Sunday, October 27, 2013

PF 2013 Proposed Topics For December

** UPDATED NOVEMBER 1, 2013 **
THE SECOND RESOLUTION WAS CHOSEN BY COACHES AND STUDENTS


The Public Forum TOPIC AREA for December is "Immigration." The two resolutions from which students and advisors may choose are as follows:



  • Resolved: Improving border security should be the top priority in immigration reform.

  • Resolved: Immigration reform should include a path to citizenship for undocumented immigrants currently living in the United States.

I think the topic area is no doubt a major debate to be faced in the coming year within the world of U.S. politics.  The implications of immigration reform touches upon national security and may impact political outcomes but it is likely the largest impact is economical.  I expect much of the evidence will focus on the economy.

The first resolution will center on border security which basically means making it increasingly difficult for people to slip into the country without legal clearance to do so.  There are many ways, immigrants cross the border illegally and once here, it is very difficult to find them.  I think it easy to see there are significant security concerns including the potential for smuggling illegal items, the entry of felons and criminals, and most importantly the entry of terrorists.  Of course, the majority of illegal immigrants are here to seek work and try to make a better life for themselves and families or to flee undesirable political, economic or other disasters at home.  One of the major debates about border security focuses on the difficulty of deciding what is "secure".  The U.S. border is huge and it would be nearly impossible to see 100% lock-down on the borders.  So the big question is how much leakage are we willing to endure and how much are we willing to spend to achieve the desired amount of security?

Here is a source to frame the border security debate.


The path to citizenship resolution, does not necessarily deal with border security as much as what to do with the millions of illegal immigrants that are already here and in many cases contributing members of the economy.  Some feel there should be a procedure for these individuals to achieve legal status and eventually be granted citizenship.  In my view this topic is very complex with many avenues to debate because the path to citizenship has requirements and often each the requirements are controversial.

This source discusses some of the policy implications of proposed legislation.

 Your comments or opinions are welcome.

Tuesday, October 22, 2013

A Glimpse of the November Topics

The Galactic Super-Novice

Last Saturday we witnessed the perceptible bursts of light which emit from the surface of novices at their first tournament.  The very visible moments when exhilaration overtakes fear and a certain realization that everything the coach and teammates have being saying until now, really are true.  Even by our standards, the first novice tournament of the season is a small one.  First off, it's in a remote location, an hour from everywhere.  Secondly, a more conveniently located University offers a competing Policy Debate tournament each year at the same time, and while not every school in our district does Policy it does seem to siphon off some of the support for the novice tournament which also includes Policy Debate in its competitive schedule.  Nevertheless, the tournament is efficient, the hosts are very accommodating and everyone gets home in time to watch their favorite college footfall teams. O..H..

Inside the Tab Room

Typically the novice tournaments are judged by student debaters, most of whom are current varsity debaters.  The coaches tend to mill around in the tab room.  For many, it is the first time they have seen one another since last season so there is a certain comfortable familiarity as old acquaintances reconnect and catch up on various happenings.  Over in speech-world, the coaches were relaxed and friendly even though as the year progresses toward the major district qualifying tournaments the intensity will no doubt increase as it does every year.  For what it is worth, when I first began working as a debate coach, speech-world was like another planet to me, full of drama and energy that seemed to burst out of competitors in strange and unnatural ways.  But most amazing to me, the same kind of drama and energy emanated from the coaches as well.  It is a foreign world to me, but I must confess, over the years it is a world for which I gained enormous respect for the work and dedication of these students and coaches. And seriously, who possibly was not entertained by "Tammy the T-Rex" at the NFL National Tournament?  Even a die-hard debate coach like myself thoroughly enjoyed it..


At this tournament, I did my duty tabbing debate, Lincoln-Douglas, Public Forum and Policy.  I also helped tab Student Congress which probably took as long as all the others combined.  In fact, it took twice as long since I foolishly exited the tab sheet without saving the results.  Clearly a rookie mistake.  When I first started tabbing several years ago, Congress was tabbed by a district Congress guru who had special spreadsheets all prepared and no one was quite sure what he did, but somehow results were always tabbed to every one's satisfaction.  Today we use Speechwire for most district tournaments which handles Congress tabbing as well as every other speech and debate event we do with relative ease.  Even I can do it, though some of my colleagues may dispute that claim.

A Recap of Sorts

I think there would be little gained from discussing particulars of cases which were run in a novice tournament judged by students.  Besides, I am not inclined to ever discuss the cases I have personally judged until the regular season or topic has ended.  I feel a certain responsibility to my fellow coaches not to broadcast their kids' cases to the world.  I stick to that creed even though I know that midway through the topic everyone knows their competitors cases anyway.  So, for what it is worth, and I think perhaps it is worth very little, I will tell you the PF ballots overwhelmingly went Con and the LD ballots went Aff in the first round.  Nevertheless, the ballots in PF and LD split right down the middle afterwards and so it continued until the end of the tournament.  My final analysis?  It's way too early to tell.  Sorry.

Monday, October 14, 2013

PF Nov 2013 - NSA Surveillance - Pro Support



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


For part 1 of this analysis, click here.


Can Pro Win?

Back in August, our local debate camp ran a topic very similar to the present NSA domestic surveillance topic.  There was a general "feeling" this topic would appear sooner or later in 2013/2014.  At that time, we heard several practice debates by novices and a few varsity teams and I was struck at how speculative the debates were.  Snowden had been grant asylum only a few weeks prior to the camp and much of the information about the nature and extent of the domestic surveillance was "fresh" to say the least.

Let us consider for a moment, the proponents of the two opposing sides of this debate.  On the Pro side, we mostly have government officials telling us how successful the NSA programs have been in stopping terrorism, yet we have subsequently learned that perhaps 54 thwarted terror attacks was a bit overstated.  On the Con side of the debate we have the "Guardian" newspaper and reporter Glen  Greenwald who broke the NSA story on June 5, 2013 and the Guardian has continued to push the momentum and sell papers.  Since Edward Snowden first leaked his information to the Guardian, it is the source of much of the wide-spread anti-surveillance reporting today.  Somewhere between the Pro and Con with all of their potential overstatements and exaggerations, the truth may exist.  In reality, many years from now, we may be able to look back on this period of history and decide whether the NSA programs where beneficial or detrimental to .. uh .. whatever our framework suggests we should use as a basis for our decision.

At this point, since the popular media and much of academia seems to be reacting in accordance with the Con side of the debate, I have to wonder, is it possible for the Pro to win?  As it turns, out, I think the fact there is so much blow-back against the NSA may actually be leveraged to the advantage of the Pro.  Here's how.


Never Ending Stories

Words posted on the internet take on a life of perpetuity, even after being discredited.  It is the reason email and Facebook campaigns seem to constantly be recirculated long after the information claimed in the message has been discredited or proven false.  If the NSA is casting a wide and indiscriminate net over the privacy of individuals and scrutinizing the personal conversations, texts, and status of U.S. citizens, it is the kind of information that weighs heavily in favor of the Con unless there is some significant benefit to be gained from the loss of privacy.  There may even be some legal basis for voting Con since the Supreme Court has historically taken a dim view on any violation of fourth amendment principles for US citizens.  However, if Pro can show the problem is not as wide-spread as the Con claims, the Con case is discredited and soon the Pro can cast doubt on all of the Con claims.  It is a very common tactic in the courtroom; discredit the witness or show one instance of the witness being dishonest and we can question how one can believe anything the witness says.  If some of Con's evidence is exaggerated or dishonest, perhaps ALL of Con's evidence is exaggerated or dishonest.


The "Back" Story

Of course, Con will tend to favor those "in your face" stories which tout governmental and specifically NSA abuse of your personal information.  However, often, conflicting or revised information is later revealed, but these stories may not make it on page one.

Blodget 2013:
"Yesterday, the Washington Post reported a shocking story about how the FBI and National Security Agency had partnered with Google, Facebook, and many other tech companies to spy on the tech companies' hundreds of millions of users. The government agencies, the Post said, were "tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time. ...And now, 24 hours later, after more denials and questions, the Post has made at least two important changes to its spying story. First, the Post has eliminated the assertion that the technology companies "knowingly" participated in the government spying program. Second, and more importantly, the Post has hedged its assertion that the companies have granted the government direct access to their servers. The latter change is subtle, but important. In the first version of its story, the Post stated as a fact that the government had been given direct access to the companies' servers. Now, the Post attributes the claim to a government presentation--a document that has been subjected to significant scrutiny and skepticism over the past day and that, in this respect, at least, seems inaccurate. In other words, the Post appears to have essentially retracted the most startling and important part of its story: That the country's largest technology companies have voluntarily given the government direct access to their central servers so the government can spy on the tech companies' users in real time."


Liepman 2013:
Unfortunately, during the Snowden affair, many news outlets have spent more time examining ways the government could abuse the information it has access to while giving scant mention to the lengths to which the intelligence community goes to protect privacy. We have spent enormous amounts of time and effort figuring out how to disaggregate the important specks from the overwhelming bulk of irrelevant data. This is done under tight and well-thought-out strictures. I witnessed firsthand the consequences of breaking the privacy rules of my former organization, the National Counterterrorism Center.


Dilanian & Demick 2013:
But analysts said that Snowden seems to have greatly exaggerated the amount of information available to him and people like him. Any NSA analyst "at any time can target anyone, any selector, anywhere," Snowden told the Guardian. "I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant to a federal judge to even the president if I had a personal email." Robert Deitz, a former top lawyer at the NSA and CIA, called the claim a "complete and utter" falsehood. "First of all it's illegal," he said. "There is enormous oversight. They have keystroke auditing. There are, from time to time, cases in which some analyst is [angry] at his ex-wife and looks at the wrong thing and he is caught and fired," he said.

Impeach the Witness

It could be, in the future, when we look back at this period of history one of the main lessons we can extract is the value of good reporting and perhaps how it imploded in the early part of the 21st century.  I suggest that Pro can indict the press which rushes to "break" the story often without fully vetting the facts as a strategy for impeaching the witness.  Once the sources of the story are discredited in small details, the large details are called into question.

Joyner 2013:
My problem isn’t that the [Washington] Post got the story wrong but that they didn’t more prominently update their readers on their new understanding of the facts as it evolved. It’s unreasonable to expect papers to sit on breaking news for days until they’ve tripled-checked the facts. But if we’re going to accept that instant reporting means frequently getting it wrong, then it stands to reason that we should also expect instant updating so that the ongoing reporting is as right as it can be. Compounding the problem are the complexities of this particular episode. First, as I’ve been noting all along, the Top Secret subject matter means that there’s an incredibly sophisticated apparatus working to hide the truth from the public. Second, the highly complex nature of the technical enterprise means that most of the people reporting and commenting on the story—yours truly absolutely included—don’t fully understand what they’re talking about even within the true facts at their disposal. Third, while Greenwald is both a dogged reporter and scrupulously honest in his reporting, he’s also an unabashed activist with a not-at-all-hidden agenda. He fundamentally opposes the national security state, the war on terror, and even the notion of classified information. While he would never knowingly publish false information, he’s eager to run with credible-seeming information that shows the national security state run amok.
I think I have included enough here for you to get the idea.  Pro cases will win this debate, I have no doubt.  The question is, will they win because they have the better case or because the Con lost and does it really matter if the "W" is only thing that matters in debate?



Sources:

The Washington Post Has Now Hedged Its Stunning Claim About Google, Facebook, Etc, Giving The Government Direct Access To Their Servers; Business Insider
Henry Blodget Jun. 7, 2013
http://www.businessinsider.com/washington-post-updates-spying-story-2013-6

NSA Surveillance Threat to Privacy Being Exaggerated, Former CIA Official
Andrew Liepman, August 11, 2013
http://www.matthewaid.com/post/57960029370/nsa-surveillance-threat-to-privacy-being-exaggerated

Apple, Google, Microsoft, And Facebook Deny Involvement In Massive Government Spying Program; Buisness Insider
Jay Yarow, Jun 6, 2013
http://www.businessinsider.com/apple-prism-2013-6

Analyst overstated claims on NSA leaks, experts say; Los Angeles Times
Ken Dilanian and Barbara Demick, June 10, 2013
http://articles.latimes.com/2013/jun/10/nation/la-na-spy-access-20130611

NSA Bombshell Story Falling Apart Under Scrutiny; Key Facts Turning Out to Be Inaccurate; The Daily Banter
Bob Cesca, June 08,2013
http://thedailybanter.com/2013/06/nsa-story-falling-apart-under-scrutiny-key-facts-turning-out-to-be-inaccurate/


The real story in the NSA scandal is the collapse of journalism; ZD Net
Ed Bott, June 8, 2013
http://www.zdnet.com/the-real-story-in-the-nsa-scandal-is-the-collapse-of-journalism-7000016570/


NSA PRISM Story Overhyped; Outside the Beltway
James Joyner, June 9, 2013
http://www.outsidethebeltway.com/nsa-prism-story-overhyped/

Tuesday, October 8, 2013

LD Nov/Dec 2013 - The Affirmative Dilemma



Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.


For part one of the analysis, click here.


Affirmative Dilemmas

As debaters struggle to make some sense of the affirmative position of this resolution, I will try to take the interpretation of the resolution into a more pragmatic point of view.  I wonder if this resolution was not written by a lawyer, who is more intimate with the issues and ethical dilemmas that lawyers face which are only revealed to the public in a few high-profile cases or  perhaps a monotonic TV expose' dealing with travesties of justice.  In general, if a client confesses an intent to commit a future crime, the lawyer has an obligation to reveal the knowledge.  But if the client confess past crime in the context of a criminal investigation the rules get a lot more murky.

First a disclaimer.
I am not a lawyer, or a student of the law so I may not be entirely accurate in all of my statements, so I urge you to do your own research.  Here is my interpretation.

If a client confesses a crime and it is clear that failure to reveal that confession will result in some kind of bodily harm or death to other persons what should the lawyer do?  What should a lawyer do if an innocent person is about to be or has been wrongfully convicted?  These are presently moral and ethical dilemmas for attorneys.  In a system which values truth, one may argue the lawyer has a moral duty to expose the truth in order to avoid harms to the innocent.  This is especially relevant if it is clear the information will not be discovered in the course of a normal adversarial proceeding.

These issues where addressed somewhat explicitly by the American Law Institute (ALI) in an edition of its Restatements of the Law Governing Lawyers.  Suppose a lawyer learns from a client, the client committed a crime for which another was convicted and will be executed.  Under previous interpretations, it was declared that since no future crime was threatened, the lawyer had an ethical duty to withhold the information.  In 2002, there was a revision which provided some relief by declaring that information which may reveal potential harms or crimes could be ethically revealed.  Basically if there was a reasonable certainty that withholding the knowledge would result in "substantial bodily harm", the lawyer should reveal the information.  The American Law Institute's "Restatements..." are not law.  They are more like standards governing behavior.  However, some jurisdictions have enacted laws which follow the ALI statements.

Moliterno (writing in 2007):
At present, at least when wrongful incarceration is occurring, two states are on record as answering this question in the affirmative, although both used expanding modifications in the Model Rule 1.6(b)(1) language to achieve that result.93 According to Massachusetts Rule 1.6(b)(1), a lawyer may reveal information "to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another, or to prevent the wrongful execution or incarceration of another...Neither Massachusetts nor Alaska would allow a lawyer to rectify a wrongful conviction that was not currently producing incarceration. The balance point has been struck as follows: Rectifying a wrongful conviction alone does not warrant revelation of client confidences; rectifying a wrongful conviction that is producing incarceration does
.

The American Bar Association (ABA) also addressed the issue and amended its guidelines.

Strutin 2010:
The ABA Model Rules of Professional Conduct (ABA MPRC) has changed the landscape of attorney-client relations by creating an exception to confidentiality. Under the MRPC Rule 1.6(b)(1) a lawyer may "reveal" or "use" confidential information "to prevent reasonably certain death or substantial bodily harm." And Massachusetts' version extended it further to allow disclosure in order to prevent "wrongful execution or incarceration of another."



I urge you to check the sources, especially the Strutin evidence as it contains many links to case examples and various studies on the issue.


Affirming Truth

Having gotten a glimpse of the ethical dilemmas faced by members of the criminal justice system, the Affirmative debater may organize a pragmatic case which elevates truth-seeking above attorney-client privilege as a way to avoid the illustrated problems.  It does not take a huge leap of imagination to see how such a position protects the innocent and serves the interests of society.  Affirmative debaters do well to remind the judge that A-C privilege is not a right, it is a privilege and privileges can be taken away if situations warrant.

Negating Truth

The negative position is not substantially changed if the affirmative side chooses the pragmatic debate illustrated above.  Nearly all legitimate criminal justice systems around the world protect clients from self-incrimination so clients can avoid making such statements.  Even if the affirmative decides the truth should prevail under an exception basis, it devalues the supremacy of truth.  This seems to force the affirmative to defend truth-seeking without exception which allows negative to present all of the arguments why a such a general rule is present not in the status quo.


Sources:

Wrongful Conviction and Attorney-Client Confidentiality
Ken Strutin, 2010
http://www.llrx.com/features/wrongfulconvictionconfidentiality.htm

Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client's Confidences to Rectify the Wrongful Conviction of Another?
JAMES E. MOLITERNO; 2007
http://www.hastingsconlawquarterly.org/archives/v38/i4/moliterno.pdf

Monday, October 7, 2013

PF Nov 2013 - NSA Surveillance - Con Position


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


For part 1 of this analysis, click here.



Con Position

Just like the Pro, Con will need to set up a weighing mechanism to give the judge the tools she will need to evaluate this case.  (See my comments on weighing mechanisms in the Pro analysis here.) On this side of the debate, teams must at least prove the harms (the negatives, the downside, the costs) of domestic surveillance at minimum cancel out any benefits or outweigh them.  No doubt, a huge part of the Con case will center around the principle of rights and liberties; the erosion of personal freedoms.  At stake is a debate on natural security interests versus personal liberty.  It is the dilemma of social contract which begins to require more and more that citizens relinquish freedoms in order to exchange for protection. Despite the obvious contentions,  I won't spend much time discussing this approach here

This surveillance program is in place for one and only one reason; to prevent another major terror attack like the one experienced on 9/11.  The evidence arising from that act revealed, that the terrorists are "living among us" and when suspected terrorists enter the country it is very difficult to track their activities and whereabouts in a coordinated way.  In the beginning, the NSA mandate was to isolate activities which involved individuals within the nations borders, interacting with suspected terrorists outside of the country.  Often, intelligence gathered outside of the country, such as a captured terrorist's cell phone revealed phone numbers of people inside the U.S.  When this occurred, investigators could obtain probable cause warrants and have phone data collected for the phone inside the country and the investigation would proceed accordingly, to identification, and location of the individual involved.  Nevertheless, soon after the NSA was created, it began collecting "meta-data" on the calls of nearly all U.S. citizens without warrants.  It is claimed the data contains basic information which does not identify the individuals and indeed, the phone companies themselves have this data as a means to verify billing records.

The Incredible Intangibles

There is little hard-evidence to support the Pro or Con side of the debate. Let's be honest.  The Pro evidence supporting benefits is mainly based upon the limited revelations made by government and NSA officials.  Of course they are going claim success. It keeps them and whole lot of other folks employed.  As for the harms, how do we put a cost on them since no doubt Con will be relying on the general contention that Americans are having their rights violated and yet, even though there is a general sense this is bad, individuals are unwilling to force Congress to reverse the mandates and they have not curtailed their day-to-day activities which are subject to NSA data collection.  So it seems the benefits are incredible (as in, lacking credibility) and the harms intangible.  For this reason, I feel it is perfectly reasonable, perhaps even necessary for the Con to play every emotional impact card it can.  Let it be known, for example, there is little to no verification of NSA successes, there is little to no evidence to support the legitimacy of their activities and methods since it is cloaked in secrecy, let it be known the FISA court is an arm of the Executive branch and there is a kind of fox guarding the hen-house system of checks and balances in which each party has a interest to justify its own existence and let it be known that in the past the FBI and similar law enforcement agencies have done a stellar job protecting Americans, even if major improvements were or are still needed since 9/11.  On the Con side, the erosion of rights is occurring slowly but nevertheless it is happening as surely as the forces which shaped the Grand Canyon.  Yeah, these kinds of impact statements may be extreme and may even be proven false, but they serve to poison the well.

Government Abuse

The government is comprised of bureaucrats, contractors, administrators, and millions of people and to think they all act with utmost regard for individuals rights and moral integrity is simply naïve thinking.  We are constantly seeing "failures" of the system to safeguard liberties, from the egregious felonies like the Watergate scandal of the 1970s to the very recent charges of IRS targeting of tea-party organizations.  With so many points of failure, failure is inevitable.

Wingfield 2013:
What does this latest revelation have in common with at least two of the scandals the Obama administration is fighting at the moment? How is it like the Justice Department's overly broad seizure of phone records -- office, home and cell -- for multiple Associated Press journalists, as well as DOJ's aggressive efforts to obtain access to even personal emails sent by a Fox News reporter (even as government officials use personal accounts in an apparent attempt to evade freedom of information laws)? And how is it like the IRS's ideologically slanted efforts to scrutinize conservative groups, including not only its delays of processing their applications but, when the agency did act, its ridiculously broad requests for information such as all Facebook posts, the nature of prayers spoken at some of the groups' events, and even speculation as to whether any of its members might one day run for elected office?

Jacobson 2013:
Prosecutors have become kings, with the ability to find a crime committed by just about anyone.  Data mining and access to internet activity can help find terrorists, but it also can be used to find crimes which were not previously known to have been committed by political opponents. A “find the target first, then find the crime” political approach requires access to information of an unprecedented level.  Which is exactly what is happening.

Carney 2013:
...why should law-abiding citizens mind federal surveillance? The answer begins with this distressing reality: None of us scrupulously obeys the law. Technically speaking, we're all criminals. Federal and state criminal statutes have multiplied like rabbits over the decades, and so now everyone breaks the law, probably every day. Copy a song to your laptop from a friend's Beyonce CD? You just violated the Digital Millennium Copyright Act. Did you buy some clothes in Delaware because they were tax free? You're probably evading taxes. Did you give your 20-year-old nephew a glass of wine at dinner? Illegal in many states. Citizens that the federal government wants to indict, the federal government can indict if it monitors them closely enough. That's why it's so disturbing to learn that the federal government doesn't need to obtain a warrant on us in order to get our emails and phone records.

Cyber Hacks

While we have no way of knowing how secure the data being collected by the NSA actually is, we do know that foreign and domestic entities are continually trying to penetrate and hack secure systems for whatever purposes they feel are worth the risks.  Suppose the NSA is hacked and data is stolen.  Should we be concerned? Would we even find out?

Friedersdorf 2013:
According to the Washington Post, "An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances." And this week, we learned that the FBI, CIA and NSA were unable to protect some of their most closely held secrets from Glenn Greenwald, Richard Engel, Robert Windrem, Barton Gellman,  and Laura Poitras. Those journalists, talented as they are, possess somewhat fewer resources than foreign governments!...In the wrong hands, it could enable blackmail on a massive scale, widespread manipulation of U.S. politics, industrial espionage against American businesses;,and other mischief I can't even imagine. The plan is apparently to store the data indefinitely, just in case the government needs it for future investigations. Don't worry, national security officials tell us, we won't ever look at most of it. Do you trust the government to keep it secure, forever, if others try to look?

The High Cost of NSA Security

For the cost-benefit analysis it is necessary to look at hard data, or least as hard as it gets and while the true cost of the harms are yet to be known, a picture is already beginning to emerge.

Masnick 2013:
A new study suggests that the direct losses to US tech companies from people and companies fleeing to other services (often overseas) is likely to be between $22 billion and $35 billion over just the next three years. Germany is already looking at pushing for rules in the EU that would effectively ban Europeans from using services from US companies that participate in NSA surveillance programs (which is a bit hypocritical since it appears many EU governments are involved in similar, or even worse, surveillance efforts).


Questions of Legal Compliance

The laws regulating the functioning of the NSA are very difficult for the Con to claim they are anything but "legal".  However, understanding whether or not the NSA is actually in compliance with the law is a different matter entirely.  In 2011, this matter was reviewed U.S. District Judge, John Bates whose opinion contained a footnote which cited inconsistencies in how the methods used by the NSA were depicted to the court.

Marcus 2013:
.
..the court’s approval of the National Security Agency’s telephone records program was premised on “a flawed depiction” of how the NSA uses meta-data, a “misperception . . . buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated oversight regime. “Contrary to the government’s repeated assurances, NSA had been routinely running queries of the meta-data using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been ‘so frequently and systemically violated that it can fairly be said that this critical element of the overall . . . regime has never functioned effectively.’ ”


For All These Reasons and More...

For the purposes of this post I have limited the evidence to items other than the expected claims of loss of liberties. Loss of liberties is real.  It is something, I personally am concerned about but it is one of those things that is very difficult to make a case around when the other side is going to be citing the devastating effects of terrorism.  Nevertheless, I feel I have given you enough to begin your research.


Click here - for another approach to the Pro case


Sources:

Tim Carney: Even law-abiding people should oppose surveillance; Washington Examiner
TIMOTHY P. CARNEY; JUNE 9, 2013
http://washingtonexaminer.com/tim-carney-even-law-abiding-people-should-oppose-surveillance/article/2531452

The latest sign of a federal government that knows no limits; Atlanta Journal Constitution
Kyle Wingfield; June 6, 2013
http://www.ajc.com/weblogs/kyle-wingfield/2013/jun/10/negatives-widespread-nsa-snooping-outweigh-benefit/

When everything is a crime, government data mining matters; Legal Insurrection
William A. Jacobson, June 8, 2013
http://legalinsurrection.com/2013/06/when-everything-is-a-crime-government-data-mining-matters/?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed%3A+LegalInsurrection+%28Le%C2%B7gal+In%C2%B7sur%C2%B7rec%C2%B7tion%29

What If China Hacks the NSA's Massive Data Trove?; The Atlantic
Conor Friedersdorf Jun 8 2013
http://www.theatlantic.com/technology/archive/2013/06/what-if-china-hacks-the-nsas-massive-data-trove/276637/

Cost-Benefit Analysis Of NSA Surveillance Says It's Simply Not Worth It
Mike Masnick Aug 9, 2012
http://www.techdirt.com/articles/20130807/01194124092/cost-benefit-analysis-nsa-surveillance-says-its-simply-not-worth-it.shtml

The NSA is losing the benefit of the doubt; The Washington Post
Ruth Marcus,August 22, 2013
http://articles.washingtonpost.com/2013-08-22/opinions/41435729_1_oversight-nsa-national-security-agency

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/

Saturday, October 5, 2013

LD Nov/Dec 2013 - Truth Seeking - Neg Position


Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.


For part one of the analysis, click here.

Neg Position

The Neg does have a certain presumption on its side, in my opinion, and Neg would do well to remind the judge of the long history of American jurisprudence as a model for the world.  Of course, there are many arguments why that may not be entirely true given the numbers of false convictions and the release of dangerous criminals due to technicalities, etc.  But, certainly most people want to believe the system, overall, works so there is no harm in reminding the judge that it is a "very good" system.

I figure Aff will take several positions.  They will indict attorney-client privilege as a feature which obfuscates truth seeking, they may attack the nature of the adversarial system itself, or they may, as I have suggested, simply try to elevate truth-seeking above privilege.  The Neg must be prepared for any or all of these possibilities.  The Neg may claim the adversarial system, in general, and including attorney-client privilege supports truth-seeking as well as supporting other important criteria not least of which is the presumption of innocence.  Additionally, the Neg may claim there is no necessity to try to add more importance to truth-seeking since placing a high-value on truth seeking may result in justification for such practices as extraordinary rendition and torture.

The Legal Support for A-C Privilege

One of the most important rights granted by the 6th amendment of the constitution is the right to have an attorney.  It is the purpose of that attorney to be your advocate and advise you as to the best course of action. As a result it is well established that A-C privilege is necessary and should be protected.  Because our concept of it, rooted in English Common Law, has been well established over 400 years and in fact extends back much farther in time.  As affirmed in Pritchard v United States, even though it can at times be contrary to truth-seeking, it is nevertheless a concept to be preserved and one can ascertain the court upholds attorney-client privilege because its value outweighs any other consideration.

Pritchard v U.S.:


"The privilege that attaches to the communications of a man to his lawyer is of ancient origin. "It is a salutary rule designed to secure the client's freedom of mind in committing his affairs to the attorney's knowledge." 5 Wigmore on Evidence, (2d) Ed. § 2306. "It is designed to influence him when he may be hesitating between the positive action of disclosure and the inaction of secrecy." It is the privilege, however, of the client which the attorney is bound to respect. As Wigmore elucidates it, § 2291, "It is worth preserving for the sake of a general policy; but it is none the less an obstacle to the investigation of the truth..."


It does not necessarily hurt the Neg position to acknowledge A-C privilege is an impediment to the search for truth. In fact it may strengthen the Neg position if it is shown how despite its contrary nature, the recognition of the privilege persists because it is essential to achieving other more important values and the truth is nevertheless exposed despite A-C privilege.

Several Supreme Court rulings have upheld the value of attorney-client privilege, including Hunt v Blackburn in 1888 which elucidated important values when it said A-C privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."

It was also defended in Trammel v United States, Mohawk Industries v Carpenter and Upjohn Co. v United States where the court stated A-C privilege, "puts the adversary in no worse position than if the communications had never taken place."  This statement, is a powerful answer to the claim that A-C privilege prevents truth-seeking.


The Value of A-C Privilege

Any attempt to position A-C privilege as counter truth seeking may lack a full understanding of the application of the privilege in American jurisprudence.  It is applied very narrowly so as to avoid giving the ability to intentionally hide the truth.

Giesel 2010:
Even with this downside, the attorney-client privilege has been an accepted creature of the law for centuries. This acceptance indicates a shared belief that the benefits of the privilege ultimately outweigh the costs. Yet, courts recognize and fear the obstruction of the truth that the attorney-client privilege may cause. As a result, courts have “strictly confined [the privilege] within the narrowest possible limits consistent with the logic of its principle.” As a United States District Court for the District of New Jersey recently stated:
While it is true that the attorney-client privilege is narrowly construed because it “obstructs the truth-finding process,” …, the privilege is not “disfavored.” … Courts should be cautious in their application of the privilege mindful that “it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” … In all instances, the facts underlying any given communication remain discoverable.


The values protected by A-C privilege are enumerated in the following source:

Leong 2007:
Professor Charles Fried argues that the privilege is necessary to the fundamental value of client autonomy, claiming that it is "immoral for society to constrain anyone from discovering what the limits of [the law's] power over him are.'". Professor David Louisell grounds his justification for the privilege in a concern for privacy, asserting that the inviolability of certain relationships is "more important to human liberty than accurate adjudication.,, Expressing a similar concern for human relationships, former Supreme Court Justice Arthur Goldberg once asserted that privileges such as the attorney-client privilege "relate to the fundamental rights of citizens.'" Finally, Professor Charles McCormick argues that:
[0 ]ur adversary system of litigation casts the lawyer in the role of fighter for the party whom he represents. A strong sentiment of loyalty attaches to the relationship, and this sentiment would be outraged by an attempt to change our customs so as to make the lawyer amenable to routine examination upon the client's confidential disclosures regarding personal business...

The business of Criminal Justice is justice which according to many, must be a preeminent value.  Because justice is perceived in a holistic and complex way in association with procedures, declarations and rulings, sometimes the exposure of truth is a secondary concern.

Gardner 1963:
The end of law is justice. Justice has been defined as giving to every man his due and as the ordering of an ideal relation among men.' Yet, in recent times, a broader vision of justice has been set forth as that which considers the entire picture, the totality of competing social interests, as that which makes for civilization, that which raises the powers of mankind to their highest pitch for the civilization of the time and place. Courts have always struggled to achieve justice, ignoring truth at times, when the state of development of the law did not permit them to reach the desired result by the generally presupposed route of truth. Thus, our law has a long history of resort to legal fictions to achieve the desired result. Professor Wu has commented on the matter as follows:
 ..practical reason being the soul of the law, its essential function is to serve the ends of justice. Where the law looks for the truth, it is for the purpose of rendering justice. Where it seems to disregard truth, it is also for the purpose of rendering justice.  . .Law is the measure while the facts are the things to be measured. In other words, although justice is based upon truth, truth alone does not constitute justice. Only on a higher plane can we assert that justice and truth are one. On the human plane, they are inter-related, but do not fuse into a unity. This does not mean that justice is unreal or untrue. It is real and true, but not in the sense that it corresponds with empirical realities. It is real and true in the sense that it corresponds with the reality of the moral order ...

 


The Truth About Truth

So what of the value of truth or knowledge of that which is true?  While it may be intrinsically good it is not always valued. Perhaps we can make the claim that despite the fact some criminal trials, while they fail to fully uncover "the truth" and leave many questions unanswered, are nevertheless satisfactory in their outcomes.  Maybe the reason for this, is truth is not always necessary to make sense of the world.  Perhaps this one reason many philosophers question the real meaning of "truth".

Clark 1990:
Nietzsche's position on truth seems to amount to a denial that any human belief is, or could be, true. He proclaims, for example, that "truths are illusions we have forgotten are illusions" (TL 84; WL 880-1), that "truth is the kind of error without which a certain kind of being could not live" (WP 493), and that there are "no facts," but "only interpretations" (WP 481).


Several other interesting perspectives can be extracted by looking at the philosophies of Baudrillard, Richard Rorty, Jean-François Lyotard and others.  I don't want to dive too deeply into the post-modern theories of truth at this time.  Suffice to say, for the Neg debater in this round, there may be some need to devalue truth as a means to discredit Aff claims that truth must be a preeminent value above all others but one may reasonably question whether truth is a value or merely, as Nietzsche claims, an interpretation of the facts.


Well Enough

I think for the time being, I will leave this discussion of the Neg position where it is and not expand upon it.  Perhaps later I will pick it up and add to it to revise my current opinions.  I am interested to see how this debate plays out and get a feel for what the prevalent position will be.  Then, if I think it will benefit the debate community, I may revisit this topic.


Click here for a pragmatic approach to the Affirmative debate


Sources:

What the Attorney-Client Privilege Really Means
Smith, Gambrell, Russell, LLP; 2003
http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/

Prichard v United States
United States Court of Appeals Sixth Circuit.
April 4, 1950
http://www.leagle.com/decision/1950507181F2d326_1378.xml/PRICHARD%20v.%20UNITED%20STATES

Confidentiality, Privilege: A Basic Value in Two Different Applications
Center for Professional Responsibility; American Bar Association
Sue Michmerhuizen; 2007
http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/confidentiality_or_attorney.authcheckdam.pdf

Upjohn Warnings, the Attorney-Client Privilege, and Principles of Lawyer Ethics: Achieving Harmony
From the SelectedWorks of Grace M. Giesel
Grace M. Giesel; 2010
http://works.bepress.com/cgi/viewcontent.cgi?article=1020&context=grace_giesel

Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys
College of William & Mary Law School; William & Mary Law School Scholarship Repository
Nancy Leong; 2007
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1237&context=facpubs

A Re-Evaluation of the Attorney-Client Privilege(Part II)
James A. Gardner; 1963
http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1586&context=vlr

NIETZSCHE ON TRUTH AND PHILOSOPHY
Cambridge University Press
MAUDEMARIE CLARK; Colgate University; 1990
(While I have not included a link, this paper can easily be found online)

Thursday, October 3, 2013

LD Nov/Dec 2013 - Truth Seeking - Aff Position


Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.

Part one of this series - definitions - is here.

Aff Position

I thought I would touch on this position right away, since it will no doubt be very challenging for some of you, well perhaps most of you.  At the core of the issue, Aff must overcome a profound indoctrination in the minds of most adult LD judges that attorney-client privilege is a defacto, god-given right under the current U.S. adversarial justice system.  Of course, it is not actually one of our natural rights but it is based on Constitutional law and some 400 years of legal precedence.  The right to an attorney is granted by the 6th amendment and the concept of privilege has been more-or-less defended in several Supreme Court cases. Given this reality, there seems to be no way the Aff could ever hope to face off against the Neg and argue against attorney-client privilege in a world that maintains the present adversarial, constitutionally-mandated system of justice.

Fortunately, this is LD debate and we can create any kind of world or evaluation paradigm we want to support our position.  In fact, this is nothing new to LD.  The theory behind truth-testing or comparing worlds paradigms have been established since the 1980s or earlier but where we debate, the theoretical principles of LD have tended to recede from the onslaught of evidence-based absolutism (let's call it the Toulmin model) versus the theoretical or analytical reasoning (let's call it the Plato model).  Nevertheless, I know theoretical and analytical arguments still work and still win debates - but I digress.  Having said that, I think the Aff can establish good grounds for this case somewhere in the middle of the two models.

I am very reluctant to think this should be a clash between the adversarial and inquisitional systems of justice.  If that was the intent of the resolution it could have been more direct in wording.  In addition, if the intent is create any kind of indictment of the adversarial system of justice, why isolate attorney-client privilege as the main bone of contention?  In my opinion, the current practice of "plea bargaining" is more "debatable" by the average high-school student, many of whom do not even know what attorney-client privilege is let alone understand its purpose.

Is this resolution intending to setup a clash between discovering the truth and a practice which obscures the truth?  If so, that is denying in my opinion, the real purpose behind attorney-client privilege.  What real evidence exists that A-C privilege has resulted in failures of justice or more specifically the failure of truth to be discovered? Because, the real clash between truth seeking and attorney-client privilege is difficult for me to ascertain, let alone many high-school students, I intend to focus on the potential clash between truth seeking and the current practices of the U.S. adversarial system of justice, of which attorney-client privilege is an inherent part.  But more importantly, I believe the affirmative position must establish a hierarchical point of view in which truth seeking has precedence over other stated goals of criminal justice.


Taking Precedence

I don't know if the person or persons who worded this resolution chose the words "take precedence over" as a strategic consideration or as a more-or-less random utterance to convey a particular idea and we really have no clue of the particular idea behind those words.  Nevertheless, be it clever forethought, or happen-stance, the key to the Aff case is interpreting that phrase to mean we must first value, we must first consider, we must rank higher, we must lend more importance to.  Nowhere does it suggest we must support one and reject the other.  So for the moment let us consider an Affirmative world in which we believe, truth-seeking and attorney-client privilege are both good but truth-seeking should take precedence.  The affirmative world is one in which, one of the prime objectives of the U.S. criminal justice system is to find the truth and everything else is slightly less important.  Given the possibility of a world where both truth-seeking and privileged speech coexist and faced with the fact that attempting to dismantle the criminal justice system or for that matter adversarial system as we know it and as codified in the U.S. constitution would be an exercise in futility, we can finally hone on some Aff positions.


Seeking Truth

Truth is a difficult concept because it is incredibly difficult to quantify in a universal way.  Each person possesses a somewhat different perspective on what is true.  We can assume "knowing the truth" is often something desirous (though we may not always want to know the truth).  We can assume sufficient inquiry and investigation will lead to truth or at least remove things which are false from the field of inquiry.  For this resolution, the affirmative recognizes truth-seeking, that is, the inquiry of what is true, as having precedence over a particular privilege of the criminal justice system in the U.S.  Therefore it seems fitting, that since much of the business of the criminal justice system is investigation and inquiry, I will make a link between inquiry and truth.

Lynch 2007:
The claim that “truth is a value” can mean quite different things. Two in particular need sorting out. One thing we might mean is the value of true beliefs. It is true beliefs we have in mind when we say that truth is a goal of inquiry. Here’s how I understand this. First, by “inquiry“ I mean the range of epistemic practices we engage in when asking and answering questions, whether banal (“where did I put my other sock”) or sublime (“Can something come from nothing?”). Second, by “goal” I don’t mean something that is necessarily desired. It is true that when we say that something is a goal, of inquiry or anything else, we sometimes take this to imply that we desire it. But truth often seems the faintest of human passions, undesired or actively avoided. In any event, these are matters of human psychology and best left to the experts. So let’s instead say that truth is a goal of inquiry in the sense of being a proper end of our epistemic practices, where “proper end” means something that is worth pursuing, whether we in fact do pursue it. A natural way of characterizing the end in question is James’s demand that we shouldn’t just “believe the truth!” we should “shun error!” It is not just good to believe the truth, then, it is good to not believe what is not true; that is, it is good to believe only the truth.


Protecting the Innocent

Without doubt, everyone (even disgruntled LD judges) will agree that the primary goal of the Criminal Justice System should be to protect the innocent. This takes place in two ways.  First, we try to avoid falsely punishing the innocent and second, we protect the innocent when the guilty are punished by either separating them from society or deterring future transgressions.  The adversarial system of justice is exactly like a debate.  Two opposing sides present arguments in support of their positions based on evidence.  The more persuasive side wins assuming all proper procedures are followed.  The trial then is a sort of test or inquiry into the facts of the case and it is generally believed that two more-or-less equally capable litigants, advocating opposing opinions will expose the truth or at least enough of the truth that a decision can be rendered beyond a reasonable doubt.  But in many ways, while the truth may emerge as a consequence it is not the objective.

It may be a surprise to some that the U.S. system of justice is driven by objectives other than seeking the truth and perhaps in many cases make the knowledge of the truth appear irrelevant.  Additionally, the nature of the system may in fact be detrimental to the desired goal of protecting the innocent.


Findley 2011:
The current American system is marked by an adversary process so compromised by imbalance between the parties—in terms of resources and access to evidence—that true adversary testing is virtually impossible. It is a system in which competing litigants, unequal as they are, control everything from the investigation to presentation of the evidence, and in which their motivation in that process is to win, more than to discover the truth. So motivated, litigants coach witnesses, suppress facts, employ tricks and surprises, distort the truth, and manipulate fact finders. The result is a system that we now know, through the growing record of wrongful convictions, is prone to an unacceptably high rate of false convictions, as well as failures to convict the guilty.


While this may be surprising to many high-school debaters or citizens in general, it is and has been a much debated issue among members of those who know and practice law.

Walfish 2004:


In 1966, Monroe Freedman published a famous article in which he argued that a criminal defense lawyer has a duty to (1) destroy a witness “whom you know to be telling the truth”; (2) “put a witness on the stand when you know he will commit perjury”; and (3) “give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury.”



The article set off a fire-storm of controversy in the U.S. legal world sparking a flurry or articles and responses.  Marvin E. Frankel in a book "Search for Truth" attempted to defend the present system while acknowledging truth may not be the most important value.

Walfish 2004:
Many of the articles on the perjury dilemma and the duty of confidentiality briefly cite Frankel’s The Search for Truth (and his book Partisan Justice, which grew out of the article) for the proposition that adversary combat may not be the most effective means of arriving at the truth. Indeed, the tension between the lawyer’s duty of confidentiality to the client and the lawyer’s duty of candor to the court came to be known as the Freedman–Frankel debate. Very few of these articles, however, advocate implementing Frankel’s proposals or seriously address the issue of a lawyer’s responsibility for truth in an adversarial system...
 
One strand of argument against Frankel’s proposals rejects the idea that truth should be accorded a higher priority in an adversary trial. This position has been argued most forcefully by Monroe Freedman, but others have made similar points. Freedman, in a response that was published alongside Frankel’s article, argued that the American legal system serves other values, like the promotion of individual dignity, in addition to truth. Serving individual dignity, Freedman contended, might sometimes require subordinating—and hence, distorting—truth. One example is the constitutional privilege against self-incrimination. Freedman quoted United States Supreme Court justices who have supported defense attorneys’ obligation to defend clients vigorously, regardless of whether they are guilty. None of the quoted passages explain why this duty exists or what makes it more important than truth, but Freedman offered the following explanation: “Before we will permit the state to deprive any person of life, liberty, or property, we require that certain processes which ensure regard for the dignity of the individual be followed, irrespective of their impact on the determination of truth.”


Debaters will find a wealth of evidence indicting or defending the present system.  I think it is enough for the Affirmative debater to establish the potential harms but it is not necessary to call for reform or advocate another system of justice.


The Role of Truth In Criminal Justice

While we may say the primary goal of the U.S. criminal justice system is to protect the innocent, there is no reason to believe that process can effectively proceed without obtaining some knowledge of the true facts of the case.  Indeed, whether by design or as a consequence, the truth to varying degrees is exposed to the satisfaction of the jurors.  Knowing this, we can link "truth-seeking" to all forms of legitimate justice inquiries and express its true purpose.

Weigand:


None of the potential purposes of the criminal process can be reached unless the judgment has been based on a search for the truth. To reach any of its goals, the process must reflect an honest effort to determine what “really” happened. The truth evidently needs to be sought when “finding the truth” or achieving “truth and justice” are the declared goals of the criminal process. However, a successful restoration of “social peace” likewise presupposes that the relevant facts have plausibly been established; society cannot close the file on a disturbing incident unless convincing factual findings have been made by an agency with authority to do so. The importance of finding the “true” facts is demonstrated by the successful operation of Truth and Reconciliation Commissions5 and similar institutions. In order to achieve closure on traumatic events, it seems more important to determine and make public what actually happened than to impose criminal sanctions.


We can now begin to explain how "truth seeking" is at the core of criminal justice and need not focus on the advantages or disadvantages of adversarial or inquisitional systems.  Further we can establish "truth seeking" as a prerequisite to adjudication.  Therefore "truth seeking" takes precedence over any other procedure or privilege.

Suggested Values

Many values are applicable to this position.  Consider justice, fairness, and equality when guided by the criterion of protecting the innocent.  You may also decide on various societal values such as societal well-being, social justice, or perhaps governmental legitimacy when looking at criteria such as maintaining the rule of law, upholding the social contract or defending the innocent.

Conclusion For Now

My purpose in this post, is lay down a basis for an affirmative position which establishes the necessity of truth-seeking to have precedence without need to reject the existing criminal justice system or the adversarial system of trial.  At this point, I am still exploring some of the possible alternative positions that can be taken.  I do, for example, believe the Affirmative can debate from an alternative world in which truth is an overarching value, however, the many theories of truth can be tricky to articulate in the course of a six minute constructive.  For now, I will leave it as it is and hope the information presented in the post serves to clarify some of the affirmative arguments.  I may revisit this position in the future.


Click here to read the Neg Position


Sources:

Adversarial Counsel in an Inquisitorial System; University of North Carolina School of Law
Richard E. Myers; 2011
http://www.law.unc.edu/components/handlers/document.ashx?category=24&subcategory=52&cid=1019

The Last Straw: The Department of Justice's Privilege Waiver Policy and the Death of Adversarial Justice in Criminal Investigations of Corporations
Julie R. O'Sullivan; Georgetown University Law Center; 2008
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1898&context=facpub

Making Lawyers Responsible for the Truth: The Influence of Marvin Frankel’s Proposal for Reforming the Adversary System; Seton Hall University
Daniel Walfish; 2004
http://law.shu.edu/Students/academics/journals/law-review/Issues/archives/upload/Walfish.pdf

Adversarial Inquisitions: Rethinking the Search for the Truth; New York Law School Law Review
Keith A. Findley, 2011
http://www.nylslawreview.com/wordpress/wp-content/uploads/2012/02/Findley-article.pdf

The Values of Truth and the Truth of Values; Epistemic Value, Millar, Pritchard (ed.) Oxford: OUP.
Michael P. Lynch; University of Connecticut; 2007
http://www.philosophy.uconn.edu/department/lynch/Online_Papers_files/The%20value%20of%20truth%20and%20the%20truth%20of%20values3.pdf

Should We Search for the Truth, and Who Should Do it?; Archives of University of North Carolina Law School
Thomas Weigend (undated)
http://www.law.unc.edu/components/handlers/document.ashx?category=24&subcategory=52&cid=978

Tuesday, October 1, 2013

LD Nov/Dec 2013 - Truth-Seeking vs Attorney-Client Privilege


Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.


Introduction

This resolution seems debatable, right? I mean, there is a balanced division between Aff and Neg, right?  If you think there is, it may be better to skip this part of the analysis and go straight to the Aff and Neg positions.

Attorney-client privilege has been protected for around 400 years and is designed to enable a free and open communication between lawyers and their clients.  Apparently this resolution is asking to consider that "truth-seeking" should come first.  Maybe it is not so clear what that means.  I confess, this particular resolution is difficult for me.  Due to the way it is worded, there are alternate interpretations which can greatly alter the nature of the debate.  At first brush, the topic seems understandable enough.  It seems to be suggesting we should value truth-seeking over attorney-client privilege.  From a legal and practical point of view given 400 years of legal precedence, this seems like a very difficult case for the Affirmative.  However, in a philosophical universe, should we desire to live in a world in which truth takes precedence over privileged communication?


Definitions


criminal justice system

There are lots of definitions for criminal justice system and they are all pretty similar.  Therefore I have chosen a representative definition from the National Center for the Victims of Crime :
The criminal justice system is the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. There is no single criminal justice system in the United States but rather many similar, individual systems. How the criminal justice system works in each area depends on the jurisdiction that is in charge: city, county, state, federal or tribal government or military installation. Different jurisdictions have different laws, agencies, and ways of managing criminal justice processes.1 The main systems are:
  • State: State criminal justice systems handle crimes committed within their state boundaries.
  • Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state.


I use this definition to make a point about the wording of this resolution.  When we speak of the criminal justice system, is the intention we should consider within the boundaries of the United States, the criminal justice system, regardless of its jurisdiction, or should we interpret this to mean "the U.S. criminal justice system" meaning the system whose jurisdiction is U.S. federal law?

truth-seeking

Here again we have a potentially ambiguous term.  Without the hyphen we may be inclined to define the two words separately and thus, we have the idea of trying to find out the true facts.  As a hyphenated term, the meaning can change to describe the process of understanding the truth about past crimes and atrocities so as to avoid repeating them:

ICTJ (undated):
"Repressive regimes deliberately rewrite history and deny atrocities to legitimize themselves. Truth-seeking contributes to the creation of a historical record that prevents this kind of manipulation. It can help victims find closure by learning more about the events they suffered, such as the fate of disappeared individuals, or why certain people were targeted for abuse."


The latter interpretation deals with the values centered around the right to truth. No matter how it is split up, putting an absolute definition on the work "truth" is notoriously difficult.

We could claim truth is a value, or at least knowledge of "what is true" is a value desired by humans and while we may never know absolute truth we may attain a certain confidence that what we know is true because all manner of investigation confirms it to be true.

Merriam Webster defines truth as the quality or state of being true and true is defined as agreeing with the facts; or the quality of being real or genuine.  It defines seek(ing) as to search for (someone or something) : to try to find (someone or something); to ask for (help, advice, etc.); to try to get or achieve (something).

to take precedence over

Merriam-Webster defines precedence as "the condition of being more important than something or someone else and therefore coming or being dealt with first".  It is an interesting that its meaning suggests a thing which is considered first in time order.

attorney-client privilege

For this definition, I refer to the American Bar Association :
"The classic definition of the attorney-client privilege was articulated by John Henry Wigmore as applying "[w]here legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived." While Wigmore's formulation specifically relates to communications made by the client to the lawyer, the modern approach in most U.S. jurisdictions protects communications from the lawyer as well. However, don't be surprised by the argument that the lawyer's answer to the client may only be protected if it, in turn, would reveal the client's question. In any event, the purpose of the privilege is usually stated as meant to ensure full and open communication, candor, and confidentiality between the lawyer and the client."


Presently there are a few exceptions to protection of the communication between attorneys and their clients but for the most part, they are very specific exceptions overseen by a court.


Interpreting the Resolution

For me there are dilemmas in the wording of this resolution.  First, we can't really ascertain the jurisdiction of the criminal justice system in question.  In some cases, if we assume it pertains to investigations at the federal level, we can limit the application to specific examples where knowing the truth can make the difference between a successful or thwarted terrorist attack.  Of course, we can still use that example if the jurisdiction of criminal justice can be interpreted to mean any system of justice within the borders of the U.S.  But if we allow it to mean any justice system, then because there are no other limitations, any confessions made to a lawyer during a legal investigation can be revealed even if the matter is not one of grave national interests.  Without limitations, confessions made any in kind of misdemeanor or for that matter, non-criminal civil case could be revealed in the name of "truth-seeking".  In my opinion, this places a very high value on knowing the truth (which of course, we cannot adequately define).  If clients stop talking to attorneys because they know anything they say can be revealed, it will not necessarily make it more difficult to arrive at the "truth" but it will mean the client may not be properly defended since the legal counsel will not know the whole truth either.

So how do we interpret this resolution?  Is the intent to limit the debate to generally specific high-impact examples or is it strictly a matter of pitting the need to know against privileged communication regardless of the real-world impacts?  Perhaps, as one interpretation suggests, the intent is to limit the debate to fact-finding, truth-seeking commissions set up to investigate crimes against humanity.  It is more appealing for me to limit the jurisdiction to the federal justice system (but believe me, that position is hardly ideal) as opposed to pitting truth against privileged communication in all its manifestations but based on the very open wording, it seems to be what the NFL is asking us to do. A very interesting case, in Massachusetts questions, does attorney-client privilege still apply if the client is deceased? 

Click here to begin exploring the Affirmative position.

Below are some links to kind of frame this topic.

The International Center for Transitional Justice
http://ictj.org/our-work/transitional-justice-issues/truth-and-memory

Attorney-client privilege; Pitfalls and Pointers for Transactional Attorneys; American Bar Association
Raymond L. Sweigart, 2008
http://apps.americanbar.org/buslaw/blt/2008-03-04/sweigart.shtml

At Issue Waiver of the Attorney-Client Privilege in Illinois: An Exception in Need of a Standard
KEVIN BENNARDO, 2010
http://www.niu.edu/law/organizations/law_review/pdfs/full_issues/30_3/Bennardo.pdf

PROTECTING ATTORNEY CLIENT PRIVILEGE WHEN THE THREAT OF LITIGATION ARISES
Brendan Collins,
http://www.gkglaw.com/site/files/protecting_attorney_client_privilege.pdf

ATTORNEY-CLIENT PRIVILEGE: THE ERODING CONCEPT OF CONFIDENTIALITY SHOULD BE ABOLISHED
Duke Law Journal
PAUL R. RICE, 1998
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1026&context=dlj