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 servers
RT 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 CIAs post-9/11 torture
program. The inspector generals 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 investigators hands, the Huffington Post reported. The
memos author cautions the director that speaking with the White House further could be viewed later as
the White House interfering in the CIAs surveillance on Senate staffers. CIA director John Brennans
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

Feinstein said in March 2014 that the

CIAs 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 dont 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 CIAs 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
keeping tabs on the torture investigation.

sifted through a walled-off hard drive on the Senates side of a shared computer network and determined
that the documents did exist on the Senate staffers side. The lawyers 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

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."
inspector generals report, as did the CIA.

This wrecks CIA oversight of the CIA Senate committee

judgement is severely clouded by this surveillance
Freeman 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-ignorestorture-victims)//JuneC//

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
Washington, DC (TFC)

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

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 Wydens 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
conflict.

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, Wydens
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 CIAs leadership continues to double down on denials about the agencys

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
history on torture, but their claims are contradicted by their own internal review.

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

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
entire political theater performance.

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 key

Reichbach 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-senatecomputers)//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

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
Mazie Hirono, D-Hawaii.

computers came as the committee was investigating the CIA for torture of detainees. The report was

Heinrich slammed Brennan when the access of

the computers was revealed. Heinrich and Wyden have been some of the more vocal
released in December of 2014.

critics of the CIA in recent years. In July of 2014, the CIA admitted it had accessed computers of members

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,
of the Senate Intelligence Committee. Brennan apologized.

to be chaired by former Sen. Evan Bayh (D-Ind.), to review the inspector generals 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
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
search Senate files without external authorization, the letter reads.

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 accountability
Dilanian 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//

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
Washington

messages to CIA headquarters from two of the agencys 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

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 CIAs
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,
thought he had.

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
committees 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

Still, the investigation forced the spy agency to publicly

admit that it mismanaged the interrogation program, failed to
punish misconduct and detained people it shouldnt have. Yet the
investigation.

intelligence committees have never taken a similar look at what is now the premier counterterrorism
effort, the CIAs 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 agencys 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, Russias 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 CIAs 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 its 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 wasnt convinced by the reports argument that harsh measures were
ineffective in every instance. The latest opinion polls find widespread support for the CIAs 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.

Thats the only way to limit the authority of the CIA, but
their DAs were non-uniqued by the December report
Gorman 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-feudingthe-short-answer/)//cc

Relations between the Central Intelligence Agency and Congress

have deteriorated into hostilityand 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

A three-year Senate
intelligence committee investigation into the CIAs 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
CIA interrogation program. Whats the controversy about?

Senate committee may have inappropriately obtained a document known as the Panetta Review, the
CIAs 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 CIAs 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? Its still classified, but

the CIA misrepresented the program to

both the Justice Department and Congress. A central finding disputes the CIAs
officials have said privately it concludes

claim that interrogations provided information that couldnt 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
CIAs 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 CIAs 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

Wasnt the CIA

program shut down five years ago? Why does this matter now? The current fight is over
failures, but he also found fault with many of its details and conclusions.

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.
report say the CIA needs to be
CIA is seeking to put the matter to rest.

Congressional officials who have read the

held accountable for any wrongdoing. The

Congressional oversight of the CIA is key to separation of

powers it prevents executive abuses founded on a
violation of the speech and debate clause
Horton 2/21 Scott Horton is a contributing editor at Harpers 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
Americas 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 agencys own
internal review and therefore knew that the agencys criticisms of the report were specious. This had stung

The
CIA never actually contacted the Senate committee and asked how it had come by the Panetta review.
figures at the CIA who were trying to manage the fallout from its torture and black site programs.

Instead, perhaps convinced that the information had been gained improperly (though that is a strange
word to apply to an oversight committees examination of documents prepared by the agency it is

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 committees 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
overseeing), someone at the agency

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. Eatingers 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, Eatingers 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 CIAs 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 CIAs
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 Congressoperate 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
Constitutions 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.

Feinsteins suggestion that CIA activities had violated the

Constitution and several federal statutes was on point. Eatingers 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 Brennans
public statements. Brennan first pushed back against Feinsteins 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 wouldnt do that. Thats 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 powers
Barron 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

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
Thus,

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

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
one. The risk is that

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 rev iews the history of the "lowest ebb" issue from 1789 through the C iv il War. Part III concentrates on the disputes over this quest ion that arose in the C ivil War and it s immediate aftermath. Part IV exam ines the developments occurring in the executiv e branch, the Congress, and the courts through World War II. Part V takes the story from Truman through the C linton and Bush Adm inistrat ions. In Part VI, we explain why, in our v iew, the history matters, and summarize what it shows regarding C ongress's const itut ional authority to regulate the conduct of campaigns. We also discuss some of the remaining puzzles with respect to the "superintendence" prerogativ e that the C ommander in C hief C lause establishes. Part VII is a brief conclusion. [*951] II. From Ratificat ion Through

the Antebellum Period The practices of the political branches during the first decades after the Const itut ion's ratificat ion offer im portant 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 Const itut ional Convent ion. n14 More broadly, the ent ire period from ratificat ion to the C iv il War is import ant for what it shows about the "practical exposit ion" of const itut ional war powers during the new nat ion's first confrontations wit h war and the first emergence of a standing military establishment. n15 The init ial seventy years are also important for understanding what immediately followed. Those first seven decades of constit utional development established the legal tradition on which President Lincoln
and the C ivil War Congress relied in formulating their own war powers views. Because those views are so often invoked in contemporary executiv e war power cont roversies, their int ellectual lineage merits a thorough examination. A rev iew of const itut ional pract ice bet ween 1789 and the C ivil War suggests that the Founding-era understanding of the C ommander in C hief's ultimate subjection to statutory cont rol continued to hold sway. Alt hough the primary focus of war powers quest ions and debates in this period lay elsewhere (such as on whet her certain conduct complied with int ernational law), the quest ion of a preclusive C ommander in C hief power, part icularly as to troop deployments, was not unknown. Some legislators occasionally raised constit utional concerns in congressional debates about proposed statutory restrictions; but this did not
reflect the ex istence of a well-accepted view that the President possessed such preclusive powers. C ertainly C ongress did not act during the first few decades as if it assumed the President enjoyed unchecked authority in the field, even in wart ime. And whereas the legislature often afforded the President substantial discret ion as to how troops could be used, it also occasionally regulated ongoing military operat ions in quit e 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 constit utional concern was still voiced in the course of congressional debates, but the [*952] legislat ure continued to enact, albeit only on occasion, important and constraining statutory measures both while host ilities were underway and in advance of
their outbreak. Perhaps even more im portant ly, with one possible and equivocal except ion during the Fillmore Adm inistrat ion, the Execut ive itself does not appear to have argued during the whole of the pre-C ivil War period for such preclusive authority. Presidents would sometimes construe apparent restrict ions in favorable ways, but they also com plied with statutes even when it seems clear that they would have preferred not t o. To be sure, there does not appear to be any case in which a President expressly acknowledged that because he lacked a preclusive const itutional 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 considerat ions of polit ics and policy played a key constraining role independent of legal judgment. But it is striking nonetheless that
throughout this period - again, with one cry ptic except ion - 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 const itut ional plan precluded them from taking a more defiant stance. A. The Backdrop of the Laws of War The first seven decades of constit utional pract ice were not marked by a surfeit of legislat ive act ion specifically restrict ing the President's manner of engaging the enemy during battle. This was not the product of a consensus that the Commander in C hief 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 operat ions by a body of widely accepted internat ional legal norms - namely, the "laws and usages" of war. The laws and usages of war were customary, but they were still understood to constitut e a crit ical component of the legal structure wit hin 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 court s, concerning their binding force. n16 Thus, notwithstanding recent
suggest ions that the Framers wished to ensure maximum execut ive flex ibility and discretion in war, n17 it is a mistake to think that they envisioned the President would be act ing 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 substant ially legalized. [*954] The broad acceptance of this legal framework no doubt tempered the legislative im pulse to impose independent strictures by stat ute. n18 The prospect of additional restrict ions 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 C ongress enacted so much addit ional legislative regulat ion 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 nat ion's taking actions that, under customary int ernational law, might provoke an actual war. n19 Accordingly, throughout this period C ongress was careful to exercise it s legislativ e power so as to ensure that the Execut ive would not, in the course of protecting the nat ional defense, unnecessarily engage in conduct that would, under the laws of war, justify other nat ions to make war against the United States. C ourts seemed to share this concern. In prominent cases, the Supreme C ourt treated the quest ion of whether a given execut ive action complied with the laws and usages of war as if it were inseparable from the quest ion of whether C ongress, in authorizing the part icular military conflict at issue, had intended to
free the President to exercise the full complement of powers that customary international law would sanct ion in the case of a war. In this regard, early const itut ional [*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 C ongress. n20 B. The Washington Adm inistrat ion: Organizat ion of the Military Establishment and the Calling Forth of the State Milit ia Wit h this crucial background in place, we can now examine the first phase of the history of the stat utory regulat ion of the federal military forces - a period coextensive with the Washington Administration. The young nation did not engage in military conflict s with foreign nations during
Washington's tenure as President; the most prom inent war powers questions of the time concerned whether C ongress had in fact approved specific offensiv e act ions ( in particular, against the Wabash Indians on the western frontier). There were therefore no prom inent debates about whether C ongress could impose limits on the President's const itutional war authorit ies. Nevertheless, this initial period of constit utional practice offers some evidence on three matters that shed light on att itudes about the extent (or existence) of the President's preclusive war powers. In each case, the ev idence tends to reinforce what appears to have been the assumpt ion of perm issible statutory cont rol, 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 stat ute C ongress enacted to
continue the military establishment from the preconstit utional system is instructive. It specified that U.S. troops "shall be governed by the rules and art icles of war which have been established by the United States in C ongress assembled, or by such rules and art icles 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. Inst ead, it imposed on the armed forces themselv es the rules promulgated in the Articles of War that the preconstit utional C ongress 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 not ion that Congress also had the authority to set forth legislat ive regulations concerning operat ional milit ary judgments that pertained direct ly to how the Executive could use force. Specifically, in the Third Congress, during a debat e over a bill to cont inue and regulate the military establishment, no less an aut hority than James Madison proposed an amendment prov iding "that the troops should only be employed for the protect ion of the frontier," n23 alt hough the House ult imately voted down the proposed geographic restrict ion. n24 There is also some important early evidence of execut ive 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 legislat ure controlled not only the general quest ion of whether to offer a milit ary 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 constit ution, the co- operat ion of other Powers." n25 2. Statutory Regulation of the Military Establishment. - For the very early years of const itut ional practice, we have only these fragmentary indicat ions of legislative and executive att itudes about the legit imacy 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 C ongress was largely responsible. Because the founding generation was wary of standing armies and expected that most nat ional military functions could and would be performed by state milit ia in the serv ice of the federal government, C ongress kept the military establishment in the early years very modest. In September 1789, for ex ample, C ongress passed a law "recognizing" the military establishment of about 700 [*957] troops that had remained from the preconstit utional system. n26 And although C ongress did gradually increase the size of the milit ary, n27 there would be no significant buildup until the prospect of war with France during the Adams Adm inistrat ion. This circumstance gave Congress a powerful measure of de
facto cont rol. So long as the President lacked a significant non-militia force to command, he would necessarily be dependent on legislat ive approval for the conduct of most milit ary affairs abroad, even at the operational level. To launch an attack by sea, for example, he might hav e no choice but to spell out to C ongress just what battle plan he envisioned, if only in order to specify the funding and supplies the legislat ure would have to allow him to raise in order to implement such a batt le 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 statut es that ex pressly recognized the President's broad discretion over the use of the (limited) t roops under his command. n28 But that did not mean the legislature resisted altogether the temptat ion to impose direct and
detailed constraints on the milit ary establishment it was slowly fortify ing. (a) The Nature of C ongressional Regulat ions of the Military Establishment. - During the first years of const itut ional pract ice, Congress imposed numerous specific rules for the organization and government of the armed forces, concerning matters large and small. The comprehensive statut e of 1790 prov iding for a permanent military establishment is the most telling example. It described the sorts of men who would const itute 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 rem unerat ion and rations, and once again directed that the preex ist ing Articles of War were to govern conduct until statutory amendment. n29 [*958] Also striking were several
enactments creat ing 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 rat ion included potatoes or turnips, and pudding; on Thursdays, a half-pint of peas or beans. n31 C ongress also used the power of the purse to delimit what would otherwise be the C ommander in C hief's broad discret ion to command and structure the military establishment , and it s specifications for military-related disbursements were often quite detailed. n32 Such intrusive and detailed regulations reflected a general assumpt ion that Congress had the power to restrict at least some of the authorities that the Commander
in Chief would otherwise be constit utionally entitled to exercise in the absence of statutory lim its. That is to say, Congress did not appear to regard the constit utional powers established by the C ommander in C hief C lause as necessarily preclusiv e of conflicting statutory regulation. This early legislat ive pract ice also suggests that C ongress 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 peacetim e. It clearly assumed it possessed the constit utional authority to impose quit e niggling restrict ions on the organization, action, and composit ion of the armed forces. How else to ex plain it s decision to establish by statute the precise menu for the meals that sailors were to be served? As these restrict ions were imposed outside the context of war, however, one
cannot know for cert ain whet her some allowance for greater constit utionally indefeasible executive discret ion might hav e been accepted in the event act ual host ilit ies were underway. (b) Executiv e Branch Responses to Detailed C ongressional Regulat ion of the Military Establishment. - Even though C ongress imposed detailed regulations on the budding military establishment in peacet ime, the execut ive branch was hardly pleased by many of them. In consequence, there was no shortage of interbranch disputes wit h regard to legislativ e control of the military establishment and milit ia. In fact, the Washington, Adams, and Jefferson Adm inistrat ions were marked throughout by pit ched struggles over how much leeway the execut ive branch enjoyed to use appropriat ions as it thought most efficacious, and many of these fight s concerned military
appropriations in [*959] part icular. n33 To avoid what appeared to be statutory lim its on appropriat ions, the executive branch during this period resorted to "various compensatory dev ices" that allowed it to "formally admit[] the principle of C ongressional control" while at the same t ime "relax ing the severities of it s application." n34 These pract ices were especially common in the context of military spending, where the Treasury Department concluded that broad, general grant s for the War Department could be "issued according to ex igencies" when "requisite for the public service." n35 This "pract ical" applicat ion of the appropriations laws regularly provoked the ire of many in C ongress, especially Representativ e (and future Treasury Secretary) Albert Gallat in, who viewed the practice in the military and naval establishments, in part icular, 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 Significant ly, however, as far as we have been able to determine, the execut ive branch never once asserted any constitut ional prerogat ive to disregard any of these stat utory limits, let alone any such authority under the C ommander in C hief C lause. Alt hough some modern President s, beginning with Truman, n37 have used the Commander in C hief power to justify disregarding spending requirements set forth in military appropriations, the first President's Adm inistrat ion never [*960] did. Instead, the Treasury Department (headed first by Alexander Ham ilton and then, after 1795, by Oliver Wolcott) consistently engaged in what it called a "pract ical int erpretat ion" of the appropriat ions laws, a construction that would avoid
"absurd, or mischievous consequences" and that would not render any substantiv e act s of Congress "unsusceptible of execut ion." n38 Wolcott explained that Gallat in's efforts to micromanage the executive branch through "minute subdiv isions of appropriat ions" would have "continually tended to ... paralize every branch of the public serv ice." 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 stat utory interpretat ion, in Wolcott's view, was not only "reasonable" but, just as important ly, "at all times publickly avowed, and well understood, and deliberately sanct ioned by Congress." n41 Some of these interpretat ions were ext remely aggressive, which suggest s that the line bet ween constitut ionally based defiance and creat ive construct ion may have
been thin when it came to influencing what funds would be available to the President and for what purposes. But when C ongress effectiv ely foreclosed this sort of creative construct ion, the executive branch had not laid any legal predicat e for assert ing a const itut ional trump. n42 No executive officials, as far as we are [*961] aware, ever espoused any const itut ional theory under which C ongress would not have the last word if it chose to impose it - not even as a background const itutional principle that might bolst er the strained interpretat ions being pressed. 3. Statutory Regulat ion 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 Adm inistrat ion, war powers debates often centered on the President's use
and control of the state milit ia. These were the military forces that the Framers assumed would be the principal means of serv ing the national government, in the absence of the sort of standing arm ies that they discouraged. n43 The C onstitut ion provides that C ongress has the power both to call forth the state milit ia into federal serv ice "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 C ommander in C hief C lause also assigns the President the command of the militia once they are called into federal service. In form, then, the structure of cont rol over the militia that conf ronted the early departments was not unlike that established by the Const itution for the
land and naval forces. C ongress could raise them and prov ide for their governance, organizat ion, and discipline. The President would "command" them. Beyond those basic assignments of authority, a range of quest ions remained as to the extent of C ongress's power to circumscribe the President's command discretion. From the outset, Congress chose to exercise its "calling forth" power largely by delegat ing 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: C ongress would enact a
measure triggering the President's const itut ional "command" authorit ies, but its delegat ion to the President to exercise such authorities would be confined so as to ensure they were exercised in a manner consistent with whatever object ives and direct ives Congress had expressly or implicit ly prescribed. [*962] Sometimes, moreov er, those aut horit ies would even be constrained by quite detailed delineations of the scope of the discret ion conferred. The first such statutes were designed to protect sett lers on the western frontier from attacks by the Wabash Indians. C ongress delegated to President Washington the authority to call forth the militia of the states "as he may judge necessary for the purpose" of "prot ect ing the inhabitants of the frontiers ... from the host ile incursions of the Indians." n46 A few years later, Congress aut horized Washington to
call forth the militia and stat ion them "in the four western counties of Pennsy lvania" 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 t ime, that the President did not enjoy an "inherent" const itutional power to init iate "offensive" action without legislativ e preapproval. n48 Even more interest ingly , two of C ongress's early general delegations of its "calling forth" power placed further conditions on the President's use of the milit ia for even statutorily prescribed purposes. For example, the Militia Act of 1792 provided that in cases where the President called forth the milit ia to stop an
insurrection, he had to first "forthwith, ... by proclamat ion, command such insurgents to disperse, and retire peaceably to their respect ive abodes, within a limited [*963] time." n49 Similarly, alt hough 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 perm itted him to use the milit ia to execute domestic laws only upon certificat ion by an Associate Just ice 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 restrict ion in effect imposed a neutral arbiter between the President and the force that would otherwise be available to him. n52 C ongress elim inated this judicial certificat ion
requirement in the Milit ia Act of 1795, n53 but retained at least two important lim itat ions on the President's cont rol over the milit ia, each of which indicated that the legislat ure did not believe its constitut ional authority to regulate the use of that force ceased the moment the milit ia were actually called into serv ice. The first lim itat ion provided that the milit ia could be used to help enforce domestic laws only until thirty days after the commencement of the next session of C ongress. n54 It thus presaged a statutory approach to regulating ongoing military operations reflected in the modern War Powers Resolut ion. 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 proclamat ion occur before the milit ia were called
forth. n56 In other words, Congress did not v iew its calling forth power as a simple on/off switch, by which it could either put the militia under president ial command or keep them reserved to state control. Instead, it felt no compunction about detailing how the President [*964] could use the milit ia even once they had been called forth and were under his command. 4. Conclusion. - The first eight years of constit utional practice established that the C ommander in Chief was a powerful actor, properly entrust ed with broad discret ion in exercising his powers of command. Indeed, he was even given the aut hority to determine the circumstances in which the main forces at his disposal, the state milit ia, could be called into service. There is no evidence that Congress attempted to wrest control from him of discrete tact ical decisions on the basis of its own v iew
as to how a part icular batt le should be handled. But these early years also showed that the Commander in Chief was constrained not only by polit ical realities but also by law. In addit ion to the laws and usages of war, which figured prominent ly, there was a growing and detailed statutory landscape. It set terms by which the actual milit ary establishment could be organized and supplied in quite part icularized ways, and it carefully regulated the ways in which the President could use the state milit ia that he had been delegated the power to call forth, somet imes im posing limitations applicable even after those forces had been deployed. Nevertheless, it was not until the Adams Adm inistrat ion that the first direct confrontation with the precise const itut ional quest ion of the President's cont rol over the conduct of campaigns actually occurred, as it was not
unt il these years that the nat ion encountered its first brush with something akin to a full- fledged war. C . The Adams Adm inistrat ion 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 sent iment spread across the nation, fueled in part by the int erparty polit ical contests for popular favor. In consequence, by 1797, possible war with France loomed on the horizon, and Congress sprang int o act ion. n57 As with its delegations of the power to call forth the milit ia, C ongress once again looked to the President to carry out military operat ions and sought to empower him in ways that would perm it him to be successful. In May of 1798, Congress enacted a law aut horizing the President , "in the event of a
declaration of war against the United States, or of actual inv asion of their territory, by a foreign power, or of imm inent danger of such inv asion," to raise an army of up to 10,000 men to serve for as many as three years. n58 Less than two months later, C ongress authorized the [*965] President to raise an addit ional twelve infantry regiments and six troops of light dragoons, "to be enlisted for and during the cont inuance 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 C ommander in C hief, once an armed conflict had
commenced - at least if he were not lim ited 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 C ongress had enacted statutes that perm itted the President to move the nat ion 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 disast rous for such a young nat ion. C ongress inst ead passed a series of statutes that both triggered the President's constit utional war powers and calibrated just what sort of force could be exercised on behalf of the United States. The legislat ure acted, moreover, not in one fell swoop at the very outset of hostilit ies, but instead over a number of years, thereby changing the rules of engagement over
time through a series of lim ited measures. The result was that, for the first time, const itut ional questions concerning the extent of Congress's power to regulate the conduct of campaigns were presented to all three branches of the nascent governm ent. 1. Legislative Act ion in the Run-up to the Quasi-War. - In 1797 and 1798, at the very outset of the conflict with France, the House of Representativ es played host to an instructive set of debates over proposed condit ions 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 wit h France). n61 Unlike Madison's sim ilarly restrictiv e proposal concerning the use of the militia during the Washington Administration, n62 these limitat ions would have affected regular forces, and they
precipit ated what was perhaps the most extensive legislative debate on the preclusive power quest ion unt il 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 C ongress appropriated funds to prov ide for certain ships, it was not completely free to instruct the President on how to use them. n65 Other Representat ives, part icularly Gallatin, strongly opposed such a not ion, arguing that the power to dict ate the use of ships was ancillary to C ongress's powers to provide funding for the ships in the first inst ance. n66 And somewhere between these two polar posit ions, Representative Harrison Gray Ot is at first suggested that although Congress could im pose 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 limit ing the ships to U.S. waters. n67 Ot is later indicated that although in his view C ongress could direct the particular permitted and proscribed uses of the ships (for example, not as convoy s), it would not be expedient for the legislat ure to do so. n68 [*967] Notwit hstanding the various positions (constit utional and otherwise) art iculated in this debate, as the actual outbreak of armed conflict approached, Congress appeared to resolve it in pract ice by asserting its lawmaking aut hority to define the terms of batt le in relat ively detailed fashion. French seizure of U.S. vessels prompted Congress to enact several dist inct statutes authorizing the use of milit ary force, particularly against French naval vessels. The statutes in quest ion - which established what would become
known as the "undeclared war," or "Quasi-War," with France - each triggered the President's aut hority to use the armed forces in a manner permitt ed for a belligerent party, but only for part icular sorts of actions against French vessels, in particular locations, for particular purposes. The first such law, enacted in May 1798, aut horized 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 nat ions" - French armed vessels that had committed "depredat ions 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 prov ided for the forfeiture and condemnation of goods and effects found on those seized French ships, with a proviso that forfeit ure would not extend to any
property of any cit izen or resident of the United States that had been taken by the French crew. n70 Then, on July 9, 1798, C ongress enact ed yet another statute that elim inat ed the restrict ion on the types of armed French vessels that could be seized. This law authorized seizure of any armed French vessel found within the jurisdictional lim its of the United States or elsewhere on the high seas. n71 These and related statutes meaningfully limit ed 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 part icular, 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 C ourt Enforces the New Legislation. - The highly ret iculated framework
established by these and other statutes produced a number of legal disputes. The most significant for present purposes led the Supreme C ourt, in the case of Little v. Barreme, n72 to [*968] address whether executive act ion in the conduct of military operat ions conformed to statutory bounds. Even before the decision in Litt le, however, the Court indicated that it was likely to regard these lim ited authorizing statutes not only as hav ing empowered the President to exercise his war powers, but also as hav ing restricted what he could do with them. In Bas v. Tingy, n73 for ex ample, the Court was asked to decide which of two statutes enact ed in this period determined the amount of salvage that would be due for the recapture of an American ship. The quest ion led the C ourt to canvass the internat ional laws and usages of war in some detail, as the case
hinged on what was meant by the statutory term "enemy." n74 The C ourt concluded that the ship, if taken from the French, was taken from the "enemy," and in explaining that conclusion Justices Samuel C hase and Bushrod Washington described the nat ure and effect of Congress's statutory scheme. n75 By enact ing the series of statutes concerning military engagement with French vessels, Justice Chase explained, Congress had "authorised host ilit ies on the high seas by certain persons in certain cases," but had not given the President the authority "to comm it host ilit ies on land; to capture unarm ed 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 aut horize 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 Just ice Washington noted, in apparent accord with Just ice C hase's understanding, that in such conflict s those authorit ies "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 im plied statutory limit ations 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] wit h a French resident. n79 In order to enforce this latter prov ision, the law authorized the President to instruct commanders of public armed vessels to examine ships that were suspected of violat ing the Act, and imposed a duty on commanders to seize any ship that appeared to be "bound or sailing to any port or place wit hin 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 lim ited, as were the words of the statute, to interdict ion 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 direct ed 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 conform ity with this order, Captain George Litt le, commander of the U.S. frigate Boston, seized the Fly ing Fish, a ship believed to be a U.S.-owned vessel sailing from a French port, and sought condemnat ion. 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 president ial orders. n84 Yet the Supreme Court affirmed the judgment of the court below, in a unanimous opinion by C hief Just ice Marshall. Chief Justice Marshall
held, in effect, that even though the President might well have had the inherent constit utional power to issue such an order in the absence of a statute, n85 that did not matter because federal statutory law had prohibit ed the seizure by im plication. By providing the Executive wit h "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 direct ion im plicit ly restrict ed what might otherwise have been the C ommander in C hief's constit utional aut hority to seize ships going in the opposite direct ion. And while C hief Justice Marshall was plainly troubled by his ultimate conclusion that the
officer following the commander's orders enjoy ed no good faith immunity from liability, n87 there is no suggest ion in his opinion, or that of any Justice of the C ourt - and no evidence that any of the parties, including the Execut ive, argued - that Congress could not lim it the President's tact ical flex ibility 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 cessat ion to transact ions between United States persons and the French that were thought to give aid to the enemy, it did not directly regulate military engagement wit h the enemy it self. It concerned inst ead how force could be deployed against American ships operat ing in an act ive combat zone. But during this same conflict with France, Congress did pass laws dealing specifically with the
t reatment 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 retaliat ion 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. cit izen who had been im pressed by the French. n89 This stat ute im posed what appeared to be a significant lim itat ion on President Adams's discretion over how best to engage the French. It also set forth an affirmative rather than restrict ive 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, C ongress
also enacted stat utes that sought to temper the degree of coercion that could be brought to bear upon prisoners and other detainees. n91 And in March 1799, C ongress enact ed rules and regulat ions for the government of the navy, which included an art icle making it unlawful for any person belonging to a ship or vessel of war in U.S. serv ice, when on shore, to "plunder, abuse, or malt reat 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 regulat ions for his charges, [*972] "shall keep in view also the custom and usage of the sea serv ice most common to our nat ion." n93 There is no ev idence that any of these measures gave rise to constit utional concerns, notwit hstanding their seem ingly intrusive regulatory features, and we have
found no record of President Adams complaining that these statutes were inconsistent with the im perative of conducting the military conflict in an appropriate manner. Finally, in the midst of all this legislat ive 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 nat ives, citizens, denizens, or subjects of the hostile nat ion, age fourteen and upward, found in the United States. n95 This Act, which is st ill in force in modified form, n96 was passed in anticipat ion 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 effect s, either by the terms of a governing t reaty or "according to the dictates of humanity and national hospitalit y." n97 4. Conclusion. - The Quasi-War with France resulted in a de facto rise in execut ive 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 nat ion. Perhaps because the conflict never resulted in a declarat ion of war, its parameters remained confined and carefully delineated by stat ute. C ongress, far from simply authorizing the use of force and then leaving matters to the Execut ive, from the very onset of the host ilities with France asserted direct (and, as it turned out, ongoing) statutory cont rol
over many matters - from the rules of engagement at sea to the treatment of enem ies 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 C ourt 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 ret urn to a peacetime posture, with reliance principally on the state milit ia rather than on the standing army. n98 C ongress responded in 1802 by enact ing a law reducing the size of the regular army from 5500 to approximat ely 3300 t roops. n99 C ongress then generally enacted statutes that afforded the new President wide
discretion to use the milit ary 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 obstruct ions of the laws in any case where the Milit ia Act of 1795 had previously authorized him to use the milit ia 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 Milit ia Act of 1795]," n102 including the requirement that the President issue a proclamation that "insurgents" should "disperse, and retire peaceably to their respect ive abodes, within a limited t ime," n103 it reflected a growing acceptance of both the
existence of a standing army and the President's quite subst antial role in overseeing it. Notwithstanding these broad grant s of discret ion to the President, and even though no great armed conflict loomed that would prompt a flurry of statutory activ ity 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 expendit ure. As a general matter, appropriat ions and spending practices did not raise the constitutional [*974] quest ion of a Commander in C hief override. Even though Albert Gallat in was now Jefferson's Treasury Secretary, appropriat ions practice in the Jefferson Administration soon became "largely indist inguishable from pract ice during the Federalist period." n104 No matter how
appropriations statutes were designed, it seemed, execut ive officials construed them flex ibly, sometimes by reading them to allow general funds to be used to supplement specific statutory lim its, other times by adjudging that they permitted "ant icipatory" spending for essent ial functions authorized by Congress. Important ly, as was true during the Washington Administration, n105 such creat ive construct ion was not rooted in a claim of constit utional aut hority on the part of the President. Instead, the int erpret ive pract ice rested on policy-based arguments about the im portance of affording the President flex ibility in adm inistrat ion of an expanding bureaucracy, and on the contention (no doubt in part fanciful) that C ongress itself should be deemed to have been legislating wit h such pract icalit ies in mind. n106 But a military crisis in 1807 prompt ed
Jefferson in one case to incur financial obligat ions for the nation without purporting to justify them by creat ive statutory construction. n107 Significantly, however, even in this outlier case, Jefferson's argument did not rest on the notion that C ongress 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 designat ion as C ommander in Chief. Instead, the Jefferson Adm inistrat ion's defense was premised on the far different, and conceptually much more lim ited, not ion of temporary necessity - an argument that, in this case at least, does not appear to have been a const itut ional trump at all. On June 22, 1807, while C ongress 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 act ion might precipitate a war wit h England. The next month, Jefferson's cabinet voted to purchase on credit t imber for about 100 gunboats, along with hundreds of tons of saltpeter and sulphur - the requisites for gunpowder. n108 Apparent ly no one in the executive branch thought the ex ist ing 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 C ongress will sanction it." n109 The legal literature has traditionally treated the C hesapeake incident as a classic ex ample of the Commander in Chief making an expenditure that could not be defended on even the most creat ive interpretation of appropriat ions 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 const itut ional prohibition on drawing money from the treasury except "in C onsequence of Appropriat ions made by Law"; n111 it appears instead that Jefferson merely incurred an obligat ion on behalf of the United States, not that he ex pended any funds. n112 Be that as it may, when C ongress reconvened the following October, Jefferson did not argue that the ex ist ing statutes authorized the contract. Instead, he asserted a part icular claim of limited necessity: The moment our peace was threat ened, I deemed it indispensable to secure a greater provision of those art icles of military stores with which our magazines were not sufficiently furnished. To have awaited a prev ious and special sanct ion by law would hav e lost occasions which might
not be retrieved. I did not hesitate, therefore, to authorize eng

e 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 Foundingera 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
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 t scue 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
o re

time," and the 1807 Act appeared to incorporate by reference this "prerequisite[]" 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 inter

im allowed Lincoln to act unilaterally and with dispat ch, wit hout the need to have his decisions debated and ratified (and possibly

amended or barred) by C ongress. 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 proclamat ion 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 C ongress, his action "was believed to be strict ly legal," n203 by which Lincoln presumably meant to refer to the statutory delegations to the President in the Milit ia Act of 1795 and the Insurrection Act of [*998] 1807. n204 ( The Supreme C ourt would later hold in the Prize Cases that those statutes authorized the blockade. n205) Wit hout statutory authorizat ion, Lincoln dispat ched war ships to Fort Sumter and instructed them to return fire if attacked, n206 but there was no
content ion that such act ion conflicted wit h any statute. Three other of Lincoln's actions, however, might fairly be said to have transgressed statutory limit s. We discuss Lincoln's explanat ion of each of them in turn. As we shall see, Lincoln and his Administration repeatedly avowed that C ongress, by statute, retained the final word as to not only these three matters but others. Lincoln also refrained from ever asserting any aut hority to disregard statut es 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 disclaim ing that very authorit y. 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" prerogat ive: he could appoint the Secretary of War as his "regular organ" to promulgate rules and orders as the act s of the Executive, "binding on all wit hin the sphere of his just authority." n208 That hierarchical aut hority was not, however, supplemented by a substantive preclusive prerogat ive, as Bates ex plained in the very next sent ence: "But this power is limit ed and does not extend to the repeal or contradiction of ex ist ing stat utes ... ." 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 pet itions. The notion of execut ive "suspension," then, is something of a misnomer. What Lincoln's order allowed was for army generals to detain persons wit hout conforming to the procedural requirements otherwise applicable by virtue of constitut ional or stat utory requirement s that usually govern such deprivat ions of libert y. n211 At the lim it, 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 perm it his officers to disregard actual judicial orders grant ing habeas relief, including one from
C hief Just ice Taney, sitt ing as a circuit judge, in the famous case of Ex part e Merryman. n212 To ignore such judicial orders was to scoff at an executiv e obligat ion that was arguably contemplated by statutory law n213 and to render the 1789 statute essentially meaningless insofar as its prime funct ion had been to check unlawful execut ive detent ions. In this sense, the "suspension" issue presented as serious a C ategory Three case as one could conjure. In his July 4 message to Congress, Lincoln defended his act ion in "suspending" the writ with his famous remark suggesting that a President might choose to violat e a single law lest "all the laws but one ... go unexecuted." n214 But in making this statement , the President was not assert ing a general const itut ional power as C ommander 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 act ion on an emergency basis when doing so is necessary to preserve the nat ion. n215 Even here, Lincoln was careful to insist [*1000] that C ongress retained ult imate control, and he readily conceded that his bold initiatives, including those regarding the suspension of habeas, were subject to statutory qualificat ion or override: "Whet her there shall be any legislation upon the subject, and, if any, what, is submitted ent irely to the better judgment of C ongress." n216 In other words, Lincoln was arguing that so long as a power resided in the C ongress, and the C ongress 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 preserv e the nation. Although such initial executive action would clearly
shift the burden of inertia sharply in the Execut ive's favor, Lincoln did not challenge C ongress's authority to countermand the President's emergency act ions. But as much as Lincoln made reference to necessity, he ultimately rested his legal posit ion on an even more technical and bounded ground, albeit one that was and is still quite cont roversial. Lincoln argued that the Suspension C lause it self 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 C lause authorized both Congress and the President to render the habeas statute ineffectiv e in cases of emergency , making this part icular exercise of emergency executive power especially legit imate as a legal matter. This may not hav e been the
st rongest reading of the Suspension C lause - 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 C lause to defy statutes regulating the conduct of war. n219 [*1001] 2. Expending Unappropriated Funds To Raise Troops. - On May 3, 1861, Lincoln issued a proclamat ion in which he "called into the serv ice 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 addit ion of eight regiments of infantry, one regiment of cavalry , and one regiment of art illery, making altoget her a maximum aggregate increase of 22,714 officers and enlisted men," and that the navy enlist an addit ional 18,000 seamen. n220 These increases in the army
and navy did not, perhaps, transgress any ex press specific statutory lim its; but they did violate the implied lim it established by Congress's ex ist ing appropriat ions statutes. Therefore this conduct could fairly be v iewed, as some have portrayed Jefferson's unilateral conduct in the Chesapeake incident in 1807, n221 as an execut ive initiative that violated a statutory restriction - in addition to violating the const itutional 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 prov ide and maint ain a navy. n223 In defending this action in his July 4 address, Lincoln did not invoke any not ion 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 C ongress's absence at a moment of crisis. He explained that he had acted only because C ongress was not available and because he was confident that he was a surrogate of the legislat ure, in effect acting in trust for it . In this sort of case, Lincoln argued, technical com pliance wit h 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 C ongress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of C ongress." n224 3. Secret and Unauthorized Expendit ures to
Privat e Persons To Raise Troops. - The third of Lincoln's apparent statutory transgressions is the least remarked upon but perhaps the most im portant 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; direct ed the Secretary of War to authorize two New Yorkers (including the Governor) to make arrangements for the transportation of t roops and munitions; and directed the Secretary of the Treasury to advance two million dollars to three New Yorkers - John Dix, George Opdy ke, and Richard Blatchford - "to be used by them in meeting such requisitions as should be direct ly, consequent upon the military and naval measures, necessary for the defense and support of the Government." n225 These expendit ures
were inconsistent with Congress's appropriations. The priv ate contract s also appear to have violated an ex ist ing statute that prohibit ed 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, putat ively because Lincoln was afraid the execut ive branch contained many disloyal employees who could not be trusted in such matters. n227 Notably, Lincoln omitted ment ion of these expenditures in his July 4, 1861, speech to C ongress. They were not publicized unt il the following April, after the House of Representativ es had censured former War Secretary Simon C ameron 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 wrot e to C ongress to ex plain that Cameron had act ed 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. C onsistent with his apparent notions of constit utional [*1003] restraint, Lincoln did not attempt to just ify his undisclosed extrast atutory actions on the ground that, like Jefferson before him, he had all along acted only on the assumpt ion 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 C ongress to even disclose it. Perhaps for that reason, Lincoln confessed that some of these measures "were without any
aut hority of law," but claimed they were justified nonet heless because they were needed to ensure that "the Government was saved from overthrow." n229 Lincoln did not claim that his act ions were legal, let alone that he had a constit utional prerogative to disregard C ongress's will as ex pressed in statutory direct ives. Instead, he confessed to being responsible for "whatev er error, wrong or fault was committed." n230 Such a confession of error suggests Lincoln's unwillingness to articulate any not ion that wart ime decisions are const itut ionally comm itted to the President alone. For if he had rest ed on that alternat ive sort of argument (a version of which Fillmore had obliquely hinted at years before n231), Lincoln could hav e cloaked all of his act ions (including these) in the cover of the Constit ution. And yet Lincoln did not inv oke that argument. 4.
C onclusion. - When Lincoln made his speech to C ongress on July 4, 1861, he had good reason to believe C ongress would rat ify most of his decisions. And one month later, C ongress 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 unt il 1863 (more about which below). n232 But Lincoln certainly did not suggest it was irrelevant whether he would obtain such approval from C ongress; on the contrary, he portrayed himself as being subject to the legislature's ult imate det erm inat ions. n233 In light of the support and good will he enjoyed [*1004] in C ongress in July 1861, such deference to the legislature was certainly an advantageous posture for Lincoln to assume. But notably, Lincoln did not sim ply receive whatever authority he requested. As it happened, even after the
crisis of April 1861, C ongress occasionally enacted statutes that impinged on the President's discretion with respect to the conduct of the war. Although the legislat ure generally granted Lincoln broad discret ion, in some cases C ongress 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 C onfiscat ion Act of 1862 is an example of the latter. C . The Habeas Corpus Act of 1863 The one major init iat ive of Lincoln's that C ongress did not immediately authorize in the summer of 1861 was the suspension of habeas corpus. When C ongress 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 anot her, on C ongress's power to bind the President as to his preferred means of dealing with the enem y. 1. C ongress Giv es the President Less than He Wants. - Senator Lyman Trumbull, chair of the Senate Judiciary Committee, explained that although Lincoln's unilat eral act s were "necessary when C ongress had not assembled," once Congress convened "clothed wit h 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 hav ing regulat ed by law the action of the Execut ive." n234 Trum bull proposed to codify, and thus to specify the terms and lim itations of, the suspension of habeas that Lincoln had instit uted earlier that year. n235 Wit hout such legislat ion, Trum bull feared, the unregulated exercise of military aut hority upon cit izens 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 C onstitut ion and the law, ... the most important object that can engage the attention of C ongress." n237 C ongress did not finally settle on habeas legislat ion until March 1863, when it passed the Habeas C orpus Act. n238 For the most part, the Act rat ified what Lincoln had done. Sect ion 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 significant ly, sect ions 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 "cont inued unimpaired" by the war and if a grand jury had failed to indict them after their detent ion; section 2 also required [*1006] officers hav ing custody of such prisoners to obey such judicial orders. n240 2. The President Responds and the Supreme C ourt Weighs In. - Lincoln raised no const itut ional object ions to the newly restrict ive legal framework, but he did construe the exemption in sect ions 2 and 3 very narrowly. In particular, his Adm inistrat ion 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 Adm inistrat ion thought the exempt ion did not apply were William Bowles, Stephen Horsey, and Lambdin Milligan, U.S. citizens liv ing
in Indiana who had been conv icted by military commission for offenses that included conspiring to overthrow the government, seizing munit ions, and aiding the rebel army. They sought writs of habeas corpus, claiming that they should have been transferred out of milit ary 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 alt hough the C ourt's decision was issued after the guns had fallen silent, the Court plainly v iewed the issue as concerning the constit utional war powers of the Executiv e. The case is most famously recalled for the majority's holding that the detainees had a const itut ional right to be released from military custody - that even C ongress could not aut horize
these citizens' military detention and trial, as long as civ il courts were open (a question on which the C ourt div ided 5-4). But before reaching that const itut ional quest ion, the Court addressed the statutory quest ions of whet her 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 perspect ive of the C ommander in C hief, especially with respect to detainees such as Milligan. n244 The Attorney General thus st rongly urged the Court to hold both that C ongress had afforded the President the det ention authorizat ion in question and that [*1007] the constit utional liberties available to criminal defendants in peacet ime were inapplicable in war. In support of the latter
argument, he wrote in his brief: After war is originated, ... the whole power of conduct ing it, as to manner and as to all the means and appliances by which war is carried on by civ ilized nations, is given to the President. He is the sole judge of the ex igencies, necessit ies and dut ies of the occasion, their extent and durat ion. During the war his powers must be wit hout lim it, because, if defending, the means of offense may be nearly illimit able; 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 combinat ions are at once to be thwarted, which the slow movement of legislat ive act ion cannot meet. n245 In pressing this broad argument about the inapplicability of traditional const itut ional 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 discret ion in war, the government did not ex press any doubts about Congress's constit utional power to lim it that discret ion. Notwit hstanding the Administration's claim that the Constit ution of it s own force im posed no such restrict ions, its brief did not suggest that the Habeas Act would be unconst itut ional 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 "axiomat ic in the absence of all restraining legislat ion by C ongress." n247 The Adm inistrat ion [*1008] even cited approv ingly Justice Story's pro-congressional- power language in Brown: "The sovereignty, as to declaring war and limit ing it s effects, rests with the legislature. The sovereignty as to it s execut ion rests with the President." n248 Such
a recognit ion of congressional power was no problem in Milligan it self precisely because, the governm ent argued, Congress had aut horized the President's act ions in the case when it prov ided for the writ's suspension in the 1863 Act. As for the C ourt, prior to reaching the government's claim about the irrelevance of constit utional protections in wart ime, it unanimously rejected the Execut ive's statutory argument. It held not only that the Habeas C orpus 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 civ il judicial proceedings had not been commenced against Milligan within the specified period, he was entit led to release. n249 This unanimous
holding is itself a st rong indication of a general understanding during the C ivil War era that the President did not enjoy an unbridled const itut ional 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 Litt le half a cent ury earlier, n253 the case provided further indicat ion of the C ourt'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 represent ed the first instance in which the claim to a preclusiv e C ommander in C hief power over tactics in wart ime had been plainly endorsed in a Supreme C ourt opinion a point to which we return at the close of our discussion of this era. n254 [*1009] D. The Great C ongressional Debate over the C onfiscation Act of 1862 The Habeas C orpus Act of 1863 is the prime example of a C ivil War statute that tempered the exercise of the President's war powers, in a case where Congress thought the C hief Executive was unduly infringing indiv idual liberty. By contrast, one year earlier, C ongress had enacted a statute largely animated by the opposite not ion - that the President had been insufficient ly aggressive in exercising his war powers. The Confiscat ion Act of 1862, or the Second C onfiscat ion Act (SCA), is a striking example of C ongress enact ing legislat ion, 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
enem y. In addition, the debate on the bill in the Senate contains what almost certainly is the most extensiv e and remarkable public discussion in our history concerning whet her and to what extent Congress may enact legislat ion to regulate the exercise of the President's war powers. Of further int erest 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 quest ion 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 essent ial that the border states not be given any incent ive 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 relat ively large fact ion believed the legislative branch possessed quit e extensive war powers. Its members began to focus attent ion on a series of proposed statutes to seize and confiscate rebel property, and to deny rebels their slave labor. The init iative was fueled not only by hostile Southern actions, but also by the increasingly widespread impatience wit h the manner in which Lincoln was prosecuting the war. n255 2. The First C onfiscat ion Act and the Fremont Affair. - The First Confiscation Act, enact ed in the summer of 1861, aut horized confiscat ion 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 Adm inistrat ion implemented it only sporadically. [*1010] Reflecting a similar concern, Lincoln required Army Major General John C . Fremont to temper his order confiscat ing all property of persons found in arms against the United States in Missouri, including an emancipation of their slaves. Alt hough Fremont's action, which went beyond the terms of the First C onfiscat ion 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 C onfiscat ion Act allowed.
n259 This pleased Democrats and border-state Unionists, but abolit ionists such as Senators C harles 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. - Wit h Northern newspapers clamoring for more assertive prosecut ion 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 C onduct of the War to oversee the Union war efforts. The committee convened 272 meetings in it s 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 ex posure 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 invest igat ion alone [*1011] would allow. n262 And so the first substant ive bill introduced in the Senate of the 37th Congress was a stricter confiscat ion 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 propert y. In the final bill, enacted in July 1862, the power to seize was ex pressly described in the bill as an incident of war, an exercise of traditional belligerent authority undertaken for the purpose of prosecut ing the
conflict. It provided that "to insure the speedy term inat ion of the present rebellion, it shall be the duty of the President of the Unit ed States to cause the seizure of all the estate and property, money , stocks, credit s, 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 prov ision in section 9, which declared that cert ain cat egories of slaves of armed rebels - those who would escape and take refuge with Union forces, those who would come under the cont rol 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 servit ude, and not again held as slav es." n264 4. The Debate Over the Second C onfiscat ion Act. - The bill was
under consideration for all of the second session of the 37th C ongress, and "an amazing volume of oratory was poured forth in its discussion." n265 In addit ion to disputation about the wisdom of the legislation, legislators also addressed several const itut ional issues. These ranged from whet her the proposal conflicted wit h internat ional laws and thus exceeded congressional powers; n266 to whet her the C onstitut ion [*1012] permitted Congress to free slaves, even as an incident of war; n267 to matters concerning Fifth Amendment right s to due process and just com pensat ion; and even to whether a permanent dispossession of property was consistent with the guarantee in Art icle III that "no Attainder of Treason shall work Corruption of B lood, or Forfeiture except during the Life of the Person attainted." n268 But for all the constitut ional debate the
Second C onfiscat ion Act sparked, and for all the scholarly parsing of it that has occurred in recent years, there has been remarkably litt le considerat ion of the discussion of the const itut ional issue that is our immediate concern. C ongress also engaged in a separat ion of powers debate concerning not whether confiscation and emancipat ion were perm issible war tactics, but instead which branch of the federal government had ult imate control over the question of whet her such tact ics 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 confiscat ion were perm issible under the laws of war, it would be for the President, not C ongress, to determ ine whether to exercise that belligerent right, because "the execut ion and direct ion of a
war is wit h the President." n270 Although the President was bound by the laws of war, in Sheffield's view, Congress did not hav e any right to instruct the Executiv e how to discharge that duty. n271 On this view, C ongress 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 assert ing that Congress could not determine when, where, or how the army should fight, and averring that the contrary view was "monst rous." n273 [*1013] Cowan's themes were taken up in much more det ail, and wit h much greater erudit ion 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 confiscat ion measure was unwise, fearing that it would prolong the war. Because confiscation of enemy belligerents' property was, B rowning argued, "an object which is now fully within the const itut ional power of the Execut ive," n274 it was not something that Congress could com pel. There is no indicat ion that any Senator other than Cowan supported Browning's const itut ional argument during the late June debate. Several Republican Senators (Wade and Sumner among them), howev er, subjected it to a withering count erargument in support of the not ion that "C ongress may make all laws to regulate the dut ies and the powers of the C ommander-in-C hief." n275 After canvassing in great detail the context in which the
C ommander in C hief C lause was framed, for ex ample, Senator Jacob Howard of Michigan emphasized that the title "C ommander-in-C hief" could not possibly give the President a plenary power to cont rol war unburdened by statutory constraint. Washington was designated "C ommander- in-C hief" during the Continental Congress, and yet C ongress plainly had the power to cont rol his military maneuvering, Howard emphasized. n276 Nor, said Howard, had he found either "in the Federal convention, [or] in any State convent ion, one word, intim ation, 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 cont inued and repeated blundering and bungling of
military operations when cont rolled and governed by Congress that influenced the convent ion 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 appoint ed him to be C ommander in Chief. Under the Articles of C onfederat ion, that appoint ing aut hority was the C ontinental C ongress; after 1789, it was the Constit ution itself. Thus, in such role the President [*1014] "is subject to all the restraints that the Const itution 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

he 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
could not direct the C ommander in C hief with respect to t

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
rces.'" 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-inchief." 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 PostReconstruction 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 treatybased 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. W

hen 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. Roosev elt claimed no power to disregard such a funding curtailment, arguing only that

he already had the money from prior appropriations and daring C ongress to "try and get [the fleet] back." n366 Roosevelt confronted a much more serious legal problem two years later, again wit h respect to Congress's control over the navy. Having concluded that navy ships should be exclusiv ely manned by naval officers, [*1036] the President issued an executive order restricting the Marine Corps to on-shore bases. n367 C ongress, however, cut off this initiativ e by enact ing a law providing that no part of an appropriation for the Marine C orps 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 Confiscat ion Act. The opposit ion to the legislat ion
was led by Senator William Borah of Idaho. Alt hough Borah was an isolationist who had a very narrow v iew of the President's independent power to send t roops abroad without congressional approval, n369 he argued on several occasions that C ongress had lim ited authority to restrict the President's assignment of troops when doing so was wit hin the President's const itut ional power. n370 His opposit ion to the Marines-on-ships bill was representat ive of his position. Borah thought the bill would be unconst itut ional because alt hough C ongress 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 part icular instance." n371 Borah conceded that "C ongress could undoubt edly prev iously establish a rule and
regulat ion 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 C ummins 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 cont rol the President's decisions with respect to t roops, this did not mean the President was ent irely at the whim of Congress, because the power of the veto would prev ent much regulation contrary to the wishes of the Commander in Chief. Quot ing a leading aut hority on courts-martial, he ex plained
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 legislat ion as to destroy it s ut ilit y." n379 Senator Hale added that, as a pract ical matter, it is "undoubted" that C ongress 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 t ime 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 constit utionality of the Second C onfiscat ion Act and the force-restrict ing measures at issue in the Quasi-War with France. This is not, of course, conclusiv e ev idence of the constit utional understanding that prevailed in this period. But it is significant that President Roosevelt , on his next-tolast day in office, signed the bill, apparently wit hout objection. Moreover, as we explain below, the Attorney General in the Taft Administration thereafter formally opined that the Marines-on-ships requirement was const itut ional. 2. Early Twentiet h-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 legislat ion that he had "no doubt of the constit utionality [*1038] of the prov ision." n381 "Inasmuch as C ongress has power to create or not to create, as it shall deem ex pedient , a marine corps," he explained, "it has power to creat e a marine corps, make appropriation for its pay , but provide that such appropriat ion shall not be available unless the marine corps be employed in some designated way." n382
The next year, Attorney General Wickersham sim ilarly concluded that where a series of statutes had prescribed that a floating dry dock be located at the naval reservat ion in Algiers, Louisiana, the President did not have aut hority as Commander in Chief to move that dry dock to the nav al station in Guantanamo, C uba, even where the Executiv e 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-Just ice James C lark McReynolds, opined that a navy regulat ion ex pressly approved by President Wilson, which would have perm itted the commandant of the Marine Corps to determine the stat ion and duties of Marine Corps "staff," was invalid because it was inconsistent with
a legislat ive expectat ion, 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 C ongress and the execut ive branch. It came from what might be an unex pected 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 C olumbia Univ ersity that are commonly recalled for their reject ion of Roosevelt's expansive "stewardship" theory of the presidency. Taft expressed a much less capacious v iew of the President's inherent powers to act unilat erally. n386 But while this rebuke of
Roosevelt's theory as an "unsafe doctrine" n387 was the principal theme of his C olumbia lectures, Taft also briefly addressed the quest ion of what C ongress could do to cont rol the more narrowly defined constitut ional powers that the President did enjoy. For the most part, Taft acknowledged C ongress's broad authority, writing that "one of the chief functions of C ongress" is to "fix[] the method in which Executiv e 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 Moreov er, Taft assumed that C ongress 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,
ident ify certain limit s: 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 nav y." n392 In his lectures, Taft suggested two ways in which Congress might im perm issibly impinge on this asserted discret ion to determine troop movements. First, C ongress could not place that discret ion "beyond [the President's] cont rol in any of his subordinates" n393 - a correct and fairly unobject ionable statement of what we have been calling the preclusive prerogativ e of superintendence. Second, Congress could not "themselves, as the people of Athens attempted to, carry on cam paigns by votes in the
market-place." n394 Of course, if what Taft meant by his At henian analogy was simply that C ongress cannot direct the military by a simple legislat ive plebiscite, as it did in the preconstit utional era, then of course that is unobject ionable, 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 C ongress could not order battles to be fought on a certain plan, and could not direct part s of the army to be moved from one part of the country to anot her." n395 4. The Wilson Administration and the Era of Isolat ionism. Taft presumably intended to confine his proviso concerning the movement of troops to cases involv ing regulat ions of the military wit hin an actual theater of war. Insofar as this limitat ion on Congress's power to affect troop movements was meant to hav e a broader applicat ion (as Professor Pomeroy's treatise indicated the principle should), it was soon debated in C ongress. Just after World War I, President Wilson stationed troops in Siberia without prior stat utory authorization, which [*1041] prompted fleet ing discussion in Congress about whether it would be const itut ional to enact a law requiring the withdrawal of t roops from a nation with which we were at peace. n396 Representative William Mason said at a House hearing that C ongress had an "absolute power" to impose such a requirement, whereas Representat ive Julius Kahn expressed skepticism.
n397 At that same hearing, Secret ary 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 "paraly ze" 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 quest ions, including the const itut ionality of the proposed Siberia withdrawal hypot hetical itself. n399 Although Congress took no act ion to compel the withdrawal of the troops from Siberia, the years between the World Wars were marked by a national legislat ure controlled by
representatives fervent ly committed to avoiding U.S. involvement in European wars. This isolat ionist 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 prominent ly 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, im posed a strict arms embargo against states engaged in war (including the warring parties in the Spanish C ivil War) ; a ban on loans and credits to such parties; and a prohibition on the use of U.S. ships to carry munit ions to belligerents. Two years later,
with European war loom ing, the Allied powers were desperat e for aid from the United States. Roosevelt was eager to prov ide such assistance, which he thought critical for U.S. security purposes. He was severely lim ited, however, by the 1937 Neutrality Act and by a recalcitrant C ongress that was not inclined to abandon its isolationist ways. Roosevelt st rove to pass liberalizing legislat ion, 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 constit utional 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 constit utional right to just ify a disregard of the Neutrality Act as a matter of law" - that "to act without aut hority 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, alt hough Roosevelt repeatedly chafed at the lim itations that the neutrality acts im posed, n405 he pursued a dual-pronged strategy. He sought legislat ive amendment if possible. Where that approach seemed untenable, he sought
ways to construe the existing statutes narrowly to prov ide him some breat hing 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 imm inent hostilities. Although Roosevelt would hav e had a strong basis for arguing that he could act in the absence of a legislat ive lim itat ion, we have not found any ev idence that he ever invoked any substant ive, preclusive constit utional power as Commander in Chief in the prewar period. 1. The Torpedo Boats and the Dest royers Deal Before the War. n407 - On May 15, 1940, five days after Hit ler's arm ies had inv aded northern France and
Winston Churchill had been installed as Brit ish Prime Minister, Churchill sent a telegram to President Roosevelt inform ing him of Western Europe's dire prospects - "The scene has darkened swiftly" - and pleading with him to take substant ial steps short of war in order to assist the Allies: "You may have a completely subjugat ed, 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 prov isions. In particular, over the next weeks and months, the British repeatedly conveyed to the Americans their "naval priorit ies" 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] C hurchill mentioned in his init ial telegram) and part of a
group of motor torpedo boat s, or "mosquito boats," that were then being constructed for the U.S. navy, which could be prov ided to England by the manufacturers if the federal government signed off on the deal. n410 Roosevelt at first thought the transfer of the dest royers would be infeasible because it would require new legislation from Congress, n411 and so the Brit ish began to concentrate on obtaining the torpedo boats. n412 Roosevelt brushed aside legal concerns raised by naval lawyers, and set the wheels of the transact ion into motion. When isolat ionists in C ongress got wind of the deal, they began to raise object ions. 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 say ing, "I am glad Bob Jackson looked up the law on the subject." n418 Roosevelt then turned his attention to the possibility of conv eying the over-age dest royers to Britain. Churchill continued to plead with him to do so imminent ly, in order to hold
the English C hannel, lest Britain fall to Hit ler. n419 Roosevelt agreed about the surpassing im portance [*1045] of the deal: in a cabinet meeting on August 2, 1940, there was unanim ity that (in Roosevelt's own words) "the surviv al of the Brit ish Isles under German attack might very possibly depend on their gett ing these dest royers." n420 But the neutrality acts posed a substantial impediment. In addition to the 1917 statute, isolationists led by Senator Dav id Walsh had just enacted another statute in 1939 prohibit ing transfers of armaments unless either of the service chiefs of staff had prev iously cert ified 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 evolv ed 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 restrict ions, however, Roosevelt was rebuffed. n423 The dest royers deal was salvaged by a creat ive statutory construct ion first suggested by Benjamin C ohen, a brilliant Interior Department lawyer. Cohen's analysis, which Roosevelt originally rejected as too convoluted and unworkable, n424 was taken up by Just ice 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 C ohen's memo to Newman A. Townsend, a former judge serv ing in the Solicit or General's Office. n426 Over the days following the publicat ion 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 dest royers 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 Operat ions' judgment that the deal would, on the whole, be a boon to U.S. defense interests. He also concluded that the 1917 statut e could be construed to bar only transfers of vessels that had been built wit h the intent or expectat ion that they would be transferred to belligerent s - 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-dest royers deal was completed and announced on September 3. n430
Jackson's imaginat ive reading of the statutes was sharply (alt hough not uniformly) criticized as unpersuasive. n431 What is im portant 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 president ial claim as Commander in C hief to supersede statutory restrict ion. n432 Roosevelt would later describe the dest royer deal as the most important act ion in the reinforcement of the United States's own nat ional defense since the Louisiana Purchase. n433 Yet at no time did he suggest a const itutional prerogativ e to trump congressional enactments. Indeed, through much of the summer of 1940, he had reluctant ly conceded that this absolut ely essential deal could not be made in the teeth of the governing law. It was only Cohen's and Jackson's
creat ive statutory arguments that appeared to turn the t ide. n434 Moreover, Jackson's [*1047] opinion specifically concluded that, notwit hstanding the President's broad constit utional aut hority 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 transact ion. n435 Roosevelt's deference to statutory limit s led him to vigorously lobby Congress for the passage of the Lend-Lease Act , which finally authorized him to transfer defense art icles to belligerent nations wit hout significant restrict ions. n436 [*1048] 2. The Deployment to Iceland Before the War. - Two weeks after the destroy ers deal, C ongress enacted the nat ion's first peacet ime conscription bill. The isolationist C ongress, however, designed it as a draft for defensive purposes
only. It therefore included a condition lim it ing conscript ion to twelve mont hs, and another that would prevent the deployment of draftees to the European theater. The law prov ided that persons inducted into the land forces under that act could not be deployed involuntarily "beyond the lim its of the Western Hemisphere except in the Territories and possessions of the United States." n437 A few weeks earlier, Congress had enacted a virt ually identical [*1049] geographical restrict ion wit h respect to army reservist s called to act ive 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 restrict ions on sending reservist s and selectees outside the West ern Hemisphere, however, proved a serious
obst acle to Roosevelt's object ives. There was no problem with respect to sending the Marines, because they were composed of activ e-duty volunteers and thus were not covered by the statutory prohibit ions against sending reserv ists 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 ent ire 20,000-man force, but the statutory restrictions, as Tim e magazine complained in an editorial urging their repeal, ensured that the "occupation of Iceland was a move the A rmy could not have joined on anyt hing but
pipsqueak scale." n442 According to Army C hief of Staff General George Marshall, the statutory lim its "required the use of Marines on a mission which was not a Marine C orps mission" and effect ively prevented the use of the army "on a mission which was peculiarly an Army mission." n443 Moreover, even wit h respect to the army t roops that could lawfully be sent to Iceland, the statutory lim its proved very disruptive: to supplement the Marine cont ingent 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 approxim ately three regiment s for every one sent ." n444 In the end, Roosevelt deployed only about half the number of t roops that Britain wanted and that he originally contem plat ed, a cont ingent comprised of a mix of Marines and
statutorily eligible army forces. n445 It has sometimes been alleged that Roosevelt sent draft ees to Iceland in v iolation of the statutory restrict ion, n446 but we have found no evidence supporting this conclusion. n447 Despite the fact that the statutory limits prevented him from taking act ion in a manner he deemed most efficacious for the national defense, Roosevelt honored the law [*1051] while his Adm inistrat ion 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 substant ive preclusive power of the C ommander in C hief was publicly suggested for the first time in the Roosevelt Adm inistrat ion during the actual conduct of World War II it self, in the litigation result ing 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 secret ly entered the United States on missions to destroy war industries and facilities. During their trial before the military tribunal, the defendants pet itioned for a writ of habeas corpus in federal court . The Supreme C ourt heard argument in the expedited case on July 29 and 30, 1942, apparently after being informed privat ely that the President planned to proceed wit h the executions regardless of what the C ourt did. n451 The quest ions 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 stat utory question - namely, whether the procedures used in the military tribunal were consistent wit h the congressionally
enacted Articles of War. n452 At oral argument, Attorney General Francis Biddle argued that the commission's procedures were aut horized 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 aut hority as the C ommander-in-C hief during the war and in the prot ect ion of the people of the United States." n455 Chief Justice Stone, plainly surprised by this suggestion, quickly cut Biddle off, wondering whether the C ourt should entertain such an argument. Biddle replied that the C ourt "[did] not have to come to that."
n456 A bit later, after Biddle seemed to suggest the tribunal's procedures could be "modified by C ongress," he quickly corrected himself (after being prompted by Just ice 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 act ing in concert with the statute laid down by Congress. But ... I argue that the C ommander-in-C hief, in time of war and to repel an invasion, is not bound by a statute. n457 As far as we have been able to det erm ine, this interjection is the only occasion on which the Roosevelt Adm inistrat ion adverted to any claim s of a substant ive Commander in Chief prerogat ive. n458 In a short per curiam opinion on July 31, 1942, the Court denied the pet ition on the merits, n459 a disposit ion that led quickly to the trial
and execut ion of six of the saboteurs. n460 In its full opinion just ify ing the judgment, issued on October 29, 1942, the C ourt held that C ongress had aut horized the use of the military commission n461 and that the [*1053] petit ioners were properly charged with violat ions 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 wit h an eye-opening sentence that seems to acknowledge the possibility Biddle had raised: " We need not inquire whether C ongress may restrict the power of the C ommander in C hief to deal wit h enemy belligerents." n464 The Court's cry ptic suggestion that there was some quest ion of Congress's power to regulate milit ary 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 lim it the President's treatment of such belligerents because otherwise "we would have a serious quest ion of the validity of any such effort to restrict the Commander in Chief in the discharge of his const itut ional funct ions." n465 Just ice Jackson's draft conceded C ongress's power to enact procedural protections in military commission trials of "persons whose civ il rights may well have been the proper concern of
C ongress," such as U.S. cit izens, inhabitants of occupied foreign territory in which martial law applies, and "nonbelligerent s who may be in our military power." n466 His opinion quest ioned, however, whether C ongress's power extended to the protection of "those who come here as belligerents to destroy our instit utions." n467 Just ice Jackson added that "the magnit ude and urgency of the menace present ed by this hostile military operat ion 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 assert ion that the Articles of War would be const itut ionally problemat ic 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 funct ions of internal governm ent of the country," and their t reatment "[was] an exclusively military responsibility." n470 Just ice Jackson conceded, moreover, that his views (including presumably his init ial const itut ional doubt s) were "not accepted by a single one of my respected seniors in service on this Court." n471 And he ultimately decided to join the C hief Just ice's opinion rather than to write separately. It is not without interest, however, that the aut hor of the Youngstown "lowest ebb" opinion himself was at least temporarily attracted to the dist inction bet ween the internal government of the country, which is clearly within
C ongress's responsibility, and the engagement of the enemy, [*1055] which Just ice Jackson tentatively viewed as an exclusively military responsibility. In fact, Just ice Jackson adverted to a similar distinct ion in his concurrence in Youngstown itself. n472 E. C onclusion The ninety- plus years of constitut ional 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 C ongress to restrict the President's use of military commissions, contends nonetheless that the powers of the C ommander in C hief 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 driv en in part by
Professor Pomeroy's rejection of the possibility of there being overlapping war powers, but also by the not ion, best articulated by Professor Berdahl, that "political science" demands that the President alone control the conduct of war. As much as theorists pushed this not ion, however, the polit ical branches seemed wary of it in pract ice. Presidential administrations repeatedly complied (sometimes while ex pressly averring their duty to comply) wit h not only treaty-based restrictions on their conduct of war in actual conflict s, but also a number of statutes (albeit directed outside the cont ext of act ual 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 restrict ions seemed to the President to have serious implicat ions for nat ional

w, 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 Foundingera 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
security. Moreover, while the occasional dissenting voice on the const itutional quest ion was heard in Congress, there is no indicat ion that an anx iety of authority overtook C ongress when it came to the exercise of the legislat ure'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 hint ed to the Supreme C ourt 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 civ ilian courts - might not be. To be sure, the Quirin C ourt did not endorse that vie

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 will
[*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 nonAmericans, 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

aut hority, n563 and replaced it wit h language dictat ing 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 constit utional 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 legislat ion to authorize warrantless electronic surveillance for foreign intelligence purposes, C ongress 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 C arter Adm inistrat ion's Office of Legal Counsel specifically opined that the bill did not "trammel upon [foreign affairs] powers exclusiv ely reserved to the Execut ive." n566 And Attorney General Griffin Bell test ified 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 C arter 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 constit utional objection. n568 D. The Reagan Administration If President s Ford and Carter pulled back from Truman's unqualified
claims of preclusive war powers, the Reagan Adm inistrat ion swung the pendulum in the other direct ion. President Reagan did accept , without constitut ional object ion, some highly intrusive statutory restrictions on matters that had long been thought to be within the scope of the C ommander in C hief's authorit y. n569 And he negotiated and signed the Convention Against Tort ure, which requires the United States to cat egorically prohibit torture, with "no except ional circumstances whatsoever," including "a state of war," to be invoked as a just ificat ion, and which further requires the United States to "undertake to prevent in any territory under it s jurisdict ion other acts of cruel, inhuman or degrading t reatment 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 Resolut ion. - In 1983, Congress aut horized the President to continue part icipat ion by U.S. armed forces in Lebanon. That authorizat ion specified that it would ex pire in eighteen months (and even sooner, under certain circum stances), absent further authorizat ion. 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 lim it of the War Powers Resolution was unconstitut ional. Such an "inflexible deadline[]," he wrote, "creates unwise lim itations on Presidential authority," and he ex pressly disclaimed any acknowledgement that sect ion 5(b) of the War Powers Resolut ion was [*1081] constitutional. n573
Moreover, Reagan stated that "I do not and cannot cede any of the aut hority vested in me ... as C ommander in Chief of the United States Armed Forces," and that he would not construe the eighteen- month limit of the bill it self "to rev ise the President's constit utional aut hority to deploy United States Armed Forces." n574 Despite lay ing down this marker, there was no actual statutory disregard, because host ilit ies in Lebanon did not extend beyond ninety days. 2. Regulat ion of Covert Actions and the Iran-C ontra 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 violat ion of several laws that C ongress had passed - known as the Boland Amendments - to restrict military and other
assist ance to the Contras in Nicaragua. One of the final such acts prohibit ed the use of all funds, by the Department of Defense, the C IA, and any other U.S. agencies involved in intelligence activ ities, for the purpose, or which would have the effect, of supporting any military or param ilitary operat ions in Nicaragua during fiscal year 1985. n575 Sim ilarly , 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 prov ide milit ary adv ice, training, or logist ical support to param ilitary groups operat ing inside that country. n576 Later that year, C ongress enacted another statute of even greater specificity, prov iding that: United States
Government personnel may not provide any training or other service, or otherwise participate directly or indirectly in the prov ision of any assistance, to the Nicaraguan democrat ic resistance pursuant to this tit le wit hin those land areas of Honduras and Costa R ica which are within 20 miles of the border wit h Nicaragua. n577 [*1082] Alt hough 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 const itut ionality of any of the bills when he signed them into law. n578 Nonet heless, the Adm inistrat ion did take a posit ion on a related matter that clearly called these prov isions into const itut ional quest ion. In a 1974 statute, n579 C ongress enacted the Hughes-Ryan Amendment to the Foreign Assistance Act of 1961, which prohibited the CIA from
engaging in activ ities other than intelligence gat hering (including covert action) unless and until the President makes a finding that the operat ion is "important to the national security of the United States and reports, in a t imely fashion, a description and scope" of such act ivit ies to specified congressional comm ittees. n580 A few years later, the Intelligence Authorization Act for Fiscal Year 1981 n581 continued a version of the Hughes-Ryan Amendment's executiv e report ing requirement , and also prov ided that the Director of Central Intelligence must give prior, instead of "timely," not ice of "any significant anticipated intelligence activ ity," except in extraordinary circumstances, where the President must still give timely not ice and a statement of the reasons for not giving prior not ice. n582 In 1986, in connection with the Iran-C ontra Affair, controversy
arose over whether the Reagan Adm inistrat ion had complied wit h the "t imely notice" requirement after the President indefinitely postponed [*1083] not ification of C ongress 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 discret ion 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 constit utionally dubious. OLC reasoned that C ongress may not require the President to "relinquish any of his const itut ional discret ion in foreign affairs" (including through the mechanism of an appropriations condit ion) . n585 More strikingly still, OLC assert ed that C ongress is almost powerless to act wit h respect to the world outside U.S.
borders - that "the Const itut ion 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 v irtually plenary authority "as to other matters in which the nat ion acts as a sovereign ent ity in relation to outsiders." n586 When pressed on the point by the Senate Intelligence C ommittee in 1987, the Assistant Attorney General for OLC conceded that C ongress did have some Article I powers to affect foreign affairs, but continued to defend the notion that the President has certain "zones" of aut hority that "cannot be regulated," including with respect to authority over most covert activ it ies. n587 In a memorandum responding to questions from Senator Arlen Specter, Assistant Attorney General C harles Cooper further argued that although the Rules for
Government and Regulat ion C lause does giv e C ongress 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 C ongress to pass laws "controlling actual milit ary operations," or "intruding in any way upon the Commander-in-Chief's decisionmaking aut horit y." n588 Thus, he wrote, "to the extent a covert act ion is analogous to a military action, ... the [*1084] President as C ommander-in-Chief retains complete cont rol over the operat ion," including "the aut hority to decide when and to whom to disclose the operation." n589 E. Bush 41: Aggressive Expansion of Preclusive C laims Assert ive as the Reagan Adm inistrat ion was, a qualitat ive change in the Executive's post ure toward statutory regulation of issues
concerning the military's organization and functions appears to have occurred in 1989, under the Adm inistrat ion of George H.W. Bush. n590 Part of this was a consequence of a broader, general invocation of execut ive prerogatives: OLC went so far as to write that "while C ongress has a free hand in determining what laws the President is to enforce, we do not believe that C ongress is constitut ionally entit led to dict ate how the executive branch is to execute the law." n591 But there was a part icular aggressiveness with respect to the C ommander in C hief C lause, reflected in a series of president ial signing statements on omnibus appropriat ions and authorizations bills. In them, the first President Bush indicated his intent not to fully enforce certain provisions to the extent they im pinged on his understanding of his aut hority as Commander in Chief.
Interest ingly , most of these measures did not even deal with the regulation of military campaigns, as such, or treatment of the enemy - generally the prov isions at issue were the sort of run-of-the-mine regulations of the organization and [*1085] struct ure of the armed forces that appear all throughout Tit le 10 of the Unit ed States C ode. The systemat ic nature of the object ions to these measures, combined with the apparent breadth wit h which they were described, suggested that Truman's gambit on behalf of preclusiv e 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 except ional applicat ions of the measures in quest ion as to announce an actual intent ion to
disregard them as a matter of rout ine adm inistrat ion. 1. Objections to Regulations Concerning National Security Information. - The Bush Adm inistrat ion's first publicly announced C ommander in C hief C lause objection did not deal wit h the military at all. It instead concerned a provision of an appropriations act that proscribed the im plementation of certain "nondisclosure" agreements the Execut ive had required of government employees who had access to classified informat ion. n592 Relying on Department of the Navy v. Egan, n593 President Bush wrot e that the C ommander in C hief C lause gave the President the duty "to ensure the secrecy of informat ion whose disclosure would threaten our national securit y." n594 The provision in question thus raised "profound const itut ional concerns" in the President's view, because it regulated the manner in which
he could prevent the disclosure of classified informat ion "concerning our most sensitive diplomat ic, milit ary, and intelligence activ ities." n595 [*1086] President Bush also objected to various statutes requiring the execut ive branch to disclose to C ongress information about military intelligence and operat ions. In signing an annual defense appropriations act, for instance, the President wrote that he would interpret certain report ing or consult ation prov isions - such as a prov ision requiring a report on the measures that would be required to verify convent ional force reductions in Europe, and another calling for a report on intelligence estimates on future Soviet tank production and operational capacit ies - "so as not to im pose unconst itut ional constraints upon my authority to protect sensitive nat ional security information." n596 Again with respect to a
supplemental appropriat ions 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; anot her that required a report on "all enemy equipment falling under the control ... of allied forces wit hin 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 ex pected to be made to the government of any country in the Middle East." n598 2. Object ions to Statutes Regulat ing the Manner of Deploying the A rmed Forces. - In a series of signing statements concerning regulations of deployments, the first President Bush evidenced a
remarkably st rong not ion of a substantive C ommander in C hief preclusive power - one that would allow him to ignore statutory regulat ion of the posit ioning 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 const itut ional object ions 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 prov ision 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 prov ision that would have prohibited certain Air Force weat her reconnaissance squadrons from being operated at a reduced level. n599 More significant ly, 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 lim ited the activ e-duty forces deployed in Europe, and another that would have restricted the President's aut hority to relocate defense personnel from an air base in Spain. n600 Even though the former prov ision specifically authorized a waiver upon a president ial det erm inat ion that an except ion was critical to the nat ional security, Bush wrote that "I do not believe my discret ion to deploy military personnel may be subject to such a statutory standard." n601 Therefore, "while I will respect the intent of such prov isions as far as possible, I sign this bill with the underst anding that they do not constrain my authority to deploy military personnel as necessary to fulfill my const itutional responsibilities as President and
C ommander in C hief." n602 This t rend continued wit h 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 constit utional concerns in a provision that regulated the executiv e system of classificat ion by requiring notice to the C ongress regarding init iat ion of, or changes in, special access programs. n604 Bush also complained about prov isions that lim ited the number of military personnel stationed in Japan and in Europe - even though such statutes provided for waiv ers when the President determined that nat ional security required them. n605 He also noted that he would construe yet other provisions "consistent wit h my authority as C ommander in Chief to deploy the Armed Forces as I see fit" - namely, a provision that required assignment of
all Army Reserve operat ional forces to U.S. Forces C ommand, and provisions that established standards for the allocation of [*1088] aircraft to Naval Reserve, Air Force Reserve, and Air National Guard unit s, and required assignment of the tact ical airlift mission to the Air Force Reserve and Air Nat ional 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 constit utional responsibilit ies": one that lim ited the use of funds to support only 100,000 t roops in Europe as of October 1, 1995, and anot her that required a forty percent cut in U.S. forces overseas after September 30, 1996, absent a war or national emergency. n607 As these statut es demonstrate, however, C ongress did
not at all share President Bush's v iew of preclusive C ommander in Chief war powers. Indeed, even in authorizing the first Gulf War, C ongress prov ided that before the President could use the armed forces to achieve im plementation of specified U.N. Security Council resolutions, he was required to prov ide to congressional leaders his determ ination that the United States had successfully tried "all appropriat e diplomatic and other peaceful means to obtain compliance by Iraq" with those Security Council resolutions. n608 F. The Clinton Adm inistrat ion The C linton Administration did not swing the pendulum back to where the C arter Adm inistrat ion had left it, but neit her did it embrace the broader view of the preclusive war powers that the Bush Adm inistrat ion had pushed. Indeed, in some respects, the Clinton Adm inistrat ion was very generous in its respect
for C ongress'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 host ile legislat ure and a number of controversial military engagements abroad, C ongress enacted a number of measures restricting the use of military force abroad, even when operations were already underway. [*1089] 1. Acceptance of C ongressional Restrict ions. - President C linton promoted and signed the 1994 federal torture statute, n609 as well as the War C rimes Act. n610 The latter statute, enacted in 1996 and amended in 1997, n611 established criminal penalt ies for conduct in v iolation of certain humanitarian t reaty obligat ions: grave breaches of any of the Geneva Convent ions; violations of Art icles 23, 25, 27, or 28 of the Annex
to the Fourt h Hague Convent ion; n612 and, unt il recently , all violat ions of Common Article 3 of the Geneva Convent ions. n613 Nor did President C linton object to several enactments lim it ing the use of military force abroad. n614 For example, when Congress provided in November 1993 that funds could be obligated with respect to host ilit ies in Somalia beyond March 1994 only "to protect American diplomatic facilit ies and American cit izens, and [for] noncom bat personnel to adv ise the United Nations commander in Somalia," n615 Clinton did not raise a constit utional objection to this limitat ion, notwithstanding that the prov ision imposed a restrict ion 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 prohibit ing the use of
Department of Defense appropriations for the deployment of any U.S. ground combat forces in the Republic of Bosnia and Herzegov ina after June 30, 1998, unless the President transm itted to Congress a certification that such deployment was "required in order to meet the nat ional security interests of the United States" (and that such ground forces would not serve as civil police). n617 The C linton Administration also carefully avoided adoption of a posit ion on the constit utionality of the sixty-day limit in the War Powers Resolution. n618 Most notably, alt hough C linton deployed troops in host ilit ies in Kosovo for longer than the WPR time limit in 1999, his OLC justified such action not on the ground that the WPR was unconstit utional, but instead on a controversial statutory int erpretat ion. n619 [*1091] 2. Invocations of Preclusiv e Powers. - That said, the
C linton Adm inistrat ion frequently invoked C ommander in C hief prerogatives, chiefly in areas concerning the internal struct ure of the military chain of command. In doing so, however, the Administration often reasoned in ways that hinted at broader notions of preclusive aut hority , such as those that former President Taft had pushed nearly a cent ury before concerning the im perm issibility of statutory regulat ion of troop movements, and that Assistant Attorney General Rehnquist had appeared to endorse while serv ing as Nixon's head of OLC . n620 (a) The U.N. Command Legislation. - The C linton 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 hav e restricted the President's use of appropriated funds to place U.S. armed forces under the operat ional or tactical
control of the United Nations. n621 OLC acknowledged C ongress'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 adv isable 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 ent it led to do so upon a cert ification that it would serve the int erests of nat ional
security, as long as he also filed a t imely report to Congress ex plaining his decision. n624 The opinion was not clear as to what "core" power it was protect ing. Some of the language suggested that the const itutional problem arose from the attempt to interfere with the President's capacity to choose his commanders rather than wit h it s infringement of tactical judgments per se. n625 In that respect , the OLC analysis might be read as an aggressiv e, and perhaps unwarranted, application of the well-established principle that the C ommander in C hief's superintendence of the military may not be comprom ised. n626 But the opinion also cited favorably Taft's Yale Law Journal art icle statement concerning the inviolability of executive decisions regarding troop movements, n627 and a Clinton signing statement characterized the offending prov ision as
constitutionally problemat ic because it restricted "the President's authority to make and im plement decisions relat ing to the operat ional or tactical control of elements of the U.S. armed forces." n628 [*1093] (b) Legislation Regulat ing Foreign Deployments. - President C linton also invoked the Commander in C hief C lause in several signing statements concerning measures regulat ing foreign deployments. The statements had a remarkably sim ilar formulation, one that seemed designed to explain how the statutory language would be construed rather than to assert that a const itutional problem would be raised if such a construct ion were not adopt ed. Thus, alt hough such statements certainly did not disclaim the ex istence of preclusive powers, they appeared to be serv ing not ice that the measures would be int erpreted to accord flex ibility in emergencies.
n629 Some of those signing statement s objected to reporting requirements. n630 Others objected to more subst antiv e requirement s and lim itations. [*1094] For ex ample, C linton expressed concern wit h the alleged "inflexibility" of a 1994 appropriations measure that denied the availability of funds provided in that act for military part icipation to cont inue Operat ion Support Hope in or around Rwanda after October 7, 1994, except for any action necessary to protect the lives of United States cit izens. n631 Similarly, in 1999, Congress passed a prov ision stating that "no funds available to the Department of Defense during fiscal year 2000 may be expended after May 31, 2000, for the cont inuous deployment of United States Armed Forces in Haiti pursuant to the Department of Defense operat ion designated as Operat ion Uphold Democracy." n632

Alt hough C linton had already decided to terminate the Haiti deployment , he issued a signing statement that the lim itat ion "concerned" him, and that "I will interpret this prov ision consistent with my const itut ional responsibilit ies as President and C ommander in C hief." n633 In at least one instance, C linton went further and appeared to claim a power to defy a restrict ion on his preferred use of t roops abroad. The issue arose in connect ion wit h a prov ision of a budget bill that condit ioned funding for diplomat ic efforts in Vietnam on that country's act ions in assisting to ident ify the remains of Americans, and to account for POWs and MIAs in Vietnam. n634 A footnote in an OLC Opinion focusing on other constit utional problems wit h the measure explained that "there is [an] apparent const itutional flaw in sect ion 609: it purports to prescribe to the President
the manner in which he must proceed to recover the remains ... . Such detailed prescript ions [*1095] may well encroach on the President's const itut ional authority as C ommander in C hief. We do not press that objection here." n635 G. The George W. Bush Adm inistrat ion The Adm inistrat ion of George W. Bush has embraced the aggressive preclusive claim s of its predecessors, and even pushed them to their logical ext remes, while evincing none of the tempering im pulses one detects in the statements of the Nixon, Ford, Carter, and Clinton Adm inistrat ions. Most important ly, the Administration has gone beyond merely assert ing 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
aut horit y. Wit h the except ion of the act ions of President Ford in the extraordinary chaos of the last days of the Viet nam War, we are not aware of a similarly consequent ial act of execut ive disregard, premised on execut ive war powers, undertaken in the presence of a sitt ing C ongress. n636 The Bush Adm inistrat ion has [*1096] exercised this claimed power, moreover, for prolonged periods of time and on multiple front s. The Administration first manifested its approach in the immediat e aftermath of the attacks of September 11, 2001. Wit hin a week of the attacks, C ongress had overwhelm ingly voted for, and the President had signed, legislat ion authorizing the President to use all necessary and appropriate force against those nat ions, organizations, or persons he determ ines planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizat ions or persons, in order to prevent any future acts of int ernational terrorism against the United States by such nations, organizations or persons. n637 Just one week lat er, OLC issued a lengthy memorandum espousing a broad view of what the President's unilat eral constit utional (or Youngstown C ategory Two) authority would be in the absence of the legislat ive authorizat ion 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 nat ional "emergency" such as an attack from abroad, "we do not think [the President's C ommander in C hief power] can be restricted by C ongress through, e.g., a requirem ent that the President either obtain congressional authorizat ion for the act ion within a
specific time frame, or else discontinue the act ion." n639 And, in its final two sentences, the OLC memo asserted that neither the War Powers Resolut ion nor the force authorizat ion law (nor presumably any other statute) "can place any limits on the President's determ inat ions 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 Const itut ion, are for the President alone to make." n640 As we ex plained in greater detail in our previous Article, the Bush Adm inistrat ion proceeded to apply this robust constit utional posit ion act ively. It claimed that the President could disregard an array of im portant statutes and treat ies - from the Torture Act to the Habeas Act of 1867; from the Foreign Intelligence Surveillance Act even to the War C rimes 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 recent ly, President Bush vetoed a bill because, [*1097] among other things, it would have required initiation of a partial wit hdrawal of troops from Iraq and regulated the use of remaining t roops thereaft er - requirements as to which he expressed constit utional doubts. n642 Furt herm ore, in scores of signing statements, President Bush has invoked his power as Commander in Chief in object ing to statutory enactments, stat ing or suggest ing 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 direct ives limit ing t roop deployment and combat operations.
n644 Others have arguably been prem ised on the well- established superintendence prerogative. Like other President s since World War II, however, President George W. Bush has extended his assert ion of preclusive powers beyond cont exts involving the actual conduct of hostilities to others relat ing to the organizat ion and use of the armed forces and intelligence agencies. n645 [*1098] Most recently , the Bush Adm inistrat ion has promulgated a statement of administration policy threatening a veto of a defense authorization bill based on the Commander in Chief C lause if the legislat ion included a provision requiring an adjudicat ion, 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 Adm inistrat ion warned that if the bill contained any proposed
amendments restricting actions to "deal effect ively" wit h threats posed by Iran, the President would likely veto it, invoking an unqualified theory that "prov isions of law that purport to direct or prohibit ... covert action[] or use of the armed forces are inconsistent with the Const itution's commitment exclusively to the presidency of the executive power[and] the funct ion of Commander-in-C hief." n647 H. C onclusion There has been an undeniable ex pansion - one is even tempted to say ex plosion - of preclusive execut ive war powers claims between the start of the Korean War and the second Bush Adm inistrat ion. 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 claim s that had a well-established pedigree in
the period before 1950. Still, one must be careful in assessing this change in executive practice. Adm inistrat ions varied greatly in the kinds of preclusive assertions they made. The fact that the invocat ions were so often brief and opaque - at least until some of the more developed and unqualified assert ions of the current Bush Administration - adds to the difficulty of discerning the theory that anim ated them. In many cases, it is not easy to know whether these assert ions were intended to lay down markers against unforeseen and except ional circumstances that might arise, or instead to announce actual defiance of stat utory restrict ions. This uncertainty underscores the fact that, as much as Presidents plainly became enamored of these claim s, the executive branch did not [*1099] settle upon a set of common principles. Nor was there even

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
agreement across presidencies as to whet her such a preclusive power should extend much, if at all, beyond those understandings that were already accepted before 1950. Certainly there was no sustained pract ice of actually disregarding statutes similar to that we have seen since September 11, 2001. Indeed, some of the statut es that the current Bush Administration claims a const itutional authority to disregard are measures that modern adm inistrat ions helped to craft and that

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 u
rstands 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

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
arise in constitutional war powers disputes. Such a history also

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 war
OHanlon 7 ( Frederick is a Resident Scholar at the American Enterprise Institute, and Michael

OHanlon, 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 Americas role in the world or a
certain political philosophy. Such an assessment flows directly from the basic bipartisan view of American

overseas threats must be countered

before they can directly threaten this countrys 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
foreign policy makers since World War II that

enriching uranium and submit to international inspections. What will happen if the USor Israeli

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. Japans recent election to supreme power of a leader who has
government becomes convinced that

promised to rewrite that countrys constitution to support increased armed forcesand, possibly, even
nuclear weapons may well alter the delicate balance of fear in Northeast Asia fundamentally and rapidly.

Sino- Taiwanese tensions continue to

flare, as do tensions between India and Pakistan , Pakistan and Afghanistan,
Also, in the background, at least for now,

Venezuela and the United States, and so on. Meanwhile, the worlds nonintervention in Darfur troubles
consciences from Europe to Americas 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 lostbut 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.

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 Americas vital interests throughout this
dangerous time. Doing so requires a military capable of a wide range of
missionsincluding 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 todays
Sound US grand strategy must proceed from the recognition that,

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 Reagans 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 OHanlon 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 inaccessible
Rosenthal 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 Agencys

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. Feinsteins 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 committees
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. Feinsteins speech detailed
history of illegal detention, rendition, torture and fruitless harsh interrogation of terrorism suspects.

the lengths to which the C.I.A. had gone to hinder the committees investigation, which it began in 2009
after senators learned the agency had destroyed videotapes of the interrogations under President George

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
W. Bush.

been going through the snails 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

It was the
committee staffs 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.
the C.I.A. had reached conclusions similar to those in the Senate staff report.

had made available to the committee. She said she did not know whether the drafts were put there

The Senates possession of the documents

was entirely legal, she said. She dismissed the acting C.I.A. general counsels claim that
inadvertently, or by a whistle-blower.

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 unAmerican, 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. Obamas 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
practices
Foster 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-andsadistic-than-Senate-report-disclosed.html)//JS

CIAs use of torture was far more brutal and sadistic than was
disclosed in last years controversial US Senate report into the agencys interrogation
The

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

CIA excesses against an unnamed detainee,

telling The Telegraph: They werent 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
intelligence source provided a very similar description of

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

Mr Khan was kept in

the dark for much of 2003 and in solitary confinement from 20042006, that he was threatened with tools, a hammer, and that his interrogators
him from including a metal bar for a further 24 hours. The notes say that

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 CIAs 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, Reprieves legal director, Todays 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

According to a full list of excerpts released by the The Center for

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
wanted some rest."

Constitutional Rights:

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

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
cooperative and did not remove the feeding tube.

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. Khans 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 Majids 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 programs
Feinstein 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 CIAs interrogation program
should be made public, http://www.washingtonpost.com/opinions/the-senate-report-on-the-ciasinterrogation-program-should-be-made-public/2014/04/10/eeeb237a-c0c3-11e3-bcecb71ee10e9bc3_story.html) //JS

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 Americas practice of admitting wrongdoing and
learning from its mistakes. Some, however, do not want this report to become public and are
We believe that

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

The full
committee was not briefed on the CIAs 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
easily be refuted. It is important to understand the origins of the committees study.

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. Bushs 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 CIAs 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 CIAs 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.

Senate intelligence committees 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.
Ultimately, the

These torture reports serve no counterterror purpose

theyre counterproductive for national security
Jervis 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

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
those costs.

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 globally
Nossel 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-rightspromises)//WK
Responding 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

Obamas 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 werent 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 Obamas 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
Obamas 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 shouldnt 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. Dont 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 step
Knigge 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-willhelp-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 wars
Kupchan 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

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
change.

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

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
is on the correct path.

occupying countries in the Middle East and South Asia, and an offshore posture in the Persian Gulf is the best way to deal

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 "nationwith Iran.

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-andforth. 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.

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
According to a recent Pew Research Center survey,

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 "multicurrency" 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

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
requires seeing the world as it is rather than retreating toward the illusory comfort of denial.

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

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
must be treated as stakeholders in that order, not merely as objects of American power.

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

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.
congratulatory talk of American primacy.

Credibility and soft power are key to address rising global

threats
Lord 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-poweroutage/?wp_login_redirect=0 // SM)

The release of a long-awaited report by the U.S. Senate Select Committee on Intelligence
on the CIAs 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,

To understand the immediate damage done to

U.S. influence, look no further than the commentary surrounding the
reports 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
learn to use it more proactively?

cannot demand human rights reports from other countries since this [document] proves they know nothing

The Islamic State and other extremists joined the

propaganda gold rush. One tweet, quoted in a report from the SITE Intelligence Group, pointed
about human rights.

to the audacity of the United States lecturing Muslims about brutality, adding, Getting beheaded is 100

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 Americas
times more humane, more dignified than what these filthy scumbags do to Muslims.

elected representatives, and those who willfully kept the president and senior members of the Bush

undermined not only American values, but

also American influence and national security interests. In the words of a
administration in the dark. Their actions

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 nations 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 theyre founded. The latter is called soft power. Moral authority facilitates soft

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
power, but so do relationships, shared values, and interlinking interests.

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

often
win the day, even when opponents are more ruthless, more
committed, and more willing to expend resources. (It is worth remembering
pluralism, economic competition, and human rights are enduring. Over the long haul, these values

this as diplomats privately bemoan the billions spent on Russian propaganda or the social media
sophistication of the Islamic State.)

--Scenario 2 is Bagram
Bagrams the key sticking point in Bilateral Security
Agreement negotiations -- Karzais 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

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
KABUL, Afghanistan

Arizona, a fellow Republican, have been frequent visitors to Afghanistan since well before the United States

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
invasion in 2001, and they

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

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
supporters and infuriating American officials. Now,

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: Were

going to have
to see what happens, how it happens and what the situation is
before we make a judgment. We cant 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.

Karzais 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.

Nows key --- Afghanistans poised to release detainees --failure to resolve the detention issue kills relations and
prevents signing of the BSA
Sieff 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-threatenbacklash-in-us-congress/2014/01/02/d836c9ba-73cd-11e3-bc6b-712d770c3715_story.html)//WK

The Afghan governments plan to release 88 high-profile

detainees without trial would have an unbelievably negative
impact on U.S.-Afghan relations , according to two of Congresss biggest advocates for
KABUL

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 United 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

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
Obamas 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.
eyes on it, but it is unacceptable for us.

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 NATOs 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 powers

Sahgal 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)//WK
The 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

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
access to the warm waters of the Indian Ocean.

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 Committees role is consistent
oversight of CIA
HPSCI = 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 HPSCIs jurisdiction a. sets forth specific rules pertaining to its legislative and

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
oversight functions and the handling of classified material.

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

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 following departments, agencies, or other elements of the government:
rules.

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 Senate
Thomson 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_t
orture_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 CIAs 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

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
intrusion happens to her, it's a different matter.

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

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
actions "a defining moment for the oversight of our Intelligence Community."

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

statements
Cyr 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, Its
necessary to spy, but it shouldnt make the news,
http://www.stripes.com/opinion/it-s-necessary-to-spy-but-it-shouldn-t-makethe-news-1.356086)//cc
Sen. 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/oped/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 hasnt 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. Obamas 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
agencys 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 . Brennans 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 panels
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 panels recommendations from its final proposal, leading the House to pass a bill that was a

The president is playing the same passive role in

supporting his CIA directors 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
parody of its former self.

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
presidents 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 commissions
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 courts decisions on a dayto-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 hes
attempting to influence the court as it engages in judicial
review
Washington Times 6/11

(2015, The Washington Times, Obama threatens separation of

powers, http://www.washingtontimes.com/news/2015/jun/11/editorial-obama-threatens-separation-ofpowers/ // SM)
President Obama has crossed another red line, and not one so easily erased as those smudged out by his

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, theres 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
lethargy and timidity in the Middle East.

defined the growth of American democracy. In one of the unique features of American constitutionalism

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
as distinguished from inheritance of British common law

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 Madisons 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

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.
legislative, executive and judicial branches, there would have to be occasional final arbitration.

Executive overreach disrupts separation of powers in the

status quo
Sekulow 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-obamasexecutive-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. Thats why today,
the ACLJ filed a critical amicus brief representing 113 members of Congressincluding
Senate Majority Leader Mitch McConnelland nearly 220,000 Americans urg ing a federal
appeals court to declare President Obamas executive overreach
unilaterally rewriting our nations immigration laws unconstitutional
and unlawful. Our position is clear President Obamas executive action is
unconstitutional and impermissibly disrupts the separation of
powers . President Obamas overreach amounted to changing the
law. That is simply unacceptable. Impatient presidents dont get to change the law. Were confident that
the appeals court will correctly conclude that President Obamas 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)//cc
The principle of separation of powers serves as the foundation of our
constitutional system. Though the doctrines 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 doctrines 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-powersmeans-for-constitutional-government)//cc
This 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 Harpers 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
Americas 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. Obamas 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 agencys own internal review and therefore knew that the agencys 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 committees examination of documents

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
committees oversight staff. The Senate committee responded by reminding Brennan
prepared by the agency it is overseeing), someone at the

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. Eatingers 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, Eatingers 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 CIAs campaign against the Senate report was

As Feinstein ominously noted, these

developments had a clear constitutional dimension: I have grave
concerns that the CIAs 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.
approaching a high-water mark of dishonesty.

The Senate Committee has partially revealed CIAs

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 strategy
Puryear 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

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
countenance both slavery and the genocide of Native Americans.

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

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
and needing to be hidden, lest anyone be held responsible.

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 hoursin 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 havent 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

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
deliberately continued to withhold sleep, for maximum torturous effect.

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

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
secret.

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

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 rogues 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
spying.

unprecedented but clearly a terrible black mark, the regime of torture that was perpetrated by the Bush
administration deserves an accounting but one it wont ever get under a capitalist government.

CIA surveillance of Senate committee staffers undermines

the separation of powers principle removes any
possibility of effective oversight
Eddlem 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-senfeinstein-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-governmentsurveillance-until-the-cia-spied-on-it)//cc
The Senate Intelligence Committee says it got spied on by the CIA.
And, like many other Americans that have recently found out theyve been
spied on, theyre not happy about it at all. It doesnt necessarily make
Dianne Feinstein and her colleagues wafflers, even though they have
defended the National Security Agency throughout most of the last year. Its
another example that, until something happens to you, youre not going to
worry much about it happening to other people. The facts still arent clear
about what happened, but heres what we think we know: Several years ago,
the Senate Intelligence Committee decided to conduct a full
investigation of the CIAs Detention and Interrogation Program after
initial reports found chilling facts about the CIAs 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.
Heres 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 werent
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 CIAs
search may well have violated the separation of powers principles
embodied in the United States Constitution, Feinstein testified Tuesday.
Besides the constitutional implications, the CIAs 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
Committees CIA Detention, Interrogation Report,
http://www.feinstein.senate.gov/public/index.cfm/2014/3/feinstein-statementon-intelligence-committee-s-cia-detention-interrogation-report)/cc
The origin of this study: The CIAs 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
CIAs first interrogations using so-called enhanced techniques. We
learned that this destruction was over the objections of President
Bushs 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 Rockefellers 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 CIAs 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 staffs 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 CIAs 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 committees preference was for the CIA to turn over all responsive
documents to the committees 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
committees 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 CIAwho 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 CIAs 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
contractorswho otherwise would not have had access to these sensitive
documentsto read, multiple times, each of the 6.2 million pages of
documents produced, before providing them to fully-cleared committee staff
conducting the committees 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
CIAs 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 documentsjust 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 committees 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
committees 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 committees
network or removal of access to CIA documents already provided to the
committee. On May 17, 2010, the CIAs 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 investigationin
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
Committees CIA Detention, Interrogation Report,
http://www.feinstein.senate.gov/public/index.cfm/2014/3/feinstein-statementon-intelligence-committee-s-cia-detention-interrogation-report)/cc
My letter also laid out my concern about the legal and constitutional
implications of the CIAs actions. Based on what Director Brennan has
informed us, I have grave concerns that the CIAs 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 CIAs 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-congressionalcomputer-sparks-constitutional-crisis/)//cc
Two top Senate leaders declared Tuesday that the CIAs 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 agencys 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 CIAs 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 nations 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-warterrorism/p4514)//cc
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 Americas 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 peoples
4. CONSENSUS IS ESSENTIAL TO NATIONAL COHESION

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

Congresss stand on how our nation uses the mighty arsenal

bears crucially on Americas 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 Jacksons memorable formulation that the
Presidents 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
same need.

at its disposal also

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 mover

Hansen 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

If Congress only acts after being goaded by the

courts , or only after high profile scandals have come to light, or only after the Presidents

inflicted by the Bush administration.

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. Congress 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 Congress
Hammond 14

Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics,

and a former UK Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, US
Senate report on CIA torture threatens international relations, http://www.smh.com.au/comment/ussenate-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.

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.
Despite this, and other criticisms of

CIA Surveillance on the Senate violates the constitution - SOP and 4 th

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-ciaspeech-constitutional-separation-of-powers-fourth-amendmentconcerns-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

the Senate Intelligence Committee

Chairwoman spoke publicly about the alleged spying by the CIA on the
cameras. In a long and blistering speech,

computers, networks, and members of the Senate Intelligence Committee. In so many unprecedented,

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
public words,

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
included several serious charges leveled against Brennan and the CIA, and

speech

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

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
grave concerns that

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 Constitutions speech and debate clause
thats 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 its 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, its the inherent tension between the White House, Congress and the
courts. Its 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.

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
Pushing from the other side,

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 thats still ongoing. And when a Democratic-led Congress sought documents about the George W.
Bush administrations 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 thats 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.

Congress enjoys its own

separation-of-powers defense, partly contained in the Speech or
Debate Clause of the Constitution. Feinstein explicitly raised this
District Court. The latest legal filings were posted last week.

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 Gravels public
release of confidential Pentagon documents, the Supreme Court specified that
legislative aides are covered as well as lawmakers themselves. This
could support Feinsteins 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 latters 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 CIAs 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 thats
key to effectively check the Executive branch, especially
true for national security
Shenkman 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."

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
n309 To that end, I agree with Chafetz (and Pozen) that the

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

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-ofpowers 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
Senate both have rules preventing it. n313

accused the agency of having referred matters involving committee staff action to the Department [*414]

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

of Justice for criminal investigation and prosecution. n315

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

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.
intimidate Members of Congress from doing their job.

The Speech or Debate Clause is key to effective

separation of powers prevents Executive encroachment
Fodor 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 EXECUTIVES EXPENSE: THE SPEECH OR
DEBATE CLAUSE AND THE UNENFORCEABLE STOCK ACT,
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1025&context=nulr // SM)

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 Branchs 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 contend that in executive motivated suits,

Professors Reinstein and Silverglate argue that legislative privilege must be observed as an individual

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 Silverglates work, similarly asserts that the Clauses basic
purpose is to protect the powers of the Legislative Branch from
encroachment by the other branches.49 Among those who conceive of legislative
guarantee.47 B.

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/SPECIAL08/60
3010301/4th-Amendment-protections-among-most-relevanttoday)//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

the Fourth Amendment, prohibiting

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
warrants. Thus was born what became
unreasonable

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 Committees Work,
Pogo, http://www.pogo.org/blog/2014/03/cia-should-be-heldaccountable.html?referrer=https://www.google.com/) //JS
President Obama should declassify a U.S. Senate report on the CIAs
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 CIAs surveillance and additional
agency interference with the committees 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 years
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

administrations
role in creating such an imbalance of power threatens the legitimacy
of our constitutional democracy.
by the intelligence community also must be addressed, the letter said. Your

CIA surveillance of the Senate prevents effective

oversight thats key to democracy
Horton 2/21 Scott Horton is a contributing editor at Harpers 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
Americas 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 agencys own
internal review and therefore knew that the agencys 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 committees examination of documents prepared by the agency it is

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 committees 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
overseeing), someone at the agency

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. Eatingers 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,
Eatingers 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 CIAs campaign

As Feinstein
ominously noted, these developments had a clear constitutional
dimension: I have grave concerns that the CIAs 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
against the Senate report was approaching a high-water mark of dishonesty.

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 CIAcalled into existence and defined by acts of Congressoperate
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 Constitutions 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.
Feinsteins suggestion that CIA activities had violated the Constitution and several federal statutes was on
point. Eatingers 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 Brennans public statements. Brennan first pushed back against Feinsteins
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 wouldnt do that. Thats 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 nonsensethe 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 CIAs outside law firm. But when an internal probe by the CIAs 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

The CIA, in its frenzied maneuvering to suppress an

essential Senate report, had made predictable use of secrecy as its
chief weaponagainst 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.
his CIA director.

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 passAmericas democratic institutions were
sound, its press was resilient, and politicians who made bad mistakes regularly saw accountability at the

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
polls.

for them.

ethics
There is an obligation to uphold the constitution regardless of their
DAs
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

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
end.1311

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

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
preserving any particular process and exalting the desirable result.138 But

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-rkesler)//cc
The 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)//cc
Cross-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 Stantons (2002: 118) findings also support Cohens 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 themeducation, 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 Bangladeshs 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/v027/2
7.2brancati.html)//cc
The 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 identitybased 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 Kurdishcontrolled 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'adominated 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)//cc
If 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 law

Ikenberry 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

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.
States or resist it, the fact that it is an

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

rule of
law and the institutions of policymaking in a democracy are the political
equivalent of corporate transparency and accountability Sharp shifts in
can demonstrate that it operates according to accepted accounting and fiduciary principles. The

policy must ultimately be vetted within the policy process and pass muster by an array of investigatory

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

and decision-making bodies.

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 farreaching 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.

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
Renewing the Institutional Bargain

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 worldRussia--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

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
expanded.

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

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
participation ensure that governance is not simply a product of wealth or power. The wealthy and

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 better
Ikenberry 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)

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
First,

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

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
American diplomats and confuse foreign observers. But

likely to attract investors if it can demonstrate that it operates according to accepted accounting and

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
fiduciary principles.

invest in ongoing partnerships.

Immigration
Obamas 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-hearsarguments-obama-immigration-action)//JuneC//

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
NEW ORLEANS (AP)

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,

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
schooling and health care to immigrants who are granted permission to stay.

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 passage
Shapiro 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 Obamas Immigration Action Even Though Its
Good Policy. 8 January 2015. CATO Institute. http://www.cato.org/blog/challenging-president-obamasimmigration-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 doesnt 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

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
work authorizations and other benefits.

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. Its highly unusual for Cato to
file at the district court levelindeed amicus briefs of any kind are unusual in this forumbut 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 its 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 theyre 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

an agencys
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
applicable test in the memorandum setting out DAPAs legal justification:

law review article, DAPA is in palpable tension with the INA, implementing under the guise of executive

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 Jacksons famous
formulation from the 1952 Steel Seizure Case. In our constitutional
architecture, executive action based solely on Congresss 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,
discretion wholesale waiver/suspension/deferral that swallows the enforcement rule.

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

economy
Gurbanov 14

(GEYSAR I. a Rotary Fellow at Duke-UNC Chapel Hill Center for International Studies in
Peace and Conflict Resolution. Why Obamas 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: Americas immigration system is badly

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
broken, and I know many people are hurting because of it.

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

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
opportunities and did not take any shortcuts in my pursuit of the American Dream.

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
Obamas 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

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
stretched.

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,

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
we treat unfairly those immigrants who come to the U.S. legally:

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 nations 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

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
migrs . 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.
desirable course of action.

nuclear war
Executive overreach causes a short-term nuclear war
strong Constitutional principles solve
Spannaus 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 Administrations
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 risks
Redish 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
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.
In summary,

war
Flawed model of separation of powers causes global wars

Zakaria, 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"

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
governments, which lived in a zone of peace.

"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

In countries not grounded in constitutional

liberalism, the rise of democracy often brings with it hypernationalism and war-mongering. When the political system is opened up, diverse groups
autocracies or liberal democracies.

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

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
rally the masses behind a national cause.

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)//cc
The 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
governmentlegislative, executive, and judicialmust 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 rulersthe people themselvesand their ruling
institutionsstaffed by the peoples representativesaim 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 dont 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-powersmeans-for-constitutional-government)//cc
The 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 tyranny
Watson 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/celebrateliberty-month-separation-of-powers-a-pri/ // SM)

separation of
powers supplies a key bulwark protecting individual liberty in the
worlds most successful Republic . The Founders were familiar with human nature and

As we celebrate Liberty Month, it is worthwhile to review how the Constitutions

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 Founders addressed this tendency towards tyranny

in two ways. First, they recognized that the only way to limit each
officials power was to limit each offices powerthat 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
the national level,

did so both to limit each individual officials 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,

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
aligning the interest of the man with the constitutional rights of the place. Federalist No. 51.

individual runs counter to the private interest of every other individual. Id. The Founders ensured, in other
words, that each individual officials inherent desire for more power would serve as a separate sentinel

The Founders created this system by dividing the

governments powers among, and even within, three separate and
competing branches. Heres a quick snapshot of how they did it: As Article I of the Constitution
over the public rights. Id.

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 isby interpreting the Constitution and laws, and applying them to specific cases
and controversies. The Founders then enmeshed each branchs 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 Presidents 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

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
impeached.

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 oversight
Cassata 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)

The leader of the Senate Intelligence Committee declared

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
WASHINGTON -Tuesday

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

Feinstein and the CIA have accused each

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
committee and then-CIA director Leon Panetta in 2009. But
other's staffs of improper behavior. She said she

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

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.
reporters.

The Senate Intelligence Committee is pressuring the CIA

on torture the plan is key to making that oversight
effective
Ackerman 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 agencys use of torture. In one corner is the
USs 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, its
going to renew the calls for a criminal investigation, said Chris Anders, a Washington-based attorney with

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 alQaida 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
the American Civil Liberties Union (ACLU). Almost exactly a year ago,

confidante of President Barack Obama who was a senior agency official in the period of the events that
comprise much of the reports focus. On Tuesday afternoon, the battle emerged into full view during a

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
nomination hearing for the CIAs next top lawyer.

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 Udalls claim, CIA
spokesman Dean Boyd said: We are aware of the committees request and will respond appropriately.
What seems on the surface like an obscure dispute inside the Beltway has attracted combatants outside of

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 communitys support for sharing the truth about
torture by releasing the report to the public, said Reverend Richard Killmer, the
it. This week,

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 Obamas election, due to statements he made in old press interviews that
condemned waterboarding forcing water over a detainees 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 dont know how they could fail to say that actually it was effective, one anonymous

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
ex-CIA official told the Washington Post.

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 CIAs 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 its

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 Congresss 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
based on false or incomplete information, the CIA undermined the value of those opinions.

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

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
Tuesdays hearing,

work closely with this committee to make sure that you get access to the information as appropriate.

CIA surveillance on the Senate obstructs the Senates

investigation of torture the declassification of the
torture reports key to the end of torture
HRF 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 CIAs 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 didnt save American
lives and that torture was more widespread and harsher than we thought. The problem: The
American public cant read it because its classified. Bipartisan
support for declassification is growing, and after developments this week, America
may soon be able to know the truth about the CIAs torture program. Heres what you may have missed.

Senator Dianne Feinstein accuses the CIA of obstructing the

Senate Intelligence Committees 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 committees 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
agencys program. She described in her statement two main occasions of obstruction by the CIA:
March 11:

(1) Roughly 920 documents were removed by the CIA from the intelligence committee's computer in 2010

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
and (2)

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 Agencys Detention and Interrogation Program,
declassified 12/3, http://www.nytimes.com/interactive/2014/12/09/world/ciatorture-report-document.html?_r=0)//cc
The 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 selfmutilation. 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 change
Conroy 14 (Bill. a Seattle-based freelance writer. Torture Report Reveals CIAs Manipulation of US

Media. 12 December 2014. The Narcosphere. http://narcosphere.narconews.com/notebook/billconroy/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 CIAs 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

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 its own interests, Steven Aftergood, director of the Federation of American
you or me.

Scientists Project on Government Secrecy, said. And the Senate report cites several examples of that. In

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
fact, one of the findings of the report is quite blunt on that front:

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)

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
years in prison for allegedly disclosing classified information to the media.

clearance, and there is not a need to know, then youre not supposed to get classified information,
Aftergood said. The Senate committee found that CIA officials leaked classified information [to the media]

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
and no further investigation was conducted. The Senate report describes the practice as follows:

example illustrative of the practice, cited in the report, is found in correspondence penned by the deputy
director of the CIAs 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, its 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

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
interrogation techniques was inaccurate, the Senate report states.

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 Governments 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

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
some future politically strategic time.

classify and declassify information, you face little risk of prosecution if you cherry pick what nationalsecurity 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
administrations 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 theres 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

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
followed isnt enough.

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

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 its 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
fraud.

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, its supposed to be available to everyone, not just one reporter. But thats not what happens,
and so it smells bad.

Agency is key to change

Kappeler 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

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
collective `assumption' of responsibility. Yet

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

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
underrating the responsibility we do have within our own sphere of action. In particular,

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

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
situation; because we are not where the major decisions are made.

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,

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
namely as Drakulic says, in our `non-comprehension:

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

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.
one for the `others'.

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)

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
Wednesday was the United Nations Human Rights Day.

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 nave. 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

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.
our country - it is way off-base." This view apparently enjoys great popularity in US society.

US torture policy spills over globallyother nations look

to US

CJA 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)//WK
While 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

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 Fujimoris 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 Mugabes rise
to dictatorship has been punctuated by threats of violence to and the co-opting of the judiciary. He now
countries make the sad transition to tyranny, one of the first victims is the judiciary.

enjoys virtually total control over Zimbabweans' individual rights and the entire political system. R.W. Johnson, Mugabes 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?

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 Guantnamo Bay. For example, Rais Yatim, Malaysia's "de facto law minister"
explicitly relied on the detentions at Guantnamo 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 Guantnamo,"
id_article=2695=en (last visited Jan. 8, 2004).

adding, "I put the equation with Guantnamo 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

Namibia's Information Permanent Secretary Mocks

Shivute cited the Guantnamo 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 Guantnamo 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 Guantnamo 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
to a United States Government human rights report that listed rights violations in Namibia,

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 solve
Hongju 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/thetorture-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 Americas
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
--- its central to the BSA dispute
Rogers 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-closingbagram)//WK
With 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 processall 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

differences reflect deeper disagreement over post-2014

U.S. engagement. Just last week, U.S. officials criticized the Afghan
governments recommendation to release many transferred
detainees because of lack of evidence to prosecute or continue their detention under
attention. Such

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

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
several Afghan constitutional guarantees.

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 JPPs 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

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
rights under IHL and IHRL.

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

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
countries.

U.S. detention and targeting operations, and what will be the legal authority under international, U.S., and

What does the end of U.S. combat operations

mean for U.S. counter-terrorism operations in Afghanistan? How will U.S.
Afghan law for such operations?

operations be reconciled with Afghan sovereignty and the Afghan governments 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, Latifs 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, Afghanistanallowing 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,

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 .

and

Central Asia Impact

The impact is Central and Pakistan instability --- goes
nuclear
Curtis 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-totalwithdrawal-from-afghanistan-could-rock-asia-stability)//WK
Analysts 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 Islamabads 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 USs 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 . Pakistans 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

The US
decision on the number of troops will be watched closely by
Afghanistans 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
help fight extremist elements and train and advise the Afghan National Security Forces.

variety of terrorist groups based in Pakistans 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 alQaeda. 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

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.
foothold in northern Afghanistan.

Pakistan instability causes loose nukes and Indian

intervention --- goes nuclear

OHanlon 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 NuclearArmed 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

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.
Pakistani government to help restore order.

Another option would be to protect Pakistans 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

India would, of
have a strong incentive to ensure the security of Pakistans
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
anything it could to prevent nuclear weapons from getting into the wrong hands.
course,

to say the least. In the case of a dissolved Pakistani state, India likely would not hesitate to intervene;

Indias
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 Pakistans 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.
however, in the more probable scenario in which Pakistan were fraying but not yet collapsed,

Indo-pak causes extinction

Chaffin 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)//W
K
The 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 allout warthat could quickly escalate into a nuclear exchange. Indeed, in just

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, Pakistans
the past two decades,

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

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
away from the brink. However, it is equally likely that

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

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 earths 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
would not merely be limited to the immediate area. First, the

might not take much to set them off

. Indeed, following the successful U.S. raid on bin

Ladens compound, several members of Indias 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
the two that

could quickly escalate .

all-out war

between

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-guantanamoidUKKCN0PB34K20150701) //JS
A newly appointed special envoy to lead the Obama administrations 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 Obamas long-standing promise to shut the internationally condemned jail at the

The appointment marked the latest step in Obamas

slow push to close the detention centre where terrorism suspects rounded up
U.S. naval base in Cuba.

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 Departments point man to negotiate the repatriation of Guantanamo prisoners or their

Obama continues to face obstacles from U.S.

lawmakers to his long-time goal of emptying the prison , he has whittled
transfers to other countries. Though

Guantanamos 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 fivemonth 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 law
Pearlman 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 Guantnamo 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.
governments 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
Guantnamo 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 Guantnamo 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 UNas opposed to the United Stateshas
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

releaseGitmo proves
Pearlman 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 Guantnamo 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
The Obama Administration has faced growing criticism for its failure to
close the facility at Guantnamo 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 Guantnamo
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 Guantnamo 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 Guantnamo Bay and, consequently, forced the Obama
Administration to once again begin the transfer of prisonersdespite
the potentially unsafe conditions detainees may face upon return to their
home countries.

legitimacy
US torture undermines international treaty obligations

Bae and Zanocco 7- *J.D. candidates at Cornell Law School (Hana and
Courtney, Boumediene v. Bush (06-1195); Al Odah v. United States (061196), Legal Information Institute at Cornell University Law School,
https://www.law.cornell.edu/supct/cert/06-1195)//WK
Amici 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 agreedupon 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 nave. They understand governments do bad things and pursue their

when a country confesses and tries to rectify

the transgression, people are impressed. If the U.S. goes on to prosecute those who
own selfish interests abroad. So

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.

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
alliances.

being honored.

US detention policies hurt legitimacy

Welsh 11 (David is a J.D. at the University of Utah, Procedural Justice Post9/11: 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-09no2-welsh.pdf)//cc
The 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
Americas 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 norms

Keating 13- Assistant Professor in International Relations at Syddansk

Universitet (Vincent Charles, Contesting the International Illegitimacy of
Torture: The Bush Administrations Failure to Legitimate its Preferences within

International Society, 7/30/13, The British Journal of Politics & International

Relations Volume 16, Issue 1, pages 127)//WK
The Bush administrations focus on justification over innovation
strategies was also reflected within the Bush administrations 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 administrations 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 administrations 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, Its 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 allies
Hammond 14

Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics,

and a former UK Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, US

Senate report on CIA torture threatens international relations ,

http://www.smh.com.au/comment/us-senate-report-on-cia-torture-threatens-international-relations20141210-1243ol.html // SM)

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 antiAmericanism in numerous countries. This is despite the fact that the techniques are
Important as these domestic consequences might be,

now a historical relic inasmuch as Obama ruled at the start of his term, almost six years ago, that the CIA

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.
could no longer employ them.

CIA torture revelations diminish soft power and human

rights credibility
Dooley 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 detainees

Welsh 11- J.D. from the University of Utah (David, Procedural Justice Post9/11: 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-09no2-welsh.pdf)//WK
The 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
Americas 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 obligations

Bae and Zanocco 7- *J.D. candidates at Cornell Law School (Hana and
Courtney, Boumediene v. Bush (06-1195); Al Odah v. United States (061196), Legal Information Institute at Cornell University Law School,
https://www.law.cornell.edu/supct/cert/06-1195)//WK
Amici 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 agreedupon international obligations.

Mexico relations
Injustices in US torture policy spills to immigrant detainee
rights
Faisal 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)//WK
Overall, 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

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.
result in preventive

Immigrant detainee rights are the key issue for US-Mexico

relations
Lovato 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-policiesbring-global-shame-on-us/)//WK
The proliferation of stories in international media and in global forums about the
Guantanamo-like problems in the countrys 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 planets people that the United States is
ready claim exceptional leadership on human rights in a soon-to-be-postGuantanamo 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 Mexicos
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. Were expecting
some change, said Brooks. But that will not last long if we see him
continuing Bushs [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

If uncontested, the expression of such sentiments far

could lead to the kind of American
exceptionalism Obama doesnt want. In a March 2008 report, Jorge Bustamante, the
experience down south.

beyond Mexico and Mexican immigrants

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 Statesin Mexico, in Guatemala, in Indonesia and other countries- NGOs 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,

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
Alison

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

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.
immigration at which U.S. detention practices were criticized. And

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 UQ
Ranstorp 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-torturereport-292181 // SM)

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 impossiblethe
creation of a caliphateis possible, lighting the imagination of
Muslim extremists around the globe. A second major consideration is the unsavory intelligence partnerships that
It goes without saying 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

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 effortsat a time when the U.S. needs to strongly
advocate for democracy and human rights in the greater Middle
East.
organizations that those responsible be brought to justice.

The report on CIA torture creates anti-Americanism in

Muslim countries their support is key solve terrorism
Hammond 14

Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics,

and a former UK Government Special Adviser. (12/11/2014, Andrew, The Sydney Morning Herald, US
Senate report on CIA torture threatens international relations, http://www.smh.com.au/comment/ussenate-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 antiAmericanism 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 revival
Kurlantzick 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-iscausing-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 reports

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
release. The report

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 highestprofile 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

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
subjected to other inhumane treatments.

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 relations

Ranstorp 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-torturereport-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 soulsearching within the U.S. political establishment and the intelligence community about how far to go in

In the longer term, it gravely damages

intelligence partnerships and U.S. leadership on counterterrorism effortsat a time when the
balancing human rights and security.

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 it
Kurlantzick 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-iscausing-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
reports release, Afghan President Ashraf Ghani reportedly stayed up all night
reading it and gave a speech on Afghan national television decrying the
CIAs practices as against all accepted norms of human rights
abuses in the world. Ghanis 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 stability

Smith 14- (Jack A., Foreign Policy Journal, Why the US Wants to Stay in
Afghanistan, 1/7/14, http://www.foreignpolicyjournal.com/2014/01/07/whythe-us-wants-to-stay-in-afghanistan/)//WK
Afghanistan 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 Pentagons 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 elses game. At this point, a continued presence in Afghanistan dovetails with
Washingtons so-called New Silk Road policy first announced by then Secretary of State Hillary Clinton two

The objective over time is to sharply increase U.S. economic,

trade, and political power in strategic Central and South Asia to
years ago.

strengthen U.S. global hegemony and to impede Chinas

development into a regional hegemon. As the State Departments 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, were also clear-eyed
about the challenges. Despite real gains in Afghan stability, we understand
the region is anxious about security challenges. Thats 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

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.
both

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-areat-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

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
Counsel lawyer isn't sure that the Senate torture report is accurate, he

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

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
very troubling examples. They

committee's report because there were no Republicans involved. You know, the investigations intelligence

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
committee are traditionally bipartisan and the worst thing, from a lawyer's perspective,

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 exdirectors have been saying over the last few days and they appear in the CIA's own answer and in the

these were all cherry picked out of millions

of documents and that we don't have the context to understand these
minority report to the committee, that

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

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
appear and testify before the committee. But I agree. Look, Fareed, I agree with you, if

fact, subject to the "forced rectal feeding," or anal rape, that Zakaria mentions. And so we have a rather

Even the attorney who famously said that it might

be legal for the president to order an innocent child's testicles to be
extraordinary development.

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 -- thats 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-memowriter-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

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
would cross the line of the anti-torture statute," Yoo said on C-SPAN. On CNN,

question whether theyre true because I cant take at face value the committees 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-reportcia-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

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
clandestine operations.

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 votersthat 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 happeningwithout 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

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
are doing. And they cannot know what the CIA is doing if the CIA lies to them about it.

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

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
(though it does not use the l-word).

its detention and interrogation program, and this prevented the Justice Department from supplying solid

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
legal analysis.

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

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
detained or subjected to torture.

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 doesnt trade-off with hard power they work
in conjunction
Lord 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-poweroutage/?wp_login_redirect=0 // SM)

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
To be clear,

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 thenSecretary 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 dont fund the State Department [foreign operations] fully, then I need to buy more ammunition.

senate spied on the CIA

The Senate didnt spy on the CIA it received the review
through CIA disclosure or a whistleblower either way,
its legal
Zornick 14 Washington Editor for The Nation (3/12/2014, George, The Nation, In Spying
Scandal, Did Obama Just Take the CIAs Side?, http://www.thenation.com/article/spying-scandal-didobama-just-take-cias-side/ // SM)

Department of Justice is running two parallel

investigations into the CIAs 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 its 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 committees
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.
The important context here is the

war on terror good

The CIA director conceded that its impossible to know if
torture is an effective counterterror strategy
Hattem 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. Its an unknowable fact. A report from
the Senate Intelligence Committee this week strongly disagreed with
Brennans 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 alliances
Schiffer 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_P
ower_SF.pdf)//cc
The presidents 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 postCold 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 postCold War era is one

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
where

differences in the international communitys postCold 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 Iraqs 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 Iraqs 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
presidents unilateralist efforts by instilling a sense of danger in waiting for other actors to give legitimacy

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 postCold War increase in UN action raises concerns about whether the
to the U.S.-led war.

War Powers Resolution should be amended to either facilitate or restrain the presidents 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

disads

politics link turn - popular

Obama loves the plan publicly supports CIA
accountability and rejects CIA surveillance of the Senate
Bolton 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)

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 committees
network or removal of access to CIA documents already provided to
the committee. On May 17, 2010, the CIAs 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
The role of the White House:

would declassify the reports conclusions and 300-page summary, not the entire 6,300-page document.

Obama has backed a

public accounting of the CIAs 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 (DIll.) on Thursday urged Obama to act swiftly. The sooner, the
better, he said.
The internal Panetta review would not be included in the report. Although

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-todeclassify-cia-torture-report.html?referrer=https://www.google.com/ // SM)

Obama has pledged to declassify the Senate Select Committee

on Intelligences (SSCI) headline-making report about the Central
Intelligence Agencys (CIA) interrogation techniques. From Agence FrancePresse: "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 Presidents 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
Constitutions separation of powers by spying on her committee
President

staff members computers as they investigated the agencys

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-domesticsurveillance_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-ciaspied-on-senate-committee-staff/)//cc
Sen. 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 reforms

Voltz 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/obamaadministration-strongly-supports-nsa-reform-bill-20141117)//cc
The Obama administration on Monday endorsed a Senate proposal to
rein in the government's most controversial domestic spying
programa 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 metadatathe
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 backlash

Landay 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 chiefs ousterhttp://www.mcclatchydc.com/news/nationworld/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 agencys 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 committees computers, said Sen. Saxby Chambliss,

R-Ga., the committees 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 support

Mazzetti 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 generals 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 committees Democratic chairwoman, who
excoriated the C.I.A. in March when the agencys 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 agencys director, had apologized to Ms. Feinstein and the committees 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,

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.
could recommend potential disciplinary measures and steps to address systemic issues. But

Brennans 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. Brennans 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. Constitutions requirement of separation of
powers.

The plan has widespread support especially among

Democrats
Milbank 14 Dana Milbank writes about political theater in the nations 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-milbankallegations-of-cia-spying-on-the-senate-deserve-investigation/2014/03/11/96105150-a95b-11e3-8d62419db477a0e6_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

The
president might also consider whether he wants to tolerate the
imperious behavior of CIA Director John Brennan, who promptly dismissed
Feinsteins 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 CIAs actions , but Feinstein said that
crime. I view the acting counsel generals referral as a potential effort to intimidate this staff.

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 Feinsteins 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 theyd support a bipartisan
investigation of the CIAs actions.

politics no link
No link Obamas trying to stay out of the Senate-CIA
dispute
Lesniewski 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)

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 thats not something
that is an appropriate role for me and the White House to wade into at this
point, Obama said Wednesday. While the matters been referred to the Justice Department,
one senior GOP senator has raised the prospect of needing a special prosecutor. Obamas 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 agencys
interrogation policies during the George W. Bush administration. CIA Director John
O. Brennan denied the alleged spying by his agency on the Senate.
President Barack

Obama remains ambiguous on the Senate/CIA feud, means

he doesnt push or get blamed
Horton 2/21 Scott Horton is a contributing editor at Harpers 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
Americas 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 disproven

Leber 14- research assistant at Brookings (Andrew, A
Resounding Silence: Regional Reactions to the Senates Report on
U.S. Use of Torture, Brookings Institute, 12/29/14,
http://www.brookings.edu/blogs/markaz/posts/2014/12/29-middleeast-reaction-torture-report)//WK
The release of the Senate Intelligence Committee report on the
Central Intelligence Agencys 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 reports release on December 5 due to
concerns over fall-out from the reports 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 reports 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 reports release.

terror
Torture doesnt improve counter-terror operations - the
CIAs own internal review proves
Horton 2/21 Scott Horton is a contributing editor at Harpers 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
Americas 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 monthsuntil June 27, 2013to respond.
When it did so, the earlier confidential response was backed by the curiously coordinated crossfire of an
assortment of actorsformer 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

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 CIAs own records
furnished no support for these claims. This unofficial CIA response was driven heavily
to the Bush administration authors of the program. Their

by apparent leaks from within the agency, and the hand of Director John O. Brennan was later revealed in

While the agencys defenders concentrated their fire on

specific facts found and conclusions drawn by the report, it would
turn out that the CIAs 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 CIAs
criticism of the Senate report as disingenuousas Feinstein noted, it
stood factually in conflict with its own internal review. Even more
the process.

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

radicalization
Gunter 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/me
po.12116/epdf)//WK

The 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 alTurkmani, 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 organizations
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 groupseven 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)//WK

Wars 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 movements internal
inconsistencies and differences. Al-Qaidas 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-Qaidas 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 levelsecondary
concessionssuch 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 campaignthe 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

group
Press TV 14

Irans 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-ustorture-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
CIAs 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

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
more brutal than the spy agency had disclosed.

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 arent 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/setrelease-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 CIAs 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

CIA
prisoners were subjected to medically unnecessary rectal feeding or rectal
hydration a technique that the CIAs chief of interrogations described as a way to exert total
told that they would be killed while in U.S. custody. With the approval of the CIAs medical staff, some

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 didnt 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 Senates 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 Committees report tries to refute each of these claims, using the
CIAs 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 studys 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.

the report also found evidence that a number of detainees had

been subjected to other, unapproved methods while in CIA custody. The torture of
But

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 agencys first prisoner was held. Within days
of the Justice Departments 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
agencys 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--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 CIAs Counterterrorism Center.

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 CIAs leadership for years gave false information about the total
number of prisoners held by the CIA, saying there had been 98 prisoners when CIA
Such language is not helpful. The Senate report found that

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 agencys

The committees
report concluded that of the 119 detainees, at least 26 were
wrongfully held.
director, to keep the number at 98 and not to count any additional detainees.

counterplans

Feinstein cp
Feinsteins 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/oped/la-oe-yoo-torture-feinstein-20141214-story.html#page=1) //JS

Dianne Feinstein's report last week on enhanced interrogations under the

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
Sen.

George W. Bush

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

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
House and the president and covered up the abuse of terrorists.

positive virtue: It has moved the debate beyond legality to effectiveness. To be sure, the senator takes a

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
stab at claiming the interrogation methods amounted to illegal torture.

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

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
reasonable Americans,

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

President who followed Feinsteins advice would fail in his or her

fundamental duty to protect the security of the United States Suppose
Any

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

According to Senator Dianne Feinsteins report on Bush-era

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
enemy. What would you do?

interrogation policies, released today,

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

If another attack occurs, perhaps worse

the President must still wait for the al Qaeda leaders to
cooperate willingly. Any President who followed Feinsteins 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
citizens suspected of garden variety, domestic crimes.
than the first,

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
Departments Office of Legal Counsel at the time of the 9/11 attacks, I thought that the CIAs proposed
interrogation methods were within the bounds of the lawjust barely. They did not inflict serious, longterm 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 didnt 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 Bushs

The Feinstein report cannot deny that most Americans agree

President Bush acted reasonably under these emergency conditions.
decision.

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

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
leaked). And

government in Fall, 2001 would have been astounded at this result in light of the openness of American
society and al Qaedas 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 dont believe me, take a look at the 9/11
Commission Reports 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 mobilization
Hodson 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

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.
actions. A

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 botheffective separation of powers are a
prerequisite to channel dissent into institutions
Pillard 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)//WK
Permitting 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 alterity

Richardson 11 (Michael. Doctorate of Creative Arts at the University of Western Sydney. Writing
Tortures Remnants: Sovereign Power, Affect and the War on Terror. February 2014. http://www.interdisciplinary.net/wp-content/uploads/2011/02/richardsontpaper.pdf)//JuneC//

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
POWER AND THE TORTURED BODY

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

Foucault
described the fundamental dynamics of modern states as biopower
and biopolitics (2007). We might think of biopower in Giorgio
Agambens 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 Kafkas 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
newly political torture and its refiguring of the relationship between life and power?

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

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
American power, to somehow make that power real.

of Kafkas penal colony, where the torture that leads to death writes deeply into the very flesh (Kafka

The entire body, both physical and political life, is made the full
target of torture. The victims 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
2003).

power, can such a subject speak?

Discussions of torture policy are importantleads to

political solutions
Del 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)//WK

A 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 prisonuntil 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 reportingas
data that provide more or less transparent windows onto the underlying
reality of the practice. Such studiesmany of which I cite in this bookhave
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 surveillance
Dreazen and Naylor 5/18

- Yochi Dreazen is managing editor, news, at Foreign Policy and

author of The Invisible Front. Sen D. Naylor is Foreign Policys intelligence and counterterrorism senior
staff writer and author of the forthcoming book Relentless Strike. (2015, Yochi Dreazen and Sen 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-reportdrones/ // 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 agencys 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

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;
Virginia. In her lengthy floor speech,

the Computer Fraud and Abuse Act, a 1986 law that makes it a federal crime to access government

Executive Order 12333, which bars the CIA

from carrying out domestic surveillance activities.

computers without permission; and

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 surveillance
Crockford 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

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 committees 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.
in a video-taped interview at the Council of Foreign Relations.