Tournament: SFSU | Round: 5 | Opponent: San Francisco State Andrade-Pricert | Judge: Moore

ADV 1: Democratic Deliberation

Today’s security apparatus views the public as incapable of making decisions about self-defense. This has created a legitimacy deficit that prevents public from calling for transparency or challenging executive security decisions.

Rana 12 Aziz Assistant Professor of Law, Cornell University Law School; A.B., Harvard College; J.D., Yale Law School; PhD., Harvard University. Connecticut Law Review July, 2012 44 Conn. L. Rev. 1417 COMMENTARY: NATIONAL SECURITY: LEAD ARTICLE: Who Decides on Security?, lexis

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in
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and then to watch those branches delegate such power back to the executive.

The executive’s use of the state secrets privilege assumes judges don’t have the expertise to decide issues of national security.

Chehab 11 Ahmad Georgetown University Law Center Spring, 2011 Wayne Law Review 57 Wayne L. Rev. 335 THE BUSH AND OBAMA ADMINISTRATIONS' INVOCATION OF THE STATE SECRET PRIVILEGE IN NATIONAL SECURITY LITIGATION: A PROPOSAL FOR ROBUST JUDICIAL REVIEW, lexis

Part IV proposes several possible methods of examining the reliability and merit of SSP usage
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some sort of concrete damage toward a particular litigant or class of litigants.

The result is massive judicial deference to the executive, which deprives the public of the opportunity to deliberate on critical war-making questions and cedes decision-making to the political elite.

Rana 12 Aziz Assistant Professor of Law, Cornell University Law School; A.B., Harvard College; J.D., Yale Law School; PhD., Harvard University. Connecticut Law Review July, 2012 44 Conn. L. Rev. 1417 COMMENTARY: NATIONAL SECURITY: LEAD ARTICLE: Who Decides on Security?, lexis

At present, Frankfurter's vision of constitutional flexibility and his faith in security expertise have
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domain of democratic deliberation, instead would be captured by unchecked political elites.

A vibrant public sphere is ONLY WAY to check gross forms of national security utilitarianism

Williams 8  *Daniel R, Associate Professor of Law, Northeastern University School of Law.
Penn State Law Review, Summer, 113 Penn St. L. Rev. 55

The classic Frankfurt School diagnosis of American culture is grim and pessimistic. Jurgen Habermas
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Habermas regard "the public sphere as the definitive institution of democracy." 164 

Self-imposed exile and fear of the public sphere is pushing us to the brink of annihilation

Williams 8  *Daniel R, Associate Professor of Law, Northeastern University School of Law.
Penn State Law Review, Summer, 113 Penn St. L. Rev. 55

B. The Underbelly of the Enlightenment Heritage - the Weberian Nightmare What has heretofore
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upon which those slaughtered cultures built their now-defunct way of life.

We need a sustained public debate about the validity of secrecy to challenge the assumptions about security decisions and expertise.

Rana 12 Aziz Assistant Professor of Law, Cornell University Law School; A.B., Harvard College; J.D., Yale Law School; PhD., Harvard University. Connecticut Law Review July, 2012 44 Conn. L. Rev. 1417 COMMENTARY: NATIONAL SECURITY: LEAD ARTICLE: Who Decides on Security?, lexis

If the objective sociological claims at the center of the modern security concept are themselves
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, we can expect our prevailing security arrangements to become ever more entrenched.

Public debate is key to transform political culture.

Giroux 13 Henry A. | currently holds the Global TV Network Chair Professorship at McMaster University in the English and Cultural Studies Department and a Distinguished Visiting Professorship at Ryerson University. The Shooting Gallery: Obama and the Vanishing Point of Democracy, Truthout, 2-12

At a time in history when American society is overtly subject to the quasi militarization
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are now in the shooting gallery and we are all potentially the targets.

ADV 2: Targeted Killing

Public debate about drone policy is on the rise. Obama’s latest attempts at transparency are REACTIONS to the public debate. The administration is on the defensive and looking for ways to justify its policies

Herb and Sink 13 Jeremy Herb and Justin Sink 03/08/13 (The Hill, Obama Faces Turning Point on Drone Policy)  

The public address by Obama highlights the administration’s understanding that it needs to give a
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needs to be heard. And Rand Paul made it heard last night.”

Obama proposed a drone court to Congress to increase transparency.

The Guardian 13 “Obama drone oversight proposal prompts concern over 'kill courts'” May 24 http://www.theguardian.com/world/2013/may/24/obama-drone-vetting-kill-courts

Proposals to vet future US drone strikes risk creating "kill courts" according to
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but raises serious constitutional issues about presidential and judicial authority," he said.

Ex Ante review would provide a veil of legitimacy while rubber-stamping the administration’s expansion of its campaign of global terror

Vladeck 13 Steve Vladeck 02/10/13 (Professor of Law and the Associate Dean for Scholarship at American University Washington College of Law. His teaching and research focus on federal jurisdiction, constitutional law, national security law, and international criminal law. “Why a “Drone Court” Won’t Work–But (Nominal) Damages Might...”, LawFare, from a conference hosted by Columbia Law School on targeted killings.)

That brings me to perhaps the biggest problem we should all have with a “
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and practically possible, a drone court would be a very dangerous idea.

Drone strikes cause thousands of civilian deaths and do psychological violence to those who must constantly live with the threat of a strike.

Stanford Human Rights Clinic 12 “Living Under Drones Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan” Stanford International Human Rights and Conflict Resolution Clinic (IHRCRC) and Global Justice Clinic (GJC) at NYU School of Law September http://livingunderdrones.org/wp-content/uploads/2012/10/Stanford-NYU-LIVING-UNDER-DRONES.pdf

First, while civilian casualties are rarely acknowledged by the US government, there is
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loved ones or their homes in drone strikes now struggle to support themselves.

Plan

The United States Congress should create a statutory cause of action for damages for those unlawfully injured by targeted killing operations or their heirs that overrides the state secrets and official immunity doctrine and replaces them with carefully considered procedures for balancing the secrecy concerns.

Solvency

The plan overcomes current legal barriers to judicial review.

Vladeck 13 Steve Vladeck 02/10/13 (Professor of Law and the Associate Dean for Scholarship at American University Washington College of Law. His teaching and research focus on federal jurisdiction, constitutional law, national security law, and international criminal law. “Why a “Drone Court” Won’t Work–But (Nominal) Damages Might...”, LawFare, from a conference hosted by Columbia Law School on targeted killings.)

At first blush, it may seem like many of these issues would be equally
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not most–of these cases, these legal issues would be overcome.

Law suits are a visible platform to spur public debates about human rights and generate media attention about executive secrecy.

Wexler 13 Lesley Wexler Professor of Law and Thomas A. Mengler Faculty Scholar, University of Illinois College of Law “The Role of the Judicial Branch during the Long War: Drone Courts, Damage Suits, and FOIA Requests” May 8 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262412

This chapter suggests the judiciary may play an important role in the debate over the
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Even the threat of such a judicial role may influence executive branch behavior.

Mobilizing civil society organizations is the most effective way to retrain executive power.

Cole 11 David, Professor, Georgetown University Law Center. Where Liberty Lies: Civil Society and Individual Rights After 9/11 Wayne Law Review, Winter, 57 Wayne L. Rev. 1203, lexis

The force of ordinary electoral politics also cannot account for the shift in U.
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law will have substantial deterrent effect, with or without actual court decisions.

The aff advances a broader movement for more transparency and public accountability in war-making- we need to bring the debate to the public

Wexler 13 Lesley Wexler Professor of Law and Thomas A. Mengler Faculty Scholar, University of Illinois College of Law “The Role of the Judicial Branch during the Long War: Drone Courts, Damage Suits, and FOIA Requests” May 8 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262412

When the executive branch began deploying drones to engage in targeted killings, the public
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this area and the future prospect for such rulings seem quite dim.166

Courts are rallying point

Cole 11 David, Professor, Georgetown University Law Center. Where Liberty Lies: Civil Society and Individual Rights After 9/11 Wayne Law Review, Winter, 57 Wayne L. Rev. 1203, lexis

Learned Hand's assertion that as long as "liberty lies in the hearts of men
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can and often do enforce constitutional rights where the political branches would not.

Bivens innovations spillover – executives will try to demonstrate that they’re making improvements in other areas

Margulies 10 * Peter, Professor of Law, Roger Williams University. Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law, 96 IOWA L. REV. 195

A carefully crafted damages remedy restrains official myopia and thereby curbs this counterproductive cycle.
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policy that Justice Kennedy identified in Boumediene as a central threat to constitutionalism.

Civil society organizations write the dominant narrative that influences court and executive decision

Cole 11 David, Professor, Georgetown University Law Center. Where Liberty Lies: Civil Society and Individual Rights After 9/11 Wayne Law Review, Winter, 57 Wayne L. Rev. 1203, lexis

Like the popular constitutionalists, Joseph Margulies and Hope Metcalf criticize post-9/
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and sustaining that culture, and to invoking it in times of crisis.

Courts are critical to de-normalize the Jack Bauer syndrome

Delmas 6, Candice, Pf Philosophy, Georgia State University, "Liberalism and the Worst-Result Principle: Preventing Tyranny, Protecting Civil Liberty" Philosophy Theses. Paper 14.

If Endo can be seen as typical of effective judicial review, Hirabayashi and Korematsu
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court is a central element in the liberal project of safeguarding civil liberty.

Tournament: SFSU | Round: 1 | Opponent: Sacramento State Garcia-McDonnell | Judge: Brownlow

Plan: The United States federal government should create a domestic terror court to resolve the legal status of persons detained in an Active Theater of War and apply the Geneva Conventions to persons detained in an Active Theater of War.

Advantage 1 is Terrorism –

The risk of a nuclear terrorist attack high.

Sturdee, AFP, 7-1 Simon, “UN atomic agency sounds warning on 'nuclear terrorism'”, Fox News, 7-1-13,
http://www.foxnews.com/world/2013/07/01/un-atomic-agency-sounds-warning-on-nuclear-terrorism/, RSR
VIENNA (AFP) – The head of the UN atomic agency warned Monday against
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, factories and university campuses and are therefore seen as easy to steal.
 

That breaks the nuclear taboo – leads to nuclear war.

Bin ‘9 (5-22-09 About the Authors  Prof. Li
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University, which he  completed in 2009 under Prof. Li Bin. )
The nuclear taboo is a kind of international norm and this type of norm is
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problem, avoid miscalculation and  thereby reduce the danger of a nuclear war. 

Extinction

Ayson 10 (Robert, Professor of Strategic Studies, Director of Strategic Studies: New Zealand, Senior Research Associate with Oxford’s Centre for International Studies. “After a Terrorist Nuclear Attack: Envisaging Catalytic Effects. Studies in Conflict and Terrorism, Volume 33, Issue 7, July 2010, pages 571-593)
But these two nuclear worlds—a non-state actor nuclear attack and a
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be admitted that any preemption would probably still meet with a wdevastating response.

Comparative studies prove that detention only increase terrorism.

Roberts, Associate Professor of Philosophy at East Carolina University, ‘11
Rodney, “Utilitarianism and the Morality of Indefinite Detention”, Criminal Justice Ethics, Vol. 30, No. 1, RSR
Finally, ‘‘there is no evidence that¶ preventive detention works. Comparative studies
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can be selfdefeating*it may increase the likelihood of future attacks.31

We’ll isolate 3 internal links –

Scenario 1 is Resentment –

Current trial process breeds distrust with local populations and causes resentment – that kills effective counter-terror operations

Hathaway Et. Al, 2013, (Oona Hathaway is the Gerard C.
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The Yale Journal of International Law. Lexis Nexis. Winter, 2013.)
2. Legitimacy Federal courts are also generally considered more legitimate than military commissions.
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in recent statements from the Department of Defense and the White House. 251

Cooperation increases legitimacy of US action and solves the root cause of terrorism – comparatively outweighs military responses

Picco et. Al, 6 – (Giandomenico Picco Chairman and Chief Executive, Graham E. Fuller Adjunct Professor of History, Simon Fraser University, Alistair Millar Director, Center on Global Counter-Terrorism Cooperation, Robert Trager Assistant Professor of Political Science, University of California Los Angeles, Dessislava P. Zagorcheva Ph.D. Candidate, Columbia University, Panel Discussion with Stanley Foundation, “Effective Counterterrorism in a Globalized World:
Reclaiming the Edge of Legitimacy,” http://secure.stanleyfoundation.org/registration/securityconference/panels/counterterrorism.php)
Tactical terrorists use violence to achieve a specific political (usually local) goal and
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need to work globally in cooperation with others to address its root issues.

Empirics prove – backlash from local populations over detention increases the threat of terrorism.

Tyler, et al, ’10 Tom (Macklin Fleming Professor of Law and Professor of Psychology at Yale Law School); Stephen Schulhofer (Robert B. McKay Professor of Law at New York University School of Law); and Aziz Z. Huq (Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar at the University of Chicago School of Law), “Legitimacy and Deterrence Effects in¶ Counterterrorism Policing: A Study of Muslim¶ Americans”, Law and Society Review, RSR
A countervailing view in the terrorism literature, however,¶ warns of the potential of
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levels of¶ violence (Kilcullen 2009; McCauley 2006; Sharp 1973).

Scenario 2 is Intelligence –

Detention destroys intel sharing with Europe

Hathaway, et al, ’13 Oona (Gerard C. and Bernice Latrobe Smith
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Yale Journal of International Law, Vol. 38, 2013, RSR
Many key U.S. allies have been unwilling to cooperate in cases involving
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international prosecutorial ¶ cooperation, such as the sharing of testimony and evidence.

European intelligence cooperation is key to create a global framework to solve terrorism.

Pleschinger, 11 – (Stefanie, graduate of the International Relations Masters program at Yale University, “Allied Against Terror:
Transatlantic Intelligence
Cooperation,” http://yalejournal.org/wp-content/uploads/2011/01/062106pleschinger.pdf)
Disagreements between EU member state governments and the United States also negatively affect direct EU
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the immediate threat of global terrorism will require closer cooperation at an accelerated pace

Scenario 3 is Extradition –

Allies won’t extradite terror suspects to the US over due process concerns – destroys intel gathering and causes suspects to be released – plan is key

Kris, 2011 (David, Assistant Attorney General for National Security at the U.S. Department of Justice from March 2009 to March 2011 “Law Enforcement as a Counter Terrorism Tool”  6/15/2011 acc at http://jnslp.com//wp-content/uploads/2011/06/01_David-Kris.pdf
Finally, the criminal justice system may help us obtain important¶ cooperation from other
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extradited because they do not face charges pending in the¶ foreign nation.

Advantage 2 is Credibility –

Current handling of trials threatens to destroy the transatlantic alliance – specifically harms military cooperation with Germany and Britain.

Parker ‘12 Tom Parker, formerly policy director for Terrorism, Counterterrorism and Human Rights at Amnesty International USA. He is also a former officer in the British Security Service, “U.S. Tactics Threaten NATO” 9-17-12, http://nationalinterest.org/commentary/us-tactics-threaten-nato-7461, 8-03-13
A growing chasm in operational practice is opening up between the United States and its
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Something has to give—and it may just be the Atlantic alliance.

Lack of trials destroys US credibility the MOST – legitimacy is key because terrorism is not a conventional threat

Welsh ’11 David Welsh, J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 2011, Lexis
The Global War on Terror n1 has been ideologically framed as a struggle between the
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this article offers a psychological perspective of legitimacy in the context of detention. 

Legislation is key to persuade allies – AUMF proves

Chesney et al 13  Robert Chesney, American lawyer and Professor of Law at Texas School of Law, Jack Goldsmith, Matthew Waxman, Benjamin Wittes, Real Clear Politics, 2-25, http://www.realclearpolitics.com/articles/2013/02/25/is_the_war_on_terror_lawful_117146.html
Third are the international costs of a renewed AUMF. This is a complex issue
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persuading allies that the U.S. position is a reasonable one.

Britain and Germany are critical to NATO’s success and American engagement

Aronsson and Keller, 2012 (Lisa is a Transatlantic Security Studies, Royal United Services Institute and Patrick is a coordinator at the Royal United Services Institute for Defence and Security Studies and the Konrad-Adenauer-Stiftung, “British-German Defense Co-Operation in NATO” May 2012. Konrad Adenauer Stiftunt, RUSI Institute. Web, Acc at http://www.rusi.org/downloads/assets/OP_201205_Aronsson_and_Keller.pdf
NATO is central to both British and German defence policy planning and is the primary
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hold onto its ambition to shape global affairs in partnership with the US.

First impact is soft power –

Transatlantic cohesion is key to solve multiple nuclear threats

Brzezinski ‘9 former U.S. National Security Adviser, 09 (Zbigniew, “An Agenda for NATO” Toward a Global Security Web September/October 2009),
NATO's potential is not primarily military. Although NATO is a collective-security alliance
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focused aroused Muslim resentments on the United States and the West more generally.

Second impact is hard power –

Legitimacy makes deterrence effective

Welsh ’11 David Welsh, J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 2011, Lexis
In February 2006, the United Nations Working Group on Arbitrary Detention spoke out against
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to go against what people may want at the moment without suffering debilitating consequences 

Only leadership through legitimacy cements the right kind of US power and creates world peace- the alternative is mass chaos and apolarity

Kromah ’09 Lamii Moivi Kromah, Dept IR University of the Witwatersrand, February 2009, “The Institutional Nature of U.S. Hegemony: Post 9/11,” http://wiredspace.wits.ac.za/bitstream/handle/10539/7301/MARR2009.pdf
A final major gain to the United States from the benevolent hegemony has perhaps been
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is more problematic. Institutions nevertheless provide a part of the necessary explanation.

No impact turns---hegemonic decline emboldens rising power and challengers---US intervention is inevitable, only a question of effectiveness.

Stuart Gottlieb 12 is an Adjunct Professor of International Affairs and Public Policy at Columbia University's School of International and Public Affairs, where he is also an affiliate of the Saltzman Institute of War and Peace Studies. He worked as a foreign policy adviser and speechwriter to two senior Democratic senators and has worked on presidential campaigns for both Democratic and Republican candidates. “What if U.S. stops policing the world?” September 19, 2012, http://www.cnn.com/2012/09/18/opinion/gottlieb-us-retrenchment/index.html, Accessed Date: 4-19-13 y2k
But the question is not whether promises to bring home troops and reduce military spending
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History shows that doing otherwise only raises the stakes down the line.

Contention 2 is Solvency

The US Court of Appeals decision in Al Maqeleh v. Gates created a legal black hole for detainees in an “active theater of war,” barring them from habeas protections under the Geneva Conventions

Nikkel 12, 2012, J.D. Candidate, 2012, William S. Boyd School of Law, Las Vegas; B.A., 2009, University of Nevada, Reno. Nevada Law Journal. Spring 2012. The Author would like to thank Professor Christopher L. Blakesley, Professor Terrill Pollman, and the Nevada Law Journal staff for helping with the research and writing of this Note.) Web, Lexis Nexis.
Dilawar's horrific death was one of many prisoner abuses at Bagram Airfield since late 2001
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governed military commissions) and domestic courts refuse to hear their habeas claims.

This decision left executive power open ended to detain without due process

Nikkel 12, 2012, J.D. Candidate, 2012, William S. Boyd School of Law, Las Vegas; B.A., 2009, University of Nevada, Reno. Nevada Law Journal. Spring 2012. The Author would like to thank Professor Christopher L. Blakesley, Professor Terrill Pollman, and the Nevada Law Journal staff for helping with the research and writing of this Note.) Web, Lexis Nexis.
In this age of terrorism and moral relativism, one conclusion emerges clearly: Al
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and erased that line, staining it instead with the mark of War.

Obama’s speech has called on Congress to remove restrictions on detainment

Josh Rogin 13, senior correspondent for national security and politics for Newsweek and The Daily Beast, May 23, 2013, “How Obama Bungled the Guantánamo Closing” http://www.thedailybeast.com/articles/2013/05/23/how-obama-bungled-the-guantanamo-closing.html
.¶ Obama took that issue head-on Thursday when he called on Congress to
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S. military base inside the United States from potential attack by terrorists?”

Revisiting Geneva is necessary – it’s modeled.

De Nevers, 2006 (Renee is an assistant professor of public administration at the Maxwell School at Syracure Univeristy. “Modernizing the Geneva Conventions.” The Center for Strategic and International Studies and the Massachusetts Institute of Technology.” The Washington Quarterly. http://www.supportgenevaconventions.org/library/modernizing_the_geneva_conventions.pdf)
¶ With its new variants and actors, the problem of modern war has become
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the Geneva conventions¶ and other laws of war, sustaining their precedent.¶ 

Terror courts are key – separates powers.

Pariseault, 2005 (John is a JD Candidate at the university of California, Hastings College of the Law. “Applying the Rule of Law in the War on Terror: An Examination of Guantanamo Bya Through the Lens of the US Constitution and the Geneva Congentions” Spring 2005. 28 Hastings Int’l and Comp. L. Rev. 481)
Specialized, Congressionally-authorized terrorism courts may be the best solution to the issues
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subjecting the Executive branch and the Legislature to the rule of law. n123

Incorporating procedural justice into a Domestic Terror Court is key- treatment of each individual detainee influences perception of the United States.

David Welsh, J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 2011, Lexis
V. The Importance of Procedural Justice¶ In the context of detentions, "
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make recommendations about how these rules could be implemented in a DTC model.

All branches are key – allowing one branch to dominate skews the process and destroys solvency.

David Welsh, J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 2011, Lexis
Under the current detention regime, there appears to be little in the way of
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By minimizing bias, a major roadblock to reaching accurate decisions is cleared.

The legislative process increases public awareness and debate which is key to resolving the contentious nature of Obama’s demands- even if stakeholders don’t agree with the proposal, the aff’s process ensures embrace, not backlash.

Sillivana, 2009 (Assistant Professor of Law, Paul M. Herbert Law Center, Louisiana State University.“Lincoln’s Constitutionalism in Time of War: Lessons for the War on Terror?” Article: “INTERNATIONAL LAW AND DOMESTIC LEGITIMACY: REMARKS PREPARED FOR LINCOLN’S CONSTITUTIONALISM IN TIME OF WAR: LESSONS FOR THE CURRENT WAR ON TERROR? Chapman Law Review. Spring 2009. Web, Acc 8/14/2013 at http://www.chapmanlawreview.com/?p=1514)
Moreover, the incorporation of international law does not preclude legislative override where necessary.
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even if that outcome reflects a decision against the passage of any legislation.

It’s a sequencing question- Congressional action to affirm international law provides the proper framework for legitimate executive action. Gitmo proves structural limitations are a prerequisite to executive action.

Sillivana, 2009 (Assistant Professor of Law, Paul M. Herbert Law Center, Louisiana State University.“Lincoln’s Constitutionalism in Time of War: Lessons for the War on Terror?” Article: “INTERNATIONAL LAW AND DOMESTIC LEGITIMACY: REMARKS PREPARED FOR LINCOLN’S CONSTITUTIONALISM IN TIME OF WAR: LESSONS FOR THE CURRENT WAR ON TERROR? Chapman Law Review. Spring 2009. Web, Acc 8/14/2013 at http://www.chapmanlawreview.com/?p=1514)
B. Extra-Executive Structural Regulations¶ International law provides a substantive framework for
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‘humane’ and ‘appropriate’ treatment to the discretion of unknown officials.”73