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Circumvention Scholars Lab GDI15

NEG

Generic

1NC - Circumvention
No solvency National security bureaucracy crushes implementation and
enforcement
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 60, accessed 7.9.15, AM]

B. The Congress
Like the courts, Congresss apparent power also vastly outstrips its real power over
national security. Similar to the Trumanites, its members face a blistering work load. Unlike
the Trumanites, their work is not concentrated on the one subject of national security. On the
tips of members tongues must be a ready and reasonably informed answer not only to whether
the United States should arm Syrian rebels, but also whether the medical device tax should be
repealed, whether and how global warming should be addressed, and myriad other issues. The
pressure on legislators to be generalists creates a need to defer to national security experts.
To a degree congressional staff fulfill this need. But few can match the Trumanites
informational base, drawing as they do on intelligence and even legal analysis that agencies
often withhold from Congress. As David Gergen put it, [p]eople . . . simply do not trust
the Congress with sensitive and covert programs.344
The Trumanites threat assessments,345 as well as the steps they take to meet those threats,
are therefore seen as presumptively correct whether the issue is the threat posed by the targets
of drone strikes, by weapons of mass destruction in Iraq, or by torpedo attacks on U.S. destroyers
in the Gulf of Tonkin. Looming in the backs of members minds is the perpetual fear of
casting a career-endangering vote. No vote would be more fatal than one that might be tied
causally to a cataclysmic national security breakdown. While the public may not care
strongly or even know about many of the Bush policies that Obama has continued, the
public could and would likely know all about any policy change and who voted for and
against itin the event Congress bungled the protection of the nation. No member wishes
to confront the if only argument: the argument that a devastating attack would not have
occurred if only a national security letter had been sent, if only the state secrets privilege
had been invoked, if only that detainee had not been released. Better safe than sorry, from
the congressional perspective. Safe means strong. Strong means supporting the Trumanites.
Because members of Congress are chosen by an electorate that is disengaged and
uninformed, Madisons grand scheme of an equilibrating separation of powers has failed,

and a different dynamic has arisen.346 His design, as noted earlier,347 anticipated that
ambition counteracting ambition would lead to an equilibrium of power and that an ongoing
power struggle would result among the three branches that would leave room for no perilous
concentration of power.348 The governments several constituent parts would be the means of
keeping each other in their proper places.349 But the overriding ambition of legislators
chosen by a disengaged and uninformed electorate is not to accumulate power by
prescribing policy for the Trumanites, as Madisons model would otherwise have predicted.
Their overriding ambition is to win reelection, an ambition often inconsistent with the need to
resist encroachments on congressional power. All members of Congress know that they
cannot vote to prescribeor proscribeany policy for anyone if they lose reelection. It is
not that Madison was wrong; it is that the predicate needed for the Madisonian system to
function as intendedcivic virtueis missing.

Surveillance Reform Circumention


No solvency surveillance will continue under different laws, different agencies, and
different programs
Ackerman, The Guardian, 15
(Spencer, 6/1/2015, The Guardian, Fears NSA will seek to undermine surveillance reform,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secretlaw, Accessed 7/5/15, DR)

The USA Freedom Act, a compromise bill, would not have an impact on the vast majority
of NSA surveillance. It would not stop any overseas-focused surveillance program, no
matter how broad in scope, nor would it end the NSAs dragnets of Americans
international communications authorized by a different law. Other bulk domestic
surveillance programs, like the one the Drug Enforcement Agency operated, would not be
impacted.
The rise of what activists have come to call bulky surveillance, like the large collections
of Americans electronic communications records the FBI gets to collect under the Patriot
Act, continue unabated or, at least, will, once the USA Freedom Act passes and restores the
Patriot Act powers that lapsed at midnight on Sunday.
That collection, recently confirmed by a largely overlooked Justice Department inspector
generals report, points to a slipperiness in shuttering surveillance programs one that
creates opportunities for clever lawyers.
The Guardian revealed in 2013 that Barack Obama had permitted the NSA to collect
domestic internet metadata in bulk until 2011. Yet even as Obama closed down that NSA
program, the Justice Department inspector general confirms that by 2009, the FBI was
already collecting the same electronic communications metadata under a different
authority.
It is unclear as yet how the FBI transformed that authority, passed by Congress for the
collection of business records, into large-scale collection of Americans email, text, instant
message, internet-protocol and other records. And a similar power to for the FBI gather
domestic internet metadata, obtained through non-judicial subpoenas called National
Security Letters, also exists in a different, non-expiring part of the Patriot Act.

Reforms wont stop surveillance rubberstamps and rationale shift


Ackerman, The Guardian, 15

(Spencer, 6/1/2015, The Guardian, Fears NSA will seek to undermine surveillance reform,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secretlaw, Accessed 7/5/15, DR)

Attorneys for the intelligence agencies react scornfully to the suggestion that they will
stretch their authorities to the breaking point. Yet reformers remember that such legal
tactics during the George W Bush administration allowed the NSA to shoehorn bulk phone
records collection into the Patriot Act.
Rand Paul, the Kentucky senator and Republican presidential candidate who was key to
allowing sweeping US surveillance powers to lapse on Sunday night, warned that NSA lawyers
would now make mincemeat of the USA Freedom Acts prohibitions on bulk phone records
collection by taking an expansive view of the bills definitions, thanks to a pliant, secret
surveillance court.
My fear, though, is that the people who interpret this work at a place known as the rubber
stamp factory, the Fisa [court], Paul said on the Senate floor on Sunday.
Pauls Democratic ally, Senator Ron Wyden, warned the intelligence agencies and the Obama
administration against attempting to unravel NSA reform.
My time on the intelligence committee has taught me to always be vigilant for secret
interpretations of the law and new surveillance techniques that Congress doesnt know about,
Wyden, a member of the intelligence committee, told the Guardian.
Americans were rightly outraged when they learned that US intelligence agencies relied on
secret law to monitor millions of law-abiding US citizens. The American people are now on high
alert for new secret interpretations of the law, and intelligence agencies and the Justice
Department would do well to keep that lesson in mind.
The USA Freedom Act is supposed to prevent what Wyden calls secret law. It contains a
provision requiring congressional notification in the event of a novel legal interpretation
presented to the secret Fisa court overseeing surveillance.
Yet in recent memory, the US government permitted the NSA to circumvent the Fisa court
entirely. Not a single Fisa court judge was aware of Stellar Wind, the NSAs post-9/11
constellation of bulk surveillance programs, from 2001 to 2004.
Energetic legal tactics followed to fit the programs under existing legal authorities after
internal controversy or outright exposure. When the continuation of a bulk domestic
internet metadata collection program risked the mass resignation of Justice Department
officials in 2004, an internal NSA draft history records that attorneys found a different
legal rationale that essentially gave NSA the same authority to collect bulk internet
metadata that it had.

Circumvention inevitable Loopholes and vague definitions prove


Redmond, Fordham University Law, J.D. Candidate, 14
[Valerie, April 2, 2014, Fordham Law, I SPY WITH MY NOT SO LITTLE EYE: A
COMPARISON OF SURVEILLANCE LAW IN THE UNITED STATES AND NEW
ZEALAND, http://fordhamilj.org/files/2014/04/FILJ_ISpy_Redmond.pdf , accessed: July 9,
2015, AJ]

In the United States, the current state of surveillance law is a product of FISA, its
amendments, and its strictures. An evaluation of US surveillance law proves that inherent
loopholes undercut FISAs protections, which allows the US Government to circumvent
privacy protections.182 The main problems are the insufficient definition of surveillance, the
ability to spy on agents of foreign powers, the lack of protection against third party surveillance,
and the ability to collect incidental information.183
First , a significant loophole arises in the interpretation of the term surveillance. 184 In
order for information collection to be regulated by FISA, it must fall under FISAs definition of
surveillance.185 This definition does not apply to certain National Security Letters, which are
secret authorizations for the Federal Bureau of Investigation (FBI) to obtain records from
telephone companies, credit agencies, and other organizations if they merely certify that the
information is relevant to an international terrorism investigation.186 National Security Letters
are regularly used to circumvent FISAs warrant procedures.187
Additionally, FISAs definition of surveillance is antiquated because it distinguishes between
data acquired inside of the United States and outside of the United States.188 This
distinction allows the NSA to process surveillance that is received from other countries
irrespective of whether the target is a US citizen. 189 Therefore, the NSA is unrestrained
when a communication is not physically intercepted within the United States.190
Second, an issue arises when US citizens are construed to be agents of foreign powers under
FISA because a warrant can be issued to engage in surveillance against them.191 According
to FISAs procedures, the only way to spy on a US citizen is when they can be considered to be
an agent of a foreign power, or engaged in information gathering, aiding, or abetting a foreign
power.192 However, this limitation does not result in total privacy protection because it only
requires probable cause that a person is an agent of a foreign power, not that a crime is being
committed.193 The effect of this ability is that the US Government can conduct surveillance
on a US citizen with no ties to terrorism such as a suburban mother telling her friend that her
son bombed a school play.194
Furthermore, FISA is limited to protecting against surveillance by the US Government; it does
not create a reasonable expectation of privacy for individuals from surveillance by a third
party.195 This rule is exploited by the United States participation in Echelon.196 Because US
law generally does not regulate information sharing , the United States essentially violates the

privacy rights of US citizens by accepting information from foreign intelligence agencies about
potential threats involving US citizens.197 Thus, the lack of privacy rights when US citizens
are spied on by agencies outside of the United States creates a loophole for spying on US
citizens without the government restrictions created by existing law .198
Lastly, US law allows for the collection of incidental information.199 It is predicted that
Echelon collects nearly all communications, many of which can be considered incidental.200
Therefore, the fact that FISA allows for the collection of incidental information suggests that
privacy rights can be violated by its involvement in Echelon.201

Surveillance reform will be circumvented multiple warrants


[FBI and FISA wont need warrants, NSA data collection remains the same, Leadership remains
the same, NSA will improve its surveillance]

Volz, National Journal tech writer & Koren, National Journal news editor, 14
[Dustin and Marina, January 17, 2014, National Journal, NSA Reforms: What Will Change, and
What Won't, http://www.nationaljournal.com/white-house/nsa-reforms-what-will-change-andwhat-won-t-20140117 , Accessed 7/6/15, DR]

The FBI still won't need to get a court order to issue subpoenas for information during
investigations. A December report from a group of Obama-appointed advisers tasked with
examining NSA surveillance recommended that National Security Letters, which the FBI
uses to compel parties to disclose information, can be issued only after a judge finds that
the government has reasonable grounds to believe that the information it seeks is relevant
to an intelligence investigation. Of this, Obama said, "Here, I have concerns that we should not
set a standard for terrorism investigations that is higher than those involved in investigating an
ordinary crime."
Neither will FISA. Although Obama promised more oversight, the court retains much of its
power to compel third parties to disclose private information to the government.
From a software perspective, how the NSA collects data won't change. "The U.S.
government should examine the feasibility of creating software that would allow the
National Security Agency and other intelligence agencies more easily to conduct targeted
information acquisition rather than bulk-data collection." Obama made no mention of
tweaks to the agency's massive dragnet during his speech.
Leadership of NSA and Cyber Command isn't changing. The administration already
dismissed this idea from the review panel, but Obama made no mention of allowing the
NSA's leadership to change from military to civilian control. And the agency will not be
separated from Cyber Command, the military's central cyberwarfare hub, something the

December report pushed. The report also recommended that the director's position should be
open to civilians and be subject to Senate approval.
The NSA is still going to bypass security encryptions on the Web. The review board said
that the government should be "fully supporting and not undermining efforts to create
encryption standards" and "making clear that it will not in any way subvert, undermine,
weaken, or make vulnerable generally available commercial encryption." The intelligence
agency, however, has no plans to stop cracking others' encryption codesit has plans to get
better at it.
The president may have set out to end the NSA's bulk collection program "as it currently
exists," but there's no doubt that much still remains the same. Phone metadata will still be
collected and searched. Ultimately, much of the NSA's activity will continue to be shrouded
in secrecy.

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, The Guardian journalist and constitutional lawyer, 14
[Glen, 11-19-14 The Intercept, CONGRESS IS IRRELEVANT ON MASS SURVEILLANCE.
HERES WHAT MATTERS INSTEAD,
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-masssurveillance, Date Accessed: 7.7.2015, JM]

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 nonAmericans).
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 EFF to 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 court
the 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 reformso 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.

The executive will circumvent the aff - loopholes, deference and no enforcement
Mitchell, George Mason School of Law professor, 9

[Jonathan, January 2009, From the Selected Works of Jonathan F. Mitchell, Legislating ClearStatement Regimes in National- Security Law, http://works.bepress.com/cgi/viewcontent.cgi?
article=1000&context=jonathan_mitchell, Accessed 7/7/15, GJ]

Congresss national-security legislation will often require clear and specific congressional
authorization before the executive can undertake certain actions. One example is section 8(a)(1)
of the War Powers Resolution, which prohibits any statute from authorizing military hostilities
unless it specifically authorizes such hostilities and states that it is intended to constitute
specific statutory authorization within the meaning of this joint resolution.1 If Congress fails to
enact a statute with this specific language, the War Powers Resolution requires the President to
terminate hostilities within 60 days.2 The Foreign Intelligence Surveillance Act of 1978
(FISA) also contains a codified clear-statement requirement, which declares that FISAs
procedures are the exclusive means for conducting certain forms of electronic
surveillance.3 This exclusivity requirement requires statutes to amend FISA or repeal the
exclusive means provision before they can authorize electronic surveillance. And this
establishes a clear statement regime because the Supreme Courts precedents disfavor implied
repeals,4 and insist that the intention of the legislature to repeal must be clear and manifest.5
Congress continues to codify additional clear-statement requirements in its recently enacted
national-security legislation. The McCain Amendment to the 2005 Detainee Treatment Act, for
example, provides that its prohibition on certain forms of cruel, inhuman, or degrading treatment
shall not be superseded, unless a provision of law specifically repeals, modifies, or supersedes
the provisions of this section.6 And the FISA Amendments Act of 2008 states that [o]nly an
express statutory authorization for electronic surveillance may authorize such activities outside
of FISAs strictures.7
These statutes attempt to establish legal answers to the unsettled institutional questions
regarding the circumstances in which the President must seek explicit congressional
authorization for his actions. They offer an alternative to regimes that allow judges to
decide on a case-by-case basis whether to require specific congressional authorization,8 or
that allow the executive to act whenever it can find a surface ambiguity in some statute.9
These framework statutes are legislatively-enacted non-delegation canons,10 designed to
strengthen the bicameralism-and-presentment hurdles that the executive must surmount before it
can claim legal authority to act.
But efforts to legislate clear-statement regimes in national-security law have failed to induce
the political branches to comply with codified clear-statement requirements. During the
Kosovo War, the Clinton Administration asserted that Congress had authorized the President to
continue the Kosovo War beyond the 60-day limit in the War Powers Resolution. But it inferred
this congressional authorization from a 1999 appropriations statute that neither mentioned the
War Powers Resolution nor specifically authorized the conflict.11 The statute simply
appropriated $5 billion for a fund used to finance overseas military operations, and provided an
additional $300 million for military technology needed for the Kosovo campaign.12 The Clinton
Administrations Office of Legal Counsel deployed two tenuous legal arguments to escape the

clear-statement regime codified in section 8(a)(1) of the War Powers Resolution. First, it
maintained that section 8(a)(1)s clear-statement requirement would unconstitutionally bind a
later Congress if it required statutes specifically to reference the War Powers Resolution as a
precondition to authorizing military hostilities.13 Second, the Clinton Administration insisted
that the 1999 Emergency Supplemental Appropriations Act implicitly repealed section 8(a)(1)s
clear-statement requirement, and allowed President Clinton to continue the war without a statute
that specifically authorized the hostilities.14 Litigants challenged the Clinton Administrations
argument, but the courts dismissed the case as nonjusticiable.15 And Congress, rather than
enforcing section 8(a)(1)s clear-statement regime by cutting off funds for the Kosovo War or
threatening impeachment, quietly facilitated President Clintons actions by appropriating funds
that he could use to continue the bombing campaign, even as legislators refused to enact the
specific authorization that the War Powers Resolution required.16
A similar pattern of events occurred during the NSA surveillance controversy.
The Bush Administration claimed that the post-9/11 Authorization for Use of Military
Force (AUMF) authorized the NSAs warrantless surveillance program, even though the
statute never mentioned FISA or wiretapping and merely authorized the President to use
all necessary and appropriate force against the 9/11 perpetrators.17 The Bush
Administration relied on the same arguments that the Clinton Administration used to establish
congressional authorization for the Kosovo War. First, it maintained that FISAs exclusivity
requirement would tie the hands18 of future Congresses if it required specific language
in statutes that authorize warrantless electronic surveillance. Then it argued that the AUMF
implicitly repealed FISAs restrictions.19 Once again, a court dismissed a lawsuit challenging
the Administrations legal argument,20 leaving the executive free to act without the specific
authorization that Congresss earlier-enacted statutes required. And Congress enabled
President Bush to continue the NSA surveillance program by acquiescing and funding the
intelligence agencies, even as it failed to enact legislation that specifically authorized the
program until 2007.
The executive branchs interpretive theories were far reaching, and its approach to
constitutional avoidance and implied repeal were irreconcilable with the Supreme Courts
precedents. But they provided some political cover for the President by giving his actions a
veneer of legality, and may even have protected executive-branch employees from the fear of
criminal liability or political reprisals. 21 To prevent the executive from continuing to evade
Congresss codified clear-statement requirements in this manner, many proposals have sought
to provide more narrow and explicit clear statement requirements in Congresss
framework legislation as well as provisions that withhold funding from activities that
Congress has not specifically authorized. For example, Senator Specter proposed new
provisions to FISA stating that no provision of law may repeal or modify FISA unless it
expressly amends or otherwise specifically cites this title,22 and that no funds appropriated or
otherwise made available by any Act may be expended for electronic surveillance conducted
outside of FISA.23 Congress failed to enact Senator Specters proposal, but it did enact an
amendment to FISA that made the clear-statement regime more explicit, specifying that only an

express statutory authorization for electronic surveillance may authorize electronic surveillance
outside of FISAs procedures.24 And numerous commentators have argued for new provisions in
the War Powers Resolution that withhold funds from military ventures that Congress has not
specifically authorized.25 Yet such proposals are unable to counter the executive branchs
aggressive interpretive doctrines. Executive-branch lawyers will remain able to concoct
congressional authorization from vague statutory language by repeating their assertions
that codified clear-statement requirements bind future Congresses or that ambiguous
language in later-enacted statutes implicitly repeals restrictions in Congresss framework
legislation. Future legislators will continue to acquiesce to the Presidents unilateralism when it
is politically convenient to do so.26 And the federal courts willingness to enforce clearstatement regimes against the President in national-security law bear no relationship to the
codified clear-statement requirements in framework legislation or treaties.27
Congress could produce more effective clear-statement regimes if it precommitted itself
against enacting vague or ambiguous legislation from which executive-branch lawyers might
claim implicit congressional authorization for certain actions. Rather than merely enacting
statutes that instruct the executive not to construe ambiguous statutory language as
authorizing military hostilities or warrantless electronic surveillance, Congress could establish
point-of-order mechanisms that impose roadblocks to enacting such vague legislation in the
first place.28 A point-of-order mechanism would empower a single legislator to object to
legislation that authorizes military force, or that funds the military or intelligence agencies, and
that fails to explicitly prohibit or withhold funding for military hostilities beyond 60 days or
warrantless electronic surveillance, unless the bill includes the specific authorizing language that
Congresss framework legislation requires. This device would reduce the likelihood of
Congress ever enacting vague or ambiguous legislation that the executive might use to
claim authorization for extended military hostilities or warrantless electronic surveillance.
It would also induce legislators to confront Presidents that act without specific congressional
authorization by empowering a single legislator to object to legislation necessary to fund the
Presidents unauthorized endeavors. Yet the political branches have never established such an
enforcement mechanism for the clear-statement requirements in national-security legislation,
even though they have established such point-of-order devices to enforce precommitments in
framework legislation governing the federal budget process. The result is a regime of fainthearted clear-statement regimes in national-security law framework legislation that codifies
strongly worded clear-statement rules but that lacks any mechanism to induce compliance by
future political actors. This may be a calculated choice by of members of Congress, or it may
reflect the Presidents influence in the legislative process, but no one should think that simply
legislating more narrow or explicit clear-statement requirements, or adding funding
restrictions to Congresss framework legislation, will be able to prevent the executive from
continuing to infer congressional authorization from vague or ambiguous statutory
language.

Executive lawyers dont follow restrictions and FISA courts side with them
Bendix, University of British Columbia political science professor, & Quirk, Keene
State College political science professor, 15
[William Bendix and Paul J. Quirk, March 2015, Brookings Education, Secrecy and negligence:
How Congress lost control of domestic surveillance,
http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligencecongres-surveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf, Accessed 7/7/15 GJ]

Even if Congress at some point enacted new restrictions on surveillance, the executive might
ignore the law and continue to make policy unilaterally. The job of reviewing executive
conduct would again fall to the FISA Court.56 In view of this courts history of broad
deference to the executive, Congress would have a challenge to ensure that legislative
policies were faithfully implemented.

Specific Affirmatives

Drone Circumvention
Domestic drone use, especially in law enforcement, will circumvent the scope of the
law
Koerner, Duke University School of Law J.D., 15
[Matthew R., Duke University School of Law, J.D. expected 2015; Arizona State University,
B.S.,B.A. 2011, March, Duke Law Journal, DRONES AND THE FOURTH AMENDMENT:
REDEFINING EXPECTATIONS OF PRIVACY, p.1130-1136,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3801&context=dlj, Date Accessed:
7/6/16, ACS]

Senator Dianne Feinstein, a staunch advocate of governmental surveillance n1 and Chairman of


the 113th Congress's Senate Intelligence Committee, n2 recently found herself, rather ironically,
as the target of surveillance. n3 One day at her home, Senator Feinstein walked to the window to
check on a protest that was taking place outside. n4 Much to her surprise, a small drone n5
hovered on the other side of the window, only inches away, spying on her. n6 The drone
immediately flew away. n7 Senator Feinstein's experience is just one example of drones being
used for surveillance within the United States. But her story and others like it n8 have sparked
significant controversy over the use of drones for domestic surveillance, which falls within a
broader debate [*1131] on privacy and governmental surveillance programs. n9 Advocates
of robust federal surveillance policies champion governmental surveillance as the only way to
prevent terrorist and cyber attacks against the United States. n10 President Barack Obama
defended these surveillance programs as ""modest encroachments on privacy'" that "strike the
"right balance' between national security and civil liberties." n11 In comparison, privacy
advocates envision these surveillance programs leading to a dystopian, totalitarian government
watching over its citizenry - undetected but omnipresent. n12 References to George Orwell's
Nineteen Eighty-Four n13 abound. n14 [*1132] Apart from the surrounding privacy-concerns
debate, drones currently provide many practical benefits and their projected applications seem
limitless. n15 Based on their obvious advantage of being unmanned, drones have the capability
to conduct missions previously considered too risky, dangerous, or impracticable. These
applications are also provided at continuously decreasing costs and with the latest technological
sophistication, such as the capability to see through physical obstructions, to detect various
chemical and biological agents in the air, to recognize human faces and license plates, and to fly
in strategic, coordinated formations. n16
As has frequently been the case, however, the benefits of technological advancement come
with the risk of abuse and harassment. n17 These risks are greater when the technology is
utilized by government entities. n18 This Note examines the challenges that the United States
faces in addressing those risks and harmonizing the conflict between government and
technology. Has privacy prospered or foundered through the development of technology? More
specifically, how will the burgeoning swarm of drones over American soil affect domestic law

enforcement, and how will these effects withstand Fourth Amendment n19 scrutiny? [*1133]
Drones, with their current and projected capabilities, present a perfect storm of issues that
fall outside of current Fourth Amendment jurisprudence but still appear to implicate the
Fourth Amendment. n20 Drones can maneuver through each and every loophole of the
jurisprudence for warrantless searches. n21 They travel on public airways at low or high
altitudes, undetected and with little or no undue noise, nuisance, or threat to persons or property.
n22 They can utilize sense-enhancing technologies that are, or will soon be, in general public
use. n23 And drones can use these technologies to gather an abundance of intimate details and
information, previously impossible or impracticable to acquire. n24 Law enforcement is likely
to increasingly use drones for domestic surveillance, and this will likely propel drones to
the forefront of courts' dockets. n26 Scholars have written exhaustively on many aspects of
the Fourth Amendment, and its intersection with drones has recently [*1134] received significant
attention. n27 Much of the literature on drones and the Fourth Amendment recognizes that
it is unclear where - and whether - drones fall within current jurisprudence, and
recommends a variety of legislative solutions. n28 But although scholars identify the legal
uncertainties with drones, those recommending legislative action endorse a partial solution
that only perpetuates the problem that the courts have maintained with respect to
technology and the Fourth Amendment. Specifically, just as current Fourth Amendment
jurisprudence has failed to keep pace with advancing technology, a legislative approach will also
trail behind. n29 This Note addresses these [*1135] issues and recommends an adaptive approach
to Fourth Amendment jurisprudence in the age of the drone. For these reasons, it is highly
probable that courts will soon confront issues regarding the use of drones for domestic
surveillance. n30 This Note argues that when these issues arise, courts should apply the
reasonable-expectation-of-privacy test expounded in Katz v. United States, n31 and, in doing so,
expand on the subjective-expectation-of-privacy requirement. This oft-neglected element of the
two-pronged test provides critical analysis that is especially relevant to cases involving
drones. In further analyzing and clarifying the subjective-expectation requirement, courts
should proceed in three steps. First, they should determine whether the surveilled person
"exhibited an actual (subjective) expectation of privacy" - the [*1136] threshold issue in order for
the Fourth Amendment to apply. n32 Second, if the person held a subjective expectation of
privacy, courts should evaluate the scope of that privacy expectation. And third, they should
determine whether the person "exposed [information] to the "plain view' of outsiders" and
whether the evidence at issue fell within the scope of that exposure.

Law enforcement strategically undermine the effectiveness of future regulations--can easily alter design, create exceptions for flight paths, and bypass privacy-right
paradigms
Koerner, Duke University School of Law J.D., 15
[Matthew R., Duke University School of Law, J.D. expected 2015; Arizona State University,
B.S.,B.A. 2011, March, Duke Law Journal, DRONES AND THE FOURTH AMENDMENT:

REDEFINING EXPECTATIONS OF PRIVACY,


http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3801&context=dlj, Date Accessed:
7/6/16, ACS]

There are several problems with applying current Fourth Amendment jurisprudence to
drones. The factual dynamics of Fourth Amendment cases contribute to the mishmash of Fourth
Amendment jurisprudence, and the increased complexity of drone technology will only
contribute to the problems with applying either Fourth Amendment search paradigm to drones.
First, drones could generally avoid all Fourth Amendment violations under the propertyrights paradigm because they can fly on public thoroughfares, thereby avoiding a trespass.
Second, although the reasonable-expectation-ofprivacy test would provide the most
workable test for an analysis of drones, a person would often be unable to satisfy the tests
subjective element, and courts have not yet expounded an understandable theory for the
objective element. Drones therefore face considerable challenges under the current jurisprudenc
Given its highly context-specific application, a significant feature of the Fourth Amendment is
the dynamic factual scenarios that are presented for court review.188 The government often
employs new instruments to investigate and prosecute criminals.189 Likewise, criminals often
employ new instruments to commit crimes and to evade police detection or capture.190 Ordinary
citizens, however, may employ many of these same instruments to accommodate their everyday
conveniences and necessities. According to Professor Orin Kerr, this complex dynamic has
contributed to the numerous exceptions and seemingly divergent holdings of Fourth Amendment
precedent.191 This dynamic is exacerbated by the diverse designs and capabilities of
sophisticated technologya dynamic that is not alleviated by drone technology. Law
enforcement can strategically use drone technology to avoid current Fourth Amendment
prohibitions. The government can navigate the various doctrinal loopholes by altering the
designs and capabilities of drones , the location and flight paths of drones, the means of
acquiring information, and the types of information acquired. In effect, drones implicate the
most factually diverse aspects of an already diverse and unpredictable jurisprudence. Analyzing
drones under both the property-rights and privacy-rights paradigms thus presents
significant problems for determining when the use of drones constitutes an unreasonable
search.

Subjective privacy standards applying to law enforcement use of drones are corrupt
and the foundation of drone surveillance regulations
Koerner, Duke University School of Law J.D., 15
[Matthew R., Duke University School of Law, J.D. expected 2015; Arizona State University,
B.S.,B.A. 2011, March, Duke Law Journal, DRONES AND THE FOURTH AMENDMENT:
REDEFINING EXPECTATIONS OF PRIVACY,

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3801&context=dlj, p.1153-1154,
Date Accessed: 7/6/16, ACS]

With its holding in Katz, the Supreme Court adopted a privacy rights framework for determining
whether a search had occurred for Fourth Amendment purposes. In Katz, Justice Harlan
interpreted the Courts Fourth Amendment jurisprudence as recognizing two key elements for
identifying a search.206 Under this inquiry, a search generally occurs when persons have
exhibited an actual (subjective) expectation of privacy and when that expectation is one that
society is prepared to recognize as reasonable.207 The Court in Jones alluded to the possible
Fourth Amendment inquiries that might be implicated in a case involving drone technology. In
Jones, the Supreme Court suggested that warrantless, non trespassory surveillance accomplished
by traditional means typically would not qualify as an unreasonable search under current Fourth
Amendment jurisprudence.208 The Court conceded, however, that the same surveillance
conducted through electronic means might constitute an unconstitutional invasion of
privacy.209 It recognized that courts might have to confront these problems in a future
case where a classic trespassory search is not involved, but declined to address that
scenario.210 Although the reasonable-expectation-of-privacy test presents the most viable
Fourth Amendment doctrine to analyze drones, it has been highly criticized since its
inception. The test has been said to disappoint[] scholars and frustrate[] students for . . .
decades. 211 It has frequently been criti[cized] as circular, . . . subjective and
unpredictable .212 Many legal texts forgo explaining the test, instead simply listing the
relevant cases and outcomes.213 With numerous contrary holdings and no clear framework to
analyze cases, a reasonable expectation of privacy has largely come to mean what a majority of
the Supreme Court Justices says it means.214 Courts might, and evidence suggests they do,
misidentify what society recognizes as a reasonable expectation of privacy.215 It has also been
criticized as a standard that erodes over time216 because the development of technology
slowly erodes the publics privacy expectations and with it, the reasonable expectation of
privacy.217 The tests current interpretation and application do not cover many of the different
types of surveillance conducted by drones. There are two key problems with applying the
reasonableexpectation-of-privacy test to drone surveillance. First, there might not be a
practical or reasonable way for persons unaware of their exposure to drones to satisfy the
subjective requirement of the test. Second, as described above, the objectively reasonable
requirement is highly unpredictable and has resulted in an unclear and unworkable standard.

Future governmental surveillance drones abuse fly height restrictions to trespass on


property despite regulations
Koerner, Duke University School of Law J.D., 15
[Matthew R., Duke University School of Law, J.D. expected 2015; Arizona State University,
B.S.,B.A. 2011, March, Duke Law Journal, DRONES AND THE FOURTH AMENDMENT:

REDEFINING EXPECTATIONS OF PRIVACY,


http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3801&context=dlj, p.1158-1159,
Date Accessed: 7/6/16, ACS]

Although some narrow instances might raise a Fourth Amendment issue, drones generally
would not be hampered under the property-rights paradigm. It is long established that an
aircraft traveling over an individuals land does not constitute a trespass.192 The Supreme
Court rejected the common-law concept of cuius est solum, eius est usque ad coelumextending
a property owners rights to the center of the earth and the infinite limits of the universeas a
doctrine with no place in the modern world.193 In discarding this doctrine, the Court
recognized that the immediate reaches around property still belong to the owner.194 These
immediate reaches, however, seem to comprise the literal interpretation of the phrase, as the
Supreme Court has concluded that even low-flying aircraft do not enter these reaches. In Florida
v. Riley, for example, the plurality opinion held that a helicopter flying four-hundred feet over
Rileys property did not constitute a trespass in violation of the Fourth Amendment.195 The
plurality opinion did acknowledge, however, that these limits still exist and that not every aerial
inspection of a home would survive an inquiry under the Fourth Amendment simply because the
[aircraft] is within the navigable airspace specified by law.196 Much of the current use of
drones would not constitute a Fourth Amendment violation under the trespass doctrine.
Drones are analogous to manned aircraft in many respects because they can fly on the same
public thoroughfares abutting private property. The same precedent regarding air travel
would therefore control. If that were the case, drones flight pathsat or above the fourhundred feet in Florida v. Rileywould not constitute a trespass for Fourth Amendment
purposes. As discussed above, drones have the ability to fly a few inches off the ground and
at altitudes of up to sixty-fivethousand feet.197 Drones flying at lower altitudes could risk a
Fourth Amendment violation under the trespass doctrine for being within the immediate reaches
of the property. Assuming that they do not fly within these immediate reaches at ground-level
altitudes or near taller buildings (for example, outside the window of a high-rise apartment),
however, drones would evade trespass violations as other aircraft do. If the government
wanted to conduct surveillance, it could also utilize conventional and future methods of
surveillance from public areas or from lower levels that would not implicate the trespass
doctrine . The curtilage doctrine also does not provide a significant Fourth Amendment
impediment to law enforcements use of drones.
If drones fly outside the immediate reaches of property, then they are likely to avoid a
trespass within the curtilage. Furthermore, observing details within the curtilage of the home
from a lawful location would not constitute an unreasonable search, as government actors are not
required to shield their eyes from observing the home or its curtilage.198 A Jardines-like
scenario might be the exception, but it sets some precedent for the proposition that certain uses
of drones to observe the inside of a home constitute a search within the meaning of the Fourth
Amendment. If the government entered the curtilage with a drone to obtain information, similar
to Jardines, 199 then the trespass doctrine would prohibit conduct outside of an express or

implied license to enter the curtilage. It is highly improbable, however, that drones would
have an express or implied license to enter the curtilage to investigate.

Drone regulations from central government are circumvented Britain proves


Merrill, The Independent feature writer, 15
[James, news reporter and feature writer for The Independent, March 6th, The Independent,
Legal loophole allowing drones to fly with impunity over Balmoral and Chequers,
http://www.independent.co.uk/news/uk/home-news/legal-loophole-allowing-drones-to-fly-withimpunity-over-balmoral-and-chequers-10092039.html, Date Accessed: 7/6/15, ACS]

Security measures protecting the Prime Minister and the Royal Family have been called into
question, after it was revealed a legal loophole allows civilian drones to fly over sensitive sites
across the country. The loophole in Civil Aviation Authority (CAA) rules means that despite
obvious security concerns, it is legal to operate an unmanned aerial vehicle over numerous
Government and royal sites, including the Prime Minister's country retreat at Chequers and the
Balmoral and Sandringham estates. Security experts reacted with alarm to the loophole last
night amid suggestions that criminals and terrorists could use drone technology to launch
an attack or gain vital information on the movements of the Prime Minister or Royal
Family. There have been repeated calls for more drone regulation in recent months after
suggestions terrorists could use drones to deliver explosive devices, disperse chemical or
biological weapons or even spray and ignite flammable liquids. Most recently, these concerns
were raised in a report produced by Sir David Omand the former head of Britain's surveillance
agency GCHQ. However, The Independent has established that drone flights are still permitted
over several royal homes, including Highgrove House, the country home of the Prince of Wales,
as well as the grace-and-favour homes used by the Deputy Prime Minister and Foreign Secretary.
More worryingly for the security services, drone flights are also permitted over GCHQ in
Cheltenham, from where Britain's surveillance agencies monitor global signals traffic. Last night,
Admiral Lord West, a former Labour security minister and senior Royal Navy officer, said the
loophole was a "great concern" and that the Government should "take action urgently".
CAA rules do ban drones from congested urban areas, nuclear power plants, military sites, highsecurity prisons and airports, while elsewhere they must remain at least 50m away from any
person, building or vehicle and are not allowed to go above 122m in attitude. However there
have been calls for rules to be toughened and this week a House of Lords report called for "geofencing" to hardwire "no-fly" zones into drones. Professor David H Dunn, head of Political
Science at Birmingham University, who contributed to Sir Omand's report last year, said that the
"rapidly expanding" availability of drones posed a "major security risk". "The danger is
twofold. Firstly, criminals and terrorists could use drone technology as lookouts to observe
the Prime Minister or the Royal Family, giving them real-time intelligence on where to strike.
The Prime Minister's protection is based on the concept of security by seclusion, loitering drones
take that away. "Then there's the risk that terrorists could use a drone to deploy a weapon and

that could be as simple as spray a vapour of petroleum then igniting it to devastating effect.
Police are not geared up for that and drones are almost untraceable." His concern was echoed by
Professor Anthony Glees, from the Centre for Security and Intelligence Studies, who said he was
particularly shocked that drone flights were permitted over GCHQ. He said: "It's surprising that
at a time of considerable security anxiety we should continue to operate our national
communications centre as if we were living in the peaceful days after the Cold War. Even a small
incident there could be massively disruptive." The risk from drone was put in sharp focus this
week after French police said they were considering deploying radio-jamming devices and
water cannon to protest sensitive sites after 60 illegal flights over nuclear submarine bases,
nuclear power plants and the Elyse Palace. In Britain, the CAA is currently investigating four
serious breaches of existing drone regulation. It will not confirm the nature of the breaches,
however it is understood at least one relates to flights over central London reported last month,
while another is thought to relate to an incident last July when a drone flew within 6m of an
Airbus A320 as it landed at Heathrow Airport. A spokesman for the Metropolitan Police
Service ?said that it "works with the CAA and other policing partners to ensure that there is a
cohesive and proportionate response to the negligent, malicious or reckless use of unmanned
aerial vehicles". "When an allegation of crime involving a UAV is made, it will be thoroughly
investigated."

Some laws allow drones to be used by the police without a warrant, which the aff
cannot stop the police from doing.
Anderson, DIY Drones founder and 3D Robotics CEO, 13
[Chris, September 14, 2013, DIY Drones, Texas law bans some private use of drones,
http://diydrones.com/profiles/blogs/texas-law-bans-some-private-use-of-drones, date accessed
7/6/15, CR]
More than 40 state legislatures have debated the increasing presence of unmanned aircraft in
civilian airspace, with most of the proposals focused on protecting people from overly intrusive
surveillance by law enforcement. But Texas' law, which took effect Sept. 1, tips the scales in
police favor giving them broad freedoms to use drones during investigations and allowing them
to bypass a required search warrant if they have suspicions of illegal activity while also limiting
use of small drones by ordinary residents. "Texas is really the outlier," said Allie Bohm, an
advocacy and policy strategist at the American Civil Liberties Union.

No transparency FBI can hide drone use


Lynch, Electronic Frontier Foundation senior staff attorney, 13
[Jennifer, June 20, 2013, Electronic Frontier Foundation, Why Wont the FBI Tell the
Public About its Drone Program?, https://www.eff.org/deeplinks/2013/06/why-wontfbi-tell-public-about-its-drone-program, date accessed 7/6/15, CR]

Just yesterday, Wired broke the story that the FBI has been using drones to surveil Americans.
Wired noted that, during an FBI oversight hearing before the Senate Judiciary Committee,
FBI Director Robert Mueller let slip that the FBI flies surveillance drones on American
soil. Mueller tried to reassure the senators that FBIs drone program is very narrowly
focused on particularized cases and particularized leads. However, theres no way to
check the Director on these statements, given the Bureaus extreme lack of transparency
about its program.
EFF received these records as a result of our Freedom of Information lawsuit against the Federal
Aviation Administration (FAA) for the licenses the FAA issues to all public entities wishing to
fly drones in the national airspace. As detailed in prior posts and on our drone map, we have
already received tens of thousands of pages of valuable information about local, state and federal
agencies drone flights.
However, unlike other federal agencies, including the US Air Force, the Bureau has
withheld almost all information within its documentseven including the period of time for
which the FAAs Certificates of Authorization (COAs) were issued. As you can see from the two
examples linked belowthe first from the Air Force and the second from the FBIthe FBI is
withholding information, including something as basic as the city and state of the Bureaus point
of contact, that could in no way be expected to risk circumvention of the law (the applicable test
under FOIA, 5 U.S.C. 552 (b)(7)(E)).
The FBI has even withheld information from standard documents that all agencies file
with the FAA to support their COA applications, many of which come directly from the
drone manufacturer. (Compare, for example, the Air Forces LOST_LINK_MISSION or
AIRCRAFT_SYSTEM documents with the FBIs versions of the same documents.) This is
especially frustrating, given that, as the Washington Post noticed, at least one of the drones the
FBI is flying is a Puma. This small drone, designed by Aerovironment, is also flown by the Air
Force. And the Air Force has already released in full, the system information for the drone
including specifications, limitations, operating frequencies and camera information.
One interesting fact is that the Bureau has withheld most of the records under several
statutes and regulations related to the arms exports and the International Traffic in Arms
Regulations (ITAR). This is surprising because, although ITAR does apply explicitly to
drones, not even the US Military has claimed these statutes in withholding information
from its drone records.
Given the FBIs past abuses and the information recently revealed about how the Bureau
exploits specious interpretations of federal law to help out the NSAs spying program, we
have good reason to be concerned about the FBIs lack of transparency here. We
hope Senator Feinstein will follow up on her concerns about the FBIs apparent lack of
strictures in place to protect Americans privacy in connection to FBI drone use and demand a
full accounting of how, when, where and why the Bureau has been using drones to monitor the
public.

FBI Circumvention
FBI surveillance continues even after restrictions on its activities
Fisher, Seton Law School Associate Professor, 4
[Linda E., Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law
School, Winter 2004, Arizona Law Review, Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups, 46 Ariz. L. Rev. 621,
http://www.arizonalawreview.org/pdf/46-4/46arizlrev621.pdf, Date Accessed: 7/9/15, GJ]

The history of the FBI and other law enforcement surveillance gives scant comfort to those
engaged in lawful political and religious activities who are concerned about becoming targets of
surveillance.5 From its inception until restrictions on its activities were imposed in the mid1970sand even sometimes thereafterthe FBI regularly conducted politically motivated
surveillance, choosing targets based on their political or religious beliefs. As part of its
investigations, it compiled and widely disseminated political dossiers, engaged in warrantless
searches, and disrupted the lawful First Amendment activities of a wide array of groups opposed
to government policy.6 Local police Red Squads did the same.7 During the war in Vietnam,
the CIA, despite restriction of its mission to foreign intelligence, also conducted domestic
surveillance operations.8 Religious groups engaged in political activity were among the
targets of intelligence agency investigations.9

CIA Circumvention
CIA fights any restraints --- comes after legislators that try and reign it in
Friedersdorf, Staff writer at The Atlantic, 14
[Conor, 3/20/2014, The Atlantic, Nancy Pelosi: When Legislators Take on the CIA, 'They Come
After You'; A powerful legislator on the costs of properly overseeing the intelligence
community, http://www.theatlantic.com/politics/archive/2014/03/nancy-pelosi-when-legislatorstake-on-the-cia-they-come-after-you/284524/, Date Accessed: 7/9/2015, GJ]

House Minority Leader Nancy Pelosi's remarks in support of fellow legislator Dianne
Feinstein, who is embroiled in a dispute with the CIA, ought to be the sort of thing that alarms
everyone. After all, another powerful member of Congress claims that the spy agency she is
charged with overseeing illegitimately resists checks on its autonomy.
Here's how she put it:

"I salute Senator Feinstein. I tell you, you take on the intelligence community, you're a
person of courage. And she does not do that lightly. Not without evidence."
"Wherever the decision is, whether it's from the administration, as was the case in the Bush
Administration, to withhold information from Congress, I fought that. But you don't fight it
without a price, because they come after you, and they don't always tell the truth about it.
Now, where that's motivated from, I don't know."
"This is a matter of great seriousness, the attitude that the CIA had, to the rights of
Congress in all of this. It's pretty appalling, what is being alleged or charged."
"The administration is the custodian of intelligence information. It is not the owner."
If Feinstein were taking on ATF or the Food and Drug Administration, no one would think to
describe her as being a "person of courage." Congressional Republicans have been brutally
attacking the IRS. None of them has suggested that, as a result, IRS officials or appointed
leadership are bound to come after them.
In other words, the CIA is out of control in a way that these other agencies aren't. And the
reason this isn't considered scandalous? We've grown to expect it. There are many patriots who
serve their country in the intelligence community, Pelosi said. And presidential administrations
are partly to blame here. She is absolutely rightnone of which changes the urgent need to
rein in the CIA.

NSA Circumvention
The NSA will work to circumvent the plan historical examples prove the pattern
Lerman, Bloomberg Business Domestic Policy Affairs analyst, 14
[David, December 24, 2014, BloombergBuisiness, U.S. Spy Agency Reports Improper
Surveillance of Americans, http://www.bloomberg.com/news/articles/2014-12-24/spy-agency-torelease-reports-documenting-surveillance-errors, 7.9.2015, JM]

(Bloomberg) -- The N ational S ecurity A gency today released reports on intelligence


collection that may have violated the law or U.S. policy over more than a decade , including
unauthorized surveillance of Americans overseas communications.
The NSA, responding to a Freedom of Information Act lawsuit from the American Civil
Liberties Union, released a series of required quarterly and annual reports to the Presidents
Intelligence Oversight Board that cover the period from the fourth quarter of 2001 to the second
quarter of 2013.
The heavily-redacted reports include examples of data on Americans being e-mailed to
unauthorized recipients, stored in unsecured computers and retained after it was supposed
to be destroyed , according to the documents. They were posted on the NSAs website at around
1:30 p.m. on Christmas Eve.
In a 2012 case, for example, an NSA analyst searched her spouses personal telephone
directory without his knowledge to obtain names and telephone numbers for targeting,
according to one report. The analyst has been advised to cease her activities, it said.
Other unauthorized cases were a matter of human error, not intentional misconduct.
Last year, an analyst mistakenly requested surveillance of his own personal identifier instead
of the selector associated with a foreign intelligence target, according to another report.
Unauthorized Surveillance
In 2012, an analyst conducted surveillance on a U.S. organization in a raw traffic
database without formal authorization because the analyst incorrectly believed that he was
authorized to query due to a potential threat, according to the fourth-quarter report from 2012.
The surveillance yielded nothing.
The NSAs intensified communications surveillance programs initiated after the Sept. 11, 2001,
terrorist attacks on New York and Washington unleashed an international uproar after they were
disclosed in classified documents leaked by fugitive former contractor Edward Snowden last
year.

702 Circumvention
Section 702 fails: Loopholes in surveillance reform are justified by security claims
Ball, Guardian special projects editor & Ackerman, Guardian national security
editor, 13
[James and Spencer, August 9, 2013, The Guardian, NSA loophole allows warrantless search
for US citizens' emails and phone calls, http://www.theguardian.com/world/2013/aug/09/nsaloophole-warrantless-searches-email-calls , Accessed 7/6/15, DR]

The National Security Agency has a secret backdoor into its vast databases under a legal
authority enabling it to search for US citizens' email and phone calls without a warrant ,
according to a top-secret document passed to the Guardian by Edward Snowden.
The previously undisclosed rule change allows NSA operatives to hunt for individual
Americans' communications using their name or other identifying information. Senator
Ron Wyden told the Guardian that the law provides the NSA with a loophole potentially
allowing "warrantless searches for the phone calls or emails of law-abiding Americans".
The authority, approved in 2011, appears to contrast with repeated assurances from Barack
Obama and senior intelligence officials to both Congress and the American public that the
privacy of US citizens is protected from the NSA's dragnet surveillance programs.
The communications of Americans in direct contact with foreign targets can also be
collected without a warrant, and the intelligence agencies acknowledge that purely
domestic communications can also be inadvertently swept into its databases. That process
is known as "incidental collection" in surveillance parlance.
Wyden, an Oregon Democrat on the Senate intelligence committee, has obliquely warned for
months that the NSA's retention of Americans' communications incidentally collected and its
ability to search through it has been far more extensive than intelligence officials have stated
publicly. Speaking this week, Wyden told the Guardian it amounts to a "backdoor search"
through Americans' communications data.
"Section 702 was intended to give the government new authorities to collect the
communications of individuals believed to be foreigners outside the US, but the intelligence
community has been unable to tell Congress how many Americans have had their
communications swept up in that collection," he said.
"Once Americans' communications are collected, a gap in the law that I call the 'back-door
searches loophole' allows the government to potentially go through these communications
and conduct warrantless searches for the phone calls or emails of law-abiding Americans."

702 reform is ignored by the NSA


Sasso, National Journal technology correspondent, 14
[Brendan, April 1, 2014, National Journal, How the NSA Used a 'Loophole' to Spy on
Americans, http://www.nationaljournal.com/tech/how-the-nsa-used-a-loophole-to-spy-onamericans-20140401 , Accessed 7/6/15, DR]

Director of National Intelligence James Clapper confirmed the surveillance in a letter


responding to questioning from Sen. Ron Wyden, an Oregon Democrat. The agency spied on
the actual contents of communications without a warrantnot just "metadata" such as call
times and phone numbers.
"This is unacceptable. It raises serious constitutional questions, and poses a real threat to the
privacy rights of law-abiding Americans," Wyden and Sen. Mark Udall, a Colorado
Democrat, said in a statement.
Section 702 of the Foreign Intelligence Surveillance Act gives the NSA broad power to listen
in on phone calls and access emails. But the law covers only non-Americans located outside
of the United States.
The agency sometimes collects Americans' information as it scoops up vast amounts of data
on foreigners. In his letter to Wyden, Clapper revealed that the NSA has searched through
that database specifically looking for Americans' communications.
The statement confirms that the NSA has been taking advantage of a secret rule change
first revealed by The Guardian in August, based on documents leaked by Edward Snowden.

Loose Interpretations will allow the NSA to get around any reform, including
Section 702
Eddington, CATO Institute Civil Liberties and Homeland Security policy analyst,
14
[Patrick, November 21, 2014, The Hill, NSA reform: Not dead yet,
http://thehill.com/blogs/congress-blog/civil-rights/224923-nsa-reform-not-dead-yet , Accessed
7/6/15, DR]

The problem is that NSA reform advocates could write the tightest possible authorizing language
imaginable, and NSA's lawyers--with help from colleagues at the Department of Justice (DoJ)
and likely the Office of Legal Counsel (OLC)--would find a creative way to effectively evade
any proposed legislative restrictions, unless those restrictions were outright prohibitions, backed
up with the threat of funding cuts. And that brings me to the opportunity.

On June 19, 2014 the House passed the only real restrictions on NSA activities in the postSnowden era. They came in the form of an amendment to the Fiscal Year 2015 Defense
Department Appropriations bill (HR 4870) offered by Reps. Tom Massie (R-Ky.), Zoe Lofgren
(D-Calif.), Rush Holt (D-N.J.), Ted Poe (R-Texas) and about a dozen others from both sides of
the aisle. That two-part amendment is as simple as it is clever. First, it prohibits funding for any
searches of the FISA Amendments Act Sec. 702 database--the one containing the contents of the
emails and other stored communications of American citizens--in the absence of an ongoing
investigation against a U.S. person per other FISA authorities. Second, it prohibits the
government from spending taxpayer money to pressure technology companies into building
flawed encryption or other "back doors" into their products to facilitate U.S. government
surveillance.

PRISM Circumvention
Corporate data surveillance and government collusion fills in for PRISM -- that
turns the aff and widens the panoptic gaze of the surveillance state
Sullivan, Muhlenberg College, Media and Communication, Associate Professor, 13
[John L Sullivan, Associate Professor of Media and Communication at Muhlenberg College,
2013, Political Economy of Communication Vol 1, No 2 (2013), Uncovering the data
panopticon: The urgent need for critical scholarship in an era of corporate and government
surveillance, http://polecom.org/index.php/polecom/article/view/23/192, Accessed 7/9/15,
AMM]

Big data and the panoptic sort


In Philip K. Dicks 1956 science fiction short story, The Minority Report, crime in a futuristic
United States has been all but extinguished because the police have discovered the ability to
predict future events. In this peaceful dystopia, suspects are arrested and charged before their
crimes are even committed. While real-world law enforcement agencies cannot (yet) predict
future events, the recent revelations about the scope and nature of the National Security Agencys
(NSA) domestic digital spying program suggest they have developed some formidable tools to
locate would-be terrorists. Privacy advocates were outraged by whistleblower Edward
Snowdens revelation that the NSA, in cooperation with technology companies, routinely stored,
processed and analyzed millions of private emails, video chats, online phone calls, and internet
file transfers under the auspices of a program called PRISM. Recent news reports based upon
Snowdens documents have revealed that even encrypted emails, documents, and online banking
transactions are being regularly accessed by the NSA (Larson and Shane, 2013).
While these revelations about domestic digital wiretapping without court orders have caused a
stir in the American and global press, the privacy dangers associated with this type of data
surveillance are not new to the scholarly community. Exactly 20 years ago, communication
scholar Oscar H Gandy Jr (1993) meticulously outlined the growing threat to individual privacy
posed by the cooperation between corporate and government data gathering in a book called The
Panoptic Sort. At a time when the internet was in its infancy, when desktop computer processing
was a fraction of what it is today, and five years before the founding of Google, Gandy warned
that organizations like Equifax, TRW, and the Direct Marketing Association (DMA) were
amassing huge repositories of consumer data that were gathered passively whenever individuals
made purchases via credit cards. When these data are combined with sophisticated matching
algorithms and sorted against huge government databases like the census, he argued, they
enabled precise tracking of individuals behaviors, political views, and other sensitive private
information. The precision of such discrimination transforms the routine sorting of personal data
into a powerful form of institutional power. Building upon Foucaults (1995) seminal analysis of
disciplinary systems in society, Gandy argued that the scale of the data collection and

analysis performed by government and corporate institutions created a panopticon


wherein citizen actions would eventually become circumscribed within an ever-widening
net of personal data surveillance. The end result, he observed, is an antidemocratic
system of control that cannot be transformed because it can serve no purpose other than
that for which it was designedthe rationalization and control of human
existence( Gandy, 1993: 227).
Weve come a long way since 1993. Who could have imagined services like Facebook, Twitter,
and Tumblr that not only encourage, but actively incentivize the voluntary dissemination of
personal information online? Over the past 20 years, the centrality of the internet to the global
communications infrastructure has made it a target for the type of panoptic sorting that Gandy
described. Now that the world knows about PRISM, it is tempting to imagine that enhanced
public scrutiny will effectively limit these programs. I dont think that is likely. In fact, there
are four specific trends that foretell a greater expansion of the data panopticon:
convergence and the central place of software in social, commercial and political systems ;
the growing importance of metadata for routing, storage and sorting of information;
the global business of data storage and retrieval;
the blurring of lines between corporate and government data mining.
The convergence of digital technologies and the importance of software
In the previous era of analog technologies, such as wired telephones and reel-to-reel tapes, each
specific technology had a limited range of capabilities alongside a specific set of legal standards
to accompany their use. The Wiretap Act of 1968, for example, prohibits law enforcement from
wiretapping telephones without a court order because doing so would violate the 4th Amendment
protections of both the suspect and anyone that communicates with them. Today, there are few
discrete technologies anymore. Thanks to technological convergence, almost all forms of
communication today utilize some form of digital communication, and many do this via the
Internet. Software has now replaced specific forms of communication hardware as the nexus for
new types of digital communication, from Skype and FaceTime to emails and tweets. Creating
legal precedents for protecting individual privacy throughout this myriad of new options has
been difficult. Indeed, new options are emerging all the time, and software is extremely fungible
in functionality as it adapts quickly to new situations and uses. We lack a coherent legal regime
to counteract the interception of these communications. For example, Skype phone calls can be
protected under the existing federal wiretap laws, but emails and text messages cannot.
The rise of metadata
The expansion of online communications has generated an explosion of metadata. Metadata are
the transaction records that are generated whenever you send an email or text message. It

identifies the location from which the message was sent, when it was sent, the subject of the
message, the recipient(s) of the message, the web address of the recipient(s), and more. The
Obama Administration has argued that its domestic intelligence program complied with the law
because it simply scanned the metadata of email transactions to search for anomalies rather than
accessing the content of those emails. As a recent article in The Economist (2013) pointed out,
however, while the usefulness of metadata in an analog era was limited (hence the lower
evidentiary standards required in courts to obtain that information), today, thanks to the internet,
metadata can now provide a detailed portrait of who people know, where they go, and their
daily routines. (para. 8) Therefore, the argument that random metadata searches do not violate
users privacy becomes difficult to sustain.
The business of data storage and retrieval
The cost of storing digital data has fallen dramatically in the past 20 years, making the retention
of vast quantities of individual data routine and cheap. This incentivizes the retention of digital
information in the cloud for longer periods of time. This creates a valuable resource for
commercial data miners and law enforcement officials alike. As Wired Magazine (Copeland,
2013) outlined in its 20th anniversary edition, in 1993 a gigabyte of computer hard drive space
cost almost $1,900.00; today the same amount of digital storage space is worth four cents. This
dramatic drop in the cost of storage naturally encourages the retention of digital information by
companies and the government. This raises important privacy concerns. Mobile telephone
providers, such as Verizon, AT&T, and T-Mobile, regularly store customer metadata (the records
of all their telephone communications, including location information) for 1824 months
depending on the carrier. Companies like Google and Dropbox offer generous amounts of online
data storage (cloud computing) to users in exchange for the ability to target those consumers
with advertising and marketing messages. Companies like Facebook and Twitter profit
handsomely by mining their massive storehouses of user data for the purposes of target
marketing to specific users.
The blurred line between corporate and government data mining
Lastly, the Snowden leaks have revealed that the wall between corporate and government
data mining is paper thin. Since the revelations about the NSA became public, technology
companies like Apple and Google have publicized the fact that they have received thousands of
NSA requests for individual user data over the past 12 months. While some companies have
resisted handing over user data without a specific warrant from the government, other technology
companies have complied without challenge, worried about the implication of refusing the
federal government. Additionally, as a headline article in The New York Times (Sengupta,
2013)outlined, the NSA and FBI have, increasingly, routinely analyzed huge databases of online
communications. They have signed lucrative contracts with Silicon Valley technology
companies to perform these analyses. The New York Times also uncovered the existence of
a revolving door between technology companies and the government. For example, former
Facebook Chief Security Officer Max Kelly was hired by the NSA in 2010 (Risen and Wingfield,
2013). Such arrangements create a clear conflict of interest for the companies to whom we have

entrusted our data. For the first time, these companies may have both a legal and financial
interest in handing over sensitive personal information to government agencies. Of all of the
recent revelations about the mining of individual data, this one is perhaps the most troubling.

Cyber Surveillance Reform Circumvented


Sections of FISA allows the NSA to collect and store any encrypted datathe
Courts have sidestepped this issue in favor of factual analysis
Vagle, University of Pennsylvania Law School, Center for Technology, Innovation
and Competition, Executive Director, 14
[Jeffrey L Vagle, Lecturer in Law and Executive Director, Center for Technology, Innovation and
Competition, University of Pennsylvania Law School, 2014, Indiana Law Journal, Furtive
Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance, Lexis,
accessed 7.6.15, AM]

Hidden among the more dramatic revelations like PRISM n8 and XKeyscore n9 was a
document approved by U.S. Attorney General Eric Holder that articulated "minimization
procedures" required of the NSA under section 702 of the Foreign Intelligence Surveillance
Act of 1978 (FISA). n10 One of the provisions listed in this [*104] document applied
specifically to encrypted information and allowed the NSA to collect and keep indefinitely
any information obtained from "domestic communications"--which includes the
communications of U.S. citizens-- for "cryptanalytic , traffic analytic or signal exploitation
purposes ." n11 In other words, under these minimization procedures, the mere fact that
data is encrypted is alone enough to give the NSA the right to store that data (regardless of
its U.S. or foreign origin) and hold it for as long as it takes to decrypt it. n12
The implications that flow from this policy are stunning. The NSA is automatically treating
all electronic communications from U.S. citizens that are hidden or obscured through
encryption--for whatever reason--as suspicious , a direct descendant of the "nothing-tohide" family of privacy minimization arguments. Common arguments made in the defense of
government surveillance typically follow one of two closely related themes: "If you have nothing
to hide, you have nothing to fear" (the government's perspective), or "I have nothing to hide, so I
have no objection to government surveillance." These "nothing-to-hide" arguments and their ilk
can be superficially compelling and have been made for some time. n13 But don't we all have
something to hide? After all, as Lavrenti Beria, head of Joseph Stalin's secret police, supposedly
said, "Show me the man, and I'll find you the crime." n14 This is a rather weak response,
however, especially against a "nothing-to-hide" argument based on minimal, nonpublic
intrusions of privacy interests. Scholars and commentators have addressed the "nothing-to-hide"
argument in more depth. n15
Putting aside the fact that the NSA had been less than truthful --both to the public as well
as to other branches of government--about the existence and nature of such broad and
legally questionable surveillance programs, n16 this sort of blanket [*105] suspicion by a

government of its citizens goes far beyond the "individualized suspicion of wrongdoing"
generally required by the Fourth Amendment for a reasonable search. n17 Exceptions to the
Fourth Amendment warrant requirement have been established in the past few decades to permit
searches under specified conditions: the government may have "special needs" beyond the
scope of normal law enforcement, n18 or the government may have a foreign intelligence
surveillance exemption . n19 In this Article, I argue that neither limited exception applies here.
Furthermore, generalized domestic government surveillance programs have been anathema to
Americans from the earliest days of the nation, n20 and the use of technological methods to
achieve what the Framers would have found abhorrent n21 is feeding an accelerating
erosion of trust between the U.S. government and its people.
This Article is an effort to demonstrate how collective surveillance without a basis of suspicion
not only violates the Fourth Amendment but does so in a way that corrupts two principal
constitutional tenets--protection of individuals from undue governmental power and the mutual
trust between government and citizen that must exist in a healthy democratic society. n22
Current Fourth Amendment [*106] doctrine has, unfortunately, largely ignored these
principles in favor of a balancing test between the needs of the government and an individual's
reasonable expectation of privacy. n23 While privacy indeed emerges from these principles,
advances in surveillance-enabling technologies are rapidly making privacy a poor proxy
for protection from government power and the enhancement of mutual societal trust. The
Supreme Court's shift to a factual analysis and quantification of privacy has drawn
attention away from the consideration of fundamental constitutional values and has led to
some rather bizarre, fact-specific arguments.

Neither domestic nor international targets are immune to NSA cyberspying


expecting law to regulate it is unrealistic AND cannot control the private sector
Determann, University of California, Berkeley School of Law, professor, &
Guttenberg, former German minister of defense, 14
[Lothar Determann, teaches Internet, computer, and data privacy law at Freie Universitat Berlin,
University of California, Berkeley School of Law, and University of California, Hastings College
of the Law, and practices law as a partner with Baker & McKenzie, LLP, and Karl T. Guttenberg,
former Minister of Defense and former Minister of Economics & Technology of the Federal
Republic of Germany, Chairman and Founder of Spitzberg Partners, LLC and Distinguished
Statesman at the Center for Strategic and International Studies, Summer 2014, UC-Hastings
College of the Law, Hastings Constitutional Law Quarterly, On War and Peace in Cyberspace Security, Privacy, Jurisdiction, Lexis, accessed 7.6.15, AM]
For instance, European politicians have suggested that the "European cloud initiative" will
offer more robust privacy protection for their citizens. n60 In reality, data stored and
transmitted exclusively on European territory would not be safer from U.S. cyberspying

than it is in the United States, given the close cooperation between secret service agencies in
the UK (as a member of the so called "Five Eyes" alliance) n61 and other member states with
the U.S. government. n62 Also, the United States devotes far greater resources towards military,
intelligence, and counter-intelligence activities than European governments n63 and thus, data in
a "European cloud" could be more susceptible to cyberspying and other threats than data
on U.S. servers.
[*887] Similarly, the much-hyped (and necessary n64) EU data protection regulation cannot be
expected to address the issue either. It is focused primarily on private sector data processing
practices and most drafts continue to carve out EU, EU member states', and foreign surveillance
programs. n65 Moreover, reports suggest the regulation may probably not be implemented
before 2020. n66
The ongoing and vocal criticism of the U.S.-EU Safe Harbor program also needs to be put into
perspective. The EU and U.S. delegations that negotiated the program specifically agreed at
the outset to carve-outs for law enforcement and government data processing. n67 Neither
the EU nor individual EU member states seem [*888] able or willing to regulate their own
intelligence services in the manner they propose that the NSA be regulated. n68 If privacy
advocates amongst European politicians truly want reform, they should first focus on their own
country's intelligence gathering and sharing practices and laws. In this context, they will have to
make tough choices regarding inevitable trade-offs. n69
V. Do, Can, Should U.S. Law Offer Protection Against Spying?
For many of the same reasons laid out with respect to European data protection laws, it is
unrealistic to expect meaningful legal protection from foreign cyberspying under U.S. law.
Like European laws, U.S. law does not impose significant limitations on foreign intelligence
gathering by the U.S. government on foreign territory. n70 But, U.S. law can - and is
intended to - protect U.S. citizens against domestic spying by their own government.
The Fourth Amendment to the United States Constitution protects "the right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures." n71 Federal and state laws further protect electronic communications privacy. n72 If
law enforcement officers violate applicable laws or infringe upon an individual's civil liberties,
the government cannot use the illegally gathered evidence in a criminal proceeding. n73
Similarly, the fruits of the poisonous tree doctrine bars [*889] the admission of any evidence
gathered as a result of such violations. n74 In the wake of the controversies surrounding NSA
programs, some are questioning whether the current laws are sufficient and more
importantly, whether they are being observed. n75 A number of possible changes are worth
considering.
A. Trading Privacy for Security
The most direct response to outrage over government surveillance would be to demand that
governments discontinue or limit surveillance. Privacy advocates are demanding this, and the
U.S. government is looking at options to make surveillance operations more targeted. n76

However, at this juncture, we must remember that we still live in a dangerous world. And
because few in the United States want to completely give up on security or embrace a total
surveillance state, privacy, civil liberties, and security must be balanced to safeguard the
nation. There is no guarantee that even if the United States limits or stops surveillance,
other countries will automatically follow its lead. To the contrary, many are likely trying to
bolster their activities in an effort to match the United States. Thus, limiting U.S.
surveillance may well reduce the security of people in the United States and its allied
countries, increase their exposure to surveillance by other countries, and not increase
anyone's net privacy protections. Further, surveillance and privacy discussions cannot
remain limited to the public sector, as tech companies increasingly acquire vast amounts of
data . In a discussion about the proper balance between these competing interests, we need
to be honest about the trade-offs.

Software backdoors exacerbate cybersecurity threats, impede on privacy, and workaround any form restrictive policy
Hattem, The Hill national security contributor, 14
[Julian, Contributor to the Hill specializing in National Security, writer, correspondent, April 4th,
The Hill, Huge loopholes in new NSA policy?, http://thehill.com/policy/technology/203504critics-see-huge-loopholes-in-nsa-policy, Date Accessed: 7/6/15, ACS]

The Obama administration is looking to rein in the controversial practice of spies


exploiting software glitches, but the secrecy surrounding the reforms is getting blowback
from tech companies and privacy activists. The new policy, unveiled in response to questions
about the National Security Agencys (NSA) knowledge of the massive Heartbleed software
glitch, directs agents to tell tech companies about discovered bugs so they can be fixed instead of
keeping mum and using them for their own purposes. Activists said they were unaware of the
administrations new stance before a National Security Council spokeswoman's statement on
Friday. They said the administrations policy appears to be riddled with loopholes and
wont make the Internet any safer. This is definitely a policy that came out of the shadows,
and the fact that there are these huge loopholes in it reflects the fact that it was shaped by people
on the intelligence and law enforcement side, said Christopher Soghoian, the principal
technologist at the American Civil Liberties Union. The NSA routinely seeks and buys
information about bugs in common software code both to protect government systems from
possible flaws and to exploit them to collect information. According to reports, the mysterious
Stuxnet attack on an Iranian nuclear facility exploited four of the vulnerabilities.
The agencys use of the bugs has come under fire, with technology activists alleging that it
undermines security online. If cybersecurity is such a threat, if were so scared about the
Chinese government breaking into our companies computers and stealing secrets, why are we
not fixing the vulnerabilities? Soghoian said. It totally undermines everything the

government has said about what theyre doing about cybersecurity. Theyre making things
worse. The glitches are known as zero days, because developers have zero days to fix them
before they can be exploited. A White House review group late last year suggested that the
administration make sure detected flaws are quickly blocked, so that the underlying
vulnerabilities are patched on U.S. Government and other networks. In rare instances, U.S.
policy may briefly authorize using a Zero Day for high priority intelligence collection, following
senior, interagency review involving all appropriate departments, the group added. Since then,
the issue had largely been sidelined as debates raged over other contested aspects of the NSAs
surveillance, especially its bulk collection of records about peoples phone calls. But a
Bloomberg report accusing the agency of exploiting the Heartbleed bug in a popular encryption
technology brought the issue back to the spotlight late last week. In denying the report on Friday,
National Security Council spokeswoman Caitlin Hayden said that the administration has
reinvigorated a process of alerting companies to those flaws.
Unless there is a clear national security or law enforcement need, this process is biased toward
responsibly disclosing such vulnerabilities, she said. But the lack of any formal policy paper
or memorandum caused civil liberties advocates to worry that that exception in the policy
could be too broad. Unlike other administration efforts, such as curbing the governments
collection of peoples phone records, activists werent consulted on the new policy, they said. It
doesnt seem to change it a whole lot, said Joseph Hall, chief technologist at the Center for
Democracy and Technology. The bias toward disclosure is great, but that loophole is such that
its hard for me, without a primary document like a presidential directive or an executive order or
something to outline for anyone ... how this is going to be any different from what it is now.
That seems to allow stockpiling of stuff as long as someone makes the trivial declaration
that theres a clear national security or law enforcement need, he added. Technology
companies were also wary of the change in course. Broad exceptions for national security
and law enforcement use are too likely to be so wide as to effectively swallow the rule, and
experience has sadly demonstrated discretionary limits in this area are really no limits at
all, said Ed Black, the president and CEO of the Computer and Communications Industry
Association, in a statement. The trade group represents Google, Facebook and more than a dozen
other tech and communications companies. One of the major purposes of the NSA is to work to
protect the computers of the U.S. government and the U.S. people, he added. We hope that
the prime focus of the government will be to work with the private sector to fix problems."

Bullrun Circumvention
Encryption is incredibly common and requires multiple NSA programs that monitor
tons of infoXkeyscore is another program that uses Bullrun tactics
Buchanan, New Yorker, Science and Technology, editor, 13
[Matt Buchanan, August 15, 2013, The New Yorker, Hard to Crack: The Governments
Encryption Conundrum, http://www.newyorker.com/tech/elements/hard-to-crack-thegovernments-encryption-conundrum, accessed 7.6.15, AM]

Thats essentially what happens any time data is sent across the Internet, particularly over open,
public networks. So how do you keep your secret? With a code: when data is encrypted, it
appears, to anyone without the key to decrypt it, as an unreadable tangle of bits. Though
encryption sounds like an activity practiced solely by the utterly paranoid, its now
extremely common: Google, Microsoft, Facebook, Twitter, banks, and online stores
regularly encrypt data, both on their servers and in communications with their users, as does
any technology company with a concern for information security.
The recent revelations about the mass surveillance of digital communications by the United
States have brought fresh attention to the problem of encryption. According to the Times,
the National Security Agency sifts through the contents of what is apparently most emails and other text-based communications that cross the border to look for search terms
about identified targets. The N.S.A. has since revealed that it touches roughly 1.6 per
cent of all Internet traffic per day, which is more than Google. In a 2008 slide presentation
about its Xkeyscore surveillance program , the agency described using encryption as an
anomalous eventcause for further scrutinyon par with searching the web for
suspicious stuff. According to the Guardian, the agencys policies also allow it to retain
domestic communications if they are encrypted. In response, Lavabit, the secure e-mail
provider that Edward Snowden uses, went dark. Theyd rather not become complicit in crimes
against the American people, its founder said. Shortly afterward, Silent Circle, which provides a
range of secure communications services, announced that it, too, would shut down its e-mail
program.
But despite the N.S.A.s outmoded suspicion of people who encrypt their data, strong
encryption schemes are now pervasive, and are essentially automatic in certain contexts,
like the transmission of a username and password. Even exceptionally common keys remain
largely uncrackable, including by government agenciesthough they appear to be gaining some
ground. One of the theories about the N.S.A.s gargantuan new data center in Bluffdale,
Utah, is that it has a role in the agencys work in cracking currently unbreakable systems.

Circumvention Mechanism Alternative


Authority

Executive Order 12333


No solvency Executive Order 12333 can be used to justify the surveillance the plan
tries to curtail
Abdo, ACLU Speech, Privacy & Technology Project Staff Attorney, 14
[Abdo, September 29, 2014, ACLU Speech, Privacy, and Technology Project, New Documents
Shed Light on One of the NSA's Most Powerful Tools, https://www.aclu.org/blog/newdocuments-shed-light-one-nsas-most-powerful-tools , Accessed 7/6/15, DR]

Today, we're releasing several key documents about Executive Order 12333 that we
obtained from the government in response to a Freedom of Information Act lawsuit that the
ACLU filed (along with the Media Freedom and Information Access Clinic at Yale Law School)
just before the first revelations of Edward Snowden. The documents are from the National
Security Agency, the Defense Intelligence Agency, and others agencies. They confirm that
the order, although not the focus of the public debate, actually governs most of the NSA's
spying.
In some ways, this is not surprising. After all, it has been reported that some of the NSA's
biggest spying programs rely on the executive order, such as the NSA's interception of
internet traffic between Google's and Yahoo!'s data centers abroad, the collection of millions
of email and instant-message address books, the recording of the contents of every phone
call made in at least two countries, and the mass cellphone location-tracking program. In
other ways, however, it is surprising. Congress's reform efforts have not addressed the
executive order, and the bulk of the government's disclosures in response to the Snowden
revelations have conspicuously ignored the NSA's extensive mandate under EO 12333.
There's a key difference between EO 12333 and the two main legal authorities that have
been the focus of the public debate Section 215 of the Patriot Act and the FISA
Amendments Act, which the government relies on to justify the bulk collection of
Americans' phone records and the PRISM program. Because the executive branch issued
and now implements the executive order all on its own, the programs operating under the
order are subject to essentially no oversight from Congress or the courts. That's why
uncovering the government's secret interpretations of the order is so important. We've already
seen that the NSA has taken a "collect it all" mentality even with the authorities that are
overseen by Congress and the courts. If that history is any lesson, we should expect and,
indeed, we have seen glimpses of even more out-of-control spying under EO 12333.

Plan Ineffective Executive order 12333 is the basis for most surveillance
Joel, Office of the Director of National Intelligence civil liberties protection officer
who reports directly to Director of National Intelligence James R. Clapper, 14

[Alexander W, August 18, 2014, Politico, The Truth About Executive Order 12333,
http://www.politico.com/magazine/story/2014/08/the-truth-about-executive-order-12333110121.html, Accessed 7/6/15, DR]

In the Aug. 14 issue of the New York Times, reporter Charles Savage describes whistleblower
actions taken by former State Department employee John Napier Tye. Tye, who was the section
chief for Internet freedom in the State Departments Bureau of Democracy, Human Rights, and
Labor before stepping down in April, questioned whether the rules governing certain overseas
intelligence surveillance activities adequately protect information that intelligence agencies
incidentally collect about Americans while targeting the communications of foreign nationals
overseas. In a Washington Post op-ed on July 18, Tye pointed out that such intelligence
collection may be regulated not by the Foreign Intelligence Surveillance Act (FISA), but by
Executive Order 12333. That order, updated in 2008 by President George W. Bush, helps govern
the activities of the intelligence community.
Under EO 12333, intelligence agencies may collect, retain, and disseminate information about
Americans only in accordance with procedures approved by the Attorney General after
consultation with the Director [of National Intelligence]. Tye noted that he is not familiar with
the details of these procedures, but nonetheless said that Americans should be troubled by the
collection and storage of their communications under the executive order.
EO 12333 plays an important role in Americas intelligence oversight framework, so that, in the
words of the order, agencies execute their missions in a vigorous, innovative, and responsible
manner that is consistent with the Constitution and applicable law and respectful of the principles
upon which the United States was founded.

FISA/Executive Order 12333 Loopholes


FISA and Executive Order 12333 loopholes allow the NSA to circumvent any
restrictions on data collection, especially foreign data
Whittaker, CBS News, 14
[Zack, freelance journalist, He specializes in tech and politics, law, and security and privacy,
June 30th , CBSNews, Legal loopholes could allow wider NSA surveillance, researchers say,
http://www.cbsnews.com/feature/nsa-surveillance-exposed/, Date Accessed: 7/6/15, ACS]

An estimated 180 million user records, regardless of citizenship, were collected from Google and
Yahoo data centers each month, according to the leaked documents. The program, known as
Operation MUSCULAR, was authorized because the collection was carried out overseas and not
on U.S. soil, the researchers say. The paper also said surveillance can also be carried out across
the wider Internet by routing network traffic overseas so it no longer falls within the protection
of the Fourth Amendment. However, an NSA spokesperson denied that either EO 12333 or
USSID 18 "authorizes targeting of U.S. persons for electronic surveillance by routing their
communications outside of the U.S.," in an emailed statement to CBS News. "Absent limited
exception (for example, in an emergency), the Foreign Intelligence Surveillance Act requires that
we get a court order to target any U.S. person anywhere in the world for electronic surveillance.
In order to get such an order, we have to establish, to the satisfaction of a federal judge, probable
cause to believe that the U.S. person is an agent of a foreign power," the spokesperson said. The
report highlights a fundamental fact about Internet traffic: Data takes the quickest route possible
rather than staying solely within a country's borders. Data between two U.S. servers located
within the U.S. can still sometimes be routed outside of the U.S.
Although this is normal, the researchers warn data can be deliberately routed abroad by
manipulating the Internet's core protocols -- notably the Border Gateway Protocol (BGP),
which determines how Internet traffic is routed between individual networks; and the Domain
Name Service (DNS), which converts website addresses to numerical network addresses. If the
NSA took advantage of the loophole by pushing Internet traffic outside of the U.S., it would
have enough time to capture the data while it is outside the reach of constitutional
protection. The researchers rebuffed the NSA's statement in an email: "We argue that these
loopholes exist when surveillance is conducted abroad and when the authorities don't
'intentionally target a U.S. person'. There are several situations in which you don't 'target a
U.S. person', but Internet traffic of many Americans can in fact be affected." "We cannot
tell whether these loopholes are exploited on a large scale, but operation MUSCULAR seems to
find its legal and technical basis in them." Mark M. Jaycox, a legislative analyst at the Electronic
Frontier Foundation (EFF), said: "If you are intentionally spying on a U.S. person, the
government must go to the FISA Court," he said. "That's the way the law is supposed to operate."

Describing how the NSA says it never "intentionally collects" U.S. information, he warned the
agency's foreign data dragnet would inevitably include U.S. data.
"The NSA is an intelligence organization -- it's going to be targeting foreigners. But it's the way
that its targeting millions of foreigners, and millions of foreign communications that will
eventually pick up U.S. persons' data and information. And once that data has been collected, it
must be destroyed." "It's a question the NSA can't reconcile, so they lean heavily on saying
they never 'intentionally collect' the U.S. person information," he said A recent primer on EO
12333 written by the privacy group said the order "mandates rules for spying... on anyone within
the United States." The group also notes because the order remains inside the Executive Branch,
the Obama administration could "repeal or modify" it at will. The American Civil Liberties
Union said in a post on its website that the U.S. government interprets USSID 18 to "permit it to
sweep up Americans' international communications without any court order and with little
oversight." Patrick Toomey, staff attorney at the American Civil Liberties Union's National
Security Project, said: "Today, Americans' communications increasingly travel the globe -- and
privacy protections must reliably follow. This academic paper raises key questions about whether
our current legal regime meets that standard, or whether it allows the NSA to vacuum up
Americans' private data simply by moving its operations offshore."
He added that there should be a uniform set of laws that protect Americans' privacy regardless of
where they are in the world, and that Congressional oversight of all rules governing
surveillance is needed for comprehensive reforms . The ACLU has also filed a Freedom of
Information lawsuit with a federal court in New York, questioning "whether it [EO 12333]
appropriately accommodates the constitutional rights of American citizens and residents whose
communications are intercepted in the course of that surveillance." Although there is no direct
evidence yet to suggest the NSA has exploited this loophole, network monitoring firm Renesys
observed two "route hijacking" events in June and November 2013 that led Internet traffic to be
redirected through Belarus and Iceland on separate occasions. These events are virtually
unnoticeable to the ordinary Internet user, but the side effect is that U. S. data may be readable
by foreign governments traveling through their country's infrastructure. It also could
allow the NSA to capture that data by treating it as foreign data.
These legal and technical loopholes can allow "largely unrestrained surveillance on Americans
communications," the researchers wrote. The NSA, whose job it is to produce intelligence from
overseas targets, said for the first time in August 2013 that it derives much of its "foundational
authority" for its operations from EO 12333. Recent Snowden disclosures shed new light
on understanding the capabilities of the executive order. It was also recently revealed that
Snowden himself questioned the legal authority of EO 12333, according to one declassified
email exchange released by the Director of National Intelligence James Clapper. According to
John Schindler, a former NSA chief analyst, speaking to The Washington Post in October, the
sole aim of the NSA's "platoon" of lawyers' is to figure out "how to stay within the law and
maximize collection by exploiting every loophole." "It's fair to say the rules are less restrictive
under [EO] 12333 than they are under FISA," he added.

FISA expanded the NSA's powers allowing it to obtain foreign intelligence -- including
economic and political surveillance of foreign governments, companies, news outlets and
citizens. But the amended law in 2008 also restricted what can be collected on U.S. citizens. The
so-called "targeting" and "minimization" procedures, which remain classified but were reported
as a result of the Snowden leaks, were introduced to ensure any data inadvertently collected on
U.S. citizens from overseas would not be used in investigations. These were later criticized
following subsequent leaks which suggested the rules on collecting U.S. persons' data were
more relaxed than the statute led the public to believe. U.S. intelligence agencies can only
do so much with U.S. data, therefore they have a "strong incentive to conduct surveillance
abroad," the researchers say, because legal protections under the Fourth Amendment and
FISA do not apply outside U.S. territory. "Programs under EO 12333 may collect startling
amounts of sensitive data on both foreigners and Americans," the paper summarizes, "without
any meaningful congressional or judiciary involvement."

Foreign Intelligence Surveillance Act Authority


FISA definition of electronic communication is outdated and does not protect
citizens from intrusion
Arnbak, University of Amsterdam cybersecurity and information law researcher &
Goldberg, Boston University Computer Science professor of Computer Science, 14
[Axel Arnbak, cybersecurity and information law researcher at the Institute for Information Law,
University of Amsterdam, and Sharon Goldberg, associate professor in the Computer Science
Department at Boston University, 2014, Michigan Telecommunications and Technology Law
Review, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on
Americans by Collecting Network Traffic Abroad,
https://www.petsymposium.org/2014/papers/Arnbak.pdf, pg 329 -330, Accessed 7/6/15, AMM]

All communications surveillance operations that constitute electronic surveillance, as defined s.


1801(f) of FISA, fall within the scope of FISA (cf. 18 U.S.C. s.2511(2)(f); 50 U.S.C. s.1812(a)).
The definition has largely remained intact since 1978. To acquire the content of wired
communications, surveillance only falls within the FISA definition when authorities
intentionally target a U.S. person (s. 1801(f)(1)), or when the acquisition is conducted on U.S.
soil (s. 1801(f)(2)). Importantly, when authorities conduct targeted surveillance from abroad,
even if they know that both sender and all intended recipients are located in the U.S., then
only radio (i.e., wireless) communications fall within the FISA definition of electronic
surveillance (s. 1801(f)(3)). The FISA defi- nition only mentions communications
content, but not metadata (location, time, duration, identity of communicants, etc.),
which in itself gives rise to privacy concerns that we will not further discuss here. Relevant
for our purposes, is the observation that operations on wired communications, when conducted
abroad, only fall within the scope of FISA if they intentionally target a U.S. person.

Lack of definitions allow for legal circumvention of FISA provisions


Arnbak, University of Amsterdam cybersecurity and information law researcher &
Goldberg, Boston University Computer Science professor of Computer Science, 14
[Axel Arnbak, cybersecurity and information law researcher at the Institute for Information Law,
University of Amsterdam, and Sharon Goldberg, associate professor in the Computer Science
Department at Boston University, 2014, Michigan Telecommunications and Technology Law
Review, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on
Americans by Collecting Network Traffic Abroad,
https://www.petsymposium.org/2014/papers/Arnbak.pdf, pg330, Accessed 7/6/15, AMM]

Intentionally targeting a U.S. person constitutes electronic surveillance under FISA (s.
1801(f)(1)). However, intention and targeting are not defined in FISA, leaving the
concepts open to generous interpretation by authorities in classified targeting and
minimization procedures. Apart from providing clarity that bulk surveillance is not regarded
as intentional targeting (we discuss this further when we look at legal protections from U.S.
persons under FISA), the disclosure of these procedures has revealed two important new facts
related to surveillance operations conducted abroad. Firstly, conducting the surveillance abroad
creates the presumption that the surveillance targets a non-U.S. person [2, p. 3-4]. Secondly, the
targeting procedures do not provide any due diligence requirement or duty of care to establish
the identity of parties on either side of a communication [2, p.3-4] [3]. This implies that unless a
communicant is known to be a U.S. person, the procedures 6 consider the communicant to be a
non-U.S. person . In other words, authorities have a strong incentive to conduct surveillance
abroad: legal protections offered to U.S. persons under FISA can be circumvented, and a
more generous legal regime applies to the data collection itself .

FISA Amendments Act Authority


Efforts at curtailing surveillance end in federal circumvention, the FAA proves that
FISA is a work-around
Greenwald, The Guardian Journalist and constitutional lawyer, 13
[Glen, 18 June, The Guardian, Fisa court oversight: a look inside a secret and empty process,
http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy,
Date Accessed: 7.7.2015, JM]

Many of the reasons these claims are so misleading is demonstrated by the law itself. When
the original Fisa law was enacted in 1978, its primary purpose was to ensure that the US
government would be barred from ever monitoring the electronic communications of
Americans without first obtaining an individualized warrant from the Fisa court, which required
evidence showing "probable cause" that the person to be surveilled was an agent of a foreign
power or terrorist organization.
That was the law which George Bush, in late 2001, violated, when he secretly authorized
eavesdropping on the international calls of Americans without any warrants from that
court. Rather than act to punish Bush for those actions, the Congress, on a bipartisan basis
in 2008, enacted a new, highly diluted Fisa law the Fisa Amendments Act of 2008 (FAA )
that legalized much of the Bush warrantless NSA program.
Under the FAA, which was just renewed last December for another five years, no warrants are
needed for the NSA to eavesdrop on a wide array of calls, emails and online chats involving US
citizens. Individualized warrants are required only when the target of the surveillance is a US
person or the call is entirely domestic. But even under the law, no individualized warrant is
needed to listen in on the calls or read the emails of Americans when they communicate with a
foreign national whom the NSA has targeted for surveillance.
As a result, under the FAA, the NSA frequently eavesdrops on Americans' calls and reads
their emails without any individualized warrants exactly that which NSA defenders,
including Obama, are trying to make Americans believe does not take place. As Yale Law
professor Jack Balkin explained back in 2009.
"The Fisa Amendments Act of 2008, effectively gives the President - now President Obama the authority to run surveillance programs similar in effect to the warrantless surveillance
program [secretly implemented by George Bush in late 2001]. That is because New Fisa no
longer requires individualized targets in all surveillance programs. Some programs may be
'vacuum cleaner' programs that listen to a great many different calls (and read a great many emails) without any requirement of a warrant directed at a particular person as long as no US
person is directly targeted as the object of the program. . . .

"New Fisa authorizes the creation of surveillance programs directed against foreign persons (or
rather, against persons believed to be outside the United States) which require no
individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These
programs may inevitably include many phone calls involving Americans, who may have
absolutely no connection to terrorism or to Al Qaeda."
As the FAA was being enacted in mid-2008, Professor Balkin explained that "Congress is now
giving the President the authority to do much of what he was probably doing (illegally) before".
The ACLU's Deputy Legal Director, Jameel Jaffer, told me this week by email:
"On its face, the 2008 law gives the government authority to engage in surveillance directed at
people outside the United States. In the course of conducting that surveillance, though, the
government inevitably sweeps up the communications of many Americans. The government
often says that this surveillance of Americans' communications is 'incidental', which makes it
sound like the NSA's surveillance of Americans' phone calls and emails is inadvertent and, even
from the government's perspective, regrettable.

FISA only rubberstamps NSA activities


Greenwald, The Guardian journalist and constitutional lawyer, 13
[Glen, 18 June, The Guardian, Fisa court oversight: a look inside a secret and empty process,
http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy,
Date Accessed: 7.7.2015, JM]

The way to bring actual transparency to this process is it to examine the relevant Top Secret
Fisa court documents. Those documents demonstrate that this entire process is a fig leaf ,
" oversight" in name only . It offers no real safeguards. That's because no court monitors
what the NSA is actually doing when it claims to comply with the court-approved procedures.
Once the Fisa court puts its approval stamp on the NSA's procedures, there is no external
judicial check on which targets end up being selected by the NSA analysts for
eavesdropping. The only time individualized warrants are required is when the NSA is
specifically targeting a US citizen or the communications are purely domestic.
When it is time for the NSA to obtain Fisa court approval, the agency does not tell the court
whose calls and emails it intends to intercept. It instead merely provides the general guidelines
which it claims are used by its analysts to determine which individuals they can target, and the
Fisa court judge then issues a simple order approving those guidelines. The court endorses
a one-paragraph form order stating that the NSA's process "'contains all the required
elements' and that the revised NSA, FBI and CIA minimization procedures submitted with the
amendment 'are consistent with the requirements of [50 U.S.C. 1881a(e)] and with the fourth
amendment to the Constitution of the United States'". As but one typical example, the Guardian

has obtained an August 19, 2010, Fisa court approval from Judge John Bates which does nothing
more than recite the statutory language in approving the NSA's guidelines.
Once the NSA has this court approval, it can then target anyone chosen by their analysts,
and can even order telecoms and internet companies to turn over to them the emails, chats
and calls of those they target. The Fisa court plays no role whatsoever in reviewing whether
the procedures it approved are actually complied with when the NSA starts eavesdropping
on calls and reading people's emails.

NSAs legal restraints are frequently circumvented in technical capabilities, congress


and the executive branch audit limitations
Greenwald, The Guardian journalist and constitutional lawyer, 13
[Glen, 18 June, The Guardian, Fisa court oversight: a look inside a secret and empty process,
http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy,
Date Accessed: 7.7.2015, JM]

What is vital to recognize is that the NSA is collecting and storing staggering sums of
communications every day. Back in 2010, the Washington Post reported that "every day,
collection systems at the National Security Agency intercept and store 1.7 billion e-mails,
phone calls and other types of communications." Documents published by the Guardian last
week detail that, in March 2013, the NSA collected three billions of pieces of intelligence just
from US communications networks alone.
In sum, the NSA is vacuuming up enormous amounts of communications involving ordinary
Americans and people around the world who are guilty of nothing. There are some legal
constraints governing their power to examine the content of those communications , but
there are no technical limits on the ability either of the agency or its analysts to do so . The
fact that there is so little external oversight is what makes this sweeping, suspicion-less
surveillance system so dangerous. It's also what makes the assurances from government
officials and their media allies so dubious.
A senior US intelligence official told the Guardian: "Under section 702, the Fisa court has to
approve targeting and minimization procedures adopted by the Attorney General, in consultation
with the Director of National Intelligence."
"The targeting procedures ensure that the targets of surveillance are reasonably believed to be
non-US persons outside of the US", the official added.
"Moreover, decisions about targeting are memorialized, reviewed on a regular basis and
audited . Moreover, Congress clearly understood that even when the government is targeting
foreign persons for collection, communications of US persons may be acquired if those persons
are in communication with the foreign targets, for example as was testified to in today's hearing

when Najibullah Zazi communicated with a foreign terrorist whose communications were being
targeted under Section 702.

FISA allows broad interpretation of reform and decreases public trust, the Freedom
Act proves
Ackerman, The Guardian national security reporter and anaylist, 15
[Spencer, 1 June, The Guardian, Fears NSA will seek to undermine surveillance reform,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secretlaw, Date Accessed: 7.7.2015, JM]
Privacy advocates fear the National Security Agency will attempt to weaken new restrictions
on the bulk collection of Americans phone and email records with a barrage of creative legal
wrangles , as the first major reform of US surveillance powers in a generation looked likely
to be a foregone conclusion on Monday.
The USA Freedom Act, a bill banning the NSA from collecting US phone data in bulk and
compelling disclosure of any novel legal arguments for widespread surveillance before a secret
court, has already been passed by the House of Representatives and on Sunday night the
Senate voted 77 to 17 to proceed to debate on it. Between that bill and a landmark recent
ruling from a federal appeals court that rejected a longstanding government justification
for bulk surveillance, civil libertarians think they stand a chance at stopping attempts by
intelligence lawyers to undermine reform in secret.
Attorneys for the intelligence agencies react scornfully to the suggestion that they will stretch
their authorities to the breaking point. Yet reformers remember that such legal tactics during the
George W Bush administration allowed the NSA to shoehorn bulk phone records collection into
the Patriot Act.
Rand Paul, the Kentucky senator and Republican presidential candidate who was key to
allowing sweeping US surveillance powers to lapse on Sunday night, warned that NSA lawyers
would now make mincemeat of the USA Freedom Acts prohibitions on bulk phone records
collection by taking an expansive view of the bills definitions, thanks to a pliant, secret
surveillance court .
My fear, though, is that the people who interpret this work at a place known as the rubber
stamp factory , the Fisa [court ], Paul said on the Senate floor on Sunday.
Pauls Democratic ally, Senator Ron Wyden, warned the intelligence agencies and the Obama
administration against attempting to unravel NSA reform.
My time on the intelligence committee has taught me to always be vigilant for secret
interpretations of the law and new surveillance techniques that Congress doesnt know about,
Wyden, a member of the intelligence committee, told the Guardian.

Americans were rightly outraged when they learned that US intelligence agencies relied
on secret law to monitor millions of law-abiding US citizens . The American people are now
on high alert for new secret interpretations of the law, and intelligence agencies and the
Justice Department would do well to keep that lesson in mind.
The USA Freedom Act is supposed to prevent what Wyden calls secret law. It contains a
provision requiring congressional notification in the event of a novel legal interpretation
presented to the secret Fisa court overseeing surveillance.
After a New York Times story in 2005 revealed the existence of the bulk domestic phone
records program, attorneys for the US Justice Department and NSA argued, with the
blessing of the Fisa court , that Section 215 of the Patriot Act authorized it all along
precisely the contention that the second circuit court of appeals rejected in May.

FISA Amendments Act does not provide a sufficient framework to check NSA
surveillance plan does not overcome flaws
Arnbak, University of Amsterdam cybersecurity and information law researcher &
Goldberg, Boston University Computer Science professor of Computer Science, 15
[Axel Arnbak, cybersecurity and information law researcher at the Institute for Information Law,
University of Amsterdam, and Sharon Goldberg, associate professor in the Computer Science
Department at Boston University, 2015, Michigan Telecommunications and Technology Law
Review, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on
Americans by Collecting Network Traffic Abroad, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2460462, Accessed 6/7/15, AMM]

FISA and the FISA Court were introduced in 1978 in response to domestic surveillance
overreach and the Church Committees reform proposals.30 In 2008, Congress amended and
broadened FISA with the FISA Amendments Act (FAA).31 The FAA broadened the definition of
foreign intelligence information to include information relating to the foreign affairs of the
United States.32 With the new definition, surveillance of foreign governments, corporations,
media organizations, and citizens was explicitly allowed.33 The FAA also introduced 702,
which enables warrantless surveillance of foreign communications conducted on US soil, as long
as the operations do not intentionally target US persons.34 Ever since, authorities have not
required warrants for specific cases based on a particularized probable cause; instead, the
FISA Court issues generalized certifications for surveillance operations aimed at gathering
foreign intelligence information.35 In addition, the FISA Court has approved generalized
targeting and minimization procedures to govern the processing of data after it has
been collected. 36 These procedures are intended to ameliorate concerns about US citizens
privacy, and have remained classified until recently. Since 2005, when reports of bulk

wiretapping from the Internet backbone at an AT&T switch came to light, public awareness of
bulk surveillance operations on Americans has increased.37 Nonetheless, even after the AT&T
program was revealed, Congress passed the Protect America Act in 2007, which contained many
of the provisions adopted in the FAA just one year later.38 In late 2012, the FAA was extended
for another five years.39 Two months later, the Supreme Court denied several US organizations
legal standing in their claim that the privacy of their international communications was violated
by 702.40 In what appeared to be the final ruling on the constitutionality of 702, a 5-4
majority held that the civil society groups filing suit lacked standing because they could not
prove that their communications had actually been intercepted.41 The details of the relevant
programs remained classified.42

NSA Reinterpretation
The NSA has the ability to interpret meanings and create situations to work around
restrictions
Gershman, Wall Street Journal law reporter, 13
[Jacob Gershman, Law reporter for The Wall Street Journal, 6/7/13, The Wall Street Journal Law
Blog, FISA: A Law With Many Loopholes, http://blogs.wsj.com/law/2013/06/07/fisa-a-lawwith-many-loopholes/, accessed 7/6/15, AMM]

To find the legal authority underpinning the top-secret Prism surveillance program, we once
again turn to the Foreign Intelligence Surveillance Act.
Law Blog on Thursday wrote about the statute allowing the government to compel the
production of business records relevant to a foreign intelligence probe.
Another statute, Section 702 of FISA, provides procedures for spying on the online
communication of foreigners or groups located outside our borders.
In a statement Thursday, Director of National Intelligence James R. Clapper said Section 702
cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located
within the United States.
But the statute passed by Congress in 2008 leaves quite a bit of wiggle room, according to
legal experts. Here are some potential loopholes:
Reasonably believed: The Attorney General and the intelligence director must certify to a
special surveillance judge that targets are reasonably believed to be located outside the United
States . How certain is that? According to the Washington Post, that means a 51% confidence,
similar to the preponderance of evidence standard.
Given the scale of collection here, even if [the error rate] were only a few percent, wed still be
talking about a huge number of American communications, Julian Sanchez, a research fellow at
the Cato Institute, told Law Blog.
Also, the government doesnt have to be 51% sure that the target isnt an American citizen nor a
legal resident. The government just has to assert that its not intentionally targeting a citizen or
legal resident.
Whos the target? Theres another ambiguity around the notion of a target. Its unclear
whether NSA interprets the law to allow the government to tap into accounts belonging to
Americans as long as the surveillance is broadly directed at a foreign group, like Al Qaeda,
according to Mr. Sanchez.

Optional verifying: The targeting procedures are subject to judicial review by the Foreign
Intelligence Surveillance Court, but the court is not required to look behind the assertions made
in the certifications submitted by the attorney and the national intelligence director, according to
an analysis of the law prepared by the Congressional Research Service, a nonpartisan and
independent group that advises Congress on legal matters.
Exigent circumstances: In the absence of a court order, the attorney general and
intelligence director may also authorize targeting if they determine that exigent
circumstances exist which would cause the loss or delay of important national security
intelligence, according to the Congressional Research Service. The government has seven
days to submit the certification paperwork to the court, but it can move forward with
the spying during that week.
Theyre assuring us that there are secret procedures in place to protect privacy, but theres never
been a public evaluation of them, Michelle Richardson, legislative counsel for the American
Civil Liberties Unions Washington Legislative Office, told Law Blog. Were disinclined to take
their word for it knowing that they are doing things like collecting everybodys telephone
records.
Mr. Clapper in his statement said that information collected under Prism is among the most
important and valuable foreign intelligence information we collect, and is used to protect our
nation from a wide variety of threats.
Mr. Clapper also said in his statement that activities authorized by the law involve extensive
procedures . . . to ensure that only non-U.S. persons outside the U.S. are targeted . . .
A spokesperson for Mr. Clappers office did not immediately respond to a request seeking
comment.

Circumvention Mechanism Shift

Private Surveillance Shift


The NSA relies on third parties to do some of their investigative and legal workthe
plan cant solve because it doesnt regulate private agencies
Gallagher, Ars Technica, IT editor, 14
[Sean Gallagher, IT editor, Ars Technica, former naval officer, September 5, 2014, Ars Technica,
When NSA and FBI call for surveillance takeout, these companies deliver,
http://arstechnica.com/tech-policy/2014/09/when-nsa-and-fbi-call-for-surveillance-takeout-thesecompanies-deliver/, accessed 7.6.15, AM]

Not every Internet provider can handle the demands of a Foreign Intelligence Surveillance
Act warrant or law enforcement subpoena for data. For those companies, Zack Whittaker
reports on ZDNet, the answer is to turn to a shadowy class of companies known as trusted
third parties to do the black bag work of complying with the demands of the feds.
Under the Communications Assistance for Law Enforcement Act (CALEA), phone
companies and Internet providers can charge back the government for their efforts in
responding to warrants. AT&T charges the CIA more than $10 million per year for access to its
phone call metadata. But smaller ISPs who arent frequently hit with warrants cant afford to
keep the infrastructure or manpower on-hand to respond to requestsso they sign up with a
trusted third party capable of doing the work as an insurance policy against such requests.
Companies such as Neustar, Yaana Technologies, and Subsentio contract with smaller
providers and reap the profits from charging federal law enforcement and intelligence
agencies for the data. Neustar and Yaana are also essentially private intelligence companies,
providing large-scale data capture and analytics (though probably not on the scale of NSAs
Xkeyscore.) Neustar is also in the phone number portability business, and owns a number
of the new top level domains approved by ICANN.
As Whittaker reports, the Atlanta-based ISP Cbeyond works with Neustar to handle CALEA
requests, and Neustar contacts the ISPs counsel for permission whenever one is made. But
as a Cbeyond staffer familiar with the arrangement told Whittaker, Of what worth is our
permission when we don't even know what we're being asked to give access to?"

Massive legal and technological loopholes will allow surveillance to continue largely
unrestrained
Arnbak, Harvard Berkman Center for Internet and Society cyber law research
affiliate & Goldberg, Boston University Computer Science professor, 15

[Axel & Sharon, 2015, Michigan Telecommunications and Technology Law Review, Loopholes
for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting
Network Traffic Abroad, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2460462, accessed
7.6.2015, JM]

Although the string of revelations on surveillance operations conducted by the United States
(US) intelligence community has overloaded the general public and the media, we are only
beginning the process of precisely describing the legal and technical details behind these
operations. This multi-disciplinary Article discusses interdependent legal and technical loopholes
that US intelligence agencies could use to circumvent Fourth Amendment protections and
statutory safeguards for Americans.
There are several loopholes in current US surveillance law that allow for largely
unrestrained surveillance on Americans by collecting their network traffic abroad while not
intentionally targeting a US person. Because the US legal framework regulating intelligence
operations has not been updated to account for new technical realities, the loopholes we identify
could leave Americans Internet traffic as exposed to network surveillance and as
unprotected, from a legal perspective, as foreigners Internet traffic.
This Article aims to broaden the understanding of how technical realities of the Internet impact
US surveillance law and suggest remedies that can close the loopholes identified. This Article
focuses on surveillance operations conducted by US government agencies but does not speculate
on the extent to which the intelligence community is exploiting the loopholes identified. This
Article also does not address the morality of surveillance based on the (assumed) nationality of
Internet users.
This analysis fits into a recurring regulatory conundrum. The application of any law is,
ultimately, tied to jurisdiction. For centuries, jurisdiction has been determined primarily by
geographic borders, or the physical space that states consider sovereign territory. Because global
communication networks do not necessarily respect such borders, regulators and courts
across the globe are struggling to adapt law to this new technical reality. Transnational
surveillance (i.e., surveillance conducted from one country, directed towards users in another
country) on global communications networks presents us with one of the most urgent examples
of this conundrum.1
Although short term technical and legal solutions are available to address some of the
issues outlined in this Article, they are no panacea . In the end, safeguarding the privacy of
American Internet users requires a reconsideration of three legal principles underlying US
surveillance law . First, the geographical point of collection determines which legal regime
applies to a surveillance operation. Second, the collection of network traffic, before
processing and analysis, is not firmly protected by the Fourth Amendment of the
Constitution.

Foreign Internet Surveillance Shift


Plan ineffective NSA will still surveil US citizens through foreign means
Wilhelm, Tech Crunch, 13
[Alex, October 14, 2013, Tech Crunch, To Get Around US Law, The NSA Collects Email
Address Books And Chat Buddy Lists From Foreign Locations,
http://techcrunch.com/2013/10/14/to-get-around-us-law-the-nsa-collects-email-address-booksand-chat-buddy-lists-from-foreign-locations/ , Accessed 7/6/15, DR]

It appears that the NSA lacks Congressional authority to collect buddy lists and address book
information in the way that it currently does. As the Post rightly points out, address book data
can include physical addresses, very personal information, and more.
To get around that lack of a mandate, the NSA has agreements with non-U.S. telcos and works
with other, non-U.S. intelligence groups. So to get its hands on even more information, the
NSA avoids the constraints of its provided oversight and legal boundaries, by going to
alternative sources of the data that it wants.
So, if the NSA is willing to accept data from foreign intelligence agencies that it is not able
to collect in this case, why not in other cases as well?
The Post continues: When information passes through the overseas collection apparatus,
[an intelligence office] added, the assumption is youre not a U.S. person.' This means
that when the NSA sweeps up contact data, buddy lists, and address sets from overseas, the
same rules that keep it from collecting information on United States citizens arent likely in
play. Minimization, it would seem, would be minimal.
The phone metadata program knows who you called, when, and for how long. PRISM can
force your private information out of major Internet companies. XKeyscore can read your
email, and tracks most of what you do online. And the above program circumvents
Congressional oversight by collecting more data on U.S. citizens by merely executing that
collection abroad.

The domestic-only plan fails loopholes allow extraterritorial surveillance backdoor


Kehl, Open Technology Institute Senior Policy Analyst, 14
[Danielle, July 29, Open Technology Institute, SURVEILLANCE COSTS: THE NSA'S
IMPACT ON THE ECONOMY, INTERNET FREEDOM & CYBERSECURITY,

https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/, Date Accessed: 7.7.2015, JM]

The U.S. government has already taken some limited steps to mitigate this damage and
begin the slow, difficult process of rebuilding trust in the United States as a responsible
steward of the Internet. But the reform efforts to date have been relatively narrow,
focusing primarily on the surveillance programs impact on the rights of U.S. citizens. Based
on our findings, we recommend that the U.S. government take the following steps to address
the broader concern that the NSAs programs are impacting our economy, our foreign
relations, and our cybersecurity:
Strengthen privacy protections for both Americans and non-Americans, within the United
States and extraterritorially.
Provide for increased transparency around government surveillance, both from the government
and companies.
Recommit to the Internet Freedom agenda in a way that directly addresses issues raised by
NSA surveillance, including moving toward international human-rights based standards on
surveillance.
Begin the process of restoring trust in cryptography standards through the National Institute of
Standards and Technology.
Ensure that the U.S. government does not undermine cybersecurity by inserting
surveillance backdoors into hardware or software products.
Help to eliminate security vulnerabilities in software, rather than stockpile them.
Develop clear policies about whether, when, and under what legal standards it is permissible for
the government to secretly install malware on a computer or in a network.
Separate the offensive and defensive functions of the NSA in order to minimize conflicts of
interest.

Its a linear case turn it expands perceptions of foreign abuse


Chandler and Le, UC Davis Law Professor and Research Fellow, 15
[Anupam and Uyen, Feb 19, UC Davis School of Law, Law Review, Data Nationalism, Date
Accessed: 7.7.2015, JM]

First, the United States, like many countries, concentrates much of its surveillance efforts
abroad. Indeed, the Foreign Intelligence Surveillance Act is focused on gathering
information overseas, limiting data gathering largely only when it implicates U.S.

persons.174 The recent NSA surveillance disclosures have revealed extensive foreign
operations.175 Indeed, constraints on domestic operations may well have spurred the NSA
to expand operations abroad. As the Washington Post reports, Intercepting communications
overseas has clear advantages for the NSA, with looser restrictions and less oversight.176
Deterred by a 2011 ruling by the Foreign Intelligence Surveillance Court barring certain
broad domestic surveillance of Internet and telephone traffic,177 the NSA may have
increasingly turned its attention overseas.

Allied info sharing makes circumvention inevitable


Donohue, Georgetown University Law Professor, 2015
[Laura K, Georgetown University Law Center, Georgetown Law Review, Section 702 and the
Collection of International Telephone and Internet Content, Date Accessed: 7.7.2015, JM]

With GCHQ in mind, it is worth noting an additional exception to both FISA and Executive
Order 12,333: to the extent that it is not the United States engaged in the collection of
information, but, rather, one of our allies, rules that otherwise limit the U.S. intelligence
community may not apply . From the language of the order, it appears that the United States
may receive or benefit from other countries collection of information on U.S. citizens, where
it does not actively participate in the collection or specifically request other countries to carry out
the collection at its behest.142 In turn, the United States can provide information about
foreign citizens to their governments that their intelligence agencies, under their domestic
laws, might otherwise be unable to collect . To the extent that the programs underway are
extended to the closely allied Five Eyes (Australia, Canada, the United Kingdom, the United
States, and New Zealand), structural demarcations offer a way around the legal restrictions
otherwise enacted to protect citizen rights in each region.
[Note - *GCHQ = UK Government Communication Head Quarters*]

Data can easily be rerouted abroad so that it no longer qualifies as a domestic


surveillance operation
Arnbak, University of Amsterdam cybersecurity and information law researcher &
Goldberg, Boston University Computer Science professor of Computer Science, 14
[Axel Arnbak, cybersecurity and information law researcher at the Institute for Information Law,
University of Amsterdam, and Sharon Goldberg, associate professor in the Computer Science
Department at Boston University, 2014, Michigan Telecommunications and Technology Law
Review, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on
Americans by Collecting Network Traffic Abroad,
https://www.petsymposium.org/2014/papers/Arnbak.pdf, pg. 335, Accessed 7/6/15, AMM]

We have just argued the that collection of US persons network traffic from abroad presents
a major loophole that can be exploited to circumvent legal safeguards protecting
Americans and oversight mechanisms in other branches of Government. Put differently, the
current regulatory framework for network surveillance by intelligence agencies creates
incentives for conducting surveillance on foreign soil, regardless of whether it actually affects
American communications or not. We now discuss how the technical details of Internets core
protocols can cause traffic sent by Americans to be routed abroad, where it can be collected
under the most permissive third legal regime for network surveillance. We distinguish two
settings: (1) situations where the vagaries of Internet protocols cause 13 Americans traffic to
naturally be routed abroad, and (2) situations where Internet protocols can be deliberately
manipulated to cause Americans traffic to be routed abroad. 3.1 Why US Traffic can
Naturally be Routed Abroad. The Internet was not designed around geopolitical borders;
instead, its design re- flects a focus on providing robust and reliable communications while,
at the same time, minimizing cost. For this reason, network traffic between two endpoints
located on US soil can sometimes be routed outside the US.

The NSA doesnt comply with foreign designation requirements


Gellman, Washington Post; won 3 Pulitzer Prizes, 14
[Barton, 7/5/14, Washington Post, In NSA-intercepted data, those not targeted far outnumber
the foreigners who are, http://www.washingtonpost.com/world/national-security/in-nsaintercepted-data-those-not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8045a-11e4-8572-4b1b969b6322_story.html, Date Accessed: 7/9/15, GJ]

When NSA and allied analysts really want to target an account, their concern for U.S.
privacy diminishes. The rationales they use to judge foreignness sometimes stretch legal
rules or well-known technical facts to the breaking point.
In their classified internal communications, colleagues and supervisors often remind the analysts
that PRISM and Upstream collection have a lower threshold for foreignness standard of
proof than a traditional surveillance warrant from a FISA judge, requiring only a
reasonable belief and not probable cause.
One analyst rests her claim that a target is foreign on the fact that his e-mails are written in
a foreign language, a quality shared by tens of millions of Americans. Others are allowed to
presume that anyone on the chat buddy list of a known foreign national is also foreign.
In many other cases, analysts seek and obtain approval to treat an account as foreign if
someone connects to it from a computer address that seems to be overseas. The best

foreignness explanations have the selector being accessed via a foreign IP address, an NSA
supervisor instructs an allied analyst in Australia.
Apart from the fact that tens of millions of Americans live and travel overseas, additional
millions use simple tools called proxies to redirect their data traffic around the world, for
business or pleasure. World Cup fans this month have been using a browser extension called
Hola to watch live-streamed games that are unavailable from their own countries. The same trick
is routinely used by Americans who want to watch BBC video. The NSA also relies routinely
on locations embedded in Yahoo tracking cookies, which are widely regarded by online
advertisers as unreliable
.

Local Law Enforcement Shift


With curtailment of the NSA, law enforcement is given surveillance technology to
monitor activist groups, creating local COINTELPRO programs
Royden, Nation of Change political correspondent, 15
[Derek, 30 June 2015, TruthHour, Protest Is the New Terror: How US Law Enforcement Is
Working to Criminalize Dissent, http://www.truth-out.org/news/item/31641-protest-is-the-newterror-how-us-law-enforcement-is-working-to-criminalize-dissent, 7.7.2015, JM]

It's well established that the FBI surveilled civil rights and other activists from Martin
Luther King Jr. to leaders of the National Lawyers Guild as part of its wide ranging
COINTELPRO (counter intelligence program) during the 1960s and early 70s. The use of
planted news stories, faked communications to create dissension within activist groups,
informants to make dubious cases and even assassinations was revealed by a group of activists
called the Citizens' Commission to Investigate the FBI, who broke into a bureau office in Media,
Pennsylvania, in 1971 and found ample evidence of the agency's misdeeds. This is generally
seen as an era of terrible government overreach in the name of fighting "communism."
The problem is that the use of similar tactics has been discovered again and again in the
years since. Following the anti-globalization protests of 1999, the 9/11 attacks, and the Occupy
protests of 2011, similar strategies, enhanced by modern technology, have been ratcheted
up and deployed against an ever-increasing number of activists and political groups of all
ideological stripes as part of the even more dubious "wars" on drugs and terrorism .
Part of this is due to the fact that there simply aren't enough real threats of terrorism to justify all
the money and toys that have been given to U.S. law enforcement. Add to this the fact that
police at all levels seem eager to see potential terrorism in even the mildest forms of dissent
and you have a recipe for disaster. In one of the most recent instances, it was revealed that the
FBI has considered coordinating with local law enforcement to target the Black Lives
Matter movement .
Another story, unrelated to current anti-racist organizing, is a bizarre case out of Minneapolis in
the lead up to the Republican national convention in 2008. According to the City Pages, a Univ.
of Minnesota police officer who was the department's only officer on the local Joint Counter
Terrorism Task Force worked with an FBI Special Agent to recruit college students who acted as
paid informants at "vegan potlucks" hoping they'd discover activist plans to disrupt the city's
upcoming convention.
Extending the Long Arm of the Law
Joint Terrorism Task Forces (JTTFs), of which there are currently 104 located in cities and towns
across the United States, were created in the 1980s and greatly expanded in the aftermath of

9/11. They were set up to coordinate between diverse federal agencies and local law
enforcement, and often work in tandem with "Fusion Centers" that are supposed to collect
and analyze data related to potential terrorism.
To see how these task forces can overstep their bounds, take the case of Eric Linsker, who
police tried to arrest for allegedly trying to throw a trash can over the side of a walkway on the
Brooklyn Bridge during the large, mostly peaceful protests that erupted in New York City
following the failure to indict the officer whose choke-hold led to the death of Eric Garner. Other
protesters intervened to stop the arrest but Linkser left his bag behind which, according to
authorities, contained "his passport, three hammers, and a small amount of marijuana."
While police may have been well within their rights to track down Linsker and charge him if the
vandalism allegations were true, it's who did the arresting that is problematic: rather than the
NYPD, it was the New York JTTF that brought Linkser in, perhaps believing that the
hammers were potential instruments of terror. This should be a cause for worry, since it
means either law enforcement's definition of terrorism has become far too broad, or they
are targeting more than just terrorism .
Stingrays and the Dangers of Technology
Activists with Occupy Wall Street, and later Black Lives Matter, have relied on social networks
and technology to organize their efforts. Ubiquitous phones with video recording capacity have
revealed abuses of power by law enforcement and discredited official stories. Smart phones are
also useful during marches to inform other protesters on the fly about concentrations of police,
allowing demonstrators to change their routes to avoid confrontation.
As one "counter-terrorism expert" told the New York Post in regards to Black Lives Matter
protests in early December: "They wore me out. Their ability to strategize on the fly is something
we haven't dealt with before to this degree."
Unfortunately, like most 21st century technology, the use of smart phones by activists has
become a double-edged sword, exposing them to surveillance risks that were unimaginable
in previous eras. One such technology is Stingray, produced by Harris Technology, which
mimics a cell phone tower and allows law enforcement to pull GPS and other data from
phones within their range.
In an interesting case reported by Wired magazine, police in Erie County, NY, used the
technology 47 times in the last five years and only received the required permission from a court
once. Even in that case, "they asked for a court order rather than a warrant, which carries a
higher burden of proof... (and) mischaracterized the true nature of the tool."
The same story notes that the New York Civil Liberties Union posted documents online that
showed the FBI and local police departments had made binding agreements to keep their use of
the technology secret, even going so far as to ask courts to dismiss criminal cases in which the
use of Stingray might be revealed.

The unique moment created by anti-police brutality protests throughout the U.S. last year - and
coming on the heels of a federally coordinated effort to dismantle Occupy encampments in 2011
- revealed that federal police agencies, especially the FBI, working with local police have
directed their resources as much against protesters, dissenters and those practicing and
civil disobedience as they have against the threat represented by terrorists, whether
homegrown "lone wolves" or organized outside groups.
While the recent NSA reform bill passed in Congress represents a victory for civil liberties
and privacy advocates, there's still a ways to go. Because while the right to dissent remains
a fundamental American freedom, the fear of terrorism being openly exploited by law
enforcement has allowed police to resurrect COINTELPRO in all but name.

Law enforcement officials are frequently given NSA spying capabilities


Hamsher, US tech author and film producer, 2013
[Jane, December 9, 2013, FDL, Local Law Enforcement Using NSA Methods To Spy On
Cellphones, http://firedoglake.com/2013/12/09/local-law-enforcement-using-nsa-methods-tospy-on-cellphones/, 7.6.2015]

You are on the front lines of the War on Terror you are the target. Local and state police
are now using NSA type methods to suck up the publics cell phone data according to USA
Today. With new technologies provided either by the federal government or other vendors,
local and state police are capturing information from the public without warrants or
oversight.
The records, from more than 125 police agencies in 33 states, reveal:
About one in four law-enforcement agencies have used a tactic known as a tower dump,
which gives police data about the identity, activity and location of any phone that connects to the
targeted cellphone towers over a set span of time, usually an hour or two. A typical dump covers
multiple towers, and wireless providers, and can net information from thousands of phones.
At least 25 police departments own a Stingray, a suitcase-size device that costs as much as
$400,000 and acts as a fake cell tower. The system, typically installed in a vehicle so it can be
moved into any neighborhood, tricks all nearby phones into connecting to it and feeding
data to police. In some states, the devices are available to any local police department via
state surveillance units. The federal government funds most of the purchases, via anti-terror
grants.
Thirty-six more police agencies refused to say whether theyve used either tactic. Most denied
public records requests, arguing that criminals or terrorists could use the information to thwart
important crime-fighting and surveillance techniques.

Its a free fire zone against Americans civil liberties. So much for the Fourth Amendment.
If it was not bad enough that a shadowy government agency is listening to your phone calls and
tracking your porn and gaming habits now your neighborhood police officer is. Because,
freedom.
The idea that anyone, let alone Aaron Swartz or Barrett Brown, has been targeted for
prosecution for violating the Computer Fraud and Abuse Act (CFAA) is a joke while
literally millions of government officials are hacking innocent citizens everyday.
The surveillance state is completely out of control .

NSA transfers extra data to law enforcement agencies, activist groups will be
monitored by police instead through parallel construction
Syrmopoulos, Free Thought Project policy analyst, 2014
[Jim, December 12, 2014, EnviroNews, NSA Can Now Spy On You AND Pass Data to Local
Law Enforcement With Sketchy New House Bill - http://environews.tv/121214-nsa-can-nowspy-on-you-and-pass-to-local-law-enforcement-with-h-r-4681/, 7.7.2015, JM]

Washington, D.C. In a blatant attack on American civil liberties, on December 9 of 2014,


Congress passed a bill which grants law enforcement unlimited access to the
communications of every American , without a court order, according to Representative Justin
Amash. Amash discovered at the last minute that an amendment to section 309 had been added
to the bill , which provided for, and authorized the acquisition, retention, and
dissemination of all communications data from U.S. citizens to domestic law enforcement
agencies. He went on to label the Intelligence Authorization Act for 2015 as one of the most
egregious sections of law Ive encountered during my time as a representative. When
discovering that this legislation was scheduled for a voice vote, he went to the House floor to
demand a roll call vote instead as to force a record of each Representatives vote. The attempt to
push through a simple voice vote on this legislation raises serious questions as to why such an
important matter would be rushed to the floor in the most simplistic of manner possible. Another
factor that raises serious question is the timing of this action, as it coincides with the release of
the controversial CIA Torture Report. While it is possible the timing is strictly coincidental,
there is a strong possibility that this was intentionally done as a sleight-of-hand maneuver
to push this through when most national security watchers were focused on another pressing
matter. When Amash learned this bill was being rushed to the House floor for a vote, he asked
his legislative staff to quickly review the bill for unusual language. His staff soon realized that
there were major problems with the bill. According to Amash, this is one of the most egregious
sections of law Ive encountered during my time as a representative. It grants the executive
branch virtually unlimited access to the communications of every American. In a last ditch
effort to defeat this bill, (H.R. 4681) due to the amendments in (Sec. 309), Rep. Amash penned a

letter to his congressional colleagues to alert them to the to the dangers of this bill and to implore
them to vote NO. This is the text of the letter he sent to his fellow congressmen:
Sadly, the legislation passed 325-100. This bill will allow the NSA to continue to collect the
private communications of all Americans and codify its ability to transfer this information to
domestic law enforcement for criminal investigations. The bill now moves on to President
Obama to be signed, which seems virtually assured. While on the surface this may seem
innocuous, there is extreme likelihood that this power would be abused as shown through the
current use of parallel construction, which usurps 4th Amendment protections. Parallel
construction is a law enforcement process of building a separate evidentiary basis for a
criminal investigation used to conceal how the investigation actually began, as illegally
obtained evidence is usually inadmissible in court proceedings under the fruit of the
poisonous tree doctrine. With the revelations of Edward Snowden, for a brief time it seemed
as though the security apparatus would be reigned in from violating the civil liberties of
American citizens, but these most recent events suggests that our government hasnt gotten the
message that We the people do not want to be spied upon by our own government. When
information collected in the name of preventing terrorism can be transferred to domestic
law enforcement without a warrant, subpoena or court order of any kind, tyranny is much
closer than you think. - http://environews.tv/121214-nsa-can-now-spy-on-you-and-pass-to-locallaw-enforcement-with-h-r-4681/

FBI Shift
FBI disclosed that national security is its top priority, not law enforcementthey
cannot prove that agencies will abide to their plan.
Hudson, Foreign Policy senior reporter, 14
[John, January 5, 2014, Foreign Policy, FBI drops law enforcement as primary mission,
http://foreignpolicy.com/2014/01/05/fbi-drops-law-enforcement-as-primary-mission/, date
accessed 7/9/15, CR]
The FBIs creeping advance into the world of counterterrorism is nothing new. But quietly
and without notice, the agency has finally decided to make it official in one of its
organizational fact sheets. Instead of declaring "law enforcement" as its "primary
function," as it has for years, the FBI fact sheet now lists "national security" as its chief
mission. The changes largely reflect the FBI reforms put in place after September 11, 2001,
which some have criticized for de-prioritizing law enforcement activities. Regardless, with the
9/11 attacks more than a decade in the past, the timing of the edits is baffling some FBIwatchers.
"What happened in the last year that changed?" asked Kel McClanahan, a Washington-based
national security lawyer.
McClanahan noticed the change last month while reviewing a Freedom of Information Act
(FOIA) request from the agency. The FBI fact sheet accompanies every FOIA response and
highlights a variety of facts about the agency. After noticing the change, McClanahan reviewed
his records and saw that the revised fact sheets began going out this summer. "I think theyre
trying to rebrand," he said. "So many good things happen to your agency when you tie it to
national security."
Although a spokesman with the agency declined to weigh in on the timing of the change, he said
the agency is just keeping up with the times. "When our mission changed after 9/11, our
fact sheet changed to reflect that," FBI spokesman Paul Bresson told Foreign Policy. He
noted that the FBIs website has long-emphasized the agencys national security focus. "We
rank our top 10 priorities and CT [counterterrorism] is first, counterintel is second, cyber
is third," he said. "So it is certainly accurate to say our primary function is national
security." On numerous occasions, former FBI Director Robert Mueller also emphasized
the FBIs national security focus in speeches and statements.

Circumvention Mechanism Executive Policy

Bureaucratic Secrecy
The national security bureaucracy is enormous and powerful, yet almost entirely
classified and unnoticed
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 22, accessed 7.9.15, AM]

B. Operation
Sixty years later, sitting atop its national security institutions, an intra-governmental
network that has descended from what Truman created now manages the real work of
preventing the country from, in Achesons phrase, go[ing] wrong.128 The Washington
Posts landmark 2011 study of Trumans modern handiwork, Top Secret America ,
identified forty-six federal departments and agencies engaged in classified national
security work .129 Their missions range from intelligence gathering and analysis to warfighting, cyber-operations, and weapons development. Almost 2,000 private companies
support this work, which occurs at over 10,000 locations across America.130 The size of
their budgets and workforces are mostly classified , but it is clear that those numbers are
enormousa total annual outlay of around $1 trillion and millions of employees.131 The
nightmare of the modern state, Henry Kissinger has written, is the hugeness of the
bureaucracy , and the problem is how to get coherence and design in it.132 Coherence and
design, however, must come largely from the bureaucracy itself. Presidents can appoint only
between 3,000 and 4,000 employees in the Department of Defense and related agencies in 2004,
only 247 were political appointees.134 Several hundred policymakers, therefore, must be
drawn from the national security bureaucracy to oversee and direct it. They include, but are
not limited to, the Presidents personal assistants, approximately 175 professional staff members
of the National Security Council135the single most powerful staff in Washington.136
Among this larger group of national security policymakers that comprise the National
Security Council are careerists as well as in-and-outerspolitical appointees, academics,
analysts from think tanks, military officers, and other officials seconded from executive
agencies.
These several hundred officials comprise Americas Trumanite network. They sit at the
pinnacle of what Professor Jack Goldsmith has called Washingtons tight-knit national
security culture .137 After spending their professional lives writing what they did not sign,

finally they sign what they did not write. They are not yet driven to work in the morning by a
black car but are one step away. They are more likely to have been to Kabul than Tulsa. They
visit the hinterlands of fly-over America on holidays, if then. They seldom appear on television
and seek neither celebrity nor wealth. High school class trips do not visit their offices. Awake
at night they think about the implications of the next Stuxnet,138 not ten-year treasury yields.
Success lies in being in the big meeting, reading the key memo being part of the big
decision. The Trumanites draw little overt attention but wield immense, unnoticed power .

Signing Statements
Obama will use signing statements to reinstate restrictions he sees as important
Crouch et al., American University Politics Assistant Professor, 13
[Jeffery, Mark J. Rozell, Mitchel A. Sollenberger, George Mason University, Dean, Public Policy
and Government Affairs, University of Michigan, Political Science, Professor, December,
University of Michigan, President Obamas Signing Statements and the Expansion of Executive
Power, http://deepblue.lib.umich.edu/bitstream/handle/2027.42/100285/psq12071.pdf?
sequence=1&isAllowed=y , Date Accessed: July 8, 2015, AJ]

In a January 2013 signing statement, President Barack Obama stated that his constitutional
powers as president limited him to signing or vetoing a law outright and that he lacked the
authority to reject legislative provisions one by one. Yet he then proceeded in a nearly 1,200
word statement to pick the law apart, section by section, and to effectively challenge many
provisions by declaring that they violated his constitutional powers as commander in chief.
According to his signing statement, a provision restricting the presidents authority to transfer
detainees to foreign countries hinders the Executives ability to carry out its military, national
security, and foreign relations activities and would, under certain circumstances, violate
constitutional separation of powers principles (Obama 2013). Obama did not mention, however,
that Congress specifically authorized transfers to foreign countries as long as the secretary of
defense, with the concurrence of the secretary of state and in consultation with the director of
national intelligence, certified that the foreign government receiving the detainees was not a
designated state sponsor of terrorism and possessed control over the facility the individual would
be housed (P.L. 112-239; see Fisher 2013).
Obama also objected to a number of provisions that he claimed would violate his
constitutional duty to supervise the executive branch and several others that he said could
encroach upon his constitutional authority to recommend such measures to the Congress as I
judge necessary and expedient. My Administration will interpret and implement these
provisions in a manner that does not interfere with my constitutional authority (Obama 2013).
What the president could not block or modify through concessions or veto threats during budget
negotiations with members of Congress, he decided he could unilaterally strip from a signed bill.
Similar to his predecessor, George W. Bush, Obama suggested that he was the ultimate
decider on what is constitutional and proper. Few acts by occupants of the White House so
completely embody the unchecked presidency.

The President uses signing statements to sidestep the lawGitmo proves the
executive is not afraid to take unconstitutional action
Tumulty, Washington Post, reporter, 14
[Karen Tumulty, previously Congressional correspondent and National Political Correspondent
for Time, June 2, 2014, Washington Post, Obama circumvents laws with signing statements, a
tool he promised to use lightly, http://www.washingtonpost.com/politics/obama-circumventslaws-with-signing-statements-a-tool-he-promised-to-use-lightly/2014/06/02/9d76d46a-ea7311e3-9f5c-9075d5508f0a_story.html, accessed 7.6.15, AM]

Back when Barack Obama was a presidential candidate who boasted his background as a
professor of constitutional law, he frequently criticized President George W. Bush for what
Obama said was a clear abuse of executive power.
As president, Obama is being accused of doing the same, albeit not as frequently.
The issue at hand is his use of signing statements , official pronouncements in which a
president offers his interpretation of legislation that he is signing and in the modern era,
sometimes announces that he feels free to disregard it.
While Obama has not issued as many signing statements as Bush did, many say he employs them
in much the same manner.
The difference is really with volume, not in kind, said Kevin Evans, a Florida International
University professor who has researched the practice of presidential signing statements. Senator
Obama had a very different view than President Obama.
The latest and potentially hottest flash point involves Obamas decision over the
weekend to trade the release of Army Sgt. Bowe Bergdahl, the sole remaining U.S. military
prisoner of war, for that of five Taliban commanders who were being held at the detention
center at Guantanamo Bay, Cuba.
Current law, signed by Obama in December, stipulates that the defense secretary must
notify relevant congressional committees at least 30 days before transferring anyone from
Guantanamo Bay and provide assurances that those released would not be in a position to
again threaten the United States or its interests.
Obama did not send such a notice to Capitol Hill until Monday two days after the
detainees were sent to Qatar, where they will live for at least the next year, in circumstances
that neither the administration nor the emirate has explained publicly.
That Obama should ignore the notification provision, which was part of the 2014 National
Defense Authorization Act, is not entirely a surprise.
In the signing statement with the law, Obama declared that he thought the requirement
was potentially unconstitutional.

The executive branch must have the flexibility , among other things, to act swiftly in
conducting negotiations with foreign countries regarding the circumstances of detainee
transfers, Obama said

Turns case Signing statements undermine separation of powers, trigger


interbranch conflict, and risk increased executive unilateralism
Crouch et al., assistant professor of American politics at American University, 13
[Jeffery, Mark J. Rozell, Mitchel A. Sollenberger, George Mason University, Dean, Public Policy
and Government Affairs, University of Michigan, Political Science, Professor, December 2013,
University of Michigan, President Obamas Signing Statements and the Expansion of Executive
Power, http://deepblue.lib.umich.edu/bitstream/handle/2027.42/100285/psq12071.pdf?
sequence=1&isAllowed=y , accessed: July 8, 2015, AJ]

Signing statements become objectionable when a president attempts to transform


statutory authority and circumvent the rule of law . To be sure, a president may find that
certain provisions of legislative enactments violate executive authority or principles of separation
of powers. Such weighty issues are appropriate for resolution through a process of deliberation
and accommodation between the political branches or, if not settled in that fashion, through the
courts. However, signing statements do not, as some suggest, start a productive dialogue
(Ostrander and Sievert 2013b, 60). Instead, they invite interbranch conflict and encourage
additional acts of presidential unilateralism . From Andrew Jackson through Obamas 2009
objection to various provisions of the Supplemental Appropriations Act, signing statements have
resulted in unnecessary battles between the branches.
Members of Congress often object to signing statements because the presence of one sometimes
means that the administration is attempting to settle a policy debate without legislative input. The
proper time to exchange views is during the legislative process, which takes place before a bill is
submitted to the president to sign. Presidents often make deals with members of Congress on
legislation in order to secure its passage. In 2009, President Obama did just that. In the
process of convincing Congress to pass a funding measure for the International Monetary Fund
and the World Bank Obama agreed to allow the Congress to set conditions on how the money
would be spent and to attach a reporting requirement provision. However, the president turned
around and issued a signing statement arguing that those restrictions would interfere with
my constitutional authority to conduct foreign relations. Congress was not happy.
Representative Barney Frank (D-MA) wrote to the president and accused him of breaking his
word. The House even passed a bill that barred funding of the presidents challenges (Kelley
2012, 11-12).
Instead of encouraging dialogue and political accommodations, such actions by presidents
actually short circuit the free exchange of ideas and poison relations with Congress,

including lawmakers of the presidents own party. If a proposed statute so clearly violates
what the president views as vital constitutional principles, then he has an obligation to veto it. He
should not agree to the provisions during the legislative process and then turn around and
effectively challenge them. Not only does this approach increase distrust and promote greater
polarization on Capitol Hill, but it also goes against the text of the Constitution. Nowhere in
Article I or Article II does the Constitution provide line-item veto authority to the chief
executive. As George Washington explained, From the nature of the constitution I must approve
all the parts of a bill, or reject it in toto (Washington 1891, XII, 327). Even if a president makes
constitutional objections during the lawmaking process, such protests do not make credible his
actions of signing a bill and later challenging certain provisions through a signing statement. As
Representative Frank remarked, presidents have a legitimate right to tell us their constitutional
concerns thats different from having a signing statement. However, he explained that
Anyone who makes the argument that once we have told you we have constitutional concerns
and then you pass it anyway, that justifies us in ignoring itthat is a constitutional violation.
Those play very different roles and you cant bootstrap one into the other (Savage 2010).
Louis Fisher cuts to the core of the problem with constitutional signing statements that purport to
nullify statutory provisions. He argues that such statements encourage the belief that the law is
not what Congress puts in public law but what the administration decides to do later on.
Continuing, Fisher notes that if the volume of signing statements gradually replaces Congressmade law with executive made law and treats a statute as a mere starting point on what executive
officials want to do, the threat to the rule of law is grave (Fisher 2007, 210). We agree. It is
unilateral presidential decision making itself that in this context strikes a serious blow
against the core principles of separation of powers.

Memoranda
Presidential memoranda have replaced executive orders as executive orders gain
negative connotation
Lowande, University of Virginia, Politics, PhD candidate, 14
[Kenneth S, 2014, The Contemporary Presidency, Presidential Studies Quarterly 44, no. 4
(December), After the Orders: Presidential Memoranda and Unilateral Action, P 724, accessed
7.9.15, AM]

Analyzing memoranda issued between 1946 and 2013, I nd evidence that memoranda are
increasingly signicant, measurable outputs of executive action. Presidents have
increasingly used memoranda rather than executive orders to effect similar ends.2
Moreover, memoranda and executive orders both appear to be indications of presidential
unilateralism. Taking into account variables, which others have shown to effect the frequency of
executive orders from year to year, memoranda are positively related to their more wellknown counterpart. The observed relationships highlight the malleability of these
administrative toolswhich often have few formal, legal standards. Far from being xed,
presidents largely determine the denition of these instruments and how they ought to be
used. More specically, the increased frequency and importance of presidential memoranda
suggests changing incentive structures have contributed to a corresponding reduction in
executive orders. Presidential memoranda may be a less politically costly means of action
as public and elite awareness of executive orders have increased. Contemporary news
coverage of executive orders is ubiquitous, such that the tool immediately evokes
potentially damaging questions of imperial overreach.3 Recent events during the rst and
second terms of the Obama administration indicate that the shift between executive orders and
presidential memoranda may mirror the move from signing statements to statements of
administrative policywhich, as Crouch, Rozell, and Sollenberger (2013) note, perform
similar functions without the negative publicity associated with signing statements since the
end of the second Bush administration. The article proceeds in a few basic steps. First, I consider
presidential memoranda in the context of unilateral action theory, arguing they constitute
additional observations of the theorys outcome of interest. Second, I lay out a few basic
expectations about memoranda and executive orders designed to test the assumption that they are
used in systematically similar political contexts. Third, I provide a cursory overview of how
presidents since Jimmy Carter have used memoranda, ending with the most recent years of the
Obama presidencywhen published presidential memoranda have eclipsed executive orders in
frequency. Fourth, I run a systematic analysis of memoranda published since 1946, nding
evidence that memoranda and orders vary predictably from year to year. I then consider possible
implications for future studies of presidential documents and unilateral action, and argue that the
rise in memoranda is the result of changing political incentives associated with executive
orders.

Memoranda are used to expand the Presidents unilateral powers in emergency


management and policy-making
Lowande, University of Virginia, Politics, PhD candidate, 14
[Kenneth S, 2014, The Contemporary Presidency, Presidential Studies Quarterly 44, no. 4
(December), After the Orders: Presidential Memoranda and Unilateral Action, P 726, accessed
7.9.15, AM]

Unilateral Action Theory


As Howell and Lewis (2002) note, strategic employment of unilateral actions in the
presidents toolkit is one of the dening features of the modern presidency. Systematic
consideration of these tools began in earnest with executive orders, a literature that has now
expanded considerably (Fine and Warber 2012; Glieber and Shull 1992; Howell 2003; Mayer
1999, 2001; Mayer and Price 2002; Rudalevige 2012; Warber 2006). Mayer and others in this
area sought to reassess the former paradigm of the presidential studies literature that
[held] that presidents have limited capacity to act unilaterally(1999, 445). More recently,
scholars have branched out into signing statements (Crouch, Rozell, and Sollenberger 2013;
Kelly and Marshall 2007, 2008; Korzi 2011; Ostrander and Sievert 2013) and proclamations
(Bailey and Rottinghaus 2013;
RottinghausandMaier2007).Whilethesestudiesdorepresentanimportantsteptoward
deningthepresidentsmeansofactingbeyondinformalbargaining(whichisdifcultto observe), the
research program as a whole has yet to systematically analyze memoranda use across time. Most
surveys of the tools of presidential action leave out memoranda. Of those that do not,
typically, they are briey mentioned. Mayer (1999) writes,
The major classes of presidential policy instruments are executive orders, proclamations,
memoranda, administrative directives, ndings and determinations, and regulations. Of
these, executive orders combine the highest levels of substance, discretion, and direct
presidential involvement. (35)
While this conclusion is now standard and somewhat warranted, memoranda remain an
important component of presidential action. Since then, memoranda have been treated most
comprehensively by Cooper (2001, 2002), who has argued they are sometimes part of shell
games intended to deceive organized interests, wherein presidents issue highly visible
executive orders, only to then issue memoranda with very different policy implications .
Cooper notes a variety of other uses: to generate positive publicity , to initiate policy
change , and to manage emergencies . Most pertinent to this analysis, however, is Coopers
observation that as with other tools of presidential direct action, the precise denition of the
presidential memorandum is unclear and evolving (2002, 83). This is one explanation as to why
these memos have yet to be fully integrated into the ongoing scholarly discussion of unilateral

power. Memoranda pose signicant data collection challenges and are subject to considerable
denitional variance. However, the fact that presidential memoranda should be included in that
discussion is plainly apparent when one considers the basic points of theories of unilateral action.
Moe and Howell (1999) provide the clearest explanation of those points, writing,
Presidents have incentives to expand their institutional power , and they operate within a
formal governance structure whose pervasive ambiguitiescombined with advantages
inherent in the executive nature of the presidential jobgive them countless opportunities
to move unilaterally into new territory, claim new powers , and make policy on their own
authority. (871)
Presidents have institutional advantages vis--vis Congress that they can and do exploit to
get what they want.4 Howells (2003) work helped reframe the contemporary consideration
of presidential power by shifting attention from negotiation and persuasion (Neustadt 1960)
to the positive actions presidents take with some degree of independence.5 The literature
focusing on presidential documents, then, is concerned with measuring and counting outputs as
indications of the degree of unilateralism in each
administration.Presidentialmemorandaareavitalpartoftheseoutputs.Thesubstantive signicance of
this tool has increased, just as its issuance has become more routine. The most illustrative way to
investigate this is to consider important uses of presidential memoranda across time and
administrations. However, in order to demonstrate
systematicallythatmemorandaandexecutiveordershavebeenusedinsimilarpoliticalcontexts, I also
include a statistical consideration of presidential memoranda issued from 1946 to 2013. For that
analysis, I have two basic expectations. First, that executive orders and presidential memoranda
will be positively correlated. Increased frequency of one will lead to increased frequency of the
other. As the proceeding cases illustrate, memoranda and orders are often used in conjunction to
effect policy change. Moreover, I take these two tools to be indicators of the same underlying
phenomenon, so that the presence of one
shouldincreasethelikelihoodoftheother.Thatis,ifexecutiveordersandmemorandaare both outputs of
unilateral action, then we should expect them to be positively correlated. It is necessary to pause
to distinguish this expectation from the developmental trend I later identify. Scholars have
identied a decline in executive order use in the postwar era. Here, I nd a rise in
memoranda use over the same period. This trend is important, in that it may indicate a
transition in the types of tools presidents use to act alone. But in order to show that yearly
memoranda use exhibits patterns others have found in executive ordersa substantively
different questionI must set aside that trend. This involves a statistical adjustment
conventionally applied to trending data, which I discuss later.

Memoranda use has increased alongside a decrease in executive ordersthey are


similar but without restrictions
Lowande, University of Virginia, Politics, PhD candidate, 14

[Kenneth S, 2014, The Contemporary Presidency, Presidential Studies Quarterly 44, no. 4
(December), After the Orders: Presidential Memoranda and Unilateral Action, P 729, accessed
7.9.15, AM]

The Development of Presidential Memoranda


Presidential Memoranda have been used to perform a myriad of functions, and unlike
executive orders, no formal (or legal) requirements have been attached to their use.
Memoranda have been used to delegate authority to subordinates, make determinations
relating to existing statutes, create task forces, designate acting heads of agencies, request
agencies review decisions, order agencies to make policy in a given area, and change
administrative policy unilaterally . Cooper terms presidential memoranda, executive
orders by another name and yet unique(2002, 80). Memoranda do contain important
policy content pertinent to the study of unilateral action, such that it is often difcult to
discern the difference between memoranda and executive orders, were one to read them side
by side. By way of introduction and comparison, Figure 1 plots the number of memoranda and
executive orders over time. These memoranda were collected using compilation tables of
presidential documents, as well as the digitized Federal Register. To my knowledge, it is the rst
data set of presidential memoranda to include the entire postwar period. An additional caveat is
that this initial graph forgoes any attempt to distinguish between signicant or important
orders and memosit merely reports totals from year to year. I detail how these data were
collected and discuss my decision to retaintheaggregatetotalsinthenextsection.
Still,ifwebrieyentertaintheassumption that orders and memos contain roughly equivalent
proportions of impactful issuances, then the trend lines provide an initial conrmation that
the unilateral action literature may be enriched by including presidential memoranda.
Noticeably, the executive order count has trended downward for the past 50 years as
memoranda have increased in frequency. Experts in this area have noted the decline of
executive orders in recent years, together with the rise of alternative tools (Rudalevige
2014). It may be that the lesser known presidential memorandum has partially supplanted the
executive order. That is, unilateral action is not declining ; presidents have merely shifted the
means by which such action is taken.
Important cases of memoranda use up to the Clinton and early Bush administrations have been
dealt with in thorough detail by Cooper (2002). Among the cases that stand out prior to the
Clinton administration are Carters series of administrative review memoranda7, Ronald
Reagans hiring freeze and regulation postponement8, and George H. W. Bushs
implementation of de facto statehood for Puerto Rico.9 Clintons memoranda addressed a
variety of issues, many of them with explicit connection to the Democratic platform: privately
funded abortions at military hospitals, TitleX, federal funding of fetal transplant research, and
the importation of the RU-486 abortionpill known as Mifepristone. Famously,current Supreme
Court Justice Elena Kagan (2001) defended the Clinton administrations routine and

effective exercise of administrative discretion designed to work toward policy goals often
with memoranda as the tool of choice. Other memoranda were issued in the areas of gun
control (August 11, 1993), fair housing (January 1, 1994), immigration (February 2, 1995),
domestic violence (October 2, 1995), and air pollution (July 16, 1997). Additionally, Clinton
issued memoranda similartoCartersinternalreviews, pertaining to rule making (September
30, 1993), management reform (October 1, 1993), and streamlining the bureaucracy
(Clinton 1993). Though the goal of this study is not to provide in-depth case studies of
memoranda use, it is important to provide a few contemporary examples during the Obama
administration that substantiate this trend.

Memoranda are a less publicized, less subject to legal action version of executive
orders
Lowande, University of Virginia, Politics, PhD candidate, 14
[Kenneth S, 2014, The Contemporary Presidency, Presidential Studies Quarterly 44, no. 4
(December), After the Orders: Presidential Memoranda and Unilateral Action, P 739, accessed
7.9.15, AM]

This article began by arguing that a more comprehensive understanding of unilateral


presidential action could not be attained without inclusion of presidential memoranda. To
that end, I have shown that memoranda and executive orders have the potential to be equally
signicant. They both provide instructions to administrators in pursuance of the
presidents policy goals. Moreover, published memoranda have dramatically increased in
the last twenty years. In the most recent administration, they have been used almost
interchangeably with executive orders . Key cases of memoranda use, as well as the broader
frequency of this tool over the past 50 years indicate that memoranda may be replacing
executive orders. However, simultaneously, I have found evidence they may be indicators of
an underlying degree of unilateral action. This nding is a rst step toward understanding
what moves presidents to choose one tool over another. I argue, in the case of orders and
memoranda, contemporary movement toward published memoranda is partly a function of
increased potential costs associated with executive orders.26 Whereas executive orders have
attained signicant media coverage and have drawn litigation, presidential memoranda are
frequently overlooked by news outlets and have not been subject to direct legal action .
Moreover, the memoranda-orders dyad may parallel that of signing statements and
statements of administrative policy. Crouch, Rozell, and Sollenberger (2013) suggest the
latter may simply be signing statements by another name. Here, the movement toward the
more nebulous statements of administrative policy may be the result of negative publicity
and criticism of the Bush and Obama administrations use of signing statements
(Savage2006,2009,2010). The accumulation of this kind of media attention , together with

the potential for legal challenge , places strong incentives on presidents to nd new, more
innovative and obscure means of acting alone. In this case, the present obscurity of
presidential memoranda may allow presidents to claim credit for policy change, while
avoiding the charges of imperial overreach likely to be levied by critics. In this way, the
tools of unilateral action are somewhat endogenous to the political actors who use them.
They are not xed instruments.

Impacts

Executive Power Violence


Restricting executive only allows for new states of charismatic exception a world
post aff makes oppression and violence worse and more routine
Saas, Pennsylvania State, Communication Arts and Sciences, PhD, 12
[William Saas, 2012, Symploke, Volume 20, Numbers 1-2, pp. 65-82, Critique of Charismatic
Violence, project muse, accessed 7/9/15, AMM]

I have argued above that bureaucracy effectively functions as the hyphen in the pairing of
"liberal-democracy." It is both the means through which the state, in relatively stable
conditions, administers its monopoly on violence, and the means of mediating the tensions
inherent to the liberal-democratic paradox. It ensures the ability of the state to secure the
liberty of the individual, and facilitates a leveling of the demos to "equality before the law."
When the authority of the state is called into question by an extraordinary event, the
bureaucracy is mobilized in service of the would-be charismatic leader. Rationalization and
Enlightenment reason thus give way to irrational force, sovereign decree, and kadi justice. Over
time, the charismatic authority, whose only limits are its vision of history, become
institutionalized through rendering an office of charisma. Once this final stage is reached,
the charismatic regime of the new history achieves hegemony, and turns once again to a
form of bureaucratic ruleonly this time, with a greater presumption of executive
authority.
Charisma is the exception, the condition of the ideal sovereign decision. Under extraordinary conditions, the ideal sovereign of the liberal constitutional state will also be
possessed of a charisma appropriate to the task of framing the exception in thoughtful and
ethical ways. Eventual popular dissatisfaction with President George W. Bush's actions after
9/11 reflected recognition of his inability to embody a charisma coequal to or greater than
the exceptional event. President Bush proved incapable of re-birthing the exception in
sufficiently convincing ways, of effectively convincing his audience that he was suited to the
task he himself marked out. Importantly, President Bush's rhetorical failures did not reverse the
policies he had brought to bear under the charismatic/exceptional conditions following 9/11.
Publicity is the enemy of the charismatic leader in the state of exception. Secrecy and
suppression are the main tools for his success.
Under President Bush, the executive branch capitalized on the disaster of 9/11 in two important
ways: first, through the attempt to clear space in the Middle East for market expansion, to be
facilitated by erecting "democratic" governments pliable to market manipulation; second, and
related, through the creation of a massive bureaucratic-military apparatus immune to traditional
democratic safeguards against the concentration and abuse of state power. Under the pretense
of the defense of the U.S. state, Congress [End Page 79] authorized the Bush administration
to invent and mobilize a national security bureaucracy that functions effectively as a state

of its own, complete with its own restricted alternative geography and enclosed discourses.
The purpose of this extreme bureaucratic apparatus is, purportedly, the defense of the U.S.
from threats against its interests. What it does in fact is underwrite the exceptional violence
called for by its president and his administration.
The continuation of President Bush's legacy of mass-violations of international human rights
law was not a foregone conclusion in 2008. The election of Barack Obama reflected
collective American desire for "change" to an adequately charismatic sovereign up to the task
of absorbing the exception (which had, over the previous eight years, been seriously
compounded). That this hope was never realized is not surprising, especially when considered
against what Weber called the "charisma of office." Since at least the Reagan administration,
the U.S.' executive-sovereign apparatus had not been oriented to normalizing the
exception; instead, it became premised on the anticipation of opportunities for what Naomi
Klein has called "disaster capitalism," a mode of governance premised on literally
capitalizing on (and, in several cases, facilitating) mass trauma and catastrophe.
Who will save us from our charismatic leaders?

Executive Power Turns Case


Expansive presidential war powers are pervasive focusing on particular instances
of abuse obscures analysis of the national security apparatus and its underpinnings
turns the case.
Saas, Penn State Communication PhD, 12
[William O., Project Muse, Nebraska University Press, Critique of Charismatic Violence, pg
67-69, Date Accessed: 7.9.2015, JM]

The September 11, 2001 terrorist attacks in New York, Pennsylvania, and Virginia
precipitated the development of a new lexicon for exceptional violence. Enemy combatant,
indefinite detention, enhanced interrogation, high value targets, black sites,
extraordinary rendition, predator drones, and hellfire missiles are but a small
representative sample of the novel phraseology invented in the wake of the attacks to describe
the bellicose praxis of the U.S. war on terror. Though this novel lexicon early comprised the
avant-garde of the Bush administrations rhetoric of retaliation, little work was required to
integrate the language and its attendant practices into the more overt grammar of
preemptive warfare codified in the United States National Security Strategy of 2002
(colloquially, the Bush Doctrine) and executed in Iraq. One decade and several extralegal
limited kinetic operations later, President Barack Obamawho campaigned on a pledge to
dissolve the regime of secrecy and coercion represented by Bushera counterterrorism
routinely supplements the new war lexicon with ever more expansive interpretations of
executive prerogative. Continuation of the most far-reaching of these new extensions of power
the until recently secret drone-assassination program that resulted in the targeted killing of a
U.S. citizen in Yemen in September of 2011is all but assured now by the confluence of
enhanced measures against transparency and bi-partisan political approval (Wilson and Cohen
2012). Meanwhile, the next stage in the evolution of post-9/11 warfare threatens to be of the
preventive kind with Iran (Greenwald 2012).
The new war lexicon is one symptom of the unprecedented expansion of executive power
following the attacks of September 11. Such executive power was accompanied immediately
by the development of a new vehicle for its manufacture and delivery, a sprawling executive
bureaucracy that, early on, Vice President Dick Cheney referred to as the dark side of the new
war and which journalists Dana Priest and William Arkin have called Top Secret America
(2010). According to Priest and Arkin, Top Secret America comprises some 1,271 government
agencies and 1,931 private companies that individually work on programs related to
counterterrorism, homeland security and intelligence in about 10,000 locations across the
United States. This massive bureaucracy is populated by a workforce of over 854,000 civil
servants with top-secret security clearances, inclusive of janitorial staff. Its agency locations
occupy a total of over 17 million square feet of U.S. real estate, in spaces ranging from a three
billion dollar techno-fortress in Maryland to commercial suites in small-town industrial malls

across the suburban U.S. Its activities include domestic wiretapping, international e-mail
monitoring, and myriad other forms of cultivating intelligence under the aegis of
national security. The whole of this sprawling apparatusclose to one million personnel,
Yottabytes1 of server space for storing endless streams of domestic and international
intelligence, and the paramilitary technologies required to mobilize these elements against
those deemed the enemyfalls within the administrative purview of the executive branch
of U.S. government.
Hidden in plain sight: a sprawling bureaucracy designed to justify and deliver military violence
clothed in the new war lexiconto the world. How might one critique this massive network of
violence that has become so enmeshed in our contemporary geo-socio-political reality? Is there
any hope for reversing the expansion of executive violence in the current political climate,
in which the President enjoys minimal resistance to his most egregious uses of violence ?
How does exceptional violence become routine? Answers to these broad and difficult questions,
derived as they are from the disorientingly vast and hyper-accelerated retrenchment of our
current political situation, are best won through the broad strokes of what Slavoj iek calls
systemic critique. For iek, looking squarely at interpersonal or subjective violences
(e.g., torture, drone strikes), drawn as we may be by their gruesome and immediate appeal,
distorts the critics broader field of vision. For a fuller picture, one must pull ones critical
focus back several steps to reveal the deep, objective structures that undergird the spectacular
manifestations of everyday, subjective violence (iek 2008, 1-2). Immediately, however, one
confronts the limit question of ieks mandate: how does one productively draw the
boundaries of a system without too severely dampening the force of objective critique?
For practical purposes, this essay leaves off discussion of neoliberal economic domination, vital
as it may be to a full accounting for the U.S. latest and most desperate expressions of state
solvency. Offered instead is a critique of the organizational violence of the U.S. executive
bureaucratic apparatus, an apparatus called into being by charismatic decree, made banal
through quasi-legal codification, and guaranteed by popular disinterest. Considered also will be
the peculiar, if also somewhat inevitable, continuity of the apparatuss growth under the
Obama administration. Candidate Obamas pledge to transparency may now seem an example
of truly mere campaign rhetoric, but the extent to which his presidency has exceeded that of
George W. Bush in terms of exceptional violence bears some attention. The central difference
between the presidencies of Bush and Obama, I suggest, has been the discursive means by which
their respective administrations have cultivated an image of charismatic rule.
This essay proceeds in three steps. I begin by outlining a recent case of subjective violence, the
assassination of Anwar al-Awlaki by drone strike, and then pull back to reveal the structural
support for that strike. In the second section, taking Max Weber as my guide, I argue that
bureaucratic domination is both the derivative speech act of, and the logic that
underwrites, the violence of the modern liberal-democratic state. Under stable conditions,
the state bureaucracy facilitates the hegemony of abstract, depersonalized, and mechanical
Enlightenment legal-rationalismwhat Foucault called liberal governmentalityby
maintaining relative equilibrium between liberal autonomy and distributive justice among the

citizenry. In other words, modern bureaucracy effectively mediates the two poles, liberty and
equality, that comprise what political theorists have called the liberaldemocratic paradox
(Mouffe 2009). When an event is framed as threatening to strip the state of its rhetorical power,
however, the bureaucratic apparatus becomes the crucible for what I identify in the third
section, with additional help from Carl Schmitt and Giorgio Agamben, as charismatic
domination, or the rhetorical exploitation of a vulnerable population by a sovereign decider.
Under these conditions, the state bureaucracy becomes a kind of vanishing mediator (Jameson
1988, 25-27), its energies redirected for exclusive and singular usage by the exceptionalcharismatic sovereign. In the perpetual state of exception, the democratic paradox becomes
subordinate to sovereign claims to total and indivisible control over the legitimate use of
force. I conclude by outlining what I perceive as the best chances for stemming the growth of the
national security bureaucracy, namely, relentless publicity.

Surveillance State Impact - Totalitarianism


The surveillance state will cause genocide and extinction
Saul, Ecosocialist Horizons, Author, Editor, and Founder, 15
[Quincy, 3/23/15, Truth Out, The Four Horsemen of the Apocalypse, http://www.truthout.org/opinion/item/29664-the-four-horsemen-of-the-apocalypse, Accessed 7/7/15, GJ]

Surveillance States: 1984 has arrived, only 30 years after Orwell predicted. The revelations
brought to us by Chelsea Manning, Julian Assange and Edward Snowden show us a world
in which everything is under surveillance. Julian Assange has written with great eloquence
about the death of civil society overseen by the surveillance state. (1) Today in the United
States alone there are more than 5 million people working under security clearances - more
than the population of Norway. The mirror image of this army of spies is the enormous number
of people in prison, including more African Americans under state control than there were slaves
prior to the Civil War.
This is the last stage of the state, the totalitarianism that is the last gasp of every totality.
The surveillance state has the capacity for not only genocide, but also extinction: It is
capable of repressing and destroying the revolutionary movements that still have hope to
fight for life.
The surveillance state rides the pale horse of the apocalypse, representing death.
It is difficult to interpret our times without reference to myths and prophecy. As Elias Capriles
has written, the chickens of all the world's cultures and histories have come home to roost:
Like a scientific sorcerer's apprentice, we have created technological Golems and Babels who
have immersed us in extreme confusion, and confronted us with the infernal punishments of
Prometheus, Sisyphus and Tantalus, bringing us to the edge of our own annihilation. (2)
We are witnessing an end times to the capitalist system. As Marx predicted in the most
concise way, the enemy of capital is capital. But since this is not comprehensible to the
majority of those too invested in the capitalist life-world to understand the contradiction, we are
at an impasse of unconsciousness, just when we need to be most awake.

The hidden bureaucracy may be shocking, but its ubiquitous and dangerous
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,

National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 110, accessed 7.9.15, AM]

To many, inculcated in the hagiography of Madisonian checks and balances and oblivious of the
reach of Trumanite power, the response to these realizations will be denial. The image of a
double national security government will be shocking. It cannot be right. It sounds of
conspiracy, a state within, and other variations on that theme. The old notion that our
Government is an extrinsic agency, Bagehot wrote, still rules our imaginations.603 That
the Trumanite network could have emerged in full public view and without invidious intent
makes its presence all the more implausible. Its existence challenges all we have been taught.
There is, however, little room for shock. The pillars of Americas double government have
long stood in plain view for all to see. We have learned about significant aspects of what
Bagehot describedfrom some eminent thinkers. Max Webers work on bureaucracies
showed that, left unchecked, the inexorability of bureaucratization can lead to a polar
night of icy darkness in which humanitarian values are sacrificed for abstract
organizational ends.604 Friedrich Hayeks work on political organization led him to
conclude that the greatest danger to liberty today comes from the men who are most
needed and most powerful in government, namely, the efficient expert administrators
exclusively concerned with what they regard as the public good .605 Eric Fromms work
on social psychology showed how people unconsciously adopt societal norms as their own to
avoid anxiety-producing choices, so as to escape from freedom.606 Irving Janiss work on
group dynamics showed that the greater a groups esprit de corps, the greater the danger that
independent critical thinking will be replaced by groupthink, which is likely to result in irrational
and dehumanizing actions directed against out-groups.607 Michael Reismans work on
jurisprudence has shown how de facto operational codes can quietly arise behind publicly
embraced myth systems, allowing for governmental conduct that is not approved openly by the
law.608 Mills 1956 work on power elites showed that the centralization of authority among
officials who hold a common world view and operate in secrecy can produce a military
metaphysic directed at maintaining a permanent war economy .609 One person familiar
with Mills work was political scientist Malcolm Moos, the presidential speechwriter who five
years later wrote President Eisenhowers prophetic warning.610 In the councils of
government, Eisenhower said, we must guard against the acquisition of unwarranted
influence, whether sought or unsought, by the military-industrial complex . The potential
for the disastrous rise of misplaced power exists and will persist.611 Bagehot anticipated
these risks. Bureaucracy, he wrote, is the most unimproving and shallow form of
government,612 and the executive that commands it the most dangerous.613 If it is left
to itself, he observed, without a mixture of special and non-special minds, decisional
authority will become technical, self-absorbed, self-multiplying .614 The net result is
responsibility that is neither fixed nor ascertainable but diffused and hidde n,615 with

implications that are beyond historical dispute. The most disastrous decisions in the twentieth
century, in Robert Dahls words, turned out to be those made by authoritarian leaders freed
from democratic restraints.616

The disguised republic of security officials cannot be controlled by formal


institutions of government nor external checksboth simply legitimize the empire
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 109, accessed 7.9.15, AM]

VI. Conclusion
U.S. national security policy has scarcely changed from the Bush to the Obama
Administration. The theory of Walter Bagehot explains why. Bagehot described the
emergence in 19th-century Britain of a disguised republic consisting of officials who
actually exercised governmental power but remained unnoticed by the public, which
continued to believe that visible, formal institutions exercised legal authority.601 Dual
institutions of governance, one public and the other concealed, were referred to by Bagehot
as double government .602 A similar process of bifurcated institutional evolution has
occurred in the United States, but in reverse: a network has emerged within the federal
government that exercises predominant power with respect to national security matters. It
has evolved in response to structural incentives rather than invidious intent, and it consists
of the several hundred executive officials who manage the military , intelligence ,
diplomatic, and law enforcement agencies responsible for protecting the nations security.
These officials are as little disposed to stake out new policies as they are to abandon old ones.
They define security more in military and intelligence terms rather than in political or
diplomatic ones.
Enough examples exist to persuade the public that the network is subject to judicial,
legislative, and executive constraints . This appearance is important to its operation, for the
network derives legitimacy from the ostensible authority of the public, constitutional
branches of the government. The appearance of accountability is, however, largely an
illusion fostered by those institutions pedigree, ritual, intelligibility, mystery, and

superficial harmony with the networks ambitions. The courts, Congress, and even the
presidency in reality impose little constraint. Judicial review is negligible ; congressional
oversight dysfunctional ; and presidential control nominal . Past efforts to revive these
institutions have thus fa llen flat. Future reform efforts are no more likely to succeed,
relying as they must upon those same institutions to restore power to themselves by
exercising the very power that they lack. External constraintspublic opinion and the
pressare insufficient to check it. Both are manipulable , and their vitality depends
heavily upon the vigor of constitutionally established institutions, which would not have
withered had those external constraints had real force. Nor is it likely that any such constraints
can be restored through governmental efforts to inculcate greater civic virtue , which
would ultimately concentrate power even further. Institutional restoration can come only
from an energized body politic. The prevailing incentive structure, however, encourages the
public to become less, not more, informed and engaged.

Constitution Impact
Constitution sets rules for appropriate action---decision rule
Levinson, University of Virginia Law Professor, 2K
[Daryl J., Spring 2000, University of Chicago, Making Government Pay: Markets, Politics, and
the Allocation of Constitutional Costs, Lexis, p.3, Date Accessed: 7/9/15, ACS]

Extending a majority rule analysis of optimal deterrence to constitutional torts requires


some explanation, for we do not usually think of violations of constitutional rights in terms
of cost-benefit analysis and efficiency. Quite the opposite, constitutional rights are most
commonly conceived as deontological side-constraints that trump even utility-maximizing
government action . n69 Alternatively, constitutional rights might be understood as serving
rule-utilitarian purposes. If the disutility to victims of constitutional violations often exceeds
the social benefits derived from the rights-violating activity, or if rights violations create longterm costs that outweigh short-term social benefits, then constitutional rights can be justified
as tending to maximize global utility, even though this requires local utility-decreasing
steps. Both the deontological and rule-utilitarian descriptions imply that the optimal level
of constitutional violations is zero; that is, society would be better off, by whatever
measure, if constitutional rights were never violated.

Constitutionalism checks back the worst transgressions and revitalizes civil support
Cole, University of Georgetown, Law Center, Professor, 12
[David, constitutional law, national security, and criminal justice at Georgetown University Law
Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the
New York Review of Books. He has been published widely in law journals and the popular press,
including the Yale Law Journal, California Law Review, Stanford Law Review, New York
Times, Washington Post, The New Republic, Wall Street Journal, and Los Angeles Times He is
the author of seven books, Georgetown University, Where Liberty Lies: Civil Society and
Individual Rights After 9/11, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?
article=2129&context=facpub, p.1261-1265, Date Accessed: 7/9/15, ACS]

If a robust civil society is essential to healthy constitutionalism, then constitutional


protections of civil society, in particular the First Amendment, may be as important as the
formal separation of powers. In this sense, the post-September-11 decade can be read as a
vindication of Vincent Blasis classic vision of the First Amendments checking value.308
Blasi argued that one of the central values of free speech is precisely its instrumental ability
to hold official power in check by calling it to public account.309 But of course it is not the

First Amendment itself that calls power to account. The First Amendment creates a safe space for
civil society to act, but it is civil society itself that is the living embodiment of this checking
value.310
The First Amendment is the lifeblood of civil society. For civil society organizations to
flourish, they must have the freedom to criticize the government; to organize themselves as
associations; to appeal to the citizenry for support, both financial and ideological; and to
collaborate with other groups as a means of furthering their ends.311 In this light, three
developments since September 11 should be of concern. First, while direct attacks on speech
have not been a central feature of the war on terror, free speech remains vulnerable, especially
for some. By and large, since 9/11, we have not seen the sort of direct punishment of speech that
characterized the governments response to anti-war activists during World War I or Communist
sympathizers in the McCarthy era. Maintaining those freedoms is an important value in itself, but
also has substantial instrumental benefits, inasmuch as a free civil society may act as a critical
check on executive abuses of other rights. Accordingly, an appreciation of the role of civil
society in making the Constitution work should underscore the central importance of preserving
First Amendment protection for such organizations speech and associational activities.
In this light, three developments since September 11 should be of concern. First, while direct
attacks on speech have not been a central feature of the war on terror, free speech remains
vulnerable, especially for some. By and large, since 9/11, we have not seen the sort of direct
punishment of speech that characterized the governments response to anti-war activists during
World War I or Communist sympathizers in the McCarthy era. Maintaining those freedoms is an
important value in itself, but also has substantial instrumental benefits, inasmuch as a free civil
society may act as a critical check on executive abuses of other rights. Accordingly, an
appreciation of the role of civil society in making the Constitution work should underscore
the central importance of preserving First Amendment protection for such organizations
speech and associational activities. 312 However, the governments aggressive targeting of
Muslim communities in the United States, including the use of pretextual immigration charges,
informants, and undercover provocateurs, has had a profound chilling effect on that communitys
freedom to engage in criticism of the government.313 While this targeting does not directly
affect the ability of non-Muslim and non-Arab individuals and organizations to criticize
government overreaching, the Arab and Muslim community, as the target of virtually all of the
overreaching, is the most important source of information.314 Immigrants are especially
vulnerable because the byzantine immigration code affords wide discretion for selective
enforcement and the Supreme Court has ruled that even selective enforcement based on
otherwise protected associations is no bar to deportation proceedings.315
Second, Congress and the President have criminalized speech and association when engaged in
with or on behalf of organizations that the government has designated as terroristregardless
of the otherwise peaceful and lawful character of the individuals speech or association. Federal
law broadly empowers the executive to designate domestic as well as foreign groups as
terrorist, and makes it a crime to provide such groups with any material support, or to
engage in any transaction with them, including offering them any service.316 Both material

support and service are defined sufficiently broadly as to include pure speech, and neither
requires any nexus between the content of the speech and any terrorist conduct.317 Thus, these
laws make it a crime to engage in speech advocating only human rights and the peaceful
resolution of conflict, when done for or with designated groups.318 In Holder v.
Humanitarian Law Project, the Obama administration successfully established that speech
advocating only political ideas and lawful means of achieving political ends could be
made criminal without transgressing the First Amendment.31
For all practical purposes, these laws resurrect the principle of guilt by association that was so
widely employed during the McCarthy era.320 As the McCarthy era waned, the Supreme Court
ruled that the Constitution precludes the imposition of guilt for association with a proscribed
group absent proof that an individual had the specific purpose of furthering its illegal ends.321
The material support law does not criminalize membership or association as such, but it
effectively does just that by making it a crime to do anything that one would do as a member or
associate of a group. Under current law, one has a constitutional right to be a member of a group
the government has designated terrorist, but has no right to pay dues, volunteer services, or
advocate even for peaceful, lawful reform on the groups behalf.322 316. The material support
laws have effectively rendered the right of association a meaningless formality. The fact that this
restriction on political freedom is selectively targeted at groups officially disfavored by the
government makes the law even more suspect from a First Amendment standpoint. The views of
such groups, and of their supporters, could well be particularly relevant from a checking
standpoint, as they are most likely to be the victims of the governments overreaching. The
material support laws sweeping criminalization of virtually any speech or associational
activity in coordination with officially disfavored groups has its most chilling effects on
those groups and individuals from whom we most need to hear.
Third, and more generally, the doctrinal approach the Supreme Court employed in Holder v.
Humanitarian Law Project, the Courts first post- 9/11 case pitting free speech and association
against national security claims, appears to dilute substantially constitutional protection for
precisely the speech that is most important to checking government abuse in this sphere. The
Court in Humanitarian Law Project acknowledged that, as applied to plaintiffs speech
advocating human rights and peace, the material support ban was a content-based prohibition
triggering the First Amendments heightened scrutiny.323 Exceedingly few laws survive such
scrutiny, which ordinarily requires the government to establish that prohibiting the specific
speech at issue is necessary to further a compelling state interest.324 The government must
substantiate its assertions with evidence, and show that there are no more narrowly tailored
means to achieve its ends.325 Yet in Humanitarian Law Project, the Court hypothesized
justifications for the statute that the government itself had never even advanced, and then upheld
the statute on that basis without any evidence to substantiate its speculations.326 Thus, it
reasoned that teaching a group how to advocate for human rights might permit it to engage
in harassment by filing such claims; that advising a group on paths toward peace might
allow the group to use peace negotiations as a cover to re-arm itself; and that even if none
of these immediate negative results arose , assisting the group in lawful activities might

burnish its legitimacy, which it could then use to raise support for more terrorist
activities.327 The Court never demanded any evidence that advocacy of peace and human rights
had ever had such effects, or that criminalizing such speech was necessary or narrowly tailored
to fight terrorism. Instead, the Court stressed that in the area of national security and foreign
relations, it had to defer to the political branches.328 323. Humanitarian Law Project, 130 S. Ct.
at 2724. Yet as the government itself had not even advanced many of these purported
justifications, the Court in essence deferred to its own speculation. If such deferential strict
scrutiny is to be the standard for judging future restrictions on speech defended in the name of
national security or foreign relations, the First Amendment is unlikely to be much of a bulwark
against censorship in times of crisis.
The central checking role that First Amendment freedoms played in the restoration of the
rule of law after September 11 should reinforce the importance of prohibiting guilt by
association, whether it appears in the form of material support or a direct prohibition
on membership. It should make us more sensitive to the chilling effects of overly aggressive
targeting of the Muslim community. And it should lead the courts to adopt a more truly
skeptical stance toward content-based restrictions on speech justified in the name of national
security. The fact that civil society groups in the United States did feel free to criticize the
governments overreaching in the wake of September 11 indicates that the culture of political
freedom here remains strong. But neither the political branches nor the judiciary have given
sufficient emphasis to the importance of maintaining political freedom as a checking force in
times of crisis.

Civil society constitutionalism key to demoacratic ideals


Cole, University of Georgetown, Law Center, Professor, 12
[David, constitutional law, national security, and criminal justice at Georgetown University Law
Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the
New York Review of Books. He has been published widely in law journals and the popular press,
including the Yale Law Journal, California Law Review, Stanford Law Review, New York
Times, Washington Post, The New Republic, Wall Street Journal, and Los Angeles Times He is
the author of seven books, Georgetown University Law Center, Where Liberty Lies: Civil
Society and Individual Rights After 9/11,
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2129&context=facpub,
p.1254-1256, Date Accessed: 7/9/15, ACS]

If pressure from civil society contributed to the restoration of legality in the decade after
September 11, it is essential for constitutional theorists to pay closer attention to how that
pressure works, and in particular, to the effect of civil society on constitutionalism and
human rights. I have argued above that the surprisingly robust post-9/11 checks on the
executive branch can be attributed neither to law in the formal sense, nor to ordinary politics.

One cannot understand the transformation without considering the role played by civil
society groups committed to constitutional and human rights. Constitutional theory has
traditionally looked to the Constitution itself and the separation of powers, especially
judicial review, for the enforcement of legal limits on government power. But the post-9/11
experience suggests that a robust civil society dedicated to constitutional and human rights may
be as important as the more formal elements of separation of powers in checking executive
abuse. At the same time, there is a complex interrelationship between the informal power of civil
society and more formal legal constraints. Legal disputes and claims provide the focal point of
many of these groups activities, but their activities are by no means limited to seeking
injunctive relief in court. They also invoke legal claims in the informal sphere of civil
discourse, calling on government officials, elites, and the population at large to adhere to
the commitments reflected in the Constitution and human rights instruments.
Some constitutional theorists have begun to criticize American constitutional law and
scholarship for its near-exclusive focus on courts.285 They argue that courts are inherently
conservative institutions with severely limited remedial capabilities, and that even when
they happen to issue rights-protective decisions, those decisions may spark backlash that
does more harm than good. At the same time, they maintain, excessive focus on courts as the
enforcers of constitutional rights makes the other branches of government and the people at large
less likely to take responsibility themselves to effectuate the Constitution. So-called popular
constitutionalism argues that we must take the Constitution away from the courts, and
empower and inspire the people themselves and/or their representatives to take on a more
affirmative constitutional role. 286
The focus on constitutionalism outside the courts builds upon an important truth; namely that, as
Learned Hand noted in 1944, liberty lies in the hearts of men and women.287 But popular
constitutionalisms prescription is flawed. The Constitution is designed to constrain us, in
recognition that the people themselves and their representatives will be tempted to disregard
long-term commitments to fundamental values when those values conflict (as they often will)
with short-term popular preferences. To take the Constitution away from the courts and assign
its enforcement to Congress, the President, or the people themselves, is to ask the fox to guard
the henhouse. In a fundamental sense, then, popular constitutionalism is a contradiction in
terms.288
In what they have termed democratic constitutionalism, Robert Post and Reva Siegel have
sought to take the insights of popular constitutionalism seriously, but without discounting or
denigrating the role of courts.289 They acknowledge that courts play a central role in
enforcing constitutional protections against majoritarian pressures. 290 But they also insist
that the authority of the Constitution depends on its democratic legitimacy, upon the
Constitutions ability to inspire Americans to recognize it as their Constitution. 291 As
such, they see a role for both courts and the people, and argue that popular reactions to
constitutional decisions, worryingly described by other scholars as backlash, should be viewed
positively as expressing the desire of a free people to influence the content of the
Constitution.292 As they put it, [b]acklash can promote constitutional solidarity and

invigorate the democratic legitimacy of constitutional interpretation.293 Both popular


and democratic constitutionalism recognize a central paradox of constitutional and human
rights in a democracy: namely, that those rights are designed to check the force of popular
opinion and ordinary politics, but, as Learned Hand noted, they are effective only to the extent
that the people are committed to them. How does constitutional law check politics if it is
ultimately dependent upon political commitment? Thus, Post and Siegel seek to avoid the
contradiction of popular constitutionalism by focusing instead on the interaction between
popular political movements and judicial decisions about constitutional meaning.

Civic engagement key to bolstering constitutional protections


Cole, University of Georgetown, Law Center, Professor, 12
[David, constitutional law, national security, and criminal justice at Georgetown University Law
Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the
New York Review of Books. He has been published widely in law journals and the popular press,
including the Yale Law Journal, California Law Review, Stanford Law Review, New York
Times, Washington Post, The New Republic, Wall Street Journal, and Los Angeles Times He is
the author of seven books, Georgetown University Law Center, Where Liberty Lies: Civil
Society and Individual Rights After 9/11,
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2129&context=facpub,
p.1265-1266, Date Accessed: 7/9/15, ACS]

Our survival as a constitutional democracy turns not only on a written constitution and the
separation of powers, but on a vibrant civil society dedicated to reinforcing and defending
constitutional values. Perhaps the most important implication of this observation is not
theoretical or doctrinal, but practical. As citizens, it is our obligation to get engaged in the
struggle for constitutional and human rights. Without such engagement, the Constitution
is unlikely to fulfill its promise . In a sense, the Constitution is not self-executing. It can, of
course, be invoked directly in court without congressional adoption. But in a more
fundamental sense, the sense referred to by Learned Hand, there will not be much left to
invoke unless there is a culture of respect for constitutional principles. And that culture is of
our own making. It cannot be guaranteed by a document, nor by the commitments of framers
long dead, nor by the formal separation of powers, but only by the active civic engagement of
human beings.
We typically think of civic obligations as consisting of quasi-official actions directly related
to governance: voting, serving on juries, paying taxes, and in extreme situations, serving in
the military. More broadly speaking, an ethic of volunteering and civic engagement
celebrates involvement in parent-teacher associations, neighborhood groups, religious
communities, and charitable organizations. As Robert Putnam and others have shown, all such
engagement is important to the vibrancy and health of a society.

But the engagement that civil society constitutionalism identifies as essential has a more
particular focus, on constitutionalism itself . Groups like the ACLU, the Center for
Constitutional Rights, and the Bill of Rights Defense Committee are defined by their
commitment to such rights. But they are only the most obvious opportunities for engagement.
Civil society offers a broad range of ways in which individuals may become involved in
constitutional discourseby attending lectures or demonstrations; participating in ad hoc groups
focused on issues of rights; writing letters to the editor, blogs, or op-eds; teaching ones children;
or debating with ones neighbors. There are an almost infinite variety of ways to engage with
constitutionalism. But organized collective endeavors, with existing rights groups or through the
creation of new ones, are probably the most effective. Joining a group defined by its commitment
to constitutional and human rights is itself a check on ones own temptations to short-circuit
rights, or to waver in ones attention or commitment to rights. The collective not only magnifies
the impact that an individual might have, but also helps to hold individuals to their commitments.
Thus, civil society constitutionalism is not just a direction for scholarship, or a
justification for constitutional doctrine, but a pragmatic directive to citizens: get involved
in the defense of your Constitution, or you may find it wanting when it is needed most.

Constitutional rights key to rule of law


Cole, University of Georgetown, Law Center, Professor, 12
[David, constitutional law, national security, and criminal justice at Georgetown University Law
Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the
New York Review of Books. He has been published widely in law journals and the popular press,
including the Yale Law Journal, California Law Review, Stanford Law Review, New York
Times, Washington Post, The New Republic, Wall Street Journal, and Los Angeles Times He is
the author of seven books, Georgetown University Law Center, Where Liberty Lies: Civil
Society and Individual Rights After 9/11,
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2129&context=facpub,
p.1266-1267, Date Accessed: 7/9/15, ACS]

Learned Hands assertion that as long as liberty lies in the hearts of men and women . . . it needs
no constitution, no law, no court to save it, simultaneously captures an essential truth and
overstates its case. It is true that without a culture that values constitutional rights, formal
legal protections are likely to be largely unavailing. But it is not quite true that when such a
culture exists, it needs no constitution, no law, no court to save it. The Constitution and
the courts play a critical role in inculcating, reinforcing, and implementing the culture of
the rule of law. They remind us of the values we hold in highest esteem. Court cases can
serve as focal points for debating the application of these enduring constitutional values to
current conditions. And courts can and often do enforce constitutional rights where the
political branches would not.

Left out of Judge Hands equation altogether, however, and largely ignored by constitutional
theorists before and since, is the role of civil society. Like government officials, the people at
large will often fall short of constitutional ideals; that is one of the principal reasons that we have
a Constitution in the first place. But, as the decade since September 11 suggests, civil society
organizations dedicated to defending constitutional rights can play a critical role in checking
abuse, reinforcing and developing constitutional meaning, and ensuring that liberty lies in the
hearts of men and women. Where the executive, the legislature, and the judiciary often
compromised rights after September 11, civil society organizations stood up to defend those
rights. They helped to inculcate and reinforce a culture of legality, and provided a critically
important voice for rule-of-law values. Absent that voice, it is far from clear that legality
would have been restored to the extent that it was, or that the Supreme Courts opinions in
the military detention and trial cases would have been as strong as they were. Liberty must
lie in the hearts of the people, but civil society can play an especially important part in
keeping it alive there. In the end, Hand is correct that the responsibility lies with us, but an
important mechanism for fulfilling that responsibility is political association, or civil society, in
defense of constitutional rights. The past decade suggests that a political culture attuned to
the values of constitutional and human rights, fostered by a robust civil society, can
effectively check official abuse, even of the most powerful government in the world.

Constitutional values key to long-term protections for minorities


Cole, University of Georgetown, Law Center, Professor, 12
[David, constitutional law, national security, and criminal justice at Georgetown University Law
Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the
New York Review of Books. He has been published widely in law journals and the popular press,
including the Yale Law Journal, California Law Review, Stanford Law Review, New York
Times, Washington Post, The New Republic, Wall Street Journal, and Los Angeles Times He is
the author of seven books, Georgetown University Law Center, Where Liberty Lies: Civil
Society and Individual Rights After 9/11,
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2129&context=facpub,
p.1245-1247, Date Accessed: 7/9/15, ACS]

While they are overly skeptical about law, Posner and Vermeule are unrealistically romantic
about the constraining force of majoritarian politics. The political checks they identify
consist solely of the fact that Presidents must worry about election returns, and must
cultivate credibility and trust among the electorate.245
First, and most fundamentally, while the democratic process is well designed to protect the
majoritys rights and interests, it is poorly designed to protect the rights of minorities, and
not designed at all to protect the rights of foreign nationals, who have no say in the political
process. There are several reasons to doubt that these political realities are sufficient to guard

against executive overreaching. 246 In times of crisis, the executive nearly always selectively
sacrifices the rights of foreign nationals, often defending its actions by claiming that they do
not deserve the same rights that we do.247
Second, the ability of the political process to police the executive is hampered by secrecy. Much
of what the executive does, especially in times of crisis, is secret,AT and even when some aspects
of executive action are public, its justifications often rest on grounds that are assertedly secret.
To say the law is superfluous because we have elections is to relegate foreign nationals, and
minorities generally, to largely unchecked abuse. 248 Courts and Congress have at least
some ability to pierce that veil and to insist on accountability. Absent legal rights, such as
those created by the Freedom of Information Act, the general public has virtually no ability
to do so.249
Third, the electoral process is a blunt-edged sword. Presidential elections occur only once
every four years, and congressional elections every two years. Congressional elections will
often involve an unpredictable mix of local and national matters, and there is little reason
to believe they will concentrate on executive overreaching. Presidential elections also
inevitably encompass a broad range of issues, most of which will have nothing to do with
security and liberty. Elections are therefore unlikely to be effective at addressing specific
abuses of power. Voters concerns about abstract institutional issues such as executive
power may clash with their interests on the substantive merits of particular issues, such as
whether to use military force in support of Libyan rebels. There is no guarantee that citizens
will separate these issues in their minds, and no reason to believe that if they do so, they will
favor abstract institutional concerns over specific policy preferences at the ballot box.
Fourth, the political process is notoriously focused on the short term, while constitutional
rights and separation of powers generally serve longterm values.250 It was precisely
because ordinary politics tend to be shortsighted that the framers adopted a constitutional
democracy. The Constitution identifies those values that society understands as important
to preserve for the long term, but knows it will be tempted to sacrifice in the short term.251
Thus, there is little evidence in fact that majoritarian politics played a significant checking role in
the aftermath of 9/11, or that such politics would generally be a sufficient checking force in times
of crisis. And more generally, there is little reason to believe that political checks will be
sufficient to restrain presidential abuse. The story is infinitely more complicated. As I have
sought to illustrate here, in the aftermath of 9/11, the interplay of law, politics, and culture,
framed and prompted by civil society organizations, was critical to rendering effective
constitutional and international legal checks. If ordinary politics were sufficient to protect
such values, we would not need a constitution in the first place.

Corporate Shift Bad Authoritarianism


Focusing on government surveillance without tackling corporate data collection
locks in place corporate domination and authoritarianism
Giroux, McMaster University Cultural Studies Professor, 14
[Henry A, 10 February, Truthout, Totalitarian Paranoia in the Post-Orwellian Surveillance
State, http://www.truth-out.org/opinion/item/21656-totalitarian-paranoia-in-the-post-orwelliansurveillance-state, Date Accessed: 7.9.2015, JM]

The surveillance state with its immense data mining capabilities represents a historical rupture
from traditional notions of modernity with its emphasis on enlightenment, reason, and the social
contract. The older modernity held up the ideals of justice, equality, freedom, and democracy,
however flawed. The investment in public goods was seen as central to a social contract that
implied that all citizens should have access to those provisions, resources, institutions, and
benefits that expanded their sense of agency and social responsibility. The new modernity and
its expanding surveillance net subordinates human needs, public goods, and justice to the
demands of commerce and the accumulation of capital, at all costs. The contemporary
citizen is primarily a consumer and entrepreneur wedded to the belief that the most
desirable features of human behavior are rooted in a "basic tendency towards competitive,
acquisitive and uniquely self-interested behavior which is the central fact of human social
life."23
Modernity is now driven by the imperatives of a savage neoliberal political and economic
system that embrace what Charles Derber and June Sekera call a "public goods deficit" in
which "budgetary priorities" are relentlessly pushed so as to hollow out the welfare state and
drastically reduce social provisions as part of a larger neoliberal counter revolution to lower the
taxes of the rich and mega-corporations while selling off public good to private interests.24
Debates about the meaning and purpose of the public and social good have been co-opted by a
politics of fear, relegating notions of the civic good, public sphere, and even the very word
"public" to the status of a liability, if not a pathology.25 Fear has lost its social connotations
and no longer references fear of social deprivations such as poverty, homelessness, lack of health
care, and other fundamental conditions of agency. Fear is now personalized, reduced to an
atomized fear that revolves around crime, safety, apocalypse, and survival. In this instance, as the
late Harvard economist John Kenneth Galbraith once warned, modernity now privileges "a
disgraceful combination of 'private opulence and public squalor.' "26 This is not surprising given
the basic elements of neoliberal policy, which as Jeremy Gilbert indicates, include the:
privatization of public assets, contraction and centralization of democratic institutions,
deregulation of labor markets, reductions in progressive taxation, restrictions on labor
organization, labor market deregulation, active encouragement of competitive and
entrepreneurial modes of relation across the public and commercial sectors.27

Under the regime of neoliberal capitalism, the expansion of government and corporate
surveillance measures become synonymous with new forms of governance and an
intensification of material and symbolic violence.28 Rather than wage a war on terrorists, the
neoliberal security state wages a war on dissent in the interest of consolidating class power. How
else to explain the merging of corporate and state surveillance systems updated with the
most sophisticated shared technologies used in the last few years to engage in illicit
counterintelligence operations , participate in industrial espionage29 and disrupt and attack
pro-democracy movements such as Occupy and a range of other nonviolent social movements
protesting a myriad of state and corporate injustices.30 This type of illegal spying in the interest
of stealing industrial secrets and closing down dissent by peaceful protesters has less to do with
national security than it has to do with mimicking the abuses and tactics used by the Stasi in East
Germany during the Cold War. How else to explain why many law-abiding citizens "and those
with dissenting views within the law can be singled out for surveillance and placed on wideranging watch lists relating to terrorism."31
Public outrage seems to disappear, with few exceptions, as the state and its corporate allies do
little to protect privacy rights, civil liberties and a culture of critical exchange and dissent. Even
worse, they shut down a culture of questioning and engage in forms of domestic terrorism. State
violence in this case becomes the preferred antidote to the demanding work of reflection,
analysis, dialogue and imagining the points of views of others. The war against dissent waged by
secret counterintelligence agencies is a mode of domestic terrorism in which, as David Graeber
has argued, violence is "often the preferred weapon of the stupid."32
The war against dissent waged by secret counterintelligence agencies is a mode of domestic
terrorism in which, as David Graeber has argued, violence is "often the preferred weapon of the
stupid."
Modernity in this instance has been updated, wired and militarized. No longer content to
play out its historical role of a modernized panopticon, it has become militarized and a
multilayered source of insecurity, entertainment and commerce. In addition, this new stage
of modernity is driven not only by the need to watch but also the will to punish. Phone calls,
emails, social networks and almost every other vestige of electronic communication are now
being collected and stored by corporate and government organizations such as the NSA and
numerous other intelligence agencies. Snowden's exposure of the massive reach of the
surveillance state with its biosensors, scanners, face recognition technologies, miniature
drones, high speed computers, massive data mining capabilities and other stealth
technologies made visible "the stark realities of disappearing privacy and diminishing
liberties."33 But the NSA and the other 16 intelligence agencies are not the only threat to
privacy, freedom and democracy. Corporations now have their own intelligence agencies
and data mining offices and use these agencies and new surveillance technologies largely
to spy on those who question the abuses of corporate power . The emergence of fusion
centers exemplifies how power is now a mix of corporate, local, federal and global
intelligence agencies, all sharing information that can be used by various agencies to stifle
dissent and punish pro-democracy activists. What is clear is that this combination of gathering
and sharing information often results in a lethal mix of anti-democratic practices in which
surveillance now extends not only to potential terrorists but to all law-abiding citizens. Within

this sinister web of secrecy, suspicion, state-sanctioned violence and illegality, the culture of
authoritarianism thrives and poses a dangerous threat to democratic freedoms and rights.
It also poses a threat to those outside the United States who, in the name of national security, are
subject to "a grand international campaign with drones and special operations forces that is
generating potential terrorists at every step."34 Behind this veil of concentrated power and
secrecy lies not only a threat to privacy rights but the very real threat of violence on both a
domestic and global level.

Corporate surveillance outweighs government reform masks more insidious


surveillance
Giroux, McMaster University Cultural Studies Professor, 14
[Henry A, 10 February, Truthout, Totalitarian Paranoia in the Post-Orwellian Surveillance
State, http://www.truth-out.org/opinion/item/21656-totalitarian-paranoia-in-the-post-orwelliansurveillance-state, Date Accessed: 7.9.2015, JM]

Everything that moves is monitored, along with information that is endlessly amassed and
stored by private and government agencies. No one, it seems, can escape the tentacles of the
NSA or the spy agencies that are scouring mobile phone apps for personal data and intercepting
computer and cellphone shipments to plant tracking devices and malware in them.11
Surveillance is now global, reaching beyond borders that no longer provide an obstacle to
collecting information and spying on governments, individuals, prominent politicians,
corporations and pro-democracy protest groups. The details of our daily lives are not only
on full display but are being monitored, collected and stored in databanks waiting to be
used for commercial, security or political purposes . At the same time, the right to privacy
is eagerly given up by millions of people for the wonders of social networking or the varied
seductions inspired by consumer fantasies. The loss of privacy, anonymity and confidentiality
also has had the adverse effect of providing the basis for what Bauman and David Lyons call
the undemocratic process of "social sorting," in which different populations are subject to
differential treatment extending from being protected by the state to being killed by drone attacks
launched under the auspices of global surveillance and state power.12
Privacy is no longer a principled and cherished civil right. On the contrary, it has been
absorbed and transformed within the purview of a celebrity and market-driven culture in
which people publicize themselves and their innermost secrets to promote and advance their
personal brand. Or it is often a principle invoked by conservatives who claim their rights to
privacy have been trampled when confronted with ideas or arguments that unsettle their notions
of common sense or their worldviews. It is worth repeating that privacy has mostly become
synonymous with a form of self-generated, nonstop performance - a type of public relations
in which privacy makes possible the unearthing of secrets, a cult of commodified
confessionals and an infusion of narcissistic, self-referencing narratives, all of which serve

to expand the pleasure quotient of surveillance while normalizing its expanding practices
and modes of repression that Orwell could never have imagined. Where Orwell's characters
loathed the intrusion of surveillance, according to Bauman and Lyons, today
We seem to experience no joy in having secrets, unless they are the kinds of secrets likely to
enhance our egos by attracting the attention of researchers and editors of TV talk shows, tabloid
front pages and the....covers of glossy magazines.Everything private is now done,
potentially, in public - and is potentially available for public consumption; and remains
available for the duration, till the end of time, as the internet 'can't be made to forget' anything
once recorded on any of its innumerable servers. This erosion of anonymity is a product of
pervasive social media services, cheap cell phone cameras, free photo and video Web hosts, and
perhaps most important of all, a change in people's views about what ought to be public and what
ought to be private.13
Orwell's 1984 looks subdued next to the current parameters, intrusions, technologies and
disciplinary apparatuses wielded by the new corporate-government surveillance state.
Surveillance has not only become more pervasive, intruding into the most private of spaces and
activities in order to collect massive amounts of data, it also permeates and inhabits everyday
activities so as to be taken-for-granted. Surveillance is not simply pervasive, it has become
normalized. Orwell could not have imagined either the intrusive capabilities of the the new
high-powered digital technologies of surveillance and display, nor could he have envisioned the
growing web of political, cultural and economic partnerships between modes of government and
corporate sovereignty capable of collecting almost every form of communication in which
human beings engage. What is new in the post-Orwellian world is not just the emergence of
new and powerful technologies used by governments and corporations to spy on people and
assess personal information as a way to either attract ready-made customers or to sell
information to advertising agencies, but the emergence of a widespread culture of
surveillance. Intelligence networks now inhabit the world of Disney as well as the secret
domains of the NSA and the FBI.
I think the renowned intellectual historian Quentin Skinner is right in insisting that surveillance
is about more than the violation of privacy rights, however important. Under the surveillance
state, the greatest threat one faces is not simply the violation of one's right to privacy, but the fact
that the public is subject to the dictates of arbitrary power it no longer seems interested in
contesting. And it is precisely this existence of unchecked power and the wider culture of
political indifference that puts at risk the broader principles of liberty and freedom, which
are fundamental to democracy itself. According to Skinner, who is worth quoting at length:
The response of those who are worried about surveillance has so far been too much couched, it
seems to me, in terms of the violation of the right to privacy. Of course it's true that my privacy
has been violated if someone is reading my emails without my knowledge. But my point is that
my liberty is also being violated, and not merely by the fact that someone is reading my emails
but also by the fact that someone has the power to do so should they choose. We have to insist
that this in itself takes away liberty because it leaves us at the mercy of arbitrary power.
It's no use those who have possession of this power promising that they won't necessarily

use it, or will use it only for the common good. What is offensive to liberty is the very
existence of such arbitrary power

AT 2AC No Link Arguments

AT Not Our Obama


The Obama Administration has ramped up surveillance and national securities
programs, frequently circumventing the law
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 2, accessed 7.9.15, AM]

Few who follow world events can doubt that the Obama Administrations approach to
multiple national security issues has been essentially the same as that of the Bush
Administration.2 The Obama Administration, like its predecessor, has sent terrorism
suspects overseas for detention and interrogation;3 claimed the power to hold, without
trial, American citizens who are accused of terrorism in military confinement;4 insisted that
it is for the President to decide whether an accused terrorist will be tried by a civilian court or a
military tribunal;5 kept the military prison at Guantnamo Bay open,6 argued that detainees
cannot challenge the conditions of their confinement,7 and restricted detainees access to legal
counsel;8 resisted efforts to extend the right of habeas corpus to other offshore prisons;9 argued
that detainees cannot invoke the Geneva Conventions in habeas proceedings;10 denied detainees
access to the International Committee of the Red Cross for weeks at a time;11 engaged the
United States in a military attack against Libya without congressional approval , in the face
of no actual or imminent threat to the nation;12 and continued, and in some respects
expanded, the Bush Administrations ballistic missile defense program.13
The Obama Administration, beyond ending torture, has changed virtually none of the
Bush Administrations Central Intelligence Agency (CIA) programs and operations,14
except that in continuing targeted killings, the Obama Administration has increased the
number of covert drone strikes in Pakistan to six times the number launched during the
Bush Administration.15 The Obama Administration has declined to prosecute those who
committed torture (after the President himself concluded that waterboarding is torture);16
approved the targeted killing of American citizens (Anwar al-Awlaqi and a compatriot17)
without judicial warrant ;18 rejected efforts by the press and Congress to release legal
opinions justifying those killings or describing the breadth of the claimed power;19 and
opposed legislative proposals to expand intelligence oversight notification requirements.20 His
administration has increased the role of covert special operations ,21 continuing each of the
covert action programs that President Bush handed down.22 The Obama Administration has
continued the Bush Administrations cyberwar against Iran (code-named Olympic

Games)23 and sought to block lawsuits challenging the legality of other national security
measures,24 often claiming the state secrets privilege .25
The Obama Administration has also continued, and in some ways expanded, Bush-era
surveillance policies. For example, the Obama Administration continued to intercept the
communications of foreign leaders; 26 further insisted that GPS devices may be used to
keep track of certain citizens without probable cause or judicial review 27 (until the
Supreme Court disapproved28); continued to investigate individuals and groups under
Justice Department guidelines re-written in 2008 to permitassessments that require no
factual basis for FBI agents to conduct secret interviews, plant informants, and search
government and commercial databases;29 stepped up the prosecution of government
whistleblowers who uncovered illegal actions,30 using the 1917 Espionage Act eight times
during his first administration to prosecute leakers (it had been so used only three times in the
previous ninety-two years);31 demanded that businesses turn over personal information
about customers in response to national security letters that require no probable cause
and cannot legally be disclosed ;32 continued broad National Security Agency (NSA)
homeland surveillance;33 seized two months of phone records of reporters and editors of
the Associated Press for more than twenty telephone lines of its offices and journalists,
including their home phones and cellphones, without notice;34 through the NSA, collected the
telephone records of millions of Verizon customers, within the United States and between the
United States and other countries, on an ongoing, daily basis under an order that prohibited
Verizon from revealing the operation;35 and tapped into the central servers of nine leading U.S.
internet companies, extracting audio and video chats, photographs, emails, documents, and
connection logs that enable analysts to track foreign targets and U.S. citizens.36 At least one
significant NSA surveillance program, involving the collection of data on the social
connections of U.S. citizens and others located within the United States, was initiated after the
Bush Administration left office.37

The president acts to cover up NSA abuses with extensive branding


Greenwald, The Guardian journalist and constitutional lawyer, 13
[Glen, of four New York Times best-selling 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, 2/17, The Guardian, Obamas NSA reforms are little more than a
PR attempt to mollify the public,
http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillanceremains, Date Accessed: 7.7.15, JM]

Ultimately, the radical essence of the NSA a system of suspicion-less spying aimed at
hundreds of millions of people in the US and around the world will fully endure even if all
of Obama's proposals are adopted. That's because Obama never hid the real purpose of this

process. It is, he and his officials repeatedly acknowledged, " to restore public confidence " in
the NSA. In other words, the goal isn't to truly reform the agency; it is deceive people into
believing it has been so that they no longer fear it or are angry about it.
As the ACLU's executive director Anthony Romero said after the speech:
The president should end not mend the government's collection and retention of all lawabiding Americans' data. When the government collects and stores every American's phone call
data, it is engaging in a textbook example of an 'unreasonable search' that violates the
constitution.
That, in general, has long been Obama's primary role in our political system and his
premiere, defining value to the permanent power factions that run Washington. He prettifies
the ugly; he drapes the banner of change over systematic status quo perpetuation; he makes
Americans feel better about policies they find repellent without the need to change any of them
in meaningful ways. He's not an agent of change but the soothing branding packaging for it.
As is always the case, those who want genuine changes should not look to politicians, and
certainly not to Barack Obama, to wait for it to be gifted. Obama was forced to give this speech
by rising public pressure, increasingly scared US tech giants, and surprisingly strong
resistance from the international community to the out-of-control American surveillance
state.
=

Obama is exercising every executive power he has to circumvent Congress


executive actions, memorandums, and signing statements wont stop any time soon
Bastasch, The Daily Caller News Foundation, 14
[MICHAEL BASTASCH, previously the Heritage Foundation, Charles Koch Institute, 1/31/14,
Daily Caller, Obama has done more to circumvent Congress than Bush,
http://dailycaller.com/2014/01/31/bastasch-obama-has-done-more-to-circumvent-congress-thanbush/, accessed 7.5.15, AM]

Could we be in the midst of an imperial presidency? Thats the question the Christian
Science Monitor posed in a recent cover story.
Its generally former President George W. Bush that gets hammered for overreaching his
executive authority , but the CSM article lays out evidence showing that President Barack
Obama has gone far beyond his predecessor.
While Bush and Obama have issued roughly the same number of executive orders in their
first five years as president, the scope of Obamas actions are more far-reaching than
Bushs.

Its really the character of the actions, and their subject, Jonathan Turley, a constitutional
scholar at George Washington University, told the CSM. In my view, Obama has surpassed
George W. Bush in the level of circumvention of Congress and the assertion of excessive
presidential power. I dont think its a close question.
It during Bushs tenure that legal scholar John Yoo advocated Unitary executive theory,
which promotes a strong executive branch that is largely immune from interference from
Congress.
Though the theory asserted a powerful presidency that had sole control over the military, it was
not often exercised by Bush. He got congressional authorization for the two wars he fought,
while Obama unilaterally waged war in Libya and has sent U.S. forces all over Africa. Bush
promoted the unilateral executive, but Obamas the one who has really taken advantage of
it.
Bush did have his bad moments. He was hit by the media for using Troubled Asset Relief
Program funds to bailout the auto industry, loaning more than $13 billion to Chrysler and
General Motors without statutory authorization. Bush was also hit by the media for using his
executive authority to create an office to promote faith-based initiatives, making it easier for
religious organizations to get government funding for charitable activities.
There is no doubt that the scope of executive authority was greatly expanded under Bush,
especially with the passage of the Patriot Act. But Obama has not done away with any of
Bushs expansions of executive power if anything Obama has continued to expand the
power of his office.
Many of the Obamas most controversial moves have come from actions outside of
executive orders the traditional way the president asserts his authority. For example,
Obama ordered federal agents to exercise prosecutorial discretion when dealing young
illegal immigrants. This was done via memorandum , not an executive order.
It was through a memorandum that Obama ordered the Environmental Protection Agency
to issue carbon dioxide emissions limits for new and existing power plants. With the stroke
of a pen he has effectively banned coal-fired power in the U.S. and sentenced hundreds of
coal communities across the country to suffer economically.
The elimination of coal as a fuel for new electric generation would have highly concerning
implications for electricity prices and for the economy and job-creation in general, as well as the
competitiveness of American manufacturing, wrote 17 state attorneys general and one top state
environmental regulator in a white paper.
Obama also issued a memorandum ordering federal agencies to get 20 percent of their
electricity from renewable energy sources by 2020 a boon to the presidents
environmentalist and green energy allies.

Obama has also unilaterally delayed the mandate for large employers to buy health care
for their employees by one year. Just because the law is known as Obamacare doesnt mean
he has sole discretion over its implementation, critics argue.
And Obama continued the presidential signing statements , adding his own changes to bills
as he signs them into law.
Obamas not interpreting the law; hes changing the law. Hes changing deadlines that
were the subject of intense legislative debate, said Turley, who disclosed that he voted for
Obama. President Obama meets every definition of an imperial presidency. He is the president
that Richard Nixon always wanted to be.
Whether its climate, healthcare or immigration, Obama has bypassed Congress to
implement major policy changes that affect million of people across the country. On climate
issues alone, Obamas actions will raise power prices and cause more layoffs as coal plants are
retired. But despite the consequences, the White House shows no indication of slowing down .

Wartime pressures will force Obama to resist - battle over the plan creates a
national diversion and impairs military wartime decisions
Lobel, Pittsburgh University Law Professor, 8
[Jules, Lexis, Conflicts Between the Commander in Chief and Congress: Concurrent Power
over the Conduct of War, Date Accessed: 7.9.2015, JM]

The critical difficulty with a contextual approach is its inherent ambiguity and lack of
clarity, which tends to sharply shift the balance of power in favor of a strong President
acting in disregard of congressional will. For example, the application of the Feldman and
Issacharoff test asking whether the congressional restriction makes realistic sense in the modern
world would yield no coherent separation of powers answer if applied to the current
Administrations confrontation with Congress. It would undoubtedly embolden the President
to ignore Congresss strictures. The Presidents advisors would argue that the McCain
Amendments ban on cruel and inhumane treatment, or FISAs requirement of a warrant, does
not make realistic sense in the context of the contemporary realities of the war on terror in which
we face a shadowy, ruthless nonstate enemy that has no respect for laws or civilized conduct, a
conclusion hotly disputed by those opposed to the Presidents policies. Focusing the debate
over whether Congress has the power to control the treatment of detainees on the
Presidents claim that the modern realities of warfare require a particular approach will
merge the separation of powers inquiry of who has the power with the political
determination of what the policy ought to be. Such an approach is likely to encourage the
President to ignore and violate legislative wartime enactments whenever he or she believes
that a statute does not make realistic sensethat is, when it conflicts with a policy the President
embraces.

The contextual approach has a zone of twilight quality that Justice Jackson suggested in
Youngstown.54 Often constitutional norms matter less than political realitieswartime
reality often favors a strong President who will overwhelm both Congress and the courts. While
it is certainly correct as Jackson notedthat neither the Court nor the Constitution will
preserve separation of powers where Congress is too politically weak to assert its authority,
a fluid contextual approach is an invitation to Presidents to push beyond the constitutional
boundaries of their powers and ignore legislative enactments that seek to restrict their
wartime authority.
Moreover, another substantial problem with a contextual approach in the war powers context is
that the judiciary is unlikely to resolve the dispute. The persistent refusal of the judiciary to
adjudicate the constitutionality of the War Powers Resolution strongly suggests that courts
will often refuse to intervene to resolve disputes between the President and Congress over
the constitutionality of a statute that a President claims impermissibly interferes with her
conduct of an ongoing war.56 This result leaves the political branches to engage in an
intractable dispute over the statutes constitutionality that saps the nations energy, diverts focus
from the political issues in dispute, and endangers the rule of law.

AT Obama Will Comply


The President is just another tool of the security bureaucracythe executive
complies to retain the image of power
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 65, accessed 7.9.15, AM]

Put differently, the question whether the President could institute a complete about-face supposes
a top-down policy-making model. The illusion that presidents issue orders and that
subordinates simply carry them out is nurtured in the public imagination by media reports
of Obamas policies or decisions or initiatives, by the Presidents own frequent references
to my directives or personnel, and by the Trumanites own reports that the President
himself has ordered them to do something. But true top-down decisions that order
fundamental policy shifts are rare .369 The reality is that when the President issues an
order to the Trumanites, the Trumanites themselves normally formulate the order .370
The Trumanites cannot be thought of as men who are merely doing their duty. They are
the ones who determine their duty , as well as the duties of those beneath them. They are
not merely following orders: they give the orders .371 They do that by entangling 372
the President. This dynamic is an aspect of what one scholar has called the deep structure of
the presidency.373 As Theodore Sorensen put it, Presidents rarely, if ever, make decisions
particularly in foreign affairsin the sense of writing their conclusions on a clean slate . .
. . [T]he basic decisions, which confine their choices, have all too often been previously
made.374
Justice Douglas, a family friend of the Kennedys, saw the Trumanites influence first-hand:
In reflecting on Jacks relation to the generals, I slowly realized that the military were so
strong in our society that probably no President could stand against them.375 As the roles
of the generals and CIA have converged, the CIAs influence has expandedaided in part
by a willingness to shade the facts, even with sympathetic Madisonian sponsors. A
classified, 6,000-word report by the Senate Intelligence Committee reportedly concluded that
the CIA was so intent on justifying extreme interrogation techniques that it blatantly
misled President George W. Bush, the White House, the Justice Department and the
Congressional intelligence committees about the efficacy of its methods.376 The CIA gets
what it wants, President Obama told his advisers when the CIA asked for authority to
expand its drone program and launch new paramilitary operations.377

Sometimes, however, the Trumanites proceed without presidential approval . In 1975, a


White House aide testified that the White House didnt know half the things intelligence
agencies did that might be legally questionable.378 If you have got a program going and you
are perfectly happy with its results, why take the risk that it might be turned off if the president
of the United States decides he does not want to do it, he asked.379 Other occasions arise
when Trumanites in the CIA and elsewhere originate presidential directivesdirected to
themselves.380 Presidents then ratify such Trumanite policy initiatives after the fact.381 To
avoid looking like a bystander or mere commentator, the President embraces these
Trumanite policies , as does Congress, with the pretense that they are their own.382 To
maintain legitimacy, the President must appear to be in charge. In a narrow sense, of course,
Trumanite policies are the Presidents own; after all, he did formally approve them.383 But
the policies ordinarily are formulated by Trumaniteswho prudently, in Bagehots words,
prevent the party in power from going all the lengths their orators propose[].384
The place for presidential oratory, to the Trumanites, is in the heat of a campaign, not in the
councils of government where cooler heads prevail.385 The idea that presidential backbone is
all that is needed further presupposes a model in which the Trumanites share few of the
legitimacy conferring features of the constitutional branches and will easily submit to the
President. But that supposition is erroneous. Mass entertainment glorifies the military,
intelligence, and law enforcement operatives that the Trumanites direct. The public is
emotionally taken with the aura of mystery surrounding the drone war, Seal Team Six, and cyberweapons. Trumanites, aided by Madisonian leaks, embellish their operatives very real
achievements with fictitious details, such as the killing of Osama bin Laden386 or the daring
rescue of a female soldier from Iraqi troops.387 They cooperate with the making of movies that
praise their projects, like ZeroDark Thirty and Top Gun, but not movies that lampoon them, such
as Dr. Strangelove (an authentic F-14 beats a plastic B-52 every time).388 Friendly fire incidents
are downplayed or covered up.389 The public is further impressed with operatives valor as
they are lauded with presidential and congressional commendations, in the hope of
establishing Madisonian affiliation.390 Their simple missionfind bad guys and get them
before they get usis powerfully intelligible. Soldiers, commandos, spies, and FBI agents
occupy an honored pedestal in the pantheon of Americas heroes .
Their secret rituals of rigorous training and preparation mesmerize the public and fortify its
respect. To the extent that they are discernible, the Trumanites, linked as they are to the dazzling
operatives they direct, command a measure of admiration and legitimacy that the Madisonian
institutions can only envy.391 Public opinion is, accordingly, a flimsy check on the
Trumanites; it is a manipulable tool of power enhancement. It is therefore rarely possible
for any occupant of the Oval Office to prevail against strong, unified Trumanite opposition,
for the same reasons that members of Congress and the judiciary cannot; a non-expert
president, like a non-expert senator and a non-expert judge, is intimidated by expert
Trumanites and does not want to place him [them]self (or a colleague or a potential political
successor) at risk by looking weak and gambling that the Trumanites are mistaken. So
presidents wisely choose to go along .

AT No Motive for Executive Circumvention


Presidents acquiesce to the military and its decision-makersempirics prove they
dont have a choice
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 74, accessed 7.9.15, AM]

It is, of course, possible to reject the advice of a Gates, a Brennan, or other prominent
Trumanites.407 But battle-proven survivors normally get their way, and their way is not
different from one administration to the next, for they were the ones who formulated the
national security policies that are up for renewal. A simple thought experiment reveals why
presidents tend to acquiesce in the face of strong Trumanite pressure to keep their policies
intact. Imagine that President Obama announced within days of taking office that he would
immediately reverse the policies detailed at the outset of this essay. The outcry would have been
deafeningnot simply from the expected pundits, bloggers, cable networks, and congressional
critics but from the Trumanites themselves. When Obama considered lowering the militarys
proposed force levels for Afghanistan, a member of his National Security Council staff who was
an Iraq combat veteran suggested that, if the President did so, the Commander of U.S. and
International Security Assistance Forces (ISAF) in Afghanistan (General Stanley McChrystal),
the Commander of U.S. Central Command (General David Petraeus), the Chairman of the Joint
Chiefs of Staff (Admiral Michael Mullen), and even Secretary of Defense Gates all might
resign.408 Tom Donilon, Obamas National Security Advisor and hardly a political ingnue,
was stunned by the political power of the military, according to Bob Woodward.409
Recall the uproar in the military and Congress when President Bill Clinton moved to end
only one Trumanite policy shortly after taking officethe ban on gays in the military.410
Clinton was quickly forced to retreat , ultimately accepting the policy of Dont Ask, Dont
Tell.411 A president must choose his battles carefully, Clinton discovered; he has limited
political capital and must spend it judiciously . Staff morale is an enduring issue.412 No
president has reserves deep enough to support a frontal assault on the Trumanite network.
Under the best of circumstances, he can only attack its policies one by one, in flanking
actions, and even then with no certainty of victory. Like other presidents in similar
situations, Obama thus had little choice but to accede to the Pentagons longstanding
requests for more troops in Afghanistan.413
Presidential choice is further circumscribed by the Trumanites ability to frame the set of
options from which the President may choose even when the President is personally

involved in the decisionmaking process to an unusual degree, as occurred when President


Obama determined the number of troops to be deployed to Afghanistan.414 Richard
Holbrooke, the Presidents Special Representative for Afghanistan and Pakistan, predicted
that the military would offer the usual three options the option they wanted, bracketed
by two unreasonable alternatives that could garner no support.415 And that is exactly what
happened,416 Nasr recalled. It was, as Secretary Gates said, the classic Henry Kissinger
model . . . . You have three options, two of which are ridiculous, so you accept the one in the
middle.417 The military later expanded the options but still provided no choice. You
guys just presented me [with] four options, two of which are not realistic. The other two
were practically indistinguishable. So whats my option? President Obama asked. You
have essentially given me one option.418 The military was really cooking the thing in the
direction that they wanted, he complained. They are not going to give me a choice .419

AT No Motive for Circumventaion


Surveillance limiting statutes are empirically bypassed, the NSA acquires data based
off of necessity, not law
Whittaker, CBS News, 14
[Zack, freelance journalist, He specializes in tech and politics, law, and security and privacy,
June 30th , CBSNews, Legal loopholes could allow wider NSA surveillance, researchers say,
http://www.cbsnews.com/feature/nsa-surveillance-exposed/, Date Accessed: 7/6/15, ACS]

NEW YORK -- Secret loopholes exist that could allow the National Security Agency to
bypass Fourth Amendment protections to conduct massive domestic surveillance on U.S.
citizens, according to leading academics. The research paper released Monday by researchers
at Harvard and Boston University details how the U.S. government could "conduct largely
unrestrained surveillance on Americans by collecting their network traffic abroad," despite
constitutional protections against warrantless searches.
One of the paper's authors, Axel Arnbak of Harvard University's Berkman Center for Internet &
Society, told CBS News that U.S. surveillance laws presume Internet traffic is non-American
when it is collected from overseas. "The loopholes in current surveillance laws and today's
Internet technology may leave American communications as vulnerable to surveillance, and as
unprotected as the internet traffic of foreigners," Arnbak said. Although Americans are
afforded constitutional protections against unwarranted searches of their emails,
documents, social networking data, and other cloud-stored data while it's stored or intransit on U.S. soil, the researchers note these same protections do not exist when American
data leaves the country. Furthermore, they suggest that Internet traffic can be "deliberately
manipulated" to push American data outside of the country. Although the researchers say they
"do not intend to speculate" about whether any U.S. intelligence agencies are actually
doing this, they say it could provide a loophole for vacuuming up vast amounts of U.S.
citizen data for intelligence purposes, thus "circumventing constitutional and statutory
safeguards seeking to protect the privacy of Americans," they warned. The academic paper
lands just over a year since the Edward Snowden revelations first came to light, outlining the
massive scope of U.S. government surveillance, under the justification of preventing
terrorism. Although the classified programs that make up the NSA's data acquisition arsenal
have only recently been disclosed over the past year, the laws that govern them have been under
close scrutiny for years. The paper only adds fuel to the fire of the intelligence agency's alleged
spying capabilities, which have been heavily criticized by civil liberties and privacy groups alike.
"The fix has to come from the law -- the same laws that apply to Internet traffic collected
domestically should also apply to traffic that is collected abroad," the paper's co-author, Sharon
Goldberg of Boston University's Computer Science Department, said.

While the researchers do not say whether these loopholes are being actively exploited -- saying
their aim is solely to broaden the understanding of the current legal framework -- the current
legislation as it stands "opens the door for unrestrained surveillance," they write. Since the
September 11 terrorist attacks, the subsequent introduction of the Patriot Act allowed certain
kinds of data to be collected to help in the fight against terrorism -- so-called "metadata," such as
the time and date of phone calls and emails sent, including phone numbers and email addresses
themselves. But the contents of those phone calls or emails require a warrant. The classified
documents leaked by Edward Snowden showed that while the public laws have been in effect
for years or even decades, the U.S. government has used secret and classified
interpretations of these laws for wider intelligence gathering outside the statutes' text. The
Obama administration previously said there had been Congressional and Judicial oversight of
these surveillance laws -- notably Section 215 of the Patriot Act, which authorized the collection
of Americans' phone records; and Section 702 of the Foreign Intelligence Surveillance Act
(FISA), which authorized the controversial PRISM program to access non-U.S. residents'
emails, social networking, and cloud-stored data. But the researchers behind this new study
say that the lesser-known Executive Order (EO) 12333, which remains solely the domain of
the Executive Branch -- along with United States Signals Intelligence Directive (USSID) 18,
designed to regulate the collection of American's data from surveillance conducted on foreign
soil -- can be used as a legal basis for vast and near-unrestricted domestic surveillance on
Americans. The legal provisions offered under EO 12333, which the researchers say
" explicitly allows for intentional targeting of U.S. persons" for surveillance purposes when
FISA protections do not apply , was the basis of the authority that reportedly allowed the
NSA to tap into the fiber cables that connected Google and Yahoo's overseas to U.S. data
centers.

AT Freedom Act Proves No Circumvention


Efforts of reform like the Freedom act only mask status quo surveillance and dont
solve the entirety of the problem
Nelson, U.S. News & World Report, 15
[Steven, April 27, 2015, US News, NSA Whistleblowers Oppose Freedom Act, Endorse LongShot Bill, http://www.usnews.com/news/articles/2015/04/27/nsa-whistleblowers-opposefreedom-act-endorse-long-shot-bill , Accessed 7/6/15, DR]

Former NSA crypto-mathematician William Binney, who worked three decades at the
agency, says the Freedom Act widely seen as having the best chance of any surveillancelimiting proposal wont do anything if it passes.
Binney says the bills limitation of two hops on records the government could require
companies to produce meaning records of a target's communications and records of
communications made by the target's contacts can yield billions of peoples records.
Drake, a former NSA senior executive prosecuted unsuccessfully under the Espionage Act
before pleading guilty to a misdemeanor in 2011, calls the bill the Free-dumb Act 2.0, and
says he sees it as a ploy by government officials to keep the status quo in place.
Drake says he has no hope that meaningful surveillance reform will pass Congress this year, and
expects another multiyear reauthorization of expiring provisions.
He also says the fixation on the call record program in public debate is unfortunate,
because NSA Internet surveillance is far broader and more invasive. Its a shiny, shiny
bright spot, [but] theres a whole lot more being collected, he says, including a
staggering amount of American communications.

Reform like the FREEDOM Act accomplishes nothing agencies will circumvent
and legislation is flawed
Thielman, The Guardian, 15
[Sam, June 3, 2015, The Guardian, Surveillance reform explainer: can the FBI still listen to my
phone calls?, http://www.theguardian.com/world/2015/jun/03/surveillance-reform-freedom-actexplainer-fbi-phone-calls-privacy , Accessed 7/6/15, DR]

Wrong. The FBI will do whatever it wants with your phone calls, provided it has a warrant.
Section 215 of the Patriot Act, used by the FBI to obtain large collections of metadata, had

indeed expired, but the USA Freedom Act restored it. (The Freedom Act, as mentioned, will
stop the NSA from collecting Americans phone records in bulk. More on that in a second.)
The main statute the FBI uses to listen in directly on phone calls is called Calea the 1994
Communications Assistance for Law Enforcement Act. Calea was designed to make it
easier for the FBI to listen in on calls as telecoms technology shifted from copper wires to
digital. Essentially, giving the FBI a backdoor key to your network is a condition of running
a phone or internet company. Where phone records are concerned, the FBI has a history of
circumventing the requirement for a warrant, notoriously in the years after 9/11 with
exigent letters seeking billing records, which claimed often falsely that the situation
was an emergency and a grand jury was about to be convened.
See, Fisa created a secret court that issues warrants for surveillance to the FBI (and helped
the NSA retroactively shoehorn metadata collection into the Patriot Act in 2006). This
allows for the possibility that theres one guy out there who might blow something up. Rather
than an agent of a foreign power, or a person with connections to terrorism, the definition of lone
wolf is nebulous to say the least. The amendment changes the definition of agent of a
foreign power to include people who might be planning to engage in international
terrorism in the judgment of the court.
If an order is sought under this definition of an agent of a foreign power, the
amendment says, the applicant is not required to demonstrate a connection between the
target of the electronic surveillance or the physical search and a foreign nation, foreign
group, or international terrorist group. The FBI says it has never even used this provision.
To ensure that the NSA or the FBI doesnt try to reconstitute bulk collection, or some domestic
surveillance operation similarly massive, the act also creates a kind of early warning system at
the secret Fisa court. Significant Fisa court opinions, ones that would substantially reinterpret
the laws (again, in secret), would have to be publicly disclosed within 45 days. Also, since the
Fisa court right now only hears from the government another way the Fisa court is unlike
every court youve ever heard of in this country it would also create a kind of privacy
advocate, called an amicus, for those kinds of novel cases so that its not overseeing itself.

FREEDOM Act wont solve NSA circumvents reforms loose interpretations and
lenient legal means allow surveillance to continue
Granick, Stanford Center for Internet and Society Director of Civil Liberties, 13
[Jennifer, December 16, 2013, Forbes, NSA's Creative Interpretations Of Law Subvert Congress
And The Rule Of Law, http://www.forbes.com/sites/jennifergranick/2013/12/16/a-commonlaw-coup-detat-how-nsas-creative-interpretations-of-law-subvert-the-rule-of-law/, Accessed
7/7/15, DR]

In the wake of todays tremendously important ruling by the District Court for the District of
Columbia that bulk collection of telephone metadata violates the Fourth Amendment, it is more
important than ever that Congress end this misuse of section 215 of the USA PATRIOT Act.
However, Deputy Attorney General James Cole testified earlier this week before the Senate
Judiciary Committee that the NSA might continue its bulk collection of nearly all domestic
phone call records, even if the USA FREEDOM ACT passes into law. That must have come
as a real surprise to committee chairman Senator Patrick Leahy (D-VT) and the dozens of USA
FREEDOM Acts bipartisan co-sponsors, all of whom agree that the core purpose of the bill is to
end NSA dragnet collection of Americans communication data.
Cole noted the reform legislation wouldnt necessarily inhibit the NSAs surveillance
capabilities because its going to depend on how the court interprets any number of the
provisions that are in [the legislation]. Comments like this betray a serious problem inside
the Executive Branch. The Administration and the intelligence community believe they can
do whatever they want, regardless of the laws Congress passes, so long they can convince
one of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC)
to agree. This isnt the rule of law. This is a coup detat.
Cole apparently disagrees. Responding to a question at yesterdays hearing on the bill, Cole said,
Right now the interpretation of the word relevant is a broad interpretation. Adding
pertinent to a foreign agent or somebody in contact with a foreign agent could be
another way of talking about relevance as it is right now. Wed have to see how broadly the
court interprets that or how narrowly. In other words, the FISA court might let us keep
doing what were doing no matter what the law says and despite Congress intent.
All courts issue opinions about what the laws that legislatures pass mean. These opinions are
called the common law. But common law interpretations of statutes are only legitimate if they
are fair and reasonable interpretations.
The NSA has a great track record getting FISC judges to interpret even obviously narrow phrases
in surprisingly broad ways. For example, Americans, including the Patriot Acts main sponsor
Representative Jim Sensenbrenner (R-WI) and a co-sponsor of the USA Freedom Act, were
shocked to learn last June that the NSA used Section 215 for bulk collection of phone data (and
potentially other sensitive records). Sensenbrenner said, [i]f Congress knew what the NSA had
in mind in the future immediately after 9/11, the Patriot Act never would have passed, and I
never would have supported it.
The rule of law is a basic democratic principle meaning that all members of a society
individuals, organizations, and government officialsmust obey publicly disclosed legal codes
and processes. If Cole is right that, try as it might, Congress cannot end bulk collection
because the secret FISA court may defer to the NSAs interpretation of the rules, there is no

rule of law. The NSA is in charge, the FISA court process is just a fig leaf, and this is no
longer a democracy. Theres been a coup detat.

Government surveillance reform ultimately fails, Congress, and the executive


branch actively look circumvent restrictions FREEDOM Act proves no
momentum for real change
Waldman, Washington Post political correspondent, 15
[Paul, June 3, 2015, The Washington Post Opinion, A reality check on the future of government
spying, http://www.washingtonpost.com/blogs/plum-line/wp/2015/06/03/a-reality-check-on-thefuture-of-government-spying/, 7.6.2015, JM]

Its tempting to hail the passage yesterday of the subtly-named USA Freedom Act as a victory
for civil liberties in America and a step toward a healthy recalibration of the governments
surveillance policies. But if thats your feeling today, you might want to think twice.
Not only are the changes the Freedom Act makes to existing practices relatively minor, both
parties have signed on with the dramatic expansion of surveillance on law-abiding Americans
that occurred after September 11. And both will continue to support it.
The Freedom Act does take the bulk collection of Americans telephone records out of the hands
of the National Security Agency and leaves those records with the phone companies; it sets up
procedures for the NSA to get access to those records when it wants to. But the truth is that
this program wasnt particularly useful for the NSA to begin with. The government has been
unable to point to a single terrorist attack that was thwarted by the use of these records. Not only
that, just last month an appeals court ruled that the bulk collection program went way beyond
anything envisioned by the section of the USA Patriot Act that was used to justify it, and it was
therefore illegal.
That doesnt mean this new law isnt significant, because anything that dials back the
surveillance contained in the Patriot Act is significant. But lets not forget that had Edward
Snowden not revealed the existence of this program, the Obama administration would have been
happy to keep it secret from the public indefinitely. It was only once the programs existence
was revealed that President Obama came out in favor of taking the records out of the
NSAs hands. Even if many Republicans (including Mitch McConnell) would have preferred
to keep the bulk collection going as it was, we still have a bipartisan preference in
Washington for keeping the gargantuan surveillance apparatus we set up after 9/11 in
business.
You might not have expected that from Barack Obama if you were a liberal who supported him
over Hillary Clinton in the 2008 primaries, concluding that he was the dove while she was the
hawk because of his opposition to the Iraq War. As a senator, Obama had been quite active in

proposing reforms to the governments surveillance powers; as president, most of what he


advocated has fallen by the wayside.
And is Clinton going to move to restrict the governments surveillance powers if shes elected
president? Theres no particular reason to believe she will. Up until now Clinton has been vague
about what she might do when it comes to surveillance; when shes asked about it, her answers
tend to go like this: Yes there are concerns about privacy, we have to balance that with security,
its something Ill be thinking about. Yes, she supported the Freedom Act, but it remains to be
seen whether shell go into detail about any other particular type of surveillance shed like to
restrict.
And lets not forget that the NSA and other government agencies are certain not
possible, not likely, but certain to come up with new ways to spy on Americans as new
technologies become available . Just as the NSA did with the bulk phone data collection,
theyll probably take a look at earlier laws and decide that theres a legal basis for whatever
new kind of surveillance they want to begin and that its best if the public didnt know about
it.
Indeed, just this week an investigation by the Associated Press revealed that the FBI is using
aircraft with advanced cameras to conduct investigations without warrants. Thats a relatively
mundane use of technology, but there will always be new tools and capabilities coming down the
pike, and the impulse will always be to put them into operation, then figure out afterward if its
legally justifiable.
The story of the bulk telephone data collection tells us that the only thing likely to restrain
the expansion of government surveillance is public exposure. If youre hoping that
politicians who care about privacy will do it on their own, youre likely to be disappointed.

The Freedom Act proves the governments interest in avoiding surveillance


curtailment in reform movements
Napolitano, Judge and legal analyst, 2015
[Andrew, May 14, 2015, Fox News, Don't be fooled by the 'Freedom Act': It won't stop
government spying, http://www.foxnews.com/opinion/2015/05/14/dont-be-fooled-by-freedomact-it-wont-stop-government-spying.html, 7.6.2015, JM]

The Patriot Act is the centerpiece of the federal governments false claims that by surrendering
our personal liberties to it, it can somehow keep us safe. The liberty-for-safety offer has been
around for millennia and was poignant at the time of the founding of the American republic.
The Framers addressed it in the Constitution itself, where they recognized the primacy of the
right to privacy and insured against its violation by the government by intentionally forcing

it to jump through some difficult hoops before it can capture our thoughts, words or private
behavior.
Those hoops are the requirement of a search warrant issued by a judge and based on evidence
-- called probable cause -- demonstrating that it is more likely than not that the government will
find what it is looking for from the person or place it is targeting. Only then may a judge issue a
warrant, which must specifically describe the place to be searched or specifically identify the
person or thing to be seized.
None of this is new. It has been at the core of our system of government since the 1790s. It is
embodied in the Fourth Amendment, which is at the heart of the Bill of Rights. It is
quintessentially American.
The Patriot Act has purported to do away with the search warrant requirement by
employing language so intentionally vague that the government can interpret it as it wishes.
Add to this the secret venue for this interpretation -- the FISA court to which the Patriot Act
directs that NSA applications for authority to spy on Americans are to be made -- and you have
the totalitarian stew we have been force-fed since October 2001.
Because the FISA court meets in secret, Americans did not know that the feds were spying
on all of us all the time and relying on their own unnatural reading of words in the Patriot Act to
justify it until Edward Snowden spilled the beans on his former employer nearly two years ago.
The feds argued to the secret court that they were entitled to any phone call data they
wanted -- usually sought by area code or zip code or the customer base of telecom service
providers -- so long as they claimed to need it to search for communications about terror-related
activities, and they claimed they needed EVERYONES records, and they claimed the Patriot
Act authorized this.
The secret court bought those claims, and -- fast-forward to today -- the feds now have
immediate access to our phone calls in real time. They can turn on our cellphones in our pockets
and purses and use them as listening devices without us knowing it, and they have physical
access to all telephone carriers equipment whenever they wish, which today is 24/7.
Some members of Congress reject this. Foremost among the outraged in the Senate is Kentucky
Sen. Rand Paul. It is none of the governments business, he argues, what we say on our phone
calls. If the NSA wants to hear us, let them present probable cause to a judge identifying the
person they want to hear and seek a search warrant. Pauls is a genuine outrage from the only
voice among those running for president who is faithful Other senators, foremost among
them Texas Sen. Ted Cruz, also running for president, are pretending outrage by offering a
Band-Aid to replace the Patriot Act called the Freedom Act . The Freedom Act gets the
NSA physically out of the telecoms offices, but lets them come back in digitally whenever
one of these secret FISA courts says so , and the standard for saying so is not probable
cause as the Constitution requires. It is whatever the government wants and whenever it wants
it.

The so-called Freedom Act would actually legitimize all spying all the time on all of us in
ways that the Patriot Act fails to do . It is no protection of privacy; it is no protection of
constitutional liberty. It unleashes American spies on innocent Americans in utter disregard of the
Fourth Amendment.
Earlier this week, Paul announced that he feels so strongly about the right to be left alone, and
takes so seriously his oath to uphold the Constitution, and believes so certainly that our phone
calls are none of the governments business that he plans to filibuster all attempts to permit this
to continue. For that alone, he is a hero to the Constitution. Perhaps his friend Cruz will return to
his constitutional roots and join him.
How do we know that the Freedom Act is a Band-Aid only? Because the NSA supports it.

The FREEDOM Act is very restricted in its reform measures, largely maintaining
the PATRIOT acts privacy violations
Gross, Network World IT and internet policy expert in Washington D.C, 15
[Grant, June 5 2015, CSO, Don't expect major changes to NSA surveillance from Congress,
http://www.csoonline.com/article/2931447/privacy/dont-expect-major-changes-to-nsasurveillance-from-congress.html, 7.6.2015, JM]

With the USA Freedom Act, "elected officials have opted to reach for low-hanging fruit,"
said Bill Blunden, a cybersecurity researcher and surveillance critic. "The theater we've just
witnessed allows decision makers to boast to their constituents about reforming mass
surveillance while spies understand that what's actually transpired is hardly major change."
The "actual physical mechanisms" of surveillance programs remain largely intact. Blunden
added by email. "Politicians may dither around the periphery but they are unlikely to institute
fundamental changes."
Some critics have blasted the USA Freedom Act as fake reform, while supporters have called
it the biggest overhaul of U.S. surveillance program in decades. Many civil liberties and privacy
groups have come down in the middle of those two views, calling it modest reform of the
counterterrorism Patriot Act.
The law aims to end the NSA's decade-plus practice of collecting U.S. telephone records in bulk,
while allowing the agency to search those records in a more targeted manner.
The law also moves the phone records database from the NSA to telecom carriers, and requires
the U.S. Foreign Intelligence Surveillance Court (FISC) to consult with tech and privacy experts
when ruling on major new data collection requests from the NSA. It also requires all significant
FISC orders from the last 12 years to be released to the public.
The new law limits bulk collection of U.S. telephone and business records by requiring the
FBI, the agency that applies for data collection, to use a "specific selection term" when asking

the surveillance court to authorize records searches. The law prohibits the FBI and NSA from
using a "broad geographic region," including a city, county, state or zip code, as a search term,
but it doesn't otherwise define "specific search term."
That's a problem , according to critics. The surveillance court could allow, for example,
" AT&T" as a specific search term and give the NSA the authority to collect all of the
carrier's customer records . Such a ruling from FISC would seem to run counter to
congressional intent, but this is the same court that defined all U.S. phone records as "relevant"
to a counterterrorism investigation under the old version of the Patriot Act's Section 215.
The USA Freedom Act also does nothing to limit the NSA's surveillance of overseas
Internet traffic , including the content of emails and IP voice calls. Significantly limiting that
NSA program, called Prism in 2013 Snowden leaks, will be a difficult task in Congress, with
many lawmakers unconcerned about the privacy rights of people who don't vote in U.S.
elections.
Still, the section of the Foreign Intelligence Surveillance Act that authorizes those NSA
foreign surveillance programs sunsets in 2017, and that deadline will force Congress to look
at FISA, although lawmakers may wait until the last minute, as they did with the expiring
sections of the Patriot Act covered in the USA Freedom Act.
The House Judiciary Committee will continue its oversight of U.S. surveillance programs,
and the committee will address FISA before its provisions expire, an aide to the committee
said.
Supporters of new reforms will have to bypass congressional leadership, however. Senate
Republican leaders attempted to derail even the USA Freedom Act and refused to allow
amendments that would require further changes at the NSA.

FREEDOM Act didnt close loopholes it justifies surveillance


Gaist, World Socialist Web Site columnist, 15
[Thomas, 6/2/15, World Socialist Web Site, "US Senate prepares to extend NSA spy powers,"
http://www.wsws.org/en/articles/2015/06/02/nsas-j02.html, Accessed 7/9/15]

Defending the agency before the Senate this week, the NSAs top in-house lawyer Stewart
Baker acknowledged that the readings of Section 215 by NSA and DoJ lawyers from 2005
required some inventiveness. The interpretation of 215 that supported the bulk collection
program was creative, admitted Baker.
Baker then proceeded to speak in favor of passage of the USA Freedom Act legislation,
saying that such legal creativity would no longer be necessary should the law pass.

I dont think anyone at NSA is going to invest in looking for ways to defy congressional
intent if USA Freedom is adopted, Baker said, implying that the bill provides all the necessary
leeway for the NSA to operate as it desires.
Bakers testimony makes clear that for all the talk of ending NSA spying and shutting
down NSA servers, what is emerging out of the USA Freedom Act saga is, in reality, a
blank check for the spy agency to continue and expand its operations, which are targeting
the entire US and world population.
Even assuming that constraints against telephone metadata were actually enforced, the
USA Freedom Act in no way limits the NSAs existing authority to conduct limitless dragnet
surveillance against targets in foreign countries, against US persons who communicate with
persons abroad, and against US data incidentally collected from servers located overseas.
The vast majority of domestic surveillance operations developed by the NSA, FBI, DEA and
other agencies with increasing speed since 9/11 would also not be subject to any new constraints.

AT Post-Snowden
Congressional oversight inadequate to solve even post-Snowden
Setty, Western New England University, law professor, 15
[Sudha, 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, Accessed 7/7/15]

Historically, congressional hearings and investigations have been a powerful tool to rein in
executive branch overreaching. n60 However, it seems that the extreme secrecy
surrounding the NSA surveillance programs undermined the efficacy of these oversight
powers, to the point that they may have been reduced to an ersatz form of accountability.
One prominent example stems from a Senate oversight hearing on March 12, 2013, in which
Senator Ron Wyden specifically asked Director of National Intelligence James Clapper if
the NSA was systematically gathering information on the communications of millions of
Americans. n61 Clapper denied this, yet subsequent revelations confirmed that the broad
scope of the data collection included metadata for telephonic communications, as well as
content data for emails, texts, and other such writings. n62 After public discussion of the
discrepancy in his testimony, Clapper commented that he gave the "least most untruthful"
answer possible under the circumstances. n63 Senator Wyden expressed disappointment and
frustration that even while under oath at an oversight hearing, Clapper misled the Senate. n64
The ability for congressional oversight7 is further hampered by a general lack of access to
information about the details of the NSA Metadata Program n65 and [*82] lack of ability to
discuss publicly whatever knowledge is shared with Congress. n66 In fact, it remains unclear
whether senators, including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew
of the lapses in NSA procedure until after such information was leaked to news sources. n67
Further revelations indicate that administration statements made to Congress even after the
Snowden disclosures were not entirely accurate. n68 These examples are not determinative,
but taken together, they raise significant doubt to the extent of accurate information
regarding surveillance programs being made available to congressional oversight
committees, and whether the oversight committees can function as effective accountability
measures n69 without the benefit of illegally leaked information such as the Snowden
disclosures.

AT Media/Public Scrutiny
Checks by the public and the press are hardly successfulthey are constrained by
secrecy and depend on internal checks of power
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 89, accessed 7.9.15, AM]

It might also be supposed that existing, non-Madisonian, external restraints pose


counterweights that compensate for the weakness of internal, Madisonian checks. The
press, and the public sentiment it partially shapes, do constrain the abuse of powerbut
only up to a point . To the extent that the marketplace of ideas analogy ever was apt, that
marketplace, like other marketplaces, is given to distortion. Public outrage is notoriously
fickle, manipulable, and selective , particularly when driven by anger, fear, and indolence.
Sizeable segments of the publicoften egged on by public officialslash out unpredictably at
imaginary transgressors, failing even in the ability to identify sympathetic allies.518 [P]ublic
opinion, Sorensen wryly observed, is not always identical with the public interest.519
The influence of the media, whether to rouse or dampen, is thus limited . The handful of
investigative journalists active in the United States today are the truest contemporary example of
Churchills tribute to the Royal Air Force.520 In the end, though, access remains everything to
the press. Explicit or implicit threats by the targets of its inquiries to curtail access often
yield editorial acquiescence. Members of the public obviously are in no position to
complain when a story does not appear. Further, even the best of investigative journalists
confront a high wall of secrecy . Finding and communicating with (on deep background, of
course) a knowledgeable, candid source within an opaque Trumanite network resistant to
efforts to pinpoint decision-makers521 can take years . Few publishers can afford the
necessary financial investment; newspapers are, after all, businesses, and the bottom line of
their financial statements ultimately governs investigatory expenditures. Often, a second
corroborating source is required. Even after scaling the Trumanite wall of secrecy,
reporters and their editors often become victims of the deal-making tactics they must
adopt to live comfortably with the Trumanites. Finally, members of the mass media are
subject to the same organizational pressures that shape the behavior of other groups. They
eat together, travel together, and think together. A case in point was the Iraq War. The
Washington Post ran twentyseven editorials in favor of the war along with dozens of op-ed
pieces, with only a few from skeptics.522 The New York Times, Time, Newsweek, the Los

Angeles Times, and the Wall Street Journal all marched along in lockstep.523 As Senator
Eugene McCarthy aptly put it, reporters are like blackbirds; when one flies off the
telephone wire, they all fly off.524
More importantly, the premisethat a vigilant electorate fueled by a skeptical press
together will successfully fill the void created by the hollowed-out Madisonian institutions
is wrong .525 This premise supposes that those outside constraints operate
independently, that their efficacy is not a function of the efficacy of internal, Madisonian
checks.526 But the internal and external checks are woven together and depend upon one
another. 527 Non-disclosure agreements (judicially-enforced gag orders, in truth) are
prevalent among those best positioned to criticize.528 Heightened efforts have been
undertaken to crush vigorous investigative journalism and to prosecute and humiliate
whistleblowers and to equate them with spies under the espionage laws. National security
documents have been breathtakingly over-classified. The evasion of Madisonian
constraints by these sorts of policies has the net effect of narrowing the marketplace of
ideas, curtaining public debate, and gutting both the media and public opinion as effective
restraints.529 The vitality of external checks depends upon the vitality of internal
Madisonian checks, and the internal Madisonian checks only minimally constrain the
Trumanites.

The double government the US operates provides a false sense of security and
fosters an uninformed publicthis threatens a tightening, less democratic
government
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 112, accessed 7.9.15, AM]

The benefits derived by the United States from double government enhanced technical
expertise , institutional memory and experience, quick-footedness, opaqueness in
confronting adversaries, policy stability , and insulation from popular political oscillation
and decisional idiosyncrasy need hardly be recounted. Those benefits, however, have not
been costfree. The price lies in well-known risks flowing from centralized power,
unaccountability, and the short-circuiting of power equilibria. Indeed, in this regard the
Framers thought less in terms of risk than certainty. John Adams spoke for many: The nation
which will not adopt an equilibrium of power must adopt a despotism. There is no other
alternative.617

The trivial risk of sudden despotism, of an abrupt turn to a police state or dictatorship
installed with coup-like surprise, has created a false sense of security in the United
States.618 That a strongman of the sort easily visible in history could suddenly burst forth
is not a real risk. The risk, rather, is the risk of slowly tightening centralized power ,
growing and evolving organically beyond public view, increasingly unresponsive to Madisonian
checks and balances. Madison wrote, There are more instances of the abridgment of the
freedom of the people by gradual and silent encroachments of those in power than by
violent and sudden usurpations.619 Recent history bears out his insight. Dahl has pointed out
that in the 20th centurythe century of democracys great triumphsome seventy democracies
collapsed and quietly gave way to authoritarian regimes.620 That risk correlates with voter
ignorance; the term Orwellian has little meaning to a people who have never known anything
different, who have scant knowledge of history, civics, or public affairs, and who in any event
have likely never heard of George Orwell. If a nation expects to be ignorant and free, in a
state of civilization, Thomas Jefferson wrote, it expects what never was and never will
be.621 What form of government ultimately will emerge from the United States
experiment with double government is uncertain. The risk is considerable, however, that it
will not be a democracy .

Decisions of the security bureaucracy are out of reach from the electoratethere is
no reason for citizens to become more engaged
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 108, accessed 7.9.15, AM]

Moreover, as a practical matter, it would be difficult to overcome voter ignorance that is in


important respects entirely rational. Consider more closely three of the prerequisites for
intelligent participation in governance: minimal intellectual acumen, sound judgment
concerning policy alternatives, and an adequate informational base. The first two elements
are in many respects already widely present. The fact is that Joe Six-Pack is neither
unintelligent nor irrational. No one familiar with the rules of American footballsurely among
the most complicated sports in the world can doubt the raw intelligence of anyone able to
weigh the pros and cons of the nickel defense. Its moral dimensions notwithstanding, the
decision whether to run a play-action fake on third-and-two is not a conceptually more difficult
question than the decision whether to strike a high-value target located in a car in Yemen with
four unidentified companions. Different types of research obviously are required, but neither
matter is beyond the intellectual grasp of a person of common intelligence. The moral

implications are also, of course, different, but what reason is there to believe that the
Trumanites have any greater moral expertise than the average voter? It is often said that
the public lacks access to the requisite information. The reality, however, is that all the
material needed to make an informed judgment on the wisdom of drone strikes as a
general policyas well as 95% of the other issues the Trumanites confrontis readily
available to anyone who can access the internet. One reason that the public does not do so
is that, given competing demands on its time, there is no obvious reason to become more
informed. National security policy remains the same from one president to the next,
whomever one votes for, and even in the most politically accountable of worlds, the public
still would necessarily be excluded from sensitive national security deliberations. Why
waste time learning about things one cannot affect?598 A single vote, in any event, has an
infinitesimally small chance of determining the outcome of an election. American voters may not
have read Voltaire, but they know that there are gardens to be tended.599 Theirs is, in key
respects, rational ignorance.600
This is the nub of the negative feedback loop in which the United States is now locked.
Resuscitating the Madisonian institutions requires an informed, engaged electorat e, but
voters have little reason to be informed or engaged if their efforts are for naughtand as
they become more uninformed and unengaged , they have all the more reason to continue
on that path. The Madisonian institutions thus continue to atrophy , the power of the
Trumanite network continues to grow, and the public continues to disengage .

External checks fail politics wont solve Obama proves


Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 92, accessed 7.9.15, AM]

Some suggest that the answer is to admit the failure of the Madisonian institutions,
recognize that for all their faults the external checks are all that really exist, acknowledge
that the Trumanite network cannot be unseated, and try to work within the current
framework.530 But the idea that external checks alone do or can provide the needed
safeguards is false. If politics were the effective restraint that some have argued it is,531
politicsintertwined as it is with lawwould have produced more effective legalist
constraints . It has not. The failure of law is and has been a failure of politics . If the press
and public opinion were sufficient to safeguard what the Madisonian institutions were designed

to protect, the story of democracy would consist of little more than a series of elected kings, with
the rule of law having frozen with the signing of Magna Carta in 1215. Even with effective
rules to protect free, informed, and robust expressionwhich is an enormous assumption
public opinion alone cannot be counted upon to protect what law is needed to protect.
The hope that it can do so recalls earlier reactions to Bagehots insightsthe faith that the
people can simply throw off their deferential attitude and reshape the political
system, insisting that the Madisonian, or dignified, institutions must once again provide
the popular check that they were intended to provide.532
That, however, is exactly what many thought they were doing in electing Barack Obama as
President. The results need not be rehearsed; little reason exists to expect that some future
public effort to resuscitate withered Madisonian institutions would be any more successful.
Indeed, the added power that the Trumanite network has taken on under the BushObama
policies would make that all the more difficult. It is simply nave to believe that a
sufficiently large segment of informed and intelligent voters can somehow come together to
ensure that sufficiently vigilant Madisonian surrogates will somehow be included in the
national security decisionmaking process to ensure that the Trumanite network is infused
with the right values. Those who believe that do not understand why that network was formed,
how it operates, or why it survives. They want it, in short, to become more Madisonian. The
Trumanite network, of course, would not mind appearing more Madisonian, but its
enduring ambition is to become, in reality, less Madisonian.

AT Whistleblowers
Bureaucrats are tightly-knit and depend on secrecythis hides the blame as
everyone is culpable, thus no one can be
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 30, accessed 7.9.15, AM]

What has held the Trumanites together during this era is what Bagehot believed held Britains
efficient institutions together: loyalty, collective responsibility, andmost importantly
secrecy .165 Secrecy , once accepted, becomes an addiction, Edward Teller said.166 The
Trumanite network is not alone in accepting the need for secrecy in national security
mattersthe Madisonian institutions do as wellbut in breadth and depth, the
Trumanites opaqueness is striking. Trumanites can have no real discussions with family or
friends about work because nearly all of their work is classified. They hold multiple
compartmented clearances. Their offices are located in the buildings expensive real estatethe
Pentagons E-Ring, the CIAs Seventh Floor, the State Departments Seventh Floor. Key pads
lock their doors. Next to their desks are a safe and two computers, one unclassified and the other
classified. Down the hall is a SCIF167 where the most sensitive briefings take place. They speak
in acronyms and code words that the public has never heard and, God (and the FBI) willing,
never will hear. The experts they consult are their colleagues. Outside expertise, when needed, is
difficult to tap. The Trumanites sign non-disclosure agreements under which they promise
to submit for prepublication review anything they write on the subject of their work.
Outside experts have signed nothing; normally they do not even hold a security clearance.
Outside experts can thus provide insights but are not in the flow of intelligence and have little
sense of the internal, organizational decision making context in which issues arise. Nor have they
any particular loyalty to the group, not being a part of it. The Trumanites have additional
incentives to keep information to themselves. Knowing that information in Washington is
power, they are, in the words of Jack Balkin, both information gluttons and information
misers.168 They are information gluttons in that they grab as much information as possible;
they are information misers in that they try to keep it from the public. Potential critics, power
competitors, and adversaries are starved for information concerning the Trumanite network while
it feasts on information concerning them. The secrecy of Trumanite activities thus grows as
the privacy of the general public diminishes and the Trumanites shared secret[s] of
convenience169 bind them more tightly together.

The Trumanites ability to mask the identity of the decider is another factor that
accounts for the networks durability and resilience. Efforts by the press and congressional
oversight committees to pinpoint exactly who is responsible for a given policy are easily
deflected by the shield of secrecy provided by the network structure. Because everyone
the entire national security teamis accountable, no one is accountable .170 The
networks success in evading questions concerning the continuation of military assistance to
Egyptdespite a clear statutory prohibition against the continuation of such aid following a
military coup171is illustrative. Below is an excerpt from the State Department spokeswoman,
Jen Psaki, answering questions from the press on July 26, 2013:

AT Leaks Solve
Leaks dont ensure meaningful accountability
Setty, Western New England University, law professor, 15
[Sudha, 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, Accessed 7/7/15]

Reliance on sporadic leaks to trigger genuine accountability is structurally problematic.


n107 Our reliance on leaks thus far should force us to reconsider the extreme secrecy under
which intelligence-gathering programs, like the NSA Metadata Program, are administered,
and to consider means by which institutional actors can exert meaningful and regular
oversight and control over these programs. Such change would force politicians to take
ownership over secret counterterrorism programs, weighing their expediency against
possible constitutional defects or the judgment of public opinion. An atmosphere in which
accountability mechanisms are not merely ersatz pending an illegal leak could provide
space for genuine public discourse and at least the possibility of greater protection of civil
liberties.

AT 2AC Solvency Arguments

AT Compliance
The national security bureaucracy is hidden behind the glow of the visible branches
of governmentthat the President or the judiciary actually manages security is an
illusion
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 39, accessed 7.9.15, AM]

Expertise, efficiency, and experience are not, however, sufficient in and of themselves to induce
the Madisonians general acquiescence in measures needed for effective governance. For all its
proficiency, the Trumanite network is still too artificial, too unfamiliar to generate public
reverence. 209 Like Britains real rulers, the Trumanites bring up the rear in Bagehots splendid
procession 210 of governance. They are secreted in second-rate carriages; no one cares for
them or asks about them, but they are obeyed implicitly and unconsciously by reason of the
splendour of those who eclipsed and preceded them. 211 Those who preceded them are the
apparent rulers, the imposing personages for whom the spectators cheer; it is by them the
mob are influenced. 212 The Trumanite network survives by living in the Madisonian
institutions glow . Because the Trumanites could never by themselves generate the
requisite public veneration, evolution toward double government was necessarily slow.
Quick alteration would have been seen, Bagehot theorized, as a catastrophic change that
would have killed the State .213
The Trumanites thus operate under a strong incentive to ensure that Madisonian
institutions shine brightly. That is also in the interests of the Madisonian institutions
themselves; its members wish to be seen by the public as in charge, for their own sake as
well as the nations. Members of Congress are loath to exhibit any lack of authority that
would make them look weak and undermine their legitimacy or reelection chances.
Likewise, the illusion persists that the President is the decider on Trumanite proposals.
The Trumanites and their operational enterprises are, after all, his. Announcements are
made regularly that he has ordered his Secretary of State to do this and that he has
ordered his Secretary of Defense to do that. The judiciary, too, continues to appear to be
the ultimate arbiter of legality, for its own power as well as the Trumanites. At the level of
appearancesand it is above all appearances that countinterests are aligned, fed by the
need simultaneously to maximize both expertise and legitimacy .

AT National Security Basis


National security is used as a justification for government circumvention
transparency
Abdo, ACLU Speech, Privacy, and Technology Project Staff Attorney, 13
[Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project, 3/12/13,
ACLU.org, Government Increasingly Invoking National Security to Circumvent FOIA,
https://www.aclu.org/blog/government-increasingly-invoking-national-security-circumvent-foia,
Accessed 7/6/15, AMM]

The government is increasingly relying on a national security pretext to bolster its secrecy
claims, an Associated Press report released yesterday reveals. Analysis conducted by the
news agency shows that the Obama administration cited legal exemptions to deflect
requests for records under the Freedom of Information Act more often in 2012 than in any
previous year.
According to the AP report, to justify the withholding of information, the government cited
exceptions under FOIA more than 479,000 times last year, a 22 percent increase from 2011. The
CIA specifically cited the national security exception in response to 60 percent of the 3,586
requests it received up from 49 percent in 2011.
I appeared on Democracy Now! earlier today earlier today alongside Jack Gillum, the author of
the AP report, to discuss the reports findings and the dangers of government secrecy. Watch the
segment here:
President Obama promised a new era of transparency when he first took office in 2009, and
within the first few months of his presidency, his administration disclosed a handful of
tremendously important documents related to the CIAs torture program. But since then, the
government has consistently stonewalled requests for basic yet critical information about
its national security policies, such as when it believes it may kill terrorism suspects,
including U.S. citizens, far from any battlefield, and the scope of its sweeping surveillance
authorities . The Freedom of Information Act was designed to guarantee government
transparency and accountability. The administration should recommit itself to the transparency it
promised and to the transparency so necessary for our democracy.

National Security is interpreted widely by the executive to justify extra-legal


measures
Kassop, Professor at the State University of New York at New Paltz, 14

[Nancy Kassop, Professor at the State University of New York at New Paltz, 4/22/14, Executive Branch
Legal Analysis for National Security Policy: Who Controls Access to Legal Memos?,
Presidential Studies Quarterly, Vol. 44, pg 328-351, Accessed 7/9/15, AMM]

Legal interpretation of governmental authority in the national security realm has attracted
extraordinary prominence recently, in light of constantly emerging revelations of
controversial policies . Lawsuits seeking access under the Freedom of Information Act to
confidential executive branch legal analysis justifying these policies have started in the federal
courts, only to be met with refusals by the Department of Justice to release its legal opinions.
This article examines litigation seeking Office of Legal Counsel opinions justifying the
Obama administrations targeted killing program and Federal Bureau of Investigation
authority to gather call information, without using any legal process, from
telecommunications companies . The steady emergence in the post-9/11 environment of
controversial national security policies has brought to the surface the issue of legal
interpretation by the executive branch of the constitutional or statutory authority
ju32stifying government actions. This interpretive activity is performed by general counsels in
agencies and departments, but, most often, the primary responsibility falls to the Office of Legal
Counsel (or OLC) in the Department of Justice (or DOJ). It is easy to recall the searing national
debate that occurred after the public gained access to John Yoos torture memo and other
similar OLC opinions from 2001 to 2008 that interpreted executive authority in unprecedented
ways, amounting to claims of exclusive and absolute presidential power in the national security
realm (U.S. Department of Justice 2002). These episodes made clear the immense
significance of the classic question of who interprets the law, where interpretation drives
and controls executive branch policy making.

AT Plan Defines Authority


Definitions dont solve Relevance is subjective
Ackerman, The Guardian, 15
(Spencer, 6/1/2015, The Guardian, Fears NSA will seek to undermine surveillance reform,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secretlaw, Accessed 7/5/15)

Julian Sanchez, a surveillance expert at the Cato Institute, was more cautious.
The second circuit ruling establishes that a relevance standard is not completely
unlimited it doesnt cover getting hundreds of millions of peoples records, without any
concrete connection to a specific inquiry but doesnt provide much guidance beyond that
as to where the line is, Sanchez said.
I wouldnt be surprised if the government argued, in secret, that nearly anything short of
that scale is still allowed, nor if the same Fisa court that authorized the bulk telephone
program, in defiance of any common sense reading of the statutory language, went along
with it.

Executive branch lawyers intentionally misinterpret laws to justify illegal


surveillance policies
Shane, Ohio State University Moritz School of Law professor, 12
[Peter M., Journal of National Security Law & Policy, Executive Branch Self-Policing in Times
of Crisis: The Challenges for Conscientious Legal Analysis, http://jnslp.com/wpcontent/uploads/2012/01/Executive-Branch-Self-Policing-in-Times-of-Crisis-The-Challengesfor-Conscientious-Legal-Analysis.pdf, Date Accessed: 7/9/15, GJ]

The military and foreign policy disasters generated by presidential unilateralism demonstrate the
practical importance of maintaining a pluralist view of checks and balances. Political officials
are not simply rational actors who respond with dispassionate calculation to evidence and
circumstance. Facts and options are always filtered through ideological prisms.
Presidentialism narrows the prism. Pluralism works to offset that filtering. Pluralism guards
against too much distortion by seeking to maximize the number of meaningful institutional
voices in the policy making process.
Equally troubling is the risk of presidentialism to the rule of law. Even in normal times, a
heavy burden falls on government attorneys in virtually every agency. Government
lawyering frequently represents the exclusive avenue through which the law is actually

brought to bear on decisionmaking. This professional review within the executive branch is
crucial. Most government decisions are simply too low in visibility, or too diffuse in impact,
to elicit judicial review or congressional oversight as ways of monitoring legal compliance.
Yet, the ideological prism of presidentialism can bend the light of the law so that nothing is
seen other than the claimed prerogatives of the sitting chief executive. Champions of
executive power even skilled lawyers who should know better wind up asserting that, to
an extraordinary extent, the President as a matter of constitutional entitlement is simply not
subject to legal regulation by either of the other two branches of government.
Government attorneys must understand their unique roles as both advisers and advocates. In
adversarial proceedings before courts of law, it may be fine for each of two contesting sides,
including the government, to have a zealous, and not wholly impartial, presentation, with the
judge acting as a neutral decisionmaker. But in their advisory function, government lawyers must
play a more objective, even quasi-adjudicative, role. They must give the law their most
conscientious interpretation. If they fail in that task, frequently there will be no one else
effectively situated to do the job of assuring diligence in legal compliance. Government lawyers
imbued with the ideology of presidentialism too easily abandon their professional
obligations as advisers and too readily become ethically blinkered advocates for unchecked
executive power.
Jack Goldsmith headed the Office of Legal Counsel (OLC) for a little less than ten months in
2003-2004. Of the work done by some government attorneys and top officials after 9/11, he
said they dealt with FISA limitations on warrantless surveillance by the National Security
Agency (NSA) the way they dealt with other laws they didnt like: they blew through them
in secret based on flimsy legal opinions that they guarded closely so no one could question
the legal basis for the operations.7 He describes a 2003 meeting with David Addington, who
was Counsel and later Chief of Staff to Vice President Dick Cheney, in which Addington denied
the NSA Inspector Generals request to see a copy of OLCs legal analysis in support of the NSA
surveillance program. Before Goldsmith arrived at OLC, not even NSA lawyers were allowed
to see the Justice Departments legal analysis of what NSA was doing.8
OLCs analysis of the legality of NSA surveillance, issued on January 19, 2006, justified the
program on two grounds: the Presidents inherent war powers and the Authorization for Use of
Military Force (AUMF). However, the AUMF did not say anything about electronic surveillance.
In 1978, Congress expressly stated that no statute other than the Foreign Intelligence
Surveillance Act (FISA) or Title III the law that applies to ordinary federal criminal
prosecution provides authority for electronic surveillance by the federal government. The
AUMF could supersede FISA by repealing it, but only by making the repeal explicit. An
argument that the AUMF implicitly repealed FISA necessarily falls short. OLC also argued that
the President had an inherent constitutional power to conduct the NSA program no matter what
FISA said. According to OLC, if FISA of 1978, as amended, were read to preclude the NSA
program, the statute would be unconstitutional.9
What prompted the Justice Department to argue in this fashion? One answer might be that
Justice Department lawyers are institutionally expected to advocate for the Presidents

powers and simply adopt the most ambitious arguments consistent with appropriate
standards of professional competence in legal research and analysis. However, it is not the
responsibility of Justice Department lawyers to advocate for every contemplated assertion of
presidential authority, no matter how far-fetched. Even in my brief period at Justice, I witnessed
multiple and significant examples of Department lawyers refusing to provide analytic support for
legally ill-conceived proposals for executive action. Moreover, it is difficult to make a case for
the professional competence of the FISA memorandum. Although the Justice Department
manages to elaborate its views in over forty pages of single-spaced and highly technical
verbiage, its memorandum never confronts the enormity of the initiative it is endorsing or the
power of alternative arguments. Instead, it proffers distinctions from contrary precedents that are
often, in a word, silly. Even if the authors felt institutionally constrained to reach a particular
bottom line, the failure to assert any principle limiting the claims being made and the toofrequent lack of rhetorical judgment in structuring their argument suggest something other than
diligent lawyering was at play.
What accounted for the bad arguments was political and professional pressure. When I worked at
Justice, the refusal to take positions that could not be defended by respectable standards did not
harm the lawyer. As anyone who has ever worked in an organization knows, however, informal
pressure can be an extraordinarily effective method of stifling disagreement and guiding
decisions in the way top management desires. We know that supervision of the process of
executive branch lawyering on the NSA memorandum was significantly usurped by the
Office of the Vice President. David Addington, the Vice Presidents Counsel, and John Yoo,
then a deputy in OLC, worked together to craft a series of arguments for unprecedented claims of
executive power to pursue the campaign against terrorism.10 Jack Goldsmith reports that
Addington blackballed from future advancement in the executive branch any lawyer who dared
cross swords with him.11
The deficiencies of legal analysis of NSA surveillance were replicated in other initiatives after
9/11, including the treatment of persons captured and suspected of aiding and abetting terrorism.
The Justice Department, through OLC, produced legal opinions stating, in effect, that anyone
captured in the Afghanistan campaign had few, if any, rights under U.S. or international law and
certainly no rights susceptible to vindication in U.S. courts.12 The function of these legal
opinions indeed, their obvious purpose was to ratify a scheme of maximum license to do with
the detainees whatever the military, the CIA, or any other U.S. authority might choose to do with
them. The Administrations lawyering process cleared the path to horrors at the Abu Ghraib
prison and Guantnamo crimes whose stain upon our national honor is likely to remain, for
decades at least, firmly embedded in the worlds collective memory, deeply undermining our
image and influence abroad.
It is understandable that the Administration would want some flexibility in dealing with a threat
it rightly regarded as in some ways unprecedented and of very grave magnitude. And yet, to
move the detainees so completely beyond the realm of normal legal process was itself a plainly
risky strategy in terms of compromising international support, exposing U.S. military personnel
to mistreatment, risking the honor of U.S. military culture, and weakening the fabric of

international law generally in its protection of both combatants and civilians during wartime. The
desire for flexibility was understandable, but not at the cost of all other values.
On a number of the most important points discussed in the OLC lawyers memoranda, the courts
subsequently held them to be wrong. Contrary to OLC, the Supreme Court held that foreign
detainees at Guantnamo who challenged their classification as enemy combatants were entitled
to judicial review of the legality of their detention.13 Contrary to OLC, the Court held that the
Geneva Conventions protected the detainees, whether or not they strictly qualified as prisoners of
war.14 Contrary to OLC and Justice Department briefs, the Court held that the military
commissions as originally constituted were not sufficiently protective of the detainees rights to
permit their use for war crimes trials.15
On all of these questions, whether of morality, policy, or law, there were at least serious
arguments to be entertained by both sides. The fact that the Administration reached incorrect
conclusions is, in itself, only a limited indictment of its lawyering. Even good lawyers make
mistakes, and the fact that executive branch lawyers would consistently make mistakes
erring on the side of executive authority is not in itself damning. What is damning,
however, is that on critical questions questions going to the core of national honor and
identity executive branch lawyering was not just wrong, misguided, or ethically
insensitive. It was incompetent. It was so sloppy, so one-sided, and at times so laughably
unpersuasive that it cannot be defended as ethical lawyering in any context. Tax advice this bad
would be malpractice. Government lawyering this bad should be grounds for discharge.

Circumvention likely - The NSA skirts laws citing accidental collection, technical
and clerical errors
Gellman, Washington Post Pulitzer Prize Winning Journalist, 13
[Barton, 8/15/13, The Washington Post, NSA broke privacy rules thousands of times per year,
audit finds, https://www.washingtonpost.com/world/national-security/nsa-broke-privacy-rulesthousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f49ddc7417125_story.html, Accessed 7/6/15, GJ]

The Obama administration has provided almost no public information about the NSAs
compliance record. In June, after promising to explain the NSAs record in as transparent
a way as we possibly can, Deputy Attorney General James Cole described extensive safeguards
and oversight that keep the agency in check. Every now and then, there may be a mistake, Cole
said in congressional testimony.
The NSA audit obtained by The Post, dated May 2012, counted 2,776 incidents in the
preceding 12 months of unauthorized collection, storage, access to or distribution of legally
protected communications. Most were unintended. Many involved failures of due diligence or
violations of standard operating procedure. The most serious incidents included a violation of a

court order and unauthorized use of data about more than 3,000 Americans and green-card
holders.
In a statement in response to questions for this article, the NSA said it attempts to identify
problems at the earliest possible moment, implement mitigation measures wherever possible,
and drive the numbers down. The government was made aware of The Posts intention to
publish the documents that accompany this article online.
Were a human-run agency operating in a complex environment with a number of different
regulatory regimes, so at times we find ourselves on the wrong side of the line, a senior NSA
official said in an interview, speaking with White House permission on the condition of
anonymity.
You can look at it as a percentage of our total activity that occurs each day, he said. You look
at a number in absolute terms that looks big, and when you look at it in relative terms, it looks a
little different.
There is no reliable way to calculate from the number of recorded compliance issues how
many Americans have had their communications improperly collected, stored or
distributed by the NSA.
The causes and severity of NSA infractions vary widely. One in 10 incidents is attributed to a
typographical error in which an analyst enters an incorrect query and retrieves data about U.S
phone calls or e-mails.
But the more serious lapses include unauthorized access to intercepted communications, the
distribution of protected content and the use of automated systems without built-in safeguards to
prevent unlawful surveillance.
The May 2012 audit, intended for the agencys top leaders, counts only incidents at the NSAs
Fort Meade headquarters and other facilities in the Washington area. Three government officials,
speaking on the condition of anonymity to discuss classified matters, said the number would be
substantially higher if it included other NSA operating units and regional collection centers.
Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.), who did not receive a
copy of the 2012 audit until The Post asked her staff about it, said in a statement late Thursday
that the committee can and should do more to independently verify that NSAs operations are
appropriate, and its reports of compliance incidents are accurate.
Despite the quadrupling of the NSAs oversight staff after a series of significant violations
in 2009, the rate of infractions increased throughout 2011 and early 2012. An NSA
spokesman declined to disclose whether the trend has continued since last year.
One major problem is largely unpreventable, the audit says, because current operations rely
on technology that cannot quickly determine whether a foreign mobile phone has entered the
United States.

In what appears to be one of the most serious violations, the NSA diverted large volumes of
international data passing through fiber-optic cables in the United States into a repository where
the material could be stored temporarily for processing and selection.
The operation to obtain what the agency called multiple communications transactions collected
and commingled U.S. and foreign e-mails, according to an article in SSO News, a top-secret
internal newsletter of the NSAs Special Source Operations unit. NSA lawyers told the court that
the agency could not practicably filter out the communications of Americans.
In October 2011, months after the program got underway, the Foreign Intelligence Surveillance
Court ruled that the collection effort was unconstitutional. The court said that the methods used
were deficient on statutory and constitutional grounds, according to a top-secret summary of
the opinion, and it ordered the NSA to comply with standard privacy protections or stop the
program.
James R. Clapper Jr., the director of national intelligence, has acknowledged that the court found
the NSA in breach of the Fourth Amendment, which prohibits unreasonable searches and
seizures, but the Obama administration has fought a Freedom of Information lawsuit that seeks
the opinion.
Generally, the NSA reveals nothing in public about its errors and infractions. The unclassified
versions of the administrations semiannual reports to Congress feature blacked-out pages under
the headline Statistical Data Relating to Compliance Incidents.
Members of Congress may read the unredacted documents, but only in a special secure room,
and they are not allowed to take notes. Fewer than 10 percent of lawmakers employ a staff
member who has the security clearance to read the reports and provide advice about their
meaning and significance.
The limited portions of the reports that can be read by the public acknowledge a small number
of compliance incidents.
Under NSA auditing guidelines, the incident count does not usually disclose the number of
Americans affected.
What you really want to know, I would think, is how many innocent U.S. person
communications are, one, collected at all, and two, subject to scrutiny, said Julian Sanchez, a
research scholar and close student of the NSA at the Cato Institute.
The documents provided by Snowden offer only glimpses of those questions. Some reports
make clear that an unauthorized search produced no records. But a single incident in
February 2012 involved the unlawful retention of 3,032 files that the surveillance court had
ordered the NSA to destroy, according to the May 2012 audit. Each file contained an
undisclosed number of telephone call records.
One of the documents sheds new light on a statement by NSA Director Keith B. Alexander last
year that we dont hold data on U.S. citizens.

Some Obama administration officials, speaking on the condition of anonymity, have defended
Alexander with assertions that the agencys internal definition of data does not cover
metadata such as the trillions of American call records that the NSA is now known to have
collected and stored since 2006. Those records include the telephone numbers of the parties and
the times and durations of conversations, among other details, but not their content or the names
of callers.
The NSAs authoritative definition of data includes those call records. Signals Intelligence
Management Directive 421, which is quoted in secret oversight and auditing guidelines, states
that raw SIGINT data ... includes, but is not limited to, unevaluated and/or unminimized
transcripts, gists, facsimiles, telex, voice, and some forms of computer-generated data, such as
call event records and other Digital Network Intelligence (DNI) metadata as well as DNI
message text.
In the case of the collection effort that confused calls placed from Washington with those placed
from Egypt, it is unclear what the NSA meant by a large number of intercepted calls. A
spokesman declined to discuss the matter.
The NSA has different reporting requirements for each branch of government and each of its
legal authorities. The 202 collection was deemed irrelevant to any of them. The issue
pertained to Metadata ONLY so there were no defects to report, according to the author of the
secret memo from March 2013.
The large number of database query incidents, which involve previously collected
communications, confirms long-standing suspicions that the NSAs vast data banks with code
names such as MARINA, PINWALE and XKEYSCORE house a considerable volume of
information about Americans. Ordinarily the identities of people in the United States are masked,
but intelligence customers may request unmasking, either one case at a time or in standing
orders.
In dozens of cases, NSA personnel made careless use of the agencys extraordinary powers,
according to individual auditing reports. One team of analysts in Hawaii, for example, asked
a system called DISHFIRE to find any communications that mentioned both the Swedish
manufacturer Ericsson and radio or radar a query that could just as easily have collected
on people in the United States as on their Pakistani military target.
The NSA uses the term incidental when it sweeps up the records of an American while
targeting a foreigner or a U.S. person who is believed to be involved in terrorism. Official
guidelines for NSA personnel say that kind of incident, pervasive under current practices,
does not constitute a ... violation and does not have to be reported to the NSA inspector
general for inclusion in quarterly reports to Congress. Once added to its databases, absent other
restrictions, the communications of Americans may be searched freely.
In one required tutorial, NSA collectors and analysts are taught to fill out oversight forms
without giving extraneous information to our FAA overseers. FAA is a reference to the
FISA Amendments Act of 2008, which granted broad new authorities to the NSA in exchange for

regular audits from the Justice Department and the Office of the Director of National Intelligence
and periodic reports to Congress and the surveillance court.
Using real-world examples, the Target Analyst Rationale Instructions explain how NSA
employees should strip out details and substitute generic descriptions of the evidence and
analysis behind their targeting choices.
I realize you can read those words a certain way, said the high-ranking NSA official who spoke
with White House authority, but the instructions were not intended to withhold information from
auditors. Think of a book of individual recipes, he said. Each target has a short, concise
description, but that is not a substitute for the full recipe that follows, which our overseers also
have access to.

AT Accountability
Extensive legal architecture justifying surveillance undermines accountability and
judicial review
Setty, Western New England University, law professor, 15
[Sudha, Winter 2015, 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, Accessed 7/7/15, DR]

This program - with its broad scope, lack of particularized suspicion, and lengthy duration
of data retention - provides a useful vehicle through which to analyze the question of
meaningful accountability over warrantless government surveillance more generally. n15
Snowden's revelations over the year following the publication of his initial disclosure
continued to foster debate and demands for [*74] better oversight of the NSA. n16 The
administration initiated various review mechanisms, n17 Congress convened oversight
hearings, n18 and the public engaged in a vigorous debate as to the legality, efficacy, and
morality of the NSA's activities, particularly the bulk collection and retention for several years of
telephony and internet metadata of U.S. persons.
This collection has been described at times as lawless, n19 yet the architecture constructed
to support arguments as to the domestic legality n20 and constitutionality of the NSA
Metadata Program is extensive. On a purely constitutional level, some have asserted that
inherent Article II power confers on the executive branch expansive surveillance powers
based on a view that the United States continues to be on a post-9/11 war footing. n21 From
a legislative perspective, a significant number of statutes, such as the Authorization for the
Use of Military Force [*75] (AUMF), n22 provisions of the USA PATRIOT Act (PATRIOT
Act), n23 the Protect America Act and the FISA Amendments Act of 2008 (FAA) n24 were
enacted by Congress and interpreted by the NSA as providing ample legal authority for the
capture and storage of data. n25 Compounding these statutory authorities, the executive
branch has likely sought its own nonpublic legal guidance in the form of secret legal
opinions from the Office of Legal Counsel memoranda n26 and other Department of
Justice memoranda defending the legality and efficacy of the surveillance program. n27
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
NSA surveillance and data collection has been expansive during both the Bush and Obama
administrations and has been supported by tremendous amounts of law constructed by the
executive branch and Congress and construed by the courts to enable surveillance with
little meaningful oversight. As such, we are left to question whether the legal architecture
provides the constraints on government necessary to satisfy the basic tenets of the rule of
law or, instead, if the legal architecture mimics and ultimately undermines efforts to uphold
the rule of law.

AT Transparency Solves
Transparency fails exceptions justify circumvention CIA proves
Abdo, ACLU Speech, Privacy, and Technology Project staff attorney, 13
[Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project, 3/12/13,
ACLU.org, Government Increasingly Invoking National Security to Circumvent FOIA,
https://www.aclu.org/blog/government-increasingly-invoking-national-security-circumvent-foia,
Accessed 7/6/15, AMM]

The government is increasingly relying on a national security pretext to bolster its secrecy
claims, an Associated Press report released yesterday reveals. Analysis conducted by the
news agency shows that the Obama administration cited legal exemptions to deflect
requests for records under the Freedom of Information Act more often in 2012 than in any
previous year.
According to the AP report, to justify the withholding of information, the government cited
exceptions under FOIA more than 479,000 times last year, a 22 percent increase from 2011.
The CIA specifically cited the national security exception in response to 60 percent of the
3,586 requests it received up from 49 percent in 2011.
I appeared on Democracy Now! earlier today earlier today alongside Jack Gillum, the author of
the AP report, to discuss the reports findings and the dangers of government secrecy. Watch the
segment here:
President Obama promised a new era of transparency when he first took office in 2009, and
within the first few months of his presidency, his administration disclosed a handful of
tremendously important documents related to the CIAs torture program. But since then, the
government has consistently stonewalled requests for basic yet critical information about
its national security policies, such as when it believes it may kill terrorism suspects, including
U.S. citizens, far from any battlefield, and the scope of its sweeping surveillance authorities.
The Freedom of Information Act was designed to guarantee government transparency and
accountability. The administration should recommit itself to the transparency it promised and to
the transparency so necessary for our democracy.

Transparency has historically been circumvented by the executive


Kassop, Professor at the State University of New York at New Paltz, 14
[Nancy Kassop, Professor at the State University of New York at New Paltz, Executive Branch
Legal Analysis for National Security Policy: Who Controls Access to Legal Memos?,
Presidential Studies Quarterly, Vol. 44, pg 328-351, Accessed 7/9/15, AMM]

Exploring legal arguments advanced by the executive branch to circumscribe its


susceptibility to judicial review leads to uncovering certain strategic lawyering techniques.
In addition to urging the court to rule in its favor on the usual threshold issues, the government
finds its most potent legal tool in claiming any of the various forms of privilege available to it.
In national security cases, state secrets privilege has often been that tool of choice, where
the government urges courts to dismiss those cases where revealing the evidence necessary
to prove the case would damage national security (United States v. Reynolds 1953). In the
two cases discussed in this article, the DOJ relies, in part, on other claims of privilege:
deliberative process privilege and attorney-client privilege. The end result sought by the
government here is no different than in state secrets privilege cases. It is to persuade the courts to
rule that the government should be exempt from a requirement to reveal the information that it
alone possesses. Thus, the executive branchs goal is to control access to information about its
policies when such access is requested by private parties. When courts defer to the government
in state secrets privilege cases, private litigants lose their day in court (see, e.g., Mohammed v.
Jeppesen Dataplan, Inc. 2010). In the cases to be unfolded here, plaintiffs are interest groups and
a news organization that request access under FOIA to OLC memos containing legal analysis. In
both cases, they are asking the courts to reject the governments claimed exemptions under FOIA
and to order the DOJ to make available certain OLC opinions. If the courts rule in the
governments favor, the practical outcome will be the same as in state secrets privilege cases: the
executive branch controls. As one attorney for a plaintiff noted, secret law simply has no place
in a democratic society (Electronic Frontier Foundations [EFF] 2013b).

AT Trust Solvency
The aff is structurally incapable of solving trust its only result is to prop up the
surveillance state (some potentially damaging claims)
Giroux, McMaster University Cultural Studies Professor, 14
[Henry A, 10 February, Truthout, Totalitarian Paranoia in the Post-Orwellian Surveillance
State, http://www.truth-out.org/opinion/item/21656-totalitarian-paranoia-in-the-post-orwelliansurveillance-state, Date Accessed: 7.9.2015, JM]

Obama's recent speech on reforms to the NSA serves as a text that demands not just close
reading but also becomes a model illustrating how history can be manipulated to legitimate
the worst violations of privacy and civil rights , if not state- and corporate-based forms of
violence.64 For Obama, the image of Paul Revere or the Sons of Liberty is referenced to
highlight the noble ideals of surveillance in the interest of freedom and mostly provide a
historical rationale for the emergence of the massive spying behemoths such as the NSA that
now threaten the fabric of US democracy and massive data on everyone, not just terrorists. Of
course, what Obama leaves out is that Paul Revere and his accomplices acted "to curtail
government power as the main threat to freedom."65 Obama provides a sanitized reference to
history in order to bleach the surveillance state of its criminal past and convince the American
public that, as Michael Ratner states, "Orwellian surveillance is somehow patriotic."66 Obama's
surveillance state does just the opposite, and the politicians such as Rep. Mike Ford and
Feinstein are more than willing to label legitimate whistle-blowers - including, most famously,
Snowden, Manning and Hammond - as traitors while keeping silent when high-ranking
government officials, particularly James Clapper Jr., the director of national security, lied before
a Senate Intelligence Committee.
Obama's appeal to the American people to trust those in the highest positions of
government and corporate dominance regarding the use of the mammoth power of the
surveillance state makes a mockery out of the legitimate uses of such power, any vestige of
critical thought and historical memory. The United States has been lying to its people for
more than 50 years, and such lies extend from falsifying the reasons for going to war with
Vietnam and Iraq to selling arms to Iran in order to fund the reactionary Nicaraguan Contras.
Why should anyone trust a government that has condoned torture, spied on at least 35 world
leaders,67 supports indefinite detention, places bugs in thousands of computers all over the
world, kills innocent people with drone attacks, promotes the post office to log mail for law
enforcement agencies and arbitrarily authorizes targeted assassinations?68 Or, for that
matter, a president that instituted the Insider Threat Program, which was designed to get
government employees to spy on each other and "turn themselves and others in for failing to
report breaches,"69 which includes "any unauthorized disclosure of anything, not just classified
materials.

AT Enforcement
Reform by the government fails security apparatus easily co-opts any reform
Greenwald, constitutional lawyer, 15
[Glenn, journalist, constitutional lawyer, and author of four New York Times best-selling 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, 11/19/14, The
Intercept, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead,
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-masssurveillance/ , Accessed 7/7/15, DR]

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 mid1970s 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.
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:
1) Individuals refusing to use internet services that compromise their privacy. The FBI and other
U.S. government agencies, as well as the U.K. Government, are apoplectic over new products
from Google and Apple that are embedded with strong encryption, precisely because they know
that such protections, while far from perfect, are serious impediments to their power of mass
surveillance. To make this observation does not mean, as some deeply confused people try to
suggest, that one believes that Silicon Valley companies care in the slightest about peoples
privacy rights and civil liberties.

2) Other countries taking action against U.S. hegemony over the internet. Most people who claim
nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the
U.S. the only venue that matters. But the real action has long been in other countries, acting
individually and jointly to prevent U.S. domination of the internet.

Reform not effective too complex and laws not enforced


Assange, editor in chief of WikiLeaks, 12
[Julian, 2012, OR Books, Cypherpunks: Freedom and the Future of the Internet,
http://resistir.info/varios/assange_livro.pdf , accessed: July 8, 2015, AJ]

JRMIE: So now its a fact that technology enables total surveillance of every communication.
Then there is the other side of that coin, which is what we do with it. We could admit that for
what you call tactical surveillance there are some legitimate usesinvestigators investigating
bad guys and networks of bad guys and so on may need, under the supervision of the judicial
authority, to be able to use such toolsbut the question is where to draw the line for this
judicial supervision, where to draw the line for the control that the citizens can have over the
use of those technologies. This is a policy issue. When we get to those policy issues you have
politicians that are asked to just sign something and dont understand the underlying technology,
and I think that we as citizens have a role, not only to explain how the technology functions at
large, including to politicians, but also to wade in to the political debates that surround the use of
those technologies. I know that in Germany there was a massive movement against generalized
data retention that led to the overturn of the Data Retention law in front of the constitutional
court.46 There is a debate going on in the EU about revising the Data Retention Directive.47
ANDY: You are describing the theory of the democratic state which, of course, does need to filter
out some bad guys here and there and listen to their phone calls on the basis of a court decision
with overview to make sure it is done in the proper way. The trouble with that is that the
authorities need to act in compliance with the law. If they dont do that then what are they
good for? Especially with this strategic approach, democratic states within Europe are massively
buying machines that allow them to act exactly outside the law in regard to interception because
they dont need a court decision, they can just switch it on and do it, and this technology cant be
controlled.
JULIAN: But are there two approaches to dealing with mass state surveillance: the laws of
physics; and the laws of man? One is to use the laws of physics by actually building devices that
prevent interception. The other is to enact democratic controls through the law to make sure
people must have warrants and so on and to try to gain some regulatory accountability. But
strategic interception cannot be a part of that, cannot be meaningfully constrained by regulation.
Strategic interception is about intercepting everyone regardless of whether they are innocent or
guilty. We must remember that it is the core of the Establishment carrying such surveillance.
There will always be a lack of political will to expose state spying. And the technology is

inherently so complex, and its use in practice so secret that there cannot be meaningful
democratic oversight.
ANDY: Or you spy on your own parliament.
JULIAN: But those are excusesthe mafia and foreign intelligence they are excuses that
people will accept to erect such a system.
JACOB: The Four Horsemen of the Info-pocalypse: child pornography, terrorism, money
laundering, and The War on Some Drugs.
JULIAN: Once you have erected this surveillance, given that it is complex, given that it is
designed to operate in secret, isnt it true that it cannot be regulated with policy? I think that
except for very small nations like Iceland, unless there are revolutionary conditions it is simply
not possible to control mass interception with legislation and policy. It is just not going to
happen. It is too cheap and too easy to get around political accountability and to actually perform
interception. The Swedes got through an interception bill in 2008, known as the FRA-lagen,
which meant the Swedish signals intelligence agency the FRA could legally intercept all
communication travelling through the country in bulk, and ship it off to the United States, with
some caveats.48 Now how can you enforce those caveats once youve set up the interception
system and the organization doing it is a secret spy agency? Its impossible. And in fact cases
have come out showing that the FRA had on a variety of occasions broken the law
previously. Many countries simply do it off-law with no legislative cover at all. So were sort
of lucky if, like in the Swedish example, they decided that for their own protection from
prosecution they want to go legal by changing the law. And thats the case for most countries
there is bulk interception occurring, and when there is a legislative proposal it is to protect the
ass of those who are doing it.
This technology is very complex; for example in the debate in Australia and the UK about
proposed legislation to intercept all metadata, most people do not understand the value of
metadata or even the word itself.49 Intercepting all metadata means you have to build a system
that physically intercepts all data and then throws everything but the metadata away. But such a
system cannot be trusted. Theres no way to determine whether it is in fact intercepting and
storing all data without having highly skilled engineers with authorization to go in and
check out precisely what is going on, and theres no political will to grant access. The
problem is getting worse because complexity and secrecy are a toxic mix. Hidden by
complexity. Hidden by secrecy. Unaccountability is built-in. It is a feature. It is dangerous
by design.

AT Interbranch Consensus
Consensus and synchrony is fabricatedthe branches must align with the security
bureaucracy
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 102, accessed 7.9.15, AM]

It is no answer to insist that, whatever the systems faults, the Madisonian accountability
mechanisms have at least generated a political consensus.567 Even if consensus exists
among the Madisonians themselves, the existence of a public consensus on national security
policy is at best doubtful.568 Further, if the application of Bagehots theory to U.S. national
security policy is correct, whatever consensus does exist at the political level is synthetic in
that it derives not from contestation among the three branches of the federal government
but from efforts of the Madisonian institutions to remain in sync with the Trumanite
network. That network is the moving force behind any consensus. It has forged the policies
that the consensus supports; it has orchestrated Madisonian support. Finally, even if real,
the existence of a Madisonian/Trumanite consensus says nothing about the content of the
consensusnothing about whether Madisons second great goal of protecting the people from
the government has been vindicated or defeated. Autocracy can be consensus-based. The
notion of a benign modern-day consensus on national security policy is, indeed, reminiscent of
the observation of Richard Betts and Leslie Gelb who, reviewing agreements that emerged from
national security deliberations during the Johnson Administration, concluded that the system
worked.569 Well, perhaps; the result was Vietnam.
The second difficulty with legal and public-opinion based checks on the Trumanite network
is the assumption in Madisons theory that the three competing branches act
independently . [I]t is evident that each department should have a will of its own , says
The Federalist. 570 This is achieved by ensuring that each is so constituted that the
members of each should have as little agency as possible in the appointment of the
members of the others.571 Different policy preferences will obtain because the three
Madisonian branches will act upon different motives. But when it counts, the branches do
not. Each branch has the same ultimate incentive: to bring its public posture into sync with
the private posture of the Trumanites.572 The net effect is balance, after a fashion, in the
sense that the end result is outward harmony of a sort easily mistaken for Madisonianinduced equipoise. But the balance is not an equilibrium that results from competition for
power among three branches struggling for the privilege of conducting American foreign

policy, as Edward S. Corwin memorably put it.573 The system that produces this ersatz
consensus is a symbiotic tripartite co-dependence in which the three Madisonian branches fall
over themselves to keep up with the Trumanites. The ostensible balance is artificial ; it
reflects a juridical legerdemain created and nurtured by the Trumanite network, which
shares, defends, and begins with the same static assumptions. Bagehot relates the confidential
advice of Lord Melbourne to the English Cabinet: It is not much matter which we say, but
mind, we must all say the same .574 The Madisonian institutions and the Trumanite
network honor the same counsel.

AT Oversight
The national security bureaucracy is concerned primarily with increasing power to
protect against threatschecks by other branches fail
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 100, accessed 7.9.15, AM]

A third internal check, the Foreign Intelligence Surveillance Court, subsists formally
outside the executive branch but for all practical purposes might as well be within it; as
noted earlier, it approved 99.9% of all warrant requests between 1979 and 2011.561 In 2013,
it approved the NSA collection of the telephone records of tens of millions of Americans,
none of whom had been accused of any crime.562 An authentic check is one thing; smoke
and mirrors are something else.
The first difficulty with such proposed checks on the Trumanite network is circularity ; all
rely upon Madisonian institutions to restore power to Madisonian institutions by exercising
the very power that Madisonian institutions lack. All assume that the Madisonian
institutions, in which all reform proposals must necessarily originate, can somehow magically
impose those reforms upon the Trumanite network or that the network will somehow merrily
acquiesce. All suppose that the forces that gave rise to the Trumanite network can simply be
ignored. All assume, at bottom, that Madisons scheme can be made to workthat an
equilibrium of power can be achievedwithout regard to the electorates fitness.
Yet Madisons theory, again,563 presupposed the existence of a body politic possessed of civic
virtue. It is the personal ambition only of officeholders who are chosen by a virtuous electorate
that can be expected to translate into institutional ambition. It is legislators so chosen, Madison
believed, who could be counted upon to resist encroachments on, say, Congresss power to
approve war or treaties because a diminution of Congresss power implied a diminution of
their own individual power. Absent a virtuous electorate, personal ambition and
institutional ambition no longer are coextensive. Members principal ambition564 then
becomes political survival, which means accepting, not resisting, Trumanite encroachments on
congressional power. The Trumanites principal ambition, meanwhile, remains the same: to
broaden their ever-insufficient flexibility to deal with unforeseen threatsthat is, to
enhance their own power. The net effect is imbalance, not balance.
This imbalance has suffused the development of U.S. counterterrorism policy. Trumanites
express concerns about convergence, about potentially dangerous link-ups among narco-

terrorists, cyber-criminals, human traffickers, weapons traders, and hostile


governments.565 Yet their concerns focus largely, if not entirely, on only one side of Madisons
ledger the governments need to protect the people from threatsand little, if at all, on the
other side: the need to protect the people from the government. As a result, the discourse,
dominated as it is by the Trumanites, emphasizes potential threats and deemphasizes
tradeoffs that must be accepted to meet those threats. The Madisonians themselves are not
troubled about new linkages forged among the newly-created components of military,
intelligence, homeland security, and law enforcement agencieslinkages that together
threaten civil liberties and personal freedom in ways never before seen in the United States. The
earlier stovepiping of those agencies was seen as contributing to the unpreparedness that led to
the September 11 attacks,566 and after the wearying creation of the Department of Homeland
Security and related reorganizations, the Madisonians have little stomach for re-drawing box
charts yet again. And so the cogs of the national security apparatus continue to tighten
while the scaffolding of the Madisonian institutions continues to erode .

Oversight fails Only creates a situation where surveillance actions are


rubberstamped
Greenwald, The Guardian journalist and constitutional lawyer, 13
[Glen, of four New York Times best-selling 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, 2/17, The Guardian, Obamas NSA reforms are little more than a
PR attempt to mollify the public,
http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillanceremains, Date Accessed: 7.7.15, JM]

The crux of this tactic is that US political leaders pretend to validate and even channel
public anger by acknowledging that there are "serious questions that have been raised ".
They vow changes to fix the system and ensure these problems never happen again. And
they then set out, with their actions, to do exactly the opposite: to make the system prettier and
more politically palatable with empty, cosmetic "reforms" so as to placate public anger while
leaving the system fundamentally unchanged, even more immune than before to serious
challenge.
This scam has been so frequently used that it is now easily recognizable. In the mid-1970s,
the Senate uncovered surveillance abuses that had been ongoing for decades, generating
widespread public fury. In response, the US Congress enacted a new law (Fisa) which featured
two primary "safeguards": a requirement of judicial review for any domestic surveillance, and
newly created committees to ensure legal compliance by the intelligence community.
But the new court was designed to ensure that all of the government's requests were
approved: it met in secret, only the government's lawyers could attend, it was staffed with

the most pro-government judges, and it was even housed in the executive branch. As
planned, the court over the next 30 years virtually never said no to the government.
Identically, the most devoted and slavish loyalists of the National Security State were
repeatedly installed as the committee's heads, currently in the form of NSA cheerleaders
Democrat Dianne Feinstein in the Senate and Republican Mike Rogers in the House. As the
New Yorker's Ryan Lizza put it in a December 2013 article on the joke of Congressional
oversight, the committees "more often treat senior intelligence officials like matinee idols".
As a result, the committees, ostensibly intended to serve an overseer function, have far more
often acted as the NSA's in-house PR firm. The heralded mid-1970s reforms did more to
make Americans believe there was reform than actually providing any, thus shielding it
from real reforms.

Internal government checks cant solvecivic virtue is key to a true democracy


Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 103, accessed 7.9.15, AM]

There is a third, more fundamental, more worrisome reason why the Madisonian institutions
have been eclipsed, as noted earlier in this Article.575 It is the same reason that repairs of the
sort enumerated above likely will not endure. And it is not a reason that can be entirely laid at the
feet of the Trumanites. It is a reason that goes to the heartbeat of democratic institutions.
The reason is that Madisonian institutions rest upon a foundation that has proven
unreliable: a general public possessed of civic virtue .
Civic virtue, in Madisons view, required acting for the public interest rather than ones
private interest.576 Madison, realist that he was, recognized that deal-making and self-interest
would permeate government; this could be kept in check in part by clever institutional
design, with ambition . . . to counteract ambition577 among governmental actors to
maintain a power equilibrium. But no such institutional backup is available if the general
public itself lacks civic virtuemeaning the capacity to participate intelligently in selfgovernment and to elect officials who are themselves virtuous.578 Indeed, civic virtue is thus
even more important,579 Madison believed, for the public at large than for public officials;
institutional checks are necessary but not sufficient. Ultimately, the most important check
on public officials is, as Madison put it, virtue and intelligence in the community . . . .580
Institutional constraints are necessary but not sufficient for the survival of liberty, Madison
believed; they cannot be relied upon absent a body politic possessed of civic virtue.581

Madison was not alone in this belief, though other leading political theorists have since put it
differently. Minimal levels of economic wellbeing, education, and political intelligence,582
Bagehot believed, are essential conditions for the universal franchise and ultrademocracy, as he called it, that has come to exist in the United States.583 Lord Bryce
observed that [t]he student of institutions as well as the lawyer is apt to overrate the effect
of mechanical contrivances in politics.584 The various repairs that have been proposedand,
ultimately, the very Madisonian institutions themselvesare in the end mechanical contrivances.
Whatever their elegance, these parchment barriers, as Madison described laws that stand
alone,585 cannot compensate for a want of civic virtue. Bagehot concurred: No polity can get
out of a nation more than there is in the nation . . . . [W]e must first improve the English
nation, he believed, if we expect to improve Parliaments handiwork.586 This insight was
widely shared among 19th-century English constitutionalists. John Stuart Mill (whose work on
the English Constitution was published shortly before Bagehots) shared Bagehots and Bryces
doubts about the ultimate impotence of free-standing legal rules. In politics as in mechanics,
Mill wrote, the power which is to keep the engine going must be sought for outside the
machinery ; and if it is not forthcoming, or is insufficient to surmount the obstacles which
may reasonably be expected, the confidence will fail .587

Metadata proves parts of government authorize illegal surveillance behind the


backs of other branches
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 74, accessed 7.9.15, AM]

Even before 9/11, NSA Director Michael Hayden had proposed more expansive collection
programs in a transition report to the incoming Bush Administration.437 Following 9/11,
Hayden quickly sought approval of a program to monitor the communications of
Americans living within the United States.438 The program sucked up the contents of
telephone calls and e-mails, as well as their metadata logs.439 The Bush Administration
concluded that aspects of the proposed program probably were illegal 440 and therefore
considered seeking a change in the law that would permit the expanded program.441 It
decided against such a request, however, because it concluded that Congress would not
approve .442 Instead, President Bush authorized the NSA to proceed with the program on
the basis of the Presidents supposed independent constitutional power as commanderinchief, spelled out in a still-classified memorandum written by John Yoo, an attorney in
OLC.443 The program went into operation on October 4, 2001.444

A change in OLCs leadership brought a different interpretation of the law, with the result that, in
March 2004, Attorney General John Ashcroft declined to re-authorize those aspects of the
program (reportedly concerning internet metadata) that OLC now considered illegal, with the
result that President Bush rescinded his approval to the NSA to collect internet data.445
The illegal program remained non-operational for only four months, however; during that
period, Justice Department lawyers joined with NSA officials and immediately began
efforts to recreate this authority, an authority to which they believed the FISC would be
amenable.446 The Chief Judge of the FISC, Coleen Kollar-Kotelly, quickly obliged,
issuing an ex parte order on July 14, 2004.447 Kollar-Kotellys order permitted bulk
collection of internet data, with no warrant requirement ;448 it essentially gave NSA the
same authority to collect bulk internet metadata that it had under the earlier program.449
None of the other judges on the FISC was apparently told about the NSAs secret
surveillance programs.450 Nor were they told about Kollar-Kotellys secret order.451 This
was the first time the surveillance court had exercised any authority over the two-and-a-halfyearold surveillance program.452

AT Congressional Oversight
Loopholes allow evasion of reporting requirements CIA proves
RT.com, 13
[RT.com, 4/10/13, RT.com, CIA claims no electronic data mining thanks to legal loophole,
http://rt.com/usa/cia-data-mining-loophole-599/, Accessed 7/6/15, AMM]

It appears that the C entral I ntelligence A gency has been taking advantage of a legal
loophole to avoid submitting reports on cyber surveillance, based on a 2007 definition of
data mining established during the last Bush administration.
According to the Huffington Post, which began to look into a Congressionally mandated
report on data mining submitted by agencies such as the Department of Homeland Security
(DHS), the CIA itself does not present such information as it does not consider its electronic
surveillance activities as data mining at all.
Under the current law, the 2007 Federal Agency Data Mining Reporting Act calls for
annual agency reports on activities that collect data involving pattern detection within
electronic databases. The latter definition does not, however, cover information retrieved by
targeting a single individual, even though surveillance could obviously yield a trove of data
regarding any number of additional people.
An investigation by Wired Magazine in 2009, for example, revealed that the CIAs investment
arm, In-Q-Tel, was funding a software firm that specialized in scraping mounds of data posted to
blogs, forums, and social network websites like Twitter. The software firm, called Visible
Technologies, was said to crawl, or archive, over half a million websites per day, and produce
customized reporting based on real-time keyword searches. At the time of the report, Visible
chief executive officer Dan Vetras called the CIA an end customer for its product.
Pattern-based searches of the sort that must currently be reported to Congress could include
detection of suspicious behavior by DHS - a good example cited by Huffington Post would
involve a passenger who departed the US with no baggage returning with a suspicious quantity
of suitcases. But then, why would the CIA invest in software such as Visible, which can compile
mass amounts of information from thousands of individuals, if not to mine that database?
The CIAs chief technology officer raised some eyebrows last month after outlining the
agencys attempt to collect everything and hang on to it forever, in reference to the
overwhelming amount of information being transmitted via cell phone texts, or online via
social media platforms such as Twitter. Those comments were made only a few days after
Federal Computer Week reported on the agencys $600 million deal with Amazon for cloud
computing services.

Again, in that instance, one might wonder why the agency would require a near-biblical
amount of digital storage with Amazon to compile databases which it purports to have no
interest in mining.
According to Sharon Bradford Franklin, the senior legal counsel for the Constitution
Project, the CIAs own interpretation of the Data Mining Reporting Act may well comply
with the current law, though a growth in the CIAs own capabilities would seem to merit a
re-evaluation of that act.
"The definition is overly narrow, and so the act cannot fully serve its purpose of providing
greater transparency, accountability and oversight.
Even Mary Ellen Callahan, the former chief privacy officer for the DHS, who herself
oversaw the agencys data mining reports, seems unconvinced that the 2007 legislation has
aged well.
"It is inconsistent with common understandings of data mining," Callahan said. "Congress
hasn't changed it, so Congress seems to think that the pattern-based data mining report is more
important," she added.
Whether or not Congress moves to adapt governments definition of data mining remains to be
seen. According to a CIA spokesperson who responded to the Huffington Posts report, under
the current act the agency did not have any reportable activities.

The executive will circumvent regulations history proves


Pierce, Esquire political writer, 14
[Charles Pierce, Political Writer for Esquire, 2/17/14, Esquire, The Imperial Masquerade of
Barack Obama, http://www.esquire.com/blogs/politics/Imperial_Masquerade, Accessed 7/7/5,
AMM]

As much as we probably would like it not to happen, the Lawless President narrative seems to
have reached that stage in our national dialogue in which enough of "some people" are "saying"
things about it that the courtier press feels obligated to "cover the controversy," which is how
we're all going to have to spend months listening to our radio Tom Paines -- on whom the actual
Tom Paine would not have deigned to spit -- tell us that Liberty (!) is indeed threatened by what
the president is about these days.
Look, if I thought our current political class capable of engaging the public in a serious debate
over the wild-assed expansion of executive power over the last 50 years, and if I thought it had
the courage to do something about it, I'd be at the front of the line. But, come on, can you see
the Congress making a serious attempt to re-establish the constitutional war powers that it
has deeded away piecemeal to the Executive over the past 70 years? (In the long view of

history, it was plain that the War Powers Act essentially was dead from birth.) Can you see the
establishment of legitimate congressional oversight of, say, the intelligence community, and
the use to which every president puts it? Can you imagine a serious congressional
prohibition of drone warfare that the Executive would not feel free to violate with
impunity? Instead, we get an argument whittled down to a fine point of stupid -- Our
President Is A Nicer Authoritarian Than Yours Is. There is a Democrat in the White House so
it is the Republicans -- and the conservative monkeyhouse that is the party's policy apparatus -howling about imperial presidencies after being deadly silent about C-Plus Augustus and his
signing statements and the vast arrogation of power that occurred under the doctrine of the
unitary executive. And vice versa. And so on, forever, we go. Charlie Savage, the truly
invaluable national-security reporter at The New York Times, put it plainly in Takeover, his book
on the imperial administration of George W. Bush and Dick Cheney:
Whenever presidentialists have gained control of the White House, they have tended to
make grandiose claims of presidential power. Then, when scandals and misgovernment
have arisen, the presidentialists have temporarily retreated, only to slowly retake the
ground they lost. The Korean War, the Vietnam War and the Watergate scandal, the IranContra scandal, and now the Iraq War and the war on terrorism are all chapters in this
history. Each one has also been a difficult time in America.
As loud as is the current frothing over some unlateral tinkering with the Affordable Care
Act, and the president's decision to get the Pentagon janitors a raise, prior to the John Yoosanctified follies of the previous administration, the clearest example of how destructive an
unmoored and unrestrained Executive can be was, as Savage points out, the Iran-Contra
foolishness, which remains the great lost opportunity for the country and its politicians to
stuff the presidency back into the constitutional corral where it belongs. We all blew that one
-- the politicians did, certainly, but so, disgracefully, did the elite media and, ultimately, so did
the American people their own selves. In 1988, knowing full well what had gone on, we elected
to the presidency a vice-president who was hip-deep in the crimes and the cover-up, and we did
it because he was able to feign anger convincingly enough while lying his withered hindquarters
off to Dan Rather. In A Very Thin Line, his definitive account of the Iran-Contra crimes, historian
Theodore Draper gives us an account of what happened to the only serious congressional attempt
to respond to the demonstrable lawlessness of the Reagan administration.
As you may recall, Iran-Contra was essentially an attempt by the Reagan White House to evade a
law prohibiting direct American aid to the various priest-killers and nun-rapers we were
supporting in Central America. (There were a number of other facets, but that's basically what it
was all about.) One of the ways the Reagan people tried to get around the law was to solicit aid -financial and otherwise -- from third countries. In the summer of 1989, Senator Daniel Patrick
Moynihan introduced a bill specifically designed to close that loophole, and to make what the
Reaganauts tried to do a felony. As Draper points out, all hell promptly broke loose. President
George H.W. Bush threatened to veto the bill, which he eventually did at the end of November.
Nobody in the country said boo, even though Moynihan had drafted a bill that specifically

addressed the crimes at the heart of a scandal that had occupied the government for two years,
and that nearly blew up a presidency, and probably should have, and a president who knew
goddamn good and well what had gone on vetoed the bill, which was directly aimed at
prohibiting activities in which said president had been intimately involved.
The nation yawned. A lot of it was simple apathy, and the steady abandonment on the part
of the country of the obligations of self-government, and the concomitant lassitude as to
their duties by the politicians elected by an apathetic electorate. Some of it was simple fear;
this was particularly true of the press, which, as Mark Hertsgaard explains in On Bended
Knee, didn't want to be thought of as having "destroyed" another lawless presidency, as
though that wasn't the essential job description in Amendment I. (This, of course, was not a
consideration in the 1990's, when a lot of the same people spent two years chasing Bill Clinton's
penis all over the Beltway.) This dereliction was usually excused within the elite media with the
condescending argument that "the people" could not stand the trauma of another "failed
presidency." But this is inexcusable timidity. As Draper writes:
Not every dispute over the Constitution endangers it. This one, however, is qualitatively
different. An authoritarian, autocratic presidency in "the management of foreign relations"
is still a clear and present danger, "most susceptible of abuse of all the trusts committed to
a Government." And whatever we may think of the constitutional issue, there remains the
question: Do we want that kind of presidency?
The answer, for the moment, remains generally yes. Everything else is political noise.

Congress cant enforce the plan will backfire


Katyal, Georgetown University Law Professor, 6
[Neal Kumar, 8-16, Yale Law Journal, Lexis, THE MOST DANGEROUS BRANCH?
MAYORS, GOVERNORS, PRESIDENTS, AND THE RULE OF LAW: A SYMPOSIUM ON
EXECUTIVE POWER: ESSAY, Internal Separation of Powers: Checking Today's Most
Dangerous Branch from Within, 7.9.2015, JM]

Of course, Congress has not been passing legislation to denounce these Presidential actions
either. And here we come to a subtle change in the legal landscape with broad ramifications: the
demise of the congressional checking function. The story begins with the collapse of the nondelegation doctrine in the 1930s, which enabled broad areas of policymaking authority to be
given to the President and agencies under his control. That collapse, however, was tempered
by the legislative veto, meaning, in practical terms, that when Congress did not approve of a
particular agency action, the legislature could correct the problem. But after INS v.
Chadha, 15 which declared the legislative veto unconstitutional, that checking function,
too, has disappeared. While Congress has at times engaged in oversight, such as the scandaldriven 1995- 2000 period, such oversight is often stymied by structural dynamics.

In most instances today, the only way for Congress to disapprove of a presidential decree, even
one chock full of rampant lawmaking, is to pass a bill with a solid enough majority to override a
Presidential veto. This transforms the veto into a tool that entrenches presidential decrees, rather
than one that blocks congressional misadventures. And because Congress ex ante appreciates
the supermajority-override rule, its members do not even bother to try to check the
President, knowing that a small cadre of loyalists in either House can block such a bill.16
For example, when some of the Senates most powerful Republicans (John McCain, Lindsay
Graham, and John Warner) tried to regulate detentions and trials at Guantnamo Bay, they were
told that the President would veto their bill or any other attempt to modify the AUMF.17 The
result is that once a court interprets a congressional act, such as the AUMF, to give the President
broad powers, Congress often cannot reverse the interpretation, even if they never intended to
give the President those powers in the first place. Members of Congress must not only surmount
a supermajority requirement, they must do so in each House. Senator McCain might persuade
every one of the other ninety-nine Senators to vote for his bill, but that is of no moment without a
supermajority in the House of Representatives as well.
At the same time, the executive branch has gained power from deference doctrines that
induce courts to leave much conduct untouchedparticularly in foreign affairs.19 The
combination of deference and the presidential veto is particularly insidiousit means that a
President can interpret a vague statute to give him additional powers, receive deference in
that interpretation from courts, and then lock that decision into place via his veto power. This
ratchetand-lock scheme makes it almost impossible to rein in executive power.
This expansion of presidential power is exacerbated by the party system. When the political
branches are controlled by the same party, considerations of loyalty, discipline, and self-interest
generally preclude inter-branch checking. That general reluctance is exacerbated by the
paucity of weapons with which to check the President, with the only ones in existence called
nuclear ones. In earlier times, it was not difficult to use legislative vetoes as surgical checks.
But post-Chadha, Congress only has weapons that cause extensive collateral damage. The
fear of that damage, of course, becomes yet another reason why Congress is plagued with
inertia. And the filibuster, the last big check in periods of single-party government, is useless
against the host of problems where Presidents take expansive views of their powers under
existing laws (such as the AUMF). Instead of preserving bicameralism, the rule in Chadha has
therefore led to its subversion and no-cameralism.
All legislative action is therefore dangerous. Any bill, like Senator McCains torture bill, can
be derailed through compromise. Even if its text ultimately has teeth, a President will interpret
it niggardly, and that interpretation will likely receive deference from a court, and it will then be
locked into place due to the veto. A rational legislator, fearing this cascading cycle, is likely to do
nothing at all.
A Congress that conducts little oversight provides a veneer of legitimacy to an adventurist
President. The President can appeal to the historic sense of checks and balances, even if those
checks are entirely compromised by modern political dynamics. With this system in place, it is
no surprise that calls for legislative revitalization in the wake of the September 11th attacks have

failed. No successful action-forcing mechanisms have been developed; instead we are still in
John Hart Elys world of giving a halftime pep-talk imploring that body to pull up its socks and
reclaim its rightful authority.20 Instead of another pep-talk, it is time to consider secondbest solutions to bring separation of powers into the executive. Bureaucracy can be reformed
and celebrated (instead of purged and maligned), and neutral conflict-decision mechanisms can
be introduced. Design choices such as these can help bring our government back in line with the
principles envisioned by our Foundersones that have served our nation and the world so well
for so long.

Security bureaucracy controls every part of Congress


Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 62, accessed 7.9.15, AM]

As a result, Trumanite influence permeates the legislative process , often eclipsing even
professional committee staff. Trumanites draft national security bills that members
introduce. They endorse or oppose measures at hearings and mark-ups. They lobby
members, collectively and one-on-one. Their positions appear on the comparative prints
that guide members through key conference committee deliberations. Sometimes
Trumanites draft the actual language of conference reports. They wait outside the
chambers of the House and Senate during floor debates, ready on-the-spot to provide
members with instant arguments and data to back them up. Opponents frequently are blindsided. Much of this activity is removed from the public eye, leading to the impression that
the civics-book lesson is correct; Congress makes the laws. But the reality is that virtually
everything important on which national security legislation is based originates with or is
shaped by the Trumanite network .
Conversely, congressional influence in the Trumanites decisionmaking processes is all but
nil. The courts have, indeed, told Congress to keep out. In 1983, the Supreme Court
invalidated a procedure, called the legislative veto, which empowered Congress to
disapprove of Trumanite arms sales to foreign nations, military initiatives, and other
national security projects.350 The problem with the concept, the Court said, was that it
permitted Congress to disapprove of executive action without the possibility of a presidential
veto.351 A legislative proposal thereafter to give the Senate Intelligence Committee the
power to approve or disapprove covert actions was rejected, on the grounds that the Court
had ruled out such legislative controls.352

Executive noncompliance simply avoids a weak congress


Barron and Leberman, US court of Appeals Judge and Georgetown University Law
Professor, 08
[David J. Barron, February, Harvard Law Review, The Commander In Chief At The Lowest
Ebb A Constitutional History, Vol 121, No 4, http://cdn.harvardlawreview.org/wpcontent/uploads/pdfs/barron_lederman2.pdf, Date Accessed: 7.9.2015, JM]

Powers once claimed by the Executive are not easily relinquished. One sees from our
narrative how, in a very real sense, the constitutional law of presidential power is often made
through accretion. A current administration eagerly seizes upon the loose claims of its
predecessors, and applies them in ways perhaps never intended or at least not foreseen or
contemplated at the time they were first uttered. The unreflective notion that the conduct
of campaigns is for the President alone to determine has slowly insinuated itself into the
consciousness of the political departments (and, at times, into public debate), and has
gradually been invoked in order to question all manner of regulations, from requirements to
purchase airplanes, to limitations on deployments in advance of the outbreak of hostilities, to
criminal prohibitions against the use of torture and cruel treatment. In this regard, the claims of
the current Administration represent as clear an example of living constitutionalism in practice as
one is likely to encounter. There is a radical disjuncture between the approach to constitutional
war powers the current President has asserted and the one that prevailed at the moment of
ratification and for much of our history that followed.
But that dramatic deviation did not come from nowhere. Rarely does our constitutional
framework admit of such sudden creations. Instead, the new claims have drawn upon those
elements in prior presidential practice most favorable to them. That does not mean our
constitutional tradition is foreordained to develop so as to embrace unchecked executive
authority over the conduct of military campaigns. At the same time, it would be wrong to
assume, as some have suggested, that the emergence of such claims will be necessarily
selfdefeating, inevitably inspiring a popular and legislative reaction that will leave the
presidency especially weakened. In light of the unique public fears that terrorism
engenders, the more substantial concern is an opposite one. It is entirely possible that the
emergence of these claims of preclusive power will subtly but increasingly influence future
Executives to eschew the harder work of accepting legislative constraints as legitimate and
actively working to make them tolerable by building public support for modifications. The
temptation to argue that the President has an obligation to protect the prerogatives of the office
asserted by his or her predecessors will be great. Congresss capacity to effectively check such
defiance will be comparatively weak. After all, the President can veto any effort to
legislatively respond to defiant actions, and impeachment is neither an easy nor an
attractive remedy.

The public devotes attention to individuals who hold officethese people pass the
agenda of the bureaucracy to appear popular
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 43, accessed 7.9.15, AM]

Creating and maintaining this illusion is not difficult. The Madisonian institutions go along
with policymaking by the Trumanites so long as it is popular, and if it is popular, their
incentive is to be seen as its sponsor. Thus with the 2001 Authorization for Use of Military
Force,230 hastily enacted following the September 11 attacks, Congress positioned itself to
take credit for the retaliatory actions all knew, at least in general terms, the Trumanites
were preparing. It is in the interests of neither to clash publicly with the other. Open
confrontation calls into question both the expertise of the Trumanites as well as the seeming
authority of the Madisonians. For the Madisonian institutions to challenge the Trumanite
network publicly would entail an uncertain outcome and risk a loss of credibility for both, as
occurred when Truman fired MacArthur, when Obama fired McChrystal, when the Supreme
Court gave the press the goahead to publish the top-secret Pentagon Papers, or when the Church
Committee roughed up the CIA. The Madisonian challenge to the CIAs enhanced interrogation
program ended, unsurprisingly, with a Madisonian decision to absolve the Trumanites of all
responsibility.231 In clashes such as these, both sets of institutions lose a degree of public
respect, albeit among different constituencies. Members of Congress, similarly, do have policy
preferences, but their first objective is to stay in office. Falling out of sync with the
Trumanites is not a wise strategy for career longevity. Buried in the New York Times reportage
on the Benghazi controversy was the tip-of-the iceberg revelation that the House Intelligence
Committee, whose members needed talking points to use with reporters in discussing the attacks,
asked that they be prepared by then-Director of the CIA David Petraeus.232 Far safer is for
Congress to approve initiatives that, if not its own, at least appear to be.
Together, these five elementshistorical pedigree, ritual, intelligibility, mystery, and
harmonyfoster the appearance that The People rule through constitutionally
established institutions; they cling to the idea that the government is a sort of automatic
machine, regulated by the balancing of competing interests.233 Accordingly, they are want
to believe that the purpose of a presidential election is to determine whether to continue
existing policy and that when a new President takes office he begins with a blank slate.234
The rhetoric of presidential campaigns reinforces this belief; it is no accident that change
has been the recurring theme in recent elections. Congress, too, and its stance on national
security policy are seen to be wholly a function of public will. If only the right person were
elected and if only these right officials were to approve the right judges, policy would

change. Public attention is thus deflected from networks and institutions to the individuals
who hold office . Those individuals are the Madisonians, the Trumanites being all but invisible.

Congress would rather support NSA power abuse than jeopardize national security.
Greenwald, constitutional lawyer, 13
[Glenn Greenwald, The Guardian, FISA court oversight: a look inside a secret and empty
process, June 18, 2013, http://www.theguardian.com/commentisfree/2013/jun/19/fisa-courtoversight-process-secrecy, date accessed 7/7/15, CR]

That was the law which George Bush, in late 2001, violated, when he secretly authorized
eavesdropping on the international calls of Americans without any warrants from that
court. Rather than act to punish Bush for those actions, the Congress, on a bipartisan basis
in 2008, enacted a new, highly diluted Fisa law the Fisa Amendments Act of 2008 (FAA)
that legalized much of the Bush warrantless NSA program. Under the FAA, which was just
renewed last December for another five years, no warrants are needed for the NSA to
eavesdrop on a wide array of calls, emails and online chats involving US
citizens. Individualized warrants are required only when the target of the surveillance is a US
person or the call is entirely domestic. But even under the law, no individualized warrant is
needed to listen in on the calls or read the emails of Americans when they communicate with a
foreign national whom the NSA has targeted for surveillance. As a result, under the FAA, the
NSA frequently eavesdrops on Americans' calls and reads their emails without any
individualized warrants exactly that which NSA defenders, including Obama, are trying to
make Americans believe does not take place. As Yale Law professor Jack Balkin explained
back in 2009: "The Fisa Amendments Act of 2008, effectively gives the President - now
President Obama - the authority to run surveillance programs similar in effect to the
warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is
because New Fisa no longer requires individualized targets in all surveillance programs. Some
programs may be 'vacuum cleaner' programs that listen to a great many different calls (and read a
great many e-mails) without any requirement of a warrant directed at a particular person as long
as no US person is directly targeted as the object of the program. . . . "New Fisa authorizes the ,
creation of surveillance programs directed against foreign persons (or rather, against
persons believed to be outside the United States) which require no individualized suspicion of
anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably
include many phone calls involving Americans, who may have absolutely no connection to
terrorism or to Al Qaeda." As the FAA was being enacted in mid-2008, Professor
Balkin explained that "Congress is now giving the President the authority to do much of
what he was probably doing (illegally) before".

AT Restriction/Codification Solves

Restrictions are not effective at preventing executive action new restrictions create
more avenues for circumvention
Fatovic, Florida International University, Politics and International Relations
Professor, 13
(Clement Fatovic, Associate Professor, Department of Politics and International Relations,
Florida International University, 2013, Maryland Law Review, Vol. 73 Issue 1, Blurring the
Lines: The Continuities Between Executive Power and Prerogative,
http://digitalcommons.law.umaryland.edu/mlr/vol73/iss1/3/, p20-29, Accessed 7/9/15, AMM)

LAW AND THE PARADOX OF EXECUTIVE POWER Every exercise of executive power is
simultaneously rule-bound and discretionary. Sometimes the applicable rules themselves
allow or invite some forms of discretion even as they seek to curb or prevent other forms of
discretion. Some rules are more flexible than others and might even be better described as
standards or as principles.25 But in all cases , the very act of following a rule involves an
act of interpretation that is always to some degree discretionary. No matter how formal and
specific the rules may be, they are never selfinterpreting or self-enforcing. As the philosopher
Ludwig Wittgenstein suggested, no rule ever determines a particular course of action 24. For a
review and example of the indeterminacy of accounts of executive power, see HARVEY C.
MANSFIELD, JR., TAMING THE PRINCE: THE AMBIVALENCE OF MODERN
EXECUTIVE POWER 13 (1993). 25. Cass R. Sunstein argues that [t]here is a continuum
of law from strict rules to untrammeled discretion, with factors, standards, and guidelines
falling in between. For a discussion of these distinctions, see CASS R. SUNSTEIN, LEGAL
REASONING AND POLITICAL CONFLICT 21 (1996). FatovicFinalBookProofNew 11/6/2013
2:21 PM 2013] EXECUTIVE POWER & PREROGATIVE 21 because every rule is susceptible
to different interpretations.26 Discretion is not the exception, but the rule, so to speak. The
upshot is that the rule of law (to the extent that it is conceptualized as the rule of formal laws)27
is an ideal that is never fully realized in practice.28 Like executive power, it is a matter of
degree. To be sure, rules themselves sometimes define the space within which the Executive
is authorized to exercise discretion, but there is always a possibility of discretion that
exceeds a formal allowance. This points to the paradox of executive power: Every attempt
to augment the law has the potential to augment the power of the Executive, as well.
Throughout the history of legal and political thought, it has often been assumed that increases in
the law would contribute to decreases in discretion. Increases in either the number or the
specificity of laws were expected to constrain, if not eliminate, discretionary action. That has
been one of the main justifications for the rule of law dating back to Aristotle, if not earlier.29
The expectation of reformers has been that juridification would promote rule of law values such

as predictability, uniformity, and accountability; but that is not always the case. Instead of
curtailing the discretion of the Executive, the proliferation of law actually has the potential
to increase the discretion of the Executive. Of course, much of the juridification that has
occurred, especially since World War II, has been specifically designed to augment the wartime
and emergency powers of the Executive, both in the United States and elsewhere.30 As a result,
prerogative in the strictest 26. LUDWIG WITTGENSTEIN, PHILOSOPHICAL
INVESTIGATIONS 8082 (G.E.M. Anscombe trans., Blackwell Publishers, Ltd. 1953). 27. See,
e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 117680
(1989) (arguing that law made by courts should establish general rules as opposed to leaving
ample discretion to lower courts); Robert S. Summers, A Formal Theory of the Rule of Law, 6
RATIO JURIS 127, 128 (1993) (contending that the rule of law is best conceptualized as a
relatively circumscribed formal theory). 28. Ernest Weinrib, The Intelligibility of the Rule of
Law, in THE RULE OF LAW: IDEAL OR IDEOLOGY 59 (Allan C. Hutchison & Patrick
Monahan eds., 1987); Timothy A. O. Endicott, The Impossibility of the Rule of Law, 19
OXFORD J. LEGAL STUD. 1, 1 (1999). 29. ARISTOTLE, THE POLITICS 124 (Ernest Barker
trans., Oxford Univ. Press 1995) (c. 384 B.C.E.). See also A. V. DICEY, INTRODUCTION TO
THE STUDY OF THE LAW OF THE CONSTITUTION 188 (10th ed. 1961). 30. There is also a
tendency toward forms of juridification that constrain behavior in those areas where the exercise
of power is expected to be most discretionary, namely in the realm of military and foreign affairs.
The development of what critics call lawfare, which constitutes an attempt to subject military
decisions and tactics to legal constraints, actually illustrates how easy it is to move along the
continuum between less rule-bound and more rule-bound action. On the development and growth
of lawfare in recent U.S. histo- FatovicFinalBookProofNew 11/6/2013 2:21 PM 22
MARYLAND LAW REVIEW [VOL. 73:15 Lockean sense may now seem obsolete. That is,
statutory delegations of authority make it unnecessary for the Executive to act outside the law
when the law gives executives almost all the power they would want or need in order to deal
with an emergency.31 For instance, several major acts passed by Congress since 9-11, including
the Authorization for Use of Military Force32 (AUMF) and the Emergency Economic
Stabilization Act of 2008,33 provided sweeping grants of authority to the executive branch.
These laws confer so much discretion on the Executive that the practical differences (if not the
legal status) between Lockean prerogative and action taken in accordance with these laws are
difficult to discern. The vast discretionary powers that have been delegated to the Executive
make the line between prerogative and rule-based executive action blurrier than ever. But
executive power can also expand in unintended ways, even in those areas where legislators
have sought to bring it under greater legal control. The War Powers Resolution of 197334
(Resolution) exemplifies the paradoxical quality of executive power. The purpose of the
legislation was to limit the war powers of the President after the misadventures in Vietnam and
Cambodia, but it has had the opposite effect. Even though the law was designed to rein in the
power of the President to deploy military forces abroad, it has actually done more to expand than
to contract those powers. The Resolution stipulates that the President must withdraw the armed
forces of the United States from military engagements within ninety days of notifying Congress
if Congress has not authorized continued military engagement or is physically unable to meet as

a result of an armed attack upon the United States.35 Despite the intentions of lawmakers, the
actual effect was to expand those very same powers by sanctioning unilateral war-making by the
President for up to ninety days.36 ry, see GOLDSMITH, supra note 9, at 5864; JACK
GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER
9/11, at 22333 (2012). 31. Some of these trends are documented in ROSSITER, supra note 11,
at 21722; GROSS & N AOLIN, supra note 12, at 3585. See also Clement Fatovic &
Benjamin Kleinerman, Introduction: Extra-Legal Measures and the Problem of Legitimacy, in
EXTRA-LEGAL POWER AND LEGITIMACY: PERSPECTIVES ON PREROGATIVE
(Oxford Univ. Press, forthcoming). 32. Pub. L. No. 107-40, 115 Stat. 224 (2001). 33. Pub. L. No.
110-343, 122 Stat. 3765 (2008). 34. Pub. L. No. 93-148, 87 Stat. 555 (codified at 50 U.S.C.
15411548 (1999)). 35. 50 U.S.C. 1544(b) (2006). 36. LOUIS FISHER, PRESIDENTIAL
WAR POWER 145 (2d rev. ed. 2004). FatovicFinalBookProofNew 11/6/2013 2:21 PM 2013]
EXECUTIVE POWER & PREROGATIVE 23 The Freedom of Information Act of 196637
(FOIA) is another example of a law designed to limit executive power that ends up, in fact,
augmenting it. The purpose of FOIA was to make government documents and information more
readily available to the public.38 However, FOIA also carved out nine areas that would be
exempt from its requirements.39 Congress defined the criteria for eight of these exemptions, but
it left it up to the President to determine what documents should be kept secret in the interest of
national defense or foreign policy.40 As a result, FOIAa statute that was intended to expand
public access to informationhad the effect of giving the President almost total control over
certain classes of information.41 In 1982, President Ronald Reagan took advantage of this
provision to issue an executive order that imposed new and expanded classification
requirements, undid declassification procedures that had been ordered by President Jimmy
Carter, and allowed agencies to classify information that had already been made available to the
public.42 Although President Bill Clinton issued an executive order in 1995 that undid many of
these policies to make the classification system more consistent with the intentions of the
legislators who created FOIA,43 his reversal did not change the fact that FOIA allows each
president to decide unilaterally how much and what kinds of information the public is able to
access.44 Even laws that do not directly address the powers of the President have the
potential to augment those powers for reasons completely unrelated to increases in the size
or budget of the administrative agencies under the control of the executive branch .45 The
enactment 37. Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C. 552
(2012)). 38. Id. 39. 5 U.S.C. 552(b) (2006). 40. 5 U.S.C. 552(b)(1)(A) (2006). 41.
KENNETH R. MAYER, WITH THE STROKE OF A PEN: EXECUTIVE ORDERS AND
PRESIDENTIAL POWER 15556 (2001). 42. Exec. Order No. 12,356, 47 Fed. Reg. 14,874
(Apr. 6, 1982) (Reagan). 43. Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 20, 1995)
(Clinton). 44. 5 U.S.C. 552(b)(1) (2006). 45. Of course, the tremendous growth of the
administrative state during the twentieth century has created opportunities for the exercise of
discretionary powers by bureaucratic officials that are never fully under the control of the
President. Even as the number of officials and responsibilities that fall within the Presidents
purview has increased dramatically, the Presidents ability to exert control over administrative
agencies has failed to keep pace. For a classic critique of this problem, see James Q. Wilson, The

Rise of the Bureaucratic State, 41 NATL AFF. 77 (1975). FatovicFinalBookProofNew


11/6/2013 2:21 PM 24 MARYLAND LAW REVIEW [VOL. 73:15 of new laws creates new
opportunities for the exercise of executive power, and the enactment of laws in new areas opens
up new areas for the expansion of executive power. The requirement to enforce the law is, of
course, an invitation to exercise executive power. But how that power is exercised depends, in
the first instance, on how the law is interpreted. Interpretation is a power that should not
be underestimated, especially in light of the fact that the Executive gets to act on that
interpretation before any court offers its own opinion. 46 More often than not, courts will
defer to the interpretation offered by the Executive. 47 It is also worth bearing in mind that
any decision on how to enforce or apply the law always presupposes an antecedent decision
whether to enforce and apply the law in specific cases. The constitutional requirement that
the President shall take Care that the Laws be faithfully executed48 has not prevented
presidents from enforcing particular laws in a highly selective manneror not at all .49
Steven G. Calabresi and Christopher S. Yoo observe that presidents throughout the nations
history have exercised a form of prosecutorial discretion in their enforcement of particular
laws.50 They cite numerous examples of George Washington, John Adams, Thomas Jefferson,
Andrew Jackson, and other presidents ceasing prosecutions against specific individuals.51 In at
least one of these cases, the order to halt prosecutions was motivated by strong disapproval of the
laws on which they were based.52 The infamous Sedition Act of 179853 provided that ongoing
prosecutions could continue even after the law expired (the day before the new President took
office), but President Jefferson ordered an end to all prosecutions brought under that law, a law
he vehemently opposed from its beginnings based on political and constitutional grounds.54 46.
Geoffrey P. Miller, The Presidents Power of Interpretation: Implications of a Unified Theory of
Constitutional Law, 56 LAW & CONTEMP. PROBS. 35, 3538 (1993). 47. David A. Strauss,
Presidential Interpretation of the Constitution, 15 CARDOZO L. REV. 113, 12627 (1993). 48.
U.S. CONST. art. II, 3. 49. Miller, supra note 46, at 56. 50. STEVEN G. CALABRESI &
CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM
WASHINGTON TO BUSH 4951, 6061, 67, 103 (2008). 51. Id. 52. Id. at 67. 53. Act of July
14, 1798 (Sedition Act), Ch. 74, 1 Stat. 596 (1798). 54. CALABRESI & YOO, supra note 50, at
67. FatovicFinalBookProofNew 11/6/2013 2:21 PM 2013] EXECUTIVE POWER &
PREROGATIVE 25 The use of signing statements, which dates back to the administration of
James Monroe,55 provides another example of how the Presidents responsibility to execute the
law becomes the basis for assertions of power that may be contrary to the law. More specifically,
presidents have issued signing statements declaring their refusal to implement the law in the
manner prescribed by Congress. Signing statements are often based onor at least state
constitutional objections to provisions in legislation, especially to congressional assertions of the
legislative veto, infringements on executive privilege, and other perceived encroachments on the
Presidents powers and privileges.56 Presidents, however, have also used signing statements
to pursue objectives that have little to do with protecting the constitutional powers of the
office. They have used signing statements to indicate approval of legislation, to provide

guidance to officials responsible for implementing the legislation, to express the Presidents
own interpretation of legislation, and to announce limits on the actual enforcement of
legislation. 57 One of the most notable and controversial signing statements in recent history
was the one that President George W. Bush issued in response to the 2006 Department of
Defense Appropriations bill.58 President Bushs signing statement announced that the Executive
would construe the provision of the bill restricting the use of certain interrogation methods on
enemy combatants, better known as the McCain Amendment, in a manner consistent with the
constitutional authority of the President to supervise the unitary executive branch and as
Commander in Chief.59 Of course, presidents always claim that the law is on their side, even
though there is no mention of anything like a power to issue signing statements any- 55.
Christopher S. Kelley & Bryan W. Marshall, The Last Word: Presidential Power and the Role of
Signing Statements, 38 PRESIDENTIAL STUD. Q. 248, 253 (2008). 56. Kevin A. Evans,
Looking Before Watergate: Foundations in the Development of the Constitutional Challenges
Within Signing Statements, FDR-Nixon, 42 PRESIDENTIAL STUD. Q. 390, 392 94 (2012).
57. PHILLIP J. COOPER, BY ORDER OF THE PRESIDENT: THE USE & ABUSE OF
EXECUTIVE DIRECT ACTION 199230 (2002). Recent scholarship has argued that the
majority of signing statements are used to establish a dialogue between the president and
Congress regarding the breadth of each institutions powers. Ian Ostrander & Joel Sievert,
Whats So Sinister About Presidential Signing Statements?, 43 PRESIDENTIAL STUD. Q. 58,
60 (2013). Other scholars have argued that signing statements are largely rhetorical in function.
Christopher S. Kelley et al., Assessing the Rhetorical Side of Presidential Signing Statements, 43
PRESIDENTIAL STUD. Q. 274, 27476 (2013). 58. Statement on Signing the Department of
Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico,
and Pandemic Influenza Act, 2006, 41 WEEKLY COMP. PRES. DOC. 1918 (Dec. 30, 2005). 59.
Id. FatovicFinalBookProofNew 11/6/2013 2:21 PM 26 MARYLAND LAW REVIEW [VOL.
73:15 where in the Constitution.60 In making these claims, presidents often rely on such
expansive and controversial interpretations of their power that the lines between executive
power and prerogative seem to disappear entirely. Not only have presidents asserted the right
to ignore portions of the law, they have also sought to transform signing statements themselves
into a kind of law. In addition to treating past signing statements as precedents to justify
presidential actions in the present, there have been successful attempts since the presidency of
Ronald Reagan to enter signing statements into the legislative history of particular statutes.61
Executive orders provide another means for presidents to modify the laws they are supposed to
enforce. The Presidents ability to direct executive agencies through these unilateral edicts is so
similar to a legislative power that scholars have described it as a form of executive
lawmaking.62 Throughout the history of the United States, presidents have used executive
orders to interpret and administer laws in ways that Congress may not have intended.63 A case in
point is Executive Order 12,291, which President Reagan issued less than one month after he
took office.64 Rather than asking Congress to make legislative changes to a regulatory system
that the Administration deemed too onerous to business and stifling to the economy, President
Reagan invoked the authority vested in [him] as President by the Constitution and laws of the
United States of America to issue an executive order that would restrict the adoption and

implementation of administrative rules and regulations that did not maximize the net benefits to
society.65 Executive Order 12,291 required all executive 60. Article I, 7 of the Constitution
stipulates that a presidential veto must be accompanied by a statement of the Presidents
Objections, but it says nothing about issuing a statement that expresses the Presidents
approval or interpretation of a bill. U.S. CONST. art. I, 7. 61. COOPER, supra note 57, at 210
11. 62. MAYER, supra note 41, at 1622. For a critique of executive lawmaking, see Louis
Fisher, Laws Congress Never Made, 5 CONSTITUTION 59 (1993). For the counterargument
that executive orders are more likely to rely on persuasion rather than command, see Andrew C.
Rudalevige, The Contemporary Presidency: Executive Orders and Presidential Unilateralism, 42
PRESIDENTIAL STUD. Q. 138 (2012). 63. Of course, efforts to direct agencies to act in ways
that conflict with the ostensible intentions of lawmakers do not always succeedand may even
trigger heightened levels of legislative oversight. Scott H. Ainsworth, et al., Congressional
Response to Presidential Signing Statements, 40 AM. POL. RES. 1067, 1068 (2012). But
successful or not, these attempts do indicate something about the way that presidents understand
their own powers and what they think they can accomplish. 64. Exec. Order No. 12,291, 46 Fed.
Reg. 13,193 (Feb. 19, 1981). 65. Id. 2(c), 46 Fed. Reg. at 13, 193. FatovicFinalBookProofNew
11/6/2013 2:21 PM 2013] EXECUTIVE POWER & PREROGATIVE 27 agencies to use costbenefit analyses to justify the promulgation of any new regulations and stipulated that
[r]egulatory action shall not be undertaken unless the potential benefits to society for the
regulation outweigh the potential costs to society.66 The Administration defended its authority
to issue this order on the grounds that executive power includes the ability to control all
executive agencies; but critics have argued that the order violated the law concerning the
rulemaking process laid out in the Administrative Procedures Act of 1946.67 Despite
complaints that this and other executive orders issued by Republican and Democratic
presidents alike have defied the intent of legislators, neither Congress nor the Supreme
Court has done much to reverse these decisions . It is well known that external shocks,
including invasions, insurrections, and other emergencies create opportunities for the
exercise and expansion of presidential war powers. As James Madison famously warned, In
war, too, the discretionary power of the Executive is extended; its influence in dealing out
offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are
added to those of subduing the force, of the people.68 The possibility that executive power will
start to look more and more like prerogative is most obvious in the Presidents direct handling of
war and other emergencies. This was evident in the way that the Bush Administration prosecuted
the so-called War on Terror. The Bush Administration ordered the National Security Agency to
conduct warrantless wiretaps on electronic communications between persons in the United States
and those located in other countries, classified hundreds of prisoners as enemy combatants in
order to detain them in prisons indefinitely, and authorized the use of harsh methods of
interrogation, including waterboarding, against suspected terrorists. The Obama Administration
has continued and even expanded some of these practices, most notably in its use of unmanned
aerial drones to target suspected terrorists in Pakistan and other countries.69 Although both
Administrations justified these controversial policies in terms of the Presidents constitutional
war powers as commander in chief, critics have charged them with making legally questionable

and 66. Id. 2(b), 46 Fed. Reg. at 13, 193. 67. For additional information about the background
and consequences of this order, including the debate it generated, see MAYER, supra note 41, at
12631. 68. JAMES MADISON, Political Observations, in 4 LETTERS AND OTHER
WRITINGS OF JAMES MADISON 485, 491 (J.B. Lippincott & Co. 1865). 69. Mark Mazzetti
& David E. Sanger, Obama Expands Missile Strikes Inside Pakistan, N.Y. TIMES, Feb. 21,
2009, at A1. FatovicFinalBookProofNew 11/6/2013 2:21 PM 28 MARYLAND LAW REVIEW
[VOL. 73:15 tendentious assertions of power that might be better characterized as exercises of
(unjustified) prerogative. Other areas of executive power, including ordinary law enforcement,
can begin to shade over into prerogative in these circumstances. Ironically, the very same budget
constraints brought on by emergencies can provide opportunities for exercises of power that take
on the character of prerogative. The need to establish new spending priorities where resources
are scarce can provide a convenient excuse for presidents to scale back the enforcement of laws
that they never fully supported in the first place. For instance, the need to shift additional law
enforcement resources toward the fight against terrorism can be used by a pro-business
administration to de-prioritize federal investigations and prosecutions of white-collar crime. In
the years leading up to the economic crisis of 2008, the business-friendly Bush Administration
repeatedly denied requests by the Federal Bureau of Investigation to devote more resources to
the investigation of whitecollar crime on the grounds that counterterrorism had to remain a
priority. As a result, prosecutions of financial, securities, and insurance fraud plummeted in the
years after 9-11. 70 If executive power strictly conformed to rule of law principles, such
variations in law enforcement across different administrations would not exist. Apparent
constraints can be turned to the Presidents advantage outside the context of emergency, as
well. That is, instances of prerogative, however small, emerge even in circumstances that
present no immediate danger or urgency at all. One of the most striking examples of
executive discretion in recent memory is President Obamas decision, in the summer of 2012, to
suspend deportations of undocumented immigrants, no more than thirty years old, who came to
the United States before the age of sixteen and had committed no major crimes.71 One of
President Obamas publicly stated justifications for his executive order illustrates how easy it is
for executive power to expand as a result of constraints, and not just delegations, of authority. He
claimed that budget constraints made it impossible for him to carry out all deportations possible
under the law, so he was forced to establish priorities that would leave some individuals free 70.
Eric Lichtblau, David Johnston & Ron Nixon, F.B.I. Struggles to Handle Financial Fraud Cases,
N.Y. TIMES, Oct. 18, 2008, http:www.nytimes.com/2008/10/19/washington/ 19fbi.html?
_r=0&pagewanted=all. 71. Julia Preston & John H. Cushman, Jr., Obama to Permit Young
Migrants to Remain in U.S., N.Y. TIMES, June 16, 2012, at A1,
http://www.nytimes.com/1012/06/16/us/us-tostop-deporting-some-illegal-immigrants.html?
pagewanted=all&pagewanted=print. FatovicFinalBookProofNew 11/6/2013 2:21 PM 2013]
EXECUTIVE POWER & PREROGATIVE 29 from deportation. The fact that this was a
convenient pretext that allowed the President to achieve a desired policy outcome he could not
secure in an obstructionist Congress does not mean that he was lying when he said that budgetary
limitations forced him to set priorities. But it does serve to demonstrate that even ostensible
constraints on the Executive can provide opportunities for exercises of power that call to mind

prerogative, as critics were quick to point out.72 In the past two hundred plus years, much of the
tremendous growth in executive power has been the result of statutory delegations.73 Of course,
congressional delegations of authority to the President are formally grounded in law (though
whether these delegations are always consistent with the Constitution is another matter). It has
been unnecessary for the Executive to act without the prescription of the Law because the law
itself has been the source of vast new powers. This would seem to suggest that it is unhelpful and
even misleading to examine executive power in terms of Lockean prerogative.

Codified restrictions do not ensure compliance War Powers Resolution proves


Spiro, Hofstra University, Law, Associate Professor, 93
[Peter J., December 1993, New York University Law Review, BOOK REVIEW: WAR
POWERS AND THE SIRENS OF FORMALISM, Lexis, AJ]

This is the measure of constitutional legitimation. No doubt because the formal commands here
seem so imprecise, the exercise looked more like one of politics than of law. For this
imprecision we owe not only the Constitution itself - famously inconclusive on the issue n2 - but
also a longstanding refusal by the courts to act as referee. On perhaps no other contested issue of
constitutional law have there been so few judicial pronouncements. n3 Nor has this breach been
filled by effective or unquestioned statutory disposition. Where, most notably, the War Powers
Resolution of 1973 n4 purports either to have made or to reflect the separation of war
powers between the branches, it plainly has failed.
This want of the usual instruments of interpretation tends to distress lawyers, who are most
comfortable when using the powers of analogy to puzzle through a set hierarchy of selfcontained statutes and judicial opinions. n5 Among those who study war powers, the reflexive
suggestion has been to bring the subject into more familiar terrain by enhancing the role of the
courts and by refining the scope of statutory direction. With [*1340] War and Responsibility,
John Hart Ely now adds his own prominence to an already prominent chorus of legal academics
advocating a more formalist n6 approach to war powers disputes generally, through heightened
participation by the courts and enhanced statutory responsibilities for Congress. n7 Ely and these
other scholars would usher war powers into a more quotidian realm, one in which lawyers are
more capable of providing answers that in turn are more likely to be afforded respect.
But perhaps there is no need for this heightened formalism, and in any event the effort to
develop it is a doomed one . The dearth of case law and legislation does not make the law of
war powers any less the law; Professor Glennon to the contrary, war powers law is not a
"constitutional Oakland." n8 Custom dominates in place of text. Most of the law here consists
not of judicial precedents but of historical ones; legitimacy is found in repetition, innovation, and
acceptance, not in the case reports or the U.S. Code. Two hundred years of rich practice has
passed on the issue as between Congress and the presidency. This history may not be found in
anything equivalent to the neat shelves of published opinions, but the lines drawn by it are no

less real than lines drawn by more formal mechanisms. Indeed, in the war powers context the
lines of custom may be more authoritative than those purportedly dictated by judicial
interpretation or by statute. To the extent that formalists seek not simply [*1341] order but
the constraint of executive action, n9 the cause will not be advanced by these efforts.

Curtailment policies cause noncompliance in the government- weakening credibility


of Congress
Spiro, Hofstra University, Law, Associate Professor, 93
[Peter J., December 1993, New York University Law Review, BOOK REVIEW: WAR
POWERS AND THE SIRENS OF FORMALISM, Lexis, AJ]

Moreover, there is a harm in the perpetuation of text that neither reflects nor governs
behavior . The War Powers Resolution (either as is or as modified by the Ely proposal)
continues to bring the legislative branch into institutional disrepute. Congress looks
toothless to the extent that it has not, loosely speaking, lived up to its responsibilities or
exploited its prerogatives under the Resolution. n92 At the same time, the presidency seems
bold in defiance. Insofar as it has not come to be ig [*1361] nored altogether, the Resolution
may play into the hands of executive branch partisans by serving as a lingering reminder that
Congress, even as equipped with statutory tools, has acquiesced in the sometimes uncurbed
exercise of presidential discretion. This acquiescence, in turn, may fuel the more extreme
claims of exclusive presidential powers, as was true of some of President Bush's
pronouncements leading up to the Gulf War. Alternatively, the continued formal validity of the
Resolution may drive the executive branch to overcompensate rhetorically in defending
what it considers to be its exclusive powers unconstitutionally reallocated by the Act. Worse,
the disjunction of text and practice could distort the decisionmaking process so as to result
in presidential attempts to broaden the range of action undertaken without legislative
approval.

AT Courts Check
Courts fail at stopping surveillance circumvention judges support surveillance and
institutions are passive
Greenwald, constitutional lawyer, 15
[Glenn, journalist, constitutional lawyer, and author of four New York Times best-selling 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, 11/19/14, The
Intercept, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead,
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-masssurveillance/ , Accessed 7/7/15, DR]

A U.S. federal judge already ruled that the NSAs domestic bulk collection program likely
violates the 4th Amendment, and in doing so, obliterated many of the governments underlying
justifications. Multiple cases are now on appeal, almost certainly headed to the Supreme Court.
None of this was possible in the absence of Snowden disclosures.
For a variety of reasons, when it comes to placing real limits on the NSA, I place almost as
little faith in the judiciary as I do in the Congress and executive branch. To begin with, the
Supreme Court is dominated by five right-wing justices on whom the Obama Justice
Department has repeatedly relied to endorse their most extreme civil-liberties-destroying
theories. For another, of all the U.S. institutions that have completely abdicated their role in
the post-9/11 era, the federal judiciary has probably been the worst, the most consistently
subservient to the National Security State.

No solvency The aff will be circumvented because of security threats


Scheppele, Princeton Woodrow Wilson School Sociology and Public Affairs
professor, 12
[Kim Lane Scheppele, January 12, Boston University Law Review, THE NEW JUDICIAL
DEFERENCE, 92 B.U.L. Rev. 89, Lexis, accessed 7/7/15, DR]

In this Article, I will show that American courts have often approached the extreme policies of
the anti-terrorism campaign by splitting the difference between the two sides - the government
and suspected terrorists. One side typically got the ringing rhetoric (the suspected terrorists), and
the other side got the facts on the ground (the government). In major decisions both designed
to attract public attention and filled with inspiring language about the reach of the
Constitution even in times of peril, the Supreme Court, along with some lower courts, has
stood up to the government and laid down limits on anti-terror policy in a sequence of

decisions about the detention and trial of suspected terrorists. But, at the same time, these
decisions have provided few immediate remedies for those who have sought the courts'
protection. As a result, suspected terrorists have repeatedly prevailed in their legal
arguments, and yet even with these court victories, little changed in the situation that they
went to court to challenge. The government continued to treat suspected terrorists almost as
badly as it did before the suspected terrorists "won" their cases. And any change in terrorism
suspects' conditions that did result from these victorious decisions was slow and often not
directly attributable to the judicial victories they won.
Does this gap between suspected terrorists' legal gains and their unchanged fates exist because
administration officials were flouting the decisions of the courts? The Bush Administration
often responded with sound and fury and attempted to override the Supreme Court's
decisions or to comply minimally with them when they had to. n6 But, as this Article will
show, these decisions did not actually require the government to change its practices very
quickly. The decisions usually required the government to change only its general practices in
the medium term. Judges had a different framework for analyzing the petitioners' situation than
the petitioners themselves did; judges generally couched their decisions in favor of the suspected
terrorists as critiques of systems instead of as solutions for individuals. In doing so, however,
courts allowed a disjuncture between rights and remedies for those who stood before them
seeking a vindication of their claims. Suspected terrorists may have won [*92] in these cases and they prevailed overwhelmingly in their claims, especially at the Supreme Court - but courts
looked metaphorically over the suspects' heads to address the policies that got these suspects into
the situation where the Court found them. Whether those who brought the cases actually got to
benefit from the judgments, either immediately or eventually, was another question.
Bad though the legal plight of suspected terrorists has been, one might well have expected it to
be worse. Before 9/11, the dominant response of courts around the world during wars and
other public emergencies was to engage in judicial deference. n7 Deference counseled courts
to stay out of matters when governments argued that national security concerns were central. As
a result, judges would generally indicate that they had no role to play once the bullets started
flying or an emergency was declared. If individuals became collateral damage in wartime, there
was generally no judicial recourse to address their harms while the war was going on. As the
saying goes, inter arma silent leges: in war, the law is mute. After 9/11, however, and while the
conflict occasioned by those attacks was still "hot," courts jumped right in, dealing governments
one loss after another. n8 After 9/11, it appears that deference is dead.
[*93] But, I will argue, deference is still alive and well. We are simply seeing a new sort of
deference born out of the ashes of the familiar variety. While governments used to win national
security cases by convincing the courts to decline any serious review of official conduct in
wartime, now governments win first by losing these cases on principle and then by getting
implicit permission to carry on the losing policy in concrete cases for a while longer, giving
governments a victory in practice. n9 Suspected terrorists have received [*94] from courts a
vindication of the abstract principle that they have rights without also getting an order that the
abusive practices that have directly affected them must be stopped immediately. Instead,

governments are given time to change their policies while still holding suspected terrorists
in legal limbo. As a result, despite winning their legal arguments, suspected terrorists lose the
practical battle to change their daily lives.
Courts may appear to be bold in these cases because they tell governments to craft new policies
to deal with terrorism. But because the new policies then have to be tested to see whether they
meet the new criteria courts have laid down, the final approval may take years, during which
time suspected terrorists may still be generally subjected to the treatment that courts have said
was impermissible. Because judicial review of anti-terrorism policies itself drags out the time
during which suspected terrorists may be detained, suspected terrorists win legal victories that
take a very long time to result in change that they can discern. As a result, governments win the
policy on the ground until court challenges have run their course and the courts make decisions
that contribute to the time that the litigation takes. This is the new face of judicial deference.
This Article will explore why and how American courts have produced so many decisions in
which suspected terrorists appear to win victories in national security cases. As we will see,
many judges have handled the challenges that terrorism poses for law after 9/11 by giving
firm support, at least in theory, to both separation of powers and constitutional rights.
Judges have been very active in limiting what the government can do, requiring substantial
adjustments of anti-terrorism policy and vindicating the claims of those who have been the
targets. But the solutions that judges have crafted - often bold, ambitious, and brave solutions nonetheless fail to address the plights of the specific individuals who brought the cases.
This new form of judicial deference has created a slow-motion brake on the race into a
constitutional abyss. But these decisions give the government leeway to tackle urgent threats
without having to change course right away with respect to the treatment of particular
individuals. New deference, then, is a mixed bag. It creates the appearance of doing something
- an appearance not entirely false in the long run - while doing far less in the present to bring
counter-terrorism policy back under the constraint of constitutionalism.

Judiciary wont check cases are thwarted at all levels


Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 46, accessed 7.9.15, AM]

The judiciary, in short, does not have the foremost predicate needed for Madisonian
equilibrium: a will of its own.304 Whatever the court, judges normally are able to find what
appear to the unschooled to be sensible, settled grounds for tossing out challenges to the
Trumanites projects. Dismissal of those challenges is couched in arcane doctrine that harks back

to early precedent, invoking implicitly the courts mystical pedigree and an aura of politicstranscending impartiality. But challenges to the Trumanites projects regularly get dismissed
before the plaintiff ever has a chance to argue the merits either before the courts or,
sometimes more importantly, the court of public opinion. Try challenging the Trumanites
refusal to make public their budget 305 on the theory that the Constitution does, after all,
require a regular statement and account of the receipts and expenditures of all public
money;306 or the membership of Members of Congress in the military reserve307 on the
theory that the Constitution does, after all, prohibit Senators and Representatives from holding
any office under the United States;308 or the collection of phone records of the sort given
by Verizon to the NSA on the theory that the law authorizing the collection is
unconstitutional.309 Sorry, no standing, case dismissed .310 Try challenging the domestic
surveillance of civilians by the U.S. Army311 on the theory that it chills the constitutionally
protected right to free assembly,312 or the Presidents claim that he can go to war without
congressional approval313 on the theory that it is for Congress to declare war.314 Sorry, not
ripe for review, case dismissed .315 Try challenging the introduction of the armed forces into
hostilities in violation of the War Powers Resolution.316 Sorry, political question, nonjusticiable, case dismissed.317 Try challenging the Trumanites refusal to turn over relevant
and material evidence about an Air Force plane accident that killed three crew members
through negligence,318 or about racial discrimination against CIA employees,319 or about an
extraordinary rendition involving unlawful detention and torture.320 Sorry, state secrets
privilege , case dismissed.321
Sometimes the courts have no plausible way of avoiding the merits of national security
challenges. Still, the Trumanites win. The courts eighty years ago devised a doctrinethe nondelegation doctrinethat forbids the delegation of legislative power by Congress to
administrative agencies.322 Since that time it has rarely been enforced, and never has the Court
struck down any delegation of national security authority to the Trumanite apparatus.323 Rather,
judges stretch to find implied congressional approval of Trumanite initiatives.
Congressional silence, as construed by the courts, constitutes acquiescence.324 Even if that
hurdle can be overcome, the evidence necessary to succeed is difficult to get; as noted earlier,325
the most expert and informed witnesses all have signed nondisclosure agreements, which
prohibit any discussion of classifiable information without pre-publication review by the
Trumanites. As early as 1988, over three million present and former federal employees had been
required to sign such agreements as a condition of employment.326 Millions more have since
become bound to submit their writings for editing and redaction before going to press. And as the
ultimate trump card, the Trumanites are cloaked in, as the Supreme Court put it, the very
delicate, plenary and exclusive power of the President as the sole organ of the federal
government in the field of international relationsa power which does not require as a
basis for its exercise an act of Congress.327 The basis of their power, the Court found, is,
indeed, not even the Constitution itself; the basis of Trumanite power is external
sovereignty the membership of the United States in the community of nations, which
confers extra-constitutional authority upon those charged with exercising it.328

Courts are ineffective in creating tangible change


Scheppele, Princeton Woodrow Wilson School Sociology and Public Affairs
professor, 12
[Kim Lane Scheppele, January 12, Boston University Law Review, THE NEW JUDICIAL
DEFERENCE, 92 B.U.L. Rev. 89, Lexis, accessed 7/7/15, DR]

A gap between law on the books and law in action is commonplace, and in fact, its
examination forms one of the key pillars of the law and society movement. n348 To law and
society scholars, the formal sources of law virtually always deviate from law as practiced
because of inconsistent enforcement, interpretive differences, strategic ignorance, practical
limitations, the avoidance of formality, or outright flouting. Laws against murder do not
prevent murders from happening, n349 just as constitutional provisions against forced
confessions do not always protect those held in custody from being beaten secretly into
submission. n350 Everyone is supposed to have her day in court, but nearly all cases - both civil
and criminal - settle, often by agreeing to a fiction that is not true - that a lesser included offense
was all that really happened in the events that led up to a plea bargain or that no one was
responsible for anything in a settlement that nonetheless transfers money from the defendant to
the claimant. n351 Someone may settle out of court for an agreed-upon amount, but then she
never gets what was promised her. n352 Gaps between law on the books and law in action
happen all the time.

In cases of terrorism threatening security, the courts are ineffective


Scheppele, Princeton Woodrow Wilson School Sociology and Public Affairs
professor, 12
[Kim Lane Scheppele, January 12, Boston University Law Review, THE NEW JUDICIAL
DEFERENCE, 92 B.U.L. Rev. 89, Lexis, accessed 7/7/15, DR]

By contrast, the terrorism cases appeared to do more than they did - and that was, I argue, their
point. In the terrorism cases, the Supreme Court appeared to expand its powers, stand up to the
political branches, and change the course of the anti-terror campaign by announcing that the
President was constrained by law. These opinions attracted full glare of media attention with
dramatic turns of phrase, generating headlines that implied the Court had exercised a great deal
of power to change the results on the ground. And the Court appeared to order an unwilling
President to do something he had so far refused to do.
But when the effects of the cases are examined, as we have done above, the Court's powers are
barely visible. n400 The Court's public decisions disguised the small effects they actually had

because the petitioners could not get much benefit from these rulings without more, much more.
The Court did not hide its own judicial power.

Judicial power exercises legalistic power to shape policy into politically


advantageous positions---often compromises on human rights
Cole, Georgetown University law professor, 12
[David, constitutional law, national security, and criminal justice at Georgetown University Law
Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the
New York Review of Books. He has been published widely in law journals and the popular press,
including the Yale Law Journal, California Law Review, Stanford Law Review, New York
Times, Washington Post, The New Republic, Wall Street Journal, and Los Angeles Times He is
the author of seven books, Georgetown University, Where Liberty Lies: Civil Society and
Individual Rights After 9/11, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?
article=2129&context=facpub,Date Accessed: 7/7/15, ACS]

A third account focuses on the Supreme Courts role in particular, and characterizes its
interventions as driven largely, if not exclusively, by concern for its own power, and not for
liberty or human rights.268 Moreover, this account is not persuasive even as an explanation
of the Courts own role. The same institutional self-interest in judicial power presumably
existed in other crises; yet, before the post-September 11 cases, the Supreme Court had
almost uniformly deferred to claims of executive prerogative on issues of national security
in times of crisis. However, this explanation, even if one were to accept it on its own terms as a
rationale for the Courts conduct, addresses only a small part of the picture. As discussed above,
most of the reforms were undertaken without an order from the Supreme Court. 269 Apart from
the steel seizure and Pentagon Papers cases,270 this was the first time the Court intervened to
restrain a President during wartime. In World War I, World War II, and during the height of the
Cold War, the Court remained on the sidelines or deferred to questionable assertions of national
security needs.271 Only when those conflicts came to an end did the Court assert itself.272
Indeed, a court concerned about conserving its own institutional power might be more
likely to defer during times of crisis. One cannot be certain how the public will respond to a
decision. Ruling for the enemy during wartime could be a risky proposition. A court
primarily concerned about maintaining its institutional capital might therefore make the
strategic choice to defer in times of crisis so as to avoid showdowns that could undermine
its legitimacy, thereby preserving its power for ordinary times.273 Moreover, to the extent
that the Supreme Court in the combatant cases viewed its choice as one of siding with law or
lawlessness, as I have suggested above, Accordingly, it is not obvious that the Supreme Courts
own institutional interests in times of crisis push it in the direction of intervention, rather than
deference or avoidance. 274

AT Courts Empirically Solve


Exceptions to deference by the Courts are a faade to mask the system
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 58, accessed 7.9.15, AM]

As is true with respect to the other Madisonian institutions, there are, of course, instances in
which the judiciary has poached on the Trumanites domain. The courts rebuffed an assertion
of the commander-inchief power in ordering President Truman to relinquish control of the steel
mills following their seizure during the Korean War.329 Over the Trumanites objections, the
courts permitted publication of the Pentagon Papers that revealed duplicity, bad faith, and
ineptitude in the conduct of the Vietnam War.330 The Supreme Court did overturn
military commissions set up to try enemy combatants for war crimes,331 and two years
later found that Guantnamo detainees had unlawfully been denied habeas corpus
rights.332 Personnel does sometimes matter. Enough apparent counterexamples exist to
preserve the faade.
Yet the larger picture remains valid. Through the long list of military conflicts initiated
without congressional approvalGrenada, Panama, Kosovo, and, most recently, Libya
the courts have never stopped a war, with one minor (and temporary) exception. In 1973,
Justice William O. Douglas did issue an order to halt the bombing of Cambodia333which
lasted a full nine hours, until the full Supreme Court overturned it.334 The Courts lawless
reversal was effected through an extraordinary telephone poll of its members conducted by
Justice Thurgood Marshall. [S]ome Nixon men, Douglas believed, put the pressure on
Marshall to cut the corners.335 Seldom do judges call out even large-scale constitutional
violations that could risk getting on the wrong side of an angry public, as American citizens of
Japanese ethnicity discovered during World War II.336 Whatever the cosmetic effect, the four
cases representing the Supreme Courts supposed push-back against the War on Terror during
the Bush Administration freed, at best, a tiny handful of detainees.337 As of 2010 fewer than 4%
of releases from Guantnamo followed a judicial release order.338 A still-unknown number of
individuals, numbering at least in the dozens, fared no better. These individuals were detained
indefinitely without charges, based on secret evidence, sometimes without counselas
material witnesses following 9/11.339 One can barely find a case in which anyone claiming to
have suffered even the gravest injury as the result of the Bush-Obama counterterrorism policies
has been permitted to litigate that claim on the meritslet alone to recover damages. The Justice
Departments seizure of Associated Press (AP) records was carried out pursuant to judiciallyapproved subpoenas, in secret, without any chance for the AP to be heard.340 The FISC 341 has

barely pretended to engage in real judicial review. Between 1979 and 2011, the court
received 32,093 requests for warrants. It granted 32,087 of those requests, and it turned
down eleven.342 In 2012, the court received 1,789 requests for electronic surveillance, one of
which was withdrawn. All others were approved.343 The occasional counterexample
notwithstanding, the courts cannot seriously be considered a check on Americas
Trumanite network.

AT 4th Amendment Protections


The NSA finds secret loopholes that allow broad surveillance of citizens despite
constitutional protections
Whittaker, ZDNet editor, 14
[Zack Whittaker, ZDNet, CNET, CBS News, Fortune, Wired, June 30 2014, CBS, Legal
loopholes could allow wider NSA surveillance, researchers say,
http://www.cbsnews.com/news/legal-loopholes-could-let-nsa-surveillance-circumvent-fourthamendment-researchers-say/, accessed 7.6.15, AM]

NEW YORK -- Secret loopholes exist that could allow the National Security Agency to
bypass Fourth Amendment protections to conduct massive domestic surveillance on U.S.
citizens, according to leading academics.
The research paper released Monday by researchers at Harvard and Boston University
details how the U.S. government could " conduct largely unrestrained surveillance on
Americans by collecting their network traffic abroad," despite constitutional protections
against warrantless searches.
One of the paper's authors, Axel Arnbak of Harvard University's Berkman Center for
Internet & Society, told CBS News that U.S. surveillance laws presume Internet traffic is nonAmerican when it is collected from overseas.
"The loopholes in current surveillance laws and today's Internet technology may leave
American communications as vulnerable to surveillance, and as unprotected as the internet
traffic of foreigners," Arnbak said.
Although Americans are afforded constitutional protections against unwarranted searches
of their emails, documents, social networking data, and other cloud-stored data while it's
stored or in-transit on U.S. soil, the researchers note these same protections do not exist
when American data leaves the country .
Furthermore, they suggest that Internet traffic can be "deliberately manipulated" to push
American data outside of the country. Although the researchers say they "do not intend to
speculate" about whether any U.S. intelligence agencies are actually doing this, they say it could
provide a loophole for vacuuming up vast amounts of U.S. citizen data for intelligence
purposes, thus "circumventing constitutional and statutory safeguards seeking to protect
the privacy of Americans," they warned.
The academic paper lands just over a year since the Edward Snowden revelations first came to
light, outlining the massive scope of U.S. government surveillance, under the justification of
preventing terrorism. Although the classified programs that make up the NSA's data

acquisition arsenal have only recently been disclosed over the past year, the laws that
govern them have been under close scrutiny for years. The paper only adds fuel to the fire
of the intelligence agency's alleged spying capabilities, which have been heavily criticized
by civil liberties and privacy groups alike.

Even the Director of National Intelligence admitted FISA grants unconstitutional


warrants that sidestep federal law
Timm, Freedom of the Press Foundation, executive director, 12
[Trevor Timm, co-founder and executive director of the Freedom of the Press Foundation, writer
for The Guardian, contributor to The Atlantic, Al Jazeera, Foreign Policy, Harvard Law and
Policy Review, PBS MediaShift, and Politico, formerly at the Electronic Frontier Foundation,
July 24, 2012, Electronic Frontier Foundation, Congress Must Act After US Government
Admits To Unconstitutional Warrantless Wiretapping For the First Time,
https://www.eff.org/deeplinks/2012/07/congress-must-act-after-us-government-admitsunconstitutional-warrantless, accessed 7.6.15, AM]

As Congress and the President rush to re-authorize the dangerous FISA Amendments Act (FAA)
the law shamefully passed after pressure to legalize certain portions of the NSAs warrantless
wiretapping programEFF has been sounding the alarm that Americans communications are
still being unconstitutionally collected by the government without a warrant. On Friday,
the Office of the Director of National Intelligence, (DNI) begrudgingly agreed,
acknowledging that, on at least one occasion the secret FISA court held that some
collectionused by the government was unreasonable under the Fourth Amendment.
In a letter to Sen. Ron Wyden (D-OR), the DNI declassified three statements at the request
of the Senator, one of which indicated that the FISA Court agreed with Wyden that the
government had circumvented the spirit of the law. Wired called it a federal sidestep
of a major section of the Foreign Intelligence Surveillance Act, and the Wall Street
Journal confirmed it represented the first time the government has acknowledged U.S.
spy activities violated the constitution since the passage of the FAA in 2008.
This is vital information, as Congress is in the midst of debate over extending Section 702 of the
FAA before it expires at the end of the year. Section 702 severely weakened privacy protections
for Americans communicating overseas, and may have swallowed protections against
surveillance of our domestic communications as well.
But its also important to take a step back here to understand how we know this and why that
process is deeply troubling. Apparently, the secret FISA courtat some pointruled that the
government was violating the Constitution. When? We have no idea. How many Americans
were affected? We dont know that either. As Cato Institutes Julian Sanchez pointed out,
these requests can be incredibly broada single incident could potentially impact millions

of Americans. Were there any remedies or was the NSA just given a slap on the wrist?
Again, we dont know.
And remember, the declassified statement says on at least one occasion so there very
likely could be more. Previously, the NSA told Sen. Wyden it was not possible to count the
number of Americans affected by FAA surveillance. Rather unbelievably, the NSA also stated
that even a general estimate of how many people the NSA had spied on would somehow violate
the privacy of those same Americans.
Wyden had been warning the American people for months in vague terms that the
government was overstepping its bounds in its interpretation of 702. Now, the only reason
weve learned the barest minimum about of the sidestepping of a public law and the Bill of
Rights is because the very same government agency that was responsible for the
wrongdoing allowed it.
Congress can and should force the administration to answer all of these questions in public, so
that we can allow the democratic process to determine whether 702 should be extended.
Of course, many major news outlets had been reporting since just after the FAA passed (here,
here, and here for starters) that Americans communications were still being collected by the
NSA without a warrant. Yet Congress has steadfastly refused to fix the problem. Both
House and Senate committees recently voted down amendments that would have added
privacy safeguards and transparency requirements to the law, claiming no such evidence
existed.
Sen. Wyden, on the other hand, has been alleging that section 702 [of the Act] currently
contains a loophole that could be used to circumvent traditional warrant protections and
search for the communications of a potentially large number of American citizens. But
Wydens amendment that would have required a warrant to search the communications of a
specific American was voted down 13-2 after Intelligence committee chairman Dianne Feinstein
insisted there was no such loophole. Sen. Feinsteins assurances seem to conflict with the DNIs
statement.
Similarly, when Rep. John Conyers implored his House colleagues to vote for an amendment
requiring the government give a general estimate how many times Americans communications
had been collected without a warrant, Rep. Dan Lungren (R-California) shot back: What
evidence is there that it is being used to spy on Americans? The amendment failed 11-20.
Congress may be able to ignore reports in the media that the NSA is still collecting
Americans emails, but it should not ignore the admission from the DNI itself. Congress
must now drastically overhaul this law to prevent further abuses of the Constitution or vote down
entirely.

Deference to the executive branch has entrenched a policy of constitution


circumvention in response to national security threats
Fowler, University of Miami Law JD, 14
[Sarah, 4-1-2014, University of Miami Law Review, Circumventing the Constitution for
National Security: An Analysis of the Evolution of the Foreign Intelligence Exception to the
Fourth Amendments Warrant Requirement,
http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1049&context=umnsac, accessed
7.6.2015, JM]

Despite the seeming total deference to the Executive in matters labeled as national security,
before FISA, there was no consensus on the issue of whether a general and absolute national
security exception to the Fourth Amendment existed. However, most courts agreed that
national security is a sufficient justification for abandoning the Fourth Amendments warrant
requirement when a foreign agent or power is involved.50 The Court solidified the distinction
between foreign and domestic targets in the case that has become known as Keith.
51 In Keith, the Court once again failed to reign in the Executives expansive and evergrowing foreign intelligence powers by reserving the question of whether the warrant
requirement applied to foreign intelligence surveillance for a later decision.52 Though the
holding made clear that the warrant requirement could not be circumvented in investigations of
domestic security threats53, the Keith decision also implied that not adhering to the warrant
requirement may be constitutional where foreign powers are involved.54 The Courts
balancing test to determine the
Because Executives since the dawn of the US proceeded under the assumption that they
could act with almost unilateral authority, not bound by any Fourth Amendment requirements,
in the area of intelligence collecting, it is challenging to pinpoint the birth of the foreign
intelligence exception . One could say that the exception was born the instant George
Washington put his intelligence-gathering network into action with no regard for the Fourth
Amendment and no objection from Congress or the judiciary. Judicial deference in the area
bolstered the appeal and applicability of the exception, and early cases such as Olmstead and
Katz failed to take any stance on the role of the Fourth Amendment in national security
investigations, implicitly underwriting the Executives perceived preeminence and authority
in the area. Though few ordinary citizens were aware of its existence, nearly every
president relied on the foreign intelligence exception in undertaking some form of
surveillance without first obtaining a warrant.55 Prior to Katz, the Court made it clear that
the Fourth Amendment was not even a consideration when dealing with electronic
surveillance.56 However, even after Katz described the reasonableness test and mandated that it
be applied in cases involving electronic surveillance, the Executive continued to undertake
massive warrantless surveillance of both foreign and domestic targets on the

4th Amendment wont solve Courts have gutted protections


Balkin, Yale University, School of Law, Professor of Law, 8
[Jack, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers ,
Accessed 7/7/15, DR]

You might think the Fourth Amendment 70 would be the most important constitutional
provision for controlling and preventing abuses of power in the National Surveillance State.
But courts have largely debilitated the Fourth Amendment to meet the demands of the
Regulatory and Welfare States, the National Security State, and the War on Drugs. 71
Much government collection and use of personal data now falls outside the Fourth
Amendment's protection-at least as the courts currently construe it. The Supreme Court
has held that there is no expectation of privacy in business records and information that
people give to third parties like banks and other businesses; 72 in the digital age this
accounts for a vast amount of personal information. Most e-mail messages are copied onto
privately held servers, making their protection limited if not nonexistent. 73 Courts have
also held that the Fourth Amendment poses few limits on foreign intelligence surveillance,
which is largely regulated by FISA; 74 as a result, the executive branch has increasingly
justified domestic surveillance by asserting that it is a permissible byproduct of foreign
intelligence gathering.7 5

Fourth Amendment will be circumvented range of available data beyond the scope
of protections
Balkin, Yale University, School of Law, Professor of Law, 8
[Jack, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers ,
Accessed 7/7/15, DR]

Currently, governments are free to place cameras in public places like streets and parks
because there is no expectation of privacy there. 76 Governments can also collect
information that people leave out in the open, like their presence on a public street; or
abandon, like fingerprints, hair, or skin cells. 77 Moreover, because the Fourth Amendment
focuses on searches and seizures, it places few limits on collation and analysis, including
data mining. 78 The Fourth Amendment does not require governments to discard any
information they have already lawfully collected. Digital files, once assembled, can be
copied and augmented with new information indefinitely for later analysis and pattern
matching. Finally, whatever constitutional limits might restrain government do not apply to
private parties, who can freely collect, collate, and sell personal information back to the

government free of Fourth Amendment restrictions, effectively allowing an end-run around the
Constitution.

AT FISC Oversight
FISC oversight ineffective lack of adversarial checks allow government to act
unimpeded
Setty, Western New England University, law professor, 15
[Sudha, Winter 2015, 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, Accessed 7/7/15, DR]

The FISC differs from Article III courts in numerous ways: Its statutory scope is limited to
matters of foreign intelligence gathering; its judges are appointed in the sole discretion of the
Chief Justice of the United States Supreme Court; its proceedings are secret; its opinions are
often secret or are published in heavily [*83] redacted form; and its process is not adversarial
as only government lawyers make arguments defending the legality of the surveillance
being contemplated. n70 Many of these differences bring into doubt the legitimacy of the
court, its ability to afford adequate due process regarding civil liberties concerns, and its
ability to uphold the rule of law in terms of government accountability. Compounding this
legitimacy deficit is the FISC's own loosening of the relevance standard under Section 215
of the PATRIOT Act such that the FISC has found that bulk data collection without any
particularized threat or connection to terrorism is legally permissible. n71
Historically, the FISC has rejected NSA surveillance applications too infrequently to be
considered a substantial check on government overreach as an ex ante matter. n72 As an ex
post matter, it is unclear to what extent the FISC's work guarantees any meaningful
accountability over NSA surveillance activities. On the one hand, because the FISC lacks an
adversarial process and has no independent investigatory authority, the FISC only addresses ex
post compliance problems when the government itself brings the problem to the court's
attention. n73 As such, FISC judges rely on the statements of the government as to the
government's own behavior and lack the authority to investigate the veracity of the
government's representations. n74 For example, in 2011, the FISC found one aspect of the
surveillance program - brought to its attention months after the program went into effect n75 - to
be unconstitutional. n76 Additionally, in one declassified opinion, the FISC critiques the NSA's
sloppy over-collection of metadata of U.S. communications, and questions the efficacy of bulk
data collection as a national security measure. n77 At one point, the FISC sanctioned the NSA
for overreaching in [*84] saving all metadata and running daily metadata against an "alert list"
of approximately 17,800 phone numbers, only 10% of which had met FISC's legal standard for
reasonable suspicion. n78 On such occasions, the administration has modified problematic
aspects of the surveillance and continued forward without further impediment by the
FISC. n79

NSA self-reporting and FISC oversight are ineffective at enforcing reform


Setty, Western New England University, law professor, 15
[Sudha, Winter 2015, 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, Accessed 7/7/15, DR]

On the other hand, the fact that the NSA itself has brought potential compliance incidents to
the notice of the FISC n80 indicates at least some internal policing of these programs.
However, this is hardly an effective substitute for external review and accountability
mechanisms that would ensure that consistent controls are in place. Further, the selfreporting of these compliance incidents does not in any way allow for discourse over the
larger structural questions surrounding the surveillance programs.
Finally, the ability of the FISC to act as an effective check on NSA overreaching is severely
limited by the secrecy and lack of information available to the FISC judges. Judge Reggie
B. Walton, formerly the Chief Judge of the FISC, lamented that "the FISC is forced to rely
upon the accuracy of the information that is provided to the Court ... . The FISC does not
have the capacity to investigate issues of noncompliance ... ." n81 The ability of the NSA to
not only gather and retain bulk metadata, but also to build in backdoor access into data
files despite private encryption efforts has been largely sanctioned by the FISC based on
NSA representations as to the seriousness of the security threats posed to the nation. n82 In
an environment in which there is a tremendous fear of being held responsible for any
future terrorist attack that might occur on U.S. soil, n83 and in which there is a [*85]
information deficit for those outside of the intelligence community, the FISC has
consistently deferred to the NSA's assertions and has not been able to act as an effective
accountability mechanism.

FISC provides the perfect secret cover for loopholesit breaks privacy rules
frequently
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 54, accessed 7.9.15, AM]

Normally, of course, courts proceed in public, hear arguments from opposing counsel, and
issue opinions that are available for public scrutiny. Not so with the FISC. All of its
proceedings are closed to the public .298 The adversarial system integral to American

jurisprudence is absent. Only government lawyers appear as counsel, unanswered by any


real or potential adverse party.299 The FISC has pioneered a two-tiered legal system, one
comprised of public law, the other of secret law. FISC opinionseven redacted portions of
opinions that address only the FISCs interpretation of the constitutional rights of privacy, due
process, or protection against unreasonable search or seizureare rarely available to the
public.300 Nancy Gertner, a former federal judge in Massachusetts, summed up the court:
The judges that are assigned to this court are judges that are not likely to rock the
boat . . . . All of the structural pressures that keep a judge independent are missing there. Its
one-sided, secret , and the judges are chosen in a selection process by one man.301 The
Chief Judge of the FISC candidly described its fecklessness. The FISC is forced to rely upon
the accuracy of the information that is provided to the Court, said Chief Judge Reggie B.
Walton. The FISC does not have the capacity to investigate issues of noncompliance, and
in that respect the FISC is in the same position as any other court when it comes to
enforcing [government] compliance with its orders.302 The NSAs own record proved him
correct; an internal NSA audit revealed that it had broken privacy rules or overstepped its
legal authority thousands of times since 2008.303

Status quo FISC legalistic structures crowds out policy and interests
Schlanger, University Of Michigan law professor, 15
[Margo, Henry M. Butzel Professor of Law @ University of Michigan, Professor of Law at the University
of Michigan Law School, and the founder and director of the Civil Rights Litigation Clearinghouse,
Harvard National Security Journal, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2409&context=articles, Date
Accessed: 7/7/15, ACS]

My point is not that FISA Court legitimation is phony. In fact, judicial review has real effects on
the systemwe know from the recently declassified documents that FISA Court review
disciplines the surveillance system, holding it at least to the governments own
representations.327 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 lawand law more generallyexists largely to legitimize the
existing social structure.328 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. 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.331 But gains from rights mayand 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 libertyand 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, non-legalistic reforms that could
play a productive part? I turn next to this issue.

FISC judges have a track record of interpreting laws in ways that favor broad NSA
data collection
Granick, Stanford Center for Internet and Society Director of Civil Liberties, 13
[Jennifer, 12-16-13, Forbes, NSA's Creative Interpretations of Law Subvert Congress And The
Rule Of Law, http://www.forbes.com/sites/jennifergranick/2013/12/16/a-common-law-coupdetat-how-nsas-creative-interpretations-of-law-subvert-the-rule-of-law/, Accessed 7/7/2015. GJ)

In the wake of todays tremendously important ruling by the District Court for the District of
Columbia that bulk collection of telephone metadata violates the Fourth Amendment, it is more
important than ever that Congress end this misuse of section 215 of the USA PATRIOT Act.
However, Deputy Attorney General James Cole testified earlier this week before the Senate
Judiciary Committee that the NSA might continue its bulk collection of nearly all domestic
phone call records, even if the USA FREEDOM ACT passes into law. That must have come as a
real surprise to committee chairman Senator Patrick Leahy (D-VT) and the dozens of USA
FREEDOM Acts bipartisan co-sponsors, all of whom agree that the core purpose of the bill is to
end NSA dragnet collection of Americans communication data.
Cole noted the reform legislation wouldnt necessarily inhibit the NSAs surveillance
capabilities because its going to depend on how the court interprets any number of the
provisions that are in [the legislation]. Comments like this betray a serious problem inside the
Executive Branch. The Administration and the intelligence community believe they can do
whatever they want, regardless of the laws Congress passes, so long they can convince one
of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC) to
agree. This isnt the rule of law. This is a coup detat.
Leahys proposed legislation would amend section 215 of the USA PATRIOT Act to require the
government to show the records it seeks are not only relevant but also material to an authorized

investigation and that the target has some connection to terrorism or espionage before it can
obtain those records. This latter requirement, the USA FREEDOM Act sponsors say, will end
bulk collection.
Cole apparently disagrees. Responding to a question at yesterdays hearing on the bill, Cole said,
Right now the interpretation of the word relevant is a broad interpretation. Adding pertinent
to a foreign agent or somebody in contact with a foreign agent could be another way of talking
about relevance as it is right now. Wed have to see how broadly the court interprets that or how
narrowly. In other words, the FISA court might let us keep doing what were doing no
matter what the law says and despite Congress intent .
All courts issue opinions about what the laws that legislatures pass mean. These opinions are
called the common law. But common law interpretations of statutes are only legitimate if
they are fair and reasonable interpretations.
The NSA has a great track record getting FISC judges to interpret even obviously narrow
phrases in surprisingly broad ways. For example, Americans, including the Patriot Acts main
sponsor Representative Jim Sensenbrenner (R-WI) and a co-sponsor of the USA Freedom Act,
were shocked to learn last June that the NSA used Section 215 for bulk collection of phone data
(and potentially other sensitive records). Sensenbrenner said, [i]f Congress knew what the
NSA had in mind in the future immediately after 9/11, the Patriot Act never would have
passed, and I never would have supported it.
The 2004 FISC opinion authorizing the NSAs collection and use of Internet metadata under the
pen register statute is another dismaying example of this phenomenon. In this opinion, Judge
Colleen Kollar-Kotelly acknowledged that she was allowing an exceptionally broad and
novel form of collection, but nevertheless deferred to the fully considered judgment of the
executive branch in assessing and responding to national security threats and in determining the
potential significance of intelligence-related information. This opinioncalled strange and a
head-scratcherlater served as precedent upon which FISA Judge Claire Eagan relied in her
2006 authorization of the bulk phone records collection.
Time and again, the FISC accepts the Administrations shockingly flimsy arguments. As a
set, the few public FISC opinions weve seen suggest that the Executive Branchin cahoots
with a few selected judgeshas replaced legitimate public statutes with secret, illegitimate
common law.
The rule of law is a basic democratic principle meaning that all members of a society
individuals, organizations, and government officialsmust obey publicly disclosed legal codes
and processes. If Cole is right that, try as it might, Congress cannot end bulk collection
because the secret FISA court may defer to the NSAs interpretation of the rules, there is no
rule of law. The NSA is in charge, the FISA court process is just a fig leaf, and this is no longer
a democracy. Theres been a coup detat.

No solvency FISA court is very lenient on NSA rule-bending


Greenwald, constitutional lawyer, 13
[Glenn Greenwald, The Guardian, FISA court oversight: a look inside a secret and empty
process, June 18, 2013, http://www.theguardian.com/commentisfree/2013/jun/19/fisa-courtoversight-process-secrecy, date accessed 7/7/15, CR]

When it is time for the NSA to obtain Fisa court approval, the agency does not tell the court
whose calls and emails it intends to intercept. It instead merely provides the general guidelines
which it claims are used by its analysts to determine which individuals they can target, and the
Fisa court judge then issues a simple order approving those guidelines. The court endorses a oneparagraph form order stating that the NSA's process "'contains all the required elements' and that
the revised NSA, FBI and CIA minimization procedures submitted with the amendment 'are
consistent with the requirements of [50 U.S.C. 1881a(e)] and with the fourth amendment to the
Constitution of the United States'". As but one typical example, the Guardian has obtained an
August 19, 2010, Fisa court approval from Judge John Bates which does nothing more than
recite the statutory language in approving the NSA's guidelines. Once the NSA has this court
approval, it can then target anyone chosen by their analysts, and can even order telecoms and
internet companies to turn over to them the emails, chats and calls of those they target. The Fisa
court plays no role whatsoever in reviewing whether the procedures it approved are actually
complied with when the NSA starts eavesdropping on calls and reading people's emails. The
guidelines submitted by the NSA to the Fisa court demonstrate how much discretion the
agency has in choosing who will be targeted. Those guidelines also make clear that, contrary to
the repeated assurances from government officials and media figures, the communications of
American citizens are without any individualized warrant included in what is surveilled.

AT NSA Compliance
Reforms are ineffective in overcoming legalist structures---too secretive, lack of
oversight, and too deeply engrained
Schlanger, University Of Michigan law professor, 15
[Margo, Henry M. Butzel Professor of Law @ University of Michigan, Professor of Law at the University
of Michigan Law School, and the founder and director of the Civil Rights Litigation Clearinghouse,
Harvard National Security Journal, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2409&context=articles, Date
Accessed: 7/7/15, ACS]

Moreover, many of the tools usually available to an Office of Goodness to augment its own
influence will be unavailable because of the secrecy that surrounds NSA activities. In many
circumstances an Office of Goodness asked to publicly ratify particular agency choices
(activities, approaches, rules) can pressure agency leadership into making, or shading, certain
choices in exchange for that ratification. But the NSA civil liberties office will often be unable
to provide publicly-visible ratification, because the programs in question are secret.
Accordingly, office leadership will lack that pressure point. Offices of Goodness can often
cultivate external advocacy organization support, but the NSA civil liberties offices access
to this tool is similarly undermined by secrecy. Offices of Goodness can gain influence by
generating documents that then become public, whether because they are officially released,
leaked, or turned over because of a Freedom of Information Act or litigation discovery request.
But in the classified environment these avenues of communication, too, are extremely narrow,
which means that agency flouting of office views is less costly than it would otherwise be. 364
All three of the strategies just mentioned rely on a public constituency to bolster an Office of
Goodnesss influencebecause, as James Q. Wilson summarizes, for federal agencies, [t]he
principal source of power is a constituency.365 The NSA civil liberties office will have a
public constituency, but secrecy cannot but undermine how much help that constituency
can provide . So in order to remain empowered, the NSA civil liberties office will need to
cultivate alternative allies, with security clearancesat ODNI, DOJ, at the White House, and in
Congress. I imagine this too will be a challenge. Beginning with ODNI and DOJ, the most
obvious potential sources of support will be from those agencies Civil Liberties and Privacy
Officers. But neither is able to carry much water. The ODNI civil liberties office, as already
described, has chosen to function more as a compliance-type than a policy office. At DOJ, the
Civil Liberties and Privacy Office lacks influence over foreign intelligence matters, which are
allocated instead to the National Security Division. Indeed, no list of relevant offices or
proposal of potential actors to increase oversight of which Im aware have even mentioned
this office.

And the National Security Division lawyers are so committed to intelligence legalism, so
firmly embedded in a compliance system, that they are unlikely to be very sympathetic to
policy arguments that the government could but should not undertake some step or
activity. Besides, a policy orientation would reduce NSDs influence. Congress is also a
somewhat hopeful prospect. But an NSA civil liberties office is unlikely to lean far enough to
the left to hold the support of the most vocal congressional critics of the NSA. And yet the
most conservative members of the Intelligence Committees are not natural allies either. In
addition, all the obstacles to sustained congressional attention to and oversight of intelligence,
discussed above, must obstruct fine-gauge interventions that might be useful to the offices
influence. In short, the new NSA civil liberties office will be hard pressed to cement the alliances
on which, like every Office of Goodness, it will depend for influence. (I discuss the possibility of
a White House alliance in the next section.) The institutional design of the new office should take
account of these difficulties in gaining a constituency or allies. The offices mandate from the
NSAs director should include a stable set of situations in which it can have access to the policy
making process, and opportunity to participate, without needing sharper elbows than it is likely
to have. The Presidents Review Groups recommendations about impact assessments are
helpful, even vital, in this regard and should, in fact, be substantially expanded. The Review
Group report explains that the kind of impact assessment it proposes should be broader and
more policy-based that has usually been the case for PIAs [Privacy Impact Assessments]. For
instance, policy officials should explicitly consider the costs and benefits of a program if it
unexpectedly becomes public. 367 But the recommendation covers only the broader
programs that may constitute multiple systems. For impact assessments368 to play the
role I am sketching of bolstering the access and influence of an NSA civil liberties office,
they would need to be required for more programs.

The NSA lies and misrepresents itself to obscure violations of the law
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 81, accessed 7.9.15, AM]

Members of Congress were unaware of more than simply the Administrations


interpretation of the law, however. They had no knowledge about how the Administration
actually used the phone records that the NSA collected. The Chairman of the Senate
Intelligence Committee, Dianne Feinstein, confirmed this.471 But, she added, it was
important to collect phone records of the American public in case someone might become a
terrorist in the future472 (a rationale the New York Times called absurd473). Feinsteins
doziness was not without precedent; an earlier chairman of the Committee, Senator Barry

Goldwater, claimed to know nothing about the CIAs mining of Nicaraguan harborseven
though Director of Central Intelligence William Casey had earlier told the committee.474 By
contrast, the NSA did not inform the Committee about warrantless surveillance during the
Bush Administration, which the Committee, of course, never discovered on its own.475
Senators not on the Intelligence Committee seemed equally uninterested . Normally only the
senior congressional leadership is kept fully abreast of intelligence activities, said the Senates
second-ranking Democrat:476 You can count on two hands the number of people in Congress
who really know.477 When all Senators were invited to a classified briefing by senior
national security officials to explain the NSAs surveillance programs, fewer than half
attended.478 Little wonder that in its review of congressional oversight for intelligence and
counterterrorismwhich it, again, described as dysfunctional 479the 9/11 Commission
concluded that [t]inkering with the existing structure is not sufficient.480 [T]he NSA,
The Economist concluded, lives under a simulacrum of judicial and legislative
oversigh t.481 And, it might have added, a simulacrum of honesty .
Before the leaks, James Clapper, Director of National Intelligence, testifying on behalf of the
Obama Administration before Feinsteins committee on March 19, 2013, was asked directly
about the NSA surveillance by Senator Ron Wyden. [D]oes the NSA collect any type of
data at all on millions or hundreds of millions of Americans?, he asked. Clapper
responded, No, sir. Wyden followed up: It does not? Clapper replied, Not wittingly.
There are cases where they could inadvertently perhaps collect , but not wittingly.482
Clapper admitted later that his testimony was false ; he described it as the least untruthful
statement he could give483and it may have constituted a felony.484 Feinstein, who was
presiding and who had earlier been briefed on the programs, knew that statement was false
and said nothing .485 President Obama and other senior members of his administration
also knew that it was falseor, if the Madisonian model were functioning as intended, should
have known it was false486and also said nothing, allowing the falsehood to stand for
months until leaks publicly revealed the testimony to be false.487 Obama, finally caught by
surprise, insisted that he welcomed488 the debate that ensued, and his administration
commenced active efforts to arrest the NSA employee whose disclosures had triggered it.489
The President then proceeded to insist that the NSA was not actually abusing its
powers.490 In fact, a May 2012 NSA audit revealed 2,776 incidents in the preceding twelve
months where the agency engaged in unauthorized collection , storage, access to or
distribution of legally protected communications.491
The NSA also made misrepresentations to the FISC .492 In a declassified 2011 opinion by the
FISCs chief judge, U.S. District Court Judge John Bates, the court said that it was troubled
that the governments revelations . . . mark the third instance in less than three years in
which the government has disclosed a substantial misrepresentation regarding the scope of
a major collection program. His courts earlier approval of NSAs telephone records
collection, Bates wrote, was based upon a flawed depiction of how the NSA uses

metadata, a misperception . . . buttressed by repeated inaccurate statements made in the


governments submissions, and despite a government-devised and Court-mandated
oversight regime. Contrary to the governments repeated assurances, Bates continued, the
NSA had been routinely running queries of the metadata using querying terms that did
not meet the required standard for querying. The court concluded that this requirement
had been so frequently and systemically violated that it can fairly be said that this critical
element of the overall . . . regime has never functioned effectively .493

AT Reforms Solve
Internal checks like the plan failthey act as legal band-aids which bolster the
illusion of legitimacy
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 96, accessed 7.9.15, AM]

V. Is Reform Possible? Checks, Smoke, and Mirrors


Madison, as noted at the outset,543 believed that a constitution must not only set up a
government that can control and protect the people, but, equally importantly, must protect
the people from the government.544 Madison thus anticipated the enduring tradeoff: the lesser
the threat from government, the lesser its capacity to protect against threats; the greater
the governments capacity to protect against threats, the greater the threat from the
government.
Recognition of the dystopic implications of double government focuses the mind, naturally, on
possible legalist cures to the threats that double government presents. Potential remedies fall
generally into two categories. First, strengthen systemic checks, either by reviving
Madisonian institutionsby tweaking them about the edges to enhance their vitality or by
establishing restraints directly within the Trumanite network. Second, cultivate civic virtue
within the electorate.
A. Strengthening Systemic Checks
The first set of potential remedies aspires to tone up Madisonian muscles one by one with
ad hoc legislative and judicial reforms, by, say, narrowing the scope of the state secrets
privilege ; permitting the recipients of national security letters at least to make their receipt
public ; broadening standing requirements; improving congressional oversight of covert
operations, including drone killings and cyber operations; or strengthening statutory
constraints like FISA545 and the War Powers Resolution.546 Law reviews brim with such
proposals. But their stopgap approach has been tried repeatedly since the Trumanite
networks emergence. Its futility is now glaring. Why such efforts would be any more
fruitful in the future is hard to understand. The Trumanites are committed to the rule of
law and their sincerity is not in doubt, but the rule of law to which they are committed is
largely devoid of meaningful constraints .547 Continued focus on legalist band-aids merely
buttresses the illusion that the Madisonian institutions are alive and well and with that

illusion, an entire narrative premised on the assumption that it is merely a matter of


identifying a solution and looking to the Madisonian institutions to effect it. That frame
deflects attention from the underlying malady. What is needed, if Bagehots theory is
correct, is a fundamental change in the very discourse within which U.S. national security
policy is made. For the question is no longer: What should the government do? The
questions now are: What should be done about the government? What can be done about the
government? What are the responsibilities not of the government but of the people?

Checks inside the national security complex empirically failthey only prompt
further secrecy
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 98, accessed 7.9.15, AM]

A second approach would inject legal limits directly into the Trumanites operational core
by, for example, setting up de facto judges within the network, or at least lawyers able to issue
binding legal opinions, before certain initiatives could be undertaken.548 Another proposed
reform would attempt to foster intra-network competition among the Trumanites by
creating Madisonian-like checks and balances that operate directly within the Trumanite
network.549 The difficulty with these and similar ideas is that the checks they propose
would merely replicate and relocate failed Madisonian institutions without controlling the
forces that led to the hollowing-out of the real Madisonian institutions. There is scant
reason to believe that pseudo-Madisonian checks would fare any better. Why would the
Trumanite network, driven as it is to maintain and strengthen its autonomy , subject itself
behind the scenes to internal Madisonian constraints any more readily than it publicly has
subjected itself to external Madisonian constraints? Why, in Bagehots terms, would the
newly established intra-Trumanite institutions not become, in effect, a new, third
institutional layer that further disguises where the real power lies ?
Indeed, intra-Trumanite checks have already been tried. When questions arose as to whether
Justice Department lawyers inappropriately authorized and oversaw warrantless electronic
surveillance in 2006, its Office of Professional Responsibility commenced an investigation
until its investigators were denied the necessary security clearances, blocking the
inquiry .550 The FBI traditionally undertakes an internal investigatio n when an FBI agent
is engaged in a serious shooting; from 1993 to early 2011, FBI agents fatally shot about
seventy subjects and wounded about eighty othersand every one of those [shootings] was

justified , its inspectors found.551 Following the NSA surveillance disclosures, President
Obama announced the creation of an independent panel to ensure that civil liberties were
being respected and to restore public confidencea panel, it turned out, that operated as
an arm of the Office of the Director of National Intelligence, which oversees the NSA.552
Inspectors general were set up within federal departments and agencies in 1978 as
safeguards against waste, fraud, abuse, and illegality,553 but the positions have remained
vacant for years in some of the governments largest cabinet agencies, including the departments
of Defense, State, Interior, and Homeland Security.554 The best that can be said of these
inspectors general is that, despite the best of intentions, they had no authority to overrule, let
alone penalize, anyone. The worst is that they were trusted Trumanites who snored through
everything from illegal surveillance to arms sales to the Nicaraguan contras to Abu Ghraib to the
waterboarding of suspected terrorists. To look to Trumanite inspectors general as a reliable
check on unaccountable power would represent the ultimate triumph of hope over
experience.

AT Reforms Empirically Solve


Reform backfires historically codification makes executive power expansion
justified and worse
Kassop, State University of New York-New Paltz political science and international
relations professor, 11
[Nancy, 2011, former chair of the Political Science Department at the school, Nova Science
Publishers, REVERSE EFFECT: CONGRESSIONAL AND JUDICIAL RESTRAINTS ON
PRESIDENTIAL POWER, In: President or King?, Editor: Meena Bose, pp. 63-76,
https://www.novapublishers.com/catalog/product_info.php?products_id=31771, accessed 7-7-15,
CR]
Why is it that congressional reform efforts and court decisions that have as their purpose
the checking of excessive presidential power result, paradoxically, in authorizing and
legitimizing the very powers they intended to curb? The examples are easy to identify: for
starters, the War Powers Resolution of 1973, the Hughes-Ryan Amendment to the Foreign
Assistance Act of 1974, and the Foreign Intelligence Surveillance Act of 1978 (FISA) all
originated as statutory efforts to monitor and restrict presidential powers, but resulted,
instead, in legitimizing actions that presidents had never before been permitted to take.
Similarly, three Supreme Court decisions popularly regarded as prime examples of
rejection of constitutionally excessive claims of presidential power Youngstown Sheet and
Tube Co. v. Sawyer (1952), New York Times v. U.S. (1971), and U.S. v. Nixon (1974)
actually had the reverse effect of making clear that there could, indeed, be circumstances
when presidential exercise of the same powers negated in the specific conditions in those
cases could be legitimate. For that matter, it could be argued that the three instances where
Congress cranked up its machinery, unsuccessfully, to use its most extreme form of
constitutional rebuke to a president, impeachment, may have contributed only to a reduced
incentive to use that weapon in the future. [1]

Despite intentions, Congress wont enforce the plan, Court waters it down, and the
President ends up with equal or greater authority
Kassop, State University of New York-New Paltz political science and international
relations professor, 11
[Nancy, 2011, former chair of the Political Science Department at the school, Nova Science
Publishers, REVERSE EFFECT: CONGRESSIONAL AND JUDICIAL RESTRAINTS ON
PRESIDENTIAL POWER, In: President or King?, Editor: Meena Bose, pp. 63-76,
https://www.novapublishers.com/catalog/product_info.php?products_id=31771, accessed 7-7-15,
CR]

From the examples above, it is possible to suggest some explanations for why congressional
efforts to require accountability from presidents have proven so elusive. The cycle begins
with the discovery of presidential excess, usually brought to light either by scandal, as in
Iran-contra, or by eventual congressional recognition of its own abdication of its authority,
as with intelligence operations and war powers. Congress launches internal inquiries,
exposes executive branch wrongdoing or use of constitutionally questionable authority, and
vows to take action to forestall such abuses in the future. Well-meaning intentions give way
to political reality, as legislative compromises produce not only weaker results than initially
promised, but Congress also a) acknowledges new power in the president that had not
previously been understood to reside in the office (as in the Hughes-Ryan Amendment), or b)
delegates away its own constitutional authority to the president (as in the War Powers
Resolution), or c) uses ambiguous legislative language (as in the timely fashion
notification requirement in the Intelligence Oversight Act) that presidents can interpret to fit
their purposes. Additionally, the courts can play a role by interpreting legislative language
inconsistent with Congresss intent or by abdicating a judicial role entirely and, thus,
wiping out challenges to the presidents actions (as in the International Emergency
Economic Powers Act). Ultimately, presidents maintain their own arsenal of unilateral tools
(e.g., presidential directives, executive orders, executive agreements or signing statements
that direct non-enforcement or selective enforcement of statutes) by which to implement
legislation in ways that accommodate their political purposes and broaden their
constitutional authority (as in the Case-Zablocki Act).

Reforms to the national security system are mere exceptions to force the
appearance of legitimacy
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 45, accessed 7.9.15, AM]

Nonetheless, in the United States today, as in Bagehots Britain, [m]ost do indeed vaguely know
that there are some other institutions239 involved in governance besides those established by
the Constitution. But the popular conception of an invisible government, state within, or
national security state is off the mark. The existence of the Trumanite network is no
secret . The networks emergence has not been the result of an enormous, nefarious
conspiracy conceived to displace constitutional government. The emergence of the
Trumanite network has not been purposeful. Americas dual national security framework
has evolved gradually in response to incentives woven into the systems structure as that
structure has reacted to societys felt needs. Yet, as a whole, Americans still do not recognize

the extent to which Madisonian institutions have come to formulate national security policy in
form more than in substance.
One reason that they do not is that the double government system has exceptions. For the
dual institutional structure to work, it is crucial, Bagehot believed, to hide where the one
begins and where the other ends.240 Overlap is required. Enough counterexamples must
exist to persuade an optimistic public that the reason for policy continuity is human, not
systemic. Thus, the counterexamples must be sufficient for the public to believe that if they
elect different people then policy will change, giving credence to the idea that the real
institutions have not lost all power in making national security policy. Similarly, the
Trumanites often include some quasi-Madisonian officers, such as the Secretaries of State
and Defense, who themselves generate deference through the same theatrical show common
to the Madisonian institutions. Congress, the President, and the courts do sometimes say
no to the Trumanites. But they do not do so often enough to endanger double government.
The Trumanite network makes American national security policy; it is occasional
exceptions to that policy that are made by the Madisonian institutions.

Glennon Arguments Explanations

Double Government Theory


US national security operates under a standard of double government where the
Constitutional agencies of government claim legitimacy, but national security
operates behind a shroud of secrecy
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 11, accessed 7.9.15, AM]

Together these institutions comprise a disguised republic50 that obscures the massive shift
in power that has occurred, which if widely understood would create a crisis of public
confidence.51 This crisis has been averted because the efficient institutions have been
careful to hide where they begin and where the dignified institutions end.52 They do this by
ensuring that the dignified institutions continue to partake in at least some real governance
and also by ensuring that the efficient institutions partake in at least some inspiring public
ceremony and ritual.53 This promotes continued public deference to the efficient
institutions decisions and continued belief that the dignified institutions retain real
power.54 These dual institutions, one for show and the other for real, afford Britain
expertise and experience in the actual art of governing while at the same time providing a
faade that generates public acceptance of the experts decisions. Bagehot called this
Britains double government.55 The structural duality, some have suggested, is a modern
reification of the Noble Lie that, two millennia before, Plato had thought necessary to insulate
a state from the fatal excesses of democracy and to ensure deference to the golden class of
efficient guardians.56
Bagehots theory may have overstated the naivet of Britains citizenry. When he wrote, probably
few Britons believed that Queen Victoria actually governed. Nor is it likely that Prime Minister
Lord Palmerston, let alone 658 members of the House of Commons, could or did consciously
and intentionally conceal from the British public that it was really they who governed. Big
groups keep big secrets poorly. Nonetheless, Bagehots enduring insightthat dual
institutions of governance, one public and the other concealed, evolve side-by-side to
maximize both legitimacy and efficiency is worth pondering as one possible explanation
of why the Obama and Bush national security policies have been essentially the same.
There is no reason in principle why the institutions of Britains juridical offspring, the
United States, ought to be immune from the broader bifurcating forces that have driven
British institutional evolution.

As it did in the early days of Britains monarchy, power in the United States lay initially in one
set of institutionsthe President, Congress, and the courts. These are Americas
dignified institutions. Later, however, a second institution emerged to safeguard the
nations security . This, Americas efficient institution (actually, as will be seen, more a
network than an institution) consists of the several hundred executive officials who sit atop
the military, intelligence, diplomatic, and law enforcement departments and agencies that
have as their mission the protection of Americas international and internal security. Large
segments of the public continue to believe that Americas constitutionally established,
dignified institutions are the locus of governmental power; by promoting that impression,
both sets of institutions maintain public support . But when it comes to defining and
protecting national security, the publics impression is mistaken. Americas efficient
institution makes most of the key decisions concerning national security, removed from
public view and from the constitutional restrictions that check Americas dignified
institutions. The United States has, in short, moved beyond a mere imperial presidency to a
bifurcated systema structure of double government in which even the President now
exercises little substantive control over the overall direction of U.S. national security policy.
Whereas Britains dual institutions evolved towards a concealed republic, Americas have
evolved in the opposite direction, toward greater centralization, less accountability, and emergent
autocracy.

The President, Congress, and the Courts are all disguises for the national security
establishment
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 46, accessed 7.9.15, AM]

IV. The Reality of Madisonian Weakness Although the Madisonian institutions seem to be in
charge and, indeed, to be possessed of power broad enough to remedy their own
deficiencies, a close look at each branch of government reveals why they are not. A more
accurate description would be that those institutions are in a state of entropy and have
become, in Bagehots words, a disguisethe fountain of honour but not the spring of
business.241 The Presidency , Congress , and the courts appear to set national security
policy , but in reality their role is minimal . They exercise decisional authority more in form
than in substance. This is the principal reason that the system has not, as advertised, selfcorrected.242

A. The Judiciary The courts, which Hamilton called the least dangerous branch,243 pose
the least danger to the silent transfer of power from the nations Madisonian institutions to
the Trumanite network. Federal judicial appointees are selected, and vetted along the way,
by those whose cases they will later hear: the Trumanites and their associates in the White House
and Justice Department. Before an individual is named to the federal bench, a careful
investigation takes place to ensure that that individual is dependable. What this means, in
practice, is that appointees end up as trusted friends of the Trumanites in matters touching
upon national security. Presidents do not appoint individuals who are hostile to the
Trumanites, nor does the Senate confirm them. The deck is stacked from the start against
challenges to Trumanite policies.

Trumanites Defined Glennon


Trumanites are bureaucratic officials
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 18, accessed 7.9.15, AM]

President Harry S. Truman, more than any other President, is responsible for creating the
nations efficient national security apparatus.99 Under him, Congress enacted the
National Security Act of 1947, which unified the military under a new Secretary of Defense, set
up the CIA, created the modern Joint Chiefs of Staff, and established the National Security
Council (NSC).100 Truman also set up the National Security Agency, which was intended
at the time to monitor communications abroad.101 Friends as well as detractors viewed
Trumans role as decisive.102 Honoring Trumans founding role, this Article will substitute
Trumanite for efficient, referring to the network of several hundred high-level
military, intelligence, diplomatic, and law enforcement officials within the Executive
Branch who are responsible for national security policymaking.

AFF

Link Answers

No Link NSA Compliance


NSA will comply with the plan
Ackerman, The Guardian, 15
(Spencer, 6/1/2015, The Guardian, Fears NSA will seek to undermine surveillance reform,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secretlaw, Accessed 7/5/15, DR)

Despite that recent history, veteran intelligence attorneys reacted with scorn to the idea that
NSA lawyers will undermine surveillance reform. Robert Litt, the senior lawyer for
director of national intelligence, James Clapper, said during a public appearance last
month that creating a banned bulk surveillance program was not going to happen.
The whole notion that NSA is just evilly determined to read the law in a fashion contrary
to its intent is bullshit, of the sort that the Guardian and the left but I repeat myself have
fallen in love with. The interpretation of 215 that supported the bulk collection program
was creative but not beyond reason, and it was upheld by many judges, said the former
NSA general counsel Stewart Baker, referring to Section 215 of the Patriot Act.
This is the section that permits US law enforcement and surveillance agencies to collect business
records and expired at midnight, almost two years after the whistleblower Edward Snowden
revealed to the Guardian that the Patriot Act was secretly being used to justify the collection of
phone records from millions of Americans.
With one exception, the judges that upheld the interpretation sat on the non-adversarial Fisa
court, a body that approves nearly all government surveillance requests and modifies about a
quarter of them substantially. The exception was reversed by the second circuit court of appeals.
Baker, speaking before the Senate voted, predicted: I dont think anyone at NSA is going
to invest in looking for ways to defy congressional intent if USA Freedom is adopted.

NSA compliance office solves---adaptive, new regulations, and increased oversight


Schlanger, University Of Michigan law professor, 15
[Margo, Henry M. Butzel Professor of Law @ University of Michigan, Professor of Law at the University
of Michigan Law School, and the founder and director of the Civil Rights Litigation Clearinghouse,
Harvard National Security Journal, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2409&context=articles, Date
Accessed: 7/7/15, ACS]

The NSA has a central compliance office, the Office of the Director of Compliance, whose
current (and founding) head, John DeLong, reports to the NSAs director. The compliance office
grew out of several serious compliance problems exposed to the FISA Court in 2009, 103
and gained its statutory authority in 2010. It is assigned responsib[ility] for the programs
of compliance over mission activities.104 Although the office is mentioned specifically only
in some of the FISA minimization procedures, it seems to deal comprehensively not just with
FISA-court supervised intelligence, but with all the procedures that are approved by the Attorney
General under Executive Order 12,333which means all the NSAs collection activities, as well
as the retention, analysis, and dissemination of any U.S. person information. The NSAs
compliance office is a member of the bureaucratic species I have labeled Offices of
Goodnessit is an office within an operational agency that is: advisory rather than
operational; tasked with furthering a particular value not otherwise primary for the
agency in which it sits; and internal and dependent on its agency.105 (I label that value with
the placeholder, Goodness, because the creator of the office obviously believes the particular
value to be good.) For the NSA compliance office, the value that infuses its existence is, well,
compliance: its mission is to facilitate NSAs compliance with constraints imposed upon the
agency, detecting noncompliance consistently and rapidly.106 The compliance office has a
staff of about 30. A much larger contingent of compliance staffabout another 270 employees
work within NSAs various operational units. The chain of command for these employees runs up
through the heads of their units. But they report secondarily, via as thick a dotted line as can be
imagined, to the central compliance office.107 The office was revamped and empowered in
2009, when many significant compliance problems came to light in FISA proceedings.
Before that, there were fewer than 100 compliance staff throughout the NSA, including an
Office of Oversight and Compliance housed deeper in the organizational chart, within the
NSAs Foreign Intelligence Directorate. Currently, the compliance staffs tasks include
developing procedures; working with engineers to hardwire the relevant requirements into
computer systems; training; certifying procedures to the FISA Court; conducting both routine
and broad compliance monitoring and reviews; and reviewing incidents of non-compliance. Thus
NSA compliance staff work in an iterative way on non-compliance prevention, detection, and
response, using both proactive and reactive strategies. DeLong explains that his offices current
incarnation is modeled after corporate compliance offices, which frequently (particularly since
the passage of the Sarbanes-Oxley Act) are placed outside the general counsels office and with
an office head who reports to the CEO. The work, DeLong says, is organized functionallyfor
example, collecting, targeting, querying, sharing. That makes it easier to build compliance
systems; its good if those are somewhat uniform across activities. Were not stove-piped by
authority, except for Section 215 [the telephony metadata program].108
The infrastructure that compliance staff use to accomplish this work is quite comprehensive. For
example, under the applicable minimization rules, the NSAs systems used for FISA surveillance
are built to create an audit trail. Database queries create a record that can later be reviewed to
ensure that the person who provided the query had the right credentials and the required training,
that the query itself met applicable rules, and so on. Compliance personnel are responsible for
conducting periodic reviews that are thus enabled. Non-compliant uses are categorized,

analyzed, and reported,109 and sometimes new systematic safeguards are put in place as a
result .110 Incident review systems supplement the periodic reviews. All NSA personnel are
required to report any compliance mistakes or episodes of noncompliance with relevant
court orders or other rules. 111 These reports then are distributed to the compliance office, as
well as to the NSA Office of General Counsel (OGC) and NSA Office of the Inspector General
(OIG). For the 702 program, NSA OGC also forwards each incident report to the Department of
Justice and to the Office of the Director of National Intelligence (ODNI).112 All FISA
compliance errors are to be disclosed to the FISA judge who approved the relevant order.113 For
non-FISA matters, where the NSA OGC ha[s] reason to believe that the incident may be
unlawful or contrary to executive order or presidential directive, further reports go, via
ODNI, to the Presidents Intelligence Oversight Board.114 Each of these incidents requires
follow up within NSA: compliance staff share the obligation to follow up with the Office of
the Inspector General.

No Link Post-Snowden Era


Circumvention will be near impossible in the post-Snowden era no company
cooperation, tighter security, and distrust
Seltzer, Zero Day contributing editor, 14
[Larry, 1-10-2014, ZDNet, Enterprise computing in the post-Snowden era,
http://www.zdnet.com/article/enterprise-computing-in-the-post-snowden-era/, Accessed: 7-102015, ACS]

It seems implausible that nothing will change in the NSA as a result of Edward Snowden's
leaks of their practices. But those practices didn't affect just the government. In light of all that
has happened you have to reexamine how your own business operates.
John Dickson, a Principal at Denim Group, a security consulting and services company, has
proposed six reasons why the Snowden leaks are your problem as well as the NSA's. I'm more
struck by some than others, and I have some to add.
Companies will be more wary to cooperate with governments Oh yeah, big-time. If the
government came to you and asked for you to do something to undermine customers you might
well have said now anyway, but now your confidence in the government keeping it a secret can't
be what it was before. And as Dickson says, it's not just the US government; anyone who thinks
the average European government is more trustworthy is fooling themselves.
Tighter cooperation between security, privacy and corporate counsel will occur This
makes sense superficially, but I'm less certain than Dickson that it will bring about significant
actual change.
Companies will review and update their public privacy statements I agree with Dickson
that many in the public believe mistakenly that companies are cooperating voluntarily, even
enthusiastically, with the government to compromise their own products. But it's not clear to me
that a change in the privacy statement will make a difference to anyone in the public; it's just
about satisfying corporate counsel's sense of the company's exposure.
CEOs will question why companies keep certain sensitive customer data at all This is a
good prediction and a good question for executives to ask, but the reason has more to do with
data breaches generally and not with the NSA.
Legislation to cooperate with the US Federal Government on Information Sharing is likely
dead It's as dead as J Edgar Hoover. The government will have to make do with what
mechanisms they have now.
International clients will ask American IT companies tougher questions Yes, of course this is
true, but what answers can they really expect? And why would they believe that non-US products

and services are more trustworthy? In the end, I think the market impact of this will be small,
limited to symbolic anecdotes, mostly in the purchases of other governments.
But why stop at international clients? I'm sure US customers will be asking US IT companies
more about the security of their products and services, although they too can't reasonably
expect informative answers.
Another potential outcome Dickson doesn't address is the vulnerability of your own
employees. If Edward Snowden can get through the NSA's contractor process, what kind of
traitorous scoundrels work in your own IT department? You need to think about who you trust
with the company jewels and perhaps to narrow that circle of trust to a few people who you can
scrutinize more thoroughly.
Another prediction worth making is that this is all good for the business of security consulting
and penetration testing. If you assume that the government has bugged us all, you probably have
to look for the bugs more often and more assertively. Of course, you have to assume that your
consultants and pen-testers aren't really working for you-know-who...

No Link Scrutiny Prevents Circumvention


Momentum favors scrutiny Congress and the public wont be fooled again
Ackerman, The Guardian, 15
(Spencer, 6/1/2015, The Guardian, Fears NSA will seek to undermine surveillance reform,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secretlaw, Accessed 7/5/15, DR)

Pauls Democratic ally, Senator Ron Wyden, warned the intelligence agencies and the
Obama administration against attempting to unravel NSA reform.
My time on the intelligence committee has taught me to always be vigilant for secret
interpretations of the law and new surveillance techniques that Congress doesnt know
about, Wyden, a member of the intelligence committee, told the Guardian.
Americans were rightly outraged when they learned that US intelligence agencies relied
on secret law to monitor millions of law-abiding US citizens. The American people are now
on high alert for new secret interpretations of the law, and intelligence agencies and the
Justice Department would do well to keep that lesson in mind.
The USA Freedom Act is supposed to prevent what Wyden calls secret law. It contains a
provision requiring congressional notification in the event of a novel legal interpretation
presented to the secret Fisa court overseeing surveillance.

No Link - Whistleblowing
Transparency is inevitable: whistle-blowing is increasingly easy in this era of
government
Timm, Freedom of the Press Foundation, Director, 14
[Trevor Timm, 10-11-2014, Guardian, "The Snowden documentary shows that only government
transparency can stop leaks," http://www.theguardian.com/commentisfree/2014/oct/11/thesnowden-documentary-shows-that-only-government-transparency-can-stop-leaks, accessed
7.10.15, AM]

Transparency is coming , whether the government likes it or not. The only question is
whether they decide to bring it to the public before whistleblowers do it for them.
Thats the underlying message of Laura Poitras mesmerizing new documentary, Citizenfour
about Edward Snowden and the National Security Agency that debuted at the New York Film
Festival on Friday night.
Others have hinted in the past that the government better act fast to stem the tide of
unnecessary secrecy or have a revolt on its hands. Shortly after the first Snowden leaks (which
are chronicled in real-time in the film), journalist Glenn Greenwald told Newsweek:
Government and businesses cannot function without enormous amounts of data, and
many people have to have access to that data, Greenwald says, adding that it only takes one
person with access and an assaulted consciences to leak, no matter what controls are in
place.
But during the enthralling second act of the film, where Poitras and Greenwald met a thenunknown Edward Snowden at his Hong Kong hotel, Snowden hints at how realistic that
prediction would become.
As he talks to Poitras about the potential consequences of his actions on his own life, Snowden
explains that hes confident that the coming government pursuit of him will only encourage
others. Its like the internet principle of the Hydra, he says: They can stomp me if they
want to, but there will be seven more to take my place.
In the dramatic conclusion of the film, Snowden learns on-camera Poitras and Greenwald now
have a new source, who gave The Intercept information about the US governments enormous
terrorism watchlist. That watchlist, which contains 1.2 million names most of which have no
direct nexus to terrorism is governed by Kafkaesque secrecy rules that were recently ruled
unconstitutional (and which took another blow from a fed-up federal judge on Friday night).
The governments chronic secrecy problem has been acknowledged by virtually everyone,
including our sitting president, who has simultaneously decried overclassification and

presided over its massive expansion. Yet, like clockwork, the governments response to every
new leak is to reflexively get more secret, call for more leak prosecutions (despite their already
record numbers), and impose draconian restrictions on government employees who already work
under a microscope.
Recently, the US Director of National Intelligence took the extraordinary step of banning
millions of intelligence employees from talking to the press about even unclassified, mundane
topics. And the governments pernicious Insider Threat program is stalking government
employees every move, equating communication with journalists with spying for a foreign
enemy.
But what the government has failed to grasp is that Chelsea Manning and Snowdens leaks
are not isolated incidents or, at least they wont be when we look back on this era 10 years
from now. There are 5 million people with security clearances in this country, and many of
them are part of a new generation that is far more critical of the blanket secrecy
permeating government agencies than the old guard.
Its only now that we are finally starting to see the reverberations of Mannings and
Snowdens whistleblowing. But one thing is for sure: there are many more potential
whistleblowers out there, and if government officials do not move to make their actions
more transparent of their own volition, then their employees may well do it for them .

The information revolution makes leaking secrets much easier and keeping them
much harder
Dobson, Red Alert Politics, editor, 14
[Ashley Dobson, 12-1-2014, Red Alert Politics, "Panel: Snowden era raises big questions about
government secrecy...," http://redalertpolitics.com/2014/12/01/panel-snowden-era-raises-bigquestions-government-secrecy-freedom-press/, accessed 7.10.15, AM]

A panel of legal and media experts tackled this topic Monday at the Newseum in Washington
D.C., debating the ever-changing definitions of secrecy and the press. Panelists included
Gene Policinski, the Chief Operating Officer at the Newseum Institute, Harvey Rishikof
with the American Bar Association, Paul Rosenzweig, a lawyer and founder of the Red
Branch Consulting, Ellen Shearer, a journalism professor and the co-director of the Medill
National Security Journalism Initiative.
After walking through a history of notable whistleblowers and leaks, from the Pentagon
Papers to Snowden, the panel was clear on one thing the rules had changed.
Previously, either the government or the press controlled information, Rishikof explained.
Even government secrets leaked to the press had to go through a chain of command before

it was decided whether or not to share them. Now there has been an information data
revolution .
Rosenzweig agreed. Ten years ago the rules were simple, he said.
Then only the government or an established paper like the New York Times made the
decision on these leaks, weighing the consequences of publishing any government secret.
But with smartphones and the rise of blogging, its now up to individuals now to weigh the
consequences, a very destabilizing paradigm, he said.
Its also harder for the government to keep secrets now that there is a digital trail on
everything, Rishikof said. To access the amount of information Snowden did, it would have
taken earlier whistleblowers truckloads of printouts. Now it just takes a thumbdrive.
While the panel did not agree on a definition of the press, they all agreed that something
needed to be done at the government-level to make sure that the publics right to
information and the governments ability to have secrets were balanced.
Rishikof said he believes that the U.S. needs new legislation on this topic to better define the
boundaries on privacy, both governmental and personal.
Policinski suggested a two-prong approach.
First, he said, the government needs to stop overclassification. There is no clear definition of
what truly needs to be classified and what doesnt. He argued that if the government definition of
classified only applied to secrets that actually impacted national security, there would be
less chance that the press would publish them.
Secondly, Policinski said that the government needs to do a better a job of deciding who has
access to what. He said it wasnt just the information that famous leakers like Snowden and
Chelsea Manning released that was interesting, but the low-level of clearance needed to access
those kinds of damning documents.

No Link EU Regulations
New EU regulations will check circumvention market access ensures incentive for
compliance
Traynor, Guardian's European editor, 13
[Ian, 10-17-2013, Guardian, New EU rules to curb transfer of data to US after Edward Snowden
revelations, http://www.theguardian.com/world/2013/oct/17/eu-rules-data-us-edward-snowden,
Accessed: 7-10-2015, ACS]

New European rules aimed at curbing questionable transfers of data from EU countries to
the US are being finalised in Brussels in the first concrete reaction to the Edward Snowden
disclosures on US and British mass surveillance of digital communications.
Regulations on European data protection standards are expected to pass the European parliament
committee stage on Monday after the various political groupings agreed on a new compromise
draft following two years of gridlock on the issue.
The draft would make it harder for the big US internet servers and social media providers
to transfer European data to third countries, subject them to EU law rather than secret
American court orders, and authorise swingeing fines possibly running into the billions for
the first time for not complying with the new rules.
"As parliamentarians, as politicians, as governments we have lost control over our intelligence
services. We have to get it back again," said Jan Philipp Albrecht, the German Greens MEP who
is steering the data protection regulation through the parliament.
Data privacy in the EU is currently under the authority of national governments with standards
varying enormously across the 28 countries, complicating efforts to arrive at satisfactory data
transfer agreements with the US. The current rules are easily sidestepped by the big Silicon
Valley companies, Brussels argues.
The new rules, if agreed, would ban the transfer of data unless based on EU law or under a
new transatlantic pact with the Americans complying with EU law.
"Without any concrete agreement there would be no data processing by
telecommunications and internet companies allowed," says a summary of the proposed new
regime.
Such bans were foreseen in initial wording two years ago but were dropped under the pressure of
intense lobbying from Washington. The proposed ban has been revived directly as a result of
the uproar over operations by the US's National Security Agency (NSA).
Viviane Reding, the EU's commissioner for justice and the leading advocate in Brussels of a
new system securing individuals' rights to privacy and data protection, argues that the new

rulebook will rebalance the power relationship between the US and Europe on the issue,
supplying leverage to force the American authorities and tech firms to reform.
"The recent data scandals prove that sensitivity has been growing on the US side of how
important data protection really is for Europeans," she told a German foreign policy
journal. "All those US companies that do dominate the tech market and the internet want
to have access to our goldmine, the internal market with over 500 million potential
customers. If they want to access it, they will have to apply our rules. The leverage that we
will have in the near future is thus the EU's data protection regulation. It will make crystal
clear that non-European companies, when offering goods and services to European
consumers, will have to apply the EU data protection law in full. There will be no legal
loopholes any more."

AT Circumvention Intentional/Malicious
Errors in NSA compliance are often just an accumulation of small mistakes---too
many variables to recognize where circumvention occurs
Schlanger, University of Michigan Law Professor, 15
[Margo, Henry M. Butzel Professor of Law @ University of Michigan, Professor of Law at the University
of Michigan Law School, and the founder and director of the Civil Rights Litigation Clearinghouse,
Harvard National Security Journal, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, http://repository.law.umich.edu/cgi/viewcontent.cgi?
article=2409&context=articles, p.136-137,Date Accessed: 7/7/15, ACS]

In total, more than a few hundred people spend all or a substantial part of their work weeks
on NSA compliance and oversight. This enormous staffing commitment itself demonstrates
real commitment to abiding by the FISA and 12,333 rules. (In other topic areas, one might
suspect that the commitment is to being seen to abide by the rulesbut the ICs secrecy
undercuts that cynical interpretation.) Nonetheless, inevitably, the agency is far from perfectly
compliant. On occasion, compliance errors have been extremely widespread: In 2009, the
government disclosed a series of significant compliance failures to the FISA Court affecting both
the internet and telephony metadata programs. These included systemic failures to comply with
the reasonable articulable suspicion standard, by use of less strictly vetted alert lists and seed
accounts; unauthorized sharing of unminimized query results with other agency personnel; and
collection of fields of metadata beyond what was allowed by court order on nearly all the internet
metadata records.91 In addition, in 2011, the government reported that the upstream methods it
was using to surveil American internet communications abroad were incapable of confining NSA
access to only communications that met the standard for collection.92 These were extremely
significant failures, and they prompted some moderately robust responses creation of the
current NSA compliance office,93 augmentation of the Justice Department oversight role, 94 and
some stern (though for years secret) lectures by the FISA Court judges.95 It is surely
reasonable to expect better than these low points. But it would be unrealistic to demand
either perfect compliance or perfect detection of noncompliance. Both are unattainable for
an organization as complex as the NSA, governed by rulesets as complex as the Foreign
Intelligence Surveillance Act, Executive Order 12,333, and their related procedural
documents . Error, after all, has many causes . Sometimes the rules are misunderstood or
miscommunicated. 96 Sometimes someone who understands the rules makes a mistake
enters a typo, for example, 97 or seeks approval later than the rules require.98 Sometimes,
one can imagine, systems faila computer algorithm that is supposed to distinguish among
people with different statuses might miscategorize a new status, for example. And
sometimes people try to defeat the rules.99 In a system as massive and complicated as the NSAs
signals intelligence program, even an extremely low rate of error can add up.100

(Although because most of the information collected does not involve persons in the U.S. or
Americans abroad, these errors frequently do not violate anyones constitutional rights, under
current doctrine.) Of course, each type of error can be reduced. But compliance errors are
often hydraulicpushing out errors in one place is likely to introduce at least some errors
in another place.101 The goal, then, is not zero errors, but rather, as the NSAs Director of
Compliance puts it, to assure compliance at a reasonable level. 102 NSA has not always
achieved that goalbut it musters substantial effort to do so.

Compliance Solvency

Compliance

High political costs ensure compliance


Bradley, Duke Law professor & Morrison, Columbia Law professor, 13
[Curtis and Trevor, William Van, 2013, Directors of The Columbia Law Review Association, Inc.
Columbia Law Review May, Presidential Power, Historical Practice, And Legal Constraint,
lexis, Accessed 7/9/15, DR]

To be sure, it may be difficult to distinguish between legally normative conventions and


other normative conventions, since the courts may not enforce either one, and the informal
sanctions for their breach may be similar. Presumably, however, debates about alleged
breaches of legally normative conventions will be surrounded by analysis couched in legal
terms, whereas debates about potential breaches of other conventions will not. Relatedly, if
the convention is understood as legal in character, then within the executive branch it is likely
that lawyers will play a fairly important role in interpreting and applying it. The legal quality of
the norm, in other words, may be reflected in the identity of the personnel with primary
responsibility for analyzing and implementing it. The identity of the personnel could in turn
affect the likelihood of constraints, as discussed below in Part III. Moreover, because they are
based on evolving practice, the status of conventions is likely not fixed, and thus some nonlegal
conventions presumably could evolve into legal norms, and, conversely, some conventions
understood as legal might lose that character over time. The key point is that the distinction
would not turn on the existence or nonexistence of judicial review.
Insisting on a sharp distinction between the law governing presidential authority that is
subject to judicial review and the law that is not also takes for granted a phenomenon that
merits attention - that Presidents follow judicial decisions. n118 That assumption is
generally accurate in the United States today. To take one relatively recent example, despite
disagreeing with the Supreme Court's determination in Hamdan v. Rumsfeld that Common
Article 3 of the Geneva Conventions applies to the war on terror, the Bush Administration
quickly accepted it. n119 But the reason why Presidents abide by court decisions has a
connection to the broader issue [*1131] of the constraining effect of law. An executive
obligation to comply with judicial decisions is itself part of the practice-based constitutional
law of the United States, so presidential compliance with this obligation may demonstrate
that such law can in fact constrain the President. This is true, as we explain further in Part III,
even if the effect on presidential behavior is motivated by concerns about external political
perceptions rather than an internal sense of fidelity to law (or judicial review). n120

High costs of circumvention ensure compliance


Vladeck, American University Washington College of Law professor, 9

[Stephen I., and Associate Dean for Scholarship, senior editor of the peer-reviewed Journal of
National Security Law and Policy, Supreme Court Fellow at the Constitution Project, and fellow
at the Center on National Security at Fordham University School of Law, JD from Yale Law
School, 3-1-2009, University of Richmond Law Review 43, no. 3, The Long War, the Federal
Courts, and the Necessity / Legality Paradox,
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?
article=1002&context=facsch_bkrev , Accessed 7/9/15, DR]

Moreover, even if one believes that suspensions are unreviewable, there is a critical difference
between the Suspension Clause and the issue here: at least with regard to the former, there is a
colorable claim that the Constitution itself ousts the courts from reviewing whether there is a
Case[ ] of Rebellion or Invasion [where] the public Safety may require suspensionand even
then, only for the duration of the suspension.179 In contrast, Jacksons argument sounds
purely in pragmatismcourts should not review whether military necessity exists because
such review will lead either to the courts affirming an unlawful policy, or to the potential
that the political branches will simply ignore a judicial decision invalidating such a
policy.180 Like Jackson before him, Wittes seems to believe that the threat to liberty posed
by judicial deference in that situation pales in comparison to the threat posed by judicial
review.
The problem is that such a belief is based on a series of assumptions that Wittes does not
attempt to prove. First, he assumes that the executive branch would ignore a judicial
decision invalidating action that might be justified by military necessity.181 While Jackson
may arguably have had credible reason to fear such conduct (given his experience with both
the Gold Clause Cases182 and the switch in time),183 a lot has changed in the past six-anda-half decades, to the point where I, at least, cannot imagine a contemporary President
possessing the political capital to squarely refuse to comply with a Supreme Court decision.
But perhaps I am nave.184

Court Checks
No circumvention recent ruling checks
Ackerman, Columnist as the Guardian, 6/1/15
[Spencer Ackerman, Columnist at the Guardian, 6/1/15, The Guardian,"Fears NSA will seek to
undermine surveillance reform," http://www.theguardian.com/us-news/2015/jun/01/nsasurveillance-patriot-act-congress-secret-law), accessed 7/7/15, AMM]

Jameel Jaffer, the deputy legal director of the ACLU, expressed confidence that the second
circuit court of appeals decision last month would effectively step into the breach. The
panel found that legal authorities permitting the collection of data relevant to an investigation
cannot allow the government to gather data in bulk setting a potentially prohibitive precedent
for other bulk-collection programs.
We dont know what kinds of bulk-collection programs the government still has in place, but in
the past its used authorities other than Section 215 to conduct bulk collection of internet
metadata, phone records, and financial records. If similar programs are still in place, the
ruling will force the government to reconsider them, and probably to end them , said
Jaffer, whose organization brought the suit that the second circuit considered.

Compliance to judiciary system possible Integration of the executive proves


Bradley, Duke Law professor & Morrison, Columbia Law professor, 13
[Curtis and Trevor, William Van, 2013, Directors of The Columbia Law Review Association, Inc.
Columbia Law Review May, Presidential Power, Historical Practice, And Legal Constraint,
lexis, Accessed 7/9/15, DR]

Perhaps the most obvious way that law can have a constraining effect is if the relevant actors
have internalized the legal norms, whether those norms are embodied in authoritative text,
judicial decisions, or institutional practice. As a general matter, the internalization of legal norms
is a phenomenon that can potentially take place wherever the law is thought to operate, in both
the private and public sectors. But precisely how that internalization operates, including how it
affects actual conduct, depends heavily on institutional context. When speaking of legal norm
internalization as it relates to the presidency, it is important first to note that Presidents act
through a wide array of agencies and departments, and that presidential decisions are informed and often made, for all practical purposes - by officials other than the President. In most
instances involving presidential power, therefore, the relevant question is whether there has been
an internalization of legal norms by the executive branch.

The executive branch contains thousands of lawyers. n124 The President and other executive
officials are regularly advised by these lawyers, and sometimes they themselves are lawyers.
Although lawyers serve in a wide variety of roles throughout the executive branch, their [*1133]
experience of attending law school means that they have all had a common socialization - a
socialization that typically entails taking law seriously on its own terms. n125 Moreover, the law
schools attended by virtually all U.S. government lawyers are American law schools, which
means that the lawyers are socialized in an ethos associated with the American polity and the
American style of law and government. n126 These lawyers are also part of a professional
community (including the state bars to which they are admitted) with at least a loosely shared set
of norms of argumentative plausibility.
Certain legal offices within the executive branch have developed their own distinctive lawinternalizing practices. This is particularly true in places like OLC, which, as noted above,
provides legal advice based on its best view of the law. OLC has developed a range of practices
and traditions - including a strong norm of adhering to its own precedents even across
administrations - that help give it some distance and relative independence from the immediate
political and policy preferences of its clients across the executive branch, and that make it easier
for OLC to act on its own internalization of legal norms. n127 Another example is the State
Department Legal Adviser's Office, which often takes the lead within the executive branch on
matters of international law and which has developed its own set of traditions and practices that
help protect it from undue pressure from its clients. n128
More broadly, government legal offices may internalize legal norms even if they do not regularly
focus on identifying the best view of the law. For example, an office committed not to seeking
the best view of the law but to providing professionally responsible legal defenses of certain
already-determined policy positions could still operate under legal constraints if it took the limits
of professional responsibility seriously. [*1134] That may well describe the typical posture of
agency general counsel offices across the executive branch. As noted above, although it can be
difficult to identify with consistent precision the outer boundaries of legal plausibility, a
commitment to remaining within those boundaries is a commitment to a type of legal constraint.

Ex Ante Review Solves


The Judiciary must be separate from the other branches to solve surveillance
overreach
Balkin, Yale University, School of Law, Professor of Law, 8
[Jack, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers ,
Accessed 7/7/15, DR]

Judicial oversight need not require a traditional system of warrants. It could be a system of
prior disclosure and explanation and subsequent regular reporting and minimization. This
is especially important as surveillance practices shift from operations targeted at individual
suspected persons to surveillance programs that do not begin with identified individuals and
focus on matching and discovering patterns based on the analysis of large amounts of data
and contact information.81 We need a set of procedures that translate the values of the
Fourth Amendment (with its warrant requirement) and the Fifth Amendment's Due Process
Clause8 2 into a new technological context. Currently, however, we exclude more and more
executive action from judicial review on the twin grounds of secrecy and efficiency . The
Bush administration's secret NSA program is one example; the explosion in the use of
administrative warrants that require no judicial oversight is another.8 3 Yet an independent
judiciary plays an important role in making sure that zealous officials do not overreach. If
the executive seeks greater efficiency, this requires a corresponding duty of greater
disclosure before the fact and reporting after the fact to determine whether its surveillance
programs are targeting the right people or are being abused. Judges must also counter the
executive's increasing use of secrecy and the state secrets privilege to avoid accountability for its
actions. Executive officials have institutional incentives to label their operations as secret and
beyond the reach of judicial scrutiny. Unless legislatures and courts can devise effective
procedures for inspecting and evaluating secret programs, the Presidency will become a
law unto itself.

Accountability Solves
Strong oversight measures make politicians accountable and trigger genuine reform
Setty, Western New England University, law professor, 15
[Sudha, 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, Accessed 7/7/15]

Reliance on sporadic leaks to trigger genuine accountability is structurally problematic.


n107 Our reliance on leaks thus far should force us to reconsider the extreme secrecy under
which intelligence-gathering programs, like the NSA Metadata Program, are administered,
and to consider means by which institutional actors can exert meaningful and regular
oversight and control over these programs. Such change would force politicians to take
ownership over secret counterterrorism programs, weighing their expediency against
possible constitutional defects or the judgment of public opinion. An atmosphere in which
accountability mechanisms are not merely ersatz pending an illegal leak could provide
space for genuine public discourse and at least the possibility of greater protection of civil
liberties.

Oversight Mechanisms Solve


Institutionalized oversight solves
Balkin, Yale law professor, 08
[Jack Balkin, Professor of Law at Yale, 1/1/08, Yale Law School Legal Scholarship Repository,
National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers,
accessed 7/7/15, AMM]

Given the limits of legislative and judicial oversight, oversight within the executive branch will
prove especially crucial. Congress can design institutional structures that require the executive to
police itself and make regular reports about its conduct. For example, if Congress wants to
bolster legal protections against warrantless surveillance, it might create a cadre of informational
ombudsmen within the executive branch with the highest security clearances-whose job is to
ensure that the government deploys information collection techniques legally and
nonarbitrarily.8 4 Unfortunately, the Bush administration has made extreme claims of inherent
presidential power that it says allow it to disregard oversight and reporting mechanisms.85
Rejecting those claims about presidential power will be crucial to securing the rule of law in the
National Surveillance State.

Congress is key to prevent mass data collection


Balkin, Yale law professor, 08
[Jack Balkin, Professor of Law at Yale, 1/1/08, Yale Law School Legal Scholarship Repository,
National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers,
accessed 7/7/15, AMM]

Congress must pass new superstatutes to regulate the collection, collation, purchase, and analysis
of data. These new superstatutes would have three basic features. First, they would restrict the
kinds of data governments may collect, collate, and use against people. They would strengthen
the very limited protections of e-mail and digital business records, and rein in how the
government purchases and uses data collected by private parties. They would institutionalize
government "amnesia" by requiring that some kinds of data be regularly destroyed after a certain
amount of time unless there were good reasons for retaining the data. Second, the new
superstatutes would create a code of proper conduct for private companies that collect, analyze,
and sell personal information. Third, the new superstatutes would create a series of oversight
mechanisms for executive bureaucracies that collect, purchase, process, and use information.

Enforcement
New Second Circuit decision sets precedent for enforcement
Ackerman, The Guardian, 15
(Spencer, 6/1/2015, The Guardian, Fears NSA will seek to undermine surveillance reform,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secretlaw, Accessed 7/5/15, DR)

Jameel Jaffer, the deputy legal director of the ACLU, expressed confidence that the second
circuit court of appeals decision last month would effectively step into the breach. The
panel found that legal authorities permitting the collection of data relevant to an
investigation cannot allow the government to gather data in bulk setting a potentially
prohibitive precedent for other bulk-collection programs.
We dont know what kinds of bulk-collection programs the government still has in place, but in
the past its used authorities other than Section 215 to conduct bulk collection of internet
metadata, phone records, and financial records. If similar programs are still in place, the
ruling will force the government to reconsider them, and probably to end them, said
Jaffer, whose organization brought the suit that the second circuit considered.

Executive Oversight Key


Ongoing executive oversight is the best way to solve surveillance overreach
sporadic congressional oversight is ineffective
Balkin, Yale University, School of Law, Professor of, 8
[Jack, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers ,
Accessed 7/7/15, DR]

Oversight of executive branch officials may be the single most important goal in securing
freedom in the National Surveillance State. Without appropriate checks and oversight
mechanisms, executive officials will too easily slide into the bad tendencies that characterize
authoritarian information states. They will increase secrecy, avoid accountability, cover up
mistakes, and confuse their interest with the public interest.
Recent events in the Bush administration suggest that legislative oversight increasingly plays
only a limited role in checking the executive. Meaningful oversight is most likely to occur only
when there is divided government. Even then the executive will resist sharing any information
about its internal processes or about the legal justifications for its decisions. A vast number of
different programs affect personal privacy and it is unrealistic to expect that Congress can
supervise them all. National security often demands that only a small number of legislators know
about particularly sensitive programs and how they operate, which makes it easy for the
administration to coopt them. 79 The Bush administration's history demonstrates the many ways
that Presidents can feign consultation with Congress without really doing so.

Reform Solvency

Institutional Reforms Solve


The publics trust in government is decliningthe plan risks exposing the magic of
double governmentthat collapses the system
Glennon, Tufts University, International Law, professor, 14
[Michael J. Glennon, previously Legal Counsel to the Senate Foreign Relations Committee,
Fulbright Distinguished Professor of International and Constitutional Law, Vytautus Magnus
University School of Law, Kaunas, Lithuania, 2014, Harvard National Security Journal / Vol. 5,
National Security and Double Government, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, P 86, accessed 7.9.15, AM]

E. Implications for the Future


The aim of this Article thus far has been to explain the continuity in U.S. national security policy.
An all-too-plausible answer, this Article has suggested, lies in Bagehots concept of double
government. Bagehot believed that double government could survive only so long as the
general public remains sufficiently credulous to accept the superficial appearance of
accountability, and only so long as the concealed and public elements of the government are
able to mask their duality and thereby sustain public deference. 501 As evidence of duality
becomes plainer and public skepticism grows, however, Bagehot believed that the cone of
governance will be balanced on its point.502 If you push it ever so little, it will depart
farther and farther from its position and fall to earth.503
If Bagehots theory is correct, the United States now confronts a precarious situation .
Maintaining the appearance that Madisonian institutions control the course of national
security policy requires that those institutions play a large enough role in the decisionmaking process to maintain the illusion . But the Madisonians role is too visibly shrinking ,
and the Trumanites too visibly expanding, to maintain the plausible impression of
Madisonian governance.504 For this reason and others, public confidence in the Madisonians
has sunk to new lows.505 The Trumanites have resisted transparency far more successfully
than have the Madisonians, with unsurprising results. The success of the whole dual
institutional model depends upon the maintenance of public enchantment with the
dignified/ Madisonian institutions. This requires allowing no daylight to spoil their
magic ,506 as Bagehot put it. An element of mystery must be preserved to excite public
imagination. But transparency driven hugely by modern internet technology, multiple
informational sources, and social media leaves little to the imagination . The cure for
admiring the House of Lords, Bagehot observed, was to go and look at it.507 The public has
gone and looked at Congress, the Supreme Court, and the President, and their standing in
public opinion surveys is the result. Justices, senators, and presidents are not masters of the

universe after all, the public has discovered. They are just like us. Enquiring minds may not
have read enough of Foreign Affairs508 to assess the Trumanites national security polices, but
they have read enough of People Magazine509 to know that the Madisonians are not who they
pretend to be. While the publics unfamiliarity with national security matters has no doubt
hastened the Trumanites rise, too many people will soon be too savvy to be misled by the
Madisonian veneer,510 and those people often are opinion leaders whose influence on
public opinion is disproportionate to their numbers. There is no point in telling ghost
stories, Holmes said, if people do not believe in ghosts .511

Engaging the institution in small pragmatic steps is a prerequisite to overcome


deeply rooted problems
Wright, University of Wisconsin Sociology Professor, 7
[Erik Olin, American analytical Marxist sociologist, specializing in social stratification, and in
egalitarian alternative futures to capitalism, He was the 2012 President of the American
Sociological Association, April 7th, University of Wisconsin, Guidelines for Envisioning Real
Utopias, http://www.ssc.wisc.edu/~wright/Guidelines.pdf, p. 9, Date Accessed: 7/7/15, ACS]

The final guideline for discussions of envisioning real utopias concerns the importance of
waystations. The central problem of envisioning real utopias concerns the viability of
institutional alternatives that embody emancipatory values, but the practical achievability
of such institutional designs often depends upon the existence of smaller steps, intermediate
institutional innovations that move us in the right direction but only partially embody these
values. Institutional proposals which have an all-or-nothing quality to them are both less
likely to be adopted in the first place, and may pose more difficult transition-cost problems
if implemented. The catastrophic experience of Russia in the shock therapy approach to
market reform is historical testimony to this problem.
Waystations are a difficult theoretical and practical problem because there are many
instances in which partial reforms may have very different consequences than fullbodied
changes. Consider the example of unconditional basic income. Suppose that a very limited,
below-subsistence basic income was instituted: not enough to survive on, but a grant of income
unconditionally given to everyone. One possibility is that this kind of basic income would act
mainly as a subsidy to employers who pay very low wages, since now they could attract more
workers even if they offered below poverty level earnings. There may be good reasons to
institute such wage subsidies, but they would not generate the positive effects of a UBI, and
therefore might not function as a stepping stone.
What we ideally want, therefore, are intermediate reforms that have two main properties:
first, they concretely demonstrate the virtues of the fuller program of transformation, so
they contribute to the ideological battle of convincing people that the alternative is credible

and desirable; and second, they enhance the capacity for action of people, increasing their
ability to push further in the future. Waystations that increase popular participation and bring
people together in problem-solving deliberations for collective purposes are particularly salient
in this regard. This is what in the 1970s was called nonreformist reforms: reforms that are
possible within existing institutions and that pragmatically solve real problems while at the
same time empowering people in ways which enlarge their scope of action in the future.

The viability of policy should not be determined by the preexisting arrangements of


the legal system, instead they are key to formulating alternatives to these inherent
issues
Wright,, University of Wisconsin Sociology Professor, 7
[Erik Olin, American analytical Marxist sociologist, specializing in social stratification, and in
egalitarian alternative futures to capitalism, He was the 2012 President of the American
Sociological Association, April 7th, University of Wisconsin, Guidelines for Envisioning Real
Utopias, http://www.ssc.wisc.edu/~wright/Guidelines.pdf,p.1-2, Date Accessed: 7/7/15, ACS]

To be a radical critic of existing institutions and social structures is to identify harms that
are generated by existing arrangements, to formulate alternatives which mitigate those
harms, and to propose transformative strategies for realizing those alternatives. There was a
time when many intellectuals on the Left were quite confident in their understanding of each of
these: theories of class and political economy provided a framework for identifying what was
wrong with capitalism; various contending conceptions of socialism provided models for
alternatives; and theories of class struggle and socialist politics (whether reformist or
revolutionary) provided the basis for a transformative strategy. Today there is much less certainty
among people who still identify strongly with Left values of radical egalitarianism and deep
democracy. While Left intellectuals remain critical of capitalism, many acknowledge if
reluctantly the necessity of markets and the continuing technological dynamism of capitalism.
Socialism remains a marker for an alternative to capitalism, but its close association with statist
projects of economic planning no longer has much credibility, and no fully convincing
alternative comprehensive model has become broadly accepted. And while class struggles
certainly remain a central source of conflict in the world today, there is no longer
confidence in their potential to provide the anchoring agency for transforming and
transcending capitalism.
This is the context in which there has emerged on the left a renewed interest in thinking
about broad visions and imagining new ways of approaching the problem of alternatives to
the existing social world. The recent publications of Compass are good examples of this kind of
work. Other examples include Michael Alberts effort at elaborating a comprehensive model for
a participatory economy, christened Parecon; Gar Alperowitzs work, America Beyond
Capitalism: reclaiming our Wealth, our Liberty and Our Democracy; Roberto Ungers book,
What Should the Left Propose; and the volumes published out of my project, Envisioning Real

Utopias.2 I call the problem of exploring alternatives envisioning real utopias to highlight the
inherent tension between taking seriously emancipatory aspirations for a radically more humane
and just world, and confronting the hard constraints of realism. This is a difficult endeavor. It is
much easier to be a realist about what exists than about what could exist, and much easier
to dream of a better world without worrying about the practical problems of unintended
consequences and perverse dynamics . But if we want to realize the values of egalitarian
democracy in a sustainable way that creates the widespread conditions for human
flourishing, then we must grapple with this tension .
In this essay I will elaborate five guidelines for these kinds of discussions of emancipatory
alternatives to the existing social order: 1. Evaluate alternatives in terms of three criteria:
desirability, viability, achievability.
2. Do not let the problem of achievability dictate the discussion of viability.
3. Clarify the problem of winners and losers in structural transformation.
4. Identify normative trade-offs in institutional designs and the transition costs in their
creation.
5. Analyze alternatives in terms of waystations and intermediary forms as well as
destinations. Pay particular attention to the potential of waystations to open up virtuous cycles
of transformation.

Aff Solves internal approaches to the law with external criticism solves deficiencies
in both
Litowitz, Chicago-Kent College of Law, Visiting Assistant Professor, 98
[Douglas, Chicago-Kent College of Law, 1998, Florida State University Law Review,
"INTERNAL VERSUS EXTERNAL PERSPECTIVES ON LAW: TOWARD MEDIATION,"
http://www.law.fsu.edu/journals/lawreview/frames/261/litofram.html, Accessed 7/9/15, DR]

Legal doctrine and legal practice can be understood from either an internal or external
perspective.[1] The internal perspective is mandatory for judges and lawyers who work
within the legal system. In their official capacity, these participants in the system are
required to view the law as a set of rules with legitimacy and moral authority. By contrast,
the external perspective predominates among sociologists, economists, and historians who
approach law and legal conduct as epiphenomenal, as a reflection of deeper forces unrecognized
by the players within the system. The internal perspective approximates a first-person view
or insider's view of the legal system, whereas the external perspective is a third-person view
or observer's view of the law.[2]

We can view any area of lawindeed, any judicial decisionfrom either of these perspectives.
For example, we can understand a probate code internally as a coherent set of rules for the
disposition of a decedent's property, or we can examine it externally as a mechanism for
perpetuation of class divisions. The internal perspective accepts the baseline assumptions of
probate law, such as the right of inheritance and the rules of descent. By contrast, the external
perspective seeks a deeper explanation for the probate code, perhaps by linking it to the rise of a
free-market economy or to a system of patriarchal domination. In looking at the probate code, an
internal theorist might address a question raised in an actual court case, such as whether the
courts should enforce an undated will. The external theorist might ask, How does probate law
perpetuate poverty, racism, and class divisions? This simple example illustrates that internal
theory is useful to practicing lawyers because it shares their uncritical attitude toward primary
legal materials such as cases and statutes. The external perspective seeks a deeper truthit
moves below the positivism assumed in the internal perspectivebut it does so at the cost
of diminished usefulness to the participants who have to operate within the legal system .
Every legal scholar must decide whether to favor an internal or external perspective. For
example, if a law professor wants to write an essay on the doctrine of adverse possession, she
faces an immediate problem of orientation. Does she begin with the internal rules of adverse
possessionan open, notorious, and hostile claim of right, or does she try to relativize and
demystify the doctrine as bourgeois ideology? Which of these two perspectives, the internal or
external, is appropriate for a legal scholar? Should a legal scholar assume an internal role and
approach legal controversies from a judge's perspective, or should she stand outside the legal
arguments and adopt the posture of a detached social critic? Or is it possible to consider both
perspectives simultaneously?
Law professors often experience institutional pressure to take an internal perspective because
they are responsible for training young lawyers in the nuts and bolts of legal doctrine and
practice, something that is undercut by an external emphasis on criticism of the law. On the other
hand, law professors with critical, feminist, or Marxist inclinations favor the external perspective
because it looks at the larger social context of legal disputes.
The question of perspective has generated fierce disagreement between theorists in the internal
and external camps.[3] Legal philosopher Ronald Dworkin has championed the internal
perspective by asserting that jurisprudence must privilege "the judge's viewpoint."[4]
Dworkin goes as far as claiming that external accounts of the law are "impoverished and
defective" and "less critical in practice."[5] In contrast, the external perspective is advanced by
various Marxists, critical legal scholars, and postmodernists, who collectively argue that the
internal perspective of the participants is distorted, biased, or ideologically tainted.[6]
These two perspectives produce different types of legal theory. Internal thinkers like Dworkin
tend to provide what might be called an "imminent" critique of the law by operating within the
existing legal framework. For example, Dworkin's regular contributions to the New York Review
of Books provide judicial-style opinions on why the United States Supreme Court has either
correctly or incorrectly decided a recent case under the precedents and principles before the
Court.[7] In contrast, external theorists provide radical critiques that shake the foundations of the

legal edifice or attempt to destabilize an area of law. For example, Marxists have claimed that
crime is largely a social product caused by capitalism and not a matter of individual intent.[8]
They also claim that in a just society criminal treatment would replace punishment with its
emphasis on individual criminal blame.[9] Such a perspective is radical because it challenges an
entire area of law and refuses to work within the established precedents.
These two perspectives on the law, the internal and the external, are each structurally deficient
when used in isolation. Because law is both an internal, argumentative practice and an
external, social construct, any perspective on law that is purely internal or purely external
will be unworkable precisely because each ignores a fundamental feature of law. An
acceptable legal theory allows the internal and external perspectives to mediate each other
dialectically so that a "fusion of horizons" takes place. This Essay suggests some ways in
which this fusion can be encouraged.

A combination of internal and external approaches to law solves best


Litowitz, Chicago-Kent College of Law, Visiting Assistant Professor, 98
[Douglas, Chicago-Kent College of Law, 1998, Florida State University Law Review,
"INTERNAL VERSUS EXTERNAL PERSPECTIVES ON LAW: TOWARD MEDIATION,"
http://www.law.fsu.edu/journals/lawreview/frames/261/litofram.html, Accessed 7/9/15, DR]

At this point it is tempting to say that we are dealing with two separate and incommensurate
language games. The internal perspective is a language game within the law because it attempts
to determine how the criminal law ought to be applied, while the external focus is about the law
because it situates the existing law in a broader context. This way of speaking is permissible if
we remember that these language games do not constitute entirely different conceptual schemes.
Indeed, it is possible and desirable to translate one perspective into the other.
How might such translation occur? In criminal law, it might be possible for the Marxist to
convince the internal players that the terms which they are using are ideologically loaded or
distorted. She may do this by showing that certain types of criminality are caused by economic
conditions and hence lack the requirement of intent.[24] Thus, this category of criminal
defendant should be treated less harshly by the courts.[25] In another context, a Marxist could
argue that contracts deemed voluntary under the law are actually the result of economic coercion
and therefore should be voided. These views might somehow force a reshaping of the internal
rules of law. Obviously, something will get lost in this translation; the version of Marxism that
can be translated into our legal system is not going to be orthodox Marxism in its entirety but a
diluted version. Yet for the external viewpoint to affect the actual development of the law, it must
somehow be translated into the language that is being used inside the practice of law. If this
translation does not take placeif the external and internal horizons are not fused or mediated
we are left with two hermetically sealed approaches to law. The next two sections explain the
problems with using either of these perspectives in a hermetically sealed manner.

Dont evaluate the legal system in a vacuum considerations should be made with
both internal and external perspectives
Litowitz, Chicago-Kent College of Law, Visiting Assistant Professor, 98
[Douglas, Chicago-Kent College of Law, 1998, Florida State University Law Review,
"INTERNAL VERSUS EXTERNAL PERSPECTIVES ON LAW: TOWARD MEDIATION,"
http://www.law.fsu.edu/journals/lawreview/frames/261/litofram.html, Accessed 7/9/15, DR]

Legal controversies do not occur in a vacuum, however, and the law is not a system of rules
closed off from the larger social context. We are a society divided by race and class with the
result that legal doctrine is itself shaped by fundamental unspoken assumptions and biases in
favor of certain arrangements (private property, competition, wage-labor, and negative rights)
and against others (positive rights and collective ownership of the workplace). It is virtually
impossible to practice law without tacitly accepting these commitments, despite what one
believes about them privately. The law harbors ideological distortions, and it contains rules that
are downright cruel and absurd.
It would be helpful if judges and lawyers could see the legal system from the outside. For
example, in Brown v. Board of Education,[64] the Supreme Court looked to empirical
sociological studies to reach the conclusion that the legal notion of "separate but equal"[65] did
not conform to the experiences of African Americans who felt separate and unequal.[66] Only
through a similar process of stepping outside legal practice can we determine if the meaning of
terms within the systemreasonable force, due notice, adequate considerationare "off" or
"skewed." This opportunity arises at the highest levels of judicial and legislative proceedings,
where judges and legislators can adopt a critical perspective that leads to the recognition of new
rights and the striking of oppressive laws. The same analysis applies to legal theorists who adopt
the internal perspective: they must learn to stand outside the judge's viewpoint lest they silently
absorb that perspective in toto, including the prejudices and distortions that inevitably
accompany it.

AT Reforms Will Fail (Empirically)


Believing future policies are contingent on status quo structures is counterintuitive
forecloses alternatives that are potentially achievable informed debate solves
Wright, University of Wisconsin Sociology Professor, 7
[Erik Olin, American analytical Marxist sociologist, specializing in social stratification, and in
egalitarian alternative futures to capitalism, He was the 2012 President of the American
Sociological Association, April 7th, University of Wisconsin, Guidelines for Envisioning Real
Utopias, http://www.ssc.wisc.edu/~wright/Guidelines.pdf,p.5-6, Date Accessed: 7/7/15, ACS]

Discussions of the viability of new institutional designs that bracket the problem of the
actual political achievability often encounter strong objections. What is the point, it is
sometimes argued, of talking about some theoretically viable alternative to the world in
which we live if it is not strategically achievable? There are two responses to the skeptic .
First, there are so many uncertainties and contingencies about the future, that we cannot
possibly know now what really are the limits of achievable alternatives in the future. The
further we look into the future, the less certain we can be about the limits on what is
achievable. Achievability is often determined by historically contingent windows of
opportunity that open up unexpectedly rather than anticipated strategies understood well
in advance. No one, for example, would have thought in 1985 that a destruction of the
Soviet Union and the shock therapy transition to some form of capitalism was achievable
within a decade. So, to let our firm knowledge of achievability constrain our analysis of
viability would necessarily exclude discussions of some alternatives that eventually do become
achievable. Second, the actual limits of what is achievable depend in part on the beliefs people
hold about what sorts of alternatives are viable. This is a fundamental if sometimes elusive
point about very idea of there being limits of possibility for social change: social limits of
possibility are not independent of beliefs about limits. When a biologist argues that in the
absence of certain conditions, life is impossible, this is a claim about objective constraints. Of
course the biologist could be wrong, but the claims themselves are about real, untransgressable
limits of possibility that exist independently of our theories about those limits. Claims about
social limits of possibility are different from these claims about biological limits, for in the social
case the beliefs people hold about limits systematically affect what is possible. Developing
systematic, compelling accounts of viable alternatives to existing social structures and
institutions of power and privilege, therefore, is one component of the social process
through which the social limits on achievable alternatives can themselves be changed . For
these reasons, the analysis of the viability of alternatives to existing institutions should not be
short circuited by the problem of political achievability. Of course, if it could be shown that in
principle a given proposal could never be achieved under any conceivable conditions, this would
reduce the interest in understanding its potential viability. Nevertheless, even in this extreme

case, the discussion of viability could be productive insofar as it clarifies issues of the
workability of institutional design which might have implications for modified versions
which could be implemented.

Restraints on law are necessary to empower political resistance against loopholes--solely political movements fail
Cole, Georgetown University law professor, 12
[David, constitutional law, national security, and criminal justice at Georgetown University Law
Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the
New York Review of Books. He has been published widely in law journals and the popular press,
including the Yale Law Journal, California Law Review, Stanford Law Review, New York
Times, Washington Post, The New Republic, Wall Street Journal, and Los Angeles Times He is
the author of seven books, Georgetown University, Where Liberty Lies: Civil Society and
Individual Rights After 9/11, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?
article=2129&context=facpub, Date Accessed: 7/7/15, ACS]

It is important to distinguish the role of civil society from democratic politics more generally. As
I have shown above while political forces played an important role in checking President Bush,
what was significant was the particular substantive content of that politics; it was not just any
political pressure, but pressure to maintain fidelity to constitutional and human rights. Politics
standing alone is as likely to fuel as to deter abuse; consider the lynch mob in the United
States or the Nazi Party in Germany. What we need if we are to check abuses of executive
power is a culture that champions constitutional and human rights. And civil society groups
sharing those commitments are integra to building and sustaining that culture, and to invoking it
in times of crisis. Unlike the majoritarian electoral politics Posner and Vermeule imagine,
the work of civil society cannot be segregated neatly from the law. On the contrary, it will
often coalesce around a distinctly legal challenge, objecting to departures from specific
legal norms, often but not always heard in a court case, as with civil societys challenge to the
treatment of detainees at Guantnamo. Congresss actions on that subject make clear that had
Guantnamo been left to the majoritarian political process, there would have been few if any
advances. The litigation generated and concentrated pressure on claims for a restoration of
the values of legality, and, as discussed above, that pressure then played a critical role in
the litigations outcome, which in turn contributed to a broader impetus for reform . The
separation of powers and human rights are designed to discipline and constrain politics,
out of a concern that majoritarian politics, focused on the short term, is likely to discount
these long-term values. Yet without a critical mass of active support for constitutional
principles, they are unlikely to be effective. The critical mass, however, need not be a majority.
In the wake of 9/11, civil society organizations helped achieve results that almost certainly would
have been impossible through a strictly majoritarian political process. The answer, then, is not

to abandon legal for political constraints, as Posner and Vermeule would, but to promote a
culture that values constitutional and human rights as legal constraints. Civil society
organizations devoted to such values, such as Human Rights Watch, the Center for Constitutional
Rights, and the American Civil Liberties Union, play a central role in facilitating, informing, and
generating a culture of respect for liberty and legality.306 As distinct from ordinary politics,
which tend to focus on the preferences of the moment, these civil society organizations are
Unlike governmental institutions, civil society groups have no formal authority to impose
the limits of law themselves. Their recourse to the law is necessarily indirect: they can file
lawsuits seeking judicial enforcement, lobby Congress for statutory reform or other
legislative responses, or seek to influence the executive branch. But while they advance
legal claims, they simultaneously pursue these goals through discursive means peculiar to
civil societyby appealing to the public and elite opinion, through public advocacy,
education, demonstrations, email and petition campaigns, and the like. As distinct from
ordinary politics, which tend to focus on the preferences of the moment, these civil society
organizations are dedicated to a set of long-term commitments. Much like a constitution itself,
civil society groups organized to promote constitutional and human rights are institutionally
designed to emphasize and reinforce our long-term commitments to rights. When the ordinary
political process is consumed by the heat of a crisis, organizations like the ACLU, Human Rights
First, and the Center for Constitutional Rights, dedicated to preserving constitutional and human
rights, can generally be counted on to stand up for these rights and to resist political pressures. At
their best, civil society organizations help forge a culture of resilience about rights. Kramer,
Tushnet, Post and Siegel, Posner and Vermeule, and Margulies and Metcalf all recognize the
importance of culture as a checking force on government power in the modern world.
B. Law: The Checking Function of Political Freedom But none focuses on the particular
role that civil society organizations committed to constitutional and human rights play in
that checking mechanism. It is not that the rule of politics has replaced the rule of law,
as Posner and Vermeule would have it, or that the Constitution needs to be taken from the
courts and given to the people, as the popular constitutionalists advocate, but that a culture
of resilience about rights, reinforced by civil society, is an essential element in ensuring that
constitutional law is more than mere words. If a robust civil society is essential to healthy
constitutionalism, then constitutional protections of civil society, in particular the First
Amendment, may be as important as the formal separation of powers. In this sense, the postSeptember-11 decade can be read as a vindication of Vincent Blasis classic vision of the First
Amendments checking value.308 Blasi argued that one of the central values of free speech is
precisely its instrumental ability to hold official power in check by calling it to public
account.309 But of course it is not the First Amendment itself that calls power to account. The
First Amendment creates a safe space for civil society to act, but it is civil society itself that is the
living embodiment of this checking value.310 The First Amendment is the lifeblood of civil
society. For civil society organizations to flourish, they must have the freedom to criticize the
government; to organize themselves as associations; to appeal to the citizenry for support, both
financial and ideological; and to collaborate with other groups as a means of furthering their
ends.311 In this light, three developments since September 11 should be of concern. First, while

direct attacks on speech have not been a central feature of the war on terror, free speech
remains vulnerable, especially for some. By and large, since 9/11, we have not seen the sort of
direct punishment of speech that characterized the governments response to anti-war activists
during World War I or Communist sympathizers in the McCarthy era.
Maintaining those freedoms is an important value in itself, but also has substantial instrumental
benefits, inasmuch as a free civil society may act as a critical check on executive abuses of other
rights. Accordingly, an appreciation of the role of civil society in making the Constitution
work should underscore the central importance of preserving First Amendment protection
for such organizations speech and associational activities. 312 However, the governments
aggressive targeting of Muslim communities in the United States, including the use of pretextual
immigration charges, informants, and undercover provocateurs, has had a profound chilling
effect on that communitys freedom to engage in criticism of the government.313 While this
targeting does not directly affect the ability of non-Muslim and non-Arab individuals and
organizations to criticize government overreaching, the Arab and Muslim community, as the
target of virtually all of the overreaching, is the most important source of information.314
Immigrants are especially vulnerable because the byzantine immigration code affords wide
discretion for selective enforcement and the Supreme Court has ruled that even selective
enforcement based on otherwise protected associations is no bar to deportation proceedings.315
Second, Congress and the President have criminalized speech and association when engaged in
with or on behalf of organizations that the government has designated as terroristregardless
of the otherwise peaceful and lawful character of the individuals speech or association. While
investigating potential terrorists is indisputably important, the heavy-handed way in which
the federal government has gone about it has undermined the freedom of members of Arab
and Muslim communities to speak out and be heard and that in turn increases the
likelihood of executive overreaching.
Federal law broadly empowers the executive to designate domestic as well as foreign
groups as terrorist, and makes it a crime to provide such groups with any material
support, or to engage in any transaction with them, including offering them any
service.316 Both material support and service are defined sufficiently broadly as to include
pure speech, and neither requires any nexus between the content of the speech and any terrorist
conduct.317 Thus, these laws make it a crime to engage in speech advocating only human rights
and the peaceful resolution of conflict, when done for or with designated groups.318 In Holder v.
Humanitarian Law Project, the Obama administration successfully established that speech
advocating only political ideas and lawful means of achieving political ends could be made
criminal without transgressing the First Amendment.319 For all practical purposes, these laws
resurrect the principle of guilt by association that was so widely employed during the
McCarthy era.320 As the McCarthy era waned, the Supreme Court ruled that the Constitution
precludes the imposition of guilt for association with a proscribed group absent proof that an
individual had the specific purpose of furthering its illegal ends.321 The material support
law does not criminalize membership or association as such, but it effectively does just that
by making it a crime to do anything that one would do as a member or associate of a group.
Under current law, one has a constitutional right to be a member of a group the

government has designated terrorist, but has no right to pay dues, volunteer services, or
advocate even for peaceful, lawful reform on the groups behalf.322 316. 18 U.S.C. 2339B
(2009); 50 U.S.C. 1701-07 (2012); Ex. Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23,
2001). The material support laws have effectively rendered the right of association a
meaningless formality. The fact that this restriction on political freedom is selectively targeted at
groups officially disfavored by the government makes the law even more suspect from a First
Amendment standpoint. The views of such groups, and of their supporters, could well be
particularly relevant from a checking standpoint, as they are most likely to be the victims
of the governments overreaching.
The material support laws sweeping criminalization of virtually any speech or associational
activity in coordination with officially disfavored groups has its most chilling effects on those
groups and individuals from whom we most need to hear. Third, and more generally, the
doctrinal approach the Supreme Court employed in Holder v. Humanitarian Law Project, the
Courts first post- 9/11 case pitting free speech and association against national security claims,
appears to dilute substantially constitutional protection for precisely the speech that is most
important to checking government abuse in this sphere. The Court in Humanitarian Law Project
acknowledged that, as applied to plaintiffs speech advocating human rights and peace, the
material support ban was a content-based prohibition triggering the First Amendments
heightened scrutiny.323 Exceedingly few laws survive such scrutiny, which ordinarily
requires the government to establish that prohibiting the specific speech at issue is
necessary to further a compelling state interest.324 The government must substantiate its
assertions with evidence, and show that there are no more narrowly tailored means to achieve its
ends.325 Yet in Humanitarian Law Project, the Court hypothesized justifications for the statute
that the government itself had never even advanced, and then upheld the statute on that basis
without any evidence to substantiate its speculations.326 Thus, it reasoned that teaching a
group how to advocate for human rights might permit it to engage in harassment by filing
such claims; that advising a group on paths toward peace might allow the group to use
peace negotiations as a cover to re-arm itself; and that even if none of these immediate
negative results arose, assisting the group in lawful activities might burnish its legitimacy, which
it could then use to raise support for more terrorist activities.327 The Court never demanded any
evidence that advocacy of peace and human rights had ever had such effects, or that
criminalizing such speech was necessary or narrowly tailored to fight terrorism. Instead, the
Court stressed that in the area of national security and foreign relations, it had to defer to the
political branches.328 323. Humanitarian Law Project, 130 S. Ct. at 2724. Yet as the government
itself had not even advanced many of these purported justifications, the Court in essence deferred
to its own speculation. If such deferential strict scrutiny is to be the standard for judging
future restrictions on speech defended in the name of national security or foreign relations,
the First Amendment is unlikely to be much of a bulwark against censorship in times of
crisis. The central checking role that First Amendment freedoms played in the restoration of the
rule of law after September 11 should reinforce the importance of prohibiting guilt by
association, whether it appears in the form of material support or a direct prohibition on
membership. It should make us more sensitive to the chilling effects of overly aggressive
targeting of the Muslim community. And it should lead the courts to adopt a more truly skeptical

stance toward content-based restrictions on speech justified in the name of national security. The
fact that civil society groups in the United States did feel free to criticize the governments
overreaching in the wake of September 11 indicates that the culture of political freedom here
remains strong. But neither the political branches nor the judiciary have given sufficient
emphasis to the importance of maintaining political freedom as a checking force in times of
crisis. C. Practice: Civic Engagement Our survival as a constitutional democracy turns not only
on a written constitution and the separation of powers, but on a vibrant civil society dedicated to
reinforcing and defending constitutional values.

Surveillance Reform Solves Intelligence Legalism


Surveillance reform engages with current structures of legalism to create more
balanced and accountable policy
Schlanger, University of Michigan Law Professor, 15
[Margo, Henry M. Butzel Professor of Law @ University of Michigan, Professor of Law at the University
of Michigan Law School, and the founder and director of the Civil Rights Litigation Clearinghouse,
Harvard National Security Journal, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, http://harvardnsj.org/wp-content/uploads/2015/02/Schlanger.pdf, p.113-114, Date
Accessed: 7/7/15, ACS]

Since June 2013, we have seen unprecedented security breaches and disclosures relating to
American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret
policy and operational information makes it possible to analyze and understand National Security
Agency activities, including the organizations and processes inside and outside the NSA that are
supposed to safeguard Americans civil liberties as the agency goes about its intelligence
gathering business. Some have suggested that what we have learned is that the NSA is
running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair.
In fact, the picture that emerges from both the Snowden and official disclosures is of an
agency committed to legal compliance, although both minor and major noncompliance is
nonetheless frequent. A large surveillance compliance apparatus is currently staffed by
hundreds of people in both the executive and judicial branches. This infrastructure
implements and enforces a complex system of rules, not flawlessly but with real attention
and care. Where an authoritative lawgiver has announced rights or rights-protecting
procedures, the compliance apparatus worksto real, though not perfect effectto
effectuate those rights and to follow those procedures.
Of course errors, small and large, occur. But even if perfect compliance could be achieved,
it is too paltry a goal. A good oversight system needs its institutions not just to support and
enforce compliance but also to design good rules. Yet the offices that make up the NSAs
compliance system are nearly entirely compliance offices, not policy offices; they work to
improve compliance with existing rules, but not to consider the pros and cons of more
individually-protective rules and try to increase privacy or civil liberties where the cost of doing
so is acceptable. The NSA and the administration in which it sits have thought of civil
liberties and privacy only in compliance terms. That is, they have asked only Can we
(legally) do X? and not Should we do X? This preference for the can question over the
should question is part and parcel, I argue, of a phenomenon I label intelligence legalism,
whose three crucial and simultaneous features are imposition of substantive rules given the status
of law rather than policy; some limited court enforcement of those rules; and empowerment of
lawyers. Intelligence legalism has been a useful corrective to the lawlessness that
characterized surveillance prior to intelligence reform , in the late 1970s. But I argue that it

gives systematically insufficient weight to individual liberty, and that its relentless focus on
rights, and compliance, and law has obscured the absence of what should be an additional
focus on interests, or balancing, or policy. More is needed; additional attention should be
directed both within the NSA and by its overseers to surveillance policy, weighing the
security gains from surveillance against the privacy and civil liberties risks and costs . That
attention will not be a panacea, but it can play a useful role in filling the civil liberties gap
intelligence legalism creates.

Calls for increased privacy subvert intelligence legalism


Schlanger, University of Michigan Law Professor, 15
[Margo, Henry M. Butzel Professor of Law @ University of Michigan, Professor of Law at the University
of Michigan Law School, and the founder and director of the Civil Rights Litigation Clearinghouse,
Harvard National Security Journal, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2409&context=articles,
p.117-118, Date Accessed: 7/7/15, ACS]

Intelligence legalism brings lawyers rule-of-law commitment into the realm of national
security and surveillance, where secrecy molds its impact in a number of important ways. I
see intelligence legalisms three crucial and simultaneous features as: imposition of
substantive rules given the status of law rather than policy, limited court enforcement of
those rules, and empowerment of lawyers. All three were in evidence in the 2004 drama. Yet it
is no coincidence that that incident did not catalyze a civil liberties advance. In fact, this Articles
core argument is that intelligence legalism, though useful, gives systematically insufficient
weight to individual liberty. Legalism legitimates liberty-infringing programs. And its
relentless focus on rights and compliance and law (with a definition of law that includes
regulation, executive orders, court orders, etc.) has obscured the absence of what should be
an additional focus on interests, or balancing, or policy. That additional focus is necessary, I
argue, for optimal policy, which I take to be the safeguarding of liberty where there is no cost, or
acceptable cost, to security. The 2004 hospital-bed confrontation arose out of what has grown to
be a large surveillance compliance apparatus, currently staffed by hundreds of people in both the
executive and judicial branches. This infrastructure implements and enforces a complex system
of rules, not flawlessly butat least in recent yearswith real attention and care.11 Where an
authoritative lawgiver has announced rights or rights-protecting procedures, the
compliance apparatus works, to real, though not perfect effect, to effectuate those rights
and to follow those procedures. Of course errors, small and large, occur. Even if perfect
compliance could be achieved, however, it is too paltry a goal. A good oversight system needs
its institutions not just to support and enforce compliance but to design good rules. But as
will become evident, the offices that make up the compliance system of the National
Security Agency (NSA) are nearly entirely compliance offices, not policy offices; they work

to improve compliance with existing rules, but not to consider the pros and cons of more
individually-protective rules and try to increase privacy or civil liberties where the cost of
doing so is acceptable. The NSA and the Intelligence Community (IC) more generally have
thought of civil liberties and privacy only in compliance terms.
That is, they have asked only Can we (legally) do X? and not Should we do X? This
preference for can over should is part and parcel, I argue, of intelligence legalism. More is
needed. Additional attention should be directed both within the NSA and by its overseers to
the basic policy issues, weighing the security gains from surveillance against the privacy
and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful
role in filling the civil liberties gap intelligence legalism creates.

Regulation and curtailment are a prerequisite to engaging agencies which


circumvent
Schlanger, University Of Michigan law professor, 15
[Margo, Henry M. Butzel Professor of Law @ University of Michigan, Professor of Law at the University
of Michigan Law School, and the founder and director of the Civil Rights Litigation Clearinghouse,
Harvard National Security Journal, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2409&context=articles, Date
Accessed: 7/7/15, ACS]

The development of intelligence legalism has been a major and salutary change in
American governance over the past 35 years. Informed by recent unprecedented disclosures,
this Article has traced the institutional arrangements that constitute the NSAs compliance
ecology. Rights enunciation and compliance serve crucial rule-of-law values, and also sometimes
further civil liberties. And yet they are insufficient to ensure appropriate civil liberties policy. In
his opinion for the Court last term, holding that the Fourth Amendment forbids warrantless
searches of cell phones, absent exigent circumstances, Chief Justice Roberts poked some mild
fun at internal government processes as sufficient safeguards of constitutional rights. [T]he
Founders did not fight a revolution to gain the right to government agency protocols, he
wrote. But he continued, and I agree, that such protocols are nonetheless [p]robably a
good idea .410 In this post-Snowden moment, Congress can and should protect
Americans privacy and civil liberties by clamping down on bulk surveillance, creating
legal rules that can then be enforced by the courts and the intelligence communitys large
compliance bureaucracy. But Congress and the President should not be limited by intelligence
legalism. They should also follow the quite different strategy of amplifying voices inside the
surveillance state who will give attention in internal deliberations and agency operations to
civil liberties and privacy interests. But institutional design is important; civil liberties
offices need deliberate and careful arrangements to safeguard their influence and
commitment. If civil liberties and privacy officials inside the NSA, at the White House, and at

the FISA Court can walk the tightrope of maintaining both influence and commitment, they
might well make a differenceboth in debates we now know about and others that remain
secret. And they may help create a document trail useful for public oversight, too.
Intelligence legalism has proven unequal to the task of opposing the collect everything
mindset. We need to add libertarian officials inside the surveillance state to nurture its civil
liberties ecology. If that ecology doesnt improve, the next big leak, in five or ten or twenty
years, may reveal invasions of Americans privacy that dwarf anything we have heard
about so far.

Other Answers

AT Local Law Enforcement Shift


No shift Law enforcement is not capable of helping the intelligence community
AFECEA Intelligence Committee, 7
[AFECEA Intelligence Committee, April 2007, AFCEA International, The AFCEA Intelligence
Committee is a volunteer group of public and private sector intelligence professionals that
oversees AFCEA's Intelligence outreach and helps build bridges between the government and
industry, The Need to Share: The U.S. Intelligence Community and Law Enforcement,
http://www.afcea.org/mission/intel/documents/SpringIntel07whitepaper_000.pdf, Accessed
7/6/15, GJ]

The Law Enforcement Community


Pure law enforcement focuses on building a legal case related to a crime that already has
been committedan historical perspective with a forensic cast. A case is carefully
constructed based on admissible evidence. The evidence is handled in a prescribed manner. The
rules associated with chain-of-custody are designed to protect the integrity of information and
reduce the pollution of evidence as much as possible. A set of procedures is followed precisely
to ensure the case will be successfully prosecuted. In comparison, intelligence agencies often
collect information in a way that is not admissible in a U.S. Court. Law enforcement
agencies are traditionally reluctant to use such information because of the potential of it
being challenged and thereby jeopardizing a case.4
The pursuit of criminals requires secrecynot information sharing. Premature release of
data can destroy a criminal prosecution. Witnesses can change their testimony or even disappear.
Important evidence may not become available if criminals learn that they are of interest to law
enforcement. The law enforcement community lacks not only the desire but also an effective
way of routinely providing information to the intelligence community.

Drones Solvency Ending Status Quo Uncertainty


Unclear jurisdictional practice will allow drones to bypass restrictive laws
Koerner, Duke University School of Law J.D., 15
[Matthew R., Duke University School of Law, J.D. expected 2015; Arizona State University,
B.S.,B.A. 2011, March, Duke Law Journal, DRONES AND THE FOURTH AMENDMENT:
REDEFINING EXPECTATIONS OF PRIVACY,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3801&context=dlj, p.1129-1130,
Date Accessed: 7/6/16, ACS]

Drones have gained notoriety as a weapon against foreign terrorist targets; yet, they have
also recently made headlines as an instrument for domestic surveillance. With their
sophisticated capabilities and continuously decreasing costs, it is not surprising that drones
have attracted numerous consumers - most notably, law enforcement. Courts will likely soon
have to decipher the limits on the government's use of drones under the Fourth Amendment. But
it is unclear where, or even whether, drones would fall under the current jurisprudence .
Because of their diverse and sophisticated designs and capabilities, drones might be able to
maneuver through the Fourth Amendment's doctrinal loopholes. This Note advocates
analyzing drones under an adapted approach to the reasonable-expectation-of-privacy test in
Katz v. United States. Courts should focus more on the test's oft-neglected first prong - whether a
person exhibited a subjective expectation of privacy - and analyze what information falls within
the scope of that expectation, excluding information knowingly exposed to the plain view of the
public. This analysis also considers instances when, although a subjective expectation exists,
it may be impossible or implausible to reasonably exhibit that expectation, a dilemma
especially relevant to an analysis of drones. Courts that adopt the recommended analysis
would have a coherent and comprehensible approach to factually dynamic cases
challenging the constitutionality of drone surveillance. Until then, the constitutional
uncertainties of these cases will likely linger.

Without addressing the foundations of legal precedence drones can lawfully impede
upon privacy rights
Koerner, Duke University School of Law J.D., 15
[Matthew R., Duke University School of Law, J.D. expected 2015; Arizona State University,
B.S.,B.A. 2011, March, Duke Law Journal, DRONES AND THE FOURTH AMENDMENT:
REDEFINING EXPECTATIONS OF PRIVACY,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3801&context=dlj, p.1136-1138,
Date Accessed: 7/6/16, ACS]

Under the Fourth Amendment, [t]he right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated.34 The
Fourth Amendment is the chief source of privacy protection in the American justice system.35
It is intended to empower the government to investigate and enforce laws to a reasonably
satisfactory level, while still restricting these powers.36 In doing so, it acts as a bulwark
against police practices that prevail in totalitarian regimes.37
Fourth Amendment jurisprudence has therefore sought an appropriate balance between
the governments investigative and prosecutorial powers and an individuals constitutional
rights. In applying the Fourth Amendment to drones, a court must undertake several relevant
inquiries to determine if the governments use of the drone violates the Fourth Amendment. The
court must first determine whether a search for Fourth Amendment purposes occurred.38 If no
search transpired, then the Fourth Amendment is not implicated.39 Second, if a search occurred
for which no warrant was issued, the court must consider whether that search was reasonable.40
Therefore, when analyzing the governments use of drones for domestic surveillance, an
issue not yet ruled on by the Supreme Court, the firstand, under current jurisprudence,
the most relevantinquiry is whether this surveillance constitutes a search. This
fundamental question plays a significant role in existing Fourth Amendment jurisprudence,
and any potentially successful challenge to domestic drone surveillance must first satisfy
this inquiry . The issue of whether a search occurred, in addition to whether that search was
reasonable, has perplexed courts since the Fourth Amendments ratification.41 Fourth
Amendment jurisprudence has been heavily criticized by numerous legal scholars and labeled a
mess,42 a theoretical embarrassment,43 and a vast jumble of judicial pronouncements that is
not merely complex and contradictory, but often perverse.44 Through the doctrines patchwork
of [Fourth Amendment] protections,45 two frameworks have arisen for identifying a search: a
property-rights paradigm and a privacy-rights paradigm.46 The traditional property-rights
paradigm focuses on common-law property rights and examines the governments conduct under
the trespass, curtilage, and open-fields doctrines. Beginning in the twentieth century,
courts also adopted a paradigm that focuses on a persons expectations of privacy and
analyzes whether these expectations are both subjectively held and objectively reasonable.
These two paradigms recognize the intertwined property and privacy principles inherent in the
Fourth Amendments guarantees from unreasonable searches and seizures.4

Lenient Fourth Amendment restrictions allow local law enforcement to use drones
pervasively, the only restriction is subjective bias
Koerner, Duke University School of Law J.D., 15
[Matthew R., Duke University School of Law, J.D. expected 2015; Arizona State University,
B.S.,B.A. 2011, March, Duke Law Journal, DRONES AND THE FOURTH AMENDMENT:
REDEFINING EXPECTATIONS OF PRIVACY,

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3801&context=dlj, p.1144-1145,
Date Accessed: 7/6/16, ACS]

Although the majority opinion diverged from the traditional inquiry regarding property rights as
the sole relevant criterion in identifying a Fourth Amendment search,102 Katzs prominence in
Fourth Amendment jurisprudence comes from Justice John Harlans concurring opinion.103
Justice Harlan interpreted the majority opinion as holding, in part, that electronic as well as
physical intrusion into areas where a person has a constitutionally protected reasonable
expectation of privacy can violate the Fourth Amendment, and that the invasion of a
constitutionally protected area by [the government] is . . . presumptively unreasonable in
the absence of a search warrant.104 In finding an invasion of Katzs reasonable expectation
of privacy, Justice Harlan established a two-part test for determining whether such an expectation
existed.105 First, a person must have exhibited an actual (subjective) expectation of
privacy.106 Second, that subjective expectation must be one that society is prepared to
recognize as [objectively] reasonable.107 In the decades following Katz and the reasonableexpectation-ofprivacy test, the Court confronted the issue of warrantless, aerial surveillance
in three key cases.108 Although each of the cases considered aerial surveillance in some
respect, they all added a different dynamic to Fourth Amendment jurisprudence and the
reasonable-expectation-of-privacy test.
And each case informs the approach to drones. California v. Ciraolo, 109 the first of the aerialsurveillance triad, addressed the constitutionality of warrantless, naked-eye observation of the
curtilage of a home from above.110 To investigate an anonymous tip that Ciraolo was growing
marijuana in his backyard, police officers flew an airplane over his property, photographing
marijuana plants discovered on the property from one-thousand feet above.111 The Court held
that although Ciraolo manifest[ed] his own subjective intent and desire to maintain
privacy by putting up a fence,112 his expectation was not one that society was prepared to
recognize as reasonable.113 The majority reasoned that because of the proliferation of air
travel, anyone could look down and observe the curtilage of Ciraolos home with nakedeye
observation. 114 The Fourth Amendment does not hold the police to a higher standard and
require them to shield their eyes when passing by a home on public thoroughfares . . .
where [they have] a right to be.

Drones Solvency Tracking


Manufacturers always know where their drones areprevents circumvention as
you can always track their location.
Dredge, Guardian Technology freelance journalist and contributing editor, 2/3/15
[Stuart, February 3, 2015, The Guardian, White House drone crash fallout shows who really
owns your drones, says EFF; Digital rights group claims firmware update preventing Phantom
drones flying over Washington has parallels with smartphones, games consoles and cars, p. 1,
Lexis, date accessed 7/6/15, CR]
If you own a DJI Phantom drone, you can't buzz the White House any more - or, indeed, fly it
anywhere in the Washington DC area - after a firmware update introduced after a drone crashed
in the presidential grounds. Wait a minute. Do you really own a DJI Phantom drone? Digital
rights group the Electronic Frontier Foundation has claimed that the firmware update should be a
reminder that while you may have bought the device, its manufacturer still has ultimate control
over how it works. "This announcement may have been an effort by the manufacturer DJI, whose
Phantom model is one of the most popular consumer drone units, to avoid bad press and more
regulation," wrote EFF director of copyright activism Parker Higgins in a blog post. "But it also
reinforced the notion that people who 'own' these drones don't really own anything at all. The
manufacturer can add or remove features without their agreement, or even their knowledge."
Related: Got a personal drone for Christmas? Use with caution If this sounds familiar, that's
exactly what the EFF is hoping for. It wants people who use other devices, from smartphones and
games consoles to connected cars, to think again about who "owns" these devices. "Your
ownership of the stuff you buy is overridden by the manufacturer's ability to update or change it a phenomenon that is proliferating to anything with a networked computer," wrote Higgins,
noting the ability of automotive firms to push firmware updates to improve their cars, or to
disable them. For the EFF, the DJI Phantom firmware update is the latest peg to hang its
campaign against anti-circumvention provisions in the US' Digital Millennium Copyright Act
(DMCA) legislation. Without those DRM laws, users could replace the firmware on their devices
with new software that was trusted and auditable," wrote Higgins. "But instead, the law casts a
shadow of doubt on users that would modify that software, researchers that would examine it for
security vulnerabilities, and companies that would create competitive alternatives."