Arizona Debate Institute 2013 Opening Topic Lecture Dr. Dave Hingstman Resolved: The United States Federal Government should substantially increase statutory.

Arizona Debate Institute 2013Opening Topic Lecture

Dr. Dave Hingstman

Resolved: The United States Federal Government should substantially increase statutory and/or judicial restrictions on the war powers authority of the President of the United States in one or more of the following areas: targeted killing; indefinite detention; offensive cyber operations; or introducing United States Armed Forces into hostilities.

Compare and contrast: the 1969-70 high school debate topic

Resolved: That Congress should prohibit unilateral military intervention in foreign countries.

Affirmative cases and Topicality

• An affirmative case on the war powers topic will contain initial arguments (reasons and support) for the topic.

• Topicality is an issue that relates arguments to the topic being debated.

• When preparing an affirmative case, think about how your arguments and the key topic words will relate to each other.

War Powers Authority [of the President]

• In English grammar, a compound noun (more than one noun). The second noun tells the thing in question [authority] and the first noun tells what quality or purpose the thing has [war powers]

Some meaning questions for topicality

1. Is “authority” something claimed by someone or something that must be

recognized by others? 2. Are “war powers” those which have been exercised in the past or which

could be exercised in now or in the future?

[War Powers] Authority [of the President]

• Article 2, Section 2 of the US Constitution: “The President shall be the Commander in Chief of the Army and Navy of the US, and of the Militia of the several States. . . ”

• Article 2, Section 1 of the US Constitution: “The executive Power shall be vested in a President.” Article 2, Section 3: “shall take Care that the Laws be faithfully executed.”

[War Powers] Authority [of the Congress]

• Article I, Section 8: “The Congress will have the power . . . to pay the Debts and provide for the common Defence and general Welfare of the US; . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces. . . to make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”

Statutory Restrictions – War Powers Resolution (1973) (“WPR”)

Federal law requiring the President to notify Congress within 48 hours of committing armed forces to military action and to terminate the use of armed forces within 60 days after hostilities begin unless Congress authorizes military action. An attempted statutory restriction on executive war powers.

Presidents have submitted 130 reports to Congress as a result of the War Powers Resolution, although only one (the Mayagüez incident) cited Section 4(a)(1) and specifically stated that forces had been introduced into hostilities or imminent danger.

Authorization for Use of Military Force Against Terrorists (2001) (”AUMF”)

Statute (PL 107-40) granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups.

Used by Presidents GW Bush and Obama to justify targeted killings and indefinite detention of enemy combatants, as well as offensive cyber operations against Iran and introducing US armed forces into Afghanistan.

National Defense Authorization Act for Fiscal Year 2012 (2011) (“NDAA”)

Statute, of which subsections 1021-1022 of Title X, Subtitle D, entitled "Counter-Terrorism," authorize the indefinite military detention of persons the government suspects of involvement in terrorism, including U.S. citizens arrested on American soil, under Section 412 of the USA Patriot Act. “Affirms" the authority of the AUMF and makes specific provisions as to the exercise of that authority.

The US Second Circuit Court of Appeals overturned on July 17, 2013 the district court's ruling in Hedges v. Obama, which struck down § 1021(b)(2) of NDAA as unconstitutional, because the plaintiffs lacked legal standing to challenge it.

Paradox of statutory restrictions upon war powers of the President

• Since all modern Presidents have made expansive claims about their “inherent” war powers as Commander-in-Chief and Chief Executive, even laws like AUMF and NDAA/USA Patriot Act that seem to give the President war powers authority can be seen as “statutory restrictions” on those war powers. That’s why how you define “authority” can make a difference in a debate.

All Presidents since 1973 have made explicit reservations in any reports to Congress that the WPR violates their Article 2 commander-in-chief and executive powers. This claim has not been tested in the courts.

Former VP Dick Cheney:

Judicial restrictions on war powers authority – US Supreme Court

• In The Prize Cases (1862), the Supreme Court reviewed whether President Lincoln was acting within his war power when he authorized a naval blockade that capture several southern merchant vessels. In its majority opinion, the Court noted that a state of war can exist when Congress declares war and when a state of war “results from exigent circumstances.” But it also found that a state of war did not exist when the merchant vessels were seized in these cases.

Judicial restrictions on war powers authority – US Supreme Court

• In Youngstown Sheet & Tube v. Sawyer (1952), the US Supreme Court reviewed whether President Truman’s claim of inherent war powers justified the seizure of steel mills to end a labor dispute. The Court’s majority opinion denied that power, arguing that without congressional authorization, the President cannot “make the laws” under war powers, but only execute existing laws. The principle of separation of powers should restrict presidential action here.

Judicial restrictions on war powers authority – US Supreme Court

• In Hamdi v. Rumsfeld and Rasul v. Bush (2004) the Court’s majority opinion argued that the President has the power to detain, but not indefinitely without trial, a US or alien citizen in the name of national security as an enemy combatant, but that these persons have habeas corpus rights under the due process clause of the US Constitution to challenge the legitimacy of their detention.

Guantanamo Bay detention cells

Judicial restrictions on war powers authority – US Supreme Court

Why are there relatively few cases and US Supreme Court decisions involving the war powers authority of the President and Congress?

Ever since the Court established its power to review executive & legislative action for consistency with the Constitution in Marbury v. Madison (1803), it has declined to intervene in most disputes between the two other branches on the grounds of political question, which citizens can settle better through the vote.

Judicial restrictions on war powers authority – Article 3 courts

Article 3, Section 1 of the US Constitution says that Congress may “from time to time ordain and establish” inferior courts.

Under the Foreign Intelligence Surveillance Act (1978)(“FISA”), Congress provided for special classified courts to review presidential applications for government surveillance for national security purposes. Edward Snowden, the NSA whistleblower, has made these courts famous.

Structure of affirmative cases – critical and policy

Critical affirmative cases question the assumptions that support existing social and political institutions and their autonomy from the needs & interests of people

Policy affirmative cases look to alternative governmental actions and what their costs and benefits, both direct and indirect, might be

Targeted Killing and Affirmative Plans

• Targeted killing defined: “premeditated killing of an individual, by a state, organization or institution, outside a battlefield.” For the US in recent years, the use of UAVs (Unmanned [sic] Aerial Vehicles), drone airplanes, to assassinate people suspected of endangering US national security.

• Some possible affirmative plans1. Congress repeals AUMF or the federal courts rule it

unconstitutional for targeted killing of people suspected of terrorist involvement

2. Congress creates a federal court system to review and revise the criteria used by executive officials to authorize targeted killing

3. Congress declares war and sets criteria for targeted killing based on international law principles

4. We demand that the USFG officially recognize injustice of targeted killing and offer compensation for those affected by these practices

Drone strikes in the Federally Administered Tribal Areas (“FATA”) of Pakistan

International Crisis Group Report, 5-21-13: “Since 2004, there have been at least 350 drone strikes in FATA, mostly in North Waziristan, South Waziristan and Kurram agencies. These have killed significant numbers of al-Qaeda leaders and senior militant commanders of both the Pakistani and Afghan Taliban, but also scores of innocent civilians, in part because of so-called “signature” strikes that target groups of men based on behaviour patterns associated with terrorist activity rather than known identities.”

Drone strikes in Yemen

Anwar al-Awlaki was a US citizen living in Yemen. He was a radical cleric who made speeches justifying the use of terror tactics against the US. Because the US government saw him as a leading voice of al Qaeda in the Arabian Peninsula (AQAP), the CIA killed him on September 30, 2011 through a drone missile strike. Two weeks later, his son in Yemen was killed in a similar drone strike.

Anwar al-Awlaki

Targeted killing affs– some advantages & criticisms

• Reduce anti-American sentiment and recruitment of terrorists

• Prevent proliferation of military drones across the world

• Improve the image of US foreign policy to increase influence on human rights

• Encourage the use of more effective policies against terror

• Targeted killing is precision warfare, a form of “biopower” that normalizes neoliberal control

• Targeted killing tries to master the bodily vulnerability that constitutes people as people (Judith Butler, Precarious Life)

Indefinite Detention and Affirmative Plans• Indefinite Detention defined: “the incarceration of an arrested person by

a national government or law enforcement agency without a trial. In recent years, governments have indefinitely held those suspected to be involved in terrorism, declaring them as enemy combatants.”

• Some possible affirmative plans1. Congress repeals NDAA & Patriot Act §412, the bases for

executive branch indefinite detention without trial2. Congress passes the Senate version of NDAA FY 2014, which

reduces barriers to transfer of detainees from Guantanamo Bay3. The US Supreme Court should reverse its decision in Korematsu v.

US (1944), ruling that indefinite detention without trial is a violation of due process and equal protection of the law.

4. We demand that the USFG officially recognize injustice of indefinite detention and extraordinary rendition, renounce its use and release terror suspects interned in US facilities or pressure for release of prisoners rendered to other governments.

Indefinite Detention at Guantanamo Bay

• In Boumediene v. Bush (2008), the US Supreme Court ruled that non-citizens held at Guantanamo Bay had the right to bring a habeas corpus petition before a federal court, because the US base had been within the jurisdiction of the US military for a long time and was not an active site of warfare. But this ruling does not guarantee trials in civilian courts or assure a speedy trial and disposition.

Detention of 168 suspected enemy combatants in the Guantanamo Bay facility, Cuba

Indefinite detainees await military trials

During the 2008 campaign, candidate Obama promised to close the Guantanamo Bay facility and bring suspected terrorists to the US for trial. Congress has refused to authorize funds for that purpose, so in March 2011, the President announced the resumption of military trials at Guantanamo Bay.

Bagram Air Force Base, Afghanistan

In 2010, the DC Federal Circuit Court ruled in Al Malaqeh v. Gates that prisoners held at Bagram Air Force Base did not have the right of habeas corpus because the base was part of a “theater of war” and only temporarily under US control.

Extraordinary rendition

Since 2001, the CIA has kidnapped and transferred 3000 persons to prisons in other countries to evade restrictions on torture. In 2009, President Obama signed an executive order ending the CIA program but continuing to allow rendition in certain circumstances.

Illegal CIA rendition flights to “black sites”

Floating detention camps

In July 2011, the US government announced that Ahmed Abdulkadir Warsame, a Somali citizen captured in April and suspected of involvement with al Qaeda in the Arabian Peninsula would be indicted in US civilian court after being held for interrogation for 2 months on a US Navy ship off the coast of Africa.

Ahmed Abdulkadir Warsame

Detention for “material support of terrorism”

Jubair Ahmad, a US legal resident and Pakistani citizen, pleaded guilty on December 2, 2011, to the charge that he gave “material support” to a terrorist group in violation of a US statute by uploading a You-Tube video that glorified the Pakistani militant group Lashkar-i-Taiba. He is serving a 12-year sentence.

Jubair Ahmad

Holder v. Humanitarian Law Project (2010)

The US Supreme Court in a 6-3 decision overrules a 9th Circuit Court of Appeals finding that the “material support for terrorism” section of the USA Patriot Act is too vague to avoid violating the First Amendment.

Indefinite detention affs– some advantages & criticisms

• Reduce anti-American sentiment and recruitment of terrorists

• Improve the image of US foreign policy to increase influence on human rights

• Encourage the use of more effective policies against terror

• Ending forced feeding of detainees enhances free expression

• Indefinite detention is a tool of state terror against people, reducing them to the status of bare life (Georgio Agamben)

• Indefinite detention is discriminatory (Islamophobic for Guantanamo detainees) because it punishes those with no demonstrated connection to terrorist acts on the basis of ethnicity or religious beliefs

Offensive cyber operations and Affirmative Plans

• Offensive cyber operations defined (Presidential Policy Directive 20): “Operations and related programs or activities - other than network defense, cyber collection, or defensive cyber effects operations - conducted by or on behalf of the US Government, in or through cyberspace, that are intended to enable or produce cyber effects outside US Government networks.”

• Some possible affirmative plans1. Congress passes a joint resolution declaring that the AUMF

does not justify the deployment of offensive cyber operations2. Congress creates a special court to review and restrict the

use of offensive cyber operations according to international just law principles

3. Congress amends the NDAA for FY 2014 to set criteria for offensive cyber operations based on international law principles

4. We demand that the USFG officially renounce the use of offensive cyber operations in any future conflicts

Stuxnet computer virus and Iran’s centrifuges

Rid, The New Republic, 2-4-13: “At present, the United States government is one of the most aggressive actors when it comes to offensive cyber operations, excluding commercial espionage. The administration has anonymously admitted that it designed Stuxnet (codenamed Olympic Games) a large-scale and protracted sabotage campaign against Iran’s nuclear enrichment facility in Natanz that was unprecedented in scale and sophistication.”

Pentagon plans for US Cyber Command

• Rid, The New Republic, 2-4-13: Last week, the Pentagon leaked its plans to massively boost its Cyber Command. What had been a 900-person nascent military outfit housed at Fort Meade in Maryland will be expanded to a team of 4,900. The move, the Washington Post reported with excitement, was designed to turn a largely defensive organization into a more offensively-minded “Internet-era fighting force.”

Offensive cyber operations affs– some advantages & criticisms

• Prevent a worldwide arms race in offensive cyber technologies that would hurt national security and economic growth

• Remove the incentive for US preventive cyber wars that violate international law and hurt US human rights credibility

• Prevent preemptive strikes by other governments in the “fog of war” scenario that could escalate to physical warfare

• Proliferation of offensive cyber operations encourages virtual and machine-controlled war atrocities and escalating tactics (Donna Haraway, Paul Virilio, James Der Derian).

Introduction of US armed forces into hostilities and Affirmative Plans

• “Introduction of US Armed Forces into hostilities” defined: Chesney, 6-5-11: “The argument begins with the point that the 60-day clock is triggered by the circumstances identified in WPR section 4(a)(1): i.e., U.S. armed forces either are introduced into “hostilities” or into circumstances where “hostilities are imminent.”

• Some possible affirmative plans1. Congress amends the War Powers Resolution to define

hostilities as including intermittent US armed forces engagements.

2. Congress passes a statute to strengthen the WPR consultation requirements.

3. We demand that the USFG renounce the introduction of US armed forces into hostilities and embrace the principles of disarmament and nonviolent resistance to oppression.

Presidential resistance to WPR consultation

• Presidents distinguish “intermittent military engagements” from “introduction of US armed forces into hostilities.”

Reagan – Lebanon (1983); GHW Bush – Panama (1989); Clinton – Somalia (1993); Clinton – Bosnia (1995); Obama – Libya (2011).

Introduction of US Armed Forces into hostilities in Syria

• Goodman, June 2013: “On June 13, 2013, President Obama declared we had proof of chemical weapons use by the Assad regime and that the US would now provide military assistance to the rebel forces.”

• McClatchy Newspapers, 7-24-13: “But the wording of the amendment would apply to setting up a no-fly zone or using U.S. ships to launch attacks on sites in Syria, and the debate showed that deeper military involvement in Syria is opposed by an unusual House coalition of conservative Republicans and liberal Democrats.”

Introduction of US armed forces into hostilities affs– some advantages & criticisms

• Avoid rushed and poorly-defended US military engagements that are counterproductive for national security and military readiness

• Prevent preemptive strikes for antiterrorism or democracy promotion efforts that could escalate to fullscale war.

• Reduce the international perception of the US and its armed forces as an imperialist brigand; improve human rights credibility

• Introduction of US armed forces into hostilities encourages militaristic culture, which encourages oppression and exclusionary practices, as well as cycles of violence.

Possible Future Topic Directions

• Topic list is preceded by “in the area of,” a phrase not well-defined in any scholarly literature.

----“Indefinite detention” could refer to “domestic” security issues, such as the death penalty and detention of immigrants.

----“Introduction of US armed forces into hostilities” could refer to any military action, making any change in military regulations (Uniform Code of Military Justice) potentially topical.

----“Targeted killing” may extend beyond antiterrorist measures.