Monday, August 27, 2012

PF 2012 Proposed October Resolutions


EDIT Sept 1
The NFL has selected the moral obligation resolution.  I voted for the other one as i felt it would give us two possible points of view which offered different potential solutions.  Fine, the coaches have spoken.  We could always change the name from Public Forum to Philosophy Forum.  Now, what exactly is a developed country? Topic analysis starts here.


Resolved: Developed countries have a moral obligation to mitigate the effects of climate change.
Resolved: Adaptation should be prioritized above mitigation in response to climate change.

I predict PF Debaters will be talking about climate change in October.

The moral obligation debate is an incredibly LD-like resolution.  The second resolution creates a pretty clear division of ground for Pro and Con.  Pro will favor adaptation and Con will favor mitigation - both daunting choices.  I wonder...what will the judges say if Con tries to mitigate but Pro proves they can not.  Does Con automatically lose?  How much "mitigation" is enough? I mean, what if mankind stops all CO2 emissions and Milankovitch cycles continue to affect warming? What if warming is simply slowed down 0.001%, is it enough?

On the other hand, the first resolution is not so clear cut.  The Con ground seems clear enough if the position is simply contrary and Con says, we have NO moral obligation to mitigate but is naysaying debate?  It reminds me of a Monty Python bit about arguing. What if Con says, no, we have a moral obligation to adapt?

Time to vote on the resolution, coaches.

Sunday, August 26, 2012

LD 2012 Due Process Critical (K) Arguments


This is the last in my topic analysis series for the LD 2012 Sep/Oct resolution about extending due process protections to non-citizens accused of terrorism.  For other related posts in this series and other LD topics see the Lincoln Douglas page selector at the top of this blog.


Critical Debate in LD
In the past, there have been strong prohibitions about using so-called policy-style critical arguments in Lincoln Douglas debate.  I personally have copies of a league manual which specifically bans, for example, any debate which involves a criticism or suitability of the resolution itself.  Nevertheless, the various committees of the NFL have taken a concerted effort to update and reorganize its District Tournament Operations Manual which includes the "rules" for the various debate categories.  With few exceptions, many of the procedural rules dictating the kinds of arguments which are acceptable are absent.  Nevertheless, local districts tend to operate under their own paradigms which means, at the end of the round, all that matters is what the judge accepts within the context of that one round.  In my district for example, only a very limited number of judges will accept critiques or theory arguments in LD so its usually better to play it safe and not use those arguments.  Still, since it is possible to argue a kritik in an LD round in my district (once in a blue moon), I feel it is worthwhile as a coach to at least prepare my students for those kinds of debates and I do have some that write critical cases and use them from time to time even though these tend not to be full-blown policy-style "kritiks".  Most critiques can be worked into a conventional value framework.

A Critique of the Resolution
The resolution in the case is begging to be critiqued.  As we have noted at the outset of this topic analysis, there are well over 100 definitions for terrorism.  If the Affirmative and Negative are unable to agree on an acceptable definition, there is a chance the debate can breakdown into debate about definition and the substantial issues intended by the resolution framers will not be debated.  While it is unlikely to happen in most districts and tournaments, it can happen and that would be bad for education and debate.  Additionally, critical arguments are typically run based on the language of the Affirmative case.  The Affirmative will use, for example, gendered language, or other language which indicates flawed presumptions which are critiqued by the Negative.  The rhetoric of terrorism is a trigger in an of itself for such criticisms and there is no need to wait for the Affirmative case to be heard, since it is linked directly in the resolution.

Let me now clarify, I am not criticizing the wording of the resolution in any way.  I doubt there is other language that could have been applied that would still allow the intended debate.  I suppose the wording could be reworked to say due process protections should be extended to non-citizens but the Affirmative ground would have exploded to include virtually all deportable immigrants as well as those being held outside of the U.S.  Such an expansion of ground would have given Negative fits.  I point out the critique of the resolution to show how the clever Affirmative debater can begin to build Critical Affirmative cases and use the ambiguity and language of the resolution as basis for a condemnation of the language used in the status-quo.

Some Good Critiques
This resolution provides many links to three principle critiques which can be run as full policy-style kritiks or critical arguments (both Aff and Neg) with a value/criterion framework  Those critiques include the Security K as discussed during the Target Killing resolution last season (see post here), the Terrorism K and the Fear of Death K.  I like these critiques because they are easy to understand for both judges and debaters.

1. The Security Kritik is based on the idea the language of securitization creates enemies which then become the justification for continuing the mechanism of security.  The implication is individuals are demonized and the Security apparatus is justified in perpetuating its existence.

2. The Terrorism Kritik shows how the rhetoric of the War on Terror creates a binary world of good in opposition to evil and eliminates the neutral ground.  Of course evil must be destroyed as well as those which support it justifying extraordinary actions by the protector of righteousness.

3. There are several flavors of the Fear of Death Kritik but the interesting one for me centers around the idea that humankind's acknowledgement of and fear of death results in the kinds of conflicts seen in the War of Terror.

As always, many other critical arguments are possible.  I will not present actual examples as I feel debaters need to get their hands on the critiques and work with them to suit their own needs.  I have explained in my article on Applying Kritiks in LD one possible way to do that.  Either that or find the Ks in evidence repositories for a fee or trade with others who are willing.  What I will give you is below.


The Links
I have looked through several dozen sources and found a few I think can provide good links for this resolution and potential cases.  The links can then be used as evidence to provide the connection between the status-quo or your opponent's case, and the arguments of the critique.  In two examples, I extract text to demonstrate a few links.


9/11, Spectacles of Terror, and Media Manipulation: A Critique of Jihadist and Bush Media Politics
Douglas Kellner, 2003
http://pages.gseis.ucla.edu/faculty/kellner/essays/911terrorspectaclemedia.pdf
http://logosonline.home.igc.org/kellner_media.pdf
Kellner 2003:
Interestingly, Bush Administration discourses, like those of bin Laden and radical Islamists, are fundamentally Manichean, positing a binary opposition between Good and Evil, Us and Them, civilization and barbarism. Bush’s Manichean dualism replicates as well the Friend/Enemy opposition of Carl Schmidt upon which Nazi politics were based. Osama bin Laden, Al Qaeda, and “the Terrorist” provided the face of an enemy to replace the “evil Empire” of Soviet Communism, which was the face of the Other in the Cold War. The terrorist Other, however, does not reside in a specific country with particular military targets and forces, but is part of an invisible empire supported by a multiplicity of groups and states. This amorphous terrorist Enemy, then, allows the crusader for Good to attack any country or group that is supporting terrorism, thus promoting a foundation for a new doctrine of preemptive strikes and perennial war.
The discourse of Good and Evil can be appropriated by disparate and opposing groups and generates a highly dichotomous opposition, undermining democratic communication and consensus, and provoking violent militaristic responses. It is assumed by both sides that “we” are the good, and the “Other” is wicked, an assertion that Bush made in his incessant assurance that the “evil-doers” of the “evil deeds” will be punished, and that the “Evil One,” will be brought to justice, implicitly equating bin Laden with Satan himself.

Why Right is Might: How the Social Science on Radicalisation suggests that International Human Rights Norms actually help frame Effective Counterterrorism Policies
by Tom Parker, 2012
http://www.terrorismanalysts.com/pt/index.php/pot/article/view/parker-why-right-is-might/html
A salient characteristic of the Bush administration’s ‘dark side’ approach to the Al-Qaeda threat was a profound lack of interest in the actual character and motivations of Al-Qaeda’s leaders and their supporters. As presidential adviser Karl Rove put it with unconscious hubris: “Conservatives saw what happened to us on 9/11 and said: we will defeat our enemies. Liberals saw what happened to us and said: we must understand our enemies.”[9] Rather than follow Sun Tzu’s much referenced maxim “know your enemy”, President George W. Bush preferred to mischaracterize Al-Qaeda’s followers, as when he told a joint session of Congress in September 2001: “They hate our freedoms.”[10] This was hardly an accurate summary of the grievances that bin Laden had itemized in two very public declarations. Such willful ignorance led to a number of semantic blunders in the immediate aftermath of the 9/11 attacks, none greater that President Bush’s ill-judged use of the word “crusade” to underscore America’s resolve in meeting the challenge posed by Al-Qaeda. French Foreign Minister Hubert Vedrine reacted presciently to Bush’s choice of words, commenting to reporters: “We have to avoid a clash of civilizations at all costs. One has to avoid falling into this huge trap, this monstrous trap, conceived by the instigators of the assault."[11]

The dehumanization of ‘the other’ is, of course, a well-reported staple of warfare, so much so that anthropologists Ashley Montagu and Floyd Matson labeled dehumanization “the fifth horseman of the apocalypse”.[12] In his seminal work Faces of the Enemy, the philosopher Sam Keen coined the term “hostile imagination” to describe the process by which states dehumanize enemy forces by developing caricatured stereotypes that have a transformative impact on public attitudes and thereby create the space for violence and atrocity to unfold.[13] The German Marxist Rote Armee Fraktion (Red Army Faction) member Ulrike Meinhof offered the French journalist Michéle Ray a classic example of a dehumanizing narrative to justify the targeting of state officials: “Of course we say the cops are pigs. We say the guy in uniform is a pig, not a human being. And that’s how we have to deal with him.”[14] In the aftermath of the September 11th attacks, it is possible to trace evidence of this process of dehumanizing the ‘other’ at work in both the western and Muslim worlds – for example, in President Bush’s marked tendency to describe Al-Qaeda in abstract terms: “We're not fighting a nation; we're not fighting a religion; we're fighting evil.”[15] However, for the purposes of this paper it is enough to note that ‘hostile imagination’ is inimical to a nuanced understanding of the opposing side.

Humanitarian action and the ‘global war on terror’: a review of trends and issues
Edited by Joanna Macrae and Adele Harmer
HPG Report 14 July 2003
http://www.odi.org.uk/resources/docs/287.pdf

PSA/BISA Joint Conference on the topic COMMUNICATING TERRORISM
March 29-April 1, 2010
Valentina Bartolucci
University of Bradford (UK) and CERI Sciences Po (Paris)
Communicating ‘terrorism’: The effects of the US governmental discourse on terrorism in creating a new global enemy
http://www.psa.ac.uk/journals/pdf/5/2010/1277_1154.pdf

Perspectives on Terrorism, Vol 2, No 2 (2008)
An Argument for Terrorism
By Richard Jackson
http://www.terrorismanalysts.com/pt/index.php/pot/article/view/27/html

The Construction of Arabs as Enemies: Post-September 11 Discourse of George W. Bush
Debra Merskin 2004
http://www.asc.upenn.edu/usr/ogandy/C45405%20resources/Merskin%20the%20construction.pdf

The Popularity of the ‘New Terrorism’ Discourse
By Desiree Bryan on June 22, 2012
http://www.e-ir.info/2012/06/22/the-popularity-of-the-new-terrorism-discourse/

The Ghosts of State Terror: Knowledge, Politics and Terrorism  Studies
Richard Jackson, Aberystwyth University
Paper prepared for the International Studies Association (ISA) Annual Conference, 26­29 March, 2008, San Francisco, USA.
http://humansecuritygateway.com/documents/ISA_theghostsofstateterror.pdf

http://www2.lse.ac.uk/internationalDevelopment/research/crisisStates/download/seminars/Jacoby17Oct.pdf

LD 2012 Due Process Philosophy


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


"Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man."
—Thomas Hobbes, Leviathan, 1651

Introduction


An examination of the philosophy for the 2012 Sep/Oct LD topic can literally keep you busy for months.  It is rich with opinion on both sides of the debate and has implications in the study of human nature, the duties of nations, international relations theory, and good ole' fashioned right and wrong.  There are dozens of paths the debater can follow.  I would like to expose just a few in this post and reveal some interesting sources which you should take the time to read.  The knowledge one can gain from these links is incredible.  In a follow-up post I will take to the critical side and talk about the many critiques which are begging to be examined.  For now, Chomsky is as critical as we go since even he is too radical for many conservative judges.

The Manifestations of War On Terror
Those of you who debated LD last year are sitting on a treasure trove of applicable elements suited to this debate, assuming you may have researched and debated the Targeted Killing topic.  Following the 9/11 terrorist attacks, the U.S. characterized its position as victims in a global war of extreme necessity in order to protect not only the security of the nation but its way of life.  This characterization justifies extreme actions resulting in the suspension of certain liberties and rights, including, as it can be argued, due process protections.  As a result of the "modification" of the principle of due process we are witnessing three principle manifestations in the form of targeted killing, extraordinary rendition and lengthy incarcerations of non-citizens accused of terrorism.  Therefore, I would expect a lot of debate to center around these elements of the War on Terror with respect to this topic.

Aff and Neg Views


Following is a sampling of various philosophical points of view.  They may flow Aff and they flow Neg and in some cases, they can be spun in either direction.

Harvard 2012:
Acts of terrorism against states generate such emergencies, as they constitute “sudden and extreme occurrences.”  During such circumstances, executives may claim more power than they would otherwise be permitted to exercise. Because the exigent nature of emergencies requires immediate action, the executive has been known to be able to take action for the public good—this is known as the “Lockean prerogative.”  John Locke insisted that in emergencies, the government had to have legally unconstrained power to “act according to discretion for the publick good, without the prescription of the Law, and sometimes even against it.”

Ross 1980:
My account, of course, differs from the "libertarian" views epitomized by Robert Nozick in his book, Anarchy, State, and Utopia,7 because I accept the premise of constitutional law that every individual substantive liberty is, in principle at least, subject to coercive governmental invasion (even life, liberty, and property) and that all liberty that is not specially protected in the formation of a government may be invaded by the government for the public welfare and infringed for less serious reasons than one individual would have to have for coercively invading the life, liberty, and property of another person. Thus there is a crucial difference between a contract theory of the State that is not a "compromise of natural liberty" theory (Nozick's) and one that is (mine).

We can define a "state of nature" as a hypothetical state of mankind in which no competent adult's moral liberty has been compromised; that is, no system exists in which moral liberty may be invaded for less than overriding moral considerations. This may be described as one's state of (logically) antecedent moral liberty, a state where the range of one's moral liberty will be both larger and smaller, in various respects, than the condition of consequent moral liberty, after a government is formed. By definition, and for independent reasons to be mentioned, there is no legitimate government in such a state: no coercive power has been entrusted to achieve the common good by means of restraints upon the antecedent moral liberty of individuals. That does not rule out the possibility that there may be corruptions of government in such a state; there may be individuals who habitually and unjustifiably invade the moral liberty of others, for instance, by making them slaves.

The fact that some relatively defective institutions are called "governments" no more constitutes a counterexample to the conditions of "entrustment to attain the common good through coercive restraints upon antecedent liberty" than does the fact that a tree rotting on the ground is not alive constitute a counterexample to a definition of trees as a certain kind of living non-sentient thing. The formation of a government, whether by contract, consent, acceptance, or other convention, consists in the entrusting of coercive power for achieving the common good to some one or group with that role.

The coercion must be directed to the achievement of goods which are in the interest of all and which cannot, as a matter of practical necessity, be achieved by individual action or through mere cooperation. Some of the things which are in our most basic interest, like bodily safety, freedom from pain, and sufficiency of food, are goods of this sort. Thus, the authority of government arises from the necessity of its function to fulfill basic natural interests of all its subjects. The practical necessity of coercion which creates restraints upon antecedent moral liberty, to achieve basic natural interests of all, is the morally compelling individual interest shared alike by all which justifies the compromise of some of one's antecedent moral liberty.

For a government cannot have coercive power effectively if each application of coercion must be individually justified by the presence of a compelling public need so insistent that failure to realize that need will in some significant measure be a failure to govern at all.
So, the very existence of government necessitates a compromise of liberty which, among competent adults, is morally fundamental: the compromise permits instances of invasion where in that particular instance that public interest does not have to constitute an overriding moral consideration or a compelling public interest, though there is a "compelling" interest of all in the existence of the scheme of individual invasions.

Fiala 2002:
Terrorists are not merely pathological. They are political agents who utilize what I want to call a calculus of terror. This is the negative caricature of a utilitarian or hedonic calculus. The calculus of terror is designed to bring about certain ends. It is a rational decision procedure based upon the insight that terror disrupts social structures. The terrorist is not interested in causing pain per se: terror is not simply causing pain or killing. Rather, the terrorist is interested in using the threat of pain in order to antagonize a people and destabilize a social structure. Terrorism is evil insofar as it aims at destabilization and disruption. It is insidious in that it destabilizes and disrupts by creating an atmosphere or mentality of fear. It is significant, for example, that the September 11th terrorists succeeded in disrupting the lives of hundreds of millions of people in the Western world by the "mere" hijacking of four airplanes resulting in the deaths of over 3,000 people. In strictly utilitarian terms, terrorism is an economical means of political activity. In this sense, political agents who use terrorism are not pathological at all, but are quite rational: they know how to do cost-benefit analysis in order to maximize the results of their activity.

Chomsky 2012:
The concept of due process has been extended under the Obama administration’s international assassination campaign in a way that renders this core element of the Charter of Liberties (and the Constitution) null and void.  The Justice Department explained that the constitutional guarantee of due process, tracing to Magna Carta, is now satisfied by internal deliberations in the executive branch alone.  The constitutional lawyer in the White House agreed.  King John might have nodded with satisfaction.

The issue arose after the presidentially ordered assassination-by-drone of Anwar al-Awlaki, accused of inciting jihad in speech, writing, and unspecified actions.  A headline in the New York Times captured the general elite reaction when he was murdered in a drone attack, along with the usual collateral damage.  It read: “The West celebrates a cleric’s death.” Some eyebrows were lifted, however, because he was an American citizen, which raised questions about due process -- considered irrelevant when non-citizens are murdered at the whim of the chief executive.  And irrelevant for citizens, too, under Obama administration due-process legal innovations.

Presumption of innocence has also been given a new and useful interpretation.  As the New York Times reported, “Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.” So post-assassination determination of innocence maintains the sacred principle of presumption of innocence.

It would be ungracious to recall the Geneva Conventions, the foundation of modern humanitarian law: they bar “the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The most famous recent case of executive assassination was Osama bin Laden, murdered after he was apprehended by 79 Navy seals, defenseless, accompanied only by his wife, his body reportedly dumped at sea without autopsy.  Whatever one thinks of him, he was a suspect and nothing more than that.  Even the FBI agreed.

Cram (undated):
Unsurprisingly, the various proposals to re-calibrate the liberty/security scales in favour of enhanced security have in turn generated considerable controversy. A general anxiety underpinning a significant strand of the critical responses to Dershowitz, Ignatieff and others reflects a Lockean concern that governments may be tempted in the name of greater security to abuse their powers, thereby compromising their purported liberal democratic credentials.
The argument proceeds roughly thus: If we allow torture (or infringement of another core right) to take place in a carefully delineated, exceptional circumstance, we will in all likelihood be pressed into accepting further ‘exceptional’ circumstances that permit further rights curtailments. Locke himself foresaw that the very same powers that might be granted to government to safeguard the state from the enemies of the people might in turn be invoked against the government’s enemies.  In the present security-conscious climate, what is at risk are the defining commitments and overarching constructs of the liberal democratic state. Cole and Dempsey put it thus:
In responding to terrorism however, we must adhere to the principles of political due process and the protection of privacy that constitute the core of a free and democratic society.

Similarly, Kofi Annan and others have contended that human rights values must remain an integral part of states’ counter terrorism policies.  Academics endorsing this line have drawn on Locke’sTwo Treatises on Government to reject the apparent antithetical nature of the relationship between security and individual liberty. Teso´n for example has argued that measures intended to confer greater security are only justified to the extent that they promote the ‘liberal’ constitution and its values. Security can never be an end or value in itself.

Rather, security and order are needed in an instrumental sense to enable individuals to pursue autonomous life plans or to safeguard natural rights. The critical error made by those adopting a Hobbesian perspective is that security is elevated to the level of an intrinsic good that exists on an equal footing with individual liberty and which, when threats arise, must take precedence over rights claims. Teso´n reminds us that absolute security could only ever be attained in a police state and that liberals accept the condition of non-absolute security because of a preference for a substantial degree of individual freedom.

On his account, there may be a need for Hobbesian control (and a concomitant reduction of personal freedom) in the wholly exceptional scenario where a ‘total collapse of the social order’ is imminent, but there is scant evidence to suggest that liberal democracies have faced any such severe peril on September or on any date since.

Link to critiques of due process

Sources used:


Robert P. George, The Natural Law Due Process Philosophy, 69 Fordham L. Rev. 2301 (2001), vol69/iss6/4
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3730&context=flr

A Natural Rights Basis for Substantive Due Process of Law in U. S. Jurisprudence
Author(s): James F. Ross
Source: Universal Human Rights, Vol. 2, No. 2 (Apr. - Jun., 1980), pp. 61-79
Published by: The Johns Hopkins University Press
http://www.lawandphilosophy.org/RossSubDueprocess.pdf

Nickel, James, "Human Rights", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.)
http://plato.stanford.edu/entries/rights-human/

PHILOSOPHY & PUBLIC POLICY QUARTERLY
The Institute for Philosophy and Public Policy
School of Public Affairs, University of Maryland
Volume 21, Number 4 (Fall 2001)
http://philosophyfaculty.ucsd.edu/faculty/rarneson/courses/philosophyandpublicaffairsquarterlyfall2001.pdf

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
http://www.gov.harvard.edu/files/IR%20thesis%202.pdf

Fiala, Andrew (2002) "Terrorism and the Philosophy of History: Liberalism, Realism, and the Supreme Emergency Exemption,"
Essays in Philosophy: Vol. 3: Iss. 3, Article 2.
http://commons.pacificu.edu/cgi/viewcontent.cgi?article=1030&context=eip

The Historical, Political, and Diplomatic Writings of Niccolo Machiavelli
Christian E. Detmold
"The Discourses" book 3
Machiavelli 1510
"For where the very safety of the country depends upon the resolution to be taken, no considerations of justice or injustice, humanity or cruelty, nor of glory or of shame, should be allowed to prevail. But putting all other considerations aside, the only question should be, What course will save the life and liberty of the country."

Destroying the Commons How the Magna Carta Became a Minor Carta
By Noam Chomsky 2012
http://www.guardian.co.uk/commentisfree/2012/jul/24/magna-carta-minor-carta-noam-chomsky
http://www.guardian.co.uk/commentisfree/2012/jul/25/magna-carta-minor-carta-noam-chomsky

Ian Cram
Terror and the War on Dissent
Freedomof Expression in the Age of Al-Qaeda
http://www.thedivineconspiracy.org/Z5247I.pdf

A Utilitarian Argument Against Torture
Interrogation of Terrorists
Jean Maria Arrigo 2003
Project on Ethics and Art in Testimony, Irvine, California, USA
http://www.ethicalpsychology.org/materials/Arrigo-Torture-SEE.pdf

XXII World Congress of Philosophy Proceedings
(2010, forthcoming)
A MODIFIED RAWLSIAN THEORY OF SOCIAL JUSTICE:“JUSTICE AS FAIR RIGHTS”
Dr. Rodney G. Peffer, Department of Philosophy, University of San Diego
http://sandiego.academia.edu/RodneyPeffer/Papers/117637/A_Modified_Rawlsian_Theory_of_Social_Justice_Justice_as_Fair_Rights_

Our Hope for Justice: Aristotle, Hobbes, and the War on Terror
Publié le 1 avril, 2008 | Pas de commentaires
Par Michael N. Di Gregorio
http://www.lepanoptique.com/sections/politique-economie/our-hope-for-justice-aristotle-hobbes-and-the-war-on-terror/

HOBBES VERSUS LOCKE – REDEFINING THE WAR ON TERROR
BY COLONEL NICO W. TAK 2008
Royal Netherlands Army
http://www.hsdl.org/?view&did=700343

A Critique of Exceptions: Torture, Terrorism, and the Lesser Evil Argument
Andrew Fiala 2006
California State University, Fresno
http://philosophy.csusb.edu/~tmoody/ijap201-Fiala.pdf

Wednesday, August 22, 2012

PF 2012 AWB - Ammo for the Pro



For part 1 of this topic, click here
For other Public Forum Debate topics, click here

What The Current Ban Did
The proposed Federal Assault Weapons Ban of 2003 (HR 2038) was intended to replace the 1994 bill which was set to expire. (http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.2038:) The bill defined semiautomatic assault weapons as a list of specific makes or models and copies. It included specific pistols, shotguns and rifles.  Additionally, the definition of assault weapons was generalized and identified certain physical characteristics such as detachable magazines, pistol grips, etc. and any semiautomatic rifle with a fixed magazine with a capacity greater than 10 rounds. The law did not ban weapons that were already legally in people's possession.  The bill basically preserved the original bill while amending some its provisions such as the sunset (the wording that causes it to expire) and strengthened the ban on large capacity magazines.

The original bill, (http://thomas.loc.gov/cgi-bin/query/z?c103:H.R.3355:) banned the manufacture and transfer of the specified weapons.  It banned their possession by juveniles, and people who have committed domestic abuse and strengthened the penalties for using an assault weapon in the commission of a crime.  The original bill included a provision to produce a study within 30 months of enactment to determine the impact of the bill on crime and violence.  That report was the Koper study cited previously in my analysis (https://www.ncjrs.gov/pdffiles1/173405.pdf).

What The Bad Did Not
The ban did not put restrictions any ordinary, common weapons which individuals are inclined to buy, sell, collect or even use except those specified in the bill and then only those which may come into existence after the bill took effect.  It did not require individuals to dispose of their existing weapons, ammo clips, bullets, etc.

Banned Weapons
There are presently, certain kinds of weapons that are banned.  They are considered dangerous or unsuited for self-defense and these bans have been upheld by the U.S. Supreme Court.  While the court has traditionally held the right of individuals to possess weapons for lawful purposes such as self-defense (District of Columbia v. Heller, 554 U.S. 570 (2008)) certain kinds of weapons fail a certain reasonability test.  For example, in the case United States v. Miller, 307 U.S. 174 (1939), the Court ruled that a "sawed off" shotgun was not a weapon that could ordinarily be applied to the defense of the nation, hence, not suitable for militia use.  In general, various kinds of arms are, while not banned per se, tightly regulated.  Examples of these include various kinds of explosives, automatic weapons, weapons which are unusually cruel or destructive, etc.  While these devices are considered forbidden to possess, certain private individuals or entities may still possess these devices for specific purposes.  Generally speaking, they are not the kind of devices that would be prudent of useful for sport or self-defense, or for that matter, considered a militia man's weapon because in many cases keeping these weapons creates a greater than normal risk to lives or property.  The question Pro must answer in this debate, do semiautomatic assault weapons with large capacity magazines, present a greater than normal risk.

Guns Used in Crime
Obviously, not all crimes involve the use of weapons, and of those, an even smaller percentage involve the use of semiautomatic weapons.  Nevertheless, in a 2007 Justice Dept. study by Christopher Koper with Mary Shelley (https://www.ncjrs.gov/pdffiles1/nij/grants/221074.pdf) in one jurisdiction, it is reported criminal gun users and traffics preferred semiautomatic, high-caliber pistols with high-capacity magazines. They are up to 56% more likely to be used in crime and as high as 90% for medium and large caliber handguns.  Koper cites two studies which suggest "gun attacks involving semiautomatics tend to result in more shots fired, more persons hit, and more wounds inflicted per victim than do attacks with other firearms".

Possession by Juveniles
A major concern it the possession of weapons by juveniles.  In a Justice Dept strategy paper, (http://www.justice.gov/archive/opd/Strategy.htm) written at the time of the 1994 AWB was in effect, stated: "Current law prohibits juveniles from possessing assault pistols, but allows them to possess assault rifles and large capacity ammunition feeding devices manufactured before the effective date of the Assault Weapons Ban in 1994. This dangerous loophole should be closed by prohibiting the possession of all semiautomatic assault weapons and large capacity magazines by persons under age 21."  In the Koper paper cited above, it was noted that most juveniles obtain weapons through "straw purchases"; meaning an adult purchases the weapon and illegally gives it a juvenile. A report by the Future of Children in 2002 puts in perspective: "Each year, more than 20,000 children and youth under age 20 are killed or injured by firearms in the United States. The lethality of guns, as well as their easy accessibility to young people, are key reasons why firearms are the second leading cause of death among young people ages 10 to 19. Only motor vehicle accidents claim more young lives."  The Firearm and Injury Center at University of Pennsylvania (http://www.uphs.upenn.edu/ficap/resourcebook/pdf/monograph.pdf) reports: "In 2000 semi-automatic pistols were the most frequently traced handguns by law enforcement for all age groups (50%).22 Among juveniles less than 17 years old arrested in 1999, handguns were the most common type of firearm recovered by law enforcement (87%). Semi-automatic pistols were the weapon of choice for juveniles, with 58% traced among youth under age 18 and 60% for those ages 18-24, compared to 47% among persons age 25 or older."

Law Enforcement is Impacted
Jake Matthews of the Harvard Political Review (http://hpronline.org/united-states/for-lives-and-liberty-banning-assault-weapons-in-america-3/) writes: "Even the claim that banning assault weapons would limit Americans’ freedoms is largely unsubstantiated. If anything, I’d argue the reverse. Legalized high-powered weaponry forces public safety agencies, mainly the FBI, to attempt to monitor more civilian activity. On its domestic terrorism homepage, the FBI states that a major part of its job is “preventing homegrown attacks before they are hatched.” Their mission would involve, in theory, extensive research into the lives of many who purchase assault weapons or massive amounts of ammunition, even if both purchases were made legally, as in the case of Aurora shooter James Holmes...In 2004, Congress failed to renew the Federal Assault Weapons Ban originally passed in 1994 under President Clinton. Since the law’s expiration, police deaths from gunshot wounds have increased substantially. In 2009, 49 police officers died from gunfire, a 24 percent increase from 2008. In 2010, 61 officers were shot and killed, a 37 percent increase from 2009. And in 2011, 68 officers died from gunfire. In fact, 2011 represents the first year of the past 14 years when the leading cause of on-duty police officer death was from gunfire and not from traffic fatalities."

In an interview with Governor Pat Quinn of Illinois, Christopher Wills of the Associated Press quotes regarding assault weapons: "Statistics on their current use are extremely hard to find, but a gun-control group called the Violence Policy Center searched news reports for crimes involving assault weapons from March 2005 to March 2007. It found reports of 235 incidents, more than one-quarter of which involved police and often included shots fired at the officers. Eleven assault-weapon incidents were found in Illinois.
Quinn acknowledged it's not clear just how many assault weapons are out there or how often they're used in crimes.
Tim McCarthy, chief of police in Orland Park, agreed there's no firm data but said he's "pretty certain" assault weapons and high-capacity magazines are being used more often.  Banning them "will help reduce violence against our residents. It will help reduce violence against our police," McCarthy said at the governor's announcement"

Focusing In
No one is calling for a general ban on the possession of guns. Instead Pro is advocating a very limited ban or a particular class of weapons which have little practical use.  Studies show the major reasons Americans purchase weapons is for sport or self-defense.  Pro is asking for a ban on weapons that are not suited to either.  The ban will have little or no impact on the sale and possession of other kinds of weapons.  But what the ban will do, is reduce a very particular risk that someone with murderous intentions in possession of a semiautomatic weapon could kill or maim many people in a very short time, before police or anyone can react.  Moreover, a ban will reduce the likelihood these weapons will end up in the hands of juveniles.  Finally it should be noted that a ban on these very dangerous weapons will reduce the risks to law enforcement and innocent bystanders.  Pro fully supports the Second Amendment Right to Bear Arms, but argues it makes no sense to allow the importation, trade and possession of these few, extremely dangerous weapons.

Tuesday, August 21, 2012

LD 2012 Due Process Value Framework



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


Introduction


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.
http://www.professorgizzi.org/html/packer.pdf

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)
http://www.nycbar.org/pdf/1C_WL06!.pdf


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
http://tigger.cc.uic.edu/~lskitka/Dueprocess.pdf

Protecting the Innocent as the Primary Value of the Criminal Justice System
Susan A. Bandes 2008
http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Bandes-FinalPDF.pdf

It is a Constitution We Are Expounding, Collected Writings on Interpreting, Our Founding Document
Foreword by laUrence H. tribe
http://www.acslaw.org/pdf/ACS_Expounding_FNL.pdf

The Preamble to the Constitution of the United States
Donald S. Lutz, University of Houston, 1982
http://www.apsanet.org/imgtest/preamble.pdf

The Washington Times, The Smith-Amash amendment and NDAA: A loss and a win for liberty
Tiffany Madison, May 18, 2012
http://communities.washingtontimes.com/neighborhood/political-potpourri/2012/may/18/paul-amash-amendment-and-ndaa-loss-and-win-liberty/

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
http://www.gov.harvard.edu/files/IR%20thesis%202.pdf

Attorney General Eric Holder Speaks at Northwestern University School of Law
Chicago ~ Monday, March 5, 2012
http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html

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.

Prelude

"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
http://www.worldpublicopinion.org/pipa/articles/home_page/228.php 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.

Impacts


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:

FORFEITING “ENDURING FREEDOM” FOR “HOMELAND SECURITY”: A CONSTITUTIONAL ANALYSIS OF THE USA PATRIOT ACT AND THE JUSTICE DEPARTMENT’S ANTI-TERRORISM INITIATIVES, Copyright 2002: The Rutherford Institute, Charlottesville, Virginia
JOHN W. WHITEHEAD, STEVEN H. ADEN
http://www.ratical.org/ratville/CAH/CAofUSAPA.html

Protecting Human Rights while Countering Terrorism
By Salma Yusuf on February 14, 2012
http://www.e-ir.info/2012/02/14/protecting-human-rights-while-countering-terrorism/

Office the United Nations High Commissioner for Human Rights, The Rights of Non-Citizens
United Nations, New York and Geneva, 2006
http://www.ohchr.org/Documents/Publications/noncitizensen.pdf

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
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2099&context=ulj

Terrorism, the Future, and U.S. Foreign Policy, Updated April 11, 2003, Raphael Perl, Foreign Affairs, Defense, and Trade Division
http://www.fas.org/irp/crs/IB95112.pdf

EXTRAORDINARY RENDITION IN U.S. COUNTERTERRORISM POLICY: THE IMPACT ON TRANSATLANTIC RELATIONS
JOINT HEARING BEFORE THE SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT AND THE SUBCOMMITTEE ON EUROPE OF THE COMMITTEE ON FOREIGN AFFAIRS, HOUSE OF REPRESENTATIVES, ONE HUNDRED TENTH CONGRESS, FIRST SESSION, APRIL 17, 2007
http://foreignaffairs.house.gov/110/34712.pdf

Jun 22, 2010, Cause and effect in the War on Terror
By Glenn Greenwald
http://www.salon.com/2010/06/22/terrorism_22/

Oct 20, 2009,  A Rumsfeld-era reminder about what causes Terrorism
By Glenn Greenwald
http://www.salon.com/2009/10/20/terrorism_6/

Exploding the Myths of Terrorism
Dr Samir Rihani
http://www.globalcomplexity.org/terrorism.htm

American and International Opinion on the Rights of Terrorism Suspects
July 17, 2006
PRINCIPAL INVESTIGATOR
STEVEN KULL
http://www.worldpublicopinion.org/pipa/pdf/jul06/TerrSuspect_Jul06_rpt.pdf

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
http://www.gov.harvard.edu/files/IR%20thesis%202.pdf

The Terrorist Threat: Its Impact on American Civil Liberties and Democracy, Atlantic International Studies organization
Lindsay Gorman
http://atlismta.org/online-journals/0607-journal-development-challenges/the-terrorist-threat/

Friday, August 17, 2012

PF 2012 AWB Blowing Open the Pro Debate


For part 1 of this topic, click here
For other Public Forum Debate topics, click here



Introduction
When one begins to research a topic such as the Federal Assault Weapons Ban there is a strong tendency to do what I have done. Dig deeply into in the provisions of the bill and examine its impacts. As this research unfolded, and I expressed discontent the topic dealt with this specific piece of legislation, I realized as I am sure many of you have, this resolution is going to be very tough for Pro if some really strong impacts resulting from bill passage could not be found. I looked and found marginal positive impacts arising perhaps just slightly above the clutter of statistical random chance and noise. I posted the best, easily accessible, evidence I could find.



Somewhere in the course of metaphorically banging my head against the wall and wallowing in pity for my Pro debaters, a thought pierced my skull as if fired from a semiautomatic AK. We have examined the "what" of the resolution, but we have not examined the "how". The who is Congress, the what is the AWB, the where is the U.S., the when is now, and the how is... renew.



What is Renew?
Merriam-Webster has a definition, "to make like new : restore to freshness, vigor, or perfection". Bam!

Suddenly it occurred to me. There is a sense of creation in the term; reinvigorate, restoration, make it better, perfect it. I now realized the key to Pro is not in the who, what, where or when. It may very well be in the how.



How Does Congress Do The How?
In my zeal to understand the 'what' I ignored the 'how'. Having seen Merriam-Webster's definition of "renew" I began to wonder, what is Congress' definition of renew, so I went looking for the Congressional Member's Instruction Manual chapter, "How to Renew a Bill". Well, there may be one out there, but it seemed hopeless to wade through 1000s of documents and procedural manuals to find it so I tried another tact. Let's see what happens when Congress renews other bills, such as the Voting Rights Act and the U.S.A. Patriot Act to name a few, and sure enough, what I found was Congress also reads the Merriam-Webster dictionary. Almost Without exception, "renew a bill" in Congress means, amend, revise, improve, attach riders and so on. In most cases, renew does not mean, simply resurrect and vote. It means, resurrect, rework and vote. Ultimately, Congressional renewal means, my Public Forum debaters have had a substantial limitation lifted from their shoulders because they were no longer required to defend renewal of the flawed version of the bill, rather they can advocate renewing a revamped, spiffy and functional version of the bill.



Its Not Policy Debate - but...
Okay. It is good to remember PF is NOT policy debate. We do not have to advocate a policy nor talk about funding. We don't have to face politics disadvantages or talk about Obama's political capital. In fact, NFL's rule 6 for Public Forum Debate states in part, "...Neither the pro or con side is permitted to offer a plan or counterplan; rather, they should offer reasoning to support a position of advocacy. Debaters may offer generalized, practical solutions."



Next Steps
Those of you that are now chuckling, and thinking to yourselves, "We're way ahead of you", I will only say I am glad I too have realized what you already knew and now, thanks to my unexplainable desire to share my failures and successes, everyone else knows as well. So now it is time to 'renew' our research, and see what kind of evidence can be found to put some fire-power into Pro's gun-belts.  Hopefully there will more on this topic later.


PF 2012 AWB Random Reports


For part 1 of this topic, click here
For other Public Forum Debate topics, click here

The Final Report
This report contains the final assessment of the 1994 AWB and gives the statistics showing the effectiveness on the ban in reducing gun crime.  The report was compiled shortly before the expiration of the ban.  It is not pretty but there are are some interesting caveats which possibly benefit Pro.

An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003, Report to the National Institute of Justice, United States Department of Justice, By Christopher S. Koper, June 2004
Full report: http://www.sas.upenn.edu/jerrylee/research/aw_final2004.pdf
Summary rpt: http://www.sas.upenn.edu/jerrylee/research/aw_exec2004.pdf


August 2012 Review of Gun Control Legislation
This report, though not particularly useful for evidence is a good summary of current legislation being reviewed by Congress.  I reproduce in full, the section which discusses the expired 1994 AWB.

http://www.fas.org/sgp/crs/misc/RL32842.pdf
Congressional Research Service, Gun Control Legislation, William J. Krouse, Specialist in Domestic Security and Crime Policy, August 3, 2012
Expired Semiautomatic Assault Weapons Ban
(pg 86-87)

In 1994, Congress banned for 10 years the possession, transfer, or further domestic manufacture of semiautomatic assault weapons (SAWs) and large-capacity ammunition feeding devices (LCAFDs) that hold more than 10 rounds that were not legally owned or available prior to the date of enactment (September 13, 1994). The SAW-LCAFD ban expired on September 13, 2004. The SAW ban statute classified a rifle as a semiautomatic assault weapon if it was able to accept a detachable magazine and included two or more of the following five characteristics: (1) a folding or telescoping stock, (2) a pistol grip, (3) a bayonet mount, (4) a muzzle flash suppressor or threaded barrel capable of accepting such a suppressor, or (5) a grenade launcher.348 There were similar definitions for pistols and shotguns that were classified as semiautomatic assault weapons.349 Semiautomatic assault weapons that were legally owned prior to the ban were not restricted and remained available for transfer under applicable federal and state laws. Opponents of the ban argue that the statutorily defined characteristics of a semiautomatic assault weapon were largely cosmetic, and that these weapons were potentially no more lethal than other semiautomatic firearms that were designed to accept a detachable magazine and were equal or superior in terms of ballistics and other performance characteristics. Proponents of the ban argue that semiautomatic military-style firearms, particularly those capable of accepting large-capacity ammunition feeding devices, had and have no place in the civilian gun stock.

During and following World War II, assault rifles were developed to provide a lighter infantry weapon that could fire more rounds, more rapidly (increased capacity and rate of fire). To increase capacity of fire, detachable self-feeding magazines were developed. These rifles were usually designed to be fired in fully automatic mode, meaning that once the trigger is pulled, the weapon continues to fire rapidly until all the rounds in the magazine are expended or the trigger is released. Often these rifles were also designed with a “select fire” feature that allowed them to be fired in short bursts (e.g., three rounds per pull of the trigger), or in semiautomatic mode (i.e., one round per pull of the trigger), as well as in fully automatic mode. By comparison, semiautomatic firearms, including semiautomatic assault weapons, fire one round per pull of the trigger.

According to a 1997 survey of 203,300 state and federal prisoners who had been armed during the commission of the crimes for which they were incarcerated, fewer than 1 in 50, or less than 2%, used, carried, or possessed a semiautomatic assault weapon or machine gun.350 Under current law, any firearm that can be fired in fully automatic mode or in multi-round bursts is classified as a “machine gun” and must be registered with the federal government under the National Firearms Act of 1934. Furthermore, it is illegal to assemble a machine gun with legally or illegally obtained parts. The population of legally owned machine guns has been frozen since 1986, and they were not covered by the semiautomatic assault weapons ban.

In the 108th Congress, proposals were introduced to extend or make permanent the ban, whereas other proposals were made to modify the definition of “semiautomatic assault weapon” to cover a greater number of firearms by reducing the number of features that would constitute such firearms, and expand the list of certain makes and models of firearms that are statutorily enumerated as banned. A proposal (S. 1034) introduced by Senator Dianne Feinstein would have made the ban permanent as would have a proposal (H.R. 2038/S. 1431) introduced by Representative McCarthy and Senator Lautenberg. The latter measure, however, would have modified the definition and expanded the list of banned weapons. Senator Feinstein also introduced measures that would have extended the ban for 10 years (S. 2109/S. 2498). In addition, on March 2, 2004, the Senate passed an amendment to the gun industry liability bill (S.1805) that would have extended the ban for 10 years, but the Senate did not pass this bill.351

In the 109th Congress, Senator Dianne Feinstein introduced a bill that would have reinstated previous law for 10 years (S. 620). Representative McCarthy and Senator Lautenberg reintroduced their bills to make the ban permanent (H.R. 1312/S. 645).

In the 110th Congress, Representative McCarthy reintroduced a similar proposal (H.R. 1022) and another measure (H.R. 1859) that would prohibit the transfer of a semiautomatic assault weapon with a large-capacity ammunition feeding device, among other things. Representative Mark Steven Kirk introduced the Assault Weapons Ban Reauthorization Act of 2008 (H.R. 6257). Senator Biden included provisions to reauthorize the ban in the Crime Control and Prevention Act of 2007 (S. 2237).

In the wake of the Tucson shootings, Representative McCarthy introduced a measure that would reinstate the large capacity ammunition feeding device ban(H.R. 308). Senator Lautenberg introduced a similar measure (S. 32).

Continue the topic series here.