Attempts to reform surveillance from within the system are doomed to fail the NSA

will find loopholes, congress wont take oversight seriously, the executive branch
will actively try and circumvent, and the courts are already in the pocket of the
surveillance state. The affirmative attempts to reform merely placate criticism and
snuff out any chance for real reform.

Greenwald, 2015
(Glen, journalist, constitutional lawyer, and author of four New York Times bestselling books on politics and law. His most recent book, No Place to Hide, is about
the U.S. surveillance state and his experiences reporting on the Snowden
documents around the world, Congress is irrelevant on Mass Surveillance. Heres
What Matters Instead, 11/19, The Intercept,
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsasmass-surveillance/)
There is a real question about whether the defeat of this bill is good, bad,
or irrelevant. To begin with, it sought to change only one small sliver of
NSA mass surveillance (domestic bulk collection of phone records under section
215 of the Patriot Act) while leaving completely unchanged the primary
means of NSA mass surveillance, which takes place under section 702 of
the FISA Amendments Act, based on the lovely and quintessentially
American theory that all that matters are the privacy rights of Americans
(and not the 95 percent of the planet called non-Americans). There were
some mildly positive provisions in the USA Freedom Act: the placement of
public advocates at the FISA court to contest the claims of the government; the
prohibition on the NSA holding Americans phone records, requiring instead that
they obtain FISA court approval before seeking specific records from the telecoms
(which already hold those records for at least 18 months); and reducing the
agencys contact chaining analysis from three hops to two. One could
reasonably argue (as the ACLU and EFF did) that, though woefully inadequate,
the bill was a net-positive as a first step toward real reform, but one could
also reasonably argue , as Marcy Wheeler has with characteristic insight , that
the bill is so larded with ambiguities and fundamental inadequacies that
it would forestall better options and advocates for real reform should thus
root for its defeat . When pro-privacy members of Congress first unveiled
the bill many months ago, it was actually a good bill: real reform. But the
White House worked very hard in partnership with the House GOPto
water that bill down so severely that what the House ended up passing
over the summer did more to strengthen the NSA than rein it in, which
caused even the ACLU and EFFto withdraw their support. The Senate bill rejected
last night was basically a middle ground between that original, good bill and the
anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me,
the most important point from all of this: the last place one should look to
impose limits on the powers of the U.S. government is . . . the U.S.
government. Governments dont walk around trying to figure out how to
limit their own power, and thats particularly true of empires. The entire

system in D.C. is designed at its core to prevent real reform . This

Congress is not going to enact anything resembling fundamental limits on
the NSAs powers of mass surveillance. Even if it somehow did, this White
House would never sign it. Even if all that miraculously happened, the fact
that the U.S. intelligence community and National Security State operates
with no limits and no oversight means theyd easily co-opt the entire
reform process. Thats what happened after the eavesdropping scandals of
the mid-1970s led to the establishment of congressional intelligence
committees and a special FISA oversight courtthe committees were
instantly captured by putting in charge supreme servants of the
intelligence community like Senators Dianne Feinstein and Chambliss, and
Congressmen Mike Rogers and Dutch Ruppersberger, while the court quickly
became a rubber stamp with subservient judges who operate in total secrecy.
Ever since the Snowden reporting began and public opinion (in both the U.S. and
globally) began radically changing, the White Houses strategy has been
obvious. Its vintage Obama: Enact something that is called reform so that
he can give a pretty speech telling the world that he heard and responded to their
concernsbut that in actuality changes almost nothing, thus
strengthening the very system he can pretend he changed . Thats the
same tactic as Silicon Valley, which also supported this bill: Be able to point to
something called reform so they can trick hundreds of millions of
current and future users around the world into believing that their
communications are now safe if they use Facebook, Google, Skype and the rest. In
pretty much every interview Ive done over the last year, Ive been asked why there
havent been significant changes from all the disclosures . I vehemently disagree
with the premise of the question, which equates U.S. legislative
changes with meaningful changes . But it has been clear from the start
that U.S. legislation is not going to impose meaningful limitations on the
NSAs powers of mass surveillance, at least not fundamentally. Those
limitations are going to come fromare now coming from very different places:

Legalism Crowds out Real Reform.

Schlanger, 14
(Margo, Henry M. Butzel Professor of Law, University of Michigan, The Problem With
Legalism in the Surveillance State, Nov 7, http://justsecurity.org/17163/problemlegalism-surveillance-state/)
To sum up, neither the Constitution nor FISA aims to optimally balance security
and libertyand well-understood difficulties in congressional intelligence oversight
mean that new statutes are unlikely to fill that gap. Likewise the existing
foundational Executive Order, 12333, is at the very least out-of-date. Accordingly,
intelligence legalism and its compliance mindset, cannot achieve optimal
policy. Its concomitant empowerment of lawyers is real and important, but does not

deputize a pro-civil-liberties force. Indeed, legalism actually both crowds out

the consideration of policy and interests (as opposed to law and rights),
and legitimates the surveillance state, making it less susceptible to policy
reform.

Intelligence legalism prevents real reform and ensures policy failure.

Schlanger, 15
(Margo, Henry M. Butzel Professor of Law, University of Michigan, Intelligence Legalism and the
National Security Agency's Civil Liberties Gap, Harvard National Security Journal, 6
Harv. Nat'l Sec. J. 112)
Theorists and observers in a variety of fields have developed the broad critique that
law and its concomitant rights orientation may have the counterintuitive impact of
decreasing the welfare of the purported rights holders--or, in a more modest version
of the point, may ameliorate some prevalent set of harms but undermine more
ambitious efforts. Focusing particularly on litigation, they argue that it is inherently
a timid enterprise, and yet it crowds out other more muscular approaches. n317
Even with respect to out-of-court rights orientation, or "legalization," scholars have
offered the insight that formalizing/legalistic approaches can come with real costs to
their intended beneficiaries, depending on the context.n318 The issue is [*185]
whether, in a particular institutional setting, these possibilities have materialized. In
this Section, I examine two pathways by which intelligence legalism tends to impair
the prospects of a softer civil-liberties protective policy. 1. Intelligence Legalism
Crowds Out Interest Balancing This Article demonstrates the high salience of
rights in this realm. Several related mechanisms convert that high salience
into a devaluation of interests: First, rights occupy the "liberty" field
because of the practical issue of attention bandwidth, which potentially
applies both to agencies and advocates. After all, even large organizations
have limited capacity. n319 NSA compliance is such an enormous task that little
room remains for more conceptual weighing of interests and options. Recall that of
the dozen-plus offices I described in Part II, just two--the Civil Liberties and Privacy
Office at the NSA, and the Privacy and Civil Liberties Oversight Board--are currently
playing a policy rather than strictly a compliance role. They are also, not
coincidentally, the two newest and two smallest of the offices listed. I think, though,
that this bandwidth issue is driven by a more conceptual, less practical, factor: that
rights talk hides the necessity of policy judgments and, by its purity, diverts
attention from that messier field. Morton Horwitz explains the point: A . . . troubling
aspect of rights discourse is that its focus on fundamental, inherent, inalienable or
natural rights is a way of obscuring or distorting the reality of the social construction
of rights and duties. It shifts discussion away from the always disputable issue of
what is or is not socially desirable. Rights discourse . . . wishes us to believe instead
that the recognition of rights is not a question of social choice at all, as if in the
normative and constitutional realm rights have the same force as the law of gravity.

n320 [*186] Mary Dudziak makes a similar claim in her recent discussion of law and
drone warfare, "In this context, law . . . does not aid judgment, but diverts our
attention from morality, diplomacy, humanity, and responsibility in the use of force,
and especially from the bloody mess left on the ground." n321 Even in Fourth
Amendment jurisprudence, an area of constitutional doctrine explicitly imbued with
policy considerations, we talk about rights as if they are somehow scientific, to be
deduced rather than debated. The discussion that must accompany policy claims
pales in prestige and importance by comparison. And from the perspective of their
beneficiaries, judicially enforceable rights, with their promise of supremacy over
competing interests, are shiny and magnetic. This is why the assertion of rights can
be such a powerful organizing tool n322--even if those rights don't turn out to
change much on the ground. As Rich Ford has written, "Rights are a secular religion
for many Americans." n323 Or to quote Alan Freeman's classic article about civil
rights, "Rights consciousness can offer sustenance to a political movement,
however alienated, indeterminate or reified rights may be." n324 It is the purity, the
apparent apolitical nature, of rights that makes them nearly the only coin available.
By comparison with judicially enforceable rights, other methods of advancing
individual liberty look feeble, contingent, jury-rigged. An accusation of illegality
becomes the required first bid for any policy discussion, and a refutation of that
accusation ends play. This dynamic is very much in evidence in the response to the
PCLOB's 702 report, described above. Rights discourse stunts needed policy
discourse. n325 2. Intelligence Legalism and Legitimation In addition, judicial review
legitimates the American surveillance system; that is why reference to court
supervision is surveillance proponents' first recourse when they want to suggest
that everything is fine. It is, for example, a rare speech by a government official that
fails to make reference to the FISA Court and its ratification of the government's
surveillance [*187] programs. Below are passages, chosen essentially at random,
from a speech by President Obama on the topic of signals intelligence reform
n326: . "I ordered that our programs be reviewed by my national security team and
our lawyers . . . . We increased oversight and auditing, including new structures
aimed at compliance. Improved rules were proposed by the government and
approved by the Foreign Intelligence Surveillance Court." . "[T]he Foreign
Intelligence Surveillance Court . . . provides judicial review of some of our most
sensitive intelligence activities." In language like the above, court involvement is
offered as evidence of both legality and appropriateness; indeed, the two are
conceptually merged. My point is not that FISA Court legitimation is phony. In fact,
judicial review has real effects on the system--we know from the recently
declassified documents that FISA Court review disciplines the surveillance system,
holding it at least to the government's own representations. n327 Yet the oversight
gain carries with it a legitimation cost; the existence of judicial review makes
political change more difficult. Scholars, particularly critical legal studies scholars,
have made this point in a large number of other contexts. For example, Alan
Freeman argued that civil rights law--and law more generally--exists "largely to
legitimize the existing social structure." n328 The polity at large is soothed, and the
effect is felt even by rights beneficiaries, who frame and tame their aspirations to
suit the inherently limited scope of potential judicial interventions. Freeman
described his view that American civil rights litigation has amounted to a "process

of containing and stabilizing the aspirations of the oppressed through tokenism and
formal gestures which actually enhance the material lives of few." n329He wrote:
Rights are granted to, or bestowed upon, the powerless by the powerful. They are
ultimately within the control of those with authority to interpret or rewrite the
sacred texts from which they derive. To enjoy them, one must respect the forms and
norms laid down by those in power. One must especially avoid excesses in behavior
or demands. n330 [*188] The point is not, for Freeman (and the plentiful literature
he adduced), that law accomplishes nothing for its purported beneficiaries. If that
were true, it could not legitimate: "[I]f law is to serve its legitimation function,
[the] ultimate constraints [that come from politics] must yield up just
enough autonomy to the legal system to make its operations credible for
those whose allegiance it seeks as well as those whose self-interest it
rationalizes." n331 But gains from rights may--and in the surveillance
situation clearly do--make gains from politics less available. To sum up this
Part, neither the Constitution nor FISA aims to optimally balance security
and liberty--and frequently analyzed difficulties in congressional
intelligence oversight mean that new statutes are unlikely to fill that gap.
Likewise the existing foundational Executive Order, 12,333, is at the very
least out-of-date. Accordingly intelligence legalism, and its compliance
mindset, cannot achieve optimal policy . Its concomitant empowerment of
lawyers is real and important, but does not deputize a procivil liberties force.
Indeed, legalism actually both crowds out the consideration of policy and
interests (as opposed to law and rights), and legitimates the surveillance
state, making it less susceptible to policy reform. Are there, then, nonlegalistic reforms that could play a productive part? I turn next to this issue.

Impact: State Control

Legalism through surveillance reforms results in greater state control.

Granick, 14
(Jennifer, Director of Civil Liberties at the Stanford Center for Internet and Society,
11/13, The Surveillance States Legalism Isnt About Morals, Its About Manipulating
the Rules, Just Security, http://justsecurity.org/17393/ics-legalism-moralsmanipulating-rules/)
My question is whether legalism serves as a moral code for US Intelligence
Community (IC) leadership, or only as a smokescreen. I believe the evidence
shows that since 9/11,the IC, and specifically the NSA has not followed the
rules. Rather, the agency has resorted to legalistic justifications in pursuit
of other goalsnamely whatever might be useful in countering terrorism.

Before 9/11, the agency may have been focused on complying with FISA. But
afterthat day, the NSAs approach was that it could circumvent federal statutes
and the Constitution so long as there was some visceral connection to looking for
terrorists. In other words, since 9/11, the moral center of gravity in the
surveillance world has focused on doing whatever is necessary for hunting
terrorists, not following the rules. Margo also argues that the NSAs legalism
equates to, for better or worse, the empowerment of lawyers. Sign-off by
lawyers is, as Margo says, an important part of the process. Lawyer opinions gave
telecommunications firms legal immunity for their cooperation with the government
in conducting mass surveillance. Lawyers were used to compel compliance from
underlings within the intelligence community. Theyve been used cynically for
public relations purposes, trading on the public trust in the actions of
government lawyers to cloud the public debate over legality. Theyve been
used tomarginalize the role of Congress in approving surveillance. The
decisions of lawyers inside the surveillance community have allowed
Americas spies to secretly expand their power as they develop classified
capabilities and practices that the public and Congress havent yet
become aware of, and have not even begun to regulate. But calling this
empowerment is misleading. We see lawyers who object to policies that may
harm civil liberties bypassed in favor of handpicked counsel who give their bosses
the answers they want. Lawyers are ratifying surveillance decisions policy
makers have already made. Thats not empowerment, its subservience.

Surrendering selfhood to the State makes extinction inevitable.

Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ.,
Spring, 11 Ariz. J. Int'l & Comp. Law 1)
This, then, is an altogether different kind of understanding. Rather than rescue
humankind by freeing individuals from fear of death, this perspective recommends
educating people to the truth of an incontestable relationship between death and
geopolitics. By surrendering ourselves to States and to traditional views of selfdetermination, we encourage not immortality but premature and predictable
extinction. It is a relationship that can, and must, be more widely understood.
There are great ironies involved. Although the corrosive calculus of geopolitics has
now made possible the deliberate killing of all life, populations all over the planet
turn increasingly to States for security. It is the dreadful ingenuity of States that
makes possible death in the billions, but it is in the expressions of that ingenuity
that people seek safety. Indeed, as the threat of nuclear annihilation looms even
after the Cold War, 71 the citizens of conflicting States reaffirm their segmented
loyalties, moved by the persistent unreason that is, after all, the most indelible
badge of modern humankind.
As a result, increasing human uncertainty brought about by an unprecedented
vulnerability to disappearance is likely to undermine rather than support the
education required. Curiously, therefore, before we can implement such education,
we will need to reduce the perceived threat of nuclear war 72 and enlarge the belief
that the short-term goal of nuclear stability is within our grasp. To make this

possible we must continue to make progress on the usual and mainstream arms
control measures and on the associated strategies of international cooperation and
reconciliation. In this connection, arms control [*25] obligations must fall not only
on nuclear weapon States, but also upon non-nuclear States that threaten others
with war or even genocide.
"Death," says Norbert Elias, "is the absolute end of the person. So the greater
resistance to its demythologization perhaps corresponds to the greater magnitude
of danger experienced." 73 Let us, then, reduce the magnitude of danger, both
experienced and anticipated. But let us also be wary of nurturing new mythologies,
of planting false hopes that offer illusions of survival in a post-apocalypse world.
Always desperate to grasp at promises that allay the fears of personal transience,
individuals are only too anxious to accept wish-fantasies of security in the
midst of preparations for Armageddon.

Privileging the power of the state over that of the individual makes war and
genocide inevitable.

Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ.,
Spring, 11 Ariz. J. Int'l & Comp. Law 1)
Yet, this situation is enormously ironic. By its very nature, the self-determination of
peoples and nations undermines the self-determination of individuals. 6 Encouraging
the expanding fragmentation of the world into [*3] competing sovereignties, this
right under international law makes it nearly impossible for persons to see
themselves as members of a single human family. As a result, the presumed
differences between peoples are taken as critical and the essential similarities
dismissed as unimportant. Not surprisingly, war 7 and genocide 8 are not only the
legacy of the current century, but also the most probable planetary future.
Self-determination, of course, has its place. Under the United Nations Charter, this
principle is treated as an indispensable corrective to the crime of colonialism.
Hence, colonial peoples are granted an "inherent" right to struggle [*4] by all
necessary means, 9 and United Nations member States are instructed to render all
necessary moral and material assistance to the struggle for freedom and
independence. 10
Yet, the cumulative effect of claims for self-determination is violence and death.
Reaffirming individual commitments to life in the "herd," these claims contradict the
idea of global oneness and cosmopolis. From identification as Moslem Azerbaijanis
or Christian Armenians, as Croats or Serbs, individuals all over the world surrender
themselves as persons, being told again and again that meaning derives from
belonging. Not surprisingly, these individuals are too often willing to do anything
that the group commands -- even the mass killing of other human beings, as long as
the victims are "outsiders."
[*5] What do we really seek in world affairs? If it is authentic peace and an end to
war crimes 11 and crimes against humanity, 12 then the expectation of selfdetermination must be balanced against the needs of planetization, of a new world
order 13 in which the commonality and community of the entire human species takes
precedence over the lethal calls of separatism, ethnic rivalry, and militaristic

nationalism. Poised to consider that national liberation can itself be the source of
armed conflict and murder, individuals everywhere must learn to affirm their
significance outside the herd, as persons rather than as members.
The herd is always potentially dangerous, whether it be the herd of a criminal band,
a discontented nationality, or a State. 14 Before the residents of this endangered
planet can discover safety in world politics, they will have to discover power and
purpose within themselves. In the end, humankind will rise or fall on the
strength of a new kind of loyalty, one that recognizes the contrived character of
national, religious, and ethnic differences and the primacy of human solidarity.
Although this kind of loyalty is certainly difficult to imagine, especially when one
considers that organization into and belonging within competitive herds still offers
most people a desperately needed sense of self-worth, there seems to be no
alternative. Whether we seek an accommodation of Palestinians 15 and Israelis 16 in
the Middle East, of Catholics and Protestants in Northern Ireland, or of different
nationalities in Eastern Europe, in the former USSR, or in the former Yugoslavia, the
only real hope lies in getting those involved to see themselves as
individuals.

Surrendering selfhood to the state makes war and genocide inevitable

Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ.,
Spring, 11 Ariz. J. Int'l & Comp. Law 1)
The State requires its members to be serviceable instruments, suppressing every
glimmer of creativity and imagination in the interest of a plastic mediocrity. Even
political liberty within particular States does nothing to encourage opposition to war
or to genocide in other States. Since "patriotic self-sacrifice" is demanded even of
"free" peoples, the expectations of inter-State competition may include war and the
mass killing of other peoples.
In the final analysis, war and genocide are made possible by the surrender of
Self to the State. Given that the claims of international law 35 are rendered
impotent by Realpolitik, this commitment to so-called power politics is itself an
expression of control by the herd. Without such control, individuals could discover
authentic bases of personal value inside themselves, depriving the State of its
capacity to make corpses of others.

The alternative is to shatter the negative order by embracing debate as a street theater.
Critique alone leads to political action in the future.

Hutchinson and Monahan in 84

CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars:
The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law
Review

The Critical scholars' radical challenge to traditional legal thought is unsettling.

Unlike the in-house squabbles between the Harts and the Fullers, the debate

between the Critical scholars and mainstream legal theorists is not over
matters of degree or emphasis. And because the conflict is over something
much more profound and elemental than legal doctrine, the likelihood of
cooptation is small. n192 Further, the Critical scholars do not seek to displace
traditional jurists from center stage merely to have the spotlight focused on
themselves.Instead, they want to revolutionize the whole theory and performance of
the American legal drama. They do not simply wish to exchange the scripts and the
sentiments of Shakespeare for those of Brecht or Fugard. The message and the

medium must change. The focus of attention must shift from the artifacts of
the juristic stage to the reality of the citizen audience. The ultimate goal
must be to [*244] promote "street theater," the spontaneous involvement
of people in everyday situations. n193
The ambition of the Critical scholars is revolution, not reform. For them,
intellectual critique is merely a prelude to, and platform for, political action.
n194

Voting neg is the only choice rejection solves the 1ac cant be validated because
it is dedicated to effacing their own subject positions within the system of power

Salter 85. M.G. Salter, lecturer in criminal law at the University of Birmingham,
The Rule of Power in the Language of Law, The Liverpool Law Review Vol.VII(1)
[1985] pg. 36
Through such codes of discipline language itself lays down the forms of discourse
which are judged appropriate and inappropriate. For their continued vigour,
these codes actually depend upon the multiplicity of points of resistance
by those - including the staff - who are subject to them. Resistances
actively serve as footholds, targets, supports and adversaries for power.
Power relations here are not then attributable to, or owned by a
single group or class, but arise in an apparently anonymous manner from
interactions within the local situations in which they first appear. Now if
this is true, it has real consequences for the common sense of legal
culture. It suggests that its truth- claims concerning the power/truth relation
are themselves possible and comprehensible only because power
operates within their own discourse, productively excluding some
interpretations, attitudes and actions as "inappropriate" and therefore
creating a possible common ground for their intelligibility as such. (4) This
productivity of power appears in the mutual implication of positive and negative
determinations of all legal meaning over time and through productive disowning.
For example, during a contract law tutorial the tedious determination of what an
"offer" is for Contract law, involves the progressive unfolding of all that it does not
mean, i.e. invitation to treat, continuing negotiations etc. Thus the limiting

process of disowning - the self-exercise of the power of exclusion in

meaning- determination - presents itself to be ultimately productive of
truth. Further we can see that all claims to a truthful critique - including those
of this text - are "positive" and productive of truth only through their power
of disowning the overall position that is successfully criticised . The
experience of a continually disowned/re-owned world of law is then the
pre-condition for the production of insight and truth-claims about its
workings - including common sense views about the unproductivity of
power. Thus at both the level of particular explication of meanings and that of the
overall development within the "discipline" of law, the juxta-position of truth
and power now appears no longer to be sustainable. Our discursive
knowledge of the power/truth connection is, by virtue of its discursive
character, implicated in that which it examines. This appears when we
consider the derivation of much of the "knowledge" imparted by "criminology"
courses from languages of punishment. Here not only does such "academic
knowledge" emanate from the exercise of this form of state power, but by
largely treating crime as about the explanation of criminal behaviour,

this "knowledge" returns to support and legitimate

the institutional exercise of criminalising power. It
does this partly by reducing intellectual and theoretical problems
to social policy ones . This leaves the whole exercise quite untroubled by critical
thought. Therefore the implication of power, knowledge and legal discourse
goes far deeper than simple encouragement or application. Instead legal
discourse and power relations mutually imply one another to the extent
that they cannot be conceived of without each other. For example, the power
relations at work in the court room between the judge, jury, public, media, court
officers, advocates, witnesses and accused give rise to a distinctive "knowledge"
available for "Legal Methods" courses. It becomes available through a
hierarchy of relations between and among law- reporters, publishers,
lecturers, students, college traditions and government administrators.
Here power demarcates what is sayable, to whom, in what manner, about
what and when; yet the consequences of this demarcation is to open up and
temporalise a common historical world of law and "legal education". We shall
examine later how it produces a domain of legal subjects , objects and rituals
for determining their truth through an ever-proliferating discourse on law.

2NC Legalism

Alt: Critique Solves

Criticism is key to challenging the surveillance system

Setty, 15
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual
Life, Western New England University School of Law, SYMPOSIUM: Surveillance,
Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of
International Law, 51 Stan. J Int'l L. 69)
The surveillance and data collection that are part of the NSA Metadata
Program have been largely validated by two forms of relatively weak
judicial review: Article III courts have, until recently, largely refused to hear the
merits of cases challenging the government surveillance, instead finding that
plaintiffs are unable to satisfy the standing requirement, n28 or dismissing suits at
the pleadings stage due to invocations of the state secrets privilege by the
government. n29 The Foreign Intelligence Surveillance Court (FISC), tasked with
determining the legality of many of the government's surveillance
requests, has largely acquiesced to the government's requests over the
years. n30 Cases litigated after the Snowden revelations of June 2013
suggest, however, that the judicial deference offered to the government in
many previous counterterrorism cases may be curtailed in light of public
attention and critique of the NSA Metadata Program, as well as
a [*76] reinvigorated judicial embrace of the privacy protections embodied in the
Fourth Amendment. n31

Overcoming social heirarchies can only happen with a shattering of the legal order

Hutchinson and Monahan in 84

CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars:
The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law
Review
The distinctive feature of the CLS movement, therefore, is its desire to shatter the

limiting conceptions of the possibilities of human association and of social

transformation embodied in liberal legal thought. The CLSers' enterprise is to
complete the modern rebellion against the view that social arrangements are
natural or inevitable. They want to expose society as the vulgar and contingent
product of interrupted fighting. Their central strategy is to suggest that social order
exists only because, at some arbitrary point, the struggle between individuals was
halted and truce lines were drawn up. These truce lines define the structure of a
society's politics and production. Although these truce lines initially are simply the
product of an uneasy [*217] deal between combatants, eventually they stabilize
and become fixed. A sense of stability is generated by the insistence that the

truce lines represent more than the residue of interrupted fighting: Strength
becomes right, obedience becomes duty, and the ad hoc nature of
hierarchical division in society is obscured. n77
Inspired by a vision of the contingent nature of all social worlds, the CLS project is to
identify the role played by law and legal reasoning in the process through which
social structures acquire the appearance of inevitability. By identifying and
overturning the extant forms of legal consciousness, the CLSers hope to liberate the
individual in society. Their method for exposing the distortion between the apparent
order of the legal process and the disorder of social life is to examine the
intellectual devices that conceal this discrepancy. Whereas the Realists exposed
indeterminacy in legal doctrine, the Critical scholars abstract from legal

materials the underlying premises that combine to form a distinct way of

looking at the world. By demonstrating that social life is much less structured
and much more complex, much less impartial and much more irrational, than
the legal process suggests, the interests served by legal doctrine and theory
will surface. n78

Instead, prefer the presentation of the nonnegotiable

demandanonymity and politics that refuses demands and
participation in the system. We cannot be commodified
because we dont exist.

Wark 4

(McKenzie Wark, PhD in Communication Murdoch University, author of The Spectacle of

Disintegration, A Hacker Manifesto, 2004, pp. 95-99, \\acc. 3/30/15, ali\\)

The politics of representation is always the politics of the state. The state is nothing
but the policing of representations adequacy to the body of what it represents . That
this politics is always only partially applied, that only some are found guilty of misrepresentation, is the injustice of
any regime based in the first place on representation. A politics of expression, on the other hand, is a politics of
indifference to the threat and counterthreat of exposing nonconformity between sign and referent. Benjamin: The
exclusion of violence in principle is quite explicitly demonstrable by one significant factor: there is no sanction for
lying.*

the politics of representation always presupposes an ideal

state that would act as guarantor of its chosen representations . It yearns for a state
that would recognise this oppressed subject or that, but which is nevertheless still a
desire for a state, and a state that, in the process, is not challenged as the enforcer of class interest, but is
Even in its most radical form,

accepted as the judge of representation.

And always, what escapes effective counter in this imaginary, enlightened state is the power of
the ruling classes, which have no need for representation , which dominate through
owning and controlling production, including the production of representation.
What calls to be hacked is not the representations of the state, but the class rule based on an
exploitative bifurcation of expression into lack and plenitude.
And always, what is excluded even from this enlightened, imaginary state, would be
those who refuse representation , namely, the hacker class as a class. To hack is to refuse
representation, to make matters express themselves otherwise. To hack is always to
produce the odd difference in the production of information. To hack is to trouble the object or the subject, by
transforming in some way the very process of production by which objects and subjects come into being and
recognise each other by their representations. The hack touches the unrepresentable, the real.

A politics that embraces its existence as expression , as affirmative difference, is the politics
that can escape the state. To refuse, or ignore, or plagiarise representation, to renounce its
properties, to deny it what it claims as its due, is to begin a politics, not of the state,
but of statelessness. This might be a politics that refuses the states authority to authorise what is a valued
statement and what isnt. Lautramont: Plagiarism is necessary. Progress implies it.* Or rather: Progress is

The politics of expression outside the state is always

temporary, always becoming something other. It can never claim to be true to itself.
Any stateless expression may yet be captured by the authorised police of
representation, assigned a value, and made subject to scarcity, and to
commodification. This is the fate of any and every hack that comes to be valued as
useful.
Even useless hacks may come, perversely enough, to be valued for the purity of their
uselessness. There is nothing that cant be valued as a representation. There is
nothing that cant be critiqued, and thereby valued anyway, by virtue of the
attention paid to its properties. The hack is driven into history by its condition of existenceexpression
possible, plagiarism implies it.

that calls for the renewal of difference.

Everywhere, dissatisfaction with representations is spreading. Sometimes its a matter of

sharing a few megabytes, sometimes of breaking a few shop windows. But this dissatisfaction does not
always rise above a critique that puts revolt squarely in the hands of some
representative or other, offering only another state as an alternativeeven if only a
utopian one.
Violence against the state, which rarely amounts to more than throwing rocks at its police, is
merely the desire for the state expressed in its masochistic form. Where some call
for a state that embraces their representation, others call for a state that beats
them up. Neither is a politics that escapes the desire cultivated within the
subject by the educational apparatusthe state of desire that is merely desire
for the state.

An expressive politics has nothing to fear from the speed of the vector. Expression is an event traversing space and
time, and quickly finds that the vector of telesthesia affords an excellent expander and extender of the space and

time within which the expression of an event can transform experience and release the virtual. Representation
always lags behind the event, at least at the start, but soon produces the narratives and images with which to
contain and conform the event to a mere repetition, denying to the event its singularity. It is not that once
something extra-media is exposed to the media, it turns into something else.* It is that once representation finally
overtakes expression within the vector, the event, in its singularity, is over. Whatever new space and time it hacked
becomes a resource for future events in the endless festival of expression.

Even at its best, in its most abstract form, on its best behaviour, the colour blind, gender neutral,
multicultural state just hands the value of representation over to objectification .
Rather than recognising or failing to recognise representations of the subject , the
state validates all representations that take a commodity form. While this is
progress, particularly for those formerly oppressed by the states failure to recognise as legitimate their properties,
it stops short at the recognition of expressions of subjectivity that refuse the objectification in the commodity form
and seek instead to become something other than a representation that the state can recognise and the market
can value.
Sometimes what is demanded of the politics of representation is that it recognise a new subject. Minorities of race,
gender, sexualityall demand the right to representation. But soon enough they discover the cost. They must now
be come agents of the state, they must police the meaning of their own representation, and police the adherence of
their members to it.

But there is something else, something always hovering on the horizon of the
representable. There is a politics of the unrepresentable, a politics of the
presentation of the nonnegotiable demand. This is politics as the refusal of
representation itself, not the politics of refusing this or that representation . A politics
that, while abstract, is not utopian. A politics that is atopian in its refusal of the
space of representation, in its hewing toward the displacements of expression . A
politics that is therefore undetectable, not identifiable, invisible not
recognisable, stealthy not public.*