Notes:

Hello everyone. Welcome to the legalism file. This will be the critical argument for the UGA debate camp this
year. What follows is a basic explanation of the argument as well as the explanation of some of the more
common affirmative answers.
Starting with the negative, the argument is that the people and institutions that do surveillance will find ways
around the affirmative plan in order to continue spying on domestic folks. This will happen as long as we
work within the government and state system in order to produce reform. The first piece of Greenwald
evidence is excellent on this point, even going so far as to describe the process of fiat in a way, The impact to
this argument is threefold. First of all the affirmative doesnt solve because the surveillance state will find a
way around the plan. Second the attempt to reform makes the problem worse because people think something
has been done so it disables activism. Third any reform that does happen will be shaped by the surveillance
state to be ineffective. You should note that this is two different solvency take outs as well as a solvency turn
argument that also functions as the internal link to the impact argument.
The impact argument is that by furthering the surveillance state the affirmative causes genocide and
extinction because of the dramatic increases in state power and the actions the state will take to suppress
dissent once it becomes too powerful. It also makes other claims that complicate affirmative advantages
which you should look for.
The alternative argument is that the negatives legal criticism is a good and productive action. This piece of
evidence states that criticism can be onsidered to be the only legitimate action we can take.

Next is the outline of the affirmative arguments.

The aff section is set up as a bit of a grab bag of aff arguments that you should use to form blocks. They
include arguments against all the major components of the K. The primary thrust of the position that the aff
team should take revolves around defending the notion that reforms can be effective and are an appropriate
action to take. The affirmative team should be able to use these arguments to win a permutation. The
affirmative arguments also include an argument that it is bad to just criticize the legal system and that failing
to advocate for change in the system means that authoritarian powers will take over and make the situation
way worse.

Negative

1NC Shell
Attempts to reform surveillance from within the system are doomed to fail the NSA will find loopholes,
congress wont take oversight seriously, the executive branch will actively try and circumvent, and the courts
are already in the pocket of the surveillance state. The affirmative attempts to reform merely placate criticism
and snuff out any chance for real reform
Greenwald, 2015
(Glen, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law.
His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead,
11/19, The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-masssurveillance/)
There is a real question about whether the defeat of this bill is good, bad, or irrelevant. To begin with, it sought to
change only one small sliver of NSA mass surveillance (domestic bulk collection of phone records under section 215
of the Patriot Act) while leaving completely unchanged the primary means of NSA mass surveillance, which takes
place under section 702 of the FISA Amendments Act, based on the lovely and quintessentially American theory that
all that matters are the privacy rights of Americans (and not the 95 percent of the planet called non-Americans).
There were some mildly positive provisions in the USA Freedom Act: the placement of public advocates at the
FISA court to contest the claims of the government; the prohibition on the NSA holding Americans phone records,
requiring instead that they obtain FISA court approval before seeking specific records from the telecoms (which
already hold those records for at least 18 months); and reducing the agencys contact chaining analysis from three
hops to two. One could reasonably argue (as the ACLU and EFF did) that, though woefully inadequate, the bill was
a net-positive as a first step toward real reform, but one could also reasonably argue , as Marcy Wheeler has with
characteristic insight , that the bill is so larded with ambiguities and fundamental inadequacies that it would
forestall better options and advocates for real reform should thus root for its defeat . When pro-privacy members
of Congress first unveiled the bill many months ago, it was actually a good bill: real reform. But the White House
worked very hard in partnership with the House GOPto water that bill down so severely that what the House
ended up passing over the summer did more to strengthen the NSA than rein it in, which caused even the ACLU
and EFFto withdraw their support. The Senate bill rejected last night was basically a middle ground between that
original, good bill and the anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me, the
most important point from all of this: the last place one should look to impose limits on the powers of the U.S.
government is . . . the U.S. government . Governments dont walk around trying to figure out how to limit their own
power, and thats particularly true of empires. The entire system in D.C. is designed at its core to prevent real
reform . This Congress is not going to enact anything resembling fundamental limits on the NSAs powers of mass
surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously
happened, the fact that the U.S. intelligence community and National Security State operates with no limits and
no oversight means theyd easily co-opt the entire reform process . Thats what happened after the eavesdropping
scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA
oversight courtthe committees were instantly captured by putting in charge supreme servants of the intelligence
community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch
Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy.
Ever since the Snowden reporting began and public opinion (in both the U.S. and globally) began radically
changing, the White Houses strategy has been obvious. Its vintage Obama: Enact something that is called
reform so that he can give a pretty speech telling the world that he heard and responded to their concerns but
that in actuality changes almost nothing, thus strengthening the very system he can pretend he changed .
Thats the same tactic as Silicon Valley, which also supported this bill: Be able to point to something called reform
so they can trick hundreds of millions of current and future users around the world into believing that their
communications are now safe if they use Facebook, Google, Skype and the rest. In pretty much every interview Ive

done over the last year, Ive been asked why there havent been significant changes from all the disclosures . I
vehemently disagree with the premise of the question, which equates U.S. legislative changes with
meaningful changes . But it has been clear from the start that U.S. legislation is not going to impose meaningful
limitations on the NSAs powers of mass surveillance, at least not fundamentally. Those limitations are going to
come fromare now coming from very different places:

The surveillance state ensures genocide and extinction

Saul, 15
(Quincy, Author, Editor, and Founder of Ecosocialist Horizons, March 23, The Four Horsemen of the Apocalypse,
Truth Out, http://www.truth-out.org/opinion/item/29664-the-four-horsemen-of-the-apocalypse)
Surveillance States: 1984 has arrived , only 30 years after Orwell predicted. The revelations brought to us by
Chelsea Manning, Julian Assange and Edward Snowden show us a world in which everything is under surveillance.
Julian Assange has written with great eloquence about the death of civil society overseen by the surveillance state.
(1) Today in the United States alone there are more than 5 million people working under security clearances - more
than the population of Norway. The mirror image of this army of spies is the enormous number of people in prison,
including more African Americans under state control than there were slaves prior to the Civil War. This is the last
stage of the state, the totalitarianism that is the last gasp of every totality. The surveillance state has the capacity
for not only genocide, but also extinction : It is capable of repressing and destroying the revolutionary movements
that still have hope to fight for life. The surveillance state rides the pale horse of the apocalypse , representing
death . It is difficult to interpret our times without reference to myths and prophecy. As Elias Capriles has written,
the chickens of all the world's cultures and histories have come home to roost: Like a scientific sorcerer's apprentice,
we have created technological Golems and Babels who have immersed us in extreme confusion, and confronted us
with the infernal punishments of Prometheus, Sisyphus and Tantalus, bringing us to the edge of our own
annihilation . (2) We are witnessing an end times to the capitalist system. As Marx predicted in the most concise
way, the enemy of capital is capital. But since this is not comprehensible to the majority of those too invested in the
capitalist life-world to understand the contradiction, we are at an impasse of unconsciousness, just when we need to
be most awake. What lies ahead? It is almost impossible to see, and very few are looking. In the realms of elite
economic planning, they rarely look more than five years in advance. As Jorge Riechmann has written, "It is an
intellectual and moral scandal that in our societies of risk, 10 years for many people is long term." (3) It is not only a
scandal, it is a death sentence. As was known thousands of years ago, when there is no vision, the people perish. But
in the ancient Greek, apocalypse and revelation are the same word. What is the tipping point between the end of the
world and the beginning of the world? You are. We are. It's time to realize it. Time to seize the day and never let go.

Constant criticism and trashing of the legal system is necessary to expose traditional legal thought the fate
of humanity is at stake
Hutchinson and Monahan in 84
CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama
of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law Review

Moreover, any theory that the Critical scholars provide must be capable of accommodating both
their doctrine of social contingency and the contradiction between community and individual.
The CLSers must actively work to fulfill their self-appointed roles as creative mediators between

the ideal of freedom and the actuality of a free world. The challenge is a supreme one, and the
long term prospects of the CLS movement are not all that hangs in the balance: If the CLSers are
right about the contingency of history and the insuperability of the fundamental contradiction, the very "fate of
humanity" n124 is at stake.
We do not mean to suggest that the extensive CLS critiques of existing law and legal theory are purely negative and
without constructive potential. Criticism can be a very creative therapy; criticism can liberate and
enlighten. By "unfreezing" the world as it now [*228] appears, the Critical scholars hope to

enable individuals to imagine and attain new possibilities for self-development and
meaningful social interaction. For the CLSers, criticism is an antidote to the social paralysis induced and
sustained by the existing hierarchical nature of society. n125 By reassuring people that things need not always be as
they now are, the CLS movement can inspire the confidence necessary to reject prevailing arrangements. And
because the CLSers believe that "the strength to live with the sober truth will become general [only

when] the causes of untruth are removed," n126 "trashing" is viewed as a valid form of legal
scholarship. Indeed, to some of the Critical scholars, it is the "most valid form": n127

2NC Overview

Link: FISC
FISC fails and will be coopted
Setty, 15
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability,
Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)
The FISC differs from Article III courts in numerous ways: Its statutory scope is limited to matters of foreign
intelligence gathering; its judges are appointed in the sole discretion of the Chief Justice of the United States
Supreme Court; its proceedings are secret; its opinions are often secret or are published in heavily [*83] redacted
form; and its process is not adversarial as only government lawyers make arguments defending the legality of the
surveillance being contemplated. n70 Many of these differences bring into doubt the legitimacy of the court, its
ability to afford adequate due process regarding civil liberties concerns, and its ability to uphold the rule of law in
terms of government accountability. Compounding this legitimacy deficit is the FISC's own loosening of the
relevance standard under Section 215 of the PATRIOT Act such that the FISC has found that bulk data collection
without any particularized threat or connection to terrorism is legally permissible. n71 Historically, the FISC has
rejected NSA surveillance applications too infrequently to be considered a substantial check on government
overreach as an ex ante matter. n72 As an ex post matter, it is unclear to what extent the
FISC's work guarantees any meaningful accountability over NSA surveillance activities. On
the one hand, because the FISC lacks an adversarial process and has no independent investigatory authority, the
FISC only addresses ex post compliance problems when the government itself brings the problem to the court's
attention.n73 As such, FISC judges rely on the statements of the government as to the government's own behavior
and lack the authority to investigate the veracity of the government's representations.

FISA only serves to rubberstamp NSA actions

Greenwald, 13
Glen, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law.
His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Fisa court oversight: a look inside a secret and empty process, The Guardian,
June 19, http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy
The way to bring actual transparency to this process it to examine the relevant Top Secret Fisa court documents.
Those documents demonstrate that this entire process is a fig leaf, "oversight" in name only. It offers no real
safeguards. That's because no court monitors what the NSA is actually doing when it claims to comply with the
court-approved procedures. Once the Fisa court puts its approval stamp on the NSA's procedures, there is no
external judicial check on which targets end up being selected by the NSA analysts for eavesdropping. The only time
individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications
are purely domestic.

Link: Courts
Courts are the worst when it comes to avoiding cooption by the surveillance state
Greenwald, 2015
(Glen, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law.
His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead,
The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-masssurveillance/)
For a variety of reasons, when it comes to placing real limits on the NSA, I place almost as little faith in the
judiciary as I do in the Congress and executive branch. To begin with, the Supreme Court is dominated by five rightwing justices on whom the Obama Justice Department has repeatedly relied to endorse their most extreme civilliberties-destroying theories. For another, of all the U.S. institutions that have completely abdicated their role in the
post-9/11 era, the federal judiciary has probablybeen the worst, the most consistently subservient to the National
Security State.

The court only serves to mask NSA abuses, -- FISA Proves

Greenwald, 13
Glen, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law.
His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Fisa court oversight: a look inside a secret and empty process, The Guardian,
June 19, http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy
The GOP chairman of the House Intelligence Committee, Mike Rogers, told CNNthat the NSA "is not listening to
Americans' phone calls. If it did, it is illegal. It is breaking the law." Talking points issued by the House GOP in
defense of the NSA claimed that surveillance law only "allows the Government to acquire foreign intelligence
information concerning non-U.S.-persons (foreign, non-Americans) located outside the United States." The NSA's
media defenders have similarly stressed that the NSA's eavesdropping and internet snooping requires warrants when
it involves Americans. The Washington Post's Charles Lane told his readers: "the government needs a court-issued
warrant, based on probable cause, to listen in on phone calls." The Post's David Ignatius told Post readers that NSA
internet surveillance "is overseen by judges who sit on the Foreign Intelligence Surveillance Court" and is "lawful
and controlled". Tom Friedman told New York Times readers that before NSA analysts can invade the content of
calls and emails, they "have to go to a judge to get a warrant to actually look at the content under guidelines set by
Congress." This has become the most common theme for those defending NSA surveillance. But these claim are
highly misleading, and in some cases outright false. Top secret documents obtained by the Guardian illustrate what
the Fisa courtactually does and does not do when purporting to engage in "oversight" over the NSA's domestic
spying. That process lacks many of the safeguards that Obama, the House GOP, and various media defenders of the
NSA are trying to lead the public to believe exist. Many of the reasons these claims are so misleading is
demonstrated by the law itself. When the original Fisa law was enacted in 1978, its primary purpose was to ensure
that the US government would be barred from ever monitoring the electronic communications of Americans without
first obtaining an individualized warrant from the Fisa court, which required evidence showing "probable cause" that
the person to be surveilled was an agent of a foreign power or terrorist organization. That was the law which George
Bush, in late 2001, violated, when he secretly authorized eavesdropping on the international calls of Americans
without any warrants from that court. Rather than act to punish Bush for those actions, the Congress, on a bipartisan
basis in 2008, enacted a new, highly diluted Fisa law the Fisa Amendments Act of 2008 (FAA) that legalized

much of the Bush warrantless NSA program. Under the FAA, which was just renewed last December for another
five years, no warrants are needed for the NSA to eavesdrop on a wide array of calls, emails and online chats
involving US citizens. Individualized warrants are required only when the target of the surveillance is a US person
or the call is entirely domestic. But even under the law, no individualized warrant is needed to listen in on the calls
or read the emails of Americans when they communicate with a foreign national whom the NSA has targeted for
surveillance. As a result, under the FAA, the NSA frequently eavesdrops on Americans' calls and reads their emails
without any individualized warrants exactly that which NSA defenders, including Obama, are trying to make
Americans believe does not take place. As Yale Law professor Jack Balkin explained back in 2009: "The Fisa
Amendments Act of 2008, effectively gives the President - now President Obama - the authority to run surveillance
programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late
2001]. That is because New Fisa no longer requires individualized targets in all surveillance programs. Some
programs may be 'vacuum cleaner' programs that listen to a great many different calls (and read a great many emails) without any requirement of a warrant directed at a particular person as long as no US person is directly
targeted as the object of the program. . . . "New Fisa authorizes the creation of surveillance programs directed
against foreign persons (or rather, against persons believed to be outside the United States) which require no
individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may
inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to
Al Qaeda." As the FAA was being enacted in mid-2008, Professor Balkin explained that "Congress is now giving the
President the authority to do much of what he was probably doing (illegally) before".

Link: Congress
Congress only serves to broaden the surveillance state, it cant keep it in check, empirical examples prove
Setty, 15
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability,
Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)
Historically, congressional hearings and investigations have been a powerful tool to rein in executive branch
overreaching. n60 However, it seems that the extreme secrecy surrounding the NSA surveillance programs
undermined the efficacy of these oversight powers, to the point that they may have been reduced to
an ersatz form of accountability. One prominent example stems from a Senate oversight hearing on March
12, 2013, in which Senator Ron Wyden specifically asked Director of National Intelligence James Clapper if the
NSA was systematically gathering information on the communications of millions of Americans. n61 Clapper
denied this, yet subsequent revelations confirmed that the broad scope of the data collection included metadata for
telephonic communications, as well as content data for emails, texts, and other such writings. n62
After public discussion of the discrepancy in his testimony, Clapper commented that he gave
the "least most untruthful" answer possible under the circumstances. n63 Senator Wyden
expressed disappointment and frustration that even while under oath at an oversight
hearing, Clapper misled the Senate. n64 The ability for congressional oversight is further hampered by a
general lack of access to information about the details of the NSA Metadata Program n65 and [*82] lack of ability to
discuss publicly whatever knowledge is shared with Congress. n66 In fact, it remains unclear whether senators,
including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of the lapses in
NSA procedure until after such information was leaked to news sources. n67 Further revelations indicate that
administration statements made to Congress even after the Snowden disclosures were not entirely accurate. n68
These examples are not determinative, but taken together, they raise significant doubt to the extent of
accurate information regarding surveillance programs being made available to congressional oversight committees,
and whether the oversight committees can function as effective accountability measures n69 without the benefit of
illegally leaked information such as the Snowden disclosures.

Link: Privates
Private companies are no better theyll turn over data the instant the government asks for it
Greenwald, 2015
(Glen, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law.
His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead,
The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-masssurveillance/)
In pretty much every interview Ive done over the last year, Ive been asked why there havent been significant
changes from all the disclosures . I vehemently disagree with the premise of the question, which equates U.S.
legislative changes with meaningful changes . But it has been clear from the start that U.S. legislation is not
going to impose meaningful limitations on the NSAs powers of mass surveillance, at least not fundamentally. Those
limitations are going to come fromare now coming from very different places: 1) Individuals refusing to use
internet services that compromise their privacy. The FBI and other U.S. government agencies, as well as the
U.K.Government, are apoplectic over new products from Google and Apple that are embedded with strong
encryption, precisely because they know that such protections, while far from perfect, are serious impediments to
their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to
suggest, that one believes that Silicon Valley companies care in the slightest about peoples privacy rights and civil
liberties. As much of the Snowden reporting has proven, these companies dont care about any of that. Just as the
telecoms have been for years, U.S. tech companies were more than happy to eagerly cooperate with the NSA in
violating their users privacy en masse when they could do so in the dark. But its precisely because they cant do it
in the dark any more that things are changing, and significantly. Thats not because these tech companies suddenly
discovered their belief in the value of privacy. They havent, and it doesnt take any special insight or brave
radicalism to recognize that. Thats obvious. Instead, these changes are taking place because these companies
arepetrified that the perception of their collaboration with the NSA will harm their future profits, by making them
vulnerable to appeals from competing German, Korean, and Brazilian social media companies that people shouldnt
use Facebook or Google because they will hand over that data to the NSA. Thatfear of damage to future business
prospectsis what is motivating these companies to at least try to convince users of their commitment to privacy.
And the more users refuse to use the services of Silicon Valley companies that compromise their privacyand,
conversely, resolve to use only truly pro-privacy companies insteadthe stronger that pressure will become. Those
who like to claim that nothing has changed from the NSA revelations simply ignore the key facts, including the
serious harm to the U.S. tech sector from these disclosures, driven by the newfound knowledge that U.S. companies
are complicit in mass surveillance. Obviously, tech companies dont care at all about privacy, but they care a lot
about that. Just yesterday, the messaging service WhatsApp announced that it will start bringing end-to-end
encryption to its 600 million users, which would be the largest implementation of end-to-end encryption ever.
None of this is a silver bullet: the NSA will work hard to circumvent this technology and tech companies are hardly
trustworthy, being notoriously close to the U.S. government and often co-opted themselves. But as more individuals
demand more privacy protection, the incentives are strong. As The Verge notes about WhatsApps new encryption
scheme, end-to-end means that, unlike messages encrypted by Gmail or Facebook Chat, WhatsApp wont be able
to decrypt the messages itself, even if the company is compelled by law enforcement.

Link: Terrorism
The war on terror creates the justification for the surveillance state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
The war on terror may be the most familiar justification for the rise of the National Surveillance State,14 but it is
hardly the sole or even the most important cause. Government's increasing use of surveillance and data mining is a
predictable result of accelerating developments in information technology. 15 As technologies that let us discover
and analyze what is happening in the world become ever more powerful, both governments and private parties will
seek to use them. 16

Link: Oversight
Oversight fails Only creates a situation where surveillance actions are rubberstamped
Greenwald, 14
(Glen, 2/17, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and
law. His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Obamas NSA reforms are little more than a PR attempt to mollify the
public, http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillance-remains)
This scam has been so frequently used that it is now easily recognizable. In the mid-1970s, the Senate uncovered
surveillance abuses that had been ongoing for decades, generating widespread public fury. In response, the US
Congress enacted a new law (Fisa) which featured two primary "safeguards": a requirement of judicial review for
any domestic surveillance, and newly created committees to ensure legal compliance by the intelligence community.
But the new court was designed to ensure that all of the government's requests were approved: it met in secret, only
the government's lawyers could attend, it was staffed with the most pro-government judges, and it was even housed
in the executive branch. As planned, the court over the next 30 years virtually never said no to the government.
Identically, the most devoted and slavish loyalists of the National Security State were repeatedly installed as the
committee's heads, currently in the form of NSA cheerleaders Democrat Dianne Feinstein in the Senate and
Republican Mike Rogers in the House. As the New Yorker's Ryan Lizza put it in a December 2013 article on the
joke of Congressional oversight, the committees "more often treat senior intelligence officials like matinee idols".
As a result, the committees, ostensibly intended to serve an overseer function, have far more often acted as the
NSA's in-house PR firm. The heralded mid-1970s reforms did more to make Americans believe there was reform
than actually providing any, thus shielding it from real reforms.

Link: Media
Media will always support surveillance
Business Insider, 13
Jun 12, Glenn Greenwald: 'Slavishly Partisan' Democrats In The Media Are Cheerleading Policies They Used To
Hate, http://www.businessinsider.com/glenn-greenwald-nsa-scandal-media-spying-surveillance-leak-2013-6
New revelations about the National Security Agency's surveillance programs have divided members of Congress and
of the media apart from the normal partisan split. One person who isn't surprised about the lack of Democrats and
liberals in the media challenging the Obama administration, however, is the man who has broken multiple stories
based off leaks from former NSA contractor Edward Snowden Guardian journalist Glenn Greenwald. Greenwald
told Business Insider late Tuesday night that he thinks some left-leaning members of the media such as Time
magazine's Joe Klein and The New Yorker's Jeffrey Toobin have shifted stances on surveillance and civil liberties
for "principle-free, hackish, and opportunistic" reasons. "I'm not surprised," Greenwald said in an email. "I've been
amazed and disappointed for a long time at how the most slavishly partisan media Democrats who pretended to care
so much about these issues when doing so helped undermine George Bush are now the loudest apologists and
cheerleaders for these very same policies. "If they started a club called Liberal Pundits to Defend the National
Security State, no auditorium in the country would be large enough to accommodate them. "To call them principlefree, hackish, and opportunistic is to be overly generous."

Link: 4th Amendment

Courts have gutted the 4th amendment it is of no use in checking the surveillance state, domestic
surveillance will continue under the guise of foreign intelligence gathering
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
You might think the Fourth Amendment 70 would be the most important constitutional provision for controlling and
preventing abuses of power in the National Surveillance State. But courts have largely debilitated the Fourth
Amendment to meet the demands of the Regulatory and Welfare States, the National Security State, and the War on
Drugs. 71 Much government collection and use of personal data now falls outside the Fourth Amendment's
protection-at least as the courts currently construe it. The Supreme Court has held that there is no expectation of
privacy in business records and information that people give to third parties like banks and other businesses; 72 in
the digital age this accounts for a vast amount of personal information. Most e-mail messages are copied onto
privately held servers, making their protection limited if not nonexistent. 73 Courts have also held that the Fourth
Amendment poses few limits on foreign intelligence surveillance, which is largely regulated by FISA; 74 as a result,
the executive branch has increasingly justified domestic surveillance by asserting that it is a permissible byproduct
of foreign intelligence gathering.7 5

The government will circumvent the 4th amendment

Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
Currently, governments are free to place cameras in public places like streets and parks because there is no
expectation of privacy there. 76 Governments can also collect information that people leave out in the open, like
their presence on a public street; or abandon, like fingerprints, hair, or skin cells. 77 Moreover, because the Fourth
Amendment focuses on searches and seizures, it places few limits on collation and analysis, including data mining.
78 The Fourth Amendment does not require governments to discard any information they have already lawfully
collected. Digital files, once assembled, can be copied and augmented with new information indefinitely for later
analysis and pattern matching. Finally, whatever constitutional limits might restrain government do not apply to
private parties, who can freely collect, collate, and sell personal information back to the government free of Fourth
Amendment restrictions, effectively allowing an end-run around the Constitution

Impact: Solvency Takeout: General

Legalism Crowds out Real Reform
Schlanger, 14
(Margo, Henry M. Butzel Professor of Law, University of Michigan, The Problem With Legalism in the
Surveillance State, Nov 7, http://justsecurity.org/17163/problem-legalism-surveillance-state/)
To sum up, neither the Constitution nor FISA aims to optimally balance security and libertyand well-understood
difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill that gap. Likewise the
existing foundational Executive Order, 12333, is at the very least out-of-date. Accordingly, intelligence legalism and
its compliance mindset, cannot achieve optimal policy. Its concomitant empowerment of lawyers is real and
important, but does not deputize a pro-civil-liberties force. Indeed, legalism actually both crowds out the
consideration of policy and interests (as opposed to law and rights), and legitimates the surveillance state, making it
less susceptible to policy reform.

Intelligence legalism prevents real reform and ensures policy failure

Schlanger, 15
(Margo, Henry M. Butzel Professor of Law, University of Michigan, Intelligence Legalism and the
National Security Agency's Civil Liberties Gap, Harvard National Security Journal, 6 Harv.
Nat'l Sec. J. 112)
Theorists and observers in a variety of fields have developed the broad critique that law and its concomitant rights
orientation may have the counterintuitive impact of decreasing the welfare of the purported rights holders--or, in a
more modest version of the point, may ameliorate some prevalent set of harms but undermine more ambitious
efforts. Focusing particularly on litigation, they argue that it is inherently a timid enterprise, and yet it crowds out
other more muscular approaches. n317 Even with respect to out-of-court rights orientation, or "legalization,"
scholars have offered the insight that formalizing/legalistic approaches can come with real costs to their intended
beneficiaries, depending on the context.n318 The issue is [*185] whether, in a particular institutional setting, these
possibilities have materialized. In this Section, I examine two pathways by which intelligence legalism tends to
impair the prospects of a softer civil-liberties protective policy. 1. Intelligence Legalism Crowds Out Interest
Balancing This Article demonstrates the high salience of rights in this realm. Several related mechanisms convert
that high salience into a devaluation of interests: First, rights occupy the "liberty" field because of the practical issue
of attention bandwidth, which potentially applies both to agencies and advocates. After all, even large organizations
have limited capacity. n319 NSA compliance is such an enormous task that little room remains for more conceptual
weighing of interests and options. Recall that of the dozen-plus offices I described in Part II, just two--the Civil
Liberties and Privacy Office at the NSA, and the Privacy and Civil Liberties Oversight Board--are currently playing
a policy rather than strictly a compliance role. They are also, not coincidentally, the two newest and two smallest of
the offices listed. I think, though, that this bandwidth issue is driven by a more conceptual, less practical, factor: that
rights talk hides the necessity of policy judgments and, by its purity, diverts attention from that messier field. Morton
Horwitz explains the point: A . . . troubling aspect of rights discourse is that its focus on fundamental, inherent,
inalienable or natural rights is a way of obscuring or distorting the reality of the social construction of rights and
duties. It shifts discussion away from the always disputable issue of what is or is not socially desirable. Rights
discourse . . . wishes us to believe instead that the recognition of rights is not a question of social choice at all, as if
in the normative and constitutional realm rights have the same force as the law of gravity. n320 [*186] Mary
Dudziak makes a similar claim in her recent discussion of law and drone warfare, "In this context, law . . . does not
aid judgment, but diverts our attention from morality, diplomacy, humanity, and responsibility in the use of force,
and especially from the bloody mess left on the ground." n321 Even in Fourth Amendment jurisprudence, an area of

constitutional doctrine explicitly imbued with policy considerations, we talk about rights as if they are somehow
scientific, to be deduced rather than debated. The discussion that must accompany policy claims pales in prestige
and importance by comparison. And from the perspective of their beneficiaries, judicially enforceable rights, with
their promise of supremacy over competing interests, are shiny and magnetic. This is why the assertion of rights can
be such a powerful organizing tool n322--even if those rights don't turn out to change much on the ground. As Rich
Ford has written, "Rights are a secular religion for many Americans." n323 Or to quote Alan Freeman's classic
article about civil rights, "Rights consciousness can offer sustenance to a political movement, however alienated,
indeterminate or reified rights may be." n324 It is the purity, the apparent apolitical nature, of rights that makes them
nearly the only coin available. By comparison with judicially enforceable rights, other methods of advancing
individual liberty look feeble, contingent, jury-rigged. An accusation of illegality becomes the required first bid for
any policy discussion, and a refutation of that accusation ends play. This dynamic is very much in evidence in the
response to the PCLOB's 702 report, described above. Rights discourse stunts needed policy discourse. n325 2.
Intelligence Legalism and Legitimation In addition, judicial review legitimates the American surveillance system;
that is why reference to court supervision is surveillance proponents' first recourse when they want to suggest that
everything is fine. It is, for example, a rare speech by a government official that fails to make reference to the FISA
Court and its ratification of the government's surveillance [*187] programs. Below are passages, chosen essentially
at random, from a speech by President Obama on the topic of signals intelligence reform n326: . "I ordered that our
programs be reviewed by my national security team and our lawyers . . . . We increased oversight and auditing,
including new structures aimed at compliance. Improved rules were proposed by the government and approved by
the Foreign Intelligence Surveillance Court." . "[T]he Foreign Intelligence Surveillance Court . . . provides judicial
review of some of our most sensitive intelligence activities." In language like the above, court involvement is
offered as evidence of both legality and appropriateness; indeed, the two are conceptually merged. My point is not
that FISA Court legitimation is phony. In fact, judicial review has real effects on the system--we know from the
recently declassified documents that FISA Court review disciplines the surveillance system, holding it at least to the
government's own representations. n327 Yet the oversight gain carries with it a legitimation cost; the existence of
judicial review makes political change more difficult. Scholars, particularly critical legal studies scholars, have made
this point in a large number of other contexts. For example, Alan Freeman argued that civil rights law--and law more
generally--exists "largely to legitimize the existing social structure." n328 The polity at large is soothed, and the
effect is felt even by rights beneficiaries, who frame and tame their aspirations to suit the inherently limited scope of
potential judicial interventions. Freeman described his view that American civil rights litigation has amounted to a
"process of containing and stabilizing the aspirations of the oppressed through tokenism and formal gestures which
actually enhance the material lives of few." n329He wrote: Rights are granted to, or bestowed upon, the powerless
by the powerful. They are ultimately within the control of those with authority to interpret or rewrite the sacred texts
from which they derive. To enjoy them, one must respect the forms and norms laid down by those in power. One
must especially avoid excesses in behavior or demands. n330 [*188] The point is not, for Freeman (and the plentiful
literature he adduced), that law accomplishes nothing for its purported beneficiaries. If that were true, it could not
legitimate: "[I]f law is to serve its legitimation function, [the] ultimate constraints [that come from politics] must
yield up just enough autonomy to the legal system to make its operations credible for those whose allegiance it seeks
as well as those whose self-interest it rationalizes." n331 But gains from rights may--and in the surveillance situation
clearly do--make gains from politics less available. To sum up this Part, neither the Constitution nor FISA aims to
optimally balance security and liberty--and frequently analyzed difficulties in congressional intelligence oversight
mean that new statutes are unlikely to fill that gap. Likewise the existing foundational Executive Order, 12,333, is at
the very least out-of-date. Accordingly intelligence legalism, and its compliance mindset, cannot achieve optimal
policy . Its concomitant empowerment of lawyers is real and important, but does not deputize a procivil liberties
force. Indeed, legalism actually both crowds out the consideration of policy and interests (as opposed to law and
rights), and legitimates the surveillance state, making it less susceptible to policy reform. Are there, then, nonlegalistic reforms that could play a productive part? I turn next to this issue.

Impact: Solvency Takeout: International Advs

Domestic reforms do nothing for the international spying we do
Naughton, 15
John, 6/6, professor of the public understanding of technology at the Open University, Surveillance laws are being
rewritten post-Snowden, but what will really change?, The Guardian,
http://www.theguardian.com/technology/2015/jun/06/surveillance-privacy-snowden-usa-freedom-act-congress
On the other side of the Atlantic, although the USA Freedom Act does introduce a number of reforms, the
surveillance landscape remains largely unchanged . Americans phone records will still be hoovered up but now
by the telephone companies, not the NSA and access to them will require a warranting process. And elements of
transparency around government surveillance and the operations of the secret Fisa court will be introduced. So while
there is some good news for American citizens in the new legislation, the position for the rest of the world is that
nothing changes. The US retains the right to snoop on us in any way it pleases and of course to spy on any US
citizen who has the misfortune to exchange a phone call or an email message with us. Edward Snowdens
revelations have thus brought about some amelioration in the domestic surveillance regime within the US, but so far
they have done little to protect those who live outside that benighted realm and quaintly regard privacy as a basic
human right.

Impact: State Control

Legalism through surveillance reforms results in greater state control
Granick, 14
(Jennifer, Director of Civil Liberties at the Stanford Center for Internet and Society, 11/13, The Surveillance States
Legalism Isnt About Morals, Its About Manipulating the Rules, Just Security, http://justsecurity.org/17393/icslegalism-morals-manipulating-rules/)
My question is whether legalism serves as a moral code for US Intelligence Community (IC) leadership, or only as a
smokescreen. I believe the evidence shows that since 9/11,the IC, and specifically the NSA has not followed the
rules. Rather, the agency has resorted to legalistic justifications in pursuit of other goalsnamely whatever might be
useful in countering terrorism. Before 9/11, the agency may have been focused on complying with FISA. But
afterthat day, the NSAs approach was that it could circumvent federal statutes and the Constitution so long as there
was some visceral connection to looking for terrorists. In other words, since 9/11, the moral center of gravity in the
surveillance world has focused on doing whatever is necessary for hunting terrorists, not following the rules. Margo
also argues that the NSAs legalism equates to, for better or worse, the empowerment of lawyers. Sign-off by
lawyers is, as Margo says, an important part of the process. Lawyer opinions gave telecommunications firms legal
immunity for their cooperation with the government in conducting mass surveillance. Lawyers were used to compel
compliance from underlings within the intelligence community. Theyve been used cynically for public relations
purposes, trading on the public trust in the actions of government lawyers to cloud the public debate over legality.
Theyve been used tomarginalize the role of Congress in approving surveillance. The decisions of lawyers inside the
surveillance community have allowed Americas spies to secretly expand their power as they develop classified
capabilities and practices that the public and Congress havent yet become aware of, and have not even begun to
regulate. But calling this empowerment is misleading. We see lawyers who object to policies that may harm civil
liberties bypassed in favor of handpicked counsel who give their bosses the answers they want. Lawyers are
ratifying surveillance decisions policy makers have already made. Thats not empowerment, its subservience.
Surrendering selfhood to the State makes extinction inevitable
Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ., Spring, 11 Ariz. J. Int'l & Comp.
Law 1)
This, then, is an altogether different kind of understanding. Rather than rescue humankind by freeing individuals
from fear of death, this perspective recommends educating people to the truth of an incontestable relationship
between death and geopolitics. By surrendering ourselves to States and to traditional views of self-determination,
we encourage not immortality but premature and predictable extinction. It is a relationship that can, and must,
be more widely understood.
There are great ironies involved. Although the corrosive calculus of geopolitics has now made possible the
deliberate killing of all life, populations all over the planet turn increasingly to States for security. It is the dreadful
ingenuity of States that makes possible death in the billions, but it is in the expressions of that ingenuity that people
seek safety. Indeed, as the threat of nuclear annihilation looms even after the Cold War, 71 the citizens of conflicting
States reaffirm their segmented loyalties, moved by the persistent unreason that is, after all, the most indelible badge
of modern humankind.
As a result, increasing human uncertainty brought about by an unprecedented vulnerability to disappearance is likely
to undermine rather than support the education required. Curiously, therefore, before we can implement such
education, we will need to reduce the perceived threat of nuclear war 72 and enlarge the belief that the short-term
goal of nuclear stability is within our grasp. To make this possible we must continue to make progress on the usual
and mainstream arms control measures and on the associated strategies of international cooperation and
reconciliation. In this connection, arms control [*25] obligations must fall not only on nuclear weapon States, but
also upon non-nuclear States that threaten others with war or even genocide.

"Death," says Norbert Elias, "is the absolute end of the person. So the greater resistance to its demythologization
perhaps corresponds to the greater magnitude of danger experienced." 73 Let us, then, reduce the magnitude of
danger, both experienced and anticipated. But let us also be wary of nurturing new mythologies, of planting false
hopes that offer illusions of survival in a post-apocalypse world. Always desperate to grasp at promises that allay the
fears of personal transience, individuals are only too anxious to accept wish-fantasies of security in the midst of
preparations for Armageddon.

Privileging the power of the state over that of the individual makes war and genocide inevitable
Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ., Spring, 11 Ariz. J. Int'l & Comp.
Law 1)
Yet, this situation is enormously ironic. By its very nature, the self-determination of peoples and nations undermines
the self-determination of individuals. 6 Encouraging the expanding fragmentation of the world into [*3] competing
sovereignties, this right under international law makes it nearly impossible for persons to see themselves as members
of a single human family. As a result, the presumed differences between peoples are taken as critical and the
essential similarities dismissed as unimportant. Not surprisingly, war 7 and genocide 8 are not only the legacy of the
current century, but also the most probable planetary future.
Self-determination, of course, has its place. Under the United Nations Charter, this principle is treated as an
indispensable corrective to the crime of colonialism. Hence, colonial peoples are granted an "inherent" right to
struggle [*4] by all necessary means, 9 and United Nations member States are instructed to render all necessary
moral and material assistance to the struggle for freedom and independence. 10
Yet, the cumulative effect of claims for self-determination is violence and death. Reaffirming individual
commitments to life in the "herd," these claims contradict the idea of global oneness and cosmopolis. From
identification as Moslem Azerbaijanis or Christian Armenians, as Croats or Serbs, individuals all over the world
surrender themselves as persons, being told again and again that meaning derives from belonging. Not surprisingly,
these individuals are too often willing to do anything that the group commands -- even the mass killing of other
human beings, as long as the victims are "outsiders."
[*5] What do we really seek in world affairs? If it is authentic peace and an end to war crimes 11 and crimes against
humanity, 12 then the expectation of self-determination must be balanced against the needs of planetization, of a new
world order 13 in which the commonality and community of the entire human species takes precedence over the
lethal calls of separatism, ethnic rivalry, and militaristic nationalism. Poised to consider that national liberation can
itself be the source of armed conflict and murder, individuals everywhere must learn to affirm their significance
outside the herd, as persons rather than as members.
The herd is always potentially dangerous, whether it be the herd of a criminal band, a discontented nationality, or a
State. 14 Before the residents of this endangered planet can discover safety in world politics, they will have to
discover power and purpose within themselves. In the end, humankind will rise or fall on the strength of a new
kind of loyalty, one that recognizes the contrived character of national, religious, and ethnic differences and the
primacy of human solidarity. Although this kind of loyalty is certainly difficult to imagine, especially when one
considers that organization into and belonging within competitive herds still offers most people a desperately needed
sense of self-worth, there seems to be no alternative. Whether we seek an accommodation of Palestinians 15 and
Israelis 16 in the Middle East, of Catholics and Protestants in Northern Ireland, or of different nationalities in Eastern
Europe, in the former USSR, or in the former Yugoslavia, the only real hope lies in getting those involved to see
themselves as individuals.

Surrendering selfhood to the state makes war and genocide inevitable

Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ., Spring, 11 Ariz. J. Int'l & Comp.
Law 1)

The State requires its members to be serviceable instruments, suppressing every glimmer of creativity and
imagination in the interest of a plastic mediocrity. Even political liberty within particular States does nothing to
encourage opposition to war or to genocide in other States. Since "patriotic self-sacrifice" is demanded even of
"free" peoples, the expectations of inter-State competition may include war and the mass killing of other peoples.
In the final analysis, war and genocide are made possible by the surrender of Self to the State. Given that the
claims of international law 35 are rendered impotent by Realpolitik, this commitment to so-called power politics is
itself an expression of control by the herd. Without such control, individuals could discover authentic bases of
personal value inside themselves, depriving the State of its capacity to make corpses of others.

Impact: Panopticon
Surveillance state leads to panoptic government
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
Decades ago Michel Foucault argued that modern societies had become increasingly focused on watching and
measuring people in order to control them, to normalize their behavior and to make them docile and obedient. 5 1
His famous example was Jeremy Bentham's idea of a Panopticon-a prison designed so that the prisoners could
always be watched but would not know exactly when.52 By making surveillance ubiquitous, governments and
private organizations could discourage behavior they deemed unusual or abnormal. Today's National Surveillance
State goes beyond Foucault's Panoptic model. Government's most important technique of control is no longer
watching or threatening to watch. It is analyzing and drawing connections between data. Much public and private
surveillance occurs without any knowledge that one is watched. More to the point, data mining technologies allow
the state and business enterprises to record perfectly innocent behavior that no one is particularly ashamed of and
draw surprisingly powerful inferences about people's behavior, beliefs, and attitudes. 5 3 Over time, these tools will
only become more effective. We leave traces of ourselves continually, including our location, our communications
contacts, our consumption choices-even our DNA

We must consider the normalizing effects of the plan over any violence it might prevent. Such a prioritization
allows us to interrogate the initial conditions that allow symptomatic violence to exist and construct an agency
to mitigate them
Bevir 99
[Mark Bevir, Political Theory Reader at the University of Newcastle, Foucault and Critique: Developing Agency
against Autonomy, Political Theory, Vol. 27, No. 1, February 1999, p. 65-84, JSTOR]
A key question raised by my account of a composed Foucault's concept of governmentality is, what constitutes a
worthwhile form of agency? To appreciate just how vital this question now has become for us, we need only to
recall the strength of Foucault's critique of the normalizing effect of modem power. Modem power is not violent
since it passes through the consciousness of the individual in a way that entails a recognition of the other as an
agent. Nonetheless, Foucault consistently argues that individuals in modem society typically use their agency only to
regulate themselves in accord with social norms.33 Far from resisting the normalizing effects of power, they act so
as to promote them. Moreover, Foucault clearly regards this as a bad thing, complaining, in particular, about the
state having taken over the techniques of pastoral power. Sometimes his distaste for the normalizing effects of
modern power even leads him to imply it is worse-more damaging-than overt vio-lence. After all, violence is at least
visible and honest, whereas modern power renders us insipid and uniform while pretending to liberate our true, inner
selves. Power might be preferable to violence in that it recognises the other as an agent, but if the strength of modern
power is such that the other uses his agency only to normalize himself, then perhaps we should prefer an honest
violence to a deceitful power. It is this possibility that gives urgency to the question of what constitutes a worthwhile
form of agency. We need forms of agency that resist not only the overt violence so often associated with the state,
but, at least as important, the normalizing effects of a pastoral power taken over by the modern state. As Foucault
insisted, "the political, social, philosophical problem of our days is not to try to liberate the individual from the state,
and from the state's institutions, but to liberate us both from the state and from the type of individualization which is
linked to the state."34 His work on an ethic of care for the self provides us with suggestions as to the types of
resistance we need to develop in order to sustain such liberation.

Challenging this model of governance is key to good policy making

Backer 08
Larry Cat Backer, Visiting Professor of Law, Tulane Law School; Professor of Law, Pennsylvania State University;
Director, Coalition for Peace & Ethics, Winter 2008, Indiana Journal of Global Legal Studies Vol. 15 #1
This article interrogates one critical aspect of complexity and fracture in regulatory power.1 Specifically, it focuses
on surveillance2 as a regulatory mechanism.3 I will explore some of the complexities of this regulatory mechanism
in emerging governance systems in which private entities are engaged in sovereign functions and public entities
participate in the market. The thesis of this article is fairly straightforward: surveillance represents a complex of
assumptions and objectives beyond mere information gathering or observation. Surveillance serves both
instrumental and substantive purposes that affect the power relationships among states, economic entities, and
individuals.4 It is both technique and the reification of norms that shape the specific character of the gaze .5
Surveillance is both ministerial the gathering of informationand administrativethe elaboration of judgments
of the importance of the actions or individuals observed. Surveillance is also a function of its techniques.6 The
technologies of surveillance suggest the limits of the gaze and the scope of control through visibility. While virtually
everything can be monitored, power (and the limits of power) is a function of control over the way power is
understood, gathered, and used. Moreover, the power to decide what parts of monitored activity may be revealed,
extracted, analyzed, judged, and relied on has important consequences, consequences that themselves are the subject
of further surveillance.7 Surveillance is one of the critical mechanisms of this expansion of private power into
what had been an exclusively public sphere. Increasingly, public bodies are requiring, or permitting, private
entities to monitor and report on the conduct and activities of a host of actors. It increasingly serves public bodies as
a substitute for lawmaking. Surveillance is a flexible engine. It can be used to decide what sorts of facts constitute
information, to determine what sorts of information ought to be privileged and which do not matter, to gather that
information, to empower people or entities to gather information, and to act on the information gathered. In its
domestic form it can be used to assign authority over certain types of information to private enterprises and then
hold those enterprises to account on the basis of the information gathered.8 In its transnational form it can be used to
construct a set of privileged information that can be gathered and distributed voluntarily by private entities on the
basis of systems created and maintained by international public or private organizations as an alternative to formal
regulation and to provide a means of harmonizing behavior without law.9 Surveillance in its various forms provides
a unifying technique with which governance can be effectuated across the boundaries of power fractures without
challenging formal regulatory power or its limits. It avoids the barrier between the public and private spheres; it
substantially increases the regulatory palette of states without the complications of the usual limitations of public
formal lawmakingespecially those of accountability and transparency. The consequences of surveillance,
particularly those consequences on the shape of governance, are to a great extent a function of the character of the
surveillance power elaborated.10 The principal effects will tend to promote a further convergence of public and
private regulatory power.11 This convergence arises from a fracturing of traditional divisions of power.12 A
sovereign is said to lose its character as such when it acts, not as regulator of a market, but in the manner of a
private player within it.13 The reciprocal principle has not been accepted de jure; a private actor is not said to lose
its character as a private actor when it acts in the manner of a sovereign. Still, private players now are required to
play the role of regulator and have sought that role for themselves de facto.14 And, increasingly, public bodies are
requiring, or permitting, private entities to monitor and report on the conduct and activities of a host of actors.15
Surveillance, then, functions as more than a descriptor of methodology. Surveillance is a new form of lawmaking
through which the old boundaries between the public and private, national and transnational, are made
irrelevant. The construction of complex systems of conscious and permanent visibility, as both normative systems
and bundles of specific techniques, affects the power relationships among states, economic entities, and individuals.
It represents modalities of fractures and complications in assertions of regulatory power, replicating its forms and
effects throughout society.16 Its privatization tends to complicate the distinction between private and public
institutions and between assertions of private (market or personal welfare maximizing) and public (regulatory or
stakeholder welfare maximization). Surveillance cuts across bordersit embodies the techniques and sensibilities of

an essentially transnational response to problems of governance.17 To understand the complexities and vectors of
surveillance is to grasp the shape of converging public/private governance in this century

Impact: Race
The Surveillance State props up racist structures of empire
Kundnani and Kumar, 15
(Arun, Professor @ New York University and Deepa, Associate Professor of Media Studies and Middle East Studies
@ Rutgers University, Race, Surveillance and Empire, Spring, International Socialist Review,
http://isreview.org/issue/96/race-surveillance-and-empire)
In what follows, we argue that the debate on national security surveillance that has emerged in the United States
since the summer of 2013 is woefully inadequate, due to its failure to place questions of race and empire at the
center of its analysis. It is racist ideas that form the basis for the ways national security surveillance is organized
and deployed, racist fears that are whipped up to legitimize this surveillance to the American public, and the
disproportionately targeted racialized groups that have been most effective in making sense of it and organizing
opposition . This is as true today as it has been historically: race and state surveillance are intertwined in the history
of US capitalism. Likewise, we argue that the history of national security surveillance in the United States is
inseparable from the history of US colonialism and empire. The argument is divided into two parts. The first
identifies a number of moments in the history of national security surveillance in North America, tracing its
imbrication with race, empire, and capital, from the settler-colonial period through to the neoliberal era. Our focus
here is on how race as a sociopolitical category is produced and reproduced historically in the United States through
systems of surveillance. We show how throughout the history of the United States the systematic collection of
information has been interwoven with mechanisms of racial oppression. From Anglo settler-colonialism, the
establishment of the plantation system, the postCivil War reconstruction era, the US conquest of the Philippines,
and the emergence of the national security state in the post-World War II era, to neoliberalism in the post-Civil
Rights era, racialized surveillance has enabled the consolidation of capital and empire.

Impact: Rights
The surveillance state kills rights
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
The National Surveillance State poses three major dangers for our freedom. Because the National Surveillance State
emphasizes ex ante prevention rather than ex post apprehension and prosecution, the first danger is that government
will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill
of Rights. The Bush administration's military detention practices and its NSA surveillance program are two
examples. The administration justified detaining and interrogating people-including American citizens-in ways that
would have violated traditional legal restraints on the grounds that it was not engaged in ordinary criminal law
enforcement. 62 It sought intelligence that would prevent future attacks and wanted to prevent terrorists from
returning to the battlefield.6 3 Similarly, the administration defended warrantless surveillance of people in the
United States by arguing that the President was not engaged in criminal prosecutions but in collection of military
intelligence designed to fight terrorism. 64

Impact: Pre-emption
The surveillance state leads to a police state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
The second danger posed by the National Surveillance State is that traditional law enforcement and social services
will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data
mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for
delivery of government services. If data mining can help us locate terrorists, why not use it to find deadbeat dads, or
even people who have not paid their parking tickets? 65 If surveillance technologies signal that certain people are
likely threats to public order, why not create a system of preventive detention outside the ordinary criminal justice
system? 66 Why not impose sanctions outside the criminal law, like denying people the right to board airplanes or
use public facilities and transportation systems? And if DNA analysis can identify people who will likely impose
high costs on public resources, why not identify them in advance and exclude them from public programs and other
opportunities? The more powerful and effective our technologies of surveillance and analysis become, the more
pressure the government will feel to route around warrant requirements and other procedural hurdles so that it can
catch potential troublemakers more effectively and efficiently before they have a chance to cause any harm

Alt: Critique Solves

Criticism is key to challenging the surveillance system
Setty, 15
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability,
Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)
The surveillance and data collection that are part of the NSA Metadata Program have been largely validated by two
forms of relatively weak judicial review: Article III courts have, until recently, largely refused to
hear the merits of cases challenging the government surveillance, instead finding that
plaintiffs are unable to satisfy the standing requirement, n28 or dismissing suits at the
pleadings stage due to invocations of the state secrets privilege by the government. n29 The
Foreign Intelligence Surveillance Court (FISC), tasked with determining the legality of many of the
government's surveillance requests, has largely acquiesced to the government's requests over the years. n30 Cases
litigated after the Snowden revelations of June 2013 suggest, however, that the judicial deference offered to
the government in many previous counterterrorism cases may be curtailed in light of public attention and critique of
the NSA Metadata Program, as well as a [*76] reinvigorated judicial embrace of the privacy
protections embodied in the Fourth Amendment. n31

Critique alone leads to political action in the future

Hutchinson and Monahan in 84
CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama
of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law Review
The Critical scholars' radical challenge to traditional legal thought is unsettling. Unlike the in-house squabbles
between the Harts and the Fullers, the debate between the Critical scholars and mainstream legal

theorists is not over matters of degree or emphasis. And because the conflict is over something
much more profound and elemental than legal doctrine, the likelihood of cooptation is small. n192
Further, the Critical scholars do not seek to displace traditional jurists from center stage merely to have the spotlight
focused on themselves.Instead, they want to revolutionize the whole theory and performance of the American legal
drama. They do not simply wish to exchange the scripts and the sentiments of Shakespeare for those of Brecht or
Fugard. The message and the medium must change. The focus of attention must shift from the

artifacts of the juristic stage to the reality of the citizen audience. The ultimate goal must be to
[*244] promote "street theater," the spontaneous involvement of people in everyday situations.
n193
The ambition of the Critical scholars is revolution, not reform. For them, intellectual critique is
merely a prelude to, and platform for, political action. n194

Overcoming social heirarchies can only happen with a shattering of the legal order

Hutchinson and Monahan in 84

CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama
of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law Review
The distinctive feature of the CLS movement, therefore, is its

desire to shatter the limiting conceptions of

the possibilities of human association and of social transformation embodied in liberal legal
thought. The CLSers' enterprise is to complete the modern rebellion against the view that social
arrangements are natural or inevitable. They want to expose society as the vulgar and contingent product of
interrupted fighting. Their central strategy is to suggest that social order exists only because, at some arbitrary point,
the struggle between individuals was halted and truce lines were drawn up. These truce lines define the structure of a
society's politics and production. Although these truce lines initially are simply the product of an uneasy [*217]
deal between combatants, eventually they stabilize and become fixed. A sense of stability is generated by the

insistence that the truce lines represent more than the residue of interrupted fighting: Strength
becomes right, obedience becomes duty, and the ad hoc nature of hierarchical division in society
is obscured. n77
Inspired by a vision of the contingent nature of all social worlds, the CLS project is to identify the role played by
law and legal reasoning in the process through which social structures acquire the appearance of inevitability. By
identifying and overturning the extant forms of legal consciousness, the CLSers hope to liberate the individual in
society. Their method for exposing the distortion between the apparent order of the legal process and the disorder of
social life is to examine the intellectual devices that conceal this discrepancy. Whereas the Realists exposed
indeterminacy in legal doctrine, the Critical scholars abstract from legal materials the underlying

premises that combine to form a distinct way of looking at the world. By demonstrating that
social life is much less structured and much more complex, much less impartial and much more
irrational, than the legal process suggests, the interests served by legal doctrine and theory will
surface. n78

Alt: States CP
The States are the best alternative to avoid federal cooption
Trejo, 15
(Shane, Journalist, 1/12, Glenn Greenwald: Congress Wont Stop NSA,
http://www.offnow.org/glenn_greenwald_congress_won_t_stop_nsa)
When pro-privacy members of Congress first unveiled the bill many months ago, it was actually a good bill: real
reform. But the White House worked very hard in partnership with the House GOPto water that bill down so
severely that what the House ended up passing over the summer did more to strengthen the NSA than rein it in,
which caused even the ACLU and EFF to withdraw their support. The Senate bill rejected last night was basically a
middle ground between that original, good bill and the anti-reform bill passed by the House... The entire system in
D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling
fundamental limits on the NSAs powers of mass surveillance. Even if it somehow did, this White House would
never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National
Security State operates with no limits and no oversight means theyd easily co-opt the entire reform process. As
usual, Greenwald's commentary was poignant, punchy and on the mark. But he did miss a possible alternative to
begging Washington D.C. to reform the NSA - action at the state level Greenwald failed to mention the
developments in Utah, which have garnered a massive amount of press coverage. The overwhelming support for our
4th Amendment Protection Act in that state is a game changer. It is opening people's eyes to the effectiveness of
state-level resistance, and taking the focus off of a Congress that refuses to lift a finger to fix chronic abuses like
warrantless NSA spying. Our views are firmly in the mainstream of political thought. It has been widely recognized
that the legal basis for our bills is sound. That fact was not refuted by anyone during the Utah committee hearings.
This is how the NSA can be defeated. It will not be easy, but it is possible. On the other hand, federal-level reforms
are impossible, as Greenwald correctly noted. Voting the pro-NSA politicians out is futile as well. These
conventional ways of pushing back have failed. It is time to try something different. The OffNow plan is something
new and innovative when it comes to dealing with unconstitutional spying. By denying the NSA the resources that it
needs to function, we can stop its illegal behavior. The NSA cannot spy on all of us without our water. Let's cut them
off now, and restore our privacy rights before time runs out.

AT: Perm/Reforms Work

Reforms are doomed to fail they actually placate resistance making real change impossible
Greenwald, 14
(Glen, 2/17, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and
law. His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Obamas NSA reforms are little more than a PR attempt to mollify the
public, http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillance-remains)
In response to political scandal and public outrage, official Washington repeatedly uses the same well-worn tactic. It
is the one that has been hauled out over decades in response to many of America's most significant political
scandals. Predictably, it is the same one that shaped President Obama's much-heraldedFriday speech to announce his
proposals for "reforming" the National Security Agency in the wake of seven months of intense worldwide
controversy. The crux of this tactic is that US political leaders pretend to validate and even channel public anger by
acknowledging that there are "serious questions that have been raised". They vow changes to fix the system and
ensure these problems never happen again. And they then set out, with their actions, to do exactly the opposite: to
make the system prettier and more politically palatable with empty, cosmetic "reforms" so as to placate public
anger while leaving the system fundamentally unchanged, even more immune than before to serious challenge.
Reforms only serve to prop up and whitewash the surveillance state
Greenwald, 14
(Glen, 2/17, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and
law. His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Obamas NSA reforms are little more than a PR attempt to mollify the
public, http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillance-remains)
Ultimately, the radical essence of the NSA a system of suspicion-less spying aimed at hundreds of millions of
people in the US and around the world will fully endure even if all of Obama's proposals are adopted. That's
because Obama never hid the real purpose of this process. It is, he and his officials repeatedly acknowledged, "to
restore public confidence" in the NSA. In other words, the goal isn't to truly reform the agency; it is deceive people
into believing it has been so that they no longer fear it or are angry about it. As the ACLU's executive director
Anthony Romero said after the speech: The president should end not mend the government's collection and
retention of all law-abiding Americans' data. When the government collects and stores every American's phone call
data, it is engaging in a textbook example of an 'unreasonable search' that violates the constitution. That, in general,
has long been Obama's primary role in our political system and his premiere, defining value to the permanent power
factions that run Washington. He prettifies the ugly; he drapes the banner of change over systematic status quo
perpetuation; he makes Americans feel better about policies they find repellent without the need to change any of
them in meaningful ways. He's not an agent of change but the soothing branding packaging for it.

Reforming the surveillance state actual makes the system much worse
Shears, 14
(Matthew, leads the Center for Democracy and Technologys Global Internet Policy and Human Rights (GIPHR)
activities, Snowden and The Politics of Internet Governance, Center for Democracy and Technology,
https://cdt.org/blog/snowden-and-the-politics-of-internet-governance/)
Mass surveillance programs have developed not due to some failure of participatory Internet governance processes,
but rather through deliberate actions, taken by governments, that disregard the fundamental rights of their citizens

and people both inside and outside their territory. Governments have developed national-level law and policy,
colluded with one another through intergovernmental agreements, and co-opted private actors into their surveillance
schemes all under a veil of secrecy intended to keep non-governmental stakeholders out of the deliberations.
Increasing government control over Internet governance will not change that it would almost certainly make the
situation much worse. We have surveillance programmes that abuse human rights and lack in transparency and
accountability precisely because we do not have sufficiently robust, open, and inclusive debates around surveillance
and national security policy. Indeed, even in those countries that purport to be the most open and transparent and
that are consistent supporters of the multi-stakeholder model, surveillance and security policy remain, unfortunately,
for the state alone. Linking the Snowden revelations to a failure of open and participatory multistakeholder Internet
governance is simply nonsense.

AT: Internal Checks

Internal checks fail
Setty, 15
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability,
Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)
On the other hand, the fact that the NSA itself has brought potential compliance incidents to the notice of the
FISC n80 indicates at least some internal policing of these programs. However, this is hardly an effective
substitute for external review and accountability mechanisms that would ensure that consistent controls are in
place . Further, the self-reporting of these compliance incidents does not in any way allow for discourse over the
larger structural questions surrounding the surveillance programs.

AT: Snowden Proves Alt Fails

Snowden proves that only the alt can solve
Greenwald, 2015
(Glen, journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law.
His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the
Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead,
The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-masssurveillance/)
2) Other countries taking action against U.S. hegemony over the internet. Most people who claim nothing has
changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that
matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S.
domination of the internet.
Brazil is building a new undersea internet infrastructure specifically to avoid U.S. soil and thus NSA access. That
same country punished Boeing by denying the U.S. contractor a long-expected $4.5 billion contract for fighter jets
in protest over NSA spying. Another powerful country, Germany, hastaken the lead with Brazil in pushing for
international institutions and regulatory schemes to place real limits on NSA mass surveillance. U.S. diplomatic
relations with numerous key countries have been severely hampered by revelations of mass surveillance.

AT: No Alt Args

Not offering a stable alternative is the point true and constant criticism solves
Hutchinson and Monahan in 84
CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama
of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law Review
Accordingly,

the Critical scholars cannot offer a vision of a reconstituted society while remaining
faithful to their own basic theoretical assumptions. If they hold that human existence is possible,
and indeed can attain its finest fulfillment, without an ideology, they must concede that social
transformation is a very personal, instinctive, and individual act. Otherwise, in planning such
transformative activity, they would simply be exchanging one form of consciousness for another.
Yet if they hold that human existence requires some ideology, they must concede that theirs is
merely one more consciousness competing in the unwinnable contest over which is the best
ideology for man.

AFF

Legal Restraints Solve 2ac

Appeals for legal restraint are a crucial supplement to political resistance to executive power political
restraints alone fail
Cole 12 (David, Prof of Law @ Georgetown, The Politics of the Rule of Law: The Role of Civil Society in the
Surprising Resilience of Human Rights in the Decade after 9/11 http://www.law.uchicago.edu/files/files/Cole
%201.12.12.pdf p. 51-53)

As I have shown above, while

political forces played a significant role in checking President Bush, what was significant was the
particular substantive content of that politics; it was not just any political pressure, but pressure to maintain fidelity to the rule
of law. Politics standing alone is as likely to fuel as to deter executive abuse ; consider the lynch mob, the Nazi
Party in Germany, or xenophobia more generally. What we need if we are to check abuses of executive power is a politics
that champions the rule of law. Unlike the politics Posner and Vermeule imagine, this type of politics cannot be segregated
neatly from the law . On the contrary, it will often coalesce around a distinctly legal challenge, objecting to departures
from distinctly legal norms, heard in a court case, as we saw with Guantanamo. Congresss actions make clear that had
Guantanamo been left to the political process, there would have been few if any advances . The litigation generated
and concentrated political pressure on claims for a restoration of the values of legality, and, as discussed above, that
pressure then played a critical role in the litigations outcome, which in turn affected the political pressure for
reform. There is, to be sure, something paradoxical about this assessment. The rule of law, the separation of powers, and human rights are
designed to discipline and constrain politics, out of a concern that pure majoritarian politics, focused on the short term, is likely to discount the
long-term values of these principles. Yet without a critical mass of political support for these legal principles, they are unlikely to be effective
checks on abuse, for many of the reasons Posner andVermeule identify. The answer, however, is not to abandon the rule of law for

politics, but to develop and nurture a political culture that values the rule of law itself . Civil society organizations
devoted to such values, such as Human Rights Watch, the Center for Constitutional Rights, and the American Civil
Liberties Union, play a central role in facilitating, informing, and generating that politics . Indeed, they have no
alternative. Unlike governmental institutions, civil society groups have no formal authority to impose the limits of law themselves. Their
recourse to the laws limits is necessarily indirect: they can file lawsuits seeking judicial enforcement, lobby Congress for statutory reform or
other legislative responses, or seek to influence the executive branch. But they necessarily and simultaneously pursue these goals

through political avenues by appealing to the public for support, educating the public, exposing abuses, and
engaging in public advocacy around rule-of-law values. Unlike ordinary politics, which tends to focus on the preferences of the
moment, the politics of the rule of law is committed to a set of long-term principles. Civil society organizations are
uniquely situated to bring these long-term interests to bear on the public debate. Much like a constitution itself, civil society
groups are institutionally designed to emphasize and reinforce our long-term interests. When the ordinary political process is consumed by the
heat of a crisis, organizations like the ACLU, Human Rights First, and the Center for Constitutional Rights, designed to protect the rule of law,
are therefore especially important. While Congress and the courts were at best compromised and at worst complicit in the abuses of the post-9/11
period, civil society performed admirably. The Center for Constitutional Rights brought the first lawsuit seeking habeas review at Guantanamo,
and went on to coordinate a nationwide network of volunteer attorneys who represented Guantanamo habeas petitioners. The ACLU filed
important lawsuits challenging secrecy and government excesses, and succeeded in disclosing many details about the governments illegal
interrogation program. Both the ACLU and CCR filed lawsuits and engaged in public advocacy on behalf of torture and rendition victims, and
challenging warrantless wiretapping. Human Rights Watch and Human Rights First wrote important reports on detention, torture, and
Guantanamo, and Human Rights First organized former military generals and admirals to speak out in defense of humanitarian law and human
rights. These efforts are but a small subset of the broader activities of civil society, at home and abroad, that helped to bring to public attention the
Bush administrations most questionable initiatives, and to portray the initiatives as contrary to the rule of law. At their best, civil society

which there is a symbiotic relationship between politics and law : the

appeal to law informs a particular politics, and that politics reinforces the laws appeal, in a mutually reinforcing
relation. Posner and Vermeule understand the importance of politics as a checking force in the modern world, but fail
to see the critical qualification that the politics must be organized around a commitment to fundamental principles of
liberty, equality, due process, and the separation of powers in short, the rule of law. Margulies and Metcalf recognize that politics
as much as law determines the reality of rights protections, but fail to identify the unique role that civil society organizations play in that process .
It is not that the rule of politics has replaced the rule of law, but that, properly understood, a politics of law is a
critical supplement to the rule of law . We cannot survive as a constitutional democracy true to our principles without both. And our
organizations help forge a politics of the rule of law, in

survival turns, not only on a vibrant constitution, but on a vibrant civil society dedicated to reinforcing and defending constitutional values.

Legal Restraints Solve 1ar

Legal restrictions ARE credible, deter executive actions, and improve decision making
Cole 12 (David, Prof of Law @ Georgetown, Are We Stuck with the Imperial Presidency? 6/7,
http://www.nybooks.com/articles/archives/2012/jun/07/are-we-stuck-imperial-presidency/?pagination=false)

Posner and Vermeule contend that more specific statutory regimes have also failed to constrain the president. The War
Powers Resolution, the National Emergencies Act, and the International Emergency Economic Powers Act, for example, all enacted after Watergate to rein in presidential action, have proved
largely ineffectual. Presidents have repeatedly argued that the statutes do not apply. The Obama administration recently did so when it implausibly claimed that the War Powers Resolution
requiring congressional approval of any use of troops in hostilities that last more than sixty daysdid not apply to the military intervention in Libya. And Congress has failed to exercise

But ironically, Posner and Vermeule base their legal

realist critique on an excessively formalist assessment of whether law constrains, looking almost entirely at
statutory language on its face and at judicial decisions. They argue that legal standards are often manipulable, and that judges therefore often defer to the
executive. But the fact that law usually does not dictate particular executive decisionshardly a surprising revelationdoes not mean
that it does not constrain them. And in particular, it is misguided to look only at judicial decisions, for law operates outside the courts as well. Thus, while the APAs openmeaningful oversight even where such statutes call for it to do so. All of this seems right, to a point.

ended standards undoubtedly permit judges to defer to the executive, they do not require them to defer. Some judges will defer; others will not, as when the Supreme Court in 1983 reversed the
National Highway Traffic Safety Administrations repeal of a requirement for passive restraints in all new cars, or when the D.C. Circuit Court in 2008 rejected the Environmental Protection

The executive generally cannot know in advance whether court review will be strict or
deferential, and that uncertainty itself has a deterrent effect on the choices it makes, even in the many cases that do
not end up in court. In my experience , lawyers for the executive branch generally take legal limits seriously . They take an oath and
Agencys rules for mercury emissions.

have been trained to uphold the law. They know that claims of illegality can undermine their programmatic objectives. They cannot predict when they will end up in court and so try to avoid legal

to look only at enacted laws misses the

checking role that legislators play through other meanssuch as holding oversight hearings, launching
investigations, or simply requesting information about executive practices. The experiences of executive officials,
who devote much of their time to compliance with legal mandates and to defending their agencys actions in
Congress and the courts, contradict Posner and Vermeules armchair claims that legislative and judicial checks
are illusory .3 And President Obama, who has had to fight Congressand has often loston virtually every initiative he has pursued, from economic reform to health care to
challenges. To focus exclusively on specific judicial decisions is to miss laws daily operation outside the courts. Similarly,

Guantnamos closure, would certainly be surprised to learn that his power knows no limits.

Ceding the Legal Bad 2ac

Ceding legal restriction leads to authoritarianism turns their impact
Scheuerman 6 (William, Prof of Poli Sci @ Indiana, Survey Article: Emergency Powers and the Rule of
Law After 9/11* The Journal of Political Philosophy: Volume 14, Number 1 p. 73-74_

By the conclusion of Tushnets argument, however, it remains unclear what remains of the rule of law. Like Cole,
Tushnet accurately identifies a key tension in Gross argument: Gross insists on the extra-legality of emergency
action while simultaneously suggesting how various legal mechanisms (e.g., a retrospective judicial condemnation)
might work to restrain the executive. Tushnet resolves this tension, however, by systematically eliminating Gross
residual legalistic impulses. Contra Gross, courts can neither endorse nor condemn emergency action, since
extra-constitutional powers are reviewedand disciplinednot by law but by a mobilized citizenry.51 Because
Schmitt was right to argue that emergency power and legality do not mix, the only effective restraints on their
exercise are somehow non-legal: only the vigilance of the public acting, as it was put in the era of the American
Revolution, out of doors, can protect us from potentially abusive forms of emergency rule.52 Tushnets proposal
is even more vulnerable to some of the criticisms directed against Gross. Most obviously, a model which condones
executive crisis measures beyond the bounds of the law while disparaging the possibility of legal controls altogether
hardly seems supportive of the rule of law. Tushnets radical democratic allusions to a mobilized citizenry
obviously distinguishes him from Schmitt. Yet his sharp conceptual juxtaposition of democratic politics to
traditional elements of liberal legality (e.g., the idea of a people acting out of [legal] doors) echoes Schmitts
attempt to draw a bright line between democracy and liberalism. As has been widely noted in the secondary
literature in Schmitt, however, this leaves Schmitt with a portrayal of democracy amounting to little more than
mass-based authoritarian rule , in which the people become a plaything of their rulers. Democracy without civil
liberties, the rule of law, or constitutionalism is not, in fact, democracy, but instead most likely rule of the mob by
politically manipulative elites . The same can probably be expected of a democracy in which the citizenry lacks
effective legal restraints on executive emergency action. Given Tushnets endorsement of some of Schmitts ideas,
it might be useful for him better to explain how his model of crisis government would help secure us from yet
another variety of executive-centered mass rule. Recent political history provides examples galore of political
leaders relying on the specter of crisesreal or otherwiseto generate vigilant public support while undertaking
illegal and unconstitutional action. Authoritarian emergency government and some measure of popular mobilization
are by no means necessarily opposed.

A2 Law = Indeterminant/Fails
Indeterminacy makes advocacy of legal restraint more important for long-term checks on the executive
Cole 12 (David, Prof of Law @ Georgetown, The Politics of the Rule of Law: The Role of Civil Society in the
Surprising Resilience of Human Rights in the Decade after 9/11 http://www.law.uchicago.edu/files/files/Cole
%201.12.12.pdf p. 44-49)

If political pressure from civil society, rather than the force of law itself or the separation of powers, is to be credited for the partial restoration of
the rule of law in the decade afterSeptember 11, then it is essential that we understand how that politics works. In my view, it is a particular
politics a politics of the rule of law that is required. And civil society has a peculiar role to play in facilitating and propagating that politics.
Thus, a robust civil society devoted to the rule of law may be as important as the more formal elements of the rule of law in checking executive
abuse. At the same time, as the Guantanamo cases illustrate, there is a complex interrelationship between this type of politics and more formal
legal constraints. Legal disputes form the focal point for political organizing and advocacy for claims founded on rule-of-law
values, and that organizing and advocacy in turn can affect the outcomes of legal disputes. Politics, however, is not
sufficient on its own. In The Executive Unbound, Eric Posner and Adrian Vermeule maintain that a robust political process is sufficient to deter
executive abuse in times of crisis. They argue that in the modern era, the rule of law cannot effectively constrain the executive, especially in
emergencies, but that the executive is sufficiently limited by political checks. 82 82 Eric Posner and Adrian Vermeule, The Executive Unbound:
After the Madisonian Republic (2010). At first glance the past decade seems to vindicate Posner and Vermeules views, as political forces were
more effective at checking the president than were Congress or the judiciary. But Posner and Vermeules valorization of politics over

law overstates the power of politics, understates the force of law, and misses the complicated and essential interplay
between the two. Posner and Vermeule may be right that the law alone is not enough, but they fail to see that politics alone is at least as
wanting. In the end, the rule of law and politics must work in tandem. When they do, as they arguably did to an important extent in the wake of
September 11, they can mount a significant defense of basic human rights and the rule of law against executive overreaching. To Posner and
Vermeule, the rule of law and the separation of powers are, for all practical purposes, defunct. In their view, the modern executive cannot possibly
be constrained by the legislative and judicial branches, or even by law itself. Like many commentators before them, they attribute this
development largely to the growth of the administrative state and to the near constant state of emergency in which modern American government
now seems to operate. 83 As a practical matter, the vast and complex matters subject to federal regulation require Congress to cede control to the
executive, through broad delegations of authority to administrative agencies. Members of Congress lack the time and experience to micromanage
such diverse matters as energy, commerce, transportation, telecommunications, the environment, and immigration. And the executive vastly
outnumbers the other branches; about 98 percent of the federal governments nearly two million employees work in the executive branch.
Globalization exacerbates these trends, as the president is the nations primary voice abroad, and increasingly addressing our own social problems
requires coordination across borders. In emergencies, the executives characteristics of speed, flexibility, unified command, and secrecy are
especially valued, so Congress tends to delegate even more broadly, and courts in turn typically defer to executive action. Under these conditions,
Posner and Vermeule maintain, its just not feasible for the other two branches to keep effective tabs on what the executive is up to. But where
other commentators view these developments as profound challenges to our constitutional order, Posner and Vermeule insist that they are of little
concern because political constraints on the executive render the rule of law unnecessary. That view, however, both underestimates the
constraining force of law and overestimates the extent of political limits onexecutive overreaching. Dismissing the role of law, Posner and

Vermeule sweepingly claim, sounding almost like critical legal studies scholars, that law is so indeterminate and
manipulable as to constitute only a faade of legality. 85 But in assessing laws effect, they look almost exclusively
to formal indicia statutes and court decisions. That approach disregards the possibility that law has a disciplining function long
before cases get to court, and even when no case is ever filed, a reality to which anyone who has worked in the
executive branch will attest. Executive officials generally cannot know in advance whether court review will be strict or deferential, and
that uncertainty itself has a deterrent effect on the choices they make. There are plenty of reasons why executive lawyers generally take
legal limits seriously: they take an oath and are acculturated to do so, they know that claims of illegality can undermine their programmatic
objectives, and they cannot predict when they will end up in court. Similarly, in focusing on statutes and their enforcement by courts, Posner
and Vermeule disregard the considerable checking function that Congress plays through means short of formal statutes, such
as by holding oversight hearings, requesting information about or investigations of doubtful executive practices, or restricting federal
expenditures. President Obama, who has had to fight tooth and nail with an obstructionist Congress on his every initiative, from economic reform
to health care to closing Guantanamo, would certainly be surprised to learn that his power is unbound. At the same time, Posner and

Vermeule have an unrealistically romantic view of the constraining force of politics. The politics they identify consists
solely of the fact that presidents must worry about election returns, and must cultivate credibility and trust among the electorate. There are several
reasons to doubt that these political realities are sufficient to guard against executive overreaching. First, and most fundamentally, while the

democratic process is well designed to protect the majoritys rights and interests, it is terrible at protecting the rights
of minorities, and even worse at protecting the rights of foreign nationals, who have no say in the political process. In times of crisis, the
executive nearly always selectively sacrifices the rights of foreign nationals, often defending its actions by claiming that they dont deserve the
same rights that we do. To say the rule of law is superfluous because we have elections is to relegate foreign nationals, and

minorities generally, to largely unchecked abuse. The political process did nothing to protect the foreign nationals
rounded up during the Palmer Raids of 1919, the Japanese nationals and Japanese Americans interned during World War II, or the
Arab and Muslim immigrants detained and abused after September 11Second, the ability of the political process to
police the executive is hampered by secrecy. Much of what the executive does, especially in times of crisis, is secret, and even when
some aspects of executive action are public, its justifications often rest on grounds that are assertedly secret. Courts and Congress have at
least some ability to pierce that veil and to insist on accountability. Absent legal rights , such as those created by the
Freedom of Information Act, the public has virtually no ability to do so . Third, the political process is a blunt-edged sword.
Presidential elections occur only once every four years, and necessarily encompass a broad range of issues. They are therefore unlikelyto be
effective at addressing specific abuses of power. Voters concerns about abstract institutional issues such as executive power

may clash with their interests on the substantive merits of particular issues , such as whether to use military force in support of
Libyan rebels. There is no guarantee that citizens will separate these issues in their minds, and no reason to believe that
if they do so, they will favor abstract institutional concerns over specific policy preferences . Fourth, the political
process is notoriously focused on the short term, while structural issues of separation of powers generally serve
long-term values. It was precisely because ordinary politics tend to be short-sighted that the framers adopted a
constitutional democracy. A constitution identifies those values that society understands as important to preserve for the long term, but
knows it will be tempted to sacrifice in the short term. If ordinary politics were sufficient to protect such concerns, we would not need a
constitution in the first place.

Critical approaches to the law fail working within legal restrictions is key to positive jurisprudence
Litowitz 97 (Douglas, Prof of Law @ Ohio Northern University College of Law, Postmodern philosophy and law, p.
5-6)

In chapter 8 I argue that although the postmodern treatment of law is useful as a critique or "check" against the
existing terms and concepts within both the practice of law and the enterprise of mainstream legal scholarship, it
nevertheless fails to offer a positive jurisprudence . Although various postmodern thinkers have met with varying
degrees of success, none have set forth a workable, normative vision for the reform of the legal system. I argue that
postmodern legal theory correctly points out that we can no longer naively rely on the foundations once offered in
support of our legal system, and that we must perform a genealogy and deconstruction of our existing legal
concepts. But this interesting critical effort is accompanied by a less successful effort to build a new vision for the
law . When postmodern antifoundationalism is wedded to an external perspective on the legal system, the result is a
line of thought which is of limited value to the players within the legal system, who must decide cases and enact
statutes from an internal perspective. While I am generally critical of postmodern legal theory, I nevertheless
attempt to explain four significant contributions postmodernism can make to legal theory.

Perm Solves 1ar (Internal/External)

The permutation solves - combining internal approaches to the law with external criticism creates a fusion of
horizons that alleviates the deficiencies in both
Litowitz 98 (Douglass, Visiting Assistant Professor, Chicago-Kent College of Law, "INTERNAL VERSUS
EXTERNAL PERSPECTIVES ON LAW: TOWARD MEDIATION,"
http://www.law.fsu.edu/journals/lawreview/frames/261/litofram.html)

Legal doctrine and legal practice can be understood from either an internal or external perspective.[1] The internal
perspective is mandatory for judges and lawyers who work within the legal system. In their official capacity, these participants in the system are
required to view the law as a set of rules with legitimacy and moral authority. By contrast, the external perspective predominates among
sociologists, economists, and historians who approach law and legal conduct as epiphenomenal, as a reflection of deeper forces unrecognized by
the players within the system. The internal perspective approximates a first-person view or insider's view of the legal system, whereas the
external perspective is a third-person view or observer's view of the law.[2] We can view any area of lawindeed, any judicial

decisionfrom either of these perspectives. For example, we can understand a probate code internally as a coherent set of rules for the
disposition of a decedent's property, or we can examine it externally as a mechanism for perpetuation of class divisions. The internal perspective
accepts the baseline assumptions of probate law, such as the right of inheritance and the rules of descent. By contrast, the external perspective
seeks a deeper explanation for the probate code, perhaps by linking it to the rise of a free-market economy or to a system of patriarchal
domination. In looking at the probate code, an internal theorist might address a question raised in an actual court case, such as

whether the courts should enforce an undated will. The external theorist might ask, How does probate law perpetuate
poverty, racism, and class divisions? This simple example illustrates that internal theory is useful to practicing lawyers because it shares their
uncritical attitude toward primary legal materials such as cases and statutes. The external perspective seeks a deeper truthit moves
below the positivism assumed in the internal perspective but it does so at the cost of diminished usefulness to the participants
who have to operate within the legal system. Every legal scholar must decide whether to favor an internal or external perspective. For
example, if a law professor wants to write an essay on the doctrine of adverse possession, she faces an immediate problem of orientation. Does
she begin with the internal rules of adverse possessionan open, notorious, and hostile claim of right, or does she try to relativize and demystify
the doctrine as bourgeois ideology? Which of these two perspectives, the internal or external, is appropriate for a legal scholar? Should a legal
scholar assume an internal role and approach legal controversies from a judge's perspective, or should she stand outside the legal arguments and
adopt the posture of a detached social critic? Or is it possible to consider both perspectives simultaneously? Law professors often experience
institutional pressure to take an internal perspective because they are responsible for training young lawyers in the nuts and bolts of legal doctrine
and practice, something that is undercut by an external emphasis on criticism of the law. On the other hand, law professors with critical, feminist,
or Marxist inclinations favor the external perspective because it looks at the larger social context of legal disputes. The question of perspective
has generated fierce disagreement between theorists in the internal and external camps.[3] Legal philosopher Ronald Dworkin has championed
the internal perspective by asserting that jurisprudence must privilege "the judge's viewpoint."[4] Dworkin goes as far as claiming that external
accounts of the law are "impoverished and defective" and "less critical in practice."[5] In contrast, the external perspective is advanced by various
Marxists, critical legal scholars, and postmodernists, who collectively argue that the internal perspective of the participants is distorted, biased, or
ideologically tainted.[6] These two perspectives produce different types of legal theory. Internal thinkers like Dworkin tend to provide
what might be called an "imminent" critique of the law by operating within the existing legal framework. For example,
Dworkin's regular contributions to the New York Review of Books provide judicial-style opinions on why the United States Supreme Court has
either correctly or incorrectly decided a recent case under the precedents and principles before the Court.[7] In contrast, external theorists

provide radical critiques that shake the foundations of the legal edifice or attempt to destabilize an area of law. For example,
Marxists have claimed that crime is largely a social product caused by capitalism and not a matter of individual intent.[8] They also claim that in
a just society criminal treatment would replace punishment with its emphasis on individual criminal blame.[9] Such a perspective is radical

These two perspectives on the law,

the internal and the external, are each structurally deficient when used in isolation . Because law is both an internal,
argumentative practice and an external, social construct, any perspective on law that is purely internal or purely external will be
unworkable precisely because each ignores a fundamental feature of law. An acceptable legal theory allows the
internal and external perspectives to mediate each other dialectically so that a "fusion of horizons" takes place .
because it challenges an entire area of law and refuses to work within the established precedents.

This Essay suggests some ways in which this fusion can be encouraged.

Perm Solves 1ar (A2 Cooption)

Cooptation isnt offensethe alternative is equally at risk for cooptationyou should affirm an optimistic
outlook towards the law to reform and redefine it for positive purposes
Lobel 7 (Orly, Lobel is an Assistant Professor of Law, University of San Diego. LL.M. 2000 (waived), Harvard Law
School; LL.B. 1998, Tel-Aviv University, THE PARADOX OF EXTRALEGAL ACTIVISM: CRITICAL LEGAL
CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, 120 Harv. L. Rev. 937)

A critique of cooptation often takes an uneasy path. Critique has always been and remains not simply an intellectual exercise but a political and
moral act. The question we must constantly pose is how critical accounts of social reform models contribute to our ability to produce scholarship
and action that will be constructive. To critique the ability of law to produce social change is inevitably to raise the question

of alternatives. In and of itself, the exploration of the limits of law and the search for new possibilities is an insightful field of inquiry.
However, the contemporary message that emerges from critical legal consciousness analysis has often resulted in the
distortion of the critical arguments themselves. This distortion denies the potential of legal change in order to illuminate what
has yet to be achieved or even imagined. Most importantly, cooptation analysis is not unique to legal reform but can be
extended to any process of social action and engagement. When claims of legal cooptation are compared to possible alternative
forms of activism, the false necessity embedded in the contemporary [*988] story emerges - a story that privileges informal extralegal forms as
transformative while assuming that a conservative tilt exists in formal legal paths. In the triangular conundrum of "law and social change," law is
regularly the first to be questioned, deconstructed, and then critically dismissed. The other two components of the equation - social and change are often presumed to be immutable and unambiguous. Understanding the limits of legal change reveals the dangers of absolute reliance on one
system and the need, in any effort for social reform, to contextualize the discourse, to avoid evasive, open-ended slogans, and to develop greater
sensitivity to indirect effects and multiple courses of action. Despite its weaknesses, however, law is an optimistic discipline. It

operates both in the present and in the future. Order without law is often the privilege of the strong. Marginalized groups have
used legal reform precisely because they lacked power . Despite limitations, these groups have often successfully
secured their interests through legislative and judicial victories . Rather than experiencing a disabling disenchantment with the
legal system, we can learn from both the successes and failures of past models, with the aim of constantly redefining the
boundaries of legal reform and making visible law's broad reach .
Engagement with the law is crucialthe legal code acts as a translator that can control the excesses of
social power
Flynn 4 (Jeffrey Flynn, Middlebury College, Communicative Power in Habermass Theory of Democracy,
EUROPEAN JOURNAL OF POLITICAL THEORY v. 3 n. 4, 2004, p. 439.)

While The Theory of Communicative Action focused on aspects of the colonization of the lifeworld by the system,
the deliberative politics of Between Facts and Norms depicts a way in which the normative resources of the
lifeworld, through the medium of law, can be marshaled to effectively contend with money and power . According
to Habermas, law acts as a transformer, taking the normative messages of ordinary language and translating them
into the complex legal code which, while open to normative reasons, can also communicate with the functional
steering media of money and power. While Habermas had earlier claimed that the most we could hope for was a
democratic dam against the colonizing encroachment of system imperatives on areas of the lifeworld, in Between
Facts and Norms the function of law goes beyond that.22 Indeed, law functions as a hinge between system and
lifeworld, with a much more significant role: The legal code not only keeps one foot in the medium of ordinary
language, through which everyday communication achieves social integration in the lifeworld; it also accepts
messages that originate there and puts these into a form that is comprehensible to the special codes of the powersteered administration and the money-steered economy. To this extent, the language of law, unlike the moral
communication restricted to the lifeworld, can function as a transformer in the society-wide communication

circulating between system and lifeworld. While the legal system is embedded in the social contexts of the
lifeworld, it is also able to relate functional systems in a way that unmediated ordinary language cannot.

A2 Reformism Fails
Pragmatic steps are necessary to solveintermediate reforms demonstrate the viability of a fuller
transformation
Wright 7 (Erik Olin Wright, Professor, Sociology, University of Wisconsin, Guidelines for Envisioning Real
Utopias, SOUNDSINGS, 407, www.ssc.wisc.edu/~wright/Published%20writing/Guidelines-soundings.pdf)

5. Waystations The final guideline for discussions of envisioning real utopias concerns the importance of waystations. The

central problem
of envisioning real utopias concerns the viability of institutional alternatives that embody emancipatory values, but
the practical achievability of such institutional designs often depends upon the existence of smaller steps,
intermediate institutional innovations that move us in the right direction but only partially embody these values.
Institutional proposals which have an all-or-nothing quality to them are both less likely to be adopted in the first place,
and may pose more difficult transition-cost problems if implemented. The catastrophic experience of Russia in the shock therapy approach to
market reform is historical testimony to this problem. Waystations are a difficult theoretical and practical problem because there are many
instances in which partial reforms may have very different consequences than full- bodied changes. Consider the example of unconditional basic
income. Suppose that a very limited, below-subsistence basic income was instituted: not enough to survive on, but a grant of income
unconditionally given to everyone. One possibility is that this kind of basic income would act mainly as a subsidy to employers who pay very low
wages, since now they could attract more workers even if they offered below poverty level earnings. There may be good reasons to institute such
wage subsidies, but they would not generate the positive effects of a UBI, and therefore might not function as a stepping stone. What we

ideally want, therefore, are intermediate reforms that have two main properties: first, they concretely demonstrate the virtues
of the fuller program of transformation, so they contribute to the ideological battle of convincing people that the alternative is credible
and desirable; and second, they enhance the capacity for action of people, increasing their ability to push further in the
future. Waystations that increase popular participation and bring people together in problem-solving deliberations for collective purposes are
particularly salient in this regard. This is what in the 1970s was called nonreformist reforms : reforms that are possible within
existing institutions and that pragmatically solve real problems while at the same time empowering people in ways
which enlarge their scope of action in the future .

Alt Fails 2ac

Giving up on the transformative potential of institutional legal reform creates a higher level of cooptation and
complacency the alt fails
Lobel 7 (Orly Lobel, Assistant Professor of Law, University of San Diego, THE PARADOX OF EXTRALEGAL
ACTIVISM: CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law
Review, 2007, Vol. 120)

Both the practical failures and the fallacy of rigid boundaries generated by extralegal activism rhetoric permit us to broaden our inquiry to
the underlying assumptions of current proposals regarding transformative politics that is, attempts to produce meaningful changes in the
political and socioeconomic landscapes. The suggested alternatives produce a new image of social and political action. This vision rejects a

shared theory of social reform, rejects formal programmatic agendas, and embraces a multiplicity of forms and
practices. Thus, it is described in such terms as a plan of no plan,211 a project of pro- jects,212 anti-theory theory,213 politics rather than
goals,214 presence rather than power,215 practice over theory,216 and chaos and openness over order and formality. As a result, the
contemporary message rarely includes a comprehensive vision of common social claims, but rather engages in the description of fragmented
efforts. As Professor Joel Handler argues, the commonality of struggle and social vision that existed during the civil rights movement has
disappeared.217 There is no unifying discourse or set of values, but rather an aversion to any metanarrative and a resignation from theory.
Professor Handler warns that this move away from grand narratives is self-defeating precisely because only certain parts of the
political spectrum have accepted this new stance: [T]he opposition is not playing that game . . . . [E]veryone else is operating as if there were
Grand Narratives . . . .218 Intertwined with the resignation from law and policy, the new bromide of neither left nor right has become
axiomatic only for some.219 The contemporary critical legal consciousness informs the scholarship of those who are

interested in progressive social activism, but less so that of those who are interested , for example, in a more
competitive securities market. Indeed, an interesting recent development has been the rise of conservative public interest
lawyer[ing].220 Although public interest law was originally associated exclusively with liberal projects, in the past three decades conservative
advocacy groups have rapidly grown both in number and in their vigorous use of traditional legal strategies to promote their causes.221 This
growth in conservative advocacy is particularly salient in juxtaposition to the decline of traditional progressive advocacy. Most recently, some
thinkers have even suggested that there may be something inherent in the lefts conception of social change focused as it is on participation
and empowerment that produces a unique distrust of legal expertise.222 Once again, this conclusion reveals flaws parallel to the original
disenchantment with legal reform. Although the new extralegal frames present themselves as apt alternatives to legal reform

models and as capable of producing significant changes to the social map, in practice they generate very limited
improvement in existing social arrangements . Most strikingly, the cooptation effect here can be explained in terms of the most
profound risk of the typology that of legitimation. The common pattern of extralegal scholarship is to describe an inherent instability in
dominant structures by pointing, for example, to grassroots strategies,223 and then to assume that specific instances of counterhegemonic
activities translate into a more complete transformation. This celebration of multiple micro-resistances seems to rely on an
aggregate approach an

idea that the multiplication of practices will evolve into something substantial . In fact, the myth
of engagement obscures the actual lack of change being produced , while the broader pattern of equating extralegal
activism with social reform produces a false belief in the potential of change. There are few instances of meaningful
reordering of social and economic arrangements and macro-redistribution. Scholars write about decoding what is really happening, as though the
scholarly narrative has the power to unpack more than the actual conventional experience will admit.224 Unrelated efforts become related and
part of a whole through mere reframing. At the same time, the elephant in the room the rising level of economic inequality is left
unaddressed and comes to be understood as natural and inevitable.225 This is precisely the problematic process that critical theorists decry as
losers self-mystification, through which marginalized groups come to see systemic losses as the product of their own actions and thereby begin
to focus on minor achievements as representing the boundaries of their willed reality. The explorations of micro-instances of activism are often
fundamentally performative, obscuring the distance between the descriptive and the prescriptive. The manifestations of extralegal

activism the law and organizing model; the proliferation of informal, soft norms and norm-generating actors; and the celebrated, separate
nongovernmental sphere of action all produce a fantasy that change can be brought about through small-scale,
decentralized transformation. The emphasis is local, but the locality is described as a microcosm of the whole and the audience is national
and global. In the context of the humanities, Professor Carol Greenhouse poses a comparable challenge to ethnographic studies from the 1990s,
which utilized the genres of narrative and community studies, the latter including works on American cities and neighborhoods in trouble.226 The
aspiration of these genres was that each individual story could translate into a time of the nation body of knowledge and motivation.227 In
contemporary legal thought, a corresponding gap opens between the local scale and the larger, translocal one. In reality, although there has been a
recent proliferation of associations and grassroots groups, few new local-statenational federations have emerged in the United States since the
1960s and 1970s, and many of the existing voluntary federations that flourished in the mid-twentieth century are in decline.228 There is,

therefore, an absence of links between the local and the national, an absent intermediate public sphere, which has been termed the missing
middle by Professor Theda Skocpol.229 New

social movements have for the most part failed in sustaining coalitions or
producing significant institutional change through grassroots activism.

Alt Fails 1ar

External critiques of the law fail nihilistically ignore the need for pushing the law in particular directions
Litowitz 00 (Douglas, Visiting Assistant Professor, Florida Coastal School of Law, "Postmodernism without the
'Pomobabble'," 2 Fl. Coastal L.J. 41, lexis)

Postmodern theory offers an

external critique of the legal system because it refuses to speak in the language games and terminology
differs greatly from the internal

which are used (often unreflectively) by the officials inside the legal system. The external perspective

viewpoint adopted in mainstream Anglo-American jurisprudence, especially in the influential work of Ronald Dworkin, who has referred to the
external perspective as 'perverse.' n132 Most legal scholars uncritically adopt the internal perspective and then set about solving problems from
within a closed universe of positive law, thereby [*75] narrowing the professor's vision within the limits of the existing system. Postmodernism
eschews this in favor of an external perspective, which suffers from a different problem, namely that the external perspective

is very far removed from the actual language games in which law is practiced. In other words, the practice of law is
approached from such a critical distance that it is left unchanged . For example, a postmodern deconstruction of
property law does little to help tenants who are abused by landlords, unless the deconstruction is wedded to a larger vision for
reform of the law. Even if the postmodernists are capable of reducing the law to rhetoric or power relations, we still need to
decide legal cases, to push the law in a particular direction . And here is where postmodernism comes up short, because its
negative thrust renders it incapable of getting started on a program of reform, despite its power as a critical tool. The failure of postmodernism to
recommend a program for legal change is related to a second problem--the rejection of all foundations, both metaphysical and contingent. As we
saw earlier, postmodern legal theory begins with a critique of Enlightenment concepts such as the autonomous legal subject,
natural law, and God, but when

the postmodern critique of these foundations turns into a full-blown rejection, postmodernism
seems to nihilistically discount any basis on which to ground a vision of a just political order.
Extralegal activist criticism fails cant produce substantive change and risks cooption
Lobel 7 (Orly Lobel, Assistant Professor of Law, University of San Diego, THE PARADOX OF EXTRALEGAL
ACTIVISM: CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law
Review, 2007, Vol. 120)

Professor Handler concludes that this failure is due in part to the ideas of contingency, pluralism, and localism that
are so embedded in current activism.230 Is the focus on small-scale dynamics simply an evasion of the need to
engage in broader substantive debate? It is important for next-generation progressive legal scholars, while
maintaining a critical legal consciousness, to recognize that not all extralegal associational life is transformative. We
must differentiate, for example, between inward-looking groups, which tend to be self- regarding and depoliticized,
and social movements that participate in political activities, engage the public debate, and aim to challenge and
reform existing realities.231 We must differentiate between professional associations and more inclusive forms of
institutions that act as trustees for larger segments of the community.232 As described above, extralegal activism
tends to operate on a more divided and hence a smaller scale than earlier social movements, which had national
reform agendas. Consequently, within critical discourse there is a need to recognize the limited capacity of smallscale action. We should question the narrative that imagines consciousness-raising as directly translating into
action and action as directly translating into change. Certainly not every cultural description is political. Indeed, it is
questionable whether forms of activism that are opposed to programmatic reconstruction of a social agenda should
even be understood as social movements. In fact, when groups are situated in opposition to any form of
institutionalized power, they may be simply mirroring what they are fighting against and merely producing moot
activism that settles for what seems possible within the narrow space that is left in a rising convergence of
ideologies. The original vision is consequently coopted, and contemporary discontent is legitimated through a
process of self-mystification.

The alternative fails leaves the internal workings of the legal apparatus untouched working with the law is
essential

Litowitz 98 (Douglass, Visiting Assistant Professor, Chicago-Kent College of Law, "INTERNAL VERSUS
EXTERNAL PERSPECTIVES ON LAW: TOWARD MEDIATION,"
http://www.law.fsu.edu/journals/lawreview/frames/261/litofram.html)

As for

totalizing critiques of the law offered by external thinkers like Marx, Nietzsche, and Foucault, the intended goal is to
destabilize or criticize the entire legal systemor to at least question an entire area of law, such as property law or criminal law. This
approach can be seen in Marx's claim that jurisprudence is a reflection of class interests,[46] in Nietzsche's claim that democracy and equal rights
constitute a type of "slave morality,"[47] and in Foucault's claim that the liberal guarantees of freedom and autonomy are bogus.[48] These

thinkers seem to be saying that the entire legal tradition is rotten, that it is built on a faulty or deceptive edifice; so any tinkering
within the system that is short of a revolution will be as fruitless as rearranging deck chairs on the Titanic. Paradoxically, this
strategy often fails completely because the critique is so far removed from the practice of law that it leaves the internal
workings of the legal apparatus untouched . As Wittgenstein said in a similar point about philosophy, "It leaves everything as it
is."[49] This point was captured in Michael Walzer's quip about Michel Foucault: "[W]hen critical distance stretches into infinity, the critical
enterprise collapses."[50] To see this in more detail, consider Nietzsche's claim that the movement toward equal rights is a symptom of "slave
morality," a leveling down of great individuals into the herd.[51] This claim is certainly not going to be of much immediate help to the players
inside the legal system who must decide cases and enact laws. Nietzsche's argument may be of some use to legislators in deciding whether to
enact welfare laws or affirmative action schemes,[52] for example, but Nietzsche's claim about "slave morality" is not couched in the language
games typically used by judges and legislators who speak about constitutional rights, compelling state interests, and balancing tests. If Nietzsche's
work is to affect the legal system, it must do so in a very roundabout way, perhaps by functioning as a reminder that our push toward equality
might have a downside, or by causing legislators to stand back and take a globally critical perspective on the legal system. In other words,
Nietzsche's external critique must somehow be translated or mediated so that it can affect the internal practice of the law, perhaps by forcing a
rethinking of foundational notions in the legal systemjustice, property, mercy, punishment, and the adversarial system. Although a large-

scale critique of the legal system may have some romantic appeal, it is difficult to see how any political or legal theory
apart from, say, anarchismcould be derived from such an attitude of distrust toward our practices and traditions. Hilary
Putnam summarized this point nicely: Many thinkers have fallen into Nietzsche's error of telling us they had a "better" morality than the entire
tradition; in each case they only produced a monstrosity, for all they could do was arbitrarily wrench certain values out of their context while
ignoring others. We can only hope to produce a more rational conception of rationality or a better conception of morality if we operate from
within our tradition . . . .[53] While we must interrogate our traditions, there is no sense in escaping them altogether because that would leave us
homeless. As Richard Rorty is fond of saying, " We have

to start from where we are ."[54] To paraphrase Putnam, we can only hope
to form a more rational legal system by working within the present system without fetishizing it .[55] This point can be
illustrated by looking at the failures and successes of external feminist theory. When Catharine MacKinnon pronounces that "the state is
male,"[56] the critique is so total that it seems to leave no room for changing the system without displacing it entirely. However, this position is
belied by MacKinnon's undisputed efforts at reforming this "male" system from within.[57] Feminist theory succeeds when it steps into legal
doctrine and points out, for example, that the legal definition of rape contains a male bias (in requiring physical resistance by rape victims) or that
the public-private split which runs through the law has traditionally left women in an unprotected private realm.[58] Here, as elsewhere, external
critics need to translate or mediate their message so that the message can register on the internal side of the law.

Impact Turn/Takeout: Key to Welfare and No War Impact

Surveillance State Key to Welfare Programs
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
The National Surveillance State is a way of governing. It is neither the product of emergency nor the product of war.
War and emergency are temporary conditions. The National Surveillance State is a permanent feature of governance,
and will become as ubiquitous in time as the familiar devices of the regulatory and welfare states. 17 Governments
will use surveillance, data collection, and data mining technologies not only to keep Americans safe from terrorist
attacks but also to prevent ordinary crime and deliver social services.' 8 In fact, even today, providing basic social
services-like welfare benefits-and protecting key rights-like rights against employment discrimination-are difficult,
if not impossible, without extensive data collection and analysis. 19 Moreover, much of the surveillance in the
National Surveillance State will be conducted and analyzed by private parties. 20 The increased demand for-and the
in- creased use of-public and private surveillance cannot be explained or justified solely in terms of war or
emergency. 2

Increased Accountability Solves

Increasing accountability solves abuses
Setty, 15
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability,
Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)
Reliance on sporadic leaks to trigger genuine accountability is structurally problematic. n107 Our reliance on leaks
thus far should force us to reconsider the extreme secrecy under which intelligence-gathering programs, like the
NSA Metadata Program, are administered, and to consider means by which institutional actors can exert meaningful
and regular oversight and control over these programs. Such change would force politicians to take
ownership over secret counterterrorism programs, weighing their expediency against
possible constitutional defects or the judgment of public opinion. An atmosphere in which
accountability mechanisms are not merely ersatz pending an illegal leak could provide space for genuine public
discourse and at least the possibility of greater protection of civil liberties.

Reforms Work/Perm
By distinguishing between an authoritarian and democratic model of surveillance we can ensure that the
impacts of the surveillance state are avoided
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
If some form of the National Surveillance State is inevitable, how do we continue to protect individual rights and
constitutional government? Today's challenge is similar to that faced during the first half of the twentieth century,
when government transitioned into the Welfare State and the National Security State. Americans had to figure out
how to tame these new forms of governance within constitutional boundaries. It is no accident that this period
spawned both the New Deal-with its vast increase in government power-and the Civil Rights Revolution. The more
power the state amasses, the more Americans need constitutional guarantees to keep governments honest and
devoted to the public good. We might begin by distinguishing between an authoritarian information state and a
democratic information state.6 8 Authoritarian information states are information gluttons and information misers.
Like gluttons they grab as much information as possible because this helps maximize their power. Authoritarian
states are information misers because they try to keep the information they collect-and their own operationssecret
from the public. They try to treat everything that might embarrass them or undermine their authority as state secrets,
and they multiply secret rules and regulations, which lets them claim to obey the law without having to account for
what they do. In this way they avoid accountability for violating people's rights and for their own policy failures.
Thus, information gluttony and information miserliness are two sides of the same coin: both secure governments'
power by using information to control their populations, to prevent inquiry into their own operations, to limit
avenues of political accountability, and to facilitate self-serving propaganda. 69 By contrast, democratic information
states are information gourmets and information philanthropists. Like gourmets they collect and collate only the
information they need to ensure efficient government and national security. They do not keep tabs on citizens
without justifiable reasons; they create a regular system of checks and procedures to avoid abuse. They stop
collecting information when it is no longer needed and they discard information at regular intervals to protect
privacy. When it is impossible or impractical to destroy information-for example, because it is stored redundantly in
many different locations-democratic information states strictly regulate its subsequent use. If the information state is
unable to forget, it is imperative that it be able to forgive. Democratic information states are also information
philanthropists because they willingly distribute much valuable information they create to the public, in the form of
education, scientific research, and agricultural and medical information. They allow the public access to information
about their laws and their decision-making processes so that the public can hold government officials accountable if
they act illegally or arbitrarily or are corrupt or inefficient. They avoid secret laws and secret proceedings except
where absolutely necessary. Democratic states recognize that access and disclosure help prevent governments from
manipulating their citizens. They protect individual privacy because surveillance encourages abuses of power and
inhibits freedom and democratic participation. Thus being an information gourmet and an information philanthropist
are also connected: both help keep governments open and responsible to citizens; both further individual autonomy
and democracy by respecting privacy and promoting access to knowledge.

Congressional Action Solves

Congressional Action is key to solving the intelligence state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
Congress must pass new superstatutes to regulate the collecttion, collation, purchase, and analysis of data. These
new superstatutes would have three basic features. First, they would restrict the kinds of data governments may
collect, collate, and use against people. They would strengthen the very limited protections of e-mail and digital
business records, and rein in how the government purchases and uses data collected by private parties. They would
institutionalize government "amnesia" by requiring that some kinds of data be regularly destroyed after a certain
amount of time unless there were good reasons for retaining the data. Second, the new superstatutes would create a
code of proper conduct for private companies that collect, analyze, and sell personal information. Third, the new
superstatutes would create a series of oversight mechanisms for executive bureaucracies that collect, purchase,
process, and use information

Oversight Solves
Oversight of the executive branch is the most important thing we can do to solve the intelligence state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
Oversight of executive branch officials may be the single most important goal in securing freedom in the National
Surveillance State. Without appropriate checks and oversight mechanisms, executive officials will too easily slide
into the bad tendencies that characterize authoritarian information states. They will increase secrecy, avoid
accountability, cover up mistakes, and confuse their interest with the public interest.

Judicial Independence Solves Surveillance State

Judicial independence is key to solving the surveillance state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
Judicial oversight need not require a traditional system of warrants. It could be a system of prior disclosure and
explanation and subsequent regular reporting and minimization. This is especially important as surveillance
practices shift from operations targeted at individual suspected persons to surveil lance programs that do not begin
with identified individuals and focus on matching and discovering patterns based on the analysis of large amounts of
data and contact information.81 We need a set of procedures that translate the values of the Fourth Amendment
(with its warrant requirement) and the Fifth Amendment's Due Process Clause8 2 into a new technological context.
Currently, however, we exclude more and more executive action from judicial review on the twin grounds of secrecy
and efficiency. The Bush administration's secret NSA program is one example; the explosion in the use of
administrative warrants that require no judicial oversight is another.8 3 Yet an independent judiciary plays an
important role in making sure that zealous officials do not overreach. If the executive seeks greater efficiency, this
requires a corresponding duty of greater disclosure before the fact and reporting after the fact to determine whether
its surveillance programs are targeting the right people or are being abused. Judges must also counter the executive's
increasing use of secrecy and the state secrets privilege to avoid accountability for its actions. Executive officials
have institutional incentives to label their operations as secret and beyond the reach of judicial scrutiny. Unless
legislatures and courts can devise effective procedures for inspecting and evaluating secret programs, the Presidency
will become a law unto itself.

Executive oversight Solves Surveillance State

Oversight of the executive branch is key to solving the surveillance state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papers
Given the limits of legislative and judicial oversight, oversight within the executive branch will prove especially
crucial. Congress can design institutional structures that require the executive to police itself and make regular
reports about its conduct. For example, if Congress wants to bolster legal protections against warrantless
surveillance, it might create a cadre of informational ombudsmen within the executive branchwith the highest
security clearances-whose job is to ensure that the government deploys information collection techniques legally and
nonarbitrarily.8 4 Unfortunately, the Bush administration has made extreme claims of inherent presidential power
that it says allow it to disregard oversight and reporting mechanisms.85 Rejecting those claims about presidential
power will be crucial to securing the rule of law in the National Surveillance State