Summary

• Objects (1 modified, 1 added, 0 removed)
  • Caselist.RoundClass[13]
  • Caselist.CitesClass[13]

Details

Caselist.RoundClass[13]

EntryDate

...	...	@@ -1,1 +1,1 @@
1		-2016-12-02 02:13:07.920
	1	+2016-12-02 02:13:07.0

Caselist.CitesClass[13]

Cites

...	...	@@ -1,0 +1,101 @@
	1	+Generic
	2	+1NC Util
	3	+
	4	+
	5	+The standard should be preserving human life
	6	+
	7	+Epistemic modesty breaks any tie and answers all AC pre-empts
	8	+
	9	+Nick Bostrom, Existential Risk Prevention as a Global Priority, 2012. NS
	10	+
	11	+These reflections on moral uncertainty suggest an alternative, complementary way of looking at existential risk. Let me elaborate. Our present understanding of axiology might well be confused. We may not now know—at least not in concrete detail—what outcomes would count as a big win for humanity; we might not even yet be able to imagine the best ends of our journey. If we are indeed profoundly uncertain about our ultimate aims, then we should recognize that there is a great option value in preserving—and ideally improving—our ability to recognize value and to steer the future accordingly. Ensuring that there will be a future version of humanity with great powers and a propensity to use them wisely is plausibly the best way available to us to increase the probability that the future will contain a lot of value.
	12	+
	13	+Extinction justifies moral loopholes
	14	+Bok, 1988 (Sissela Bok, Professor of Philosophy, Brandeis, Applied Ethics and Ethical Theory, Ed. David Rosenthal and Fudlou Shehadi, 1988)
	15	+The same argument can be made for Kant’s other formulations of the Categorical Imperative: “So act as to use humanity, both in your own person and in the person of every other, always at the same time as an end, never simply as a means”; and “So act as if you were always through actions a law-making member in a universal Kingdom of Ends.” No one with a concern for humanity could consistently will to risk eliminating humanity in the person of himself and every other or to risk the death of all members in a universal Kingdom of Ends for the sake of justice. To risk their collective death for the sake of following one’s conscience would be, as Rawls said, “irrational, crazy.” And to say that one did not intend such a catastrophe, but that one merely failed to stop other persons from bringing it about would be beside the point when the end of the world was at stake. For although it is true that we cannot be held responsible for most of the wrongs that others commit, the Latin maxim presents a case where we would have to take such a responsibility seriously—perhaps to the point of deceiving, bribing, even killing an innocent person, in order that the world not perish.
	16	+
	17	+Our Offense
	18	+
	19	+1. Science proves non util ethics are impossible and our version of util solves all aff offense
	20	+Greene 10 – Joshua, Associate Professor of Social science in the Department of Psychology at Harvard University
	21	+(The Secret Joke of Kant’s Soul published in Moral Psychology: Historical and Contemporary Readings, accessed: www.fed.cuhk.edu.hk/~lchang/material/Evolutionary/Developmental/Greene-KantSoul.pdf)
	22	+What turn-of-the-millennium science is telling us is that human moral judgment is not a pristine rational enterprise, that our moral judgments are driven by a hodgepodge of emotional dispositions, which themselves were shaped by a hodgepodge of evolutionary forces, both biological and cultural. Because of this, it is exceedingly unlikely that there is any rationally coherent normative moral theory that can accommodate our moral intuitions. Moreover, anyone who claims to have such a theory, or even part of one, almost certainly doesn't. Instead, what that person probably has is a moral rationalization. It seems then, that we have somehow crossed the infamous "is"-"ought" divide. How did this happen? Didn't Hume (Hume, 1978) and Moore (Moore, 1966) warn us against trying to derive an "ought" from and "is?" How did we go from descriptive scientific theories concerning moral psychology to skepticism about a whole class of normative moral theories? The answer is that we did not, as Hume and Moore anticipated, attempt to derive an "ought" from and "is." That is, our method has been inductive rather than deductive. We have inferred on the basis of the available evidence that the phenomenon of rationalist deontological philosophy is best explained as a rationalization of evolved emotional intuition (Harman, 1977). Missing the Deontological Point I suspect that rationalist deontologists will remain unmoved by the arguments presented here. Instead, I suspect, they will insist that I have simply misunderstood what Kant and like-minded deontologists are all about. Deontology, they will say, isn't about this intuition or that intuition. It's not defined by its normative differences with consequentialism. Rather, deontology is about taking humanity seriously. Above all else, it's about respect for persons. It's about treating others as fellow rational creatures rather than as mere objects, about acting for reasons rational beings can share. And so on (Korsgaard, 1996a; Korsgaard, 1996b). This is, no doubt, how many deontologists see deontology. But this insider's view, as I've suggested, may be misleading. The problem, more specifically, is that it defines deontology in terms of values that are not distinctively deontological, though they may appear to be from the inside. Consider the following analogy with religion. When one asks a religious person to explain the essence of his religion, one often gets an answer like this: "It's about love, really. It's about looking out for other people, looking beyond oneself. It's about community, being part of something larger than oneself." This sort of answer accurately captures the phenomenology of many people's religion, but it's nevertheless inadequate for distinguishing religion from other things. This is because many, if not most, non-religious people aspire to love deeply, look out for other people, avoid self-absorption, have a sense of a community, and be connected to things larger than themselves. In other words, secular humanists and atheists can assent to most of what many religious people think religion is all about. From a secular humanist's point of view, in contrast, what's distinctive about religion is its commitment to the existence of supernatural entities as well as formal religious institutions and doctrines. And they're right. These things really do distinguish religious from non-religious practices, though they may appear to be secondary to many people operating from within a religious point of view. In the same way, I believe that most of the standard deontological/Kantian self-characterizatons fail to distinguish deontology from other approaches to ethics. (See also Kagan (Kagan, 1997, pp. 70-78.) on the difficulty of defining deontology.) It seems to me that consequentialists, as much as anyone else, have respect for persons, are against treating people as mere objects, wish to act for reasons that rational creatures can share, etc. A consequentialist respects other persons, and refrains from treating them as mere objects, by counting every person's well-being in the decision-making process. Likewise, a consequentialist attempts to act according to reasons that rational creatures can share by acting according to principles that give equal weight to everyone's interests, i.e. that are impartial. This is not to say that consequentialists and deontologists don't differ. They do. It's just that the real differences may not be what deontologists often take them to be. What, then, distinguishes deontology from other kinds of moral thought? A good strategy for answering this question is to start with concrete disagreements between deontologists and others (such as consequentialists) and then work backward in search of deeper principles. This is what I've attempted to do with the trolley and footbridge cases, and other instances in which deontologists and consequentialists disagree. If you ask a deontologically-minded person why it's wrong to push someone in front of speeding trolley in order to save five others, you will get characteristically deontological answers. Some will be tautological: "Because it's murder!" Others will be more sophisticated: "The ends don't justify the means." "You have to respect people's rights." But, as we know, these answers don't really explain anything, because if you give the same people (on different occasions) the trolley case or the loop case (See above), they'll make the opposite judgment, even though their initial explanation concerning the footbridge case applies equally well to one or both of these cases. Talk about rights, respect for persons, and reasons we can share are natural attempts to explain, in "cognitive" terms, what we feel when we find ourselves having emotionally driven intuitions that are odds with the cold calculus of consequentialism. Although these explanations are inevitably incomplete, there seems to be "something deeply right" about them because they give voice to powerful moral emotions. But, as with many religious people's accounts of what's essential to religion, they don't really explain what's distinctive about the philosophy in question.
	23	+
	24	+2. Uncertainty and social contract require governments use util
	25	+Gooden, 1995 (Robert, philsopher at the Research School of the Social Sciences, Utilitarianism as Public Philosophy. P. 62-63)
	26	+Consider, first, the argument from necessity. Public officials are obliged to make their choices under uncertainty, and uncertainty of a very special sort at that. All choices—public and private alike—are made under some degree of uncertainty, of course. But in the nature of things, private individuals will usually have more complete information on the peculiarities of their own circumstances and on the ramifications that alternative possible choices might have on them. Public officials, in contrast, are relatively poorly informed as to the effects that their choices will have on individuals, one by one. What they typically do know are generalities: averages and aggregates. They know what will happen most often to most people as a result of their various possible choices. But that is all. That is enough to allow public policy-makers to use the utilitarian calculus—if they want to use it at all—to choose general rules of conduct. Knowing aggregates and averages, they can proceed to calculate the utility payoffs from adopting each alternative possible general rules.
	27	+1NC
	28	+
	29	+Governments responsible for police officers should implement the Coalition Against Police Abuse proposal for civilian review which includes-
	30	+-establish “Loyal Opposition Policy Review Boards” for civilian oversight of police conduct, policy, and hiring/firing decisions
	31	+-The boards should be: elected, paid, and independent of police agencies
	32	+-The boards should have special investigators with unrestricted access to crime scenes and the power to subpoena police department personnel and records
	33	+-The board should have authority over all claims of police misconduct including: assault, discrimination, infiltration of community groups, sexual harassment, false arrest, and misuse of force. The board should be able to mandate training or discipline for officers up to and including firing, protections for police whistleblowers, and mandate of municipal damages
	34	+-Special city prosecutors should be appointed independent of the city attorney’s office and the city council who handle all criminal cases against police officers and have full subpoena powers
	35	+-staff should be hired on the basis of affirmative action policies
	36	+
	37	+CRBs are a legitimate alternative to immunity reform- their decisions affect the ‘clearly established’ doctrine which solves the case without judicial change
	38	+Meltzer, JD, 14
	39	+(Ryan E., Texas LR 92: 1277 Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: “Clearly Establishing” the Law Through Civilian Oversight of Police)
	40	+In the course of investigating discrete incidents of alleged police misconduct, civilian external investigatory bodies engage in fact-finding and identification and application of governing legal standards in much the same way as a court assesses a motion to suppress evidence or a § 1983 claim alleging a deprivation of constitutional rights.31 More importantly, these bodies constantly encounter novel factual scenarios, particularly ones implicating the Fourth Amendment,32 such that their findings epitomize the sort of fact-specific guidance endorsed by the Court.33 Further, to the extent that they are empowered to make policy recommendations to the police departments they oversee, civilian external investigatory bodies also resemble compliance agencies like the U.S. Department of Justice (DOJ), whose advisory reports have helped to provide the sort of “notice” required to overcome an official’s qualified immunity.34 Consequently, the Court’s qualified immunity jurisprudence appears to permit the findings of such bodies to contribute to the clearly-established-law analysis. At present, however, the work of civilian external investigatory bodies—work that produces a wealth of valuable information and often confronts constitutional questions that might otherwise escape formal adjudication— is largely divorced from that of the courts.35 This state of affairs represents a costly missed opportunity, especially in the wake of Pearson. (1281-2)
	41	+
	42	+
	43	+The CP Solves the Case
	44	+1. Only EXTERNAL, CIVILIAN oversight can alter police behavior- the aff’s internal legal reform drives police misconduct underground- it’s a trap
	45	+Akbar, 15 – Assistant Professor of Law at Michael E. Moritz College of Law, the Ohio State University (Amna, “National Security’s Broken Windows”, UCLA Law Review, Vol. 62, pg. 834, May 2015, Lexis)
	46	+This Article has attempted to identify the problems with community engagement and counterradicalization in the national security context, drawing from the critiques of community policing and broken windows in the ordinary criminal context. The canvas for this critical engagement was limited insofar as *906 Muslim communities' experiences in these programs have been largely sheltered from public view. Harvesting those experiences is no doubt essential to understanding the possibilities and limitations of these programs. This Article provided a sketch of the problems lurking near the surface - that is left to future work.
	47	+Is community engagement salvageable? Moving community engagement toward its most democratic aspirations - toward a more genuine exercise in community consultation, contestation, and collaboration - would involve ridding the program of its pernicious baggage. For example, law enforcement could end community engagement's integration with community-wide intelligence gathering, or could decouple community engagement from CVE and counterradicalization.
	48	+Certainly there are strong normative reasons, including those that motivate this Article, to expect and demand that law enforcement account for the realities of marginalized communities. But we cannot expect that dialogue will necessarily lead to accountability, meaningful contestation, or realignment of police approaches in marginalized communities. After all, law enforcement is itself a significant vehicle for marginalization and racialization in the United States. It is reasonable to question whether community policing - or policing at all - can be expected to be the vehicle for the change we are seeking. The problem and the solution may be entirely mismatched.
	49	+The allure of community policing rests in part on a broader construct of dialogue as inherently valuable. While dialogue can certainly be valuable, its value will depend on the context and the point of view from which it is being evaluated. Dialogue often serves a different function for the more powerful in the conversation than the less powerful. The idea that dialogue is the cure-all for poor relationships between police and marginalized communities emerges from a failure to recognize the structures and histories of police impunity in these communities, as well as the material realities that keep inequality in place. When the dialogue in question is with the police, initiated by the police, and on the police's own terms, not only is the function of the dialogue necessarily limited, the entire initiative should raise red flags. How will the dialogue change the material reality of policing in the community? Does the dialogue further exacerbate inequality or simply validate preexisting policing practices through the performance of democratic legitimacy? Or is it really allowing for messy democratic contestation, and the possibility for change in the material conditions of the relationship between the police and the marginalized?
	50	+For community policing to be an effective tool in changing the relationship between the marginalized and law enforcement, marginalized communities cannot simply be offered a seat at the table to participate in preconceived policing *907 programs. They must have the political power to hold police accountable. For community policing mechanisms to offer potential for real change to marginalized communities, communities must build capacity and political power to demand accountability. So while we might advocate for law enforcement to engage marginalized communities, we cannot rely on law enforcement initiatives to recalibrate relationships long rife with deep inequality. The pressure for meaningful change must come from outside, from the communities themselves organizing for change. n325
	51	+
	52	+
	53	+2. Civilian review is mutually exclusive and more efficient than court action
	54	+Weinbeck, 11 – JD Candidate William Mitchell College of Law (Michael P, “Watching the Watchmen: Lessons for Federal Law Enforcement from America's Cities,” William Mitchell Law Review, Vol. 36, pg. 1306)
	55	+A police department's internal affairs unit, operating on its own, lacks the credibility to conduct an independent investigation that is satisfactory to the community. n50 Minneapolis city council members, in an attempt to assuage community members and preserve their own political futures, established the city's review authority. n51 In theory, at least, a system of civilian oversight inserts into the police investigation process a watchman without allegiance to the police who will ensure that the investigation is conducted without bias. n52 This, in turn, generally supports a perception by the community that its police department is operating with a proper respect for individual rights. n53 As a result, a greater level of trust develops between the police and the *1315 community that ultimately greases the cogs of crime detection and prevention. n54 There are other benefits that municipalities enjoy when establishing a system of citizen oversight. Chief among them is the political coverage that the city's elected officials receive when establishing the agency. n55 For example, the Minneapolis Civilian Police Review Authority came into being in 1990 after police officers identified the wrong house in a drug raid. n56 During the course of the botched raid, the police killed an elderly couple who lived in the house. n57 In another episode not long after, the Minneapolis Police Department broke up a peaceful party of college-aged African Americans at a Minneapolis hotel. n58 In response to both incidents, outraged community members engaged in vehement and highly publicized demonstrations. n59 Besides providing a measure of political coverage, citizen oversight may also operate as a mechanism for saving cities money. n60 Wronged citizens, instead of bringing their grievances to court, enter the civilian oversight system where they may achieve redress that ends up costing the city nothing more than the administrative costs of the investigation. n61
	56	+
	57	+
	58	+Shell
	59	+
	60	+The US is currently holding terrorists at bay through security tactics that go under the public radar and require extreme efficiency. Atkins 11/17
	61	+
	62	+Doug Atkins writer and contributor to boston globe Nov 17, 2016 Terror at Home: We Are Smarter Than We Think https://ivn.us/2016/11/17/winning-war-terror/
	63	+
	64	+Fear mongering media outlets have convinced many that we are losing the war on terror at home. The truth is, however, that we are doing quite well.¶ According to the October Terror Threat Snapshot, released by the Majority Staff of the Homeland Security Committee, US authorities have arrested 109 suspects in ISIS related incidences since 2014.¶ The report states, “These individuals had, among other acts: plotted attacks; attempted to join ISIS in Iraq and Syria (or facilitated others’ travel); provided money, equipment, and weapons to ISIS; and falsified statements to federal authorities. Eight ISIS-linked terrorists have been killed while carrying out five separate attacks in California, Florida, Massachusetts, Texas, and Minnesota.” Currently, there are over 1,000 active FBI investigations into homegrown terrorism according to Director James Comey. He stated that over 80 percent of those are ISIS related. Since September 11, 2001, there have been at least 171 homegrown jihadist plots in the United States, including attempts to join terrorist groups overseas and execute attacks at home. More than 86 percent of these cases have occurred or been uncovered since 2009.¶ There is a lot of “behind the scenes” action, resulting in statistics like those above, that the general public rarely hears about in mainstream media.¶ Tactics such as leveraging the criminal justice system, seizing financial assets, gathering intelligence, covert operations, restricting movement of suspected terrorists, monitoring social media, and enhanced border restrictions and rules are all tools which aid in capturing US and foreign jihadists. As a result of these methods, fighters traveling into Syria and Iraq (at a one-time high of 2,000 monthly) have now fallen to as few as 50 per month.¶ U.S. efforts to counteract ISIS messaging online have proven an effective way to deter recruitment. ISIS has social media experts, and even hosts real-time Q and A sessions online where recruiters answer questions such as, “How do I travel, undetected, from the US to Syria?” Radical extremists post videos online, encouraging young people who have felt rejected by American society to take up Jihad.¶ According to the Terror Snapshot, here are some of the actions and arrests during this past September which have stopped some of these radicalized individuals from acting:¶ September 8: Marie Castelli, a 56-year-old U.S. citizen and Muslim convert from Maysville, Kentucky, was arrested after issuing violent threats and lying to federal authorities. Castelli promoted ISIS propaganda through social media.¶ September 10: An ISIS-linked cyber hacking group released a “kill list” with information about real estate professionals in the United States and encouraged individuals to locate and attack them.¶ September 18: Ahmad Khan Rahami, a 28-year-old U.S. citizen who was born in Afghanistan and is a resident of Elizabeth, New Jersey, was arrested after launching a bombing campaign targeting multiple locations in New York and New Jersey. Rahami was carrying a journal citing ISIS’s call for its followers in the West to launch attacks at home.¶ September 18: Dahir Adan, a 20-year-old U.S. citizen living in St. Cloud, Minnesota, attacked nearly a dozen people with a knife at a mall. Adan was born to a Somali family in Kenya before immigrating to the United States. Adan reportedly asked victims during his stabbing spree at a mall in Minnesota if they were Muslim. ISIS’s primary media arm claimed Adan was an ISIS supporter shortly after the attack.¶ September 30: Nelash Mohamed Das, a 24-year-old Bangladeshi citizen who has been living in Maryland as a legal permanent resident, was arrested after he plotted to kill a member of the U.S. military on behalf of ISIS.¶ Authorities know that roughly 90 percent of ISIS fanatics charged in the US are male and an average of 26.3 years of age. We are learning how to find these high risk individuals and arrest them. Almost 30 percent of those arrested were planning ISIS related attacks.¶ In a few instances, individuals known to be associated with terrorist groups have unsuccessfully attempted to gain admittance to the US through the refugee program. Over the past fiscal year, the Obama Administration has let almost 13,000 refugees through our borders and planned to allow in even more. By comparison, 1.3 million refugees arrived in Europe during that same time period. Trump has indicated that he intends to reduce these numbers drastically.¶ Although the US has a highly rigorous screening process for incoming refugees (Consuming 18 – 24 months for each person) the Terror Snapshot states that, “American law enforcement and intelligence officials have repeatedly indicated that the U.S. lacks reliable and credible intelligence to properly vet and screen potential Syrian refugees.”¶ President-Elect Trump has repeatedly indicated that he plans to improve this process with what he calls “extreme vetting.”¶ ISIS has proven to be a challenger unlike anything the US has previously faced. Their ability to use the internet and social media to reach high risk individuals and radicalize them to the ISIS cause has created a threat that is difficult to combat. Our intelligence agencies continue to learn and grow, having great, if often unrecognized, successes in protecting the American people.
	65	+
	66	+Qualified immunity for security officials is necessary to secrecy, efficiency, and flexible decision-making. Samp 6/8
	67	+*Brackets in original
	68	+Richard A. Samp JD Washington Legal Foundation June 8, 2016 Ascroft v Turkmen Amicus Briefs. BRIEF OF FORMER U.S. ATTORNEYS GENERAL¶ WILLIAM P. BARR, ALBERTO R. GONZALES,¶ EDWIN MEESE III, MICHAEL B. MUKASEY, AND¶ DICK THORNBURGH; FORMER FBI DIRECTORS¶ WILLIAM S. SESSIONS AND WILLIAM H. WEBSTER;¶ AND WASHINGTON LEGAL FOUNDATION¶ AS AMICI CURIAE IN SUPPORT OF PETITIONERS http://www.scotusblog.com/wp-content/uploads/2016/06/Ashcroft-v-Turkmen-WLF-amicus.pdf
	69	+
	70	+The petitions raise issues of exceptional¶ importance. Amici urge the Court to grant review of¶ all three Questions Presented. We write separately to¶ focus particular emphasis on the qualified immunity¶ question. Qualified immunity not only provides¶ government officials with a defense to liability; it also¶ is “an entitlement not to stand trial or face the other¶ burdens of litigation.” Mitchell v. Forsyth, 472 U.S.¶ 511, 526 (1985) (emphasis added). The Court has made¶ clear that the “driving force” behind creation of the¶ qualified immunity doctrine was a desire to ensure¶ that “‘insubstantial claims’ will be resolved prior to¶ discovery.” Anderson v. Creighton, 483 U.S. 635, 640¶ n.2 (1987). Yet, the decision below calls into question¶ the ability of high-level Executive Branch officials to¶ win dismissal, on qualified immunity grounds, of even¶ frivolous Bivens litigation filed by anyone claiming to¶ be aggrieved by their official conduct.¶ In the absence of dismissal, those officials face¶ the prospect of discovery proceedings that are highly¶ likely to distract them from their other responsibilities.¶ As former senior Executive Branch officials, the¶ individual amici curiae are concerned by the disruptive¶ effects of such discovery, and they are very concerned¶ that such disruptions are likely to impair the ability of¶ high-level officials to carry out their missions effectively. Review is warranted to determine whether¶ such disruptions are required under the terms of the¶ qualified immunity doctrine and the pleading¶ standards established by the Federal Rules of Civil¶ Procedure, particularly when (as here) the challenged¶ actions involve sensitive national security issues.¶ Respondents raise constitutional claims that are¶ largely the same as those at issue in Iqbal and that¶ arise from precisely the same underlying facts: the¶ detention of Arab/Muslim unauthorized aliens at the¶ MDC under harsh conditions in 2001-02. Iqbal¶ determined that the complaint at issue there did not¶ adequately state a constitutional claim against¶ Ashcroft and Mueller for their alleged role in the¶ detentions. The Second Circuit decision, by reaching¶ the opposite conclusion in connection with a complaint¶ that added little in the way of new factual allegations,¶ is in considerable tension with Iqbal. The same¶ considerations that led the Court to review (and¶ ultimately overturn) the Second Circuit’s assessment¶ of the adequacy of the pleadings in Iqbal should¶ persuade the Court to grant review here as well. In¶ particular, Respondents’ complaint includes no factual¶ allegations from which one can reasonably infer that¶ Ashcroft, Mueller, and Ziglar played any role in¶ determining the conditions of Respondents’¶ confinement.¶ Review is also warranted to determine whether¶ the courts should recognize a judicially inferred¶ damages remedy against senior Executive Branch¶ officials for alleged infringement of Respondents’¶ constitutional rights in the course of carrying out their¶ national security responsibilities. As Petitioners note, the appeals courts are sharply divided on the issue,¶ with the Fourth, Seventh, Ninth, and D.C. Circuits¶ issuing decisions that conflict with the decision below.¶ Review is warranted to resolve that conflict.¶ Amici also write separately to note that the¶ Second Circuit’s unprecedented recognition of Bivens¶ actions to challenge Executive Branch national security¶ policy conflicts with decisions of this Court. The Court¶ has cautioned against recognition of new Bivens¶ remedies when, as here, “special factors” counsel¶ hesitation. Those special factors include the national¶ security and immigration-law aspects of this case¶ (areas in which courts traditionally defer to the¶ judgments of the elected branches), the availability of¶ alternative remedies (e.g., habeas corpus proceedings),¶ and the failure of Congress to provide an express¶ damages remedy despite its considerable focus on¶ detention-related issues arising in the course of the¶ 9/11 investigation.¶ REASONS FOR GRANTING THE PETITION¶ I. REVIEW IS WARRANTED BECAUSE THE¶ DECISION BELOW THREATENS THE¶ ABILITY OF FEDERAL OFFICIALS TO¶ AVOID THE BURDENS OF LITIGATION¶ IMPOSED BY INSUBSTANTIAL CLAIMS¶ The Court has long recognized that significant¶ burdens are imposed on government officials when¶ they are required to defend damages claims filed¶ against them in their individual capacities for actions¶ taken in connection with their employment. As the¶ Court explained in Harlow: Each such suit against high-level¶ government officials almost invariably¶ results in these officials and their¶ colleagues being subjected to extensive¶ discovery into traditionally protected¶ areas, such as their deliberations¶ preparatory to the formulation of¶ government policy and their intimate¶ thought processes and communications at¶ the presidential and cabinet levels. Such¶ discovery is wide-ranging, timeconsuming,¶ and not without considerable¶ cost to the officials involved.¶ Harlow v. Fitzgerald, 457 U.S. 800, 817 n.29 (quoting¶ Halperin v. Kissinger, 606 F.2d 1192, 1214 (D.C. Cir.¶ 1979) (Gesell, J., concurring)).¶ The burdens can be particularly pronounced¶ among officials working on national security matters,¶ where the high level of public passion can result in¶ increased levels of litigation. As Justice Stevens¶ explained:¶ The passions aroused by matters of¶ national security and foreign policy and¶ the high profile of Cabinet officers with¶ functions in that area make them “easily¶ identifiable targets for suits for civil¶ damages.” Nixon v. Fitzgerald, 457 U.S.¶ 731, 753 (1982). Persons of wisdom¶ and honor will hesitate to answer the¶ President’s call to serve in these vital¶ positions if they fear that vexatious and¶ politically motivated litigation associated with their public decisions will squander¶ their time and reputation, and sap their¶ personal financial resources when they¶ leave office. The multitude of lawsuits¶ filed against high officials in recent years¶ only confirms the rationality of this¶ anxiety.¶ Mitchell, 472 U.S. at 541-42 (Stevens, J., concurring in¶ the judgment).¶ Events proved Justice Stevens’s prescience.¶ Lawsuits seeking damages from senior Executive¶ Branch officials for actions they took regarding¶ national security matters proliferated throughout the¶ administrations of Presidents Barack Obama, George¶ W. Bush, and Bill Clinton. See, e.g., Lebron v.¶ Rumsfeld, 670 F.3d 540 (4th Cir. 2012) (suit against¶ Defense Secretaries Leon Panetta and Donald¶ Rumsfeld alleging mistreatment of military detainee);¶ Ashcroft v. Al-Kidd, 563 U.S. 731 (2011) (suit against¶ Attorney General alleging improper authorization of¶ material-witness warrants to detain terrorism¶ suspects); Gonzalez v. Reno, 325 F.2d 1228 (11th Cir.¶ 2003) (suit against Attorney General arising from¶ execution of an arrest warrant for six-year-old Elian¶ Gonzalez). A. The Qualified Immunity Doctrine¶ Was Crafted to Reduce the Burden¶ on Government Officials of¶ Defending Against Damages Claims¶ In an effort to reduce the burdens imposed by¶ such suits, the Court has crafted a qualified immunity doctrine designed to provide government officials with¶ not only a defense to liability but also an “immunity¶ from suit.” Mitchell, 472 U.S. at 526. The “driving¶ force” behind creation of the doctrine was a desire to¶ ensure that “insubstantial claims will be resolved¶ prior to discovery.” Anderson, 483 U.S. at 640 n.2. See¶ also Saucier v. Katz, 533 U.S. 194, 200 (2001) (“Where¶ the defendant seeks qualified immunity, a ruling on¶ that issue should be made early in the proceedings so¶ that the costs and expenses of trial are avoided where¶ the defense is dispositive.”).¶ Qualified immunity shields a government official¶ from liability in an individual capacity so long as the¶ official has not violated “clearly established statutory¶ or constitutional rights of which a reasonable person¶ would have known.” Harlow, 457 U.S. at 818. To¶ overcome the defense of qualified immunity the¶ plaintiff must show: (1) the facts, viewed in the light¶ most favorable to the plaintiff, demonstrate the¶ deprivation of a statutory or constitutional right; and¶ (2) the right was clearly established at the time of the¶ deprivation. Saucier, 533 U.S. at 199. Courts are¶ “permitted to exercise their sound discretion in¶ deciding which of the two prongs of the qualified¶ immunity analysis should be addressed first in light of¶ the circumstances in the particular case at hand.”¶ Pearson v. Callahan, 555 U.S. 223, 236 (2009). Amici¶ submit that review of the second prong—whether the¶ asserted right was “clearly established”—is¶ particularly warranted in this case.
	71	+
	72	+The AFF ruling on qualififed immunity limits it for all officials – courts take previous rulings to apply up the executive ladder. Cornyn et al 01
	73	+ (John, Andy Taylor First Assistant Attorney General Gregory S. Coleman Solicitor General Counsel of Record Lisa R. Eskow Assistant Solicitor General P.O. Box 12548 Austin, Texas 78711-2548 (512) 936-1700 Counsel for Amici Bill Pryor Attorney General of Alabama 11 South Union Street Montgomery, AL 36130 Bruce M. Botelho Attorney General of Alaska P.O. Box 110300 Juneau, AK 99811-0300 Mark Pryor Attorney General of Arkansas 323 Center St., Ste. 200 Little Rock, AR 72201 Bill Lockyer Attorney General of California 1300 1 Street, Ste. 125 P.O. Box 944255 Sacramento, CA 94244-2550 Ken Salazar Attorney General of Colorado 1525 Sherman St., 7th Fl. Denver, CO 80203 Richard Blumenthal Attorney General of Connecticut 55 Elm Street Hartford, CT 06141-0120 M. Jane Brady Attorney General of Delaware 820 N. French St. Wilmington, DE 19801 James E. Ryan Attorney General of Illinois 100 W. Randolph St., 12th Fl. Chicago, IL 60601 Richard P. Ieyoub Attorney General of Louisiana P.O. Box 94095 Baton Rouge, LA 70804-9095 J. Joseph Curran, Jr. Attorney General of Maryland 200 St. Paul Place Baltimore, MD 21202 Thomas F. Reilly Attorney General of Massachusetts One Ashburton Place Boston, MA 02108-1698 Mike Moore Attorney General of Mississippi P.O. Box 220 Jackson, MS 39205 Joseph P. Mazurek Attorney General of Montana 215 N. Sanders P.O. Box 201401 Helena, MT 59620-1401 Don Stenberg Attorney General of Nebraska 2115 State Capitol Lincoln, NE 68509 Eliot Spitzer Attorney General of New York The Capitol Albany, NY 12224 Heidi Heitkamp Attorney General of North Dakota 600 E. Boulevard Ave. Bismarck, ND 58505-0040 Betty D. Montgomery Attorney General of Ohio 30 E. Broad St., 17th Fl. Columbus, OH 43215 W.A. Drew Edmondson Attorney General of Oklahoma 2300 N. Lincoln Blvd., Ste. 112 Oklahoma City, OK 73105-4894 Hardy Myers Attorney General of Oregon 1162 Court St. N.E. Salem, OR 97310 D. Michael Fisher Attorney General of Pennsylvania 16th Fl., Strawberry Square Harrisburg, PA 17120 Charles M. Condon Attorney General of South Carolina P.O. Box 11549 Columbia, SC 29211 Mark Barnett Attorney General of South Dakota 500 East Capitol Avenue Pierre, SD 57501-5070 Paul G. Summers Attorney General of Tennessee 425 Fifth Ave., North Nashville, TN 37243 Jan Graham Attorney General of Utah 236 State Capitol Salt Lake City, UT 84114 William H. Sorrell Attorney General of Vermont 109 State Street Montpelier, VT 05609-1001 Christine O. Gregoire Attorney General of Washington 1125 Washington Street P.O. Box 40100 Olympia, WA 98504-0100 Brief of The States of Texas, Alabama, Alaska, Arkansas, California, Colorado, Connecticut,¶ Delaware, Illinois, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nebraska, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, and Washington as Amici Curiae in Support of Petitioner)
	74	+The “reasonable mistake” is one of the core tenets of qualified immunity jurisprudence. In fact, were this Court to prohibit or limit the applicability of qualified immunity and the “reasonable mistake” with respect to excessive force claims, that philosophical departure would have ripple effects beyond the excessive force context. If officers who make *21 reasonable, albeit mistaken, judgments about the necessity of force can be categorically excluded from the ambit of qualified immunity, other public employees exercising discretionary functions might fear that their immunity protections could be forfeited next. This could dissuade individuals from taking government jobs. Public servants should not have to worry that courts might make policy-based distinctions about which types of duties should be afforded immunity protections, and which should not. To transform qualified immunity into a guessing game would defeat the purpose of the doctrine. Harlow's objective legal reasonableness test was designed to strike a balance between the need to vindicate civil rights abuses and the need to promote public service and shield government officials from insubstantial civil rights claims. It is inevitable that public servants will err; and when they do, they should be secure in knowing that their errors will not subject them to liability, or suit, provided they err in a manner that is objectively reasonable. Harlow's compromise may be imperfect, but it should be preserved, as it strikes the best “balance between the evils inevitable in an available alternative.” See Harlow, 457 U.S., at 813.
	75	+
	76	+Flexibility is key to fighting terror Kirchner ‘14
	77	+Richard (Rik) Kirchner, Jr. is Chief Executive Officer of KIRIK International, Inc., and Executive Director of the Institute for Surveillance and Threat Detection, a first of its kind educational center dedicated solely to the discipline of Surveillance Detection and Behavioral Detection, delivering Antiterrorism and Threat assessment, development, and implementation to High Value Target and Critical Infrastructure/Key Resource program managers for comprehensive Threat Detection programs with subject matter expertise in Hostile Surveillance, Threat Detection, and Threat Management. “Surveillance and Threat Detection: Prevention versus Mitigation.” Elsevier. 2014. https://books.google.com/books?id=NYS-AQAAQBAJandpg=PA37andlpg=PA37anddq=22search+and+seizure22+and+22prevent+terrorism22andsource=blandots=jMP5xoUYQkandsig=u-N0ufTTRfALYHgFDQ_ZNtlWgYMandhl=enandsa=Xandved=0ahUKEwiO94Lu0rHQAhVnrVQKHW63AW8Q6AEISjAJ#v=onepageandq=22search20and20seizure2220and2022prevent20terrorism22andf=false JJN
	78	+While counterterrorism and terrorism prevention are concepts traditionally associated with our nation’s intelligence agencies, there are many basic avenues law enforcement can take in fighting terrorism. Simply keeping an eye out for indicators of preincident planning is integral to counterterrorism efforts nationwide. Patriot Act provisions assist law enforcement efforts greatly by facilitating more efficient terrorist monitoring and probable cause development. Finally, familiarization with state and federal law pertaining to the prevention of terrorist attacks is an absolute must. Terrorism presents a challenge to law enforcement as it requires police to act proactively against crimes (terrorist acts) that, in many cases, have not yet been committed. If the police wait, as they do traditionally, to react to terrorist crimes after they are committed, then the roles of the police are that of a first responder and an investigator. The public, however, expects police to deal with terrorism differently. This is mainly because crimes such as rape, theft, robbery, and even murder target the individual while terrorism targets the public. As such, the public demands that the police act to prevent terrorism before it becomes a criminal reality. Police officers are given the rights to search and seizure based on probable cause (Terry vs Ohio) and to stop a person for inquiry based on reasonable suspicion. These rights were afforded to officers in order to help them prevent a crime that they believe is about to occur. To prove a crime, officers need to find evidence. However, when it comes to terrorism, evidence and weapons are not always there to find even at the execution of the attack. Let’s consider 9/11 and assume for a minute that the terrorists would have been caught prior to boarding the planes. Would we have had the foresight to articulate probable cause based on the terrorists’ behavior and, if so, would we have regarded their box cutters as weapons (evidence) for a possible hijacking? Probably not. In order to reach reasonable suspicion, officers must rely on their training and experience to come up “with an articulable and particularized belief that criminal activity is afoot” Orleans vs United States, 517 U.S. 690 696 (1996) Illinois vs Gates, 462 U.S at 235. To be able to articulate terrorism-related reasonable suspicion, officers must be trained and gain experience in terrorism methods of operations. In other words, officers must be able to look at a situation or activity (suspicion) and have the capability to explain what they are seeing through their terrorist eyes. Officers are not trained (or not having the experience) in doing offensive surveillance, building a bomb or developing a terrorist plan among other things, will never be able to explain what they see as a terrorism-related reasonable cause. As in the case of reasonable suspicion, to develop probable cause, officers need to fall back on their training and experience in order to describe “known facts and circumstances that are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found” Orleans vs United States, 517 U.S. 690 696 (1996) Illinois vs Gates, 462 U.S. at 213,238 (1983). Finding bombs and terrorist weapons is a difficult task, as almost anything can be used as a weapon and bombs appear in countless shapes and forms. In order to develop a terrorist-related probable cause, officers need to rely more on information provided by the suspect than on tangible evidence. To obtain this information, officers must utilize different questioning techniques then those used when interviewing suspected criminals. Approaching the suspect from a “law enforcement” angle will probably not work because the suspect has yet to have broken the law in the case of identifiable reasonable suspicion and probable cause . Moreover, cooperation and information are needed to establish probable cause or refuse the reasonable suspicions found. Asking for an ID and checking the suspect’s criminal record are unlikely to help the officer because most terrorist avoid criminal activities and their records are therefore clean. The key to success lies in open-ended, public service-oriented and inquisitive questioning geared toward refuting reasonable suspicions. In essence, the questioning that the officer conducts should resemble that of a receptionist asking politely about the intentions of a visitor entering a building and not that of an officer who has just pulled over a person for speeding recklessly on the highway.
	79	+
	80	+A single coordinated attack escalates and kills billions Myhrvold 2014
	81	+Myhrvold 2014 (Nathan P chief executive and founder of Intellectual Ventures and a former chief technology officer at Microsoft; Strategic Terrorism: A Call to Action; cco.dodlive.mil/files/2014/04/Strategic_Terrorism_corrected_II.pdf; kdf)
	82	+Technology contains no inherent moral directive—it empowers people, whatever their intent, good or evil. This has always been true: when bronze implements supplanted those made of stone, the ancient world got scythes and awls, but also swords and battle-axes. The novelty of our present situation is that modern technology can provide small groups of people with much greater lethality than ever before. We now have to worry that private parties might gain access to weapons that are as destructive as—or possibly even more destructive than— those held by any nation-state. A handful of people, perhaps even a single individual, could have the ability to kill millions or even billions. Indeed, it is possible, from a technological standpoint, to kill every man, woman, and child on earth. The gravity of the situation is so extreme that getting the concept across without seeming silly or alarmist is challenging. Just thinking about the subject with any degree of seriousness numbs the mind. The goal of this essay is to present the case for making the needed changes before such a catastrophe occurs. The issues described here are too important to ignore. Failing nation-states—like North Korea—which possess nuclear weapons potentially pose a nuclear threat. Each new entrant to the nuclear club increases the possibility this will happen, but this problem is an old one, and one that existing diplomatic and military structures aim to manage. The newer and less understood danger arises from the increasing likelihood that stateless groups, bent on terrorism, will gain access to nuclear weapons, most likely by theft from a nation-state. Should this happen, the danger we now perceive to be coming from rogue states will pale in comparison. The ultimate response to a nuclear attack is a nuclear counterattack. Nation states have an address, and they know that we will retaliate in kind. Stateless groups are much more difficult to find which makes a nuclear counterattack virtually impossible. As a result, they can strike without fear of overwhelming retaliation, and thus they wield much more effective destructive power. Indeed, in many cases the fundamental equation of retaliation has become reversed. Terrorists often hope to provoke reprisal attacks on their own people, swaying popular opinion in their favor. The aftermath of 9/11 is a case in point. While it seems likely that Osama bin Laden and his henchmen hoped for a massive overreaction from the United States, it is unlikely his Taliban hosts anticipated the U.S. would go so far as to invade Afghanistan. Yes, al-Qaeda lost its host state and some personnel. The damage slowed the organization down but did not destroy it. Instead, the stateless al-Qaeda survived and adapted. The United States can claim some success against al-Qaeda in the years since 9/11, but it has hardly delivered a deathblow. Eventually, the world will recognize that stateless groups are more powerful than nation-states because terrorists can wield weapons and mount assaults that no nationstate would dare to attempt. So far, they have limited themselves to dramatic tactical terrorism: events such as 9/11, the butchering of Russian schoolchildren, decapitations broadcast over the internet, and bombings in major cities. Strategic objectives cannot be far behind.
	83	+
	84	+Trump responds with Nukes in the Middle East against ISIS. Borgwardt 3/31
	85	+
	86	+Elizabeth Borgwardt is a history professor at Washington University and the author of The Nuremberg Idea, forthcoming from Knopf. “9/11: What Would Trump Do?” http://www.politico.com/magazine/story/2016/03/donald-trump-2016-terrorist-attack-foreign-policy-213784 March 31, 2016
	87	+
	88	+Donald Trump’s March 21 interview with the Washington Post editorial board should make every potential voter’s blood run cold. After noting that ISIS should be knocked out flat, yet indicating that large numbers of U.S. troops should not be involved, Mr. Trump suggested that it was better to be “unpredictable” in the face of U.S. enemies, before twice dodging a question about whether he would advocate the use of tactical nuclear weapons against ISIS. (To be fair, the interview transcript indicates that much more time was spent discussing Mr. Trump’s hand size than anything to do with nuclear weapons.)¶ All this was before the attacks in Belgium; my sense is that a 9/11-style attack on U.S. soil would mean that any remaining restraints to the use of weapons of mass destruction—including nuclear weapons—would likely be swiftly swept aside.¶ General Douglas MacArthur had notoriously floated the idea of using nuclear weapons against China in the Korean conflict (1950-53) when he was concerned about Chinese moves to support North Korean aggression. In posthumously published interviews, MacArthur said that he could have won the war in ten days: “I would have dropped 30 or so atomic bombs … strung across the neck of Manchuria. For at least 60 years there could have been no land invasion of Korea from the North.”¶ Part of MacArthur’s logic was that the United States would have needed to fight communist China eventually, so it would be best to nuke them while they were still weak, recovering from World War II and the Chinese Revolution (1949), as opposed to fighting them later after they had become much stronger. “That makes sense to me!” opined a Trump backer with whom I recently spoke on this topic. And yet, I offered, most Americans today are probably pretty happy that we didn’t use nuclear weapons against China in the Korean war, or would be if they knew anything about that historical interlude. “I guess,” he said. “But why not press your advantage when you have one?”¶ I offer this example because my sense is that in a putative Trump administration, “the gloves would be off” and all barriers—including public opinion—to the first use of various kinds of weapons of mass destruction would likely be at an all-time low. Bruce Cumings, the leading U.S. historian of Korea, has commented on the MacArthur incident in an analysis from back in 2004. Cumings noted that “MacArthur sounds like a warmongering lunatic” for advocating the use of nuclear weapons, but also explained that, astonishing as it might seem, the general actually had some support for his outlandish proposal. Cumings also noted that MacArthur’s conduct, quite appropriately, contributed to the celebrated war hero’s dismissal by President Truman. But that was then.
	89	+
	90	+Use of nukes in the ME causes extinction. Russel 9
	91	+
	92	+Russell 9 – Senior Lecturer in the Department of National Security Affairs @ Naval Postgraduate School ¶ James, “Strategic Stability Reconsidered: Prospects for Nuclear War and Escalation in the Middle East,” Online
	93	+
	94	+
	95	+Strategic stability in the region is thus undermined by various factors: (1) asymmetric interests in the bargaining framework that can introduce unpredictable behavior from actors; (2) the presence of non-state actors that introduce unpredictability into relationships between the antagonists; (3) incompatible assumptions about the structure of the deterrent relationship that makes the bargaining framework strategically unstable; (4) perceptions by Israel and the United States that its window of opportunity for military action is closing, which could prompt a preventive attack; (5) the prospect that Iran’s response to pre-emptive attacks could involve unconventional weapons, which could prompt escalation by Israel and/or the United States; (6) the lack of a communications framework to build trust and cooperation among framework participants. These systemic weaknesses in the coercive bargaining framework all suggest that escalation by any the parties could happen either on purpose or as a result of miscalculation or the pressures of wartime circumstance. Given these factors, it is disturbingly easy to imagine scenarios under which a conflict could quickly escalate in which the regional antagonists would consider the use of chemical, biological, or nuclear weapons. It would be a mistake to believe the nuclear taboo can somehow magically keep nuclear weapons from being used in the context of an unstable strategic framework. Systemic asymmetries between actors in fact suggest a certain increase in the probability of war – a war in which escalation could happen quickly and from a variety of participants. Once such a war starts, events would likely develop a momentum all their own and decision-making would consequently be shaped in unpredictable ways. The international community must take this possibility seriously, and muster every tool at its disposal to prevent such an outcome, which would be an unprecedented disaster for the peoples of the region, with substantial risk for the entire world.
	96	+
	97	+Disad turns the case – the AFF results in massive Constitutional violations and a state of emergency. Stout 3/31
	98	+
	99	+Martha Stout is a psychologist and author of The Sociopath Next Door “9/11: What Would Trump Do?” http://www.politico.com/magazine/story/2016/03/donald-trump-2016-terrorist-attack-foreign-policy-213784 March 31, 2016
	100	+
	101	+As a psychologist who has spent her career studying human personality and its variations, I can tell you that personalities don’t have an off switch, not even for dire emergencies. If we suffered another brutal terrorist attack, I fear that President Trump would exhibit the same bombast, rage and impulsivity that he has shown in the campaign trail and imperil his fellow human beings, perhaps with even more lasting effects than those of the disaster itself.¶ The personality that underlies Trump’s observable behaviors—a demeanor of personal superiority, a focus on being admired, immediate heated anger when challenged, an emphasis on unlimited success, and an apparent expectation of automatic compliance—would be problematic in a U.S. president at any time, and plainly dangerous should our nation experience another terrorist atrocity. A president with such a personality would experience a large terrorist event as an attack on him personally, an enormous “narcissistic injury”—what psychologists call a perceived threat to self-worth—and his rage would be white-hot. The anger we have seen directed at protesters during Trump rallies would be multiplied by an unknowable factor. That whisper in the ear from an aide, telling him that an event had occurred, would instantly evoke a need for reprisal, a desire to attack and to do so right away, using airstrikes, boots on the ground, torture in interrogations and any other “powerful” tactic that occurred to him.¶ If there is a positive thread in this psychologically predicted scenario, it is that such a huge perceived injury to Trump’s sense of self-worth would compel him to focus utterly on the source of that injury. He would be single-mindedly intent on destroying the terrorists and would have no tolerance for those who might wish to refashion the country’s pain and anger into a willingness to attack a different target. In the aftermath of our waking nightmare in 2001, we might have benefited from some portion of that single-mindedness. Still, with a President Trump, the surge of bigotry and the resulting deportation and internment efforts would do their own inestimable damage.¶ Given a re-terrorized nation, Trump’s famous skill at gaining allegiance from people through their heightened fears might very well sway Congress and result in the actual implementation of some of his ideas: a wholesale military response, a lockdown of Muslim communities, and attempts to deport large groups of people. With an unapologetically self-involved and rage-prone commander-in-chief—which is what we evidently would be getting with a President Trump—nothing would be off the table.

EntryDate

...	...	@@ -1,0 +1,1 @@
	1	+2016-12-02 02:13:09.353

Judge

...	...	@@ -1,0 +1,1 @@
	1	+Melissa Weiner

Opponent

...	...	@@ -1,0 +1,1 @@
	1	+Summit Academy JE

ParentRound

...	...	@@ -1,0 +1,1 @@
	1	+13

Round

...	...	@@ -1,0 +1,1 @@
	1	+1

Team

...	...	@@ -1,0 +1,1 @@
	1	+Harvard Westlake Gross Neg

Title

...	...	@@ -1,0 +1,1 @@
	1	+Alta R1 NC

Tournament

...	...	@@ -1,0 +1,1 @@
	1	+Alta