom terrorists claim to fight. Terrorists may also hesitate in using biological
weapons specifically because breaking the taboo on their use may evoke considerable
retaliation. The use of disease as a weapon is widely recognized in most cultures as a
means of killing that is beyond the bounds of a civilized society.
BIOLOGICAL WEAPONS WILL BE TOUGH FOR TERRORISTS TO USE
Morten Bremer Maerli, Norwegian Institute of International Affairs, 2001 (THE
THREAT OF NUCLEAR TERRORISM,
http://www.iaea.org/worldatom/Press/Focus/Nuclear_Terrorism/maerli.pdf)
(MHHARV2582)
The ease of producing biological weapons has been compared to brewing beer, and the
possible death rates after a successful biological attack has been suggested to be range of
the hundreds of thousands. But despite the vast technical and professional resources of
the Japanese Aum Shinrikyo cult, its dedicated and highly trained and specialized
personnel, the group was not able to perform its large-scale killing as planned. Aum's
failure suggest that requirement for mass-casualty bioterrorism is high, and perhaps
higher than anticipated. The biggest barrier to major casualties using for instance anthrax
as a weapon has always been an effective means of delivery, and acquiring virulent
strains of biological agents can involve major hurdles for prospective bioterrorists.
Biological (and chemical) substances may be difficult to disseminate and control, and can
potentially backfire on the attacker. Impact predictions will be highly uncertain. Efficient
deployment of infectious agents has been the challenge of biological weapons designers
since the dawn of biological warfare. Biological weapons were used very infrequently in
the past, most likely because they did not live up to their expectations or were very
impractical weapons, producing relatively few casualties against armed forces.

132
Critiques of the DA
RELYING ON THE CONCEPT OF A TERROR WAR UNDERMINES OUR CAMPAIGN AGAINST
TERRORISM

2003, p. 161
Repeating and relying on the concept of war is also harmful to fighting terrorism. What we face is a very
prolonged series of contests with opponents that do not have the powers of a state, or hope to defeat our
armies, or destroy our powerful economy, or threaten to occupy our territorythe dangerous characteristics
we have traditionally associated with war. More important, designing our plans as if this is a war leads us
badly astray. The dangers we face involve several possible forms of attack by several forms of possible
organizations, each of which may have any of a rich set of possible motivations and a rich set of possible
organizational structures. This wide range of possibilities must be handled in a variety of different ways
with a subtlety that is obscured by the simpler assumptions hiding behind the term war. Many of the most
important ways do not require, and are not advanced by the use of, our awesome military capacities.
FORUMULATING PROBLEMS IN TERMS OF TERRORISM UNDERMINES RELATIONS WITH
THE ARAB WORLD AND DOESNT SOLVE PROBLEMS OF VIOLENCE
Zbigniew Brzezinski, President Carter's national-security adviser and the author of The Choice: Global
Domination or Global Leadership, The American Prospect, March 2005, p. 26
ZB: Terrorism to me is a symptom of a much deeper problem we confront. We live in a world that has
become, and is becoming, politically awakened on an unprecedented scale. This is an altogether new
reality. It creates turmoil, conflict, and animosity, and it is often expressed by terrorism. Our own
involvement, particularly in the Middle East, has turned some of that terrorism more directly against us.
But terrorism doesn't define the totality of the problem. So, in my view, we are not in a phase of a
global struggle against terrorism. That formulation, in my view, tends to unite our enemies and divide
our friends, instead of uniting our friends and dividing our enemies. It makes it more difficult for us to
encourage the moderate Arabs, and it increasingly pits us against all of Islam. And, most importantly of
all, it is not responsive to the reality of billions of people for the first time in the history of mankind
becoming politically activated

133
1AR Militarization of Terrorism Bad

THE ONLY WAY TO SOLVE TERRORISM IS TO CREATE A NORM AGAINST IT

2003p. 32
In the end, we need a level of willing and competent cooperation abroad that we cannot
effectively compel. That limits the usefulness of military force and requires persuasion
and developing partnerships at the working level a lesson the Israelis now have learned
painfully. Our objective has to be a new international norm against terrorism that is
broadly and sincerely based, not because international norms are gentler and fuzzier than
missiles and bullets but because only dedicated host-nation cooperation will work.

Congress Counterplan
134
## Congress Counterplan
Congress Counterplan 1NC
TEXT
COUNTERPLAN: The Congress, pursuant to its enforcement powers under section Five of the
Fourteenth Amendment, will pass legislation to remedy the Constitutional violation the affirmative
has identified that says that immigrants cannot be detained without charge for more than 48
hours under any circumstance unless the government establishes probable causes and charges
them with crimes. The Supreme Court, in an appropriate test case, will review Congress' action
and accord Chevron deference to Congressional interpretations of the 14th Amendment, even
when the Court does not agree with Congressional findings of Constitutional violations.
OBSERVATION I: SOLVENCY
A. CHEVRON DEFERENCE SHOULD BE EXTENDED TO CONGRESSIONAL
ENFORCEMENT OF RIGHTS.
K.G. Pillai, Law Professor at Temple, 1998 (MISSISSIPPI LAW JOURNAL, Winter, pp. 500-03)
The Supreme Court's well-articulated principles of deference to agency

interpretations of federal statutes could be the appropriate model for the judicial
treatment of congressional interpretations of the Fourteenth Amendment. In Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, the prevailing formula for deference to agency
interpretation was established by the Court. The issue in the case was the legality of the
Environmental Protection Agency's (EP A) interpretation of the Clean Ai) Act. The EP A, pursuant
to its mandate to require permits by "new or modified major stationary sources" of air pollution,
adopted a plant-wide definition of the term "stationary source" which in effect allowed
modifications of one or the air quality that existed before the modification. According to the EP A,
the expanded definition was necessary to achieve the goal of improved air more pollution emitting
devices within the plant without meeting permit conditions, so long as the total emissions from the
entire plant did not worsen the quality without stifling the economic growth of the regulated
industries. On review, the court of appeals, agreeing with the argument that the EP A
interpretation would only help maintain the existing air quality, rather than enhancing it as
contemplated by the statute, ruled that the interpretation was erroneous. The Supreme Court
reversed the court of' appeals and held that the interpretation of the EP A was reasonable and,
therefore, entitled to binding deference of the judiciary. Under the framework established by the
Supreme Court in Chevron, the nature and extent of judicial deference owed to an agency are
dependent on the clarity and scope of the statutory authority granted by Congress to the agency.
If Congress has explicitly authorized the agency to fill the gaps left in the statute or to elucidate
any of its specific provisions, agency regulations issued by virtue of such express delegation able
to be given "controlling weight unless they are arbitrary, capricious or manifest; contrary to the
statute." In a case where Congress has directly spoken to the precise question at issue, both the
agency and the reviewing court must give effect to such unambiguously expressed intent of
Congress. However, "if the statute is silent or ambiguous with respect to the specific issue," the
reviewing court must accept a reasonable construction of the statute made by the agency
responsible for administering it, even if the court thinks that the construction is incorrect or
inappropriate. Thus, Chevron has established an absolute presumption that silence or ambiguity
in an agency-administered statute is tantamount to an implied delegation of interpretative

135
lawmaking discretion to the agency. The Court gave several persuasive practical and legal
justifications for the presumption. First, it recognized that not all statutory gaps and imprecisions
are the result of congressional laziness and inadvertence. Congress may at times be tempted to
defer novel and difficult issues, especially issues that involve clash of competing interests and
policies, for resolution in the agency process which in many ways is akin to the legislative
process. Then, the Court underscored the fact that "the resolution of ambiguity in a statutory text
is often more a question of policy than of law," and the constitutional desirability of making policy
choices by tile political branches rather than federal judges who are "not part of either political
branch of the Government" or "have no constituency." Moreover, the: resolution of many of the
contentious and complex issues "require significant expertise and entail the exercise: of judgment
grounded in policy concerns." Therefore, under the dictates of Chevron, the courts should
presume that Congress has designated the agency charged with administering the statute "as the
repository of delegated lawmaking discretion" unless the judiciary is explicitly given that
discretion. The very same compelling rationale that prompted it to fashion the Chevron doctrine
must compel the Supreme Court to accord at least an equal measure of deference to most of the
interpretative legislations enacted by Congress under the Fourteenth Amendment. The perfect
combination of legislative and enforcement powers of Congress is identical to the statutory power
the interpreting agencies are required to possess as a precondition for invoking the Chevron
deference. For instance, in Martin v. Occupational Health Review Commission, a unanimous
Court held that interpretations of the Secretary of Labor rendered as "a 'necessary adjunct' of the
Secretary's powers to promulgate and enforce national health and safety standards" supported
"the presumption that Congress delegates interpretive lawmaking power to the agency rather
than to the reviewing court." In contrast, the Court declined to defer to the Secretary's
interpretation of another statute in Adams Fruit Co. v. Barrett, since the statute only gave the
Secretary the~ authority to promulgate standards implementing its provisions, leaving the
enforcement authority entirely to the judiciary. Thus, the conflation of legislative and enforcement
powers is a necessary prerequisite for the application of the Chevron doctrine and the Fourteenth
Amendment satisfied, that requirement. The Amendment in fact provides the ideal setting for the
adoption of the Chevron doctrine for the purpose of review of congressional enforcement
legislation. The most enlightening feature that makes the Chevron doctrine adaptable to
congressional interpretations is its constitutional underpinnings. The Court emphasized
repeatedly that the deference of the Chevron doctrine refutes judicial "sensitivity to the proper
roles of the political and judicial branches" in interpreting ambiguous provisions in agencyadministered statutes. Chevron's proposition that policy formulation through interpretive
lawmaking should be done in a representative and participatory process by governmental entities
directly or indirectly accountable to the people is constitutionally inspired. The proposition is firmly
grounded on the principle of the separation of powers--" of the Constitution's structural
protections of liberty."

136
B. THE CONGRESS CAN ACT IN OPPOSITION TO THE COURTS TO PROTECT

RIGHTS
Matthew Franck, Law Professor, 1996 (AGAINST THE IMPERIAL JUDICIARY, p. 7)
Under further questioning, Judge Kennedy raised the hypothetical instance of the Supreme Court
reversing New York Times v. Sullivan and narrowing the First Amendment protection of
newspapers in libel suits. It would be appropriate then, he opined, for members of Congress,
holding a different view of what freedom of the press requires, to re-institute Sullivan-level
protection by legislation.
C. WITHOUT JUDICIAL REVIEW, SOCIAL MOVEMENTS WILL EMERGE IN THE

LEGISLATURE THAT WILL PROTECT RIGHTS
Erwin Cherminsky, Irmas Professor of Public Interest Law, Legal Ethics, and Political Science,
University of Southern California, 2000 (MICHIGAN LAW REVIEW, May, p. 1416)
In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these
arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on
balance, constitutional judicial review is harmful. He maintains that it produces relatively few
benefits that could not be gained through the political process and that it actually has serious
costs. He contends that without judicial review, a populist constitutional movement, with a vibrant
public rhetoric of constitutionalism, would emerge (p. 154). Without constitutional judicial review,
he posits, there will be more development of statutory rights and perhaps even a growth in
welfare rights (p. 165).

137
OBSERVATION II: NET-BENEFITS

A. ACTING TOGETHER DISCOURAGES CONGRESS FROM DEVELOPING ITS
OWN INTERPRETIVE METHODOLOGIES!
Neal Devins, Goodrich Law Professor and Lecturer in Government, College of William and Mary,
2000
(UNIVERSITY OF RICHMOND LAW REVIEW, Summer, p. 363)
Another way in which "judicial overhang distorts what legislators say about the Constitution" is
that egislative consideration of constitutional matters little more than an attempt by lawmakers to
fit their statutes into preexisting Supreme Court doctrine. For example, tile House and Senate
Judiciary Committees are understood to take constitutional interpretation seriously because they
are keenly interested in whether the Court will uphold their actions, and are therefore willing to
moderate the legislation they produce. In other words, rather than develop their own distinctive
interpretive methodologies, lawmakers (when they talk about the Constitution) almost always
mimic the Supreme Court. And when Congress dots respond to Court decision-making, the cost
of ensuring compliance with judicial norms is significant.
B. CONGRESSIONAL ACTION AND COURT DEFERENCE PRODUCE

CONSTITUTIONAL CONSCIOUSNESS
Susan Burgess, Professor of Politics at Marquette University, 1992 (CONTEST FOR
CONSTITUTIONAL AUTHORITY, p. 64)
When Congress challenged judicial supremacy in a legal and political context previously
characterized by judicial activism, constitutional consciousness heightened and constitutional
authority broadened. When Congress directly challenged Roe in the human life bill hearings by
introducing an alternative reading of the Fourteenth Amendment, Congress improved its
constitutional consciousness to an introducing level. The Court followed in Akron by improving its
constitutional consciousness to an even higher, recognizing level. When Congress indirectly
challenged Roe in the Abortion Funding Restriction Act hearings and failed to introduce an
alternative constitutional interpretation to support the challenge, Congress' level of constitutional
consciousness fell to a deferring level, as did the Court's in the Thornburgh case. The more
directly Congress challenged judicial supremacy, the more constitutional authority broadened.
Rather than deepening skepticism about constitutional authority or the rule of law, as the
detractors of departmentalism predicted, challenging judicial supremacy broadened constitutional
authority by locating a common constitutional referent -the Fourteenth Amendment -that began to
bridge discussions of women's rights and fetal rights, hitherto conducted in incommensurate
terms.

138
C.. CONSCIOUSNESS IS NEEDED FOR LASTING CONSTITUTIONAL,

PROTECTIONS
David Kairys, Law Professor, Temple University, 1993 (WITH LIBERTY AND JUSTICE FOR
SOME, p. 209)
Some of the civil rights and liberties protected by courts in the past would, no doubt, be difficult to
implement through Congress. Protection of unpopular speech, such as flay burning, and a
woman's right to choice in abortion are examples of this difficulty. However, lasting protection in
such areas has been difficult to maintain when they are imposed by courts. The opposition to
these rights continues and is bolstered by the antidemocratic fashion in which they were adopted.
The best we can do -and the principled alternative -is to reinvigorate democracy with a more
representative and democratic structure and the clear message that personal freedom is the work
of these representatives and all of us, not the exclusive or even primary terrain of courts and
lawyers.

139
Critical 2NC Extensions

1. PARTICIPATION IS CRITICAL TO GIVE MEANING TO LIFE
Christopher J. Peters, Bigelow Teaching Fellow and Lecturer in Law, The University of Chicago
Law School., COLUMBIA LAW REVIEW, March, Adjudication as representation, p. 327)
Like democracy's promotion of negative autonomy, its promotion of positive autonomy relies
upon the availability of individual participation in government. Participation is the only way to
effect the individual's positive freedom to shape her own life; its alternative, rule by fiat - no
matter how benevolent the head of state - denies this freedom because it inevitably treats
individuals as "immature children."
2. PARTICIPATION REDUCES THE RISK OF TYRANNY

Law School, 2000 (COLUMBIA LAW REVIEW, March, Adjudication as representation, p. 330)
There are other, similar consequentialist justifications of democracy. Democracy has been
thought, for instance, to protect against the rise of tyranny by encouraging citizens' awareness of
public affairs and to avoid violent factionalism by allowing citizens to "blow off steam" through
electoral participation. Any theory that, like these, values participatory government as a means of
producing good effects aside from the substantive legislation it generates is a consequentialist
theory as I conceive them here. Like deontological proceduralists, consequentialists favor
government through participation over rule by fiat, although they do so for somewhat less
obvious reasons. They care little about the quality of the legislation produced by democracy;
indeed, with Tocqueville, they might believe democracy to be particularly ineffective in this
regard. But they find it valuable nonetheless.
3. DELIBERATION IMPROVES THE QUALITY OF RESULTS

Law School, 2000 ( COLUMBIA LAW REVIEW, March, Adjudication as representation, p. 330)
Wholly apart from any proceduralist arguments, the legitimacy of democratic government also
might be traced to the quality of the substantive decisions which that form of government is
thought to produce. Democratic government can be valued because it generates legislation
through a process of reasoned deliberation and negotiation among a wide variety of viewpoints
and interests, thus increasing the likelihood that its laws truly will serve the common good in
comparison with, say, laws generated by a single homogeneous elite. This kind of justification of
democracy can be found in strong form in, among other places, the thought of our own
Founders, particularly Madison and Jefferson; the writings of our eclectic friend John Stuart Mill
and of John Dewey; and the descriptions of "deliberative democracy" espoused in its most
articulate form by the contemporary constitutional scholar Cass Sunstein. The basic reasons
why democracy is thought to function well as substantive government, to produce decisions of
high quality, are intertwined with and dependent upon one another. They are, respectively, that
democracy allocates decision-making power to those most interested in the decisions; that it
allows a diversity of interests to assert themselves in government; that it permits the
participation of the most talented decision-makers in government; and that it produces decisions
through a process of reasoned deliberation.

140
4. PARTICIPATORY GOVERNMENT GIVES INDIVIDUALS MEANS TO PROTECT

THEIR OWN INTERESTS
Law School., 2000 (COLUMBIA LAW REVIEW, March, Adjudication as representation, p. 331)
The functionalist argument from the proper allocation of decision-making power begins with the
premise that the best decision-makers are those individuals whose interests will be affected by
the decisions. As John Stuart Mill put it, the "proposition - that each is the only safe guardian of
his own rights and interests - is one of those elementary maxims of prudence, which every
person ... implicitly acts upon." John Dewey similarly described the democratic ideal as in part
"the conception of a social harmony of interests in which the achievement by each individual of
his own freedom should contribute to a like perfecting of the powers of all," and proclaimed that
"personal responsibility[ ] [and] individual initiation ... are the notes of democracy. "The man who
wears the shoe," wrote Dewey, "knows best that it pinches and where it pinches." From this
premise, that the individual is the best "guardian of his own rights and interests," springs the
idea of participatory government.
5 LEGISLATED CONSULTATION IMPROVES DECISION-MAKING

Similarly, Dewey saw democracy as a process of identifying "more numerous and more varied
points of shared common interest" - as contributing to a better understanding of the common
interest through the participation of a variety of individual interests. In a democracy, experts
might make the particular decisions, but "the masses ... have the chance to inform the experts
as to their needs;" the political processes of participatory government "involve a consultation
and discussion which uncover social needs and troubles."
6. LEGISLATIVE DEMOCRACY IMPROVES THE QUALITY OF DECISIONMAKER SELECTION

This aspect of the argument from participation of talent thus focuses on the base of the
decisionmaking pyramid, on the incorporation into government of individual talent through the
process of universal suffrage. A second aspect of the argument focuses on the top of the
pyramid, on the individuals actually elected to public office. It holds that democracy is likely to
produce better decisions because it allows its statesmen and policymakers to be selected on the
basis of merit rather than birth, wealth, or some other arbitrary criterion.

141
Answers To: Need Courts To Protect Rights

1. THE COURTS HAVE NOT PROTECTED RIGHTS
Michael Mandel, law professor, York University, 2000 (UNIVERSITY OF RICHMOND LAW
REVIEW, pp. 445-6)
The critique of judicial review as reactionary in a class sense was conventional wisdom on the
Left before the Second World War. It got side-tracked for a short period after that because of the
world-famous liberal period of the U.S. Warren Court, lasting roughly from Brown v. Board of
Education, n6 through Miranda v. Arizona, to Roe v. Wade. It was only to be expected that the
critique would return once the "hope" of the Warren Court revealed itself to be "hollow," and the
American judiciary returned to its familiar position to the Right of government. The hope was
hollow because the American judiciary, even at its best, delivered only a very narrow, bourgeois
conception of constitutional rights, completely divorced from questions of property and social
class. Desegregate the public schools, but do nothing to prevent their desertion by anyone who
could afford it, and their consequent deterioration through neglect. Forbid the criminalization of
abortion, but say it is perfectly all right to refuse funding to women who could not afford it, and
even to ban it from "any public facility." Insist on due process, but at the same time create so
much inequality that violence becomes uncontrollable and repression is ratcheted up to the point
where the U.S. prison population has become legendary, on top of an execution rate that has
returned to its pre-Warren Court levels.
2. IN THE STATUS QUO, THERE ARE MOVEMENTS OUTSIDE THE LAW TO

PROTECT HUMAN RIGHTS
Michael Mandel, law professor, York University, 2000 (UNIVERSITY OF RICHMOND LAW
REVIEW, pp. 453-4)
No we couldn't. To defend populist constitutional law, we would have to say why the good idea of
defending human rights (let us forget the monumental question begging in this for a moment)
should be carried on in the form of constitutional law (whatever that would mean without the
courts). We can't seriously think we're] going to have a whole symposium about whether the idea
of human rights is a good one. We would have to argue why this way is a good way of struggling
for human rights, human liberation, human equality or however we might want to put it. Because
a lot has been happening in the last 200 years. People have been struggling and learning and
thinking about "human rights" in many nonconstitutional ways. They have been organizing and
fighting and writing, not constitutions, but manifestos, books, articles, poems, songs, plays,
movies and so on. If I were looking for blueprints or signposts, that is where I would look, not in
the Declaration of Independence or in the Golden Rule.

142
Answers To: Need Courts To Protect Rights

3. THE REHNQUIST COURT HAS LIMITED RIGHTS PROTECTION
Christopher Banks, Assistant Professor of Political Science, Buchtel College of Arts and Science,
1999 (AKRON LAW REVIEW pp. 249-50)
Through its reversals of precedent the Rehnquist Court has been politically successful in
narrowing the scope of civil rights of those who come into contact with the criminal justice system.
In Thornburgh v. Abbott, for example, the Court increased the power of prison authorities to
inspect incoming mail sent to prisoners. With a trio of important cases, the Rehnquist Court also
altered prior doctrine and extended the application of the harmless error rule to involuntary
confessions in Arizona v. Fulminante; broadened the right of the police to search closed
containers in automobiles without a warrant in California v. Acevedo; and, in Payne v. Tennessee,
condoned the admission of victim impact statements in a capital sentencing. In still other criminal
procedure cases, the Court made it easier to insulate judges from having their criminal
sentencing determinations upset on appeal in Alabama v. Smith and Collins v. Youngblood.
Finally, in two significant habeas corpus/federalism cases, Coleman v. Thompson and Keeney v.
Tamayo-Reyes, the Rehnquist Court continued to limit the ability of convicted felons to seek
collateral relief in federal court on the basis of alleged violations of constitutional rights.
Significantly, these last two rulings are influential in light of other Rehnquist Court decisions
limiting the right of habeas corpus and the Chief Justices' own effort (as the titular head of the
federal judiciary) to restrict the right in federal courts.

143
Answers To: The Court Is De-Politicized

1. JUDGES PAY ATTENTION TO POLITICS WHEN CRAFTING DECISIONS
Neal Devins, Goodrich Professor of Law and Lecturer in Government, College of William and
Mary, 2000 (THE GREEN BAG, Spring, p. 259 How Constitutional Law Casebooks Perpetuate the
Myth of Judicial Supremacy)
First, Justices pay attention to politics in crafting their decisions. John Marshall's sequencing of
merits and jurisdiction in Marbury v. Madison and Earl Warren's efforts at crafting a unanimous
opinion in Brown v. Board of Education were both preemptive strikes designed to limit the political
repercussions of unpopular decisions. Other examples include Cooper v. Aaron (where the
Supreme Court declared itself "the ultimate interpreter of the Constitution" after President Dwight
Eisenhower secured compliance with court-ordered desegregation by sending Army troops into
Little Rock) and the Steel Seizure case (where the Court's willingness to invalidate President
Harry Truman's war-time seizure of the steel mills was directly tied to public opinion).
2. THE COURT CONSIDERS POLITICAL DECISIONS

Mary, 2000 (THE GREEN BAG, Spring, pp. 260-1)
Third, political judgments shape Court doctrine. In Brown v. Board, a highly influential Solicitor
General brief emphasized how segregation undermined America's status as leader of the free
world and, as such, strengthened Russia's hand in the Cold War.
3. JUDGES ARE FOOLISH AND POLITICAL

Mary, 2000 (UNIVERSITY OF RICHMOND LAW REVIEW, p. 364)
Considering the general unwillingness of Congress to countermand the Court, these examples
suggest that lawmakers are able to play a constructive role in shaping constitutional values. For
their part, Supreme Court Justices sometimes prove inept at constitutional interpretation.
Although Tushnet's claim that "the proportion of constitutional fools on the Supreme Court
approaches that in Congress" may overstate matters, it is nevertheless true that federal judges
"can be lazy, lack judicial temperament . . . and pursue a nakedly political agenda" without fear of
removal.

144
Answers To: Brown V. Board Proves Courts Cause Social Change

1. THE COURT DOES NOT DESERVE CREDIT FOR BROWN, SOCIAL
MOVEMENTS DO
Michael Klarman, Professor of law, Research Professor, University of
Virginia, 1996 (VIRGINIAN LAW REVIEW, February, pp. 6-7)
The Supreme Court does not play the strong countermajoritarian role in defense of individual
liberties that popular wisdom ascribes to it. The conventional view probably exerts its greatest
force in the area of race discrimination, and more specifically with regard to Brown v. Board of
Education. Brown, according to the usual story line, represents a paradigmatic example of the
Supreme Court intervening to protect an oppressed minority from majoritarian overreaching.
Without the Court's timely intervention, according to this view, there would have been, at least in
the near term, no civil rights movement, no landmark civil rights legislation, and no dramatic
transformation in American race relations. This understanding of Brown's significance is
distorted. Brown is better understood as the product of a civil rights movement spawned by
World War II than as the principal cause of the 1960s civil rights movement. The many scholars
who have treated Brown as the inaugural event in the modern civil rights movement have
difficulty accounting for the momentous civil rights developments of the late 1940s and early
1950s - the landmark report of President Truman's civil rights committee, the executive orders
desegregating the federal military and civil service, the integration of major league baseball, the
exponential increase in Southern black voter registration, the enactment of a plethora of
Northern antidiscrimination laws, the incipient crumbling of Jim Crow's outer facade in many
Southern cities (for example, initial steps taken toward the desegregation of Southern police
forces, juries, and public accommodations), and the emergence of a general war-related civil
rights consciousness among African-Americans.
2. BROWN IS NOT RESPONSIBLE FOR ATTITUDE CHANGE

Perhaps even more devastating to the traditional understanding of Brown as a heroically
countermajoritarian decision are the opinion polls showing that by he time of the Court's
intervention roughly half of the country supported racial integration in public schools.
The
justices themselves, moreover, repeatedly expressed astonishment in their private discussions
of the school segregation cases at the rapidity with which race relations had been changing.
Had the Supreme Court decided Brown twenty (perhaps even only ten) years earlier, the result
would have been dramatically countermajoritarian. Yet the Court declined more than one
opportunity to render such a decision.

145

3. THE COURT WONT ACT UNTIL AFTER SOCIAL MOVEMENTS DO
Michael Klarman, Professor of law, Research Professor, University of Virginia, 1996 (VIRGINIAN
LAW REVIEW, February, pp. 8-9)
The Court's rulings in another important equal protection context sex discrimination - reveal an
even more limited countermajoritarian bent. The Supreme Court did not invalidate a single law
on sex discrimination grounds until 1971 that is, not until after the explosion in social and
political support for the women's movement in the late 1960s. Well into the postwar period, the
Court continued to reject equal protection challenges to laws excluding women from traditionally
male occupations or defining jury service obligations differently for men and women. The Court
began to disfavor legislative classifications based on sex at almost precisely the same time that
Congress, by the requisite supermajorities, passed a constitutional amendment to accomplish
essentially the same objective. Most of the sex discrimination cases of the 1970s and early
1980s, moreover, involve legislation employing antiquated sex stereotypes that even most
opponents of the Equal Rights Amendment would have been unwilling to defend. The Court in
these cases was doing little more than chopping down some dead legislative wood. Moreover,
when the Court in 1981 finally encountered a sex classification that retained substantial support
in public opinion the exclusion of women from military combat positions and the draft - it
declined to interfere. Thus, the sex discrimination cases do little to confirm the view of the Court
as countermajoritarian defender of historically oppressed groups.
4. CHANGE WOULD HAVE OCCURRED WITHOUT BROWN

Mark Tushnet, law professor at Georgetown, 1998 (TAKING THE CONSTITUTION AWAY FROM
THE COURTS, p. 146)
The unanswerable question is whether that would have occurred without Brown. It seems quite
likely that something would have happened in the South without Brown. African-Americans were
increasingly unwilling to accept Southern apartheid, and some sort of civil rights movement was
probably inevitable. It might well have met with the same violence that actually occurred. And
the effects of migration on African-American political power in the North would have happened no
matter what.
5. MANY DECISIONS OFFSET BROWN

Mark Tushnet, law professor at Georgetown, 1998 (TAKING THE CONSTITUTION AWAY FROM
THE COURTS, p. 141)
In addition, we have to remember that we buy judicial review wholesale: In getting the decisions
we like, we run the risk of decisions we despise. So, for example, those who celebrate Brown as
the exemplar of judicial review have to live with Supreme Court decisions restricting affirmative
action and campaign finance reform.

146

6. DESEGREGATION DID NOT RESULT FROM BROWN
If Brown was as critical to this nation's racial enlightenment as the conventional wisdom
suggests, it is puzzling not only that substantial change in race relations antedated Brown, but
also that strikingly little public school desegregation took place in the decade after the Court's
intervention. Ten years after the justices unanimously condemned racial segregation in public
schools, only about two percent of black Southerners attended school with whites, and the
figure in the Deep South states was not significantly above zero.
Only the intervention of
the national political branches in the form of the 1964 Civil Rights Act and stringent executive
branch enforcement guidelines produced significant amounts of public school desegregation in
the late 1960s and early 1970s. Unless one can establish a direct linkage between Brown and
the civil rights movement that produced the momentous 1964 Civil Rights Act and 1965 Voting
Rights Act - a connection that has yet to be compellingly demonstrated - it is not obvious that
Brown played nearly so fundamental a role in the transformation of American race relations as is
commonly supposed.

147
Solvency: Answers To: Need Courts To Instigate Social Reform

1. GRISWOLD PROVES THE COURT ONLY ACTS WHEN THERE IS A NATIONAL
CONSENSUS
Virginia, 1996 (VIRGINIAN LAW REVIEW, February, p. 9)
The point just made about the race and sex components of equal protection is also true of the
Court's modern substantive due process jurisprudence, which principally involves the rights to
privacy and sexual autonomy. None of the Court's decisions in this area corroborates the
popular conception of the Court as countermajoritarian savior. When the justices in Griswold v.
Connecticut first articulated a constitutional right to privacy and invalidated a state ban on the
use of contraceptives as applied to married couples, only two states in the nation (two of the
three with the highest percentage Roman Catholic populations) had such laws. Griswold is best
understood as the Court constitutionalizing a dominant national consensus and using it to
suppress a local outlier.
2. ROE ONLY REFLECTS SHIFTS IN PUBLIC OPINION

At first blush Roe v. Wade, which constitutionalized a right to abortion, seems to fit the
conventional wisdom better. That decision, after all, had the effect of invalidating abortion laws in
at least forty-six states. Yet even with regard to Roe, the extent of the Court's
countermajoritarianism is easily exaggerated. By the time Roe was decided in 1973, public
opinion on the abortion issue had already been dramatically transformed, primarily as a result of
the burgeoning women's movement. Seventeen states had recently passed legislation
liberalizing their abortion regulations. Opinion polls conducted soon after the decision revealed
that slender pluralities or majorities of the public endorsed the Court's ruling.Roe could have
been dramatically countermajoritarian only if it had been decided years earlier - say, in 1964,
when the abortion issue first appeared on the ACLU agenda, or even in 1967, when Planned
Parenthood and the National Organization for Women still found themselves deeply divided over
whether to call for repeal of abortion statutes. Yet it seems safe to say that the justices would not
have dreamed of invalidating abortion restrictions even as few as a half dozen years before
Roe.

148

3. BOWERS PROVES THE COURT IS REGRESSIVE
The limited scope of the Court's countermajoritarian capacity is also evidenced by its
most recent privacy/sexual autonomy case - Bowers v. Hardwick. Let us suppose that
Justice Lewis Powell had changed his mind about the outcome when it still mattered, as
we know he almost did, and together with the four dissenters in Bowers had produced a
majority opinion recognizing at least a limited due process right for consenting adults to
engage in private, homosexual activity. Would such a result have corroborated the view
of the Court as heroic defender of minority rights from majoritarian oppression? I think
not. The justices would not have contemplated constitutionalizing a sexual orientation
right before the emergence of a powerful social and political gay rights movement in the
1970s and 1980s. One can easily imagine Bowers coming out differently in 1986, but a
contrary result is virtually unimaginable, say, in 1966 - the year the American Civil
Liberties Union first formally endorsed the principle of constitutional protection for
sexual orientation and several years before the American Psychiatric Association ceased
labeling homosexuality a mental illness. Had the Court decided Bowers the other way
in 1986, contemporaneous opinion polls reveal that roughly half the country would have
endorsed the ruling.

149
Permutation Answers
1. DIVISION AMONGST THE BRANCHES IS CRITICAL TO PRESERVE LIBERTY
Gary Lawson, Professor, Christopher Moore, JD, 1996 (IOWA UNIVERSITY LAW REVIEW, July
p. 1329)
Many of these criticisms of departmentalism, however, can also be raised against a system of
separation of powers. Dividing power across jurisdictions and among institutions is a recipe for
uncertainty and conflict. One cannot be sure that a bill that passes one house will pass another,
that a bill that passes Congress will be signed by the President, that legislation once enacted will
be enforced ill a particular or predictable way, or that enacted and enforced legislation will be
interpreted and applied by the courts if:: a particular or predictable way. Moreover, the division of
powers is consciously designed to place the government in an ongoing state of tension, with each
institution in a constant struggle with the others for power and prestige; such is the clear message
of Madison's brilliant essay on governmental structure in The Federalist. All of this chaos and
conflict was deliberately left to us by the founders because they deemed it necessarily to
preserve liberty.
2. ACTIVISM IS A NET-BENEFIT: THE CONSTITUTION DOES NOT SUPPORT

JUDICIAL REVIEW
(REMEMBER: YOU CANT EXTEND ACTIVISM WITH MOST OTHER NET-BENEFITS)
Jack Nowlin, Law Professor, University of Mississippi, 2001/1 (KENTUCKY LAW JOURNAL,
Winter, p. 468)
A summation of the findings above is in order. First, the most "natural" reading of the
constitutional text certainly does not support expansive judicial power. Indeed, the text of the
Constitution does not even explicitly provide for judicial review, much less establish the
"maximalist" principle that the judiciary is the final arbiter of the meaning of the Constitution and
that its decisions are binding on the other branches of government. Further, the constitutional text
displays ample support for fundamental constitutional principles-representative democracy,
federalism, separation of powers, and the like-that are incompatible with a highly expansive
conception of judicial power. Finally, the text is highly suggestive of a wide array of congressional
checks on the judiciary, such as those that limit its power to make social policy. The text therefore
offers no obvious support for the claim that aggressive, quasi-legislative judicial interpretations of
rights provisions are constitutionally legitimate. The constitutional text, as a whole, is much more
suggestive of judicial minimalism than it is of maximalism.
(IF YOU CHOSE NOT TO EXTEND ACTIVISM, YOU CAN ARGUE HOLLOW HOPE)

150

3. HOLLOW HOPE AS A NET-BENEFIT
MOVEMENTS NEED TO DIRECT SCARCE RESOURCES WHERE THEY ARE MOST LIKELY
TO SUCCEED
Gerald Rosenberg, Political Scientist, Chicago, 1991 (THE HOLLOW HOPE: CAN THE COURTS
BRING ABOUT SOCIAL CHANGE?, p. 339)
In general, not only does litigation steer activists to an institution that is constrained from helping
them, but it siphons off crucial resources and talent, and runs the risk of weakening political
efforts. In terms of financial resources, social reform groups don't have a lot of money. Funding a
litigation campaign means that other strategic options are starved of funds. In civil rights, while
Brown was pending in June 1953, Thurgood Marshall and Walter White sent out a telegram to
supporters of the National Association for the Advancement of Colored People asking for money,
stating "funds entirely spent." Compare this to the half-million-dollar estimates of the cost of the
freedom trail rides, largely due to fines and bail. Further the legal strategy drained off the talents
of people such as Thurgood Marshall and Jack Greenberg. As Martin Luter King, Jr., complained:
"to accumulate resources for legal actions imposes intolerable hardships on the already
overburdened.
B. EVEN IN A WORLD OF A PERM THERE IS A RISK THAT MOVEMENTS MAY

GO TO THE COURT ONLY.
C. IN THE WORLD OF THE PERM AT BEST MOVEMENTS SPLIT THEIR
EFFORTS IN HALF, REDUCING THE RISK OF SOLVENCY.
4. ONLY IF JUDICIAL REVIEW IS ELIMINATED IS THERE LIKELY TO BE A
BOOST IN SUPPORT FOR SOCIAL WELFARE RIGHTS PROTECTIONS
Mark Tushnet, Law Professor, Georgetown, 1998 (TAKING THE CONSTITUTION A WAY FROM
THE COURTS, p.9)
Freed of concerns about judicial review, we might also be able to develop a more robust
understand of constitutional social welfare rights, which are recognized in many constitutions
around the world.

151

5. STATES HAVE AN ETHICAL OBLIGATION TO ENSURE WELFARE RIGHTS
PROTECTIONS
Robin West, Law Professor, 2001 (FORDHAM LAW REVIEW, April, p. 1902)
More basically, the state must ensure sortie minimal level of well-being because such a threshold
is necessary if citizens are to live fully human lives and have the dignity to which their humanity
entitles them. Many citizens of even prosperous democratic states cannot possibly enjoy such a
minimal threshold, furthermore, without some state involvement in the distribution of resources,
particularly with the inequalities that persist and threaten to worsen today. States are required, by
justice and goodness both, to treat citizens with dignity, and with equal dignity at that. Therefore,
welfarists conclude, the state is obligated to do whatever it takes to provide that minimal level of
well-being to each of its citizens.
5. TURN: COURT DECISIONS MOBILIZE COUNTER-MOVEMENTS, KILLING

SOCIAL CHANGE
Gerald Rosenberg, Political Scientist @ Chicago, 1991 (THE HOLLOW HOPE: CAN THE
COURTS BRING ABOUT SOCIAL CHANGE?, p. 341-2)
While I have found no evidence that court decision mobilize supporters of significant social
reform, the data suggest that they may mobilize opponents. With civil rights, there was growth in
the membership and activities of pro-segregation groups such as the White Citizens Councils and
the Klu Klux Klan in the years after Brown. With abortion, the Right to Life movement expanded
rapidly after 1973. While both types of groups existed before Court action, they appeared reinvigorated after it.
6. TURN: JUDICIAL ACTION UNDERMINES REPRESENTATIVE DEMOCRACY

AND LEADS TO THE COLLAPSE OF SOCIETY
Dalton Cross, Law Professor, 2000 (HARVARD JOURNAL OF LAW & PUBLIC POLICY, Fall, p.
165)
Nearly five decades of experience has shown, in my opinion, that entitlement by majority vote of
nine electorally unaccountable lawyers is not an improvement on the system of representative
self-government on a state-by-state basis created by the Constitution. It has show, on the
contrary, that it is a path toward the disintegration of American society on the whole.

152

7. ACTING TOGETHER DISCOURAGES CONGRESS FROM DEVELOPING ITS
OWN INTERPRETIVE
METHODOLOGIES
Neal Devins, Law Professor, William and Mary, 2000 (UNIVERSITY OF RICHMOND LAW
REVIEW, p. 363)
Another way in which "judicial overhang distorts what legislators say about the Constitution" is
that legislative consideration of constitutional matters is little more than an attempt by lawmakers
to fit their statutes into preexisting Supreme Court doctrine. For example, the House and Senate
Judiciary Committees are understood to take constitutional interpretation seriously because they
are keenly interested in whether the Court will uphold their actions, and are therefore willing to
moderate the legislation they produce. In other words, rather than develop their own distinctive
interpretive methodologies, lawmakers (when they talk about the Constitution) almost always
mimic the Supreme Court. And when Congress does respond to Court decision-making, the cost
of ensuring compliance with judicial norms is significant. To "credibly claim" that the federal Flag
Protection Act would satisfy the Supreme Court, for example, "the statute had almost nothing to
do with what its supporters thought a flag protection law ought to do."
8. COURT ACTION DISCOURAGES SUBSEQUENT LEGISLATIVE ACTION AND

CONSTITUTIONAL PROTECTION
Mark Tushnet, Law Professor, Georgetown, 1998 (TAKING THE CONSTITUTION A WAY FROM
THE COURTS, p.22)
But, as a general matter, concern for the Constitution probably ranks relatively low in post
politicians' calculations today. Recall, however the argument that this situation may have arisen
because of judicial review. Neither the people nor their representatives have to take tile
Constitution seriously because they know -or believe -that the courts will. Political calculations
might change if people knew they were responsible for the Constitution.
9. DELIBERATION DISPERSES POWER AND REDUCES THE RISKS OF

TYRANNY .
Jack Nowlin, Law Professor, University of Mississippi, 2000/2001 (KENTUCKY LAW JOURNAL,
Winter, p. 422)
The Constitution's basic strategy for preserving individual rights is quite evident in the
constitutional text, the historical record, and documents such as The Federalist. The strategy is
chiefly a structural one, involving the creation of representative institutions in order to protect the
people from governmental tyranny. This strategy also involves the careful diffusion and balancing
of political power among the institutions of government. The Framers' intention here in part was to
further weaken the government to prevent tyranny as well as to slow down the political process,
to make it more deliberative and to promote reflection, persuasion, compromise, consensusbuilding, and incrementalism. In fact, as Michael Sandel has observed, in the early American
Republic liberty was simply "understood as a function of democratic institutions and dispersed
power."

153
2ac Answers
1. CONGRESSIONAL ACTION TO ELIMINATE STARE DECISIS IS
UNCONSTITUTIONAL
Christopher Banks, Assistant Professor of Political Science, Buchtel College of Arts and
Sciences, 1999 (AKRON LAW REVIEW, 1999, Reversals of Precedent and Judicial Policy-Making:
How Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence Social Change,
p. 591)
Against the background of my briefly sketched theory of judicial legitimacy, Professor Paulsen's
proposal that Congress, by statute, could mandate an end to stare decisis in constitutional cases
is plainly unconstitutional. Constitutional stare decisis is not, and cannot be, the mere
subconstitutional policy that Professor Paulsen depicts. If not of constitutional stature (in the
sense of being constitutionally authorized), stare decisis could not displace what otherwise would
be the best interpretation of the written Constitution binding on the Supreme Court as "the
supreme Law of the Land" under broadly accepted and controlling norms of legal practice. If
stare decisis is constitutionally valid at all, it must be constitutionally mandated or at least
constitutionally authorized.
2. INTEREST GROUPS WILL SIMPLY MANIPULATE THE LEGISLATIVE

PROCESS
Michael C. Dorf, Professor of Law, Columbia University. Charles F. Sabel, Professor of Law and
Social Science, Columbia University. 1998 (COLUMBIA LAW REVIEW, March, pp. 269-70)
The second is that our national life is so factious that declarations of sovereign intent general
enough to be workable open the way to divergent, often self-interested, interpretations. The
more encompassing the legislation (or the broader the delegation of legislative authority to an
administrative agency), the more its application must be guided not merely by the text of the
enactment, but also by reference to the legislators' intention as revealed in the debates
attending passage of the law. Anticipating this, interested groups simply manipulate the
discussion that becomes the legislative history to favor the interpretation they will subsequently
urge of it.
3. PEOPLE CAN REPLACE THEIR REPRESENTATIVES

Law School., COLUMBIA LAW REVIEW, March, Adjudication as representation, p. 341)
Of course, it is a matter of continuing controversy whether legislative representatives should be
guided primarily by the "wishes" or "preferences" of their constituents, by the "best interests" of
their constituents despite their expressed preferences, by the good of the state or the nation as
a whole, by some combination of these standards, or indeed by some different standard or
standards altogether. But, regardless of how elected representatives ideally should act on behalf
of their constituents, the democratic system of electoral control ensures that the people have the
ability to replace legislators whom they see to be acting improperly (by whatever standard the
constituents choose to apply. This fact of electoral control means that the laws produced by the
elected legislators can in a real sense be said to have been created through a system of citizen
participation).

154
2ac Answers
4. WITHOUT JUDICIAL REVIEW, THE EXECUTIVE WILL MANIPULATE THE
CONSTITUTION
Neal Devin, Law Professor, College of William and Mary, 2000 (UNIVERSITY OF RICHMOND
LAW REVIEW, p. 367-8)
In critical respects, Tushnet embraces this type of cost-benefit analysis. He never says that
Congress will do a much better job than it does today. Rather, his view is that Congress may do a
better job and-in light of the Court's limitations- that is enough. Tushnet, moreover, sees Congress
as the seat of populist government. As he states: "The position I have developed would make the
Constitution what a majority of Congress says it is." But what about the Executive? For sure,
Tushnet recognizes that the White House will playa large role in shaping populist constitutional
law. Yet, the focus of Tushnet's brand of populism is legislation, not regulation. Specifically, he
imagines that the White House and Congress will "appeal to the court of public opinion" as they
bargain over the content of constitutional lawmaking. On this point, however, I think Tushnet does
not consider how it is that the Executive will manipulate the Constitution far more often and far
more successfully than Congress. "The opportunities for presidential imperialism are too
numerous to count," according to Terry Moe and William Howell, "because when presidents feel it
is in their political interests, they can put whatever decisions they like to strategic use, both in
gaining policy advantage and in pushing out the boundaries of their power." When presidents act,
moreover, it is up to the other branches to respond. In other words, presidents often win by
default-either because Congress chooses not to respond, or its response is ineffective
5. NO NET-BENEFIT: ELIMINATING JUDICIAL REVIEW WILL HAVE NO

IMPACT ON THE CONGRESS
Neal Devin, Law Professor, College of William and Mary, 2000 (UNIVERSITY OF RICHMOND
LAW REVIEW, p. 356)
Of course, "without the fear of judicial nullification Congress can make bolder policy than it does
today. And it may be that some interest groups internalize the risks of judicial invalidation, and
therefore, do not press Congress as hard as they might. At the same time, other interest groups
may not have pressured Congress precisely because they thought that the courts would strike
down legislation inconsistent with their beliefs. Consequently, it is doubtful that-in a world without
judicial review-Congress will moderate its handiwork all that much.

155
2AC Answers
6. COURTS SUSTAIN CONTINUITY, WHICH IS CRITICAL TO THE RULE OF LAW
Neal Devins, Law Professor, College of William and Mary, 2000 (UNIVERSITY OF RICHMOND
LAW REVIEW, p. 370)
In a world without judicial review, however, the power of each administration to embrace a
radically different conception of constitutional truth comes at la great cost. Specifically, the idea of
law as a stabilizing force cannot be reconciled with a regime in which each presidential election
serves as a national referendum about which vision of constitutional truth sits well with the
electorate. Rather, a stable constitutional order requires some baseline. In particular, a
government of laws must be constrained by law. And, if elections are the only constraint on
populist sentiment, The Constitution begins to look to Gore and more like an historical relic-not a
rule of laws that constrain government. "What a government of limited powers needs," as Charles
Black observed, "at the beginning and forever, is some means of satisfying the people that it has
taken all steps humanly possible to stay within its powers." In other words, there must be
continuity to the rule of law in a government of law. And, while courts are greatly influenced by
social and political forces, there nevertheless is a continuity to their decision-making.
7. THE SUPREME COURT LARGELY ADHERES TO PRECEDENT

Neal Devins, Law Professor and Lecturer in Government, College of William and Mary, 2000
(UNIVERSITY OF RICHMOND LAW REVIEW, p. 371)
Maybe, but I do not think so. The "judicial overhang" of which Tushnet complains actually
operates as a legitimating constraint on elected government interpretations of the Constitution,
especially Executive Branch interpretations. The Office of Legal Counsel ("OLC"), for example,
treats both Supreme Court decisions and OLC precedents as a source of legal authority in its
interpretations of the Constitution. Without judicial review, there is good reason to question what,
if anything, would constrain the OLC. No longer would the OLC need its own precedents to
counterbalance those of the Supreme Court. Instead, each administration might see the national
election as a referendum on its constitutional philosophy (so that little weight would be accorded
to prior Executive Branch interpretations). The Supreme Court, in contrast, largely adheres to
past precedent. In part, this is a manifestation 'of the instrumental role that stare decisis plays in
legitimating their decisions. In part, it is a by-product of the fact that changes in Court doctrine
occur gradually. With nine Justices and life tenure, the Court is not apt to flip flop with each
election.
8. THE POLITICAL PROCESS WONT EVEN PROTECT THE MAJORITY

Erwin Cherninsky, Irmas Professor of Public Interest Law, Legal Ethics, and Political Science,
University of Southern California, 2000 (MICHIGAN LAW REVIEW, May, p. 1426)
Sometimes the political process will even nil the majority. Reapportionment is the classic example
here. In the 1960s, malapportioned state legislatures were not about to reapportion themselves
so as to decrease the political power of those in office. Every incentive led those who benefited
from mallapportionment to retain the existing system. Only judicial review could institute: oneperson, one-vote.

156
2AC Answers
9. JUDICIAL REVIEW IS NEEDED TO CHECK THE POWER OF THE
LEGISLATURE
Erwin Chermninsky, Irmas Professor of Public Interest Law, Legal Ethics, and Political Science,
University of
Southern California, 2000 (MICHIGAN LAW REVIEW, May, p. 1434)
This approach allows Professor Tushnet to keep judicial review but just gives it a different label.
What, for example, would make: a government action ultra conservative. Obviously, if the
government action exceeds the powers of the government under the Constitution, it is then ultra
vires. Constitutional judicial review still would exist, but would be called something different.
Tushnet's examples of how ultra vires is used in countries without judicial review undermine his
argument that judicial review is unnecessary. It shows that even countries without written
constitutions and without judicial review want courts to be a check on executive and legislative
actions. This, in itself, is powerful evidence against taking the Constitution away from the courts.
10. CONGRESSIONAL COMMITTEES WILL NOT FOLLOW LEGALISM

Neal Devins, Law Professor and Lecturer in Government, College of William and Mary, 2000
(UNIVERSITY OF RICHMOND LAW REVIEW, May, pp. 356-7)
What will change is the type of constitutional discourse that takes place within Congress. No
longer will the Judiciary Committee employ the language of the Supreme Court when debating
constitutional questions. Whether Congress will develop its own modalities of constitutional
interpretation (or, for that matter, talk much about the Constitution) is another matter altogether,
Most committee~ within Congress see constitutional arguments as simply another roadblock
standing in the way of what they want to accomplish. For that reason, most congressional
committees do not talk about the Constitution at all. Consider, for example, the House Energy and
Commerce Committee. As one staff member who worked for both the Judiciary and Energy and
Commerce Committees put it: "'A good legal argument wins on Judiciary; power wins on Energy
and Commerce. Power, not legal training, is the most important thing on Commerce, Commerce,
doesn't listen to legal arguments, just ideology.'" For another staff member: "Energy and
Commerce members move quickly to fix the problems before them without getting bogged down
in fruitless debates over the possible constitutionality of the bills before them." Consequently,
when the Reagan Federal Communications Commission ("FCC") questioned the constitutionality
of awarding racial preferences, the Energy and Commerce Committee castigated all five
commissioners for hiding behind the Constitution. Committee member Al Swift, for example,
bemoaned the FCC's "legalistic gobbledygook," remarking that "I am not a lawyer, and I am
mystified by them all the time."

157
2AC Answers
11. NO NET-BENEFIT: ELIMINATING JUDICIAL REVIEW WILL NOT IMPROVE
LEGALISM
Neal Devin, Law Professor and Lecturer in Government, College of William and Mary, 2000
(UNIVERSITY OF RICHMOND LAW REVIEW, p. 357)
Perhaps taking the Constitution away from the courts will change this practice. Perhaps members
of power and constituency committees will take more seriously their duty to independently assess
the constitutionality of their actions. Perhaps, but do not count on it. Members join these
committees either to assume power or to serve their constituents (and thereby improve their
chances of reelection). It is hard to see how the evisceration of judicial review will fundamentally
change that reality.
12. CONGRESS IS TOO BUSY -- THEY WON'T BOTHER WITH

CONSTITUTIONAL INTERPRETATION AND RIGHTS PROTECTIONS
Mark Graber, Professor of Government and Politics, Maryland, 2000 (UNIVERSITY OF
RICHMOND LAW REVIEW, May, p. 399)
This judicial freedom to construe the thin Constitution subject to legislative revision vests courts
with substantial power to influence constitutional meaning. At the very least, judicial
interpretations of the thin Constitution will remain good constitutional law until the legislature
provides a more authoritative constitution. The delay may be considerable when Congress is
occupied with other matters. Justices will frustrate a law-making majority committed to capital
punishment when all members of that governing majority agree that balancing the federal budget
is more important than passing a bill that more clearly mandates the death penalty for certain
crimes. More importantly, simple majorities do not govern in the United States. Multiple majorities
are necessary to change the status quo. A judicial decision "interpreting" a federal statute as not
mandating capital punishment can be overruled only if the President, Senate majority, and
majority in the House of Representatives are for capital punishment, or if a supermajority in both
chambers of the national legislature are for capital punishment. The potential populist problems
with this judicial power to impose constitutional limits on simple majorities may be exacerbated if,
as Professor Tushnet reasonably thinks, courts are more likely to protect constitutional rights
"when judicial decisions are subject to legislative revision. Justices, in Tushnetian
Constitutionalism, may not hand down any decisions that can be overturned only by a
supermajority. They will be encouraged, however, to hand down far more decisions than at
present that can be overturned only by a multiple majority.

158
2AC Answers
13. PERM: DO BOTH
JOINT ACTION PRODUCES SOCIAL CHANGE
John Bohte, Law Professor, 1998 (LEVERAGING THE LAW: USING THE COURTS TO BRING
ABOUT SOCIAL CHANGE, p. 53)
This vision of the Supreme Court's ability to direct national attention to issues strikes a contrast
with Rosenberg's depiction of the conditions under which Courts can be 'effective producers of
significant social reform.' Rosenberg claims that several conditions must exist simultaneously in
order for the Court's actions to have an impact. There must be ample legal precedent for the
change, substantial Congressional and presidential support, either support from citizens or lows
levels of opposition, and an effective, reliable means available for implementing the change.
B. JOINT ACTION PROCEDURES SOCIAL CHANGE JUDICIAL

INTERPRETATION FACILITATES POPULISM
RICHMOND LAW REVIEW, May, pp. 400-1)
The populist institution responsible for breaking deadlocks would be less subject to elite
penetration than the present federal judiciary. The thin Constitution or the courts is not likely to
receive a working-class interpretation. Those persons who have access to elite legal resources
have more success litigating than those who do not. Judicial decision-makers almost exclusively
represent the upper class. Elite educational institutions perpetuate this inequality by educating
and credentialing the vast majority of persons who will become elite attorneys and the vast
majority of persons who will become elite justices. These elites are likely to determine how the
thin Constitution in the courts is interpreted, even if courts renounce the power to declare laws
unconstitutional. These arguments hardly constitute a definitive populist case against granting
courts any constitutional power. Litigation may better foster political participation than populists
have historically recognized. The liberal or populist benefits from Justices interpreting statutes
consistently with the thin Constitution may outweigh the slight populist costs of a lessparticipatory form of constitutional decision-making.
RICHMOND LAW REVIEW. May, pp. 403-4)
Judicial review may "enhance the public; consideration of fundamental issues" by increasing
public awareness of certain fundamental issues. Judicial decisions have publicized and
nationalized political controversies. The Supreme Court's opinions declaring flag-burning
uconstitutional stimulated a movement to make that practice illegal. Likewise, Roe v. Wade
dramatically increased popular interest in the abortion issue. Little evidence supports claims that
federal judges serve as republican schoolmasters, educating people about fundamental
constitutional values. Judicial decisions on abortion tended to harden existing opinions, rather
than refine them. Still, many activists on both sides of the abortion issue probably would not have
participated in politics had reproductive policy not been nationalized by judicial decision.

159
2AC Answers
14. TURN: LITIGATION IS A FORM OF PUBLIC PARTICIPATION
Judicial review may facilitate public participation in constitutional decision-making because
litigation is a form of political participation. "Participation in the legal process," Professor Susan
Lawrence notes, "can fulfill the functions given to participation in classical democratic theory:
develop responsibilities:, individual, social and political action; increase feelings among
individuals that they belong to the community; and ensure that all are equally makers and
subjects of law." Moreover, litigation is a particularly cheap form of political participation. Groups
that cannot afford increasingly expensive lobbying and electoral campaigns are nevertheless
guaranteed their day in court if members claim that their constitutional rights have been violated.
"A few volunteer lawyers, several wealthy benefactors, and support from relatively small
organizations provided the resources necessary for placing abortion in the agenda of the federal
judiciary." Terri Peretti has similarly concluded that constitutional litigation serves to expand
political participation in the United States. "The opportunities for groups to gain access to and
have an effective voice in government policy-making are greatly expanded," she writes, when
courts have the power to declare laws unconstitutional.
15. CONGRESSIONAL ACTION TO ELIMINATE STARE DECISIS IS

UNCONSTITUTIONAL
Christopher Banks, Professor of Political Science, Buchtel College of Arts and Sciences, 1999
(AKRON LAW REVIEW, v. 32, p. 591)
Against the background of my briefly sketched theory of judicial legitimacy, Professor Paulsen's
proposal that Congress, by statute, could mandate an end to stare decisis in constitutional cases
is plainly unconstitutional. Constitutional stare decisis is not, and car not be, the mere
subconstitutional policy that Professor Paulsen depicts. If not of constitutional stature (in the
sense ()f being constitutionally authorized), stare decisis could not displace what otherwise would
be the best interpretation Of the written Constitution binding on the Supreme Court as "the
supreme Law of the Land under broadly accepted and controlling norms of legal practice. If stare
decisis is constitutionally Valid at all, it must be constitutionally ma dated or at least
constitutionally authorized.

160
1ar Extensions: The Political Process Does Not Protect Minority Rights
1. THE POLITICAL PROCESS DOESN'T HAVE THE INCENTIVES TO UPHOLD
THE CONSTITUTION
Erwin Cherminsky, Professor of Public interest Law, Legal Ethics, and Political Science,
University of Southern California, 2000 (MICHIGAN LAW REVIEW, May p. 1425)
Tushnet argues that the benefits of judicial review in enforcing the limits of the Constitution are
minimal because there are incentives for the political branches to comply with the Constitution
and existing political checks on the judiciary make it unlikely to depart far from the popular will.
Even accepting Tushnet's argument entirely, it ignores the instances in which the political process
lacks the incentives he describes and in which the courts have acted to uphold the Constitution.
2. THOSE WITHOUT POLITICAL POWER NEED THE JUDICIARY TO PROTECT

THEIR RIGHTS
Erwin Cherrminsky, Irmas Professor of Public Interest Law, Legal Ethics, and Political Science,
Most dramatically, those without political power have nowhere to turn for protection except the
judiciary. In a telling passage, Tushnet admits "my wife is Director of the National Prison Project
of the American Civil Liberties Union. She disagrees with almost everything I have 'written in this
chapter. The reality is that the political process has no incentive to be responsive to the
constitutional rights of prisoners. Admittedly, tile Rehnquist Court has a dismal record of
protecting prisoners' rights, but overall, no one could deny that judicial review has dramatically
improved prison conditions for countless inmates who would be abandoned by the political
process.
3. THE POLITICAL PROCESS WILL NOT PROTECT RACIAL OR POLITICAL

MINORITIES
More generally, there is little incentive for the political process to protect unpopular minorities,
such as racial or political minorities. How long would it have been before southern state
legislatures declared segregation of public facilities unconstitutional if not for Brown v. Board of
Education? Ho~' long would it have taken Congress, dominated by Southerners in key committee
chairs, to have acted in this regard? The point is that, overall, the political process has little
incentive to protect those who have minimal likelihood of influencing the outcome of elections.

161
4. WITHOUT JUDICIAL REVIEW, THE BILL OF RIGHTS WOULD NOT APPLY TO
THE STATES
University of Southern California, 2000 (MICHIGAN LAW REVIEW, May p. 1426-7)
A few examples illustrate this point. Without judicial review, the Bill of Rights would not be
incorporated and applied to the states. Although most states might voluntarily comply with most
of the Bill of Rights, some states certainly .would not follow every one of its provisions. For
instance, states did not provide free attorneys in felony cases such as Gideon v. Wainright. In this
respect, Tushnet ignores the benefits of judicial review in securing state and local compliance
with the Constitution. In fact, Tushnet's discussion of incentives at the federal level focuses solely
on Madison's arguments about separation of powers and how conflicts among factions protect
rights. Many local governments, however, do not have separation of powers, and often there is
clear domination by one group without the protection of competing factions.
5. JUDICIAL REVIEW IS CRITICAL TO ENFORCING RIGHTS

University of Southern California, 2000 (MICHIGAN LAW REVIEW, May p. 1435-6)
Sometimes I begin a federal courts class or a constitutional law class by having my students read
the United States Constitution and a copy of the Stalin-era Soviet constitution. My students
always are surprised to see that the latter has a far more detailed and elaborate statement of
individual rights. I also have them read a description of the enormous human rights violations that
occurred in the Stalin-era. The point, of Course, is that words on paper are not enough to make a
constitution meaningful. The difference between America and the former Soviet Union, in part,
was that no court in the Soviet Union could have invalidated the governments actions. Judicial
review is crucial to enforcing the Constitution and making the Constitution more than Just words
on parchment III the National Archives. It is hard for me to believe that anyone could seriously
want to take the Constitution away from the courts.

162
6. TURN: JUDICIAL REVIEW INCREASES PUBLIC CONTROL OVER
CONSTITUTIONAL MEANINGS
Judicial review may increase public control over constitutional meanings when elected officials
have not and will not resolve those controversies presently resolved by courts. Many
commentators think "delegation by majoritarian institutions" is the most important cause~ f judicial
review. "Political leaders," Professor Tushnet agrees, "often find judicial review a convenient way
to hand off hard decisions to someone else." Legislative deference to the judiciary is not,
however, always best understood as practice that "may serve politicians' interests, not their
constituents'." Promoting judicial review on some issues is one way politicians are able to take
clear stands on issues of more important to more people. Political struggles are not simply fought
over particular issues, but over what issues will be fought about. As E.E. Schattschneider
recognized, "some issues are organized into politics while others are organized out." Jacksonian
politicians during the 1840s and 1850s took very clear stands on the national bank and sought to
depoliticize slavery. The coalition that arose to fight slavery deliberately avoided taking stands on
the issues associated with the national bank. The Populist Party similarly refused to take a stand
on temperance in order to be able to take a more clear stand on currency issues. Unless there is
a radical change in the political system's capacity to absorb away from the courts will not force
elected officials issues, taking the Constitution cross-cutting numerous to make more policy
decisions. The more likely consequence is that elected officials will continue ignoring issues
previously declared by courts, foist those Issues off n some other institution whose members are
not directly accountable to voters, or pay much less attention to other issues that had previously
been on the legislative agenda.

163
Extensions: Judicial Review Facilitates Populism

1. JUDICIAL REVIEW FACILITATES POPULISM
Judicial review may "distribute responsibility for constitutional law more broadly" than legislative
processes when flaws in electoral processes inhibit greater and equal political participation.
Contemporary populists are particularly incensed by the influence of money in American politics.
"Who can look at the system by which national elections are financed," Sandy Levinson declares,
and describe it as anything other than corrupt, and increasingly threatening the basic integrity of
the American political system? And who can take seriously the capacity of Trent Lott, Tom DeLay,
or President Clinton, each of them mired in this corrupt process, to offer genuinely disinterested
advice on what we as citizens might do to reclaim our political system from the tentacles of big
money? In this political regime, the average citizen may have more opportunity to make an
argument that will influence a federal judge than to make a cash contribution that will influence an
elected official.
2. TURN: JUDICIAL REVIEW INCREASES WORKING CLASS INFLUENCE

judicial review may increase popular influence in democratic decision-making to the extent that
"political decision making is in reality almost always more a matter of elite bargaining than popular
deliberation." Prominent political sociologists maintain that people "cannot have large institutions
such as nation states, trade unions, political parties, or churches, without turning over effective
power to the few who are at the summit of these institutions." If these theories of democracy are
descriptively accurate, taking the Constitution away from the courts will merely change the
balance of power among those elites who determine constitutional meaning. Populist interests
may not be served by taking power from judicial elites. Working-class concerns may best be
promoted when conflict among elites is maximized. The more homogenous the elite in power, the
fewer the conflicts that will require elites to seek popular support. The intellectual and cultural
elites who exercise judicial power may also be more sympathetic to populist concerns than the
business elites more likely to influence legislatures. At the very least, the progressive elites who
tend to occupy appointed positions may provide some counterbalance to the market forces that
have historically undermined populist institutions.
3. TURN: ABOLISHING JUDICIAL REVIEW UNDERMINES POPULIST

PRIORITIES
Judicial review may be part of populist democracy at present because any campaign to abolish
that practice would detract from more important populist priorities. Were Professor Tushnet to run
for office on an anti-judicial review platform, he would have to disavow his previous commitment
to democratic socialism. Otherwise he would lose support from liberals committed to judicial
review and anti-court conservatives opposed to the welfare state. Populists have historically been
unwilling to mute economic concerns to achieve such institutional reforms. William Jennings
Bryan consciously decided not to push for an elective judiciary when doing so might reduce
support for other populist concerns.

164
4. TURN: JUDICIAL REVIEW FACILITATES THE PASSAGE OF POPULIST
LEGISLATION
Judicial review may promote populist lawmaking by enabling lawmaking majorities to pass
important legislation. American legislators have frequently secured the passage of needed
reforms by including a provision in the final bill facilitating a second, judicial look at particularly
controversial proposals. The Federal Election Campaign Act of 1974 and the Gramm-RudmanHollings Act were enacted only when legislators opposed to several provisions in each bill were
induced to vote for passage by the addition of clauses ensuring that federal courts would
immediately have the opportunity to delete offending sections of both measures. American
politics for this reason do not support Professor Tushnet's assertion that "the Court's campaign
finance decisions" effectively "block us from taking steps to reduce the influence of economics on
politics." Judicial review facilitated campaign finance reform during the 1970s by permitting
legislators to support what they believed was a less-than-perfect bill in the hope that the Court
might perfect the measure. Without judicial review, Congress might not have passed those
campaign finance reforms held constitutional in Buckley v. Valeo.
5. TURN: JUDICIAL REVIEW FACILITATES CONSENSUAL DEMOCRACY

Judicial review may be a populist practice if populists are more committed to consensual rather
than majoritarian democracy. Consensual democracies, Arend Lijphart notes, are not "satisfied
with narrow decision-making majorities." That democratic practice "seeks to maximize the size of
those majorities" by designing "rules and institutions that aim at broad participation in government
and broad agreement on the policies that the government should pursue." Granting judicial
power to interpret a hard-to-amend constitution is one of the important practices adopted by
virtually all consensus democracies. "In the pure consensus model," Lijphart writes, "the
Constitution is rigid and protected by judicial review." The American experience may support this
view of courts as a more consensual institution, or at least an institution that makes the political
system more consensual as a whole. Terri Peretti believes that as a result of judicial review, "the
political system" in the United States "possesses a greater capacity to discover, with more
certainty and reliability, the stable and enduring bases of political consensus." Significantly,
Lijphart's study found that consensual institutions may perform better than majoritarian
institutions on a variety of dimensions. If "citizens in consensus democracies are significantly
more satisfied with democratic performance in their countries than citizens of majoritarian
democracies," and if populist democrats ought to prefer institutions that increase popular
satisfaction with democratic performance, then populist democrats might support judicial review
as one element of consensual democracy.

165
6. THE PUBLIC HAS INFLUENCE ON THE COURTS
Judicial review may be a populist practice if judicial decisions declaring laws unconstitutional are
at least as consistent with public opinion as the political decisions made by other governing
officials. Some Supreme Court decisions, most notably the decisions declaring unconstitutional
state-sponsored prayer in public schools, clearly lacked popular support. The electoral branches
of government, however, are equally capable of acting in this countermajoritarian fashion.
Witness the congressional decision to impeach President Clinton and President Clinton's decision
to veto a bill banning partial-birth abortions. The comparative performance of the executive,
legislative, and judicial branches of the national government has led scholars to conclude that
"the modern Court appears neither markedly more nor less consistent with the polls than are
other policy makers." The mechanisms by which public opinion influences judicial decisions may
be different than the mechanisms by which public opinion influences other officials. Still, whether
because of factors identified in the above paragraphs or for some other reason, the people may
presently exercise the same control over the Constitution in the courts as they do outside of the
courts.
7. JUDICIAL REVIEW FACILITATES CONSENSUAL DEMOCRACY

RICHMOND LAW REVIEW, May pp. 409-10)
These claims hardly refute populist or other attacks on judicial review. Much of the empirical
evidence is controversial or represents at most preliminary findings. Gregory Caldeira's comment
that "we do not yet have sufficient evidence on which we can place much confidence" concerning
whether "the Supreme Court represents public opinion" could be said of the judicial role
promoting consensus and participation. Moreover, the weight of this evidence depends on
populist commitments. A populism committed to increasing public participation and consensus
democracy might find that judicial review facilitates that goal. A populism committed to more equal
political influence and majoritarian democracy might prefer legislative supremacy. These opinions
would also depend on estimates concerning elite influences on legislative politics, and whether
those elites who exercise judicial power may have more populist sympathies than those elites
who exercise legislative power. For all these reasons, the claims in this section are presented in
the Tushnetian spirit, as designed only to "open[ ] up issues that thoughtful voters and elected
officials should think about, and that are obscured by the elitist constitutional law that dominates
contemporary legal thought."

Critical Legal Studies
166
## Critical Legal Studies Critique

Introduction to CLS
Critical legal studies scholars critique the dominant liberal paradigm of trying to protect
the interests of individuals who are arguably in need of assistance through a rights-based
approach. These critics make a number of objections to rights, including that rights
alienate, undermine an ethic of care, are indeterminate and hence difficult to enforce, and
are really designed to protect the interests of the dominant class.
Many affirmatives this year will use rights the legal system to protect the rights of
individuals. This is the focus of all of the topic literature.
The argument is blocked in two different ways (and the cards are different in each). The
first way that it is blocked is as a traditional kritik and the second way that it is blocked is
as a frontline that you can read against harms or solvency.

167
Critical Legal Studies Kritik Shell

A. LINKS
1. THE PROVISION OF RIGHTS JUST REINFORCES THE STATUS QUO
Anthony Paul Farley, Associate Professor, Boston College Law School, 2001
(CARDOZO LAW REVIEW, March, p. 11)
Kennedy responds that legal correctness and rights discourse are powerful stabilizers of
the status quo. Legal correctness and rights discourse are powerful stabilizers of the status
quo, as is the idea that every slave really wants freedom. Those who fought for "rights"
rather than to eliminate the very possibility of master/slave relations, succeeded only in
binding their chains more tightly.
2. JUDICIAL DECISIONS LEGITIMATE THE EXISTING LEGAL ORDER BY
REIFYING OUR ALIENATED SOCIAL ROLES
Henry Schegel, Professor of Law, State University of New York at Buffalo, 2001
(CARDOZO LAW REVIEW, March, pp. 1067-8)
From the judge's perspective, any legal dispute is a "disequilibriation" or a breakdown in
the system of normal social relations that must be set right. The judge sets things right by
generating a conceptual analysis that embodies the presupposed norm that inheres in the
reified system of social relations. To accomplish this task, the judge reifies "legitimating
concepts" drawn from the presupposed norm so that "it will appear that the functioning of
the system is simply the factual activity of the legitimating concepts, thereby representing
the system itself as legitimate a priori." This method affirms the status quo. Then, the
judge reverses the movement of thought so as to generate "a process of re-experiencing
the event itself as that event is signified through legitimating concepts." The point of this
process is that it is a way of continuing the denial of the illegitimacy and
disconnectedness of social relations as they are experienced under capitalism by
depicting the unalienated group in its imaginary form as a part of political theory.

168
B. IMPACTS/IMPLICATIONS
1. THE LAW CONSTRUCTS REALITY
Frank Pommersheim, law professor, South Dakota, 1997 (THOMAS M. COOLEY LAW
REVIEW. v. 14, p. 435)
Law may be thought about in yet a third way -- a way that is particularly resonant with
issues and concerns in Native American communities where law has played and
continues to play a dominant, if not dominating, role in tribal life. This third view sees
law as a "culture which constitutes a world of meaning and action. It is a culture that
establishes and maintains community through its practice of language. In this sense the
law is an ethical and political activity and should be understood and judged as such."
LAW REVIEW, May, pp. 1573-4)
For those of us gathered within the geographical borders of the United States, the verbal
concepts that purport to constitute our group in this fashion are contained in "the
Constitution," which signifies both an original moment in which we supposedly came
together to form "a union," and the schema by which we are to reproduce our group
connection through the reproduction of "the State," and through "the following of laws"
created and interpreted by this "State." These laws define how we are "allowed to act" in
the form of "rights." If we now examine the relationship of this schema to the inner
experience of the alienated individual that I have just summarized, we can discover how
the schema is intended to "legalize" this experience and in so doing make the
reproduction of alienation a condition of group membership.
3. THE PLAN WON'T SOLVE: CIVIL RIGHTS CLAIMS WON'T WIN IN COURT
Hugh M. Davis, Jr, Co-founder, Constitutional Litigation Associates, 1998 (DETROIT
COLLEGE OF LAW AT MSU LAW REVIEW, Summer, p. 599)
What cases are considered "civil rights" cases? They are generally divided between suits
over the limits beyond which public officials are liable for damages to a person subjected
to the criminal justice process and the tolerable limits on the unfairness which the
economic system may treat otherwise law-abiding citizens. In both categories, the Sixth
Circuit generally favored the disposal of civil rights cases on summary judgment,
narrowing rights and eliminating trials. Most of the reported trial court winners were at
least partially reversed on appeal.

169
C. THE ALTERNATIVE IS TRANSGRESSIVE PEROFRMANCES

Daria Roithmayr, Assistant Professor of Law, University of Illinois, 2001 (CARDOZO
LAW REVIEW, March, pp. 1121)
Rather, Kennedy proposes that the Left pursue a series of small-scale, ad hoc
transgressive performances, in order to destabilize from within particular oppressive
social, legal, and political structures and institutions. How can one destabilize institutions
from within while still being transgressive? Kennedy explains that certain legal and social
structures appear cohesive and stable only by ignoring or marginalizing their own internal
instability. A legal rule, for example, appears determinate and legitimate only by ignoring
those instances in which the rule produces contradictory results using the same set of
facts, or marginalizing them by describing them as exceptions. If these contradictory
outcomes were to be exposed, in a way that could not be explained as a minor exception
or anomaly, then perhaps the legal structure would collapse. Kennedy argues that
transgressive performances may be one way to uncover such contradictions and
deviations.

170
Link: Rights
1. THE PROVISION OF RIGHTS JUST REINFORCES THE STATUS QUO
Anthony Paul Farley, Associate Professor, Boston College Law School, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL HISTORIES: LILIES OF THE
FIELD: A CRITIQUE OF ADJUDICATION, p. fn21)
Kennedy responds that legal correctness and rights discourse are powerful stabilizers of
the status quo. Legal correctness and rights discourse are powerful stabilizers of the status
quo, as is the idea that every slave really wants freedom. Those who fought for "rights"
rather than to eliminate the very possibility of master/slave relations, succeeded only in
binding their chains more tightly.

171
Links: Judicial Decisions

1. JUDICIAL DECISIONS LEGITIMATE THE EXISTING LEGAL ORDER BY
REIFYING OUR ALIENATED SOCIAL ROLES
(CARDOZO LAW REVIEW, March, SYMPOSIUM CRITICAL LEGAL
HISTORIES: OF DUNCAN, PETER, AND THOMAS KUHN p. 1067-8)
From the judge's perspective, any legal dispute is a "disequilibriation" or a breakdown in
the system of normal social relations that must be set right. The judge sets things right by
generating a conceptual analysis that embodies the presupposed norm that inheres in the
reified system of social relations. To accomplish this task, the judge reifies "legitimating
concepts" drawn from the presupposed norm so that "it will appear that the functioning of
the system is simply the factual activity of the legitimating concepts, thereby representing
the system itself as legitimate a priori." This method affirms the status quo. Then, the
judge reverses the movement of thought so as to generate "a process of re-experiencing
the event itself as that event is signified through legitimating concepts." The point of this
process is that it is a way of continuing the denial of the illegitimacy and
unconnectedness of social relations as they are experienced under capitalism by depicting
the unalienated group in its imaginary form as a part of political theory.

172
Impacts: Judicial Power Is Bad

1. UNCHECKED JUDICIAL POWER IS AN EVIL THAT MUST BE AVOIDED
Morris Hoffman, District Judge, Second Judicial District (Denver), State of Colorado,
2002 (FORDHAM URBAL LAW JOURNAL, June, p. 2086)
One might ask why the founders were so keen on such a comprehensive institutional
clipping of the judiciary's powers. The answer is that they appreciated, from their own
English history, that unchecked judicial power is an evil to avoid at almost any cost. Both
the Federalists and the anti-Federalists were acutely aware of the failings of the English
system, in which all judges were appointed by the Crown and served at the Crown's
pleasure, and in which Parliament was invested with supreme appellate jurisdiction in all
cases.

173
Impacts: Capitalism Bad Scenario

1. THE LAW LEGITIMATES THE CAPITALIST SYSTEM BY REIFING OUR ALIENATION WITH
ONE ANOTHER THROUGH RIGHTS PROTECTIONS
Henry Schegel, Professor of Law, State University of New York at Buffalo, 2001 (CARDOZO LAW
REVIEW, March, SYMPOSIUM CRITICAL LEGAL HISTORIES: OF DUNCAN, PETER, AND
THOMAS KUHN, p. 1066-67)
Peter begins his argument with the assertion that "human relationships within contemporary capitalism are
characterized by a traumatic absence of connectedness that does not wish to become conscious of itself."
Humans deny their lack of connectedness to each other because doing so is a condition for maintaining
what little connectedness actually exists with others. Such connectedness comes from perceiving oneself in
a social role constituted by capitalism, a perception that is shared by others. Each of these experiences of
being in a role is also a perception of oneself as "thing-like" - the essence of alienation - each of these roles
is thus properly seen as reified, that is, taken to be concrete when it is in fact contingent. At the same time
the thing-like quality of each of these reified roles is felt by humans to be illegitimate, though denied to be
such, and so there is always the possibility that the collectivity may "explode the whole thing." In this
circumstance: "The function of "the law' is to give each of us the impression that the system operates
according to normative law." Therefore, "the law is a denial ... of our collective experience of
illegitimacy." Thus, the function of law is legitimation.
2. RIGHTS HAVE BEEN A COLLOSAL FAILURE THAT SERVE TO PROTECT THE MARKET
Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM LAW REVIEW,
April, SYMPOSIUM THE CONSTITUTION AND THE OBLIGATIONS OF GOVERNMENT TO
SECURE THE MATERIAL PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES,
AND THE GOOD SOCIETY, p. 1915)
This is not a groundless worry. There is plenty in our recent and not so recent history that explains the
rights critics' most extreme forms of rights skepticism. The rhetoric from the last great American rights
revolution - the civil rights movements of the fifties and sixties - has indeed become the shell of the
reactionary anti-affirmative action movement of the eighties, nineties and aughts. The reproductive rights
movement of the mid and late twentieth century has similarly become nothing but a bare
commodificationist right to purchase an abortion, rather than a positive entitlement to exercise meaningful
autonomy or choice in one's reproductive life. Negative rights of free speech - fervently sought after by
dissenters as a way to protect the interests and liberties of persecuted pacifists, anarchists, and communists
at mid-century - have become, at the turn of the century, the vehicle by which advertisers manipulate public
desire with impunity, and corporate wealth maintains its headlock on the levers of political decisionmaking. The peculiarly American so-called "right to bear arms," intended to protect the rights of colonial
citizens against a centralized, distant military force, has become instead the means by which citizens
terrorize each other, reducing the state to such cartoonish sub-minimalism that the right threatens to return
us all to the very Hobbesian state of nature from which the Leviathan promised deliverance.

174

3. JUDGES APPLY OUR REIFIED CAPITALISTIC ROLES
(CARDOZO LAW REVIEW, March, SYMPOSIUM CRITICAL LEGAL
HISTORIES: OF DUNCAN, PETER, AND THOMAS KUHN, p. 1067)
A judge like all other humans in the capitalist system, is "passivised within a role,
fulfilling ... "the judicial function.'" In acting out this function, the judge begins with "a
sense of the whole culture ... that he passivizes into the movement of a quasi-object, such
that each discrete situation of facts reveals itself to his mind against the background of
the total "factual' context from which the law has emerged." In other words, the judge
apprehends the completely reified social structure characteristic of capitalism, denying
the made, changeable contingency of social relations. This reified structure is understood
as the normal movement of the social field, both in the sense of "normal" as "regular,"
and in the sense of "normatively compelling." In this latter sense, the reified structure
embodies the "presupposed norm" that the judge thereafter will be called on to "apply."
4. THE LEGAL SYSTEM RELIES ON COST-BENEFIT ANALYSIS THAT
PROTECTS THE MARKET
The cost of health is balanced against lost profits, the value of future life is measured
against present dollars, the cost of suffering against the cost of prevention, the monetary
benefits of speech against the cost of permitting it, the cost of sexual harassment against
the benefits of non-intervention. This cost-benefit analysis has widely recognized and
well-known pitfalls: it relies on real or shadow market values that are themselves
reflective of little but the forces of profit; it ferociously solidifies and legitimates the
status quo by ignoring the effects of given distributions on felt entitlements; it
discriminates between us by valuing our lives differently on the basis of our projected or
actual incomes; it creates a wealth-based mentality that measures all, including goodness,
truth and justice, by reference to profit. But for all of its problems - for all of its wellknown absurdities - cost-benefit analysis now dominates legal analysis.

175

5. LEGAL TRAINING SUPPORTS GLOBALIZATION
Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC
LAW REVIEW, Is the Rule of Law Cosmopolitan?, p. 22)
Second, and more importantly, a large number of working lawyers - in fact, the vast
majority of the elite of the profession - already think and act as cosmopolitan citizens of
the world, in either the economic or ethical sense, and already view that worldly identity
as fully integrated with their legal identity. Private international lawyers employed by
transnational corporations or trade organizations, as well as public human rights lawyers
employed by human rights organizations, nations, governments, or individuals, circle the
globe, dressed in their American Express cards, as they quite explicitly seek to create a
world without borders, united by legal ties of either commerce or of a universal regard for
human rights.
6. PROMOTING UNIVERSALLY SHARED HUMAN RIGHTS PROMOTES
CAPITALISM
LAW REVIEW, : Is the Rule of Law Cosmopolitan? , p. 259)
This traditional account of the rule of precedent, of legal justice and the rule of law, is not
simply non-cosmopolitan; it is anti-cosmopolitan. The very point of precedent, and of
law, so understood, is to forge a cultural or national identity separate and distinct from
undifferentiated humanity; it is to create and maintain bonds of civic obligation
distinctively grounded in particularistic tradition rather than in universal essence. We treat
likes alike - masters like masters, servants like servants, one promise backed by
consideration like another promise backed by consideration - because by doing so we
create, affirm and differentiate particular and shared identities, and by doing so, we
create, affirm and differentiate our culture from all others. We do all of this, in part,
through law. Law should be valued, then, not only and not primarily because it handily
insures order, safety, a less brutal, longer, and possibly freer life for all, but precisely
because it wards off the danger of a creeping cosmopolitan universalism - a universalism
that threatens our national identity, and hence our human and cultural identity,
profoundly. To generalize the point: if the virtue expressed by the rule of law is our
respect for universally shared human traits, which is then identified exclusively with our
capacity for willful choice, then the cosmopolitanism that the rule of law so understood
implies, will be one which runs rough shod not only over particular cultural traditions,
but also over legal regimes, either domestic or international, responsive to and protective
of other needs or traits or aspirations of the species. In short order, it will be a
cosmopolitanism that respects and serves the interests of commerce, capital and markets,
and one that is neglectful of or hostile to not only particular cultural traditions, but noncommercial universal needs and aspirations as well.

176

7. SUPPORTING LIBERTARIANISM SUPPORTS GLOBALIZATION
LAW REVIEW, Is the Rule of Law Cosmopolitan? pp. 284-5)
The second objection to an egalitarian conception of legal justice is that it inevitably
dissolves into a libertarian one, and that coupling that conception with cosmopolitanism
will accordingly do little but pave the way for global capitalism. If we identify the heart
of legal justice as an ethical mandate to accord an equal moral regard to all, and then
identify the grounds of that mandate as the nature we all share, but then cling to the belief
that what we share, essentially, is nothing but our capacity for creating value through
choice - a belief seemingly held by both the libertarian right and the relativistic
postmodern left - and we then urge a cosmopolitan ethic that respects that universalism,
we will have done little but fuel an economic globalism that runs roughshod over both
particularistic tradition and universal human need.

177
Internal Links: Rights Destroy Social Movements

1. RIGHTS RHETORIC MASKS OPPRESSION AND DEMOBILIZES SOCIAL
MOVEMENTS
LAW REVIEW, CRITICAL LEGAL POLITICS: LEFT VS. MPM: LEFT OVER
RIGHTS, March, p. 114-5)
In addition, cls theorists like Gabel argued that rights legitimized the exercise of power.
Rights rhetoric made the government appear as if it were resolving disputes fairly and
objectively under the rule of law, when in fact the government was exercising
conservative political power in ways that oppressed the disempowered. Moreover, rights
discourse made mass political resistance unlikely because rights discourse disguised the
role of coercive state power in creating material inequalities in wealth, opportunities, and
resources.
2. RIGHTS CLAIMS FAIL WITHOUT MOVEMENTS RIGHTS CLAIMS DEPEND
ON POLITICAL SUPPORT
RIGHTS, March, p. 1119)
But in neither case has the discourse succeeded or failed because rights categorically
trump other competing claims. Rather, Kennedy argues that the success or failure of a
rights claim depends on a range of political forces that cannot be predicted in advance.
That is, a successful rights argument depends not on the "scope" of the right or its
application to a set of facts, but on a less-than-formulaic interpretive relationship between
the rights claim, the identity and diligence of the rights claimer, the political viability of
supporting arguments, timing, and luck, among other factors.

178
2NC: The Kritik Proves There Is No Solvency

1. THE STATE SUSTAINS SOCIAL HIERARCHIES
E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p. fn96)
Frank Levy, Rhetoric and Reality: Making Sense of the Income Gap Debate, Harvard
Bus. Rev. (Sept.-Oct. 1999) at 169. ("The Federal Reserve Board reports that in 1995 ...
the richest 1% of households ... owned about a third of all net worth; the next richest 10%
of households ... owned approximately another third; and the remaining [89% of]
households owned the rest."); David Cay Johnston, Gap Between Rich and Poor Found
Substantially Wider, N.Y. Times, Sept. 5, 1999, at 16 (noting that the gap between the
rich 1% and the bottom 50% has increased).
2. RIGHTS ONLY PROTECTED MINORITIES BECAUSE OF HISTORICAL
HAPPENSTANCE
RIGHTS, March, p. 119-20)
Kennedy agrees with CRT argument that rights has produced value in the context of the
civil rights movement, and is quick to note that his newly minimalist rights critique did
not constitute an indictment of the civil rights era. He does not intend to suggest that
communities of color had been wrong or misguided to use rights as part of a demand for
inclusion. Rather, he seeks to remind them that their success has been a matter of hard
work, chance, and historical circumstance - they have succeeded not because rights are
somehow categorically distinct from nonrights political interests, but because their timing
during the civil rights era had been great, rights discourse had taken on a particularly
liberatory meaning at a particular time, and they had worked extraordinarily hard to
organize politically.

179
AFF: General Rights Critique Answers

1. TURN: THE CRITIQUE OF RIGHTS DIVERTS ENERGY AWAY FROM
EFFORTS TO STOP THE GENOCIDE OF NATIVE AMERICANS
Professor of Law, University of California at Los Angeles, 2001 (CARDOZO LAW
REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS. MPM: POLITICS
WITHOUT A MOVEMENT, March, p. 1107)
Even if cls's critique of rights is correct, it is a poor use of time and energy. Cls should
rather have devoted its resources to a project of critiquing or deconstructing other aspects
of the bourgeois cultural grid, such as exploitation, racism, or the genocide of the Native
American population.
2. THE CRITIQUE OF RIGHTS WILL BE REIFIED AND NO CHANGE WILL
RESULT
Nathaniel Berman, Professor of Law, Northwestern, 2001 (CARDOZO LAW REVIEW,
March, CRITICAL LEGAL HISTORIES: AGAINST THE WRONG AND THE DEAD:
A GENEALOGY OF "LEFT/MPM, p. 1010)
By analogy, the intention behind a critique of rights in a particular moment ... is a
particular kind of disruption. The critique might succeed as disruption in its context and
then get reproduced as a theoretical routine, as a piece of normal science, performed over
and over again without either disruptive effect or disruptive intention.
3. AFFIRMATATIONS OF INDETERMINANCY ONLY LEAD TO IDELOGY AND
RECONSTRUCTION
Nathaniel Berman, Professor of Law, Northwestern, 2001 (CARDOZO LAW REVIEW,
March, CRITICAL LEGAL HISTORIES: AGAINST THE WRONG AND THE DEAD:
A GENEALOGY OF "LEFT/MPM, p. 1011)
Only the expectation of determinacy can critique its disruptive effect. And, above all, it is
only such targeted disruptions that release the "primal underforces" - emotional, sexual,
social - that produce cultural and political revolt. Global affirmations of indeterminacy
are almost always the prelude to apologetic reconstruction or authenticity ideology.

180

4. MAINSTREAM CIVIL LIBERTY THEORY IS THE BEST MEANS TO
ORGANIZE A MOVEMENT
Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1111)
Throughout most of the 1990s, most students in classes taught by cls professors did not
come to law school out of political commitment. n21 They did not enter academia with a
leftist (or feminist) orientation. For the most part, students did not enroll in our classes
because of their or our politics. Instead, they developed an interest in radical politics - if
at all during law school - often as a result of our classes. For example, in many instances,
studying feminist legal theory was the first occasion on which women in my classes
began to engage feminism. Not truly radical politics, but bland, left liberalism appeared
to provide about the most fertile ground for political organizing among students.
"Diversity" issues were energizing, but usually from an initial position of general, liberal
yearnings for an integrated law school as part of a fully integrated country, not from any
deep leftist impulse.
5. KENNEDY IGNORES THE VALUE OF RIGHTS DISCOURSE
MPM: POLITICS WITHOUT A MOVEMENT, pp. 1124-5)
p. 1125)
Most troubling perhaps, Kennedy's "post-rights" rhetoric abandons rights talk even more
definitively (or at least more dismissively) than the earlier cls critique. Kennedy largely
ignores Crenshaw and Williams's argument that rights discourse played a central
pragmatic and rhetorical role in the "transgressive performance" that was the civil rights
movement. In Kennedy's post-rights world, he does not address the pragmatic use of
rights discourse to advance particular political commitments, and at times appears to
argue against it. Indeed, in one of Kennedy's more critical passages, he argues that
communities of color who assimilate to, and thus reinforce, the dominant rights discourse
are doing harm, whether they do it out of strategic maneuvering or bad faith.

181

6. PERMUTE: DO BOTH. THIS IS BEST FOR A FEW REASONS:
A. RIGHTS ARE A USEFUL PROP FOR TRANSGRESSIVE PERFORMANCES
MPM: POLITICS WITHOUT A MOVEMENT, pp. 1131)
Levi-Strauss's writing contrasts the image of the engineer, who attempts to choose the
right tool to achieve a particular outcome, to the bricoleur who "addresses himself to a
collection of oddments left over from human endeavors." Rights discourse might yet be
useful in the mode of bricolage, as props in a strategic action or transgressive
performance, in a movement for social change.
B. RIGHTS ARE USEFUL IN SOME CIRCUMSTANCES
Indeed, to the extent that a rights claim is deeply sedimented with restrictive historical
meanings, it may prove difficult even to frame a political commitment as a rights claim.
If so, communities of color may do well on those occasions to move away from rights
claims toward another way of articulating their political commitments. Nevertheless, in
other circumstances, in particular historical moments that may yet be unimagined, rights
talk may be an effective way of articulating political commitments for certain
communities of color.
C. RIGHTS ARE IMPORTANT TO TRANSGRESSIVE POLTICS
Beyond serving as a tool for strategic action, rights discourse might also play an
important role in the pursuit of Kennedy's transgressive performances. Deployed as a tool
of strategic action, rights claims work to advance particular political commitments within
the accepted framework of existing legal and social structures. Deployed as a stage prop
in a transgressive performance, rights claims might help to dismantle existing social and
legal structures, like the social structure of racism and racist ideology.

182

D. THE PERM IS NET-BENEFICIAL BECAUSE RIGHTS CLAIMS ARE
IMPORTANT IN A POST-RIGHTS WORLD
However, communities of color might still rhetorically invoke the "trump" aspect of
rights discourse - capturing a sort of historical residue of rhetorical meaning - without
having to rely on Dworkin's categorical distinction between principle and policy. Rios v.
Regents of the University of California provides a specific example of strategic rights in
action. In this case, five civil rights groups have brought a class-action rights claim under
Title VI, challenging the admissions procedures of the University of California at
Berkeley as unfairly discriminatory. In their complaint, the plaintiffs target several
aspects of an ostensibly color-blind admissions process as unfairly and disproportionately
excluding applicants of color. The plaintiffs claim in both their complaint and
accompanying press release that the admissions process unjustifiably denies Blacks and
Latinos/as their rights under both Title VI and the Fourteenth Amendment. Even in
Kennedy's post-rights world, the plaintiffs might still articulate this kind of rights claim
without having to adopt Dworkin's categorical distinction between principle and policy,
or any other claim that rights are metaphysically different in some way from political
claims. Plaintiffs might have used rights discourse, not to argue that a Black applicant's
interest in being admitted to a prestigious law school is different in principle, but to argue
that there are good moral and political reasons to prioritize the interests of currently
excluded applicants of color over the interests of Whites in retaining the benefits of
White privilege.

183
Affirmative Answers To: No Solvency

1. INDETERMINACY DOESNT MEAN ZERO SOLVENCY
Rights talk is not always and inevitably depoliticizing (take, for example, the civil rights
movement), just as it is not always and inevitably indeterminate; rather, its meaning and
role are contingent on historical context and circumstance.
2. EVEN THOUGH THE LAW IS OFTEN CO-OPTED BY THE POWERFUL, IT IS
ON-BALANCE DESIRABLE
Robin West, Professor of Law, Georgetown University Law Center, 2001
(GEORGETOWN LAW JOURNAL, November, JUSTICE, DEMOCRACY, AND
HUMANITY: A CELEBRATION OF THE WORK OF MARK TUSHNET:
Reconstructing the Rule of Law, p. 218)
Law in practice doesn't always work this way; in fact, law in practice is easily co-opted
by the strong toward their interest. When this co-opting occurs, law becomes a mask of
power rather than a check upon it. But that law can be perverted in this way, even on a
massive and global scale, underscores rather than undercuts its essence: Law is a more or
less good thing, when and because it tempers the aggressions of the strong; it betters the
condition of the weak; it makes life less brutal, less nasty, and a little longer, for all.
3. THEYLL NEVER WIN ZERO SOLVENCY
Strategic action, as a result, is not strategic manipulation - it cannot be controlled or
wielded with certainty as some sort of tool. Rather, rights talk might be used more as a
brush stroke on an artist's canvas - if the artist is lucky and talented and her timing is
right, the brush strokes will produce something of value in her painting.

184
4. RIGHTS DO NOT ALWAYS FAIL

It is not that rights discourse is always indeterminate and can never produce closure.
Although rights discourse does frequently fail to reach closure, at other times and in other
(rare) circumstances, rights actually have appeared to produce some sort of useful result
or determinate outcome.

185
Affirmative Rights Are Good

1. RIGHTS ARE IMPORTANT FOR POLITICAL MOBILIZATION FOR
MINORITIES
Second, communities of color might rhetorically use rights talk to mobilize groups
politically to advance particular commitments. Critical Race Theorists like Crenshaw
have pointed out that Blacks used rights talk to articulate a historically specific political
commitment to integrating public accommodations in the 1960s. Latinos/as, blacks,
women, gay men and lesbians, and the disabled have all used rights talk as one of several
rhetorical focal points around which to organize resistance to exclusion. In fact, the
popular lay meaning of rights talk - as grounding mass movements and inspiring strong
emotional commitment - derives in part from the historical role that rights have played in
mass mobilizing. Apart from the use of rights as legal "trumps," rights talk may still
evoke meaning as a historically meaningful language that draws upon the memory of
solidarity (even if a romanticized memory) and inspires people to work toward social
change.
2. RIGHTS ARE AN IMPORTANT MEANS TO CHECK STATE POWER
In conventional legal parlance, rights are considered special because they have some
significant weight, particularly when balanced against competing collective political
interests. Ronald Dworkin has famously argued that rights are political trumps held by
individuals, because collective goals or interests (like the state's interest in general
welfare) cannot outweigh an individual's interest in a fundamental right. n78 Dworkin
defends the concept of trumps by explaining that rights are based on constitutional
principle and not mere political interest, which is more subject to short-term cost-benefit
analysis. Under this view, the right to nondiscrimination trumps the state's interest in
avoiding social unrest because the individual right is based on principle, while the state's
collective interest is merely political and can be traded off for some other more important
interest.

186

3. RIGHTS ARE USEFUL AS A RHETORICAL TOOL TO ARTICULATE A CLAIM
First, consistent with the critique of rights, rights talk might still function as a rhetorical
tool to articulate the weight, importance, and priority of a particular political
commitment. Historically, to frame one's claim as a right has conveyed the notion that the
claim should enjoy priority over other claims. Communities of color can use rights talk
strategically, not to argue that a claim has some special legal or metaphysical status, but
to argue that there are good political, moral, and social reasons to give the claim priority
and the force of law's protection.
4. RIGHTS PROVIDE A MEANS TO ACHIEVE VISIBILITY, AUTONOMY, AND
VALUE
In response, scholars of color mounted a sustained defense of rights discourse. Although
scholars like Kimberle Crenshaw and Patricia Williams acknowledged that rights
theoretically were indeterminate and had been used to legitimate white racial power, they
argued that communities of color had achieved a great deal using rights discourse during
the civil rights era. By framing claims in an accepted legal vocabulary, communities of
color were able to participate in the political conversation. According to Williams,
reinterpreting rights to encompass blacks had conferred visibility, respect, and autonomy
- the fundamental aspects of personhood - to people who previously had been treated as
objects instead of subjects.

187
Specific Rights Are Good

1. WE HAVE A POSITIVE RIGHT TO PROTECTION AGAINST PRIVATE
VIOLENCE
Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM LAW REVIEW,
April, SYMPOSIUM THE CONSTITUTION AND THE OBLIGATIONS OF GOVERNMENT TO
SECURE THE MATERIAL PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES,
AND THE GOOD SOCIETY, pp. 1923-4)
What might be the penumbral rights implied by the recognition of a core positive right to protection against
private violence? It would depend on the rationale of the core right itself. Three possibilities come to mind.
First, if we have a positive right to protection against private violence because of our natural vulnerability
to the violent propensities of others, and the calamitous consequences of that vulnerability, then we might
also want to recognize that we have a positive right to the state's protection against other sorts of natural
"violence" with equally calamitous results. We might, for example, have a positive right to be protected
against natural disaster, misfortune, or even disfavor and bad luck, if the consequences of that disfavor are
brutal. This might sensibly be regarded as the "welfarist" interpretation of the right to security.
Alternatively, we might reason that we recognize a positive right to security, or protection against the
violence of others, not because of the calamitous potential consequences of our vulnerability to that
violence, but because of the potentially subordinating, and hence inegalitarian, consequences of that
vulnerability. Unchecked private violence leads to unchecked private political hierarchies and also leads to
domination and acquiescence in those spheres in which the violence goes unchecked by the state. A security
right against unchecked private violence, then, might imply not just a right to assistance in the event of
natural disaster, but a different set of "penumbral rights" to be protected against extreme forms of private
aggression, whether or not that aggression takes the form of physical violence. We may, for example, have
a positive right to be protected against the harmful effects of a polluted environment, or an unregulated and
dangerous product, or exploitative employers. We might think of this as the "antisubordinationist"
interpretation of the security right. And third, we might reason that we have a positive right to security
against private violence because of a yet more fundamental right to security against extreme deprivation or
impoverishment that threatens fundamental human capabilities, regardless of whether that vulnerability can
be attributed to either undue private aggression or natural disaster. If we have a right to protection against
violence not because we have egalitarian rights not to be subordinated, and not because we have a natural
right to community assistance in the event of natural disaster, but because we have a right to a fully human
life free of fear and anxiety brought on by conditions of deprivation, then we might impliedly also have a
right to be freed of these non-subordinating but no less damaging sorts of vulnerabilities. This would be the
most far-reaching penumbral interpretation of the right to security, and might be called the "capabilitiesbased" interpretation. We have a right to security, in this view, because we have a right to live the "fully
human" life such security in part ensures. A liberalism grounded in a "first right" to protection against
private violence, so understood, in other words, might support the existence of penumbral rights to
protection against other sorts of vulnerabilities - and hence, at the outer reaches, rights to whatever is
minimally necessary to attain those capabilities in turn essential to a fully human life. Obviously, such
rights would entail state obligations to act, rather than simply refrain from acting. The second core right
that might be recognized in a liberal tradition unwedded to atomism can be called a "right to provide care,"
or as the philosopher Eva Kittay refers to it, a right to doulia. This right is currently undertheorized in the
welfarist literature. We do not, contrary to Hobbesian myth, spring upon this earth mushroom style as fully
formed, autonomous adults. Rather, all of us enjoy or suffer an extended period of absolute dependency
upon caregivers, and most of us, as adults, enjoy or suffer (or both) an even longer period during which we
bestow care upon infants and children dependent upon us, and eventually upon aging parents in similar
need. The ability to give care to dependent others, and the ability to receive such care as a dependent other,
is at least as fundamental to a "fully human life" as is the ability to rest secure against threats of private
violence or subordination. As a species, we are not just interdependent creatures, we are also, for
substantial periods, fully dependent upon others, and others are, for substantial periods, fully dependent

188
upon us. Those simple facts of our human existence, to a considerable degree, mark our species, define and
constitute our moral sense, and form the basis for our social nature. As a consequence, when we are infants
and children, and likewise when we are sick or aged, we desperately need, not the rights of autonomy and
independence so central to classical liberalism, but a regime that protects us in our dependent state, and
protects those upon whom we are dependent as well. And, when we are acting as caregivers, we need not
rights that falsely presuppose our autonomy and independence, but rights that frankly acknowledge our
relational reality. When infants, children, or aging parents are dependent upon us, we are dependent upon
others for support and sustenance. n62 People who are providing care to dependents are themselves in need
of assistance from others, and caregivers will eventually become, again, dependents in need of care
themselves. That circle of mutual need, caregiving, dependency, and assistance is as much a part of our
social contract as is the individual's relinquishment of rights to self-defense in exchange for a right to
protection against violence. A rights tradition that forthrightly acknowledged the natural reality of our
inescapable dependence on each other - to say nothing of our social nature - would give pride of place to
"relational rights" that would protect the caregiver, and hence the care bestowed in dependency
relationships. Needless to say, perhaps, such relational rights are nowhere mentioned in various
constitutional documents, nor are they well-grounded in liberal theory. But they ought to be. We have the
rights we have in liberal, democratic societies, at least according to widely shared conventional wisdom, for
essentially one (or more) of three basic reasons. First, we construct or recognize rights when, for some
reason, the sphere of life, service, freedom, activity, or identity that is protected by the right, and so
necessary to flourishing, might nevertheless be systematically undervalued, underappreciated, or
underprotected by standard political or economic processes, even in a liberal democracy. Second, at least
sometimes in the United States and elsewhere, we construct rights when we have reason to believe that a
particular practice or activity, if unchecked, will have a severe and adverse effect on a subgroup that has
historically been subordinated. And lastly, here and elsewhere, at least on occasion, we construct rights to
underscore our most fundamental and most shared intergenerational values. The panoply of rights we
protect expresses our self understanding, and more specifically, it expresses a self-understanding meant to
endure even in times of the value's political neglect.
2. LIFE IS MEANINGLESS WITHOUT A RIGHT TO CARE

Lastly, we need a right of care and a right to supported caregiving labor to better express
our self-understanding as a species for whom caregiving is a central life activity. Clearly,
our nature is such that we thrive when cared for. As a species, our period of infantile need
is extended over time, as is our period of caregiving labor. We flourish both individually
and communally when decent care is provided, and we suffer when it is not. The better
the care, the more the cared-for will thrive, and the more likely they will mature to
become liberal and equal citizens who can themselves provide care as well as fulfill
responsibilities of citizenship in a liberal society. And, the more demanding and
consuming is the care, the harder it is to provide without support.

189

3. A RIGHT TO CARE DIRECTS US TOWARD FULFILLING SOCIAL
RESPONSIBILITIES
Nevertheless, we shouldn't dismiss the upside potential out of hand. A "right to care"
would share in the rhetorical power of rights discourse. Acknowledgment or insistence
upon the existence of such a right would honor the centrality of caregiving labor to social
life. Neither would it require a herculean effort to locate such a right in our constitutional
history. The substantive due process clause, before it became, post-Eisenstadt v. Baird,
n65 the source of individual, negative rights to contraception and abortion, did
prominently include "a right to parent" - a right which, particularly if modernized and
coupled with our current recognition of the constitutional status of norms of gender
equality - could easily be viewed as "penumbral" to a more fundamental right to give
care. As a practical matter, as mentioned, such a right casts doubt on not just the wisdom
but also the constitutionality of legislation like the mid 1990s welfare reform act, and
such a right, were we to recognize it, gives needed dimensions of both universality and
moral imperative to political demands for greater support of vulnerable caregivers. Just as
important, a "right to care," if recognized, would go a long way toward aligning the idea
of rights with a conception of our nature that acknowledges our natural dependencies as
well as our social responsibilities toward others, rather than a conception of our nature
that insists falsely and dangerously on our self-sufficiency.

190
Rule Of Law Is Good

1. THE RULE OF LAW IS CRITICAL TO CHECK OUR TENDENCIES TO IGNORE
THE CONCERNS OF THE OTHER
LAW REVIEW, Is the Rule of Law Cosmopolitan? p. 276)
We should also be suspicious of the deadening logic to which it leads: to claims of
difference themselves traceable to the need to excommunicate and use, rather than
equally regard, the lives or services of others. To guard against this, we should assume,
and insist, and re-affirm, that those whose lives are affected by our actions are
fundamentally, essentially and in material, emotional and biological ways like us, and act
accordingly. The rule of law, and the mandate of legal justice it implies, might be best
understood today as a bulwark - institutional, to be sure, but also deeply ingrained in our
nature - against our human tendency to self-servingly do otherwise.
2. THE LAW PROMOTES HUMAN SOLIDARITY
LAW REVIEW, Is the Rule of Law Cosmopolitan? pp. 276-7)
The point of law presupposed by this egalitarian and communitarian understanding of the
rule of law, is neither to preserve tradition, nor to maximize individual freedom, but
rather, to ensure the preconditions for a community of equal individuals. Law itself exists
to ensure that we draw the circle of our civic concern broadly - not just around those
human beings we would be naturally inclined to defend in any event in a state of nature,
whether defined by reference to family, neighborhood, or nationalist ties. It exists to
ensure that we act on our capacity for recognizing the equal entitlements of all persons to
our considerate regard rather than act on our natural predisposition to discredit those
obligations. Law exists so as to ensure a civic fraternity even when, or especially when,
the obligations of such a fraternity impose burdens on our differentiated, particularized,
natural loyalties, and whether or not those differentiated and particularized natural
loyalties find expression in past traditions - cultural, legal or constitutional. It exists so as
to institutionalize our egalitarian and communitarian conviction that the
excommunication and then differential treatment of some for the exploitative use of
others is not justified, and can never be justified by the perceived or actual differences
which that excommunication and exploitation eventually create.

191
Rule of Law Good

3. THERE IS NO VALUE TO LIFE IN A WORLD WITHOUT THE LAW
Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC LAW REVIEW,
Is the Rule of Law Cosmopolitan? p. 278)
A human being protected by the rule of law so conceived, is neither the creature of tradition nor the stark
potential for free will presupposed and protected by traditional and libertarian accounts of the rule of law
respectively. A human being protected by a law that exists so as to ensure the conditions of a community of
equal individuals is a human being in need, specifically of that law's protection. It is the human being with
material needs, emotional ties, cultural ambitions, and intellectual aspirations that are frustrated, denied,
threatened, or annihilated by not only the natural wilderness, but also by the flow of the unchecked
antipathies and sympathies of extra-or pre-legal human nature. It is the human being whose needs for
survival are going to be denied or unmet by an unregulated market economy that presupposes only the
universalizability, and hence rationality, of will, rather than need. It is the human being whose maternalism
is denied or crushed by an unregulated social order hostile to the dependency and neediness of mothers and
children. It is the human being whose materiality and mortality are ignored by a technologically advanced
warrior society that shields the eyes and hearts of its citizens from the evidence of the bodily suffering and
death that its aggression engenders. It is the human being, with needs, capacities, ambitions, connections to
others, and aspirations, that is left outside of natural, societal, or traditional circles of concern that in turn
define that person, or that person's needs, as lesser, or as of lesser moment. The "outsider," no matter what
makes her such, simply is the human being for whom the rule of law, understood as the guarantor of those
conditions that sustain a community of equal individuals, exists. This egalitarian and communitarian
understanding of the rule of law strongly implies an ethical, rather than economic cosmopolitanism. If we
should treat likes alike because justice requires it, and if justice requires it because doing so reaffirms our
conviction that, by virtue of a shared humanity, all humans should be equally regarded, and if we sustain
that conviction and institutionalize it in law precisely because of our temptation to draw our circle of
communitarian concern more narrowly, then such a mandate obviously does not stop at our borders. The
mandate exists as an injunction to question both the coherence and motivation of borders of exclusion,
whether national or cultural. If we should "treat likes alike" in law, because by so doing we create and
affirm a community of equal persons, then we obviously should be as concerned with the justice or
injustice of a dropped bomb in the Sudan to fight international terrorism as we are concerned with the
injustice of a dropped bomb in Philadelphia to fight the domestic equivalent. These are like cases. We
should be as concerned with the lack of an economic safety net around the globe in those regions making
rocky transitions to market economies as we are concerned with the lack of a safety net in this country that
might cope with the same economic trauma experienced by American families. These are like cases. We
should be as outraged by the environmental costs and the lack of rights for laborers entailed by the
internationalization of contract law as we are by the miseries entailed by a deregulated laissez faire regime
in our own. These are like cases. In all of these cases, our relative nonchalance in the face of the evil visited
on distant others, when contrasted with the outrage we feel when the same evil strikes close to home, is an
instance of failing to treat likes alike. In all of these cases we reap the benefits of the state policy in
question by drawing a narrow circle of egalitarian concern. Furthermore, in all of these cases of injustice,
we profit. Like Sally, we celebrate as well as enjoy the profits of industry and commerce, while expressing
the admirable concern that sometimes people get hurt, and like Sally, we are secure in our knowledge that it
is other and distant and lesser lives, rather than real people, that pay the price of our comforts.

192
4. THE RULE OF LAW PROTECTS US AGAINST CULTURALLY DESTRUCTIVE

UNIVERSALISM
LAW REVIEW, Is the Rule of Law Cosmopolitan? , p. 259)
This traditional account of the rule of precedent, of legal justice and the rule of law, is not
simply non-cosmopolitan; it is anti-cosmopolitan. The very point of precedent, and of
law, so understood, is to forge a cultural or national identity separate and distinct from
undifferentiated humanity; it is to create and maintain bonds of civic obligation
distinctively grounded in particularistic tradition rather than in universal essence. We treat
likes alike - masters like masters, servants like servants, one promise backed by
consideration like another promise backed by consideration - because by doing so we
create, affirm and differentiate particular and shared identities, and by doing so, we
create, affirm and differentiate our culture from all others. We do all of this, in part,
through law. Law should be valued, then, not only and not primarily because it handily
insures order, safety, a less brutal, longer, and possibly freer life for all, but precisely
because it wards off the danger of a creeping cosmopolitan universalism - a universalism
that threatens our national identity, and hence our human and cultural identity,
profoundly.

193
Duncan Kennedy Answers

1. KENNEDY SUPPORTS PIECEMEIL REFORM
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, pp. 4367)
n88 His theoretical model discussed below, however, treats that hierarchy gingerly and
offers a remedy, which in Kennedy's own words is "not at all revolutionary." n89 His
"take" on social hierarchy follows from his disbelief in the extinction of capitalism. n90
But, he favors a transformation of the "system of hierarchy ... done cell by cell, until we
reach the critical point at which the interconnectedness of the system makes it possible to
develop it as a whole toward a new unity."
2. KENNEDY IGNORES THE EXISTENCE OF A LOWER CLASS
There are, of course, several problems with this analysis. Among the six traits Kennedy
embraces, the first and sixth are the most immediately problematic. Viewing the social
structure as a diamond, instead of as a pyramid (the first trait), Kennedy avoided the
reality that the many at the bottom of the pyramid (or even those at and below the middle
of the hypothetical diamond) have fewer rights and entitlements than those at the top. By
positing a diamond-shaped society, Kennedy avoided recognition of any meaningful
social differences within the legal discourse of rights and entitlements. He also rendered
irrelevant the construction of a coherent legal discourse about the socio-economic roots
of law. Simplistically put, if there is no significant jarringly obvious bottom to the polity,
there is no reason to question what role law plays in keeping it there.

194
No Alternative: The Alternative Of The CLS Movement Is Bad

1. CLS IS LIKE KENNY FROM SOUTHPARK HE DIES AND NO ONE CARES
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, Pp. 4156)
Critical Legal Studies ("CLS"), which started as a Left movement within legal academia,
n2 has undergone so many changes, that one may liken it to products of pop culture, such
as the television cartoon show, South Park. n3 South Park features a character named
Kenny, totally unlike any other cartoon hero, tragic or otherwise. Like Kenny, who is an
outsider and who speaks a language unintelligible to all except, astonishingly, his
classmates, CLS no longer seems to possess a voice comprehensible to anyone outside its
own small circle. Kenny, unlike all other cartoon figures, dies in every episode.
Significantly, often Kenny's death has been self-inflicted - though not necessarily
intentional - when, for instance, he ignores warnings of imminent danger. Like Kenny,
CLS has suffered many often self-inflicted injuries. Like South Park, generally, CLS is
certainly colorful, but often little more than that and, as in the cartoon, except for the
certainty of Kenny's death and later resurrection, there seems more flash than substance
in its existence. We are left to guess whether CLS will prove to be as resilient after
apparent death, as Kenny.
2. CLS CRITICISMS IGNORE THE OPPRESSION OF THE STATUS QUO
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p. 4201)
This Article suggests first, that because CLS was so obsessed with rejecting liberalism's
claim to objective analysis, it lamentably minimized and even trivialized conservative
theories and their perpetuation of the status quo. Second, this misplaced preoccupation
caused CLS to lose its adherents, strength and legacy.

195

3. LIBERALISM WILL COOPT CLS
The present crisis that CLS faces may be the logical result of CLS's limited focus on
liberalism as a false ideology, instead of on conservatism, and its apparent shift of focus
toward more modest goals, such as legal education in itself. In the mid 1980s, even a
non-crit (to put it mildly), Clark Byse, was able to credit CLS with influencing legal
education. Despite its "eclectic character," Byse recognized the cohesion CLS achieved
through its disenchantment with liberal legalism. By the end of the century, however, it
seems that, as G. Edward White had predicted fifteen years earlier, "liberalism will [have]
absorbed and converted Critical theory ... [and in the end] very little will have changed ...
let alone have been transformed."
4. CLS IS SPLIT INTERNALLY AND SUFFERS FROM AN IDENTITY CRISIS
Kennedy distanced himself from Marxism by stating that while he was "not saying that
capitalists don't exist, or that they don't oppress others, ... this is only one in the list of
modes of oppression, and no longer, if it ever was, the central one." He also replaced the
Marxist principles of base and superstructure, which he viewed as a simplistic
unidirectional relation, with post-modern ambiguity and eclecticism. While this was
definitely a departure and perhaps a new theme in his repertoire, whether it ever could
have a lasting impact upon the previous goals of CLS seems to have been answered in the
negative by the political as well as intellectual indolence that presently characterizes the
movement. So far, the only result is an obvious and lamentable change in the direction of
CLS, which is the regrettable subdividing of its "political place" into turf now variously
claimed by "fem-crits," critical race theorists, postmodernists, cultural radicals, and selfstyled political economists, mirroring Kennedy's own apparent identity crisis.

196

5. CLS CRITICISMS WILL NEVER MAKE IT OUT OF ACADEMIA
MPM: POLITICS WITHOUT A MOVEMENTMT, p. 1110)
Equally clearly, there is a limit to how long teachers can sustain a political position
significantly to the left of the rest of the population. Cls was born out of the new left
activism of the 1960s and 1970s. The movement would not have developed without this
period of social activism. Yet, the relationship is neither simple nor straight forward. Cls
thrived during the increasing conservativism of the Reagan years and was pronounced
dead (quite possibly prematurely) by the time the Democrats reclaimed the White House
in 1992.
6. CLS HAS NO VOICE IN THE LEGAL WORLD
Kennedy distanced himself from Marxism by stating that while he was "not saying that
capitalists don't exist, or that they don't oppress others, ... this is only one in the list of
modes of oppression, and no longer, if it ever was, the central one." He also replaced the
Marxist principles of base and superstructure, which he viewed as a simplistic
unidirectional relation, with post-modern ambiguity and eclecticism. While this was
definitely a departure and perhaps a new theme in his repertoire, whether it ever could
have a lasting impact upon the previous goals of CLS seems to have been answered in the
negative by the political as well as intellectual indolence that presently characterizes the
movement. So far, the only result is an obvious and lamentable change in the direction of
CLS, which is the regrettable subdividing of its "political place" into turf now variously
claimed by "fem-crits," critical race theorists, postmodernists, cultural radicals, and selfstyled political economists, mirroring Kennedy's own apparent identity crisis.

197

7. THE CLS MOVEMENT IS DISUNIFIED
As a result of this array of dissenting and conflicting interests, CLS has been left with no
cohesive voice, and it appears now as a mere witness to the powerless atomization of an
emasculated radical Left discourse. This atomization may have promoted certain group
solidarities, and possibly offered short term relief. But, despite CLS's influence on legal
discourse, it never seemed able to attain even a partially-unified leftist discourse. This
failure might be the cause of mutual estrangement among all of its "members" - or at least
a failure to offer a common core - that eventually risks oblivion for the movement as a
whole. In response, CLS now must rediscover its voice in the legal community, even
though the old leftist habits and texts have far less luster and glitter than fashionable
literary theories.
8. CLS IS A CARTOON-CHARACTER MOVEMENT
Additionally, by ignoring the role of the state as an important device in perpetuating the
social hierarchy, Kennedy also missed the opportunity to expose the unique features of
the state as a tool of oppression. As shown by the Polemic, CLS lost - or abandoned - the
opportunity to elaborate the Marxist concepts of base and superstructure, and because of
that, CLS may well have missed the opportunity to become a strong leftist movement instead of an almost cartoon-like caricature of one - with an enduring legacy.

198
No Alternative: The Alternative Of Reject Rights Is Bad

1. TURN: ABANDONING RIGHTS RHETORIC MEANS THAT THE MARKET
DOMINATES STATE DECISION-MAKING
Our legal system, as well as our discourse, has been thoroughly transformed by costbenefit econometrics, and without a rights discourse to offset, trump, or challenge it, there
is little relief in sight. By eschewing rights and rights talk, we have arguably engendered
a more efficient state. But we have not noticeably moved any closer to achieving, or
conceiving, the good society.

199
2. ABANDONING RIGHTS RHETORIC UNDERMINES THEIR ABILITY TO

PROTECT CLAIMS AND HEAL SOCIETAL CONFLICT
There are, however, costs in abandoning rights, rather than joining the debate regarding
their substance. The first is rhetorical. It concerns the nature of moral, aspirational
discourse, and the relative power or impoverishment of the rhetoric with which such
discourse is articulated. When architects of the good society disown rights, they distance
themselves from a tradition that has been unduly attentive to individualistic needs for
property, contract, and privacy, and insufficiently attentive to human and social needs for
safe intimacy, civic participation, meaningful work, or basic welfare goods. But they also
distance themselves from a discourse that whatever its historic shortcomings is also
explicitly utopian, moralistic, and imperativist. The rights tradition directs states and state
actors to attend to what we might universally share, and to focus on the utopian
aspirations we might universally hold, and then to bring that vision to earth. Rights are
morally grounded imperatives, not a list of suggestions for good governance. It is a
language that requires lawmakers to think in terms of what we morally ought to do and
be. Good society advocates should not loosely turn their backs on a discourse which has
historically been the means by which we marry our moral beliefs about governance to
ethical imperativism. There aren't all that many ways by which critics, citizens, or even
legislators can make the point that moral judgment rather than realpolitik ought to - and
must - guide the business of politics. It is not so clear that the abandonment, rather than
reform, of one such language - whatever may be its flaws - is a wise strategy for good
society advocates, or will prove to be a benefit for the party of humanity. The second
cost of abandoning rights is borne by the state of normative legal scholarship. When good
society theorists who are also lawyers heed the critics' call to abandon rights talk, the
development, through scholarship, of alternative directions legal doctrine could take
toward the realization of that good society, bears the mark of that abandonment. To a
considerable degree we can already trace the effects of that retreat. We still lack a
credible, broad-based, coherent jurisprudence of welfare rights, Frank Michelman's
herculean efforts of twenty-five years ago notwithstanding. n54 We might lack this
jurisprudence, in part, because those who might otherwise have been inclined to
contribute to that jurisprudence have been convinced not only of the futility of the
project, but also of its counterproductivity. We lack a credible jurisprudence of education
rights, and it is at least possible that we lack it, in part, due to that same skepticism. We
lack a jurisprudence of dignitary rights, labor rights, and environmental rights - and, as I
will discuss in a little more detail, doulia rights, or rights to provide care. We lack them in
part because those who might produce the scholarship have become convinced that rights
and rights talk cannot be productively turned to the work of achieving or even conceiving
a good society, and might even undercut it. Obviously, other factors as well have played a

200
role - a hostile Supreme Court is only the most obvious. Additionally, the turn among
some leftist scholars to an explicitly antinormative, skeptical postmodernism has also
fueled a late-century retreat from visionary, utopian scholarship, including rights
scholarship that might aim to carve out a constitutional argument for a state obligation to
secure the minimal preconditions of a good society. Nevertheless, the explicit disavowal
of rights by both rights critics and good society advocates is a part of that story, as well as
reflective of it. Third, there is a doctrinal cost paid when lawyers, and not just social
theorists, abandon rather than seek to reform rights and rights talk. The abandonment of
rights discourse by those committed to constructing a good society through law, goes
some way toward rendering the rights critique a self-fulfilling prophecy. When lawyers
forgo the task of creating a positive rights jurisprudence, they also forgo the opportunity
to assert a credible counterweight, within doctrine and within rights-structured doctrinal
discourse, to the assertion of negative rights which do indeed undercut the good society,
and in precisely the ways urged by the critics. With no credible counterweight, when a
negative right of the sort the rights critics lament is asserted, it is typically met not with a
positive right that might counter it, but instead with a claimed "policy" to be weighed
against it. But rights, as both their proponents and critics know, trump policy; that is their
function. If we had what we currently do not have - a developed jurisprudence of positive
and relational rights, constructed around the ideal of the good society - then a negative,
individualist right might alternatively, or additionally, be met in the courts of law and in
the courts of public opinion, with the claim that it conflicts with a positive one.
Conflicting rights, as Dworkin reminds us, do not "trump" each other; rather, conflicting
rights must be read in such a way as to reduce the conflict. Proponents of the good
society have been dissuaded, in part by the rights critique itself, from developing the
jurisprudence that might counter the rights decried by that critique.

Debriefing
201
##Debriefing: Learning from Your Debate

Basic Debriefing
You will learn something from every debate that you participate in. What you learn from
your first debates on a topic, however, will reverberate to every debate that you have
during the year. To facilitate the learning experience, you should answer the following
questions to complete this exercise.
The Affirmative
1. What arguments can you make as to why the disadvantage outweighs the affirmative?
Why?
2. What is the best add-on that is included? Why?
3. Why is it strategically valuable to read an add-on?
The Counterplan
1. How strong is the solvency for the counterplan? 2. What are the best two arguments
against the counterplan? Why?
2.What are the potential net-benefits to the counterplan? What are other potential netbenefits?
1. Write a one paragraph explanation of the argument that you can use as an
overview in future debates.
2. Why is this kritik a competitive alternative to the affirmative
3. How can you claim that the case solves the kritik?

Debriefing
Keep a List of Additional Blocks/Briefs You Need
202

Debriefing
Keep a List of Cards You Need
203

Civil Liberties Starter Set 1

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Civil Liberties Starter Set 1

Încărcat de

Drepturi de autor:

Formate disponibile

Civil Liberties Starter Set

Copyright 2005 Harvard Debate, Inc.