Sunday, August 19, 2012

LD 2012 Due Process Policy Framework

For part one, click here.
For links to other LD topics, click here

The Affirmative "Policy" Position

I see several possible approaches to the affirmative and negative cases. For example, I think negative can take a very pragmatic view of the topic and argue, in a policy debate kind of way, that current restrictions on extending due process protections to non-citizens accused of terrorism is necessary and more importantly effective in reducing terrorism. Certainly, there is evidence to suggest that present policies have prevented a repeat of a 9-11 style attack in the U.S. and targeted kill policies (which also deprive individuals of due process protections) have reduced the impact of known terrorists and their networks. I mention this neg approach as a heads up to affirmative debaters deciding how to argue their own cases and if affirmative feels such negative positions can be effective, then it may be worthwhile to build preemptive arguments into the affirmative case. This could be done by showing that the legal basis behind current policy of denying due process to persons accused of terrorism, not only has been ineffective in preventing terrorism but in fact introduces worse harms which undermine the fabric of democracy or possible dehumanize individuals by denying them their basic human rights without benefit of redress or protection from legislative abuse.

By "Policy" position, I do not mean the affirmative is going to write a case which reads like a policy debate case (though certainly, policy affirmatives are excellent models for this framework) and it does not mean it should be debated like a policy case although many elements of the policy debate format cross over into LD. I do mean, the policy position will be structured as a comparison of advantages or disadvantages in which impacts are used to weigh the value structure inherent in most LD debate. Therefore, we shall examine the "policy" of the government proposed by the resolution and support it by advocating that the benefits of the policy outweigh the harms.


"Why of course the people don't want war. Why should some poor slob on a farm want to risk his life in a war when the best he can get out of it is to come back to his farm in one piece? Naturally the common people don't want war; neither in Russia, nor in England, nor in America, nor in Germany. That is understood. But after all, it is the leaders of the country who determine policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country."
-Hermann Goering, April 18, 1946

The Current Situation

People are willing to give up some liberties to protect their security interests
Whitehead 2002:
In an NBC News/Wall Street Journal poll, seventy-eight percent of those polled stated they would accept new security laws, even if it meant fewer privacy protections, and seventy-eight percent stated they would support surveillance of Internet communications.  NBC News/Wall Street Journal: 72% Say U.S. Is Moving in the Right Direction, THE HOTLINE, Sept. 17, 2001. Congressional leaders from both parties have articulated this sentiment. House Minority Leader Richard A. Gephardt (D-Mo.) stated two days after the attacks, “[w]e’re in a new world where we have to rebalance freedom and security.”Eric Pianin & Thomas B. Edsau, Terrorism Bills Revive Civil Liberties Debate, WASH. POST, Sept. 14, 2001, at A16. Senate Minority Leader Trent Lott (R-Miss.) echoed this sentiment, stating, “when you’re at war, civil liberties are treated differently.”
Shaughnessy v. United States ex rel.Mezei, 345 U.S. 206, 212 (1953).

Due process protections are not extended to non-citizens outside of the United States
Whitehead 2002:
Constitutional due process protections are not extended to aliens who have not yet entered the United States. In United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990), the Court stated that “[i]t is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside the territorial boundaries.”Likewise, illegal aliens who have been intercepted at the border and deemed “excludable”may be subjected to summary exclusion without due process.  Zadvydas, 121 S. Ct. at 2500 (internal citations omitted). Accordingly, this analysis does not address the application of the Patriot Act or Justice Department actions with regard to excludable aliens.

Public Opinion

Kull 2006:
Americans strongly support according terrorism suspects the civil and human rights provided by international treaties and U.S. law. These include: the right to a hearing, to a lawyer, to not be held in secret or imprisoned indefinitely without charges,and to be neither tortured nor threatened with torture. Americans also believe that U.S. facilities holding such detainees should be monitored by the Red Cross. By a two-to-one margin most Americans believe that the rules governing the treatment of terrorism suspects should be the same for citizens and non-citizens. Americans are divided on the question of whether the U.S. government currently allows interrogators to torture suspected terrorists to get information

Americans Support Full Due-Process Rights for Terrorism Suspects nid=&id=&pnt=228&lb=hmpg1
Americans, whether Republican or Democrat, show high levels of support for giving detainees due-process protections whether they are captured outside or arrested inside U.S. borders. They also believe that the legal protections accorded terrorism suspects should be the same for U.S. citizens and non-citizens.
Respondents were asked about terrorism suspects captured outside of the United States who are not ordinary soldiers and were told that such prisoners had a number of rights according to international treaties, but that “some people say when someone is suspected of planning or committing terrorism, and is not a regular soldier, the person should not have certain rights.” Nonetheless in every case, support for legal protections was robust: 73 percent said such suspects should have the right to request and receive a hearing; 66 percent said their home government and families should be informed of their capture and location; 73 percent said their treatment should be monitored by the Red Cross or another international organization; 75 percent said they should not be tortured and 57 percent said they should not be threatened with torture.


The War on Terror has significantly undermined the U.S. Constitution
Schaffer 2002:
These Fifth Amendment concerns focus most specifically on non-citizens. But due process rights are explicitly granted without regard to citizenship or immigration status. In 1896, the Supreme Court ruled in Wong v. United Statesthat immigrants as well as citizens enjoy rights guaranteed by the U.S. Constitution. This principle was reaffirmed again in 2001, when the Court ruled in Zadvydas v. Davisthat the due process clause applies to all persons within the boundaries of the United States, including deportable aliens. The abuses described above cannot be explained away by the immigration status of the detainees; in its dragnet approach, and its disregard for the fundamentals of criminal procedure, the government has seriously infringed upon the guarantee of due process under the law.
The Constitution of the United States separates the federal government into three distinct branches and provides a system of "checks and balances" that prevent any one branch of government from accumulating excessive power. The Executive branch, by using Executive Orders and emergency interim agency regulations as its tools of choice for combating terrorism, has deliberately chosen methodologies that are largely outside the purview of both the legislature and the judiciary. These Executive Orders and agency regulations violate the U.S. Constitution, the laws of the United States, and international and humanitarian law. As a result, the war on terror is largely being conducted by Executive fiat and the constitutional guarantees of both citizens and non-citizens alike have been seriously compromised.
Additionally, the actions of the government have been shrouded in a cloak of secrecy that is incompatible with democratic government. Hundreds of non-citizens have been rounded up and detained, many for months, in violation of constitutional protections, judicial decisional authority and INS policy. The government has repeatedly resisted requests for information regarding the detainees by loved ones, lawyers and the press; it has denied detainees access to legal representatives; and has conducted its hearings in secret, in some cases denying the very existence of such hearings. In a democracy, the actions of the government must be transparent or our ability to vote on policies and the people who create those policies becomes meaningless.
Perhaps the most disturbing aspect of the government's actions has been its attack on the Bill of Rights, the very cornerstone of our American democracy. The War on Terror has seriously compromised the First, Fourth, Fifth and Sixth Amendment rights of citizens and non-citizens alike. From the USA PATRIOT Act's over-broad definition of domestic terrorism, to the FBI's new powers of search and surveillance, to the indefinite detention of both citizens and non-citizens without formal charges, the principles of free speech, due process, and equal protection under the law have been seriously undermined.

The Western War on Terror creates an ethical delimma that dehumanizes individuals 
Yusuf 2012:
Though some writers have identified specific human rights as significant casualties in the struggle against terrorism, it has been argued that the notion of ‘equality of esteem’ which goes to the heart of all human rights is under greatest threat as a result of ‘judging people not by the fact that they simply are but by where they are from and by which culture or faith it is to which they belong.’ The fundamental flaw then springs from the categorization of people into ‘good’ and ‘bad’, as this distinction is seen to be drawn on arbitrary grounds.
 The disturbing consequence of such a paradigm is that ‘[it] creates an “ethical dilemma” [and one that]leads them to see human rights not as a subject concerned with the powerless individual wherever he or she might be….but rather as an idea which finds its clearest expression in the West…In this way “human is taken out of “human rights,” the particular is superseded by the general, and the subject becomes one that is more about the values than it is about the people.’

U.S. policies have damaged world opinion. Policies such as extraordinary renditions undermine the foundation of civil society
Congressional Hearing; Subcommittee On International Organizations, Human Rights and Oversight, 2007:
In the wake of the horrific attacks of 9/11, we were moved by the extraordinary support—the outpouring of sympathy—from across the globe. I shall never forget that headlines in the French newspaper—Le Monde—that proclaimed, ‘‘Today, we are all Americans.’’ Sadly, that support has eroded dramatically. In previous hearings, well regarded pollsters testified how world opinion has turned against the United States in recent years. And, the GAO has concluded that this reality has profound consequences for our national interests. Like American public opinion—foreign public opinion has been affected by the war in Iraq. By disturbing images of prisoner abuse at Abu Ghraib. By the Administra-tion’s flouting of the Geneva Conventions at Guantanamo. And by other unnecessary excesses in the execution of our counterterrorism strategy. One initiative that has prompted severe rebuke—particularly from Europe—is the practice of extraordinary renditions.
These extraordinary renditions are utterly inconsistent with our broader foreign policy goals of promoting democracy and the rule of law, the very foundations of civil society. These practices have brought us universal condemnation and have frus-trated our efforts to work in a concerted way with our allies in fighting terrorism. They also yield no good intelligence. But you don’t need to take my word for it. Former CIA Director Porter Goss himself has said that ‘‘torture is counter-productive.’’ And Lt. Gen. John F. Kimmons, the Army Deputy Chief of Staff for Intelligence, has said ‘‘No good intelligence is going to come from abusive practices. I think the empirical evidence of the last five years, hard years, tell us that.’’
Many other military officials have also warned that abusive treatment of detainees endan-gers American servicemen and women who might face similar treatment at the hands of our enemies.
More importantly, these renditions not only appear to violate our obligations under the UN Convention Against Torture and other international treaties, but they have undermined our very commitment to fundamental American values. These val-ues are what define us a people, as a nation. When we undermine them, we under-mine everything we stand for, everything we are.
Now it is well known that America’s image in Europe has de-clined quite steadily over the last couple of years, and some of the reasons for that were cited earlier this afternoon, in part due to the decision of the United States to go to Iraq, human rights abuses at Abu Ghraib and allegations of torture at Guantanamo bay. But we seemed to move away from some of these dark days in the transatlantic relationship as we moved into 2005, as both sides of the Atlantic I think, both Europe and the United States, made a conscious effort to renew transatlantic ties.
When it was alleged, however, later in 2005—at the end of 2005 that the United States was detaining top terror suspects in so-called ‘‘black sites’’ in eight countries and that the CIA was flying terror suspects between secret prisons and countries in the Middle East that have been known to torture detainees, the United States image in Europe took another dive. On the particular issues of rendition, as we have heard earlier, Europeans appear to have two primary concerns, one, Washington’s unwillingness to grant due process to terror suspects and, two, vio-lation of suspects’ human rights during interrogation. Now the allegations that have been submitted and the resulting investigation by the European Parliament have in many ways in my mind confirmed Europeans’ worst fears. Many Europeans, par-ticularly at the public level, believe that they have plenty of evi-dence right now to prove a long-suspected gap between United States stated policies and U.S. action. As a result, U.S. promises not to torture terror suspects and to uphold the fundamental pil-lars of international law are no longer seen as credible.

The solution to terrorism is becoming the cause.
Greenwald 2010:
The issue here is causation, not justification.   The great contradiction of American foreign policy is that the very actions endlessly rationalized as necessary for combating Terrorism — invading, occupying and bombing other countries, limitless interference in the Muslim world, unconditional support for Israeli aggression, vast civil liberties abridgments such as torture, renditions, due-process-free imprisonments — are the very actions that fuel the anti-American hatred which, as the U.S. Government itself has long recognized, is what causes, fuels and exacerbates the Terrorism we’re ostensibly attempting to address. 
Three other brief points illustrated by this Shahzad conviction:  (1) yet again, civilian courts — i.e., real courts — provide far swifter and more certain punishment for Terrorists than do newly concocted military commissions; (2) Shahzad’s proclamation that he is a “Muslim soldier” fighting a “war” illustrates — yet again — that the way to fulfill the wishes of Terrorists (and promote their agenda) is to put them before a military commission or indefinitely detain them on the ground that they are “enemy combatants,” thus glorifying them as warriors rather than mere criminals (see this transcript of a federal judge denying shoe bomber Richard Reid’s deepest request to be treated as a “warrior” rather than a common criminal); and (3) the Supreme Court’s horrendous decision yesterday upholding the ”material support” statute is, as David Cole explains, one of the most severe abridgments of First Amendment freedoms the Court has sanctified in a long time; this decision was justified by the need for courts to defer to executive and legislative branch determinations regarding “war,” proving once again that as long as this so-called ”war” continues as a “war,” the abridgments on our core liberties will be as limitless as they are inevitable.  At some point, we might want to factor that in to the cost-benefit analysis of our state of perpetual war.

Restriction of civil liberties does not reduce terrorism threats and harms democratic quality.
Gorman (undated):
My research has shown that, due in part to the international reach of this terrorist network, the restriction of civil liberties is relatively ineffective.[9] In addition, some of the post-9/11 legislation does not meet Wilkinson’s criteria, and therefore may inhibit and threaten American democracy.   However, I cautiously predict the erosion of civil liberties to decrease American democratic quality, but at the same time not pose a valid threat to democratic stability.

Link to value framework

Sources used:


Protecting Human Rights while Countering Terrorism
By Salma Yusuf on February 14, 2012

Office the United Nations High Commissioner for Human Rights, The Rights of Non-Citizens
United Nations, New York and Geneva, 2006

Fordham Urban Law Journal, Volume 30, Issue 4 2002 Article 6, Life, Liberty, and the Pursuit of Terrorists: An In-Depth Analysis of the Government’s Right to Classify United States Citizens Suspected of Terrorism as Enemy Combatants and Try those Enemy Combatants by Military Comission
Amanda Schaffer

Terrorism, the Future, and U.S. Foreign Policy, Updated April 11, 2003, Raphael Perl, Foreign Affairs, Defense, and Trade Division


Jun 22, 2010, Cause and effect in the War on Terror
By Glenn Greenwald

Oct 20, 2009,  A Rumsfeld-era reminder about what causes Terrorism
By Glenn Greenwald

Exploding the Myths of Terrorism
Dr Samir Rihani

American and International Opinion on the Rights of Terrorism Suspects
July 17, 2006

Due Process Protections in the War on Terrorism:
A Comparative Analysis of Security-Based Preventive Detention in the
United States and the United Kingdom, Mar 2012

The Terrorist Threat: Its Impact on American Civil Liberties and Democracy, Atlantic International Studies organization
Lindsay Gorman


  1. Where is the Neg argument? :(

  2. Its been up for weeks. Click the Lincoln-Douglas tab at the top of the page and find a link on the page that opens.


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