Friday, September 7, 2012

LD 2012 Due Process Neg - part 2

For part one of this topic analysis, click here.
For links to other LD topics, click here

The "Ought" Debate

The Negative can win the legal debate if that is the direction taken by Affirmative by simply drawing a few exceptions around the position taken by Affirmative.  At present, the law, as interpreted by the Supreme Court extends due process protection to ALL persons regardless of citizenship, as long as those persons are within the jurisdiction of the U.S. Court system.  There is no easy way for Neg to refute this.  But, the big caveat is the noncitizen person accused of terrorism must be within the jurisdiction of the court.  Those who have not entered the U.S. are not extended constitutional protects.  Neg wins.

Cole 2010:
"The notion that noncitizens are entitled to the same constitutional protection for their basic human rights as citizens must be qualified in at least one respect. The Supreme Court has historically treated foreign nationals outside our border very differently from those within our jurisdiction. As the Court recently noted, "it is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States ... "

Nevertheless, it usually is never that cut-and-dry in debate and the Affirmative debater will also be writing a Negative case so is unlikely to leave that kind of hole in her case.  The point is, we have a legal framework but there is one word in the resolution which makes this a Lincoln-Douglas debate and not a Public Forum debate; the word "ought" and "ought" signals an opportunity to enter a hypothetical world where we are free to talk about things outside the pale of conventional jurisprudence and imagine a alternative position.  Basically it can be an Aff position which says, "Yes, I know in many circumstances we legally deny due process protections to noncitizens but I am saying, we need to change that."

However, "ought" can also work for the Neg who can say, "Yes, I know we extend due process protections to noncitizens accused of terrorism who are held in U.S. territories, but in some cases, regardless of citizenship, it is not the wise thing to do and we need to change that."

Cole 2010 continues:
"To assert that noncitizens are entitled to substantially the same constitutional rights protections as citizens is not to assert that these rights are absolutes, or that the Constitution is a suicide pact. With the exception of the bans on slavery and torture, most constitutional rights are not absolutes, but presumptive protections that may be overridden by compelling showings of governmental need and narrow tailoring. Thus, for example, the First Amendment creates a strong presumption of protection for speech, but that presumption is overridden where the speech is intended and likely to incite imminent lawless action."

Realizing there is flexibility in constitutional law, that is, there can be compelling reasons to suspend or modify certain principles, we can explore the idea the nation's security interests, provide a compelling reason.  I think many debaters will take this course because it is simple enough and evidence exists.

The Security Imperative

The major premise of this case would be extension of due process protections to noncitizens accused of terrorism is an unacceptable national security risk.

Okey 2012 provides a framework:
At the heart of the purpose and importance of every state is the protection of lives and environment for the survival of private enterprises. This is the essence of the social contract mechanism that accounted for the evolution of states at the first instance. According to Thomas Hobbes, lives of individuals in the 'state of nature' were 'solitary, poor, brutish, nasty and short'. It was a state in which survival of the fittest was the order of the day as a result of statelessness, absence of rights and contracts. In other to avoid the catastrophic situation that characterized the ' state of nature' as a result of lack of contract, mutual respect for individual rights and man's inhumanity to man,individuals willingly decided to cede or give up some of their fundamental rights to a sovereign entity called 'State' with the mandate and expectation of this neutral entity creating laws that would regulate their social interactions Hobbes (1651). The aforementioned contract was latter reconceptualized by John Locke to include another dimension whereby individuals willingly gave up their rights of self defence to this neutral entity called 'state' in exchange for protection of their lives, liberty and the property of all individuals within it. And that the legitimacy and continued existence of these 'states' is dependent upon their ability to fulfil their part of the 'social contract bargain' (Locke 1689)

By establishing the principle objective of any state is the security of its people and the preservation of itself, it then becomes possible to exploit the fact, significant security risks are exposed by due process procedures and these risks outweigh the harms of denying due process protections.  The impact calculus is a straight-up and obvious utilitarian argument centered on the magnitude of the harms.  The values of security and protection of the innocent (the U.S. population) are easy to set up.  Liberal references to social contract theory, consequentialism and realism frames up the premises.

Harbour 1992:
"In dealing with the questions of war and peace, one of the most important of the strand of consequentialism is known as realism. Although some realists simple deny applicability of morality to state behavior, others believe leaders, acting as trustees for their citizens, are morally required take actions to promote their nations good, even at the expense of foreigners."

For the evidence of risk in extending due process to persons accused of terrorism, I leave it to you to find.  It is abundant, even in sources which would otherwise be cited in favor of the Aff position.  Because many sources do not adequately address the security question, it is an approach that may work well for the Negative in a values-centered debate.  Below I have cited a few (not so good) sources to get you started.

Rethinking the Neg

I really wanted to develop a case idea in which terrorism exists in an alternative world where contemporary jurisprudence and western concepts of justice are meaningless, and in that context due process has no value and is ineffective as an answer to the violence against U.S. culture.  I conceptualized it as the 'Red Pill/Blue Pill' case. In the end, I found it too difficult to find literature which could be comprehensible to the average high-school debater and frankly I am not sure I completely understood it.

In the course of researching that idea, I did conceptualize another point of view which I will throw into your lap, unrefined, half-baked and probably just begging to be turned by the clever Affirmative pragmatist.

Resetting the Mindset

The basic concept of this Negative position is reset your thinking.  The major premise is, we should not extend constitutional due process to persons accused of terrorism because we should not accuse persons of terrorism.  Release them all, withdrawal the troops and end the Global War on Terror.  Reboot the system and start over.  I think there are two ways to do this, one is eliminate the rhetoric of terrorism and certainly there are plenty of writers to support that point of view.  Another is send home everyone accused of terrorism and end the War on Terror.  Is it a legitimate advocacy for Neg?  You decide.  It will need plenty of warrants.

The definition of terrorism is a construction to legitimize war
Chomsky 2002:
"...there is an operational definition of terrorism, the one that is actually used -- it means terror that they carry out against us -- that's terrorism, and nothing else passes through the filter. As far as I know, that's a historical universal, I can't find an exception to that. You might try. For example, the Japanese in China and Manchuria [claimed they] were "defending" the population against Chinese terrorists and going to create an earthly paradise for them if they could control the terrorists. The Nazis in occupied Europe [claimed they] were "defending" the "legitimate" governments like Vichy and the population from the terrorist partisans who were supported from abroad, as indeed they were. They were run from London, Poland and France and so on. ... Also, as far as I am aware, this is virtually universal among intellectuals, educated folks like us. Apart from statistical error, this is the line that they take. Now, it doesn't look that way in history, but you have to remember who writes history."

The War on Terror undermines its own legitimacy.
Alam 2004:
"The bogey of America’s ‘global’ and ‘unending war’ on terrorism will soon face another test. While the United States and its neocolonial allies have incarcerated thousands in Gulags spread across the world – without charges and without recourse to law – the ‘war against terrorism’ has produced very few convictions for terrorist crimes against the United States. If the al-Qaida is indeed a formidable adversary, with a global reach, and with sleeper cells in the United States itself, trained in the manufacture and use of WMDs, its failure to launch even a single operation against the United States since September 11, 2001, poses a problem for the credibility of the ‘war against terrorism.’
It is of course all too easy for the United States to take credit for this failure. ‘Look how good we have been against this formidable foe. Our intelligence failed utterly before 9-11, but we have since fixed all the problems.’ Alternatively, they might argue that they are fighting these terrorists in Baghdad and Najaf instead of Boston and New York. But this rhetoric will wear out over time.
If indeed al-Qaida fails to launch another attack against American interests, on American soil or elsewhere, Americans too will begin to ask: Did the United States overreact. Worse, they might question if this war was a phony, a cover to curtail liberties, to launch preventive wars, to line the pockets of corporate executives with tens of billions stolen from American tax-payers. Have so many Americans died in vain – for a phony war? Have Americans died for Israel – to fulfill its strategic objective of balkanizing, pulverizing the larger Arab states? Once Americans begin to ask these questions, the consequences could be unpredictable for Israel and for the exercise of American power in the world."

The WoT feeds the expansion of terror.
Miliband 2009:
"Historians will judge whether it has done more harm than good," Miliband says, adding that, in his opinion, the whole strategy has been dangerously counterproductive, helping otherwise disparate groups find common cause against the west.
"The more we lump terrorist groups together and draw the battle lines as a simple binary struggle between moderates and extremists or good and evil, the more we play into the hands of those seeking to unify groups with little in common," Miliband argues, in a clear reference to the signature rhetoric of the Bush era. "We should expose their claim to a compelling and overarching explanation and narrative as the lie that it is."
"Terrorism is a deadly tactic, not an institution or an ideology,"

The WoT perpetuates itself
Zizek 2005:
"What legitimizes such biopolitics is the mobilization of the fantasmatic dimension of the potential/invisible threat: it is the invisible (and for that very reason all-powerful and omni-present) threat of the Enemy that legitimizes the permanent state of emergency of the existing Power (Fascists invoked the threat of the Jewish conspiracy, Stalinists the threat of the class enemy - up to today's "war on terror," of course). This invisible threat of the Enemy legitimizes the logic of the preemptive strike: precisely because the threat is virtual, it is too late to wait for its actualization, one has to strike in advance, before it will be too late... In other words, the omni-present invisible threat of Terror legitimizes the all too visible protective measures of defense (which pose the only TRUE threat to democracy and human rights, of course). If the classic power functioned as the threat which was operative precisely by way of never actualizing itself, by way of remaining a threatening GESTURE (and this functioning reached its climax in the Cold War, with the threat of the mutual nuclear destruction which HAD to remain a threat), with the war on terror, the invisible threat causes the incessant actualization - not of itself, but - of the measures against itself. The nuclear strike had to remain the threat of a strike, while the threat of the terrorist strike triggers the endless series of strikes against potential terrorists."
Our server is in an endless loop.  Its time to reboot.
(The concept will obviously need work.)

Sources used:

Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?, March 2010
David Cole, Professor of Law, Georgetown University Law Center

A New Legal Framework against Terrorism: A National Security Court, Part I
Posted by Yale Undergraduate Law Review on Jul 12, 2012 in Domestic Law
By Julio Guillermo Garzon


Homeland Secutiry Affairs
Volume IV No. 3: October 2008
Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects
Stephanie Blum

George Mason University
Noncombatant Deaths: Weighing the Consequenses
Dr. Frances Harbour

Information Clearing House
The Clash Thesis: A Failing Ideology?
by M. Shahid Alam

Distorted Morality: America's War on Terror?
Noam Chomsky
Delivered at Harvard University, February 2002

'War on terror' was a mistake, says Miliband
Foreign secretary argues west cannot kill its way out of the threats it faces
Julian Borger, Amethi, India
The Guardian, Wednesday 14 January 2009
How does racism provide a metric for biopolitics of security?
By Scott Mason on July 7, 2009

Biopolitics: Between Terri Schiavo and Guantanamo
Slavoj Zizek
Artforum - December 2005

Cyrille Begorre-Bret

Jean Baudrillard - The Spirit of Terrorism
Translated by Dr. Rachel Bloul
Le Monde 2 November 2001

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