Executive Order Counterplan
Affirmative Solvency Answers
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- (__) Problem is lack of transparency oversight – need more external checks
- (__) (__) Accountability is key – need multiple agencies involved
- (__) (__) Executive will engage in mission creep – national security fears nature of bureaucracy insure it – proves the need for checks
- (__) Need external checks to prevent mission creep
- Presidential Power Answers
- Strong Executive Unnecessary
AffirmativeSolvency AnswersSole Executive Action Fails(__)(__) Executive acting alone fails – future administrations will just act however they want – needs to be more broadly curtailedFriedersdorf, Politics and National Affairs Writer for the Atlantic, 13 [Conor Friedersdorf, 5/28/2013 “Does Obama Really Believe He Can Limit the Next President's Power?” The Atlantic, http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believe-he-can-limit-the-next-presidents-power/276279/] Will anyone follow them? That's what I don't understand. Why does Obama seem to think his successors will constrain themselves within whatever limits he sets? Won't they just set their own limits? Won't those limits be very different? What would Chris Christie do in the White House? I have no idea, but I'm guessing that preserving the decisionmaking framework Obama established isn't what he'd do. Does anyone think Hilary Clinton would preserve it? Obama doesn't seem to realize that his legacy won't be shaped by any perspicacious limits he places on the executive branch, if he ever gets around to placing any on it. The next president can just undo those "self-imposed" limits with the same wave of a hand that Obama uses to create them. His influence in the realm of executive power will be to expand it. By 2016 we'll be four terms deep in major policy decisions being driven by secret memos from the Office of Legal Counsel. The White House will have a kill list, and if the next president wants to add names to it using standards twice as lax as Obama's, he or she can do it, in secret, per his precedent. Some new John Brennan-like figure, with different values and a different personality, will serve as Moral Rectitude Czar. Even ending torture was done by executive order. The folks guilty of perpetrating it weren't punished. Congress wasn't asked to act. (There was an ambitious domestic agenda to focus on!) So who knows what we'll get next, save for a new president who witnessed all the previously unthinkable things post-9/11 presidents got away with so long as they invoked fighting "terror." The fact that every new president is likely to be a power-seeking egomaniac seems like too obvious a flaw in Obama's plan for a smart guy like him not to see it. So what gives? Is all the talk of limiting the executive branch just talk? But why even talk at this point, if so? He isn't running again. Yet if he really does think his office wields too much power, why is he putting in place safeguards the next president can and probably will undo instead of zealously trying to get Congress to act? Yet he does seem to be concerned. Here's Peter Baker reporting in The New York Times: For nearly four years, the president had waged a relentless war from the skies against Al Qaeda and its allies, and he trusted that he had found what he considered a reasonable balance even if his critics did not see it that way. But now, he told his aides, he wanted to institutionalize what in effect had been an ad hoc war, effectively shaping the parameters for years to come "whether he was re-elected or somebody else became president," as one aide said. Ultimately, he would decide to write a new playbook that would scale back the use of drones, target only those who really threatened the United States, eventually get the C.I.A. out of the targeted killing business and, more generally, begin moving the United States past the "perpetual war" it had waged since Sept. 11, 2001. Whether the policy shifts will actually accomplish that remains to be seen, given vague language and compromises forced by internal debate, but they represent an effort to set the rules even after he leaves office. "We've got this technology, and we're not going to be the only ones to use it," said a senior White House official who, like others involved, declined to be identified talking about internal deliberations. "We have to set standards so it doesn't get abused in the future." There's that same obvious flaw, but everyone seems oblivious to it. The standards you're setting? The next president can just change them. In secret, even! That's the problem with extreme executive power: It is capricious, prone to abuse, and difficult to meaningfully check. Does Obama think the next man or woman will just behold the wisdom of his approach and embrace it? That error, unthinkable as it seems, would not be without precedent for this president. Need More Oversight(__) Problem is lack of transparency & oversight – need more external checksBUTLER , Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA School of Law, 13 [Alan Butler, Standing Up to Clapper: How to Increase Transparency and Oversight of FISA Surveillance, New England Law Review, Fall, 2013, 48 New Eng. L. Rev. 55] As new details have emerged about the FBI and NSA's domestic intelligence-gathering practices, it has become clear that the current system does not provide enough transparency to ensure public oversight and trust. n42 There are three main problems with the current system: the development of a secret body of constitutional and statutory law by the FISC, structural limitations on judicial review of FISA surveillance, and rules inhibiting Congress' ability to facilitate public oversight. As a result, important questions about the scope and nature of surveillance remain unanswered, and in many cases, there is not even enough information to know which questions to ask. Over the last decade, the FISC began developing a secret body of law governing FISA surveillance and addressing important constitutional and statutory issues that should be made public. n43 This shift occurred after the Government began to expand foreign intelligence surveillance beyond the [*64] scope of individualized FISA warrants. n44 With the enactment of the FAA, Congress introduced a new role for the FISC: approval of government surveillance programs based on general targeting and minimization procedures. n45 Under Section 702 of the FAA, the FISC judge reviewing the government application and procedures must determine whether the targeting and minimization procedures are "consistent with the requirements of [the statute] and with the Fourth Amendment." n46 As a result, the FISC now regularly assesses "broad constitutional questions" and establishes "important judicial precedents, with almost no public scrutiny." n47 The secrecy of these important opinions is a flaw in the system and prevents public oversight of developing national security law. Congress plays an important role in the intelligence oversight process as well, but its oversight of FISA activity authorized under Section 702 and Section 215 is severely limited by procedural rules imposed by the Department of Justice ("DOJ") and inadequate public reporting. The law requires that the Attorney General keep the Senate Select Committee on Intelligence, n48 the House Permanent Select Committee on Intelligence, n49 and the Senate Judiciary Committee "fully informed" concerning the Government's use of FISA. n50 However, reports sent from the DOJ to the [*65] House and Senate Intelligence Committees impose strict rules on the dissemination of the government's legal interpretation of these programs. n51 For example, the detailed reports on the use of Section 215 were only available in Intelligence Committee offices for a "limited time period," no photocopies or notes could be taken out of the room, and only certain congressional staff members were allowed to attend. n52 Similar rules likely apply to the Attorney General's reports on significant FISA legal interpretations n53 and the use of Section 702 authorities. n54 Public reports regarding the extent of FISA surveillance activity give a bare minimum of information, including only the number of applications for electronic surveillance, the number granted, modified, or denied, n55 and the same information regarding requests for orders compelling production of business records. n56 Unlike the Wiretap Reports issued by the Administrative Office of the U.S. Courts, which provide a comprehensive overview of the cost, duration, and effectiveness of surveillance in criminal investigations, n57 the FISA reports do not provide sufficient detail. n58 As a result, Members of Congress and the public do not have the information [*66] they need to evaluate the efficacy and legality of these programs. n59 The problem of secret law is exacerbated by the limited judicial review of important constitutional and statutory issues related to modern FISA surveillance. As one former FISA judge recently noted, the role of judges is not to make policy, it is to "review policy determinations for compliance with statutory law" - but such review must be done in the context "of [the] adversarial process." n60 The FISA does not currently provide for adversarial hearings in the FISC, even when presented with complex and novel issues. n61 And unlike warrants and other ex parte orders issued in criminal cases, judicial review of FISA activity is not guaranteed in criminal prosecutions or other subsequent proceedings. n62 Even when the government provides notice of the use of FISA-derived evidence in criminal cases, it has not specified whether such surveillance was accomplished pursuant to Section 702 authorized directives. n63 As a result, the traditional means of obtaining judicial review of the ultimate [*67] constitutional question regarding modern FISA surveillance is unavailable. The Supreme Court has also made it more difficult to assert a constitutional challenge in a civil case based on Section 702 activities. n64 Need More Oversight(__)(__) Accountability is key – need multiple agencies involvedSETTY, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University School of Law, 15 [Sudha Setty, Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, 2015, Stanford Journal of International Law, 51 Stan. J Int'l L. 69] Conclusion Genuine accountability should not depend on the chance that an unauthorized and illegal leak will occur. In the comparative example of the United Kingdom, engagement with a European Union energized with a commitment to increase privacy protections, along with domestic parliamentary oversight, provide two potential avenues for increased constraint on surveillance. In India, the parliament and the courts historically enabled, not constrained, the intelligence community. Whether that stance will continue as the government's technological capabilities increase is yet to be seen. Domestically, it could be argued that the types of reform recommended here to improve actual accountability and transparency over programs like the NSA Metadata Program are overkill: They involve multiple branches of government, the PCLOB, and the public. However, much of the accountability apparatus that has been in place was dormant until the Snowden disclosures, and would have remained passive without those disclosures. A multi-faceted, long-term, structural approach [*103] to improving transparency and accountability - one that involves at a minimum the courts and the PCLOB, but hopefully Congress, the executive branch, and the public as well - improves the likelihood of sustained and meaningful accountability as new surveillance capabilities are developed and implemented. Risk Mission Creep(__)(__) Executive will engage in mission creep – national security fears & nature of bureaucracy insure it – proves the need for checksDALAL, J.D., Yale Law School; B.A., B.S., University of Pennsylvania, 14 [Anjali S. Dalal, Shadow Administrative Constitutionalism and the creation of surveillance culture, Michigan State Law Review, 2014 Mich. St. L. Rev. 59] The mission of national security is at once so powerful and so vague that mission creep towards complete surveillance is only [*100] natural. After all, it is a Hobbesian reminder of the primary purpose of the state. The state exists to keep us safe from each other and from outsiders. If the citizenry cannot rest assured that their possessions, livelihoods, and lives are stable and secure, then the state has failed in its most fundamental duty. At the highest level, this mandate contains no limiting principles, and the determination of when our national security is threatened is solely in the hands of the executive charged with delivering on the mandate. Thus, while we may negotiate peacetime limitations on the authorities of law enforcement and intelligence gathering, when the security of the nation is called into question, those limitations are easily shrugged off and the mission expanded. As existential threats to our national security increasingly become a way of life, the FBI is instinctively responding by expanding its mission and pursuing its mission more comprehensively. As Professor Peter Swire explains: [A] more general reason why surveillance powers expand over time [is that] intelligence agencies get part of a picture but are unable to understand the entire picture and thus seek and receive additional powers, with the hopes that the additional surveillance capabilities will be more effective at meeting the goal of preventing harm before it occurs. n183 Thus it is in part the noble pursuit of a powerful but amorphous mandate that motivates mission creep.
Despite the fact that the FBI followed protocol, the public and the press fixated on the fact that the FBI was aware of Tsarnaev's radicalization and yet did not prevent the attack in Boston. n187 The public's fear that the attacks represented a failure of the FBI was not allayed by the President's assurances that the FBI managed the situation with the utmost competence, both pre- and post-attack. n188 In a moment of fear, the public demanded 100% prevention, ignoring the fact that perfect prevention is difficult in a society that also protects civil liberties. n189 This post-attack blame game forces the Justice Department and the FBI to make a difficult decision: Do they aggressively and potentially unconstitutionally expand their vague mandate to include the prevention of all instances of terrorism-related violence, or do they maintain a conservative interpretation of their authority and risk exposing the agency to intense public scrutiny and potentially having the agency brass raked over the coals, regardless of whether or not the FBI or any other element of DOJ was at fault? A reasonable agency head would choose to expand the mandate. After all, as I discuss more fully in Parts IV and V, given the secrecy in which national security policy is made and the sparse oversight to which it is subject, the minimal chance of any exposure of inappropriate or illegal practices is outweighed by the benefits of expanding the mandate. [*102] Given the powerful and loosely defined national security mandate, it is only natural that the FBI's mission creeps from investigating crimes to preventing crime. This expansive interpretation of the mandate encourages aggressive surveillance norms. In this way, the FBI's instinctive promotion of surveillance norms is inevitable. B. Medieval Structure of Bureaucracy
Risk Mission Creep(__) Need external checks to prevent mission creepDALAL, J.D., Yale Law School; B.A., B.S., University of Pennsylvania, 14 [Anjali S. Dalal, Shadow Administrative Constitutionalism and the creation of surveillance culture, Michigan State Law Review, 2014 Mich. St. L. Rev. 59] CONCLUSION This Article begins to tackle an under-theorized area in legal scholarship: the role of administrative agencies, often in isolation, in articulating the contours of constitutional protections in the area of national security. Our national security law is determined largely by administrative agencies--be it the DOJ, the DOD, the CIA, the NSA, or the various fiefdoms within each of these agencies. While the War on Terror has led to significant interest in the growth of Executive Power, this interest has largely focused on the roles of the President and his closest advisors in determining the contours of the President's constitutional authority. However, given the high profile nature of presidential power grabs, many of these interpretations of executive authority ultimately are reviewed by the Supreme Court or at least reviewed by the public. As we saw with the series of Supreme Court decisions on the legal rights of Guantanamo detainees n341 and the President's renewed promises, in the face of serious public pressure, to close Guantanamo and rein in [*137] drone warfare, n342 serious expansion of presidential power is often subject to checks and balances. Comparatively, administrative agencies operate under the radar--not necessarily making the big decisions on detention authority or warrantless wiretapping programs, but making the smaller decisions on how much the FBI can do without obtaining a warrant. These seemingly smaller things remain outside of public purview and escape public deliberation. Administrative constitutionalism presents a democratic process by which to arrive at constitutional meaning. However, agency norm entrepreneurship that is not followed by robust deliberation threatens to allow agencies, the least accountable members of our tripartite government, the power to create and entrench constitutional norms that ultimately inform the development of constitutional law. Building structural solutions to force deliberation can ensure the legitimacy of administrative constitutionalism.
Power doesn’t Trade-Off(__)(__) Legislative-Executive power isn’t zero-sum – it’s a rubber band – it can be exercised without changing the structureRottinghaus, Assistant Prof of Poli Sci at the University of Houston, 11 [Brandon tottinghaus, “The Presidency and Congress”, from New Directions in the American Presidency, ed. Lori Cox Han] page 96-97 Conclusion: "Rubber Band" Relations Alexander Hamilton's edict for "energy" in the executive can creatively contradict the constitutional authority given to the legislative branch. A visible and powerful president necessarily detracts from a legislature whose job it is (at least on paper) to be the engine of legislative ingenuity. The Constitution sought to buttress ‘parchment barriers' by pitting ambition against ambition; and the principle means of doing that was the election of public officials at different times, by different people and for somewhat different reasons." 107 Although the powers of the president have grown immeasurably beyond what the framers envisioned and have surpassed Congress in terms of the ability to lead in the American system, the function of shared powers continues to shape the political process in America. To consider this relationship a pendulum (an analogy some have used108 to suggest the power balance swings from one branch to another) may overstate the zero-sum game of Washington politics-the truth is that legislative powers are shared, even if certain powers are exercised at certain times by specific institutions that perhaps encroach on the power of another branch. A pendulum analogy implies that the power shifts between the branches (potentially at regular, predictable intervals). This arrangement is false since, even during times when one branch appears to have more power than another, the truth is that the branches still rely on one another for shared policy-making power. In reality, the executive-legislative relationship is more like a rubber band, where it retains a fundamental shape but can be stretched to change as legislative and executive tools change and political events occur. So, for instance, in utilizing unilateral powers, presidents can stretch that part of the rubber band, even while members of Congress assert themselves on matters of foreign policy or the appointments process. Indeed, perpetuating the rubber band analogy, jointly understanding presidency- centered and Congress-centered variables is also shown to better account for variations in policy making.109 For instance, recent evidence suggests a resurgent Congress in the creation of foreign policy, a fact that seems at odds with the "two presidencies" thesis 110 or other literature that claims that Congress always defers to the president in foreign policy matters. 111 This supports the literature that Congress may not be involved in the formal aspects of foreign policy making but does play a role in the informal aspects.112 The evidence presented here also reveals that Congress has more say on when and how the president uses his unilateral powers and whom the president recommends for nomination and confirmation than was previously assumed. Strong Executive Unnecessary(__) Less powerful executive won’t hurt US foreign policyPaul, Professor at University of Connecticut School of Law, 98 [Joel Paul, July 1998. “The Geopolitical Constitution: Executive Expediency and Executive Agreements,” California Law Review, 86 Calif. L. Rev. 671, Lexis.] A less powerful executive would not weaken U.S. foreign policy. Public scrutiny of the deliberative process and an independent judiciary have been a source of political stability and vitality in our system of government. The advantages of the President acting with the support of a strong consensus are evident. A congressional authorization to use force overseas sends a serious message to a foreign adversary that the nation is united. Congressional debate can educate the public about the nature of a foreign situation and consolidate public support for foreign assistance. Compelling members of Congress to take a public position in favor of a policy makes it less likely that they will abandon the policy when the going gets tough. For a generation the executive has told us how to imagine the world beyond our borders. Our collective fear displaced reason as we deferred to the President's greater wisdom. As a consequence, the people no longer hold Congress accountable for the failures and excesses of U.S. [*773] foreign policy. We cannot afford to ignore global forces that are reshaping our economy and our politics. Foreign and domestic issues have converged. Accordingly, we must reassert some measure of democracy in the formulation of foreign policy. Holding our government accountable for foreign policy requires the vigilance of the courts no less than Congress. 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