Documente Academic
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Notes
The thesis of the Kritik is to expose the states law as a
fraud.
Even if the plan is good and has good advantages it can
solve for it doesnt matter because the plan was built
upon fraudulent law. Which is only going to replicate the
oppressive law of the government.
The Kritik is critiquing the biopower in the state/law that
the affirmative is rooted in and how its biopower is
destructive and spreads its biopolitical control through
things like the affirmative. Not the biopower of the
affirmative case itself.
Neg
1NC Criticism
The reforms of the 1ac function as a mask to hide the
constant surveillance the government engages in,
propping up a system that is designed to invade privacy
and oppress citizens. This both turns the case and makes
oppression inevitable.
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,
even of "free" peoples, the expectations of inter-State competition may include war and the mass killing of
impotent by Realpolitik, this commitment to so-called power politics is itself an expression of control by the
attainable dimensions of human experience: "To nurture the seeds of social progress [there must be] . . . some concrete
The CLSers must actively work to fulfill their self-appointed roles as creative mediators between the ideal of freedom and
n124
is at stake.
We do not mean to suggest that the extensive CLS critiques of existing law
and legal theory are purely negative and without constructive potential. Criticism can be a very creative therapy;
[*228]
appears, the Critical scholars hope to enable individuals to imagine and attain new possibilities for self-development and
meaningful social interaction. For the CLSers,
The point of
delegitimation is to expose possibilities more truly expressing reality, possibilities of fashioning a future that might at least
partially realize a substantive notion of justice instead of the abstract, rightsy, traditional, bourgeois notions of justice that
generate so much of the contradictory scholarship. One must start by knowing what is going on, by freeing oneself from
the mystified delusions embedded in our consciousness by the liberal legal world view. I am not defending a form of
scholarship that simply offers another affirmative presentation; rather, I am advocating negative, Critical activity as the
only path that might lead to a liberated future.The
Be careful with this shell when choosing a link. You need to have
a link that is rooted in biopower. Not just a CLS link.
Reforms only push the surveillance further into the
shroud secrecy- Get watered down to point of
Ineffectiveness
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,
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
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
reformso that he can give a pretty speech telling the world that
he heard and responded to their concernsbut that in actuality
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 possibilities for the manipulation of the very biological processes life are
not
limited to what has been called the genetic age made possible by molecular biology and human genetics. There are
advances in organ transplantation and in our medical capacities to sustain life. All of these processes of the manipulation
of life contain what we like to think of as ethical questions. Notions of brain death and the ensuing futility of further
attempts to restore normal life functioning redefine problems of euthanasia. Various forms of prenatal testing and
screening of pregnant women redefine the conditions of acceptability of abortions. Other such ethical questions concern
the harvesting of organs for transplantation, or of the maintenance of the integrity and diversity of biological species in
the face of genetically modified crops and seeds, etc. The capacity to manipulate our mere biological life, rather than
simply to govern aspects of forms of life, implies a biopolitics that contests how and when we use these technologies and
for what purposes. It also implies a redrawing of the relations between life and death, and a new thanatopolitics, a new
politics of death. 17 Contretemps 5, December 2004 At some distance from these advances in biomedicine and
the issues of life and death that are played in various arenas of
international politics and human rights. These concern the effects of the
break-ups of nation-states from Yugoslavia and the Soviet Union to Indonesia, the
subsequent movement, detention, expulsion, processing, and mass death of refugees and
illegal immigrants, and the conditions and forms under which military action ,
peacekeeping and humanitarian intervention are acceptable. They concern the international
coalition against the polycentric network of terrorism. Detention camps are again becoming
a feature of modern liberal-democratic states. On the one hand, the twentieth
century gave us a name for the death of a whole people or race, genocide. On the other, it
biotechnology are
sought to promote the universal rights of individuals by virtue of their mere existence as human beings.
declarations of human rights and United Nations peacekeeping operations. The potentialities for the care and
the manipulation of the biological processes of life and of the powers of death have never appeared greater than they do
death peculiarly modern, or do they lie at a deeper strata?My concern in this paper is to consider issues of life and death
as political issues, to locate a bio-politics, a politics of life, and a thanato-politics, a politics of death, within our ways of
thinking about and imagining politics. I follow two recent theorists, Michel Foucault and Giorgio Agamben, who are
convinced that not only must we consider how we exercise powers of life and death in modern politics but how the very
notion of politics and political community are intimately related to such issues. At issue is the power we call sovereign
power, and its relation to this politics of life and death. I shall in turn consider four possible theses that can be derived
from the work of these thinkers and from other twentieth century critical and legal theorists.
politics one must side with reason. Referring to Habermas and similar thinkers, however,
Foucault (1980b) warns that to respect rationalism as an ideal should never
constitute a blackmail to prevent the analysis of the rationalities really at
work (Rajchman 1988, 170).
Habermass main complaint about Foucault is what Habermas sees as Foucaults relativism. Thus Habermas (1987, 276)
harshly dismisses Foucaults genealogical historiographies as relativistic, cryptonormative illusory science. Such critique
for relativism is correct, if by relativistic we mean unfounded in norms that can be rationally and universally grounded .
Foucaults norms are not foundationalist like Habermass: they are expressed in a desire to
challenge every abuse of power, whoever the author, whoever the victims
(Miller 1993, 316) and in this way to give new impetus, as far and wide as possible,
to the undefined work of freedom (Foucault 1984a, 46). Foucault here is the Nietzschean democrat,
for whom any form of government - liberal or totalitarian - must be subjected to
analysis and critique based on a will not to be dominated, voicing concerns in
public and withholding consent about anything that appears to be
unacceptable. Such norms cannot be given a universal grounding independent
of those people and that context, according to Foucault. Nor would such grounding be
desirable, since it would entail an ethical uniformity with the kind of utopiantotalitarian implications that Foucault would warn against in any context, be it
that of Marx, Rousseau or Habermas: The search for a form of morality
acceptable by everyone in the sense that everyone would have to
submit to it, seems catastrophic to me
interpretation
Instead,
Foucault focuses on the analysis of evils and shows restraint in matters of commitment to ideas and systems of thought
about what is good for man, given the historical experience that few things have produced more suffering among humans
than strong commitments to implementing utopian visions of the good.
as negative institutionalised oppression, expressed most chillingly in his analysis of the disciplinary regime of the prison in Discipline and
Punish (Foucault 1979). However, it is
(McNay 1994).
The law,
What Foucault calls his political task is to criticise the working of institutions which appear to be both neutral and
independent; to criticise them in such a manner that the political violence which has always exercised itself obscurely
through them will be unmasked, so that one can fight them (Chomsky and Foucault 1974, 171).
Foucauldian interpretation, would be seen as
This is
what, in a
including change in the institutions of civil society. With direct reference to Habermas,
Foucault (1988, 18) adds: The problem is not of trying to dissolve [relations of power] in
the utopia of a perfectly transparent communication, but to give...the rules of
law, the techniques of management, and also the ethics...which would allow
these games of power to be played with a minimum of domination. Here Foucault
overestimates his differences with Habermas, for Habermas also believes that the ideal speech situation cannot be established as a
conventional reality in actual communication. Both thinkers see the regulation of actual relations of dominance as crucial, but whereas
Habermas approaches regulation from a universalistic theory of discourse, Foucault seeks out a genealogical understanding of actual power
For
Foucault praxis and freedom are derived not from universals or theories.
Freedom is a practice , and its ideal is not a utopian absence of power.
relations in specific contexts. Foucault is thus oriented towards phronesis, whereas Habermass orientation is towards episteme.
Its true that certain people, such as those who work in the institutional setting of the prison...are not likely to find advice
or instructions in my books to tell them what is to be done. But my project is precisely to bring it about that they no
longer know what to do, so that the acts, gestures, discourses that up until then had seemed to go without saying
become problematic, difficult, dangerous (Miller 1993, 235). The depiction of Foucault as non-action oriented is correct to the extent
that Foucault hesitates to give directives for action, and he directly distances himself from the kinds of universal What is to be done?
Foucault told an interviewer. I know its pretentious to say, Foucault said, but thats a proof of a trutha political and actual truth--
which started after the book was written (Dillon 1980, 5). This
a specific context. The problem with Foucault is that because understanding and action have their points of departure in the particular and the
local, we may come to overlook more generalised conditions concerning, for example, institutions, constitutions and structural issues.
In sum, Foucault and Habermas agree that rationalisation and the misuse of power are among the most important problems of our time. They
disagree as to how one can best understand and act in relation to these problems. From the perspective of the history of philosophy and
political theory, the difference between Foucault and Habermas lies in the fact that Foucault works within a particularistic and contextualist
tradition, with roots in Thucydides via Machiavelli to Nietzsche. Foucault is one of the more important twentieth century exponents of this
tradition. Habermas is the most prominent living exponent of a universalistic and theorising tradition derived from Socrates and Plato,
proceeding over Kant. In power terms, we are speaking of strategic versus constitution thinking, about struggle versus control, conflict
versus consensus.
Links
Link: FISC
FISC coopted by agency pressure- doomed to fail
Setty, Faculty at Western New England University School of
Law,15 (Sudah, 2015, Western New England University School of Law,
brought to its attention months after the program went into effece5 ~to be unconstitutional. 76
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. 7
7 At one point, the FISC sanctioned the NSA for overreaching in 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. 78 On such occasions, the administration has modified
problematic aspects of the surveillance and continued forward without further impediment by the FISC
It is breaking the law." Talking points issued by the House GOP in defense of
the NSA
claimed that surveillance law only "allows the Government to acquire foreign
intelligence information concerning non-U.S.-persons (foreign, non-Americans) located outside
the United States." The NSA's media defenders have similarly stressed that the NSA's
eavesdropping and internet snooping requires warrants when it involves Americans. The
Washington Post's Charles Lane told his readers: " the government needs a court-issued
warrant, based on probable cause, to listen in on phone calls." The Post's David Ignatius told
Post readers that NSA internet surveillance "is overseen by judges who sit on the Foreign Intelligence
Surveillance Court" and is "lawful and controlled". Tom Friedman told New York Times readers that before
NSA analysts can invade the content of calls and emails, they "have to go to a judge to get a warrant to
actually look at the content under guidelines set by Congress." This has become the most common theme
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
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
Link: Congress
Congress is ineffective has no real power to stop the
surveillance state- clapper investigation proves
Setty, Faculty at Western New England University School of
Law,15 (Sudah, 2015, Western New England University School of Law,
Surveillance, Secrecy, and the Search for Meaningful Accountability,
http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?
article=1305&context=facschol, 7/2/15, AW)
The extent of congressional knowledge regarding the NSA Metadata Program
is not fully known to the public and has been the subject of significant
debate. Nonetheless, even assuming that Congress was sufficiently informed
as to the potential reach of the PATRIOT Act with regard to surveillance 5 9
and, therefore, that the statutory authority for the bulk data collection and
storage was sound, the ability of Congress to effect significant and
meaningful ex post oversight appears to be severely limited. Historically,
congressional hearings and investigations have been a powerful tool to rein in
executive branch overreaching. 60 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. 61 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. 62 After public discussion of the discrepancy in his testimony,
Clapper commented that he gave the "least most untruthful"
answer possible under the circumstances. 63 Senator Wyden expressed
disappointment and frustration that even while under oath at an oversight
hearing, Clapper misled the Senate. lack of ability to discuss publicly
whatever knowledge is shared with Congress. 66 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. 67 Further revelations indicate that
administration statements made to Congress even after the Snowden
disclosures were not entirely accurate. 68 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 69 without the
benefit of illegally leaked information such as the Snowden disclosures.
about that. Just yesterday, the messaging service WhatsApp announced that
it will start bringing end-to-end encryption to its 600 million users, which
would be the largest implementation of end-to-end encryption ever. None
of this is a silver bullet: the NSA will work hard to circumvent this technology
and tech companies are hardly trustworthy, being notoriously close to the
U.S. government and often co-opted themselves. But as more individuals
demand more privacy protection, the incentives are strong. As The Verge
notes about WhatsApps new encryption scheme, end-to-end means that,
unlike messages encrypted by Gmail or Facebook Chat, WhatsApp wont be
able to decrypt the messages itself, even if the company is compelled by law
enforcement.
"war on drugs" versus published incidences of the phrase "war on terror" over
a 50-year period.
The war on terror may be the most familiar justification for the rise of the
National Surveillance State,14 but it is hardly the sole or even the most
important cause. Government's increasing use of surveillance and data
mining is a predictable result of accelerating developments in information
technology. 15 As technologies that let us discover and analyze what is happening in the world
become ever more powerful, both governments and private parties will seek to use them. 16 The
question is not whether we will have a surveillance state in the years to
come, but what sort of surveillance state we will have. Will we have a government
without sufficient controls over public and private surveillance, or will we have a government that protects
individual dignity and conforms both public and private surveillance to the rule of law?
Link: Oversight
Oversight fails, just appease the people with no real
change
Greenwald, Constitutional Lawyer, 14 (Glenn, 1/17/14, The Guardian,
"Obama's NSA 'reforms' are little more than a PR attempt to mollify the
public", www.theguardian.com/commentisfree/2014/jan/17/obama-nsareforms-bulk-surveillance-remains, 7/3/15, AW)
In response to political scandal and public outrage , official Washington
repeatedly uses the same well-worn tactic. It is the one that has been hauled out over
decades in response to many of America's most significant political scandals . Predictably, it is the
same one that shaped President Obama's much-heralded Friday speech to
announce his proposals for "reforming" the National Security Agency in the
wake of seven months of intense worldwide controversy . 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
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
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 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.
Impacts
is not that FISA Court legitimation is phony. In fact, judicial review has real if limited effects on the system.
To sum up, neither the Constitution nor FISA aims to optimally balance security and libertyand wellunderstood difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill
that gap. Likewise the existing foundational Executive Order, 12333, is at the very least out-of-date.
To sum up this Part, neither the Constitution nor FISA aims to optimally balance security and liberty and
frequently analyzed difficulties in congressional intelligence oversight mean that new statutes are unlikely
to fill that gap. Likewise the existing foundational Executive Order, 12,333, is at the very least out - of -
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
legalism serves as a moral code for US Intelligence Community (IC) leadership, or only as a smokescreen. I
the evidence shows that since 9/11,the IC, and specifically the NSA has not
followed the rules. Rather, the agency has resorted to legalistic justifications
in pursuit of other goalsnamely whatever might be useful in countering
terrorism. Before 9/11, the agency may have been focused on complying with FISA. But afterthat day,
believe
the NSAs approach was that it could circumvent federal statutes and the Constitution so long as there
was some visceral connection to looking for terrorists. In other words, since 9/11 ,
its subservience.
http://harvardlawreview.org/2013/05/the-dangers-of-surveillance/, Accessed
on 2 July 2015, //PK@GDI)
At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not.
the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of
This article interrogates one critical aspect of complexity and fracture in regulatory power.1 Specifically, it
focuses on surveillance2 as a regulatory mechanism.3 I will explore some of the complexities of this
regulatory mechanism in emerging governance systems in which private entities are engaged in sovereign
functions and public entities participate in the market. The thesis of this article is fairly straightforward:
authority over certain types of information to private enterprises and then hold those enterprises to
account on the basis of the information gathered.8 In its transnational form it can be used to construct a
set of privileged information that can be gathered and distributed voluntarily by private entities on the
basis of systems created and maintained by international public or private organizations as an alternative
Surveillance in
its various forms provides a unifying technique with which governance can be
effectuated across the boundaries of power fractures without challenging
formal regulatory power or its limits. It avoids the barrier between the public
and private spheres; it substantially increases the regulatory palette of states
without the complications of the usual limitations of public formal lawmaking
especially those of accountability and transparency . The consequences of
surveillance, particularly those consequences on the shape of governance, are to a great extent
a function of the character of the surveillance power elaborated.10 The principal effects will tend to
promote a further convergence of public and private regulatory power .11 This
to formal regulation and to provide a means of harmonizing behavior without law.9
convergence arises from a fracturing of traditional divisions of power.12 A sovereign is said to lose
its character as such when it acts, not as regulator of a market, but in the manner of a private player
within it.13 The reciprocal principle has not been accepted de jure; a private actor is not said to lose its
character as a private actor when it acts in the manner of a sovereign. Still, private players now are
required to play the role of regulator and have sought that role for themselves de facto.14 And,
increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the
conduct and activities of a host of actors.15 Surveillance, then, functions as more than a descriptor of
and between assertions of private (market or personal welfare maximizing) and public (regulatory or
stakeholder welfare maximization). Surveillance cuts across bordersit embodies the techniques and
To understand
the complexities and vectors of surveillance is to grasp the shape of
converging public/private governance in this century
sensibilities of an essentially transnational response to problems of governance.17
By surrendering ourselves to
States and to traditional views of self-determination, we encourage not immortality but
premature and predictable extinction. It is a relationship that can, and must, be more widely
understood. There are great ironies involved. Although the corrosive calculus of
geopolitics has now made possible the deliberate killing of all life, populations
all over the planet turn increasingly to States for security. It is the dreadful
ingenuity of States that makes possible death in the billions, but it is in the
expressions of that ingenuity that people seek safety . Indeed, as the threat of nuclear
incontestable relationship between death and geopolitics.
annihilation looms even after the Cold War, 71 the citizens of conflicting States reaffirm their segmented
loyalties, moved by the persistent unreason that is, after all, the most indelible badge of modern
humankind. As a result, increasing human uncertainty brought about by an unprecedented vulnerability to
disappearance is likely to undermine rather than support the education required. Curiously, therefore,
before we can implement such education, we will need to reduce the perceived threat of nuclear war 72
and enlarge the belief that the short-term goal of nuclear stability is within our grasp. To make this possible
we must continue to make progress on the usual and mainstream arms control measures and on the
associated strategies of international cooperation and reconciliation. In this connection, arms control [*25]
obligations must fall not only on nuclear weapon States, but also upon non-nuclear States that threaten
others with war or even genocide. "Death," says Norbert Elias, "is the absolute end of the person. So the
greater resistance to its demythologization perhaps corresponds to the greater magnitude of danger
experienced." 73 Let us, then, reduce the magnitude of danger, both experienced and anticipated. But let
us also be wary of nurturing new mythologies, of planting false hopes that offer illusions of survival in a
post-apocalypse world. Always desperate to grasp at promises that allay the fears of personal transience,
10
these claims contradict the idea of global oneness and cosmopolis. From identification as Moslem
affairs? If it is authentic peace and an end to war crimes 11 and crimes against humanity, 12 then the
expectation of self-determination must be balanced against the needs of planetization, of a new world
order 13 in which the commonality and community of the entire human species takes precedence over the
lethal calls of separatism, ethnic rivalry, and militaristic nationalism. Poised to consider that national
the strength of a new kind of loyalty, one that recognizes the contrived character of national, religious, and
ethnic differences and the primacy of human solidarity. Although this kind of loyalty is certainly difficult to
imagine, especially when one considers that organization into and belonging within competitive herds still
offers most people a desperately needed sense of self-worth, there seems to be no alternative .
Whether we seek an accommodation of Palestinians 15 and Israelis 16 in the Middle East, of Catholics and
Protestants in Northern Ireland, or of different nationalities in Eastern Europe, in the former USSR, or in the
even of "free" peoples, the expectations of inter-State competition may include war and the mass killing of
impotent by Realpolitik, this commitment to so-called power politics is itself an expression of control by the
Impact: Rights
Mass surveillance violates human rights and is constantly
justified under the current system of legalism
Guild, professor at Queen Mary University of London, 12 May
2014 (Elspeth, What does mass surveillance do to Human Rights, Open
Democracy, https://www.opendemocracy.net/can-europe-make-it/elspethguild/what-does-mass-surveillance-do-to-human-rights, Accessed on 2 July
2015, //PK@GDI)
Two interconnected but separate human rights issues arise as regards mass
surveillance. The first, which is the most fundamental but the most frequently
ignored, is the right of every person to respect for his or her private and
family life. The second, which is generally the subject of more substantial
political and media noise is the duty of states to protect personal data. Those
political actors who have an interest in promoting the legality of mass
surveillance usually put forward two arguments. The first is that national and
international security is always an exception to both the duty of every state
to respect peoples privacy and the duty to protect personal data. This is the
most trenchantly defended of arguments as when this one falls away, those
actors seeking to justify mass surveillance find themselves on very weak
legal ground indeed. The second is that states obligations to protect personal
data are subject to very different rules and requirements according to the
political preferences of different states. Thus as there is no harmonization of
the specific rules as to what is acceptable data protection internationally,
states which are exercising their national and international security
prerogatives only need to fulfil their own national data protection rules.
on public resources, why not identify them in advance and exclude them from public programs and other
opportunities? The more powerful and effective our technologies of surveil- lance and analysis become, the
general intellect: the internet. Such acts of courage bring with them the truth
that our world is enmeshed in an invisible layer of technology and technics
that seek to trace every aspect of our affective (body) and intellectual (mind)
existence, to codify it in the ghost worlds of military-corporate shadowsystems that can be used as inscriptions to control not our actual lives but
our inscribed life as situated in the virtual. Our virtual life becomes a
potential tool that can then be activated by power as it sees fit: as a military,
commercial, or exclusionary tool of law.
Impact: Panopticon
The surveillance state transcends panoptic governance to
create links between the traces of every person
Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance
State, Yale Law School,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
Decades ago Michel Foucault argued that modern societies had become
increasingly focused on watching and measuring people in order to control
them, to normalize their behavior and to make them docile and obedient . 5 1
His famous example was Jeremy Bentham's idea of a Panopticon-a prison designed so that the prisoners
By making surveillance
ubiquitous, governments and private organizations could discourage behavior
they deemed unusual or abnormal. Today's National Surveillance State goes
beyond Foucault's Panoptic model. Government's most important technique
of control is no longer watching or threatening to watch. It is analyzing and
drawing connections between data. Much public and private surveillance occurs
without any knowledge that one is watched . More to the point, data mining
technologies allow the state and business enterprises to record perfectly
innocent behavior that no one is particularly ashamed of and draw
surprisingly powerful inferences about people's behavior, beliefs, and
attitudes. 5 3 Over time, these tools will only become more effective. We leave
traces of ourselves continually, including our location, our communications
contacts, our consumption choices-even our DNA.
could always be watched but would not know exactly when. 5 2
to violence in that it recognises the other as an agent, but if the strength of modern power is such that the
other uses his agency only to normalize himself, then perhaps we should prefer an honest violence to a
deceitful power. It is this possibility that gives urgency to the question of what constitutes a worthwhile
We need forms of agency that resist not only the overt violence so
often associated with the state, but, at least as importantly, the normalizing
effects of a pastoral-power taken over by the modern state . As Foucault insisted,
"the political, social, philosophical 16 problem of our days is not to try to
liberate the individual from the state, and from the state's institutions, but to
liberate us both from the state and from the type of individualization which is
linked to the state."35 His work on an ethic of care for the self provides us with suggestions as to
form of agency.
Impact: Race
The surveillance state is inherently racist and cultivates
racism to legitimize itself to the public
Kudnani and Kumar 15 (Arun, professor at NYU, Deepa, associate
condemnation of many instances of bio-politics, such as the attempt to develop humane processing procedures for asylum
seekers, the idea of mapping zones of indistinction would seem to locate arenas of analysis and spheres of contestation
the indigene, the refugee, etc). Note that Contretemps 5, December 2004 28 bio-power today holds the promise of
extraordinary solutions to disability, criminality and insanity. The inclusion of women through their state of exclusion, also,
would appear to raise interesting questions concerning sovereign violence given womens historic biological relationship
to the reproduction and care of human life. This relationship, itself excepted under the universality of law, is thus
produced as bare life; and women are required to take responsibility for sovereign decisions. If we are to take Agamben
desire for inclusion may have the effect not simply of widening the
sphere of the rule of law but also of hastening the point at which the sovereign
exception enters into a zone of indistinction with the rule. Our societies would
then have become truly demonic, not because of the re-inscription of sovereignty within bio-politics,
but because bare life which constituted the sovereign exception begins to
enter a zone of indistinction with our moral and political life and with the
fundamental presuppositions of political community. In the achievement of inclusion in the
seriously, this
name of universal human rights, all human life is stripped naked and becomes sacred. Perhaps in a very real sense we are
movement is made to return it to an allegedly normal order. Having arrived at the position of the homo sacer, the
inhabitants of such zones seemingly exist in something of a timeless state of suspended animation . Attention shifts as
one crisis is inevitably followed by a new crisis close on its heels. Gradually, the exception has become the rule; moreover,
Agamben alleges,
watched the human drama unfold on television for several long, painful days, utterly dismayed by what appeared to be
the governments total lack of response to the horrific events that were unfolding. Contrary to the myths of sovereign
protection that so often motivate an acceptance of biopolitic regulation ,
The possibilities for the manipulation of the very biological processes life are
not
limited to what has been called the genetic age made possible by molecular biology and human genetics. There are
advances in organ transplantation and in our medical capacities to sustain life. All of these processes of the manipulation
of life contain what we like to think of as ethical questions. Notions of brain death and the ensuing futility of further
attempts to restore normal life functioning redefine problems of euthanasia. Various forms of prenatal testing and
screening of pregnant women redefine the conditions of acceptability of abortions. Other such ethical questions concern
the harvesting of organs for transplantation, or of the maintenance of the integrity and diversity of biological species in
the face of genetically modified crops and seeds, etc. The capacity to manipulate our mere biological life, rather than
simply to govern aspects of forms of life, implies a biopolitics that contests how and when we use these technologies and
for what purposes. It also implies a redrawing of the relations between life and death, and a new thanatopolitics, a new
politics of death. 17 Contretemps 5, December 2004 At some distance from these advances in biomedicine and
the issues of life and death that are played in various arenas of
international politics and human rights. These concern the effects of the
break-ups of nation-states from Yugoslavia and the Soviet Union to Indonesia, the
subsequent movement, detention, expulsion, processing, and mass death of refugees and
illegal immigrants, and the conditions and forms under which military action ,
peacekeeping and humanitarian intervention are acceptable. They concern the international
coalition against the polycentric network of terrorism. Detention camps are again becoming
a feature of modern liberal-democratic states. On the one hand, the twentieth
century gave us a name for the death of a whole people or race, genocide. On the other, it
biotechnology are
sought to promote the universal rights of individuals by virtue of their mere existence as human beings.
death peculiarly modern, or do they lie at a deeper strata?My concern in this paper is to consider issues of life and death
as political issues, to locate a bio-politics, a politics of life, and a thanato-politics, a politics of death, within our ways of
thinking about and imagining politics. I follow two recent theorists, Michel Foucault and Giorgio Agamben, who are
convinced that not only must we consider how we exercise powers of life and death in modern politics but how the very
notion of politics and political community are intimately related to such issues. At issue is the power we call sovereign
power, and its relation to this politics of life and death. I shall in turn consider four possible theses that can be derived
from the work of these thinkers and from other twentieth century critical and legal theorists.
the concerns for the health, housing, habitation, welfare and living conditions of the population. Such an observation leads
him to place his concerns with health, discipline, the body, and sexuality within a more general horizon. Again the notion
of bio-politics is quite complex. The idea of the population as a kind of species body subject to bio-political knowledge
and power operating in concert with the individual body subject to disciplinary powers would appear central.11 No matter
it is only
with the advent of this modern form of the politics of life that the same logic and
technology applied to the care and development of human life is applied to
the destruction of entire populations. The link between social welfare and
mass slaughters can at times appear to be a fairly direct one. Of one of its first
how bloody things were under the exercise of sovereign power with its atrocious crimes and retributions ,
manifestations in German police science, Foucault argues, it wields its power over living beings as living
beings, and its politics, therefore has to be a bio-politics .
there is a hesitation, a point of indeterminacy, in this relation between bio-politics and thanato-politics. Foucault seems to
identify a puzzle or an aporia of contemporary politics, which he cannot resolve or which may itself be irresolvable. The
coexistence in political structures of large destructive mechanisms and institutions oriented to the care of individual life is
something puzzling, he states.13 But he immediately adds I dont mean that mass slaughters are the effect, the result,
inconclusive negatives he avers, as if trying to defer the answer to the questions he poses: It is this rationality, and the
death and life game which takes place in it, that Id like to investigate from a historical point of view. One aspect of this
historical investigation occurred in Foucaults 1976 lectures. These lectures cover such concerns as the seventeenthcentury historical-political narrative of the war of the races, and the biological and social class re-inscriptions of racial
discourse in the nineteenth century.14 He concludes with the development of the biological state racisms and the
genocidal politics of the twentieth century, including a radical analysis of the Nazi state and of socialism. From this
perspective, there is a certain potentiality within the human sciences which, when alloyed to notions such as race, can
help make Contretemps 5, December 2004 20 intelligible the catastrophes of the twentieth century. Such lectures seem to
make the totalitarian rule of the twentieth century a capstone on the histories of confinement, internment and
punishment that had made up his genealogical work. This thesis is perhaps close to the work of the first generation of the
Foucault and the work of Zygmunt Bauman.15 The latter presents the Holocaust as something that must
be understood as endogenous to Western civilization and its processes of rationalization rather than as an
aberrant psychological, social or political pathology.
Alternative
Criticism
Constant criticism and trashing of the legal system
exposes true legal thought the liberation and fate of
humanity is at stake
Hutchinson and Monahan in 84
The CLSers must actively work to fulfill their self-appointed roles as creative mediators between the ideal of freedom and
n124
is at stake.
We do not mean to suggest that the extensive CLS critiques of existing law
and legal theory are purely negative and without constructive potential. Criticism can be a very creative therapy;
[*228]
appears, the Critical scholars hope to enable individuals to imagine and attain new possibilities for self-development and
meaningful social interaction. For the CLSers,
The point of
delegitimation is to expose possibilities more truly expressing reality, possibilities of fashioning a future that might at least
partially realize a substantive notion of justice instead of the abstract, rightsy, traditional, bourgeois notions of justice that
generate so much of the contradictory scholarship. One must start by knowing what is going on, by freeing oneself from
the mystified delusions embedded in our consciousness by the liberal legal world view. I am not defending a form of
scholarship that simply offers another affirmative presentation; rather, I am advocating negative, Critical activity as the
only path that might lead to a liberated future.The
Criticism Solvency
Alt solves Criticism is key to challenging the surveillance
system
Setty, 15 (Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University
School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of International Law,
51 Stan. J Int'l L. 69, DOA 7/02/15, AMB@GDI)
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.
n192
displace traditional jurists from center stage merely to have the spotlight focused on themselves.Instead, they want to
revolutionize the whole theory and performance of the American legal drama. They do not simply wish to exchange the
scripts and the sentiments of Shakespeare for those of Brecht or Fugard.
must change.
The focus of attention must shift from the artifacts of the juristic stage to the reality of the citizen
audience. The ultimate goal must be to [*244] promote "street theater," the spontaneous involvement of people in
jurisprudential limbo will depend, at least in part, on their response to some of the fundamental theoretical and practical
objections raised in this article.
The distinctive feature of the CLS movement, therefore, is its desire to shatter
the limiting conceptions of the possibilities of human association and of social
transformation embodied in liberal legal thought. The CLSers' enterprise is to
complete the modern rebellion against the view that social arrangements are
natural or inevitable. They want to expose society as the vulgar and contingent product of interrupted
fighting. Their central strategy is to suggest that social order exists only because, at some arbitrary point, the struggle
between individuals was halted and truce lines were drawn up. These truce lines define the structure of a society's politics
and production. Although these truce lines initially are simply the product of an uneasy [*217] deal between combatants,
nature of all social worlds, the CLS project is to identify the role played by law and legal reasoning in the process through
exposed indeterminacy in legal doctrine, the Critical scholars abstract from legal materials the underlying premises that
"ma[kes] a particular version of society stand in place of the indefinite possibilities of human connection." n79 The
potency of belief-structures or ideologies lies in their tendency to establish a dynamic of their own and to confer on legal
doctrine a false air of naturalness. For the Critical scholars, legal consciousness is a cerebral tool for the suppression of
time: It is a device to hide or deny the fundamental truth that everything is in a process of changing or becoming. n80
Rejection
The alt is to vote negative in favor of critique before
actionwe accept power is inevitable, yet understand it
can be productive or destructive but only powerful
analysis of domination can challenge discourse we are
faced with and work as a pre-requisite to action
Flyvbjerg and Richardson 2
politics one must side with reason. Referring to Habermas and similar thinkers, however,
Foucault (1980b) warns that to respect rationalism as an ideal should never
constitute a blackmail to prevent the analysis of the rationalities really at
work (Rajchman 1988, 170).
Habermass main complaint about Foucault is what Habermas sees as Foucaults relativism. Thus Habermas (1987, 276)
harshly dismisses Foucaults genealogical historiographies as relativistic, cryptonormative illusory science. Such critique
for relativism is correct, if by relativistic we mean unfounded in norms that can be rationally and universally grounded .
Foucaults norms are not foundationalist like Habermass: they are expressed in a desire to
challenge every abuse of power, whoever the author, whoever the victims
(Miller 1993, 316) and in this way to give new impetus, as far and wide as possible,
to the undefined work of freedom (Foucault 1984a, 46). Foucault here is the Nietzschean democrat,
for whom any form of government - liberal or totalitarian - must be subjected to
analysis and critique based on a will not to be dominated, voicing concerns in
public and withholding consent about anything that appears to be
unacceptable. Such norms cannot be given a universal grounding independent
of those people and that context, according to Foucault. Nor would such grounding be
desirable, since it would entail an ethical uniformity with the kind of utopiantotalitarian implications that Foucault would warn against in any context, be it
that of Marx, Rousseau or Habermas: The search for a form of morality
acceptable by everyone in the sense that everyone would have to
submit to it, seems catastrophic to me
interpretation
Instead,
Foucault focuses on the analysis of evils and shows restraint in matters of commitment to ideas and systems of thought
about what is good for man, given the historical experience that few things have produced more suffering among humans
than strong commitments to implementing utopian visions of the good.
as negative institutionalised oppression, expressed most chillingly in his analysis of the disciplinary regime of the prison in Discipline and
Punish (Foucault 1979). However, it is
The law,
What Foucault calls his political task is to criticise the working of institutions which appear to be both neutral and
independent; to criticise them in such a manner that the political violence which has always exercised itself obscurely
through them will be unmasked, so that one can fight them (Chomsky and Foucault 1974, 171).
Foucauldian interpretation, would be seen as
This is
what, in a
including change in the institutions of civil society. With direct reference to Habermas,
Foucault (1988, 18) adds: The problem is not of trying to dissolve [relations of power] in
the utopia of a perfectly transparent communication, but to give...the rules of
law, the techniques of management, and also the ethics...which would allow
these games of power to be played with a minimum of domination. Here Foucault
overestimates his differences with Habermas, for Habermas also believes that the ideal speech situation cannot be established as a
conventional reality in actual communication. Both thinkers see the regulation of actual relations of dominance as crucial, but whereas
Habermas approaches regulation from a universalistic theory of discourse, Foucault seeks out a genealogical understanding of actual power
relations in specific contexts. Foucault is thus oriented towards phronesis, whereas Habermass orientation is towards episteme.
For
Foucault praxis and freedom are derived not from universals or theories.
Freedom is a practice , and its ideal is not a utopian absence of power.
Resistance and struggle, in contrast to consensus, is for Foucault the most
solid basis for the practice of freedom. Whereas Habermas emphasises procedural macro politics,
Foucault stresses substantive micro politics, though with the important shared feature that neither
Foucault nor Habermas venture to define the actual content of political action. This is defined by
the participants. Thus, both Habermas and Foucault are bottom-up thinkers as concerns the content of politics, but where
Habermas thinks in a top-down moralist fashion as regards procedural rationality having sketched out the procedures to be followed Foucault is a bottom-up thinker as regards both process and content. In this interpretation, Habermas would want to tell
individuals and groups how to go about their affairs as regards procedure for discourse. He would not want, however, to say anything about
bottom-up thinking that Foucault has been described as non-action oriented. Foucault (1981) says about such criticism, in a manner that
would be pertinent to those who work in the institutional setting of planning:
Its true that certain people, such as those who work in the institutional setting of the prison...are not likely to find advice
or instructions in my books to tell them what is to be done. But my project is precisely to bring it about that they no
longer know what to do, so that the acts, gestures, discourses that up until then had seemed to go without saying
become problematic, difficult, dangerous (Miller 1993, 235). The depiction of Foucault as non-action oriented is correct to the extent
that Foucault hesitates to give directives for action, and he directly distances himself from the kinds of universal What is to be done?
Foucault told an interviewer. I know its pretentious to say, Foucault said, but thats a proof of a trutha political and actual truth--
which started after the book was written (Dillon 1980, 5). This
a specific context. The problem with Foucault is that because understanding and action have their points of departure in the particular and the
local, we may come to overlook more generalised conditions concerning, for example, institutions, constitutions and structural issues.
In sum, Foucault and Habermas agree that rationalisation and the misuse of power are among the most important problems of our time. They
disagree as to how one can best understand and act in relation to these problems. From the perspective of the history of philosophy and
political theory, the difference between Foucault and Habermas lies in the fact that Foucault works within a particularistic and contextualist
tradition, with roots in Thucydides via Machiavelli to Nietzsche. Foucault is one of the more important twentieth century exponents of this
tradition. Habermas is the most prominent living exponent of a universalistic and theorising tradition derived from Socrates and Plato,
proceeding over Kant. In power terms, we are speaking of strategic versus constitution thinking, about struggle versus control, conflict
versus consensus.
Generic
The alternative is keystatus quo is oppressed by
oppressive modernities
Flyvbjerg and Richardson 2Aalborg University, Department of Development and Planning AND
Department of Town and Regional Planning (Bent Flyvbjerg and Tim Richardson, Planning and Foucault In Search of the
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, DOA 7/3/15, AMB@GDI)
planning theory throughout the history of this discipline - does not serve modernity, or planning theory, well. The ideals of
modernity, democracy and planning - ideals that typically are worth fighting for - are better served by understanding
Realrationalitt than normative rationality. Normative rationality may provide an ideal to strive for, but it is a poor guide to the
the
majority of planning theorists: they know where they would like to go but not
how to get there. The focus of modernity and of planning theory is on what
should be done. We suggest a reorientation toward what is actually done strategies23 and tactics needed for moving toward to the ideal. This, in our analysis, is the quandary of normative idealists, including
towards verita effettuale. In this way we may gain a better grasp - less idealistic, more grounded - of what planning is and what the strategies
and tactics that may help change it for the better. Foucauldian analysis unlike Habermasian normativism, offers a type of planning
theory which is more useful in understanding how planning is actually done, and offers better prospects for those
interested in bringing about democratic social change through planning. Habermas, among others, views conflict in society as
dangerous, corrosive and potentially destructive of social order, and therefore in need of being contained and resolved. In a Foucauldian
Indeed, the more democratic a society, the more it allows groups to define their own specific ways of life and legitimates the inevitable
conflicts of interest that arise between them. Political consensus can never be brought to bear in a manner that neutralises particular group
obligations, commitments and interests. A more differentiated conception of political culture than Habermass is needed, one that will be more
tolerant of conflict and difference, and more compatible with the pluralisation of interests.24 A strong democracy guarantees the
existence of conflict. A strong understanding of democracy, and of the role of planning within it, must therefore be based
on thought that places conflict and power at its centre, as Foucault does and Habermas does not. We
suggest that
an understanding of planning that is practical, committed and ready for
conflict provides a superior paradigm to planning theory than an
understanding that is discursive, detached and consensus-dependent.
Exploring the dark side of planning theory offers more than a negative,
oppressive confirmation of our inability to make a difference. It suggests that
we can do planning in a constructive empowering way, but that we cannot do
this by avoiding power relations. Planning is inescapably about conflict:
exploring conflicts in planning, and learning to work effectively with conflict
can be the basis for a strong planning paradigm.
ATs
AT Perm
Perm failsthe aff would just be inserting power into their
already biopolitical methadologypure alt framing is
critical
Flyvbjerg and Richardson 02 (Aalborg University, Department of Development and Planning AND
Department of Town and Regional Planning (Bent Flyvbjerg and Tim Richardson, Planning and Foucault In Search of the
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, 2002, DOA 7/3/15, AMB@GDI)
Abstract
In this paper we argue that the use of the communicative theory of Jrgen Habermas in planning theory is problematic because it hampers an
Friedmann, reflecting on the progress of theory to date, identifies theorists ambivalence about power as one of the
to build relations of
power into their conceptual frameworks . But to bring power more closely into
planning theory, we need to consider carefully what is meant by power, a
concept which has long been the subject of philosophical discourse. For
power cannot be simply bolted on to existing planning theory. What lies
ahead is what John Friedmann has called the long trek of integrating discourses on
power with the still sanitised multiple discourses of planning theory (Friedmann
1997). We believe that along the way, emerging theoretical work will be subjected to difficult challenges about power. Power may
biggest outstanding problems in theorising planning (Friedmann 1997). He urges theorists
trek, and find our progress blocked by an unresolved difficulty with one such emerging body of theory. We encounter an emerging paradigm
which asserts a new, Habermasian communicative rationality for planning (e.g. Innes 1995), which is just beginning to be subjected to
sustained critique on its treatment of power (e.g. Huxley 1998, Huxley and Yiftachel 1998).
Some planning theorists may feel they have already explored this route, and that the obstacles to a Habermasian paradigm have been
appears to have been missed, or dismissed, which has facilitated the rejection of his theories in relation to planning.
Foucaults work. We believe, however, that this cannot be done convincingly . More importantly we are concerned that, in spite of
regular reference to Foucault in planning theory literature, there has not so far been a cogent exploration of the full import of his work for
dark side of planning theory - the domain of power - which has been occasionally explored by planning theorists (e.g. Yiftachel 1994,
Flyvbjerg 1996, Roweis 1983, Marcuse 1976) but has been avoided by many others who see only oppression and coercion where power
operates.
AT No Link
The justifications of the affirmative plan are normalizing
the current state of bad biopower, where the surveillance
state makes reforms to be better able to hide their
abuses of power. This turns the case meaning that their
apparent solvency is just another ploy to subdue the
populace into complacency meaning that they arent able
to solve for the harms presented in the 1ac.
Education:
1) Depth is more prevalent with floating PIKs vs. debating only what is
presented in the 1NC
Real World:
1) In real world policies and plans always change to lead to better
development
Defensive Answers-
1) The pik is in the 1NC meaning it is just as predictable anyother off case
argument.
Fairness:
1) Piks do not change the advocacy of the neg. It supports its claims on
the K with the correct methodology revealed through the round.
2) Piks can be answered with many of the same answers as any other CP
or kritik. To be what the affirmative calls fair that means we dont get
CPs or Ks which kills core negative ground
PIK Interpretation:
There are nothing wrong with floating piks if they solve the methodology we
are critiquing.
Aff
Perm
Perm: do the plan while endorsing criticism exigencies
demand action in the face of criticism
Campbell 98 (David Campbell, Intl Relations Prof @ UM, National Deconstruction: Violence, Identity, and
Justice in Bosnia, Minneapolis: University of Minnesota Press, 1998, DOA 7/3/15, AMB@GDI)
The undecidable within the decision does not , however, prevent the
decision nor avoid its urgency. As Derrida observes, a just decision is always required
immediately, right away. This necessary haste has unavoidable consequences because the pursuit
of infinite information and the unlimited knowledge of conditions ,
rules or hypothetical imperatives that could justify it are unavailable in the crush of
time. Nor can the crush of time be avoided, even by unlimited time, because the moment of
decision as such always remains a finite moment of urgency and
precipitation. The decision is always structurally finite, it aalways marks the interruption of the juridicoor ethico- or politico-cognitive deliberation that precedes it, that must precede it. That is why, invoking
Kierkegaard, Derrida, declares that the instant of decision is a madness. The finite nature of the decision
may be a madness in the way it renders possible the impossible, the infinite character of justice, but
Derrida argues for the necessity of this madness. Most importantly, Derrida argues for the necessity of this
madness. Most importantly, although Derridas argument concerning the decision has, to this pint, been
concerned with an account of the procedure by which a decision is possible, it is with respect to the ncessity
of the decision that Derrida begins to formulate an account of the decision that bears upon the content of
the decision. In so doing, Derridas argument addresses more directly more directly, I would argue than is
acknowledged by Critchley the concern that for politics (at least for a progressive politics) one must
imperatives? It is both the character of infinite justice as a heteronomic relationship to the other, a
relationship that because of its undecidability multiplies responsibility, and the fact that left
to itself,
the incalculable and given (donatrice) idea of justice is always very close to
the bad, even to the worst, for it can always be reappropriated by the most perverse calculation.
The necessity of calculating the incalculable thus responds to a duty
that inhabits the instant of madness and compels the decision to
avoid the bad, the perverse calculation, even the worst. This is
the duty that also dwells with deconstructive thought and makes it
the starting point, the at least necessary condition, for the
organization of resistance to totalitarianism in all its forms. And it is
a duty that responds to practical political concerns when we
recognize that Derrida names the bad, the perverse, and the worst
as those violences we recognize all too well without yet having
thought them through, the crimes of xenophobia, racism, antiSemitism, religious or nationalist fanaticism.
Reforms Work/Perm
Distinguishing between authoritarian and democratic
information states solves privacy, freedom, and
democratic participation
Balkin, professor of constitutional law at Yale Law School,
1 January 2008 (Jack M., The Constitution in the National Surveillance
State, Yale Law School,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
If some form of the National Surveillance State is inevitable, how do we
continue to protect individual rights and constitutional government ? Today's
challenge is similar to that faced during the first half of the twentieth century, when government
transitioned into the Welfare State and the National Security State. Americans had to figure out how to
tame these new forms of governance within constitutional boundaries. It is no accident that this period
spawned both the New Deal-with its vast increase in government power-and the Civil Rights Revolution.
The more power the state amasses, the more Americans need constitutional
guarantees to keep governments honest and devoted to the public good. We
might begin by distinguishing between an authoritarian information state and
a democratic information state.6 8 Authoritarian information states are information gluttons
and information misers. Like gluttons they grab as much information as possible because this helps
secrets, and they multiply secret rules and regulations, which lets them claim to obey the law without
having to account for what they do. In this way they avoid accountability for violating people's rights and
for their own policy failures. Thus, information gluttony and information miserliness are two sides of the
same coin: both secure governments' power by using information to control their populations, to prevent
inquiry into their own operations, to limit avenues of political accountability, and to facilitate self-serving
Democratic
states recognize that access and disclosure help prevent governments from
manipulating their citizens. They protect individual privacy because
surveillance encourages abuses of power and inhibits freedom and
democratic participation. Thus being an information gourmet and an
information philanthropist are also connected: both help keep governments
open and responsible to citizens; both further individual autonomy and
democracy by respecting privacy and promoting access to knowledge.
Theory
PIKs Bad
A. Interpretation: Floating PIKS arent legitimate
B. Standards
Ground
1) Floating PIKS steal Aff ground. They cant advocate against the K if it
encompasses their entire case. This destroys the aff ground for
offense. This means that the neg can just moot the 1AC
Predictability
1) Piks let the neg be a moving target
2) Time skew
Fairness
1) Neg can change advocacy during the block which ruins 2AC answers
and skews 1AR
2) Impossible for the affirmative to effectively answer a floating PIK
Predictability
1) Piks let the neg be a moving target
2) Time skew
Education
1) No in round education when the negative team can just change the
debate mid round
CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law Review, 2007, Vol. 120, February 2007,
DOA 7/02/15, AMB@GDI)
Both the practical failures and the fallacy of rigid boundaries generated by
extralegal activism rhetoric permit us to broaden our inquiry to the
underlying assumptions of current proposals regarding transformative politics
that is, attempts to produce meaningful changes in the political and socioeconomic landscapes. The
suggested alternatives produce a new image of social and political action. This vision rejects a
shared theory of social reform, rejects formal programmatic agendas, and
embraces a multiplicity of forms and practices. Thus, it is described in such terms as a
plan of no plan,211 a project of pro- jects,212 anti-theory theory,213 politics rather than goals,214
presence rather than power,215 practice over theory,216 and chaos and openness over order and
formality. As a result, the contemporary message rarely includes a comprehensive vision of common social
the
commonality of struggle and social vision that existed during the civil rights
movement has disappeared.217 There is no unifying discourse or set of values, but rather an
aversion to any metanarrative and a resignation from theory. Professor Handler warns that this move
away from grand narratives is self-defeating precisely because only certain
parts of the political spectrum have accepted this new stance: [T]he
claims, but rather engages in the description of fragmented efforts. As Professor Joel Handler argues,
Grand Narratives . . . .218 Intertwined with the resignation from law and policy, the new bromide of
neither left nor right has become axiomatic only for some.219 The contemporary critical legal consciousness
informs the scholarship of those who are interested in progressive social activism, but less so that of those who are
interested, for example, in a more competitive securities market . Indeed, an interesting recent development has
been the rise of conservative public interest lawyer[ing].220 Although public interest law was originally
associated exclusively with liberal projects, in the past three decades conservative advocacy groups have
rapidly grown both in number and in their vigorous use of traditional legal strategies to promote their
causes.221 This growth in conservative advocacy is particularly salient in juxtaposition to the decline of
traditional progressive advocacy. Most recently, some thinkers have even suggested that there may be
something inherent in the lefts conception of social change focused as it is on participation and
empowerment that produces a unique distrust of legal expertise.222 Once again, this conclusion
profound risk of the typology that of legitimation. The common pattern of extralegal scholarship is to
describe an inherent instability in dominant structures by pointing, for example, to grassroots
strategies,223 and then to assume that specific instances of counterhegemonic activities translate into a
the potential of change . There are few instances of meaningful reordering of social and
economic arrangements and macro-redistribution. Scholars write about decoding what is really happening,
as though the scholarly narrative has the power to unpack more than the actual conventional experience
will admit.224 Unrelated efforts become related and part of a whole through mere reframing. At the same
time, the elephant in the room the rising level of economic inequality is left unaddressed and comes
to be understood as natural and inevitable.225 This is precisely the problematic process that critical
theorists decry as losers self-mystification, through which marginalized groups come to see systemic
losses as the product of their own actions and thereby begin to focus on minor achievements as
representing the boundaries of their willed reality. The explorations of micro-instances of activism are often
fundamentally performative, obscuring the distance between the descriptive and the prescriptive.
The
manifestations of extralegal activism the law and organizing model; the proliferation of
informal, soft norms and norm-generating actors; and the celebrated, separate nongovernmental sphere of
described as a microcosm of the whole and the audience is national and global. In the context of the
humanities, Professor Carol Greenhouse poses a comparable challenge to ethnographic studies from the
1990s, which utilized the genres of narrative and community studies, the latter including works on
American cities and neighborhoods in trouble.226 The aspiration of these genres was that each individual
story could translate into a time of the nation body of knowledge and motivation.227 In contemporary
legal thought, a corresponding gap opens between the local scale and the larger, translocal one. In reality,
although there has been a recent proliferation of associations and grassroots groups, few new localstatenational federations have emerged in the United States since the 1960s and 1970s, and many of the
existing voluntary federations that flourished in the mid-twentieth century are in decline.228 There is,
therefore, an absence of links between the local and the national, an absent intermediate public sphere,
which has been termed the missing middle by Professor Theda Skocpol.229
New social
deradicalizes the agenda, legitimizes ongoing injustices, and diverts energies away from more effective and
transformative alternatives. Consequently, the argument proceeds, the turn to the law actually reinforces existing
institutions and ideologies. As they engage with the law, social reform groups become absorbed by the system even as
they struggle against it.
of postmodernism is to see it as offering something along the lines of what Critical Theorist Theodor Adorno called
'negative dialectics,' n133 a ceaseless refusal to accept the limits of the materials that are given--in this case, a refusal to
accept the limits of the legal system as presently configured, and a desire to question its foundations, to imagine a better
system with new ideas about property, freedom, employment, liability, and criminal responsibility. Critical theorist Herbert
Marcuse once referred to this attitude as 'the Great Refusal,' n134 and it serves a valuable purpose, if only to make us less
comfortable with our existing beliefs and practices. Postmodernism does not, then, provide a blueprint for a better society
or a method for deciding cases, but rather serves as a critical tool for assessing the questionable assumptions and
methodologies that underlie much legal doctrine and scholarship. [*76] To be sure, postmodernism has its fringe
elements, and much postmodern theory is poorly written. But the task of the scholar is to look past the fringes and find
This element
of charity, so crucial for scholarly exchange, is missing in much of the recent
criticism of postmodernism. Postmodernism is many things, both positive and negative, but it is surely
the core of a movement, to depict a movement in its best possible light, and only then to criticize it.
CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law Review, 2007, Vol. 120, February 2007,
DOA 7/02/15, AMB@GDI)
- all produce a fantasy that change can be brought about through smallscale, decentralized transformation. The emphasis is local, but the locality is described as a
action
microcosm of the whole and the audience is national and global. In the context of the humanities, Professor Carol
Greenhouse poses a comparable challenge to ethnographic studies from the 1990s, which utilized the genres of narrative
and community studies, the latter including works on American cities and neighborhoods in trouble. n226 The aspiration
of these genres was that each individual story could translate into a "time of the nation" body of knowledge and
motivation. n227 In contemporary legal thought, a corresponding gap opens between the local scale and the larger,
translocal one. In reality, although there has been a recent proliferation of associations and grassroots groups, few new
local-state-national federations have emerged in the United States since the 1960s and 1970s, and many of the existing
voluntary federations that flourished in the mid-twentieth century are in decline. n228 There is, therefore, an absence of
links between the local and the national, an absent intermediate public sphere, which has been termed "the missing
middle" by Professor Theda Skocpol. n229 New social movements have for the most part failed in sustaining coalitions or
producing significant institutional change through grassroots activism. Professor Handler concludes that this failure is due
in part to the ideas of contingency, pluralism, and localism that are so embedded in current activism.230 Is the focus on
small-scale dynamics simply an evasion of the need to engage in broader substantive debate? It is important for nextgeneration progressive legal scholars, while maintaining a critical legal consciousness, to recognize that not all extralegal
associational life is transformative. We must differentiate, for example, between inward-looking groups, which tend to be
self- regarding and depoliticized, and social movements that participate in political activities, engage the public debate,
and aim to challenge and reform existing realities.231 We must differentiate between professional associations and more
inclusive forms of institutions that act as trustees for larger segments of the community.232 As described above ,
activism that settles for what seems possible within the narrow space that is left in a rising convergence of
ideologies. The original vision is consequently coopted, and contemporary
discontent is legitimated through a process of self-mystification.
V. Restoring Critical Optimism in the Legal Field
The advantage of an externally oriented approach lies in its critical distance, in its ability to present before our eyes things
that happen behind our backs. Ideally, these external insights can be folded back into the internal practice to improve it.
For example, if a legal theorist can convince a judge that she has an unconscious class, race, or gender bias, this insight
might affect her future decisions. The external perspective also brings to light legal notions that are silently assumed in
the ordinary practice of law but which seem artificial and problematic when considered from a distance. For instance, law
students are essentially thrown into a system that they are forced to accept in order to function, such as the feudal
classifications that haunt contemporary property law, with its fee simple determinables, springing remainders, and the
in Marx's claim that jurisprudence is a reflection of class interests,[46] in Nietzsche's claim that democracy
liberal
guarantees of freedom and autonomy are bogus. [48] These thinkers seem to
be saying that the entire legal tradition is rotten, that it is built on a faulty or deceptive edifice; so any
tinkering within the system that is short of a revolution will be as fruitless as rearranging
deck chairs on the Titanic. Paradoxically, this strategy often fails completely because
and equal rights constitute a type of "slave morality,"[47] and in Foucault's claim that the
largescale critique of the legal system may have some romantic appeal, it is
difficult to see how any political or legal theoryapart from, say, anarchism
could be derived from such an attitude of distrust toward our practices and
traditions. Hilary Putnam summarized this point nicely: Many thinkers have fallen into Nietzsche's error
of telling us they had a "better" morality than the entire tradition; in each case they only produced a
monstrosity, for all they could do was arbitrarily wrench certain values out of their context while ignoring
others. We can only hope to produce a more rational conception of rationality or a better conception of
morality if we operate from within our tradition . . . .[53] While we must interrogate our traditions, there is
no sense in escaping them altogether because that would leave us homeless. As Richard Rorty is fond of
saying, " We
successes of external feminist theory. When Catharine MacKinnon pronounces that "the state is male,"[56]
the critique is so total that it seems to leave no room for changing the system without displacing it entirely.
However, this position is belied by MacKinnon's undisputed efforts at reforming this "male" system from
within.[57] Feminist theory succeeds when it steps into legal doctrine and points out, for example, that the
legal definition of rape contains a male bias (in requiring physical resistance by rape victims) or that the
public-private split which runs through the law has traditionally left women in an unprotected private
realm.[58] Here, as elsewhere, external critics need to translate or mediate their message so that the
While
such Critical activity may be indispensable, it can only be preparatory.
Moreover, trashing may itself prove to be an obstacle [*229] to the mapping
out of any future vision of society. n129 The object of trashing is to expose
and sweep away the prevailing structures of thought that persuade people
that present social arrangements are necessary and natural, rather than
arbitrary and contingent. n130 Yet, in line with this goal, CLSers must be careful to avoid foisting their own
world views that are themselves situated in history, where power and ideas do not exist separately. n128
structure of thought on others; to do so would open themselves to the same charges they so vigorously level at others.
seems to be that each individual must be left to act alone, free from the constraints of any inhibiting consciousness.
Freed from fear of surprising new weapons, and surprise attacks, countries
could safely shrink their militaries. And with reduced armies, we should be
able to expect reduced warfare, continuing the historical trend in conflict reduction since the
end of the Second World War.
manipulation of microbes to perform specific tasks. Experts are divided as to the risks involved in this new
technology, but they could be tremendous, especially if someone were to release, accidentally or
Mass
surveillance could help greatly here, by catching lethal pandemics in their
earliest stages, or beforehand, if we were to see one being created artificially.
It could also expose lax safety standards or dangerous practices in legitimate
organisations. Surveillance could allow for quicker quarantines, and more effective
treatment of pandemics. Medicines and doctors could be rushed to exactly the right places, and
malevolently, infectious agents deliberately engineered for high transmissibility and deadliness.
micro-quarantines could be instituted. More dramatic measures, such as airport closures, are hard to
implement on a large scale, but these quick-response tactics could be implemented narrowly and
selectively. Most importantly, those infected could be rapidly informed of their condition, allowing them to
the movements and actions of those who fell ill would make it much easier to research the causes and
pathology of diseases. You can imagine how many lives would have been saved had AIDS been sniffed out
by epidemiologists more swiftly.
Oversight Solves
Oversight of the executive branch is the most important
thing we can do to solve the intelligence state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 20082009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers
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.