CIA Affirmative

1ac

plan

The United States federal government should curtail executive surveillance of Congressional intelligence committee activities.

separation of powers

Senate investigations of CIA activities are clouded by CIA surveillance – they monitor, distort, and delete information in Senate Committee hearings by hacking congressional serversRT 15 (“White House knew CIA spied on Senate torture investigators – report”. 16 January 2015. http://rt.com/usa/223179-white-house-cia-senate-spying)//JuneC//A report by the CIA inspector general allegedly shows that the agency consulted the White House before directing officers to spy on Senate Intelligence Committee staffers investigating the CIA’s post-9/11 torture program. The inspector general’s report – which was completed in July but only released Wednesday – reveals a Memorandum for the Record written by an agency lawyer, which says that CIA Director John Brennan spoke with the White House Chief of Staff about how sensitive internal documents (the so-called Panetta Review) had wound up in the Senate investigator’s hands, the Huffington Post reported. The memo’s author cautions the director that speaking with the White House further could be viewed later as the White House interfering in the CIA’s surveillance on Senate staffers. CIA director John Brennan’s alleged consultation with White House Chief of Staff Denis McDonough also came before it was revealed to Sen. Dianne Feinstein (D-Calif.), then chair of the Senate Intelligence Committee, that the agency was

keeping tabs on the torture investigation. Feinstein said in March 2014 that the CIA’s computer search on Senate investigators likely violated the constitutional separation of powers , and that the CIA made some documents that were previously provided inaccessible . She also stated that the removal of the documents was ordered by the White House , adding that when the committee approached the White House, it denied giving the CIA any such order. “We have no way to determine who made the Internal Panetta Review documents available to the committee,” she said. “Further, we don’t know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower.” The Panetta Review was a series of more than 40 draft documents related to the CIA’s detention and interrogation program, and contained classified information derived from sensitive sources and methods. Reportedly, the inspector general report adds that two lawyers and three IT personnel sifted through a walled-off hard drive on the Senate’s side of a shared computer network and determined that the documents did exist on the Senate staffer’s side. The lawyer’s memo said Brennan ordered the team to “pursue all available options” to determine how Senate investigators had accessed the material, a fact Brennan denies. He says he only asked lawyers how staff had obtained the internal CIA material. The White House declined to comment when the Huffington Post contacted them about allegations in the inspector general’s report, as did the CIA.

Earlier this week, a CIA accountability board said the agency did not do anything wrong when it searched investigators’ files. The panel found that the CIA made a “mistake,” but its behavior "did not reflect malfeasance, bad faith, or the intention to gain improper access to SSCI [Senate Select Committee on Intelligence] confidential, deliberative material."

This wrecks CIA oversight of the CIA – Senate committee judgement is severely clouded by this surveillanceFreeman 5/8 (Alex. Solicitor (English law) at Hill Dickinson LLP, Contributor - Legal Affairs at Business Traveller UK, Senior Executive Advisor at CAPA. “Senate Intelligence Committee Demands Apology From CIA, Ignores Torture Victims”. 8 May 2015. The Fifth Column. http://thefifthcolumnnews.com/2015/05/senate-intelligence-committee-demands-apology-from-cia-ignores-torture-victims)//JuneC//

Washington, DC (TFC) – CIA Director John Brennan has admitted that the spy agency infiltrated the computers of the Senate Intelligence Committee in January 2014, but has neither admitted that the actions were improper nor has he committed to refraining from hacking Congressional files again . In a classified letter, Intelligence Committee Senators Ron Wyden (D-OR), Martin Heinrich (D-NM), and Mazie Hirono (D-Hawaii) have demanded that the CIA never again violate the Constitutional separation between the Executive and Legislative branches. At the time, the Intelligence Committee was gathering evidence and testimony on the use of torture by the CIA. Through Fifth Column investigations, we have learned that the use of inhumane methods in Iraq have both violated the Geneva Conventions, and have led directly to the increase in violent extremists and beheadings in Iraq. In an attempt to stay one step ahead

of the Senate Committee, CIA operatives infiltrated the computers of staff members of the Senate Committee. Dianne Feinstein said in a release, “The bottom line is that the CIA accessed a Senate Intelligence Committee computer network without authorization, in clear violation of a signed agreement between the committee and former Director Leon Panetta.” Between January and July of 2014, Director Brennan repeatedly told both Congress and the American public that no such data breach had occurred. However, by the end of July, he began to come clean under mounting pressure. An Inspector General investigation quickly led Brennan to apologize to Feinstein and Committee Chair Saxby Chambliss for acting “in a manner inconsistent with the common understanding” that no such violations would occur, a reference to the letter mentioned by Feinstein. Feinstein herself viewed the apology as “positive first

steps” in resolving the conflict. Now, nearly a year later, the Torture Report has been released and the Senate Intelligence Committee is still more concerned with the CIA hacks of its computers than the revelations that members of the American government and military were responsible for war crimes, torture, and the radicalization of an occupied people. According to a press release issued by Senator Wyden’s office today, the three Senators said to Brennan in their letter, “In our judgment your handling of this matter has undermined that confidence. We call on you to acknowledge that this search was improper, and commit that these unacceptable actions will not be repeated.” The Senators have asked Brennan to respect US laws and Constitution, maintain the appropriate checks and balances between branches, and retract incorrect statements made between January and July of 2014. Since the data breach occurred, the Justice Department has investigated whether or not to file any charges against involved CIA operatives or complicit Senate staffers. While the investigation concluded without any charges being filed, Senator Wyden has previously stated that any such act perpetrated by a 19-year-old would have resulted in severe jail time for the hackers. Wyden similarly maintains that similar infiltrations of cell phones and computers owned by private citizens should be abandoned by the US Government and its agencies. The acknowledgement of government hacking of citizen data stems from Section 215 of the Patriot Act, which is up for renewal in June. So far, Wyden’s office will not predict if it will be renewed, but does cite growing opposition to bulk data collection. The recent ruling by the Second Court of Appeals may bolster Congressional support to let Section 215 expire. In January, about the time that Brennan was speaking to the Council on Foreign Relations about the threat of hackers around the world, ISIS and Iranian nuclear weapons, Wyden released a statement regarding torture. His statement indicates that the CIA is trying to pull all copies of the report, and cover up its findings. Wyden states: The CIA’s leadership continues to double down on

denials about the agency’s history on torture, but their claims are contradicted by their own internal review. They were so concerned about the Intelligence Committee finding the Panetta Review that they even spied on Senate files to see if the committee had obtained it. The Fifth Column News agrees completely with Senator Wyden, when he says that the report should not be covered up or retracted. Whether the Patriot Act is renewed, or anyone in the CIA faces consequences for hacking into Senate intelligence Committee computers, or Director Brennan retracts statements

and promises to never hack Congress again, one thing remains unchanged in this entire political theater performance. The major media story and Congressional or public outrage related to the Torture Report is not the fact that Americans committed torturous acts against an occupied population that led to their increased brutality. Instead, the major story is still the CIA spying on Congress, something local and federal agencies do to the American people daily. This, as well, with complete impunity.

Curtailing CIA surveillance of the Senate is key to effective Senate oversight – legal reassurance is keyReichbach 5/8 (Matthew. the editor of the NM Political Report. The former founder and editor of the NM Telegram, Matthew was also a co-founder of New Mexico FBIHOP with his brother and part of the original hirings at the groundbreaking website the New Mexico Independent. “Heinrich wants CIA chief to pledge to not access Senate computers”. 8 May 2015. The NM Political Report. http://nmpoliticalreport.com/3505/heinrich-wants-cia-chief-to-pledge-to-not-access-senate-computers)//JuneC//Three U.S. Senators asked CIA director John Brennan to acknowledge that the agency improperly accessed Senate files and want the director to pledge that it will not happen again. CIA logoU.S. Sen. Martin Heinrich, D-N.M., was one of the three Senators to sign

onto the letter, along with Ron Wyden, D-Ore., and Mazie Hirono, D-Hawaii. All three are members of the Senate Intelligence Committee. “It is vitally important for the American public to have confidence that senior intelligence officials respect US laws and the Constitution, including our democratic system of checks and balances,” the letter to Brennan said. “In our judgment your handling of this matter has undermined that confidence. We call on you to acknowledge that this search was improper, and commit that these unacceptable actions will not be repeated. ” The searches of the computers came as the committee was investigating the CIA for torture of detainees. The report was released in

December of 2014. Heinrich slammed Brennan when the access of the computers was revealed. Heinrich and Wyden have been some of the more vocal critics of the CIA in recent years. In July of 2014, the CIA admitted it had

accessed computers of members of the Senate Intelligence Committee. Brennan apologized. CIA Director John Brennan apologized to Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) and other committee leaders and said he was “committed to correcting any shortcomings” related to the incident, a spokesman for the spy agency said. Brennan has created an “accountability board,” to be chaired by former Sen. Evan Bayh (D-Ind.), to review the inspector general’s findings and recommend disciplinary action, if necessary, spokesman Dean Boyd said. Feinstein, in a statement, called the apology and creation of the accountability board “positive first steps.” Her restrained endorsement suggested that the conflict between the agency and its congressional overseers

may continue. The Senators want more . “In June 2014, senior officials from the FBI, NSA and the Office of the Director of National Intelligence all testified that it would be inappropriate for their agencies to secretly search Senate files without external

authorization,” the letter reads. “To date, however, there has been no public acknowledgement from you or any other CIA official (outside the Office of Inspector General) that this search was improper, nor even a commitment that the CIA will not conduct such searches in the future.” “This is entirely unacceptable.” The full letter is available below. The Senators also said they attached a classified letter “on another topic” where they wanted Brennan to “correct the public record.” That letter was, obviously, not attached to the letter distributed to media.

Untampered Senate oversight of CIA activities is key to reigning them in by creating public accountabilityDilanian 15 (Ken. Associated Press. “Torture Report Provided Rare Public Accountability for CIA”. 9 March 2015. The New York Times. http://www.nytimes.com/aponline/2015/03/09/us/politics/ap-us-overseeing-intelligence-expanded-.html?_r=0)//JuneC//

Washington — In February 2009, the Senate intelligence committee gathered in a soundproof room to learn the stomach-churning details of the brutal interrogations the CIA conducted with its first important al-Qaida prisoners. Committee aides distributed a report based on a review of messages to CIA headquarters from two of the agency’s secret overseas jails. Included was a 25-page chart with a minute-by-minute description of 17 days during which the first detainee, Abu Zubaydah, was kept awake, slammed into walls, shackled in stress positions, stuffed for hours into a small box and waterboarded to the point of unconsciousness. The captive ranted, pleaded and whimpered, an accompanying text said, but he never provided the information about brewing terrorist plots that the CIA thought he had.

Senators were aghast. Some muttered that such horrific acts by Americans should never see the light of day, recalled aides who spoke on condition of anonymity because they could not publicly discuss a classified session. Other senators voiced outrage over how this new account differed from the antiseptic CIA descriptions of “enhanced techniques.” A few weeks later, the committee voted, 14-1, to begin a full investigation into the CIA’s post-Sept. 11 detention and interrogation practices. The resulting report, a summary of which was released in December, was a rare instance of an oversight committee seeking to hold the CIA accountable in a public way . It also was the most detailed critique of the CIA in a generation. And it raised this question: How well run are other CIA programs, such as targeted killing with drones or the secret effort to train and arm Syrian rebels?

Congressional intelligence committees long have been accused of being “captured” by the agencies they oversee. When they do expose and correct problems, it usually happens behind closed doors. Even for those who dispute some of the central conclusions, the 518-page summary of the 6,770-page classified study shows how a rigorous examination of a secret agency can expose misconduct, incompetence and bureaucratic spin . Based on a review of 6 million pages of CIA documents, the classified report covers 12 bound volumes. Senate investigators pored over records few outsiders ever see. Cables, chats, emails, internal memos and interview transcripts detailed not just the official story but the messy behind-the-scenes threads, including internal criticism and office gossip. The early bipartisanship quickly faded. Republicans withdrew from the investigation and at times actively opposed it. Written by Democrats working for California Sen. Dianne Feinstein, then the Senate intelligence committee’s chairwoman, the report concluded that the brutal CIA interrogations failed in every case to produce unique, life-saving, otherwise unavailable intelligence, and that the CIA repeatedly distorted this fact. In dissent, Republicans and CIA officials say the report cherry-picks evidence, obscures context and suffers from the absence of interviews,

which were not possible because of a pending criminal investigation. Still, the investigation forced the spy agency to publicly admit that it mismanaged the interrogation program, failed to punish misconduct and detained people it shouldn’t have. Yet the intelligence committees have never taken a similar look at what is now the premier counterterrorism effort, the CIA’s drone-killing program, according to congressional officials who were not authorized to be quoted discussing the matter. Intelligence committee staff members are allowed to watch videos of CIA drone missile strikes to monitor the agency’s claims that civilian casualties are limited. But these aides do not typically get access to the operational cables, message traffic, interview transcripts and other raw material that forms the basis of a decision to kill a suspected terrorist. Nor have they been able to examine cables, emails and raw reporting to investigate recent perceived intelligence lapses, such as why the CIA failed to predict the swift fall of Arab governments, Russia’s move into Ukraine or the rapid military advance of the Islamic State group. And there have been no public oversight reports on the weak performance of the CIA’s multibillion-dollar

“nonofficial cover” program to set up case officers posing as businessmen, which has met with some criticism. The six-year Senate investigation “illustrates both the strengths and the weaknesses of the oversight process,” said Steven Aftergood, an intelligence expert with the Federation of American Scientists. “It represented a massive allocation of effort, tens of millions of dollars, years of research, millions of documents, all to generate a narrative account that will dominate public understanding of CIA interrogation for decades to come.” But no one has been held accountable for the conduct described in the report, there is nothing in the law that would prevent the CIA from repeating it and there is no prospect of a similar investigation into other covert intelligence programs. Since the underlying CIA records remain secret, there always may be disagreement about whether detainees who were brutalized subsequently provided information important to the hunt for Osama bin Laden, for example, even if it’s clear that CIA got much of its intelligence in that case from other sources. An anti-torture advocate, Georgetown law professor David Cole, wrote recently that he wasn’t convinced by the report’s argument that harsh measures were ineffective in every instance. The latest opinion polls find widespread support for the CIA’s actions and for the notion that the government may occasionally need to torture terrorists. But if the report did not immediately change public sentiments or settle the question of whether CIA torture worked, it clearly documented dozens of instances of the CIA exaggerating and misstating the fruits of these interrogations to justify its actions, including inaccurate testimony to Congress about the bin Laden case. CIA officials reject some of those criticisms but embrace others. “In some instances, we simply failed to live up to the standards that we set for ourselves and that the American people expect of us,” CIA Director John Brennan told reporters at CIA headquarters in December. It is difficult to imagine him uttering those words in the absence of the Senate report.

That’s the only way to limit the authority of the CIA, but their DA’s were non-uniqued by the December reportGorman 14 (Siobhan is an intelligence correspondent at the wall street journal, 7/2, “Why Congress and the CIA Are Feuding”, http://blogs.wsj.com/briefly/2014/07/02/why-congress-and-the-cia-are-feuding-the-short-answer/)//cc

Relations between the Central Intelligence Agency and Congress have deteriorated into hostility—and the bad blood could get worse this summer. A page-one article in The Wall Street Journal examines

the tension over a Senate report on a CIA interrogation program. What’s the controversy about? A three-year Senate intelligence committee investigation into the CIA’s controversial post-9/11 “enhanced interrogation” program produced a report that cited multiple instances of alleged wrongdoing and mismanagement at the CIA. The CIA disputes many of the conclusions of the still-classified report. The CIA has said the Senate committee may have inappropriately obtained a document known as the “Panetta Review,” the CIA’s internal analysis of documents it provided to the committee. The agency made the accusation after a review of computer usage. The Senate committee has called the CIA’s computer review inappropriate, saying it obtained the document properly. The Justice Department is examining competing allegations of wrongdoing by the CIA and the Senate committee. What does the report say? It’s still classified, but officials

have said privately it concludes the CIA misrepresented the program to both the Justice Department and Congress. A central finding disputes the CIA’s claim that interrogations provided information that couldn’t be obtained any other way and that helped thwart terrorist plots. The CIA last June delivered a classified response to the Senate report, arguing that the program was effective and provided critical counterterrorism information. Portions of the report and the CIA’s response are expected to be declassified in coming weeks. What does CIA Director John Brennan say about the report? At his confirmation hearing in 2013, he said the report raised questions about “a lot of the information that I was provided” earlier about the interrogation program. If confirmed as director, he said, he planned to put his stamp on the CIA’s response before it was submitted to the Senate. Since becoming director, Mr. Brennan says, he has concluded the report did show some CIA “shortcomings” and

“failures,” but he also found fault with many of its details and conclusions. Wasn’t the CIA program shut down five years ago? Why does this matter now? The current fight is over how the history of that program will be written, and to what

degree allegations of CIA mismanagement of parts of the program will affect its operations today. Congressional officials

who have read the report say the CIA needs to be held accountable for any wrongdoing. The CIA is seeking to put the matter to rest.

Congressional oversight of the CIA is key to separation of powers – it prevents executive abuses founded on a violation of the speech and debate clauseHorton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and America’s Stealth Warfare” by Scott Horton, Salon, http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)As this controversy developed, it became clear that Senate investigators had read the agency’s own internal review and therefore knew that the agency’s criticisms of the report were specious. This had stung figures at the CIA who were trying to manage the

fallout from its torture and black site programs. The CIA never actually contacted the Senate committee and asked how it had come by the Panetta review. Instead, perhaps convinced that the information had been gained improperly (though that is a strange word to apply to an oversight committee’s examination of documents prepared by the agency it is overseeing), someone at the

agency decided to break into the Senate computers and run searches. On January 15, 2014, Brennan met with Feinstein and had to acknowledge that the CIA had run searches on the Senate computers. Far from apologizing for this intrusion, Brennan stated that he intended to pursue further forensic investigations “to learn more about activities of the committee’s oversight staff.” The Senate committee responded by reminding Brennan that as a matter of constitutional separation of powers, the committee was not subject to investigation by the CIA. It also pressed to know who had authorized the search and what legal basis the CIA believed it had for its actions. The CIA refused to answer the questions. By January 2014, before Feinstein gave her speech, the controversy had reached a fever pitch. Reports that the CIA had been snooping on the Senate committee and had gained unauthorized access to its computers began to circulate in the Beltway media. Through its surrogates, the CIA struck back. Unidentified agency sources asserted that Senate staffers had “hacked into” CIA computers to gain access to the Panetta report and other documents. The staffers had then illegally transported classified information to their Capitol Hill offices, removing it from the secure site furnished by the agency. In addition, the Justice Department had become involved. The CIA inspector general, David Buckley, had reviewed the CIA searches conducted on Senate computers and had found enough evidence of wrongdoing to warrant passing the file to the Justice Department for possible prosecution. Perhaps in a tit-for-tat response and certainly with the aim of intimidating his adversaries, the acting CIA general counsel, Robert Eatinger, had made a referral of his own, this time targeting Senate staffers and apparently accusing them of gaining improper access to classified materials and handling them improperly. Secrecy was unsheathed as a sword against an institution suddenly seen as a bitter foe: the U.S. Congress. Eatinger’s appearance as a principal actor in this drama was revealing. He was hardly an objective figure. A key point for the committee investigators was the relationship between CIA operations and the Department of Justice, and particularly the process the CIA had used to secure opinions from Justice authorizing specific interrogation techniques, including waterboarding, that amounted to torture. As the senior staff attorney in the operations directorate, Eatinger would certainly have played a pivotal role throughout the process leading to the introduction of torture techniques. The Senate investigators concluded that the CIA had seriously misled the Justice Department about the techniques being applied in an effort to secure approvals that would cover even harsher methods than those described, and Eatinger was right at the center of those dealings. Indeed, Eatinger’s name appears 1,600 times in the report. Like many agency figures closely connected with the black sites and torture program, Eatinger had skyrocketed through the agency, ultimately becoming senior career lawyer and acting general counsel. No figure in the agency would have had a stronger interest in frustrating the issuance of the report. All those involved with the torture and black sites program risked being tarnished by the report, but few more seriously than the CIA figures who dealt with the Justice Department. Moreover, other risks were looming on the horizon outside the Beltway. As Eatinger struggled to block the Senate report, courts in Europe were readying opinions concluding that the CIA interrogation program made use of criminal acts of torture and that the black site operations amounted to illegal disappearings. The United States was not subject to the jurisdiction of these courts, but its key NATO allies were, and the courts would soon be pressing them to pursue criminal investigations and bring prosecutions relating to the CIA program. Those involved in the program, including Eatinger, thus risked becoming international pariahs, at risk of arrest and prosecution the instant they departed the shelter of the United States. Feinstein had refused press comment throughout this period, but other sources from the committee or its staff had pushed back with blanket denials of these accusations. U.S. media relished the controversy and presented it in typical “he said/she said” style. But rarely is each view of a controversy equally valid or correct. Indeed, within the agency suppressing media coverage of the highly classified detention and interrogation program was considered a legitimate objective, which helps to account for the numerous distortions, evasions, and falsehoods generated in Langley with respect to it. But the CIA’s campaign against the Senate report was

approaching a high-water mark of dishonesty. As Feinstein ominously noted, these developments had a clear constitutional dimension: “I have grave concerns that the CIA’s search may well have violated the separation of powers principle embodied in the United States Constitution, including the speech and debate clause. It may have undermined the constitutional framework essential to effective oversight of intelligence activities or any other government function.” * A fundamental concept underlying the American Constitution is the delicate

rapport established between Congress and the various agencies of the executive. The massive

government apparatus, including the ballooning intelligence community, is controlled by the executive. Yet the individual agencies, including the CIA—called into existence and defined by acts of Congress—operate using money that Congress gives them, subject to any limitations Congress may apply. The legislative branch exercises specific powers of oversight and inquiry into the work of agencies of the executive, including the right to conduct investigations, to require documents to be produced and employees of the government to appear and testify before it, and to issue reports with its findings and conclusions. Throughout history executives have used the administration of justice as a tool to intimidate and pressure legislators. To protect legislators against this sort of abuse, the Constitution’s speech and debate clause provides a limited form of immunity for members of Congress . The Supreme Court has confirmed that this immunity extends to congressional staffers, such as Senate committee staffers, when they are supporting the work of their employers, and protects them

against charges of mishandling classified information. Feinstein’s suggestion that CIA activities had violated the Constitution and several federal statutes was on point. Eatinger’s decision to refer allegations against committee staffers to the Justice Department also reflected an amazing lack of understanding of the Constitution and the respective roles of the two institutions. And so did Brennan’s public statements. Brennan first pushed back against Feinstein’s account, strongly suggesting it would be proven inaccurate: “As far as the allegations of CIA hacking into, you know, Senate computers, nothing could be further from the truth. We wouldn’t do that. That’s just beyond the scope of reason in terms of what we would do.” He also suggested that the Justice Department would be the arbiter of the dispute between the CIA and the Senate: “There are appropriate authorities right now both inside of CIA, as well as outside of CIA, who are looking at what CIA officers, as well as SSCI staff members did. And I defer to them to determine whether or not there was any violation of law.”

Reigning in separation of powers violations is key to preventing unchecked war powersBarron 8 (David is a Professor of Law at Harvard Law School and Martin S. Lederman, Visiting Professor of Law at the Georgetown University Law Center, “The Commander in Chief at the Lowest Ebb -- A Constitutional History”, Harvard Law Review, February, 121 Harv. L. Rev. 941, Lexis)//cc

Thus, as future administrations contemplate the extent of their own discretion at the "lowest ebb," they will be faced with an important choice. They can build upon a practice rooted in a fundamental acceptance of the legitimacy of congressional control over the conduct of campaigns that prevailed without substantial

challenge through World War II. Or they can cast their lot with the more recent view, espoused to some extent by most -

though not all - modern Presidents, that the principle of exclusive control over the conduct of war provides the baseline from which to begin thinking about the Commander in Chief's proper place in the constitutional structure. We conclude

that it would be wrong to assume, as some have suggested, that the emergence of such preclusive claims will be self-defeating, inevitably inspiring a popular and legislative reaction that will leave the presidency especially

weakened. The more substantial concern is the opposite one. The risk is that the emergence of such claims will subtly but increasingly influence future Executives to eschew the harder work of accepting legislative constraints as legitimate and actively working to make them tolerable by building public support for

modifications. Over time, the prior practice we describe could well become at best a faintly remembered

one, set aside on the ground that it is unsuited for what are thought to be the unique perils of the contemporary world. Our hope, therefore, is that by presenting this longstanding constitutional practice of congressional engagement and executive accommodation as a workable alternative, such forgetting will be far less likely to occur. Part II reviews the history of the "lowest ebb" issue from 1789 through the Civil War. Part III concentrates on the disputes over this question that arose in the Civil War and its immediate aftermath. Part IV examines the developments occurring in the executive branch, the Congress, and the courts through World War II. Part V takes the story from Truman

through the Clinton and Bush Administrations. In Part VI, we explain why, in our view, the history matters, and summarize what it shows regarding Congress's constitutional authority to regulate the conduct of campaigns. We also discuss some of the remaining puzzles with respect to the "superintendence" prerogative that the Commander in Chief Clause establishes. Part VII is a brief conclusion. [*951] II. From Ratification Through the Antebellum Period The practices of the political branches during the first decades after the Constitution's ratification offer important insights into the founding generation's understanding of the structure of the new government. This is especially true with respect to the very first Congress, which included no fewer than twenty delegates to the Constitutional Convention. n14 More broadly, the entire period from ratification to the Civil War is important for what it shows about the "practical exposition" of constitutional war powers during the new nation's first confrontations with war and the first emergence of a standing military establishment. n15 The initial seventy years are also important for understanding what immediately followed. Those first seven decades of constitutional development established the legal tradition on which President Lincoln and the Civil War Congress relied in formulating their own war powers views. Because those views are so often invoked in contemporary executive war power controversies, their intellectual lineage merits a thorough examination. A review of constitutional practice between 1789 and the Civil War suggests that the Founding-era understanding of the Commander in Chief's ultimate subjection to statutory control continued to hold sway. Although the primary focus of war powers questions and debates in this period lay elsewhere (such as on whether certain conduct complied with international law), the question of a preclusive Commander in Chief power, particularly as to troop deployments, was not unknown. Some legislators occasionally raised constitutional concerns in congressional debates about proposed statutory restrictions; but this did not reflect the existence of a well-accepted view that the President possessed such preclusive powers. Certainly Congress did not act during the first few decades as if it assumed the President enjoyed unchecked authority in the field, even in wartime. And whereas the legislature often afforded the President substantial discretion as to how troops could be used, it also occasionally regulated ongoing military operations in quite specific and detailed ways in these early years. A review of the decades that followed, moreover, reveals no important signs of a different legislative practice emerging. The occasional constitutional concern was still voiced in the course of congressional debates, but the [*952] legislature continued to enact, albeit only on occasion, important and constraining statutory measures both while hostilities were underway and in advance of their outbreak. Perhaps even more importantly, with one possible and equivocal exception during the Fillmore Administration, the Executive itself does not appear to have argued during the whole of the pre-Civil War period for such preclusive authority. Presidents would sometimes construe apparent restrictions in favorable ways, but they also complied with statutes even when it seems clear that they would have preferred not to. To be sure, there does not appear to be any case in which a President expressly acknowledged that because he lacked a preclusive constitutional power, he was bound by a statute he thought to be severely detrimental to the national interest. It is almost certainly the case, therefore, that considerations of politics and policy played a key constraining role independent of legal judgment. But it is striking nonetheless that throughout this period - again, with one cryptic exception - Presidents did not act or speak as if they possessed the constitutional authority to disregard attempts by Congress to impose restrictions on their powers over the military, in war or peace. Their actual posture, at least formally, was much more accepting of congressional power, and in fact, some administrations during this period issued legal opinions that conceded the constitutional plan precluded them from taking a more defiant stance. A. The Backdrop of the Laws of War The first seven decades of constitutional practice were not marked by a surfeit of legislative action specifically restricting the President's manner of engaging the enemy during battle. This was not the product of a consensus that the Commander in Chief must be unfettered in dealing with the enemy. It is better attributed to two other factors. First, Congress often made the unsurprising policy judgment that the President should be afforded broad discretion in deciding how to fight wars. In addition, and of more direct relevance for present purposes, the political branches, as well as courts and scholars throughout the period, shared the belief that the President was appropriately bound in his conduct of military operations by a body of widely accepted international legal norms - namely, the "laws and usages" of war. The laws and usages of war were customary, but they were still understood to constitute a critical component of the legal structure within which the President exercised his war powers. Indeed, there was a virtual consensus among the actors in the political branches, as [*953] well as the courts, concerning their binding force. n16 Thus, notwithstanding recent suggestions that the Framers wished to ensure maximum executive flexibility and discretion in war, n17 it is a mistake to think that they envisioned the President would be acting in a law-free zone when employing military force. Precisely because war was at issue, it was understood that the President would be operating in a context that was quite substantially legalized. [*954] The broad acceptance of this legal framework no doubt tempered the legislative impulse to impose independent strictures by statute. n18 The prospect of additional restrictions likely raised the understandable concern that they might unilaterally tie the hands of the young nation in its conflicts with belligerents in a manner that would not be reciprocated by our enemies. That makes it all the more striking that Congress enacted so much additional legislative regulation during this period and in subsequent decades, as we explain below. At the same time, there was great concern in the young republic about the nation's taking actions that, under customary international law, might provoke an actual war. n19 Accordingly, throughout this period Congress was careful to exercise its legislative power so as to ensure that the Executive would not, in the course of protecting the national defense, unnecessarily engage in conduct that would, under the laws of war, justify other nations to make war against the United States. Courts seemed to share this concern. In prominent cases, the Supreme Court treated the question of whether a given executive action complied with the laws and usages of war as if it were inseparable from the question of whether Congress, in authorizing the particular military conflict at issue, had intended to free the President to exercise the full complement of powers that customary international law would sanction in the case of a war. In this regard, early constitutional [*955] analysis often proceeded as if there were a deep interrelationship between congressional power to define the terms of battle and the customary international laws of war, at least in part in order to ensure that the power to declare a full-fledged war would remain with the Congress. n20 B. The Washington Administration: Organization of the Military Establishment and the Calling Forth of the State Militia With this crucial background in place, we can now examine the first phase of the history of the statutory regulation of the federal military forces - a period coextensive with the Washington Administration. The young nation did not engage in military conflicts with foreign nations during Washington's tenure as President; the most prominent war powers questions of the time concerned whether Congress had in fact approved specific offensive actions (in particular, against the Wabash Indians on the western frontier). There were therefore no prominent debates about whether Congress could impose limits on the President's constitutional war authorities. Nevertheless, this initial period of constitutional practice offers some evidence on three matters that shed light on attitudes about the extent (or existence) of the President's preclusive war powers. In each case, the evidence tends to reinforce what appears to have been the assumption of permissible statutory control, even as to the conduct of campaigns, that ran through the Founding era. 1. Statutory Regulation of the Use of Military Force. - The very first statute Congress enacted to continue the military establishment from the preconstitutional system is instructive. It specified that U.S. troops "shall be governed by the rules and articles of war which have been established by the United States in Congress assembled, or by such rules and articles of war, as may hereafter by law be established." n21 In other words, the new Congress did not signal a desire to leave the President free of statutory encumbrances in exercising his powers of command in battle. Instead, it imposed on the armed forces themselves the rules promulgated in the Articles of War that the preconstitutional Congress had enacted in 1775 and 1776. n22 For the most part, those preexisting Articles of War did not materially constrain the Commander in Chief himself, at least not in the conduct [*956] of war. Two other pieces of evidence from this period, however, suggest there was at least some comfort with the notion that Congress also had the authority to set forth legislative regulations concerning operational military judgments that pertained directly to how the Executive could use force. Specifically, in the Third Congress, during a debate over a bill to continue and regulate the military establishment, no less an authority than James Madison proposed an amendment providing "that the troops should only be employed for the protection of the frontier," n23 although the House ultimately voted down the proposed geographic restriction. n24 There is also some important early evidence of executive branch acceptance of congressional power to exercise detailed control over how force would be used, at least at the outset of specific conflicts. Beginning in 1785, the pirates of Algiers embarked on a campaign of attacks on American ships in which they seized U.S. nationals in order to demand ransom. In a 1790 report, after Algerian pirates had captured eleven U.S. ships and more than 100 prisoners, Secretary of State Jefferson acknowledged that the legislature controlled not only the general question of whether to offer a military response at all, but also the nature of any such response: "If war, they will consider how far our own resources shall be called forth, and how far they will enable the Executive to engage, in the forms of the constitution, the co-operation of other Powers." n25 2. Statutory Regulation of the Military Establishment. - For the very early years of constitutional practice, we have only these fragmentary indications of legislative and executive attitudes about the legitimacy of regulating the use of force by statute. The sparseness of the record may be due, in part, to the absence of anything like a modern military establishment during this period - a lack for which Congress was largely responsible. Because the founding generation was wary of standing armies and expected that most national military functions could and would be performed by state militia in the service of the federal government, Congress kept the military establishment in the early years very modest. In September 1789, for example, Congress passed a law "recognizing" the military establishment of about 700 [*957] troops that had remained from the preconstitutional system. n26 And although Congress did gradually increase the size of the military, n27 there would be no significant buildup until the prospect of war with France during the Adams Administration. This circumstance gave Congress a powerful measure of de facto control. So long as the President lacked a significant non-militia force to command, he would necessarily be dependent on legislative approval for the conduct of most military affairs abroad, even at the operational level. To launch an attack by sea, for example, he might have no choice but to spell out to Congress just what battle plan he envisioned, if only in order to specify the funding and supplies the legislature would have to allow him to raise in order to implement such a battle plan. To be sure, Congress signaled early on that it had no general interest in policing tactical decisions in this way, and it enacted a number of statutes that expressly recognized the President's broad discretion over the use of the (limited) troops under his command. n28 But that did not mean the legislature resisted altogether the temptation to impose direct and detailed constraints on the military establishment it was slowly fortifying. (a) The Nature of Congressional Regulations of the Military Establishment. - During the first years of constitutional practice, Congress imposed numerous specific rules for the organization and government of the armed forces, concerning matters large and small. The comprehensive statute of 1790 providing for a permanent military establishment is the most telling example. It described the sorts of men who would constitute the armed forces ("able-bodied men," between the ages of eighteen and forty-six, "not under five feet six inches in height"), divided them into regiments and battalions, prescribed remuneration and rations, and once again directed that the preexisting Articles of War were to govern conduct until statutory amendment. n29 [*958] Also striking were several enactments creating and providing for naval armaments, which specified precisely how many guns would be on each ship and how many warrant officers of every stripe would be employed, from yeoman of the gun room to carpenter's mates to cooks. n30 Those statutes even prescribed weekly menus for the ships: on Tuesdays, the ration included potatoes or turnips, and pudding; on Thursdays, a half-pint of peas or beans. n31 Congress also used the power of the purse to delimit what would otherwise be the Commander in Chief's broad discretion to command and structure the military establishment, and its specifications for military-related disbursements were often quite detailed. n32 Such intrusive and detailed regulations reflected a general assumption that Congress had the power to restrict at least some of the authorities that the Commander in Chief would otherwise be constitutionally entitled to exercise in the absence of statutory limits. That is to say, Congress did not appear to regard the constitutional powers established by the Commander in Chief Clause as necessarily preclusive of conflicting statutory regulation. This early legislative practice also suggests that Congress did not labor under the view that it was subject to an overarching constraint against regulating the military in too detailed a fashion, at least during peacetime. It clearly assumed it possessed the constitutional authority to impose quite niggling restrictions on the organization, action, and composition of the armed forces. How else to explain its decision to establish by statute the precise menu for the meals that sailors were to be served? As these restrictions were imposed outside the context of war, however, one cannot know for certain whether some allowance for greater constitutionally indefeasible executive discretion might have been accepted in the event actual hostilities were underway. (b) Executive Branch Responses to Detailed Congressional Regulation of the Military Establishment. - Even though Congress imposed detailed regulations on the budding military establishment in peacetime, the executive branch was hardly pleased by many of them. In consequence, there was no shortage of interbranch disputes with regard to legislative control of the military establishment and militia. In fact, the Washington, Adams, and Jefferson Administrations were marked throughout by pitched struggles over how much leeway the executive branch enjoyed to use appropriations as it thought most efficacious, and many of these fights concerned military appropriations in [*959] particular. n33 To avoid what appeared to be statutory limits on appropriations, the executive branch during this period resorted to "various compensatory devices" that allowed it to "formally admit[] the principle of Congressional control" while at the same time "relaxing the severities of its application." n34 These practices were especially common in the context of military spending, where the Treasury Department concluded that broad, general grants for the War Department could be "issued according to exigencies" when "requisite for the public service." n35 This "practical" application of the appropriations laws regularly provoked the ire of many in Congress, especially Representative (and future Treasury Secretary) Albert Gallatin, who viewed the practice in the military and naval establishments, in particular, as "making the law a mere farce, since the officers of the Treasury did not consider themselves as at all bound by the specific sums." n36 Significantly, however, as far as we have been able to determine, the executive branch never once asserted any constitutional prerogative to disregard any of these statutory limits, let alone any such authority under the Commander in Chief Clause. Although some modern Presidents, beginning with Truman, n37 have used the Commander in Chief power to justify disregarding spending requirements set forth in military appropriations, the first President's Administration never [*960] did. Instead, the Treasury Department (headed first by Alexander Hamilton and then, after 1795, by Oliver Wolcott) consistently engaged in what it called a "practical interpretation" of the appropriations laws, a construction that would avoid "absurd, or mischievous consequences" and that would not render any substantive acts of Congress "unsusceptible of execution." n38 Wolcott explained that Gallatin's efforts to micromanage the executive branch through "minute subdivisions of appropriations" would have "continually tended to ... paralize every branch of the public service." n39 Thus, it was the duty of the Treasury, wrote Wolcott, "so to interpret the Laws, as to counteract this tendency as much as possible." n40 This form of statutory interpretation, in Wolcott's view, was not only "reasonable" but, just as importantly, "at all times publickly avowed, and well understood, and deliberately sanctioned by Congress." n41 Some of these interpretations were extremely aggressive, which suggests that the line between constitutionally based defiance and creative construction may have been thin when it came to influencing what funds would be available to the President and for what purposes. But when Congress effectively foreclosed this sort of creative construction, the executive branch had not laid any legal predicate for asserting a constitutional trump. n42 No executive officials, as far as we are [*961] aware, ever espoused any constitutional theory under which Congress would not have the last word if it chose to impose it - not even as a background constitutional principle that might bolster the strained interpretations being pressed. 3. Statutory Regulation of the Use of the Militia. - Important though regulation of the national military establishment was, the size and scope of that establishment remained modest. As a result, throughout the Washington Administration, war powers debates often centered on the President's use and control of the state militia. These were the military forces that the Framers assumed would be the principal means of serving the national government, in the absence of the sort of standing armies that they discouraged. n43 The Constitution provides that Congress has the power both to call forth the state militia into federal service "to execute the Laws of the Union, suppress Insurrections and repel Invasions," n44 and "to provide for organizing, arming, and disciplining the Militia, and for governing" them when they are employed in federal service. n45 And yet, of course, the Commander in Chief Clause also assigns the President the command of the militia once they are called into federal service. In form, then, the structure of control over the militia that confronted the early departments was not unlike that established by the Constitution for the land and naval forces. Congress could raise them and provide for their governance, organization, and discipline. The President would "command" them. Beyond those basic assignments of authority, a range of questions remained as to the extent of Congress's power to circumscribe the President's command discretion. From the outset, Congress chose to exercise its "calling forth" power largely by delegating it to the President. That choice reflected a general acceptance of the President's central role in the conduct of military affairs. At the same time, the relevant statutes specified categories of cases (mostly emergencies) in which the delegated authority could be exercised. They thus inaugurated a practice that would become even more common in the subsequent decades as to the use of military force more generally: Congress would enact a measure triggering the President's constitutional "command" authorities, but its delegation to the President to exercise such authorities would be confined so as to ensure they were exercised in a manner consistent with whatever objectives and directives Congress had expressly or implicitly prescribed. [*962] Sometimes, moreover, those authorities would even be constrained by quite detailed delineations of the scope of the discretion conferred. The first such statutes were designed to protect settlers on the western frontier from attacks by the Wabash Indians. Congress delegated to President Washington the authority to call forth the militia of the states "as he may judge necessary for the purpose" of "protecting the inhabitants of the frontiers ... from the hostile incursions of the Indians." n46 A few years later, Congress authorized Washington to call forth the militia and station them "in the four western counties of Pennsylvania" for the purpose of suppressing unlawful combinations there and helping to enforce the laws. n47 Even though these and other laws put a military force at Washington's disposal, he did not think to use it other than as Congress had instructed - although this reticence might be explained in part by the view, common at the time, that the President did not enjoy an "inherent" constitutional power to initiate "offensive" action without legislative preapproval. n48 Even more interestingly, two of Congress's early general delegations of its "calling forth" power placed further conditions on the President's use of the militia for even statutorily prescribed purposes. For example, the Militia Act of 1792 provided that in cases where the President called forth the militia to stop an insurrection, he had to first "forthwith, ... by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited [*963] time." n49 Similarly, although that law gave Washington virtually unlimited authority to call forth the state militia "as necessary to repel such invasion," and to issue orders to officers of the militia "as he shall think proper," n50 it permitted him to use the militia to execute domestic laws only upon certification by an Associate Justice or district judge that the wrongdoers were "too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals." n51 This restriction in effect imposed a neutral arbiter between the President and the force that would otherwise be available to him. n52 Congress eliminated this judicial certification requirement in the Militia Act of 1795, n53 but retained at least two important limitations on the President's control over the militia, each of which indicated that the legislature did not believe its constitutional authority to regulate the use of that force ceased the moment the militia were actually called into service. The first limitation provided that the militia could be used to help enforce domestic laws only until thirty days after the commencement of the next session of Congress. n54 It thus presaged a statutory approach to regulating ongoing military operations reflected in the modern War Powers Resolution. n55 The second limitation continued to require the President to issue the dispersal proclamation when he called forth the militia to stop an insurrection, although it no longer required that the proclamation occur before the militia were called forth. n56 In other words, Congress did not view its calling forth power as a simple on/off switch, by which it could either put the militia under presidential command or keep them reserved to state control. Instead, it felt no compunction about detailing how the President [*964] could use the militia even once they had been called forth and were under his command. 4. Conclusion. - The first eight years of constitutional practice established that the Commander in Chief was a powerful actor, properly entrusted with broad discretion in exercising his powers of command. Indeed, he was even given the authority to determine the circumstances in which the main forces at his disposal, the state militia, could be called into service. There is no evidence that Congress attempted to wrest control from him of discrete tactical decisions on the basis of its own view as to how a particular battle should be handled. But these early years also showed that the Commander in Chief was constrained not only by political realities but also by law. In addition to the laws and usages of war, which figured prominently, there was a growing and detailed statutory landscape. It set terms by which the actual military establishment could be organized and supplied in quite particularized ways, and it carefully regulated the ways in which the President could use the state militia that he had been delegated the power to call forth, sometimes imposing limitations applicable even after those forces had been deployed. Nevertheless, it was not until the Adams Administration that the first direct confrontation with the precise constitutional question of the President's control over the conduct of campaigns actually occurred, as it was not until these years that the nation encountered its first brush with something akin to a full-fledged war. C. The Adams Administration and the Quasi-War with France In reaction to the United States's declaration of neutrality in the war between Great Britain and France, American ships became a target of French vessels. A wave of anti-French sentiment spread across the nation, fueled in part by the interparty political contests for popular favor. In consequence, by 1797, possible war with France loomed on the horizon, and Congress sprang into action. n57 As with its delegations of the power to call forth the militia, Congress once again looked to the President to carry out military operations and sought to empower him in ways that would permit him to be successful. In May of 1798, Congress enacted a law authorizing the President, "in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion," to raise an army of up to 10,000 men to serve for as many as three years. n58 Less than two months later, Congress authorized the [*965] President to raise an additional twelve infantry regiments and six troops of light dragoons, "to be enlisted for and during the continuance of the existing differences between the United States and the French Republic." n59 A further delegation to the President of power to increase the size of the army came the following year. n60 Of course, the very fact that the military establishment was significantly expanded made it possible for the President to assert a greater measure of command authority, rooted in his powers as Commander in Chief, once an armed conflict had commenced - at least if he were not limited by statute. But what if he were? Such limits were not simply a theoretical possibility, notwithstanding the broad discretion Congress had permitted him to exercise. Although Congress had enacted statutes that permitted the President to move the nation to a war footing against France, it was careful to avoid formally declaring war against that country. There was a great fear of engendering a conflict that could be disastrous for such a young nation. Congress instead passed a series of statutes that both triggered the President's constitutional war powers and calibrated just what sort of force could be exercised on behalf of the United States. The legislature acted, moreover, not in one fell swoop at the very outset of hostilities, but instead over a number of years, thereby changing the rules of engagement over time through a series of limited measures. The result was that, for the first time, constitutional questions concerning the extent of Congress's power to regulate the conduct of campaigns were presented to all three branches of the nascent government. 1. Legislative Action in the Run-up to the Quasi-War. - In 1797 and 1798, at the very outset of the conflict with France, the House of Representatives played host to an instructive set of debates over proposed conditions on the use of naval vessels. Proposed statutory language would have restricted such ships to U.S. waters and prohibited their use for convoys (which were thought likely to provoke war with France). n61 Unlike Madison's similarly restrictive proposal concerning the use of the militia during the Washington Administration, n62 these limitations would have affected regular forces, and they precipitated what was perhaps the most extensive legislative debate on the preclusive power question until 1862. n63 To be sure, most of the Representatives [*966] who spoke against the conditions did so for policy or prudential reasons. n64 A number, however, argued that once Congress appropriated funds to provide for certain ships, it was not completely free to instruct the President on how to use them. n65 Other Representatives, particularly Gallatin, strongly opposed such a notion, arguing that the power to dictate the use of ships was ancillary to Congress's powers to provide funding for the ships in the first instance. n66 And somewhere between these two polar positions, Representative Harrison Gray Otis at first suggested that although Congress could impose certain limits on the objects for which the ships could be used, it could not prescribe precise instructions on how those objects should be advanced, such as by limiting the ships to U.S. waters. n67 Otis later indicated that although in his view Congress could direct the particular permitted and proscribed uses of the ships (for example, not as convoys), it would not be expedient for the legislature to do so. n68 [*967] Notwithstanding the various positions (constitutional and otherwise) articulated in this debate, as the actual outbreak of armed conflict approached, Congress appeared to resolve it in practice by asserting its lawmaking authority to define the terms of battle in relatively detailed fashion. French seizure of U.S. vessels prompted Congress to enact several distinct statutes authorizing the use of military force, particularly against French naval vessels. The statutes in question - which established what would become known as the "undeclared war," or "Quasi-War," with France - each triggered the President's authority to use the armed forces in a manner permitted for a belligerent party, but only for particular sorts of actions against French vessels, in particular locations, for particular purposes. The first such law, enacted in May 1798, authorized the President to direct the commanders of U.S. armed vessels to seize - and to bring into a U.S. port for proceedings "according to the laws of nations" - French armed vessels that had committed "depredations on the vessels" of U.S. citizens or that were "hovering on the coasts of the United States" for that same purpose. n69 A follow-up statute one month later provided for the forfeiture and condemnation of goods and effects found on those seized French ships, with a proviso that forfeiture would not extend to any property of any citizen or resident of the United States that had been taken by the French crew. n70 Then, on July 9, 1798, Congress enacted yet another statute that eliminated the restriction on the types of armed French vessels that could be seized. This law authorized seizure of any armed French vessel found within the jurisdictional limits of the United States or elsewhere on the high seas. n71 These and related statutes meaningfully limited the sort of actions that the Commander in Chief could undertake in fighting France. He was not at liberty to do whatever he thought wisest to defeat the enemy. In particular, he was limited to a naval war - he could not, for instance, decide to take the army to France - and one that was circumscribed in particular ways. 2. The Supreme Court Enforces the New Legislation. - The highly reticulated framework established by these and other statutes produced a number of legal disputes. The most significant for present purposes led the Supreme Court, in the case of Little v. Barreme, n72 to [*968] address whether executive action in the conduct of military operations conformed to statutory bounds. Even before the decision in Little, however, the Court indicated that it was likely to regard these limited authorizing statutes not only as having empowered the President to exercise his war powers, but also as having restricted what he could do with them. In Bas v. Tingy, n73 for example, the Court was asked to decide which of two statutes enacted in this period determined the amount of salvage that would be due for the recapture of an American ship. The question led the Court to canvass the international laws and usages of war in some detail, as the case hinged on what was meant by the statutory term "enemy." n74 The Court concluded that the ship, if taken from the French, was taken from the "enemy," and in explaining that conclusion Justices Samuel Chase and Bushrod Washington described the nature and effect of Congress's statutory scheme. n75 By enacting the series of statutes concerning military engagement with French vessels, Justice Chase explained, Congress had "authorised hostilities on the high seas by certain persons in certain cases," but had not given the President the authority "to commit hostilities on land; to capture unarmed French vessels, nor even to capture French armed vessels lying in a French port." n76 What Congress had in effect done, in other words, was to authorize a "limited" or "partial" war against France - a type of war that, in the words of Justice Washington, was "confined in its nature and extent; being limited as to places, persons, and things." n77 Justice Washington noted, in apparent accord with Justice Chase's understanding, that in such conflicts those authorities "who are authorised to commit hostilities ... can go no farther than to the extent of their commission." n78 The full impact of this notion - that included within Congress's authorizations for the use of military force in an undeclared war are implied statutory limitations on the Commander in Chief's war powers that must be followed - was revealed a few years later in Little. Several of the Quasi-War statutes authorized the interdiction and capture of certain ships. One aimed to restrict commerce with France by barring vessels owned, hired, or employed by U.S. residents, in whole or in part, from sailing to the territory of the French Republic or the West Indies, and prohibiting their employment in any traffic or commerce [*969] with a French resident. n79 In order to enforce this latter provision, the law authorized the President to instruct commanders of public armed vessels to examine ships that were suspected of violating the Act, and imposed a duty on commanders to seize any ship that appeared to be "bound or sailing to any port or place within the territory of the French Republic, or her dependencies." n80 The Secretary of the Navy thereafter issued orders to public armed ships, but those orders were not limited, as were the words of the statute, to interdiction of ships bound to ports within the French Republic. They instead instructed the naval forces to "do all that in you lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France and her dependencies." n81 More specifically, they directed American ships "to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to, or from, French ports, do not escape you." n82 In conformity with this order, Captain George Little, commander of the U.S. frigate Boston, seized the Flying Fish, a ship believed to be a U.S.-owned vessel sailing from a French port, and sought condemnation. n83 That seizure precipitated a court challenge. The circuit court held the seizure unlawful and assessed damages for trespass against Little, whose quite reasonable defense was that liability would be unfair because he was merely following presidential orders. n84 Yet the Supreme Court affirmed the judgment of the court below, in a unanimous opinion by Chief Justice Marshall. Chief Justice Marshall held, in effect, that even though the President might well have had the inherent constitutional power to issue such an order in the absence of a statute, n85 that did not matter because federal statutory law had prohibited the seizure by implication. By providing the Executive with "authority [to seize] vessels bound or sailing to a French port," he concluded, "the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port." n86 In other words, a statute authorizing seizure of ships heading [*970] in one direction implicitly restricted what might otherwise have been the Commander in Chief's constitutional authority to seize ships going in the opposite direction. And while Chief Justice Marshall was plainly troubled by his ultimate conclusion that the officer following the commander's orders enjoyed no good faith immunity from liability, n87 there is no suggestion in his opinion, or that of any Justice of the Court - and no evidence that any of the parties, including the Executive, argued - that Congress could not limit the President's tactical flexibility in this respect. n88 3. Additional Legislative Restrictions Arising Out of the Quasi-War. - Although the obvious aim of the statute at issue in Little was to bring a cessation to transactions between United States persons and the French that were thought to give aid to the enemy, it did not directly regulate military engagement with the enemy itself. It concerned instead how force could be deployed against American ships operating in an active combat zone. But during this same conflict with France, Congress did pass laws dealing specifically with the treatment of enemy personnel. One such statute was a retaliation measure enacted on March 3, 1799. The act "empowered and required" the President to "cause the most rigorous retaliation to be executed" on French citizens legally captured by the United States, if it were proven to the President that France had killed, or employed corporal punishment on, or "imprisoned [*971] with unusual severity," any U.S. citizen who had been impressed by the French. n89 This statute imposed what appeared to be a significant limitation on President Adams's discretion over how best to engage the French. It also set forth an affirmative rather than restrictive command that was apparently contrary to Adams's preferred mode of dealing with the issue. n90 In the course of establishing the legal framework for the conduct of the Quasi-War with France, Congress also enacted statutes that sought to temper the degree of coercion that could be brought to bear upon prisoners and other detainees. n91 And in March 1799, Congress enacted rules and regulations for the government of the navy, which included an article making it unlawful for any person belonging to a ship or vessel of war in U.S. service, when on shore, to "plunder, abuse, or maltreat any inhabitant, or injure his property in any way." n92 That law also provided more generally that every navy commander in chief and captain, in making specific rules and regulations for his charges, [*972] "shall keep in view also the custom and usage of the sea service most common to our nation." n93 There is no evidence that any of these measures gave rise to constitutional concerns, notwithstanding their seemingly intrusive regulatory features, and we have found no record of President Adams complaining that these statutes were inconsistent with the imperative of conducting the military conflict in an appropriate manner. Finally, in the midst of all this legislative action - some of a general framework variety, some much more detailed and conflict-specific - Congress passed the Alien Enemies Act of 1798. n94 That measure authorized the President in a time of war or invasion to detain and remove male natives, citizens, denizens, or subjects of the hostile nation, age fourteen and upward, found in the United States. n95 This Act, which is still in force in modified form, n96 was passed in anticipation of war with France. It was first employed against British aliens during the War of 1812. The Act not only empowered the Executive, but also restricted it by requiring the President to give most deportable aliens time to recover, dispose of, and remove their goods and effects, either by the terms of a governing treaty or "according to the dictates of humanity and national hospitality." n97 4. Conclusion. - The Quasi-War with France resulted in a de facto rise in executive war authority, if only because it precipitated a massive expansion of the military establishment and thus of the amount of force at the President's disposal. But that was not the only consequence of this first major military contest of the new nation. Perhaps because the conflict never resulted in a declaration of war, its parameters remained confined and carefully delineated by statute. Congress, far from simply authorizing the use of force and then leaving matters to the Executive, from the very onset of the hostilities with France asserted direct (and, as it turned out, ongoing) statutory control over many matters - from the rules of engagement at sea to the treatment of enemies at home. Although occasional voices in Congress expressed concern that some of these statutory measures infringed on inviolable executive powers, neither the Congress as a whole, the executive branch, nor the Supreme Court suggested at any point in these years that such a concern was well-founded. [*973] D. The Jefferson Administration By the time Jefferson took office, the Quasi-War with France had ended. Jefferson therefore proposed a return to a peacetime posture, with reliance principally on the state militia rather than on the standing army. n98 Congress responded in 1802 by enacting a law reducing the size of the regular army from 5500 to approximately 3300 troops. n99 Congress then generally enacted statutes that afforded the new President wide discretion to use the military force that remained under his charge as he deemed necessary, such as to respond to naval attacks from Tripoli. n100 Indeed, in 1807, in the wake of the Burr conspiracy, Congress even authorized the President to employ the land or naval forces, as he judged necessary, to respond to domestic insurrections or obstructions of the laws in any case where the Militia Act of 1795 had previously authorized him to use the militia for such purposes. n101 And although this law, the Insurrection Act of 1807, did require the President to "first observe[] all the prerequisites of [the Militia Act of 1795]," n102 including the requirement that the President issue a proclamation that "insurgents" should "disperse, and retire peaceably to their respective abodes, within a limited time," n103 it reflected a growing acceptance of both the existence of a standing army and the President's quite substantial role in overseeing it. Notwithstanding these broad grants of discretion to the President, and even though no great armed conflict loomed that would prompt a flurry of statutory activity akin to that accompanying the Quasi-War, the question of when the President could act in conflict with statutory requirements in military matters arose in Jefferson's Administration in the context of a possibly unauthorized expenditure. As a general matter, appropriations and spending practices did not raise the constitutional [*974] question of a Commander in Chief override. Even though Albert Gallatin was now Jefferson's Treasury Secretary, appropriations practice in the Jefferson Administration soon became "largely indistinguishable from practice during the Federalist period." n104 No matter how appropriations statutes were designed, it seemed, executive officials construed them flexibly, sometimes by reading them to allow general funds to be used to supplement specific statutory limits, other times by adjudging that they permitted "anticipatory" spending for essential functions authorized by Congress. Importantly, as was true during the Washington Administration, n105 such creative construction was not rooted in a claim of constitutional authority on the part of the President. Instead, the interpretive practice rested on policy-based arguments about the importance of affording the President flexibility in administration of an expanding bureaucracy, and on the contention (no doubt in part fanciful) that Congress itself should be deemed to have been legislating with such practicalities in mind. n106 But a military crisis in 1807 prompted Jefferson in one case to incur financial obligations for the nation without purporting to justify them by creative statutory construction. n107 Significantly, however, even in this outlier case, Jefferson's argument did not rest on the notion that Congress lacked the power to regulate decisions regarding military operations generally, nor even on the claim that the conduct of military campaigns is vested solely in the President by virtue of his designation as Commander in Chief. Instead, the Jefferson Administration's defense was premised on the far different, and conceptually much more limited, notion of temporary necessity - an argument that, in this case at least, does not appear to have been a constitutional trump at all. On June 22, 1807, while Congress was in recess, the British warship Leopard attacked the American frigate Chesapeake as it was leaving port at Hampton Roads, Virginia. It was widely believed this aggressive action might precipitate a war with England. The next month, Jefferson's cabinet voted to purchase on credit timber for about 100 gunboats, along with hundreds of tons of saltpeter and sulphur - the requisites for gunpowder. n108 Apparently no one in the executive branch thought the existing appropriations laws or any other statutes could be stretched to authorize such purchases, but Jefferson [*975] entered into the contracts anyway, "on the presumption that Congress will sanction it." n109 The legal literature has traditionally treated the Chesapeake incident as a classic example of the Commander in Chief making an expenditure that could not be defended on even the most creative interpretation of appropriations statutes. n110 We question whether this is the best understanding of the incident. It is not clear that Jefferson transgressed any statute, or even that he violated the constitutional prohibition on drawing money from the treasury except "in Consequence of Appropriations made by Law"; n111 it appears instead that Jefferson merely incurred an obligation on behalf of the United States, not that he expended any funds. n112 Be that as it may, when Congress reconvened the following October, Jefferson did not argue that the existing statutes authorized the contract. Instead, he asserted a particular claim of limited necessity: The moment our peace was threatened, I deemed it indispensable to secure a greater provision of those articles of military stores with which our magazines were not sufficiently furnished. To have awaited a previous and special sanction by law would have lost occasions which might not be retrieved. I did not hesitate, therefore, to authorize engagements for such supplements to our existing stock as would render it adequate to the emergencies threatening us; and I trust that the Legislature, feeling the same anxiety for the safety of our country, so materially advanced by this precaution, will approve, when done, what they would have seen so important to be done, if then assembled. n113 As this passage reveals, Jefferson did not claim any constitutional power to ignore Congress's will simpliciter, or even to spend (or incur obligations) in violation of statute when Congress was sitting - let alone a broader Commander in Chief prerogative to deal with military crises as he saw fit. At most, his claim was that the President can act [*976] as necessity demands in times of great crisis, where it is reasonable to anticipate that an authorizing statute will be forthcoming and when it would be infeasible to call upon the Congress for ex ante authorization. Of course, if the Jefferson Administration had actually expended funds, then as a practical matter the legislature would have been hard-pressed to divest the President of the power that he claimed necessity had entitled him to exercise. But the significance of Jefferson's justification is that he set forth such a narrow view of the predicate for executive resort to action based on necessity in the first instance. Jefferson appeared to assert such a power because Congress was not actually available - a circumstance that, to be sure, was not infrequent in that day, but one that also had a certain practical institutional justification underlying it. As we will see, Lincoln used this same limited theory of emergency power to justify unauthorized expenditures in Congress's absence at the outset of the Civil War. n114 For its part, Congress seemed intent on both recognizing and defining the bounds of the necessity defense that Jefferson had invoked. Congress promptly enacted an appropriation to pay for the obligations Jefferson had incurred. n115 More interesting, perhaps, is what happened next. In 1809, on the final day of Congress's session and the penultimate day of Jefferson's second term, Congress passed an appropriations law for the Treasury, War, and Navy Departments that included a variation of Gallatin's old restrictive clause from the 1797 Act n116: "The sums appropriated by law for each branch of expenditure in the several departments shall be solely applied to the objects for which they are respectively appropriated ... ." n117 But Congress also included a proviso that effectively codified an "emergency" exception akin to that Jefferson had invoked in the Chesapeake affair, although dealing only with actual expenditures: the Act authorized the President during a congressional recess, and "on the application of the secretary of the proper department, ... to direct ... that a portion of the monies appropriated for a particular branch ... in that department, be applied to another branch of expenditure in the same department" if, in the President's opinion, such a transfer was "necessary for the public service." n118 Congress thus did more than ratify what [*977] Jefferson had done; it stressed that disregard of appropriations limitations would be unwarranted in circumstances in which Congress was available to consider and address the emergency. n119 E. The War of 1812 The War of 1812 constituted the first full-fledged military engagement of the young nation. It was a controversial war, occasioning passionate debate in Congress over whether the declaration of war was itself constitutional, the objection being that there had not been a sufficient predicate of hostile British action. n120 Nevertheless, and perhaps because Congress issued a formal declaration, the war did not, as the Quasi-War had done, produce a raft of legislation purporting to define operational limits on how force could be used. Congress did pass several statutes dealing with the specific issue of prisoners of war, authorizing the President to make such regulations and arrangements for their safekeeping and support "as he may deem expedient," but only "until the same shall be otherwise provided for by law." n121 Despite this relative paucity of congressional action, the War of 1812 does offer an important piece of evidence relating to Congress's constitutional authority to restrict executive war powers. It comes [*978] from the Supreme Court's decision in Brown v. United States. n122 The U.S. Attorney in Massachusetts had filed an action to condemn over 500 tons of timber in the United States that had belonged to British subjects. The circuit court condemned the timber as enemy property forfeited to the United States. The Supreme Court, in an opinion by Chief Justice Marshall, reversed, holding that the seizure required statutory authorization that Congress had not provided. The Chief Justice agreed with the government that the laws of war generally permitted a sovereign to confiscate enemy property in its own territory during war, but he held that the power was the legislature's to exercise, thereby in effect denying the President the power to seize enemy property within the United States in the absence of separate statutory authority distinct from a declaration of war. n123 <Normal (Web)> In light of this holding, one could read the case solely as a construction of the scope of the President's inherent, or Category Two, powers (referring to the taxonomy Justice Jackson developed a century and a half later in Youngstown Sheet & Tube Co. v. Sawyer n124). But the real significance of the case, we think, inheres in what it reveals about early constitutional understandings of the extent of the President's subjection to statutory control. And the key to excavating that understanding is in Justice Story's fascinating dissenting opinion. Justice Story insisted that because the laws of war permit the sovereign to seize enemy property in the United States during a declared war, the President can make such a seizure as Commander in Chief, "as an incident of the office," even if Congress has not separately authorized the seizure by statute. n125 For Justice Story, that is to say - here, disagreeing with the majority - the President had the constitutional authority, the "discretion vested in him," to capture enemy property within the United States during a declared war, to the extent consistent with the law of nations. n126 But significantly, in so arguing, Justice Story emphasized the congressional role both in triggering and in limiting the exercise of such presidential power. As Justice Story explained, the reason for the President's capacity to exercise such power in the first place was that "the legislative authority ... has declared war in its most unlimited manner." n127 In other words, rather [*979] than emphasizing inherent executive authority, Justice Story stressed that the scope of the President's war powers was vast because of Congress's declaration of war. n128 Moreover, Justice Story emphasized repeatedly that although the President had the power to seize domestic enemy property in a declared war, Congress had the authority to pass laws limiting or prohibiting such constitutional authority. Ordinarily, Justice Story explained, the President is vested with a "discretion ... as to the manner and extent" of prosecuting a declared war. n129 Thus, where the legislature has not further defined "the powers, objects or mode of warfare," reasoned Justice Story, the only law limiting the Commander in Chief's authority is "the law of nations as applied to a state of war." n130 However, "if, indeed, there be a limit imposed as to the extent to which hostilities may be carried by the executive, I admit that the executive cannot lawfully transcend that limit." n131 That is to say, Justice Story explained, if any of the acts permitted by the laws of war "are disapproved by the legislature, it is in their power to narrow and limit the extent to which the rights of war shall be exercised; but until such limit is assigned, the executive must have all the right of modern warfare vested in him." n132 [*980] The Chief Justice's majority opinion, having concluded that under the laws of war the President could not confiscate the property absent specific statutory authorization, had no occasion to discuss whether a statute could limit such a hypothetical exercise of the Commander in Chief power. But there is certainly nothing in Chief Justice Marshall's opinion to suggest otherwise, and his earlier opinion in Little v. Barreme is consistent with Justice Story's view. n133 Of course, Brown did not formally address the question that Little addressed and that Bas discussed in dicta - that is, whether an existing statute imposed a constraint on the President's exercise of discretionary constitutional war powers. Nevertheless, like its precursors, Brown accords with the notion that those "who are authorised to commit hostilities ... can go no farther than to the extent of their commission." n134 This time, however, the discussion of that issue had occurred in the context of a case that involved the prospect of congressional restrictions being imposed in an actual declared war. F. The Antebellum Era As the preceding discussion indicates, although the question of the Commander in Chief's possible preclusive authority was not extensively considered in our early constitutional history, it was not utterly unknown to political actors. The idea that Congress might minutely manage the conduct of war did seem odd to at least some legislators - disfavored, at the very least, and possibly even constitutionally dubious. But there was certainly no consensus shared by the branches that such regulation was beyond Congress's constitutional ken or that Founding-era assumptions about the Commander in Chief's subjection to statutory regulation had broken apart on the shoals of lived experience. The final decades leading up to the Civil War, moreover, do not indicate any dramatic shift. The Executive's assertion of war powers in advance of legislative authorization became more aggressive in this period, establishing an important historical predicate for the claims of broader executive powers to deploy forces abroad that modern Presidents regularly assert. n135 But as much as the President often seized the initiative in this period, there was little indication that Congress was [*981] forfeiting whatever restrictive powers it assumed it possessed (or had already exercised) in the years up to and including the War of 1812. With one possible exception, moreover, the Executive continued its practice of accepting the limitations Congress imposed or, at most, relying on creative modes of statutory interpretation rather than assertions of preclusive constitutional war powers to respond to those statutory limits that were of practical concern. 1. Continued Legislative Regulation. - In the years following the Jefferson Administration, Congress continued to enact statutes giving the President limited and specified authorizations to engage in hostilities or to take possession of particular contested territories, n136 directing where troops were to be stationed, n137 and even providing that no Marine Corps officer "shall exercise command over any navy yard or vessel of the United States." n138 Nor was it unprecedented for Congress, as part of a law regulating trade with the Indian tribes in 1834, to prescribe certain treatment for Indian detainees. n139 In short, right up to the Civil War itself, the legislative branch showed no signs of having developed a newfound hesitancy, let alone any serious constitutional self-doubt, about its authority to cabin what would otherwise be the Commander in Chief's constitutional discretion. And for the most part, there was little indication that the legislature was out of step with prevailing sentiment in so thinking. 2. Antebellum Constitutional Treatises. - The nineteenth century marked the beginning of the age of constitutional treatises in the United States. Although such works do not, strictly speaking, provide clear evidence of understandings within the political branches, they do [*982] offer some insight into general legal understandings of the day. As we will see, by the early part of the twentieth century, academic discussions of the extent of the President's preclusive authorities to deploy troops and direct campaigns, brief though they often were, constituted a staple element of the genre's treatment of war powers and of the Commander in Chief Clause in particular. n140 But in the antebellum era, notwithstanding the legislative regulation that had by then become familiar, what Justice Jackson later identified as the "lowest ebb" issue was not one that scholarly commentators seemed to have much in view. Indeed, some of the major treatises of the day did not discuss it even in passing. n141 The leading scholarly work, Justice Joseph Story's Commentaries on the Constitution, contained extensive discussions of Congress's and the President's war powers n142 and indicated that the Commander in Chief's superintendence prerogative was preclusive. n143 But Justice Story's treatise did not quite engage the "lowest ebb" question directly. n144 Justice Story explained that "the direction of war" in particular necessitates a "single hand" but, as in The Federalist, the rejected alternative was not statutory control but rule by a plural executive. n145 Indeed, in discussing Congress's power to raise armies, Justice Story indicated that it would encompass means "unlimited in every matter essential to its efficacy," including the "formation, direction, and support of the national forces." n146 Moreover, Justice Story specified that Congress's power to declare war may be used to authorize "general hostilities, in which case the general laws of war apply to our situation; [*983] or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed." n147 While Congress followed the former course in 1812, Justice Story explained, "the latter course was pursued in the qualified war of 1798 with France, which was regulated by divers acts of congress, and of course was confined to the limits prescribed by those acts." n148 Still, despite this endorsement of the principle set forth in Bas and applied in Little, Justice Story never conclusively declared which department would have the final word in the event of an interbranch conflict on such matters in an actual declared war, or just how broad Congress's regulatory powers were even in a more limited conflict. n149 William Rawle's 1825 treatise came closer to addressing the question, albeit in a brief and less-than-illuminating manner. Rawle specifically recognized broad legislative powers as to the military in peacetime, appearing to leave little outside the legislative ambit. n150 As to "the emergencies of a war," however, Rawle noted that exigencies could justify the president ... in preferring the execution of his constitutional duties, to the literal obedience of a law, the original object of which was of less vital importance than that created by the exigencies of the moment, and there can be no doubt, that this necessary power would extend to the erecting of new fortresses, and to the abandoning of those erected by order of congress, as well as to the concentration, division or other local employment of the troops, which in his judgment or that of the officers under his command, became expedient from circumstances. n151 Although this passage would appear to argue for entrusting the President with substantial wartime power as a practical matter, even to ignore "the literal obedience of a law" in exigent circumstances, Rawle expressly disclaimed the idea that he was defending a President's right to defy congressional will: "This would not be a violation of the rules laid down in the preceding pages" requiring executive compliance with statutes pursuant to the President's duty to take care that the laws be faithfully executed, Rawle explained, "since the obligation of the law is [*984] lost in the succession of causes that prevent its operation, and the constitution itself may be considered as thus superseding it." n152 In other words, Rawle appeared to be explaining that in war, a preexisting statutory limitation might be properly construed not to continue to have its full peacetime force and effect. Rawle said nothing directly, however, about what should happen in the event the President and the Congress disagree as to whether the President must abide by a restriction that is properly construed to apply to the conduct of war. The evidence from the treatises of the time, therefore, is fairly inconclusive. The most one can say with confidence is that there appeared to be a general understanding that Congress could exercise control over the armed forces at least in peacetime; that the function of the Commander in Chief Clause itself was, as Justice Story suggested, to establish a hierarchical guarantee within the military establishment; that the teachings of Bas and Little were endorsed; and that there was no consensus about a broad or unqualified preclusive executive power over the deployment of troops or the conduct of campaigns such as would come to dominate the views expressed in similar compendiums published in the decades following Reconstruction. 3. Executive Branch Views in the Antebellum Period. - Although Congress continued to regulate military matters throughout the period, the Supreme Court had no occasion to weigh in on this issue in the decades following Brown. But interestingly, just as the judiciary had less reason to address the issue, the Executive appeared to have more. In fact, some of the earliest and most significant statements of the extent of Congress's authority to regulate the Commander in Chief were offered during this time period. They touched on the full range of issues that concern us, from the existence of a preclusive power of superintendence over the armed forces to the extent of the Congress's authority to curb the President's substantive war powers. (a) Preclusive Superintendence Prerogatives. - As the antebellum period drew to a close, President Buchanan endorsed the indefeasible or preclusive power of superintendence over the military n153 in the fascinating case of Captain Meigs and the Washington Aqueduct. n154 In 1852, before Buchanan had taken office, Montgomery C. Meigs, a brilliant and eccentric captain in the Army Corps of Engineers, was assigned to survey the water supply for the cities of Washington and Georgetown and eventually to oversee the War Department's construction of an aqueduct along the Potomac River. Meigs's subsequent [*985] report recommended that an aqueduct be built just above Great Falls, north of Washington. Congress approved that recommendation, and the Department of War began work on the aqueduct, led by Meigs himself. For several years, things ran very smoothly. In the Buchanan Administration, however, Meigs's relationship with Secretary of War John Floyd turned sour: Floyd dismissed Meigs and made sure the Administration's proposed budget included no funds for work on the aqueduct. Meigs himself, a beloved figure on Capitol Hill, then successfully lobbied Congress for a bill appropriating half a million dollars for the aqueduct to be spent "according to the plans and estimates of Captain Meigs, and under his superintendence." n155 In his signing statement to this appropriations bill, President Buchanan wrote that if Congress had meant to give Meigs discretionary authority to determine how the aqueduct project would proceed, it would interfere with the President's "right ... to be Commander in Chief." n156 Buchanan concluded, therefore, that it was "impossible that Congress could have intended to interfere with the clear right of the President to command the Army" by "withdrawing an officer from the command of the President and selecting him for the performance of an executive duty." n157 Buchanan thus construed the statutory "condition" as precatory rather than as mandatory. n158 The Secretary of War thereafter permitted Meigs to superintend the project, but denied him any discretionary authority by refusing to permit Meigs to be chief engineer of the Washington Aqueduct. Meigs complained to the President that this was in clear violation of the statute, and that the aqueduct had to be built not only according to his designs but, more importantly, under his superintendence - a power that Meigs understood to give him control over all discretionary decisions. This prompted an opinion of Attorney General Jeremiah Black to the President, affirming the constitutional inviolability of the army chain of command. Black agreed with the President that if the statute were construed to give Meigs the power to build the aqueduct "without accounting to his superior officers" and "according to his own uncontrolled will," n159 it would be constitutionally dubious: Congress could not make Meigs "independent of [the President]," even as a condition on an appropriation rather than through an outright requirement. n160 Therefore the Attorney [*986] General rejected such a construction: "This clause of the appropriation bill was not intended to appoint Captain Meigs chief engineer of the acqueduct, nor was it meant to interfere with your authority over him or any other of your military subordinates." n161 (b) Preclusive Substantive Powers. - The Meigs case is sometimes cited in support of the theory of a substantive preclusive power of presidential command. n162 But neither Attorney General Black's opinion nor President Buchanan's signing statement adverted to any prerogative of the Commander in Chief to disregard substantive statutory commands, nor did the statute even concern actions during wartime. At most, Buchanan and Black were arguing that if Congress chooses to assign a certain function to the army, even outside the context of war, Congress may not assign discretionary aspects of that function to a lower-level officer to be carried out "according to his own pleasure," n163 with complete independence from presidential supervision or control. n164 [*987] In fact, Black took an expansive view of congressional power to define the extent of substantive Commander in Chief powers in response to a subsequent request for an opinion on the subject from President Buchanan: To the chief executive magistrate of the Union is confided the solemn duty of seeing the laws faithfully executed. That he may be able to meet this duty with a power equal to its performance, he nominates his own subordinates, and removes them at his pleasure. For the same reason the land and naval forces are under his orders as their commander-in-chief. But his power is to be used only in the manner prescribed by the legislative department. He cannot accomplish a legal purpose by illegal means ... . n165 Indeed, with the possible exception discussed below, we have been unable to find any suggestion during the seventy years between ratification and Lincoln's election that the executive branch ever invoked any constitutional objections to statutory constraints on the Commander in Chief's tactical discretion or substantive command authorities, either in wartime or in peacetime. To be sure, such quiescence does not necessarily imply acceptance. But a series of antebellum-era Attorney General opinions affirm that the Executive's authority was subject to statutory supersession - even in areas where the President had extensive independent authority to regulate the operations and [*988] government of the armed forces, including questions respecting command structure. n166 To be sure, these opinions did not deal with wartime tactical decisions, as such, but they are express in endorsing general constitutional assumptions regarding the supremacy of statutes over what would otherwise be a Commander in Chief's constitutional discretion. Moreover, in setting forth broad propositions about the Executive's subjection to statutory control, these opinions make no effort (as contemporary executive branch opinions frequently do) to exempt tactical judg-ments from their scope. n167 (c) Fillmore's Equivocal Discussion of Preclusive Substantive Pow-ers. - The possible exception to this pattern occurred in 1851, in a law enforcement - not war - setting. President Fillmore contemplated using both the militia and the armed forces to help enforce the Fugitive Slave Act against groups in Boston trying to rescue slaves from return to servitude. The Senate passed a resolution requesting information from Fillmore about the incident, the means he had adopted to deal with the issue, and whether, in his opinion, "any additional legislation is necessary to meet the exigency of the case, and to more vigorously execute existing laws." n168 In a letter to the Senate the next day, Fillmore explained that he had the power to deal with the issue under the 1795 Militia Act and the 1807 Insurrection Act, which respectively authorized the President to call forth the militia, and to use the armed forces, to enforce domestic laws. n169 Recall that the 1795 Act provided that "the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time," and the 1807 Act appeared to incorporate by reference this "pre-requisite[]" of an advance dispersal warning to insurgents. n170 Fillmore wrote that there was "some doubt" whether the proclamation requirement of those older statutes applied when the militia and armed forces were called forth for purposes of executing the laws, as [*989] opposed to suppressing insurrections. He urged Congress to clarify that there was no early-notice requirement in such situations. "Such a proclamation in aid of the civil authority," he argued, "would often defeat the whole object by giving such notice to persons intended to be arrested that they would be enabled to fly or secrete themselves." n171 Fillmore further suggested that he had a preexisting constitutional power to use the extant armed forces to enforce domestic laws, in which case the proclamation requirement would be a statutory condition imposed on the exercise of the Commander in Chief's Article II authority. Fillmore therefore wondered whether Congress's 1807 incorporation-by-reference of the proclamation prerequisite had been inadvertent. He insinuated that insofar as the 1807 law were construed to require advance warning of the use of the armed forces, and not just the militia, such a construction might raise constitutional questions: It appears that the Army and Navy are by the Constitution placed under the control of the Executive; and probably no legislation of Congress could add to or diminish the power thus given but by increasing or diminishing or abolishing altogether the Army and Navy... . Congress, not probably adverting to the difference between the militia and the Regular Army, by the act of March 3, 1807, authorized the President to use the land and naval forces of the United States for the same purposes for which he might call forth the militia, and subject to the same proclamation. But the power of the President under the Constitution, as Commander of the Army and Navy, is general, and his duty to see the laws faithfully executed is general and positive; and the act of 1807 ought not to be construed as evincing any disposition in Congress to limit or restrain this constitutional authority. n172 Fillmore was not clear as to the source of his constitutional objection - whether it derived from the Commander in Chief Clause, from the Take Care Clause, or from some combination of the two. In any case, Fillmore suggested that Congress could not disable the President from fulfilling his constitutional obligation to ensure that federal statutes were faithfully executed. Indeed, as to the question of whether Congress could add to or diminish his powers of control over land or naval forces already raised, Fillmore was notably equivocal, averring [*990] only that such legislation would "probably" be unconstitutional. n173 In any event, he seemed to base that judgment not on any idea that wartime tactics or operational judgments on the battlefield were for the President alone, but rather on the much more sweeping and seemingly indefensible ground that all decisions pertaining to the armed forces are beyond statutory control. n174 Whatever Fillmore meant to assert, Congress can hardly have been said to have acceded to it, either in direct response or in debates shortly thereafter. A few weeks after the question of statutory amendment was referred to the Senate Judiciary Committee, the committee reported that, in light of the 1795 and 1807 statutes "and the experience of the past," n175 "further legislation is not essential to enable the President to discharge, ... with fidelity, his high constitutional duty to see that the laws are faithfully executed." n176 In so acting, the committee did not respond directly to Fillmore's request that it clarify whether the 1807 Act required an advance warning to lawbreakers that the President was about to use the armed forces. n177 Senator Andrew Butler did write separately, fearing that the committee's silence with respect to that question might otherwise be viewed as "a tacit recognition" of Fillmore's constitutional argument. n178 Butler appeared to reject Fillmore's suggestion that Congress could not condition the President's use of the armed services, but his reasoning was a bit ambiguous: For the specific and sometimes delicate purposes indicated [by statute], I think Congress has the direction of the President. When actually in command, for repelling invasion or for any other purpose, he must exercise his own judgment, under his constitutional discretion. In one sentence, [*991] I deny that the President has a right to employ the army and navy for suppressing insurrections, &c., without observing the same prerequisites prescribed for him in calling out the militia for the same purpose. ... I would regard it as a fearfully momentous occasion to see the Army called out to shoot down insurgents without notice or proclamation. n179 Thus, although it is difficult to know quite what to make of the Senate committee's silence on the constitutional question, the legislature's refusal to amend the statute surely does not suggest that Congress assented to Fillmore's suggestion of constitutional difficulties. n180 4. The 1852 Troop Deployment Debate in the House of Representatives. - In a revealing 1852 debate in the House of Representatives about legislative direction of actual troop deployment, legislators expressed opposition to what would have been the broadest version of Fillmore's constitutional claim. Six years earlier, Congress had enacted a law raising a regiment of riflemen, ostensibly to protect emigrants to Oregon from the Native Americans in the area, although the law did not specifically instruct the President to station the troops in Oregon and instead only mentioned that purpose in its title. n181 When President Polk used the regiment in the Mexican War instead and then later assigned it to California, Delegate Joseph Lane, of the Oregon territory, introduced a resolution requesting the President to send the rifle regiment to Oregon, "the service for which said troops were created." n182 The debate that ensued marked the most serious and extensive discussion of Congress's powers to restrict the Commander in Chief in more than half a century. n183 Although it did not result in the enactment of a new legislative restriction, the debate indicates that the legislature had by no means suffered a general loss of confidence in its powers. [*992] Representative Thomas Bayly opposed the resolution on the ground that the House had no power to direct the Commander in Chief's chosen troop movements, n184 an assertion that Representative Cyrus Dunham remarked was "so strange, so novel, and so important, that I do feel it ought not to pass unnoticed." n185 In Dunham's view, such a theory would in effect "neutralise the power which Congress has to declare war." n186 Representative David Cartter likewise called Bayly's doctrine "extraordinary" and "alarming," because it would "throw the whole safety of the empire into a single man's hands." n187 The President's designation as "Commander in Chief," said Cartter, means simply that he "is the drill officer of your forces." "With the detailed disposition of the Army he does hold the sovereign command, but that disposition must be subordinate to and resolved within the legislative purpose declared in creating the force, and disposing the point of defense." n188 Representative James Brooks then emphasized a central point as to which no rejoinder was made - the difference between the President being subject to control by one or both houses of Congress and the President being subject to control by statute. Like Bayly, Brooks, too, thought the resolution would be construed as directory and as such would be unconstitutional, but only because it was not in the form of an enacted law. Brooks did not deny that "the legislative power of the country" could control the direction of the army, n189 but he argued that the House of Representatives, standing alone, could not exercise such control - for then we would have not one Commander in Chief, "but two hundred and thirty-odd Commanders-in-Chief." n190 Nor could the two Houses of Congress collectively control the President's direction of the army: "It not only requires the assent of both Houses, but it must have the approval of the Executive before that control can be had." n191 Disposition of the army "is altogether in the Executive," Brooks explained, "when legislation has done with it." n192 [*993] 5. Conclusion. - The decades following the War of 1812 were marked by presidential assertions of a limited unilateral authority to use force abroad. But even as the military establishment grew, and battles were being fought over whether the Congress's formal authority to declare war was being whittled away (as occurred with respect to the Mexican War and the Florida war), n193 no notion of preclusive executive power over the conduct of campaigns took root. Constitutional treatises of the era did not endorse it. Congress did not act in accord with it. And executive branch opinions, the Fillmore statement notwithstanding, consistently endorsed views inconsistent with it. III. The Civil War and Its Aftermath As with important aspects of the current conflict against al Qaeda, the Civil War occurred on U.S. soil, and the Union's prosecution of the war had a direct impact on U.S. citizens and residents, including those aligned with the enemy. Moreover, President Lincoln's actions, especially in the first weeks of the war, and then again in issuing various orders to suspend the writ of habeas corpus and in promulgating the Emancipation Proclamation, are generally understood to be the historical high-water mark of assertions of broad, unilateral executive war powers. Defenders of the Bush Administration's assertions of Commander in Chief prerogatives, therefore, often invoke Lincoln as an important historical precedent. For these reasons, the understanding of the Commander in Chief power during the Civil War and its aftermath is especially relevant to the current debate. This period is therefore the centerpiece of our historical survey. During and immediately after the Civil War, the argument for a preclusive, substantive Commander in Chief power first emerged in earnest. That argument did not, however, come from the source one might expect - President Lincoln. Lincoln himself never once asserted a broad power to disregard statutory limits, not even during his well-known exercise of expansive executive war powers at the onset of hostilities or when confronted with statutes that challenged his own tactical choices later in the war. He did draw upon certain claims of necessity, but he never made the broader contention at which Fillmore had hinted. The claim of a preclusive Commander in Chief prerogative, instead, found its first real flowering in three other sources: first, a series of impassioned speeches by Illinois Senator Orville Browning during the Senate's debate over the Confiscation Act of 1862; second, a dictum in Chief Justice Chase's concurrence in the postwar case of Ex [*994] parte Milligan; n194 and third, the first edition of Professor John Norton Pomeroy's influential treatise, An Introduction to the Constitutional Law of the United States, published in 1868. The latter two sources have been invoked by proponents of similar claims throughout the remainder of our constitutional history. The actual conduct and understandings of Congress, the President, and the Court during the Civil War and its aftermath, however, accorded much more with the seventy years of prior constitutional practice than with these purported summations of constitutional wisdom. A. The Laws of War and the Lieber Code Like Presidents during the antebellum period, President Lincoln did not consider himself free to execute war in any manner he might choose, even in the absence of statutory limitations. He shared the traditional assumption n195 that the Commander in Chief's war powers were constrained by the laws of war, an assumption that continued to be unquestioned across all three branches. In fact, Lincoln resolved to memorialize the laws and usages of war in military regulations so that Union forces might better understand and honor them: in May 1863, the Adjutant General's Office issued what became colloquially known as the Lieber Code. n196 [*995] Of course, even after this codification, the precise contours of the jus belli were not entirely clear, especially on the question of what constituted military "necessity." This ambiguity afforded Lincoln and other military commanders considerable interpretive discretion. n197 Nevertheless, Lincoln assumed, along with everyone else who opined on the subject, that his armed forces were constrained by those customary laws, the contents of which were not a product of the commander's own judgments but were, rather, determined by internationally accepted norms developed independent of any particular commander's discretionary choices. n198 It is not surprising, therefore, that, once again, many of the great war powers debates (as in the Quasi-War with France) turned on questions regarding whether Lincoln's chosen means of prosecuting the war - such as the blockade of [*996] Southern ports and the Emancipation Proclamation - were consistent with the international laws of war. n199 Important as the laws of war were, however, a striking feature of the Civil War is the role that statutory enactments played, both in setting the terms of battle and in generating constitutional decisions and opinions concerning war powers. As with the war on terrorism, this was a military conflict that was being fought in a legal context thick with potentially applicable statutory provisions. That was in part because, as might be expected of any war taking place on American soil, there were seemingly relevant preexisting measures already in place (such as the habeas provision of section 14 of the Judiciary Act of 1789 n200). But it was also a function of the fact that there was an aroused Congress that was in important respects much more aggressive in its view of how the war should be prosecuted than was the chief commander himself. As we shall see, however, the Executive's [*997] constitutional arguments in response to this legal reality were significantly different from those made in recent years. B. Lincoln's Assertion of Executive Prerogatives in the Spring of 1861 When the Confederacy initiated the war in April 1861, the federal armed forces were hardly a powerful fighting force. Moreover, Congress was not in session. The newly elected President thus found himself alone in Washington, with no obvious way to meet the impending challenge but also no legislative branch positioned to countermand him. It therefore should not be surprising that in the twelve weeks between the firing on Fort Sumter and Congress's return to Washington, Lincoln exercised several controversial unilateral executive war powers. The President's first order of business was to invoke his authority under Article II, Section 3, to convene Congress back into session - but only effective July 4, 1861, at which time he delivered a now-famous message to the legislature explaining his conduct in the intervening period. n201 The delay was perhaps justifiable in light of the rioting in Maryland and the prospect that Washington, D.C. (and Congress) might soon be behind enemy lines. n202 What is certain is that Congress's absence in the interim allowed Lincoln to act unilaterally and with dispatch, without the need to have his decisions debated and ratified (and possibly amended or barred) by Congress. Most of what Lincoln did during those twelve weeks would today be viewed as falling within the first two of Justice Jackson's Youngstown categories. Lincoln immediately issued a proclamation calling for the blockage of Southern ports and for the states to supply 75,000 new militia. As to each of these, Lincoln explained in his July 4 message to Congress, his action "was believed to be strictly legal," n203 by which Lincoln presumably meant to refer to the statutory delegations to the President in the Militia Act of 1795 and the Insurrection Act of [*998] 1807. n204 (The Supreme Court would later hold in the Prize Cases that those statutes authorized the blockade. n205) Without statutory authorization, Lincoln dispatched war ships to Fort Sumter and instructed them to return fire if attacked, n206 but there was no contention that such action conflicted with any statute. Three other of Lincoln's actions, however, might fairly be said to have transgressed statutory limits. We discuss Lincoln's explanation of each of them in turn. As we shall see, Lincoln and his Administration repeatedly avowed that Congress, by statute, retained the final word as to not only these three matters but others. Lincoln also refrained from ever asserting any authority to disregard statutes regulating the conduct of the war. Indeed, on April 18, 1861, six days after the attack on Fort Sumter, one day after Virginia's secession, and just a day before the naval blockade, Attorney General Edward Bates wrote a formal opinion to Lincoln disclaiming that very authority. The opinion concluded that the President could not establish a separate Bureau in the War Department to supervise and regulate the newly called-up militia. n207 Bates explained that, as Commander in Chief, the President did have what we have been calling a "superintendence" prerogative: he could appoint the Secretary of War as his "regular organ" to promulgate rules and orders as the acts of the Executive, "binding on all within the sphere of his just authority." n208 That hierarchical authority was not, however, supplemented by a substantive preclusive prerogative, as Bates explained in the very next sentence: "But this power is limited and does not extend to the repeal or contradiction of existing statutes ... ." n209 1. Suspension of the Writ. - Beginning in April 1861, Lincoln authorized army generals to "suspend the writ of habeas corpus for the public safety" where necessary - first between Philadelphia and Washington (in response to rioting occurring in Maryland), and later in [*999] other locations, reaching as far north as Maine. n210 Of course, the army generals were hardly in a position to "suspend" the statutory power of courts to issue writs, and no effort was made to use military force to compel judges to refuse to entertain habeas petitions. The notion of executive "suspension," then, is something of a misnomer. What Lincoln's order allowed was for army generals to detain persons without conforming to the procedural requirements otherwise applicable by virtue of constitutional or statutory requirements that usually govern such deprivations of liberty. n211 At the limit, the suspension orders even supplied a basis for refusing to produce detainees when ordered to do so by courts. Indeed, Lincoln went so far as to permit his officers to disregard actual judicial orders granting habeas relief, including one from Chief Justice Taney, sitting as a circuit judge, in the famous case of Ex parte Merryman. n212 To ignore such judicial orders was to scoff at an executive obligation that was arguably contemplated by statutory law n213 and to render the 1789 statute essentially meaningless insofar as its prime function had been to check unlawful executive detentions. In this sense, the "suspension" issue presented as serious a Category Three case as one could conjure. In his July 4 message to Congress, Lincoln defended his action in "suspending" the writ with his famous remark suggesting that a President might choose to violate a single law lest "all the laws but one ... go unexecuted." n214 But in making this statement, the President was not asserting a general constitutional power as Commander in Chief to pick and choose among statutory mandates regulating the conduct of war. He was instead remarking on the President's responsibility to take action on an emergency basis when doing so is necessary to preserve the nation. n215 Even here, Lincoln was careful to insist [*1000] that Congress retained ultimate control, and he readily conceded that his bold initiatives, including those regarding the suspension of habeas, were subject to statutory qualification or override: "Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress." n216 In other words, Lincoln was arguing that so long as a power resided in the Congress, and the Congress was unable to act because it was not in session at a moment of emergency or crisis, the President could, in effect, act so as to preserve the nation. Although such initial executive action would clearly shift the burden of inertia sharply in the Executive's favor, Lincoln did not challenge Congress's authority to countermand the President's emergency actions. But as much as Lincoln made reference to necessity, he ultimately rested his legal position on an even more technical and bounded ground, albeit one that was and is still quite controversial. Lincoln argued that the Suspension Clause itself empowers the President to suspend the privilege of the writ of habeas corpus in cases of rebellion or invasion, at least when Congress is not in session. n217 In other words, Lincoln was claiming that the Suspension Clause authorized both Congress and the President to render the habeas statute ineffective in cases of emergency, making this particular exercise of emergency executive power especially legitimate as a legal matter. This may not have been the strongest reading of the Suspension Clause - Chief Justice Taney certainly did not think so n218 - but it was a far cry from a claim of a general power pursuant to the Commander in Chief Clause to defy statutes regulating the conduct of war. n219 [*1001] 2. Expending Unappropriated Funds To Raise Troops. - On May 3, 1861, Lincoln issued a proclamation in which he "called into the service of the United States 42,034 volunteers to serve for the period of three years, ... to be mustered into service as infantry and cavalry," and in which he "directed" that the army "be increased by the addition of eight regiments of infantry, one regiment of cavalry, and one regiment of artillery, making altogether a maximum aggregate increase of 22,714 officers and enlisted men," and that the navy enlist an additional 18,000 seamen. n220 These increases in the army and navy did not, perhaps, transgress any express specific statutory limits; but they did violate the implied limit established by Congress's existing appropriations statutes. Therefore this conduct could fairly be viewed, as some have portrayed Jefferson's unilateral conduct in the Chesapeake incident in 1807, n221 as an executive initiative that violated a statutory restriction - in addition to violating the constitutional directives that "no Money shall be drawn from the Treasury, but in consequence of appropriations made by law," n222 and that it is for Congress to raise the army and provide and maintain a navy. n223 In defending this action in his July 4 address, Lincoln did not invoke any notion of a preclusive power over the conduct of a campaign, not even to suggest that Congress would be powerless to preclude him from using the troops now that they were under his command. He instead took a tack akin to the one Jefferson had taken after the Chesapeake incident. Lincoln mounted a bounded necessity defense, owing to Congress's absence at a moment of crisis. He explained that he had acted only because Congress was not available and because he was confident that he was a surrogate of the legislature, in effect acting in trust for it. In this sort of case, Lincoln argued, technical compliance with existing statutes might not be compelled: "These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting, then, as now, [*1002] that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress." n224 3. Secret and Unauthorized Expenditures to Private Persons To Raise Troops. - The third of Lincoln's apparent statutory transgressions is the least remarked upon but perhaps the most important for our purposes. On April 20, 1861, just eight days after the attack on Fort Sumter, Lincoln authorized naval commandants to purchase or charter, and arm, several steamships for public defense; directed the Secretary of War to authorize two New Yorkers (including the Governor) to make arrangements for the transportation of troops and munitions; and directed the Secretary of the Treasury to advance two million dollars to three New Yorkers - John Dix, George Opdyke, and Richard Blatchford - "to be used by them in meeting such requisitions as should be directly, consequent upon the military and naval measures, necessary for the defense and support of the Government." n225 These expenditures were inconsistent with Congress's appropriations. The private contracts also appear to have violated an existing statute that prohibited the Secretaries of State, Treasury, War, and the Navy from making any contract "except under a law authorizing the same, or under an appropriation adequate to its fulfillment." n226 They were also effected in secret, putatively because Lincoln was afraid the executive branch contained many disloyal employees who could not be trusted in such matters. n227 Notably, Lincoln omitted mention of these expenditures in his July 4, 1861, speech to Congress. They were not publicized until the following April, after the House of Representatives had censured former War Secretary Simon Cameron for, among other things, having involved the government in some of those private contracts. n228 Four weeks after the censure - more than one year after the events took place - Lincoln wrote to Congress to explain that Cameron had acted with the approval of the President and the entire cabinet, all of whom had convened on April 20, 1861 and unanimously decided to take such extraordinary steps. Consistent with his apparent notions of constitutional [*1003] restraint, Lincoln did not attempt to justify his undisclosed extrastatutory actions on the ground that, like Jefferson before him, he had all along acted only on the assumption that he was doing what Congress would have wanted and that he was happy to have Congress inform him otherwise. He had, after all, kept the matter secret and waited well past the moment of exigency and the return of Congress to even disclose it. Perhaps for that reason, Lincoln confessed that some of these measures "were without any authority of law," but claimed they were justified nonetheless because they were needed to ensure that "the Government was saved from overthrow." n229 Lincoln did not claim that his actions were legal, let alone that he had a constitutional prerogative to disregard Congress's will as expressed in statutory directives. Instead, he confessed to being responsible for "whatever error, wrong or fault was committed." n230 Such a confession of error suggests Lincoln's unwillingness to articulate any notion that wartime decisions are constitutionally committed to the President alone. For if he had rested on that alternative sort of argument (a version of which Fillmore had obliquely hinted at years before n231), Lincoln could have cloaked all of his actions (including these) in the cover of the Constitution. And yet Lincoln did not invoke that argument. 4. Conclusion. - When Lincoln made his speech to Congress on July 4, 1861, he had good reason to believe Congress would ratify most of his decisions. And one month later, Congress did just that, as to virtually all of Lincoln's unilateral conduct other than the suspension of the habeas writ, which it did not address until 1863 (more about which below). n232 But Lincoln certainly did not suggest it was irrelevant whether he would obtain such approval from Congress; on the contrary, he portrayed himself as being subject to the legislature's ultimate determinations. n233 In light of the support and good will he enjoyed [*1004] in Congress in July 1861, such deference to the legislature was certainly an advantageous posture for Lincoln to assume. But notably, Lincoln did not simply receive whatever authority he requested. As it happened, even after the crisis of April 1861, Congress occasionally enacted statutes that impinged on the President's discretion with respect to the conduct of the war. Although the legislature generally granted Lincoln broad discretion, in some cases Congress thought that he had gone too far in the exercise of war powers; and in other cases, [*1005] not far enough. The Habeas Corpus Act of 1863 is one example of the former; the Confiscation Act of 1862 is an example of the latter. C. The Habeas Corpus Act of 1863 The one major initiative of Lincoln's that Congress did not immediately authorize in the summer of 1861 was the suspension of habeas corpus. When Congress began a new session in late 1861, some legislators thought it imperative to provide a legal framework for the exercise of this extraordinary power. The result of their work led all three branches to weigh in, in one form or another, on Congress's power to bind the President as to his preferred means of dealing with the enemy. 1. Congress Gives the President Less than He Wants. - Senator Lyman Trumbull, chair of the Senate Judiciary Committee, explained that although Lincoln's unilateral acts were "necessary when Congress had not assembled," once Congress convened "clothed with the power to grant whatever authority may be necessary to crush rebellion, ... we shall be derelict in our duty if we leave our positions here without having regulated by law the action of the Executive." n234 Trumbull proposed to codify, and thus to specify the terms and limitations of, the suspension of habeas that Lincoln had instituted earlier that year. n235 Without such legislation, Trumbull feared, the unregulated exercise of military authority upon citizens would be a "monstrous" prospect "in a free Government." n236 Thus the object of his bill was "to place the action

of the Government in crushing this rebellion under the Constitution and the law, ... the most important object that can engage the attention of Congress." n237 Congress did not finally settle on habeas legislation until March 1863, when it passed the Habeas Corpus Act. n238 For the most part, the Act ratified what Lincoln had done. Section 1 of the Act nominally authorized the President to suspend the writ "in any case throughout the United States" whenever in his judgment the public safety might require it. n239 But significantly, sections 2 and 3 cabined some of the authority that Lincoln had been exercising. Those sections directed courts to discharge detainees, other than prisoners of war, from military custody if they were held in states where the administration of the laws had "continued unimpaired" by the war and if a grand jury had failed to indict them after their detention; section 2 also required [*1006] officers having custody of such prisoners to obey such judicial orders. n240 2. The President Responds and the Supreme Court Weighs In. - Lincoln raised no constitutional objections to the newly restrictive legal framework, but he did construe the exemption in sections 2 and 3 very narrowly. In particular, his Administration construed it so it would not cover "aiders or abettors of the enemy" and all other prisoners who had previously been deemed "amenable to military law," n241 that is, "triable by military tribunals." n242 Three such persons to whom the Administration thought the exemption did not apply were William Bowles, Stephen Horsey, and Lambdin Milligan, U.S. citizens living in Indiana who had been convicted by military commission for offenses that included conspiring to overthrow the government, seizing munitions, and aiding the rebel army. They sought writs of habeas corpus, claiming that they should have been transferred out of military custody and tried, if at all, by the civilian courts that were open and available in Indiana. n243 The Supreme Court did not decide Ex parte Milligan until 1866, after the war had ended and after Lincoln had been assassinated. But although the Court's decision was issued after the guns had fallen silent, the Court plainly viewed the issue as concerning the constitutional war powers of the Executive. The case is most famously recalled for the majority's holding that the detainees had a constitutional right to be released from military custody - that even Congress could not authorize these citizens' military detention and trial, as long as civil courts were open (a question on which the Court divided 5-4). But before reaching that constitutional question, the Court addressed the statutory questions of whether Lincoln had properly suspended the detainees' right to seek the writ of habeas corpus, and, if not, whether their military detention itself conformed to the statute. The availability of habeas during the war would have been no small matter from the perspective of the Commander in Chief, especially with respect to detainees such as Milligan. n244 The Attorney General thus strongly urged the Court to hold both that Congress had afforded the President the detention authorization in question and that [*1007] the constitutional liberties available to criminal defendants in peacetime were inapplicable in war. In support of the latter argument, he wrote in his brief: After war is originated, ... the whole power of conducting it, as to manner and as to all the means and appliances by which war is carried on by civilized nations, is given to the President. He is the sole judge of the exigencies, necessities and duties of the occasion, their extent and duration. During the war his powers must be without limit, because, if defending, the means of offense may be nearly illimitable; or, if acting offensively, his resources must be proportionate to the end in view - "to conquer a peace." New difficulties are constantly arising, and new combinations are at once to be thwarted, which the slow movement of legislative action cannot meet. n245 In pressing this broad argument about the inapplicability of traditional constitutional liberties (such as the rights to trial by jury, to be afforded a grand jury, and to confront one's accusers) because of the need for executive discretion in war, the government did not express any doubts about Congress's constitutional power to limit that discretion. Notwithstanding the Administration's claim that the Constitution of its own force imposed no such restrictions, its brief did not suggest that the Habeas Act would be unconstitutional if construed to protect the detainees. n246 The Attorney General went on to say that the free hand of the commander that he argued for was "axiomatic in the absence of all restraining legislation by Congress." n247 The Administration [*1008] even cited approvingly Justice Story's pro-congressional-power language in Brown: "The sovereignty, as to declaring war and limiting its effects, rests with the legislature. The sovereignty as to its execution rests with the President." n248 Such a recognition of congressional power was no problem in Milligan itself precisely because, the government argued, Congress had authorized the President's actions in the case when it provided for the writ's suspension in the 1863 Act. As for the Court, prior to reaching the government's claim about the irrelevance of constitutional protections in wartime, it unanimously rejected the Executive's statutory argument. It held not only that the Habeas Corpus Act of 1863 had denied the President the authority to suspend habeas as to persons such as Milligan (because he was not a prisoner of war as defined by the statute), but also that the Act prohibited the military proceedings against Milligan, and that because civil judicial proceedings had not been commenced against Milligan within the specified period, he was entitled to release. n249 This unanimous holding is itself a strong indication of a general understanding during the Civil War era that the President did not enjoy an unbridled constitutional power to decide how best to prosecute a war, at least when it came to trial and detention of persons not immediately in the theater of combat. In addition, like the Court's decisions in Rasul v. Bush n250 and Hamdan v. Rumsfeld n251 almost 140 years later, n252 and the decision in Little half a century earlier, n253 the case provided further indication of the Court's willingness in war powers cases to construe ambiguous statutory language against the President. At the same time, however, dicta in Chief Justice Chase's concurring opinion represented the first instance in which the claim to a preclusive Commander in Chief power over tactics in wartime had been plainly endorsed in a Supreme Court opinion - a point to which we return at the close of our discussion of this era. n254 [*1009] D. The Great Congressional Debate over the Confiscation Act of 1862 The Habeas Corpus Act of 1863 is the prime example of a Civil War statute that tempered the exercise of the President's war powers, in a case where Congress thought the Chief Executive was unduly infringing individual liberty. By contrast, one year earlier, Congress had enacted a statute largely animated by the opposite notion - that the President had been insufficiently aggressive in exercising his war powers. The Confiscation Act of 1862, or the Second Confiscation Act (SCA), is a striking example of Congress enacting legislation, in the midst of war, regulating the President's own war powers because of a sharp disagreement with the President about how best to prosecute that war against the enemy. In addition, the debate on the bill in the Senate contains what almost certainly is the most extensive and remarkable public discussion in our history concerning whether and to what extent Congress may enact legislation to regulate the exercise of the President's war powers. Of further interest is Lincoln's decision not to raise any constitutional war powers objection to the legislation. 1. The Run-up to the First Confiscation Act. - Soon after the war began, it became clear that the conflict would not be short-lived, and many in Congress began to question the conciliatory policies of the Union. At least at first, Lincoln preferred a measured response, with a minimum of provocation. He wished to ensure a peaceful reconciliation at war's end and, perhaps more importantly, thought it essential that the border states not be given any incentive to secede. There was, however, a movement among the Republicans in Congress (Radical and otherwise) to direct the war effort in a more aggressive manner. This relatively large faction believed the legislative branch possessed quite extensive war powers. Its members began to focus attention on a series of proposed statutes to seize and confiscate rebel property, and to deny rebels their slave labor. The initiative was fueled not only by hostile Southern actions, but also by the increasingly widespread impatience with the manner in which Lincoln was prosecuting the war. n255 2. The First Confiscation Act and the Fremont Affair. - The First Confiscation Act, enacted in the summer of 1861, authorized confiscation of rebel property (including slaves) that had actually been used to prosecute the war or to aid the insurrection. n256 Lincoln is reported to have signed the Act reluctantly, fearing that it would only prompt further rebellion. n257 His Administration implemented it only sporadically. [*1010] Reflecting a similar concern, Lincoln required Army Major General John C. Fremont to temper his order confiscating all property of persons found in arms against the United States in Missouri, including an emancipation of their slaves. Although Fremont's action, which went beyond the terms of the First Confiscation Act, found a great deal of support in many segments of the North, the President argued that it would "alarm our Southern Union friends, and turn them against us - perhaps ruin our rather fair prospect for Kentucky." n258 When Fremont failed to modify his order as Lincoln requested, Lincoln responded by personally amending the order to go no further than the First Confiscation Act allowed. n259 This pleased Democrats and border-state Unionists, but abolitionists such as Senators Charles Sumner and Benjamin Wade saw it as a lost opportunity, and as yet further evidence that Lincoln would not be aggressive enough in prosecuting the war. n260 3. The Second Confiscation Act. - With Northern newspapers clamoring for more assertive prosecution of the war, Congress reconvened at the end of 1861. A sizeable congressional contingent was now committed to bringing harsher measures to bear against the enemy, spurred in part by the Fremont affair. Most famously, Congress established the Joint Committee on the Conduct of the War to oversee the Union war efforts. The committee convened 272 meetings in its four-year existence, keeping a fire lit under Lincoln and the Union army and, in a sense, micromanaging the conduct of the war by use of the threat of negative publicity and exposure of malfeasance, rather than through statutory or other formal enforcement mechanisms. n261 Intrusive as the committee was, many of the Republicans in Congress wished to go further than the mechanisms of investigation alone [*1011] would allow. n262 And so the first substantive bill introduced in the Senate of the 37th Congress was a stricter confiscation law. The proposed statute took several forms in the many months it was debated in Congress, but all versions of the proposed statute contained one basic requirement - that the President seize certain categories of Southern property. In the final bill, enacted in July 1862, the power to seize was expressly described in the bill as an incident of war, an exercise of traditional belligerent authority undertaken for the purpose of prosecuting the conflict. It provided that "to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of [six classes of rebels], and to apply and use the same and the proceeds thereof for the support of the army of the United States." n263 The Act further included an emancipation provision in section 9, which declared that certain categories of slaves of armed rebels - those who would escape and take refuge with Union forces, those who would come under the control of the U.S. government, and those found in any territory occupied by U.S. forces - "shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves." n264 4. The Debate Over the Second Confiscation Act. - The bill was under consideration for all of the second session of the 37th Congress, and "an amazing volume of oratory was poured forth in its discussion." n265 In addition to disputation about the wisdom of the legislation, legislators also addressed several constitutional issues. These ranged from whether the proposal conflicted with international laws and thus exceeded congressional powers; n266 to whether the Constitution [*1012] permitted Congress to free slaves, even as an incident of war; n267 to matters concerning Fifth Amendment rights to due process and just compensation; and even to whether a permanent dispossession of property was consistent with the guarantee in Article III that "no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." n268 But for all the constitutional debate the Second Confiscation Act sparked, and for all the scholarly parsing of it that has occurred in recent years, there has been remarkably little consideration of the discussion of the constitutional issue that is our immediate concern. Congress also engaged in a separation of powers debate concerning not whether confiscation and emancipation were permissible war tactics, but instead which branch of the federal government had ultimate control over the question of whether such tactics were to be used. n269 The issue first arose in the House of Representatives, in comments by William Sheffield of Rhode Island in late January 1862. Sheffield reasoned that if the confiscation were permissible under the laws of war, it would be for the President, not Congress, to determine whether to exercise that belligerent right, because "the execution and direction of a war is with the President." n270 Although the President was bound by the laws of war, in Sheffield's view, Congress did not have any right to instruct the Executive how to discharge that duty. n271 On this view, Congress could no more require him to confiscate enemy property than it could "pass a law to-day directing the President to fight the enemy to-morrow at Manassas." n272 From there, the vast majority of the separation of powers debate took place in the Senate. The next day, Senator Edgar Cowan of Pennsylvania carried Sheffield's theme much further, broadly asserting that Congress could not determine when, where, or how the army should fight, and averring that the contrary view was "monstrous." n273 [*1013] Cowan's themes were taken up in much more detail, and with much greater erudition and at least equal passion, in late June 1862, by Republican Senator Orville Browning, Lincoln's close ally and friend from Illinois. Like Lincoln, Browning thought the confiscation measure was unwise, fearing that it would prolong the war. Because confiscation of enemy belligerents' property was, Browning argued, "an object which is now fully within the constitutional power of the Executive," n274 it was not something that Congress could compel. There is no indication that any Senator other than Cowan supported Browning's constitutional argument during the late June debate. Several Republican Senators (Wade and Sumner among them), however, subjected it to a withering counterargument in support of the notion that "Congress may make all laws to regulate the duties and the powers of the Commander-in-Chief." n275 After canvassing in great detail the context in which the Commander in Chief Clause was framed, for example, Senator Jacob Howard of Michigan emphasized that the title "Commander-in-Chief" could not possibly give the President a plenary power to control war unburdened by statutory constraint. Washington was designated "Commander-in-Chief" during the Continental Congress, and yet Congress plainly had the power to control his military maneuvering, Howard emphasized. n276 Nor, said Howard, had he found either "in the Federal convention, [or] in any State convention, one word, intimation, or hint, from any speaker in any one of these numerous bodies, affording a shadow of support for the claim now set up." n277 Browning responded that the example of General Washington proved exactly the opposite point. He contended that it was "the continued and repeated blundering and bungling of military operations when controlled and governed by Congress that influenced the convention to ignore the doctrine, and separate forever the direction of the Army from the control of Congress." n278 Browning's ingenious argument was that the Framers subjected the chief commander to some constraints - but only those imposed by the power that appointed him to be Commander in Chief. Under the Articles of Confederation, that appointing authority was the Continental Congress; after 1789, it was the Constitution itself. Thus, in such role the President [*1014] "is subject to all the restraints that the Constitution imposes upon him, and he is subject to none others." n279 Most significantly for our purposes, Browning's principal tack was the syllogism that is so common in the modern debates - to reason outward from the presumption that Congress could not direct the Commander in Chief with respect to the day-to-day, specific operational and tactical decisions on the battlefield. If Congress could not regulate such "active operations in the field" - could not "direct the movements of the Army" - Browning reasoned, it necessarily followed that neither could Congress require the President to confiscate enemy property, or to perform any of the other wartime functions traditionally determined by the Commander in Chief. n280 Senator Howard and others responded by rejecting the premise that operations in the field cannot be regulated by statute. Howard did not disagree with Browning that it would be absurd, and counterproductive, for Congress to enact such laws micromanaging the details of military conflict. n281 He explained, however, that this background presumption could be overcome in order to check military folly, or worse, "irretrievable disaster." n282 Howard explained why Browning's view could lead to disastrous results: Should the President, as Commander-in-Chief, undertake an absurd and impracticable expedition against the enemy, one plainly destructive of the national interests and leading to irretrievable disaster, or should he basely refuse to undertake one, or, having undertaken it, insist upon retreating before the enemy, and giving over the war to the manifest prejudice of the country, or should he treacherously enter into terms of capitulation with the manifest intent to give the enemy an advantage, would the Senator rise in his seat here and insist that Congress has no power to interpose by legislation and prevent the folly and the crime? And yet his doctrines as here announced would impel him to exclaim, "the country is without remedy; Congress is powerless; the Constitution furnishes no means to arrest the approaching ruin; we must not travel out of the Constitution; and we must submit our necks to the yoke. It is the will of the Commander-in-Chief, and that, and that only, in such a case is the Constitution." Sir, this new heresy deserves rebuke. n283 Browning was taken aback by the forthrightness of Howard's argument. He praised his adversary for "meeting the question in the most direct and manly terms." n284 But he insisted the legislature was [*1015] offered only an all-or-nothing choice: disbanding the army. Browning argued: When the Army is raised, when the Army is supported, when it is armed, when we are engaged in war, and it is in the field marshaled for the strife, I deny that Congress, any more than the humblest individual in the Republic, has any power to say to the President, do this or do that; march here or march there; attack that town or attack this town; advance to-day and retreat to-morrow; give up a city to be sacked and burned; shoot your prisoners. n285 5. Lincoln's Response. - In the end, Browning's view did not prevail. The Senate and the House passed the Second Confiscation Act, with Browning one of only three Republican Senators to vote against it. n286 Browning urged Lincoln not to sign the bill because "his course upon this bill was to determine whether he was to control the abolitionists and radicals, or whether they were to control him." n287 Although Lincoln submitted a veto statement to the House offering several objections to the bill, including some of a constitutional nature (dealing with the Treason and Due Process Clauses), n288 he conspicuously declined to raise any objections along the lines of Browning's Commander in Chief argument. Indeed, Lincoln eventually signed the bill, after Congress passed an "explanatory" resolution clarifying that the law would be only prospective and that the forfeiture of real property would not extend beyond the offender's natural life n289 - restrictions that tempered the bill somewhat but still left it, on its face, stricter than its predecessor. This compromise did not address Browning's separation of powers concern. But it did make the bill more palatable from the Administration's perspective. In fact, to the chagrin of the Radical Republicans, n290 the Act proved difficult to enforce, partly because the Attorney General pointedly refused to offer guidance on its meaning to district [*1016] attorneys. n291 Nevertheless, the bill was, as Browning knew, a remarkable example of a law regulating the discretion of the Commander in Chief. It dealt specifically with a tactic to be applied directly to the enemy. It imposed not a restriction, but an affirmative obligation on the President, because Congress perceived him as being insufficiently aggressive. And it was enacted not as a background, framework statute to govern all wars, but in the midst of a particular war, as a corrective to what Congress saw as an inadequate executive policy toward a particular foe. Nevertheless, as far as we have been able to discern, no executive branch official - including the President and his Attorney General - contended at any point in the extensive debate that the Act unconstitutionally interfered with the President's constitutional war authority. n292 [*1017] E. Regulating Military Dismissals and Tribunals As the war was drawing to a close, just before Lincoln's assassination, Congress continued in its assertive posture. It enacted a law that gave a court-martial the power to rule that the President's dismissal of a military officer was "wrongful[]," and to reverse that dismissal. n293 Lincoln did not object to the bill, and when, the next year, the Secretary of the Navy asked Attorney General Henry Stanberry for a legal opinion on the measure, Stanberry wrote that it fell "within the power conferred on Congress, by the fourteenth clause of section 8 of article I of the Constitution, "to make rules for the government and regulation of the land and naval forces.'" n294 He explained that it "proceeds upon an admission that the power of dismissal belongs to the President" and is "simply a regulation which is to follow a dismissal, providing, in certain contingencies, for the restoration of the officer to the service, and leaving the dismissal in full force if those contingencies do not happen." n295 To similar effect, in July 1865, Attorney General James Speed issued an opinion dealing with the question of whether the Lincoln assassination conspirators could be tried by a military commission created by presidential decree. n296 Speed explained that in the absence of a statute regulating such tribunals, the President could establish them, so long as they complied with the laws of war. n297 But he conceded at the outset that the President's authority was interstitial and secondary to Congress's: "Congress may prescribe how all such tribunals are to be constituted, what shall be their jurisdiction, and mode of procedure." n298 [*1018] This ruling would presage the Supreme Court's recent holding to the same effect in Hamdan. n299 F. After Lincoln: The Emergence of the Preclusive Power Argument Senator Browning's view of a preclusive Commander in Chief prerogative - a view that in 1862 appeared idiosyncratic and disfavored - received support after the war from two important sources. The first was a concurring opinion of the Chief Justice of the United States, Salmon P. Chase. The second was a prominent constitutional treatise that elaborated on the principle set forth by the Chief Justice. 1. The Chase Dictum. - The first source of support, Chief Justice Chase's concurrence in Ex parte Milligan, was joined by three other Justices. n300 As explained above, the Court unanimously held in Milligan that Congress had limited the manner in which the President could prosecute the war. n301 Chief Justice Chase's concurrence, in particular, was an even stronger defense of the breadth of Congress's war powers. n302 Nevertheless, in the midst of his paean to Congress's "power to provide by law for carrying on war," the Chief Justice added the dictum that such congressional power "necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief." n303 [*1019] Whatever the motivation for this brief aside, n304 it was the first judicial expression of the theory of the substantive Commander in Chief preclusive power that is now the centerpiece of the Department of Justice's defense of the Bush Administration's views. n305 Part of Chief Justice Chase's aside was also repeated with favor as dicta in Hamdan's majority opinion, n306 and it is reflexively endorsed by many contemporary war powers scholars. n307 2. Pomeroy's Treatise. - In its own time, the dictum in Chase's concurrence received a strong endorsement in one of the leading legal treatises of the day, Professor John Norton Pomeroy's An Introduction to the Constitutional Law of the United States. The first edition of Professor Pomeroy's treatise in 1868 used the dictum in the Chase concurrence as the jumping-off point for a remarkable exegesis on the limits the Commander in Chief Clause imposes on Congress's war powers. n308 Importantly, Pomeroy's basic understanding of Article I and II powers was, in a fundamental respect, contrary to the modern understanding as articulated in Justice Jackson's Steel Seizure opinion. Pomeroy, like Senator Browning in the Second Confiscation Act debate before him, was partial to the alternative separation of powers model of the time, which insisted that legislative and executive functions were rigidly separated, rather than overlapping. n309 This conceptualization [*1020] led Pomeroy to identify "two classes of powers and duties" of the President that "should be kept distinct." On the one hand, there was the President's duty to faithfully execute statutory enactments, where he acts not as commander but "as a supreme civil magistrate." On the other, there was the President's role as Commander in Chief, in which rather than executing positive laws, "he calls other attributes into action." n310 In the latter category, Pomeroy reasoned, statutes cannot bind the President. n311 Pomeroy cited virtually no authority, other than the dictum in Chief Justice Chase's concurrence, n312 in support of the exquisite distinctions that he drew between these two types of presidential functions. Pomeroy relied on his own understanding of the "policy of the Constitution," based on what he assumed was "felt" at the Founding, that "active hostilities, under the control of a large deliberative body, would be feebly carried on, with uniformly disastrous results." n313 Accordingly, reasoned Pomeroy (again, without the benefit of a single citation), "all direct management of warlike operations, all planning and organizing of campaigns, all establishing of blockades, all direction of marches, sieges, battles, and the like, are as much beyond the jurisdiction of the legislature, as they are beyond that of any assemblage of private citizens." n314 Pomeroy then proceeded to attempt to explain away Congress's seemingly overlapping Article I war powers. So, for instance, he reasoned that Congress's power to make "Rules concerning Captures on Land and Water" entitles Congress to determine only what the President may do once a capture is made, rather than who, or what, or when to capture. n315 Likewise, Pomeroy concluded that Congress's powers to raise and support armies and navies give the legislature the authority to determine the size, nature, and conditions of operation of [*1021] the army and navy, on numerous matters large and small, n316 but that no "particular statutes" passed pursuant to these powers "can interfere with the President in his exercise of [the command of the forces raised]." n317 Similarly, Pomeroy argued that Congress's power to enact "necessary and proper" legislation "must be supplementary to, and in aid of, the separate and independent functions of the President as commander-in-chief; they cannot interfere with, much less limit, his discretion in the exercise of those functions." n318 Finally, and most revealingly, Pomeroy understood Congress's Article I power to make rules for the regulation and government of the armed and naval forces to permit Congress to do a great deal n319 - even to go so far as to "adopt a system of tactics" n320 - but only if it left the President free, even in peacetime, to "make all dispositions of troops and officers, stationing them now at this post, now at that"; to send naval vessels to "such parts of the world as he pleases"; and to distribute arms, munitions, and supplies in locations and quantities of his choosing. n321 In wartime, Pomeroy explained, the limits were even more severe, such that the statutory rules governing the military could not "interfere in any direct manner with the actual belligerent operations"; the President as Commander in Chief had to be free to conduct "warlike movements." n322 Pomeroy attempted to reconcile these seemingly irreconcilable positions by appealing to a distinction between rules, as such, which Congress could impose, and "exceptional, or transitory mandates," which were outside Congress's authority. n323 [*1022] 3. Political Branch Practice in the War's Aftermath. - Notwithstanding these prominent expressions of support for a preclusive Commander in Chief power, the Reconstruction Congress was, if anything, more intent on asserting its power to control the conduct of military operations. Of course, there was, strictly speaking, no war occurring at the time, and so the statutory limits it enacted did not deal directly with the conduct of military campaigns against enemy forces. But neither was Reconstruction a period fairly characterized as peacetime. Thus, Congress's regulation of the command authority, chiefly by way of limits on the command structure of the military, was striking. Given the divide between the Congress and the President that resulted from Andrew Johnson's ascension to office, the interbranch battle for control over the military reached new levels of intensity, culminating in the new President's impeachment, though not conviction. But well before that climactic moment, the Republican-controlled Congress enacted several statutes designed to limit President Johnson's ability to control Reconstruction, at least two of which implicated his Commander in Chief authorities directly. n324 In each case, Congress cut back on the absolute discretion the President previously enjoyed as Commander in Chief to dismiss officers from the military service. n325 The Act of July 13, 1866, forbade dismissals of army and navy officers in peacetime without a sentence by court-martial. n326 This statute was in some respects a companion to the 1865 law that had given courts-martial the authority to reverse presidential orders of dismissal. n327 Much more significantly, the next year Congress enacted another statute - a rider to an appropriations bill that plainly shows Congress had not taken Chief Justice Chase's dictum to heart. The Act required that all orders relating to military operations by the President or Secretary of War be issued through the General of the Army (that is, Ulysses S. Grant), who could not be "removed, suspended, or relieved from command," except at his own request, without [*1023] Senate approval. n328 The rider also fixed the General's headquarters in Washington, D.C. (where he would be more accessible to the legislature); prescribed that orders or instructions relating to military operations issued contrary to the statutory method be deemed void; and provided that any officer of the army who issued, knowingly transmitted, or obeyed any orders inconsistent with the provisions of the rider, would be subject to imprisonment. n329 President Johnson signed the bill reluctantly, protesting that "in certain cases [it] virtually [deprived] the President of his constitutional functions as Commander in Chief of the Army" and was therefore "out of place in an appropriation act." n330 Then, on February 22, 1868, in a private conversation with Army Major General William Emory, Johnson expressed the view that the rider was unconstitutional. This conversation became the basis of the Ninth Article of Impeachment against Johnson, in which the House accused Johnson of trying to thereby induce Emory, as Commander of the Department of Washington, to disregard the law by acting upon Johnson's direct orders, without Grant's participation. n331 President Johnson's constitutional doubts about the March 1867 Act were probably well-taken, even on the narrowest reading of the Commander in Chief Clause, which recognizes what we have called the "superintendence" prerogative - namely, that because the President is the Commander in Chief, discretionary decisions about how to use the armed forces (at least as to certain military functions) must be subject to his control, and that no other person may be given command authority that supersedes the President's. By requiring that all orders emanate from General Grant, and by forbidding Johnson from removing Grant from office, the act effectively meant that Grant, and not Johnson, was at the apex of the chain of command, and that Johnson could not effectuate his own orders in cases in which Grant disapproved. n332 This striking shift of military superintendence away from [*1024] the President to a subordinate official was in sharp conflict with the prior eighty years of constitutional understandings of the limits of congressional authority over the Commander in Chief. G. Conclusion Precisely because the legislation just described was so aggressive, going so far as to all but displace the President as Commander in Chief, it is hard to review the evidence from the Reconstruction Era, Chief Justice Chase and Professor Pomeroy notwithstanding, as a defining moment in which the notion of a substantive preclusive Commander in Chief authority finally won widespread acceptance. Instead, the period running through the Civil War and its aftermath is largely continuous with what came before. To be sure, Lincoln asserted theories of necessity in sweeping ways, leaving one with a sense of just how much an Executive can achieve unilaterally in a moment of exigency. But the basic settlement to that point, in which the Executive assumed a posture of subjection to congressional control over war powers, was in some respects reinforced in the course of his doing so. In acceding to the Second Confiscation Act, President Lincoln prudently refused to antagonize a legislature that was clearly aroused. But it is by no means evident that Lincoln adopted merely a rhetorical stance in acknowledging congressional control. After all, Lincoln confessed unlawful actions to the Congress early on in the war, and later accepted legislation that he plainly disliked and that purported to direct him to deploy an actual tactic - the seizure of enemy property - that he had long declined to exercise. He did so, moreover, even as his ally Browning urged him to lay down a marker precisely because Congress was seized with as broad a view of legislative war powers as one could imagine. And yet, as much as this era suggests a deep wariness about the acceptability of preclusive executive war powers, it also, by the end, marked the first time in which the notion of a preclusive Commander in Chief power had won the kinds of endorsements that might suffice to make it a viable candidate for inclusion in the conventional understanding [*1025] of the constitutional plan. Whether that candidacy would prove successful was still to be determined. IV. From Post-Reconstruction Through the Geneva Conventions of 1949 When Professor Pomeroy published his treatise in 1868, his expansive and detailed theory of the Commander in Chief's prerogatives was fairly unique. n333 By the end of the next half-century, it was no longer. Legal writers increasingly assumed - without citing much by way of authority - that there were significant limits on Congress's power to enact statutes imposing substantive restrictions on the President's command of the army and navy. n334 Indeed, by the end of the [*1026] First World War, Pomeroy's basic analytic structure was dogma for many scholars. n335 This new wisdom was reflected most clearly in Professor Clarence Berdahl's influential 1920 volume, War Powers of the Executive in the United States. Berdahl asserted that the President alone is to decide "how the war is to be conducted" - a "despotic power," to be sure, but one that "nevertheless must be confided by a sound political science to the President." n336 [*1027] Throughout this period, however, the emergent theory of presidential exclusivity remained more an article of faith of academic commentators - and one whose practical implications for existing statutes and treaties were rarely if ever considered - rather than an Executive position articulated in response to real-world circumstances. That was true even though the era witnessed two world wars, a host of lesser military engagements, and the enactment of a mass of new statutory and treaty-based regulation of the military, which grew to be as complex and detailed as most other parts of federal law. Indeed, today Title 10 of the United States Code, and several war-related treaties, establish a comprehensive legal framework for the organization and conduct of the armed forces. Although many of these laws were and are targeted at the peacetime organization and deployment of the armed forces, at least some of the statutes enacted, and treaties ratified, during these years threatened to place considerable constraints on the Commander in Chief's treatment of the enemy. n337 Still other regulatory statutes specifically countermanded the President's military designs, particularly during the Administrations of Theodore and Franklin Roosevelt. But notwithstanding the appearance of these seemingly significant legislative obstacles, the executive branch (with one passing exception in a Supreme Court oral argument during World War II) continued to adhere to the long-prevailing political branch practice, in accord with Founding-era assumptions. n338 [*1028] A. The Increasing Importance of Treaty-Based Constraints As we have stressed throughout our survey, in our early constitutional history there was a general consensus that Presidents were constrained in their conduct of war by the laws and usages of war, even in the absence of statute. That same understanding remained in place in this latter period. n339 The Lieber Code - Professor Francis Lieber's great codification of the laws of land warfare - for instance, remained the standard instruction for the army during the Spanish-American War, and became such a revered source of guidance at West Point that Colonel Harry Smith referred to it as "our Bible in such matters ever since the Civil War." n340 Until very recently the armed forces professed to abide strictly by the laws of armed conflict. n341 What is more, the nation's chief commanders were increasingly subject to an additional set of treaty-based constraints on their actual conduct of war. Most of those treaties were multilateral instruments involving the so-called jus in bello, or the conduct of a belligerent state during war, such as the 1907 Hague Conventions (and the 1925 Geneva Protocol to the Hague Conventions). n342 The Hague rules were supplemented by even more stringent restrictions in the Geneva Conventions of 1929 and 1949. n343 [*1029] Indeed, certain articles of the Geneva Conventions restrict what can only be described as war tactics, n344 while others prescribe rules for the proper treatment of prisoners of war and other detainees in armed conflicts. n345 These treaty-based restrictions on the President's military options would appear to raise the same issues with respect to the Commander [*1030] in Chief Clause as do statutes - namely, whether and when they might impinge impermissibly on some core prerogatives of the President. n346 Yet as far as we are aware, no one in the executive branch or the Congress during this period publicly argued that the Commander in Chief has a constitutional prerogative to act in derogation of this wide array of treaty-based restrictions on the conduct of war. Nor was any theory proposed during this time that might explain why any preclusive power the President might enjoy as Commander in Chief would be less applicable to treaties than it is to statutes. n347 Although we do not independently address the constitutional issues raised by treaty restrictions in this Article, it is important to recognize that these additional, externally imposed constraints were fast being put in place, and apparently without occasioning any constitutional objections. n348 [*1031] B. From Reconstruction to the Progressive Era Congress continued to impose statutory restrictions respecting the armed forces during the interwar period. None, however, provoked assertions by presidential administrations of preclusive executive war powers of the kind that the broad statements of Professors Pomeroy and Berdahl seemed to endorse. That was true even when statutes purported to regulate the mechanisms of promotion within the military, and when bills proposed to limit the use of military power for domestic law enforcement. Nevertheless, there were few statutory interventions in these years implicating wartime strategy and tactics such as those that occasioned constitutional discussion in the Quasi-War with France, or in the Civil War. 1. Statutory Regulations of Appointment, Promotion, and Dismissal. - As a Court of Claims decision from the end of the nineteenth century indicates, there was a general acceptance of the principle that the Commander in Chief's superintendence powers were inviolable. n349 But executive administrations of this era understood that this preclusive power of superintendence still afforded Congress substantial room to regulate the processes of military hiring, promotion, and discharge - even when such concessions seemed at odds with Pomeroy's assumption that there are no overlapping war powers. As noted above, Attorney General Stanberry opined in 1866 that it was constitutional for a statute to give courts-martial the power to rule that the President's dismissal of a military officer was "wrongful," and to reverse that dismissal. n350 In 1882, Attorney General Benjamin Brewster addressed the mirror-image question: he concluded that the President could not annul a court-martial's prior judgment that a commissioned officer should be cashiered and forever disqualified from holding federal office (a judgment that had at the time been confirmed by the President, in accord with statutory procedure), nor nominate the cashiered officer to the Senate for restoration to his former rank, where such reconsideration was contrary to statutory procedures. n351 In between these two opinions, Attorney General George Williams in 1873 exhaustively canvassed the history of both executive branch regulations pertaining to appointments and promotions in the [*1032] military service, and statutory treatment of the same subjects. He concluded that although those functions are within the President's power in the absence of statutory regulation, there was a longstanding consensus between the political branches that Congress has significant superseding authority over the subject. n352 2. Regulations of the Use of Military Force. - We have already seen how the legislative impulse to regulate the President's use of force shifted course in the Civil War. Some statutes were designed to temper its use, while others sought to require it. In the late 1870s, Southern Democrats, resentful of the use of the federal military in the Reconstruction Era, were plainly in the tempering mode. They prevailed upon Congress to approve proposals restricting the use of the army for purposes of domestic law enforcement, thereby setting the stage for a possible executive branch assertion of the preclusive executive war powers theory. But no such argument was made. The most famous such restriction was the Posse Comitatus Act, which became law in 1878. n353 At the time of its enactment, as today, [*1033] the statute had only a modest impact on the President's ability to use the army for law enforcement purposes, because other laws - most importantly, the 1807 Insurrection Act n354 - expressly authorized the President to use the armed forces in case of domestic uprisings. President Hayes did, however, veto at least two bills in 1879 that would have further limited the use of the military for domestic law enforcement. Those bills would have prohibited the use of federal armed men, including from the military, to keep "peace at the polls," except where necessary to repel armed enemies of the United States. Hayes's first veto statement was focused on the bill's restriction on the use of civil authorities to enforce election laws. n355 The limitation in the second bill, however, was confined to the use of military forces at polling places. Hayes's veto message called that limit "a dangerous departure from long-settled and important constitutional principles." n356 This objection might be viewed as a variation on President Fillmore's earlier constitutional objection to the dispersal requirement of the Insurrection Act n357 - an argument that the restriction would eviscerate the President's ability to exercise his duty to take care that federal law at election sites was enforced. "Under the sweeping terms of the bill," Hayes wrote, "the National Government is effectually shut out ... from the discharge of the imperative duty to use its whole executive power whenever and wherever required for the enforcement of its laws at the places and times when and where its elections are held." n358 Notably, however, Hayes did not make any mention of the preclusive Commander in Chief argument that Fillmore had included, albeit tentatively, some decades earlier. The gist of his argument was, instead, that Congress was putting the President to an impossible task: instructing him to take care that federal election laws were enforced, while denying him the necessary means of performing that duty. n359 [*1034] The executive branch in this period does not otherwise appear to have embraced Pomeroy's model of nonoverlapping constitutional war powers. President McKinley, for example, asserted authority as Commander in Chief to establish a government in the Philippines in the context of the Spanish-American War. In doing so, however, he conceded that such a power would be valid only unless and until Congress acted, a balance the Supreme Court later confirmed. n360 C. Political Branch Practice from 1900 to 1939 In the course of a Senate debate in 1909, Senator Isidor Rayner referred offhandedly to a colleague's observation that "the President has frequently asserted, that as Commander in Chief of the Army and Navy he is not subject to the laws of Congress." n361 It may be that the President did so in private conversations with Senators or Representatives but, if so, we have found no evidence of that. n362 To be sure, throughout this period, as in most other eras, there were occasional debates in Congress about the extent to which legislation could be enacted to control the discretion of the Commander in Chief. n363 The executive [*1035] branch, however, does not appear to have asserted the theory that scholars such as Professor Berdahl and others took to be settled. Nor did Congress act during this time as if it were the controlling constitutional rule. 1. The Theodore Roosevelt Presidency. - Perhaps the most assertive President of this age, Theodore Roosevelt, expressly conceded Congress's ultimate control over executive powers even as he set forth his expansive "stewardship" theory of the presidency. Inspired by the precedents of Jackson and Lincoln, Roosevelt asserted vast indepenent executive powers to act for the betterment of the nation in the absence of clear statutory authority, from intervening unilaterally in Cuba and Santo Domingo to building the Panama Canal. n364 But Roosevelt was careful to emphasize that he was ultimately bound by positive legislative enactments. n365 Although Roosevelt did not refer directly to executive war powers in confining the scope of his stewardship theory, he complied with statutory limits imposed even in the military context, and did so even though such limits appeared inconsistent with the broader theory of preclusive Commander in Chief powers that was fast gaining acceptance among academics. Roosevelt was clearly enamored of his navy, sending the "Great White Fleet" off on an unannounced around-the-world tour near the very start of his Administration. When news of the venture leaked out, there was a move in Congress to restrict appropriations needed to continue the tour due to a fear that the exercise would antagonize Japan. Roosevelt claimed no power to disregard such a funding curtailment, arguing only that he already had the money from prior appropriations and daring Congress to "try and get [the fleet] back." n366 Roosevelt confronted a much more serious legal problem two years later, again with respect to Congress's control over the navy. Having concluded that navy ships should be exclusively manned by naval officers, [*1036] the President issued an executive order restricting the Marine Corps to on-shore bases. n367 Congress, however, cut off this initiative by enacting a law providing that no part of an appropriation for the Marine Corps could be expended unless there were at least eight Marines for every hundred navy enlisted men serving on all battleships and cruisers. n368 The bill occasioned an extensive war powers debate in Congress, perhaps the most significant one since the Second Confiscation Act. The opposition to the legislation was led by Senator William Borah of Idaho. Although Borah was an isolationist who had a very narrow view of the President's independent power to send troops abroad without congressional approval, n369 he argued on several occasions that Congress had limited authority to restrict the President's assignment of troops when doing so was within the President's constitutional power. n370 His opposition to the Marines-on-ships bill was representative of his position. Borah thought the bill would be unconstitutional because although Congress can raise, support, and regulate an army, it cannot "command" it, and therefore "Congress has not the power to say that an army shall be at a particular place at a particular time or shall maneuver in a particular instance." n371 Borah conceded that "Congress could undoubtedly previously establish a rule and regulation by which the President would be controlled in these matters," but he resisted the notion that Congress could second-guess a decision that the President had already made about the use of troops. n372 Senators Albert Cummins and Joseph Dixon briefly defended Borah's position, n373 but Senators Rayner, n374 Henry Cabot Lodge, n375 [*1037] Eugene Hale, n376 Henry Teller, n377 and, somewhat more equivocally, Senator Charles Fulton, n378 all questioned or challenged it. Rayner explained that although Congress did have Article I powers to control the President's decisions with respect to troops, this did not mean the President was entirely at the whim of Congress, because the power of the veto would prevent much regulation contrary to the wishes of the Commander in Chief. Quoting a leading authority on courts-martial, he explained that "so contracted is the actual authority of the President that, but for the protective power of his qualified veto, his command might be so restricted by legislation as to destroy its utility." n379 Senator Hale added that, as a practical matter, it is "undoubted" that Congress has the power "not to abandon everything in the conduct and regulation of the army and the navy to the President, but to establish a rule that shall for the time override it." n380 In the end, Congress resolved this debate by choosing to regu-late - just as it had resolved the earlier debates over the constitutionality of the Second Confiscation Act and the force-restricting measures at issue in the Quasi-War with France. This is not, of course, conclusive evidence of the constitutional understanding that prevailed in this period. But it is significant that President Roosevelt, on his next-to-last day in office, signed the bill, apparently without objection. Moreover, as we explain below, the Attorney General in the Taft Administration thereafter formally opined that the Marines-on-ships requirement was constitutional. 2. Early Twentieth-Century Opinions of the Attorney General. - Despite the constitutional views of Senator Borah, President Taft's Attorney General, George Wickersham, concluded in his formal opinion on the Marines-on-ships legislation that he had "no doubt of the constitutionality [*1038] of the provision." n381 "Inasmuch as Congress has power to create or not to create, as it shall deem expedient, a marine corps," he explained, "it has power to create a marine corps, make appropriation for its pay, but provide that such appropriation shall not be available unless the marine corps be employed in some designated way." n382 The next year, Attorney General Wickersham similarly concluded that where a series of statutes had prescribed that a floating dry dock be located at the naval reservation in Algiers, Louisiana, the President did not have authority as Commander in Chief to move that dry dock to the naval station in Guantanamo, Cuba, even where the Executive determined that the dock would be better adapted to fulfill its object if it were moved. n383 Wickersham reaffirmed this view at the end of the Taft Administration. n384 And later that same year, President Wilson's Attorney General, future-Justice James Clark McReynolds, opined that a navy regulation expressly approved by President Wilson, which would have permitted the commandant of the Marine Corps to determine the station and duties of Marine Corps "staff," was invalid because it was inconsistent with a legislative expectation, implicit in a statute, that the staff would have certain functions and duties that could only be performed at headquarters in Washington. n385 [*1039] 3. (Former) President Taft Weighs In. - There was one notable exception in this period to what seemed to be the prevailing view in Congress and the executive branch. It came from what might be an unexpected source: former President William Howard Taft, writing as a Yale Law Professor. In 1915, two years after he left the White House and six years before he would join the Supreme Court, Taft gave a series of lectures at Columbia University that are commonly recalled for their rejection of Roosevelt's expansive "stewardship" theory of the presidency. Taft expressed a much less capacious view of the President's inherent powers to act unilaterally. n386 But while this rebuke of Roosevelt's theory as an "unsafe doctrine" n387 was the principal theme of his Columbia lectures, Taft also briefly addressed the question of what Congress could do to control the more narrowly defined constitutional powers that the President did enjoy. For the most part, Taft acknowledged Congress's broad authority, writing that "one of the chief functions of Congress" is to "fix[] the method in which Executive power shall be exercised." n388 Like McKinley, for instance, Taft appeared to believe that although the Commander in Chief could establish rules for governance of occupied [*1040] territories, that power was provisional, and could be superseded by statute. n389 Moreover, Taft assumed that Congress could, pursuant to the Rules and Armies Clauses, provide by law a rule of eligibility for promotion in the army and navy. n390 He did, however, identify certain limits: Congress could not, for example, attempt to prevent the President's use of the army to "defend the country against invasion, to suppress insurrection and to take care that the laws be faithfully executed." n391 More to the point, Taft wrote that it is the President "who is to determine the movements of the army and of the navy." n392 In his lectures, Taft suggested two ways in which Congress might impermissibly impinge on this asserted discretion to determine troop movements. First, Congress could not place that discretion "beyond [the President's] control in any of his subordinates" n393 - a correct and fairly unobjectionable statement of what we have been calling the preclusive prerogative of superintendence. Second, Congress could not "themselves, as the people of Athens attempted to, carry on campaigns by votes in the market-place." n394 Of course, if what Taft meant by his Athenian analogy was simply that Congress cannot direct the military by a simple legislative plebiscite, as it did in the preconstitutional era, then of course that is unobjectionable, too, for Congress must instead act through bicameralism and presentment - that is, by the passage of statutes. However, in a cognate 1916 Yale Law Journal article published several weeks after publication of his lectures, Taft seemed to suggest something more, adding this one-sentence paragraph: "When we come to the power of the President as Commander-in-Chief it seems perfectly clear that Congress could not order battles to be fought on a certain plan, and could not direct parts of the army to be moved from one part of the country to another." n395 4. The Wilson Administration and the Era of Isolationism. - Taft presumably intended to confine his proviso concerning the movement of troops to cases involving regulations of the military within an actual theater of war. Insofar as this limitation on Congress's power to affect troop movements was meant to have a broader application (as Professor Pomeroy's treatise indicated the principle should), it was soon debated in Congress. Just after World War I, President Wilson stationed troops in Siberia without prior statutory authorization, which [*1041] prompted fleeting discussion in Congress about whether it would be constitutional to enact a law requiring the withdrawal of troops from a nation with which we were at peace. n396 Representative William Mason said at a House hearing that Congress had an "absolute power" to impose such a requirement, whereas Representative Julius Kahn expressed skepticism. n397 At that same hearing, Secretary of War Newton Baker did not take issue with Kahn, or by extension Taft, but neither was he willing to opine on anything other than the most extreme case: he testified that Congress could not make a "rule" that "all the Army ... should live in the city of Washington and never be moved away, no matter what happens," for that would completely "paralyze" the Commander in Chief, n398 a view that arguably reflects a version of the Chase/Pomeroy position, albeit in an entirely academic form, without speaking to any more realistic questions, including the constitutionality of the proposed Siberia withdrawal hypothetical itself. n399 Although Congress took no action to compel the withdrawal of the troops from Siberia, the years between the World Wars were marked by a national legislature controlled by representatives fervently committed to avoiding U.S. involvement in European wars. This isolationist wing was able to spur the enactment of several "neutrality" statutes during this period, which to greater or lesser degrees prohibited the United States from providing assistance to belligerent states as long as the United States was a neutral party. These statutes were to figure prominently in the run-up to World War II. [*1042] D. The Administration of Franklin Roosevelt and World War II On May 1, 1937, President Franklin Roosevelt signed the Neutrality Act of 1937, n400 which, among other things, imposed a strict arms embargo against states engaged in war (including the warring parties in the Spanish Civil War); a ban on loans and credits to such parties; and a prohibition on the use of U.S. ships to carry munitions to belligerents. Two years later, with European war looming, the Allied powers were desperate for aid from the United States. Roosevelt was eager to provide such assistance, which he thought critical for U.S. security purposes. He was severely limited, however, by the 1937 Neutrality Act and by a recalcitrant Congress that was not inclined to abandon its isolationist ways. Roosevelt strove to pass liberalizing legislation, but its prospects looked bleak in mid-1939. Vice President John Garner and Secretary of the Interior Harold Ickes urged Roosevelt to conclude that he had a constitutional prerogative to disregard the Neutrality Act. n401 Roosevelt wrote to Attorney General (and soon-to-be Justice) Frank Murphy on July 1, 1939, asking, "If we fail to get any Neutrality Bill, how far do you think I can go in ignoring the existing act - even though I did sign it?" n402 The question was vetted within the Department of Justice. Assistant Solicitor General Newman A. Townsend, Special Assistant to the Attorney General Edward Kemp, and Assistant Solicitor General Golden Bell all concurred "that in this instance the President could not safely rely on a claim of constitutional right to justify a disregard of the Neutrality Act as a matter of law" - that "to act without authority of Congress in the field of foreign relations is one thing," but "to disregard an express enactment of Congress ... is quite another thing." n403 Professor Robert Dallek reports that Roosevelt "did not pursue the question" further. n404 [*1043] Thereafter, although Roosevelt repeatedly chafed at the limitations that the neutrality acts imposed, n405 he pursued a dual-pronged strategy. He sought legislative amendment if possible. Where that approach seemed untenable, he sought ways to construe the existing statutes narrowly to provide him some breathing room for aiding the Allied cause. n406 To be sure, the neutrality acts did not purport to regulate the conduct of war as such. They did, however, plainly curb Roosevelt's powers to deploy forces and materiel under his command at a time when the debate between the branches concerned the proper level of preparation for potentially imminent hostilities. Although Roosevelt would have had a strong basis for arguing that he could act in the absence of a legislative limitation, we have not found any evidence that he ever invoked any substantive, preclusive constitutional power as Commander in Chief in the prewar period. 1. The Torpedo Boats and the Destroyers Deal Before the War. n407 - On May 15, 1940, five days after Hitler's armies had invaded northern France and Winston Churchill had been installed as British Prime Minister, Churchill sent a telegram to President Roosevelt informing him of Western Europe's dire prospects - "The scene has darkened swiftly" - and pleading with him to take substantial steps short of war in order to assist the Allies: "You may have a completely subjugated, Nazified Europe established with astonishing swiftness." n408 The British were desperate for the United States to loan and convey to Britain several categories of military provisions. In particular, over the next weeks and months, the British repeatedly conveyed to the Americans their "naval priorities" n409 - namely, receipt of two types of ships for defense against a possible German invasion and the predations of German submarines: fifty old destroyers (which [*1044] Churchill mentioned in his initial telegram) and part of a group of motor torpedo boats, or "mosquito boats," that were then being constructed for the U.S. navy, which could be provided to England by the manufacturers if the federal government signed off on the deal. n410 Roosevelt at first thought the transfer of the destroyers would be infeasible because it would require new legislation from Congress, n411 and so the British began to concentrate on obtaining the torpedo boats. n412 Roosevelt brushed aside legal concerns raised by naval lawyers, and set the wheels of the transaction into motion. When isolationists in Congress got wind of the deal, they began to raise objections. n413 In a cabinet meeting on June 20, 1940, Attorney General Robert Jackson was asked about the torpedo-boats matter, and he gave Roosevelt the bad news n414: Jackson concluded that the transfer would violate a much earlier neutrality law, the Espionage Act of 1917, which provided that during a war in which the United States was a neutral nation, it would be unlawful to send to a belligerent nation "any vessel built, armed or equipped as a vessel of war." n415 In light of Jackson's opinion (in which the President concurred), Roosevelt abruptly cancelled approval of the sale of the torpedo boats. n416 "It was clear from the context [of the White House statement] that the legislative bar cited by the Attorney General was the President's only reason for his order." n417 Senator Rush Holt, a leading isolationist, was quoted as saying, "I am glad Bob Jackson looked up the law on the subject." n418 Roosevelt then turned his attention to the possibility of conveying the over-age destroyers to Britain. Churchill continued to plead with him to do so imminently, in order to hold the English Channel, lest Britain fall to Hitler. n419 Roosevelt agreed about the surpassing importance [*1045] of the deal: in a cabinet meeting on August 2, 1940, there was unanimity that (in Roosevelt's own words) "the survival of the British Isles under German attack might very possibly depend on their getting these destroyers." n420 But the neutrality acts posed a substantial impediment. In addition to the 1917 statute, isolationists led by Senator David Walsh had just enacted another statute in 1939 prohibiting transfers of armaments unless either of the service chiefs of staff had previously certified that they were not essential to the nation's defense. n421 Thus, Attorney General Jackson advised Roosevelt, and the cabinet agreed, that liberalizing legislation would be necessary, even as the proposal evolved into one involving a trade for bases rather than a flat-out sale. n422 Try as he might to persuade Congress to temper the statutory restrictions, however, Roosevelt was rebuffed. n423 The destroyers deal was salvaged by a creative statutory construction first suggested by Benjamin Cohen, a brilliant Interior Department lawyer. Cohen's analysis, which Roosevelt originally rejected as too convoluted and unworkable, n424 was taken up by Justice Frankfurter, who enlisted Dean Acheson and other respected lawyers to, with Cohen's help, write a full-page letter to the New York Times, presenting an updated version of Cohen's legal analysis. n425 Attorney General Jackson, meanwhile, referred Cohen's memo to Newman A. Townsend, a former judge serving in the Solicitor General's Office. n426 Over the days following the publication of the New York Times letter, Jackson and Townsend slowly came to the conclusion that the statutes could be satisfied if there were an exchange of the destroyers for [*1046] strategic British naval and air bases in the Atlantic. Jackson finally reasoned that the 1939 statute could be avoided based on the Chief of Naval Operations' judgment that the deal would, on the whole, be a boon to U.S. defense interests. He also concluded that the 1917 statute could be construed to bar only transfers of vessels that had been built with the intent or expectation that they would be transferred to belligerents - which described the torpedo boats, but not the old destroyers. n427 According to Jackson, Roosevelt himself engaged in an extensive line-edit of Jackson's draft opinion, n428 which Jackson issued on August 27, 1940, n429 and the bases-for-destroyers deal was completed and announced on September 3. n430 Jackson's imaginative reading of the statutes was sharply (although not uniformly) criticized as unpersuasive. n431 What is important for present purposes, however, is that, as Jackson himself emphasized twelve years later in Youngstown, the Roosevelt Administration did not presume to rely upon any presidential claim as Commander in Chief to supersede statutory restriction. n432 Roosevelt would later describe the destroyer deal as the most important action in the reinforcement of the United States's own national defense since the Louisiana Purchase. n433 Yet at no time did he suggest a constitutional prerogative to trump congressional enactments. Indeed, through much of the summer of 1940, he had reluctantly conceded that this absolutely essential deal could not be made in the teeth of the governing law. It was only Cohen's and Jackson's creative statutory arguments that appeared to turn the tide. n434 Moreover, Jackson's [*1047] opinion specifically concluded that, notwithstanding the President's broad constitutional authority as Commander in Chief, he could not authorize transfer of the "mosquito boats" to Britain, even as part of an exchange for bases, because the 1917 act plainly proscribed such a transaction. n435 Roosevelt's deference to statutory limits led him to vigorously lobby Congress for the passage of the Lend-Lease Act, which finally authorized him to transfer defense articles to belligerent nations without significant restrictions. n436 [*1048] 2. The Deployment to Iceland Before the War. - Two weeks after the destroyers deal, Congress enacted the nation's first peacetime conscription bill. The isolationist Congress, however, designed it as a draft for defensive purposes only. It therefore included a condition limiting conscription to twelve months, and another that would prevent the deployment of draftees to the European theater. The law provided that persons inducted into the land forces under that act could not be deployed involuntarily "beyond the limits of the Western Hemisphere except in the Territories and possessions of the United States." n437 A few weeks earlier, Congress had enacted a virtually identical [*1049] geographical restriction with respect to army reservists called to active duty. n438 In the spring of 1941, Roosevelt was determined to send sufficient U.S. troops to Iceland to relieve British troops garrisoned there and thereby to protect American security interests. n439 The statutory restrictions on sending reservists and selectees outside the Western Hemisphere, however, proved a serious obstacle to Roosevelt's objectives. There was no problem with respect to sending the Marines, because they were composed of active-duty volunteers and thus were not covered by the statutory prohibitions against sending reservists and draftees. But the army, which contained a substantial percentage of reservists and draftees, was a different story. n440 The problem of rounding up a sufficient army force therefore became the topic of considerable discussion and consternation within the Administration during the spring and summer of 1941. n441 Both Britain and Iceland desperately wanted the United States to replace Britain's entire 20,000-man force, but the statutory restrictions, as Time magazine complained in an editorial urging their repeal, ensured that the "occupation of Iceland was a move the Army could not have joined on anything but pipsqueak scale." n442 According to Army Chief of Staff General George Marshall, the statutory limits "required the use of Marines on a mission which was not a Marine Corps mission" and effectively prevented the use of the army "on a mission which was peculiarly an Army mission." n443 Moreover, even with respect to the army troops that could lawfully be sent to Iceland, the statutory limits proved very disruptive: to supplement the Marine contingent with army volunteers, it was necessary to obtain transfers from many places throughout the army, [*1050] which, according to Marshall, would "require the disruption of approximately three regiments for every one sent." n444 In the end, Roosevelt deployed only about half the number of troops that Britain wanted and that he originally contemplated, a contingent comprised of a mix of Marines and statutorily eligible army forces. n445 It has sometimes been alleged that Roosevelt sent draftees to Iceland in violation of the statutory restriction, n446 but we have found no evidence supporting this conclusion. n447 Despite the fact that the statutory limits prevented him from taking action in a manner he deemed most efficacious for the national defense, Roosevelt honored the law [*1051] while his Administration worked to have it repealed, n448 something it was not able to accomplish until after the bombing of Pearl Harbor. n449 3. Ex Parte Quirin. - As far as we can tell, the question of a substantive preclusive power of the Commander in Chief was publicly suggested for the first time in the Roosevelt Administration during the actual conduct of World War II itself, in the litigation resulting in the landmark decision in Ex parte Quirin. n450 President Roosevelt had decided to use a special military war crimes commission to try eight Nazi saboteurs who had secretly entered the United States on missions to destroy war industries and facilities. During their trial before the military tribunal, the defendants petitioned for a writ of habeas corpus in federal court. The Supreme Court heard argument in the expedited case on July 29 and 30, 1942, apparently after being informed privately that the President planned to proceed with the executions regardless of what the Court did. n451 The questions presented in Ex parte Quirin included whether Congress had authorized the saboteurs' military commission, whether the charges against them were consistent with the laws of war, and a statutory question - namely, whether the procedures used in the military tribunal were consistent with the congressionally enacted Articles of War. n452 At oral argument, Attorney General Francis Biddle argued that the commission's procedures were authorized by, and consistent with, the statute, n453 just as he had done in his brief. n454 But in the second day of his argument he added the suggestion - not set forth in his brief - that even if a statute specifically prescribed how such defendants were to be tried (such as by foreclosing the use of military tribunals), [*1052] perhaps the President could insist upon his own rules "in the exercise of his great authority as the Commander-in-Chief during the war and in the protection of the people of the United States." n455 Chief Justice Stone, plainly surprised by this suggestion, quickly cut Biddle off, wondering whether the Court should entertain such an argument. Biddle replied that the Court "[did] not have to come to that." n456 A bit later, after Biddle seemed to suggest the tribunal's procedures could be "modified by Congress," he quickly corrected himself (after being prompted by Justice Frankfurter): Perhaps I narrowed that too much. I have always claimed that the President has special powers as Commander-in-Chief. It seems to me, clearly, that the President is acting in concert with the statute laid down by Congress. But ... I argue that the Commander-in-Chief, in time of war and to repel an invasion, is not bound by a statute. n457 As far as we have been able to determine, this interjection is the only occasion on which the Roosevelt Administration adverted to any claims of a substantive Commander in Chief prerogative. n458 In a short per curiam opinion on July 31, 1942, the Court denied the petition on the merits, n459 a disposition that led quickly to the trial and execution of six of the saboteurs. n460 In its full opinion justifying the judgment, issued on October 29, 1942, the Court held that Congress had authorized the use of the military commission n461 and that the [*1053] petitioners were properly charged with violations of the laws of war. n462 In the final substantive paragraph of its opinion, the Court also rejected the claim that the commission's procedures were inconsistent with the Articles of War. n463 But that paragraph begins with an eye-opening sentence that seems to acknowledge the possibility Biddle had raised: "We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents." n464 The Court's cryptic suggestion that there was some question of Congress's power to regulate military tribunal procedures appears to have been the product of tumult within the Court after the oral argument. The Court's junior Justice, none other than Robert Jackson himself (who had been serving as Roosevelt's Attorney General one year earlier), had been at work on a proposed concurrence. Several of the early drafts of that separate opinion, including what appears to have been the first draft to be circulated to his colleagues, argued that the Articles of War should not be construed to limit the President's treatment of such belligerents because otherwise "we would have a serious question of the validity of any such effort to restrict the Commander in Chief in the discharge of his constitutional functions." n465 Justice Jackson's draft conceded Congress's power to enact procedural protections in military commission trials of "persons whose civil rights may well have been the proper concern of Congress," such as U.S. citizens, inhabitants of occupied foreign territory in which martial law applies, and "nonbelligerents who may be in our military power." n466 His opinion questioned, however, whether Congress's power extended to the protection of "those who come here as belligerents to destroy our institutions." n467 Justice Jackson added that "the magnitude and urgency of the menace presented by this hostile military operation and the measures to meet it were for the Commander in Chief to decide." n468 In the midst of several revisions of his separate opinion the following week, however, Justice Jackson abandoned the assertion that the Articles of War would be constitutionally problematic if applied to [*1054] limit the President's discretion on the trial of enemy belligerents. n469 Instead, his later drafts, including what appears to have been the final draft distributed on Friday, October 23, pressed the view that Congress could not have intended the Articles to apply to such a case because "the seizure and trial of these prisoners is not in pursuit of the functions of internal government of the country," and their treatment "[was] an exclusively military responsibility." n470 Justice Jackson conceded, moreover, that his views (including presumably his initial constitutional doubts) were "not accepted by a single one of my respected seniors in service on this Court." n471 And he ultimately decided to join the Chief Justice's opinion rather than to write separately. It is not without interest, however, that the author of the Youngstown "lowest ebb" opinion himself was at least temporarily attracted to the distinction between the internal government of the country, which is clearly within Congress's responsibility, and the engagement of the enemy, [*1055] which Justice Jackson tentatively viewed as an exclusively military responsibility. In fact, Justice Jackson adverted to a similar distinction in his concurrence in Youngstown itself. n472 E. Conclusion The ninety-plus years of constitutional practice just reviewed has brought the story of the "lowest ebb" full circle. It begins, as we have explained, with the now famous Chase dictum in the Milligan concurrence. That opinion, while arguing for the power of Congress to restrict the President's use of military commissions, contends nonetheless that the powers of the Commander in Chief as to the "command of the forces and the conduct of campaigns" cannot be limited by statute. In the intervening years, scholars seized upon this suggestion and inflated it. They were driven in part by Professor Pomeroy's rejection of the possibility of there being overlapping war powers, but also by the notion, best articulated by Professor Berdahl, that "political science" demands that the President alone control the conduct of war. As much as theorists pushed this notion, however, the political branches seemed wary of it in practice. Presidential administrations repeatedly complied (sometimes while expressly averring their duty to comply) with not only treaty-based restrictions on their conduct of war in actual conflicts, but also a number of statutes (albeit directed outside the context of actual ongoing hostilities) that regulated their ability to use and deploy forces as they thought best. Such compliance occurred even in cases, as in the run-up to World War II, when these restrictions seemed to the President to have serious implications for national security. Moreover, while the occasional dissenting voice on the constitutional question was heard in Congress, there is no indication that an anxiety of authority overtook Congress when it came to the exercise of the legislature's war powers. At the end of the period, however, President Franklin Roosevelt's Attorney General, in an almost offhand manner, suggested a position that goes far beyond the Chase dictum itself. He hinted to the Supreme Court that what even Chief Justice Chase had seemed to concede in Milligan to be within the authority of Congress - the power to set the terms by which persons could be tried on U.S. soil outside of civilian courts - might not be. To be sure, the Quirin Court did not endorse that view, but neither did the Court firmly reject it. Although Biddle's remarks went well beyond what the government had argued in its brief, his comments nonetheless stand as an indication that the constitutional theory of preclusive executive war powers was at long last making inroads in the political branches, more than a century and [*1056] a half after the convention in Philadelphia. As we will see, like kudzu, executive branch claims of the sort would accumulate over the next half century, although not in any straightforward or systematic way. So, too, however, would new statutes that stood as a challenge to these very claims. V. The Modern Era The beginnings of the nuclear age and the emergence of the United States as a dominant world power had a galvanizing effect on questions of constitutional war powers. In June 1950, President Truman publicly committed to sending U.S. air, naval, and ground forces to assist South Korean forces against attack from the North. Truman did not seek Congress's approval before or after taking these steps, heeding Secretary of State Dean Acheson's advice to endeavor to establish a constitutional precedent for a broad unilateral prerogative. n473 In so acting, Truman took a dramatic step forward in a history of unilateral presidential use of military power, a development that had been building for over one hundred years, since at least the Mexican War, in various contexts short of full-scale hostilities against another nation's armed forces. n474 The ensuing controversy twenty years later over what were arguably unilateral presidential expansions of the Vietnam War to Cambodia and Laos only served to highlight the audacious nature of what Truman had done, thus ensuring that contentious disputation over the scope of the Commander in Chief's "inherent" power to deploy U.S. forces abroad would dominate war powers debates for most of the half-century after Korea. n475 By the conclusion of the Clinton Administration, however, it appeared that something of a practical settlement between the political branches regarding this long-contested constitutional question had been reached. By that time, Presidents were in rough agreement that, whatever the Founding-era understandings might have been, extensive historical practice had established that the Commander in Chief was, [*1057] to some not fully specified extent, "authorized to commit American forces in such a way as to seriously risk hostilities ... without prior congressional approval." n476 Some Presidents made even bolder claims; n477 but executive branch precedent and opinions from after 1951 generally indicated that any conflict of a scale directly comparable to Korea or Vietnam must be carried out with legislative approval. n478 Congress, for its part, seemed largely resigned to this executive branch approach to the initiation question, and has therefore recently focused its attention more on policing the duration and conduct of campaigns, rather than on challenging their legality at the outset. Meanwhile, the courts have not had much to say about the question of unilateral executive use of military force. But even as the political branches appeared to be reaching a detente on the principles governing the Youngstown Category Two question of deployment and initiation, controversy was building over the equally fundamental Category Three question that is our focus. Here, too, the Truman Administration was the instigator. As we have seen, up until 1950 there had been a fairly consistent practice, with Presidents routinely defending their superintendence authority and occasionally asserting a power to act in contravention of statutes in times of emergency when Congress was unavailable. Otherwise, there was [*1058] little in the way of executive assertion of preclusive war powers; this was true even as to legislative restrictions that had been passed in each era that intruded - sometimes very deeply - into decisions relating to the peacetime organization and deployment of the military and, in some instances, to the actual conduct of war (or, in Franklin Roosevelt's case, to preparation for imminent war). But just as Truman was claiming unsurpassed powers of unilateral military engagement and deployment, he simultaneously asserted, in a way no President had previously done, that the President's war authorities were not only extensive, but preclusive. This broader notion of preclusive presidential control was hardly unknown by the end of World War II. It had become prominent in the legal literature, n479 and the notion that there is some operational "core" of Commander in Chief authorities that are indefeasible, especially with respect to the "conduct of campaigns," has sounded a common theme in war powers scholarship right to the present day. n480 But it was at the beginning of the Cold War, and in the five decades that followed, that the executive branch first asserted such a claim in any forthright and sustained way. A clear change had occurred. Still, the developing presidential practice in this era did not produce a consensus, even within the executive branch, as to either the nature or the scope of the Commander in Chief's preclusive powers. Instead, pre-sidential assertions of such inviolable authority waxed and waned, and were often too cursory to reflect any coherent underlying theory or justification. Underscoring the protean quality of constitutional practice, Congress hardly acted as if it were resigned to the new claims that Presidents were pressing. Individual legislators did continue to articulate arguments for preclusive executive authority during congressional debates. n481 Congress as an institution, however, turned out to be as willing [*1059] as ever (if not more so) to enact legislation restricting executive war powers, including highly intrusive measures concerning combat operations in specific conflicts. A. The Truman Administration In the years immediately following World War II, Congress increasingly saw fit to enact "framework" measures to govern the military, the intelligence agencies, and the conduct of war. n482 None of these measures occasioned constitutional claims by the President of preclusive executive authority. Nor did the Truman Administration rely on such preclusive claims in the most dramatic war powers confrontation of the modern era - the Youngstown litigation. To the contrary, the government's argument in that case was that Congress had been silent on the steel seizure, and therefore the President had begged Congress to pass legislation resolving the crisis. n483 In its brief to the Court, the Department of Justice stressed repeatedly that the President would abide by whatever statutory solution Congress prescribed. n484 The Attorney General's [*1060] claim was simply that the President had taken "temporary action, of a type not prohibited by either the Constitution or the statutes, to avert the imminent threat, while recognizing fully the power of Congress by appropriate legislation to undo what he has done or to prescribe further or different steps." n485 A majority of the Justices, of course, concluded that Congress in an earlier enacted statute had prohibited the seizures. n486 When it came to two other matters touching on the powers of the Commander in Chief, however, the Truman Administration adopted a far less accommodating stance - one that had no real precedent in prior practice. 1. Preclusive Powers Concerning Deployment of Forces. - When Truman made his unilateral moves in Korea in 1950, there was little opposition in Congress, because the legislature largely favored what he had done. n487 The major debate in Congress came the following winter, when the war in Korea was beginning to go badly, and Truman announced that he was, without congressional authorization, sending four army divisions to reinforce the forces serving under NATO in Europe, where the Soviet threat was gathering. Truman contended that as Commander in Chief he could "send troops anywhere in the world" without consulting Congress. n488 This bold assumption of deployment authority set off an extended debate in the Senate, lasting more than three months. During the 1951 Senate debate, Secretary of State Acheson provided Senate committees with a State Department memorandum, the principal thrust of which was to justify Truman's bold assertion of unilateral deployment powers. n489 In the midst of that memorandum, [*1061] however, was an even more aggressive claim - that such authority was not only inherent but preclusive of congressional control: Not only has the President the authority to use the Armed Forces in carrying out the broad foreign policy of the United States and implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution. n490 In a follow-up memorandum submitted to the Senate in February 1951, the Administration more elaborately argued that "since the direction of the armed forces is the basic characteristic of the office of the Commander in Chief, the Congress cannot constitutionally impose limitations upon it." n491 With Congress focused on Truman's claim of initiative and deployment authorities, the Administration's preclusive-power argument did not receive much attention. n492 But it was the first of a number of [*1062] related executive branch assertions - many but not all of which took aim at restrictions on the deployment power - over the next fifty-plus years. 2. Military Impoundments. - In addition to asserting an inviolable deployment power, the Truman Administration also asserted preclusive war power to challenge appropriations statutes that mandated particular military expenditures. For virtually all of the nation's history, Presidents had regarded most specific statutory appropriation prescriptions as permissive, rather than mandatory, and, going back at least to Jefferson, Presidents therefore on occasion "impounded" certain sums that Congress had appropriated for particular projects, including defense spending, in order to save money or because of changed circumstances. n493 In doing so, Presidents generally made no claim of any constitutional prerogative to ignore Congress's will. Impoundment was instead viewed as a function of a presumed legislative intent to confer discretion on the President not to spend all that was appropriated. By the middle of the twentieth century, however, Congress began to push back, and to make known its intent that the President was obligated to spend certain appropriated funds in the manner specified by statute. n494 Early in his Administration, Truman responded to one such legislative attempt in a dramatically new way. In 1949, the President requested funding for forty-eight Air Force groups. The House, however, [*1063] insisted on the creation of fifty-eight groups. n495 Truman signed the bill, but, invoking his powers as Commander in Chief, he directed the Secretary of Defense to impound the extra $ 735 million, arguing that the ten extra groups would only make the Air Force less flexible. n496 Following Truman's lead, the executive branch continued to raise constitutional doubts, of varying degrees, about mandatory defense spending provisions until at least the mid-1970s, although it is not clear that the Commander in Chief Clause was ever again impressed as a necessary justification for an actual refusal to comply with an expenditure mandate. n497 [*1064] B. Nixon, Ford, and the War in Indochina The constitutional debate that Truman's bold claims might have provoked was not fully joined until two decades later. n498 In the late 1960s and early 1970s, as congressional opposition to the war in Indochina reached its apex, Congress enacted a number of significant regulations of ongoing combat operations, thereby pushing its war powers [*1065] as far as any Congress had since the Civil War. In response, both political branches gave serious consideration to the preclusive-power question. Congress basically held fast to what it believed to be its authority; the executive branch shifted back and forth between positions of defiance and acceptance of statutory limitations. 1. Congress's Restrictions on the Use of Force in Indochina. - Congress began to impose restrictions on the ongoing conflict in Vietnam when it included a provision in the 1970 Defense Appropriations Act forbidding the use of funds "to finance the introduction of American ground combat troops into Laos or Thailand." n499 "Unfortunately," Senator Thomas Eagleton would later write, "the Congress had picked the wrong countries," because on April 29, 1970, President Nixon sent troops into Cambodia. n500 So, the next year, the Senate engaged in a wide-ranging, seven-week debate on Congress's powers to regulate and limit the President's conduct of war in Cambodia - what Senator Bob Dole called "one of the greatest, most productive debates in the history of this body." n501 Congress did not pass any such restrictions in [*1066] 1970, but at the outset of the following year the legislature enacted the Cooper-Church Amendment, which comprehensively provided that "none of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia." n502 By that time, all ground troops had left Cambodia, and the final legislation noted that the restrictions it imposed were "in line with the expressed intention of the President of the United States." n503 Nonetheless, the measure limited the President's tactical discretion going forward by strictly prohibiting the use of further ground troops in Cambodia, and it contained none of the exceptions that the Administration strenuously fought for when the measure had first been debated the year before. n504 As significant as the Cooper-Church Amendment was, Congress did not stop there. Two years later, revelations of President Nixon's bombing operation in Cambodia - an action that complied with the letter of the 1971 restriction - prompted efforts to impose even [*1067] greater restrictions. Both houses of Congress approved an amendment to prohibit the use of all appropriated funds to support directly or indirectly any U.S. combat activities in Cambodia or Laos. n505 President Nixon vetoed the bill on policy grounds. He claimed that this "Cambodia rider" would undermine the possibility of a negotiated settlement in Cambodia, n506 but his veto message raised no constitutional objection. After the House fell thirty-five votes short of overriding the veto, n507 and the Paris Peace Treaty had been completed, Nixon eventually signed a bill that cut off all funds for combat activities in, over, or off the shores of North Vietnam, South Vietnam, Laos, and Cambodia, as of August 15, 1973 - arguably giving the President six additional weeks to continue operations, but no more. n508 During the following fifteen months, Congress enacted several additional laws prohibiting expenditures, absent express statutory authorization, for military action in North Vietnam, South Vietnam, Laos, Cambodia, and Thailand. n509 2. President Nixon's Legal Response. - Although President Nixon objected to Congress's newly assertive posture, and even raised constitutional concerns about some of its actions, he did not make a preclusive war powers claim in vetoing or signing any of these highly restrictive measures. Nonetheless, his Administration did briefly address the constitutionality of restrictions on ongoing military operations, in a May 1970 memorandum authored by the then-Assistant Attorney General for the Office of Legal Counsel (OLC), William Rehnquist. n510 In his memo, Rehnquist defended the President's authority to use U.S. [*1068] armed forces to attack sanctuaries employed by the Viet Cong in Cambodia in the absence of legislation barring him from doing so. He also included a short section entitled, "Extent to Which Congress May Restrict by Legislation the Substantive Power Granted the President by Virtue of His Being Designated as Commander-in-Chief." n511 Rehnquist's discussion in that section was notably equivocal. It included none of the unqualified argumentation manifest in the earlier Truman Administration memoranda. Citing the then-recent Laos/Thailand proviso (which, Rehnquist noted, "was accepted by the Executive"); the 1940 statute prohibiting the deployment of inductees outside the Western Hemisphere (about which the Truman Administration had earlier expressed constitutional doubts, but with which Roosevelt had complied); and the Supreme Court's decision in Little v. Barreme; Rehnquist concluded that "Congress undoubtedly has the power in certain situations to restrict the President's power as Commander-in-Chief to a narrower scope than it would have had in the absence of legislation." n512 Rehnquist further noted, however - with the canonical cite to the dictum in Chief Justice Chase's concurrence in Milligan - that separation of powers problems "would be met in exacerbated form should Congress attempt by detailed instructions as to the use of American forces already in the field to supersede the President as Commander-in-Chief of the armed forces." n513 In a hearing several weeks later, Rehnquist similarly testified that "the power to repel sudden attacks, the power to determine how hostilities lawfully in progress shall be conducted, and the power to protect the lives and safety of U.S. forces in the field," were authorities that "indisputably belong[] to the President alone." n514 Rehnquist went so far at the hearing as to deny that Congress could constitutionally enact a statute prohibiting the President from initiating "war" without a congressional declaration. n515 Rehnquist further elaborated on his somewhat cryptic reservation of preclusive authority at a Senate Judiciary Committee hearing in 1971. The context was an examination of the President's constitutional claims of a right to "impound" appropriated funds. n516 Interestingly, Rehnquist had written a memorandum in 1969, which he submitted to the Senate committee, in which he disclaimed any general constitutional impoundment authority [*1069] (thereby dissenting from the longstanding executive branch view) but did defend constitutional impoundment in the context of the President's role as Commander in Chief. n517 "Of course," Rehnquist wrote, if a Congressional directive to spend were to interfere with the President's authority in an area confided by the Constitution to his substantive direction and control, such as his authority as Commander-in-Chief of the Armed Forces and his authority over foreign affairs, a situation would be presented very different from the one before us. n518 At the 1971 Senate hearing, several Senators praised Rehnquist for his acknowledgement that Congress as a general matter had the authority to command specific expenditures. The Senators and their special counsel pressed him, however, on his continued insistence that the Commander in Chief Clause might establish an impoundment authority in the context of national defense spending. n519 This prompted a fascinating discussion in which Rehnquist and his defenders (principally Senator Samuel Ervin and Professor Ralph Winter, acting as counsel to the committee) attempted to navigate the uncertain "continuum" of possible statutory restrictions on the Commander in Chief - hypothesizing which were permissible, and which were not - in what Rehnquist called "the most difficult area of all of the Constitution." n520 Contrary to Truman's view, Rehnquist conceded that Congress would have the prerogative to prohibit the President from sending troops into the Eastern Hemisphere. n521 But Rehnquist contrasted those very intrusive restrictions with what he thought was an easy case of an unconstitutional statute - a law requiring that appropriated funds be used to equip all soldiers in Regiment A with blue uniforms, when the President does not want them to wear blue. n522 Rehnquist also hypothesized a law providing that in no circumstance should another assault be made on "Hamburger Hill" in Vietnam, [*1070] which he thought - in accord with the position President Taft had set forth after leaving office - would be a "rather clear invasion of the President's power as Commander in Chief." n523 When pressed to explain the standards that might support such distinctions, he agreed that there was no obvious bright line: "I think it was designed by the framers to be amorphous and we just have to wrestle with it the best we can." n524 3. The War Powers Resolution. - There things stood until 1973, when Congress enacted a landmark framework statute dealing with military engagements in any setting: the War Powers Resolution n525 (WPR). This measure, perhaps more than any other, has spurred scholarly debate over the "lowest ebb" question. The measure, among other things, effectively requires the President to withdraw armed forces from hostilities within ninety days if Congress has not in the interim approved such engagement. n526 President Nixon vetoed the measure, setting forth a constitutional position seemingly broader than Rehnquist's, and echoing Truman's. Nixon argued that the durational limit was an unconstitutional "attempt to take away, by a mere legislative act, authorities which the [*1071] President has properly exercised under the Constitution for almost 200 years." n527 Nixon's logic seemed to be that if the President may independently (that is without congressional authorization) introduce forces into battle in a particular situation, Congress could not "by a mere legislative act" place any limits on the duration of such hostilities. n528 Congress overwhelmingly disagreed with this constitutional view: it overrode the veto. n529 4. President Ford and the Rescues in Southeast Asia. - The limitations on combat operations in Indochina that Congress enacted during Nixon's tenure proved to be particularly important after President Ford took office and the long and unpopular war came to a chaotic close. In fact, so far as we are aware, these restrictions occasioned the first instance, outside the context of the impoundment of appropriated funds, in which a President invoked his authority as Commander in Chief to actually disregard a statutory mandate while Congress was sitting and (at least nominally) available to consider a statutory amendment. [*1072] In April 1975, numerous U.S. nationals and others were trapped in Phnom Penh and Saigon. Statutory limitations barring the use of funds for the involvement of U.S. armed forces in "combat activities" and "hostilities" in Southeast Asia arguably prohibited the use of armed forces to rescue U.S. nationals and foreigners. n530 President Ford convened a rare joint session of Congress on April 10, at which he pleaded with Congress "to clarify immediately its restrictions on the use of U.S. military forces in Southeast Asia for the limited purposes of protecting American lives by ensuring their evacuation, if this should be necessary," and to revise the law "to cover those Vietnamese to whom we have a very special obligation and whose lives may be endangered should the worst come to pass." n531 As Congress searched for "language that would give Ford the authority he needed for the evacuations without possibly inviting military involvement in Southeast Asia," n532 Ford took action unilaterally. The day after his address to Congress, he ordered U.S. troops into the Khmer Republic to evacuate eighty-two U.S. citizens. According to Ford's message to Congress the next day, U.S. forces were fired at but did not fire back - so perhaps the statutory limit was not implicated in that instance. n533 But the statutory limitation did appear to bar what happened soon thereafter. On April 29, Congress still not having passed new legislation, U.S. troops entered South Vietnam airspace in order to rescue Americans in Saigon. A force of 70 evacuation helicopters and 865 Marines evacuated approximately 1400 U.S. citizens and 5500 third-country nationals and South Vietnamese. n534 This operation did result in a brief battle, and some U.S. forces were killed n535 - all in the apparent teeth of a statutory restriction, and while Congress was still deciding whether and how to authorize what the President was already [*1073] doing. Two weeks later, the new Cambodian regime seized a U.S. merchant ship, the Mayaguez, and President Ford responded by sending troops into Thailand, where they engaged in hostilities against the Cambodians. More than a dozen Americans were killed, and U.S. troops employed significant weapons (including a seven-and-a-half-ton bomb), going so far as to bomb an airfield and storage depot after the Mayaguez crew had been rescued (apparently as a deterrent to such attacks on U.S. interests). n536 The Ford Administration insisted that the preexisting statutory restrictions on the involvement of U.S. armed forces in "combat activities" and "hostilities" in Southeast Asia did not cover its efforts to rescue U.S. nationals. It based its argument primarily on legislative intent purportedly reflected in a pair of colloquies that had taken place in Congress when those laws were being considered. n537 But the Ford Administration conceded that the evacuation of non-Americans did violate the funding limitations. n538 Accordingly, when President Ford went ahead with the rescue of non-Americans, he appears to have been relying on his authority as Commander in Chief, which he expressly invoked in both the Saigon and Mayaguez cases, as justification for ignoring statutory limits. n539 According to the State Department Legal Adviser: "My understanding is that the President thought that he had adequate constitutional power despite the funds limitation provisions to take out Americans and to take out those foreign nationals whose rescue was ... so interwoven with that of U.S. citizens that the two were impossible to segregate." n540 These incidents prompted Senator [*1074] Eagleton to worry that a significant precedent had been set for the exercise of a preclusive executive war power. n541 5. The Ford Administration, Angola, and FISA. - Bold as President Ford's actions were in response to the fast-moving and exigent circumstances at the end of the Vietnam War, they did not appear to reflect an overarching theory that the President's otherwise available executive wartime authorities were preclusive. That much is clear from a couple of other settings in which the preclusive-power question arose during his administration. For example, when Congress enacted the 1976 Tunney Amendment, which prohibited the expenditure of procurement funds in Angola for any purposes other than intelligence gathering (including covert activity by the CIA), n542 Ford wrote that he was "deeply disappointed," and that "this provision is an extremely undesirable precedent that could limit severely our ability to play a positive and effective role in international affairs." n543 But he did not raise any constitutional objection. n544 [*1075] The Ford Administration also took a much more accommodating view of congressional authority to restrict the powers of the Commander in Chief in another controversial area, involving proposals to regulate foreign intelligence collection efforts. Since at least 1940, Presidents had approved electronic surveillance by the military and other intelligence agencies, including within the United States, without any statutory authorization. n545 More specifically, the Executive had engaged in warrantless electronic surveillance of communications in wartime (for example, telegraph communications) since at least the Civil War. And during the Second World War, for instance, President Franklin Roosevelt authorized surveillance of virtually all communications coming into and going out of the United States. n546 The Church Committee hearings in the Senate in the 1970s, however, revealed many decades of extensive intelligence agency abuses of civil liberties in the exercise of unchecked electronic surveillance. These revelations prompted proposals for legislation to regulate domestic electronic surveillance for foreign intelligence purposes. n547 Although there were clearly divisions within the Ford Administration as to the constitutionality of such legislation, n548 Ford's Attorney General, Edward Levi, ultimately testified n549 on behalf of the legislation that was to become the Foreign Intelligence Surveillance Act of 1978 n550 (FISA). Levi repeatedly explained that the proposed bill then being considered covered an area - domestic surveillance for foreign intelligence purposes - where the President had inherent authority to act, but that such executive action could also "be directed by the Congress," [*1076] and future Presidents would be bound to follow the procedures in the bill. n551 Levi explained: As you know, a difference of opinion may exist as to whether it is within the constitutional power of Congress to prescribe, by statute, the standards and procedures by which the President is to engage in foreign intelligence surveillances essential to the national security. I believe that the standards and procedures mandated by the bill are constitutional. The Supreme Court's decision in the Steel Seizure case seems to me to indicate that when a statute prescribes a method of domestic action adequate to the President's duty to protect the national security, the President is legally obliged to follow it. n552 Levi did say that there were other aspects of presidential power "which cannot be limited, no matter what the Congress says." n553 While he did not explain what this indefeasible core of executive authority might be, he hinted that it might involve purely overseas surveillance of foreign nations and their collaborators. n554 Even as to that, however, Levi did not argue that all foreign exercises of war powers were beyond congressional power to regulate. As to such entirely overseas surveillance, Levi hedged: "This is not to say that the development of legislative safeguards in the international communications area is impossible," and "that is a problem which obviously has to be faced." n555 Despite the Administration's support, however, no legislation reached the President's desk before Ford's term expired. [*1077] C. The Carter Administration and FISA In the wake of the Watergate revelations, Nixon's impeachment, and the public outrage over President Ford's pardon of the disgraced former president, President Carter took office in a context notably hostile towards claims of unchecked executive authority. Not surprisingly, the Carter Administration's approach to preclusive war powers did not seek to capitalize on the ground that had been laid by the Truman, Nixon, and Ford Administrations. Instead, Carter appeared to push in the opposite direction. In particular, the Carter Administration expressly and publicly concluded that the time limit of section 5(b) of the War Powers Resolution was constitutional. n556 More importantly, Carter and his Administration promoted, negotiated, and signed FISA, which, with minor exceptions, permits the government to engage in electronic surveillance within the United States only upon demonstrating to a special FISA Court that there is probable cause to believe that the target of such surveillance is a foreign power or the agent of a foreign power. n557 Moreover, in the event of a declared war, the statute specifically authorizes warrantless domestic electronic surveillance, but only for the first fifteen days of the conflict. n558 In the years before FISA, the modest regulations of federal wiretapping then in place specifically preserved the President's constitutional authority to engage in foreign intelligence collection free from such constraints. n559 Near the end of the FISA legislative process in 1978, several Representatives argued that this statutory carve-out should be retained because Congress could not constitutionally limit such inherent powers of the Commander in Chief. They proposed that the new FISA, too, be amended to clarify that the President would retain [*1078] all his constitutional prerogatives - particularly during war. n560 The House approved the amendment by voice vote. n561 In the conference committee, however, the Senate insisted on exactly the opposite result, and the Senate conferees prevailed. n562 Thus, as enacted, FISA specifically repealed the previous statutory provision preserving the President's constitutional authority, n563 and replaced it with language dictating that FISA and specific provisions of the U.S criminal code were to be the "exclusive means by which electronic surveillance ... may be conducted." n564 In making this dramatic change, Congress did not deny that the President had constitutional power to conduct electronic surveillance for national security purposes. It concluded, however, that even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted. n565 The Carter Administration's Office of Legal Counsel specifically opined that the bill did not "trammel upon [foreign affairs] powers exclusively reserved to the Executive." n566 And Attorney General Griffin Bell testified that "we have had two Presidents in a row who are willing to cede power, and I think that is good." n567 When he signed FISA [*1079] on October 25, 1978, President Carter explained that it "clarifies the Executive's authority to gather foreign intelligence by electronic surveillance in the United States," and he did not indicate any constitutional objection. n568 D. The Reagan Administration If Presidents Ford and Carter pulled back from Truman's unqualified claims of preclusive war powers, the Reagan Administration swung the pendulum in the other direction. President Reagan did accept, without constitutional objection, some highly intrusive statutory restrictions on matters that had long been thought to be within the scope of the Commander in Chief's authority. n569 And he negotiated and signed the Convention Against Torture, which requires the United States to categorically prohibit torture, with "no exceptional circumstances whatsoever," including "a state of war," to be invoked as a justification, and which further requires the United States to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment." n570 But in other respects, the Reagan Administration also claimed preclusive war powers [*1080] that, if taken seriously, appeared to be broader than even those that Truman had asserted. n571 1. Restrictions on the Use of Force in Lebanon and the War Powers Resolution. - In 1983, Congress authorized the President to continue participation by U.S. armed forces in Lebanon. That authorization specified that it would expire in eighteen months (and even sooner, under certain circumstances), absent further authorization. n572 In his signing statement, President Reagan came close to endorsing the view that Nixon had first taken, but that Carter had reversed - namely, that the durational limit of the War Powers Resolution was unconstitutional. Such an "inflexible deadline[]," he wrote, "creates unwise limitations on Presidential authority," and he expressly disclaimed any acknowledgement that section 5(b) of the War Powers Resolution was [*1081] constitutional. n573 Moreover, Reagan stated that "I do not and cannot cede any of the authority vested in me ... as Commander in Chief of the United States Armed Forces," and that he would not construe the eighteen-month limit of the bill itself "to revise the President's constitutional authority to deploy United States Armed Forces." n574 Despite laying down this marker, there was no actual statutory disregard, because hostilities in Lebanon did not extend beyond ninety days. 2. Regulation of Covert Actions and the Iran-Contra Affair. - The issue concerning preclusive executive war powers was more famously implicated in Reagan's second term, in connection with the Iran-Contra Affair. The scandal concerned, among other things, the possible violation of several laws that Congress had passed - known as the Boland Amendments - to restrict military and other assistance to the Contras in Nicaragua. One of the final such acts prohibited the use of all funds, by the Department of Defense, the CIA, and any other U.S. agencies involved in intelligence activities, for the purpose, or which would have the effect, of supporting any military or paramilitary operations in Nicaragua during fiscal year 1985. n575 Similarly, in 1986 Congress enacted a law that provided for renewed military aid and humanitarian assistance to Nicaragua, but that flatly prohibited all members of the U.S armed forces, and other employees of any agency or department of the United States, from entering Nicaragua to provide military advice, training, or logistical support to paramilitary groups operating inside that country. n576 Later that year, Congress enacted another statute of even greater specificity, providing that: United States Government personnel may not provide any training or other service, or otherwise participate directly or indirectly in the provision of any assistance, to the Nicaraguan democratic resistance pursuant to this title within those land areas of Honduras and Costa Rica which are within 20 miles of the border with Nicaragua. n577 [*1082] Although the failure of actors within his Administration to comply with these laws gave rise to the most serious crisis of his presidency, Reagan did not publicly object to the constitutionality of any of the bills when he signed them into law. n578 Nonetheless, the Administration did take a position on a related matter that clearly called these provisions into constitutional question. In a 1974 statute, n579 Congress enacted the Hughes-Ryan Amendment to the Foreign Assistance Act of 1961, which prohibited the CIA from engaging in activities other than intelligence gathering (including covert action) unless and until the President makes a finding that the operation is "important to the national security of the United States and reports, in a timely fashion, a description and scope" of such activities to specified congressional committees. n580 A few years later, the Intelligence Authorization Act for Fiscal Year 1981 n581 continued a version of the Hughes-Ryan Amendment's executive reporting requirement, and also provided that the Director of Central Intelligence must give prior, instead of "timely," notice of "any significant anticipated intelligence activity," except in extraordinary circumstances, where the President must still give timely notice and a statement of the reasons for not giving prior notice. n582 In 1986, in connection with the Iran-Contra Affair, controversy arose over whether the Reagan Administration had complied with the "timely notice" requirement after the President indefinitely postponed [*1083] notification of Congress of covert actions he took with respect to Iran. OLC wrote an opinion concluding that the statutory "timely notice" mandate should be construed to effectively give the President unbounded discretion in deciding when to inform Congress. n583 It rested this strained reading of the law n584 on the notion that such a requirement would otherwise be constitutionally dubious. OLC reasoned that Congress may not require the President to "relinquish any of his constitutional discretion in foreign affairs" (including through the mechanism of an appropriations condition). n585 More strikingly still, OLC asserted that Congress is almost powerless to act with respect to the world outside U.S. borders - that "the Constitution gave to Congress only those powers in the area of foreign affairs that directly involve the exercise of legal authority over American citizens," and that the President has virtually plenary authority "as to other matters in which the nation acts as a sovereign entity in relation to outsiders." n586 When pressed on the point by the Senate Intelligence Committee in 1987, the Assistant Attorney General for OLC conceded that Congress did have some Article I powers to affect foreign affairs, but continued to defend the notion that the President has certain "zones" of authority that "cannot be regulated," including with respect to authority over most covert activities. n587 In a memorandum responding to questions from Senator Arlen Specter, Assistant Attorney General Charles Cooper further argued that although the Rules for Government and Regulation Clause does give Congress the power to "prescribe a code of conduct governing military life," and to insist upon another code of conduct "for the individuals engaged in ... covert actions," that Article I authority does not permit Congress to pass laws "controlling actual military operations," or "intruding in any way upon the Commander-in-Chief's decisionmaking authority." n588 Thus, he wrote, "to the extent a covert action is analogous to a military action, ... the [*1084] President as Commander-in-Chief retains complete control over the operation," including "the authority to decide when and to whom to disclose the operation." n589 E. Bush 41: Aggressive Expansion of Preclusive Claims Assertive as the Reagan Administration was, a qualitative change in the Executive's posture toward statutory regulation of issues concerning the military's organization and functions appears to have occurred in 1989, under the Administration of George H.W. Bush. n590 Part of this was a consequence of a broader, general invocation of executive prerogatives: OLC went so far as to write that "while Congress has a free hand in determining what laws the President is to enforce, we do not believe that Congress is constitutionally entitled to dictate how the executive branch is to execute the law." n591 But there was a particular aggressiveness with respect to the Commander in Chief Clause, reflected in a series of presidential signing statements on omnibus appropriations and authorizations bills. In them, the first President Bush indicated his intent not to fully enforce certain provisions to the extent they impinged on his understanding of his authority as Commander in Chief. Interestingly, most of these measures did not even deal with the regulation of military campaigns, as such, or treatment of the enemy - generally the provisions at issue were the sort of run-of-the-mine regulations of the organization and [*1085] structure of the armed forces that appear all throughout Title 10 of the United States Code. The systematic nature of the objections to these measures, combined with the apparent breadth with which they were described, suggested that Truman's gambit on behalf of preclusive war powers had at last found a champion. It should be emphasized, however, that President Bush set forth many of these contentions in cursory fashion. Thus, the signing statements may have been designed as much to lay down markers for exceptional applications of the measures in question as to announce an actual intention to disregard them as a matter of routine administration. 1. Objections to Regulations Concerning National Security Information. - The Bush Administration's first publicly announced Commander in Chief Clause objection did not deal with the military at all. It instead concerned a provision of an appropriations act that proscribed the implementation of certain "nondisclosure" agreements the Executive had required of government employees who had access to classified information. n592 Relying on Department of the Navy v. Egan, n593 President Bush wrote that the Commander in Chief Clause gave the President the duty "to ensure the secrecy of information whose disclosure would threaten our national security." n594 The provision in question thus raised "profound constitutional concerns" in the President's view, because it regulated the manner in which he could prevent the disclosure of classified information "concerning our most sensitive diplomatic, military, and intelligence activities." n595 [*1086] President Bush also objected to various statutes requiring the executive branch to disclose to Congress information about military intelligence and operations. In signing an annual defense appropriations act, for instance, the President wrote that he would interpret certain reporting or consultation provisions - such as a provision requiring a report on the measures that would be required to verify conventional force reductions in Europe, and another calling for a report on intelligence estimates on future Soviet tank production and operational capacities - "so as not to impose unconstitutional constraints upon my authority to protect sensitive national security information." n596 Again with respect to a supplemental appropriations act for the first Gulf War in 1991, President Bush suggested that he might not comply with reporting requirements - one that required notifying Congress of the proposed storage of certain equipment, supplies, or material in a prepositioned status for use by the U.S. armed forces; another that required a report on "all enemy equipment falling under the control ... of allied forces within the Desert Storm theater of operations"; n597 and a third that required a report on "any arrangement for a United States military presence that has been made or is expected to be made to the government of any country in the Middle East." n598 2. Objections to Statutes Regulating the Manner of Deploying the Armed Forces. - In a series of signing statements concerning regulations of deployments, the first President Bush evidenced a remarkably strong notion of a substantive Commander in Chief preclusive power - one that would allow him to ignore statutory regulation of the positioning of even peacetime armed forces if the statutes did not conform to his view of what was best for the defense of the nation. For example, President Bush issued constitutional objections to a provision that [*1087] would have restricted the availability of certain members of the armed forces to fill positions in a new light infantry battalion; a provision that would have restricted the establishment or transfer of certain naval functions and billets until sixty days after a report to congressional committees; and a provision that would have prohibited certain Air Force weather reconnaissance squadrons from being operated at a reduced level. n599 More significantly, in a statement several days later the President singled out several provisions that "could be read as limiting the deployment of military personnel," such as one that would have limited the active-duty forces deployed in Europe, and another that would have restricted the President's authority to relocate defense personnel from an air base in Spain. n600 Even though the former provision specifically authorized a waiver upon a presidential determination that an exception was critical to the national security, Bush wrote that "I do not believe my discretion to deploy military personnel may be subject to such a statutory standard." n601 Therefore, "while I will respect the intent of such provisions as far as possible, I sign this bill with the understanding that they do not constrain my authority to deploy military personnel as necessary to fulfill my constitutional responsibilities as President and Commander in Chief." n602 This trend continued with respect to an even greater range of provisions in the signing statement for the National Defense Authorization Act for Fiscal Year 1991. n603 The President identified constitutional concerns in a provision that regulated the executive system of classification by requiring notice to the Congress regarding initiation of, or changes in, special access programs. n604 Bush also complained about provisions that limited the number of military personnel stationed in Japan and in Europe - even though such statutes provided for waivers when the President determined that national security required them. n605 He also noted that he would construe yet other provisions "consistent with my authority as Commander in Chief to deploy the Armed Forces as I see fit" - namely, a provision that required assignment of all Army Reserve operational forces to U.S. Forces Command, and provisions that established standards for the allocation of [*1088] aircraft to Naval Reserve, Air Force Reserve, and Air National Guard units, and required assignment of the tactical airlift mission to the Air Force Reserve and Air National Guard. n606 Finally, in October 1992, President Bush announced a power to depart from two other statutory provisions related to troop deployments that would affect "my authority to deploy military personnel as necessary to fulfill my constitutional responsibilities": one that limited the use of funds to support only 100,000 troops in Europe as of October 1, 1995, and another that required a forty percent cut in U.S. forces overseas after September 30, 1996, absent a war or national emergency. n607 As these statutes demonstrate, however, Congress did not at all share President Bush's view of preclusive Commander in Chief war powers. Indeed, even in authorizing the first Gulf War, Congress provided that before the President could use the armed forces to achieve implementation of specified U.N. Security Council resolutions, he was required to provide to congressional leaders his determination that the United States had successfully tried "all appropriate diplomatic and other peaceful means to obtain compliance by Iraq" with those Security Council resolutions. n608 F. The Clinton Administration The Clinton Administration did not swing the pendulum back to where the Carter Administration had left it, but neither did it embrace the broader view of the preclusive war powers that the Bush Administration had pushed. Indeed, in some respects, the Clinton Administration was very generous in its respect for Congress's powers, though it, too, occasionally invoked a notion of preclusive powers broader than Presidents prior to Truman had seen fit to claim. Moreover, throughout this period, marked as it was by an often hostile legislature and a number of controversial military engagements abroad, Congress enacted a number of measures restricting the use of military force abroad, even when operations were already underway. [*1089] 1. Acceptance of Congressional Restrictions. - President Clinton promoted and signed the 1994 federal torture statute, n609 as well as the War Crimes Act. n610 The latter statute, enacted in 1996 and amended in 1997, n611 established criminal penalties for conduct in violation of certain humanitarian treaty obligations: grave breaches of any of the Geneva Conventions; violations of Articles 23, 25, 27, or 28 of the Annex to the Fourth Hague Convention; n612 and, until recently, all violations of Common Article 3 of the Geneva Conventions. n613 Nor did President Clinton object to several enactments limiting the use of military force abroad. n614 For example, when Congress provided in November 1993 that funds could be obligated with respect to hostilities in Somalia beyond March 1994 only "to protect American diplomatic facilities and American citizens, and [for] noncombat personnel to advise the United Nations commander in Somalia," n615 Clinton did not raise a constitutional objection to this limitation, notwithstanding that the provision imposed a restriction on the use of combat forces in an area where hostilities had already broken out. n616 In 1997, Clinton [*1090] did not raise a constitutional objection when Congress passed a law prohibiting the use of Department of Defense appropriations for the deployment of any U.S. ground combat forces in the Republic of Bosnia and Herzegovina after June 30, 1998, unless the President transmitted to Congress a certification that such deployment was "required in order to meet the national security interests of the United States" (and that such ground forces would not serve as civil police). n617 The Clinton Administration also carefully avoided adoption of a position on the constitutionality of the sixty-day limit in the War Powers Resolution. n618 Most notably, although Clinton deployed troops in hostilities in Kosovo for longer than the WPR time limit in 1999, his OLC justified such action not on the ground that the WPR was unconstitutional, but instead on a controversial statutory interpretation. n619 [*1091] 2. Invocations of Preclusive Powers. - That said, the Clinton Administration frequently invoked Commander in Chief prerogatives, chiefly in areas concerning the internal structure of the military chain of command. In doing so, however, the Administration often reasoned in ways that hinted at broader notions of preclusive authority, such as those that former President Taft had pushed nearly a century before concerning the impermissibility of statutory regulation of troop movements, and that Assistant Attorney General Rehnquist had appeared to endorse while serving as Nixon's head of OLC. n620 (a) The U.N. Command Legislation. - The Clinton Administration's most direct assertion of preclusive power was set forth in an opinion that OLC issued in 1996, dealing with a bill that would have restricted the President's use of appropriated funds to place U.S. armed forces under the operational or tactical control of the United Nations. n621 OLC acknowledged Congress's broad power to establish [*1092] rules creating and regulating "the framework of the Military Establishment." n622 The opinion then countered that "such framework rules may not unduly constrain or inhibit the President's authority to make and to implement the decisions that he deems necessary or advisable for the successful conduct of military missions in the field, including the choice of particular persons to perform specific command functions in those missions." n623 In doing so, the opinion did not cite, let alone discuss, Youngstown. Nor did it account for the fact that the proposed legislation would not have prohibited the President from assigning troops to U.N. command - he would have been entitled to do so upon a certification that it would serve the interests of national security, as long as he also filed a timely report to Congress explaining his decision. n624 The opinion was not clear as to what "core" power it was protecting. Some of the language suggested that the constitutional problem arose from the attempt to interfere with the President's capacity to choose his commanders rather than with its infringement of tactical judgments per se. n625 In that respect, the OLC analysis might be read as an aggressive, and perhaps unwarranted, application of the well-established principle that the Commander in Chief's superintendence of the military may not be compromised. n626 But the opinion also cited favorably Taft's Yale Law Journal article statement concerning the inviolability of executive decisions regarding troop movements, n627 and a Clinton signing statement characterized the offending provision as constitutionally problematic because it restricted "the President's authority to make and implement decisions relating to the operational or tactical control of elements of the U.S. armed forces." n628 [*1093] (b) Legislation Regulating Foreign Deployments. - President Clinton also invoked the Commander in Chief Clause in several signing statements concerning measures regulating foreign deployments. The statements had a remarkably similar formulation, one that seemed designed to explain how the statutory language would be construed rather than to assert that a constitutional problem would be raised if such a construction were not adopted. Thus, although such statements certainly did not disclaim the existence of preclusive powers, they appeared to be serving notice that the measures would be interpreted to accord flexibility in emergencies. n629 Some of those signing statements objected to reporting requirements. n630 Others objected to more substantive requirements and limitations. [*1094] For example, Clinton expressed concern with the alleged "inflexibility" of a 1994 appropriations measure that denied the availability of funds provided in that act for military participation to continue Operation Support Hope in or around Rwanda after October 7, 1994, except for any action necessary to protect the lives of United States citizens. n631 Similarly, in 1999, Congress passed a provision stating that "no funds available to the Department of Defense during fiscal year 2000 may be expended after May 31, 2000, for the continuous deployment of United States Armed Forces in Haiti pursuant to the Department of Defense operation designated as Operation Uphold Democracy." n632 Although Clinton had already decided to terminate the Haiti deployment, he issued a signing statement that the limitation "concerned" him, and that "I will interpret this provision consistent with my constitutional responsibilities as President and Commander in Chief." n633 In at least one instance, Clinton went further and appeared to claim a power to defy a restriction on his preferred use of troops abroad. The issue arose in connection with a provision of a budget bill that conditioned funding for diplomatic efforts in Vietnam on that country's actions in assisting to identify the remains of Americans, and to account for POWs and MIAs in Vietnam. n634 A footnote in an OLC Opinion focusing on other constitutional problems with the measure explained that "there is [an] apparent constitutional flaw in section 609: it purports to prescribe to the President the manner in which he must proceed to recover the remains ... . Such detailed prescriptions [*1095] may well encroach on the President's constitutional authority as Commander in Chief. We do not press that objection here." n635 G. The George W. Bush Administration The Administration of George W. Bush has embraced the aggressive preclusive claims of its predecessors, and even pushed them to their logical extremes, while evincing none of the tempering impulses one detects in the statements of the Nixon, Ford, Carter, and Clinton Administrations. Most importantly, the Administration has gone beyond merely asserting the preclusive power in signing statements, veto messages, or memoranda to Congress. It appears to have relied upon such claims to engage in outright defiance of statutory restrictions in exercising coercive governmental authority. With the exception of the actions of President Ford in the extraordinary chaos of the last days of the Vietnam War, we are not aware of a similarly consequential act of executive disregard, premised on executive war powers, undertaken in the presence of a sitting Congress. n636 The Bush Administration has [*1096] exercised this claimed power, moreover, for prolonged periods of time and on multiple fronts. The Administration first manifested its approach in the immediate aftermath of the attacks of September 11, 2001. Within a week of the attacks, Congress had overwhelmingly voted for, and the President had signed, legislation authorizing the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. n637 Just one week later, OLC issued a lengthy memorandum espousing a broad view of what the President's unilateral constitutional (or Youngstown Category Two) authority would be in the absence of the legislative authorization that the President had just obtained. n638 The opinion went on, however, to address the Category Three question, contending that where the President is acting in response to a national "emergency" such as an attack from abroad, "we do not think [the President's Commander in Chief power] can be restricted by Congress through, e.g., a requirement that the President either obtain congressional authorization for the action within a specific time frame, or else discontinue the action." n639 And, in its final two sentences, the OLC memo asserted that neither the War Powers Resolution nor the force authorization law (nor presumably any other statute) "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." n640 As we explained in greater detail in our previous Article, the Bush Administration proceeded to apply this robust constitutional position actively. It claimed that the President could disregard an array of important statutes and treaties - from the Torture Act to the Habeas Act of 1867; from the Foreign Intelligence Surveillance Act even to the War Crimes Act; and more - if they happened to interfere with the manner in which he concluded the conflict against al Qaeda should be prosecuted. n641 More recently, President Bush vetoed a bill because, [*1097] among other things, it would have required initiation of a partial withdrawal of troops from Iraq and regulated the use of remaining troops thereafter - requirements as to which he expressed constitutional doubts. n642 Furthermore, in scores of signing statements, President Bush has invoked his power as Commander in Chief in objecting to statutory enactments, stating or suggesting that he will not fully comply with them (or will construe them contrary to their natural readings). n643 Some of these provisions have involved the manner in which the military shall conduct the campaign against al Qaeda or directives limiting troop deployment and combat operations. n644 Others have arguably been premised on the well-established superintendence prerogative. Like other Presidents since World War II, however, President George W. Bush has extended his assertion of preclusive powers beyond contexts involving the actual conduct of hostilities to others relating to the organization and use of the armed forces and intelligence agencies. n645 [*1098] Most recently, the Bush Administration has promulgated a statement of administration policy threatening a veto of a defense authorization bill based on the Commander in Chief Clause if the legislation included a provision requiring an adjudication, with particular procedural protections, of the "unlawful enemy combatant" status of all detainees held for more than two years. n646 In that same statement, the Administration warned that if the bill contained any proposed amendments restricting actions to "deal effectively" with threats posed by Iran, the President would likely veto it, invoking an unqualified theory that "provisions of law that purport to direct or prohibit ... covert action[] or use of the armed forces are inconsistent with the Constitution's commitment exclusively to the presidency of the executive power[and] the function of Commander-in-Chief." n647 H. Conclusion There has been an undeniable expansion - one is even tempted to say explosion - of preclusive executive war powers claims between the start of the Korean War and the second Bush Administration. During this period, it appears that every President, save for Carter, invoked this authority in one form or another. These assertions extended beyond the confines of the superintendence and necessity claims that had a well-established pedigree in the period before 1950. Still, one must be careful in assessing this change in executive practice. Administrations varied greatly in the kinds of preclusive assertions they made. The fact that the invocations were so often brief and opaque - at least until some of the more developed and unqualified assertions of the current Bush Administration - adds to the difficulty of discerning the theory that animated them. In many cases, it is not easy to know whether these assertions were intended to lay down markers against unforeseen and exceptional circumstances that might arise, or instead to announce actual defiance of statutory restrictions. This uncertainty underscores the fact that, as much as Presidents plainly became enamored of these claims, the executive branch did not [*1099] settle upon a set of common principles. Nor was there even agreement across presidencies as to whether such a preclusive power should extend much, if at all, beyond those understandings that were already accepted before 1950. Certainly there was no sustained practice of actually disregarding statutes similar to that we have seen since September 11, 2001. Indeed, some of the statutes that the current Bush Administration claims a constitutional authority to disregard are measures that modern administrations helped to craft and that modern Presidents signed without objection. Moreover, throughout this period, there was a surge in the flow of statutes directly restricting the President's war powers, even as to the conduct of ongoing campaigns. This countertrend belies the general assumption that Congress has been quiescent in matters of warfare in the face of presidential assertiveness. It also undermines any idea that there was a concord between the branches that military decisions and the command of campaigns are the exclusive preserve of the President. To be sure, one in search of historical practice to ground the dramatic assertions of preclusive power advanced by the Bush Administration since 2001 could do no better than to look within this fifty-year period. But this era did not establish anything like a consistent political branch practice akin to that concerning the unilateral executive power to deploy troops and to use force abroad. Instead, what resulted was an inchoate jumble of often ill-defined, and occasionally contradictory, executive branch claims sharing space with numerous intrusive statutory and treaty-based limitations, a number of which Presidents accepted as constitutional. VI. Bringing Our Constitutional Tradition To Bear on Disputes at the Lowest Ebb We have emphasized throughout these Articles that the "lowest ebb" issue is more important to the constitutional development of war powers than the prevailing congressional abdication paradigm would suggest. What, then, should happen when the President, in the exercise of his constitutional war powers, confronts a statutory restriction that is at odds with his preferred course of conduct? As we have explained, the text of the Constitution provides no conclusive answer. Nor does a broader examination of the affirmative constitutional powers, whether express or implied, of either of the political branches. In our view, the legislative and executive branches each possess quite substantial independent substantive war powers; these authorities, as Justice Jackson concluded in Youngstown, overlap and intersect in important respects. The key constitutional question, therefore, is which, if any, of the President's constitutional war powers are so central to his performance of his role as the Commander in Chief as to preclude Congress from regulating them. [*1100] In broad terms, our historical review has shown that the view embraced by most contemporary war powers scholars - namely, that our constitutional tradition has long established that the Commander in Chief enjoys substantive powers that are preclusive of congressional control, especially with respect to the command of forces and the conduct of campaigns - is unwarranted. The fact that this longstanding scholarly assumption about historical consensus is mistaken, however, does not in itself explain what should happen at the "lowest ebb." Accordingly, we offer our own view of how this tradition bears on the ultimate constitutional conclusions that must be made by those responsible for resolving such issues - whether courts, members of Congress, or actors within the executive branch. In doing so, we do not mean to suggest that history is dispositive. Just because Presidents have not acted on a theory of preclusive authority - -and have only in recent decades even articulated it - -does not preclude its contemporary recognition. Past practice does not, in our view, freeze constitutional meaning. Even (and perhaps especially) as to the separation of powers, our constitutional tradition has always been much more tolerant of dynamism. Thus, just as we do not believe a Founding-era consensus can put an end to the need for the exercise of contemporary constitutional judgment in this area, neither do we think longstanding historical practice can entirely pretermit such an inquiry. We do mean to argue, however, that it is folly to think a sound constitutional judgment can be made as to the proper allocation of war powers without facing up to what the historical practice between the branches has actually shown. A change in constitutional practice cannot be made by turning away from history and examining the relative virtues of the President and the Congress in the abstract. Such an approach would be as impossible as it is indeterminate, because it would ask us to "both exorcise from ourselves the influences of our own traditions and ignore the lessons our society has learned over time." n648 Judgments about the proper constitutional roles of the political branches in war are necessarily embedded in historical narratives that, however unconsciously, inform present understandings. Precisely for that reason, a full account of the actual historical practice is valuable because it challenges the long-accepted narrative about the way Presidents are said to have always acted when it comes to war, and about the way Congress supposedly has long acceded to the imperative of permitting the exercise of such inviolate presidential authority. In particular, the history we have set forth suggests that commonly heard fears and concerns about unchecked executive power [*1101] should not be discounted. Since we have not had a practice of recognizing such inviolate authority in the Commander in Chief, it cannot be said that such fears and concerns are necessarily overblown. In fact, the Executive's longstanding unwillingness to act in a way that might put those fears to the test itself suggests that they are more substantial than present-day defenders of preclusive Commander in Chief powers would acknowledge. At the same time, the history we have reviewed casts doubt on the functionalist contention that a President

cannot possibly conduct a war so long as he understands himself to be subject to legislatively imposed restrictions. As we have seen, Presidents have long operated on just that assumption, and they have adjusted their actions accordingly - and in ways that cannot be said to have clearly imperiled the nation. Thus the history undermines assertions about the inherent or inevitable unmanageability or dangers of recognizing legislative control over the conduct of war. In other words, this history offers us valuable information about how things have worked in the past, and thereby helps to inform us about what consequences might follow from a constitutional judgment in the here and now. Moreover, this historical account performs at least one function beyond supplying information relevant to the empirical questions that may arise in constitutional war

powers disputes. Such a history also provides important confirmation of what is widely taken to be a fundamental aspect of our national ethos - of how we collectively understand ourselves as a nation. It has long been a central tenet of the American idea - of the basic national story we tell ourselves as

early as grade school - that our government is defined by separated and blended powers , with checks and balances that promote public reasoning and debate, preserve democratic self-governance , and protect against concentrations of power in a single figure . The history we have reviewed suggests that this felt understanding is not a myth belied by the way our government has actually operated in times

of crisis. Rather, the history shows that this self-conception has deep roots in centuries of political branch practice concerning matters of the gravest national consequence. If a theory of presidential preclusive power were now to take root - such that Presidents began to act, as a matter of course, as if they were entitled to make wartime decisions free of the customary checks, and in ways that prior Presidents

simply did not contemplate - then the longstanding narrative about the American system of government might adjust to better fit the new practice. Over time, a story highlighting the imperatives of executive action,

and the need for unfettered presidential leadership, might begin to displace the narrative we presently

celebrate. The avulsive change in the constitutional law of war powers that some now call for, then,

portends consequences that reach far beyond the way that discrete interbranch battles over the constitutional law of war powers should be [*1102] resolved. This new, preclusive constitutional practice, if accepted, could influence how we and future generations would conceive of the constitutional system as a whole , such that the ideal of checks and balances might no longer seem so central to what defines the American framework of government. At issue, therefore, is whether present

circumstances demonstrate the need for a change that risks such a fundamental revision of our national identity.

Congressional power projection stops hotspot escalation to nuclear warO’Hanlon 7 ( Frederick is a Resident Scholar at the American Enterprise Institute, and Michael O’Hanlon, Senior Fellow and Sydney Stein Jr. Chair in Foreign Policy Studies at the Brookings Institution, “The Case for Larger Ground Forces”, Stanley Foundation Report, April, http://stanleyfoundation.org/publications/other/Kagan_OHanlon_07.pdf)//cc

We live at a time when wars not only rage in nearly every region but threaten to erupt in many places where the current relative calm is tenuous. To view this as a strategic military challenge for the United States is not to espouse a specific theory of America’s role in the world or a certain political philosophy. Such an assessment flows directly from the basic bipartisan view of

American foreign policy makers since World War II that overseas threats must be countered before they can

directly threaten this country’s shores, that the basic stability of the international system is essential to

American peace and prosperity, and that no country besides the U nited S tates is in a position to lead the

way in countering major challenges to the global order . Let us highlight the threats and their consequences

with a few concrete examples, emphasizing those that involve key strategic regions of the world such as the Persian Gulf and East Asia , or key potential threats to American security, such as the spread of nuclear weapons and the strengthening of the global Al Qaeda/jihadist movement. The Iranian government has

rejected a series of international demands to halt its efforts at enriching uranium and submit to international

inspections. What will happen if the US—or Israeli—government becomes convinced that Tehran is on the verge of fielding a nuclear weapon? North Korea , of course, has already done so, and the ripple effects are

beginning to spread. Japan’s recent election to supreme power of a leader who has promised to rewrite that country’s constitution to support increased armed forces—and, possibly, even nuclear weapons— may well alter the delicate balance of fear

in Northeast Asia fundamentally and rapidly. Also, in the background, at least for now, Sino- Taiwanese tensions continue to flare, as do tensions between India and Pakistan , Pakistan and Afghanistan, Venezuela and the United States, and so on. Meanwhile, the world’s nonintervention in Darfur troubles consciences from Europe to America’s Bible Belt to its bastions of liberalism, yet with no serious international forces on offer, the bloodletting will probably, tragically, continue

unabated. And as bad as things are in Iraq today, they could get worse. What would happen if the key Shiite figure, Ali al Sistani, were to die? If another major attack on the scale of the Golden Mosque bombing hit either side (or, perhaps, both sides at the same time)? Such deterioration might convince many Americans that the war there truly was lost—but the costs of reaching such a conclusion would be enormous. Afghanistan is somewhat more stable for the moment, although a major Taliban offensive

appears to be in the offing. Sound US grand strategy must proceed from the recognition that, over the next few years and decades, the world is going to be a very unsettled and quite dangerous place, with Al Qaeda and its

associated groups as a subset of a much larger set of worries. The only serious response to this international environment

is to develop armed forces capable of protecting America’s vital interests throughout this dangerous time.

Doing so requires a military capable of a wide range of missions—including not only deterrence of great power conflict in dealing with potential hotspots in Korea , the Taiwan Strait, and the Persian

Gulf but also associated with a variety of Special Forces activities and stabilization operations. For today’s US military, which already excels at high technology and is increasingly focused on re-learning the lost art of counterinsurgency, this is first and foremost a question of finding the resources to field a large-enough standing Army and Marine Corps to handle personnelintensive missions such as the ones now under way in Iraq and Afghanistan. Let us hope there will be no such large-scale missions for a while. But preparing for the possibility, while doing whatever we can at this late hour to relieve the pressure on our soldiers and Marines in ongoing operations, is prudent. At worst, the only potential downside to a major program to strengthen the military is the possibility of spending a bit too much money. Recent history shows no link between having a larger military and its overuse; indeed, Ronald Reagan’s time in office was characterized by higher defense budgets and yet much less use of the military, an outcome for which we can hope in the coming years, but hardly guarantee. While the authors disagree between ourselves about proper increases in the size and cost of the military (with O’Hanlon preferring to hold defense to roughly 4 percent of GDP and seeing ground forces increase by a total of perhaps 100,000, and Kagan willing to devote at least 5 percent of GDP to defense as in the Reagan years and increase the Army by at least 250,000), we agree on the need to start expanding ground force capabilities by at least 25,000 a year immediately. Such a measure is not only prudent, it is also badly overdue.

torture

CIA surveillance of Congressional intelligence committees creates a cycle of secrecy about CIA corruption and torture because reports become inaccessibleRosenthal 14 (Andrew. Andrew Rosenthal, the editorial page editor of The New York Times, is in charge of the paper's opinion pages, both in the newspaper and online. He oversees the editorial board, the Letters and Op-Ed departments, as well as the Editorial and Op-Ed sections of NYTimes.com. “The C.I.A. Torture Cover-Up”. 11 March 2014. The New York Times. http://www.nytimes.com/2014/03/12/opinion/the-cia-torture-cover-up.html?_r=0)//JuneC//It was outrageous enough when two successive presidents papered over the Central Intelligence Agency’s history of illegal

detention, rendition, torture and fruitless harsh interrogation of terrorism suspects. Now the leader of the Senate intelligence committee, Dianne Feinstein, has provided stark and convincing evidence that the C.I.A. may have committed crimes to prevent the exposure of interrogations that she said were “far different and far more harsh” than anything the agency had described to Congress. Ms. Feinstein delivered an extraordinary speech on the Senate floor on Tuesday in which she said the C.I.A. improperly searched the computers used by committee staff members who were investigating the interrogation program as recently as January. Beyond the power of her office and long experience, Ms. Feinstein’s accusations carry an additional weight and credibility because she has been a reliable supporter of the intelligence agencies and their expanded powers since the attacks of Sept. 11, 2001 (sometimes too reliable). On Tuesday, the C.I.A. director, John Brennan, denied hacking into the committee’s computers. But Ms. Feinstein said that in January, Mr. Brennan acknowledged that the agency had conducted a “search” of the computers . She said the C.I.A.’s inspector general had referred the matter to the Justice Department for

possible criminal prosecution. “Besides the constitutional implications,” of separation of powers, she said, “the C.I.A.’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the C.I.A. from conducting domestic searches or surveillance .” Ms. Feinstein’s speech detailed the lengths to which the C.I.A. had gone to hinder the committee’s investigation, which it began in 2009 after senators learned the agency had destroyed videotapes of the

interrogations under President George W. Bush. Under President Obama, prosecutors exonerated the officials who ordered those tapes destroyed. Ms. Feinstein said that when Senate staff members reviewed thousands of documents describing those interrogations in 2009, they found that the C.I.A.’s leadership seriously misled the committee when it described the interrogations program to the panel in 2006, “only hours before President Bush disclosed the program to the public.” The interrogations included a variety of brutal methods, some of which — waterboarding in particular — were unequivocally torture. When the Senate staff compiled a still undisclosed 6,300-page report, it described these acts and also concluded that the C.I.A. had falsely claimed that torture and other brutality produced useful intelligence. The report has been going through the snail’s pace review and declassification process since December 2012. The C.I.A. disputed some of its findings. But Ms. Feinstein publicly confirmed on Tuesday that an internal review by the C.I.A. had reached conclusions similar to

those in the Senate staff report. It was the committee staff’s possession of that internal review — which the C.I.A. has refused to give to the Senate — that spurred what Ms. Feinstein said was an illegal search of computers (provided to the Senate staff by the C.I.A.) that contained drafts of the internal review. Ms. Feinstein said that staff members found the drafts among the documents that the C.I.A. had made

available to the committee. She said she did not know whether the drafts were put there inadvertently, or by a whistle-blower. The Senate’s possession of the documents was entirely legal, she said. She dismissed the acting C.I.A. general counsel’s claim that the Senate staffers had hacked agency computers as intimidation. The counsel, she noted, was a lawyer and then chief lawyer for the interrogations division and is “mentioned by name more than 1,600 times in our study.” The Justice Department now has a criminal investigation to conduct, but the C.I.A. internal review and the Senate report must be released. Ms. Feinstein called on President Obama to make public the Senate report, which he has supported doing in the past. She said that this

would “ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted.” The lingering fog about the C.I.A. detentions is a result of Mr. Obama’s decision when he took office to conduct no investigation of them. We can only hope he knows that when he has lost Dianne Feinstein, he has no choice but to act in favor of disclosure and accountability. Correction: March 11, 2014 An earlier version of this editorial incorrectly stated that Senator Dianne Feinstein had referred the matter of the C.I.A.’s search of the Senate computers to the Justice Department. The referral was made by the C.I.A.’s inspector general.

The Senate report was a step in the right direction - further disclosure exposes the truth of inhumane CIA practicesFoster 6/02 (Peter Foster - Telegraph's US Editor, June 2, 2015, The Telegraph, CIA torture more 'brutal and sadistic' than Senate report disclosed, http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11647370/CIA-torture-more-brutal-and-sadistic-than-Senate-report-disclosed.html)//JS

The CIA’s use of torture was far more “brutal and sadistic” than was disclosed in last year’s

controversial US Senate report into the agency’s interrogation techniques, according to new information from a

Guantanamo Bay detainee. The newly declassified accounts of the torture of Majid Khan, a so-called "high value detainee",

describe in graphic detail how he was sexually assaulted, hung from a beam for several days without a break and half-drowned in tubs of freezing water. The descriptions are contained in 27 pages of notes from interviews between Mr Khan and his legal team that were cleared for release by the US government on Tuesday, and first reported by Reuters. The notes appear to corroborate a Telegraph report from September last year in which a highly-placed intelligence source alleged that CIA waterboarding went far beyond the controlled ‘simulated’ drowning known as ‘waterboarding’. In the new testimony, Mr Khan, who was arrested in Karachi in 2003 and held for more than three years in CIA black sites before being transferred to Guantanamo Bay in 2006, is described undergoing the near-drownings during an interrogation in May 2003. “Guards and interrogators brought him into a bathroom with a tub. The tub was filled with water and ice. Shackled and hooded, they placed Khan feet-first into the freezing water and ice,” the excerpt said, “They lowered his entire body into the water and held him down, face-up in the water. An interrogator forced Khan's head under the water until he thought he would drown.” Last year an intelligence source provided a very similar

description of CIA excesses against an unnamed detainee, telling The Telegraph: “They weren’t just pouring water over their heads

or over a cloth. They were holding them under water until the point of death , with a doctor present to make

sure they did not go too far. This was real torture.” The source added that doctors were also present during the near-death interrogations to ensure there was not a fatality – a fact corroborated by Mr Khan – who says he begged one doctor for help but the

doctor instead instructed the guards to hang him from including a metal bar for a further 24 hours. The notes say that Mr Khan was kept in the dark for much of 2003 and in solitary confinement from 2004-2006, that he was threatened with tools, a hammer, and that his interrogators sometimes had the smell of alcohol on their breath. Mr Khan, now 35, grew in Baltimore, Maryland and is now a government witness in the trial of Khalid Sheikh Mohammed and others accused in the September 11 attacks, after pleading guilty to terror conspiracy charges in February 2012. Lawyers for Mr Khan and

other rights groups say that the new testimony makes clear that the 500-page Senate torture report – which was bitterly contested by the CIA and caused huge controversy when it was released last year – only scratched the surface of what actually happened. “It is clear that the CIA interrogators were completely out of control,” Wells Dixon, a lawyer with the Center for Constitutional Rights

who represents Mr Khan told The Telegraph, “the reality of what happened to men like Majid Khan is far more brutal and sadistic than has been revealed in the Senate report or any of the other prior public disclosures.” Reprieve, the UK-based legal charity that represents several victims of CIA extraordinary rendition, said the testimony proved that there was still a “huge amount” of work to be done to reveal both the truth about torture, and the role

played in the CIA’s programme by Britain. “While the Senate torture report is a crucial piece of work, it has always been very clear that those parts of it which were published were only the tip of the iceberg,” said Kat Craig, Reprieve’s legal director, “Today’s revelations make clear that many of the grisly details remain hidden in the shadows.” Another extended extract that Mr Khan's lawyers shared with The Telegraph described how he was subjected to near-drowning during an interrogation in July 2003, to the point where his lungs filled with water. The notes continue: "He was hung for several days from a metal pole, without any break, without any food and very little water. Guards and interrogators then carried Khan into a room. [There was a] tub constructed from plastic sheeting that again had water and ice in it. Khan was forced into the tub and held down on his back, his hands were shackled underneath him and the arch of his back forced his head to tilt backwards into the water at an angle. A cloth hood remained on his face as the guards forced his body down into the tub. One of the interrogators held a bucket filled with water and large chunks of ice over his head. The interrogator poured the water and ice into Khan's mouth and nose as well as on his genitals from a high distance. As the interrogator poured the tub began to fill up. Khan could not breath and water went into his lungs. The guards and interrogators flipped Khan over from his front to his back several times, each time forcing his head into the water. An interrogator demanded answers to his questions throughout this process. This torture session was followed by a 15 minute videotaped interrogation in another room where Khan was forced to sit naked on a wooden box and he was again subject to sleep deprivation. He was forced to write his own confession while being filmed naked if he wanted some rest."

According to a full list of excerpts released by the The Center for Constitutional Rights: Khan was raped while in CIA

custody (“rectal feeding”) and sexually assaulted: “As described in the Senate Intelligence Committee Report, Khan was

raped while in CIA custody (‘rectal feeding’). He was sexually assaulted in other ways as well, including by having his

‘private parts’ touched while he was hung naked from the ceiling.” The CIA maintains that rectal feedings were necessary after Khan went on a hunger strike and pulled out a feeding tube that had been inserted through his

nose. Senate investigators said Khan was cooperative and did not remove the feeding tube. Khan was hung on a wooden beam for days on end: “Interrogators and guards at a black site hung Khan by his hands from a wooden beam for three days. He was naked and shackled. He was provided with water but no food.” Khan spent much of 2003 in total darkness: “Majid had an uncovered bucket for a toilet, no toilet paper, a sleeping mat and no light…. For much of 2003 he lived in total darkness.” Khan was held in solitary: “Khan was essentially held in solitary confinement from 2004 to 2006.” Khan’s family was threatened by interrogators: “They also threatened to harm his family, including his young sister. He was told, ‘son, we are going to take care of you. We are going to send you to a place you cannot imagine.’” Khan experienced repeated beatings and threats to beat him with tools, including a hammer: “They would come in with a bag of tools and set them down next to Majid. They would pull out a hammer and show it to Majid. One of them threatened to hammer Majid’s head. They sometimes smelled like alcohol.” Doctors were among Khan's worst torturers; Khan was hung on a metal bar: “When a physician came to examine him, Khan begged for help. In response, the physician instructed the guards to take Khan back into the interrogation room with the metal bar and hang him. Khan remained hanging there for another 24 hours before being interrogated again and forced to write his own ‘confession’ while being filmed naked if he wanted some rest. He was finally placed in a cell, where he remained numb and immobile for several days.”

Releasing records causes public backlash – disrupts torture programsFeinstein and Rockefeller 14 (Dianne Feinstein - Democrat: Chair of the US intelligence committee on the U.S. Senate (California), and Jay Rockefeller - Democrat: Former chair of the committee (West Virginia), April 10, 2014, The Washington Post, The Senate report on the CIA’s interrogation program should be made public, http://www.washingtonpost.com/opinions/the-senate-report-on-the-cias-interrogation-program-should-be-made-public/2014/04/10/eeeb237a-c0c3-11e3-bcec-b71ee10e9bc3_story.html) //JS

We believe that public release is the best way to ensure that this program of secret detention and coercive interrogation never happens again. It will also serve to uphold America’s practice of admitting wrongdoing and learning from its mistakes. Some, however, do not want this report to become public and are seeking to discredit it. Critics’ two most common refrains: The report was written to support a predetermined outcome, and it is flawed because of a lack of interviews. Both assertions are false and can easily be refuted. It is important to understand the

origins of the committee’s study. The full committee was not briefed on the CIA’s detention and interrogation program until September 2006 — more than four years after the program had begun —

and learned about the existence and eventual destruction of CIA interrogation tapes only from news reports in late 2007. In December 2007, media reports revealed that the CIA had destroyed videotapes depicting the interrogations of its first two detainees, Abu Zubaida and Abd al-Rahim al-Nashiri . The CIA had destroyed those tapes in 2005 over the objections of President George W. Bush’s White House counsel and the director of national intelligence, among others. On Dec. 11, 2007, CIA Director Michael Hayden told the Senate intelligence committee that the destruction of the tapes did not amount to destruction of evidence because detailed records of the interrogations existed in the form of CIA operational cables. Hayden also assured the committee that those cables were a more-than-adequate representation of the tapes and said that committee staff would be given access to them. Over the following year, staff members pored over those cables. In February 2009, they reported their findings to the committee. By that time, one of us, Sen. Feinstein, had taken over the chairmanship from the other, Sen. Rockefeller. Working with then-Sen. Christopher S. Bond (R-Mo.), the vice chairman of the committee, terms for a comprehensive review of the CIA’s program were drafted. The intelligence committee voted 14 to 1 to initiate that study. After reaching an agreement with the CIA on how the study would be conducted, committee staff began working on a bipartisan basis. Contrary to recent allegations, the final report was not written to support preconceived notions. It was written to document the facts of the CIA’s detention and interrogation practices — nothing more and nothing less. Almost every sentence in the 6,600-page report is attributed to CIA documents, including cables, internal memoranda and e-mails, briefing materials, interview transcripts, classified testimony, financial documents and more. When the executive summary is released, the public will see how thoroughly documented and fact-based it is. The criticism that committee staff did not conduct interviews is also misleading. In August 2009, just five months after the committee had authorized its study, the Justice Department broadened its look at the CIA program from a review of the destruction of the videotapes to an investigation into CIA interrogations. This meant that CIA officers whom the committee might

have interviewed now faced legal jeopardy, which led then-CIA Director Leon Panetta to decide not to compel agency personnel to participate in our interviews. And it was this Justice Department review, not

partisanship, that led Republicans on the intelligence committee to withdraw from the study. Although the committee was not able to conduct new interviews, it had access to and used transcripts from more than 100 interviews conducted by the CIA inspector general and other agency offices while the program was ongoing and shortly after it ended. Many of these transcripts were from interviews of the same people the committee would have talked to, with answers to the same questions that would have been asked. This included top managers, lawyers, counterterrorism personnel, analysts,

interrogators and others at the CIA. Ultimately, the Senate intelligence committee’s report should be judged on the accuracy of its findings and the quality of its conclusions, not on whether its information came from documents or interviews. Soon, the American people will be able to judge this for themselves. We have confidence that they will conclude, as we have, that this program was a mistake that must never be repeated.

These torture reports serve no counterterror purpose – they’re counterproductive for national securityJervis 15- Adlai E. Stevenson Professor of International Politics at Columbia University and a member of the Saltzman Institute of War and Peace Studies (Robert, “The Torture Blame Game: The Botched Senate Report on the CIA's Misdeeds”, Foreign Affairs, May/June 2015, HeinOnline)//WK

The debate over whether torture produced useful information should not be confused with the broader question of whether the interrogation program did more harm than good . Even if torture worked in the narrow sense, its costs might have outweighed its benefits: the negative global reaction to the CIA's brutal methods decreased support for U.S. policies and may have

helped terrorist groups win more sympathizers and recruits. At the very least, the torture committed alienated U.S. allies and gave ammunition to those who opposed Washington's policies,

contributing to the belief that the United States was hypocritical in its public defense of liberty and prone to treat Muslims as less than human. But neither the Senate reports nor the CIA rebuttal seeks to calculate those costs.

The CIA's interrogation program raised a host of moral questions as well, which the Senate reports and

the CIA rebuttal ignore. Perhaps this is just as well; one has no reason to expect senators or intelligence officials to be especially qualified on the subject of morality. But both the Democratic majority report and

the Republican dissent take easy ways out. By claiming that the torture was ineffective, the Democratic report encourages a sense of indignation and implies that the interrogation program was morally indefensible. The Republican dissent, for its part, contents itself with claiming that the torture did produce useful information but avoids an accounting of its moral and political costs, suggesting that such concerns have no place in counterterrorism policies.

--Scenario 1 is soft power

The world already knows about CIA human rights abuses – that creates international double standards that undermine the rule of law globallyNossel 12- Amnesty International USA Executive Director (Suzanne, “Call on President Obama to keep his earlier human rights promises”, Amnesty International USA, 11/7/12, http://www.amnesty.ca/news/news-item/call-on-president-obama-to-keep-his-earlier-human-rights-promises)//WKResponding to the re-election of Barack Obama as President of the United States of America, Amnesty International USA executive director Suzanne Nossel said: “When President Obama was first elected in 2008, many human rights activists rejoiced. It had been eight long years where the United States tortured, detained hundreds without charge and trial, and tried to justify the horrors of

Abu Ghraib. “President Obama’s first campaign for the White House offered the promise of an administration that would recapture the United States’ credibility on human rights issues, bringing detention practices in line with international law, repudiating secrecy and ensuring that human rights weren’t traded away in the name of national security. “More simply, President Obama promised a new dawn of American leadership, one in which human

rights would be given more than lip-service. “Unfortunately the first Obama administration broke many of its promises when human rights were pitted against national security interests. When it comes to

countering terrorism, President Obama has hidden behind national security imperatives to shield administration policy in secrecy and pursue programmes such as expanded drone use. “President

Obama’s second term will determine whether the post-9/11 stains on the United States’ human rights record are an anomaly or the new normal. It was Mitt Romney who said of the challenges of counter-terrorism that ‘we can't kill our way out of this mess’, but too many of President Obama’s policies are an attempt to do just

that. “Unlawful killings and other human rights violations sanctioned by the US government undermine the rule of law globally , creating a climate in which other countries can point to a

double-standard to justify their own human rights abuses with the refrain, ‘ if the US government does that, why shouldn’t we .’ “The United States’ power and influence should derive from its commitment to the rule of law and to advancing human rights and dignity.

President Obama should not trade that away at any price. “President Obama has been given a second chance to keep his promises on human rights. Don’t blow it.”

Acknowledging and accepting responsibility for its actions related to torture is necessary for regaining international credibility – releasing the torture report is an important first stepKnigge 14 – International Reporter at Deutsche Welle: transatlantic relations, US foreign and domestic policy, global Internet politics. (9/12/2014, Michael, Deutsche Welle, “Opinion: Senate torture report release will help US foreign policy”, http://www.dw.com/en/opinion-senate-torture-report-release-will-help-us-foreign-policy/a-18118040 // SM)

A key argument for many critics to shelve or delay the report is that its release could have negative consequences - specifically for Americans abroad and more generally for US foreign policy. Unfortunately,

they have the argument exactly wrong. It is important to note that it is not the release of the report that could potentially trigger negative consequences for US citizens and foreign policy, it is the acts and practices of torture and rendition detailed in the report that may do so. And it is equally important to point

out that contrary to what these critics are claiming the release of the report will not damage, but could salvage US foreign policy. No place for hubris How can the US, the global superpower, which historically is viewed and views itself as the beacon of freedom - as the ‘city upon a hill' for the world to emulate, - criticize other countries on human rights when itself doesn't come clean on its own abuses? It can't. To regain the

international credibility that has been lost due to the egregious overreach by the CIA and others

during the Bush years, it is crucial that Washington must acknowledge and accept responsibility for these actions. But to focus on international aspects only would undersell the issue. It's much more important than that. In a

democratic, rule-of-law based country there simply cannot be a place for torture. By releasing the Senate report on torture the US is making an important step in asserting a fact that actually should not need to be asserted in the first place.

Anti-americanism and unilateral military policies decimate US legitimacy, threating the American international system – that causes excess interventions and great power warsKupchan 12 – Ph.D. in international relations from Oxford, Associate Professor of International Relations @gtown, Senior Fellow and Director of Europe Studies at the Council on Foreign Relations (Charles Kupchan, “Sorry, Mitt: It Won't Be an American Century”, FEBRUARY 6, 2012, http://www.foreignpolicy.com/articles/2012/02/06/it_won_t_be_an_american_century?page=0,2)In an election season, such talk rolls easily off the tongue. But Romney's hackneyed rhetoric is woefully out of step -- both with an American electorate

hungry for a less costly brand of foreign policy and with a world in the midst of tectonic change. A sharp economic downturn and expensive, inconclusive conflicts in Iraq and Afghanistan have left Americans ready for a focus on the home front. Abroad, the charge for the next U.S. president can hardly be to stick his head in the sand and deny that the global distribution of power is fast changing. On the contrary, it is to react soberly and steadily to the implications of such change and ensure that the United States remains secure and prosperous even as economic and military strength spreads to new quarters. President

Barack Obama is on the correct path. Leaving Iraq and overseeing a paced withdrawal from Afghanistan will bring U.S. commitments back into line with U.S. interests. Special operations and drone strikes have proved far more effective in fighting al Qaeda than has occupying countries in the Middle East and South Asia, and an offshore posture in the Persian Gulf is the best way

to deal with Iran. Amid China's rise and the economic dynamism building in its neighborhood, Obama is right to downsize the U.S. presence in Europe and orchestrate a strategic "pivot" to

East Asia. The move constitutes a necessary hedge against Chinese ambition and ensures that American workers will benefit from expanding markets in the Pacific Rim. These policies will enable the United States to simultaneously adjust to a shifting global landscape, husband its

resources, and grow its economy -- facilitating the president's pledge to focus on "nation-building here at home." Romney has already denigrated Obama's pragmatism, charging that "our president thinks America is in decline." Obama shot back in his State of the Union address on Jan. 24 that "anyone who tells you that America is in decline … doesn't know what they're talking about." Obama decidedly has the upper hand in

this back-and-forth. He recognizes that, the country's strengths notwithstanding, U.S. strategy must adjust to a world in which power will be more broadly distributed. And his focus on rebuilding the American economy speaks directly to an

electorate yearning for more equity and prosperity at home. According to a recent Pew Research Center survey, 46 percent of Americans want the United States to "mind its own business ," and 76 percent think the country should

"concentrate more on our own national problems" than on foreign challenges. These are high numbers by historical standards -- a clear indication that the electorate is hurting economically and wary of strategic overreach . Romney should take note. His chest-thumping talk of a new American century still plays well in some quarters. But Obama's commitment to nation-building at home will play even better. Even if Romney's rhetoric were to get more domestic traction, it would still bear no resemblance to the new global landscape that is fast emerging. The United States is indeed an exceptional nation -- in its prized geographic location,

commitment to freedom and democracy, and brand of international leadership. But the country's exceptionalism should not be used as an excuse to hide from global realities. China's GDP will catch up with America's over the course of the next decade. The World Bank predicts that the dollar, euro, and China's renminbi will become co-equals in a "multi-currency" monetary system by 2025. Goldman Sachs expects the collective GDP of the top four developing countries -- Brazil, China, India, and Russia -- to match that of the G-7 countries by 2032. The United States will no doubt exit the current slump and

bounce back economically in the years ahead. Nonetheless, a more level global playing field is inevitable. To be sure,

America's military superiority will remain second to none for decades to come. As the wars in Iraq and Afghanistan have made amply clear, though, military primacy hardly ensures effective influence. And with the U.S. defense budget poised to shrink in the service of restoring the country's fiscal health, the United States will have to pick its fights carefully. Shrewd and judicious statecraft will be at least as important as raw power in ensuring the country's security. To acknowledge the need for the United States to adjust to prospective shifts in the global distribution of power is not, as Duke University professor Bruce Jentleson recently pointed out in Democracy, to be a declinist or a pessimist. It is to be a realist. And safely guiding the United States through this coming transition requires seeing the world as it is rather than retreating toward the illusory comfort of

denial. Adjusting to the rise of the rest requires, for starters, making more room at the table for newcomers . That process is already well under way. The G-20 has supplanted the G-8, widening the circle for global

consultations. In the aftermath of reforms adopted in 2010, developing countries now have enhanced weight at the World Bank and IMF. The enlargement of the U.N. Security Council, though currently bogged down in

wrangling, is also in the offing. But making international institutions more representative is the easy part. More challenging will be managing the ideological diversity that will accompany the coming realignment in global power. Precisely because the United States is an exceptional nation, its version of liberal

democracy may well prove to be the exception, not the rule. In China, Russia, and the sheikhdoms of the Persian Gulf, state-led brands of capitalism are holding their own -- and may well do so for the foreseeable future. The Arab Spring could finally bring democratic rule to at least some countries in the Middle East, but it is also breeding political Islam; democratization should not be mistaken for Westernization. Even emerging powers that are already democracies, such as India, Brazil, and Turkey, are charting their own paths. They regularly break with the United States and Europe on trade, Middle East diplomacy, military intervention, the environment, and other issues, preferring to side with other ascending states, whether democratic or not. Romney's paeans to American power are no excuse for his silence on how he plans to manage these

complexities. Promoting international stability will grow more demanding as rising powers bring to the table their differing conceptions of order and governance. The United States has a key role to play in managing such diversity and channeling it toward cooperative ends. Overheated proclamations of American preeminence, however, will do more harm than good. If a new, consensual international order is to emerge, rising powers

must be treated as stakeholders in that order, not merely as objects of American power. Shepherding the transition to this more pluralistic world is arguably the defining challenge facing U.S. statecraft in the years ahead. Romney appears ready to pave over this challenge by denying that such change is afoot and attempting to portray Obama's policies as "an eloquently justified surrender of world leadership." Obama should welcome this debate and refuse to let his opponents hide behind the veil of American exceptionalism. Democrats no longer need to feel vulnerable on national security; Obama has demonstrated smarts and strength on many issues, including the degradation of al Qaeda, the pivot to Asia, and the isolation of Iran. He understands that agile, firm diplomacy backed by American power

will do much more for the United States than congratulatory talk of American primacy. A smarter, more selective, and less

costly U.S. role in the world would not only help the United States get its own house in order, but also give rising powers the wider berth they seek. And good policy would also be good politics; Americans are keen

to share with others the burdens and responsibilities of international engagement. The world desperately needs a brand of U.S. leadership that focuses not on ruling the roost, but on guiding a more diverse and unwieldy globe to consensus and cooperation.

Credibility and soft power are key to address rising global threatsLord 14 – Kristin M. Lord is President and CEO of IREX, a global education and development NGO. (12/23/2014, Kristin, Foreign Policy, “Soft Power Outage”, http://foreignpolicy.com/2014/12/23/soft-power-outage/?wp_login_redirect=0 // SM)

The release of a long-awaited report by the U.S. Senate Select Committee on Intelligence on the CIA’s secret detention and interrogation program dealt yet another blow to the United States’ moral authority and its credibility as a defender of human rights around the globe. It also begs the question: How much damage must the United States suffer before it learns to take soft power more seriously and, finally, learn to

use it more proactively? To understand the immediate damage done to U.S. influence, look no further than the commentary surrounding the report’s release. According to the Washington Post, the

state-run Chinese news service Xinhua editorialized that “America is neither a suitable role model nor a qualified judge on human rights issues in other countries,” while a pro-government television commentator in Egypt observed, “The United States cannot demand human rights reports from other countries since this

[document] proves they know nothing about human rights.” The Islamic State and other extremists joined the propaganda gold rush. One tweet, quoted in a report from the SITE Intelligence Group, pointed to the audacity of the United States lecturing Muslims about brutality, adding, “Getting beheaded is 100 times more humane, more dignified than what

these filthy scumbags do to Muslims.” Such reactions are galling and they do real harm to U.S. credibility.

But the fault lies not with those who released the report, as some critics argue, but with those who permitted and perpetrated acts of torture, those who lied about it to America’s elected representatives, and those who willfully kept the

president and senior members of the Bush administration in the dark. Their actions undermined not only American values, but also American influence and national security interests. In the words of a former prisoner of war, Sen. John McCain (R-Ariz.), the actions laid out in the Senate report “stained our national honor” and “did much harm and little practical good.” The release of the report provides Americans with an opportunity to reflect on the morality of their nation’s actions. But it is also should be seen an opportunity to reflect on the United States’ soft power strategy, which is related to moral authority, but also distinct. While morality is a normative system of values and principles that guides just behavior, soft power is ultimately about influence. As Joseph Nye, the former dean of the John F. Kennedy School of Government at Harvard, has argued, there are many different ways to affect the behavior of others. One can coerce with threats. One can induce with incentives. Or one can exercise the power of attraction, co-opting others who want the same things you want through the legitimacy of your policies and the values upon which they’re founded. The latter is called soft power. Moral authority facilitates soft power, but so do

relationships, shared values, and interlinking interests. Given the ideological component of so many of the national security threats that face the United States going forward — and the inability of any one country to meet them alone — soft power can be an important part of the strategy to address these threats . But Americans will need to cultivate it. The United States is a natural soft power leader, founded on principles that are now embraced widely across cultures and geographies. For decades, it has built a network of partners and allies around the world that endure through shared values as well as shared interests. While the United States may not always be popular, American values of political pluralism,

economic competition, and human rights are enduring. While the United States may not always be popular, American values

of political pluralism, economic competition, and human rights are enduring. Over the long haul, these values often win the day, even when opponents are more ruthless, more committed, and more willing to expend resources. (It is worth remembering this as diplomats privately bemoan the billions spent on Russian propaganda or the social media sophistication of the Islamic State.)

--Scenario 2 is Bagram

Bagram’s the key sticking point in Bilateral Security Agreement negotiations -- Karzai’s using US hypocrisy on indefinite detention to justify prisoner releases --- collapses the deal and ensures U.S. withdrawal Rosenberg 1/2 - (Matthew, NYT, “Karzai Is Warned Over Release of Detainees”, ttp://www.nytimes.com/2014/01/03/world/middleeast/karzai.html?_r=0)//WK

KABUL, Afghanistan — American senators visiting Kabul on Thursday intensified pressure on President Hamid

Karzai to sign a long-term security deal with the United States. And responding to a new crisis between the allies this week, they warned the Afghan government away from plans to summarily release dozens of detainees accused of attacking American forces. ¶ “If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “ There will be a backlash in the U.S. Congress .”¶ Mr. Graham and Senator John McCain of Arizona, a fellow

Republican, have been frequent visitors to Afghanistan since well before the United States invasion in 2001, and they are still among the most ardent congressional supporters of a continued American role in the country.

But the two lawmakers, along with another visiting Republican, Senator John Barrasso of Wyoming, told reporters here on

Thursday that they had expressed grave concerns to Mr. Karzai over a lunch meeting, warning that American will to stay involved with Afghanistan was dwindling, and that actions like the planned prisoner release were adding further strain. ¶ American officials want the prisoners to be prosecuted and say the men are members of the Taliban or allied militant groups that are

suspected in the deaths of 117 members of the Afghan or international security forces.¶ The men are being held near Bagram Air Base, in what was the main American prison in Afghanistan until it was transferred to the Afghan government last year.¶ That transfer of authority over detainees seemed to have settled one of the most corrosive disputes between Mr. Karzai and his American supporters,

and it cleared the way for talks to secure a broader deal, known as the bilateral security agreement,

that would allow for continued aid and a small American troop presence beyond 2014.¶ But the troop deal is now in limbo , derailed after its initial approval in November when Mr. Karzai said he would wait to sign it until after elections this coming spring. A long succession of American officials warned him that the delay could scuttle the entire deal, and billions of dollars in international aid. But Mr. Karzai then began issuing new demands, alienating some of his own Afghan supporters and infuriating

American officials.¶ Now, the new flare-up over the potential prisoner release has revived the entire detainee issue, and the acrimony has escalated in a matter of days to the point where some of the staunchest American supporters of a continued troop presence in Afghanistan are openly warning that the deal may collapse if the Afghan government frees the prisoners without hearings. ¶ Mr. Graham suggested as much on Thursday, though he made no direct threats. “It will be devastating to any future negotiations with the United States,” he said after the senators’ meeting with Mr.

Karzai.¶ Though Mr. Graham does not speak for the Obama administration, he and Mr. McCain are among the dwindling number of elected officials in Washington who are willing to advocate for keeping the United States engaged in Afghanistan. If their support were to cool, it would probably bolster the position of those inside and outside the administration pushing for a complete withdrawal when the NATO combat mission ends this year. ¶ Mr. McCain appeared to acknowledge as much, saying he had told Mr. Karzai of a recent poll by CNN and ORC International that found only 17 percent of Americans support the war.¶ Still, Mr. McCain was publicly more measured on the prisoner release issue. In his comments, he focused on what he

described as the narrowing differences over the security deal, and said of the prisoners: “We’re going to have to see what happens, how it happens and what the situation is before we make a judgment. We can’t go any further in our comments.” ¶ The releases were ordered by a commission Mr. Karzai appointed to review

the cases of those detained at the prison next to Bagram Air Base, a coalition hub north of Kabul.¶ American officials

believe freeing the men would be a violation of the prison deal struck in March. They say Mr. Karzai personally assured them no prisoners implicated in attacks on NATO-led troops would be set free without a trial when Afghanistan took control of the prison.¶ “If this agreement is dishonored, how can you expect future agreements to be honored?” Mr. Graham asked. ¶ Figuring out where Mr. Karzai stands has proved more difficult. His office issued an ambiguous statement after his lunch with the American senators. “Afghanistan wants the innocent prisoners to be released based on Afghan laws, and criminals must be punished,” it said.¶ The Afghan commission reviewing the cases has said the prisoners — American officials say there are 88, the Afghan commission says 86 — are innocent, or that there is not enough evidence to justify holding them until trial. The men are among the 650 detainees the commission has ordered freed since beginning its work last year, and the remaining ones could begin being freed as early as Saturday.¶ The commission has also ordered more than 100 other detainees to stand trial, a fact that commission members have cited as evidence they are willing to keep people suspected of being killers in prison.¶ In a statement,

Mr. Karzai’s office suggested that the Americans were being hypocritical on the issue of detainees . It was at the behest of American officials, after all, that a system of imprisoning battlefield detainees without trial was established in Afghanistan , over the criticism of many Afghan and

international officials. And now, the office said, the Americans are holding themselves up as protectors of Afghan justice. ¶ “President Karzai stressed that many arrests have been made in violation of Afghan laws since the Bagram prison was built,” said the statement from his office. As a result, “a number of our innocent countrymen are imprisoned there.”

Now’s key --- Afghanistan’s poised to release detainees --- failure to resolve the detention issue kills relations and prevents signing of the BSASieff 1/2- Washington Post, (Kevin, “Afghan prisoner-release plan said to risk ‘backlash’ in U.S. Congress”, http://www.washingtonpost.com/world/asia_pacific/afghan-prisoner-release-said-to-threaten-backlash-in-us-congress/2014/01/02/d836c9ba-73cd-11e3-bc6b-712d770c3715_story.html)//WK

KABUL — The Afghan government’s plan to release 88 high-profile detainees without trial “would have an unbelievably negative impact” on U.S.-Afghan relations , according to two of Congress’s biggest advocates for an enduring American presence here.¶ During a visit to Kabul on Thursday, Republican Sens. John

McCain (Ariz.) and Lindsey O. Graham (S.C.) said that although their differences with Afghan President

Hamid Karzai were narrowing on many issues, the prisoner release threatens to undermine bilateral ties at a critical moment — as the deadline for a long-term security agreement looms.¶ In March, the U nited States transferred control of the Parwan prison next to Bagram air base — with

its roughly 3,000 detainees — to the Afghan government. Since then, Graham said, the Afghans have released 560 detainees without trial, and “ some of those have gone back to the fight.” ¶ The Afghan government is now considering releasing 88 detainees who are of particular concern to the United States. Collectively, Graham said, they killed 60 members of the U.S.-led International Security Assistance

Force (ISAF).¶ When the United States transferred control of the Parwan Detention Facility, it mandated that detainees with evidence against them be tried in Afghan courts. U.S. officials say that agreement is being violated, because the cases are being decided only by a review board, which lacks the judicial authority to make such rulings.¶ “Release of these individuals by the Afghan Review Board undermines Afghan rule of law, because the Afghan people do not get their day in court,” said Col. David Lapan, a spokesman for ISAF. “Based on the evidence and the risk these individuals pose to the peace and security of the Afghan people, and in accordance with Afghan law, their cases should be addressed by the formal Afghan justice system.”¶ U.S. officials said last year that they understood the risks involved in handing over control of the prison — the transfer was considered a key part of the transition process — as the United States withdraws its troops and shutters bases. But although they assumed that a number of prisoners would be released, they expected the Afghan government to at least follow due process, adjudicating cases through

Afghan courts, which the United States has spent a decade trying to bolster.¶ The prisoner release, Graham said, would lead to a “backlash in the U.S. Congress ,” which would need to appropriate funds for any long-term American commitment in Afghanistan . ¶ “Unless we resolve these differences, the United States of America has no choice but to not continue with its commitment,” McCain

said.¶ The possibility that the 88 prisoners will be released without trial is particularly frustrating to U.S. officials because they had sent evidence to the review board that might have yielded convictions. That evidence, apparently, is being ignored.¶ Asked about the issue, Afghan

officials said without elaborating that the U.S. military, too, was keeping Afghan detainees without trial at Parwan. ¶ “It is a clear violation of all agreements and absolutely illegal,” said Aimal Faizi, a spokesman for

Karzai. “They want us to close our eyes on it, but it is unacceptable for us.”¶ When control of the prison was transferred last year, U.S. officials deemed 40 detainees as “enduring security threats” whose release could destabilize the country. The Afghan government agreed not to release them until the end of 2014.¶ Although none of the 88 detainees slated for release were labeled “enduring security threats,”

Graham said he worries that if Afghan leaders are willing to carry out one unlawful prisoner release, they could do so again when the stakes are higher.¶ “If this agreement is dishonored, how can you

expect future agreements to be honored?” he asked.¶ McCain and Graham said there is an urgent need to resolve the prisoner dispute , as well as other points of contention with Karzai, so that the bilateral security agreement could be signed . They did not mention a firm deadline for signing the accord, but they noted that Congress needs to approve a budget — including expenditures in Afghanistan — by Jan. 15 and that President Obama’s State of the Union speech is scheduled for Jan. 21. ¶

“What is [Obama] going to tell the American people about Afghanistan if there is no bilateral agreement signed?” Graham said.

BSA failure collapses Afghan and regional stability Gupta 14- Asia Society, (Anubhav, “2014: South Asia's Make or Break Year”, 1-7, http://asiasociety.org/blog/asia/2014-south-asias-make-or-break-year)//WK

This year could define the fate of the region for years to come. The leaders of India, Pakistan,

Afghanistan, and the United States have an opportunity to secure a more stable future or risk the outbreak of greater conflict. As is often the case in South Asia, success is far from certain. Before the United States draws down its military presence in Afghanistan, it must redouble its diplomatic

engagement with South Asia and pursue a regional strategy to enhance stability.¶ The Tough Road Ahead for

India, Pakistan, and Afghanistan¶ With presidential elections and the end of NATO’s combat mission coming up, 2014 is perhaps most critical for Afghanistan . Unfortunately, there remains uncertainty on both

fronts. After months of negotiating, the U.S. and Afghanistan finally brokered a bilateral security agreement in November, providing a legal framework for a small number of U.S. troops to remain

in the country post-2014 to train, advise, and support Afghan forces as well as carry out some counterterrorism operations.¶ Shortly after the agreement was finalized , President Hamid Karzai stymied U.S. plans by deciding to delay signing the agreement until after the 2014 elections or until the U.S. agrees to certain preconditions it finds unacceptable. Though U.S. troops have largely

handed off security responsibilities to the Afghan National Security Forces, there is a general consensus that a small contingent of U.S. troops is necessary to ensure stability . Military planning for the troop draw down and a limited presence post-2014 requires time. If this issue is not resolved soon , the U.S. could withdraw all troops in 2014, which could be calamitous for stability in the country.

Draws in great powersSahgal and Anand 10 (Arun, former Army officer who created the Office of Net Assessment in the Indian Joint Staff, Senior Fellow at the Institute for Defense Studies and Analyses and ‘Distinguished Fellow’ School of Geo-Politics at the Manipal Academy of Higher Education and Vinod, postgraduate in defence and strategic studies and is an alumnus of Defence Services Staff College and College of Defence Management, “Strategic Environment in Central Asia and India”, http://www.silkroadstudies.org/new/docs/publications/1004Joshi-V-Strategic.pdf)//WKThe geo-strategic salience of Central Asia today has been underscored by two main factors. First, Central Asia has become important because of the discovery of hydrocarbon reserves and second, it has become a major transportation hub for gas and oil pipelines and multi-modal communication corridors connecting China, Russia, Europe, the Caucasus region, the Trans-Caspian region and the Indian Ocean. Furthermore, whether it was Czarist Russia or the Soviet Union or even the present Central Asian regimes, there has always been a strategic

ambition in the north to seek access to the warm waters of the Indian Ocean. Thus Afghanistan, which links Central Asia and South Asia, is a strategic bridge of great geopolitical significance. Central Asia and South Asia are intimately connected not only geographically but also strategically. The Central Asian republics of Turkmenistan, Uzbekistan and Tajikistan have borders with Afghanistan, Iran lies to its west and Pakistan to the

east and south. Therefore, the geostrategic significance of Afghanistan is enhanced even though it may not be an oil- or gas-rich country. With the control of Afghanistan comes the control of the land routes between the Indian subcontinent and resource-rich Central Asia, as well as of a potential corridor to Iran and the Middle East. Thus, stability and peace in Afghanistan, and for that matter Pakistan, are a geostrategic imperative. Central Asia has never been a monolithic area and is undergoing a turbulent transitional process with a diverse range of ethnicities and fragmented societies throughout the region. These societal divisions and lack of political maturity compound the social, economic and political challenges. Security and economic issues are the two most important

components of the Central Asian states’ engagement with outside powers. Among the states themselves there are elements of both cooperation and competition. Historical legacies, their geo-strategic locations, and above all their

perceived national interests profoundly influence the political choices of Central Asian nations. The weaknesses of the new nations in Central Asia pave the way for outside powers to interfere in their internal affairs.

inherency/solvency

inherency

Senate Select Intelligence Committee’s role is consistent oversight of CIAHPSCI = House Permanent Select Committee on Intelligence

Borene 10 (Andrew. Federal Manager for IBM i2 Safer Planet Washington D.C. Metro Area Information Technology and Services. “Oversight Plan for the House Permanent Select Committee on Intelligence” The U.S. Intelligence Community Law Sourcebook. 2010. Google Books)//JuneC//History and Jurisdiction. The HPSCI authorizes funding for all intelligence activities of the United States government and ensures that those activities are effective, legal, a. an appropriate use of taxpayer money. House Rule X(11) outlines the HPSCI’s jurisdiction a.

sets forth specific rules pertaining to its legislative and oversight functions and the handling of classified material. The HPSCI was established in the 95th Congress through H. Res 658. The stated purpose of H. Res 658 was to establish a committee to oversee and make continuing studies of the intelligence and intelligence-related activities and programs of the United States government to submit to the House appropriate proposals for legislation, and to report to the House concerning such intelligence and intelligence-related activities and programs H.Res 658 also indicated that the Committee: Shall make every effort to assort that appropriate departments and agencies of the Untied States provide informed and timely intelligence necessary for the executive and legislative branches to make sound decisions affecting the security and vital interest of the Nation. It is further the purpose of this resolution to provide vigilant legislative oversight over intelligence and intelligence-related activities of the United States to ensure that such activities are in conformity with the Constitution and the laws of the United States. HPSCI shares responsibilities in discrete areas with the Committees on Appropriations, Armed Services, Foreign Affairs, Judiciary, and Homeland Security. The resolution establishing the HPSCI recognized this and provided that some HPSCI members be drawn from those Committees. This is a vital means of coordination as are the daily activities of Committee staff with

their counterparts. in keeping with the framework of Committee rules. The HPSCI will work in conjunction with the Select Intelligence Oversight Panel (STOP) of the Committee on Appropriations. At the start of the 110. Congress. Speaker Pelosi announced her intention to create the Panel to strengthen over-sight of intelligence

activities. On January 9, 2001, the House passed H. 12m. 35 which established the STOP and charged it with the following duties, "review and study on a continuing basis budget requests for and execution of intelligence activities; make recommendations to relevant subcommittees of the Committee on Appropriations, and, on an annual basis, prepare a report to the Defense Sub-committee of the Committee on Appropriations containing budgetary and over-sight observations and recommendations for use by such subcommittee in preparation of the classified annex to the bill mating appropriations for the Department of Defense. The HPSCI

will continue to carry out its jurisdictional responsibilities, including authorizing funding for intelligence activities. The HPSCI maintains jurisdiction over the National Intelligence Program, and all legislative activity effecting or relating to sources and methods of intelligence and intelligence-related activities of the United Stares. The HPSCI shares jurisdiction over the Military Intelligence Program with the Armed Services

Committee. The National Intelligence Program consists of intelligence activities in the follow-ing departments, agencies, or other elements of the government: I) The Office of the Director of National Intelligence;

2) The Central Intelligence Agency;3) The Defense Intelligence Agency; 4) The National Security Agency; 5) The National Reconnaissance Office;6) The National Geospatial-Intelligence Agency; 7) The Office of the Secretary of Defense;8) The Department of the Army; 9) The Department of the Navy; 10) The Department of the Air Force;11) The Department of State;12) The Depart mot of the Treasury; 13) The Department of Energy; 14) The Department of Homeland Security; 15) The Coast Guard;

16) The Federal Bureau of Investigation; and 17) The Drug Enforcement Administration.

This is not new – The CIA has continuously been caught doing surveillance on the SenateThomson 14 (Iain. American philosopher and Professor of Philosophy at the University of New Mexico. “CIA hacked Senate PCs to delete torture reports. And Senator Feinstein is outraged”. The Register. 11 March 2014. http://www.theregister.co.uk/2014/03/11/senator_feinstein_outraged_that_cia_hacked_her_computers_for_torture_evidence)//JuneC//US Senator Dianne Feinstein (D-CA) has issued a rare public rebuke to the CIA after the agency hacked into a Senate committee's computers to remove documents describing agents' torture enhanced interrogation of terrorist suspects. "I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither," she said. "Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance." Feinstein is head of the Senate Intelligence Committee, which is supposed to scrutinize America's intelligence agencies, and has been a strong supporter of the NSA – even sponsoring a bill to codify into law the mass surveillance techniques

used by that agency. But it seems when such intrusion happens to her, it's a different matter. Back in 2006 , her committee started looking into the CIA's rendition and interrogation program that began in 2002. At some point, agents destroyed video tapes of the interrogation of terrorist suspects, but the then-head of the CIA said this wasn't a problem, since agency documents would give "a more than adequate representation" of what went on. Then in 2009 , the agency handed over 6.2 million unsorted documents to the committee's investigators to study. For security reasons, these were held on an air-gapped network in a secure facility, and Senate staffers began the process of going through them, but the amount of data was so immense they asked the CIA for a search tool to go through them. This was provided, and it was used to find a number of interesting

reports from an internal CIA review that showed "significant CIA wrongdoing," Feinstein said. But then some of the documents started to disappear form the network. Who rm -rf'd the damning dossier? In early 2010 Senate staffers found 870 pages of documents were removed from the database, with another 50 taken out in May. When questioned, the CIA said the documents must have been deleted by IT contractors running the system, then claimed the White House had insisted they be removed , before admitting removing the documents and apologizing to the committee. The committee's report of the CIA's detention and interrogation program was finished last year, and was sent to the White House and the CIA for review. The report used the internal CIA review documents after redacting sensitive information such as the names of CIA staff involved in the program. Then on January 15 Feinstein said CIA director John Brennan called an emergency meeting and told her that his agents had rifled through the computers of congressional staff for documents relating to its internal review of the interrogations. Meanwhile stories were leaked to the press claiming that staffers had hacked CIA computers to get the incriminating documents. Feinstein denied this latter claim, pointing out the documents used were those provided by the CIA itself. She vowed to press on and publish the full report as soon as possible, and called the CIA's actions "a

defining moment for the oversight of our Intelligence Community." In an interview on Tuesday the CIA director denied that his agency had done anything wrong. "We weren't trying to block anything," Brennan said. "The matter is being dealt with in an appropriate way, being look at by the right authorities, and the facts will come out. Let me assure you the CIA was in no way spying on [the committee] or the Senate." Given Feinstein's record, or rather lack of one, in protecting members of the general

public from government surveillance, her outraged statement drew wry comment from NSA whistleblower Edward Snowden. "It's clear the CIA was trying to play 'keep away' with documents relevant to an investigation by their overseers in Congress, and that's a serious constitutional concern," he said in a statement to NBC News. "But it's equally if not more concerning that we're seeing another 'Merkel Effect,' where an

elected official does not care at all that the rights of millions of ordinary citizens are violated by our spies, but suddenly it's a scandal when a politician finds out the same thing happens to them."

CIA surveillance continues despite White House statementsCyr 6/2 (Arthur is a Professor of Political Economy and World Business; Director, A.W. Clausen Center for World Business; Director, International Political Economy Program; Professor of Political Science, 2015, “It’s necessary to spy, but it shouldn’t make the news”, http://www.stripes.com/opinion/it-s-necessary-to-spy-but-it-shouldn-t-make-the-news-1.356086)//ccSen. Dianne Feinstein, D-Calif., then-chairwoman of the Senate Intelligence Committee, reacted by calling for a “total review” of all U.S. intelligence programs. Reports of CIA spying on Congress have further stoked reform fires. Simultaneously, the U.S. is seeking to restrain intelligence agencies. In early June, Congress passed the first significant restrictions on bulk collection of information on Americans since the 9/11 terrorist attacks. The White House has pursued detailed proposals for greater oversight of intelligence agencies. Yet there is an eerie disconnect between White House statements in response to unwelcome news, and actual developments in the field. In commenting on the embarrassing news from Germany, President Barack Obama was described as having been unaware of the activity. Preserving “plausible deniability” for those at the top is a well-established necessary practice in the intelligence trade. Today this is not just useful fiction. Feinstein emphasized that the White House was as unaware as Congress of the spying program in Germany.

solvency

reform/reinforcement (?)

solvency advocate??Ackerman 14 (Bruce. Sterling Professor of Law and Political Science at Yale. “Op-Ed CIA vs. the Senate: The Constitution demands action”. 6 August 2014. LA Times. http://www.latimes.com/opinion/op-ed/la-oe-ackerman-cia-spies-on-senate-20140807-story.html)//JuneC//

A spying on the Senate is the constitutional equivalent of the Watergate break-in. In both cases, the executive branch attacked the very foundations of our system of checks and balances. President Obama is not President Nixon. He hasn’t been implicated personally in organizing this constitutional assault. But he is wrong to support the limited response of his CIA director, John Brennan, who is trying to defer serious action by simply creating an “accountability panel” to consider “potential disciplinary measures” or “systemic issues.” Harry Truman and Congress knew that they were playing with fire in creating a permanent spy agency after World War II. To protect the integrity of the constitutional system, they barred the CIA from all forms of domestic spying. But in response to 9/11, the National Security Act of 2004 enabled the agency to remove many of the barriers that

separated it from domestic operations to permit a coordinated defense against international terrorism. This necessary step increased the danger that the national security establishment would intervene unconstitutionally in domestic politics. Obama’s election paradoxically increased this threat. As long as George W. Bush was in the White House, intelligence operatives could count on him to protect them against retribution for any lawless behavior during the post-Sept. 11 panic. But all bets were off once Obama won the presidency after denouncing torture in legal black holes like Guantanamo and Abu Ghraib. It is hardly surprising that the agency, moving reflexively to protect itself and its turf,

would be tempted to spy on its Senate watchdog. Thanks to CIA slow-walking, it took far too long for the Senate Intelligence Committee to work up its monumental report on the agency’s misconduct, the so-called torture report. As the work was finally reaching completion, its potential for damage was multiplied by the Edward Snowden affair. The steady stream of revelations about the scope of surveillance forced James Clapper, the director of National Intelligence, to admit he had lied to Congress about the extent of domestic spying. Worse yet for the intelligence agencies, it led the Federal Intelligence Surveillance Court to publish confidential opinions condemning them for sabotaging effective enforcement of its decisions. The escalating scandal made the prospect of Senate Intelligence Committee condemnation even more devastating. Thrown on the defensive, CIA headquarters responded to the challenge by breaking into the Senate computers — and by not taking the Constitution seriously . Brennan’s initial response displayed the same breakdown in the CIA's constitutional culture. Rather than demanding a serious accounting from

his subordinates before going public, he immediately denied that any wrongdoing had occurred. While all this was going on, Obama was pondering a serious response to the pervasive surveillance abuses. In April 2013, he assembled a blue-ribbon panel of retired leaders of the intelligence community, as well as leading constitutionalists, who issued a unanimous 46-point reform program in December. In an admirable show of bipartisanship, Republicans on the House Intelligence Committee then included many of the panel’s proposals in their own reform bill. At that point, the intelligence establishment launched a political counteroffensive. With Obama remaining on the sidelines, it persuaded the committee to eliminate many of his own panel’s recommendations from its final

proposal, leading the House to pass a bill that was a parody of its former self. The president is playing the same passive role in supporting his CIA director’s effort to delay serious action in response to the latest scandal. Unless Congress and the public force a reappraisal, Obama may continue to let the security establishment call the shots. The Constitution demands action. Given the culture of lawlessness on display, the only way “to take care that the laws be faithfully executed” is to create stronger institutions that systematically maintain legal control over the intelligence community. The president’s blue-ribbon panel took steps in this direction. Most important, it proposed a sweeping reform of the Foreign Intelligence Surveillance Court that would have made it a far more

credible legal watchdog. But the spy agencies mounted such fierce opposition that Obama distanced himself from this initiative. Instead of caving in, the president should have strengthened his commission’s recommendations. The panel had already proposed the appointment of a public interest advocate to argue for civil liberties before its newly constituted intelligence court. Similar reasoning supports the creation of an independent “office of legal enforcement” dedicated to assuring agency compliance with the court’s decisions on a day-to-day basis. The Senate Judiciary Committee should fill this void when it returns from summer vacation by

framing its own reform legislation. At present, committee Chairman Patrick Leahy (D-Vt.) has developed a proposal that closes some of the yawning loopholes left open by the House bill. But he has not gone far enough in proposing the fundamental institutional changes that are required to assure that his new legal standards will be impartially interpreted and rigorously enforced. Unless this is corrected, Congressional intelligence “reform” will be a prelude to a deepening constitutional crisis in the years ahead.

separation of powers advantage

uniqueness

SoP weak now

Obama threatens separation of powers now – he’s attempting to influence the court as it engages in judicial reviewWashington Times 6/11 – (2015, The Washington Times, “Obama threatens separation of powers”, http://www.washingtontimes.com/news/2015/jun/11/editorial-obama-threatens-separation-of-powers/ // SM)President Obama has crossed another red line, and not one so easily erased as those smudged out by his lethargy and timidity in the

Middle East. American representative government and its more important but allusive essence, democracy, have been protected in many ways over two centuries of American history. There is, of course, the written Constitution, which sets out the basic requirements of government. But above and beyond that, there’s the role of respect — and civility — in relationships that guarantee that these words on paper will be respected, however much in the breach. In fact, usage as well as legalism has defined the growth of American democracy. In one of the unique features of American constitutionalism — as distinguished from

inheritance of British common law — the Founders embraced the separation of powers, with each of the three equal branches of government clearly defined. The Founders turned their backs on a basic principle of British government at the time, the paramountcy of Parliament over both the king and his courts. The Founders certainly foresaw, especially the more conservative among the revolutionaries, James Madison, that no written document alone could preserve the liberties of the new country. It was Madison’s genius that he set out to balance one branch of government against the others. But it has never been clear that the Founders, in their considerable wisdom about governments and regimes which had gone before, meant to establish what has come to be known as “judicial supremacy.” But it quickly became an obvious manifestation of the workings of the new government that, finally, in the interplay of carefully balanced legislative, executive and judicial branches, there

would have to be occasional final arbitration. The Supreme Court, in Marbury v. Madison, ruled in 1803 that the Supreme Court had the authority to determine whether a law, the work of Congress and the enforcement by the president, was constitutional. Mr. Obama has challenged this crucial tradition twice. Once he rebuked the justices of the Supreme Court to their faces at his State of the Union address in 2012, and now, at a press conference, Mr. Obama has crossed two red lines. He rebuked the court for entertaining a challenge to Obamacare, and more important, he tried to pressure the Court as it deliberates. This threatens the very interplay among the three branches . Such a threat is beneath the presidency. We suspect the president knows better. The other branches of the government dare not let him get by with it.

Executive overreach disrupts separation of powers in the status quoSekulow 5/11 – Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), one of the most prestigious law firms in the country. He is an accomplished Supreme Court advocate, renowned expert on religious liberty, a number 1 New York Times-bestselling author, and a respected broadcaster. (2015, Jay, American Center for Law and Justice, http://aclj.org/executive-power/fighting-obamas-executive-overreach-on-behalf-of-congress // SM)

The Obama Administration continues to do whatever it takes to defend the indefensible. First,

President Obama failed to persuade Congress of his legislative ideals on immigration. Then he thwarted the Constitution and unilaterally “change[d] the law.” That’s why today, the ACLJ filed a critical amicus brief representing 113 members of Congress—including Senate Majority Leader Mitch McConnell—and nearly

220,000 Americans urging a federal appeals court to declare President Obama’s executive overreach unilaterally rewriting our nation’s immigration laws unconstitutional and unlawful. Our position is

clear – President Obama’s executive action is unconstitutional and impermissibly disrupts the separation of powers . President Obama’s overreach amounted to changing the law. That is simply unacceptable. Impatient presidents don’t get to change the law. We’re confident that the appeals court will correctly conclude that President Obama’s action is unlawful and unconstitutional and will uphold the findings of the district court.

Separation of powers weak now Teter 13 (Michael, University of Utah S.J. Quinney College of Law, 2/19, “Congressional Gridlock's Threat to Separation of Powers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296130)//ccThe principle of separation of powers serves as the foundation of our constitutional system. Though the doctrine’s meaning is somewhat amorphous, at its core rests a simple assumption: each branch must be able to fulfill its functional duties, while also serving to check the other branches. A gridlocked Congress undermines these basic expectations. The result is a legislature that relies on ad hoc committees, triggers, and gimmicks to make law; an executive that fills in the policy vacuum through presidential initiatives and who expands executive power without rebuke; and a judiciary exercising increasing authority over the meaning of statutes. In other words, our separation of powers scheme suffers because Congress cannot fulfill its constitutional role. To appreciate how gridlock threatens separation of powers requires a more complete awareness of the doctrine’s theoretical, historical, jurisprudential, and scholarly roots. From this review, I establish the broad contours of the separation of powers problem that gridlock poses. I then complete the analysis by turning to several real world examples to demonstrate how congressional stalemate actually undermines the separation of powers. In the end, I conclude that congressional gridlock poses such a threat to separation of powers that it places in peril the entire structural premises of American government.

Separation of Powers weak now Kesler 07 (Charles R is a professor of Government/Political Science at Claremont McKenna College and Claremont Graduate University. He holds a Ph.D in Government from Harvard University, from which he received his AB degree in 1978, 12/17 The Hermitage Foundation, “What Separation of Powers Means for Constitutional Government”, http://www.heritage.org/research/reports/2007/12/what-separation-of-powers-means-for-constitutional-government)//ccThis quick sketch of the politics of American national government is not meant to be exhaustive, of course, but it does convey the salient facts about the current situation in Washington. Those facts point to the following conclusion: The chief constitutional basis of our politics, the separation of powers, is under severe pressure from the institutions and practices of the administrative state. Paradoxically, the principal beneficiary of the growth of the executive bureaucracy has been Congress, not the President, who sees his responsibilities (as head of the executive branch) continually enlarged but his power steady diminished. Even so, not all congressmen equally have seen and approved of the growth in the federal government's authority, or have cheered Congress on in its own superintendence of the executive. For almost a century a faction has existed within the national legislature in favor of the administrative state as the emblem and vehicle of national progress. This faction has included both Democrats and Republicans but, since 1912, predominantly Democrats.

internal link

oversight

CIA surveillance of the Senate undermines effective Senate oversight Horton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and America’s Stealth Warfare” by Scott Horton, Salon, http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)

In the second half of 2013 and the early months of 2014, the feud between the CIA and the Senate oversight committee continued to percolate. The roles played by the White House and President Obama himself were consistently ambiguous. On one hand, Obama assured Feinstein, other key members of Congress, and significant supporters who felt strongly about the issue that he was “absolutely committed to declassifying that report.” On the other hand, aides quickly clarified that it meant only the 480-page executive summary, and only after the CIA and other agencies had reached a consensus with the White House on redactions from the report. Obama’s key spokesman on the issue continued to be his former counterterrorism adviser, John O. Brennan, a career CIA man whose own involvement with the program was never fully clarified, and whose hostility to the Senate investigation and report could hardly be contained. By March 2013, Brennan had succeeded Panetta as head of the CIA. As this controversy developed, it became clear that Senate investigators had read the agency’s own internal review and therefore knew that the agency’s criticisms of the report were specious. This had stung figures at the CIA who

were trying to manage the fallout from its torture and black site programs. The CIA never actually contacted the Senate committee and asked how it had come by the Panetta review. Instead, perhaps convinced that the information had been gained improperly (though that is a strange word to apply to an oversight committee’s examination of documents prepared by the agency it

is overseeing), someone at the agency decided to break into the Senate computers and run searches. On January 15, 2014, Brennan met with Feinstein and had to acknowledge that the CIA had run searches on the Senate computers. Far from apologizing for this intrusion, Brennan stated that he intended to pursue further forensic investigations “to learn more about activities of the committee’s oversight staff.” The Senate committee responded by reminding Brennan that as a matter of constitutional separation of powers, the committee was not subject to investigation by the CIA. It also pressed to know who had authorized the search and what legal basis the CIA believed it had for its actions. The CIA refused to answer the questions. By January 2014, before Feinstein gave her speech, the controversy had reached a fever pitch. Reports that the CIA had been snooping on the Senate committee and had gained unauthorized access to its computers began to circulate in the Beltway media. Through its surrogates, the CIA struck back. Unidentified agency sources asserted that Senate staffers had “hacked into” CIA computers to gain access to the Panetta report and other documents. The staffers had then illegally transported classified information to their Capitol Hill offices, removing it from the secure site furnished by the agency. In addition, the Justice Department had become involved. The CIA inspector general, David Buckley, had reviewed the CIA searches conducted on Senate computers and had found enough evidence of wrongdoing to warrant passing the file to the Justice Department for possible prosecution. Perhaps in a tit-for-tat response and certainly with the aim of intimidating his adversaries, the acting CIA general counsel, Robert Eatinger, had made a referral of his own, this time targeting Senate staffers and apparently accusing them of gaining improper access to classified materials and handling them improperly. Secrecy was unsheathed as a sword against an institution suddenly seen as a bitter foe: the U.S. Congress. Eatinger’s appearance as a principal actor in this drama was revealing. He was hardly an objective figure. A key point for the committee investigators was the relationship between CIA operations and the Department of Justice, and particularly the process the CIA had used to secure opinions from Justice authorizing specific interrogation techniques, including waterboarding, that amounted to torture. As the senior staff attorney in the operations directorate, Eatinger would certainly have played a pivotal role throughout the process leading to the introduction of torture techniques. The Senate investigators concluded that the CIA had seriously misled the Justice Department about the techniques being applied in an effort to secure approvals that would cover even harsher methods than those described, and Eatinger was right at the center of those dealings. Indeed, Eatinger’s name appears 1,600 times in the report. Like many agency figures closely connected with the black sites and torture program, Eatinger had skyrocketed through the agency, ultimately becoming senior career lawyer and acting general counsel. No figure in the agency would have had a stronger interest in frustrating the issuance of the report. All those involved with the torture and black sites program risked being tarnished by the report, but few more seriously than the CIA figures who dealt with the Justice Department. Moreover, other risks were looming on the horizon outside the Beltway. As Eatinger struggled to block the Senate report, courts in Europe were readying opinions concluding that the CIA interrogation program made use of criminal acts of torture and that the black site operations amounted to illegal disappearings. The United States was not subject to the jurisdiction of these courts, but its key NATO allies were, and the courts would soon be pressing them to pursue criminal investigations and bring prosecutions relating to the CIA program. Those involved in the program, including Eatinger, thus risked becoming international pariahs, at risk of arrest and prosecution the instant they departed the shelter of the United States. Feinstein had refused press comment throughout this period, but other sources from the committee or its staff had pushed back with blanket denials of these accusations. U.S. media relished the controversy and presented it in typical “he said/she said” style. But rarely is each view of a controversy equally valid or

correct. Indeed, within the agency suppressing media coverage of the highly classified detention and interrogation program was considered a legitimate objective, which helps to account for the numerous distortions, evasions, and falsehoods generated in

Langley with respect to it. But the CIA’s campaign against the Senate report was approaching a high-water mark of dishonesty. As Feinstein ominously noted, these developments had a clear constitutional dimension: “I have grave concerns that the CIA’s search may well have violated the separation of powers principle embodied in the United States Constitution, including the speech and debate clause. It may have undermined the constitutional framework essential to effective oversight of intelligence activities or any other government function.”

The Senate Committee has partially revealed CIA’s inhumane practices in the past, but an unhindered exposure is necessary - Only the aff is able to breakdown the logic that sustains the perception of American imperialism as a moral strategyPuryear 14 (Eugene. American activist who is currently a candidate for the At-Large seat in the DC Council with the D.C. Statehood Green Party. “Senate torture report exposes CIA houses of horror”. 18 December 2014. http://www.liberationnews.org/senate-torture-report-exposes-cia-houses-horror)//JuneC//

Even though the broad outlines have been known for some time, the release of the Senate Select Committee on Intelligence report on torture was shocking and revolting. The level of lying, brutality and legal impunity remains amazing. While it has been known for years that the CIA operated so-called black sites, engaged in torture, misled the public, falsely detained many individuals and that everyone involved got away scot free, now that Senate staffers have—at least partially —revealed the ugly details, the entire world is in an uproar. If nothing else, this report has yet again confirmed that the post 9/11 period has become a horror show of clearly illegal and grossly immoral behavior on the part of the United States government. It perhaps is not fair to call this, as many have, “unprecedented” as the

United States did of course countenance both slavery and the genocide of Native Americans. In the contemporary context, however the normalization of torture and detention is both disgusting and ominous. During most of the modern era the United States government has sought to hide its most terrible crimes. From illegal surveillance to the use of Agent Orange and the overthrow of numerous governments, there was the sense that these actions were recognized as

illegal and needing to be hidden, lest anyone be held responsible. In the case of the CIA torture and detention regime, not only were these practices legally sanctioned, they were in fact championed by the Bush White House and both parties in Congress. Then, the Obama administration in its earliest days gave a free pass to the serial human rights abusers in the prior administration, and kept on many of those responsible in the military and intelligence communities. While there is much hemming and hawing about how “America must forever foreswear this sort of activity,” the message is perfectly clear that from now on gross violation of civil and human rights is entirely allowable and will go unpunished as long as you are the U.S. government and you have some sort of “justification” however flimsy or false. The details revealed in the executive summary of the torture report can be difficult to read. CIA torturers beat detainees and held them in stress positions literally for days, sometimes treating their wounds in such a way as to prolong the pain. Severe psychological strain was placed on detainees, including some who were kept awake for 180 hours—in other words a week. Detainees were placed in tiny boxes and treated in a way that one of their captors described as being like dogs in kennel. One detainee was killed from exposure, while another while being waterboarded became completely non-responsive while bubbles rose “from his full and open mouth.” Detainees were subjected to the fairly self-explanatory process of “rectal feeding” and “rectal hydration” all approved by CIA doctors, who of course haven’t lost their licenses. In an attempt to leverage information from one prisoner the CIA detained a mentally disabled man. When some detainees who were deprived of sleep begin to experience “disturbing” hallucinations, torturers deliberately continued to withhold sleep, for maximum

torturous effect. In some cases the torturers threatened to kill, rape and torture the family members of detainees in an attempt to get them to talk. These techniques were so extreme that some CIA personnel raised objections only to be told by their superiors to shut up. While it is clear that the Bush administration allowed some of these terrible methods to continue with full knowledge of what was happening, the CIA recognized that some of its activities went to such extremes that it not only hid but attempted to obfuscate any attempts at full oversight to hide its brutal criminality. It is worth noting that the CIA, with the connivance of the Obama administration, fought tooth and nail to keep the Senate report secret.

Most disgustingly, no one has been held accountable for any of this. The Obama administration decided to allow all of these human rights abusers from the top to the bottom to go entirely free, even though they had clear knowledge that domestic and international laws had been broken and that a conspiracy at the highest level had orchestrated these crimes. While the New York Times editorial board seems highly confused as to why there was no accountability and laments the “terrible decision” of the Obama administration to close the book on these crimes, the reasoning is entirely clear. Without any doubt

the Obama administration itself has been involved in criminal and unconstitutional behavior from drone strikes to NSA spying. The entire “security” regime in the post-9/11 American government rests on a massive complex of mostly secret practices and behaviors. To indict the Bush administration would almost certainly open up the possibility of prosecuting the Obama administration. Ultimately the highest levels of the past two administrations are a rogue’s gallery of war criminals; prosecutions of any of them would open a Pandora ’s Box that could lead to numerous government officials in the dock. This would be not only personally damaging to those culpable individuals but also massively damaging to the credibility of U.S. imperialism. The entire “moral” framework of world domination based on freedom and democracy would easily crumble if the full scale of torture, illegal war and spying was revealed . It is simply not an option . Perhaps not unprecedented but clearly a terrible black mark, the regime of torture that was perpetrated by the Bush administration deserves an accounting but one it won’t ever get under a capitalist government.

CIA surveillance of Senate committee staffers undermines the separation of powers principle – removes any possibility of effective oversightEddlem 14 – *Cites Senate Select Intelligence Committee Chairman Dianne Feinstein. Writer for the New American Magazine (3/12/2014, Thomas, The New American, “Sen. Feinstein: CIA Smashed Constitution, Separation of Powers”, http://www.thenewamerican.com/usnews/constitution/item/17824-sen-feinstein-cia-smashed-constitution-separation-of-powers // SM)

Senate Select Intelligence Committee Chairman Dianne Feinstein (shown, D-Calif.) publicly charged the CIA with repeatedly spying on her committee staffers conducting oversight of the agency, and of deleting files from committee computers. Feinstein spoke on the floor of the U.S. Senate

March 11 to denounce the agency and claimed the “CIA's search may well have violated the separation of powers principle embodied in the United States Constitution, including the speech and debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.” Feinstein stated in her Senate speech that several CIA officials had acknowledged the surveillance and interference with the committee's efforts to draft a report on the CIA's unconstitutional prisons abroad during the Bush era. According to Feinstein, the committee concluded “the interrogations and the conditions of confinement at the CIA detentions sites were far different and far more harsh than the way the CIA had described them to us.”

CIA surveillance on the senate violates separation of powers Vice 14 (Motherboard is a technology oriented news agency, 3/11, The Senate Didn't Care Much About Surveillance Until the CIA Spied on It Too, http://motherboard.vice.com/read/the-senate-didnt-care-about-government-surveillance-until-the-cia-spied-on-it)//ccThe Senate Intelligence Committee says it got spied on by the CIA. And, like many other Americans that have recently found out they’ve been spied on, they’re not happy about it at all. It doesn’t necessarily make Dianne Feinstein and her colleagues wafflers, even though they have defended the National Security Agency throughout most of the last year. It’s another example that, until something happens to you, you’re not going to worry much about it happening to

other people. The facts still aren’t clear about what happened, but here’s what we think we know: Several years ago, the Senate Intelligence Committee decided to conduct a full investigation of the CIA’s Detention and Interrogation Program after initial reports found “chilling” facts about the CIA’s since-discontinued torture program. To help the oversight committee complete the report, the CIA dumped 6.2 million pages of documents onto a computer network accessible by the Senate and CIA IT techs and provided the Senate a search tool to help staffers comb through the documents. The Senate used this to write the report, which has still not been released, but along the way, Feinstein alleges that the CIA deleted close to 1,000 pages of critical documents off the server. That caused some initial strife between the Senate committee and the CIA, but they eventually moved past it, according to Feinstein. The committee eventually came up with a draft of the report, one that current CIA director John Brennan says is riddled with inaccuracies. Here’s where things get really interesting. And by “interesting,” I mean “probably illegal.” The Senate got access to a document, accidentally placed on the server, called the “Internal Panetta Review” that Feinstein says directly corroborates the parts of the report that Brennan has taken issue with. That document was deleted off of the server by CIA officials, but not before Senate staffers had moved it to their own personal servers. Feinstein says that, in January, she learned that CIA officials had searched committee computers that they weren’t supposed to have access to, in an attempt to delete that document and to potentially delay the release of the report. “Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution,” Feinstein testified Tuesday. “Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”

White house ordered destruction of CIA documents regarding interrogation Feinstein 14 (Dianne has been a US senator since 1992 and is Chairmanship of the Senate Select Committee on Intelligence, 3/11, “Statement on Intel Committee’s CIA Detention, Interrogation Report”, http://www.feinstein.senate.gov/public/index.cfm/2014/3/feinstein-statement-on-intelligence-committee-s-cia-detention-interrogation-report)/cc The origin of this study: The CIA’s detention and interrogation program began operations in 2002, though it was not until September 2006, that Members of the Intelligence Committee, other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA Director Hayden only hours before President Bush disclosed the program to the public. A little more than a year later, on December 6, 2007, a New York Times article revealed the troubling fact that the CIA had destroyed videotapes of some of the CIA’s first interrogations using so-called “enhanced techniques.” We learned that this destruction was over the objections of President Bush’s White House Counsel and the Director of National Intelligence. After we read about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence Committee. He assured us that this was not destruction of evidence, as detailed records of the interrogations existed on paper in the form of CIA operational cables describing the detention conditions and the day-to-day CIA interrogations. The CIA director stated that these cables were “a more than adequate representation” of what would have been on the destroyed tapes. Director Hayden offered at that time, during Senator Jay Rockefeller’s chairmanship of the committee, to allow Members or staff to review these sensitive CIA operational cables given that the videotapes had been destroyed. Chairman Rockefeller sent two of his committee staffers out to the CIA on nights and weekends to review thousands of these cables, which took

many months. By the time the two staffers completed their review into the CIA’s early interrogations in early 2009, I had become chairman of the committee and President Obama had been sworn into office. The resulting staff report was chilling. The interrogations and the conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us. As result of the staff’s initial report, I proposed, and then-Vice Chairman Bond agreed, and the committee overwhelmingly approved, that the committee conduct an expansive and full review of CIA’s detention and interrogation program. On March 5, 2009, the committee voted 14-1 to initiate a comprehensive review of the CIA Detention and Interrogation Program. Immediately, we sent a request for documents to all relevant executive branch agencies, chiefly among them the CIA. The committee’s preference was for the CIA to turn over all responsive documents to the committee’s office, as had been done in previous committee investigations. Director Panetta proposed an alternative arrangement: to provide literally millions of pages of operational cables, internal emails, memos, and other documents pursuant to the committee’s document requests at a secure location in Northern Virginia. We agreed, but insisted on several conditions and protections to ensure the integrity of this congressional investigation. Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.” It was this computer network that, notwithstanding our agreement with Director Panetta, was searched by the CIA this past January, and once before which I will later describe. In addition to demanding that the documents produced for the committee be reviewed at a CIA facility, the CIA also insisted on conducting a multi-layered review of every responsive document before providing the document to the committee. This was to ensure the CIA did not mistakenly provide documents unrelated to the CIA’s Detention and Interrogation Program or provide documents that the president could potentially claim to be covered by executive privilege. While we viewed this as unnecessary and raised concerns that it would delay our investigation, the CIA hired a team of outside contractors—who otherwise would not have had access to these sensitive documents—to read, multiple times, each of the 6.2 million pages of documents produced, before providing them to fully-cleared committee staff conducting the committee’s oversight work. This proved to be a slow and very expensive process. The CIA started making documents available electronically to the committee staff at the CIA leased facility in mid-2009. The number of pages ran quickly to the thousands, tens of thousands, the hundreds of thousands, and then into the millions. The documents that were provided came without any index, without organizational structure. It was a true “document dump” that our committee staff had to go through and make sense of. In order to piece together the story of the CIA’s detention and interrogation program, the committee staff did two things that will be important as I go on: First, they asked the CIA to provide an electronic search tool so they could locate specific relevant documents for their search among the CIA-produced documents—just like you would use a search tool on the Internet to locate information. Second, when the staff found a document that was particularly important or that might be referenced in our final report, they would often print it or make a copy of the file on their computer so they could easily find it again. There are thousands of such documents in the committee’s secure spaces at the CIA facility. Now, prior removal of documents by CIA. In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received. In May of 2010, the committee staff noticed that [certain] documents that had been provided for the

committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order. After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010. This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements. Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset. I went up to the White House to raise this issue with the then-White House Counsel, in May 2010. He recognized the severity of the situation, and the grave implications of Executive Branch personnel interfering with an official congressional investigation. The matter was resolved with a renewed commitment from the White House Counsel, and the CIA, that there would be no further unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee. On May 17, 2010, the CIA’s then-director of congressional affairs apologized on behalf of the CIA for removing the documents. And that, as far as I was concerned, put the incident aside. This event was separate from the documents provided that were part of the “Internal Panetta Review,” which occurred later and which I will describe next. At some point in 2010, committee staff searching the documents that had been made available found draft versions of what is now called the “Internal Panetta Review.” We believe these documents were written by CIA personnel to summarize and analyze the materials that had been provided to the committee for its review. The Panetta review documents were no more highly classified than other information we had received for our investigation—in fact, the documents appeared to be based on the same information already provided to the committee. What was unique and interesting about the internal documents was not their classification level, but rather their analysis and acknowledgement of significant CIA wrongdoing.

Violates separation of powers Feinstein 14 (Dianne has been a US senator since 1992 and is Chairmanship of the Senate Select Committee on Intelligence, 3/11, “Statement on Intel Committee’s CIA Detention, Interrogation Report”, http://www.feinstein.senate.gov/public/index.cfm/2014/3/feinstein-statement-on-intelligence-committee-s-cia-detention-interrogation-report)/cc My letter also laid out my concern about the legal and constitutional implications of the CIA’s actions. Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function. I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither. Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.

Senate will reaffirm oversight of the CIA Froomkin 14 (Dan is a reporter, columnist, and editor with a focus on coverage of U.S. politics and media, 3/11, “CIA SEARCH OF CONGRESSIONAL COMPUTER SPARKS CONSTITUTIONAL CRISIS”, https://firstlook.org/theintercept/2014/03/11/cia-search-congressional-computer-sparks-constitutional-crisis/)//ccTwo top Senate leaders declared Tuesday that the CIA’s recent conduct has undermined the separation of powers as set out in the Constitution, setting the stage for a major battle to reassert the proper balance between the two branches. Intelligence Committee chair Dianne Feinstein (D-Calif.), in a floor speech (transcript; video) that Judiciary Committee chair Patrick Leahy (D-Vt.) immediately called the most important he had heard in his career, said the CIA had searched through computers belonging to staff members investigating the agency’s role in torturing detainees, and had then leveled false charges against her staff in an attempt to intimidate them. “I have grave concerns that the CIA’s search may well have violated the separation of powers principle embodied in the United States Constitution, including the speech and debate clause,” she said. “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.” She concluded: “The recent actions that I have just laid out make this a defining moment for the oversight of our intelligence community. How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee. I believe it is critical that the committee and the Senate reaffirm our oversight role and our independence under the Constitution of the United States.”

Congressional approval key Frye 2 (Alton is a presidential Senior Fellow Emeritus and Director of the Program on Congress and Foreign Policy at the Council on Foreign Relations, “Applying the War Powers Resolution to the War on Terrorism”, Testimony Before the Senate Judiciary Committee, 4-17, http://www.cfr.org/terrorism/applying-war-powers-resolution-war-terrorism/p4514)//cc

4. CONSENSUS IS ESSENTIAL TO NATIONAL COHESION The case for active, continuing congressional engagement on the many issues of high policy presented by an open-ended campaign against terrorism does not rest on an instinct for

institutional self-aggrandizement. It is grounded in the critical need to forge and maintain America’s social cohesion as a nation caught up in war. War, especially prolonged war, always poses the risk of depleting that

cohesion, so vital to domestic harmony and international effectiveness . Members of Congress should also

realize how essential their involvement is to the morale and cohesion of the military men and

women sent to do violence on our behalf. One of our most distinguished and thoughtful military leaders, former

Army Chief of Staff, General Edward Meyer, emphasized that point some months ago. In a letter to Congressman Thomas Campbell, who was then seeking a definitive judicial ruling on the constitutional balance of war powers, General Meyer

wrote, “I believe it is essential that when American servicemen are sent into combat that they have the support of their fellow Americans. The War Powers Act causes the people’s representatives (the Congress) to take a position, and not leave the troops dangling on threads of definition and interpretation.” The parallel, policy-centered procedures

outlined here would serve that same need. Congress’s stand on how our nation uses the mighty arsenal at

its disposal also bears crucially on America’s standing in the world. Even among our closest allies, American power elicits mixed emotions: awe and fear, respect and anxiety. That should surprise no one. Military

and economic capabilities of the magnitude America possesses cannot fail to cause alarm in other countries, however

benign our intentions. That alarm is heightened to the degree that American force appears to be too

easily deployed. In the eyes of others, no less than of our own citizens, American military action may be seen as most legitimate when it is demonstrably subject to democratic governance . This insight is

akin to Justice Jackson’s memorable formulation that the President’s power is at its maximum only when he acts “pursuant to an explicit or implied authorization of Congress.” Marshaling international coalitions to wage the war on terrorism will depend importantly on giving our allies confidence that American power is guided and restrained by a disciplined relationship between Congress and President. Absent attentive, persistent congressional involvement, public diplomacy in the war on

terrorism could lose much of the credibility that arises from the perception of America as a model of representative government . There is thus an enduring necessity to balance executive potency in

military endeavors with the legislative review that provides democratic legitimacy . The challenge is not to enchain the presidency but to harness both branches to common purpose. On that insight the War Powers Resolution was founded, and in that insight may be found the germ of other innovations to guarantee that Congress will play its proper constitutional role in the war on terrorism.

Congress must be the first moverHansen 9 (Hansen and Friedman are professors of law at the New England School of Law, 2009 (Victor and Lawrence, The Case for Congress: Separation of Powers and the War on Terror, p.130))//cc

The problem, of course, is that much of this congressional involvement has come much too late in the process and only after significant damage to our constitutional values had been inflicted by the Bush administration. If Congress only acts after being goaded by the courts , or only after high profile scandals have come to

light, or only after the President’s policies have prolonged wars and made us at the same time less secure and less free, then we have reached a level of constitutional brinkmanship which can only be regarded as intolerable. Likewise, members of Congress would be sorely mistaken if they believed that these legislative initiatives have once and for all ended the

possibility of executive assertions of dominance in these areas. Put simply, Congress cannot afford to wait for some crisis to act. As we have already discussed, the consequences are too dire. As many of the post-September 11 policy decisions of the Bush administration demonstrate, a President who acts without securing the benefits of the deliberative process established in the Constitution is likely to fail in making us more secure while maintaining basic liberties. Moreover, when Congress only engages in these issues after the fact , its relevance as an institution is undermined . Unless Congress is as proactive and assertive of its constitutionally appointed responsibilities as the executive is about its authority, the checks and balances of our system simply will not work . C ongress will be relegated to a second tier institution in the realm of national security, and it will be ever more difficult for Congress to stand up to an assertive and aggressive president.

trust

CIA surveillance of Senate committee computers erodes political trust in the CIA – enflames tension between the CIA and CongressHammond 14 – Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics, and a former UK Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, “US Senate report on CIA torture threatens international relations”, http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatens-international-relations-20141210-1243ol.html // SM)While the full report has taken years to compile by the Democratic-led Intelligence committee, the Republican members (who will take over control of the body from January following the party's victory in last month's Senate elections) do not endorse it and are

expected to issue their own separate study. Despite this, and other criticisms of the report, including from former president

George W. Bush, it will nonetheless have key ramifications at home and abroad. Within the US, for

instance, there will be erosion of political trust and confidence in the CIA – Senate Intelligence Committee Chair Dianne Feinstein has even called the agency's actions a "stain on [US] history" and "morally, legally and administratively misguided". The likelihood of tension between the CIA and Congress , especially some Democrats, is fuelled by the fact that this latest furor closely

follows CIA Director John Brennan's apology to Feinstein and the Intelligence committee in July following the CIA Inspector General's finding that agency officials had improperly monitored the computers of the committee's staff.

CIA Surveillance on the Senate violates the constitution - SOP and 4th amendment Schoon 14 (Robert Schoon, March 13, 2014, In Feinstein CIA Speech, Constitutional Separation of Powers, Fourth Amendment Concerns Emerge, Latin Post, http://www.latinpost.com/articles/8823/20140313/feinstein-cia-speech-constitutional-separation-of-powers-fourth-amendment-concerns-emerge.htm) //JS The battle of words between the Director of the Central Intelligence Agency and the chairwoman of the Senate

committee whose charge is to oversee the CIA's activities is primed to erupt into a Constitutional crisis, and possibly a watershed moment for the public conversation over the powers of the U.S. Government's spying apparatus. On Tuesday, senior Senator Dianne Feinstein, who has been an outspoken supporter of the surveillance programs of the National Security Agency, took what was a private intra-government dispute to the Senate floor, and its television cameras. In a long and blistering

speech, the Senate Intelligence Committee Chairwoman spoke publicly about the alleged spying by the CIA on the computers, networks, and members of the Senate Intelligence Committee. In so many unprecedented, public words,

Feinstein accused CIA John Brennan, and the agency he heads, of illegally spying on Congress in an effort to contain documents relating to the CIA's Detention and Interrogation Program (referred to as the Internal Panetta Review), which

Feinstein's committee has been investigating -- or at least trying to investigate -- for years. Feinstein's speech included several

serious charges leveled against Brennan and the CIA, and raised the implications of the agency's alleged

shattering of the Constitutional separation of powers between the Executive and Legislative branches. The speech also exposed what appears to have been a longstanding game of bait-and-switch between her committee and the agency it's constitutionally mandated to oversee. Here are some excerpts of Feinstein's more devastating allegations from her Senate speech: "On January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a "search" - that was John Brennan's word - of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the "stand alone" and "walled-off" committee network drive containing the committee's own internal work product and communications. "According to Brennan, the computer search was conducted in response to indications that

some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the

committee or its staff if the committee had access to the Internal Review, or how we obtained it. Instead, the CIA just went and searched the committee's computers. "In place of asking any questions, the CIA's unauthorized search of the committee computers was followed by an allegation - which we now have seen repeated anonymously in the press - that the committee staff had somehow obtained the document through unauthorized or criminal means. Feinstein then brought up sobering

concerns about the implications of the CIA's accused actions. "I have grave concerns that the CIA's search may well have violated the separation of powers principles embodied in the United States Constitution, including the

speech and debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function. "The CIA's search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act as well as Executive Order 120003, which prohibits the CIA from conducting domestic searches or surveillance."

Speech and debate clause

CIA surveillance of the Senate damages separation of powers and the Constitution’s speech and debate clause – that’s uniquely key to prevent executive encroachment Doyle 3/12 – Reporter in the Washington bureau of McClatchy Newspapers since 1988. Professorial Lecturer for George Washington University. He was a Knight Journalism Fellow at Yale Law School, and a Woodrow Wilson Visiting Fellow at Washington and Lee University and other colleges. (2015, Michael, McClatchy Washington Bureau, “Senate-CIA dispute is a constitutional muddle”, http://www.mcclatchydc.com/news/nation-world/national/national-security/article24765163.html // SM)

While personalities, politics and the protection of turf all helped drive the CIA and its Senate overseers apart, the remarkable split now at center stage also revives the centuries-old drama called separation of powers. Every side invokes the phrase, though it’s a magic spell that can turn on the user. “Fights over separation of powers have been going on since George Washington,” Charles Tiefer, a professor at the University of Baltimore

School of Law and a former acting counsel to the House of Representatives, said Tuesday. Separation of powers marks the division among the executive, legislative and judicial branches. Put another way, it’s the inherent tension between the White House,

Congress and the courts. It’s now flaring up on several fronts. Pushing from one side, the Senate Select Committee on Intelligence hit the wall when its investigators sought internal CIA documents concerning a secret detention and interrogation program. The agency refused to deliver what it termed “deliberative” and “predecisional” material. “The Executive Branch has long had substantial separation of powers concerns about congressional access to this kind of material,” CIA Director John Brennan wrote Democratic Sen. Dianne Feinstein, who chairs the intelligence panel, in a Jan. 27 letter first made available this week. Pushing from

the other side, Feinstein and other committee members are likewise citing separation-of-powers principles in complaining about what they alleged were unauthorized CIA searches of computers used by Senate committee staffers . “It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities,” Feinstein warned in an extraordinary Senate floor speech Tuesday. The notion of separation of powers is baked into the Constitution. It transcends party labels and cuts in all directions. When FBI agents raided the Capitol Hill office of a Louisiana congressman in 2006, Republican as well as Democratic lawmakers sued. Separation of powers, they said, should keep the executive branch investigators at bay. A judge rejected the claim. When a Republican-led congressional committee sought Justice Department documents about the “Operation Fast and Furious” gun-running scandal, Obama administration officials raised separation-of-powers objections in a fight that’s still ongoing. And when a Democratic-led Congress sought documents about the George W. Bush administration’s firing of U.S. attorneys, once again the White House raised separation of powers as a shield. A trial judge sided with Congress, and both sides reached an accommodation. The perennial nature of the conflict was on display Tuesday, when the Republican-controlled House of Representatives passed a bill that it said would “protect the separation of powers” by allowing congressional lawsuits against executive agencies. The White House, in turn, declared that the legislation “violates the separation of powers.” Executive privilege embodies the separation-of-powers idea. The phrase does not appear in the Constitution. Instead, it came to life during the Watergate era of the 1970s when the Supreme Court ruled that the president had a qualified, but not absolute, privilege to keep White House documents out of congressional hands. “In designing the structure of our government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence,” Chief Justice Warren Burger wrote in the key 1974 decision. The Obama administration has not invoked executive privilege in the struggle over CIA documents, and Brennan did not use the phrase in his four-page Jan. 27 letter to Feinstein. Describing the CIA documents as “deliberative,” though, hinted at a holstered weapon that’s been used before. “Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena,” Obama wrote Attorney General Eric Holder in 2012 as the Justice Department was refusing demands for Fast and Furious documents. The Fast and Furious document struggle that began in

2011 is still dragging along in U.S. District Court. The latest legal filings were posted last week. Congress enjoys its own separation-of-powers defense, partly contained in the Speech or Debate Clause of the Constitution. Feinstein explicitly raised this clause in her speech Tuesday , though she did not elaborate

on how it may apply. The Constitution states that “for any speech or debate in either House,” members of Congress “shall not be questioned in any other place.” The idea is to protect legislative independence , in part, from executive encroachment . In a 1972 case involving Alaska

Sen. Mike Gravel’s public release of confidential Pentagon documents, the Supreme Court specified that legislative aides are covered as well as lawmakers themselves. This could support Feinstein’s invocation of Speech or Debate Clause immunity, as the CIA asked for a Justice Department investigation

of her Senate intelligence committee staffers. “The day-to-day work of such aides is so critical to the members’ performance that they must be treated as the latter’s alter egos,” Supreme Court Justice Byron White wrote in the 1972 case, adding that the intent of immunity is partly “to prevent intimidation of legislators by the Executive.” Feinstein summoned a similar separation-of-powers image Tuesday, calling the CIA’s referral of a complaint to the Justice Department a “potential effort to intimidate” staffers.

CIA surveillance of the Senate undermines separation of powers, specifically the Speech or Debate Clause – that’s key to effectively check the Executive branch, especially true for national securityShenkman 14 – Fellow of the Center for Law and Politics, Columbia Law School. *Cites Columbia Law School Professor David Pozen (Spring 2014, Michael, “Talking About Speech or Debate: Revisiting Legislative Immunity”, Yale Law & Policy Review, 32 Yale L. & Pol'y Rev. 351, LexisNexis // SM)4. Protection of Meaningful Legislative Speech The purpose of a robust Speech or Debate Clause protection is to give Members of Congress the independence and the fearlessness to serve as an effective check on the executive branch. n303 The combination of public disclosures [*412] around a (formerly secret) national security apparatus and a changing media landscape make vindication of this structure especially important today. In June 2013, the media began to report on a series of unauthorized disclosures by Edward Snowden, a former government contractor, including most notably a program to collect millions of phone records. n304 The Privacy and Civil Liberties Oversight Board probably understated the resulting hullabaloo in observing that "these disclosures caused a great deal of concern both over the extent to which they damaged national security and over the nature and scope of the surveillance programs they purported to reveal." n305

Columbia Law School Professor David Pozen has recently unveiled and described a structure in which a leaky national security apparatus benefits the executive branch. n306 He also suggests that it has advantages for the Congress: in particular, by providing "a low-cost mechanism for monitoring and disciplining the executive and for providing transparency." n307 Even as Pozen notes that this

particular claim requires further investigation, there is a strong political economy literature that supports the implications for the Congress that he posits. n308 But a rationally passive Congress and a legally clipped Congress are quite different things. Josh Chafetz has responded to Pozen's narrative by contending that "secrecy determinations are

matters for interbranch politics like any other." n309 To that end, I agree with Chafetz (and Pozen) that the Congress should not - and constitutionally cannot - be disarmed. To be effective in oversight, Members of Congress must have not only the power to know and understand executive branch secrets, but also to disclose and expose them. n310 A full Speech or Debate Clause privilege has a role to play [*413] in ensuring, for example, that the ranking Member of the Senate Intelligence Committee does not feel "unable to fully evaluate" a national security program because of his "inability to consult with staff or counsel of [his] own," as Senator Jay Rockefeller told Vice President Cheney he felt in 2003. n311 Professor Kathleen Clark has explained that the Speech or Debate Clause has an important role in guaranteeing Congress a right to the advice of staff lawyers in intelligence oversight. n312 This is not, to be clear, a proposal that every Member of Congress should effectively become an independent de-classification authority. Pozen notes the institutional incentives that discourage such hyperactivity, and Chafetz observes that the House and the Senate both have rules preventing it.

n313 The public is best served, however, by a Congress that could organize itself to allow such disclosures - and by an executive branch made more cautious and contemplative by knowledge of such a congressional power. n314 A dispute between the Senate and the Central Intelligence Agency that became public as this Article was in the final stages of publication vividly illustrates the important separation-of-powers implications of the Speech or Debate Clause. In a floor speech,

Senator Feinstein accused the CIA of having removed a key document from a secure facility designed for use by the staff of the Senate Intelligence Committee in its oversight operations. She also accused the agency of having referred matters involving committee staff action to the Department [*414] of Justice for

criminal investigation and prosecution. n315 She expressed concern that the CIA had "violated the separation of powers principles embodied in the U.S. Constitution, including the speech and

debate clause" and also that the criminal referral had been undertaken to intimidate committee staff and obstruct a committee report on the CIA's "interrogations using so-called enhanced techniques." n316 CIA Director John Brennan denied "the allegation of CIA hacking into Senate computers." n317 Ultimately, however, this is a specific (but important) factual dispute,

answerable by forensics rather than law. The issue of constitutional moment is the alleged attempt by the executive branch to use

criminal enforcement authority to intimidate Members of Congress from doing their job. Pozen has explained why Congress may be rational in its general passivity regarding intelligence oversight, but a different question - on which Pozen, Chafetz, and I all agree - is that robust interpretation of the Speech or Debate Clause in this area is essential to meaningful checks and balances. Although this principle has general subject matter applicability, it is especially true in the national security space, where the executive branch is structurally the dominant actor.

The Speech or Debate Clause is key to effective separation of powers – prevents Executive encroachmentFodor 14 – J.D. Candidate, Northwestern University School of Law, 2014; M.A., Binghamton University, 2007; B.A., Binghamton University, 2006 (2014, Anna, Northwestern University Law Review, “CONGRESSIONAL ARBITRAGE AT THE EXECUTIVE’S EXPENSE: THE SPEECH OR DEBATE CLAUSE AND THE UNENFORCEABLE STOCK ACT”, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1025&context=nulr // SM)

Professors Reinstein and Silverglate contend that in “executive motivated suits,” the Speech or Debate Clause should be interpreted broadly to serve the greater interest of separation of powers.43 They find that “even well-

meaning executive challenges” can have a chilling effect on legislators.44 In their view, the Executive poses the primary threat to legislative independence despite the Executive Branch’s often-sincere underlying

motives.45 Therefore, the purpose of the Speech or Debate Clause is to preserve legislative independence by preventing Executive encroachment . 46 In order to give effect to this purpose, Professors

Reinstein and Silverglate argue that legislative privilege must be observed as an individual guarantee.47 B. Legislative Privilege as an Institutional Guarantee Consensus has largely coalesced around the purpose of the Speech or Debate Clause to “protect[] the integrity of the legislative process” through an effective separation of powers . 48 To that end, Professor Craig Bradley, whose 1979 work on the Clause is still

the primary counterpoint to Professors Reinstein and Silverglate’s work, similarly asserts that the Clause’s basic purpose is to protect the powers of the Legislative Branch from encroachment by the other branches.49 Among those who conceive of legislative privilege as an institutional guarantee, this purpose is best served by viewing members of Congress as part of the larger legislative scheme.50

impact

democracy

Upholding 4th amendment key now Rothschild 06 (Barbara Rothschild - writer for the Courier Post specializing in the constitution, May 1, 2006, Courier Post, 4th Amendment protections are among the most relevant today, http://archive.courierpostonline.com/article/20060228/SPECIAL08/603010301/4th-Amendment-protections-among-most-relevant-today)//JS The crafters of the Bill of Rights felt that protection against search and seizure was needed. In Colonial America, citizens were used

to British officials ransacking their homes and arresting them without warrants. Thus was born what became the Fourth Amendment, prohibiting unreasonable search and seizure and affirming the right of people to be secure "in their

persons, houses, papers and effects." The amendment also allows for search warrants only if there is probable cause, with the place to be searched and persons or objects to be seized clearly described. Civil rights and constitutional lawyers agree that the Fourth Amendment is perhaps the most fundamental and relevant in today's society. In the post-9/11 age, the context in which the amendment is utilized has certainly

changed in some respects from what the Founding Fathers intended, but the principles remain the same. "Protection against unreasonable search and seizure is what people deal with as a part of their daily life," said James Katz, a

Cherry Hill lawyer who specializes in labor and employment issues, civil rights and constitutional litigation. "You see it in the news

today regarding electronic eavesdropping. I see it in the context of a wide variety of drug-testing issues, including in a civil context with random drug-testing in the work place, in schools, and among student athletes," Katz said.

"It is as vitally important today as when it was enacted. It provides protection against an overzealous government, and seeks to balance the interests of the government with that of the people to be free of unreasonable conduct," he said. Some of the exceptions in which a warrantless search and seizure have been upheld by the Supreme Court include airport searches and sobriety checkpoints. It has also been ruled that the government may test certain employees for drugs without probable cause, and that public school officials do not need probable cause to search students, although police do need probable cause before conducting a search on school premises.

Plans signal bolsters democracy Newman 14 (Joe Newman -- the Director of Communications for the Project On Government Oversight., March 12, 2014, CIA Should be Held Accountable for Interference with Senate Committee’s Work, Pogo, http://www.pogo.org/blog/2014/03/cia-should-be-held-accountable.html?referrer=https://www.google.com/) //JS President Obama should declassify a U.S. Senate report on the CIA’s interrogation and detention practices and end any attempts by the CIA to obstruct congressional oversight, a coalition of groups

with diverse interests and ideologies said today in a letter to the president. The CIA should be held accountable for

any criminal violations or other improper conduct, including its surveillance of computers used by the Senate Select Committee on Intelligence, the letter said. On Tuesday, Sen. Dianne Feinstein, chairman of the committee, detailed the CIA’s surveillance and additional agency interference with the committee’s work. “We have grave concerns about the separation of powers that the president must address,” said Angela Canterbury, Public Policy director of the Project On Government Oversight,

one of 34 organizations that signed the letter. “These tactics of obstruction, intimidation, and excessive secrecy must end. The president and Congress have a constitutional responsibility to ensure proper oversight of the intelligence community and hold the CIA accountable.” In light of last year’s disclosures about domestic surveillance conducted by the National Security Agency, it is clear that there is far too little oversight of the intelligence community, the coalition said in its letter to the president. “Much of the blame has been placed on Congress, but obviously excessive secrecy and

obstruction of oversight by the intelligence community also must be addressed,” the letter said. “Your administration’s role in creating such an imbalance of power threatens the legitimacy of our constitutional democracy.”

CIA surveillance of the Senate prevents effective oversight – that’s key to democracyHorton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and America’s Stealth Warfare” by Scott Horton, Salon, http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)As this controversy developed, it became clear that Senate investigators had read the agency’s own internal review and therefore knew that the agency’s criticisms of the report were specious. This had stung figures at the CIA who were trying to manage the

fallout from its torture and black site programs. The CIA never actually contacted the Senate committee and asked how it had come by the Panetta review. Instead, perhaps convinced that the information had been gained improperly (though that is a strange word to apply to an oversight committee’s examination of documents prepared by the agency it is overseeing), someone at the

agency decided to break into the Senate computers and run searches. On January 15, 2014, Brennan met with Feinstein and had to acknowledge that the CIA had run searches on the Senate computers. Far from apologizing for this intrusion, Brennan stated that he intended to pursue further forensic investigations “to learn more about activities of the committee’s oversight staff.” The Senate committee responded by reminding Brennan that as a matter of constitutional separation of powers, the committee was not subject to investigation by the CIA. It also pressed to know who had authorized the search and what legal basis the CIA believed it had for its actions. The CIA refused to answer the questions. By January 2014, before Feinstein gave her speech, the controversy had reached a fever pitch. Reports that the CIA had been snooping on the Senate committee and had gained unauthorized access to its computers began to circulate in the Beltway media. Through its surrogates, the CIA struck back. Unidentified agency sources asserted that Senate staffers had “hacked into” CIA computers to gain access to the Panetta report and other documents. The staffers had then illegally transported classified information to their Capitol Hill offices, removing it from the secure site furnished by the agency. In addition, the Justice Department had become involved. The CIA inspector general, David Buckley, had reviewed the CIA searches conducted on Senate computers and had found enough evidence of wrongdoing to warrant passing the file to the Justice Department for possible prosecution. Perhaps in a tit-for-tat response and certainly with the aim of intimidating his adversaries, the acting CIA general counsel, Robert Eatinger, had made a referral of his own, this time targeting Senate staffers and apparently accusing them of gaining improper access to classified materials and handling them improperly. Secrecy was unsheathed as a sword against an institution suddenly seen as a bitter foe: the U.S. Congress. Eatinger’s appearance as a principal actor in this drama was revealing. He was hardly an objective figure. A key point for the committee investigators was the relationship between CIA operations and the Department of Justice, and particularly the process the CIA had used to secure opinions from Justice authorizing specific interrogation techniques, including waterboarding, that amounted to torture. As the senior staff attorney in the operations directorate, Eatinger would certainly have played a pivotal role throughout the process leading to the introduction of torture techniques. The Senate investigators concluded that the CIA had seriously misled the Justice Department about the techniques being applied in an effort to secure approvals that would cover even harsher methods than those described, and Eatinger was right at the center of those dealings. Indeed, Eatinger’s name appears 1,600 times in the report. Like many agency figures closely connected with the black sites and torture program, Eatinger had skyrocketed through the agency, ultimately becoming senior career lawyer and acting general counsel. No figure in the agency would have had a stronger interest in frustrating the issuance of the report. All those involved with the torture and black sites program risked being tarnished by the report, but few more seriously than the CIA figures who dealt with the Justice Department. Moreover, other risks were looming on the horizon outside the Beltway. As Eatinger struggled to block the Senate report, courts in Europe were readying opinions concluding that the CIA interrogation program made use of criminal acts of torture and that the black site operations amounted to illegal disappearings. The United States was not subject to the jurisdiction of these courts, but its key NATO allies were, and the courts would soon be pressing them to pursue criminal investigations and bring prosecutions relating to the CIA program. Those involved in the program, including Eatinger, thus risked becoming international pariahs, at risk of arrest and prosecution the instant they departed the shelter of the United States. Feinstein had refused press comment throughout this period, but other sources from the committee or its staff had pushed back with blanket denials of these accusations. U.S. media relished the controversy and presented it in typical “he said/she said” style. But rarely is each view of a controversy equally valid or correct. Indeed, within the agency suppressing media coverage of the highly classified detention and interrogation program was considered a legitimate objective, which helps to account for the numerous distortions, evasions, and falsehoods generated in

Langley with respect to it. But the CIA’s campaign against the Senate report was approaching a high-water mark of dishonesty. As Feinstein ominously noted, these developments had a clear constitutional dimension: “I have grave concerns that the CIA’s search may well have violated the separation of powers principle embodied in the United States Constitution, including the speech and debate clause. It may have undermined the constitutional framework essential to effective oversight of intelligence activities or any other government function.” * A fundamental concept underlying the American Constitution is the delicate rapport established between Congress and the various agencies of the executive. The massive government apparatus, including the ballooning intelligence community, is controlled by the executive. Yet the individual agencies,

including the CIA—called into existence and defined by acts of Congress—operate using money that Congress gives them, subject to any limitations Congress may apply. The legislative branch exercises specific powers of oversight and inquiry into the work of agencies of the executive, including the right to conduct investigations, to require documents to be produced and employees of the government to appear and testify before it, and to issue reports with its findings and conclusions. Throughout history executives have used the administration of justice as a tool to intimidate and pressure legislators. To protect legislators against this sort of abuse, the Constitution’s speech and debate clause provides a limited form of immunity for members of Congress. The Supreme Court has confirmed that this immunity extends to congressional staffers, such as Senate committee staffers, when they are supporting the work of their employers, and protects them against charges of mishandling classified information. Feinstein’s suggestion that CIA activities had violated the Constitution and several federal statutes was on point. Eatinger’s decision to refer allegations against committee staffers to the Justice Department also reflected an amazing lack of understanding of the Constitution and the respective roles of the two institutions. And so did Brennan’s public statements. Brennan first pushed back against Feinstein’s account, strongly suggesting it would be proven inaccurate: “As far as the allegations of CIA hacking into, you know, Senate computers, nothing could be further from the truth. We wouldn’t do that. That’s just beyond the scope of reason in terms of what we would do.” He also suggested that the Justice Department would be the arbiter of the dispute between the CIA and the Senate: “There are appropriate authorities right now both inside of CIA, as well as outside of CIA, who are looking at what CIA officers, as well as SSCI staff members did. And I defer to them to determine whether or not there was any violation of law.” This formulation was of course nonsense—the CIA had turned to the Justice Department as a dependable ally, not as an independent fact finder. The department was the second government agency likely to be excoriated by the report. Its national security division, to which Eatinger had turned, was little more than the CIA’s outside law firm. But when an internal probe by the CIA’s inspector general vindicated Feinstein and found that CIA employees had likely misled the Justice Department, Brennan was compelled to issue an apology to the Senate committee; when he again appeared before the committee, Brennan refused to identify the responsible CIA agents or provide other details. The incident prompted bipartisan calls for Brennan to be fired, but President Obama went before

the cameras to express his ongoing confidence in his CIA director. The CIA, in its frenzied maneuvering to suppress an essential Senate report, had made predictable use of secrecy as its chief weapon—against its own congressional overseers. The agency cast itself as an intrepid force protecting American democracy from its enemies. But in this case, the agency had unambiguously emerged as the enemy of democracy. One century ago, the brilliant German sociologist Max Weber, looking at the calamity of World War I and the wide-ranging struggle it had spawned between intelligence services and parliament, drew a series of far-reaching

conclusions about the effects that secrecy would have on democratic government. Tenacious parliamentary oversight of the operations of intelligence agencies was essential , he concluded, if democracy was to survive. The experiences recounted by Sen. Feinstein provided a rare glimpse into precisely the struggle that Weber predicted. One commentator quipped, “This is death of the republic stuff.” Hyperbole? Maybe not. More precisely it is what Hannah Arendt labeled a “crisis of the republic.” At the peak of popular discontent over the Vietnam War, as the Pentagon Papers were published and highly classified news about the war effort was regularly splashed across the pages of American newspapers, Arendt focused on the use of secrecy and its close ally, the political lie, to impede public discussion of vital national security issues. However, Arendt had high confidence that the crisis would pass—America’s democratic institutions were sound, its press was resilient, and politicians who made bad

mistakes regularly saw accountability at the polls. Forty years later, America faces another crisis of democracy. But now the dynamics have shifted considerably in favor of national security elites.

They have carefully calculated the points likely to alarm the public and stir it to action. More effectively than before, they use secrecy not only to cover up their past mistakes but also to wrest from the public decisions about the future that properly belong to the people. Increasingly, Congress seems no match for them.

ethics

There is an obligation to uphold the constitution regardless of their DA’s Carter 87 (Stephen Carter - Law professor at Yale University, 1987, From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers, http://digitalcommons.law.yale.edu/fss_papers/2232/) //JS The problem with this use of our burgeoning public policy science, an inevitable one in an area of theory driven by

instrumental rationality, is that the law itself is stripped of the aura of uniqueness which is assigned to it in liberal theory. The law becomes all too mutable, and is left as no more than one of the means that must be tested against its efficacy in achieving

the desired end.1311 The Constitution, which is after all a species of law,138 is thus quite naturally viewed as a potential

impediment to policy, a barrier that must be adjusted, through interpretation or amendment, more often than preservation of government under that Constitution is viewed as a desirable policy in itself.137 In this the modern student of policy is like the modern moral philosopher-and like a good number of constitutional theorists as well-in denigrating the value of preserving any

particular process and exalting the desirable result.138 But constitutionalism assigns enormous importance to process, and consequently assigns costs, albeit perhaps intangible ones, to violating the constitutional process. For the constitutionalist, as for classical liberal democratic theory, the autonomy of the people themselves, not the achievement of some well-intentioned government policy, is the ultimate end for which the government exists. As a consequence, no violation of the means the people have approved for pursuit of policy-here, the means embodied in the structural provisions of the Constitution-can be justified through reference to the policy itself as the end.139

federalism

Separation of Powers destroys federalism Kesler 10 (Charles R is a professor of Government/Political Science at Claremont McKenna College and Claremont Graduate University. He holds a Ph.D in Government from Harvard University, from which he received his AB degree in 1978, 5/17, “The Constitution, at Last”, //www.nationalreview.com/article/229684/constitution-last-charles-r-kesler)//ccThe Constitution establishes a government with two main structural principles — federalism and separation of powers — and each offers handles that citizens may grasp today to help re limit the national government. Ours is, or was, a regime of enumerated legislative powers, in addition to certain implied powers that were “necessary and proper” to carry out the enumerated ones. The Founders disagreed among themselves about the extent of the implied powers (e.g., to charter a national bank) as well as about the exact bounds of presidential and judicial authority. But they expected to disagree in hard cases and left enough political play in the system for the people to take sides as they saw fit. Federalism was thus partly a legal or constitutional doctrine and partly a political one. Nonetheless, the state governments could serve as rallying points for opposition to federal encroachments, and still can. Though weakened by the Seventeenth Amendment (which destroyed the state governments’ control of the Senate) and other factors, the states may invoke their Tenth Amendment rights and link arms with one another in demanding that the offending national officeholders be voted out and a party of constitutionally faithful ones be voted in. This is the real electoral point of the states’ resistance, on display now in the impressive numbers of states protesting Obamacare. Schemes of neo-nullification (as Matthew Spalding has called them) purporting to declare a federal law null and void in a particular state are based on bad history and worse jurisprudence. When pointing to the state governments, we mean more than the state attorneys general. When the legislatures and governors object to an unconstitutional federal law, their protest carries more weight. And the state governments hold in reserve two other constitutional powers: to ask Congress for a constitutional amendment, and — the nuclear option — to call for a convention of the states to propose such an amendment if the Congress will not. The Constitution wisely separated the powers of government, not only to prevent tyranny but also to enable each branch to perform its functions well. When the separation of powers worked unimpaired, it helped to prevent the disease we call Big Government. That ugly term implies, among other things, a centralization of administrative authority in Washington, or, to put it differently, a bureaucracy that thinks it possesses the wisdom and the right to administer state and local affairs all around the country. Big Government thus strikes simultaneously at federalism and the separation of powers, at the external and internal checks on the federal establishment, inasmuch as a bureaucracy of this sort must combine legislative, executive, and judicial powers to be effective.

Federalism prevents conflict escalation Lawoti, 09 (Mahendra is a Professor of Political Science at Western Michigan University, 3/18, “Federalism for Nepal”, Telegraph Nepal, http://www.telegraphnepal.com/backup/telegraph/news_det.php?news_id=5041)//ccCross-national studies covering over 100 countries have shown that federalism minimizes violent conflicts whereas unitary structures are more apt to exacerbate ethnic conflicts. Frank S. Cohen (1997) analyzed ethnic conflicts and inter-governmental organizations over nine 5-

year –periods (1945-1948 and 1985-1989) among 223 ethnic groups in 100 countries. He found that federalism generates increases in the incidence of protests (low-level ethnic conflicts) but stifles the development of rebellions (high-level conflicts). Increased access to institutional power provided by federalism leads to more low-level conflicts because local groups mobilize at the regional level to make demands on the regional governments. The perceptions that conflicts occur in federal structure is not entirely incorrect. But the conflicts are low-level and manageable ones. Often, these are desirable conflicts because they are expressions of disadvantaged groups and people for equality and justice, and part of a process that consolidates democracy. In addition, they also let off steam so that the protests do not turn into rebellions. As the demands at the regional levels are addressed, frustrations do not build up. It checks abrupt and severe outburst. That is why high levels of conflicts are found less in federal countries. On the other hand, Cohen found high levels of conflicts in unitary structures and centralized politics. According to Cohen (1997:624): Federalism moderates politics by expanding the opportunity for victory. The increase in opportunities for political gain comes from the fragmentation/dispersion of policy-making power… the compartmentalizing character of federalism also assures cultural distinctiveness by offering dissatisfied ethnic minorities proximity to public affairs. Such close contact provides a feeling of both control and security that an ethnic group gains regarding its own affairs. In general, such institutional proximity expands the opportunities for political participation, socialization, and consequently, democratic consolidation. Saidmeman, Lanoue, Campenini, and Stanton’s (2002: 118) findings also support Cohen’s analysis that federalism influences peace and violent dissent differently. They used Minority at Risk Phase III dataset and investigated 1264 ethnic groups. According to Saideman et al. (2002:118-120): Federalism reduces the level of ethnic violence. In a federal structure, groups at the local level can influence many of the issues that matter dearly to them- education, law enforcement, and the like. Moreover, federal arrangements reduce the chances that any group will realize its greatest nightmare: having its culture, political and educational institutions destroyed by a hostile national majority. These broad empirical studies support the earlier claims of Lijphart, Gurr, and Horowitz that power sharing and autonomy granting institutions can foster peaceful accommodation and prevent violent conflicts among different groups in culturally plural societies. Lijphart (1977:88), in his award winning book Democracy in Plural Societies, argues that "Clear boundaries between the segments of a plural society have the advantage of limiting mutual contacts and consequently of limiting the chances of ever-present potential antagonisms to erupt into actual hostility". This is not to argue for isolated or closed polities, which is almost impossible in a progressively globalizing world. The case is that when quite distinct and self-differentiating cultures come into contact, antagonism between them may increase. Compared to federal structure, unitary structure may bring distinct cultural groups into intense contact more rapidly because more group members may stay within their regions of traditional settlements under federal arrangements whereas unitary structure may foster population movement. Federalism reduces conflicts because it provides autonomy to groups. Disputants within federal structures or any mechanisms that provide autonomy are better able to work out agreements on more specific issues that surface repeatedly in the programs of communal movement (Gurr 1993:298-299). Autonomy agreements have helped dampen rebellions by Basques in Spain, the Moros in the Philippines, the Miskitos in Nicaragua, the people of Bangladesh’s Chittagong Hill Tracts and the affairs of Ethiopia, among others (Gurr 1993:3190) The Indian experiences are also illustrative. Ghosh (1998) argues that India state manged many its violent ethnic conflicts by creating new states (Such as Andhra Pradesh, Gujurat, Punjab, Harayana, Arunachal Pradesh, Goa, Himachal Pradesh, Meghalaya, Mizoram and Nagaland) and autonomous councils (Such as Darjeeling Gorkha Hill Council, Bodoland

Autonomous Council, and Jharkhand Area autonomous Council, Leh Autonomous Hill Development Council). The basic idea, according to Ghosh (1998:61), was to devolve powers to make the ethnic/linguistic groups feel that their identity was being respected by the state. By providing autonomy, federalism also undermines militant appeals. Because effective autonomy provides resources and institutions through which groups can make significant progress toward their objectives, many ethnic activities and supporters of ethnic movements are engaged through such arrangements. Thus it builds long-term support for peaceful solutions and undermines appeals to militant action (Gurr 1993:303). Policies of regional devolution in France, Spain and Italy, on the other hand, demonstrate that establishing self-managing autonomous regions can be politically and economically less burdensome for central states than keeping resistant peoples in line by force: autonomy arrangements have transformed destructive conflicts in these societies into positive interregional competition".

Federalism deters Iraq instability Brancati 04 (Dawn is a visiting scholar at the Center for the Study of Democratic Politics at Princeton University, 7/21, “Can Federalism Stabilize Iraq?”, http://muse.jhu.edu.proxy.lib.umich.edu/journals/washington_quarterly/v027/27.2brancati.html)//ccThe United States devoted nine months to planning the war in Iraq and a mere 28 days to planning the peace, according to senior U.S. military officials. Much more time has to be invested in the peace, however, if the military achievements of the war are to be preserved and a stable democracy is to be created in Iraq. Establishing a governmental system that can accommodate Iraq's different ethnic and religious groups, previously kept in check by the political and military repression of the Saddam Hussein regime, is paramount to securing that peace. In the absence of a system uniquely designed toward this end, violent conflicts and demands for independence are likely to engulf the country. If not planned precisely to meet the specific ethnic and religious divisions at play, any democratic government to emerge in Iraq is bound to prove less capable of maintaining order than the brutal dictatorship that preceded it. By dividing power between two levels of government—giving groups greater control over their own political, social, and economic affairs while making them feel less exploited as well as more secure—federalism offers the only viable possibility for preventing ethnic conflict and secessionism as well as establishing a stable democracy in Iraq. Yet, not just any kind of federal system can accomplish this. Rather, a federal system granting regional governments extensive political and financial powers with borders drawn along ethnic and religious lines that utilize institutionalized measures to prevent identity-based and regional parties from dominating the government is required. Equally critical to ensuring stability and sustainable democracy [End Page 7] in Iraq, the new federal system of government must secure the city of Kirkuk, coveted for its vast oil reserves and pipelines, in the Kurdish-controlled northern region to assure that the Kurds do not secede from Iraq altogether. For its part, the United States must take a more active role in advising Iraqi leaders to adopt a federal system of government along these lines. Such a system will help the United States not only to build democracy in Iraq but also to prevent the emergence of a Shi'a-dominated government in the country. Without this form of federalism, an Iraq rife with internal conflict and dominated by one ethnic or religious group is more likely to emerge, undermining U.S. efforts toward establishing democracy in Iraq as well as the greater Middle East.

Escalates to World War 3 Corsi 07 (Jerome has PhD in Political Science from Harvard, 1/8, “War with Iran is imminent.” http://www.wnd.com/news/article.asp?ARTICLE_ID=53669)//ccIf a broader war breaks out in Iraq, Olmert will certainly face pressure to send the Israel military into the Gaza after Hamas and into Lebanon after Hezbollah. If that happens, it will only be a matter of time before Israel and the U.S. have no choice but to invade Syria. The Iraq war could quickly spin into a regional war, with Israel waiting on the sidelines ready to launch an air and missile strike on Iran that could include tactical nuclear weapons. With Russia ready to deliver the $1 billion TOR M-1 surface-to-air missile defense system to Iran, military leaders are unwilling to wait too long to attack Iran. Now that Russia and China have invited Iran to join their Shanghai Cooperation Pact, will Russia and China sit by idly should the U.S. look like we are winning a wider regional war in the Middle East? If we get more deeply involved in Iraq, China may have their moment to go after Taiwan once and for all. A broader regional war could easily lead into a third world war, much as World Wars I and II began.

Heg

Separation of powers creates a perception of benign hegemony and encourages international cooperation based on rule of lawIkenberry 1 (G. John, Peter F. Krogh Professor of Global Justice at the School of Foreign Service at Georgetown University, “Getting Hegemony Right - Analysis of the United States as a "Hyperpower" Nation”, The National Interest, Spring, Lexis)//cc

A critical ingredient in stabilizing i nternational r elations in a world of radical power disparities is the character of America itself. The U nited S tates is indeed a global hegemon, but because of its democratic institutions and political traditions it is--or can be--a relatively benign one . Joseph Nye's arguments on "soft power" of course come to mind here, and there is much to his point. But, in fact, there are other, more significant aspects of the American way in foreign policy that protect the United States from the consequences of its own greatness.

When other major states consider whether to work with the United States or resist it, the fact that it is an open, stable democracy matters. The outside world can see American policymaking at work and can even find

opportunities to enter the process and help shape how the overall order operates. Paris, London, Berlin, Moscow, Tokyo and even Beijing--in each of these capitals officials can readily find reasons to conclude that an engagement policy toward the United States will be more effective than balancing against U.S. power. America in large part stumbled into this open, institutionalized order in the 1940s, as it sought to rebuild the postwar world and to counter Soviet communism. In the late 1940s, in a pre-echo of today's situation, the United States was the world's dominant state--constituting 45 percent of world GNP, leading in military power, technology, finance and industry, and brimming with natural resources. But America nonetheless found itself building world order around stable and binding partnerships. Its calling card was its offer of Cold War security protection. But the intensity of political and economic cooperation between the United States and its partners went well beyond what was necessary to counter the Soviet threat. As the historian Geir Lundestad has observed, the expanding American political order in the half century after World War II was in important respects an "empire by invitation." [5] The remarkable global reach of American postwar hegemony has been at least in part driven by the efforts of Europe an and Asian governments to harness U.S. power, render that power more predictable, and use it to overcome their own regional insecurities.

The result has been a vast system of America-centered economic and security partnerships. Even though the U nited S tates

looks like a wayward power to many around the world today, it nonetheless has an unusual ability to co-opt and reassure . Three elements matter most in making U.S. power more stable , engaged and restrained . First, America's mature political institutions organized around the rule of law have made it a relatively predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and security policy is made reduces surprises and allows other states to build longterm, mutually beneficial relations . The governmental separation of powers creates a shared decision-making system that opens up the process and reduces the ability of any one leader to make abrupt or aggressive moves toward other states. An active press and competitive parry system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose. The messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over the long

term, democratic institutions produce more consistent and credible policies --policies that do not reflect the capricious and idiosyncratic whims of an autocrat. Think of the United States as a giant corporation that seeks foreign investors. It is more likely to attract investors if it can demonstrate that it operates according to accepted accounting and fiduciary

principles. The rule of law and the institutions of policymaking in a democracy are the political equivalent of corporate transparency and accountability Sharp shifts in policy must ultimately be vetted

within the policy process and pass muster by an array of investigatory and decision-making bodies. Because it is a constitutional, rule-based democracy , outside states are more willing to work with the U nited

S tates--or, to return to the corporate metaphor, to invest in ongoing partnerships. This open and decentralized political process works in a second way to reduce foreign worries about American power. It creates what might be called "voice opportunities"--that is, opportunities for political access and, with it, the means for foreign governments and groups to influence the way Washington's

power is exercised. In 1990 the political analyst Pat Choate wrote a bestseller entitled Agents of Influence, detailing the supposedly scandalous ways in which Japanese ministries and corporations were manipulating the American political process. High-priced lobbyists were advancing Tokyo's commercial interests within the hallowed halls of the American capital and undermining the pursuit of the U.S. national interest. Today Washington is even more inundated by foreign diplomats and revolving-door lobbyists working to ensure that the interests of America's partners are not overlooked. Looked at from the perspective of the stable functioning of America's hegemonic order, Choate was actually describing one of the brilliant aspects of the United States as a global power. By providing other states opportunities to play the game in Washington, they are drawn into active, ongoing partnerships that serve the long-term strategic interests of the United States. A third and final element of the American order that reduces worry about power asymmetries is the web of multilateral institutions that mark the postwar world. After World War II, the United States launched history's most ambitious era of institution-building. The UN, IMF, World Bank, NATO, GATT and other institutions that emerged provided a more extensive rule-based structure for political and economic relations than anything seen before. The United States had been deeply ambivalent about making permanent security commitments to other states and about allowing its political and economic policies to be dictated by intergovernmental bodies. The Soviet menace was critical in overcoming these doubts. Networks and political relationships were built that--paradoxically--made U.S. power both more far-reaching and durable but also more predictable and malleable. In effect, the United States spun a web of institutions that connected other states to an emerging American-dominated economic and security order. But in doing so, these institutions also bound the United States to other states and reduced--at least to some extent--Washington's ability to engage in the arbitrary and indiscriminate exercise of power. Call it an institutional bargain. The price for the United States was a reduction in Washington's policy autonomy, in that institutional rules and joint decision-making reduced U.S. unilateralist capacities. But what Washington got in return was worth the price. America's partners also had their autonomy constrained, but in return were able to operate in a world where U.S. power was more restrained and reliable. Secretary of State Dean Rusk spelled out the terms of the bargain in testimony before the Senate Foreign Relations Committee in 1965: We are every day, in one sense, accepting limitations upon our complete freedom of .... We have more than 4,300 treaties and international agreements, two-thirds of which have been entered into in the past 25 years.... Each one of which at least limits our freedom of action. We exercise our sovereignty going into these agreements. But Rusk argued that these agreements also create a more stable environment within which the United States can pursue its interests. "Law is a process by which we increase our range of freedom" and "we are constantly enlarging our freedom by being able to predict what others are going to do." [6] The United States gets a more predictable environment and more willing partners. There have been many moments when Asian and European allies have complained about the heavy-handedness of U.S. foreign policy, but the open and institutionalized character of the American order has minimized the possibilities of hegemonic excess over the long term. The untoward implications of sharp power asymmetries are reduced, cooperation and reciprocity are regularized, and the overall hegemonic order is rendered

more legitimate and stable. The bargain--on both sides--remains intact. Renewing the Institutional Bargain AMERICA's soaring power in the 1990s has put this open and rule-based postwar order to the test. Over the last fifty

years, the advanced industrial states have been relatively confident that the institutional foundations of this order would guard against the worst abuses of U.S. unilateralism and domination. The system had characteristics of a stakeholder hegemony that promoted stability and cooperation. Today, in various political circles around the world, it is harder for some people to make this judgment. Even the leader of a major U.S. ally, German Chancellor Gerhard Schroder, has raised concerns. "That there is a danger of unilateralism, not by just anybody but by the United States, is undeniable." [7] The implication of my argument is that the more America's brute power capabilities emerge from behind mutually acceptable rules and institutions, the more that power will provoke reaction and resistance. American leaders are indeed ambivalent about entangling the country in restraints and commitments. In the past, however, these leaders have consistently concluded that some restraint on U.S. autonomy was a useful way to allay the worries of other states and bind them to America's postwar global political-economic order. As Robert Zoellick, former undersecretary of state and now U.S. Trade Representative in the Bush administration, describes the operation of this postwar order: The more powerful participants in this system--especially the United States--did not forswear all their advantages, but neither did they exercise their strength without substantial restraint. Because the United States believed the Trilateral system was in its interest, it sacrificed some degree of national autonomy to promote it. [8] What can America do to prevent the unraveling of this order? Three suggestions are offered here. First, U.S. officials should keep the country's current good fortunes in historical perspective. This might induce a bit more modesty. America's long-time rival from outside the advanced democratic world-Russia--now has an economy about the size of Denmark's. America's one-time rival from within the advanced democratic world-Japan--has gone through ten years of economic stagnation, with no end in sight. China is still a developing country in terms of both economic and military capabilities, far from being able to challenge the United States in either arena. Western Europe is stable and expanding, but it is consumed with its own union, embarked on a politically difficult economic restructuring, and still is not capable of projecting global power. This unusual--perhaps unique--set of circumstances gives the United States a de facto license to act as the world's manager and CEO. But U.S. officials should remember tha t the wheel of world power does turn. Russia will not be down forever, nor will Japan. Europe will eventually get its house in order. The way America treats the other major states when they are in decline will influence how these states treat America when--not if--they recover. Second, the United States needs to renew the postwar institutional bargain by making it more explicit and more encompassing. This means that America must make it clear that it will play by multilateral rules in exchange for cooperation by other states on issues that matter most to us. The U.S. government should bury once and for all legislation such as Super 301 and the Helms-Burton Act, which give the president authority to act unilaterally to protect narrow economic interests. Such exercises of U.S. power create more problems than they solve. The United States should also expand its capacity to consult with other governments throughout the policymaking process. Washington is not just the capital of the country or even of "the West"; it is also--at least for a few more decades--the capital of a larger global order. These foreign stakeholders must be brought more fully into our policy process. Increasing opportunities to voice opinions can be achieved

informally in the day to day willingness of U.S. officials to consult with other governments. If not, Washington risks an ultimate shift toward some other form of global order. President George W. Bush seemed to acknowledge the dangers of an overweening foreign policy--and chest thumping about America as the "indispensable nation"--during one of the presidential debates, when he called for more modesty as America operates around the world. The Bush team has also made "listening to our allies" a central theme of its foreign policy. Whether this is more than hollow campaign rhetoric will depend on how the new administration acts on such issues as U.S. participation in peacekeeping operations, national missile defense, and a variety of proposed multilateral political and environmental accords. Preserving the existing system through the redoubling of rule-based relationships will also require American elites to elevate the domestic debate on international commitments and institutions. The old canard that building international rules and authority threatens American sovereignty is still too tempting to many politicians on the Left and Right. The argument that many--if not most-- of the existing multilateral institutions are inspired by U.S. leadership and advance the country's goals needs to be made more convincing to the American people. Politicians are more likely to stress the short-term costs to the United States in terms of lost policy autonomy or sovereignty than the gains in building an enlightened order that serve long-term U.S. interests. Finally, the United States needs to find more ways to pursue its economic and security goals through joint or multilateral decision-making exercises. A good example of such intergovernmental processes that create stakeholder cooperation is the 1999 Perry commission on North Korea. Responding to a congressional request for a reassessment of U.S. policy toward North Korea, the Clinton administration charged former Secretary of Defense William Perry with the task of policy review. The deliberations eventually involved extensive talks with Japan and South Korea. In a de facto way, the commission became multilateral, and Japanese and South Korean officials were integrated into the process and ultimately helped shape its content. The Perry report helped clarify U.S. policy toward North Korea, but the process by which it was generated also helped build consensus in the region on how to deal with that state. It also made American involvement in the region more consistent with the goals of partner states. The G-8 proc ess--which in recent years has launched ongoing intergovernmental working groups to pursue common approaches to issues such as transnational organized crime and environmental policy--is also a place where coordinated policymaking can be

expanded. America's unipolar moment need not end in antagonistic disarray. But the U nited S tates

needs to rediscover the solutions that it has brought to the problem of unequal power in the past. These solutions are

celebrated in our national political tradition. The rule of law, constitutional principles and inclusive institutions of political

participation ensure that governance is not simply a product of wealth or power. The wealthy and the powerful must operate within principled institutional parameters. Because a rule-based order generates more stable and cooperative relations within the country even the wealthy and powerful gain by avoiding social upheaval, which puts everyone's interests at risk. America can once again take this old domestic insight and use it to shape post-Cold War international relations. And it is time to do so now, when America's relative power may be at its peak.

Separation of Powers is essential to hegemony – democratic institutions produce credibility betterIkenberry 01 – John G. Ikenberry is the Albert G. Milbank Professor of Politics and International Affairs at Princeton University in the Department of Politics and the Woodrow Wilson School of Public and International Affairs. (Spring 2001, John G. Ikenberry, The National Interest, “Getting Hegemony Right”, www.columbia.edu/itc/sipa/U6800/readings-sm/Ikenberry_Hegemony.pdf // SM)

First, America's mature political institutions organized around the rule of law have made it a

relatively predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and security policy is made reduces surprises and allows other states to build long-term, mutually beneficial relations. The governmental separation of powers creates a shared decision-making system that opens up the process and reduces the ability of any one leader to make abrupt or aggressive moves toward other states. An active press and competitive party system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose. The

messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over the long term, democratic institutions produce more consistent and credible policies - policies that do not reflect the capricious and idiosyncratic whims of an autocrat. Think of the United States as a giant corporation that seeks foreign investors. It is more likely to attract investors if it can demonstrate that it operates according to

accepted accounting and fiduciary principles. The rule of law and the institutions of policymaking in a democracy are the political equivalent of corporate transparency and accountability. Sharp shifts in policy must ultimately be vetted within the policy process and pass muster by an array of investigatory and decision-making bodies. Because it is a constitutional, rule-based democracy, outside states are more willing to work with the United States or, to return to the corporate metaphor, to invest in ongoing partnerships.

Immigration

Obama’s immigration act is in process of authorization now – it legitimizes executive overreach McGill 7/10 (Kevin. Associate Press. “Appeals panel hears arguments on Obama immigration action”. 10 July 2015. http://bigstory.ap.org/article/2cbc5dedeb2f47e59d1a47bdcf3207b9/appeals-panel-hears-arguments-obama-immigration-action)//JuneC//

NEW ORLEANS (AP) — A federal appeals court in New Orleans was set to hear arguments Friday over President Barack Obama's plan to protect from deportation as many as 5 million immigrants living illegally in the United States. Announced in November, the plan was harshly criticized by Republicans in Congress as an executive overreach . Texas and 25 other states challenged the plan in federal court, and U.S. District Judge Andrew Hanen in Brownsville, Texas, granted a preliminary injunction on Feb. 16. Arguments in the Obama administration's appeal were set for a two-hour hearing before a three-judge panel of the 5th U.S. Circuit Court of Appeal. Supporters of the plan, including members of labor unions and immigrants' rights groups, planned to rally outside the

courthouse Friday morning and hold a news conference after the hearing. The panel is not expected to rule immediately. Either side could appeal a loss to the full 5th Circuit or the Supreme Court — a process that will eat up time with only about a year and a half left in Obama's second term. Justice Department lawyers arguing for the administration have said Texas had no legal standing in the matter. Texas' solicitor general countered that granting legal status to immigrants will be costly for Texas, with the state incurring costs for providing drivers' licenses, schooling and health care to immigrants who are

granted permission to stay. Obama's executive orders were intended to expand a program that protects young immigrants from deportation if they were brought to the U.S. illegally as children. The other major part would extend deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years. Two members of the panel hearing arguments Friday were on a panel that voted in May to not allow the plan to proceed while the appeal is pursued. In the May 26 ruling, judges Jerry Smith and Jennifer Walker Elrod said the federal government lawyers are unlikely to succeed on the merits of the appeal. Judge Stephen Higginson disagreed in a lengthy dissent. Friday's panel includes Smith, Elrod and Carolyn Dineen King.

Only congressional check on executive overreach can prevent it from passageShapiro 15 (Ilya. senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced international, political, commercial, and antitrust litigation at Patton Boggs and Cleary Gottlieb. “Challenging President Obama’s Immigration Action Even Though It’s Good Policy”. 8 January 2015. CATO Institute. http://www.cato.org/blog/challenging-president-obamas-immigration-action-even-though-its-good-policy)//JuneC//Our immigration system is broken and Congress has shamelessly refused to fix it. Of course, this unfortunate circumstance doesn’t give the executive branch the power to institute reforms itself. Yet through a recently announced policy known as Deferred Action for Parental Accountability (DAPA), President Obama has given partial legal status to more than four million illegal migrants, entitling

them to work authorizations and other benefits. This unilateral action is good policy, bad law, and terrible precedent. Perhaps most importantly, it violates the separation of powers and is thus unconstitutional . In what is becoming a routine occurrence under this administration, 25 states have sued the federal government in response to this executive action. The case is now before a federal district judge in Brownsville, Texas, who is entertaining the plaintiffs’ motion to enjoin DAPA. Cato, joined by law professors Josh Blackman, Jeremy Rabkin, and Peter Margulies, has filed an amicus brief supporting the motion. It’s highly unusual for Cato to file at the district court level—indeed

amicus briefs of any kind are unusual in this forum—but this is a highly unusual situation. To be clear, we support comprehensive reform that would provide relief to the aliens protected by DAPA (among many other goals), but it’s not for the president to make such legislative changes alone. President Obama has defended his action by citing past deferrals for (1) battered and abused aliens, (2) aliens involved in human trafficking, (3) foreign students affected by Hurricane Katrina, and (4) widows of U.S. citizens. But these deferred actions, to the extent they’re relevant here, served as temporary bridges from one legal status to another, not tunnels that undermine legislative structure or detours around the law to hitherto unknown destinations. Moreover, they were several orders of magnitude smaller than DAPA, in the tens of thousands not the millions. Most significantly, they were all approved by Congress. None of these principles holds true for DAPA. The administration itself stated the applicable test in the memorandum setting out DAPA’s legal

justification: “an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.” This executive action represents a fundamental rewrite of the immigration laws that is inconsistent with the congressional policy currently embodied in the Immigration and Naturalization Act (INA)—a policy that, again, those who joined this brief by no means endorse. As Prof. Blackman explains in a new law review article, DAPA is in palpable tension with the INA, implementing under

the guise of executive discretion wholesale waiver/suspension/deferral that swallows the enforcement rule. Indeed, Congress rejected or failed to pass immigration-reform bills reflecting this policy several times, so executive power in this area is “at its lowest ebb,” to use Justice Robert Jackson’s famous formulation from the 1952 Steel Seizure Case. In our constitutional architecture, executive action based solely on Congress’s resistance to presidential policy preferences has no place . While we agree that the immigration laws need to be overhauled and sympathize with the plight facing undocumented aliens, the path designed by the Framers for implementing needed reforms goes through the halls of Congress. Unilateral exercises of power such as DAPA undermine the separation of powers and ultimately the rule of law. Judge Andrew Hanen, who was nominated by George W. Bush and unanimously confirmed by the Senate, will hold his preliminary injunction hearing in Texas v. United States on Jan. 15 in Brownsville, Texas.

The executive order deters immigrants and wrecks the economyGurbanov 14 (GEYSAR I. a Rotary Fellow at Duke-UNC Chapel Hill Center for International Studies in Peace and Conflict Resolution. “Why Obama’s immigration plan is bad”. 19 November 2014. News Observer. http://www.newsobserver.com/opinion/op-ed/article10137332.html)//JuneC//In 2011, with a few thousand dollars in my pocket, I arrived in the US seeking shelter from persecution and corruption. I crossed the border legally – I had a valid entry visa. When President Obama announced his willingness to bypass Congress and act unilaterally to enforce immigration changes that will offer legal paperwork to as many as 5 million undocumented immigrants, I and many others in my situation felt devastated. On March 17, in response to my letter addressed to the White House about my immigration case, President Barack Obama wrote back in an email message: “America’s immigration system is badly broken, and I know many people

are hurting because of it.” Because I am among more than 5 million legal immigrants in pending status, any decision the federal government –either the White House or Congress – makes on immigration will likely have a consequence on my status in the U.S. In 2011, with a few thousand dollars in my pocket, I arrived in this country seeking shelter from persecution and corruption that forced me to leave my home. I crossed the border legally – I had a valid entry visa to come to the United States. Additionally, although it was tempting, I never accepted

illegal employment opportunities and did not take any shortcuts in my pursuit of the American Dream. Recently, when Obama announced his willingness to bypass Congress and act unilaterally to enforce immigration changes that will offer legal paperwork to as many as 5 million undocumented immigrants, I and many others in my situation felt devastated. And here is why. Yes, Obama is right. Our immigration system is badly broken. However, his executive order cannot and will not solve the problem. He offers a short-term solution as any president who is elected to run the Oval Office after him will have a chance to overrule his executive order. In the past, Presidents Ronald Reagan and George H.W. Bush also granted amnesty to illegal immigrants. But decades later, the problem of illegal immigration has not been solved by their executive orders. On the contrary, with estimated 11.7 million individuals, the number of undocumented aliens is on the rise. Moreover, there is another consequence for Obama’s action: Our immigration system runs at its maximum capacity. Try to file an immigration application with the federal government, and you will experience longer waiting times to get your paperwork processed. For example, more than 40,000 asylum applicants – those who take a legal path to stay in the U.S – live in legal limbo waiting for decisions on their cases. I have personally waited almost two years now because the resources of the federal government to handle immigration petitions are

already stretched. In order to process millions of new applications, the immigration authorities will have to draw tremendous administrative resources, not to mention financial costs associated with it. And this will happen at the expense of other applicants who are already waiting in a queue and are, oftentimes, backlogged in the system. In other words, by granting paperwork to millions of undocumented immigrants, we treat unfairly those

immigrants who come to the U.S. legally: Their paperwork will experience significantly more delays, and any incentives for them to stay here legally will be diminished . Historically, America has been a country of immigrants. Immigrants fight our wars, they invest in our economy, they start multibillion-dollar corporations and they strengthen our academia. But immigration must be regulated. And any policies in this regard must be long-term solutions driven by our commitment to serve the American citizenry, not by political ambitions of those in the nation’s capital. Our elected officials should understand that granting temporary relief to illegal immigrants results only in putting a few stitches on the bleeding wound of our “badly broken immigration system.” Yet we must also realize that there will be no way to prevent the influx of immigrants to the U.S. For as long as America remains one of the best countries in the world, people will come here in their pursuit of happiness. Halting immigration defeats the purpose of the American Dream. We will be better off if we identify a middle ground in our otherwise radical approaches to illegal immigration. Such a viable solution will include making legal immigration easier and illegal

crossings a less desirable course of action. Otherwise, granting paperwork to millions of undocumented immigrants who cross the border and intentionally violate the U.S. laws sends out the wrong message to potential émigrés . True, we are a nation of immigrants, and America is a country of opportunities, but these

opportunities should be available on a legal basis. At the end, we are also a nation of laws, and it is our system based on law-abiding behavior that makes us so attractive and sets us apart from other nations across the globe.

nuclear war

Executive overreach causes a short-term nuclear war – strong Constitutional principles solveSpannaus 14 – Editor at the Executive Intelligence Review News Service. Mrs. Spannaus has written a book on The Political Economy of the American Revolution, and countless articles. (11/21/2014, Nancy, “A ‘Symbiotic Pathology’ Threatens U.S. Survival”, Executive Intelligence Review National, http://larouchepub.com/eiw/public/2014/eirv41n46-20141121/09-11_4146.pdf // SM)

Nov. 17— “A symbiotic pathology between Executive overreach and Congressional abdication ,” identified by Sen. Tim Kaine (D-Va.) in a Nov. 12 speech at the Woodrow Wilson Center in Washington, D.C.,

threatens to destroy the United States in the very short term . Specifically, this symbiosis is leading toward a lethal escalation of the Obama Administration’s war in Southwest Asia, as well as confrontation with Russia and China; both policies could result in nuclear war . The pathological players are the lawless, narcissistic President Obama, on the one side, and the pro-war

fascist wing dominating the Republican Party, on the other. The only hope for the United States, and the world, is that a grouping of American patriots comes forward to dump both these players, and restore constitutional government and principles in the country . Under such conditions, the United States could be brought into an alliance with the anti-war, pro-development global coalition being led by the BRICS nations, and a lasting war avoidance policy based on cooperation around high-technology development could be put in place.

Even small violations of separation of powers must be avoided like nuclear war risksRedish and Cisar 91, Professor of law at Northwestern and Law Clerk to Chief Judge William Bauer, United States Court of Appeals, Seventh Circuit, Martin H. and Elizabeth J., December 1991, IF ANGELS WERE TO GOVERN" *: the Need for Pragmatic Formalism in Separation of Powers Theory ,1992 Duke Law Journal, 41 Duke L.J. 449, p. 474

In summary, no defender of separation of powers can prove with certitude that, but for the existence of

separation of powers, tyranny would be the inevitable outcome. But the question is whether we wish to take that risk, given the obvious severity of the harm that might result. Given both the relatively limited cost imposed by use of separation of powers and the great severity of the

harm sought to be avoided , one should not demand a great showing of the likelihood that

the feared harm would result. For just as in the case of the threat of nuclear war, no one wants to

be forced into the position of saying, “I told you so.”

war

Flawed model of separation of powers causes global warsZakaria, 1997 editor of Newsweek International, ’97 (Fareed, Foreign Affairs, November, LN)¶

When divining the cause behind this correlation, one thing becomes clear: the democratic peace is¶ actually the liberal peace. Writing in the eighteenth century, Kant believed that democracies were¶ tyrannical, and he specifically excluded

them from his conception of "republican" governments, which lived in a zone of peace. Republicanism, for Kant, meant a separation of powers, checks and balances , the rule of law, protection of individual rights, and some level of representation in government (though nothing close to universal suffrage). Kant's other explanations for the "perpetual peace" between republics are all closely linked to their constitutional and liberal character: a mutual respect for the rights of each other's citizens, a system of checks and balances assuring that no single leader can drag his country into war, and classical liberal economic policies -- most importantly, free trade -- which create an interdependence that makes war costly and cooperation useful. Michael Doyle, the leading scholar on the subject, confirms in his 1997 book Ways of War and Peace that without constitutional liberalism, democracy itself has no peace-inducing qualities: Kant distrusted unfettered, democratic majoritarianism, and his argument offers no support for a claim that all participatory polities -- democracies -- should be peaceful, either in general or between fellow democracies. Many participatory polities have been non-liberal. For two thousand years before the modern age, popular rule was widely associated with aggressiveness (by Thucydides) or imperial success (by Machiavelli) . . . The decisive preference of [the] median voter might well include "ethnic cleansing" against other democratic polities. The distinction between liberal and illiberal democracies sheds light on another striking statistical correlation. Political scientists Jack Snyder and Edward Mansfield contend, using an impressive data set, that over the last 200 years democratizing states went to war significantly

more often than either stable autocracies or liberal democracies. In countries not grounded in constitutional liberalism, the¶ rise of democracy often brings with it hyper-nationalism and war-mongering. When the political¶ system is opened up, diverse groups with incompatible interests gain access to power and press their¶ demands. Political and military leaders, who are often embattled remnants of the old authoritarian¶ order, realize that to succeed

that they must rally the masses behind a national cause. The result is¶ invariably aggressive rhetoric and policies, which often drag countries into confrontation and war.¶ Noteworthy examples range from Napoleon III's France, Wilhelmine Germany, and Taisho Japan to¶ those in today's newspapers, like Armenia and Azerbaijan and Milosevic's Serbia. The democratic¶ peace, it turns out, has little to do with democracy.¶

tyranny

Separation of powers crucial for liberty and protection from tyranny Morrisey 12 (William is William a Professor in the U.S. Constitution at Hillsdale University, “Separation of Powers: Ensuring Good Government”, https://online.hillsdale.edu/document.doc?id=261)//ccThe separation of powers helps to ensure good government at the same time it guards against tyranny. Independent in function but coordinated in the pursuit of justice, the three branches of government—legislative, executive, and judicial—must each have enough power to resist the encroachment of the others, and yet not so much that the liberty of the people is lost. A political regime has three dimensions: the ruling institutions, the rulers, and the way of life of the people. In America, the rulers—the people themselves—and their ruling institutions—staffed by the people’s representatives—aim at securing the Creator-endowed natural rights of all citizens. The Framers did this in two ways. “Vertically” considered, our ruling institutions are defined by federalism, or the division of power between the national, state, and local governments. “Horizontally” considered, the ruling institutions of the federal government itself are separate and co-equal. In the American regime, the Constitution is the “supreme law of the land.” No one branch is superior to it; all three branches have a duty to abide by it. While each of the three branches plays a unique role in the passage, execution, and interpretation of laws, all of the branches must work together in the governing process.

Separation of Powers prevents tyranny and oppression *We don’t endorse gendered language Kesler 07 (Charles R is a professor of Government/Political Science at Claremont McKenna College and Claremont Graduate University. He holds a Ph.D in Government from Harvard University, from which he received his AB degree in 1978, 12/17 The Hermitage Foundation, “What Separation of Powers Means for Constitutional Government”, http://www.heritage.org/research/reports/2007/12/what-separation-of-powers-means-for-constitutional-government)//ccThe argument from liberty holds that separation is needed in order to prevent tyranny. According to Publius's famous definition, "The accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."[3] Tyranny is a danger because man's passions and reason are not perfectly harmonious; his reason may be distorted by desire. Although each man has by nature the rights to life, liberty, and the pursuit of happiness, he cannot secure these rights without joining together with other men to form a civil society, a people. Despite the legal unity of this people, it is composed of individuals whose impassioned opinions and interests divide them into majorities and minorities. As a precaution against injustice, therefore, the powers of government must be so divided that no man or group of men may wield all of them at once. This precaution would not be necessary if reason and passion were utterly harmonious, and if the whole comprising such reason and passion were a priori unitary rather than synthetic. These conditions, however, are unique to God, who alone justly unites the legislative, judicial, and executive powers in the same hands. The Declaration of Independence affirms this by appealing at once to "the laws of Nature and of Nature's God," "the Supreme Judge of the world," and "the Protection of Divine Providence."[4]

Separation of Powers is essential to protecting liberty and preventing tyrannyWatson and Burnham 7/5 – Ryan J. Watson and James M. Burnham are appellate lawyers at Jones Day. Ryan, a former clerk to Supreme Court Justice Samuel A. Alito, Jr., has been involved in numerous Supreme Court cases; James was the primary brief writer on behalf of Noel Canning in Noel Canning v. National Labor Relations Board, a successful constitutional challenge to “recess” appointments the President purported to make in 2012. (2015, Ryan J. Watson and James M. Burnham, Washington Times, “Separation of powers: A primer”, http://www.washingtontimes.com/news/2015/jul/5/celebrate-liberty-month-separation-of-powers-a-pri/ // SM)

As we celebrate Liberty Month, it is worthwhile to review how the Constitution’s separation of powers supplies a key bulwark protecting individual liberty in the world’s most successful Republic . The Founders were familiar with human nature and the correlative tendency of every ruler towards tyranny. They had experienced oppression at the hands of the English King and realized that the only way to truly protect individual liberty was to limit the power of any single

government official. James Madison, a central architect of the Constitution, rightly observed that if “men were angels, no

government would be necessary.” Federalist No. 51 (1788). He knew that every official or body would seek to accumulate “all powers, legislative, executive, and judiciary, in the same hands,” and that such a concentration would be “the very definition of tyranny.” Federalist No. 47 (1788). Thomas Jefferson agreed, labeling such a concentration of power as “precisely the definition of despotic government.” Notes on the State of Virginia,

Query 13 (1784). At the national level, the Founders addressed this tendency towards tyranny in two ways. First, they recognized that the only way to limit each official’s power was to limit each office’s power—that is, to divide the sovereign power of government across different offices and separate branches. The Founders therefore divided federal power across three different branches and numerous different officials. They did so both to limit each individual official’s unilateral power and to

ensure that the People knew which of their elected officials to hold accountable for different governmental actions. Second, the Founders wisely realized they could not trust mere “parchment barriers against the encroaching spirit of power,” Federalist No. 48, and thus, to keep officials within those limits, used “ambition to counteract ambition,” aligning the “interest of the man with the

constitutional rights of the place.” Federalist No. 51. The Founders thus created a system in which not only does no single official possess plenary power, but officials must also battle each other to exercise power. In that constitutional system, “the private interest of every individual” runs counter to the private interest of every other individual. Id. The Founders ensured, in other words, that each individual official’s inherent desire for more power would

serve as a separate “sentinel over the public rights.” Id. The Founders created this system by dividing the government’s powers among, and even within, three separate and competing branches. Here’s a quick snapshot of how they did it: As Article I of the Constitution makes clear, the Legislative Branch enacts legislation, levies taxes, regulates interstate commerce, appropriates money, and (at least theoretically) declares war. The Constitution further divides the Legislature into two bodies, the House and Senate. The Executive Branch, established in Article II, implements the laws created by Congress, and the President makes treaties, serves as Commander in Chief, and appoints federal judges and principal officers. Finally, the Judiciary, established in Article III, declares what the law is—by interpreting the Constitution and laws, and applying them to specific cases and controversies. The Founders then enmeshed each branch’s powers in an elaborate system of checks and balances, whereby the branches (attempt to) keep each other in line. For example, although Congress enacts legislation, the President can veto it (subject to an override by a two-thirds vote of each house of Congress). While the President appoints officers, the Senate has the power to give advice and consent to those appointments, and also to the President’s treaties. And although federal judges enjoy life tenure and salary protection, they are empowered only to apply the law rather than make it, and they can

be impeached. This system cannot function , though, if the branches do not fulfill their constitutionally-designated roles and jealously guard their prerogatives when other branches encroach. The system fails and liberty suffers if the Executive acquiesces in congressional action that divests it of executive power; if Congressional representatives become so obsessed with merely remaining representatives that they are supine in the face of Executive overreach; or if the Judiciary fails to leave the legislating to Congress. For many decades, the branches took their duties seriously and defended their powers against one another. But in a world where officials stand aside as the other branches reallocate power to themselves (or to unaccountable independent agencies), one could be forgiven for wondering whether our society still understands that the separation of powers is a large part of why our Republic has long endured.

torture advantage

internal link

oversight

CIA surveillance on the Senate has a chilling effect on Congressional oversightCassata 14 – *Cites senators, Cassata is a political editor for the Associated Press (3/12/2014, Donna, Southeast Missourian, “Senator sees CIA meddling in torture probe”, http://www.semissourian.com/story/2059728.html // SM)

WASHINGTON -- The leader of the Senate Intelligence Committee declared Tuesday the CIA interfered with and tried to intimidate a congressional investigation into the agency's possible use of torture in terror probes during the Bush administration. The CIA clandestinely removed documents and searched a computer network set up for lawmakers, said Sen. Dianne Feinstein in a speech on the Senate

floor. In a dispute with an agency she has long supported, she said the CIA may well have violated criminal laws and the U.S. Constitution. Both sides have involved the Justice Department. The CIA's inspector general, David Buckley, has referred the matter to Justice, and the CIA's acting counsel responded by filing a criminal report about the intelligence committee staff. "I am not taking it lightly," Feinstein said of the investigations. "I view the acting counsel general's referral as a potential effort to intimidate this staff" in the interrogation investigation. The dispute between the CIA and senators, which has been going on privately for more than five years, emerged as a public clash as Feinstein offered an account of the Senate's secretive dealings with the CIA in an investigation of post-Sept. 11 interrogation and detention practices. All U.S. spy agencies have drawn scrutiny since revelations last summer about surveillance of Americans by the National Security Agency. The Obama administration has struggled to rebuild trust since former analyst Edward Snowden made the disclosures. Feinstein has been one of the intelligence community's most ardent advocates, arguing the wide surveillance of people's electronic and telephone communications was a

necessary counterterrorism tool. In the current matter, CIA director John Brennan rejected Feinstein's accusations, insisting the agency was not trying to thwart the committee's work and denying it had been spying on the panel or the Senate. He said the appropriate authorities would look at the matter further and "I defer to them to determine whether or not there was any violation of law or principle." Brennan said if he did "something wrong, I would go to the president and he would be the one to ask me to stay or go." Feinstein and the CIA acknowledge they examined documents that were part of the investigation but insisted they acted appropriately in following an agreement worked out between her committee and then-CIA director Leon Panetta in 2009. But

Feinstein and the CIA have accused each other's staffs of improper behavior. She said she had "grave concerns that the CIA's search may well have violated the separation of powers principles embodied in the United States Constitution," and the Fourth Amendment that prohibits unreasonable searches and seizures. She said she has sought an explanation and an apology from the CIA. Neither has been forthcoming. Feinstein received a standing ovation from her Democratic colleagues at a closed-party lunch on Tuesday. Several Republicans also expressed their concerns, but the Intelligence Committee's top Republican, Saxby Chambliss of Georgia, wasn't one of them. He indicated he disagreed with her on the dispute, without providing specifics. He called for a study "on what happened so people can find out what the facts are." "We're going to continue to deal with this internally," he told reporters.

Other senators said the dispute had a chilling effect on congressional oversight . "Heads should roll, people should go to jail if it's true," said Sen. Lindsey Graham, R-S.C. "If it is, the legislative branch should declare war on the CIA." Sen. Ron Wyden, D-Ore., an outspoken critic of the NSA practices, shared Feinstein's concerns that laws were violated in an "unprecedented invasion by the CIA into computers used by Senate" investigators, and said misleading statements from intelligence leaders undermine their credibility.

The Senate Intelligence Committee is pressuring the CIA on torture – the plan is key to making that oversight effectiveAckerman 13 – Spencer Ackerman is national security editor for Guardian US. A former senior writer for Wired, he won the 2012 National Magazine Award for Digital Reporting (12/20/2013, Spencer, The Guardian, “Senate intelligence committee presses CIA to release torture report”, http://www.theguardian.com/world/2013/dec/20/senate-intelligence-committee-cia-torture-report // SM)

Pressure is building on the CIA to release one of the most potentially explosive documents of the post-9/11 era : a secret Senate report revealing in gruesome detail the extent of the agency’s use of torture. In one corner is the US’s premier intelligence agency, which has labored for years to put its history with torture

behind it. In the other is a Senate committee whose dogged, even angry pursuit of a grim episode has placed it against an agency to which it ordinarily gives the benefit of the doubt – all while it is

trying to convince the public it can effectively police the National Security Agency. In the balance is something that, for civil

libertarians, has been elusive: accountability for torture. “There are certain smart people at the CIA who have to realize that if that kind of information becomes public, it’s going to renew the calls for a criminal investigation,” said Chris Anders, a

Washington-based attorney with the American Civil Liberties Union (ACLU). Almost exactly a year ago, the Senate intelligence committee approved, by a 9-6 bipartisan vote, a 6,300-page inquiry into brutal interrogations conducted by the CIA on suspected al-Qaida detainees. The years-long study documented not only the practices behind euphemisms like “waterboarding” and “stress positions”, but what senators have described as useless information yielded by them and deceptions by the CIA to Congress about their importance. The public has never seen the report. The CIA has feuded with a committee that is deeply inclined toward giving it and its partner intelligence services the benefit of the doubt, as accusations of deception have swirled between Langley and Capitol Hill. The unresolved tension has already cast a shadow over the brief CIA directorship of John Brennan, a confidante of President Barack Obama who was a senior agency official in the period of the events that comprise much of the report’s focus. On Tuesday afternoon, the battle emerged into full view during a nomination hearing for

the CIA’s next top lawyer. Angry senators once again excoriated Langley for stalling on declassifications, and lashed out over CIA statements to the press that the Senate report is factually flawed. “I'm more confident than ever in the factual accuracy,” said Senator Mark Udall, who accused the CIA of misleadingly telling the Daily Beast that the CIA objected to the report when, he revealed, an internal agency study had found no such factual objections. Hours later, however, the New York Times ran a piece containing a reiteration of the same CIA insistence that the Senate inquiry contained “significant errors” about what the agency prefers to call “enhanced interrogation”. Asked about Udall’s claim, CIA spokesman Dean Boyd said: “We are aware of the committee’s request and will respond appropriately.” What

seems on the surface like an obscure dispute inside the Beltway has attracted combatants outside of it. This week, a coalition of religious groups organized an open letter to the committee, signed by Christian, Muslim and Jewish

clergy across the country, describing the release of the report as a critical accountability measure. “We hope that op-eds written by local religious leaders in publications in all 50 states will demonstrate to the Senate intelligence committee the depth of the opposition to torture within the religious community and our community’s support for sharing the truth about torture by releasing the report to the public,” said Reverend Richard Killmer, the executive director of the National Religious Campaign Against Torture, in a statement. For Brennan, the torture issue has overtaken his tenure. An agency veteran and an Arabic speaker, he lost the CIA directorship shortly after Obama’s election, due to statements he made in old press interviews that condemned waterboarding – forcing water over a detainee’s nostrils and mouth, preventing them from breathing – but suggested that “enhanced interrogation techniques” saved lives, a point under fierce dispute. Brennan became the White House counterterrorism director instead, an arguably more powerful position that gave him practically unmediated access to Obama. While Brennan was scrutinized more for approving drone strikes, the torture issue re-emerged once Obama definitively nominated him to run the CIA. His February confirmation hearing featured Brennan having to forswear internal knowledge of torture; insisting, contrary to contemporaries’ recollections, that he attempted to stop it; and pledging to work with the committee on a torture report he said he had not fully read. “I very much look forward to hearing from the CIA on that and then coming back to this committee and giving you my full and honest views,” Brennan told the committee chair, Dianne Feinstein. He was confirmed soon after. By June, however, Brennan delivered a classified “rebuttal” to the Senate panel, contesting its conclusions and its command of the facts. Former agency officials insisted that the Senate, not the agency, was playing politics with the efficacy of torture. “I don’t know how

they could fail to say that actually it was effective,” one anonymous ex-CIA official told the Washington Post. At particular issue are undisclosed legal memorandums, written in secret at the Justice Department, that gave torture the imprimatur of legality. Feinstein and other senators have complained for over a year that neither the CIA nor the Justice Department has shared such memorandums with the committee. On Tuesday, the senators reiterated a contention that the CIA did not just lie to the committee about the value of torture, but it also lied to the Bush-era Justice Department office of legal counsel about how it actually implemented the brutal techniques the department blessed. Yet Caroline Krass, a top lawyer in the office of legal counsel, whom Obama nominated to become the CIA’s chief attorney, told the panel on Tuesday that the Senate panel was not entitled to the memorandums, which she described as “pre-decisional” and therefore beyond Senate prerogative. Those legal memos could thrust the CIA back into a minefield it thought Obama had saved it from facing. Even before his inauguration, Obama signaled he had no interest in charging anyone involved in torturing detainees with a crime. “We need to look forward as opposed to looking backwards,” he said, in a January 2009 interview. An independent Justice Department investigation deliberately excluded from its purview any senior official or lawyer who authorized the torture, and examined instead about 100 instances in which low-level CIA officials and contractors carried out the brutal interrogations. In 2012, the inquiry formally ended – without prosecuting anyone. It was an enormous relief for a CIA that has struggled to put its torture legacy behind it, despite whispering to the filmmakers of the controversial Hollywood hit Zero Dark Thirty that torture was a critical counterterrorism practice. But if the Senate report indicates that the CIA misled the Justice Department, said Anders of the ACLU, the agency might find itself under renewed calls to reopen an inquiry aimed at

prosecution. Anders said: “The most significant way that the CIA has been protected against prosecution has been its claims that it was relying on legal advice from the Justice Department, but if the very basis of that legal advice was misrepresented facts provided by the CIA, then by relying on those legal opinions when you know it’s based on false or incomplete information, the CIA

undermined the value of those opinions.” There are also high stakes for the Senate intelligence committee. The disclosures from Edward Snowden about the breadth of NSA surveillance has damaged public confidence in Congress’s ability to effectively oversee the intelligence agencies, on issues

ranging from the bulk collection of Americans’ phone data to overseas “targeted killing” launched from CIA drones. Now the CIA is publicly stonewalling the committee, effectively defying the panel on what chairwoman Feinstein pointedly told Krass on Tuesday was its sole “purpose”. Feinstein and other committee members are procedurally encumbered by the CIA. The committee is bound by rules that prevent it from making unilateral declassification decisions. Votes to compel public releases would involve the rest of the Senate, and the executive branch has broad leverage over declassification. At the end of Tuesday’s hearing,

Feinstein urged Krass to let her staff “sit down with you and explain to you exactly what it is and that you take some action” over the documents the committee wants. Krass, equivocally, said she wanted to “work closely with this committee to make sure that you get access to the information as appropriate”.

CIA surveillance on the Senate obstructs the Senate’s investigation of torture – the declassification of the torture report’s key to the end of tortureHRF 14 – (3/14/2014, Human Rights First, “Pressure Mounts to Declassify the Senate Torture Report”, http://www.humanrightsfirst.org/blog/pressure-mounts-declassify-senate-torture-report // SM)

The Senate Intelligence Committee produced a landmark 6,000-page report on the CIA’s detention and interrogation program. This report has the potential to end the debate on torture and prevent its return. Hint: according to those who have read the report, it says that torture didn’t save

American lives and that torture was more widespread and harsher than we thought. The problem: The American public can’t read it because it’s classified. Bipartisan support for declassification is growing, and after developments this week, America may soon be able to know the truth about the CIA’s torture program. Here’s what you may have

missed. March 11: Senator Dianne Feinstein accuses the CIA of obstructing the Senate Intelligence Committee’s investigation on torture. Senator Dianne Feinstein (D-CA) took to the Senate floor on

Tuesday, March 11, to address the need for a strong oversight mechanism in Congress and noted the importance of the Senate intelligence committee’s report on the post-9/11 CIA torture program. Senator Feinstein, chair of the intelligence committee, responded to recent allegations that the CIA spied on computers provided to committee staff investigating the agency’s program. She described in her statement two main occasions of obstruction by the CIA: (1) Roughly 920 documents were

removed by the CIA from the intelligence committee's computer in 2010 and (2) the CIA searched the intelligence committee's network in January 2014. She also reiterated that, if the report is declassified, "We will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted." Feinstein also decided to move forward with a vote in the Senate intelligence committee to declassify the report before the end of the month.

exposure

CIA misrepresents torture to congress and the judicial: Senate oversight is needed Senate Select Committee on Intelligence 14 (“Committee study of the Central Intelligence Agency’s Detention and Interrogation Program,” declassified 12/3, http://www.nytimes.com/interactive/2014/12/09/world/cia-torture-report-document.html?_r=0)//ccThe interrogations of CIA detainees were brutal and tar worse than the CIA represented to policymakers and others. Beginning with the CIA's first detainee, Abu Zuhaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such us slaps and "wallings" (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used an "an open, non- threatening approach,"7 or that interrogations began with the "least coercive technique possible*'1 and escalated to more coercive techniques only as necessary. The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zuhaydah, for example, became "completely unresponsive, with bubbles rising through his open, full mouth'"1 Internal CIA records describe the waterboarding of Khalid Shaykli Mohammad as evolving into a "series of near drownings."5 Sleep deprivation involved keeping detainee* awake lor up to ISO hours, usually standing or in *ires* positions, at times with their hands shackled above their heads. At leas; five detainees experienced disturbing hallucinations during prolonged sleep deprivation and. in at least two of those cases, the CIA nonetheless continued the sleep deprivation Contrary to CIA representations to the Department of Justice, the CIA instructed personnel that the interrogation of Abu Zubavdah would take "precedence" over his medical care,9 resulting in the deterioration of a bullet wound Abu Zuhaydah incurred during his capture. In at least two other casts, the CIA used its enhanced interrogation techniques despite warnings from CIA medical personnel that the techniques could exacerbate physical injuries. CIA medical personnel treated at least one detainee for swelling in order to allow the continued use of standing sleep deprivation. At least five CIA detainees were subjected to "rectal rehydration" or rectal feeding without documented medical necessity. The CIA placed detainees in ice water "baths." The CIA led several detainees to believe they would never be allowed to leave CIA custody alive, suggesting to one detainee that he would only leave in a coffin-shaped box.7 One interrogator told another detainee that he would never go to court, because "we can never let the world know what I have done to you."x CIA officers also threatened at least three detainees with harm to their families— to include threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to "cut |a detainee's] mother's throat."9 #4: The conditions of confinement for CIA detainees were harsher than the CIA had represented to policymakers and others. Conditions at CIA detention sites were poor, and were especially bleak early in the program. CIA detainees at the COBALT detention facility were kept in complete darkness and constantly shackled in isolated cells with loud noise or music and only a bucket to use for human waste.10 Lack of heat at the facility likely contributed to the death of a detainee. The chief of interrogations described COBALT as a "dungeon."" Another senior CIA officer stated that COBALT was itself an enhanced interrogation technique.13 At times, the detainees at COBALT were walked around naked or

were shackled with their hands above their heads for extended periods of time. Other times, the detainees at COBALT were subjected to what was described as a "rough takedown." in which approximately five CIA officers would scream at a detainee, drag him outside of his cell, cut his clothes off, and secure him with Mylar tape. The detainee would then be hooded and dragged up and down a long corridor while being slapped and punched. Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel. Throughout the program, multiple CIA detainees who were subjected to the CIA's enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems. #5: The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysts of the CIA's Detention and Interrogation Program.

media

Exposure is necessary for successful dissent. With the Senate Intelligence Committee off-guard, the CIA feeds the media cherrypicked data – misinformation and secrecy destroys any potential for democratic changeConroy 14 (Bill. a Seattle-based freelance writer. “Torture Report Reveals CIA’s Manipulation of US Media”. 12 December 2014. The Narcosphere. http://narcosphere.narconews.com/notebook/bill-conroy/2014/12/torture-report-reveals-cia-s-manipulation-us-media)//JuneC//Agency Used Classified Information As Currency For Deception The recently released Senate Select Committee on Intelligence report pillorying the CIA’s Bush-era detention and interrogation program is replete with lurid details of what would commonly be called

torture, if those practices were carried out on you or me. Waterboarding, rectal feeding, sleep deprivation, coffin-size cells and forcing detainees to stand in stress positions, even with broken bones, is the stuff of a horror movie. But there is another revelation in the long-awaited, and controversial , Senate committee report that so far seems to have slipped past much examination in the public spotlight. The Senate report makes clear that CIA officials attempted to play the media like a fiddle by selectively releasing classified information about the detention and interrogation program. “The CIA manipulated rules on classified information to serve it’s own interests,” Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, said. “And the Senate report cites several examples of that.” In fact, one of the findings of the report is quite blunt on that

front: “The CIA's Office of Public Affairs and senior CIA officials coordinated to share classified information on the CIA' s Detention and Interrogation Program to select members of the media to counter public criticism, shape public opinion, and avoid potential congressional action to restrict the CIA's … authorities and budget . These disclosures occurred when the program was a classified covert action program.” This finding is troubling in light of the ongoing efforts to prosecute well-known whistleblowers, such as Edward Snowden of NSA-leak fame, and some half dozen others in separate cases, all

of whom could face (or are facing) years in prison for allegedly disclosing classified information to the media. To be sure, there are nuances in each of the cases and the comparison is not perfect, but at the heart of it all is a set of rules on the release of classified information that are marked with double standards. “If you have no security clearance, and there is not a need to know, then you’re not supposed to get classified information,” Aftergood said. “The Senate committee found that CIA officials leaked classified information [to the media] and no

further investigation was conducted.” The Senate report describes the practice as follows: “In seeking to shape press reporting on the CIA's Detention and Interrogation Program, CIA officers and the CIA's Office of Public Affairs (OPA) provided unattributed background information on the program to journalists for books, articles, and broadcasts, including when the existence of the CIA's Detention and Interrogation Program was still classified. When the journalists to whom the CIA had provided background information published classified information, the CIA did not, as a matter of policy, submit crimes reports.” One example illustrative of the practice, cited in the report, is found in correspondence penned by the deputy director of the CIA’s Counterterrorism Center in 2005, as the torture program was beginning to unravel: “We either get out and sell, or we get hammered, which has implications beyond the media. [C]ongress reads it, cuts our authorities. messes up our budget. …We either put out our story or we get eaten. [T]here is no middle ground.” The same CIA officer explained to a colleague that "when the [Washington Post]/[New York T]imes quotes ‘senior intelligence official,’ it’s us ... authorized and directed by opa [CIA's Office of Public Affairs].” And much of the information leaked to the media via these authorized leaks “on the operation of the CIA's Detention and Interrogation Program and the effectiveness of its enhanced

interrogation techniques was inaccurate…,” the Senate report states. So, in essence, the CIA operated as a propaganda machine, utilizing classified information as part of a larger effort to deceive the American public about the shortcomings of its torture program, if the Senate report is to be believed. Now, none of this is really new in the big picture of how the government and the media work with respect to classified information. The simple rule to remember is that the higher up in the government the leaker is, the less risk they face. As far back as 1974, politicians were pointing out this basic flaw in the system. A Congressional Research Service (CRS) report released last year touches on the reality: As Representative William Moorhead, at the time chairman of the Foreign Operations and Government

Information Subcommittee of the House Government Operations Committee, stated in 1974: … On one hand, the full power of the Government’s legal system is exercised against certain newspapers for publishing portions of the Pentagon Papers and against someone like Daniel Ellsberg for his alleged role in their being made public. This is contrasted with other actions by top Executive officials who utilize the technique of "instant declassification" of information they want leaked. Sometimes it is an "off-the-record" press briefing or "backgrounders" that becomes "on-the-record" at the conclusion of the briefing or at some future politically

strategic time. That is how the game really works , and when you throw in a little deception, as the CIA is accused of doing in the case of its torture program, you often wind up with not only the continuation of bad policy, but also a basic undermining of the premise that democracy works best when the people are well informed. The reality is that if you are high enough up in the government, and have the power to classify and declassify information, you face little risk of prosecution if you cherry pick what national-security information to release outside the normal declassification process — for which there are tedious rules. And, according to a recent White House “background only” press briefing, the Obama administration’s stance is that the normal declassification process should be followed, as opposed to the “instant declassification” approach. A senior administration official told reporters gathered for the briefing on Tuesday, Dec. 9, when asked about the systematic release of classified information by the CIA, that there is a “very rigorous” process “that needs to be undertaken in order to declassify information and release it to the public.” “… We do believe that there’s value in declassification where we can provide additional transparency, but we believe that that should take place through normal channels and procedures,” the White House official added. Still, the reality on the ground is that preferring a

practice be followed isn’t enough. “… There is little to stop agency heads and other high-ranking officials from releasing classified information to persons without a security clearance when it is seen as suiting government needs,” the CRS report concludes. “The Attorney General has prosecutorial discretion to choose which leaks to prosecute. If in fact a case can be made that a senior official has made or authorized the disclosure of classified information, successful prosecution under current laws may be impossible….” On the other hand, there is no such de facto protection afforded a low-level government whistleblower who leaks classified information to the media that actually shines a light

on corruption or fraud. Solving this problem is not so easy, since crafting laws to contain it, and all the potential derivations of the practice, while still assuring press freedom, might be beyond the reach of our national politics. My best bet is that we simply reduce the volume of information deemed classified, so it’s less useful overall as a currency of deception and control in the bureaucracy, and start there. Until we evolve to that point, though, it is important to realize how the process works now. As a critical reader of media reports, it makes sense to use your nose. “The practice of authorized leaks of classified information “is anomalous to say the least,” FAS’ Aftergood said. “Once you declassify something, it’s supposed to be available to everyone, not just one reporter. But that’s not what happens, and so it smells bad.

Agency is key to changeKappeler 95 (Susanne, The Will to Violence, p. 10-11)`We are the war' does not mean that the responsibility for a war is shared collectively and diffusely by an entire society - which would be equivalent to exonerating warlords and politicians and profiteers or, as Ulrich Beck says, upholding the notion of `collective irresponsibility', where people are no longer held responsible for their actions, and where the conception of universal responsibility becomes the equivalent of a universal acquittal.' On the contrary, the object is precisely to analyse the specific and differential responsibility of everyone in their diverse situations. Decisions to unleash a war are indeed taken at particular levels of power by those in a position to make them and to command such collective action. We need to hold them clearly responsible for their

decisions and actions without lessening theirs by any collective `assumption' of responsibility. Yet our habit of focusing on the stage where the major dramas of power take place tends to obscure our sight in relation to our own sphere of competence, our own power and our own responsibility - leading to the well-known illusion of our apparent `powerlessness’ and its accompanying phenomenon, our so-called political disillusionment. Single citizens - even more so those of other nations - have come to feel secure in their obvious non-responsibility for such large-scale political events as, say, the wars in Croatia and Bosnia-Hercegovina or Somalia - since the decisions for such events are always made elsewhere. Yet our insight that indeed we are not responsible for the decisions of a Serbian general or a Croatian president tends to mislead us into thinking that therefore we have no responsibility at all, not even for forming our own judgement, and thus into underrating the responsibility we do have within our

own sphere of action. In particular, it seems to absolve us from having to try to see any relation between our own actions and those events, or to recognize the connections between those political decisions and our own personal decisions. It not only shows that we participate in what Beck calls `organized irresponsibility', upholding the apparent lack of connection between bureaucratically, institutionally, nationally and also individually organized separate competences. It also proves the phenomenal and unquestioned alliance of our personal thinking with the thinking of the major powermongers: For we tend to think that we cannot `do' anything, say, about a war, because we deem ourselves to be in the wrong situation; because we

are not where the major decisions are made. Which is why many of those not yet entirely disillusioned with

politics tend to engage in a form of mental deputy politics, in the style of `What would I do if I were the general, the prime minister, the president, the foreign minister or the minister of defence?' Since we seem to regard their mega spheres of action as the only worthwhile and truly effective ones, and since our

political analyses tend to dwell there first of all, any question of what I would do if I were indeed myself tends to peter out in the comparative insignificance of having what is perceived as `virtually no possibilities': what I could do seems petty and futile . For my own action I obviously desire the range of action of a general, a prime minister, or a General Secretary of the UN - finding expression in ever more prevalent formulations like `I want to stop this war', `I want military intervention', `I want to stop this backlash', or `I want a moral revolution." 'We are this war', however, even if we do not command the troops or participate in so-called peace talks, namely as Drakulic says, in our `non-

comprehension’: our willed refusal to feel responsible for our own thinking and for working out our own understanding, preferring innocently to drift along the ideological current of prefabricated arguments or less than innocently taking advantage of the advantages these offer. And we `are' the war in our `unconscious cruelty towards you', our tolerance of the `fact that you have a yellow form for refugees and I don't' - our readiness, in other words, to build identities, one for ourselves and one for refugees, one of our own and

one for the `others'. We share in the responsibility for this war and its violence in the way we let them grow

inside us, that is, in the way we shape `our feelings, our relationships, our values' according to the structures and the values of war and violence.

spillover

Torture disclosures lead to an increase in credibility – demonstrates self-supervision and courage Global Times 12/11 – a daily Chinese tabloid that covers international issues (2014, Global Times, “Despite torture report, US escapes censure”, http://www.globaltimes.cn/content/896126.shtml // SM)

Wednesday was the United Nations Human Rights Day. The Senate Intelligence Committee released Tuesday a report on CIA interrogation techniques, accusing the agency of collecting information through torture methods in its post-9/11 practices. The report is a declassified 525-page summary of a still-confidential 6,000-page document. The report comes as a bombshell that exploded just one day before Human

Rights Day, which not only reveals gross violations of human rights by the CIA, but also exhibits the "strong self-supervision" of the US. It captured the lion's share of global attention on Human Rights Day, but did nothing to jeopardize the US image . Few other countries can do the same. The US Senate took a rather tough attitude toward the CIA's gruesome interrogations of terrorism suspects. However, such infringements of human rights are considered the most forgivable by Westerners. Therefore, the Senate's censure is probably no more than mere moral scrutiny. Prisoner abuse scandals have been repeatedly exposed in the years after the 9/11 attacks. Although torturers were put on trial in exceptional cases, the US public did not heap much disapproval on them. Ben Emmerson, UN special rapporteur on counterterrorism and human rights, said Wednesday that individuals responsible for the criminal conspiracy and senior US officials who authorized torture must be prosecuted and penalized. Emmerson is widely considered too naïve. Former US president George W. Bush publicly defended the CIA in a statement he made to CNN. "We are fortunate to have men and women who work hard at the CIA serving on our behalf," Bush said. "These are patriots, and whatever the report says - if it diminishes their

contributions to our country - it is way off-base." This view apparently enjoys great popularity in US society. President Barack Obama is equivocal. He said the torture program was contrary to US values and did not prove effective in the fight against terror or in keeping Americans safe. He also promised to make sure that something similar won't happen again, as a response to global concerns about how the US will punish the torturers. We won't know how many secrets will disappoint the public in the rest of the document.

The US has powerful self-regulatory systems. There are many reports about prisoner abuse. But it's hard to say to

what extent this has damaged the US image. In many developing countries including China, there has even been applause for US democracy after the release of these reports. They have paid attention to the courage of the US rather than the crime of prisoner abuse.

US torture policy spills over globally—other nations look to USCJA 4- (The Center for Justice and Accountability, Amici Curiae in support of petitioners in Al Odah et al. v USA, "Brief of the Center for Justice and Accountability, the International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies," 3/10/4, Lexis)//WKWhile much of the world is moving to adopt the institutions necessary to secure individual rights, many still regularly abuse these rights. One of the hallmarks of tyranny is the lack of a strong and

independent judiciary. Not surprisingly, where countries make the sad transition to tyranny, one of the first victims is the judiciary. Many of the rulers that go down that road justify their actions on the basis of national security and the fight against terrorism, and, disturbingly, many claim to be modeling their actions on the United States . Again, a few

examples illustrate this trend. In Peru, one of former President Alberto Fujimori’s first acts in seizing control was to assume direct executive control of the

judiciary, claiming that it was justified by the threat of domestic terrorism. He then imprisoned thousands, refusing the right of the judiciary to intervene. International Commission of Jurists, Attacks on Justice 2000-Peru, August 13, 2001, available at ttp://www.icj.org/news.php3?id_article=2587&lang=en (last visited Jan. 8, 2004). In Zimbabwe, President Mugabe’s rise to dictatorship has been punctuated by threats of violence to and the co-opting of the judiciary. He now enjoys virtually total control over Zimbabweans' individual rights and the entire political system. R.W. Johnson, Mugabe’s Agents in Plot to Kill Opposition Chief, Sunday Times (London), June 10,

2001; International Commission of Jurists, Attacks on Justice 2002— Zimbabwe, August 27, 2002, available at http://www.icj.org/news.php3?id_article=2695⟨=en (last visited Jan. 8, 2004). While

Peru and Zimbabwe represent an extreme, the independence of the judiciary is under assault in

less brazen ways in a variety of countries today. A highly troubling aspect of this trend is the fact that in many of these

instances those perpetuating the assaults on the judiciary have pointed to the U nited S tates’ model to justify their actions . Indeed, many have specifically referenced the United States’ actions in detaining persons in Guantánamo Bay. For example, Rais Yatim, Malaysia's "de facto law minister" explicitly relied on the detentions at Guantánamo to justify Malaysia's detention of more than 70 suspected Islamic militants for over two years. Rais stated that Malyasia's detentions were "just like the process in Guantánamo," adding, "I put the equation with Guantánamo just to make it graphic to you that this is not simply a Malaysian style of doing things." Sean Yoong, "Malaysia Slams Criticism of Security Law Allowing Detention Without Trial," Associated Press, September 9, 2003 (available from Westlaw at 9/9/03 APWIRES 09 :34:00). Similarly, when responding to a United

States Government human rights report that listed rights violations in Namibia, Namibia's Information Permanent Secretary Mocks Shivute cited the Guantánamo Bay detentions, claiming that "the US government was the worst human rights violator in the world." BBC Monitoring, March 8, 2002, available at 2002 WL 15938703. Nor is this disturbing trend limited to these specific examples. At a recent conference held at the Carter Center in Atlanta, President Carter, specifically citing the Guantánamo Bay detentions, noted that the erosion of civil liberties in the United States has "given a blank check to nations who are inclined to violate human rights already ." Doug Gross, "Carter: U.S. human rights missteps embolden foreign dictators," Associated Press Newswires, November 12, 2003 (available from Westlaw at

11/12/03 APWIRES 00:30:26). At the same conference, Professor Saad Ibrahim of the American University in Cairo (who was jailed for seven years after exposing fraud in the Egyptian election process)

said, "Every dictator in the world is using what the United States has done under the Patriot Act . . . to justify their past violations of human rights and to declare a license to continue to violate human rights." Id. Likewise, Shehu Sani, president of the Kaduna, Nigeriabased Civil Rights Congress, wrote in the International Herald Tribune on September 15, 2003 that "[t]he insistence by the Bush administration on keeping Taliban and Al Quaeda captives in indefinite detention in Guantánamo Bay, Cuba,

instead of in jails in the United States — and the White House's preference for military tribunals over regular courts — helps create a free license for tyranny in Africa . It helps justify Egypt's move to detain human rights

campaigners as threats to national security and does the same for similar measures by the governments of Ivory Coast, Cameroon and Burkina Faso." Available at http://www.iht.com/ihtsearch.php?id=109927&owner=(IHT)&dat e=20030121123259. In our uni-polar world, the U nited S tates obviously sets an important example on these issues. As reflected in the

foundational documents of the United Nations and many other such agreements, the international community has consistently affirmed the value of an independent judiciary to the defense of universally

recognized human rights. In the crucible of actual practice within nations, many have looked to the United States

model when developing independent judiciaries with the ability to check executive power in the defense of individual rights . Yet others have justified abuses by reference to the conduct of the U nited S tates. Far more influential than the words of Montesquieu and Madison are the actions of the U nited S tates. This case

starkly presents the question of which model this Court will set for the world.

Impact

General

Torture helps terrorist recruiting and hurts our alliances – non-coercive methods are sufficient to solveHongju Koh 14 - Harold Hongju Koh is a professor of international law at Yale Law School and a founding editor of Just Security. He was legal advisor at the State Department from 2009 to 2013, and assistant secretary of state for democracy, human rights, and labor from 1998 to 2001. (12/12/2014, Harold, Foreign Policy, “The Torture Report Is Only the First Step”, http://foreignpolicy.com/2014/12/12/the-torture-report-is-only-the-first-step/ // SM)

The report recounts the myriad ways in which our torture proved deeply self-defeating. The program helped terrorist recruiting, devastated our international standing, and damaged our alliances . It punctured the faith of so many who wanted to believe in America’s exceptional leadership. Even if the program had produced any actionable intelligence, Brennan noted on

Thursday that the CIA no longer claims that the techniques produced credible information that could not be obtained through other means. And he said he “believe[d] effective non-coercive methods are available to elicit such information — methods that do not have a counterproductive impact on our national security and on our international standing.” In short,

the “torture debate” is over. The report teaches us that the costs of the program far outweighed any supposed benefits. We can no longer pretend that torture is somehow a necessary means to achieve some greater good. Nor, if the world continues to be populated by terrorist threats, is there is any way we can torture our way to security. And when torture is practiced regularly and systematically, it is no longer a means; it becomes the end in itself. As George Orwell wrote in Nineteen Eighty-Four: “The object of persecution is persecution. The object of torture is torture…. Now you begin to understand me.”

Bagram Scenario

Resolving US detention of third-country nationals solves --- it’s central to the BSA disputeRogers 13- Program Officer for the Regional Policy Initiative on Afghanistan & Pakistan at Open Society Foundations (Christopher, "Guest Post: Afghanistan Post-2014: Closing Bagram", November 14, justsecurity.org/2013/11/14/guest-post-afghanistan-post-2014-closing-bagram)//WKWith the U.S. combat role in Afghanistan coming to an end, and the Bilateral Security Agreement now under review, officials are under pressure to do something many observers may

believe was already done: end U.S. detentions at the Detention Facility in Parwan (DFIP), or Bagram . Though

the U.S. government recently handed over 3,000 Afghan detainees, more than 60 third country nationals, or TCNs,

remain in U.S. custody. U.S. officials have stated that resolving their cases is their goal, and that

December 2014 is the deadline. But right now the United States will likely fail to do so , possibly leaving detainees in indefinite limbo, and raising serious legal and political concerns for the U.S. presence in Afghanistan post-2014 .¶ Over the years, many have criticized U.S. detentions as inconsistent with applicable international human rights law and for failing to provide the requisite level of due process—all of which will take on new urgency as the United States brings an end to its combat mission in 2014. So too will concern over the legality of U.S. detentions under Afghan law, which has thus far

received too little attention. Such differences reflect deeper disagreement over post-2014 U.S. engagement.¶ Just last week, U.S. officials criticized the Afghan government’s recommendation to release many transferred detainees because of lack of evidence to prosecute or continue their detention under Afghan law. As outlined in a report last year by Open Society Foundations, an Afghan internment regime modeled on the U.S. system was initially proposed as part of the DFIP transfer, but appeared to violate several Afghan

constitutional guarantees. The dispute over the legality of the detention regime under Afghan law eventually led to a suspension of the Bagram handover and the Afghan government deciding against formally

adopting such a regime.¶ In consenting to U.S. detentions at the DFIP, the Afghan government has already been in violation of its own legal obligations under Afghan domestic law and constitution as well

international human rights law. With the United States bringing an end to its combat operations, and an Afghan presidential election on the horizon , Afghan leaders will likely view ongoing U.S. detentions as legally untenable and a political liability, which could jeopardize U.S.-Afghan relations at a critical time. ¶ This is a problem that is entirely avoidable if concerted action is taken now and over the next year to resolve TCN cases . The majority of the approximately 60 TCNs currently

held in limbo at Bagram are Pakistani. A recent report by the NGO Justice Project Pakistan (JPP) reveals how the U.S. and Pakistani have failed to put in place the policies, protocols, and political capital necessary to resolve these cases by the end of

combat operations. As JPP’s report documents, even after the handover of the DFIP to the Afghans in March 2013, progress on TCNs has been excruciatingly slow. Six Pakistani detainees have been slated for repatriation to Pakistan for almost a

year, yet remain in detention, a clear violation of their rights under IHL and IHRL. Negotiation over the fate of dozens more shows little signs of progress.¶ There are several specific steps that the United States can take to ensure it closes down Bagram by the time it ends combat operations next year. It should commit to a public timeline to resolve detainees’ cases and standardize the terms of repatriation, which could greatly expedite the negotiation process and make the U.S. and other governments more accountable for progress.¶ More sustained, strategic attention is also needed at higher levels within the U.S. government. The Special Representative on Afghanistan and Pakistan should press high-level Pakistani officials to commit to an agreed upon timetable for repatriation negotiations. Doing so would compel higher-level Pakistani officials to take ownership over the issue and send a signal down the chain of the Pakistani government. The recently appointed Defense Department Special Envoy

for Guantanamo Closure, who will also be responsible for transferring TCNs held in Afghanistan, could press for higher-level

engagement among the United States and the detainees’ home countries.¶ Ongoing U.S. detention of TCNs at the DFIP ultimately points to persistent uncertainty regarding U.S. engagement in Afghanistan post-2014 and the inescapable challenge of reconciling U.S. interests and influence with Afghan law and sovereignty. What will be the scope of U.S. detention and targeting operations, and what will be the legal

authority under international, U.S., and Afghan law for such operations? What does the end of U.S. combat operations mean for U.S. counter-terrorism operations in Afghanistan? How will U.S. operations be

reconciled with Afghan sovereignty and the Afghan government’s own legal obligations?¶ Recent reports indicate that the BSA negotiations hit an impasse in part due to dispute over U.S. authority to conduct unilateral operations after 2014. In a little-noticed operation in September, U.S. forces captured Pakistani Taliban commander Latifullah Mehsud. Not only did the operation occur without Afghan sign-off (President Karzai strongly objected, calling it a violation of Afghan law and sovereignty) but Latifullah was reportedly forcibly taken from Afghan intelligence officials’ custody,

and transferred to U.S. detention at Bagram. Though the BSA will now reportedly require the U.S. to “consult” Afghan authorities before launching operations, Latif’s capture and the political row it caused show that despite purported agreements, there are fundamental differences over the permissible scope and legality of U.S. detentions and military operations .¶ Unfortunately, ambiguity around these questions has often suited the United States.—and at times, Afghanistan—

allowing officials to paper over differences , as has happened time and again with Bagram. Whatever language is agreed to in the BSA, the United States and Afghanistan should make clear how all aspects of U.S. engagement post-2014 will be consistent not only with U.S. legal obligations, but also with Afghan law and international legal obligations.¶ Doing so, and

bringing an end to the U.S. war in Afghanistan , will be impossible without resolving TCN cases and ending U.S. detentions at Bagram. If concerted action is taken now, the United States can do so, and make sure Bagram does not become an even greater legal and political challenge after 2014 .

Central Asia Impact

The impact is Central and Pakistan instability --- goes nuclearCurtis 13- (Lisa, Heritage Foundation, “Nato's total withdrawal from Afghanistan could rock Asia stability”, 11-18 http://www.heritage.org/research/commentary/2013/11/natos-total-withdrawal-from-afghanistan-could-rock-asia-stability)//WKAnalysts warn that the recent increase in al-Qaeda violence in Iraq should serve as a warning that failure to maintain a residual force in Afghanistan would increase instability throughout South and Central Asia. ¶ If the Taliban were able to re-assert power in Afghanistan, it would embolden militants in Pakistan and increase the risk of extremists gaining access to Islamabad’s nuclear weapons . ¶ An absence of international troops in Afghanistan post-2014 would also leave the door open for the Islamic Movement of Uzbekistan to gain a foothold in northern Afghanistan, from where it could launch operations into Central Asia. ¶ ‘We cannot risk allowing the Taliban to retake control of Afghanistan,’ said Ileana Ros-Lehtinen, chair of the US’s House Subcommittee on the Middle

East and North Africa, at a congressional hearing in October 2013. ‘This could also lead to al-Qaeda regrouping and stepping up terrorist activities using its safe havens in Pakistan as a staging post, posing a real danger to our national security interests and those of our allies in the region.’ ¶ The threat is most acute for Pakistan, a nuclear-armed nation of 180 million, where there is real concern over nuclear weapons falling into the hands of extremists . Pakistan’s nuclear weapons arsenal is one of the fastest growing in the world today. -It has around 100 warheads. ¶ The traditional Loya Jirga (assembly of tribal elders) will meet in Kabul (November 18 – 21) to decide whether to approve the BSA. If the Jirga is in favour and the BSA is finalised, the US and its Nato partners are likely to leave an international force of about 10,000 – 15,000 troops to help fight extremist elements and train and

advise the Afghan National Security Forces. ¶ The US decision on the number of troops will be watched closely by Afghanistan’s neighbours as it will determine the extent to which various Islamist extremist groups are able to thrive in Afghanistan and use it as a base from which to export their ideology and violence. ¶ A Taliban victory in Afghanistan would have a blowback effect in Pakistan and embolden terrorist elements there. ¶ There are a variety of terrorist groups based in Pakistan’s tribal areas, including the Haqqani network, Tehrik-e-Taliban Pakistan (TTP), and the Islamic Movement of Uzbekistan (IMU), all of which have links to the Taliban and al-Qaeda. ¶ Fred Kagan, of the US-based think tank the American Enterprise Institute, said at the congressional hearing that an absence of international troops in Afghanistan post-2014 would leave the door open for Haqqani

militants to re-establish their bases in eastern Afghanistan and for the IMU to gain a foothold in northern Afghanistan. ¶ There is concern that the IMU would use its base in Afghanistan to launch operations into Central Asian states, particularly Tajikistan and Uzbekistan. ¶ Russia also is concerned that a complete withdrawal of US and Nato forces from Afghanistan could embolden jihadist elements in Afghanistan that would, in turn, export Islamist ideology and violence to the north.

Pakistan instability causes loose nukes and Indian intervention --- goes nuclearO’Hanlon 5- senior fellow with the Center for 21st Century Security and Intelligence and director of research for the Foreign Policy program at the Brookings Institution, visiting lecturer at Princeton University, an adjunct professor at Johns Hopkins University, and a member of the International Institute for Strategic Studies PhD in public and international affairs from Princeton, (Michael, Apr 27 2005, “Dealing with the Collapse of a Nuclear-Armed State: The Cases of North Korea and Pakistan,” http://www.princeton.edu/~ppns/papers/ohanlon.pdf)//WK

Were Pakistan to collapse, it is unclear what the United States and like-minded states would or should do. As with North

Korea, it is highly unlikely that “surgical strikes” to destroy the nuclear weapons could be conducted before extremists could make a grab at them . The United States probably would not know their location – at a minimum, scores of sites controlled by Special Forces or elite Army units would be presumed candidates – and no Pakistani government would likely help external forces with targeting information. The chances of learning the locations would probably be greater than in the North Korean case, given the greater openness of Pakistani society and its ties with the outside world; but U.S.-Pakistani military cooperation, cut off for a decade in the 1990s, is still quite modest, and the likelihood that Washington would be provided such information or otherwise obtain it should be considered small.¶ If a surgical strike, series of surgical strikes, or commando-style raids were not possible, the only option would be to try to restore order before the weapons could be taken by extremists and transferred to terrorists. The United States and other outside powers might, for example, respond

to a request by the Pakistani government to help restore order. Given the embarrassment associated with requesting such outside help, the Pakistani government might delay asking until quite late, thus

complicating an already challenging operation. If the international community could act fast enough, it might help defeat an insurrection. Another option would be to protect Pakistan’s borders, therefore making it harder to sneak nuclear weapons out of the country, while only providing technical support to the Pakistani armed forces as they tried to quell the insurrection. Given the enormous stakes, the United States would literally have to do anything it could to prevent nuclear weapons from getting into the

wrong hands.¶ India would, of course, have a strong incentive to ensure the security of Pakistan’s nuclear weapons. It also would have the advantage of proximity; it could undoubtedly mount a large response within a week , but its role would be complicated to say the least. In the case of a dissolved Pakistani state, India likely would not hesitate to intervene; however, in the more probable scenario in which Pakistan were fraying but not yet collapsed,

India’s intervention could unify Pakistan ’s factions against the invader, even leading to the deliberate use of Pakistani weapons against India . In such a scenario, with Pakistan’s territorial integrity and sovereignty on the line and its weapons put into a “use or lose” state by the approach of the Indian Army, nuclear dangers have long been considered to run very high.

Indo-pak causes extinctionChaffin 11- (Greg, Research Assistant at Foreign Policy in Focus, July 8, 2011, “Reorienting U.S. Security Strategy in South Asia,” online: http://www.fpif.org/articles/reorienting_us_security_strategy_in_south_asia)//WKThe greatest threat to regional security (although curiously not at the top of most lists of U.S. regional concerns) is the possibility that

increased India-Pakistan tension will erupt into all-out warthat could quickly escalate into a nuclear exchange. Indeed, in just the past two decades, the two neighbors have come perilously close to war on several occasions.

India and Pakistan remain the most likely belligerents in the world to engage in nuclear war . Due to an Indian preponderance of conventional forces, Pakistan would have a strong incentive to use its nuclear arsenal very early on before a routing of its military installations and weaker conventional forces. In the event of conflict, Pakistan’s only chance of survival would be the early use of its nuclear arsenal to inflict unacceptable damage to Indian military and (much more likely) civilian targets. By raising the stakes to unacceptable levels, Pakistan would hope that India would step away from the brink. However, it is

equally likely that India would respond in kind, with escalation ensuing. Neither state possesses tactical nuclear weapons, but both possess scores of city-sized bombs like those used on Hiroshima and

Nagasaki. Furthermore, as more damage was inflicted (or as the result of a decapitating strike), command and control elements would be disabled, leaving individual commanders to respond in an environment increasingly clouded by the fog of war and decreasing the likelihood that either government (what would be left of them) would be

able to guarantee that their forces would follow a negotiated settlement or phased reduction in hostilities. As a

result any suchconflict would likely continue to escalate until one side incurred an unacceptable or wholly debilitating

level of injury or exhausted its nuclear arsenal . A nuclear conflict in the subcontinentwould have disastrous effects on the world as a whole. In a January 2010 paper published in Scientific American, climatology

professors Alan Robock and Owen Brian Toon forecast the global repercussions of a regional nuclear war. Their results are strikingly similar to those of studies conducted in 1980 that conclude that a nuclear war

between the United States and the Soviet Union wouldresult in a catastrophic and prolonged nuclear winter ,which could very well place the survival of the human race in jeopardy . In their study, Robock and Toon use computer models to simulate the effect of a nuclear exchange between India and Pakistan in which each were to use roughly half their

existing arsenals (50 apiece). Since Indian and Pakistani nuclear devices are strategic rather than tactical, the likely targets would be major population centers. Owing to the population densities of urban centers in both nations, the number of direct casualties could

climb as high as 20 million. The fallout of such an exchange would not merely be limited to the immediate area. First, the detonation of a large

number of nuclear devices would propel as much as seven million metric tons of ash, soot, smoke, and debris as high as the lower stratosphere. Owing to their small size (less than a tenth of a micron) and a lack of precipitation at

this altitude, ash particles would remain aloft for as long as a decade , during which time the world would remain perpetually overcast. Furthermore, these particles would soak up heat from the sun, generating intense heat in

the upper atmosphere that would severely damage the earth’s ozone layer . The inability of sunlight to penetrate through the smoke and dust would lead to global cooling by as much as 2.3 degrees Fahrenheit. This shift in

global temperature would lead to more drought, worldwide food shortages, and widespread political upheaval. Although the likelihood of this doomsday scenario remains relatively low, the consequences are dire enough to warrant greater U.S.

and international attention. Furthermore, due to the ongoing conflict over Kashmir and the deep animus held between India and Pakistan, it might not take much to set them off . Indeed, following the successful U.S. raid on bin Laden’s compound, several members of India’s security apparatus along with conservative politicians have argued that India should emulate the SEAL Team Six raid and launch their own cross-border incursions to nab or kill anti-Indian terrorists, either preemptively or after the fact. Such provocative action

could very well lead to all-out war between the two that could quickly escalate .

Guantanamo

Gitmo is on the brink of closure now - new envoy proves Spetalnick 7/1 (Matt Spetalnick, July 1, 2015, Reuters, U.S. names new envoy for bid to close Guantanamo prison, http://uk.reuters.com/article/2015/07/01/uk-usa-guantanamo-idUKKCN0PB34K20150701) //JS A newly appointed special envoy to lead the Obama administration’s efforts to close the Guantanamo prison said he saw a window of opportunity that could substantially reduce the detainee population there in coming months. Secretary of State John Kerry on Tuesday named attorney Lee Wolosky, who served in the National Security Council under the administrations of both Bill Clinton and George W. Bush, to a post considered crucial to meeting

President Barack Obama’s long-standing promise to shut the internationally condemned jail at the U.S. naval base in Cuba. The appointment marked the latest step in Obama’s slow push to close the detention centre where terrorism suspects rounded up overseas after the Sept. 11, 2001, attacks have been held for years, mostly without charges or trial. Wolosky replaces Clifford Sloan, who stepped down at the end of last year after 18 months in the job. He will be the State Department’s point man to negotiate the repatriation of Guantanamo prisoners or their transfers to other countries. Though

Obama continues to face obstacles from U.S. lawmakers to his long-time goal of emptying the prison, he has whittled Guantanamo’s inmate population to 116, less than half the number when he took office in 2009. But the process has moved haltingly. The latest transfer, six Yemenis sent to Oman in mid-June, followed a five-month pause in such

movements. “We have a window in the coming months to work diligently with our friends and allies to reduce substantially and responsibly the detainee population at Guantanamo, as part of the president's policy of closing the facility by the end of his term,” Wolosky said in a statement. Kerry said Wolosky was “ideally qualified to continue the hard diplomatic engagement” required to close the jail, which was opened by Obama's predecessor, George W. Bush. Obama promised to shut it when he took office in 2009, citing the damage it inflicted on America's image around the world. He has often renewed his pledge, but lawmakers have restricted his ability to transfer prisoners and have barred him from moving them to the U.S. mainland.

US indefinite detention policy at Guantanamo undermines international lawPearlman 15- J.D. Candidate, 2015, at Seattle University School of Law and the Executive Editor of Notes & Comments of the Seattle University Law Review (Samantha, “Human Rights Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of International Norms”, Seattle University Law Review, http://seattleuniversitylawreview.com/files/2015/04/7Pearlman-Final.pdf)//WK

Detention is a security and military necessity because it prevents the enemy from once again attacking the United States;124 therefore, the U.S. government’s position is that “[t]he law of war allows the [United States] . . . to hold enemy combatants without charges or access to counsel for the duration of hostilities . . . .”125 The United States does not classify Guantánamo detainees as prisoners of war because their internment would then be regulated by the Third Geneva Convention, nor are detainees classified as “enemy aliens” subject to internment under the Fourth Geneva Convention.126 By classifying detainees as “enemy combatants,” the United States has justified its stance that prisoners may be held indefinitely; the UN is in agreement that an individual may be detained for the remainder of hostilities to prevent them from taking up arms against the state.127 The UN, however, considers the indefinite detention of Guantánamo detainees without being charged or offered access to counsel for the duration of current hostilities (the War on Terror) “a radical departure from established principles of human rights law,” and noted the important difference between those detainees captured in the course of an armed conflict versus those captured under circumstances that do not

amount to an armed conflict.128 The UN—as opposed to the United States—has determined that the War on Terror does not constitute an armed conflict under international humanitarian law.129 Thus, the United States’ classification of the War on Terror as an armed conflict has undermined crucial parts of international humanitarian law as well as international human rights law .130 Therefore, the United States’ human rights policy is in conflict with its responsibilities under international law. Although there may be a legal basis in international humanitarian law to detain individuals in time of war, the UN does not consider the War on Terror an armed conflict;131 additionally, there is no end in sight to this conflict. The United States has responded to claims of human rights violations stating simply that the law of armed conflict allows the United States to hold the detainees until the end of hostilities.132

Senate Intelligence Committee reports lead to detainee release—Gitmo provesPearlman 15- J.D. Candidate, 2015, at Seattle University School of Law and the Executive Editor of Notes & Comments of the Seattle University Law Review (Samantha, “Human Rights Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of International Norms”, Seattle University Law Review, http://seattleuniversitylawreview.com/files/2015/04/7Pearlman-Final.pdf)//WKThe Obama Administration has faced growing criticism for its failure to close the facility at Guantánamo Bay. Although some detainees have slowly been sent back to other countries, there are still over one hundred people detained at the facility. The President mentioned Guantánamo only once in his January 2014 State of the Union Address, and he pinned the lack of closure on Congress when he stated: [W]ith the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay—because we counter terrorism not just through intelligence and military action, but by remaining true to our constitutional ideals, and setting an example for the rest of the world. Thus, the facility remains in a state of limbo, as do the detainees. Finally, in late 2014, the U.S. Senate Intelligence Committee issued a report on the C.I.A.’s controversial treatment of Guantánamo Bay detainees. The report highlighted the problematic and illegal use of torture by the C.I.A. and established that most of the information gained through interrogation techniques was not of significant value or was unreliable. The report brought the spotlight back to Guantánamo Bay and , consequently, forced the Obama Administration to once again begin the transfer of prisoners—despite the potentially unsafe conditions detainees may face upon return to their home countries.

legitimacy

US torture undermines international treaty obligationsBae and Zanocco 7- *J.D. candidates at Cornell Law School (Hana and Courtney, “Boumediene v. Bush (06-1195); Al Odah v. United States (06-1196)”, Legal Information Institute at Cornell University Law School, https://www.law.cornell.edu/supct/cert/06-1195)//WKAmici for the detainees argue that international law entitles detainees to certain fundamental rights, even if the Constitution does not apply to them. The International Humanitarian Law Experts ("IHLE") amicus brief argues that the Geneva Conventions, which the United States played a lead role in drafting, are universally accepted. The Geneva Conventions aim to "protect[] persons who do not, or who can no longer, participate in hostilities," including prisoners of war and civilians. The IHLE brief notes in particular Common Article 3, which protects requires a "regularly constituted court" to provide judicial guarantees to those no longer engaged in hostilities. The failure of the United States to follow the Geneva Conventions "weakens the entire international legal regime and invites other signatories to disregard their own treaty obligations ." By refusing to apply the Conventions to detainees, the United States harms its ability to insist that the Conventions protect Americans detained during overseas conflicts. Other amici argue that the United States violates international standards by withholding habeas rights from detainees. The United Nations High Commissioner for Human Rights argues that Article 9 of the International Covenant on Civil and Political Rights ("ICCPR") requires that detainees must have access to a court that provides basic procedural guarantees of a fair hearing to review contest the legality of their detention. "Continued detention without justification and review," the High Commissioner argues, is "inherently arbitrary." CSRTs do not qualify as "courts" under the ICCPR, and they provide insufficient review. Amici maintain that the United States ratified the ICCPR and is therefore bound by these agreed-upon international obligations.

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

In that sense, the Senate report isn't only a revelation of U.S. intelligence malfeasance -- it's a testimony to U.S. soft power, the diplomatic advantage that it has long wielded over geo-political competitors such as Russia and China. One need only compare Washington's success at finding international hosts for the CIA's so-called black sites with Russia's utter inability to persuade the world -- aside from a small handful of countries including Cuba, Venezuela and Syria -- to recognize its annexation of Crimea. But it's an open question whether soft power can survive being used

to such grotesque ends. One of the many reasons for which the torture program was a terrible idea was that once exposed it has deeply damaged the U.S. brand and thus eroded U.S. alliances :

Forced rectal feeding just isn't something that most people associate with the values of life, liberty and the pursuit of happiness . As many have pointed out, one great benefit of the Senate report is that it has demonstrated the ability of the U.S. political system to subject itself to scrutiny -- a test that most democracies, and all autocratic regimes, routinely fail. Taken as a whole, people aren't naïve. They

understand governments do bad things and pursue their own selfish interests abroad. So when a country confesses and tries to rectify the transgression, people are impressed. If the U.S. goes on to prosecute those who approved and used the most extreme torture methods, that would do still more to repair the damage. But it's worth remarking that torture is

not the only national security policy that poses a threat to U.S. alliances. Friendly governments are still being asked to trust in the good judgment and good offices of the U.S. intelligence agencies, as well as in their effective oversight , even when there's reason to question whether that trust is being honored.

US detention policies hurt legitimacy Welsh 11 (David is a J.D. at the University of Utah, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, http://law.unh.edu/assets/images/uploads/publications/unh-law-review-vol-09-no2-welsh.pdf)//ccThe Global War on Terror has been ideologically framed as a struggle between the principles of freedom and democracy on the one hand and tyranny and extremism on the other.2 Although this war has arguably led to a short-term disruption of terrorist threats such as al-Qaeda, it has also damaged America’s image both at home and abroad.3 Throughout the world, there is a growing consensus that America has “a lack of credibility as a fair and just world leader.”4 The perceived legitimacy of the United States in the War on Terror is critical because terrorism is not a conventional threat that can surrender or can be defeated in the traditional sense. Instead, this battle can only be won through legitimizing the rule of law and undermining the use of terror as a means of political influence.5 Although a variety of political, economic, and security policies have negatively impacted the perceived legitimacy of the United States, one of the most damaging has been the detention, treatment, and trial (or in many cases the lack thereof) of suspected terrorists. While many scholars have raised constitutional questions about the legality of U.S. detention procedures,6 this article offers a psychological perspective of legitimacy in the context of detention.

US policy shapes international normsKeating 13- Assistant Professor in International Relations at Syddansk Universitet (Vincent Charles, “Contesting the International Illegitimacy of Torture: The Bush Administration’s Failure to Legitimate its Preferences within International Society”, 7/30/13, The British Journal of Politics & International Relations Volume 16, Issue 1, pages 1–27)//WKThe Bush administration’s focus on justification over innovation strategies was also reflected within the Bush administration’s legal legitimation strategies, where it stressed that its treatment of detainees was in line with the Geneva Conventions, and, for the first time, international human rights law. There were also generalized statements that contended that the administration was acting in accordance with ‘international law’, the law in general, or a combination of international and domestic law, all of which merely made the claim without explaining how this was the case. There were also some open attempts at legal norm innovation. For instance, the Bush administration continued to promote the norm entrepreneurial idea that the detainees should not be covered under the Geneva Conventions. Additionally, from the perspective of international human rights law, it argued that there were geographical limits to the applicability of the Convention Against Torture that did not correspond to Guantanamo Bay. The reaction within international society to the reports of mistreatment were mixed, suggesting that the Bush administration was somewhat successful in legitimating its preferences given the jus cogens prohibition of torture. There were certainly

states that made statements opposed to the Bush administration’s actions and discourse. Some states claimed that they were shocked by the abuse, called for investigations, warned of the trade-offs between counterterrorism and humanrights, or openly worried about the potential harm done to the international system by US conduct. States with poor human rights records were particularly outspoken, and used the opportunity to openly characterise the US abuses as torture. These states also suggested that the United States was therefore not in a position to reprimand them and should focus more on its own problems, sometimes explicitly because it had lost the moral high ground to make accusations of torture against other states. International organisations were similarly hostile to US legitimation claims. They called for investigations, argued that the United States had lost its moral high ground because of the mistreatment, and reminded the United States not to make trade-offs between counterterrorism and human rights. Unlike all other actors within international society, some also openly argued that torture was ineffective as an interrogation method, and therefore should not be used. Importantly, all of these responses upheld the norm that torture should not be used, suggesting that the Bush administration failed to legitimate its discourse or conduct within international society. On the other hand, some states within the liberal zone echoed the moral legitimation discourses of the Bush administration, reflecting on how the extraordinary threat posed by terrorism might require new intelligence-gathering methods. Other liberal states supported the Bush administration’s claim that there was no systematic abuse, arguing that there were proper procedures in place to prevent abuse, or claiming that the United States had given them reassurances that torture was not taking place, claims that should be taken seriously either because the United States was a democracy or because their state had a good relationship with the United States. There is also some evidence that states within the liberal zone did not want to publically engage with the issue. This is best demonstrated by Western government efforts to prevent Cuba from bringing a United Nations Human Rights Commission resolution to the table that would have called on the Commission to investigate conditions at Guantanamo Bay. Given the widespread media coverage of clearly torturous acts and the jus cogens nature of the norm, these particular responses from liberal states lend evidence that the United States might have been successful in legitimating its preferences and had undermined the regime . Very few states appealed to international law in their legitimation strategies. Some suggested that the US was not respecting international norms, but few, and only those states with poor human rights records themselves, challenged the US interpretation of international law. Conversely, international organisations were significantly more active. They argued that US conduct did not respect international human rights law or international law in general. Some reminded the United States of the doctrine of command responsibility in human rights abuses, classified certain techniques used by the United States as being legally torture or tantamount to torture,76and argued that the United States did not have the legal competence to define torture. Though there was clear opposition from international organisations, some of the state discourses indicate a leniency towards US conduct, suggesting a norm that had been weakened by US conduct and legitimation strategies . This is particularly the case given that the states echoing the Bush administration legitimation strategies included several liberal democracies. There is some evidence that the United States was putting pressure on its allies to prevent criticism. In 2004, a European diplomat speaking to the abuse in Iraq noted that, ‘It’s very clear they want European governments to stop pushing on this. They were stuck on the defensive for weeks, but suddenly the line has toughened up incredibly’ (Henderson 2005). As such, coercion may partially explain the mixed messages from liberal states. If this coercion explains the duality in response, then

the primary question would be to see whether this ambiguity turns into acceptance over time, reflecting states voluntarily coming to the side of the Bush administration by being socialised into the coerced position, as suggested by Brooks and Wohlforth.

The report on CIA torture threatens international relations – exacerbates anti-Americanism and creates political dilemmas for alliesHammond 14 – Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics, and a former UK

Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, “US Senate report on CIA torture threatens international relations”, http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatens-international-relations-20141210-1243ol.html // SM)

Important as these domestic consequences might be, the international ramifications could potentially be bigger. It is for this reason that Secretary of State John Kerry asked Feinstein, unsuccessfully, in recent days to once again delay

publication. Firstly, publication will embarrass those foreign states, in Europe and beyond, which aided the Bush administration and CIA, even though their specific country names are redacted in the Senate publication.

Secondly, although the findings are disputed by many ex-Bush officials, it is likely that publication of the summary report will inflame anti-Americanism in numerous countries. This is despite the fact that the techniques are now a historical relic inasmuch as Obama ruled at the start of his term, almost six years ago, that the CIA could no

longer employ them. In the immediate term, there are concerns that the disclosures could lead to attacks against US facilities and personnel abroad. According to Congressman Mike Rogers, the Republican Chair

of the House of Representatives Intelligence Committee, warnings to this effect have already come from foreign governments about potential "violence and deaths" in their countries, and additional US security measures have been introduced as a result.

CIA torture revelations diminish soft power and human rights credibilityDooley 15 - Director, Human Rights First's Human Rights Defenders Program (1/1/2015, Brian, Huffington Post, “CIA Torture's Immeasurable Damage to U.S. Global Leadership”, http://www.huffingtonpost.com/brian-dooley/cia-tortures-immeasurable_b_6404530.html // SM)

Last month's revelations about CIA torture have hurt U.S. credibility worldwide. The Senate Intelligence Committee's report on CIA Interrogation concluded the program "created tensions with U.S. partners and allies...complicating bilateral intelligence relationships." It said the program caused "immeasurable damage to the United States' public standing, as well as to the United States' longstanding global leadership on human rights in general...." Immeasurable is right -- in a literal sense it's impossible to gauge just how badly Washington's international U.S. image has been hurt by the CIA's torture. The CIA was

never among the world's most trusted global brands, even among U.S. allies, but torture revelations have diminished U.S. claims to moral leadership and reduced its "soft power." An editorial in influential Spanish newspaper

El Pais argued that the revelations mean the U.S. can no longer present itself as "a beacon of freedom."

US legitimacy is collapsing due to treatment of detaineesWelsh 11- J.D. from the University of Utah (David, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, http://law.unh.edu/assets/images/uploads/publications/unh-law-review-vol-09-no2-welsh.pdf)//WKThe Global War on Terror 1 has been ideologically framed as a struggle between the principles of

freedom and democracy on the one hand and tyranny and extremism on the other. 2 Although this war has

arguably led to a short-term disruption of terrorist threats such as al-Qaeda , it has also damaged America’s image both at home and abroad . 3 Throughout the world, there is a growing consensus that America has “a lack of credibility as a fair and just world leader .” 4 The perceived legitimacy of the United States in the War on Terror is critical because terrorism is not a conventional threat that can surrender or can be defeated in the traditional sense. Instead, this battle can only be won through legitimizing the rule of law and undermining the use of terror as a means of

political influence. 5 ¶ Although a variety of political, economic, and security policies have negatively impacted the perceived legitimacy of the United States, one of the most damaging has been the detention, treatment, and trial (or in many cases the lack thereof) of suspected terrorists . While many scholars have raised constitutional questions about the legality of U.S. detention procedures, 6 this article offers a psychological perspective of legitimacy in the context of detention.

US torture undermines international treaty obligationsBae and Zanocco 7- *J.D. candidates at Cornell Law School (Hana and Courtney, “Boumediene v. Bush (06-1195); Al Odah v. United States (06-1196)”, Legal Information Institute at Cornell University Law School, https://www.law.cornell.edu/supct/cert/06-1195)//WKAmici for the detainees argue that international law entitles detainees to certain fundamental rights, even if the Constitution does not apply to them. The International Humanitarian Law Experts ("IHLE") amicus brief argues that the Geneva Conventions, which the United States played a lead role in drafting, are universally accepted. The Geneva Conventions aim to "protect[] persons who do not, or who can no longer, participate in hostilities," including prisoners of war and civilians. The IHLE brief notes in particular Common Article 3, which protects requires a "regularly constituted court" to provide judicial guarantees to those no longer engaged in hostilities. The failure of the United States to follow the Geneva Conventions "weakens the entire international legal regime and invites other signatories to disregard their own treaty obligations ." By refusing to apply the Conventions to detainees, the United States harms its ability to insist that the Conventions protect Americans detained during overseas conflicts. Other amici argue that the United States violates international standards by withholding habeas rights from detainees. The United Nations High Commissioner for Human Rights argues that Article 9 of the International Covenant on Civil and Political Rights ("ICCPR") requires that detainees must have access to a court that provides basic procedural guarantees of a fair hearing to review contest the legality of their detention. "Continued detention without justification and review," the High Commissioner argues, is "inherently arbitrary." CSRTs do not qualify as "courts" under the ICCPR, and they provide insufficient review. Amici maintain that the United States ratified the ICCPR and is therefore bound by these agreed-upon international obligations.

Mexico relations

Injustices in US torture policy spills to immigrant detainee rightsFaisal 12- Harvard graduate with honors in Government, (Farha Aziz, “Due Process Protections in the War on Terrorism: A Comparative Analysis of Security - Based Preventive Detention in the United States and the United Kingdom”, March, http://www.gov.harvard.edu/files/IR%20thesis%202.pdf)//WKOverall, this thesis provides insight into how the structure of political institutions interacts with legal frameworks during emergencies to contribute to the formulation of preventive detention systems. Beyond explaining the mechanisms of such interactions, this thesis contributes to an understanding of how political

structures impact human r ights within the broader context of security policy making. The findings of this investigation are instructive for answering a number of questions regarding the relationship between decision-making and the protection of human rights.¶ Beyond the theoretic al contributions of this study, this research

has significant real - world implications. Given the rise of global terrorism within the past decade, states may need to create preventive detention systems. The findings of this research can identify the processes of such decision - making and selection

of legal framework that are likely to result in preventive detention with sufficient due process protections for

terrorist suspects. This is more important than ever before since an increase in the level of terrorism

worldwide suggests that more suspects, including many innocent individuals, could be detained for purely

security reasons. Accordingly, it is vital that states adopt detention systems that protect the fundamental

human right to due process guaranteed under the rule of law. Moreover, the findings of this research can be generalized beyond security-detention, to the policy - formulation of detention regimes relating to immigration detention, pre-trial detention, and health -based quarantines . In each of these areas, the policy implications from this research could provide meaningful input in creating systems sensitive to

and protective of due process.

Immigrant detainee rights are the key issue for US-Mexico relationsLovato 9- a New York-based contributing Associate Editor with New America Media and a frequent contributor to The Nation Magazine. He's also written for the Los Angeles Times, Salon, Der Spiegel, Utne Magazine, La Opinion, and other national and international media outlets. He has also appeared as a source and commentator on English and Spanish language network news shows on Univision, CNN, PBS and other programs and made a recent appearance on Bill Moyers Journal. Lovato was the former Executive Director of CARECEN, which was the largest immigrant rights organization in the country (Roberto, “U.S. Immigration Policies Bring Global Shame on Us”, 2/26/09, http://ofamerica.wordpress.com/2009/02/26/us-immigration-policies-bring-global-shame-on-us/)//WKThe proliferation of stories in international media and in global forums about the Guantanamo-like problems in the country’s immigrant detention system- death, abuse and neglect at the hands of detention

facility guards; prolonged and indefinite detention of immigrants (including children and families) denied habeas corpus and other fundamental rights; filthy, overcrowded and extremely unhealthy facilities; denial of

basic health services – are again tarnishing the U.S. image abroad, according to several experts. As a

result, reports from Arizona and immigrant detention facilities have created a unique problem: they are making it increasingly difficult for Obama to persuade the planet’s people that the United States is ready claim exceptional leadership on human rights in a soon-to-be-post-Guantanamo world. Consider the case of

Mexico. Just last week, following news reports from Arizona, the Mexican government , which is traditionally silent or

very tepid in its criticism of U.S. immigration and other policies, issued a statement in which it “energetically

protested the undignified way in which the Mexicans were transferred to ‘Tent City’” in Maricopa

County. David Brooks, U.S correspondent for Mexico’s La Jornada newspaper, believes that immigrant detention stories hit Mexicans closer to home because those reportedly being abused in detention are not from a far off country ; they are family, friends, neighbors and fellow citizens. In the same way that Guantanamo erased the idea of U.S. leadership in human rights in the Bush era, says Brooks, who was born in

Mexico, practices in immigrant detention facilities like those reported by global media in Maricopa County may begin to do so in the Obama era if something does not change. “Mexicans have

never seen the U.S. as a great model for promotion of human rights. But with Obama we take him at his word. We’re expecting some change,” said Brooks. “But that will not last long if we see him continuing Bush’s

[immigration] policies: raids, increasing detention, deportation. Regardless of his excuse, he will quickly become mas de

lo mismo (more of the same) in terms of the experience down south.” If uncontested, the expression of such sentiments far beyond Mexico and Mexican immigrants could lead to the kind of American exceptionalism Obama doesn’t want. In a March 2008 report, Jorge Bustamante, the United Nations Special Rapporteur on Human Rights of Migrants, concluded that “the United States has failed to adhere to its international obligations to make the human rights of the 37.5 million migrants living in the country a national priority, using a comprehensive and coordinated national policy based on clear international obligations.” Asked how his report was received in different countries, Bustamante said, “The non-governmental organizations have really responded. In the United States and outside the United States- in Mexico, in Guatemala, in Indonesia and other countries- NGO’s are using my report to frame their concerns and demands in their own countries- and to raise criticism about

the United States.” For her part, Alison Parker, deputy director of the U.S. program of Human Rights Watch, fears a global government “race to the bottom” around immigrant detention policies. “My concern is that as the rest of world sees the United States practices, we increase the risk that this will give the green light to other governments to be just as abusive or more abusive as the United States.” If there is a positive note to be heard in the growing global chorus of critique of and concern about U.S immigration policy, it is to be found among those human rights activists and groups doing what W.E.B. DuBois, Paul Robeson and other civil rights activists did in previous eras: bring their issues to the global stage. Government documents from the civil rights era, documents that were released just a few years ago, illustrate how members of the Kennedy and Johnson State departments and even Kennedy and Johnson themselves were acutely aware of and sensitive to how denunciations in global forums of racial discrimination in United States had a devastating impact on the U.S. prestige abroad. Such a situation around the rights of migrants today, says Oscar Chacon of the National Alliance of Latin American and Caribbean Communities, a Chicago-based global NGO run by and for immigrants, creates an opportunity out of the globalization of the images of both Sheriff Joe Arpaio and Barack Obama. “The world will be able to see him as the rogue sheriff that he is” said Chacon, who was in Mexico City attending a conference on immigration at which U.S. detention practices were criticized.

“And it will be up to the Obama Administration to show the world that Arpaio is not a symbol of the rest of the country when it comes to immigration.”

terror

Revelations of CIA torture bolster extremist narratives that characterize the West as at war with Islam – that prevents effect counter-terrorism – ISIS makes the scenario UQRanstorp 14 – Research director, Center for Asymmetric Threat Studies, Swedish National Defence College (12/16/2014, Magnus, Newsweek, “What Is the Impact of the CIA Torture Report?”, http://www.newsweek.com/whats-impact-cia-torture-report-292181 // SM)

It goes without saying that the reputation of the CIA as a rogue agency further damages the United States stature as a champion for democracy and human rights around the world. Significantly, it also reinforces conspiracy theories and the salafi-jihadi narrative that the West (led by the U.S.) is at war with Islam. A new generation of Muslims has been forced to define its identity in relation to 9/11, the war on terror, Guantanamo and extraordinary rendition practices, collectively creating a sense of besieged communities. For them the Senate report reinforces this notion of a West at war with Islam . While this narrative used to be peripheral, it is now center stage. It greatly complicates work against violent extremism . It erodes the essential ingredient in community-based preventative work: trust between government agencies and communities on issues of extremism. This comes at a time when the Islamic State, also known as ISIS, has shown that the impossible—the creation of a caliphate—is possible, lighting the imagination of Muslim extremists around the globe. A second major consideration is the unsavory intelligence partnerships that enabled extraordinary rendition where "enhanced interrogation techniques" were practiced at black sites. The roles of Poland and other EU states come to mind as foreign venues used by the CIA. Admissions by Polish ex-leaders, overturning previous public denials, have the potential to become hot and difficult political issues within Europe, in addition to contributing to an erosion of trust between European governments and the United States. For sure, the report will amplify calls

from human rights organizations that those responsible be brought to justice. The Senate report has the power to be both cathartic and seriously damaging for the U.S. intelligence community. The report crossed an important Rubicon. In the short term, it may resolve the soul-

searching within the U.S. political establishment and the intelligence community about how far to go in balancing human rights and security. In the longer term, it gravely damages intelligence partnerships and U.S. leadership on counterterrorism efforts—at a time when the U.S. needs to strongly advocate for democracy and human rights in the greater Middle East.

The report on CIA torture creates anti-Americanism in Muslim countries – their support is key solve terrorismHammond 14 – Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics, and a former UK Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, “US Senate report on CIA torture threatens international relations”, http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatens-international-relations-20141210-1243ol.html // SM)

The US Senate Intelligence Committee's summary report on the CIA's post 9-11 "enhanced interrogation techniques" – from sleep deprivation to waterboarding – used against suspected terrorists has provoked a domestic furor, but its biggest impact could be outside US shores. The ramifications are already rippling out internationally and are likely to inflame anti- Americanism in several Muslim-majority countries whose support is potentially key for US success in the campaign against terrorism. This will only add to the massive public diplomacy challenge now confronting US President Barack Obama.

Thailand

The military-dominated Thai government uses the torture report to distract attention from HR abuses and to prevent any hope of a democratic revivalKurlantzick 14 – Kurlantzick is Senior Fellow for Southeast Asia at the Council on Foreign Relations and author of Democracy in Retreat: The Revolt of the Middle Class and the Worldwide Decline of Representative Government. (12/11/2014, Joshua, Bloomberg Business, “The CIA Torture Report Is Causing Political Ripples Overseas”, http://www.bloomberg.com/bw/articles/2014-12-11/the-senate-torture-report-is-causing-political-ripples-overseas // SM)

Amid the furor in Washington about how the torture report will affect the agency, the U.S., and even the 2016 presidential

elections, little attention has been paid to another impact of the report’s release. The report is likely to have significant effects on politics in several of the countries that were home to the dungeon-like prisons where the CIA, and local intelligence officers, detained and harshly treated prisoners. One of these countries is Thailand. A formal U.S. ally, Thailand was led in the early 2000s by Prime Minister Thaksin Shinawatra, an elected leader but a man with little interest in the rule of law. Thaksin

oversaw a “war on drugs” in Thailand that resulted in the extrajudicial killing of some 2,500 Thai suspects. Thai intelligence and the CIA reportedly moved some of the highest-profile detainees in the war on terror, including Abu Zubydah, a senior Al Qaeda figure, to a “black site” safe house in Thailand. Although Thaksin reportedly was not initially informed by Thai intelligence when the black site was created, he reportedly later was informed about it. In Thailand, Abu Zubydah allegedly was repeatedly waterboarded, subjected to physical assaults, tortured with

sleep deprivation in stress positions, and subjected to other inhumane treatments. Thaksin was forced into exile by a coup in 2006, and his sister, also elected, was deposed in a coup in May of this year. Although the country remains under martial law, and Thai media are extremely wary of publishing anything critical of the government, the Thai press has covered the torture report extensively. Most likely, according to several Thai sources, the military-dominated Thai government will attempt to keep the report in the news to tar Thaksin, as well as to distract attention from the rights abuses currently being perpetrated against Thais by the Bangkok regime. Coverage of the report may indeed hurt attempts by Thaksin and his party to portray themselves to the public as committed democrats who are far more enlightened than the harsh army rulers running Thailand now. The generals will have to be careful how they point fingers, however, since they have close links to Thai intelligence, and many of the military men currently running Thailand held senior army positions a decade ago as well.

US-EU

CIA torture revelations create devastating public perception issues for European political leaders – that erodes US-EU relationsRanstorp 14 – Research director, Center for Asymmetric Threat Studies, Swedish National Defence College (12/16/2014, Magnus, Newsweek, “What Is the Impact of the CIA Torture Report?”, http://www.newsweek.com/whats-impact-cia-torture-report-292181 // SM)

A second major consideration is the unsavory intelligence partnerships that enabled extraordinary

rendition where "enhanced interrogation techniques" were practiced at black sites. The roles of Poland and other EU states come to mind as foreign venues used by the CIA. Admissions by Polish ex-leaders, overturning previous public denials, have the potential to become hot and difficult political issues within Europe, in addition to contributing to an erosion of trust between European governments and the United States. For sure, the report will amplify calls from human rights organizations that those responsible be brought to justice. The Senate report has the power to be both cathartic and seriously damaging for the U.S. intelligence community. The report crossed an important Rubicon. In the short term, it may resolve the soul-searching within the U.S. political establishment and

the intelligence community about how far to go in balancing human rights and security. In the longer term, it gravely damages intelligence partnerships and U.S. leadership on counterterrorism efforts—at a time when the U.S. needs to strongly advocate for democracy and human rights in the greater Middle East.

US-Afghan

US-Afghan relations are stabilizing – the torture report undermines itKurlantzick 14 – Kurlantzick is Senior Fellow for Southeast Asia at the Council on Foreign Relations and author of Democracy in Retreat: The Revolt of the Middle Class and the Worldwide Decline of Representative Government. (12/11/2014, Joshua, Bloomberg Business, “The CIA Torture Report Is Causing Political Ripples Overseas”, http://www.bloomberg.com/bw/articles/2014-12-11/the-senate-torture-report-is-causing-political-ripples-overseas // SM)

In Afghanistan, reportedly home to some of the most notorious CIA detention facilities, the report could be a bombshell as well. After the report’s release, Afghan President Ashraf Ghani

reportedly stayed up all night reading it and gave a speech on Afghan national television decrying the CIA’s practices as against “all accepted norms of human rights abuses in the world.” Ghani’s harsh condemnation suggests that the report could well undermine U.S.-Afghan cooperation, which was beginning to stabilize under the technocratic Ghani after the mercurial Hamid Karzai regime . The revelations may undercut Ghani and his program of political and economic reform, as well. Ghani declared that the abuses happened in an earlier era, suggesting a break between that time and his current administration, yet he served as a senior Afghan cabinet minister in the early 2000s.

Afghani relations k2 overall Asian stabilitySmith 14- (Jack A., Foreign Policy Journal, “Why the US Wants to Stay in Afghanistan”, 1/7/14, http://www.foreignpolicyjournal.com/2014/01/07/why-the-us-wants-to-stay-in-afghanistan/)//WKAfghanistan is especially important to Washington for two main reasons.¶ The obvious first reason is to have

smaller but elite forces and surveillance facilities in Afghanistan to continue the fighting when necessary to protect U.S. interests, which include maintaining a powerful influence within the country.

Those interests will become jeopardized if, as some suspect, armed conflict eventually breaks out among various forces contending for power in Kabul since the mid-1990s, including, of course, the Taliban,

which held power from 1996 until the 2001 U.S. invasion.¶ The more understated second reason is that Afghanistan is an extremely important geopolitical asset for the U.S., particularly because it is the Pentagon’s only military base in Central Asia, touching Iran to the west, Pakistan to the east, China to the northeast, and various resource-rich former Soviet republics to the northwest, as well as Russia to the north.¶ A Dec. 30 report in Foreign Policy by Louise Arbour noted: “Most countries in [Central Asia] are governed by aging leaders and have no succession mechanisms — in itself potentially a recipe for chaos. All have young, alienated populations and decaying infrastructure… in a corner of the world too long cast as a pawn in someone else’s game.”¶ At this point, a continued presence in Afghanistan dovetails with Washington’s so-called New Silk Road policy first announced by then

Secretary of State Hillary Clinton two years ago. The objective over time is to sharply increase U.S. economic, trade, and political power in strategic Central and South Asia to strengthen U.S. global hegemony and to impede China’s development into a regional hegemon.¶ As the State

Department’s Robert O. Blake Jr. put it March 23: “The dynamic region stretching from Turkey, across the Caspian Sea to

Central Asia, to Afghanistan and the massive South Asian economies, is a region where greater cooperation and integration can lead to more prosperity, opportunity, and stability.¶ “But for all of this progress and

promise, we’re also clear-eyed about the challenges. Despite real gains in Afghan stability, we understand the region is anxious about security challenges. That’s why we continue to expand our cooperation with Afghanistan and other countries of the region to strengthen border security and combat transnational threats.”¶ Blake did not define what

“security challenges” he had in mind. But both China and Russia are nearby seeking greater trade and

influence in Central Asia — their adjacent backyard, so to speak — and the White House, at least, may consider this a security challenge of its own.

Random - Yoo Cards We need the aff to hold people accountable - Yoo agrees FRIEDERSDORF 12/16 (Conor Friedersdorf, December 16, 2014, The Atlantic, John Yoo: If the Torture Report Is True, CIA Officers Are at Legal Risk, http://www.theatlantic.com/politics/archive/2014/12/john-yoo-if-senate-report-is-true-cia-interrogators-are-at-legal-risk/383790/) //JS

The debate over the CIA interrogation program pits critics who insist illegal torture took place against defenders who say the treatment of prisoners was legal. These defenders cite guidance that the spy agency got from the Bush Administration. Former CIA Director Michael Hayden phrased it this way: "It needs be said that on multiple occasions all of the techniques were determined lawful by the Department of Justice and judged appropriate for the circumstances." That argument

suffered an unexpected blow this week. In a little-noticed CNN interview, John Yoo, a primary author of the torture memos, took a surprising position. Although the former Office of Legal Counsel lawyer isn't sure that the Senate torture report is accurate, he

says that if all of the interrogation tactics it describes were really deployed by CIA officers, some of them broke the law and are vulnerable to prosecution. Here's a transcript of the exchange: FAREED

ZAKARIA: When you read this report and you read about the techniques that were used, forced rectal feeding, agency officials threatening to rape the mothers of prisoners, people with broken limbs being forced to stand for hours and hours, deprived

of sleep for up to one week. Doesn't that strike you as torture? JOHN YOO Well, those are very troubling examples. They would not have been approved by the Justice Department. They were not approved by the Justice Department at the time. But I have to question whether they are true because I can't take the face value of the committee's report because there were no Republicans involved. You know, the investigations intelligence committee are

traditionally bipartisan and the worst thing, from a lawyer's perspective, from my perspective, is the committee didn't interview any witnesses. And so you have these reports but they never gave a chance --

gave a chance to the very participants of the people being accused to explain themselves. And so I will want to know more about what happened in any of these cases and to see what really happened. But I agree with you, if there were people who had to undergo what you have just described, none of those were approved by the Justice Department. I don't believe they're approved by the headquarters at CIA, too. Instead what you had I think you was a lot of chaos and miscommunication going on in the very first months after 9/11 when both people in the White House, the executive branch and Congress, were demanding that the CIA become aggressive and get started on going after al Qaeda. FAREED ZAKARIA: But, John, if you'd made a fair point that the Republican minority did not join in, and it would have given it more credence, but the practices that they're describing, as I understand it, are taken from the CIA's own accounts, are you saying that you think the committee has doctored those reports? JOHN YOO: What I'm worried about -- and this is what -- don't take my word for it. This is what CIA ex-directors have been saying

over the last few days and they appear in the CIA's own answer and in the minority report to the committee, that these were all cherry picked out of millions of documents and that we don't have the context to understand these are classified documents, of course, many of them, so we can't see the underlying documents. That's why we really need to rely in these kind of situation under being bipartisanship and a chance for people to appear and testify before the

committee. But I agree. Look, Fareed, I agree with you, if these things happened as they are described in the report, as you describe them, those were not authorized by the Justice Department. They were not supposed to be done and those people who did those are at risk legally because they were acting outside their orders. There is, of course, no reason to think that the Senate report fabricated any torture techniques. It is widely accepted, even among the spy agency's defenders, that prisoners were, in fact, subject to the "forced rectal feeding," or anal rape, that Zakaria mentions. And so we have a rather extraordinary

development. Even the attorney who famously said that it might be legal for the president to order an innocent child's testicles to be crushed thinks that some of what the CIA did was illegal. He's just a step away from acknowledging that the law compels a prosecution.

When Yoo thinks the aff is a good idea -- that’s when you know Kreiter 12/14 (Marc Kreiter, December 14, 2014, International Business Times, CIA Torture Report: Memo Writer John Yoo Said CIA May Have Gone Too Far, http://www.ibtimes.com/cia-torture-report-memo-writer-john-yoo-said-cia-may-have-gone-too-far-1755990) //JS A former Justice Department lawyer who wrote the memo that led to enhanced CIA interrogation techniques said Sunday the agency may have gone too far. John Woo, who at the time was Deputy Assistant U.S. Attorney General in the Office of Legal Council, co-wrote a memo in 2002 that became the legal basis for the CIA's interrogation program. The Senate Intelligence Committee last

week released a report detailing instances of torture committed under the program and concluded that the CIA misled the White House and the public. Critics have been calling for those who approved the program to be held accountable. "Looking at it now, I think of course you can do these things cumulatively or too much that it would cross the line of the anti-torture statute," Yoo said on

C-SPAN. On CNN, Yoo said if the instances outlined in the report are accurate, "they were not supposed to be done. And the people who did those are at risk legally because they were acting outside their orders." The tortures described in the intelligence committee report included forced rectal feeding, threatening to rape captives' mothers, forcing people with broken limbs to stand for hours and sleep deprivation lasting as long as a week. "Well, those are very troubling examples. They would not have been approved by the Justice Department -- they weren't approved by the Justice Department at the time," Yoo said. "But I have to question whether they’re true because I can’t take at face value the committee’s report because there were no Republicans involved." Former Vice President Dick Cheney said Sunday he's perfectly comfortable with the CIA's actions despite contentions that torture didn't yield any information that couldn't have been obtained by other means. Cheney admitted rectal feeding was not approved as an enhanced interrogation technique. Republicans opposed release of the report, warning of possible repercussions. Many newspapers in the Middle East, however, have been silent on the subject and few Arab leaders have condemned the actions.

at

circumvention

Plan exposes CIA operations -- key to double government exposure Corn 12/10 (David Corn, Mother Jones, Politic Co, There Is Something Worse Than Torture in the Senate Torture Report, http://www.motherjones.com/politics/2014/12/senate-torture-report-cia-lying-crisis-oversight) //JS There is something more troubling in the Senate intelligence committee's torture report than the brutal depictions of the extreme (and arguably illegal) interrogation practices employed by CIA officers in the years after the 9/11 attacks: the lying. Am I a Torturer? The accounts of rectal rehydration, long-term sleep deprivation, waterboarding, forced standing (for days), and wrongful detentions are shocking. And the committee's conclusion that CIA torture yielded little, if any, valuable information (including during the hunt for Osama bin Laden) is a powerful counter to those who still contend that so-called enhanced interrogation techniques are

effective. But the report presents a more basic and profound question that the nation still faces in the post-torture era: Can secret government work? In fact, while pundits and politicians are pondering the outrageous details of the executive summary, not

many have realized that the report, in a way, presents a constitutional crisis. The basic debate over torture has been settled. In his first days in office, President Barack Obama signed an executive order outlawing the use of these interrogation methods. Since then, the question has been what to reveal about the CIA's use of torture during the Bush-Cheney days and whether anyone ought to be prosecuted. But those matters, too, have been mostly resolved. The committee's report was released after a lengthy struggle between the CIA and Sen. Dianne Feinstein, the Democratic chairwoman of the panel; and in his first term, Obama ruled out criminal prosecutions of officials and officers engaged in sketchy counterterrorism actions in the previous administration.

But there is a foundational issue that remains: how the US government conducts clandestine operations. The Senate torture report raises the possibility that much-needed checks and balances may not function because of CIA mendacity. In a system of democratic government, if it is necessary for the military or the intelligence community (which both operate under the authority of the president) to mount covert operations to defend the nation, they are only permitted

to do so with oversight from people elected by the voters—that is, members of Congress. The premise is simple: No government agency or employee can engage in clandestine activity, such as secret warfare, without some vetting. The vetters are surrogates for the rest of us. They get to see what's happening—without telling the public (unless there is a compelling reason to do so)—and they're supposed to make sure the spies, the spooks, and the secret warriors do not go too far and end up jeopardizing US values and interests. That can only work if the legislators assigned to that oversight mission actually know

what the spies and operatives are doing. And they cannot know what the CIA is doing if the CIA lies to them about it. According to the Senate Intelligence Committee, the CIA repeatedly lied about its controversial interrogation program. The Senate torture report offers an appalling narrative of CIA prevarication. In fact, anyone who has read the major congressional reports on intelligence activity and abuses in the four decades since the Church Committee first revealed CIA wrongdoing would find the new report shocking in terms of its depiction of

CIA lying (though it does not use the l-word). The report notes that the CIA misled the White House, the National Security Council, the Justice Department, and Congress about the effectiveness of its extreme interrogation techniques. The CIA did not tell policymakers the truth about the brutality of its interrogations and the confinement conditions for its detainees. The agency repeatedly provided inaccurate information to the Justice Department about its detention and interrogation program, and this

prevented the Justice Department from supplying solid legal analysis. The CIA was late in telling the Senate

Intelligence Committee about its use of torture and did not respond to information requests from the committee. The agency (at the direction of the White House) did not initially brief the secretaries of state and defense about its

interrogation methods. It provided inaccurate information about its interrogation program to the FBI and the Office of the Director of National Intelligence. CIA officials gave inaccurate information about its enhanced interrogation techniques to the agency's inspector general. The CIA never compiled an accurate list of the individuals it detained or subjected to

torture. The CIA also ignored objections and criticisms raised by its own officers about its detention and interrogation program. This is a tremendous amount of CIA misrepresentation. This is a tremendous amount of CIA misrepresentation. It is difficult to read these pages and wonder whether a system of accountability can work. Last March, it did seem oversight had completely broken down, when it was revealed that the CIA had spied on Feinstein's investigators. Oversight can only succeed if there is a degree of trust between the lawmakers who watch and the spies who are watched. And at that point, not only was trust gone, an all-out bureaucratic war was being waged between the agency and the committee. John Brennan, the CIA chief, did insist publicly that his agency had not snooped on DiFi's flatfoots. Yet that turned out to be false. And now the CIA and its cheerleaders, including former CIA officials who were in charge during the years of torture and obfuscation, are mounting a PR battle against Feinstein and the report, claiming it is 6,600 pages of off-the-wall distortions.

hard power trades off

Soft power doesn’t trade-off with hard power – they work in conjunctionLord 14 – Kristin M. Lord is President and CEO of IREX, a global education and development NGO. (12/23/2014, Kristin, Foreign Policy, “Soft Power Outage”, http://foreignpolicy.com/2014/12/23/soft-power-outage/?wp_login_redirect=0 // SM)

To be clear, investing in soft power does not negate the need for military force or investments in hard power. Indeed, some applications of soft power must be backed by hard power, the way bank

loans must be backed by underlying financial solvency, and there are objectives (defeating the Islamic State comes to mind) that are nearly impossible to achieve without at least some use of force. However, hard power is not appropriate to every mission, and in some cases, it may even be counterproductive, generating a backlash that multiplies the severity of the threat. Countering violent extremism is a case in point: Force has a role, but its overuse can draw more recruits to the cause.

Meanwhile, undercutting the appeal of extremist ideologies can be accomplished most effectively through non-military means. Most military leaders would agree, and I find them, as a general rule, to be among the strongest backers of soft power. It was not so long ago that a U.S. defense secretary, Robert Gates, proved one of the most persuasive voices appealing, alongside then-Secretary of State Hillary Clinton, for more resources for diplomacy and development. Ret. Gen. James Mattis put it even more bluntly in a statement to the Senate Armed Services Committee in March, 2013: “If you don’t fund the State Department [foreign operations] fully, then I need to buy more ammunition.”

senate spied on the CIA

The Senate didn’t spy on the CIA – it received the review through CIA disclosure or a whistleblower – either way, it’s legal Zornick 14 – Washington Editor for The Nation (3/12/2014, George, The Nation, “In Spying Scandal, Did Obama Just Take the CIA’s Side?”, http://www.thenation.com/article/spying-scandal-did-obama-just-take-cias-side/ // SM)

The important context here is the Department of Justice is running two parallel investigations into the CIA’s removal of the so-called “Panetta review”—one into wrongdoing by the Intelligence Committee, and one into CIA wrongdoing. The CIA claims that Senate staffers illegally obtained a copy of that review, which damns the CIA for it’s role in Bush-era interrogations and is at odds with public

statements from the CIA. But Feinstein strenuously, and at great length, contested that claim in her Senate floor speech on Tuesday. She explained how the Panetta review came into the committee’s possession: either by intentional or unintentional disclosure by the CIA while turning over the 6.2 million documents related to the interrogation program, or by a “whistle-blower” either at the agency or working for the private contracting firm that was vetting the documents. She went on to explain that the Senate Legal Counsel affirmed to her that these were not classified documents, and that the committee was permitted to have them.

war on terror good

The CIA director conceded that it’s impossible to know if torture is an effective counterterror strategyHattem 14 – Reporter for the Hill (12/11/2014, Julian, The Hill, “CIA head: ‘Unknowable’ if harsh methods worked”, http://thehill.com/policy/defense/226835-cia-head-unknowable-if-brutal-methods-worked // SM)

CIA Director John Brennan says it is impossible to know whether or not harsh interrogation methods

that many have called torture worked at obtaining information from Islamic extremists . “The cause and effect relationship between the use of [enhanced interrogation techniques] and useful information subsequently provided by the detainees is, in my view, unknowable,” CIA Director John Brennan said in an unprecedented press conference on Thursday, amid a deepening crisis over the agency's former tactics. Suspected terrorists detained by the CIA and subjected to waterboarding, sleep deprivation, “stress positions” and other brutal interrogation techniques have “produced useful intelligence” that has thwarted terrorist attacks and helped keep the U.S. safe, Brennan said. However, “we have not concluded that it was use of [enhanced interrogation techniques]

within that program” that led to that information. “There is no way to know whether not some information that was obtained from an individual who had been subjected at some point during his confinement could have been obtained through other means,” Brennan added. “It’s an unknowable fact.” A report from the Senate Intelligence Committee this week strongly disagreed with Brennan’s assessment. Not only did the techniques at times amount to torture, the report said, but they were not effective at extracting information from the detainees, since people often gave up false information in order to get the "interrogations" to stop.

war powers

Executive war power ruins soft power and global alliancesSchiffer 9 (Adam is a Ph.D., Assistant Professor of Political Science at Texas Christian University, and Carrie Liu Currier, Ph.D., Assistant Professor of Political Science at Texas Christian University, “War Powers, International Alliances, the President, and Congress”, http://apcentral.collegeboard.com/apc/public/repository/US_Gov_Balance_of_Power_SF.pdf)//ccThe president’s advantages over Congress in the foreign policy realm have consequences far beyond the intragovernmental struggle over power and accountability. In recent years, the use of military force by the United States to compel other countries to abide by international norms or laws has generated criticism from members of the global community. Specifically the fear is that U.S. foreign policy in

the post–Cold War era has become the pursuit of a new world order that essentially reflects American hegemony. The “war on terror,” the Bush doctrine, and the war efforts in Afghanistan and Iraq have all showcased the commitment of the U nited S tates to unilateralism rather than coalition building, and raise concern about the powers of the American presidency. During the Cold War, the

absence of multilateralism in U.S. foreign policy was not as problematic as it appears today. However, the strengthening of presidential authority under the second Bush administration has raised alarm in many countries around the world . In the past, the bipolar nature of the international system and the lack of consensus found among the five permanent members of the United Nations Security Council decreased the likelihood the United States could draw

on multilateral action to counter its adversaries. In contrast, the post–Cold War era is one where countries are expected to fully utilize institutions like the United Nations to garner international support and establish coalitions, rather than resorting to unilateralism. Thus, the international community has been critical of countries that appear to circumvent these norms when dealing with global conflicts in the contemporary period. To highlight some of the differences in the international community’s post–Cold War support for U.S. military action abroad, we briefly examine the cases of the Persian Gulf War (1991) and the war in Iraq (2003). Both cases effectively demonstrate how two presidents, George H. W. Bush and George W. Bush, utilized the spirit of the War Powers Resolution in consulting with Congress but then reveal how their use of presidential authority led to very disparate degrees of support from the international community. These two examples of U.S. military action in the Middle East offer several useful bases for comparison. In both conflicts there were underlying interests in securing oil resources, a desire to remove Saddam Hussein from power, and a sense that Iraq was seeking regional hegemony and defying international law based on its invasion of Kuwait in 1990 and its continued development of a weapons of mass destruction program. The contrasting responses of President George H. W. Bush and his son George W. Bush, however, illustrate how much discretion is left to the president in the current practice of war powers. In the first Gulf War, President George H. W. Bush fully utilized the international structures in place by getting the UN Security Council to adopt Resolution 678 authorizing member states to use “all necessary means,” including military force, to drive Iraq out of Kuwait and comply with international law. In accordance with the War Powers Resolution the president reported to Congress on Iraq’s refusal to adhere to the Security Council resolution, and indicated he was prepared to craft a multilateral strategy to respond to the crisis. He did not march the troops north to Baghdad and overthrow Saddam Hussein at this time because he had neither the approval nor the support of the UN to take these initiatives at the time. The Iraq policy set forth by the Bush administration thus relied on the use of a multilateral coalition to generate a sense of domestic and international legitimacy to the military actions taken by the United States and its allies, and was acknowledged as within the acceptable parameters as determined by the global community. In contrast, the 2003 war in Iraq did not gain the support of the UN Security Council and was largely a unilateral effort by President George W. Bush. This unilateralist strategy can be seen on two levels, in the sense that he did not consult with allies and that his actions were rather declaratory with minimum consultation with Congress (Dumbrell 2002, 284). Global leaders warned that preemptive war and “American-led military action was illegitimate, threatened the future of the United Nations, undermined international support for the ‘war on terrorism,’ and created new threats to international peace and security” (Dombrowski and Payne 2003, 395). The “coalition of the willing” that supported U.S. initiatives in Iraq was negligible in both size and relative power and was not an attempt at true multilateralism. UN Resolution 1441, indicating Iraq was in material breach with regard to its WMD program, had been carefully worded so as not to permit an American military operation to enforce Iraq’s compliance. Instead, the Security Council was only willing to reopen discussions of weapons inspections and engage in further fact-finding. The terrorism rhetoric used by the second Bush administration established the urgent need for a U.S. response, and further served the president’s unilateralist efforts

by instilling a sense of danger in waiting for other actors to give legitimacy to the U.S.-led war. The battle between the

unilateralists and multilateralists with regard to U.S. foreign policy raises concerns about presidents whose actions promote American exceptionalism. The idea that the U nited S tates

operates with an authority above supranational institutions like the UN gives the impression that the country and the president have the ability to engage in reckless foreign policy behavior with few repercussions. The post–Cold War increase in UN action raises concerns about whether the War Powers Resolution should be amended to either facilitate or restrain the president’s ability to supply troops for UN missions without congressional approval (Grimmett 2004). Until then, the two cases of U.S. military action in the Middle East demonstrate important

comparisons in how multilateralism and unilateralism are viewed by the global community and how they are used to establish the legitimacy of American foreign policy.

answers to offcase

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politics link turn - popular

Obama loves the plan – publicly supports CIA accountability and rejects CIA surveillance of the SenateBolton 14 – Staff Writer for The Hill (3/14/2014, Alexander, The Hill, “The CIA blowup: Five things to know”, http://thehill.com/blogs/floor-action/200801-5-things-to-know-about-feinsteins-feud-with-cia // SM)

The role of the White House: Feinstein approached then-White House Counsel Bob Bauer in May 2010 about the removal of 870 documents from the Senate investigators’ network in February 2010 and another 50

in mid-May. Feinstein said Bauer “recognized the severity of the situation” and committed there “would be no further unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee.” On May 17, 2010, the CIA’s director of congressional

affairs apologized for the documents’ removal. The Intelligence Committee has spent the past year sparring with the CIA over the conclusions of its report, which was completed in December 2012. It will now send it to the White House for declassification. President Obama on Wednesday expressed support for a quick declassification timeline: "I am absolutely committed to declassifying that report as soon as the report is completed.” Obama would declassify the report’s conclusions and 300-page summary, not

the entire 6,300-page document. The internal Panetta review would not be included in the report. Although Obama has backed a public accounting of the CIA’s interrogation and detention practices during the Bush administration, he has also been careful not to alienate an agency central to his strategy for fighting al Qaeda. Senate Democratic Whip Dick Durbin (D-Ill.) on Thursday urged Obama to act swiftly. “The sooner, the better,” he said.

Obama pushes the plan – has empirically sided with the Senate on CIA oversight Kleinman 14 – At the time of publication Avery Kleinman was the Beth Daley Impact Fellow for the Project On Government Oversight (3/14/2014, Avery, Project on Government Oversight, “Obama Promises to Declassify CIA Torture Report”, http://www.pogo.org/blog/2014/03/obama-promises-to-declassify-cia-torture-report.html?referrer=https://www.google.com/ // SM)

President Obama has pledged to declassify the Senate Select Committee on Intelligence’s (SSCI) headline-making report about the Central Intelligence Agency’s (CIA) interrogation techniques. From Agence France-Presse: "I am absolutely committed to declassifying that report as soon as the report is completed," Obama told reporters. "In fact, I would urge them to go ahead and complete the report, send it to us. "We will declassify those findings so that the American people can understand what happened in the past, and that can help guide us as we move forward." The President’s commitment to declassifying the SSCI report follows a week of public sparring between the CIA and the SSCI. Committee Chairman Dianne Feinstein publicly expressed outrage and concern that the CIA may have violated the Constitution’s separation of powers by spying on her committee staff members’ computers as they investigated the agency’s interrogation and detention practices.

CIA senate surveillance extremely unpopular Sledge 14 (Matt is a reporter at the Huffington Post, Brown University, 1/29, “CIA Director Grilled On Domestic Surveillance, Torture At Senate Hearing”, http://www.huffingtonpost.com/2014/01/29/cia-domestic-surveillance_n_4688475.html)//cc

Three senators pummeled CIA Director John Brennan at a Senate Intelligence Committee hearing Wednesday, peppering him with tough questions on torture and domestic surveillance that he has refused to answer in public. Brennan defended the CIA against accusations that it is double-dealing with the Intelligence committee about a report on agency torture, and he also received surprisingly pointed questions about whether the CIA spies on Americans. Such public hearings offer senators critical of the intelligence agencies the chance to telegraph their private concerns about classified programs -- and these questions could suggest there is something the public isn't being told about what the CIA does at home. The committee's hearing on the intelligence community's "worldwide threat assessment" was widely anticipated. At last year's edition of the hearing, Director of National Intelligence James Clapper claimed in response to a question from Sen. Ron Wyden (D-Ore.) that the National Security Agency does not collect information on millions of Americans, which was later proven to be a lie. This year's hearing began with committee Chairwoman Sen. Dianne Feinstein (D-Calif.) warning senators not to ask any questions which might require a classified answer. Wyden seemed undeterred, however, deriding a "culture of misinterpretation" among intelligence agency leaders that has "seriously undermined" the trust of the American people.

Udall, Heinrich and Wyden support reducing CIA surveillance Condon 14 (Stephanie is a political reporter for CBSNews, 3/5, “Report: CIA spied on Senate committee staff”, http://www.cbsnews.com/news/report-cia-spied-on-senate-committee-staff/)//ccSen. Mark Udall, D-Colo., seemed to reference the surveillance in a letter to President Obama Tuesday, in which he urged the president to support the fullest declassification of the committee's CIA report. "As you are aware, the C.I.A. has recently taken unprecedented action against the committee in relation to the internal C.I.A. review, and I find these actions to be incredibly troubling for the committee's oversight responsibilities and for our democracy," Udall wrote. "It is essential that the Committee be able to do its oversight work -- consistent with our constitutional principle of the separation of powers -- without the CIA posing impediments or obstacles as it is today." Sen. Ron Wyden, D-Ore., who like Udall has called for more transparency from the intelligence community, also seemed to allude to the CIA's surveillance of the committee during a Jan. 29 Senate Intelligence Committee hearing. In that hearing, Wyden asked CIA director John Brennan whether the federal Computer Fraud and Abuse Act applies to the CIA. The law bars the intentional access of a computer without authorization. Wyden published Brennan's response on Wednesday: "The statute does apply," Brennan wrote. "The Act, however, expressly 'does not prohibit any lawfully authorized investigative, protective, or intelligence activity... of an intelligence agency of the United States.'" Sen. Martin Heinrich, D-N.M., another member of the intelligence committee, declared in a statement Wednesday, "The Senate Intelligence Committee oversees the CIA, not the other way around." He blasted the agency for refusing to "engage in good faith" with the committee as it studied the CIA's detention and interrogation program, and he called for the report's full declassification.

Obama supports surveillance reformsVoltz 14 (Dustin is a staff correspondent for National Journal covering tech policy. His work has previously appeared in The Washington Post, The Center for Public Integrity, and The Arizona Republic. Dustin is a graduate of Arizona State University, 11/18, “Obama Administration

‘Strongly Supports’ NSA Reform Bill”, http://www.nationaljournal.com/white-house/obama-administration-strongly-supports-nsa-reform-bill-20141117)//ccThe Obama administration on Monday endorsed a Senate proposal to rein in the government's most controversial domestic spying program—a move coming just a day before the Senate is slated to start debating the measure. In a statement from the White House, the administration said it "strongly supports" the USA Freedom Act, a bill from Senate Judiciary Chairman Patrick Leahy that would effectively end the National Security Agency's bulk collection of metadata—the numbers and time stamps of phone calls but not their actual content. The once-secret program was publicly exposed by Edward Snowden last summer. "This legislation will help strengthen Americans' confidence in the Government's use of these important national security authorities," the Office of Management and Budget said in a statement. "Without passage of this bill, critical authorities that are appropriately reformed in this legislation could expire next summer." President Obama in January pledged to reform the government's surveillance practices, but said he could only do so when Congress sent him a bill that closely matched his recommended changes.

CIA surveillance of the Senate caused bipartisan backlashLanday and Watkins 14 – Landay is a senior national security and intelligence correspondent for McClatchy Newspapers, has written about foreign affairs for over 25 years. Watkins is a reporter for McClatchy (7/31/2014, Jonathan and Ali, McClatchy DC, “CIA admits it broke into Senate computers; senators call for spy chief’s ouster”http://www.mcclatchydc.com/news/nation-world/national/national-security/article24771274.html // SM)

An internal CIA investigation confirmed allegations that agency personnel improperly intruded into a protected database used by Senate Intelligence Committee staff to compile a scathing report on the agency’s detention and interrogation program, prompting bipartisan outrage and at least two calls for spy chief John Brennan to resign. “This is very, very serious, and I will tell you, as a member of the committee, someone who has great respect for the CIA, I am extremely disappointed in the actions of the agents of the CIA who carried out this breach of the committee’s computers,” said Sen. Saxby Chambliss, R-Ga., the committee’s vice chairman.

The rare display of bipartisan fury followed a three-hour private briefing by Inspector General David Buckley. His investigation revealed that five CIA employees, two lawyers and three information technology specialists improperly accessed or “caused access” to a database that only committee staff were permitted to use.

The plan has bipartisan supportMazzetti and Hulse 14 – Mark Mazzetti is a Pulitzer prize-winning correspondent for The New York Times, where he has covered national security from the newspaper's Washington bureau since April 2006. Carl Hulse is The Times's chief Washington correspondent (7/31/2014, Mark and Carl, The New York Times, “Inquiry by C.I.A. Affirms It Spied on Senate Panel”, http://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html // SM)

The inspector general’s account of how the C.I.A. secretly monitored a congressional committee charged with supervising its activities touched off angry criticism from members of

the Senate and amounted to vindication for Senator Dianne Feinstein of California, the committee’s Democratic chairwoman, who excoriated the C.I.A. in March when the agency’s monitoring of committee investigators became public. John O. Brennan, the C.I.A. director, apologized to two senators in connection with the penetration of a computer network. A statement issued Thursday morning by a C.I.A. spokesman said that John O. Brennan, the agency’s director, had apologized to Ms. Feinstein and the committee’s ranking Republican, Senator Saxby Chambliss of Georgia, and would set up an internal accountability board to review the issue. The statement said that the board, which will be led by a former Democratic senator, Evan Bayh of Indiana, could

recommend “potential disciplinary measures” and “steps to address systemic issues.” But anger among lawmakers grew throughout the day. Leaving a nearly three-hour briefing about the report in a Senate conference room, members of both parties called for the C.I.A. officers to be held accountable , and some said they had lost confidence in

Mr. Brennan’s leadership. “This is a serious situation and there are serious violations,” said Mr. Chambliss, generally a

staunch ally of the intelligence community. He called for the C.I.A. employees to be “dealt with very harshly.” Senator Mark Udall, Democrat of Colorado and another member of the Intelligence Committee, demanded Mr. Brennan’s resignation. “The C.I.A. unconstitutionally spied on Congress by hacking into the Senate Intelligence Committee computers,” he said in a written statement. “This grave misconduct not only is illegal but it violates the U.S. Constitution’s requirement of separation of powers.

The plan has widespread support – especially among DemocratsMilbank 14 – Dana Milbank writes about political theater in the nation’s capital. He joined The Post as a political reporter in 2000, after two years as a senior editor of The New Republic and eight years with the Wall Street Journal. He is also the author of three political books: Tears of a Clown (2010), Homo Politicus (2008) and Smashmouth (2001). (3/11/2014, The Washington Post, “Dana Milbank: Allegations of CIA spying on the Senate deserve investigation”, http://www.washingtonpost.com/opinions/dana-milbank-allegations-of-cia-spying-on-the-senate-deserve-investigation/2014/03/11/96105150-a95b-11e3-8d62-419db477a0e6_story.html // SM)The staffers, Feinstein said, “were provided access to the Panetta Review by the CIA itself. As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting counsel general’s referral as a

potential effort to intimidate this staff.” The president might also consider whether he wants to tolerate the imperious behavior of CIA Director John Brennan, who promptly dismissed Feinstein’s allegations Tuesday.

Feinstein said that Brennan had previously told her that the CIA would continue snooping on the committee staff. The Justice Department is investigating the CIA’s actions, but Feinstein said that the CIA had stated at one point that “the removal of the documents was ordered by the White House.” The White House denied the

claim. That would be a good matter for a special prosecutor to examine. Steven Aftergood, who runs the Federation of

American Scientists’ Government Secrecy Project, called Feinstein’s allegations a “historic rupture” between the CIA and the committees that oversee it. The accusations of constitutional violations —

coming after the director of national intelligence, James Clapper, misled Congress about the NSA programs — are more serious and better documented than wrongdoing alleged by Republicans in the IRS or Benghazi “scandals” subjected to

numerous probes. In the House, Democrats say they’d support a bipartisan investigation of the CIA’s actions.

politics no link

No link – Obama’s trying to stay out of the Senate-CIA disputeLesniewski 14 – Niels Lesniewski has covered the Senate for CQ Roll Call since January 2010, and more recently as a staff writer and resident procedure guru for Roll Call. Niels holds degrees in both government and theater. (3/12/2014, Niels, Roll Call, “Obama Wants to Avoid Crossfire Between CIA and Senate”, http://blogs.rollcall.com/wgdb/obama-wants-to-avoid-crossfire-between-cia-and-the-senate/?dcz= // SM)

President Barack Obama wants to stay out of the feud between the Senate Intelligence Committee and his own CIA. “With respect to the issues that are going back and forth between the Senate committee and the CIA, John Brennan has referred them to the appropriate authorities and they are looking into it and that’s not something that is an appropriate role for me and the

White House to wade into at this point,” Obama said Wednesday. While the matter’s been referred to the Justice

Department, one senior GOP senator has raised the prospect of needing a special prosecutor. Obama’s first public comments came one day after a remarkable floor speech by Intelligence Chairwoman Dianne Feinstein, D-Calif., in which she indicated the CIA improperly conducted surveillance on computer files used by committee staff investigating the agency’s interrogation policies during

the George W. Bush administration. CIA Director John O. Brennan denied the alleged spying by his agency on the Senate.

Obama remains ambiguous on the Senate/CIA feud, means he doesn’t push or get blamedHorton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and America’s Stealth Warfare” by Scott Horton, Salon, http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)

In the second half of 2013 and the early months of 2014, the feud between the CIA and the Senate oversight committee continued to percolate. The roles played by the White House and President Obama himself were consistently ambiguous. On one hand, Obama assured Feinstein, other key members of Congress, and significant supporters who felt strongly about the issue that he was “absolutely committed to declassifying that report.” On the other hand, aides quickly clarified that it meant only the 480-page executive summary, and only after the CIA and other agencies had reached a consensus with the White House on redactions from the report.

Concerns over backlash are empirically disprovenLeber 14- research assistant at Brookings (Andrew, “A Resounding Silence: Regional Reactions to the Senate’s Report on U.S. Use of Torture”, Brookings Institute, 12/29/14, http://www.brookings.edu/blogs/markaz/posts/2014/12/29-middle-east-reaction-torture-report)//WKThe release of the Senate Intelligence Committee report on the Central Intelligence Agency’s use of torture has drawn fairly muted reactions across the Middle East, despite initial White House concerns that it might provoke unrest as well as possible retaliation against American

interests and facilities in the region. Secretary of State John Kerry sought to delay the report’s release on December 5 due to concerns over fall-out from the report’s revelations, while Representative Mike Rogers, chairman of the House Intelligence Committee, warned that "foreign leaders have approached the government and said, ‘You do this, this will cause violence and deaths’." Security at U.S. military and diplomatic facilities was enhanced in the run-up to the report’s release. However, few governments in the region released official statements on the issue, with news coverage similarly sparse. There were no significant protests surrounding the report’s release.

terror

Torture doesn’t improve counter-terror operations - the CIA’s own internal review provesHorton 2/21 – Scott Horton is a contributing editor at Harper’s magazine and a recipient of the National Magazine Award for reporting for his writing on law and national security issues. Horton lectures at Columbia Law School and continues to practice law in the emerging markets area. A lifelong human rights advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. (2015, Scott, Excerpted from “Lords of Secrecy: The National Security Elite and America’s Stealth Warfare” by Scott Horton, Salon, http://www.salon.com/2015/02/21/how_the_cia_gets_away_with_it_our_democracy_is_their_real_enemy/ // SM)

True to its slow-walking strategy, the CIA took more than six months—until June 27, 2013—to respond. When it did so, the earlier confidential response was backed by the curiously coordinated crossfire of an assortment of actors—former CIA directors and senior officials, disgraced former CIA agents whose involvement in the torture program was documented in the report, and media figures,

often with close ties to the Bush administration authors of the program. Their message was simple: waterboarding has produced major breakthroughs and disrupted actual terrorist plots, ultimately putting American

Special Forces in a position to kill Osama bin Laden in the Abbottabad raid of May 2, 2011. However, the CIA’s own records furnished no support for these claims. This unofficial CIA response was driven heavily by apparent leaks

from within the agency, and the hand of Director John O. Brennan was later revealed in the process. While the agency’s defenders concentrated their fire on specific facts found and conclusions drawn by the report, it would turn out that the CIA’s own internal review had come to most of the same conclusions. This was hardly surprising, since both the committee and the CIA were summarizing the same documents. Both the internal Panetta report and the Senate committee report scrutinized the documents and evidence and found nothing to support claims that torture , particularly waterboarding, produced anything that materially advanced the search for terrorist leaders or planned strikes; both apparently concluded that these claims were unfounded. That produced intense embarrassment for the CIA and exposed the CIA’s criticism of the Senate report as disingenuous—as Feinstein noted, it stood “factually in conflict with its own internal review.” Even more worryingly, while the Senate report was for the moment holding back from policy recommendations and other action, it set the stage for a high-stakes game on accountability for torture, including unexplained homicides involving prisoners.

US Detention policy leads to recruitment and radicalizationGunter 15- Ph. D, professor of political science at Tennessee Technological University (Michael, “Iraq, Syria, ISIS and the Kurds: Geostrategic concerns for the U.S. and Turkey”, Middle East Policy, Vol. XXII, No. 1, Spring 2015, http://onlinelibrary.wiley.com.proxy.lib.umich.edu/doi/10.1111/mepo.12116/epdf)//WKThe United States has inadvertently helped what has now morphed into the Islamic State by lax policies that allowed many of its current leaders to escape from U.S. detention centers in Iraq. The list includes the caliph himself, Abu Bakr al-Baghdadi, who spent almost five years imprisoned at Camp Bucca in southern Iraq, as well as Abu Muslim al-Turkmani, Abu Louay, Abu Kassem, Abu Jurnas, Abu Shema and Abu Suja. These extremists were held side by side with those less radical, allowing U.S. coalition prisons in Iraq to become recruitment centers and even training grounds for ISIS recruits. Moderates who objected to being radicalized were harassed or worse through so-called sharia courts that spread through the prisons. Limited resources to evaluate the prisoners effectively helped obscure what was occurring. Eventually,

even prisoners with strong evidence against them were released be-cause of the weaknesses of the Iraqi court system and the refusal of the United States to share classified information. In addition, some of the most extreme radicals who had been sentenced to death were freed by successful ISIS attacks on what were by then Iraqi prisons after the United States withdrew from Iraq at the end of 2011. ISIS has clearly learned much from its travails about how to fight another day. The organization burgeoned because of its perceived success, dynamism and sense of destiny. The Mosul victory in June 2014 reinforced these attributes by bringing vast amounts of captured funds and some of the latest U.S. military equip-ment into the organization’s grasp. Al-though ISIS now seemed to be the enemy of everybody and had become the specific target of a hastily constructed U.S. alliance, its opponents’ strength was undermined by mutual hatreds and lack of unity. The United States, for example, refused to admit Iran to its anti-ISIS coalition even though the Shia state was clearly one of the most effective potential opponents of ISIS. For the time being at least, ISIS could mo-bilize its potential strength to the maximum while its myriad opponents were divided and unable to strike back in unison.

Offering concessions fractures terrorist groups—even if counterterror operations have been effective, indefinite extension prolongs conflict McIntosh 14- (Christopher, “Counterterrorism as War: Identifying the Dangers, Risks, and Opportunity Costs of U.S. Strategy Toward Al Qaeda and Its Affiliates”, Studies in Conflict & Terrorism Volume 38, Issue 1, 2015, pgs. 23-38, Taylor and Francis)//WKWars requires enemies and treating Al Qaeda as a “monolith” with whom the United States is at war limits options that involve positive incentives. Some experts have argued that limited concessions have significant potential for undermining Al Qaeda in terms of amplifying internal divisions and altering public support of both Al Qaeda and its affiliates. Moreover, they could also serve to increasingly isolate those who pose the greatest risk to the United States. Cronin argues: The U.S. objective must be to enlarge the movement’s internal inconsistencies and differences. Al-Qaida’s aims have become so sweeping that one might wonder whether they genuinely carry within them the achievement of specific local grievances. There is more hope of ending such groups through traditional methods if they are dealt with using traditional tools, even including, on a caseby-case basis, concessions or negotiations with specific local elements that may have negotiable or justifiable terms (albeit pursued through an illegitimate tactic). The key is to emphasize the differences with al-Qaida’s agenda and to drive a wedge between the movement and its recent adherents. The historical record of other terrorist groups indicates that it is a mistake to treat al-Qaida as a monolith, to lionize it as if it is an unprecedented phenomenon with all elements equally committed to its aims, for that eliminates a range of proven counterterrorist tools and techniques for ending it. These concessions need not necessarily be policy concessions in terms of granting Al Qaeda affiliates territory or recognizing the validity of their grandiose stated goals. Other types of concessions can operate at an even lower level—“secondary concessions”—such as granting amnesty to members of certain organizations. This can be done either as a blanket policy to undermine public support and allow individuals to leave these groups or it can be done in exchange for intelligence.61 Historically, amnesty programs have had success in eradicating groups that find themselves near the end of their campaign—the Italian amnesty program was quite successful in ending the threat posed by the Red Brigades in the late 1970s. Given the spread of Al Qaeda into regional organizations focused on particular geographic areas with smaller groups fighting

alongside them, there is intuitive appeal to pursuing an overall strategy that retains elements of each of these strategies as potentially successful options. It may turn out that these options are inadequate, inappropriate, or ineffective due to the relative intransigence of Al Qaeda, its affiliates, and the members that support it. Remaining in a state of war, however, inevitably makes pursuing these options, even in a limited manner, much more difficult. One cannot treat Al Qaeda as a “monolith” with whom the United States is at war and simultaneously offer concessions (such as negotiation, cessation of hostilities, unfreezing of assets, release of prisoners) to groups with which the United States is at war and whom the United States refuses to recognize as legitimate actors in international politics. Remaining in a state of war with Al Qaeda makes it so the United States almost exclusively relies on force as the primary strategy for countering the threat from Al Qaeda, despite the existence of options and alternatives. This strategy not only has physical, material, and emotional costs but it hinders, and in some cases, outright precludes, nonmilitary alternatives that have historically had some success . Repression and/or intervention as a force-based strategy for combating terrorism may have been successful but only in past circumstances that do not line up with the specific U.S. case of confronting a diverse, networked organization that operates in multiple disparate states. Utilizing force and framing the U.S. response as war has in some ways been effective up to this point and may even be the reason the United States is in a position where other strategies could be more effective, but this is not a reason to doggedly commit to this strategy indefinitely.

Link turn - CIA torture programs created the ISIS terrorist groupPress TV 14 – Iran’s television network (12/10/2014, “ISIL 'consequence' of US torture program: Former Guantanamo prisoner”, http://www.presstv.com/detail/2014/12/10/389589/isil-consequence-of-us-torture-program/ // SM)

A former Guantanamo Bay detainee says the use of torture by the Central Intelligence Agency at US-run prisons created the ISIL terrorist group in the Middle East. Moazzam Begg, who was detained at the prison for nearly three years, said ISIL “was born in the dungeons of Abu Ghraib, it was born in the dungeons of the Iraqi prisons, that were under US occupation, and that's where this hatred and animosity” has festered. The US Senate Intelligence Committee released Tuesday a redacted summary of its voluminous report on the CIA’s torture program during the George W. Bush administration. Senate Intelligence Committee Chair Dianne Feinstein, however, said the CIA's

interrogation of suspected terrorists was far more brutal than the spy agency had disclosed. The former prisoner said, “So what we found now, we're in a situation that's worse than the beginning of the 'war on terror'.” “When torture was used, when (former vice president) Dick Cheney said 'we have to operate in the dark side', what he didn't say was what was going to be the consequence of that torture," Begg added. The 6,200-page report is the result of a five-year Senate investigation into the 6.3 million documents reviewing the failures of the agency that ran “the enhanced interrogation” rogram during the Bush administration.

No link - torture methods aren’t effective Mazzetti 12/9 (Mark Mazzetti - Pulitzer winning journalist, masters from Oxford, The Boston Globe, Report says CIA lied about torture activities, https://www.bostonglobe.com/news/nation/2014/12/09/set-release-report-cia-torture-tactics/aCznrj8OCs97G6NKdVIRnL/story.html) //JS WASHINGTON — A scathing report released by the Senate Intelligence Committee on Tuesday found that the Central Intelligence Agency routinely misled the White House and Congress about the information it obtained from the detention and interrogation of terrorism suspects, and that its methods were more brutal than the CIA acknowledged either to Bush administration officials or to the public. The long-delayed report, which took five years to produce and is based on more than 6 million internal agency documents, is a sweeping indictment of the CIA’s operation and oversight of a program carried out by agency officials and contractors in secret prisons around the world in the years after the Sept. 11, 2001, terrorist attacks. It also provides a macabre

accounting of some of the grisliest techniques that the CIA used to torture and imprison terrorism suspects. Detainees were deprived of sleep for as long as a week, and were sometimes told that they would be killed while in U.S. custody. With the approval

of the CIA’s medical staff, some CIA prisoners were subjected to medically unnecessary “rectal feeding” or “rectal

hydration” — a technique that the CIA’s chief of interrogations described as a way to exert “total control over the detainee.” CIA medical staff members described the waterboarding of Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, as a “series of near drownings.” The report also suggests that more prisoners were subjected to waterboarding than the three the CIA has acknowledged in the past. The committee obtained a photograph of a waterboard surrounded by buckets of water at the prison in Afghanistan commonly known as the Salt Pit — a facility where the CIA had claimed that waterboarding was never used. One clandestine officer described the prison as a “dungeon,” and another said that some prisoners there “literally looked like a dog that had been kenneled.” During his administration, President George W. Bush repeatedly said that the detention and interrogation program, which President Barack Obama dismantled when he succeeded him, was humane and legal. The intelligence gleaned during interrogations, he said, was instrumental both in thwarting terrorism plots and in capturing senior figures of al-Qaida. View Story Bush didn’t know about CIA tactics For four years, interrogators slammed and soaked prisoners without the president being told exactly what was going on. List of the 119 prisoners detained Read the Senate’s report summary Bush, former Vice President Dick Cheney and a number of former CIA officials have said more recently that the program was essential for ultimately finding Osama bin Laden, who was killed by members of the Navy SEALs in May 2011 in Abbottabad, Pakistan. The Intelligence Committee’s report tries to refute each of these claims, using the CIA’s internal records to present 20 case studies that bolster its conclusion that the most extreme interrogation methods played no role in disrupting terrorism plots, capturing terrorist leaders — even finding Bin Laden. The report said that senior officials — including former CIA directors George J. Tenet, Porter J. Goss and Michael V. Hayden — repeatedly inflated the value of the program in secret briefings both at the White House and on Capitol Hill, and in public speeches. Moments after the report was released Tuesday, Sen. Dianne Feinstein of California, the chairwoman of the Intelligence Committee, gave a lengthy speech on the Senate floor describing the tumultuous history of her investigation and calling the CIA interrogation program “a stain on our values and our history.” “Releasing this report is an important step to restoring our values and showing the world that we are a just society,” she said. Speaking after Feinstein, McCain told the Senate that the American people “have a right...to know what was done in their name.” Describing the practices outlined in the report as torture, McCain said that such techniques “[produce] more misleading information than actionable intelligence.” As Feinstein was preparing to speak, the CIA director, John O. Brennan, issued a response that both acknowledged mistakes in the detention and interrogation program and angrily challenged some of the findings of the Senate report as an “incomplete and selective picture of what occurred.” “As an agency, we have learned from these mistakes, which is why my predecessors and I have implemented various remedial measures

over the years to address institutional deficiencies,” Brennan said. But despite the mistakes, he added, “the record does not support the study’s inference that the agency systematically and intentionally misled each of these audiences on the effectiveness of the program.” The entire report is more than 6,000 pages long, but the committee voted in April to declassify only its 524-page executive summary and a rebuttal by Republican members of the committee. The investigation was conducted by staff members working for Democratic senators on the committee. The New York Times and other news organizations received an advance copy of the report and agreed not to publish any of its findings until the Senate Intelligence Committee made them public. The Times did not receive an advance copy of the Republican rebuttal. Many of the most extreme interrogation methods — including waterboarding — were authorized by Justice Department lawyers during the

Bush administration. But the report also found evidence that a number of detainees had been subjected to other, unapproved methods while in CIA custody. The torture of prisoners at times was so extreme that some CIA personnel tried to put a halt to the techniques, but were told by senior agency officials to continue the interrogation sessions. The Senate report quotes a series of August 2002 cables from a CIA facility in Thailand, where the agency’s first prisoner was held. Within days of the Justice Department’s approval to begin waterboarding the prisoner, Abu Zubaydah, the sessions became so extreme that some CIA officers were “to the point of tears and choking up,” and several said they would elect to be transferred out of the facility if the brutal interrogations continued. During one waterboarding session, Zubaydah became “completely unresponsive with bubbles rising through his open, full mouth.” The interrogations lasted for weeks, and some CIA officers began sending messages to the agency’s headquarters in Virginia questioning the utility — and the legality — of what they were doing. But such questions were rejected. “Strongly urge that any speculative language as to the legality of given activities or, more precisely, judgment calls as to their legality vis-à-vis operational guidelines for this activity agreed upon and vetted at the most senior levels of the agency, be refrained from in written traffic (email or cable traffic),” wrote Jose A. Rodriguez Jr., then the head of

the CIA’s Counterterrorism Center. “Such language is not helpful.” The Senate report found that the detention and interrogation of Zubaydah and dozens of other prisoners were ineffective in giving the government “unique” intelligence information that the CIA or other intelligence agencies could not get from other means. The report also said that the CIA’s leadership for years gave false information about the total number of prisoners held by the CIA, saying there had been 98 prisoners when CIA records showed that 119 men had been held. In late 2008, according to one internal email, a CIA official giving a briefing expressed concern about the discrepancy and

was told by Hayden, then the agency’s director, “to keep the number at 98” and not to count any additional detainees. The committee’s report concluded that of the 119 detainees, “at least 26 were wrongfully held.

counterplans

Feinstein cp

Feinstein’s wrong Yoo 12/13 (John Yoo, Dianne Feinstein's flawed torture report, Los Angeles Times, Dianne Feinstein's flawed torture report, http://www.latimes.com/opinion/op-ed/la-oe-yoo-torture-feinstein-20141214-story.html#page=1) //JS Sen. Dianne Feinstein's report last week on enhanced interrogations under the George W. Bush

administration suffers from fundamental flaws. The Senate Intelligence Committee took the

unprecedented step of proceeding without Republicans even though previous investigations have always been bipartisan. It cherry-picked from millions of CIA documents and, unbelievably, refused to interview any witnesses. Without bipartisanship and testimony, the report's claims cannot be trusted. CIA directors from both parties, including George Tenet (who served under Presidents Clinton and Bush) and John Brennan (who serves under President Obama), have rejected many of the report's factual findings and its central claim that the CIA systematically

misled the White House and the president and covered up the abuse of terrorists. The report cannot quarrel with the

ultimate fact: ... The United States has succeeded in preventing a second large-scale terrorist attack for the last 13 years. - But the Feinstein report has one positive virtue: It has moved the debate beyond legality to

effectiveness. To be sure, the senator takes a stab at claiming the interrogation methods amounted to illegal torture. The CIA, she

writes, “decided to initiate a program of indefinite secret detention and the use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values.” But the report does not analyze the federal anti-torture law, which in 2001 prohibited interrogation methods with “the specific intent” to cause “severe physical or mental pain and suffering.” Without torture prosecutions, we can't claim to be a nation of laws

Attorneys in the Bush Justice Department, including me, reviewed whether the CIA's proposed interrogation of Abu Zubaydah, an Al Qaeda planner captured in March 2002 in Pakistan, met that law. The brief statute provided neither further definitions nor examples of prohibited methods (in 2005, Congress passed a detailed law, the Detainee Treatment Act, because the earlier law was

vague). For us, as I think for most reasonable Americans, almost all the CIA's proposed interrogation methods did not constitute torture — the only one close to the line was waterboarding.

Cp prevents effective terror operations Yoo 12/9 (John Yoo, Yoo: The Feinstein Report Cannot Deny a Clear Record of Success, December 9, 2014, http://time.com/3626957/yoo-senate-torture-report-feinstein/) //JS

Any President who followed Feinstein’s advice would fail in his or her fundamental duty to protect the security of the United States Suppose you are a President who has just witnessed 3,000 American deaths in a terrorist attack by a shadowy enemy. Intelligence strongly indicates that follow-on attacks will come. You have little information on future attacks, but you know that the enemy will employ unconventional tactics that violate the very laws of war. The enemy disguises its operatives as civilians, it attacks civilians and peaceful targets by surprise, and is willing to use any weapons, including chemical and biological. Then, just a few months after the attacks, an amazing stroke of good fortune falls into your lap: The U.S.

captures the first high-ranking leader of the enemy. What would you do? According to Senator Dianne Feinstein’s report on Bush-era interrogation policies, released today, you should allow only police station-style questioning.

Designed to build a rapport between the interrogator and the detainee, these methods can take weeks, if not months, if they work at all. If al Qaeda leaders refuse to cooperate, the CIA and FBI will have to wait. You cannot treat them differently, the Feinstein report implies; you must give them the same benefits that our Constitution reserves for American

citizens suspected of garden variety, domestic crimes. If another attack occurs, perhaps worse than the first, the President must still wait for the al Qaeda leaders to cooperate willingly. Any President who followed Feinstein’s advice would fail in his or her fundamental duty to protect the security of the United States. A President charged with this responsibility cannot wait weeks, months, or never; he must obtain intelligence as soon as possible to stop the next attack. Under these emergency conditions, a chief executive would reasonably give the green light to limited, but aggressive interrogation methods that did not cause any long-term or permanent injury. You might even approve waterboarding in the time of emergency (remember, again, that this is three months after the attacks) if limited only to enemy leaders thought to have information about pending attacks. As a member of the Justice Department’s Office of Legal Counsel at the time of the 9/11 attacks, I thought that the CIA’s proposed interrogation methods were within the bounds of the law—just barely. They did not inflict serious, long-term pain or suffering, as prohibited by the federal statute banning torture. We realized then that waterboarding came closest to the line. But the fact that the U.S. military has used it to train thousands of U.S. airmen, officers, and soldiers without harm indicated that it didn’t constitute torture. Limiting tough interrogation methods only to

al Qaeda leaders thought to have actionable information, during a time when the nation was under attack, further underscored the

measured, narrow nature of President Bush’s decision. The Feinstein report cannot deny that most Americans agree President Bush acted reasonably under these emergency conditions. Indeed, if the American people concluded that Bush had made a grave mistake, it could have turned him out of office in the 2004 elections (which took place

after the stories about tough interrogations first leaked). And the Feinstein report cannot deny the record of success. Armed with intelligence from interrogations, electronic surveillance, and sources on the ground in Iraq and Afghanistan, the Bush and Obama administrations have so far prevented another massive al Qaeda attack on the U.S. homeland. Any terrorism expert inside or outside of government in Fall, 2001 would have been astounded at this result in light of the openness of American society and al Qaeda’s track record. For many years, interrogations yielded the great majority of intelligence that the U.S. held on al Qaeda, which allowed the CIA and the U.S. military to carry out operations that have devastated the terrorist group. (If you don’t believe me, take a look at the 9/11 Commission Report’s footnotes. Most of its important information on al Qaeda comes from interrogations.) Feinstein can only deny the reasonableness of the choices made in the aftermath of 9/11 by claiming that they never worked. With imperfect hindsight, her report claims that the CIA lied to induce President Bush to order aggressive interrogation methods and then did not produce any unique, actionable intelligence. Worse yet, it alleges that the CIA lied to the White House, the National Security Council, the Justice Department, and Congress about interrogations to exaggerate the intelligence gains and to downplay the harms to al Qaeda detainees. Such a claim simply does not stand up to the truth. The Feinstein report contains a record of mistakes made by CIA agents in the field, miscommunications between officers and headquarters, and misunderstandings between CIA officials and the White House and Justice Department. But it does not show that the interrogations were a failure. It shows anything but. There are two cases that leap out upon even a cursory reading of the report.

kritiks

framework

Politicizes ethics of care k2 mobilizationHodson 10 [Derek, professor of education – Ontario Institute for Studies @ University of Toronto, “Science Education as a Call to Action,” Canadian Journal of Science, Mathematics and Technology Education, Vol. 10, Issue 3, p. 197-206]**note: SSI = socioscientific issues

The final (fourth) level of sophistication in this issues-based approach is concerned with students findings ways of putting their values and convictions into action , helping them to prepare for and engage in responsible action, and assisting them in developing the skills , attitudes, and values that will enable them to take control of their lives, cooperate with others to bring about change, and work toward a more just and sustainable world in which power, wealth, and resources are more equitably shared. Socially and environmentally responsible behavior will not necessarily follow from knowledge of key concepts and possession of the “right attitudes.” As Curtin (1991) reminded us, it is important to distinguish between caring about and caring for. It is almost always much easier to proclaim that one cares about an issue than to do something about it. Put simply, our values are worth nothing until we live them. Rhetoric and espoused values will not bring about social justice and will not save the planet. We

must change our actions. A politicized ethic of care (caring for) entails active involvement in a local

manifestation of a particular problem or issue, exploration of the complex sociopolitical contexts in which the problem/issue is located, and attempts to resolve conflicts of interest. FROM STSE

RHETORIC TO SOCIOPOLITICAL ACTION Writing from the perspective of environmental education, Jensen (2002) categorized the knowledge that is likely to promote sociopolitical action and encourage pro-environmental behavior into four dimensions : (a) scientific and technological knowledge that informs the issue or problem; (b)

knowledge about the underlying social, political, and economic issues, conditions, and structures

and how they contribute to creating social and environmental problems; (c) knowledge about how to bring about changes in society through direct or indirect action; and (d) knowledge about the likely outcome or direction of possible actions and the desirability of those outcomes. Although formulated as a model for environmental education, it is reasonable to suppose that Jensen's arguments are applicable to all forms of SSI-oriented action. Little needs to be said about dimensions 1 and 2 in Jensen's framework beyond the discussion earlier in the article. With regard to

dimension 3, students need knowledge of actions that are likely to have positive impact and knowledge of how to engage in them. It is essential that they gain robust knowledge of the social, legal, and political system(s) that prevail in the communities in which they live and develop a clear understanding of how decisions are made within local, regional, and national government and within

industry, commerce, and the military. Without knowledge of where and with whom power of decision making is located and awareness of the mechanisms by which decisions are reached , intervention is not possible. Thus, the curriculum I propose requires a concurrent program designed to

achieve a measure of political literacy, including knowledge of how to engage in collective action with individuals forefront of discussion during the establishment of policy .

torture reps

Perm do both—effective separation of powers are a prerequisite to channel dissent into institutionsPillard 6- *Professor, Georgetown University Law Center. She served as Deputy Assistant Attorney General in the Office of Legal Counsel from 1998 to 2000 (Cornelia, “Unitariness and Myopia: The Executive Branch, Legal Process, and Torture”, 81 Ind. L.J. 1297, pgs. 1297-1312, HeinOnline)//WKPermitting diverse views and encouraging critique during the process of deliberation and decision making is a principal structural challenge of executive branch legalism. The importance of assuring that a robust range of views are brought to bear on legal decision making is underscored by what we know about the risks of leaving the law in the hands of like-thinking people. Many of those risks were understood by the Founders, and the separation of powers is one artifact of their appreciation of the rights-protecting potential of pluralistic structures. In the context of one-party dominance of the three branches, however, the rights-protecting effect of separation of powers is reduced. That effect is further diminished regarding matters of national security and war, which trigger partially unreviewable power in the political branches. Following 9/11, with Republicans dominating all three branches and war ongoing, risks of governmental myopia ran high. Recent social science bears out the Framers' intuitions, also highlighting the importance of dissensus. New empirical studies on "group polarization" are strikingly relevant to executive branch legal decision making in the absence of diverse inputs. Group polarization is what happens when like-minded people get together to discuss an issue. They tend to come out thinking a more extreme version of what they thought going in."1 Even persons acting in complete good faith are more likely to err when they deliberate only with people with whom they already are predisposed to agree. By many accounts, a hallmark of the administration of George W. Bush has been the aggressive elimination of dissensus.' 2 This administration has employed extraordinary secrecy, side-railed civil servants and others who do not toe the party line, and proceeded by means of results-oriented, top-down rather than bottom-up decisional processes. 13 If executive branch legal analysis has any chance of being objective and standing up to scrutiny, however, the decisions should emerge out of a range of dissonant inputs, and should include not only spokespersons for broad executive power, but also perspectives of people specifically devoted to protecting individual rights. There are several different ways to foster consideration of a range of views in executive legal decision making. Some would require institutional changes, but many are familiar. The various procedural or structural safeguards discussed here can be redundant of one another, and need not all operate fully in any particular decisionmaking process to assure adequate dissensus. When all are absent or compromised, however, as appears to have been the case with the Torture Memo, it is predictable that legal advice will be less tested, objective, and sound. This article identifies four processes or structures that can contribute towards healthy dissensus. The first is transparency. When the executive makes public the fact that an important legal issue is under consideration, it permits input, analysis, and critique from the media, the electorate, lobbyists, nongovernmental organizations, Congress, and the academy. Second, intra-branch consultation can tap into the internal diversity of components and personnel within the executive branch. Even when decision making remains nonpublic so external critiques are absent, intra-executive consultation can

be a source of healthy skepticism of proposed executive legal decisions. Third, and relatedly, consulting civil service employees, and not only political appointees, can add to diversity and dissensus, because in many ways the political and institutional perspectives, knowledge base, and culture of the civil service differ from those of political appointees. Finally, designated boards, commissions, and officers within or overseeing the executive should be charged with taking an armslength view to help to forestall and to respond to any executive action that might be unwise, unlawful, or even corrupt.

Torture reifies American exceptionalism and justifies the war against the alterityRichardson 11 (Michael. Doctorate of Creative Arts at the University of Western Sydney. “Writing Torture’s Remnants: Sovereign Power, Affect and the War on Terror”. February 2014. http://www.inter-disciplinary.net/wp-content/uploads/2011/02/richardsontpaper.pdf)//JuneC//

POWER AND THE TORTURED BODY Until the end of the Eighteenth Century torture was almost exclusively a juridical instrument (Langbein 1976). Something changed with the institution of modern juridical practices, the emergence of democracies, and codified human rights. Torture ceased to primarily be a perverse tool in the pursuit of justice and became an instrument for the assertion of power (Peters 1985; Weschler 1990). Democracies became the true torture innovators as the need to keep torture hidden drove the invention of new techniques (Rejali 2007). Other states use more brutal methods, but these techniques, clinically articulated and executed, culminated with America in the war on terror (McCoy 2006).

How might we understand this newly political torture and its refiguring of the relationship between life and power? Foucault described the fundamental dynamics of modern states as ‘biopower’ and ‘biopolitics’ (2007). We might think of biopower in Giorgio Agamben’s terms as “the concrete ways in which power penetrates subjects' very bodies and forms of life” (Agamben 1998: 5). In modernity, with more of life continually made subject to sovereign power, whether through human rights codes or anti-terror surveillance laws, the immediate potential of humanity is, increasingly, to be cast into the state of exception; a space in which law no longer applies yet the force of itself remains (Agamben 2005: 38). Thus in Kafka’s The Trial, Joseph K. is made subject not to law itself but to what

remains in its absence: a kind of arbitrary force of law residing only in its own sovereignty (Kafka 1953). So too the detainees brought before American combat status review tribunals to defend themselves against charges of which they are never informed. Guantanamo, Bagram Air Base and the ‘black sites’ can be read as echoes of what Agamben calls the camp. This is a purely biopolitical space lacking any mediation between life and power, epitomised by the Nazi concentration camps where “inhabitants were stripped of every political status and wholly reduced to bare life” (Agamben 1998: 171). 2 There are no crematoriums at Guantanamo, yet a similarity of form is discernible (Gregory 2006). Both operate as states of exception, both seek to make bodies utterly subject to power and in both cases, it is their status as camp – positioned within states of exception, outside the code but within the force of law – that makes possible the torture chamber. In a certain sense, the torture chamber is a kind of camp writ small: it is this body here subjected to raw sovereign power in this moment now. The camps of the war on terror subsume the subject into the singularity of American power, to

somehow make that power real. Survival demonstrates both victory and humanity; it transforms enemy combatants into symbols of power and security, while affirming to the American state that its ideals remain intact, the flesh has not been pierced. Here we find the reversal of Kafka’s penal colony, where

the torture that leads to death writes deeply into the very flesh (Kafka 2003). The entire body, both physical and political life, is made the full target of torture. The victim’s body is not only held within the torture chamber, it becomes a kind of chamber itself: no skin is pierced, yet pain is felt; no electricity surges, yet temporality and all the senses are assaulted. How, when the end of biopower is sublimation of the individual to power, can such a subject speak?

Discussions of torture policy are important—leads to political solutionsDel Rosso 15- assistant professor in the Department of Sociology and Criminology at the University of Denver (Jared, “Talking About Torture: How Political Discourse Shapes the Debate”, Columbia University Press, pgs. 3-4)//WKA constructionist approach to torture allows us to understand how it is that torture becomes a matter of public concern in the first place. It is well documented that political problems must be defined and publicized; people must draw attention to evidence about their presence and harms . Moreover, public and political responses to evidence of problems are rarely proportional to changes in those indicators. Those that evidence suggests have significant social harms can be effectively ignored tor extended peri- ods of time; this is a core observation of Stanley Cohens work on denial." Torture was more intensely debated in the months before and after the 2008 election than those preceding and following the 2004 election. This occurred even though the most controversial instances of torture occurred in 2001 and 2003 and became public knowledge in 2004 and 2005. Politi- cal attention to detention, interrogation, and torture did not change incre- mentally in proportion to changes in information regarding the treatment of detainees in U.S. custody- Congress largely overlooked problems— including reports of detainee abuse at the Metropolitan Detention Center in New York in late 2001 as well as March 2004 reports of detainee abuse at Abu Ghraib prison—until photographs taken at Abu Ghraib became public in April 2004. To understand why this is so, this book considers the interaction between political attention to torture and the available evidence of torture's use, rather than assuming that the former straightforwardly follows the latter. Typically, research focuses on the direct study of torture, examining its historical use and prevalence. Such studies use accounts of torture— survivors' testimony, official investigations, human rights reports, and investigative reporting—as data that provide more or less transparent windows onto the underlying reality of the practice. Such studies—many of which I cite in this book—have laudable aims. By studying the historical and geographic distribution of torture, these studies have uncovered the social, cultural, political, and institutional conditions out of which torture emerges. By interviewing and examining victims of torture, such studies also expose the social, psychic, and physical damage that torture causes, as well as the efficacy of the medical and psychological treatment of victims. And, by interviewing and examining perpetrators, such works also show that the practice has harmful consequences for torturers." Given the lengths that governments go to practice torture covertly, it remains necessary for scholars, human rights investigators, and the press to continue compiling evidence of the use and harms of torture. This is particularly true at a moment when what really happened to detainees in U.S. custody remains contested. Why, then, study talk of torture, rather than take up the important work or documenting its use, the causes of its use, and its consequences? Would it not be more appropriate to study this problem directly, to learn more about U.S. detention and interrogation operations, and to contribute to our understanding of how to control or prevent the abuse and torture of detainees?I am sympathetic to these questions, particularly since I, too, am interested in what really happened in U.S. detention facilities and the consequences of those occurrences. Likewise, I accept the control and prevention of torture to be a political good.

topicality

domestic surveillance

CIA spying on Senate computers is domestic surveillanceDreazen and Naylor 5/18 - Yochi Dreazen is managing editor, news, at Foreign Policy and author of The Invisible Front. Seán D. Naylor is Foreign Policy’s intelligence and counterterrorism senior staff writer and author of the forthcoming book Relentless Strike. (2015, Yochi Dreazen and Seán D. Naylor, Foreign Policy, “Mission Unstoppable: Why Is the CIA Running America's Foreign Policy?”, http://foreignpolicy.com/2015/05/18/mission-unstoppable-cia-obama-brennan-middle-east-torture-report-drones/ // SM)The cause for her change of heart was a dispute that seemed more like the plot of a spy novel than an actual series of events capable of bringing the relationship between the CIA and its Capitol Hill overseers to a 40-year low. Starting in 2009, Senate investigators had spent more than five years researching and fine-tuning a 6,000-page report probing the agency’s Bush-era detention and interrogation policies, which included barbarous techniques like waterboarding that Obama himself had bluntly described as torture. To research the program, staffers had to use computers, provided by the agency, in a CIA facility in Northern

Virginia. In her lengthy floor speech, Feinstein accused the CIA of illegally searching the computers the staffers were using to examine millions of highly classified documents. She said the move was a potential violation of the Fourth Amendment, which protects against “unreasonable searches and seizures”; the Computer Fraud and Abuse Act, a 1986 law that makes it a federal crime to access government computers without permission; and

Executive Order 12333, which bars the CIA from carrying out domestic surveillance activities.

CIA does domestic surveillance EPIC no date (EPIC is an independent non-profit research center in Washington, DC. EPIC works to protect privacy, freedom of expression, democratic values, and to promote the Public Voice in decisions concerning the future of the Internet. EPIC pursues a wide range of program activities including public education, litigation, and advocacy, “EPIC v. CIA - Domestic Surveillance”, http://epic.org/foia/cia/domesticsurveillance.html//cc)EPIC FOIA Document Reveals CIA Collaboration in Domestic Surveillance: According to a Central Intelligence Agency Inspector General's report obtained by EPIC under the Freedom of Information Act, the CIA collaborated with the New York Police Department in domestic surveillance efforts. The CIA is prohibited from participating in domestic surveillance, but the report finds that the agency had embedded four officers within the NYPD over the past decade and that collaboration with the NYPD was fraught with "irregular personnel practices," that it lacked "formal documentation in some important instances," and that "there was inadequate direction and control" by agency supervisors. The Inspector General's Report was prepared in response to an investigation by the Associated Press which showed that the NYPD and the CIA had collaborated on a program of domestic surveillance targeting Muslims and persons of Arab descent. The CIA originally claimed that there was "no evidence that any part of the agency's support to the NYPD constituted 'domestic spying,'" a statement that is contradicted by the Inspector General's Report obtained by EPIC. A front-page story in the New York Times discusses the findings in more detail. The case is EPIC v. CIA, Case No. 12-02053 (D.D.C. filed Dec. 20, 2012). For more information see: EPIC: EPIC v. CIA - Domestic Surveillance and EPIC: Open Government. (Jun. 27, 2013)

electronic surveillance

Plan curtails electronic surveillanceCrockford 14 (Kade. Director, Technology for Liberty Project, ACLUm. “Watch CIA director John Brennan lie about spying on congress”. 4 August 2014. PrivacySOS. https://privacysos.org/node/1479)//JuneC//In March 2014, Senator Dianne Feinstein accused the CIA of spying on Senate Select Intelligence Committee members who were compiling a report on CIA torture programs. John Brennan went on television and told the world it wasn't true. "The allegations of CIA hacking into senate computers...nothing could be further from the truth. We wouldn't do that. That's just beyond the scope of

reason," Brennan said in a video-taped interview at the Council of Foreign Relations. Anyone familiar with the CIA's history likely won't be terribly surprised that the CIA director lied to the public about his agency's illegal spying on congress. The CIA isn't known for its respect for the separation of powers, the rule of law, or the truth. But it's useful to have fresh proof, illustrating that the CIA considers itself to be above the law. And the CIA's spying on congress was actually much worse than the headlines reveal. McClatchy, which has been breaking all the stories related to this scandal, reports that CIA employees didn't just look at senate staffers' computers to examine their documents. The paper's reporting suggests that CIA also operates an email surveillance program targeting senate intelligence staffers. The CIA inspector general who investigated allegations of improper spying found that "CIA security officers conducted keyword searches of the emails of staffers of the committee’s Democratic majority and reviewed some of them," McClatchy reports. How the hell does the CIA have access to staffers' emails? Did they

have warrants to spy on congress members' employees? Of course not. What's President Obama's response to this madness? He has "full confidence" in John Brennan, the CIA director who oversaw a violation of the separation of powers and illegal spying on congress, and then lied about it to the public. Full confidence.