Wednesday, October 21, 2015

LD Nov/Dec 2015 - Jury Nullification - Negative Position


Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.




Neg Position

The negative side of this debate seems to be a straight forward reversal of the wording of the resolution. In other words, jury nullification ought to not be used in the face of perceived injustice. So, if Affirmative claims any benefits from permitting jury nullification, the negative strategy is simple.  Turn the benefits by showing how they are not benefits and show how jury nullification results in harms which outweigh the benefits which can not be turned.  This is straight forward debate and the way many resolutions should be argued. The most obvious approaches to the Negative will focus upon the illegality of nullification as upheld in many courts and the potential for abuse in that nullification has been used many times to acquit some, who without question, should have been convicted or to punish individuals far in excess of what the evidence and law would permit (particularly in civil cases).  For this analysis, I have chosen to take a little less conventional approach and spend some time looking into the psychology of perception and how the jury system can be undermined by its instinct to uphold justice one way or the other.

Perception as a Standard

In my opinion, one of the biggest issues the Affirmative must deal with is the question of perception of injustice.  There is a demonstrated link between the emotional state of the jury and trial outcomes. The emotion of anger, for example, can evoke a certain manipulated outcome.

Peter-Hagene 2013:
Smith and Ellsworth (1985) found that emotions are associated with appraisals of the environment – in other words, thoughts that interpret the emotion in light of the immediate situation and help us deal with the situation. Some of the cognitive appraisals associated with anger are certainty, tendency to blame others, desire to punish, and desire to correct a perceived injustice (Lerner & Tiedens, 2006; Smith & Ellsworth, 1985). Because anger is associated with certainty appraisals, it tends to reduce depth of processing (Tiedens & Linton, 2001), perhaps because certainty serves as an internal cue that one’s judgment is already accurate and decreases motivation to process information systematically (Tiedens & Linton, 2001). Lerner and colleagues (1998) found that angry participants relied on fewer informational cues (i.e., how much free will the target had) in making their judgments compared to non-angry participants. Further, angry (versus not angry) participants are more likely to rely on heuristics such as racial stereotypes or other readily available information (Bodenhausen, Sheppard, and Kramer, 1994). In addition, attitudes are more likely to influence verdicts when information processing capacity is low (Giner-Sorolla et al.,2002).[11-12]

And...juries can be and oft-times are manipulated by prosecutors and defense attorneys.

Mazzarella
The goal when developing your trial themes and arguments is to make the jurors feel that a result contrary to the one you advocate in some fashion is threatening to them, and hence, fundamentally unjust from their perspective....The challenge is to make the jury feel that if your opponent prevails against you, somehow that will translate to an increased risk that the jurors will somehow, someway, suffer a similar fate....This isn’t always easy, but it is probably more important than all the document review, depositions, legal analysis and other aspects of trial preparation combined. With a sense of injustice guiding its decision-making process, juries will arrive at conclusions that will leave those who ignore the realities of the human psyche wondering as they walk out of the courtroom, heads down, “How in the heck did the jury come up with that verdict?” This is what “jury nullification” is all about. Juries will figure out a way to avoid injustice, even if that means ignoring the facts and the law or at least distorting them to the extent they would lead to an unjust result if followed...As you get used to giving less attention to proving (or arguing) what is just, in favor of concentrating on arousing a sense of injustice, the initially subtle distinction between the two concepts will become more and more clear, and more important your ability to convey that sense of injustice will start to come naturally.[ellipses added for brevity]
The very nature of the proceeding of the trial; jury selection, instructions to the jury, rulings of evidence admissibility all have subtle but measurable impacts on the decision calculus of juries. These influences alter perceptions which affect trial outcomes.

Peter-Hagene 2013:
Nullification instructions seem to have a direct effect on verdicts by priming jurors to be more lenient. After all, the instructions are meant to allow jurors a not guilty verdict even though the law demands otherwise; they are not meant to do the opposite, and allow jurors to vote guilty despite a lack of evidence. Nullification instructions, however, can also lead to harsher verdicts when the crime is perceived as severe (Horowitz, 1985),[32]

The power of nullification can also result in other injustices.

Bellin 2010:
Significantly, if the jury acquits because it believes the consequences of conviction to be excessive, its verdict will be just as final as a verdict based on the weakness of the government’s evidence. Under the Federal Constitution, an acquittal, even if “based upon an egregiously erroneous foundation,” cannot be disturbed.[2236]

In the footnote of this comment, Bellin explains how this power disrupts the justice system and ultimately creates additional injustice.

Bellin 2010:
It is important to recognize that jury nullification is an imperfect mechanism for dispensing justice. In fact, nullification in the face of severe prison sentences can create a windfall for undeserving defendants. For example, two offenders arrested for an identical burglary may face vastly divergent punishments based on their criminal records. It is a clumsy system that, upon allowing a jury to find out that an unrepentant recidivist is facing life in prison, releases the recidivist (through jury nullification), but punishes the first-time offender. Thus, in many ways, statutory reforms of sentencing provisions are a more desirable mechanism for tempering injustice occasioned by those laws.[2236 note 40ff]


Injustice as a Standard

Juries are not questioned after they render their decisions. There is no review, no attempt to reconcile which factors influenced their conclusions, or which perceptions may have shaded their vision.  In fact, quite often individuals' opinions and perceptions are influenced by circumstances which may not be directly applicable to the matter at hand The general (or unrelated) perception of injustice affects the outcomes of even legitimate, fair legal proceedings unrelated to the matter under consideration. For example, if the citizens of a community feels the government is being unjust in certain issues,it fosters a general distrust which carries over into other proceedings in which, ordinarily, the citizens would probably not nullify.

Bowers & Robinson 2012:
Even a credible and just government may commit some salient misstep, and such a blunder may trigger a pernicious spillover effect that leads citizens to misperceive as unfair or unjust even normatively defensible governmental actions, standards, or rules.[179]  These misperceptions could thereafter lead to a loss of deference—for instance, the nullification of a justifiable prosecution or the violation of a justifiable law.  Some scholars have posited that this is precisely what happened domestically during the Vietnam conflict: frustrations with the government’s foreign policies contributed to the counterculture’s perception that the nation’s drug laws were similarly unjust.

Researchers note that the perception of moral correctness of laws affect general compliance with them. While it may not seem shocking that individuals would be inclined to not comply with a law which violates their intuitions of moral correctness, studies show this non-compliance affect spills-over into broader non-compliance.

Bowers & Robinson 2012:
These studies demonstrate that perceptions of the moral correctness of particular laws can affect compliance with them.  Other studies have gone further to show how perceptions of the immorality of a particular law or of some act of the criminal justice system can lead to more generalized effects on compliance.  One, in particular, is a recent investigation by Janice Nadler that looked at how knowledge of injustices by the criminal justice system can affect intentions to comply with the law.  Nadler found that subjects exposed to cases that they viewed as unjust were more likely in a subsequent mock trial to engage in juror nullification.

All of these reasons bring into question the reliability of a jury's intuition or perception of justice as a standard for deciding the law should in a particular case ought to be nullified.

Reason Enough

I think the average debater can find many additional sources to support the Negative side based solely on the illegality of the act as ruled by the Unites States Supreme Court and its massive potential for abuse.

Crispo et al 1997:
In United States v Dougherty, defendents were convicted of breaking into Dow Chemical offices and destruction of private prperty in protest of Dow's manutacture of napalm used in bombs in Vietnam. They appealed on the basis the jurors where not instructed of the power to nullify the law. In his majority opinion, Judge Harold Leventhal noted that the right of jury nullification, although put forth "in the name of liberty and democracy," is the "ultimate logic of anarchy." s His expressed disavowal of jury nullification went further:
To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic ... but [would be] inevitably anarchic. [16]

In many cases, nullification is portrayed as a conscience-stricken minority acting in behalf an innocent defendant being "railroaded" by an abusive legal system. But, a rogue jury, acting in disregard of its vows and instructions under the law can itself pervert justice.  We have historical precedence in many cases in which southern white juries acquitted obviously guilty white defendants accused of crimes against black victims as an example.  Most courts view nullification of the law as a step toward anarchy and even in cases where some laws may be totally out of step with social views, nullification is not a legitimate way to promote change in the status-quo.


U.S. District Court 2008:
The notion that nullification will change the law is drivel. Those who would characterize it as a noble form of civil disobedience are deeply delusional. Under the theory of civil disobedience followed by Gandhi and Dr. Martin Luther King, Jr., it is only appropriate to disobey the law if one does so publicly, in an effort to change the law, and then accepts the punishment. As Dr. King explained in his Letter from Birmingham Jail, “In no sense do I advocate evading or defying the law . . . . That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.” An Open Letter from Dr. Martin Luther King, Jr. to Alabama Clergymen (April 16, 1963), available at http://www.stanford.edu/group/King/popular_requests/frequentdocs/ birmingham.pdf (last visited June 18, 2008). Nullifiers do not openly disobey the law in order to change it. They conspire behind closed doors and cast the law aside at their caprice. This is not civil disobedience; it is anarchy. One who engages in such a practice cannot hope to change the law, but only displace laws altogether. History has not vindicated nullification. To be sure, there have been isolated instances of “benevolent” nullification that “some may regard as tolerable.” United States v. Thomas, F.3d 606, 614 (2d Cir. 1997). Proponents of nullification often cite the acquittal of William Penn in 1670, “John Peter Zenger, the publisher of the New York Weekly Journal [who was] acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws.” Id. at 614. But these examples, culled from bygone centuries, are exceptions to an otherwise abhorrent strain of lawlessness. By and large, when juries have felt free to apply their own law the result was what Professor Randall Kennedy has described as a “sabotage of justice.” [31-32]

The Negative Values

When considering the value framework of the Neg position, one is drawn to the value of social order upheld by the protection of the rule of law.  The overwhelming message of the judiciary is jury nullification is the literal definition of anarchy, a society without uniform law.  The U.S. government is empowered by laws established by a representative democratic republic. The nullifying jury represents a dissenting element; a rogue minority which attempts to operate as a law unto itself.  It is possible, therefore for Neg to consider the value of democracy upheld by equal protection under the law.  While the basic definition of democracy is related to the ideal that everyone has an equal voice, the practical implementation of democracy requires those voices to be guaranteed by institutions and laws. In 2011, Anne Applebaum in an op-ed for the Washington Post, understood democracy to be something more than a group of citizens, voicing their opinions in defiance of established norms.

Applebaum 2011:
In New York, [Occupy Wall Street] marchers chanted, “This is what democracy looks like,” but actually, this isn’t what democracy looks like. This is what freedom of speech looks like. Democracy looks a lot more boring. Democracy requires institutions, elections, political parties, rules, laws, a judiciary and many unglamorous, time-consuming activities, none of which are nearly as much fun as camping out in front of St. Paul’s Cathedral or chanting slogans on the Rue Saint-Martin in Paris.

Consistency of voice is essential to sustaining democratic guarantees of fairness and equality.

Delaune 2013:
The concern that nullification undermines equal protection has some bite, given that defendants accused of the same crime in circumstances where the evidence of guilt is equally clear might obtain differing verdicts depending upon the attitudes of their respective juries toward themselves, their prosecutors, and the crime charged. But at the end of the day, unless all instances of any given crime will be both detected and prosecuted according to the same terms, and tried before the same judge or jury, who will rule upon them consistently despite human fallibility, there is and can be no such equal protection at criminal law.

Conclusion

Jury nullification is a power which on-face appears to be a justifiable exercise of separation of powers, reflected in the oft-repeated notion the Founders have granted to the citizenry the power to check an abusive government.  Permitting such power to a small group of individuals risks the potential for minority rule supplanting the will of the majority and leads to unequal application of the law at best and social disorder at worst.  The U.S. has a system for change within the representative political system and indeed there are many examples of how small movements have grown into a force for effective and worthy change.  The harms inherent in nullification of the law are lightly dismissed by proponents as a small price to pay for the greater good of checking judicial abuse. But nullification is very infrequently used and when it is used, it does not usually represent a consistent expression of public opinion.  Jury nullification is an unfortunate consequence of the American government's attempts to constitutionally protect the rights of the accused. Whereas, clauses such as the right to a trial by jury, and prohibition against double-jeopardy are explicitly granted, nullification is not. We can conclude despite its application in the early periods of U.S. history, jury nullification was never foreseen as essential to American jurisprudence.



Sources:

Applebaum, A. (2011), What the Occupy protests tell us about the limits of democracy, Washington Post, accessed 10/18/2016 at: https://www.washingtonpost.com/opinions/what-the-occupy-protests-tell-us-about-the-limits-of-democracy/2011/10/17/gIQAay5YsL_story.html

Bellin, J (2010), IS PUNISHMENT RELEVANT AFTER ALL? A PRESCRIPTION FOR INFORMING JURIES OF THE CONSEQUENCES OF CONVICTION, Boston, University Law Review, Vol. 90, accessed 10/15/2015 at: https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/BELLIN.pdf

Bowers, J. & Robinson, PH, (2012), Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, Wake FOrest Law Review, Sep.5, 2012, accessed 10/15/2015 at: http://wakeforestlawreview.com/2012/09/perceptions-of-fairness-and-justice-the-shared-aims-and-occasional-conflicts-of-legitimacy-and-moral-credibility/

Crispo LW, Slansky JM, Yriarte GM (1997), Jury Nullification: Law Versus Anarchy. Loyola of Los Angeles Law Review, Vol. 31:1, 11-1-1997, accessed 10/10/2015 at:
http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2073&context=llr

Delaune, Timothy A., "Democratizing the Criminal: Jury Nullification as Exercise of Sovereign Discretion over the Friend-Enemy Distinction" (2013). Dissertations. Paper 787. Accessed 10/10/2015 at: http://scholarworks.umass.edu/cgi/viewcontent.cgi?article=1792&context=open_access_dissertations

Mazzarrella, MC (undated), TIPS FROM THE TRENCHES: Creating the Sense of Injustice, Noteworthy Articles, Law of Office of Janice Deaton, accessed 10/19/2015 at: http://www.janicedeaton.com/noteworthy-articles.html

Peter-Hagene, CL, (2013) Nullification Instructions and Anger Increase Jurors’ Reliance on Attitudes in Verdict Decisions, Thesis, University of Chicago, accessed 10/15/2015 at: https://indigo.uic.edu/bitstream/handle/10027/10219/Peter-Hagene_C.Liana.pdf?sequence=1

US District Court, Massachusetts, United States v Robert C. Luisi, 2008, decision accessed at:
http://online.wsj.com/public/resources/documents/youngnullification.pdf

Tuesday, October 13, 2015

LD Nov/Dec 2015 - Jury Nullification - Affirmative Position


Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.


Aff Position

The wording of this resolution raises a few questions.  After all, jury nullification already is used in the status quo in the face of perceived injustice. The U.S criminal justice system has documented many examples of its use through the last 240 years in the context of some potential miscarriage of justice.  But, jury nullification is not a constitutional right, nor is it actively encouraged, at least not on the federal level, in 2015/2016. So one may wonder, is the intent of this resolution to suggest it should be legitimized in the form of a law authorizing its use? I don't believe so. The facts as I have seen them is, the power of the jury to nullify the law is discouraged throughout the criminal justice system and while the U.S. courts have never openly punished a jury for exercising the power, it has ruled it illegal. Additionally, there have been steps taken to guard against its use, including not informing jurors of the power, and removal of jurors who promote nullification.  For this reason, I think it is correct to view the resolution as a call to continue to permit the practice as a valuable and legitimate response to 'perceived injustice'.  Is it possible the government would actually abuse its citizens?  It is possible in 21st century U.S.A. the laws and their associated penalties could be used by courts to unfairly target certain individuals or groups for unfair or improper treatment? Nah, now go back to sleep and let the older kids debate this topic.

The Founders Supported Nullification

Students of jury nullification will no doubt read of the famous Bushnell's case in which William Penn (founder of Pennsylvania) and William Mead were tried for illegally discussing a religion other than the Church of England. The jury refused to convict despite the preponderance of the evidence. The judge incarcerated the jurors for contempt but a Judge Vaughan released them as he believed it was improper to punish a jury for rendering a decision the court did not agree with.

Duvall:
According to many scholars, the majority of Founding Fathers were in agreement with Judge Vaughan.11 Approval of the jury’s right to nullify is found in “the writings of some of the most eminent American lawyers of the age – Jefferson, Adams, Wilson, Iredell, and Kent, to mention just a few.” Thus, it was not only Anti-Federalists who sought to use the jury as a check against the government, but also well-established Federalists, including even the first Chief Justice of the Supreme Court, John Jay.[412-413]

Certainly any number of activist sources commonly promoting jury nullification will be quick to remind you of a statement from U.S.A.'s first Justice, John Jay, "The jury has a right to judge both the law as well as the fact in controversy." and the sentiment repeated by Justice Oliver Wendell Holmes in 1902, "The jury has the power to bring a verdict in the teeth of both law and fact." These kinds of expressions convey the fact it was commonly believed the role of the jury was to not only discover the facts of the case (evidence, testimony, analysis) but also to render a verdict on the applicable law. 

Carroll 2012:
This vision of jurors and their ole as political actors is present in the Founders’ discussion of the Constitution and the role of the law in postRevol utionary America. They conceived of the jury as the space where the law met the governed and, in so doing, became whole. To the men writing and contemplating the ratification of the Constitution, the jury was a forum where justice emerged because citizens could decide the meaning of the law (as opposed to having the meaning dictated to them by a judge or some other formalized body such as a legislative or executive branch). In this vision, the law was not a static text but a moving one that depended on citizen interpretation, debate, and even dissention in order to survive. It was a true common law. The ordinary man knew it and gave it meaning through his interaction with it, the application of his own moral values upon it, and his acceptance of it. Encompassed in this vision was a right of nullification [670-672]

As Carroll deftly points out in her essay, "The right to a jury is the only right present in both the body of the Constitution and the Bill of Rights." [Carroll:673] and it was would have been in keeping with their revolutionary spirit to establish a citizen body to check the power of an overreaching authority which leads us to the next contention.


The Jury as Bulwark Against Tyranny

In the case of Duncan v Louisiana (1968), a black youth charged with assault of a white teenager was denied his request for a jury trial.  This, denial was eventually appealed to the U.S. Supreme Court where Justice Byron White very clearly explains the purpose of the jury.

Justice White (via Clarke) 1968:
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.  The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.

It should not be surprising the devices utilized to limit the oppression of tyrants in the U.S. finds its roots in the mindsets of the Founding Fathers and in the idealism birthed in the American revolution. Tyranny raises it's head in many places, from the obvious power-grabbing dictator to the subtle but equally oppressive tyranny of a dominate ideology or culture, to an oppressive, rigid justice system.

Ayres 2008:
The importance of the right to a trial by jury in civil cases was also eloquently defended by the late Chief Justice of the United States William Rehnquist when he stated, “The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.”  Indeed, it is fair to say that the “tyranny” from which American and Texas citizens sought constitutional protection was, at least in part, from the judiciary itself. [341]


Nullification Enhances Law

No doubt since the early days of the nations foundation, the system of laws and jurisprudence has matured and strengthened through a natural process of judicial review and public opinion.  In many ways today's system of law is a highly formalized and rigid structure designed to withstand challenges and judicial scrutiny while providing for some discretion by adjudicators in deciding the fate of a guilty defendant. The criticism of law lies in its perceived lack of discretion with respect to individual circumstances or community standards which may justify a different interpretation of fairness or justice. This would require a system that is less formal and more functional.

Carroll 2012:
Alternatively, one can reconstruct the theory of the rule of law around notions of functionalism, as opposed to formalism. In this construction, the rule of law expands to encompass competing visions and legal interpretations. The definition of what is law is shifted from the static text alone to the enforcement and endorsement of that text within the community. This reconceptualization of the rule of law strikes a compromise between what one might call the “rule of text,” which can be static and overly rigid, and the “rule of man” (at the other end of the theoretical spectrum), which can be too unstable and left to every individual to decide. This happy medium recognizes that the law must and will be interpreted in order to achieve larger goals of justice and equity. Sometimes this process of interpretation will confound the text of the law, requiring its modification or even abandonment. But without such a process, the law will lack genuine meaning. [693-694]

Thus we see the jury as an active component of the law, giving it a human face and enhancing its ability to be effective in accordance with community standards. The law, at the right time and under certain conditions, exhibits a needed flexibility through the use of jury nullification.

Brown 1997:
In Dworkin's view, general principles provide a stable source of guidance to decide both individual cases for which no rule is directly on point, and cases in which seemingly literal rule application would yield a result widely considered unjust.  
If people accept that they are governed not only by explicit rules laid down in past political decisions but by whatever other standards flow from the principles these decisions assume, then the set of recognized public standards can expand and contract organically, as people become more sophisticated in sensing and exploring what these principles require in new circumstances, without the need for detailed legislation or adjudication on each possible point of conflict. 
Citizens, then, must discern and act upon the moral principles implicit in prior decisions in addition to explicit rules from courts and legislatures. "Rights and responsibilities flow from past decisions and so count as legal not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presuppose by way of justification." If we assume that laws are justified and made coherent only by the assumption of underlying principle, we can "treat... internally compromised statutes... as unprincipled, and we then have a reason for arguing that no official should contribute to his state's unprincipled acts." Dworkin's approach to law as "integrity" requires that "each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimension of any explicit political decisions. Integrity therefore fuses citizens' moral and political lives: it asks the good  citizen.., to interpret the common scheme of justice ..... [1163-1164 Ellipses appear in original text]


The Inherent Value of Justice

In consideration of the fact this is Lincoln Douglas debate I would be remiss if I did not move beyond the contention level debate and look to the values inherent in the Affirmative position. The most prominent value which stands out and the one I think most novice debates can fashion convincing arguments is justice. We can accept the widely used (though over-simplified) Aristotelian interpretation of justice as "giving each her due".  This brings to mind the concept of "just deserts" which is ingrained into the practice of retribution in the criminal justice system.  It is the jury which assumes the role of the last check between the accused and her loss of property, liberty or life.

Hoffman 2014:
When I use the phrase, “the moral jury,” I mean to evoke a sense that the jury must play, and as an historical matter has always played, a critical role not only in deciding factual guilt but also in deciding moral guilt—that is, gauging, in some fashion, the seriousness of the crime and the justness of the desert. In its most dramatic form, the jury might actually impose the specific sentence. In less dramatic forms, it might issue an advisory sentence, make findings that allow the judge to aggravate the sentence, distinguish between levels of culpability, or even nullify. But in any retribution-based system that is not completely determinate, the jury, which represents a microcosm of social response that single judges never can, must continue to have some voice in expressing the moral judgment inherent in any criminal sentence.  [455-456]

The view of the law as a highly formalized, immutable force will be carried in the Negative contentions if indeed they debate "rule of law" and is implicit in the Affirmative contentions which reinforces the need for a rational mind or minds to evaluate all of the nuances of a situation which justifies nullification. The Affirmative position is one of putting a human face and hope of rationality on the cold metal of institutionalized justice. A pragmatic analysis by the young debater will do well.


The Consequentialist Framework

Finally I wish to close this discussion of the Affirmative position with a discussion of the consequentialist framework. In the ideal sense, jury nullification is viewed as a power for protection of the natural rights. The U.S. criminal justice system is based upon the presumption of innocence and burdens the government or plaintiff with proving their case "beyond a reasonable doubt".  The standard is high because the worst possible outcome arises when an innocent person is deprived of her natural rights. Studies suggest society views good outcomes less favorably if the procedures by which they are attained were unfair. Nevertheless, a bad outcome in the context of criminal justice is a violation of the protection of the innocent which is seen as expression of the social contract. Thus we hold to an ends-based principle of justice. Even under such a framework, the procedure which flies in the face of the rule of law and may be perceived as improper is jury nullification of the law.  But acceptance of the Affirmative case imbues legitimacy to the procedure and thus imparts a sense of fairness upon the procedure which resulted in good outcomes.




Sources:

Ayres, RJ, Jr. (2008), JUDICIAL NULLIFICATION OF THE RIGHT TO TRIAL BY JURY BY “EVOLVING” STANDARDS OF APPELLATE REVIEW, Baylor Law Review, accessed 10/11/2015 at: http://www.baylor.edu/content/services/document.php/119761.PDF

Brown, DL (1997), Jury Nullification Within the Rule of Law, 81 Minn. L. Rev. 1149 1996-1997, accessed 10/11/2015 at: http://www.law.virginia.edu/pdf/faculty/hein/brown/81minn_l_rev1149_1997.pdf

Carroll, JE (2012), The Jury's Second OCming, Georgetown Law Journal, Vol 100:657], accessed 10/10/2015 at: http://georgetownlawjournal.org/files/2012/03/Carroll.pdf

Clarke, C (1968), Transcription of Mr. Justice White, Opinion of the Court, accessed 10/11/2015 at: http://genius.com/The-supreme-court-of-the-united-states-duncan-v-louisiana-annotated

Duvall, KJ. 2012. The Contradictory Stance on Jury Nullification, North dakota law Review, Vol. 88, accessed 10/10/2015 at: https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf

Hoffman, MB (2014), Booker, Pragmaticism and the Moral Jury, George mason Law Review, Vol. 13:3, accessed 10/11/2105 at: http://www.georgemasonlawreview.org/wp-content/uploads/2014/03/13-3_Hoffman.pdf

Huemer, M The Duty to Disregard the Law,” University of California, San Diego, 5/25/2012. accessed 10/10/2015 at: http://philpapers.org/archive/HUETDT.pdf

Friday, October 9, 2015

PF Prioritizing Humanitarian Needs over National Interests - Con Position


Resolved: In response to the current crisis, a government should prioritize the humanitarian needs of refugees over its national interests.


For the start of this analysis, click here.

Con Position

The Con should be able to put together some pretty good stances. Since the main point to discuss is prioritization, the Con should be comfortable in the fact that it does not need to reject asylum-seekers, refugees or anyone else who may under normal circumstances be admitted into a country.  The Con argues a government still has an obligation to uphold its self-interests and more generally the best interests of its citizens, regardless of what melt-downs may be occurring in the outside world.  The Con can say, of course we are going to help.  Of course we will do or part.  Aid to those in need has always been a priority but guarding our self-interests, by necessity,  is more important.

The way this is argued can take several directions. We can start with the general premise which arises from the concept of the social contract, that a government has a duty to protect its citizens, life, liberty and property. Couple that with the idea that dangerous people are lurking at the gates and you have a case which prioritizes protection, or at least, erring on the side of caution. This can be expanded into the realm of internal relations theory of realism which holds to the idea that nations will always act out of self-interest driven not only by duty to citizens but the duty to preserve itself. Now the debate gets really interesting.

Finally, in answer to the question of moral duty which may be argued by the Pro, Con reminds the judge that governments do not have moral agency. This fact is borne out by many sources and even if the judge does not want to buy that argument, Con holds to the position a government's actions are consequentialist in scope, and utilitarian in practice.  And to be clear, the utilitarian responses of government are not carried out by some innate sense of moral obligation. Governments do not feel guilt. They act the way they do because such action is inherent in the nature of legitimate government. They really have no choice.

Heyman 1991:
[John] Locke emphasized that, because government is established for this purpose, it is "obliged" to secure every individual's life, liberty, and property. When it acts contrary to this trust, the government is dissolved and the community regains the right to establish a new form of government. Such dissolution occurs, in Locke's view, where the government invades the rights of subjects, or where it fails to use its power to secure those rights.g° Locke implied that the Glorious Revolution of 1688, in which King James II was dethroned and replaced by William and Mary, was justified on these grounds.[515]

This editorial piece expresses the ideology of the primacy of government protection as well as any. It is because we value all of the services the government can provide, such as guaranteeing a minimum standard of living we must give first priority to national defense.

Daily Mail 2011:
It should go without saying that the first and overriding duty of every government is the defence of the realm. This is not to underestimate the importance of other functions of the state – from maintaining law and order and a trustworthy currency to providing essential services and guaranteeing a decent minimum standard of living for all. On the contrary, it is because we value all these components of our liberal democracy so immeasurably that we attach paramount importance to keeping up our ability to defend them.


The Cost

There is an enormous economic cost to the mass-emigration of millions of people. For example, we can look to this report in the the International Business Times which details the cost to Germany and provides insight into where some of the funds are going.

McHugh 2015:
The cost of caring for refugees and integrating them into German society could cost Germany from 1.8 billion to 3.3 billion euros in 2016, German Labor Minister Andrea Nahles said Tuesday, Reuters reported. Thousands of refugees fleeing violent conflict have been arriving on Europe's shores throughout the summer, and one of the most popular final destinations has been Germany, where the economy is one of the strongest in Europe. The European nation has said it expects to welcome between 240,000 and 460,000 refugees in the coming year, and the cost of caring for that many new people will translate to a high additional cost in Germany's social spending. As of Aug. 25, however, Germany reported a 21.1 billion euro surplus in its national budget, and the money will likely come out of the surplus, a local newspaper reported. Money allocated for refugees would cover costs such as healthcare, education and food assistance. Many of the refugees arriving in Germany have come from Syria and Iraq and do not speak German. The additional budget money would also go to paying for German classes so that the refugees could integrate into society and find work more easily.

But we must recognize that Germany is the strongest economy in Europe and while the costs are high in the short-run, analysts believe they can recover in the long-term when those refugees begin contributing back to the economy through work, innovation and entrepreneurial spirit. However, other nations in the EU and western Asia are not financially well off.  Jobs are in decline, budgets are strained, and the cost of refugees represents a significant percentage of their national budgets.

Malik 2013:
Jordan’s ability to absorb Syrian refugees has become a growing issue. Its fiscal position has deteriorated since the beginning of the Arab Spring; hosting 500,000 refugees has already cost Jordan over $800 million since the Syrian war began, and unrest across the Arab world, particularly in neighboring Syria, has cost Jordan's economy as much as $4 billion. Furthermore, foreign assistance, on which Jordan was able to rely while dealing with the influx of Iraqi refugees, is insufficient. Prime Minister Abdullah Ensour recently stated in an interview that “the foreign assistance extended to Jordan is not enough in the face of the extraordinary numbers of Syrian refugees who have sought a safe haven in the Kingdom since the start of the Syrian conflict in March 2011.”  

Nations like Jordan are straining and the economic conditions in some EU nations are much worse. Greece is essentially on the verge of bankruptcy. High upfront costs for care and resettlement can push some countries over the brink.


Welcoming Terror

It seems while governments are guarding their borders and watching for security breaches, the enemies they fear may be coming right through the open front door disguised as asylum-seekers.

Vermaat 2015:
Muslim extremists and jihadists pretend to be asylum seekers and apply for asylum in Europe, according to reports from intelligence and security services since the mid-1990s. The then Dutch Domestic Security Service BVD (now the AIVD) reported in May 1998 that radical Muslims from Tunisian, Egyptian and Algerian terrorist organizations had applied for asylum in the Netherlands. “These asylum seekers can count on the support of local sympathizers.” And in April 2001 the BVD/AIVD warned of “Islamic war veterans” posing as people who “are looking for asylum or illegal migrants who seek refuge in Western countries who will continue the fight or support it.”

Certainly, members of the United States government are aware of many attempted infiltrations by terrorists or those suspected of complicity or sympathy with terrorist organizations.

Dzubow 2015:
According to a letter from four members of Congress to DHS Secretary Jeh Johnson,  a “recent disclosure [by USCIS] regarding the number of aliens found to have a ‘credible fear’ in cases where the terrorism bar to asylum eligibility may have applied raised the concern that hundreds of known and suspected aliens with terrorist connections may be attempting to take advantage of our country’s asylum system.” The “recent disclosure” from USCIS to the House Committee on Oversight and Government Reform revealed that “the terrorism bar to asylum eligibility may be applicable to 299 aliens who were found to have a ‘credible fear’ of persecution in the first four months of Fiscal Year (FY) 2015, and to 339 aliens who were found to have a ‘credible fear’ in FY 2014.”

But even when governments are aware of the danger possibly admitting a terrorist and actively screening each applicant for asylum, it does not mean they are safe. One standard of refugee care and a defacto human right is the provision for freedom of communication and according to Vermaat's report, Jihadists are trying to actively recruit refugees who are already inside a host country.

Vermaat 2015:
The Dutch National Coordinator for Security and Counterterrorism (NCTB) reported on June 29, 2015, that there are clear indications that jihadists tried to recruit asylum seekers who are currently staying in the Netherlands. This abuse of the immigration system must be tackled. “The intelligence and security services are receiving a growing number of indications from the immigration authorities of matters that could affect national security,” the Dutch  Minister of Security and Justice reported to the parliament in The Hague on June 29, 2015. “This is the result of both awareness-raising campaigns and an increase in the number of asylum seekers entering the Netherlands, particularly from Syria.” Several criminal investigations into efforts to recruit asylum seekers for the jihad began in Holland in the past months.

These sources clearly show the first priority of a government must be its internal security if it is to uphold its duty to protect its citizens.  Of course the asylum-seekers will be treated humanely while detained but the first concern is to mitigate the existential threat to security.


The State of Morality

It is common in nowadays, to attribute moral agency to all sorts of corporate entities such as, well, corporations, and such as governments.  Whereas, it may seem legitimate to pin moral culpability on a sovereign leader or business owner who is the sole decision maker, the identification of moral agents becomes much more difficult and perhaps unjustified in real-world situation of today. First it can be argued a government is essentially a structure erected for the purpose of protecting the rights and security concerns of the citizens. Its purpose is served, not out of some moralistic sense of right and wrong, but simply by virtue of the fact it is built for a purpose devoid of intentions.

Kennan 1985:
The interests of the national society for which government has to concern itself are basically those of its military security, the integrity of its political life and the well-being of its people. These needs have no moral quality. They arise from the very existence of the national state in question and from the status of national sovereignty it enjoys. They are the unavoidable necessities of a national existence and therefore not subject to clasiification as either "good" or "bad." They may be questioned from a detached philosphic point of view. But the government of the sovereign state cannot make such judgments. When it accept the responsibilities of governing, implicit in that accpetance is the assumption that it is right that the state should be sovereign, that the integerity of its political life should be assured, that its people should enjoy the blessings of military security, material prosperity and a reasonable opprotunity for, as the Declaration of Indepenedence puts it, the pursuit of happiness. For these assumptions the government needs no moral jstification, nor need it accep any moral reproach for acting on the basis of them.[206]

Even if it can be argued governments do, or ought to, function under a kind of moralistic code,it would be conceptually different than the moral code upheld by humans, especially in consideration of its relations to other governments.

Sorley 1891:
But the state has to do not only with its own citizens, but also with other states. Can any ethical principle hold of its behavior towards them? Is there any such thing as international morality which bears to states a similar relation to that which the laws of private morality bear to individual men? In this region of foreign relations the conflict between the different views of national morality is accentuated and brought to a point. There is a sufficiently strong analogy between the state and the individual to give an appearance of reason to the assertion that, when different states are brought into relation, their conduct should be governed by the same laws as those which regulate the conduct of individuals. But, on the other hand, the analogy is weak enough at places to give support to such a contention as that urged by Lord Lytton. "First of all," he argues, "the subjects of private morals, that is to say, individuals, differ from the subjects of public morals, that is to say, nations, so widely that hardly a single proposition applicable to the one can be properly applied to the others. In the next place, of the classes of obligations which constitute private morals, only one, namely, justice, has a place in public morals at all; and the sort of justice which finds its place in public morals is totally different from the justice which relates to individuals." [436-437]

From my point of view, expecting states to adhere to or carry out the morality-based duties common to humans in dealing with other nations, and their people fundamentally changes or perhaps disables the inherent purpose of the state to preserve itself and its citizens.

In the introduction to this Con position, I mentioned realism theory and its view of chaos as a norm for describing international relations. If every action of a nation is driven by self-preservation a picture emerges as to why some nations enter into treaty relationships, why some avoid one another, and why, often, states appear unaffected or disinterested in the distress and travails of others.  I leave that research to you, the inquisitive debater.



Sources:

Daily Mail (2011), Shameful betrayal of the state's first duty, Daily Mail Comment, published online and accessed 10/5/2015 at:

Dzubow, J (2015), Congress: Asylum System Letting in Terrorists, The Asylumist, publish online and accessed 10/5/2015 at:

Heyman, SJ (1991), THE FIRST DUTY OF GOVERNMENT: PROTECTION, LIBERTY AND THE FOURTEENTH AMENDMENT, Duke Law Journal, Vol. 41, accessed 10/5/2015 at:
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3172&context=dlj

Kennan GF, (1985) Morality and Foreign Policy, Foreign Affairs, accessed 10/6/2015 at:
http://faculty.arts.ubc.ca/price/373/kennan.pdf

Malik, N (2013), Economic and demographic strains from the Syrian refugee crisis are impacting Jordan’s own domestic balance of power, Carnegie Endowment for International Peace, accessed 10/6/2015 at:

McHugh, J (2015), EU Migrant Crisis 2015: Germany Could Spend Billions On Refugee Care And Integration, Labor Minister Says, International Business Times, accessed 10/6/2015 at:

Sorley, WR (1891), The Morality of Nations, International Journal of Ethics, Vol.1; accessed 10/6/2015 at:

Vermaat, E. (2015), Jihadists Disguised as Refugees, Frontpage Mag, published on line, accessed 10/5/2015 at:














Tuesday, October 6, 2015

PF Nov 2015 - Prioritizing Humanitarian Needs over National Interests - Pro


Resolved: In response to the current crisis, a government should prioritize the humanitarian needs of refugees over its national interests.


For the start of this analysis, click here.


Pro Position

When considering the Pro position of the resolution we need to deal with the fact there is no firm definition which constrains the responsibility of providing for humanitarian needs. Pro needs to avoid the possibly of linking to scenarios which could lead to economic disaster for the host country if it were to be responsible for providing a wide-range of costly services for refugees. Having said that, I can isolate three positions for the Pro. One or more of these positions can be combined into a case for the Pro.

First, nothing in the resolution says the host government must provide any services but certainly it must take some actions to satisfy the topic and that can be as simple as prioritizing opportunities which make it easier for refugees to have their needs met.  From a strictly pragmatic point of view, the government in question can meet the topicality requirements of the resolution by taking a variety of alternative actions which signal it is adhering to a policy of placing greater importance on the refugee crisis than other national interests.  This can include, taking steps to end the conflicts in the region from which the refugees are fleeing, encouraging or incentivizing other countries to provide services for the refugees, or shifting priorities so as to remove barriers which may be impeding others from providing more direct services for refugees.

Second, Pro teams could decide to specify a government should provide a minimal standard of services to sustain humanitarian needs should "refugees" land at their front door. I place the word refugee in quotes because under some definitions, a refugee is an asylum-seeker who's request for asylum has been accepted. Which basically means the host country has already decided to allow the asylee into the country. However, in the current crisis, we can use the words interchangeably since those currently fleeing are "prima facie" refugees.

UNHCR 2015:
During mass movements of refugees (usually as a result of conflicts or generalized violence as opposed to individual persecution), there is not - and never will be - a capacity to conduct individual asylum interviews for everyone who has crossed the border. Nor is it usually necessary, since in such circumstances it is generally evident why they have fled. As a result, such groups are often declared "prima facie" refugees.

Therefore, for the balance of these analyses, I will use the term refugees to designate the mass flow of individuals fleeing their homelands, whether their requests for asylum have been accepted or not. 

Providing basic sustenance and services conducive to a reasonable standard of dignity is not out of the question for those fleeing their homelands. It only requires the Pro to defend a definition of humanitarian needs and chances are they will be topical as long as serving national interests are not a barrier to meeting the definition of humanitarian needs. I doubt anyone thinks nations have obligations to fully integrate refugees into host nations culture.  The expectation is the conditions which drove the refugee from home will eventually end and repatriation is possible should the refugee desire.

Third, the Pro teams could erect a kind of deontological framework which permits arguments which claim, people and thus by extension, their governments, have a duty or obligation to provide humanitarian relief for refugees based upon appropriate moral or ethical principles of right and wrong. While these kinds of arguments are sometimes easier in Lincoln Douglas debate, they are fair ground in PF and justify cases which appeal more to pathos.  Taking this approach can be very powerful with citizen (or any) judges exposed over the last few months to the horrific images of struggle encountered by refugees fleeing their homelands. But we can choose to present this duty to assist as an ethical responsibility to uphold human rights rather than relying solely on appeals to emotion.

Finally, I think it is important, especially for the benefit of your judges, to make a very precise distinction between refugees and migrants.  Generally speaking, refugees are fleeing persecution or death threats mainly due to identification with certain ethnic, political, religious or social groups, often fleeing with the clothes on their backs or only with what little they can carry and do not know when or if they may ever return to their homelands.  Migrants are those who are usually seeking better opportunities, usually plan their travels sufficiently to figure where they are going, and take as many of their belongings as possible, and travel costs, notwithstanding, are free to return home if desired. This is important, because migrants and refugees often travel together and the mixed status of individuals seeking entry into a country complicates the issue. 

UN (no date):
Although moving for different reasons, migrants, asylum-seekers, refugees and other groups increasingly make use of the same routes and means of transport to get to an overseas destination. If people composing these mixed flows are unable to enter a particular state legally, they may employ the services of human smugglers and embark on dangerous sea or land voyages, which many do not survive. UNHCR recognizes the sovereign right of governments to control their borders and ensure their national security, and many states have adopted measures aimed at preventing people without proper documents from entering their territory. However, if applied indiscriminately, those same measures can also create obstacles for refugees and asylum-seekers in genuine need of international protection. While refugees and asylum-seekers account for only a small proportion of the estimated 200 million people on the move in the world today, they are finding it ever more difficult to gain access to countries where they can seek protection.


Minimal standards

Most western nations have procedures for dealing with asylum-seekers. They have signed international treaties in accordance with guidelines established by the United Nations High Commission on Refugees.  There are guidelines for treatment including the all important precept of non-refoulement, which basically means the refuges should not be forced to return to the place from which they have fled.  Under the various agreements, each treaty nation has committed to accept a certain number of refugees.  However, because of the protracted nature of the War in Syria, the spread of the Islamic State throughout the middle east and northern Africa, and because of extreme religious persecution, bordering on outright genocide, an enormous mass of people are on the move seeking asylum and overwhelming the abilities of other nations to accept them.  Under ideal conditions, the host nation will expect to detain the asylum-seeker since most arrive without any form of documentation to verify their status.  Nations are not obligated to accept, criminals, affiliates of terrorist groups, or migrants who are merely seeking a better life.  It is for this reason, asylum-seekers are placed into detention prior to being assimilated.

To provide a guideline for minimal standards of life for refugees we can start by looking to a section of the training Manual for Human Rights Monitoring. Often asylum-seekers are settled into detention camps until their status can be verified by the host government. In these cases, guidelines are published which provide some guidance as to minimal levels of assistance for meeting needs.

OHCHR
The arrival and establishment of refugees and IDPs in camps should thus, ideally, represent an improvement upon the situation which they have fled. Camps should offer some sort of security against the threat of further human rights violations. They should also offer an environment in which the most basic requirements of life — food, water, shelter, care and affection (particularly for children) — can be provided. There are, however, many different factors which determine the extent to which camps provide a positive environment for the respect of human rights.[3]
  
As the manual points out, beyond basic needs, the conditions for camp residents can vary widely due to many situations such as the number of those encamped, the resources available locally, the location, and the expectations of those being held. The UN also establishes guidelines in accordance with international law and basic human rights. The guidelines include, medical treatment, allowance for contact by outsiders, physical exercise, freedom to practice religion, basic necessities (clothes, beds, etc), food, sources for information, educational opportunities and a mechanism to register complaints.[UNHCR 2012, 30-31]


NGOs and Government Support

While there are, no doubt, costs borne by a nation which has agreed to accept refugees, the role of Non-Government Organizations (NGO) is an important factor in mitigating costs for the day-to-day care of potential refugees. Organizations such as the International Red Cross, Doctors without Borders, and multitudes of charitable organization help provide basic provisions, medical services, and general relief for refugees. Additionally, many human rights groups monitor and advocate for the well-being of refugees. Consider the following report from one such NGO called JEN operating in many areas around the globe including Jordan.

JEN
Following the uprising that began in Tunisia on December 18, 2010, a civil protest broke out in southern Daraa in Syria in March 2011 and escalated into armed fights. Surging violence threatened the lives of citizens and kept producing huge numbers of internally displaced persons and refugees for several months. As of January 2015, about 3.8 million Syrian refugees have fled their country and about 7 million people are internally displaced. The number of people in need of help has reached roughly 12 million. Jordan, one of the major recipient countries, has about 620,000 Syrian refugees.

JEN, receives financing from corporate donors, and crowd-funding sources which enables them to provide a reasonable level of care for Syrian refugees in Jordan.

JEN
The difference in culture between People from Jordan and People from Syria is evident in the drastically different way they use water. Moreover, due to the increase in number of refugees, it is getting difficult to provide water equally to all the residents in the camp. In order not to cause feelings of unfairness and discontent amongst refugees, improvement of water situation is a pressing issue. As the length of stay for many of those living in the refugee camps is getting prolonged, JEN has begun building a water supply network located in a camp area that works as an organizing body of water and hygiene related activities. We are working alongside other NGOs and international organizations with the goal of providing safe and stable water supply for the refugees. In addition, as a way of supporting the Water and Sanitation Committee run mainly by the residents, JEN repairs water sanitation facilities, which the committee itself cannot tackle due to its tight budget and lack of technology.
The arrival of refugees strains the budgets of some nations which are hard-pressed to provide needed services.  NGOs often fill the gap.  Besides, corporate sponsors, NGOs are supported by governments such as the U.S. Some governments which do not have good relations with other governments can still support refugees through support of NGOs.  Governmental sponsorship of NGOs providing services for refugees is a good example of how nations can prioritize humanitarian needs over national interests in support of the refugee crisis.

Richard 2014:
The State Department and USAID are major funders of the top humanitarian organizations responding to the crisis in Syria and the region, providing over $1.3 billion in assistance to date. In an attachment to this testimony, I provide a summary of the multi-faceted response that has been mounted by UN agencies and NGOs working with U.S. support, including the UN Refugee Agency (UNHCR), the World Food Program (WFP), the UN Children’s Fund (UNICEF) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Together, these agencies and others are providing food, clean water, shelter, medical care and other basic essentials. They also go beyond these basic needs and seek to protect the most vulnerable members of Syrian society today – displaced children, at-risk women and girls, the elderly and the disabled – from threats as diverse as cold winters, unsafe play areas, poor sanitation, child marriage and violence against women and girls.

Continuing, we see the magnitude of support a country like the U.S. can provide over an above accepting refugees -

Richard 2014:
Since 2012, the United States has provided $300 million in bilateral budget support to the Government of Jordan, on top of our annual budget support, specifically to offset spending Jordan has devoted to hosting refugees from Syria. We have also provided over $30 million to help alleviate strains on the water and education systems. USAID has built five new schools in northern Jordan and is expanding 67 existing schools. It is also supporting a water program focused on water collection, storage, conservation and the repair of water pipelines in communities in northern Jordan hosting a large number of refugees. New programs have also been launched to help community members, parents and schools cope with tensions between Syrians and Jordanians. WFP vouchers are used by refugees to buy food from merchants, thus providing another benefit directly to local people. The United States also provided a $1.25 billion sovereign loan guarantee to help Jordan respond to external pressures, like the Syria crisis, while it continues its economic reform program.The United States has provided more than $96 million through international organizations and NGOs to support the Government of Turkey in its humanitarian response. Our assistance has funded tents, blankets, cash cards for food, cook stoves, schools, education supplies, teacher training, technical assistance and more. We have provided $70 million for programs to help refugees in Iraq, and I was in Erbil in mid-December when UN relief flights began to operate between that Iraqi city and Quamishly in Northern Syria.


The Framework

In a world with well over one million men, women and children fleeing war and persecution, risking their lives to escape the world cannot ignore the scope of the disaster playing out on the evening news in North America, far from the conflict. We are witnessing a disaster of epic proportions and as with earthquakes, volcanoes, hurricanes, and other events, it is time to forget politics and budgets and do the right thing to alleviate suffering.  And so we establish a standard for the Public Forum debate judge, claiming there are times when human lives out-weigh the cost-benefit analysis. There are times when the urgency of millions on the brink of disaster out-weighs low probability risks to security.

Van Arsdale & Nockets (2008):
Humanitarianism, as we define it, involves “crossing a boundary” to help a person in need. The boundary can be economic, cultural, ethnic, psycho-social, or geopolitical, but a metaphorical “stretch” is mandated. The humanitarian herself may be at risk. Whereas some analysts view “boundary crossing” as negative, we see it as positive; the overall notion of sovereignty still is respected. Humanitarianism suggests an understanding of principles associated with the use of scare resources in which a moral imperative is implied. Risk to both service provider and beneficiary is involved. An understanding of human rights is mandated.

The duty to assist is not a question of fairness in the sense it is a shared responsibility.  Each nation should look inward and consider its own response, not the responses of others.

Green 2015:
Consider an analogy. Any swimmer able to help has a moral duty to save a drowning child. He may not look around the pool to see whether the rescue would be less of a hassle to someone else, and he may not let one child drown on the ground that he already saved one yesterday. If he can effectively help, he must. Coordination among refugee-accepting countries is often required—but by effectiveness, not fairness. What matters is getting refugees settled, not how the costs of doing so are distributed (except, of course, where that is instrumental to getting more people resettled quickly).
And Shibbaz makes a link between the humanitarian ideals of human worth and refugee camps which serves as real-world expressions of those ideals.

Shibbaz 2007:
Aside from the practical reasons for refugee camps as outlined above, one can take one step back and examine the underlying reason for refugee camps as such. Refugee camps, to recap, are intended to provide protection for peoples who fear persecution, most notably in the cases of civil war or genocide in their home country. The question now remains, however, is why the international community, the UNHCR and other NGOs in this case, seek to help people who have had to face extreme hardship in their home country. At the core, refugee camps are a form of humanitarian action, that is, a practical realization of an ideology whereby people perform humane treatment and provide assistance to others. Humanitarianism is based on the idea that all humans have equal value and accordingly, they should be treated with respect and dignity. Refugee camps in this light, are then based on the concept of humanitarianism which is, in turn, based on providing assistance to those who need it.

Shibbaz examining the issue of humanitarian assistance more fully, cites Kant's Categorical Imperative and noting as one author claims, "to live a life without human rights is to live a life unworthy of a human being" [Shibbaz, 2007: 19].

Hugo Slim also invokes Kant's Categorical Imperative and strongly argues for a humanitarian imperative which is over-arching to all circumstances relevant to political expediency.

Slim 2012:
Kant’s idea of duty determines that something is always good to do regardless of any conditions. These imperatives are supreme moral principles that make for absolute duties and obvious “oughts.” Their goodness is not dependent on their outcomes. This is moral thinking governed by a categorical “must,” not a hypothetical “if.” Operating on categorical imperatives means that I do something because it is always good, not because I think that if I do it then good may come. Kant sums up the difference:
 "Now all imperatives command either hypothetically or categorically. The former represent the practical necessity of a possible action as a means for attaining something else that one wants (or may possibly want). The categorical imperative would be one which represented an action as objectively necessary in itself, without reference to another end."
From this brief encounter with Kant, it is fairly obvious how international NGOs who have signed up to these three documents understand humanitarian values today. They claim clearly that being humanitarian is a categorical imperative. It is an end in itself. It is an unconditioned “ought” and must never be subject to conditions. There are no “ifs” in the humanitarian imperative. From this moral reasoning flows the idea of humanitarian duties that always exist regardless of circumstances or of aspirations around other competing moral ends. In other words, a Kantian humanitarian would have a lot of problems with the suspension of a humanitarian program as a hypothetical means to leverage a good political outcome on democracy or women’s rights. Equally, in the context of the new “war on terrorism,” an imperative humanitarian would also find grave moral flaws in any strategy that stopped or compromised humanitarian action on the basis of some wider hypothetical arguments about counterterrorism benefits. 

Hugo Slim's approach to the issue de-emphasizes the idea the moral obligation to assist persons isndire need is driven by pity and as I interpret him, the gut-wrenching imagery of a deceased refugee child on a European beach. My interpretation of Slim's view, is one of human rights as a supreme value and the understanding by virtue of our mutual humanity we are entitled to rights and to have those rights respected. It is worth reiterating, a life without rights denies one's humanness which is a tragedy we must address if we value our own human worth.

Sources:

Green, L (2015, The Refugee Crisis is not about Fairness, accessed 10/5/2015 at:

JEN, 2012, Jordan - JEN recognizes the needs in the field and builds and maintains self-reliance, accessed 10/4/2015 at:

OHCHR (2001), Training Manual on Human Rights Monitoring, Chapter 10, United Nations, 2001, accessed 10/3/2015 at:

Richard, AC (2014) The Syrian Refugee Crisis, Washington D.C., Jan 7, 2014, accessed 10/4/2015 at: http://www.state.gov/j/prm/releases/remarks/2014/219388.htm

Shibbaz, K (2007), Failure of Refugee camps: Humanitarian Ideals or Faulty Policies?, Central European University, accessed 10/5/2015 at:
http://www.etd.ceu.hu/2007/shahbaz_kiran.pdf

Slim, H (2012), Claiming a Humanitarian Imperative NGOs and the Cultivation of Humanitarian Duty
Hugo Slim, online at www.humanitarianleaders.org, accessed 10/5/2015 at: http://www.humanitarianleaders.org/wp-content/uploads/2012/11/4.-Claiming-a-Humanitarian-Imperative.pdf

UN (United Nations), Refugees, Overview of forced isplacement, accessed 10/3/2015 at:

UNHCR (2012), Detention Guidelines, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention
UNHCR (2015), United Nations High Commission for Refugees, Asylum-Seekers, accesse 10/3/2015 at:

Van Arsdale, PW & Nockerts, RA (2008), A Theory of Obligation, The Journal of Humanitarian Assitance, May 12, 2008, accessed 10/5/2015 at:

Saturday, October 3, 2015

PF Nov 2015 - Prioritizing Humanitarian Needs Over National Interests - Introduction


Resolved: In response to the current crisis, a government should prioritize the humanitarian needs of refugees over its national interests.


Introduction

It looks like the Public Forum debate community has returned to its "ripped from the headlines roots" and chosen a topic as fresh as the six o'clock news.  Unless you have been in a deep sleep for the last 60 days or so, you no doubt have seen the images and heard the stories poured out in all manner of media concerning the movement of hundreds of thousands of refugees fleeing all kinds of insurrection, persecution and unrest in the Middle East.  It is indeed a humanitarian crisis. But let us not forget, it is a crisis that has been playing out for several years. Now that the waves of humanity have surged over the borders of Asia and spilled into the EU, suddenly the west has seemingly awaken to the sound of knocking on the door. It is a topic that cannot be ignored and I am glad to see we will debate it.

The Definition of the Topic

Let's start this analysis by examining the definitions and intent of the language used in the resolution. While this may seem unnecessary to some, it is helpful to clarify the topic in order to focus one's preparation.  Later it will serve as an aid to keep the debate on point and directed to the desired conclusion.

in response to
Generally a response is an answer or reaction prompted by a stimulus of some type.  The stimulus is some kind of input to the senses which stirs a reaction. This particular usage is intended to serve as a directed reaction or response to a specific stimulus. "In response to" points to a specific circumstance, event or question which expects a response.

the current crisis
This phrase identifies the thing to which our response is directed. A crisis can be loosely defined as a time of trouble or intense problems but that does not properly convey the proper meaning, in my opinion.  A crisis is a turning point or a tipping point between good or bad outcomes.  It conveys a sense of urgency where choices taken can make the difference between life or death.  But it can also be the point of decision between bad and worse.  The current crisis is the tipping point we are facing in the present time. We given the specifics in the next part of the resolution.

a government
Simply put, a government is the collection of people, laws and institutions which officially control a country. While there are many forms of government, we can think of it as the authority which establishes not only how the internal affairs of the country are managed but also how the country will respond to other countries and peoples who are not under the authority of the government in question.

should prioritize
Should in this context is a suggested course of action to be taken in deference to other courses of action.  In this phrase the action to take is to prioritize. Prioritize has two meanings. First it means to consider one thing more important than other things or it means to order (arrange) a group of things according to relative importance. In this resolution, the humanitarian needs of refugees should be considered more important than national interests.


humanitarian needs 
It not so easy to define humanitarian needs.  Obviously they are the needs of humans and so at the most basic level we can assume this means daily sustenance and perhaps shelter from the elements. At a higher level needs may include various kinds of security such as security from physical harm, food security or financial security arising from employment opportunities and on a still higher level needs may include those things necessary for self-actualization.  Sound familiar?  Click here to see the Maslow Hierarchy of Needs. I don't think this needs to be a major point of contention although debaters may choose to make it so.  In my opinion, as needs become more complex, for example when considering the needs required for self actualization, they tend to be more and more individualized and less about those things common to humanity when we apply specific cases.

of refugees 
A refugee is defined by the 1951 U.N. Refugee Convention :
A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 

national interests
National interests are those things the government of a country has decided are the pursuits of the nation. They are the things which the nation considers most important in fulfilling the ambition or goals of the nation.  National interests are not usually focused outward but rather inward toward acquiring the things needed to maintain power and achieve permanence. While the definition applied to national interests may be narrow or broad; specific or vague, it is clear that whatever definition is applied directly affects the country's foreign relations and how it responds to outside events and influences. 


The Interpretation of the Resolution

Based on the resolution requirement to prioritize the humanitarian needs of refugees over national interests we can surmise this resolution is asking us to respond to the current crisis unfolding by the outflow of thousands upon thousands of individuals fleeing war and persecution throughout large portions of Syria, Iraq and other regions in the Middle East.  We have seen this resolution enacted in real life as some nations have attempted to close their borders in order to preserve their national interests while others have open their borders and granted temporary asylum. The responses of the nations in Europe and indeed all of the nations in the world are a living enactment of the resolution as each country decides how it will respond to the current crisis. And the diversity of responses reflects the vagueness inherent in defining what exactly are national interests, what are humanitarian needs, and what is the obligation of nations both legally and morally. The resolution gives us the obligation  and it is up to the Public Forum community to debate.

This could be a very interesting topic.