Tuesday, August 21, 2012

LD 2012 Due Process Value Framework

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


This post will provide a foundation for a value/criterion framework for the Due Process Lincoln Douglas topic for Sep/Oct 2012.  There are many values that can be applied to varying degrees of effectiveness depending on how the debater chooses to justify it and what warrants can be supplied.  There are several theories about how to debate a value/criterion case and for those, I leave it to you and your coach to decide how much of the case to devote to justifying the value and how much to dedicate to preempting potential Neg values.
I would like to identify some possible values and provide some links and warrants to help you develop a suitable framework which meets the objective of your cases.

Values, Rights, Constitutional Protections
The focus of the resolution is the extension of constitutional due process protections which we have defined in the introductory analysis as the preservation of one's natural rights by guaranteeing fair and impartial procedures are applied as enumerated in the U.S. Constitution.  It can be summarized, the constitution sets forth requirements which protect the rights of life, liberty and property for all persons.  The values upheld by the constitution are not necessarily enumerated in a precise way, but I think most people would agree as a legal document, these include justice, rule of law and equality.  Some may also add liberty and democracy as values but I think these can be trickier to argue in the context of this resolution.

Liberty has special meanings.  There is an inherent freedom which conveys the idea each individual is born free and autonomous and so there is a kind of unrestrained liberty.  On the other hand, unrestrained liberty though natural, may not always be desirable in the context of society.  In most cases, society demands individuals limit their freedom at the point it interferes with anothers freedoms.  Therefore liberty is largely defined in a cultural context and is not wholly universal.

Democracy may be considered a value in that it conveys the idea people have an equal voice in how they are governed but once again, government places cultural limitations on natural rights.  There exists the idea of the so-called social contract and the relinquishing of certain freedoms in order to enjoy the benefits of societal living and certainly, there are governments which are not democratic but still protect the natural rights of their citizens.

Certainly, we need not be constrained to the values implicit in the constitution.  Due process has its foundation in International Law and is promoted in the Universal Declaration of Human Rights so one is free to draw values from the entire context of human rights.

The Syllogism
Its rare that a resolution so easily lends itself to development of a syllogism that directly yields a potential value and criterion framework.  I had hinted in a previous post, the basic conclusion of the resolution can be reworded and simplified by stating, "due process protections ought to be extended/granted to individuals accused of terrorism".  By establishing the major and minor premises:

___________ ought be extended/granted to individuals accused of terrorism (major premise)
Due process protections uphold _____________  (minor premise)

We need only supply the missing term in the blank spaces to determine suitable values.  Remarkably, using this particular syllogism, the value can be expressed in the major premise and the value criterion becomes, in every case, due process.  For example, using justice as value the syllogism becomes, justice ought to be granted to individuals accused of terrorism.  Due process protections uphold justice, therefore due process should be extended to individuals accused of terrorism. Justice is our value, due process is the standard which upholds the value so by extending due process the value is promoted.

You may be able to create other syllogisms or may choose another way of establishing a value/criterion.  I am only showing a way which is robust, remarkably versatile and I hope, simple to understand. Therefore, for each of the values I give below, I suggest the criterion of "due process".

The Philosophy of Due Process
As you read through this and the evidence I have provided, you will quickly realize there is no classical philosophy and no post-modern philosophy.  This framework is a little more pragmatic, relying on scholarly sources and a legal foundation for the premises.  The philosophy will come later.  For now, you can judge the quality of these ideas as you see fit.


The Values of Primacy of the Individual, Limitation of Official Power

International terrorism is universally perceived as a crime. There are two principle models to manage crime and there is a good chance you may encounter these ideas in your research.  These models are known as the Crime Control Model which focus is upon efficient adjudication and the Due Process Model which objective is to eliminate human error in the adjudication process.  In many ways I see parallels in the status quo in the debate of extending due process rights to accused terrorists and the desire to incapacitate their ability to continue their activities as swiftly and forcefully as necessary.  I can view this debate as an expression of the conflict between the Due Process and Crime Control Models.

Packer 1968:
[The Crime Control] model, in order to operate successfully, must produce a high rate of apprehension and conviction, and must do so in a context where the magnitudes being dealt with are very large and the resources for dealing with them are very limited. There must then be a premium on speed and finality. Speed, in turn, depends on informality and on uniformity; finality depends on minimizing the occasions for challenge. The process must not be cluttered up with ceremonious rituals that do not advance the progress of a case. Facts can be established more quickly through interrogation in a police station than through the formal process of examination and cross-examination in a court. It follows that extrajudicial processes should be preferred to judicial processes, informal operations to formal ones. But informality is not enough; there must also be uniformity. Routine, stereotyped procedures are essential if large numbers are being handled. The model that will operate successfully on these presuppositions must be an administrative, almost a managerial, model.

The presumption of guilt is what makes it possible for the system to deal efficiently with large numbers, as the Crime Control Model demands. The supposition is that the screening processes operated by police and prosecutors are reliable indicators of probable guilt. Once a man has been arrested and investigated without being found to be probably innocent, or, to put it differently, once a determination has been made that here is enough evidence of guilt to permit holding him for further action, then all subsequent activity directed toward him is based on the view that he is probably guilty. The precise point at which this occurs will vary from case to case; in many cases it will occur as soon as the suspect is arrested, or even before, if the evidence of probable guilt that has come to the attention of the authorities is sufficiently strong. But in any case the presumption of guilt will begin to operate well before the “suspect” becomes a “defendant.”

The Crime Control Model, as we have suggested, places heavy reliance on the ability of investigative and prosecutorial officers, acting in an informal setting in which their distinctive skills are given full sway, to elicit and reconstruct a tolerably accurate account of what actually took place in an alleged criminal event. The Due Process Model rejects this premise and substitutes for it a view of informal, nonadjudicative fact-finding that stresses the possibility of error. People are notoriously poor observers of disturbing events—the more emotion-arousing the context, the greater the possibility that recollection will be incorrect; confessions and admissions by persons in police custody may be induced by physical or psychological coercion so that the police end up hearing what the suspect thinks they want to hear rather than the truth; witnesses may be animated by bias or interest that no one would trouble to discover except one specially charged with protecting the interests of the accused (as the police are not). Considerations of this kind all lead to a rejection of informal fact-finding processes as definitive of factual guilt and to an insistence on formal, adjudicative, adversary fact-finding processes in which the factual case against the accused is publicly heard by an impartial tribunal and is evaluated only after the accused has had a full opportunity to discredit the case against him. Even then, the distrust of fact-fording processes that animates the Due Process Model is not dissipated. The possibilities of human error being what they are, further scrutiny is necessary, or at least must be available, in case facts have been overlooked or suppressed in the heat of battle.

The Due Process Model holds a presumption of innocence, but one should not consider presumption of guilt (after investigation) and presumption of evidence as polar opposites. As explained by Packer: "The presumption of innocence is not its opposite; it is irrelevant to the presumption of guilt; the two concepts are different rather than opposite ideas...The presumption of innocence is a direction to officials about how they are to proceed, not a prediction of outcome. The presumption of guilt, however, is purely and simply a prediction of outcome. The presumption of innocence is, then, a direction to the authorities to ignore the presumption of guilt in their treatment of the suspect."

Packer 1968:
The combination of stigma and loss of liberty that is embodied in the end result of the criminal process is viewed as being the heaviest deprivation that government can inflict on the individual. Furthermore, the processes that culminate in these highly afflictive sanctions are seen as in themselves coercive, restricting, and demeaning. Power is always subject to abuse—sometimes subtle, other times, as in the criminal process, open and ugly. Precisely because of its potency in subjecting the individual to the coercive power of the state, the criminal process must, in this model, be subjected to controls that prevent it from operating with maximal efficiency. According to this ideology, maximal efficiency means maximal tyranny. And, although no one would assert that minimal efficiency means minimal tyranny, the proponents of the Due Process Model would accept with considerable equanimity a substantial diminution in the efficiency with which the criminal process operates in the interest of preventing official oppression of the individual.

The Value of Fairness

Due process and fairness are often mentioned together in terms which declare that criminal inquiries should maintain the principles of due process and fairness and indeed, at times it seems due process and fairness are synonyms for one another but I think that one can easily defend fairness as a value and due process as a means to achieve it.

Holder 2012:
Much has been made of the distinction between our federal civilian courts and revised military commissions.   The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.

 Our criminal justice system is renowned not only for its fair process; it is respected for its results.   We are not the first Administration to rely on federal courts to prosecute terrorists, nor will we be the last.   Although far too many choose to ignore this fact, the previous Administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice.
But federal courts are not our only option.   Military commissions are also appropriate in proper circumstances, and we can use them as well to convict terrorists and disrupt their plots.   This Administration’s approach has been to ensure that the military commissions system is as effective as possible, in part by strengthening the procedural protections on which the commissions are based.   With the President’s leadership, and the bipartisan backing of Congress, the Military Commissions Act of 2009 was enacted into law.   And, since then, meaningful improvements have been implemented.

 It’s important to note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our civilian courts.   They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.   They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses.   They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment.   And they secure the right to appeal to Article III judges – all the way to the United States Supreme Court.   In addition, like our federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of intelligence gathering, and for the safety and security of participants.

NYC Bar Association 2004:
As we have suggested, the protections for the detainee that are recognized by the Supreme Court in the context of criminal proceedings form the basis of a regime acknowledged by our society as necessary to ensure fair procedure and a reliable result in determining criminal liability. In view of this societal consensus, these protections provide not merely the substance of fairness to the detainee -- both a fair process and, hopefully, a just result -- but also the appearance of fairness. In short, they lend legitimacy both to the process and to its outcome. The significance of this consideration extends beyond the boundaries of our society. Just as the use of indefinite detentions may encourage repression abroad, so too may any prominent resort to military commissions. Our leaders have not been shy in trumpeting the civic virtues of our constitutional system to other nations, including those with little, if any, tradition of respect for individual autonomy and limitation on government authority. Necessarily, the manner in which our government actually conducts itself in dealing with perceived misconduct both by citizens and by foreigners -- including acts that may be considered threats to our civil peace and security -- offers the world a strong indicator as to whether our system of self-governance actually adheres to the high standards that we profess to honor.

The Value of Protecting the Innocent

The destruction wrought by terrorism upon the innocent is well known but less talked about is the toll paid by the innocent in the prosecution of the War on Terror.  Many authors speak how due process protects the innocents accused of terrorism.

Madison 2012:
The United States has based its worldwide reputation on protecting freedom. We have taken up the banner of liberty and protected human rights around the world, both by example and with blood. Did our nation's warriors sacrifice their lives so that politicians could undermine liberty? If the “War on Terror” cannot be won without destroying the Constitution, then have we not already lost?

When the rule of law is destroyed, we are ruled by the whims of men. Without due process, there is nothing protecting the innocent from mistakes made by bureaucrats. We are no longer free and we can't call ourselves free, nor can we wage expensive, fruitless wars to bring others “freedom”.

This expansive, undefined and dangerous detention power is a power the Congress is unauthorized to grant. The Constitution guarantees the Rule of Law, and Congress can act only within its confines. The right to be faced with charges after an arrest is sacred.

Harvard 2012:
Overall, this thesis provides insight into how the structure of political institutions interacts with legal frameworks during emergencies to contribute to the formulation of preventive detention systems. Beyond explaining the mechanisms of such interactions, this thesis contributes to an understanding of how political structures impact human rights within the broader context of security policymaking. The findings of this investigation are instructive for answering a number of questions regarding the relationship between decision-making and the protection of human rights.

Beyond the theoretical contributions of this study, this research has significant real-world implications. Given the rise of global terrorism within the past decade, states may need to create preventive detention systems. The findings of this research can identify the processes of such decision-making and selection of legal framework that are likely to result in preventive detention with sufficient due process protections for terrorist suspects. This is more important than ever before since an increase in the level of terrorism worldwide suggests that more suspects, including many innocent individuals, could be detained for purely security reasons. Accordingly, it is vital that states adopt detention systems that protect the fundamental human right to due process guaranteed under the rule of law. Moreover, the findings of this research can be generalized beyond security-detention, to the policy-formulation of detention regimes relating to immigration detention, pre-trial detention, and health-based quarantines. In each of these areas, the policy implications from this research could provide meaningful input in creating systems sensitive to and protective of due process.

Link to Philosophy of Due Process

Sources used:

Two Models of the Criminal Process, Herbert L. Packer
Source: Reprinted from The Limits of the Criminal Sanction by Herbert L. Packer, with the permission of the publishers, Stanford University Press. © 1968 by Herbert L. Packer.

The Indefinite Detention of "Enemy Combatants": Balancing Due Process and National Security in the Context of the War on Terror, The Association of the Bar of the City of New York Committee on Federal Courts , February 6, 2004
(revised March 18, 2004)

Social Justice Research, Vol. 14, No. 3, September 2001 ( C ° 2002), When Due Process Is of No Consequence: Moral Mandates and Presumed Defendant Guilt or Innocence
Linda J. Skitka1; and David A. Houston

Protecting the Innocent as the Primary Value of the Criminal Justice System
Susan A. Bandes 2008

It is a Constitution We Are Expounding, Collected Writings on Interpreting, Our Founding Document
Foreword by laUrence H. tribe

The Preamble to the Constitution of the United States
Donald S. Lutz, University of Houston, 1982

The Washington Times, The Smith-Amash amendment and NDAA: A loss and a win for liberty
Tiffany Madison, May 18, 2012

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

Attorney General Eric Holder Speaks at Northwestern University School of Law
Chicago ~ Monday, March 5, 2012


  1. yes yes, they are all well-learned men&women, but I still don't get why the government shouldn't extend due process to ACCUSED terrorists. How we treat terrorist I think is a different debate; however,people who are simply ACCUSED of it...a person ought be given a fair trial at least? I mean, how would one argue the negative on this one?

    1. I was wondering how long before some one said, "what about the negative?". Look for a post on this within the next few days and I hope it is sufficient to answer your questions.

    2. Thank you for putting this up. I am just starting in an LD debate class and have been worried how to present my first case. It has been a great guidline for me and help for what my case needs to look like. Thanks again.


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