CIA Negative

so lvency

circumvention

Surveillance reform insufficient – CIA will use delay and secrecy to bypass the SenateHorton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and America’s Stealth Warfare” by Scott Horton, Salon, http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)But the CIA was not simply going to acquiesce to a congressional probe into the single darkest and most controversial program in the organization’s history. Since it could not openly do battle with its congressional overseers, the agency turned to a series of tactics that it had honed over the difficult decades following the Church Committee inquiries of the mid-1970s.

Throughout the subsequent decades, the CIA complained loudly about the burdens of oversight and accountability—while almost always getting its way. Indeed, the dynamics had changed dramatically after the coordinated terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001. In the ensuing years, the CIA’s budget ballooned to more than double its pre-2001 numbers. Moreover, it got the go-ahead to launch programs previously denied or sidetracked, and clearance to encroach on the Pentagon’s turf through extensive operations using armed predator drones. Washington, it seemed, had forgotten how to say no to Langley. Still, the operation of the black site and EIT program involves a strikingly different dynamic—because the spring that fed it came not out of Langley but from the office of Vice President Dick Cheney, inside the White House. Senior figures in the CIA, including the agency’s senior career lawyer, John Rizzo, fully appreciated that the black sites and the EITs presented particularly dangerous territory.

Exposure of these programs could damage some of the agency’s tightest points of collaboration with foreign intelligence services—authoritarian regimes such as Egypt, Jordan, Morocco, Pakistan, Thailand, and Yemen, as well as among new democracies of Eastern Europe, like Lithuania, Poland, and Romania. British intelligence had been deeply involved and feared exposure, considering the domestic political opposition and the rigorous attitude of British courts. CIA leadership was also focused on the high likelihood that the program, once exposed, would lead to a press for criminal prosecutions under various statutes, including the anti-torture act. It therefore moved preemptively, seeking assurances and an opinion from the Justice Department that would serve as a “get out of jail free” card for agents involved in the program. But when those opinions were disclosed, starting hard on the heels of photographic evidence of abuse at the Abu Ghraib prison in Iraq—much of it eerily similar to techniques discussed in the Justice Department opinions—a political firestorm erupted around the world. The Justice Department was forced to withdraw most of the opinions even before George W. Bush left Washington. Leon Panetta, arriving at the CIA in 2009, found top management preoccupied with concerns about fallout from this program. The CIA chose to react to plans for a congressional probe cautiously, with a series of tactical maneuvers and skirmishes. Its strategy was apparent from the beginning: slow the review down while hoping for a change in the political winds that might

end it. And from the outset it made use of one essential weapon against its congressional overseers—secrecy. For the agency, secrecy was not just a way of life; it was also a path to power. It wielded secrecy as a shield against embarrassing disclosures and as a sword to silence and threaten adversaries. It was an all-purpose tool. * The agency’s first line of defense was to insist on what at first blush were minor inconveniences: congressional staff could not sit in their offices on Capitol Hill—not even if secured and cleared for the examination of classified materials. Instead, they had to travel to a CIA-leased facility in suburban Virginia to do so. Moreover, the investigators could not use congressional staff computers for these purposes. Materials were to be installed on “a stand-alone computer system” furnished by the CIA but with its own “network drive segregated from CIA networks” and under the control of the Senate. These requests seemed innocuous, and consequently Feinstein and her vice chair, Missouri Sen. Kit Bond, agreed to them. Later these measures would provide cover for more devious antics. Before any materials could be turned over, the CIA insisted on its own review to be certain that the documents were relevant to the committee’s request and were not subject to a claim of executive privilege. As it

turns out, more than 6 million pages of documents were covered by the Senate request. It would take many months to review them all—and that of course meant a delay of many months before the Senate

researchers could do so. The CIA, guided by its lawyers, thus assumed a posture that was common for American corporate

lawyers engaged in high-stakes commercial litigation—“discovery warfare.” The adversary’s requests for documents could not be denied but could be slowed down, complicated, and subjected to privilege claims . But this was not a billion-dollar battle between corporate giants with comparable legal rights. It was an exercise of democratic process in which the Senate was discharging its constitutional duty of oversight over an organ of the executive branch, the CIA. The agency’s right to assert claims of privilege was at best legally doubtful, and its insistence on the need to test the materials for relevance was still thinner gruel. Even if irrelevant, the CIA would have no right to withhold the documents from the investigators. Moreover, the Senate, and not the CIA, was the ultimate judge of relevance for these purposes. Even more absurd, in order to avoid wasting valuable man-hours of CIA agents on this review process, the CIA proposed bringing in outside contractors—not government employees—to complete it. In order to filter submissions to its congressional overseers, the CIA decided to let another team of persons, who otherwise would not have reviewed these documents, read and evaluate all of them. As they did so, the review team simply dumped the documents (which ultimately would

amount to 6.2 million pages) on the committee, without offering them any index, organization, or structure. Delay was clearly the principal operating motivation for the CIA. Furthermore, the CIA soon turned its skills of spycraft against its congressional overseers. “In May of 2010, the committee staff noted that documents that had been provided for the committee’s review were no longer accessible,” Feinstein noted in her speech. When confronted about this, the committee’s CIA interlocutors responded with a series of lies. First they denied that the documents had been removed, then that it was a problem for personnel servicing the computers. Finally they asserted that the “removal of the documents was ordered by the White House.” But the White House denied this and provided further assurance that the CIA would stop accessing the committee’s computers and removing documents. That same year, committee investigators made another curious discovery. As the Senate committee was reviewing the documents, some CIA staffers were doing the same and were preparing an internal memorandum that summarized them, apparently intended as a document to brief Director Panetta. This document was also delivered to the committee and reviewed by its investigators. It would play a critical role after December 2012, when the committee delivered a 6,300-page study with a 480-page executive summary from its report to the White House and CIA for review and comment. True to its slow-walking strategy, the CIA took more than six months—until June 27, 2013—to respond. When it did so, the earlier confidential response was backed by the curiously coordinated crossfire of an assortment of actors—former CIA directors and senior officials, disgraced former CIA agents whose involvement in the torture program was documented in the report, and media figures, often with close ties to the Bush administration authors of the program. Their message was simple: waterboarding has produced major breakthroughs and disrupted actual terrorist plots, ultimately putting American Special Forces in a position to kill Osama bin Laden in the Abbottabad raid of May 2, 2011. However, the CIA’s own records furnished no support for these claims. This unofficial CIA response was driven heavily by apparent leaks from within the agency, and the hand of Director John O. Brennan was later revealed in the process. While the agency’s defenders concentrated their fire on specific facts found and conclusions drawn by the report, it would turn out that the CIA’s own internal review had come to most of the same conclusions. This was hardly surprising, since both the committee and the CIA were summarizing the same documents. Both the internal Panetta report and the Senate committee report scrutinized the documents and evidence and found nothing to support claims that torture, particularly waterboarding, produced anything that materially advanced the search for terrorist leaders or planned strikes; both apparently concluded that these claims were unfounded. That produced intense embarrassment for the CIA and exposed the CIA’s criticism of the Senate report as disingenuous—as Feinstein noted, it stood “factually in conflict with its own internal review.” Even more worryingly, while the Senate report was for the moment holding back from policy recommendations and other action, it set the stage for a high-stakes game on accountability for torture, including unexplained homicides involving

prisoners . The CIA had thus far escaped meaningful accountability through a combination of internal reviews and an independent examination of these questions through a special prosecutor appointed by the Bush administration Justice Department.

The CIA circumvents any attempt at accountability – guts solvencyGosztola 14 – Kevin Gosztola is an American journalist, author, and documentary filmmaker known for work on whistleblowers. (4/4/2014, Kevin, “The CIA & the ‘Cult of Intelligence’ Will Manage to Keep Vast Majority of Senate Torture Report Secret”, Firedoglake, http://firedoglake.com/2014/04/04/the-cia-the-cult-of-intelligence-will-manage-to-keep-vast-majority-of-senate-torture-report-secret/ // SM)Why is it that the public will likely never get to read much of a major investigative report the Senate Select Committee on Intelligence produced on the CIA’s rendition, detention and interrogation program—a program that included torture? Yesterday, the Senate intelligence committee voted to declassify portions of the 6,300-page report—the executive summary, findings and conclusions.

It was not long after the vote that it was confirmed that the White House would have the CIA conduct a declassification review of these parts of the report before they were released. This conflict

of interest was addressed by Steven Aftergood of Secrecy News, who told The Guardian the CIA functionally will control “the declassification process , and they have an interest in how they as an agency are portrayed in the final product.” He added, “They’re not an impartial party, and that’s a flaw in the process.” Yet, what if it is not a flaw? What if it is a feature? The CIA has made it this far in

history without facing any accountability whatsoever for torturing and even causing the deaths of

captives it confined in a network of secret prisons the agency maintained. According to McClatchy Newspapers, the CIA used “interrogation methods that were not approved by either the Justice Department or their own headquarters and illegally detained 26 of the 119″ captives they held in CIA custody. While much of this has been understood to journalists and human rights groups that have been interested, the investigation also

found that “critics inside the CIA were cut out of the debate over the program or ignored and the news media were manipulated with leaks that tended to blunt criticism of the agency.” “The CIA’s high-level officials mismanaged the program,” and “interrogators who crossed the line into abusive behavior went unpunished.” The report also confirms the role of the CIA in the deaths of at least six captives. Deception and hypocrisy has been employed by the CIA with success, and, through entertainment, such as the film, Zero Dark Thirty, the agency has even been able to glorify and sensationalize what it has done in the global “war on terrorism.” It is all very similar to how the agency acted to protect itself from scrutiny in the 1970s, when much of its covert operations in the 1950s and 1960s, including domestic spying on Americans, were beginning to become widely known. In

1974, Victor Marchetti, former executive assistant to the CIA Deputy Director, and John D. Marks, former staff

assistant to the intelligence director at the State Department, wrote a book, The CIA and the Cult of Intelligence, that the CIA tried to have legally suppressed. It went to court to have the book censored prior to publication. Marchetti became the first writer to be served with an official censorship order by a US court. Marchetti and Marks argued that

hypocrisy, deception and secrecy had become “standard techniques for preventing public awareness of the CIA’s clandestine operations and government accountability of them.” Men

who demanded they be regarded as honorable for their role in the CIA, “true patriots,” often lied when caught “in their own web

of deceit.” They believed they had a “right to lie” to Americans. “In this country, secrecy and deception in intelligence operations are as much to keep the Congress and the public from knowing what their government is doing as to shield these activities from [any enemies],” they declared. “The intelligence establishment operates as it does to maintain freedom of action and avoid accountability.” The CIA “recognizes no role for a questioning legislature or an investigative process ,” the former government officials suggested. “Its adherents believe that only they have the right, and the obligation to decide what is necessary to satisfy the national needs.” “The cult of intelligence demands that it not be held accountable for its actions by the people it professes to serve” because “in their minds those who belong to the cult of intelligence have been ordained and their service is immune from public scrutiny.” Historically, the CIA had managed to convince US presidents to lie on their behalf. President Dwight D. Eisenhower lied to the American people about the CIA’s involvement in a coup in Guatemala in 1954.

President John F. Kennedy lied about the CIA’s role in an invasion of Cuba in 1961 (“Bay of Pigs”).

President Lyndon B. Johnson lied about US involvement in Vietnam and Laos. President Richard M.

Nixon lied about the CIA’s attempt to fix the election in Chile in 1970. (These are just a few examples.) Both

Marchetti and Marks rationalized that this was due to a “clandestine mentality,” a mindset that “thrives on secrecy and deception” and “encourages professional amorality, the belief that righteous goals can be achieved

through the use of unprincipled and normally unacceptable means. Thus, the cult’s leaders must tenaciously guard their official actions from public view. To do otherwise would restrict the ability to act independently; it would

permit the American people to pass judgment not only on the utility of their policies but the ethics of those policies as well.” Not even in the first year of President Barack Obama’s administration did the White House ever seriously want to expend political capital and hold CIA agents or officers accountable for torture. Attorney General Eric Holder initially “identified at least ten instances in which interrogators” went “far beyond what had been sanctioned” by President George W. Bush’s administration. CIA management also had destroyed interrogation videotapes that probably contained evidence of torture, however, the administration chose to move forward instead of looking backward at any crimes committed. There was no real risk of prosecutions when the Senate intelligence committee chose to produce a report that could set the record straight on

CIA torture, detention and renditions. However, that did not stop those in the “cult of intelligence” from interfering in the Senate’s investigation by disappearing documents from a database Senate staffers were using and by conducting unauthorized searches on a network to find out details on how the staffers

were preparing the report. Senate staffers were essentially spied upon because of the interest the CIA has in keeping the true history of CIA torture from becoming official US history. They did not want the Senate to have certain details in the report that would differ from the fabricated stories consistently told by individuals like former CIA director Michael Hayden, former acting CIA general counsel John Rizzo, former Vice President Dick Cheney, former CIA Counterterrorism Center head, Jose Rodriguez and others, whose allegiance remains with the “cult of intelligence” they have dutifully served in their lives. Beyond the promotion of the agency’s own version of history is the reality that the “war on terrorism” is a paradigm that the CIA will likely be able to easily manipulate in the same way that the agency has prevented information from becoming public in recent cases involving Freedom of Information Act (FOIA) requests or lawsuits involving torture victims seeking justice. Jason Leopold recently highlighted how the Obama administration blocked torture photos from being released to the American Civil Liberties Union (ACLU) in 2009. An appeals court had found that President George W. Bush was using FOIA exemptions as “an all-purpose damper on global controversy” and “an alternative classification

mechanism.” Obama initially was going to abide by the judge’s order but then “Senators Lindsey Graham and Joe Lieberman and Dick Cheney and his daughter, Liz,” accused Obama of “endangering the lives of US military personnel in Iraq and Afghanistan.” Obama decided to not allow the photos to be released, effectively concealing torture and shielding individuals from accountability. In a lesser known case, the Center for Constitutional Rights (CCR) sought the disclosure of video of Guantanamo Bay prisoner Mohammed al Qahtani under FOIA so attorneys for Qahtani could publicly confirm or deny whether they had viewed video that show Qahtani being tortured and abused. They wanted to be able to acknowledge this in open court before the military commissions. But a judge ruled that it was appropriate for the CIA to neither confirm or deny that such images or video of Qahtani existed. It was “logical and plausible that extremists would utilize images of al-Qahtani (whether in native or manipulated formats) to incite anti-American sentiment, to raise funds, and/or to recruit other loyalists, as has occurred in the past.” He is believed by the government to have been the “20th hijacker,” who would have been on Flight 93 if he had not been denied entry to the US, so “misuse” of his images would be “particularly plausible.” The judge also contended that, although CCR had highlighted what “written information” was already known publicly to argue for the release of video, the “written record of torture” made it “all the more likely that enemy forces would use al Qahtani’s image against the United States’ interests.” One talking point the “cult of intelligence” has relied upon more and more often to protect itself from transparency is to argue that transparency would empower the terrorists , who America is fighting in a war. The argument was used against Chelsea Manning when prosecuting her for her disclosures of information to WikiLeaks. It has been repeated to condemn former NSA contractor Edward Snowden for his disclosure of information on massive global surveillance violating the privacy of citizens. (Manning was even charged with the military offense of “aiding the enemy.”) The threat of propaganda from terrorist groups if transparency is allowed, however, is overwhelmingly insignificant and impossible to detect in comparison to the very real threat of propaganda from the CIA and the “cult of intelligence” if it is able to keep up secrecy, which effectively allows the agency to continue its hypocrisy and deception. Senator Ron Wyden of Oregon called attention to “the intelligence leadership’s culture of misinformation” and Senator Mark Udall of Colorado had “challenged” the White House to not delegate declassification decisions to the CIA because “significant amounts of information on the CIA’s detention and interrogation program that [have] been declassified and released to the American public [have been] misleading and

inaccurate.” But a bureaucratic process the CIA can easily tailor to serve its agenda has now been set in motion. There may be a bit of a reckoning when the tidbits of this major torture report the CIA allows the public to read are released to the public, but the full reckoning that should take place will not occur until the vast majority of the 6,300-page report is made available to the public. It won’t occur until the public can read the stories that Senator John McCain said are “chilling” and too upsetting for him to repeat. Tragically, over twenty-five years from now, when that finally happens, a number of lead officials responsible for authorizing and committing atrocious acts detailed will probably be dead and gone, and a new generation of leaders in the CIA and the “cult of intelligence” will occupy our attention as we commiserate about their secrecy, hypocrisy and deception engaged in because our system ordains them with immunity from scrutiny and accountability for their actions.

reports bad

The Senate report is factually wrong and undermines anti-terror operations Yoo 12/9 (John Yoo, Yoo: The Feinstein Report Cannot Deny a Clear Record of Success, December 9, 2014, http://time.com/3626957/yoo-senate-torture-report-feinstein/) //JS First, and most important of all, the report and the CIA dispute whether interrogations led to the location of Osama bin Laden. CIA directors have said publicly that the information identified the courier, a fellow named Abu Ahmed al-Kuwaiti, and that tracking him led us to bin Laden’s compound in Abbottabad, Pakistan. The Feinstein report claims that it found the name of the courier in CIA files from other, independent sources. But this is a red herring. The CIA had the names of hundreds, if not thousands, of possible al Qaeda operatives in its databases. Only the interrogation of Khalid Sheikh Mohammed, the planner of the 9/11 attacks, and other al Qaeda figures explained al-Kuwaiti’s significance. Without their interrogations, the al-Kuwaiti lead could have languished in the “for follow-up” file forever. Second, the Feinstein report cannot explain the successes in 2002-04 in dismantling the al Qaeda leadership. After the late

2001 capture of al Qaeda facilitator Abu Zubaida, whose refusal to cooperate first raised the question of interrogation methods, the U.S. ran the table: It captured al Qaeda mastermind Khalid Sheikh Mohammed, his deputy Ramzi Binalshibh, and an Indonesian named Hambali who was planning a 9/11 style airplane attack on the West Coast, among many others. Without a doubt, these losses disrupted al Qaeda’s efforts to carry out follow on attacks in the United States and degraded the terrorist group’s ability to organize and operate. The Feinstein Report claims that the CIA would have captured all of these operatives anyway. The Senator from California forgets Yogi Berra’s saying: “It’s tough to make predictions, especially about the future.” Feinstein provides no reason to conclude, counter-factually, that the U.S. would have killed or captured these al Qaeda leaders without the high-quality intelligence from interrogations. The United States and its allies certainly had not done so before the interrogations started—it did not even know about many of them before 9/11. But we do know that armed with the intelligence from interrogations, the U.S. succeeded. Today’s release of the Feinstein Report will only reignite partisan fighting over the best tactics to fight terrorism. Excluding Republican Senators and their staff in the investigation and refusing to interview any of the CIA and White House officials involved clearly shows the bias inherent in the investigation. The Senator from California thought her mission was to pursue officials with whom she disagreed, rather than issue a fair, impartial review of the Bush-era programs. Her report can only undermine the ability of our intelligence agencies to protect our nation as ISIS controls wide swaths of Iraq and Syria, terrorists behead American citizens taken hostage, and the administration suffers one intelligence setback after another.

wont get prosecuted

CIA surveillance isn’t a crime – they won’t get prosecuted, which means they can’t access their internal linkSternstein 14 (Allya. Aliya Sternstein reports on cybersecurity and homeland security systems. She’s covered technology for more than a decade at such publications as National Journal's Technology Daily, Federal Computer Week and Forbes. Before joining Government Executive, Sternstein covered agriculture and derivatives trading for Congressional Quarterly. She’s been a guest commentator on C-SPAN, MSNBC, WAMU and Federal News Radio. Sternstein is a graduate of the University of Pennsylvania. “CIA DIDN’T REALLY HACK SENATE COMPUTERS”. 6 August 2014. Nextgov. http://www.nextgov.com/cybersecurity/2014/08/cia-didnt-really-hack-senate-computers/90698)//JuneC//

CIA personnel probably didn’t commit a hacking crime by rummaging through congressional computers used to research the agency's torture activities, former federal attorneys and scholars say. Some lawmakers are calling for a criminal probe into new findings by a CIA inspector general that the agency improperly searched Senate intelligence committee files about its detention and interrogation program. Committee staff has been compiling a report condemning the program. Under an agreement, only CIA information technology employees were allowed to access the system, says committee Chairwoman Sen. Dianne Feinstein, D-Calif. The CIA violated that agreement by removing about 920 agency items and searching through the committee’s own internal work, she maintains. But the CIA provided the system, network drive, search tool and classified documents. "Removing data from that network, if it’s your network, I think that’s difficult to make it hacking," said Ben FitzGerald, director of the Technology and National Security Program at the Center for a New American Security. One needs to be careful with the term “hacking,” he said. Not Much Legal Ground to Stand On

The argument that the CIA violated the closest thing America has to an anti-hacking law -- the Computer Fraud and Abuse Act -- likely won't carry much weight in court, say former U.S. attorneys. This is because the law is mushy when it comes to who is a computer’s rightful operator. And there are intelligence-collection loopholes that could clear the CIA. Also, the agency could argue there was no deliberate effort to inappropriately penetrate the system. "You have to knowingly access a computer without authorization” to break the law, said Mark Rasch, former head of Justice's Computer Crime Unit. CIA officials probably will claim that "while they did access the computer, they didn't know that they didn't have authorization to do it," as the actions were approved by agency superiors. The legislation also makes an exception for "lawfully authorized” investigative, protective or intelligence activities, he noted. A teenager, however, who tried this stunt probably would be paying fines or would be confined to a prison cell. "Ordinarily, if I was not a CIA employee and I broke into a computer to get classified information, that would be like espionage and be a serious criminal offense," said Rasch, now a private consultant. Sen. Ron Wyden, D-Ore., on Friday morning told MSNBC’s Chuck Todd: "If a 19-year-old hacker had searched Senate files this way, that hacker would be sitting in jail right now. Now, back in January, I asked [CIA Director John] Brennan whether the Computer Fraud and Abuse Act applied to the CIA. That act has criminal penalties . . . I want to know who is going to legally held responsible." Other former federal attorneys say it's unclear who held access rights to the system and the law hinges on that detail. "Who has the superior claim to control access? I don’t think there’s an obvious answer,” Orin Kerr, a former official with Justice's computer crime and intellectual property section, wrote online when the hacking allegations surfaced in March. "My instinct is that the CIA probably has a better claim to controlling access than the committee” because it owned the machines and retained the right to have IT people access the computers. The exemption for investigative and intelligence activities -- also cryptic -- might lean in favor of the CIA, too. It is unknown "what makes an activity 'lawfully authorized,' because no court has interpreted that section. But it’s possible that it applies and negates CFAA liability," said Kerr, currently a George Washington University law professor. Brennan has merely apologized for his employees’ actions and referred the IG report to an accountability board for potential disciplinary measures. So, if this isn't a criminal matter -- what's the punishment for the admitted wrongdoing? Loss of credibility in the public court of opinion, other former federal officials say. The incident compounds the criticism that U.S. intelligence agencies hold too much information, following disclosures by ex-federal contractor Edward Snowden about sweeping surveillance of citizens’ Internet and call records. "What is clear is that this is a real setback for the

CIA and, indeed, the intelligence community writ large as it tries to rebuild credibility and trust with Congress and the American people in the post-Snowden era," said retired Maj. Gen. Charles J. Dunlap, former Air Force deputy judge advocate general and now a Duke University law professor. "What must be especially frustrating to intelligence professionals is that their community will take another serious political hit, and this time for an easily avoidable, self-inflicted wound on an issue that I think could have been resolved in an unquestionably proper way.” The intelligence community continues to deal with the challenge of trust versus law, Fitzgerald said. The Senate episode “has echoes of the Snowden revelations where, even when the NSA was following the letter of the law, the actions were deeply unpopular, and out of step with the public’s expectations or, in this case, the Senate’s expectations,” he said. Justice Looks the Other Way So far, the Justice Department reportedly has declined to proceed with a criminal investigation. About a decade ago, after another government employee inappropriately searched congressional computers, Justice let him off the hook. During President George W. Bush’s first term, Senate Republican aide Manuel Miranda accessed documents belonging to the Committee on the Judiciary Democrats by exploiting a server glitch. He then leaked the files to the conservative press. Miranda resigned after he was found out. A Justice probe was launched, but no criminal charges were filed. A redacted version of the intelligence panel’s final torture report remains under wraps. The CIA sanitized the report and Feinstein said Tuesday the omissions mask key evidence supporting the committee’s conclusions. “I am sending a letter today to the president laying out a series of changes to the redactions that we believe are necessary prior to public release," she said in a statement. "The bottom line is that the United States must never again make the mistakes documented in this report. I believe the best way to accomplish that is to make public our thorough documentary history of the CIA’s program."

separation of powers advantage

uniqueness

Separation of powers weak now -- Obamacare Will 6/28 (George Will, June 28, 2015, The Bulletin, George Will: Obamacare ruling blurs separation of powers, http://www.norwichbulletin.com/article/20150628/OPINION/150629626/?Start=1) //JS Although conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’ disregard of the statute’s plain and purposeful language — they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit. The court says the ACA’s stipulation that subsidies are to be distributed by the IRS through exchanges “established by the state” should not be construed to mean what it says. Otherwise the law will not work as well as it will if federal exchanges can distribute subsidies in states that chose not to establish exchanges. Never mind that the ACA’s legislative history demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into endorsing the ACA and bearing much of its administrative burdens. The most durable damage from Thursday’s decision is not, however, the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies. The court’s decision flowed from many prior decisions by which the judiciary has written rules that stack the deck to favor the government in cases of statutory construction. The decision also resulted from Chief Justice John Roberts’ embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. But what Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging. Roberts writes, almost laconically, that the ACA “contains more than a few examples of inartful drafting.” That is his artful way of treating “inartful” as a synonym for “inconvenient” or even “self-defeating.” Rolling up the sleeves of his black robe and buckling down to the business of redrafting the ACA, Roberts cites a doctrine known as “Chevron deference.” Named for a 1984 case, it is central to the way today’s regulatory state functions. The doctrine is that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. As applied now by Roberts, Chevron deference obligates the court to ignore language that is not at all ambiguous but is inconvenient for the smooth operation of something Congress created. Exercising judicial discretion in the name of deference, Roberts enlarges executive discretion. He does so by validating what the IRS did when it ignored the ACA’s text in order to disburse billions of dollars of subsidies through federal exchanges not established by the states. Chevron deference does for executive agencies what the “rational basis” test, another judicial invention, does for legislative discretion. Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a “rational basis.” Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate. This fulfills the Roberts Doctrine that it is a judicial function to construe laws in ways that make them perform better, meaning more efficiently, than they would as written by Congress. Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights. Besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution.” The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise. Roberts says “we must respect the role of the legislature” but “a fair reading of legislation demands a fair understanding of the legislative plan.” However, he goes beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.

Internal link

No Internal link -- impossible to solve and nobody cares Watkins 1/14 (Ali Watkins -- covers intelligence and national security for the Huffington Post, degree in Journalism from Temple University, CIA Wasn't Wrong To Spy On Senate Torture Investigation, Review Board Finds, Huffington Post Politics, http://www.huffingtonpost.com/2015/01/14/cia-senate-spying_n_6458074.html) //JS WASHINGTON -- Central Intelligence Agency Director John Brennan approved his agency’s search of a walled-off computer network being used by the Senate Intelligence Committee to construct a report on the agency’s torture program, a CIA Accountability Review Board has found. Despite Brennan’s direct involvement, though, the board has

determined that neither he nor his subordinates acted improperly when agency employees sifted through certain emails and databases of the supposedly off-limits network designated for the Senate committee. Instead, the board suggests that Senate investigators may have been the ones who violated agreed-upon standards by obtaining the secret, internal CIA document that prompted the agency’s search. The panel’s official conclusions, released Wednesday, add a further twist to the remarkable feud between the Senate and the CIA that has unfolded around former Senate Intelligence Committee chair Dianne Feinstein’s (D-Calif.) behemoth report on the CIA's post-9/11 torture program. The feud -- which has involved allegations of spying, a classified document secretly removed from a secure CIA facility, and competing criminal accusations -- resulted in a borderline constitutional crisis that, more than a year later, remains unresolved. Many observers believed that the Accountability Review Board would serve as the CIA’s official mea culpa for conducting a security review of the Senate committee’s network, an allegation that was confirmed by the CIA’s Office of the Inspector General in July 2014. After the IG determined that five CIA employees had, in fact, improperly accessed certain corners of the restricted Senate computer drive, the agency tasked the review board with evaluating that incriminating conclusion. “Director Brennan apologized for these actions and submitted the [Inspector General] report to an accountability board,” Feinstein said after the commissioning of the review board, indicating the hope on behalf of lawmakers that the panel would lead the CIA to reckon with its actions. “These are positive first steps.” But instead, the board has backtracked on the spies’ prior concession that the snooping was improper. Despite hopes that the review would bring an end to the dispute, the ARB’s controversial conclusions will likely only reopen the wound. The agency on Wednesday also released a declassified version of the Inspector General report, whose release has been fiercely contested for months. A one-page summary of the inquiry was first made available in July, and Democratic lawmakers have been demanding its complete public release ever since. The ARB investigation was led by Evan Bayh, a former Democratic senator from Indiana. The board also included former Obama White House counsel Bob Bauer and three current CIA officers. Brennan’s confirmed involvement in the computer search answers questions that, up to this point, the CIA has hedged on for months. The spy chief has refused for the past year to tell lawmakers who authorized the search, and has staunchly rejected their requests for answers after the Inspector General determined that the computer trespasses were improper. According to the accountability board, the security review itself consisted of three different “looks” into the Senate hard drive. The first, which took place on Jan. 9 and 10, 2014, was a provisional examination to investigate suspicions that Senate staffers possessed a secret CIA document colloquially known as the “Panetta Review” on their side of a shared computer network. After determining that staffers did have the internal agency document, CIA officials sought the advice of agency leadership. At that time, Brennan ordered the spies to determine whether the document had been accessed or printed by staff in a second “look,” which took place on Jan. 10. On Jan. 14, following this second search, Brennan, concerned about potential ramifications, ordered the agency investigators -- who were the five employees identified by the Inspector General-- to stand down until he discussed the matter with Feinstein at an emergency meeting the following day. But even after those five CIA employees stopped their probe, the CIA’s Office of Security continued digging separately, and ultimately accessed five Senate staff emails before finally being called off. “At a minimum, they had an ongoing obligation to tend to the security of the network,” said a source familiar with the board’s deliberations, adding that the agency had to be sure there was evidence

of wrongdoing before it accused the Senate of pilfering the document. The source added that the ARB believes Brennan did not know the extent of intrusion that was required into the Senate drive to answer his questions. The

accountability board concludes that the snooping wasn’t improper and didn’t violate the agreement established ahead of time by then-Senate Intelligence Committee Chairwoman Feinstein and then-CIA

Director Leon Panetta. The terms of that agreement, the board claims, only protected the work product of intelligence committee investigators, not databases and files of shared documents that the CIA provided for the

committee’s use. While the accessing of emails did violate those parameters, the board says, the Office of Security acted reasonably because it had a responsibility to preserve the security of the system. Furthermore, the

ARB says committee investigators knew that the agency occasionally entered and searched the Senate side of the shared computer system -- known as “RDINet” -- for maintenance and security checks. “[Senate Intelligence Committee] staffers were or should have been aware of, CIA’s [redacted]

monitoring of RDINet for security purposes,” the report says. “In fact, CIA had previously accessed [redacted] collected from the [Senate] side of RDINet when security concerns arose.” The CIA's security review was a result of concern among agency personnel

that Feinstein’s investigators had somehow obtained access to off-limits CIA documents known as the Panetta Review. Feinstein alleges that the CIA’s review violated the constitutional separation of powers, and may have been a

breach of the law. The Accountability Board, however, sees no such transgressions. In fact, it says, the trespass wasn’t only proper, but also necessary. The agency had a duty to snoop through Senate files to discover whether the Panetta Review had found its way into the hands of Feinstein’s staff. These findings starkly contradict the the conclusions of the agency’s own Inspector General, whose July report held the CIA responsible and prompted Brennan to issue a personal apology to Feinstein. Led by CIA Inspector General David Buckley, that investigation determined that the five agency employees acted improperly when they combed through the off-limits Senate drive, and also that the

CIA subsequently lied about its actions. The ARB refutes those claims, and in fact accuses the IG of flubbing its inquiry. Buckley’s report, according to the accountability board, missed key details and fundamentally erred in declaring that the CIA did not have the right to conduct the invasive security inquiry. The Accountability Review Board also purports to answer a question that, until now, no other inquiry has been able to tackle: how, exactly, staff came to possess the Panetta Review, an internal CIA document that supposedly undercuts the agency's official response to the torture study. The CIA has accused Senate staff of improperly accessing CIA networks in order to obtain the Panetta Review. Feinstein has vehemently denied that claim, and says her

staff stumbled upon the document in the course of a routine search. According to Feinstein, the document was

somehow provided by the CIA to the committee, possibly by accident. Alternatively, she suggests, a whistleblower may have

slipped the Panetta Review somewhere they knew the Senate investigators would find it. But the ARB’s new findings determine that the CIA didn’t provide the document to investigators either by accident or through a whistleblower. That suggests the alternate explanation that the spies have been pushing: Senate staffers intruded into restricted CIA networks to obtain the Panetta Review, which they should

have known they weren’t entitled to. According to new details revealed in the accountability board’s investigation, on Nov. 9, 2010, one Senate staffer came upon a collection of internal summaries about the CIA’s torture program, summaries that have now come to be called the Panetta Review. The staffer accessed roughly 166 Panetta Review files. Later, the staffer printed out the files and also transferred them to the user drives of four Senate colleagues. It is unclear how the Senate investigator originally accessed the files, though the board’s report says the staffer “directly navigated” the folder path containing the secret summaries. Whether that navigation was possible due to a hole in a CIA firewall, a technological glitch or something else remains uncertain. The ARB report takes a number of additional hits at Senate investigators, pointing to two previously unknown incidents that occurred during the torture investigation . On two separate occasions, the report writes, Senate investigators

significantly violated protocol. One instance was so serious, the board says, that the matter was referred to the CIA’s counterespionage group, and the Senate staffer in question was pulled from the torture report team. The board also questions the validity of the Senate's torture report, a summary of which was released in December. The Senate committee, the ARB suggests, may have used the Panetta Review in putting together its torture report, even though the CIA has questioned whether the document is credible as evidence material. According to the CIA, the Panetta Review summaries were not an objective, internal analysis of the torture program. Rather, the agency has said the summaries’ purpose was to construct the worst-case conclusions that could be drawn from the records being given to Senate investigators -- a sort of preemptive defense. Therefore, the CIA says, the summaries do not reflect objective critiques of the torture program. Yet Senate investigators, the ARB report has found, may have based their behemoth torture study on the faulty summaries rather than independent analysis of primary documents. The intelligence committee has staunchly denied this claim, and continues to stand behind the accuracy and comprehensiveness of the study. Feinstein has said that her staff did not rely on the Panetta Review when conducting the investigation. The ARB also recommended several systemic changes to matters that involve the CIA and Congress, such as suggesting that a clearer set of standards be defined whenever a shared computer network is used in the course of oversight, and that the agency's Office of Congressional Affairs be involved throughout any future matters that could potentially cause controversy. The core of the dispute, said the source familiar with the board review, was the lack of clear agreement over how the shared system was to be utilized by the two sides, and how a security violation was to be handled if the CIA identified one. “The root of the problem was the

absence of clear protocol," the source said. Bayh and Bauer briefed both Feinstein and Senate Intelligence Committee

chair Richard Burr (R-N.C.) on the report this morning, Bayh said in a statement Wednesday. The dispute over the Panetta Review has been a long, complicated saga that, despite a number of investigations, continues to cloud the critical relationship between the CIA and its chief congressional overseers. As part of Feinstein’s massive study on the torture program, the CIA provided millions of documents, cables and records to her staff at an offsite agency facility in northern Virginia, starting in 2009. In 2013, after the CIA released its official response to the Senate torture investigation, Feinstein’s staff began to notice discrepancies between the agency’s official position and the internal critiques of the torture program they had found in the Panetta Review. Realizing the importance of the document, staffers slipped the classified Panetta Review out of the secure CIA facility back to their secure office spaces in the Hart Senate Office building. The staff’s actions remained a secret, until the CIA realized, following official committee requests for the Panetta Review, that Feinstein and her staff had somehow gotten their hands on the summaries. The ARB determines that a CIA employee overheard a Senate investigator claiming to have seen “the real response” to the torture

report, indicating to the employee that the staffer had obtained the Panetta Review. The realization prompted the CIA's emergency security review of the computer system last January, in an attempt to find out how staff had obtained the document. Feinstein, learning after the fact that the search had taken place, accused the CIA of violating the Constitution, setting off a firestorm between the agency and the halls of Congress. The incident led to a flurry of investigations, including the CIA Inspector General’s report, which appeared -- until now -- to have resolved the issue in favor of Feinstein's version of events. The path forward following the Accountability Review Board’s report is unclear. The findings invoked the rage of several Democratic lawmakers on the intelligence panel. "Let me be clear: I continue to believe CIA’s actions constituted a violation of the constitutional separation of powers and unfortunately led to the CIA’s referral of unsubstantiated criminal charges to the Justice Department against committee staff," Feinstein said in a statement Wednesday. "I’m thankful that Director Brennan has apologized for these actions, but I’m disappointed that no one at the CIA will be held accountable. The decision was made to search committee computers, and someone should be found responsible for those actions." In a separate statement, committee member Sen. Ron Wyden (D-Ore.) said, "It is incredible that no one at the CIA has been held accountable for this very clear violation of Constitutional principles. Director Brennan either needs to reprimand the individuals involved or take responsibility himself. So far he has done neither. "At a time when the CIA appears incapable of policing itself, the intelligence community needs more external oversight, not less," Wyden added. But having recently lost control of the Senate, the Democrats who are heavily invested in the matter will have a difficult time rallying support for congressional action. Burr, the intelligence panel's new chair, has long been uncomfortable about committee staffers accessing and removing the Panetta Review, and he is not likely to share his colleagues' dissatisfaction with the accountability board’s conclusions. The ARB, having found no evidence of wrongdoing, does not recommend punishment for any CIA employee involved in the snooping. And it's unlikely that the Inspector General would revive any investigation. It seems the only remaining questions have to do with the gritty details of how, exactly, staff obtained the Panetta Review. And the Senate’s chief law enforcement office, the sergeant-at-arms, has already declined to explore that avenue due to the lack of original computer records.

The aff’s got it backwards – the CIA didn’t spy on the Senate but the Senate stole documents from the CIALeopold 1/14 – an American investigative reporter for Vice News. (2015, Jason, VICE, “Panel: The CIA Didn't Spy on the US Senate — But the Senate Stole Documents From the CIA”, https://news.vice.com/article/panel-the-cia-didnt-spy-on-the-us-senate-but-the-senate-stole-documents-from-the-cia // SM)There is a new twist in the long-running soap opera — and potential constitutional crisis — between the CIA and Senate.

Contrary to accusations leveled by the Senate, a 38-page report has found that the CIA did not breach the computers of Senate Intelligence Committee staffers and spy on them while they were investigating the CIA's torture program. The report was released today by the CIA. And is based on a review

conducted by a CIA accountability board. What the accountability board's review did find, however, is that Senate Intelligence Committee staffers stole documents from the CIA and violated an agreement it

entered into with the agency over the use of a classified computer network. On several occasions between 2009 and 2013, while the committee was writing its report, committee staffers allegedly gained access to CIA documents they were not authorized to see — such as a spreadsheet that contained a list of videos apparently

related to the torture program — and admitted as much when confronted by agency officials. Further undermining claims that the CIA spied on the Senate, the accountability report says, is the fact that each time Senate staffers logged onto a classified computer system called RDINet ("Rendition, Detention, Interrogation") set up by the CIA at a secure facility in Northern Virginia — there,

millions of pages of torture program documents were reviewed by the staffers — they were greeted with the following message: "Your use of this system may be monitored and you have no expectation of privacy." The CIA accountability board, chaired by Evan Bayh, the former Democratic Chairman of the

Intelligence Committee, started its review last summer in response to a report issued last July by the CIA's Inspector General, David Buckley. He had looked into allegations leveled by Senator Dianne Feinstein and other Democratic members of the Intelligence Committee that CIA personnel had spied on committee staffers and possibly hacked into their computers. Buckley's report concluded, "Five

Agency employees, two attorneys, and three information technology (IT) staff members, improperly accessed or

caused access to the [Senate Committee on Intelligence] Majority staff shared drives on the RDINet." Buckley sent a criminal referral to the Justice Department, but Justice declined to launch a probe. The accountability board reviewed Buckley's findings in order to determine if the CIA employees

should be reprimanded, and the board not only voted against punishing the five CIA officials, saying they acted properly, but found that Buckley's report was riddled with errors, that he overlooked evidence during the course of his investigation, and that he never should have referred the case to the Justice

Department. The accountability report did find that the CIA's Office of Security "inappropriately" examined five emails written by an Intelligence Committee staffer — but the board did not fault the security office, saying officials failed to understand a "stand down order" issued by Brennan to cease reviewing Senate computers.

The Senate is procedurally unable to pressure the CIA effectivelyAckerman 13 – Spencer Ackerman is national security editor for Guardian US. A former senior writer for Wired, he won the 2012 National Magazine Award for Digital Reporting (12/20/2013, Spencer, The Guardian, “Senate intelligence committee presses CIA to release torture report”, http://www.theguardian.com/world/2013/dec/20/senate-intelligence-committee-cia-torture-report // SM)The disclosures from Edward Snowden about the breadth of NSA surveillance has damaged public confidence in Congress’s ability to effectively oversee the intelligence agencies, on issues ranging from the bulk collection of Americans’ phone data to overseas “targeted killing” launched from CIA drones. Now the CIA is publicly stonewalling the committee, effectively defying the panel on what chairwoman Feinstein pointedly told Krass on Tuesday was its sole “purpose”. Feinstein and other committee members are procedurally encumbered by the CIA. The committee is bound by rules that prevent it from making unilateral declassification decisions. Votes to compel public releases would involve the rest of the Senate, and the executive branch has broad leverage over declassification.

Partisanship wrecks solvencyJervis 15- Adlai E. Stevenson Professor of International Politics at Columbia University and a member of the Saltzman Institute of War and Peace Studies (Robert, “The Torture Blame Game: The Botched Senate Report on the CIA's Misdeeds”, Foreign Affairs, May/June 2015, HeinOnline)//WKAlthough the committee's prodigious research into CIA records is commendable, its sources tell only part of the story, especially when it comes to determining how the agency made decisions about interrogation techniques. To paint a fuller picture of the program, investigators would have needed the records of other agencies, especially those of the White House. But executive privilege and Republican opposition stood in their way. And even with more complete access, much would be missing thanks to the government's inhibitions about keeping records of sensitive discussions. In the words of one CIA official quoted in the majority report, "All of the fighting and criticism is done over the phone and is not put into cables." The various reports are deeply disturbing, owing not only to the shameful abuse and torture they describe; they also demonstrate the dogmatism and partisanship that continue to suffuse the politics of U.S. national security in the post-9/11 era. To be sure, the adversarial nature of the U.S. government can prove useful, and bipartisanship isn't necessarily a good thing. The 9/11 Commission's commitment to presenting a common front, for instance, prevented it from drawing an obvious conclusion from the relevant facts: that the Bush administration had not seen terrorism as a major problem before the attacks. But in the case of investigating the CIA's interrogation program, a more collegial process would have served the country better, yielded a deeper understanding of what happened, and made clearer the legitimate disagreements that remain. Instead, the reports fail to present any evidence that could undermine their cases, express any uncertainty, or acknowledge any alternative interpretations of the facts they do include. And each sidesteps fundamental questions about the proper balance

between values and security, wasting a rare opportunity to fill the vacuum that allowed torture to occur in the first place.

No solvency—the committee doesn’t create legal normsJervis 15- Adlai E. Stevenson Professor of International Politics at Columbia University and a member of the Saltzman Institute of War and Peace Studies (Robert, “The Torture Blame Game: The Botched Senate Report on the CIA's Misdeeds”, Foreign Affairs, May/June 2015, HeinOnline)//WKA second basic point is also beyond dispute: the "enhanced interrogation techniques" were brutal. Prisoners went for days without sleep, often with their arms shackled to a bar overhead. Sometimes, handlers forced them to go to the bathroom in diapers (Bush expressed unease about this) and delivered food and water rectally (for medical reasons, the CIA claims). Whether these and other tactics, such as slapping or waterboarding, qualify as torture under the law remains subject to debate. But they certainly count as torture in the ordinary sense of the term. That said, the majority report never uses the term "torture" to describe U.S. actions . Nor does it wade into the controversy about the quality of the legal opinions composed by Justice Department officials between 2002 and 2007 that declared the CIA's techniques permissible, most likely because the committee was unwilling to deal with the implications of taking a stance on the question of whether the CIA broke U.S. or international law. Classifying CIA practices as crimes would have raised the uncomfortable question of who should be indicted for them. The list of candidates, after all, could have included Bush and Vice President Dick Cheney. Declaring the CIA's techniques legal, on the other hand, would have undercut the committee's message that they should never be used again.

torture advantage

no internal linkEfforts to solve terror fail -- loopholes Hill 1/26 (James Hill, January 26, 2015, Global Research, “Obama’s Torture Loopholes”, http://www.globalresearch.ca/obama-s-torture-loopholes/12041) //JS Torture by US officials has long been illegal, but the president’s executive order entitled “Ensuring Lawful

Interrogations” seems to clarify, to some extent, what activities are proscribed. Disappointingly, though, this order contains loopholes big enough to drive a FEMA camp train through them. Loophole 1: Torture is prohibited only of persons detained in an “armed conflict.” The executive order applies only to “armed conflicts,” not counterterrorism operations. The order states in part: Consistent with the requirements of the Federal torture statute, . . . the Detainee Treatment Act of 2005, . . . the [United Nations] Convention Against Torture, [the Geneva Conventions] Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States [emphasis added]. This sounds salutary: America should not torture people detained in armed conflicts. But are such conflicts the only situations in which the US military, federal agencies, and private security companies can detain people today in the name of the war on terror? Hardly. Many US and foreign citizens have been detained in counterterrorism operations, which another of Obama’s January 22 executive orders carefully differentiates from armed conflicts. In that other executive order, entitled “Review of Detention Policy Options,” a special task force is commissioned to review procedures for detention suspects. This order clearly distinguishes between “armed conflicts” and “counterterrorism operations”: The mission of the Special Task Force shall be to conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice. As the president has made this distinction, so should we. To date, counterterrorism operations have resulted in hundreds of arrests of persons in America and abroad, having nothing whatever to do with any armed conflict. Does President Obama wish

limits on what is done to these people when detained and interrogated? His executive order on torture is silent on the issue. Moreover, we know that many Guantanamo detainees from Pakistan and Afghanistan were sold to US officials by bounty hunters paid up to $25,000 per detainee, regardless of innocence.[2] Are these persons to be considered “individuals detained in [an] armed conflict”? Or must they be arrested while fighting on the battlefield to fit this qualification? Put differently, are blameless, uneducated goat herders who were sold into detention by warlords and mercenaries exempted from the president’s clarified prohibition of torture, simply because they never stepped foot on a battlefield? Another concern is the US military’s deployment in American cities, which began on October 1, 2008, according to the Army Times.[3] Perhaps this deployment is in preparation for social unrest in the event of an economic collapse. If martial law were declared in America , how would citizens be treated? What if they were detained in FEMA detention facilities? Could they be tortured under the umbrella of “counterterrorism operations” because that is different from “armed conflict”? To Americans wishing to remain free of torture, a far greater threat than detention during armed conflict is that resulting from what the federal government labels as counterterrorism operations, conducted both on US soil and overseas. Unfortunately, President Obama has not yet clearly addressed torture in this category. Loophole 2: Only the CIA must close detention centers. President Obama has ordered the CIA to close detention centers, except those “used only to hold people on a short-term, transitory basis,” which can stay open indefinitely. Exactly how long a duration is “short-term” and “transitory” is unclear. The executive order states: The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future. This sounds wonderful, but what about other federal agencies? Can the FBI, National Security Agency, Department of Homeland Security, and Defense Intelligence Agency maintain detention facilities where torture may occur? Can private military contractors like Blackwater do so? Under one interpretation of Obama’s executive order on torture, those facilities may still operate and even expand, provided the CIA doesn’t control them. Is it cynical to suspect this could be window dressing? Loophole 3: Officials may still hide some detainees and abusive practices from the Red Cross. On the Red Cross’s monitoring of detainees, the executive order reads: All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies. Here again, if a detainee is not one captured on the battlefield

by US soldiers in an armed conflict, Obama’s order provides no guidance as to his fate. Government and private thugs may evidently still brutalize detainees obtained in counterterrorism operations and hide them

from the Red Cross, unless and until the president issues a further executive order, or Congress passes a law, closing this loophole. Loophole 4: Abuses not labeled “torture” may continue. Obama’s executive order on torture does not label any particular practice “torture,” but instead requires that future interrogation practices conform to those outlined in the Army Field Manual. This may be in deference to Bush administration officials who authorized procedures like waterboarding while simultaneously declaring, “ America does not torture.” Debate in some circles will doubtless continue, therefore, over whether waterboarding; deprivation of food, water, and sleep; humiliation; and infliction of severe bodily pain and injury indeed constitute torture. The executive order imparts the following limitations: Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes [emphasis added]. By this language, waterboarding and other harsh interrogation procedures are prohibited by implication because they are not authorized by the Army Field Manual. But like other parts of Obama’s order, this prohibition apparently applies only to persons detained in an armed conflict. As discussed above, we are left to wonder whether detainees grabbed in counterterrorism operations can continue being tortured.

Poland

Torture has no impact on US-Poland relations or no domestic stabilityKurlantzick 14 – Kurlantzick is Senior Fellow for Southeast Asia at the Council on Foreign Relations and author of Democracy in Retreat: The Revolt of the Middle Class and the Worldwide Decline of Representative Government. (12/11/2014, Joshua, Bloomberg Business, “The CIA Torture Report Is Causing Political Ripples Overseas”, http://www.bloomberg.com/bw/articles/2014-12-11/the-senate-torture-report-is-causing-political-ripples-overseas // SM)Only in Poland, reportedly home to another CIA detention center, has the report’s release had little apparent impact on domestic politics. Former Polish President Aleksander Kwasniewski, who had previously denied that the CIA ran a detention center in his country, has admitted that he had indeed allowed the agency to operate a site in Poland—yet most Polish leaders publicly announced that the report would not change strong relations between Washington and Warsaw. Anxieties about Russian aggression dominate public discussion in Poland and will likely prevent a surge of anti-Americanism. In addition, the current Polish prime minister, Ewa Kopacz, was not in government in the early 2000s, unlike Thaksin or Ashraf Ghani, and so can credibly claim she knew nothing about the CIA prisons at the time.

Guantanamo

It’s not going to close - the uniqueness evidence is wrong - empirics Kimball 5/7 (Spencer Kimball, May 7, 2015, DW, Obama's prison: last-ditch push to close Guantanamo, http://www.dw.com/en/obamas-prison-last-ditch-push-to-close-guantanamo/a-18561107)//JS He was inaugurated on a Tuesday. The following Thursday, President Barack Obama signed an executive order to close the detention facility at Guantanamo Bay. Leading Republicans and Democrats agreed that the prison had become a propaganda tool for America's enemies and a distraction to her allies. The plan was to shut Guantanamo down within a year. But a president sets priorities and the candidate of change had more immediate concerns. The economy was a wreck and nearly 50 million Americans had no health insurance. After Republicans took control of Congress in 2010, they refused to allocate money to close Guantanamo. Six years and two special envoys later, the detention facility remains open. Last Tuesday, the administration appointed Lee Wolosky as the State Department's Special Envoy for Guantanamo Closure. The position had been vacant for six months. Wolosky, an attorney, was the director of Transnational Threats under the Clinton administration and early in the Bush administration. John Bellinger, who served on President Bush's National Security Council, has known Wolosky for two decades. "Lee Wolosky has experience inside Washington with counterterrorism on the White House staff and ought to be able to - if anyone can - persuade a very skeptical Republican Congress that he and the president have a plan to close Guantanamo," Bellinger told DW. 'Obama's prison' But Omar Shakir has his fair share of doubts about whether the White House remains committed to closing Guantanamo. Shakir works for the Center for Constitutional Rights, which represents 10 detainees. "They've spoken about closing Guantanamo repeatedly, but they've not shown the willingness to expend the political capital to make that happen," Shakir told DW. "That means putting together a coherent plan for Guantanamo and realizing that they have the power to release all the men that have been cleared," he said. When President Obama assumed office, there were 242 Guantanamo detainees. Progress has been made in fits and starts. The number of detainees has been reduced to 116. More than 50 of them have been cleared for release. In June, six Yemenis were transferred to Oman. They were the first detainees released after a five-month pause, precipitated by the resignation of Wolosky's predecessor, Clifford Sloan. "By January 2016, the men in Guantanamo will have been detained under President Obama for more time than they were detained under President Bush," Shakir said. "So this is really becoming President Obama's prison." Resistance at every turn Bellinger believes the president's hands are largely tied. Not only has Congress repeatedly denied the White House funds for transferring detainees to a facility in the United States, it has also placed restrictions on resettling those cleared for release to third-party countries. "Congress would have to affirmatively

change the law to allow the president to close Guantanamo," Bellinger said. Last month, the Senate passed a defense spending bill that contained more restrictions on transferring detainees. But the legislation also promises an up or down vote on closing Guantanamo if the secretary of defense presents a plan to do so. Defense Secretary Ashton Carter has stated publicly that he's working with the White House to develop such a plan. Though critical of the Obama administration for not demonstrating resolve, Shakir does believe the president wants to close the facility. But Obama has faced resistance at virtually every turn and not just from Congress. "There are other forces in this administration, including the Defense Department, that continue to impede transfers and impose restrictions on this administration," Shakir said. "The challenge for this envoy will be to work through the Defense Department and allow transfers to take place." 'Permanent prison' But it might be too late. President Obama has just 18 months left to accomplish what he's failed to do for six years. Though Obama is no longer on the ballot, his colleagues on other side of the aisle are gearing up for the 2016 presidential election. "Republican members of Congress are going to be reluctant to vote to move terror suspects into the United States in an election year," Bellinger said. That means there is a very real possibility the president, a constitutional lawyer, will not fulfill his 2008 campaign promise to close Guantanamo, passing the issue on to his successor. Shakir fears that the prison facility and the practice of indefinite detention without charge or trial could become "entrenched" in the American legal system. "To Obama's credit, he hasn't brought new detainees to Guantanamo," Shakir said. "But there's a risk of a new president coming to power and Guantanamo remaining the kind of permanent prison for the unfavored detainees of the hour."

Keep Gitmo open -- its necessary Posner 13 (Eric Posner, June 7, 2013, The U.S. Needs Guantánamo, The New York Times, http://www.nytimes.com/roomfordebate/2012/01/09/guantanamo-10-years-later/the-us-needs-guantanamo) //JS

There is nothing wrong with Guantánamo. The United States is almost continuously at war with other countries and groups like Al Qaeda, and it needs some place to house prisoners picked up on the battlefield.

If Guantánamo were closed, the U.S. military would need to hold those prisoners someplace else. As long as the U.S. uses military force in foreign countries and on the high seas, Guantánamo is necessary. To be sure,

there are other options. Detainees could be placed in prison camps on foreign territory controlled by the U.S.

military, where they lack access to U.S. courts and security is less certain. More than a thousand

detainees are currently held at Bagram, in Afghanistan. Detainees could be turned over to foreign governments, where they are likely to be tortured. The Clinton administration took this approach. Or suspected terrorists could be killed with drone strikes rather than captured — which seems to be the de facto tactic of the Obama administration. For those who care about human rights, these options are hardly preferable to Guantánamo Bay. Some critics believe that the whole idea of a war on terror is misconceived, that Congress could not have lawfully declared war on Al Qaeda, and that therefore suspected members of Al Qaeda cannot be detained indefinitely like enemy soldiers but must either be charged in a court or released. This position has been rejected repeatedly by the courts, but even if it were correct, Guantánamo would remain a legitimate place to detain enemy soldiers picked up on “hot” battlefields wherever they may be now or in the future — places like Afghanistan, Iraq, Libya and maybe soon Iran, to name a few. The U.S. government may prefer not to send additional detainees to Guantánamo for the time being because of Obama’s hasty promise during his campaign to shutter it, but as long as the United States maintains its longtime policy of using military force in foreign countries and on the high seas, sooner or later Guantánamo will be used again.’’

Gitmo is better than the alternatives Daksal 13 (Jennifer Daksal, January 10, 2013, The New York Times, Don’t Close Guantánamo, http://www.nytimes.com/2013/01/11/opinion/dont-close-guantanamo.html?_r=0) //JS IN 2010, I was branded a member of the “Al Qaeda 7” — a notorious label attached to Department of Justice lawyers who were mocked by critics claiming they had “flocked to Guantánamo to take up the cause of the terrorists.” My crime: I advocated for the closure of the detention facility — a position that has also been taken up by the likes of former President George W. Bush, former Secretary of Defense Robert M. Gates and former Secretary of State Colin L. Powell — and for more humane living conditions for those imprisoned there. At the time, I reacted defensively. I was indignant. I insisted on the legitimacy of my convictions. But even then the writing was on the wall. For a core group of detainees, closing Guantánamo would not mean release or prosecution, as most human rights and civil liberties groups have long advocated. Rather, it would mean relocation to the United States, or elsewhere, for continued detention. Now, almost four years later, I have changed my mind. Despite

recognizing the many policy imperatives in favor of closure, despite the bipartisan support for this position, and despite the fact that 166 men still languish there, I now believe that Guantánamo should stay open — at least for the short term. While I have been slow to come to this realization, the signs have been evident for some time. Three years ago, Barack Obama’s administration conducted a comprehensive review of the Guantánamo detainees and concluded that about four dozen prisoners couldn’t be prosecuted, but were too dangerous to be transferred or released. They are still being held under rules of war that allow detention without charge for the duration of

hostilities. Others happened to hail from Yemen. Although many of them were cleared for transfer, the transfers were put on indefinite hold because of instability in Yemen, the fear that some might join Al Qaeda forces, and Yemen’s inability to put adequate security measures in place. While the specific numbers have most likely shifted over time, the basic categories persist. These are men whom the current administration will not transfer, release or prosecute, so long as the legal authority to detain, pursuant to the law of war, endures. President Obama raised the hopes of the human rights community when during his re-election campaign he once again said the detention center should be closed. But it was not clear whether he had a viable plan, and any such plan would almost certainly involve moving many of the detainees into continued detention in the United States, where their living conditions would almost certainly deteriorate. Guantánamo in 2013 is a far cry from Guantánamo in 2002. Thanks to the spotlight placed on the facility by human rights groups, international observers and detainees’ lawyers, there has been a significant, if not uniform, improvement in conditions. The majority of Guantánamo detainees now live in communal facilities where they can eat, pray and exercise together. If moved to the United States, these same men would most likely be held in military detention in conditions akin to supermax prisons — confined to their cells 22 hours a day and prohibited from engaging in group activities, including communal prayer. The hard-won improvements in conditions would be ratcheted back half a decade to their previous level of harshness. And Guantánamo would no longer be that failed experiment on an island many miles away. The Obama administration would be affirmatively creating a new system of detention without charge for terrorism suspects on American soil, setting a precedent and

creating a facility readily available to future presidents wanting to rid themselves of a range of potentially dangerous actors. The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war. In a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a future “tipping point” at which Al Qaeda would be so decimated that the armed conflict would be deemed over. Statements from high level officials suggest that this point may be near. And as the United States pulls out of Afghanistan, there is an increasingly strong argument that the war against Al Qaeda is coming to a close. With the end of the conflict, the legal justification for the detentions will finally disappear. At that point, the remaining men in Guantánamo can no longer be held without charge, at least not without running afoul of basic constitutional and international law prohibitions. Only then is there a realistic hope for meaningful closure, not by recreating a prison in the United States but through the arduous process of transferring, releasing or prosecuting the detainees left there. In the meantime, we should keep Guantánamo open.

soft power

Alt causes to cred – Gitmo, drone strikes, and the “war on terror”Hammond 14 – Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics, and a former UK Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, “US Senate report on CIA torture threatens international relations”, http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatens-international-relations-20141210-1243ol.html // SM) Beyond this threat, this latest controversy will only intensify the huge international public diplomacy challenge that President Barack Obama still faces. Coming into office in 2009, the Obama team confronted a situation in which anti-US sentiment was at perhaps its highest level since at least the Vietnam War. Probably the key factor driving this was the unpopularity of the Bush administration's foreign, security and military policies in the so-called "war on terror" , including so-called "extraordinary rendition" – the practice of apprehension and extra-judicial apprehension and extrajudicial transfer of persons from one state to another. While the Obama team has made efforts to turn around this climate of international perception, its progress has been uneven, as witnessed by the failure to close Guantanamo Bay, despite pledges to the contrary . While Obama is generally more admired internationally than

was his predecessor, his administration has also encountered sizeable international opposition for instance, to increased US use of drone strikes since Bush left office. The scale of the public diplomacy task which Obama still faces is regularly highlighted in international surveys.

Alt cause – NSA data collectionChampion 14 – Marc Champion writes editorials on international affairs. He was previously Istanbul bureau chief for the Wall Street Journal. He was also an editor at the Financial Times and the editor-in-chief of the Moscow Times. (12/10/2014, Marc, Bloomberg View, “CIA Tortured U.S. Soft Power”, http://www.bloombergview.com/articles/2014-12-10/cia-tortured-us-soft-power // SM)

A second area where the U.S. is suffering severe damage to its image is from the National Security Agency's claim to have the collection of internet metadata from citizens anywhere and everywhere. As with the U.S. renditions policy, America's closest allies collude in this collection effort and have suffered a public backlash as a result. Again, the publics of these countries aren't wholly naïve: they know that governments spy on other governments, as well as on criminals and terrorists. Indeed, they mostly support spying on terrorists. But the NSA revelations were disruptive, because they created the perception that the U.S. was using its dominance of the Internet to collect data on ordinary citizens across the globe. Again, according to the Pew global survey, majorities disapprove of the U.S. monitoring foreign citizens in all but five countries (one of which was the U.S.). Americans should hardly be surprised: More than 60 percent of them find it unacceptable for the U.S. to spy on its own citizens -- so why would

Germans or Italians feel otherwise? Indeed, the only assurance foreigners have that data collected by the NSA isn't being misused is the word of the NSA. Americans at least have the protection of some due process: U.S. agencies need a court order to spy on Americans, but not foreigners. Yesterday's torture report should trigger a wider reassessment of the utility of refusing to set limits on the unique powers and capabilities the U.S. enjoys. If it doesn't, the U.S. will find itself trying to draw on ever dwindling reserves of soft power.

The US fails to effectively use its soft power – increased soft power doesn’t solveLord 14 – Kristin M. Lord is President and CEO of IREX, a global education and development NGO. (12/23/2014, Kristin, Foreign Policy, “Soft Power Outage”, http://foreignpolicy.com/2014/12/23/soft-power-outage/?wp_login_redirect=0 // SM)

Despite its comparative advantage in soft power, the United States is still far more adept at the strategy and tactics of military, economic, and diplomatic coercion than the strategy and tactics of attraction. It takes its soft power for granted , like oxygen in the air, assuming it will always be there. This approach not only carries risk, it underutilizes a strategic resource. How might the United States take soft power more seriously? First, it has to “walk the walk,” aligning actions and values, rhetoric and deeds. This is understandably difficult in a country with complex and wide-ranging foreign policy interests, but the United States could do better in one key respect: weighing potential damage to America’s moral authority when considering policy options. Such considerations are often trumped, and not without cause.

Policymakers are regularly forced to choose from a series of bad options, and when they do, clear and short-term consequences weigh more heavily than diffuse costs to notions like reputation. If the United States is serious about countering challenges to its national security interests and democratic ideals, however, this must change. Perceptions that the United States does not live up to its own values fundamentally undermine American power and inhibit the country’s ability to defend not just its own interests, but also universal standards of what is right and just. They undermine America’s ability to defend the time-proven value of the moral high ground, and they empower cynical actors eager to seize the propaganda advantage. The constant din of social and traditional media is raising the stakes, subjecting policymakers to unrelenting scrutiny and empowering those who are loud and opinionated, whether or not they are right. The simultaneous trends of proliferating information and the decentralization of control over it present real challenges to leaders in government and elsewhere. These trends are a fact, for good or ill, but they are also opportunities. Scrutiny pressures the United States to be better, forcing it to reflect on how its actions will be perceived and whether those perceptions should lead it to behave differently in the first place. The link between scrutiny and virtuous behavior is long recognized. Indeed, Adam Smith’s under-studied text The Theory of Moral Sentiments asks the just (hu)man to consider how his/her actions would be perceived by an impartial spectator as a test of their virtue. If the publicity of our actions and how they would be received gives us pause, Smith argued, perhaps we should reconsider those actions in the first place. The most challenging aspect of today’s information environment is the constant presence of partial spectators, who are all too ready to eager to seize on any perceived failing, publicize it widely, and use it to their own advantage. Second, soft power should also be used proactively, which entails actively exposing others to ideas. Confidence is required; others may not choose to share ideas to which they are introduced. But time and time again, people who are exposed to accurate information and universally held values become positive forces in their own communities and strong (if not entirely uncritical) partners. All too often — and across presidential administrations — soft power falls down the list of foreign policy priorities, underweighted in comprehensive strategies that include diplomacy and defense. Dominating the moral high ground and using it to spur social change is not at the center of national security policymaking, but it

should be. Serious public engagement strategies, which are natural components of soft power, are rare. The once frequently heard term “public diplomacy” is falling into increasing disuse.

adv cp – multiplank

CP solves – the following actions resolve torture credibilityHongju Koh 14 - Harold Hongju Koh is a professor of international law at Yale Law School and a founding editor of Just Security. He was legal advisor at the State Department from 2009 to 2013, and assistant secretary of state for democracy, human rights, and labor from 1998 to 2001. (12/12/2014, Harold, Foreign Policy, “The Torture Report Is Only the First Step”, http://foreignpolicy.com/2014/12/12/the-torture-report-is-only-the-first-step/ // SM)If the report’s critics believe that only part of the story has been told, then let’s agree on a process to tell all of it. The administration should answer pending Freedom of Information requests, allow relevant CIA officers to speak to Congress, and declassify the rest of the report. A bipartisan select committee of Congress should be appointed to hold hearings to get the full story. There is also still time for Congress to embed President Obama’s January 2009 anti-torture executive order into law. Any statute should update the constricted definition in the federal law that criminalizes “torture,” so that those seeking to skirt it cannot play word games to engage in practices, like waterboarding, that any fair-minded person would consider torture. Any legislation should reiterate that there are no gaps in this universal legal prohibition that would ever allow the revival of “black sites” abroad. And we should make clear that our international treaty obligations to foreswear cruel treatment under the Convention Against Torture extend to anyone under effective U.S. control, anywhere in the world.

SoPo adv cp – drone strikes

CP solves – drone strikes devastate US soft power projection – our evidence is comparativeChampion 14 – Marc Champion writes editorials on international affairs. He was previously Istanbul bureau chief for the Wall Street Journal. He was also an editor at the Financial Times and the editor-in-chief of the Moscow Times. (12/10/2014, Marc, Bloomberg View, “CIA Tortured U.S. Soft Power”, http://www.bloombergview.com/articles/2014-12-10/cia-tortured-us-soft-power // SM)

But it's worth remarking that torture is not the only national security policy that poses a threat to U.S. alliances. Friendly governments are still being asked to trust in the good judgment and good offices of the U.S. intelligence agencies, as well as in their effective oversight, even when there's reason to question whether that trust is being honored. One such policy is President Barack Obama's expansive use of drone strikes against suspected terrorists. The tacit rationale for this policy is that the targeted individuals are conducting activities so heinous that all nations should accept the right of the U.S. to kill these criminals without due process, wherever they may be, based on U.S. intelligence assessments. As with the arguments in support of torture, however, this justification quickly falls apart. Even Americans don't believe in it: Look at the controversy that arose when Anwar al-Awlaki, a terrorist suspect who happened to be a U.S. citizen, was targeted and killed in a drone strike. If many Americans thought al-Awaliki deserved due process, on what basis should a Yemeni, German or Pakistani national suspected of the same heinous crimes not deserve it, too? Not surprisingly, the U.S. has very little backing world-wide for drone strikes. In July's edition of the Pew Global Attitudes Research Project,

there was net support for the policy in only four of 44 countries: Israel, Kenya, Nigeria and the U.S. Majorities opposed the strikes even in staunch U.S. allies such as Japan (82 percent), the U.K. (59 percent) and Poland (54 percent). The smart move for the U.S. to make long ago would have been to propose an international treaty governing the use of drone strikes. So long as it was the only country that had the capability, it could have set the terms of the rules. Soon, most countries will have armed drones and will cite U.S. practice to justify their own strikes extra-territorial, extra-judicial strikes.

disads

politics link

Obama has to spend PC on the planGosztola 14 – Kevin Gosztola is an American journalist, author, and documentary filmmaker known for work on whistleblowers. (4/4/2014, Kevin, “The CIA & the ‘Cult of Intelligence’ Will Manage to Keep Vast Majority of Senate Torture Report Secret”, Firedoglake, http://firedoglake.com/2014/04/04/the-cia-the-cult-of-intelligence-will-manage-to-keep-vast-majority-of-senate-torture-report-secret/ // SM)“the cult” = “the cult of intelligence” within the CIABoth Marchetti and Marks rationalized that this was due to a “clandestine mentality,” a mindset that “thrives on secrecy and deception” and “encourages professional amorality, the belief that righteous goals can be achieved through the use of unprincipled and normally unacceptable means. Thus, the cult’s leaders must tenaciously guard their official actions from public view. To do otherwise would restrict the ability to act independently; it would permit the American people to pass judgment not only on the utility of their policies but the ethics of those policies as well.” * Not even in the first year of President Barack Obama’s administration did the White House ever seriously want to expend political capital and hold CIA agents or officers accountable for torture. Attorney General Eric Holder initially “identified at least ten instances in which interrogators” went “far beyond what had been sanctioned” by

President George W. Bush’s administration. CIA management also had destroyed interrogation videotapes that probably contained evidence of torture, however, the administration chose to move forward instead of looking backward at any crimes committed.

The plan erupts a political divide on torture - destroys bipart Gallington 14 – Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence. (3/13/2014, Daniel, US News, “A Senate Divided Against Itself”, http://www.usnews.com/opinion/blogs/world-report/2014/03/13/cia-spying-allegations-split-the-senate-intelligence-committee // SM)How quickly things change in scandal-driven Washington. First, Sen. Dianne Feinstein, D-Calif., gave an impassioned speech on the Senate floor accusing the CIA of lies and a cover-up of the “enhanced interrogation” approved during the

Bush administration and also alleging that the CIA was snooping on Senate Select Committee on Intelligence staffers as they investigated at an offsite location. However, not so fast, because then the Republican vice chairman of the committee, Sen. Saxby Chambliss, R-Ga., said that Republican staffers were not involved in the investigation, and that they “do not know” of the details of the matter. Specifically, as reported by CQ Roll Call: Senate Intelligence Committee ranking Republican Saxby Chambliss distanced himself Wednesday from Chairwoman Dianne Feinstein’s allegations that the CIA spied on her panel’s preparation of a classified report, saying that Republicans did not participate in the investigation into CIA’s interrogation activities. “The Republican committee members on the Senate Intelligence Committee and staff were not involved in the underlying investigation of the detainee and interrogation report,” the Georgia Republican said. “We do not know the actual facts concerning the CIA’s alleged actions or all of the specific details about the actions of the committee

staff.” Although Feinstein was firm in saying that the CIA acted improperly, Chambliss urged caution about drawing conclusions and suggested a special investigator may be in order. “Although people speak as if we know all of the pertinent facts surrounding this matter, the truth is we do not,” he said.

What this means is that the political lines have been firmly drawn on the Bush administration’s “enhanced interrogation” program. Specifically: Democrats have decided – apparently en masse – to advocate what I have previously described as the “Nancy Pelosi approach” and hope to deny any knowledge or complicity with the details of the program. The multiyear, multithousand page investigation of the matter by the Democratic staff of the Select Committee on Intelligence was – and is – specifically meant to politically insulate, separate and immunize Democrats from the program. So what is the truth about the enhanced interrogation

program? Sadly, it looks as if we may never know. Even worse, the normally bipartisan Senate intelligence committee looks split along party lines . This is not good for any of us, no matter what our politics.

Obama gets involved in the Senate-CIA dispute despite prior claims – his stonewalling of the Senate provesPress TV 14 – *Cites Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School. (3/13/2014, “Report: Obama withholding CIA torture records from investigators”, http://www.presstv.ir/detail/2014/03/13/354528/obama-withholding-cia-torture-records/default.html // SM)The US administration has been preventing the Senate Intelligence Committee and investigators from reviewing CIA records about torturous interrogation techniques carried out

during the presidency of George W Bush, according to US media reports. The White House, despite publicly vowing to support the committee’s probe, has been rejecting or ignoring requests by Senate members in order to help them find ways to study some 9,400 pages of documents in past five years, an investigation by McClatchy DC has revealed. The report indicates that the documents came into committee’s attention in 2009 and that the US president has still not formally issued an order to protect them by executive privilege. The Obama administration’s unwillingness to cooperate with the committee raises speculations that the documents could contain significant information about the CIA’s use of waterboarding and other harsh interrogation techniques against detainees in CIA custody. The report comes as the CIA and the Senate Intelligence Committee have been involved in a bitter battle over secret agency’s alleged spying on Senate staff members who were investigating the controversial CIA interrogation program. Senate Intelligence Committee Chairwoman Dianne Feinstein, who is highly regarded on the Capitol Hill, has been spending a lot of political capital to go after the head of the CIA John Brennan. Feinstein, a Republican who has been supported by the Obama administration, has waged an aggressive counterattack against Feinstein. Trying to distance himself from the dispute, President Barack Obama on Wednesday said that it would be inappropriate for the White House to get involved into the issue. Now the McClatchy

report suggests that the Obama administration has been more involved in the power struggle between the two sides. “These documents certainly raise the specter that the White House has been involved in stonewalling the investigation,” said Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School.

Despite Obama’s claims of ambiguity, he clearly takes a side and supports the CIA in his statementZornick 14 – Washington Editor for The Nation (3/12/2014, George, The Nation, “In Spying Scandal, Did Obama Just Take the CIA’s Side?”, http://www.thenation.com/article/spying-scandal-did-obama-just-take-cias-side/ // SM)

Late Wednesday afternoon, a White House pool reporter asked President Obama about the explosive allegations made by Senator Dianne Feinstein on Tuesday morning that the CIA was spying on, and

removed documents from, congressional staffers who were investigating Bush-era torture. The question came during a brief media availability at a White House event on women and families. Obama’s response, in full: The first day I came into office, I ended the practices that are subject to the investigation by the Senate committee, and have been very clear that I believed they were contrary to our values as a country. Since that time, we have worked with the Senate committee so that the report that they are putting forward is well informed and what I have said is that I am absolutely committed to declassifying that report as soon as the report is completed. In fact, I would urge them to go ahead and complete the report and send it to us and we will declassify those findings so that the American people can understand what happened in the past and that can help guide us as we move forward. With respect to the issues that are going back and forth between the Senate committee and the CIA, John Brennan has referred them to the appropriate authorities and they are looking into it and that’s not something that is an appropriate role for me and the White House to wade into at this point. But the one thing that I want to emphasize is that the substantive issue, which is how do we operate even when we are threatened, even when even gone through extraordinary trauma has to be consistent with the rule of law and our values. And I acted on that on the first day and that hasn’t changed. About 95 percent of Obama’s remarks involve declassifying the 6,300-page Senate report on “enhanced interrogation” by the CIA, and he restates his desire to have the report be made public. But the president’s one line on the CIA-Senate debate is deeply troubling: “With respect to the

issues that are going back and forth between the Senate committee and the CIA, [Director] John Brennan has referred them to the appropriate authorities and they are looking into it and that’s not something that is an appropriate role for me and the White House to wade into at this point.” Here’s the problem: Obama’s framing in that sentence very much wades into the debate. The important context here is the Department of Justice is running two parallel investigations into the CIA’s removal of the so-called “Panetta review”—one into wrongdoing by the Intelligence Committee, and one into CIA wrongdoing. The CIA claims that Senate staffers illegally obtained a copy of that review, which damns the CIA for it’s role in Bush-era interrogations and is at odds

with public statements from the CIA. But Feinstein strenuously, and at great length, contested that claim in her Senate floor speech on Tuesday. She explained how the Panetta review came into the committee’s possession: either by intentional or unintentional disclosure by the CIA while turning over the 6.2 million documents related to the interrogation program, or by a “whistle-blower” either at the agency or working for the private contracting firm that was vetting the documents. She went on to explain that the Senate Legal Counsel affirmed to her that these were not classified documents, and that the committee was permitted to have them. Furthermore, Feinstein explicitly alleged that the CIA’s referral of a criminal report might have been an effort to intimidate Senate investigators. So when Obama says that “John Brennan has referred [the matter] to the appropriate authorities,” it reads as an implicit rebuke of the intimidation charge. That he mentions only the allegation of Senate misconduct by Brennan and not the parallel investigation into CIA wrongdoing is also troubling . Obama’s remarks came on the heels of a revelation by W hite House Press Secretary Jay Carney earlier on Wednesday that the White House was aware of the criminal complaint the CIA planned to file against Senate investigators, but did not intervene.

Despite public declarations of support for the Senate committee, Obama is passively helping the CIA avoid oversight – his weakness results in a loss in PCWelsh 3/13 – Teresa Welsh is a foreign affairs reporter at U.S. News & World Report. (2015, Teresa, “Blog Buzz: Obama Aids CIA Stonewalling of Senate Requests for Torture Documents”, http://www.usnews.com/opinion/articles/2014/03/13/president-obamas-actions-support-cia-not-senate-in-torture-report-investigation // SM)Disagreement over the classification and release of documents regarding the Central Intelligence Agency’s interrogation practices during the Bush administration erupted this week into a very public fight between the agency and the Senate Select Committee on Intelligence, which is responsible for overseeing CIA activities, with President Barack Obama largely trying to stay out of the firestorm. Sen. Dianne Feinstein, D-Calif., usually a staunch ally of the intelligence community, has accused the CIA of violating the Constitution by monitoring congressional investigators’ activity on a secure computer network. Investigators used the network to examine documents on the interrogation policies. The CIA denies improperly penetrating the secure network, and in turn accuses the Senate committee of inappropriately accessing classified documents detailing the interrogation program. CIA Director John Brennan denies these accusations, and has requested that the Justice Department review the dispute. Feinstein said she views this move “as a potential effort to intimidate this staff — and I am not taking it lightly." President Barack Obama commented on the situation Wednesday, saying his administration had been working with the Senate committee on the report detailing

interrogation practices he ended his first day in office. “I am absolutely committed to declassifying that report as soon as the report is completed,” Obama said. “In fact, I would urge them to go ahead and complete the report and send it to us and we will declassify those findings so that the American people can understand what happened in the past and that can help guide us as we move forward.” But according to an investigation by McClatchy, the White House has been withholding more than 9,000 documents requested by the Senate committee for their investigation. “ In contrast to public assertions that it supports the committee’s work, the White House has ignored or rejected offers in multiple meetings and in letters to find ways for the committee to review the records ,” the wire service wrote. Obama did not cite executive privilege

to withhold the documents, but McClatchy said “the administration’s refusal to turn them over or to agree to any compromise raises questions about what they would reveal about the CIA’s use of waterboarding and other harsh interrogation techniques on

suspected terrorists in secret overseas prisons.” Andrew Sullivan of The Dish called the president “a potted plant” for passively allowing the CIA to continue stonewalling release of the torture report that has actually been completed for over a year. Sullivan writes, “ If his pusillanimity continues until

the GOP captures the Senate and bottles up this report for ever, he will have failed one of the most important tests of his presidency.” The press has repeatedly requested copies of the report but none have been made public. Those who have seen it say review of “the Bush-era torture program run under the CIA in the aftermath of 9/11 firmly concludes that not only was torture used, but that the intelligence gathered failed to prevent any acts of terrorism.” Calling the CIA/Senate debate “a full-blown constitutional crisis,” Ryan Cooper at The Week said Obama must demand the report be declassified. But he

didn’t expect the president to attack another part of his executive branch: “Quite frankly I suspect that President Obama will try to sweep this under the rug, or pretend that his hands are tied, out of fear of alienating the CIA. ” In wondering what Obama’s motivations for saying one thing but by all accounts doing another, perhaps Kevin Drum of Mother Jones put it most simply: Last I heard, the report was completed in 2012. The CIA responded last June. Dianne Feinstein has been

pushing for declassification of at least the report's executive summary every since. So if Feinstein wants to release the report, and Obama wants to release the report, what's the holdup?

Feinstein and Obama support surveillance: plan causes backlashBruck 6/11 (Connie has been a staff writer at The New Yorker since 1989. She writes about business and politics. She won the National Magazine Award for Reporting. She has twice won the Front Page Award from the Newswomen’s Club of New York, for “Deal of the Year” and “Taking Down Tupac.” She has also won a Gerald Loeb Award for excellence in business reporting and the National Magazine Award for Reporting. She received the Gerald Loeb Award for distinguished business and financial journalism, 2015, “The Inside War”, http://www.newyorker.com/magazine/2015/06/22/the-inside-war)//ccAlthough Feinstein mostly votes with the Democrats, she is less predictable than many of her colleagues. As a member of the Judiciary Committee, she voted to confirm several of President George W. Bush’s nominees. In 2007, she endorsed Michael Mukasey for attorney general—even as he dodged the question of whether waterboarding is torture, saying only, “If it amounts to torture, then it is not constitutional.” A Democrat from hyper-liberal San Francisco, she has persistently defended government surveillance programs and targeted killings by drones, and she has been one of the C.I.A.’s most faithful supporters. Last year, after President Obama called to move authority for drone strikes from the C.I.A. to the Defense Department, Feinstein placed a classified amendment in a spending bill that helped keep the program where it was. When the activist Edward Snowden revealed that the N.S.A. had amassed the phone records of vast numbers of American citizens, he was hailed on the left as a whistle-blower. Feinstein said, “I don’t look at this as being a whistle-blower. I think it’s an act of treason.” Advocates for human rights and civil liberties responded with angry editorials. The journalist Glenn Greenwald has said that her “disgusting rhetoric recalls the worst of Dick Cheney.”

Obama supports domestic surveillance: circumvention proves Heyes 6/12 (J.C, The Centre for Research on Globalization (CRG) is an independent research and media organization based in Montreal., 2015, “Obama Orders Secret Surveillance Court to Ignore Lower Court Decision and Spy on Americans Illegally - See more at: http://www.globalresearch.ca/obama-orders-secret-surveillance-court-to-ignore-lower-court-

decision-and-spy-on-americans-illegally/5455297#sthash.fXZRC4GE.dpuf”, http://www.globalresearch.ca/obama-orders-secret-surveillance-court-to-ignore-lower-court-decision-and-spy-on-americans-illegally/5455297)//ccJust hours after President Obama said he would sign new federal legislation ostensibly aimed at ending the National Security Agency’s bulk collection of Americans’ metadata, he instructed his Department of Justice to seek permission from a secret court to continue the program for at least another six months. As reported by the UK’s Guardian newspaper, the DOJ essentially asked the Foreign Intelligence Surveillance Court, which considers all government surveillance requests behind closed doors, to ignore an earlier federal appeals court ruling that found the bulk collection of data unconstitutional. The request also suggested that the administration had no intention of complying with a potential court order banning the collection, the paper reported. The paper said U.S. officials had confirmed earlier that the administration intended to seek permission from the FISA court to restart the domestic bulk collection program. Secret court requires no special intel

Obama defends domestic surveillance Miller 13 (Zeke is a political reporter for TIME. He previously was the first White House correspondent at BuzzFeed and extensively covered the 2012 presidential campaign. Prior to that, he covered politics for Business Insider. A New York native, he graduated from Yale University where he was an editor and reporter at the Yale Daily News, 6/7, “President Obama Defends NSA Surveillance Programs As “Right Balance””, http://swampland.time.com/2013/06/07/president-obama-defends-nsa-surveillance-programs-as-right-balance/)//ccPresident Barack Obama issued a strong statement in support Friday for the controversial National Security Agency surveillance programs that have been disclosed to the press in recent days. “You can shout Big Brother or program run amok, but if you actually look at the details, I think we’ve struck the right balance,” Obama said in his first remarks on the subject since the issue arose this week. Obama repeated details that administration had put out about the programs after reports by the Guardian and the Washington Post put two classified programs into the spotlight. The first involves U.S. officials gathering records on all phone calls, including call duration and phone numbers, to look for patterns that can be tied to terrorist activity. “Nobody is listening to your telephone calls,” Obama said repeatedly. “That’s not what this program is about. Obama said that a second program collecting global internet traffic only applies to foreigners. “This does not apply to US citizens and it does not apply to people in the United States,” he said. Both programs, the president maintained, are overseen by all three branches of the federal government, are reviewed regularly by the Foreign Intelligence Surveillance Court, and have been in place since the administration of President George W. Bush. “It is important to understand that your duly elected representatives have been consistently informed on exactly what we are doing,” Obama told reporters before flying to Los Angeles for a fundraiser for the Democratic National Committee. Obama will meet with Chinese President Xi Jinping in Rancho Mirage, Calif., this weekend for an informal summit. Obama, who ran for president in 2008 on a platform of reversing some of the Bush administration’s encroachments on civil liberties, instead defended the programs. “I came in with a healthy skepticism about these program,” Obama said, noting his administration has strengthened some program safeguards. “My assessment and my team’s assessment is that they help us prevent terrorist attacks.” “You can’t have 100 percent security and also have 100 percent privacy and zero inconvenience,” he continued. “We’re going to have to make some choices as a society. On balance we have established a process and a procedure that the American people should be

comfortable about.” Obama also addressed growing outrage on Capitol Hill about the programs. “I welcome this debate. I think it’s healthy for our democracy. It’s a sign of maturity.” The president, whose administration has led a crackdown on government leakers, also condemned the release of classified information about the programs, saying they make it “very hard for us to be as effective in protecting the American people.” “If people don’t trust the executive branch, and also congress and the judicial branch, then we’re going to have some problems here,” Obama admitted.

terrorism link

Torture provides critical intelligence for counterterror operations – new torture exposés produce a chilling effectHart 14 – Activism Director and and Co-producer of CounterSpin Peter Hart is the activism director at FAIR.(12/8/2014, Peter, FAIR, “Torture Enablers Spin Unreleased Senate Report”, http://fair.org/blog/2014/12/08/torture-enablers-spin-unreleased-senate-report/ // SM)On the CBS Sunday show Face the Nation (12/7/14), host Bob Schieffer explained that Republicans on the committee and the CIA refute almost all of the Democrats’ conclusions and say the release of the report will have a chilling effect on intelligence-gathering and will endanger lives. CBS correspondent Bob Orr reiterated that this was how Republicans and CIA defenders were going to react: They are going to say, look, we tried to stay within the bounds of the law in the shadow of 9/11, when things were very, very tough. We made some mistakes, but in the end real intelligence was had . After that, CBS introduced its next guest: former CIA director Michael Hayden. He says the CIA did not lie to Congress, that torture did yield valuable intelligence and that there could be severe repercussions from the report being made public: “This will be used by our enemies to motivate people to attack Americans in American facilities overseas.”

Exposing reports on CIA’s covert activities increases risk of terror Calle 14 (Brian. the Opinion Editor for the Orange County Register and the Riverside Press-Enterprise. He has been with Register Opinion since 2009. Aside from his duties at the Register, Calle serves as an Unruh Fellow at the Jesse Unruh Institute at the University of Southern California, a Senior Fellow at the Pacific Research Institute and a Senior Fellow at the Friedman Foundation for Educational Choice. Opinion “Editorial: Some tortured reasoning from Senate committee”. 10 December 2014. The Orange County Register. http://www.ocregister.com/articles/committee-644758-report-feinstein.html)//JuneC//We have not read in entirety the declassified 525-page forward, findings, conclusions and executive summary of the Senate Intelligence Committee’s still-classified 6,700-page study of the CIA’s detention and interrogation program, but we’ve read enough to find it troubling. White House press secretary Josh Earnest revealed that there were indications that “release of the report could lead to a greater risk that is posed to U.S. facilities and individuals all around the world.” That’s because the committee’s Democratic majority held that certain of the CIA’s interrogation methods rose to the level of torture. Committee Democrats also

maintain that the methods used to extract information from detainees with suspected terrorist ties bore little or no fruit. The report almost certainly will be used by sworn enemies of the United States, like al-Qaida and ISIS , as justification of beheadings of kidnapped Americans and attacks against U.S. military personnel abroad. There could even be terrorist reprisals here in the United States. The outstanding question is why committee Chairman Dianne Feinstein of California was so insistent that the summary torture report be released now. The timing suggests she decided to leave a nasty parting “gift” for Republicans on her committee before they take majority control in January. The irony is that, as head of the Intelligence Committee, Sen. Feinstein declared former NSA contractor Edward Snowden’s disclosure of U.S. data-gathering practices “an act of treason.” Well, maybe Sen. Feinstein thinks the government subjecting terror suspects to waterboarding and sleep deprivation is a more odious practice than the government’s monitoring of Americans’ phone records, emails and even financial transactions. But if U.S. national security was compromised by Mr. Snowden’s revelations, it has been no less compromised by release of the committee’s torture report.

Release of SIC report increases terror—highly partisan, inflames anti-Americanism, and hinders CIA intelligenceBrookes 14- Senior Fellow, National Security Affairs at the Heritage Foundation (Peter, “Context counts in assessing torture”, The Heritage Foundation, 12/15/14, http://www.heritage.org/research/commentary/2014/12/context-counts-in-assessing-torture)//WK

You can argue the value of the public release of the Senate Intelligence Committee’s report on CIA interrogation of terror detainees for the years 2001-2009 — and we certainly will — but here’s what bothers me. First, it wasn’t a bipartisan report. The investigation was done by the majority (Democratic) staff without the participation of the minority (Republican) staff; it provides the views of that side of the aisle. This opens the report to charges of being politically charged. Then, how closely does the executive summary, which runs only 10 percent of the length of the entire report, hew to the full document? The full report runs some 6,000 pages and the executive summary, though hefty, runs only about 600 with redactions. Due to the security clearances needed, how many people have actually read the entire 6,000-page report? I’m guessing that it’s a very limited number. I also want to hear from the CIA. If you’re arguing that this public airing is critical to who we are as Americans, Langley deserves its day in the court of public opinion. For instance, the CIA insists that the interrogation program provided critical intelligence that was useful in getting Osama bin Laden and preventing terrorist attacks. The Senate report differs with that assessment. OK, so why is there such a gap? It’s also interesting to note that this report was done in hindsight. For example, does the report reflect on how difficult the decisions were on interrogation in the aftermath of the 9/11 attack when another strike seemed credible? Context counts. Plus, I’m also worried about the possible impacts overseas. Places like the Middle East are in a lot of turmoil as a result of the “Islamist Spring” and the rise of a raft of terror groups like the Islamic State. This report could put American lives (those of soldiers, diplomats and civilians) and interests in danger. The Pentagon reportedly put the troops overseas on high alert due to concerns about violence coming our way. Some argue that the Islamic State and al-Qaeda already have the United States in their cross-hairs, so what’s the difference. That’s true in general, but will this report’s release help these groups find new foot soldiers, followers and funding? The info in this document, especially with its lurid details, could prove a propaganda bonanza for existing or future terrorist groups — not to mention “lone wolves” who may be incited to violence by it. This is a serious risk. Moreover, this report may damage liaison relationships with intelligence partners who wonder if working with the Americans is too much of a headache, cutting off avenues to important information on terrorism. Of course, the Senate should exercise oversight on the federal government, including the CIA and its activities, but do we really need to potentially —

and clearly willingly — make the world more dangerous for us? Have we

forgotten we’re at war? On balance, it’s hard to imagine how the release of an inflammatory, one-sided report will help Team Obama’s failing foreign and national security policy or make us any safer in these terribly troubling times

Torture is a necessary tool—internal documents prove it stopped countless attacksAlt 9- senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation (Robert, “Dust-Up: Torture and the CIA: Investigate White House Higher-Ups?”, The Heritage Foundation, http://www.heritage.org/research/commentary/2009/08/dust-up-torture-and-the-cia-investigate-white-house-higher-ups)//WKIndeed, the sentences immediately preceding the part of the CIA "business plan" you quote refute your claim: "Results from the first Al Qaeda [high value target] interrogated using the

aforementioned enhanced techniques [including waterboarding], Abu Zubaydah, have been outstanding. ... The interrogation team has produced [redacted] actionable intelligence disseminations from Abu Zubaydah. This has ultimately led to some instances of the U.S. Government being able to neutralize Al Qaeda capabilities worldwide before there was an opportunity for those capabilities to engage in operations harmful to the United States." The inspector general's report likewise states that "the Agency's detention and interrogation of terrorists has provided intelligence that has enabled the identification and apprehension of other terrorists and warned of terrorist plots planned for the United States and around the world." And footnotes in the 9/11 Commission Report contain more than 100 references to information obtained from Khalid Shaikh Mohammed following his waterboarding -- information credited with thwarting an attack on the tallest building in Los Angeles. We can have a serious debate about the prudence or legality of using enhanced interrogation techniques. But claims that the interrogation techniques didn't work, or didn't produce information that kept America safe are sufficiently refuted at this point as to fall outside the boundaries of that debate. And -- shifting to today's topic -- we should have a serious debate. That means dispensing with claims that Bush administration decision-makers clearly committed crimes. Indeed, David, you concede some measure of this in hedging your claim that the interrogation methods violated, as you put it, "practically" peremptory norms of international and domestic law. Even if one assumes that peremptory norms are in some way self-executing, and even if torture is a peremptory norm, you no doubt recognize, as I stated Wednesday, that what constitutes torture is subject to differing interpretations. This is why we have lawyers at the Department of Justice to offer their interpretations of which acts fall on what side of the line. You may disagree with their conclusions, but reputable criminal law professors and ethics professors agree that even if their legal judgment was erroneous, they didn't commit any crimes. We should not be criminalizing differences of opinion. As for the prospect of a "truth commission," even leaving aside the risk that it would devolve into show trials, the probability of Congress convening one is somewhere around nil. After all, any examination into the interrogation practices would necessarily shed light on the roughly 30 briefings that members of Congress (including House Speaker Nancy Pelosi) received on waterboarding and other interrogations techniques in 2002 and 2003 -- in which the question asked by the members was whether the tactics were tough enough, not whether they went too far. If we begin criminalizing disagreements, I am sure that there will be more than enough blame to go around in the previous administration -- and for future administrations as well.

kritiks

torture link

Torture oversight inherently fails – government officials have empirically unanimously accepted its use without objection – focus on how officials allowed torture in the past is key to prevent future abuse Zenko 14 – Micah Zenko is a Senior Fellow in the Center for Preventive Action (CPA) at the Council on Foreign Relations (CFR). Previously, he worked for five years at Harvard University's Kennedy School of Government, and in Washington, DC, at the Brookings Institution, Congressional Research Service, and State Department's Office of Policy Planning. (12/8/2014, Micah, Foreign Policy, “The Problem With the Torture Report”, http://foreignpolicy.com/2014/12/08/the-problem-with-the-senate-torture-report-cia-enhanced-interrogation/ // SM)When reading the executive summary, Americans should try to look beyond these specific abuses and ask the fundamental question: How could senior officials at the CIA, White House, and the Department of Justice have unanimously approved the use of torture? According to officials’ memoirs and historical accounts examining the four months between March 28, 2002, when al Qaeda operative Abu Zubaydah was captured in Pakistan, and Aug. 1, when the Office of Legal Counsel (OLC) memo authorizing the enhanced interrogation techniques was completed, not one senior official aware of the program registered an objection to it. Current CIA Director John Brennan, who was the agency’s deputy executive

director in 2002, later claimed he had “personal objections” to “waterboarding, nudity, and others,” but he never made this officially known, not even to the CIA’s top lawyer, John Rizzo, whose office was

just 15 feet away. The reason that all informed Bush administration officials thought this was acceptable was best summarized six weeks after the OLC memo’s publication by then-CIA Counterterrorism Center

Director Cofer Black, when he famously wrote to a joint congressional inquiry: “After 9/11 the gloves came off.”

Indeed, immediately after Zubaydah was captured, Bush asked CIA Director George Tenet a question that would guide how detainees should be treated: “Who authorized putting him on pain medication?” As Ali Soufan, the FBI interrogator of Zubaydah for three months after his capture, later wrote: “Under traditional interrogation methods, he provided us with important actionable intelligence.” However, counterterrorism officials believed that such lawfully gathered information was insufficient and, just days after the completion of the OLC memo, Zubaydah’s torture began in Thailand. The practice soon spread to the other black sites. As a CIA source explained to journalist James

Risen, “Abu Zubaydah’s capture triggered everything.” What about the politicians outside of the

executive branch who by law are supposed to be “fully and currently informed” about U.S. intelligence activities and programs, and provide continuous oversight of them? The chairs and vice chairs

of the Senate and House intelligence committees, as well as Senate and House leadership, were briefed 17 times about the enhanced interrogation techniques — including waterboarding — between September 2002 and December 2005, when President Bush signed the Detainee Treatment Act. (It is disputed which leaders actually attended which briefings.) How forthcoming and specific the CIA briefers were remains another inexplicable mystery of the post-9/11 era. Republicans such as Sen. Richard Shelby and Rep. Porter Goss (who would go on to head the CIA), respectively claim to have

received a “full account of the techniques,” and have said that “there was a pretty full understanding of what the CIA was doing.” Meanwhile, Democrats, including Sen. Bob Graham and Rep. Nancy Pelosi, respectively

contended later to “not have any recollection of being briefed on waterboarding or other forms of extraordinary interrogation techniques,” or said they were told that such techniques “could be used,

but not that they would.” Either knowledgeable Republicans and Democrats consented to CIA torture without objection, or they allowed a highly dysfunctional relationship between Langley and the intelligence committees to persist, preventing effective oversight. That, or they are lying about what they actually knew. Intelligence officials claimed that the enhanced interrogation techniques were

limited to 30 detainees (it was certainly more, possibly over 130), and they belittled the harm that was inflicted. A

March 4, 2003, Wall Street Journal article described how intelligence officials overseeing interrogations “at Bagram and Guantanamo Bay Naval Base in Cuba can even authorize ‘a little bit of smacky-face’… ‘Some al Qaeda just need some extra encouragement,’ the official says. Among the more enraging aspects of this sentiment, beyond describing torture with callousness, is that the CIA’s inspector general’s review of detention activities between September 2001 and October 2003 found “instances of improvisation and other undocumented interrogation techniques.” Thus, the interrogators were not just carrying out the orders laid out in the OLC memo, but expanded its scope as they saw fit. Of course, most of those unfortunate victims were not al Qaeda members, but merely Afghan farmers or low-level militants sold out by their rivals to the nearest U.S. soldiers, as Anand Gopal demonstrates in his masterful book on Afghanistan during that era. The reason that government officials’ recent tolerance for torture must be remembered is that (ignoring the routine

domestic terroristic acts wholly omitted from national security debates) the United States could again experience some serious international terrorist attack at some point. In response, what previously unlawful and unthinkable counterterrorism policies will government officials now endorse and defend? As I noted two weeks ago, when the United States conducted its 500th non-battlefield targeted killing since 9/11, it is a quite easy for the once unimaginable to become commonplace. On June 22, 2004, President Bush declared: “We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are

such that torture is not a part of our soul and our being.” But, of course, he did order torture (as he later explicitly stated in his 2010 memoir) and it was in fact a clear reflection of America’s values at that time, as expressed by our elected leaders in the executive and legislative branches. The less we reflect upon how officials allowed the previous torture era to occur, the more likely that it — or an era where equivalent counterterrorism abuses are endorsed — will be repeated.

Reform isn’t enough -- abolishing CIA key Hornberger 14 (Jacob Hornberger - founder and president of The Future of Freedom, B.A. in economics from Virginia Military Institute

and his law degree from the University of Texas, March 12, 2014, DON’T REFORM THE CIA. ABOLISH IT. http://fff.org/2014/03/12/dont-reform-the-cia-abolish-it/) //JS

Anyone who reads the works of the late Chalmers Johnson will have an excellent understanding of the role that the U.S. national-security state, especially the vast military empire and military-industrial complex, plays in America’s foreign-policy woes. I particularly recommend his four books: Blowback, The Sorrows of Empire, Nemesis, and Dismantling the Empire. For those who would prefer to begin with online articles, here is a link to an article I wrote in 2011 that contains a list of some of the online articles written by Johnson. Among the most insightful articles written by Johnson are two that are pertinent today, given the controversy that has erupted over the CIA’s spying on Congress. The titles of those two articles are: “Abolish the CIA” and “Improve the CIA? Better to Abolish It.” As you read the various commentaries on the CIA congressional spy scheme, you’ll notice something important about them: Most all the commentators automatically assume that the CIA must remain a permanent part of America’s governmental structure. The commentators will carp about

this or about that. But the most they will ever do is call for reform. They want more oversight. They want more

accountability. They want more supervision. But the last thing they want is to eradicate this agency from America’s

governmental structure. But as Chalmers Johnson recognized, abolishing the CIA is the only way to go. There is no way to reconcile the CIA with the principles of a free society. Its very existence, not to mention its manner of operation, is antithetical to a free society. The CIA was brought into existence in 1947 as part of the national-security state apparatus that was grafted onto our governmental system to oppose the Soviet Union, America’s World War II partner and ally. Unless America adopted the methods of totalitarian regimes, including communist ones, Americans were told, the United States would ultimately end up falling to the communists. The national-security state became a separate form of government within our federal structure. On the surface, people could see the structure that they learned about in their high school civics classes and college political science courses. Three branches of government. Separation of powers. Judicial review. Limited government. Bill of Rights. Transparency. But under the surface was a separate government structure that was completely different from the one that operated on the surface. This national-security structure operates in secret and has engaged in dark-side, totalitarian-like activities that include assassinations, coups, partnerships with the Mafia, partnerships with former Nazis, invasions, occupations, torture, kidnappings, disappearances, detentions, surveillance schemes, and even medical experimentation on unsuspecting people. This national-security governmental structure has had the

unlimited power to do whatever it has deemed necessary to protect “national security.” Total immunity for CIA agents. No judicial review. No Bill of Rights. Nothing but raw, unrestrained power. In bringing the CIA into existence, the American people made a pact with the devil, one in which the CIA effectively said, “Give us the power to do whatever we want to protect ‘national security.’ You need never be bothered by what we do because we will keep it secret from you. We will keep you safe.” About a month and a half before the Kennedy assassination, Pulitzer Prize-winning New York Times columnist Arthur Krock published an op-ed in the New York Times quoting a piece by Richard Starnes of the Scripps-Howard news service, which stated as follows: The C.I.A.’s growth was “likened to a malignancy” which the “very high official was not sure even the White House could control … any longer.” “If the United States ever experiences [an attempt at a coup to overthrow the Government]

it will come from the C.I.A. and not the Pentagon.” The agency “represents a tremendous power and total unaccountability to anyone.” Thirty days after the Kennedy assassination, former President Harry Truman, who had brought the CIA into existence when he was president, published an op-ed in the Washington Post, which stated in part as follows: I think it has become necessary to take another look at the purpose and operations of our Central Intelligence Agency—CIA…. For some time I have been disturbed by the way CIA has been diverted from its original assignment. It has become an operational and at times a policy-making arm of the Government. This has led to trouble and may have compounded our difficulties in several explosive areas. I never had any thought that when I set up the CIA that it would be injected into peacetime cloak and dagger operations. Some of the complications and embarrassment I think we have experienced are in part attributable to the fact that this quiet intelligence arm of the President has been so removed from its intended role that it is being interpreted as a symbol of sinister and mysterious foreign intrigue — and a subject for cold war enemy propaganda…. We have grown up as a nation, respected for our free institutions and for our ability to maintain a free and open society. There is something about the way the CIA has been functioning that is casting a shadow over our historic position and I feel that we need to correct it. In the book Plain Speaking: An Oral Biography of Harry S. Truman, author Merle Miller wrote: Here is what President Truman said of the CIA and its creation, “I think that it was a mistake. And if I’d known what was going to happen, I never would have done it…. But it got out of hand…. Now as nearly as I can make out, those fellows in the CIA don’t just report on wars and the like, they go out and make their own and there is nobody to keep track of what they are up to. They spend billions of dollars on stirring up trouble so they will have something to report on. They’ve become … it’s become a government of all its own and all secret. They just don’t have to report to anybody….” In 2003 G. Robert Blakey, former chief counsel to the House Select Committee on Assassinations, which investigated the John Kennedy assassination, stated: I now no longer believe anything the Agency [CIA] told the committee any further than I can obtain substantial corroboration for it from outside the Agency for its veracity…. We also now know that the Agency set up a process that could only have been designed to frustrate the ability of the committee in 1976-79 to obtain any information that might adversely affect the Agency. Many have told me that the culture of the Agency is one of prevarication and dissimulation and that you cannot trust it or its people. Period. End of story. I am now in that camp. In 2009 U.S. District Judge John R. Tunheim, who chaired the Assassination Records Review Board, which was charged with securing the release of Kennedy assassination records from governmental agencies in the 1990s, told the New York Times: I think we were probably misled by the agency. This material should be released. According to the Boston Globe, Tunheim also stated: It really was an example of treachery. If [the CIA] fooled us on that, they may have fooled us on other things. Tunheim was referring to the CIA’s records on George Joannides, a CIA agent who played at least two interesting roles relating to the Kennedy assassination, one before the assassination and one after the assassination. The CIA kept those two roles secret from the Warren Commission, the House Select Committee, and the ARRB. Indeed, to this day the CIA steadfastly continues to refuse to disclose its Joannides records. “National security,” CIA officials say, notwithstanding the fact that the Kennedy assassination was 50 years ago and Joannides died in 1990. (For the details of the Joannides story, see “Who Was George Joannides and Why His Story Is Important?” by Jefferson Morley.) The big issue though isn’t the CIA surveillance scheme on Congress, its assassination programs, its regime-change operations, its torture programs, its coups, its partnerships with dictatorial regimes, its medical experiments, its partnerships with the Mafia and former Nazis, or even its still-secret, nefarious activities relating to the Kennedy assassination. The big issue is: Why should the CIA be permitted to continue existing? For one thing, the Cold War is over. That was the original justification for bringing this totalitarian-type agency into existence. Since the Cold War is over, the term of the CIA should be over too. More important, what business does America have having a separate, sub-surface governmental structure, one that operates in secret and one engaged in dark-side, evil, and immoral activities? Not only is such a structure not necessary to the security of the United States, it actually constitutes a grave threat to the freedom and security of the American people. It is a sinister institution that has no place in a free society, a society whose founding principles are based on limited, constitutional government, not totalitarian principles. It’s time to rid our nation of the CIA. It’s time to restore freedom, morality, transparency, and constitutional government to our land. It’s time to abolish, not reform, the CIA.

Legal solutions fail—discourages grass-roots approaches and creates culture of complacencySilove et al. 12- * Director of Psychiatry Research & Teaching at the Mental Health Centre, Liverpool Hospital (Derrick, Susan Rees, Zachary Steel, “Dissent into the Dark Ages: Torture and

its Perceived Legitimacy in Contemporary Times” in “Mental Health and Human Rights: Vision, Praxis, and Courage”, Oxford University Press, pp. 259-261)//WKThe administrative steps that ultimately led to the adoption of torture in US detention centres have now been extensively documented, although further evidence continues to emerge. In

2002, the year following September 11, the US president issued a decree determining that detainees at Guantanamo Bay were not subject to the Geneva Conventions. The US Department of Justice offered

expert legal advice that sanctioned interrogation methods such as waterboarding and other enhanced interrogation techniques based on the claim that these practices did not transgress the threshold for causing physical or psychological harm (Silove and Rees 2010). At the same time, the US Secretary of Defense signed a memorandum allowing the use of 15 special counter-resistance techniques including prolonged stress positions, deprivation of light and sound, hooding, forced nudity, wall slamming, and manipulation of individual phobias (Sands 2008). These practices have been deemed by leading human rights organizations to constitute torture (Lewis 2004; Physicians for Human Rights, 2005). Of interest is the recent empirical evidence that suggests that psychological forms of torture analogous to those used in so-called enhanced interrogation techniques have grave psychological sequelae (Basoglu 2009). Nevertheless, to protect the actions of the Department of Justice, the Office of Legal Counsel, the primary agency for advice to the President regarding any legal limits on his power, offered repeated advice that, in effect, allowed the Administration to circumvent the Geneva Conventions, the CAT, and the Supreme Court of the USA. One argument used was that Afghanistan under the Taliban was a ‘failed state’, and therefore its previous status as a signatory to the Geneva Conventions no longer applied. There also appears to be a definable set of steps that lead societies down the slippery slope to sanction the use of torture and related abuses. Political leaders may be motivated by a sense of crisis and loss of control under conditions of perceived national threat; or they may exploit periods of turmoil, seizing the opportunity to direct attention from other problems to advance their political, social, religious, or ideological programs. Propaganda that exaggerates the immediacy and extremity of the threat provides public justification for the victimization of targeted minorities. Emotive language is used to depict these minorities as being so malevolent or inhuman that they have forfeited any right to the processes of justice owed to other citizens. Because of the exceptional circumstances, normal judicial process are represented as inadequate, or because of their transparency to public scrutiny, as a threat to national security. Hence, strong arguments are advanced that extraordinary actions, conducted in secrecy, are needed for what are characterized as unanticipated and unusual times. It is also common for hasty quasi-legal or legal provisions to be adopted as a mechanism to provide legitimacy for governments to circumvent or exploit loopholes in state or international law. Critics who attempt to defend human rights are commonly attacked for being naïve, ignorant, or acting against the interests of public safety and national security. In the aftermath, if the tide turns against the decision to use torture, as has partially occurred in the US, the responsible leaders employ a range of strategies to avoid criticism or indictment. These strategies range from claiming ignorance, blaming subordinates or superiors, and continuing to invoke the principle of necessity to justify their actions. In the US, debate continues whether torture used during the war on terror yielded information that materially contributed to overcoming terrorism, even though there is little public evidence to support this contention. The paradoxical argument commonly used is that the responsible leaders cannot reveal the evidence because it remains in the realm of classified information. The key lessons emerging from recent history is that the extensive legal provisions that appeared to have been firmly established to prohibit torture were clearly inadequate in the face of the actions of leaders in times of state crisis. Neither Abraham Lincoln’s 1863 General Order No. 100 that decreed that ‘military necessity does not admit of cruelty’ nor the seemingly watertight international regime of human rights instruments adopted in the decades preceding the war on terror provided immunity from the tendency to resort to torture. Krygier (2008) argues that the only mechanism that will preserve the rule of law and due process under all circumstances is to recognize the vulnerability of the law and the potential for aberrant behaviour by governments under extreme conditions such as those that emerged in the US

following 9/11. One implicit lesson may be that the legalization of human rights, a process that gained unprecedented momentum in the last 60 years, has had the unintended effect of shifting human rights activities from the grassroots, community level to the realm of legal experts . Although that trend has been essential to achieving outcomes such as the CAT, it also runs the risk of reducing the impetus to maintain and build an active and powerful human rights movement

at the community level. Perhaps the greatest failure, and one that became starkly evident in the testimony given by personnel involved in torture at Abu Ghraib, was the absence of a pervasive human rights culture within society in general and the military in particular (Miller

2005). It may be that the only way that the principles of human rights can be defended in an acute situation—as opposed to providing the foundations for subsequent prosecution of offenders—is to ensure wide-ranging and effective campaigns of education in high-risk institutions such as the army, with creative strategies being implemented to promote and maintain a durable rights-based culture in these vulnerable settings.

The aff can’t solve – the power to give detainees rights is the same power to declare them in a state of exception in the first place – adherence to legal solutions is counterproductiveKohn, Professor PolSci U of Florida, ‘6 (Margaret, “Bare Life and the Limits of the Law” Theory and Event, Vol 9 No 2, ProjectMuse)At this point it should be clear that Agamben would be deeply skeptical of the liberal call for more vigorous enforcement of the rule of law as a means of combating cruelties and excesses carried out under emergency powers. His brief history of the state of exception establishes that the phenomenon is a

political reality that has proven remarkably resistant to legal limitations. Critics might point out that this descriptive point, even if true, is no reason to jettison the ideal of the rule of law. For

Agamben, however, the link between law and exception is more fundamental; it is intrinsic to politics itself. The sovereign power to declare the state of exception and exclude bare life is the same power that invests individuals as worthy of rights. The two are intrinsically linked. The disturbing

implication of his argument is that we cannot preserve the things we value in the Western tradition (citizenship, rights, etc.) without preserving the perverse ones. Agamben presents four theses that summarize the results of his genealogical investigation. (1) The state of exception is a space devoid of law. It is not the logical consequence of the state's right to self-defense, nor is it (qua commissarial or sovereign dictatorship) a straightforward attempt to reestablish the norm by violating the law. (2) The space devoid of law has a "decisive strategic relevance" for the juridical order. (3) Acts committed during the state of exception (or in the space of exception) escape all legal definition. (4) The concept of the force-of-law is one of the many fictions, which function to reassert a relationship between law and exception, nomos and anomie. The core of Agamben's critique of liberal legalism is captured powerfully, albeit indirectly, in a quote from Benjamin's eighth thesis on the philosophy of history. According to Benjamin, (t)he tradition of the oppressed teaches us that the 'state of exception' in which we live is the rule. We must attain a concept of history that accords with this fact. Then we will clearly see that it is our task to bring about the real state of exception, and this will improve our position in the struggle against fascism. (57) Here Benjamin endorses the strategy of more radical resistance rather than stricter adherence to the law. He recognizes that legalism is an anemic strategy in combating the power of fascism. The problem is

that conservative forces had been willing to ruthlessly invoke the state of exception in order to further their agenda while the moderate Weimar center-left was paralyzed; frightened of the militant left and unwilling to act decisively against the authoritarian right, partisans of the rule of law passively acquiesced to their own defeat. Furthermore, the rule of law, by incorporating the necessity of its own dissolution in times of crisis, proved itself an unreliable tool in the struggle against violence. From Agamben's perspective, the civil libertarians' call for uniform application of the law simply denies the nature of law itself. He insists, "From the real state of exception in which we live, it is not possible to return to the state of law. . ." (87) Moreover, by masking the logic of sovereignty, such an attempt could actually further obscure the zone of indistinction that allows the state of exception to operate. For Agamben, law serves to legitimize sovereign power. Since sovereign power is

fundamentally the power to place people into the category of bare life, the law, in effect, both produces and legitimizes marginality and exclusion.

The aff is worse than doing nothing at all—eviscerates politicsWest, Professor Law at Georgetown, ‘6 (Robin, Harvard Journal of Law and Gender, lexis)

And law is indeed a strikingly conservative and conserving set of institutions and practices. I argued in the book that legal critics, feminist and otherwise, should elevate the concept of harm in our thinking about law. And when we do so, we should think much more than we currently do about the harms sustained by various subordinated groups, including women. All I want to add here in response to some of Halley's remarks is that harm- and law-focused inquiries with respect to gender or otherwise that come from such a focusare indeed reformist projects. They are projects about how law could do better, instrumentally, what it claims to do, and what it does do some of the time, what

it does not do at all well most of the time, and often does not do at all, period.However, while it is important to get judge-made law to do better what it already does, it is even more important. I think,to put law in its place. Law--meaning here, adjudicative law--is (lo and behold) not politics. It cannot do what politics might be able to do. It has been a tragic mistake, I think, of liberals, radicals, identitarian theorists, critical legal

scholars, and progressives of all stripes involved in law, legal theory, and legalism of the past half

century,to assert, and so repetitively and confidently, the contrary. The domain of adjudicative law has its own ethics . It is for the most part deeply moored in conservative values . It has some redemptive potential and therefore some play for progressive gains, but really not much. More important, it has the potential, all in the name of justice, to further aggravate the harms it manages to so successfully avoid. Caring for Justice was an attempt to expose the aggravation of harm done by law in the name of justice, exploit its redemptive potential, and argue that others should do this also.But completely aside from the arguments of that book, I think this is still a very important and very much under-examined question for progressive lawyers to ask: how much can be asked of adjudicative law? Again, my answer is "not much." Others disagree. My current retrospective on the place of Catharine MacKinnon's jurisprudence in our law and letters, for example, argues that a part of the brilliance of her labors over the last thirty years has been her quite conscious embrace of law and legalism, rather than the domain of politics, culture, or education, to achieve evolutionary changes in our understanding of both sexual injury and sexual justice. 97 She has been phenomenally successful in pushing law to become a[*48]vehicle for that evolutionary change. By contrast, I think, the benighted attempt over the last half century of progressive constitutional lawyers and theorists to employ the stratagems and

ethics of legalism so as to refigure our fundamental politics, to achieve substantive equality, expand liberty,

and the like--and to do so by urging on courts the development of progressive interpretations of their constitutional

corollaries-- has been a pretty striking failure, and not only because of the current Republican staffing of the courts.

Obviously, the arguments put forward by progressives, radicals, and liberals in their thousands upon thousands of pages of briefs--arguments about what equality should look like, about what freedoms we all should or should not have, about democracy, about speech, about reproduction, about race, about sex, and so on and so on and so on, as well as their constitutional corollaries, from Brown98 to Roe99 to Casey100 to Lawrence101--are vital arguments with

which to engage. The problem is that these arguments should be--and are not--the bread and butter of very ordinary politics, completely traditionally understood. The repeated insistence by liberal legalists over the last half-century that these arguments are, in fact, in law's domain has not secured progressive victories and has had the perverse effect instead of impoverishing our politics . 102 The repeated insistence by critical legal scholars over the last thirty years that, contra liberalism, there is no difference between law and politics--and that what follows is simply that all those legal arguments in all of those endless Supreme Court opinions pontificating over the meaning of liberty and equality are in fact political arguments--has not changed this dynamic one bit. It has not only underscored the total absence of any coherent progressive instrumentalism from left understandings of the potential of

law. Of greater consequence, it has also even further emasculated and eviscerated our politics, worse than liberalism could have done if it had tried, and it did not. The critical insistence on the deconstruction of the differences between law and politics has only reinforced , rather than challenged in any meaningful way, the liberal legalist conceit that law , rather than politics ordinarily understood, is the domain of radical and liberal political thought. We have no political "left" in this country, in part, because those who would otherwise be inclined to make one have instead poured their thought, their passion, and their commitments into litigation[*49]strategies or into the project of pointing out over and over the politics of those projects. The result of this has been an entrenched conservatism across the board - -the board, that is, of both law and politics. Progressives need to re-direct their political arguments,

including the radical arguments, out of law and law reviews and into the domain of politics . We first have to get over the lazy assumption that there is no need to do so--either because law is much loftier than ordinary politics, such that ennobling political arguments ought to be made in judicial fora (liberalism); or because there's no difference between law and politics, so that pointing out that legal arguments are through and through political is the beginning and end of political thought (critical). There are alternatives to both, and we ought to start figuring out what they are.

Aff doesn’t solve – concrete changes irrelevantAradau, Professor International Politics at Open University, ‘7 (Claudia, “Law transformed: Guantánamo and the ‘other’ exception” Third World Quarterly, Vol 28 No 3, p 489-501, T&FOnline)The other exception obscures the locus of decision by separating political decision from factuality, from the ‘concrete life’ intrinsically related to the characteristics of space. If one can speak of decisions on Guantanamo Bay, these can only be traced back to legal and historical precedents, as well as to different institutions.

The withdrawal of the sovereign decision does not mean that the space of exception is ‘emptied’ of governing practices. Like any space, Guantanamo is to be made governable. Yet governing practices are to

be subsumed to the realities of space and the characteristics of ‘concrete life’. Therefore, Guantanamo cannot be thought of as the place of absolute arbitrariness, of sovereign police, where everything is possible. Fleur Johns

has remarked that one finds in Guantanamo Bay a space filled to the brim with expertise, procedure, scrutiny and analysis.32 Even before the 28 June 2004 rulings of the US Supreme Court in Hamdi v Rumsfeld and Rasul v Bush affirmed the entitlement of Guantanamo Bay detainees to ‘contest the factual basis for th[eir] detention before a neutral decision maker’, the Department of Defense (DOD) had produced a panoply of regulations concerning the status and handling of detainees. These included mechanisms for annual administrative review of the necessity of each detainee’s detention and procedures for their trial before specially convened Military Commissions.

Aff only reinstates the law which causes the problemAradau, Professor International Politics at Open University, ‘7 (Claudia, “Law transformed: Guantánamo and the ‘other’ exception” Third World Quarterly, Vol 28 No 3, p 489-501, T&FOnline)The consensus about the exceptionality of Guantanamo has led, however, to a series of problematic positions. On the one hand, we have witnessed an increased endorsement of the norm, of international law and the rule of law generally against the sovereign practices of the USA. The norms that have been suspended, e.g. habeas corpus, the Geneva Conventions, the right to a fair trial

and, more generally, international human rights law are to be reinstated as the limit of sovereign practices. The recent declaration by the Pentagon that Article 3 of the Geneva Convention is to be applied to the Guantanamo detainees is an instance of law prevailing over sovereign exceptional practices.7 On the other hand, there has been a sustained engagement with what the ‘state of exception’ means. As the exception is constitutive of law, some have followed Agamben in the proposal to reduce the exception to the temporary status it had in modernity.8 In this argument, what differentiated fascist regimes from liberal democratic ones was not the absence of the exception in the latter, but its temporal expansion in the former. Others still have claimed the re-judicialisation of law against its suspension ‘in order to heighten the discretionary power of those who are asked to rely on their own judgment to decide fundamental matters of justice, life and death’.9 Yet all these well meaning strategies are aporetic, as

Butler has already noted in her analysis of Guantanamo and the US exceptional practices in the ‘war on terror’. If the state of exception is triggered by the ‘suspension of law’ as a result of the ‘extraordinary character of terror’,

reinstating law is an aporetic answer. The Geneva Conventions, Butler argues, have already regarded ‘terrorists’ as ‘outside the protocols’ and even ‘outside the law’ by extending ‘‘‘universal’’ rights only to those imprisoned combatants who belong to ‘‘recognizable’’ nation-states, but not to all people’.10 Thus, the Convention gives grounds for a distinction between legal and illegal combatants. Human rights law has its own exceptions and its own space of exceptional categorisations, which are constitutive of the

order it delimits: non-state persons, spies, saboteurs or partisans. The category of ‘unlawful combatant’ has always been foundational to the laws of war, being applied to ‘spies’ or other irregular participants in an armed conflict.11 As Schmitt presciently warned, law cannot regulate irregular combatants: some categories remain ‘exceptional’ to the normative realm.12 However, the exception of international humanitarian or domestic constitutional law is not the same as the exceptional space of Guantanamo or the exceptional practices of the ‘war on terror’. This article explores the difference between these forms of exception and argues that, rather than constitutive of law, the space of current exceptions is indicative on an ongoing transformation of law.13 Law transformed allows us to gauge the impact and extent of another exception, a concrete exception rather than a decisionistic one, which cannot be reduced to the exceptional status of Guantanamo, but which is implicated in a particular functioning of law.

Legal checks on torture are impossible—the law is a tool of executive warfare—congressional checks empirically failPillard 6- *Professor, Georgetown University Law Center. She served as Deputy Assistant Attorney General in the Office of Legal Counsel from 1998 to 2000 (Cornelia, “Unitariness and Myopia: The Executive Branch, Legal Process, and Torture”, 81 Ind. L.J. 1297, pgs. 1297-1312, HeinOnline)//WKThe executive branch's oft-unnoticed role in interpreting and applying the Constitution and laws was vividly apparent in 2004 as a result of the American torture scandals. National and international outrage exploded in response to photographs circulated around the world showing United States military personnel at the notorious Iraqi prison, Abu Ghraib, grinning as they degraded and terrorized naked and hooded Iraqi prisoners. The story is still not fully told, but it seems clear that the executive branch's approach to the law--domestic and international-is among the causes of the torture scandal . An August 1, 2002 secret opinion of the Office of Legal Counsel (OLC), the executive's definitive legal advisor, gave an unnaturally narrow definition of "torture" in the federal Anti-Torture Statute, limiting it to situations in which "[t]he victim... experience[s] intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result."' As Dean Harold Koh observed in his keynote address at this symposium, horrors that Saddam Hussein is alleged to have inflicted on his people are not "torture" under this definition . The longstanding legal and cultural prohibition against torture lost its hold on United States personnel at Abu Ghraib, Guantanamo, and elsewhere. In the hands of the executive branch, the rule of law failed. That failure was predictable in an administration whose legal decision making bespeaks prerogatives of power more than limitations of law. Hand-picked political appointees collaborated secretly on the Torture Memo, driving directly to a desired bottom line. The function of that legal opinion clearly was not to provide thorough, balanced and candid legal advice to government decision-makers, but was instead to immunize federal actors against possible legal sanctions. The executive personnel involved eschewed open, deliberative legal processes and diverse inputs, and failed to draw on varied forms of expertise available within the executive branch. This Symposium asks how sources and processes of law might better promote legal constraint and avoid repetition of the kinds of legal decisions that contributed to the torture scandals. In my view, the torture debacle was born in part of ideologically driven myopia. It might have been avoided had the executive systematically welcomed different views and fostered dissent in the legal decision making process, and had any resulting change in the government's legal position on coercive interrogation been promptly subjected to public scrutiny when it was rendered in 2002. There are times when, if the executive does not impose legal constraint on itself, nobody can, as the recent mistreatment of detainees so starkly demonstrates . The Administration of President George W. Bush has repeatedly claimed power that, it asserts, is not subject to judicial review

and even in some cases is beyond the reach of Congress to regulate. As strong as the tendency remains in the United States to associate law-making only with the legislatures and courts, it is now as clear as ever that the reach and limits of the law also depend significantly on the executive's own approach to interpreting and applying legal norms. How the executive expounds the law that potentially restrains its military and intelligence personnel and civilian contractors, among others, is of enormous practical importance to the reality and reputation of the United States as a law-abiding nation. 3 The goal of fostering dissensus in the executive branch faces different challenges than it does in the courts or Congress. The courts and Congress operate largely in public, openly receiving input from many quarters. They contain multiple decision makers and speak through multi-vocal bodies that inevitably reflect various perspectives. And they are exclusively devoted to making and interpreting legal norms. Executive branch legal deliberation and decisions, by contrast, are generally nonpublic, both during the period leading up to the decision, and, often, once a decision is made. The executive, at least in an important theoretical sense, is unitary and univocal, with the President as the sole person with authoritative, final say over executive decisions. Finally, for the executive, unlike the other branches, law is not the primary product; the executive is geared to accomplishing a wide array of pragmatic ends beyond legal decision making. Given those characteristics, maintaining the salience of legal constraints within the executive branch is intrinsically challenging, and especially so in times of war or national security crisis. From the viewpoint of the executive, law can seem to be an inconvenient obstacle to the executive's ability to get things done. The United States since September 11, 2001, has been in combat in Afghanistan and Iraq and has waged what President Bush has termed a "global war against terrorism," in which focusing on legality can be viewed as twiddling one's thumbs while Rome bums. As FDR's attorney general, Francis Biddle, famously remarked, " The Constitution has not greatly bothered any wartime President . ' 4 Neither, it seems, is the Commander-in-Chief these days greatly bothered by federal statutes or international law. Just as the soldier's proving ground is combat, however, the law's real test comes when it is hardest to stand firm. The government's approach to law in times of war or other national crisis is an important indicator of our nation's character. The very idea of fighting for national survival is closely linked to law. If our nation were not genuinely a constitutional democracy, committed to liberty and equality, in which the government is constrained by law and accountable to the people, it would be a nation less worthy of our patriotism. If, under pressure, we sink to the level of those we scorn by using torture, thuggery and police-state tactics to "win" at all costs, then we betray our deepest principles and victory becomes meaningless.

Focus on torture as physical coercion ignores the underlying biopolitical structure—the idea of torture as horrifying normalizes legal coercionYankah 7- Richard W. and Marie L. Corman Scholar and Assistant Professor, University of Illinois College of Law. B.A., 1997, University of Michigan; J.D., 2000, Columbia University School of Law; B.C.L., 2002, Oxford University (Ekow, “THE FORCE OF LAW: THE ROLE OF COERCIONIN LEGAL NORMS”, 42 U. Rich. L. Rev. 1195, 2007, pgs. 1224-1226, HeinOnline)//WKFocusing on overcoming a person's will highlights a particular debate embedded in coercion, specifically, two different modes of coercion. One manner of overbearing another's will is bringing rational pressure-"rational coercion"-to bear. Rational coercion relies on increasing the cost of a certain course of action until it is unreasonably high. A person's desire to engage in that course of action is eventually overcome; he can no longer rationally choose that course

of action. When legal, social and other sanctions raise the cost of certain actions past what a person can reasonably bear, the sanctions are to that extent coercive. Many things that seem like physical coercion are, in the first instance, rational coercion; a robber pointing a gun at a person does not, strictly speaking, pry the money out of his hands, but rather radically changes the costs of his choices. A second way of overbearing a person's will is physical coercion. Physical coercion occurs when a person's will is overcome by acting upon him as a physical being. A person's refusal to move may be overcome when he is hoisted bodily and removed. Likewise, having his closed hand forced open by physical pressure represents central case of physical coercion. Frankfurt notes that some cases of physical coercion are difficult to separate from rational coercion. Where a person is being tortured and reveals secret information, it can be difficult to know if the information slips from sheer exhaustion or from the prospect of further torture. Hans Oberdiek, Berman and others are understandably suspicious of considering physical force as properly coercive. It is difficult to isolate a coherent view of physical coercion. Oberdiek's objection turns on his notion that coerced behavior must be the result of voluntary action; notwithstanding that the behavior, by default, is compelled, it must be voluntary.' Oberdiek defines coercion as a reasonably believable threat of visited evil if one chooses a given option. Oberdiek limits coercion to the threat and not the harm itself. A person is coerced, in this sense, when enough rational force is applied to make him do another's will. Oberdiek is correct to the extent he emphasizes that coercion need not be a success concept. A person can be under coercive pressure even when he is not coerced into performing a particular action; applying unreasonable pressure is coercive even if it is resistible.' Because, however, he ignores that coercion can describe the pressure applied as well as the success in physically overbearing a person's will, Oberdiek misses varying modes of coercion. In particular, he denies that central cases of physical coercion qualify as coercion at all.' As a result, he misses important elements of the law's coerciveness . Oberdiek's resistance relates to the objection that physical coercion constitutes one being acted upon as a physical being, having no interaction with rationality or will. Physical coercion seems to describe actions that are unwilled. Although Oberdiek rejects the idea of physical coercion, his conception of coercion shares the idea that one's will must be overborne.' The point of coercion is to apply sufficient pressure so a person cannot reasonably veer from the coerced course of action. If this is the crux of the shared concept of coercion, there is an internal tension in insisting that such behavior be chosen voluntarily while, at the same time, recognizing that the choice is involuntary. Thus, there is no reason to exclude from this definition instances of physical coercion when they focus on the same phenomenon-overcoming a person's will. Where force is used as an end unto itself, a distinction emerges. Force as an end does not attempt to interact with a person's will. When a person strikes another in anger, that use of force is aimed as an end unto itself. It is not meant to compel or interact with the other's will. This may make characterizing physical compulsion as coercion where one seems to be simply acted upon seem strange. The bulk of legal force, however, is not used as an end, but is particularly concerned with compelling a person to take, or restrain from taking, action. In the legal context, force typically plays a coercive role.' There are three typical examples of the legal application of force. The first, and most obvious, is forcing compliance or prohibiting breach of legal norms, such as when the police prevent a crime. The second is threatening sanctions, such as imprisonment, to induce rational coercion. The third is enforcing legal orders or sanctions, for example, when a marshal enforces a judgment. All of these are focal cases of legal coercion; none represent force used as an end unto itself. Of course, there are cases where a legal directive may order force employed as an end-a CIA order to have someone assassinated. But, it is perhaps best not to consider this coercion at all.

counterplans

--executive self restraint

Executive self - restraint keyCharlotte Observer 11/27 (The Charlotte Observer, November 27, 2014, A case for executive self-restraint, http://www.charlotteobserver.com/opinion/op-ed/article9237644.html) //JS America’s Newtonian Constitution might again function according to Madisonian expectations if a

provoked Congress regains its spine and self-respect, thereby returning our constitutional architecture to equipoise. But

this is more to be hoped for than expected. Even without this, however, the institutional vandalism of Barack Obama’s executive unilateralism still might be a net national benefit. It will be if the Republicans’ 2016 presidential nominee responds to Obama’s serial provocations by promising a return to democratic etiquette grounded in presidential self-restraint. Not since the off-year elections of 1938, when voters rebuked Franklin Roosevelt for his attempt to pack the Supreme Court by enlarging it, has the electorate made constitutional equilibrium a central concern. James Madison, however, hoped institutional balance could be self-maintaining: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” He expected that the rivalries between self-interested branches would produce an equal and opposite reaction to a rival’s overreaching. Before conservatives had the disorienting delight of Ronald Reagan’s presidency, they had a healthy suspicion of executive power, and an inclination to favor congressional supremacy. Congress, however, has long since ceased to be a reliable custodian of its own powers. And now it has

permanent and deepening attention deficit disorder: It can neither control nor even maintain meaningful oversight over the sprawling government it has created. According to historian Morton Keller in “America’s Three Regimes,” members of early Congresses were more numerous than federal bureaucrats. Today there are many more than 535 executive departments, agencies and other entities that Congress funds without effective supervision and to which a harried, distracted Congress delegates discretion tantamount to legislative power. There have been 1,950 senators since the Constitution was ratified, and none has done as much damage to the institution’s deliberative capacity as Harry Reid has done as majority leader. He has broken its rules in order to rewrite its rules, and has bent its procedures, all in the service of presidential preferences. Courts will not try to put a bridle and snaffle on a rampaging president, and perhaps Congress cannot, even if it summons the will to try. So we are reduced to hoping for something Madison was reluctant to rely

on – executive self-restraint in response to a popular demand for it. Fortunately, Obama’s ongoing and intensifying assault on constitutional equilibrium is so gross it has produced something commensurately remarkable – growing public interest in matters of governmental processes. Obama, who aspired to a place in the presidential pantheon, will leave office with a status more like Chester Arthur’s than Franklin Roosevelt’s. Obama will, however, merit the nation’s backhanded gratitude if the 2016 Republican presidential nominee makes central to a successful campaign a promise to retreat voluntarily from his predecessor’s Caesarism.

Internal checks solve – changes individual agency culture to focus on long term effects – state department dissent channel provesKatyal & Caplan ‘8, Neal Katyal, Professor of Law at Georgetown, Richard Caplan, Georgetown Law, “ARTICLE: The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent” Stanford Law Review, February 2008Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both. No nation could preserve its freedom in the midst of continual warfare. 293 Madison was not entirely correct, of course. The bright spot in the FDR and Bush Administration episodes is the willingness of individuals of principle to stand up to the President internally - whether it be Attorney General Robert Jackson in 1940 or FCC Chairman Fly in 1941 or Deputy Attorney General James Comey and Assistant Attorney General Jack

Goldsmith in 2003. 294 Instead of seeking to curry favor with the Executive, they attempted to stand up for the rule of law.

The relevant question, then, is how to harness that internal check and build upon it. For Jackson, Comey, and Goldsmith never fully succeeded in their efforts, and each left their office abruptly. (Though one suspects Jackson appreciated his subsequent employment a tad more.) In other work, one of us has outlined a variety of concrete mechanisms that can help build an institutional apparatus, and culture, of internal checks and balances. 295

Some of those mechanisms center on the need to change the architecture of the federal bureaucracy - to create institutional friction and to play upon it. Just as [*1073] government can function better when the Departments of State and Defense have overlapping mandates and resulting tensions, so, too, it might be the case

that rivalries can be exploited through other agencies, such as the Department of Homeland Security and the Justice Department. 296 Instead of the standard separation of powers - whereby Congress checks

the President, and the courts check both - the bureaucracy itself can be structured to create internal checks . Some reforms involve changes within individual agencies themselves . Vibrant civil service protections are often necessary so that employees feel they can do their job without reprisal. 297 Agencies might consider borrowing here from the foreign service, where longstanding policies create the conditions for a bureaucracy that is, comparatively speaking, focused on long-term horizons and the development of balanced policy . 298 Indeed, the State Department has explicit procedures in place that permit foreign service officers to dissent and warn Washington of actions they feel are problematic in the field. The Foreign Service Officer who uses this so-called "dissent channel" in the most productive way each year wins an award. 299 Our point in this short essay is not to recommend any one particular solution as much as it is to highlight that while courts and Congress dominate public debate, we believe that a number of solutions are likely to emerge by looking into the executive branch - as the stories of Fly and Jackson, and Comey and Goldsmith, suggest. That is not to say that Congress and the courts are irrelevant, but only that they have, historically speaking, been far less effective in this area than the standard trope about American government suggests. If we want to create the conditions for an executive that acts with greater fidelity to the law, greater attention to internal checks is likely to be necessary. Conclusion Due to documents released years after the deaths of giants like Jackson and Hoover, we now have greater detail about the inner workings of the executive branch during FDR's Administration with respect to wiretapping. Regarding Jackson's legacy, we know he was one of a few voices speaking out presciently against centralized presidential abuse of power and disregard of the rule of law. We would be wise to learn from him. Jackson's efforts to prevent warrantless wiretapping and excessive executive power left an indelible impression upon him. His concurrence in Youngstown, perhaps the most influential war powers opinion by an American jurist ever, began with a discussion of his time as Attorney General. Jackson [*1074] explained that his experience in that position, more than "the conventional materials of judicial decision," guided his opinion. 300 It is an interesting coincidence that a footnote in his description of Zone 3, a President acting against express or implied congressional action, cites FDR. 301 Jackson also criticized the Truman Administration's efforts to rely on "nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations." 302 Jackson undoubtedly appreciated that he was part of that chain of history - going so far even to reference his frustration with congressional dereliction: Congress must be "wise and timely in meeting its problems" for "only Congress itself can prevent power from slipping through its fingers." 303 The opinion takes on new meaning once the secret history of Jackson's wiretapping struggles as Attorney General is considered.

Internal restraints are comparatively better for checking intelligence – lawyers, inspector general, review boardsRadsan ’10 A. John Radsan, Professor Mitchell College of Law, “Symposium: Presidential Power in the Obama Administration: Early Reflections: BUS AND OBAMA FIGHT TERRORISTS OUTSIDE JUSTICE JACKSON’s TWILIGH ZONE” Summer 2010Back to my focus on the CIA, not only do I question the usefulness of Jackson's categories on issues of executive power, I challenge whether Congress is a significant check on intelligence activities. 35 More promising as checks on the intelligence community are the patrolling entities within the executive branch: the lawyers, the inspectors general, and the review boards within the clandestine service. Internal checks, in other words, are more effective than external checks on the CIA's manifestations of executive power.

Congress's express or implied approval of intelligence activities, whether by appropriations or by more specific

statutes, is superficial compared to deeper trends within the executive branch. In a sort of paradox, however, the most important checks are the most difficult to measure; empirical data on the CIA's Office of General Counsel, the Office of Inspector General, and the Accountability Review Boards are thin - and often classified. This paradox applies to both

Presidents Bush and Obama. So while Congress is not irrelevant, the importance of the congressional variable should not be overstated in the presidential formula. An academic's familiarity with the Jackson categories does not make them always relevant to reality. [*564] Internal checks are much more important than the Jackson categories in understanding how Presidents Bush and Obama ensure that intelligence activities stay effective and legal.

Internal dissent solves - FDR and Bush proveKatyal & Caplan ‘8, Neal Katyal, Professor of Law at Georgetown, Richard Caplan, Georgetown Law, “ARTICLE: The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent” Stanford Law Review, February 2008The FDR precedent is far closer to the NSA program than what analysts, including even those within the Bush Administration itself, have claimed. While the Administration has repeatedly invoked FDR when

defending its wiretapping program, its analysis has been spotty. The relevant facts are these: . FDR defied a Supreme Court decision that prohibited wiretapping. As Justice Jackson would later put it, this was the only instance in which FDR "declined to abide by a decision of the Supreme Court." 273 . The Court decision at issue in Nardone was based on a law of Congress, the 1934 Telecommunications Act. In effect, then, FDR was using tendentious statutory construction as a way to trump legislation. . FDR, of course, did not put it that way or otherwise assert a lawbreaking power. Instead, like any canny politician, he simply pretended the Nardone decision did not mean what it said. The dubious contortion of the Court's decision in Nardone was not [*1064] credible - as many in the Justice Department warned. . The Attorney General, Robert Jackson, had tried to put a stop to wiretapping, but was overruled by FDR after the FBI Director (J. Edgar Hoover) insisted on it. . The Administration continued to urge Congress to permit wiretapping, often without disclosing that it

believed it already had that authority and was acting on that basis. . The courts and Congress were, ultimately, unsuccessful in preventing the executive branch from engaging in this surveillance and complying with the law. . Many of the strongest voices against wiretapping were housed within the executive branch itself, such as the FCC's Fly and Attorney General Jackson. Each of these events has a parallel to today. We first outline those parallels and then discuss them in greater detail: . President Bush defied a statute, the 1978 FISA, that prohibited the NSA's electronic surveillance. . The terms of the statute forbade the surveillance; the NSA program violated the statutory text and not merely a judicial interpretation of it. . The Administration asserted that the program did not violate the statute, but also claimed that, if it did, then it was of no consequence because the President had "inherent authority" to trump the statute and violate the law. . In claiming that the program did not violate FISA, the Administration engaged in some of the same sorts of patently weak contortions about the statute that FDR had engaged in about Nardone. . The Attorney General at the time, John Ashcroft, as well as Deputy Attorney General James Comey and FBI Director Robert Mueller, tried to put a stop to the program. Ultimately, after the President's intervention, some sort of program continued afterwards. . The Administration continued to seek authorization to continue the NSA program, and had even sought legislation to do so before the NSA program was revealed by the New York Times. . The courts and Congress have been largely irrelevant in stopping this surveillance program thus far. 274 [*1065] . Many of the strongest opponents of the NSA program have been internal officers of the executive branch itself.

Courts/congress fail but internal dissent is strongest – FDR and Bush proveKatyal & Caplan ‘8, Neal Katyal, Professor of Law at Georgetown, Richard Caplan, Georgetown Law, “ARTICLE: The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent” Stanford Law Review, February 2008The FDR precedent is far closer to the NSA program than what analysts, including even those within the Bush Administration itself, have claimed. While the Administration has repeatedly invoked FDR when

defending its wiretapping program, its analysis has been spotty. The relevant facts are these: . FDR defied a Supreme Court decision that prohibited wiretapping. As Justice Jackson would later put it, this was the only instance in which FDR "declined to abide by a decision of the Supreme Court." 273 . The Court decision at issue in Nardone was based on a law of Congress, the 1934 Telecommunications Act. In effect, then, FDR was using tendentious statutory construction as a way to trump legislation. . FDR, of course, did not put it that way or otherwise assert a lawbreaking power. Instead, like any canny politician, he simply pretended the Nardone decision did not mean what it said. The dubious contortion of the Court's decision in Nardone was not [*1064] credible - as many in the Justice Department warned. . The Attorney General, Robert Jackson, had tried to put a stop to wiretapping, but was overruled by FDR after the FBI Director (J. Edgar Hoover) insisted on it. . The Administration continued to urge Congress to permit wiretapping, often without disclosing that it

believed it already had that authority and was acting on that basis. . The courts and Congress were, ultimately, unsuccessful in preventing the executive branch from engaging in this surveillance and complying with the law. . Many of the strongest voices against wiretapping were housed within the executive branch itself, such as the FCC's Fly and Attorney General Jackson. Each of these events has a parallel to today. We first outline those parallels and then discuss them in greater detail: . President Bush defied a statute, the 1978 FISA, that prohibited the NSA's electronic surveillance. . The terms of the statute forbade the surveillance; the NSA program violated the statutory text and not merely a judicial interpretation of it. . The Administration asserted that the program did not violate the statute, but also claimed that, if it did, then it was of no consequence because the President had "inherent authority" to trump the statute and violate the law. . In claiming that the program did not violate FISA, the Administration engaged in some of the same sorts of patently weak contortions about the statute that FDR had engaged in about Nardone. . The Attorney General at the time, John Ashcroft, as well as Deputy Attorney General James Comey and FBI Director Robert Mueller, tried to put a stop to the program. Ultimately, after the President's intervention, some sort of program continued afterwards. . The Administration continued to seek authorization to continue the NSA program, and had even sought legislation to do so before the NSA program was revealed by the New York Times. . The courts and Congress have been largely irrelevant in stopping this surveillance program thus far. 274 [*1065] . Many of the strongest opponents of the NSA program have been internal officers of the executive branch itself.

Independent oversight like the counterplan solves – makes NY Times ’10 New York Times 10/10/10 “Lethal Force Under Law” http://www.nytimes.com/2010/10/10/opinion/10sun1.html

INDEPENDENT OVERSIGHT Dealing out death requires additional oversight outside the administration. Particularly in the case of American citizens, like Mr. Awlaki, the government needs to employ some due process before depriving someone of life. It would be logistically impossible to conduct a full-blown trial in absentia of every assassination target, as the lawyers for Mr. Awlaki prefer.

But judicial review could still be employed. The government could establish a court like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. Before it adds people to its target list and begins tracking them, the government could take its evidence to this court behind closed doors — along with proof of its compliance with international law — and get the equivalent of a judicial warrant in a timely and efficient way. Congressional leaders are secretly briefed on each C.I.A. attack, and say they are satisfied with the information they

get and with the process. Nonetheless, that process is informal and could be changed at any time by this president or his successors. Formal oversight is a better way of demonstrating confidence in American methods. Self-defense under international law not only shows the nation’s resolve and power, but sends a powerful message to other countries that the United States couples drastic action with careful judgment.

--Feinstein cp

1NC Shell Text: The United States federal government should complete all the reforms outlined in the Feinstein evidence.

Cp solves the caseFeinstein 15 (Dianne Feinstein, January 05, 2015, Feinstein Proposes Reforms to Prevent Future Use of Torture, http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=0084e644-a5ed-46e1-8649-762df3ffcf4f) //JS I will introduce the first four recommendations as legislation in the beginning of the 114th Congress; some of them

would codify your January 22, 2009 Executive Order (No. 13491) entitled, “Ensuring Lawful Interrogations.” 1. Close All Torture Loopholes – The U.S. domestic law prohibiting torture and the Detainee Treatment Act of 2005 were both

interpreted by the Office of Legal Counsel to allow the CIA to use coercive and abusive interrogation techniques. New legislation will make clear that such interrogation techniques are prohibited. 2. Establish the U.S. Army Field Manual as the Exclusive Set of Interrogation Techniques – The Detainee Treatment

Act of 2005 limited the interrogation techniques available to U.S. Department of Defense personnel to those explicitly listed in the Army Field Manual. New legislation will expand this limitation to U.S. Intelligence Community personnel as well, consistent with Executive Order 13491 (January 22, 2009). 3. Require the U.S. Government to Notify the Red Cross and Provide Timely Access to All Captured Detainees– New legislation will require the U.S. Government to provide notification of new detainees to the International Committee of the Red Cross and provide access to those detainees as soon as is practicable, consistent with Executive Order 13491 (January 22,

2009). 4. Prohibit CIA Detention of Detainees. New legislation will prohibit the authority of the CIA to hold detainees beyond a short-term, transitory basis, consistent with Executive Order 13491 (January 22, 2009). II. ADMINISTRATIVE RECOMMENDATIONS The second set of recommendations can be implemented administratively. Those eleven recommendations are listed below and are grouped into the following categories: Strengthening Covert Action and Other Intelligence Oversight within the Executive Branch 1.

Recommendation: The National Security Council (NSC) should improve its oversight of covert action programs and lead more formal,rigorous, interagency evaluations—at least on an annual basis—to determine whether all elements of covert action programs are effective, appropriate, and should be continued. These evaluations must be independent and not reliant upon the CIA for an assessment of its own activities. NSC Principals should be informed of all significant covert action undertakings and have access to all relevant information necessary to evaluate these programs.

--Guantanamo CP

1NC Shell CP solves and now is key Harris 13 (Paul Harris - US correspondent for the Guardian and Observer, 5/1/2013, The Guardian, Guantánamo 'not in the best interests of the American people', says Obama, http://www.theguardian.com/world/2013/apr/30/obama-guantanamo-hunger-strike-worsens) //JS

Barack Obama vowed to take action to close the controversial prison camp at Guantánamo Bay on Tuesday, declaring that he did not want any of its hunger-striking inmates to die of starvation. At a press conference in Washington, Obama said it was not sustainable to keep Guantánamo open, warning its continued existence was a "recruitment tool" for extremists. The president promised to take the issue back to Congress, which blocked his earlier attempts to fulfill a 2008 campaign promise to close the camp. The US military bas has been rocked by a widening hunger strike that now officially involves at least 100 of the prisoners, 21 of whom are being force fed. In response to the crisis a 40-strong military medical team has arrived at the isolated base on the island of Cuba to administer treatment to keep the protesters alive. The hunger strike is said to have begun over allegations that guards mistreated Qur'ans belonging to the inmates. That has been denied by US military officials but the strike has now come to symbolise more broader protests against the camp's existence – especially as most of the terror suspects still detained there without charge have been cleared for release. Using strong language, Obama said he would seek again to close the detention camp, fulfilling a broken promise from his first run for the White House in 2008. "I am going to go back at this. I am going to get my team to review everything that is currently being done in Guantánamo … everything that we can do administratively. I am going to re-engage with Congress to try and make the case that [Guantánamo] is not in the best interests of the American people," he said. Obama said he did not want the protest to end in deaths, something many lawyers for those detained have warned is an increasing likelihood. "I don't want these individuals to die," Obama said. The strike is believed to have begun on 6 February and initially involved a minority of detainees. But the number taking part has steadily increased and the situation has rapidly worsened in recent weeks, creating headlines around the world. Two weeks ago, guards attempted to break the resolve of those refusing food by moving detainees from communal areas and placing them in single cells, where they could be monitored more closely. That action led to violent clashes in which US troops fired four "less-than-lethal" rounds on inmates. There are about 166 inmates at Guantánamo, of whom about half have been cleared for

transfer or release. Nearly all inmates have been held without charge – some for as long as 11 years – and earlier this year the State Department office meant to deal with resettling Guantánamo prisoners was closed down. Lawyers and human rights advocates say that despair at their prospects meant that some form of protest was inevitable. Obama said that he understood why the base had been created in the emotional reaction to 9/11 but insisted it was time to close it. "It is not sustainable," he said. "I understand that reaction. But we are now over a decade out. We should be wiser. We should have more experience in how we prosecute terrorists. This is a lingering problem that is not going to get better. It is going to get worse. It is going to fester," he said, acknowledging it was a "no-man's land" for inmates. The only major trial to emerge from Guantánamo Bay has been a military tribunal held for alleged 9/11 mastermind Khalid Sheikh Mohammed and four others, which began last year. By contrast, Osama bin Laden's son-in-law Suleiman Abu Ghaith, who was captured earlier this year, will be prosecuted in a criminal court in New York.. That follows a more recent pattern of conducting all major terrorist trials in the civilian US judicial system. "We can handle this," Obama said on Tuesday. It is not likely to be an easy task to shut the base's prison camp. Opposition to closing Guantánamo remains strong in many quarters, especially among hawkish Republicans. The issue is an emotional one for many Americans and also comes at a time when the country is still reeling from a recent terror attack on the Boston marathon. In order to close the base and either release or relocate the camp's inmates, Obama is likely to need the support of Republicans who control the House of Representatives and are known for their hardline approach to national security issues.

But Obama said he was ready to make the argument that the camp's closure would make America safer in the long-run, ending what has become a catastrophic blight on America's international reputation for human rights policy. "The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are. It is contrary to our interests and needs to stop," he said. "Now that is a hard case to make because I think for a lot of Americans the notion is: out of sight, out of mind. And it is easy to demagogue the issue. That's what happened the first time it came up. I am going back it because I think it is important." The promise of

action was welcomed by campaign groups, who urged Obama to appoint someone to his administration to act immediately. But they also claimed that there was no need for the president to go to Congress to get political support. "The president can order the secretary of defense to start certifying for transfer detainees who have been cleared, which is more than half the Guantánamo population," said Anthony Romero, executive director of the American Civil Liberties Union.