Sunday, October 6, 2013

PF Nov 2013 - NSA Surveillance - Pro Position


Resolved: The benefits of domestic surveillance by the NSA outweigh the harms.


For part 1 of this analysis, click here.

Pro Position

This resolution requires the Pro to evaluate the benefits of a policy versus the harms.  I think everyone who sees this kind of resolution should be thinking "weighing mechanism" and weighing mechanism means "framework".  The framework is, by the Everyday Debate definition and understanding, the weighing mechanism the judge will use to render a decision.  As many posts on this website have stated over and over, the judge has a responsibility to render a decision in every round.  If you don't supply a weighing mechanism, she will use one she supplies herself.  If you are okay with judge deciding based on her own criteria, lay out the facts and let the judge decide.  But if you want to have some control over how the judge evaluates your case, give her the criteria to use.

Weighing Mechanisms

A common mechanism is the cost-benefit analysis, which is a method to evaluate the benefits and costs (harms) of a policy or procedure by taking into account its present value and future value.  The valuation can be in terms of dollars, lives, health, cost-per-life, etc. It can also be evaluated on more abstract, perhaps philosophical terms such as quality of life, public satisfaction (happiness), etc. I don't intend to present a detailed description of how to setup a cost benefit analysis other than say it should include some definition of the stakeholders, evaluate the status-quo, the short-term effect of the policy and the future value.

Another related kind of evaluation is the opportunity cost which compares the cost of not doing something versus the cost of doing another thing.  For example, a person who decides to take a day off work to go to a concert could compare the cost of the concert to the lost opportunity of a paid work day. Based on the valuation of money one may decide it is better to go to work or on the value of pleasure may decide it is better to go to the concert.  These types of analyses work best for mutually exclusive choices where you must do one thing instead of another because it is impossible to do both.  This resolution does not fit that pattern unless you find some competing objectives.

It is common to weigh benefits and harms within a values framework.  For example, it is very common for L-D judges to evaluate a round on the basis of a value premise/value criterion framework.  This resolution possibly lends itself to such a framework.  Under such a framework, the decision is based upon which side better defends general values esteemed by the majority of people such as justice, freedom, security, etc.  PF debaters must be careful to avoid making their cases sound too LD-like if that makes sense.  Most PF judges will not be prepared to judge a value debate in the same way an LD judge would.  Nevertheless, it is still a very good framework and definitely adaptable to this resolution since values have universal appeal to judges.

All of these previous weighing mechanisms fall into the broad class of framework I call the comparative advantage framework and basically tell the judge, prefer our side because we save more lives, cost the least, provide the biggest return on investment, improve the quality of life, whatever the comparative terms you establish. Notice it is not, prefer our side because we are the better debaters and if your ballot says the judge voted for the better debaters, then the framework was not properly conveyed.

Legality of NSA Surveillance

The recent exposure of NSA programs cannot be a surprise to Americans who were around in 2005 and no surprise to suspected terrorists abroad. Many of the foundational laws upon the NSA conducts these programs was codified by the USA PATRIOT Act in 2001, not long after the 9/11 terror attack.  Soon afterward "President Bush created the Terrorist Surveillance Program (“TSP”), which authorized the National Security Agency (“NSA”) to intercept phone calls and emails traveling into and out of the United States." [Yoo 2007] The existence of this program was revealed by the New York Times in 2005 resulting in a flurry of partisan and liberal repugnance.  Nevertheless, the programs withstood scrutiny by the courts, Congress and people because it is based upon constitutional law and the duty of government to protect itself and citizens.

Yoo 2007:
Article II of the Constitution also vests the President with “the executive power,” which, in Justice Scalia’s words, “does not mean some of the executive power, but all of the executive power.” Political theorists at the time of the framing considered foreign affairs and national security as quintessentially executive in nature,35 and our Constitution creates an executive branch that can act with unity, speed, and secrecy to carry out those functions effectively...But the Constitution nowhere vests in Congress any explicit authority to initiate national security policy, nor gives it an outright veto over executive decisions in the area.

The biggest argument for Pro is based on the claim that collecting massive amounts of data and targeting individuals are not the same thing.  In order to target a particular U.S. citizen subject to constitutional protections, a detailed vetting process is employed to establish sufficient probable cause and these procedures are designed to pass the scrutiny of any U.S. court since the objective would be to eventually prosecute those aiding or abetting terrorists.

Yoo 2007:


In this world of rapidly shifting e-mail addresses, multiple cell phone numbers, and internet communications, FISA imposes slow and cumbersome procedures on our intelligence and law enforcement officers. These laborious checks are based on the assumption that we still remain within the criminal justice system, and are looking backward in order to conduct prosecutions of those who have perpetrated crimes or infiltrated the government, rather than operating within the national security system, which looks forward in order to prevent deadly surprise attacks on the American people. FISA requires a lengthy review process, in which special FBI and DOJ lawyers prepare an extensive package of facts and law to present to the Federal Intelligence Surveillance Court (“FISC”). The Attorney General must personally sign the application, and another high-ranking national security officer, such as the President’s National Security Advisor or the Director of the FBI, must certify that the information sought is for foreign intelligence. It takes time and a great deal of work to prepare the warrant applications, which can run 100 pages long. While there is an emergency procedure that allows the Attorney General to approve a wiretap for 72 hours without a court order, it can only be used if there is no time to obtain an order from the FISC, and the Attorney General determines that the wiretap satisfies FISA’s other requirements. Thus, the Attorney General could not use the emergency procedure if the probable cause standard was not met.

The claim can be made the vast numbers of protections and the very nature of the data-mining algorithms employed by the NSA are designed to detect patterns of operations associated with off-shore threats.  It is not designed to detect the activities by US citizens operating independently of foreign operatives.  For this reason, events like the Boston Marathon bombings proceed without NSA intervention.  This is not a failure of NSA, it is proof the NSA program is functioning within its legal limitations and those limits protect privacy.

Yoo 2007:
These privacy concerns are exaggerated. The Supreme Court has found that such information does not receive Fourth Amendment protection because the consumer has already voluntarily turned over the information to a third party. It is not covered by FISA because no electronic interception or surveillance of the calls has occurred.



Benefits of NSA Surveillance

Following are some of the most common Pro contentions that I have isolated with one or more sources as Pro advantages.  They need developed but I am offering them for your consideration.

The Risk of Terrorism Advantage
Alexander [Blackhat] 2013:
The intent of [USA PATRIOT Act] Section 702 is “to find the terrorist that walks among us”, he commented. “We do this with the least obtrusive actions that we can. This is the right thing to do, and the nation needs to know we do the right thing. We comply with court orders and if we make a mistake we hold ourselves accountable and report it to everyone.” Sections 215 and 702 have helped disrupt 54 terror-related activities, including 13 in the US and 25 in Europe. “These programs helped disrupt a plot to bomb the New York City subway system. The initial tip came from the PRISM section 702 data”...

Sullivan 2013:
In testimony before the House Intelligence Committee on Tuesday, officials cited a nascent plot to blow up the New York Stock Exchange and a case involving an individual providing financial support to an overseas terrorist group. "In recent years, these programs, together with other intelligence, have protected the U.S. and our allies from terrorist threats across the globe to include helping prevent the terrorist -- the potential terrorist events over 50 times since 9/11," National Security Agency Director Gen. Keith Alexander told the committee. He said at least 10 of the plots targeted the United States.

The Deterrence Advantage
Platzer 2013:
Of course it is. But actually of much more interest to the US government itself. Surveillance is a weapon deployed by the government against their biggest enemy – the people. Just like many other weapons, it unfolds most of its power by merely letting people know that one has that weapon by deterrence. I mean what use is the surveillance system for the government if people don’t know about it? I think the biggest benefit out of this leak is going to the US government



The Popular Polls Advantage
Pew 2013:
The latest national survey by the Pew Research Center and The Washington Post, conducted June 6-9 among 1,004 adults, finds no indications that last week’s revelations of the government’s collection of phone records and internet data have altered fundamental public views about the tradeoff between investigating possible terrorism and protecting personal privacy. Currently 62% say it is more important for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy. Just 34% say it is more important for the government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats


The (Lack of) Harms of the NSA

If the policies under which the NSA operates impede the freedoms of US citizens, then we would expect real and measurable curtailment of the the kinds of activities people fear would be monitored, such as internet activities and cellular phone usage.  It is not happening.  In fact, since the program was first revealed long before Snowden's revelations, all of the slippery slope fears and harms predicted by Con have failed to come to fruition and the programs have been renewed.

Gerecht 2013:
It’s an odd and, for those attached to Friedrich Hayek’s Road to Serfdom, disconcerting development: The massive American government, born of the welfare state and war, hasn’t yet gone down the slippery fascist slope. Liberal welfare imperatives may be bankrupting the country, but they have not produced a decline of most (noneconomic) civil liberties. Just the opposite. American liberalism’s focus on individual privacy and choice has, so far, effectively checked the creed’s collectivism. America’s national-security state, which Greenwald believes has already become a leviathan, is, for the most part, rather pathetic...And it’s doubtful that the national-security institutions since 9/11 have engaged in practices that fundamentally challenge anyone’s constitutional rights—the possible big exceptions would be the FBI’s counterterrorist practices against militant Muslim Americans that have occasionally tiptoed close to entrapment

The Impacts

Finally, since I advocating  an evaluation framework I thought it would be useful for debaters to explore the impact of terror attacks.  Rather than break this out with lengthy quotations and detailed analysis of the literature, I will supply you the links and leave the research to you,
Economic Impacts of Global Terrorism: From Munich to Bali (Barth, et al 2006)

Aftermath of the Terrorist Attack: Economic, Financial and Policy Consequences (Kubarych, 2011)

GLOBAL TERRORISM AND ITS IMPACTS ON NATIONAL SECURITY (Onay, 2008)

Understanding and Preparing for the Psychological Consequences of Terrorism (Tanielian & Stein; 2006)



For the Con position, click here.


Sources:

The Cost and Benefits of the NSA; The Weekly Standard
Reuel Marc Gerecht; 2013
http://www.weeklystandard.com/articles/costs-and-benefits-nsa_735246.html

'US govt benefits most from NSA leak as people now know it has surveillance weapon'
Interview with Joerg Platzer; Crypto Currency Consulting Group; Berlin, Germany
RT Television
http://rt.com/op-edge/nsa-leak-surveillance-crypto-229/

Stay calm and let the NSA carry on; Los Angeles Times
Max Boot; 2013
http://articles.latimes.com/2013/jun/09/opinion/la-oe-boot-nsa-surveillance-20130609

Majority Views NSA Phone Tracking as Acceptable Anti-terror Tactic; Pew Research Center
June 10, 2013
http://www.people-press.org/2013/06/10/majority-views-nsa-phone-tracking-as-acceptable-anti-terror-tactic/

The Terrorist Surveillance Program and the Constitution
John C. Yoo, University of California, Berkeley; January 2007
http://works.bepress.com/johnyoo/19/

NSA Director Gen. Keith Alexander keynote speech at 2013 Blackhat Conference
Black Hat 2013: NSA Director Says Surveillance Programs Prevent Terrorist Attacks; Info Security Magazine
http://www.infosecurity-magazine.com/view/33753/black-hat-2013-nsa-director-says-surveillance-programs-prevent-terrorist-attacks/

NSA head: Surveillance helped thwart more than 50 terror plots; Washington Post
Sean Sullivan, June 18, 2013
http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/18/nsa-head-surveillance-helped-thwart-more-than-50-terror-attempts/

15 comments:

  1. Ok so i'm going to ask a hypothetical question here that I see as a probable outcome. If pro is able to frame the case as being based on human life(which would be optimal because this is going to protect human lives) and develop casework based solely around this framework, isn't con at an inherent disadvantage with this topic in that its very hard for them to prove any harms at all when evaluating the framework only through the lens of the value of a human life. The other option is for con to attempt to refute the framework, and show that human life isn't an insurmountable value, but I don't see how that is possible either from the place of a country with clear ethically individualistic values such as the United States.

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    1. How would you go about wording the framework that is based on human life?

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    2. Also frame it around not just human life but also the serious further infringement on civil liberties that comes about after terrorist attacks. Like after 9/11 when all kinds of stuff happened that basically led to this, even a few more domestic terror attacks would be seriously destabilizing. Think about how every time a shooting happens people talk about repealing the second amendment etc.

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  2. i'm sorry, let me expand on that last comment. after rereading it i realized i'd forgotten the Snowden refutation. The refutation seems very straightforward to me. While its wonderful that the other side can cite information leakage due to NSA practices, there's the simple flaw that you can't demonstrate impact with Snowden, and certainly not with causitive links. Unless you can do so, there's no reason to believe there was any harm.

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    1. You are framing a very LD-like debate with the value of life, but I think it is definitely worth a try. Life and the related value of security are powerful arguments for the Pro with significant impacts and as long as you keep reminding the judge of the value framework you force the Con to answer it because, the only impacts Con has is the loss of certain rights which are meaningless without security. Though a "give me liberty or give me death" argument has some merit it tends to be an idealistic refutation that many would be unwilling to embrace if we can have security and still preserve most of our liberties.

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    2. How do you phrase a framework that revolves around the value of a human life?

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    3. Say something like "One of the stated missions of the NSA recently asserted by President Obama and leading members of the U.S. Security Council is the NSA protects lives. This is in keeping with the first responsibility of legitimate governments to protect the citizens from outside harms. Even the Supreme Court has confirmed in many rulings the duty of national security supercedes personal liberties. Why? It preserves the nation and saves lives and life is most important value. Without life, liberty has no meaning. For this reason, we believe the Pro should win this debate because NSA has the power and resources to protect lives and to do so with minimal impact on personal liberties." Then link every contention to the framework of protecting life.

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  3. so con needs to refute the framework. My question is how does con do that?

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    1. When it's framed around the value of "Just one life" over american principles/constitutional values etc., bring up the fact that we start wars over the "freedom" of people overseas and clearly we've demonstrated that if the US is willing to do that then we should value conceptual aspects as opposed to being protective at all costs.

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  4. You may not like the answer, but just like in LD, Con can basically accept the framework and subsume the value of life (or security) with less impact on personal liberties. For example, Con can prove other anti-terrorism measures are more effective, or at least equally effective at reducing terror risk without impinging on privacy or individual liberties. Of course, each of the Con alternatives carries their own disadvantages that Pro can exploit to its favor.

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    1. Thank you i appreciate your responses.

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  5. how do you beat the lack of harms if it is obvious that no one actually stopping the use of phone, internet and so on.

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    1. That's a good question and it's not easy to answer. In the U.S. these services are so deeply integrated into daily life on some levels it would be like expecting people to give up use of their cars. People may not be dropping internet or phone service but they may be more guarded about what they do or say.

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    2. constitutional/legal/democratic infringement because of the clandestine nature of the program. also abuse of data (there are a number of cases for that), and misinterpretation of data that leads to harm. Ex. the couple in Massachusetts who had their home raided because one person was shopping for a backpack online and the other was shopping for a pressure cooker.

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  6. One thing that this did not cover was the fact that Keith Alexander turned out to be lying about the 54 terrorist attacks, and in a congressional hearing he reduced the number to 13.

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