Notes/Explanation

This is an advantage that can be read by an affirmative that curtails any (arguably) unconstitutional surveillance practice. Additional “links” or “internal links” (X program is unconstitutional) will be found in the relevant affirmative files.

1AC

1AC — Contractualism VersionFirst, mass surveillance is unconstitutional because it violates the Fourth Amendment. The Freedom Act was a net-negative because it extended unconstitutional programs.

Marthews 14 —Alex Marthews, National Chair at Restore The Fourth—a 501(c)(4) nonprofit that seeks to strengthen the Fourth Amendment to the United States Constitution and end programs that violate it, holds a Masters in Public Policy from the University of California-Berkeley and a B.A. in English from the University of Cambridge, 2014 (“We Need Real Surveillance Reform, Not The House's ‘USA Freedom Act’,” Restore The Fourth, May 27th, Available Online at http://restorethe4th.com/blog/we-need-real-surveillance-reform-not-the-houses-usa-freedom-act/, Accessed 06-19-2015)

Last week, the House of Representatives passed the bill called The USA Freedom Act , 303 votes to 121. Following a series of amendments, the bill as it passed in the end contained much weaker reforms than even the very modest ones it originally proposed. The Chair of the Judiciary Committee 's manager's amendment removed two-thirds of its substantive reforms; the Chair of the Intelligence Committee and the White House worked hard to remove as much as possible of what remained, leaving a shell that will still permit mass surveillance.

The Fourth Amendment is clear: Mass surveillance is unconstitutional . A government search is unreasonable , and therefore unconstitutional , if it is not authorized beforehand by a warrant issued by a judge, on the basis of "probable cause" of involvement in an actual crime, supported by an "oath or affirmation, and particularly describing" the "persons or things to be seized."

That's what ought to happen. This bill , on the other hand, would allow government searches of millions of innocent people's data and movements , not based on probable cause or even reasonable suspicion of their personal involvement in a crime, but simply on any "selection term" vaguely associated with a target of surveillance.

The "selection term" could be as broad as the government likes , covering, for example, everyone born in Hawaii, or everyone with the middle name Hussein. The argument for this “reform” that supporters are touting is that this is better than the current government practice of collecting everything with no selection term at all. While that's true, it misses the larger point . The standard is individualized probable cause warrants , not “ whatever is most convenient for the NSA .”

A standard that can be redefined at will is marginally – if at all – better than having none.

As a terrible coda, the bill 's last section extends out the sunset of crucial parts of the abusive PATRIOT Act from 2015 all the way through till 2017 . Apparently, fourteen years of "emergency" privacy-violating legislation is still not enough to defeat the people who attacked us on 9/11, and we need sixteen. Given this extension, were this bill as it currently exists to be signed into law, it would be a net negative for the Fourth Amendment .

The only merit in the bill having passed is that it provides something with which the Senate's superior version of the USA Freedom Act can be reconciled in conference. We urge the Senate, and especially the Judiciary Committee, to fight hard for the Fourth Amendment in the next few months by advancing as strong a bill as possible – much stronger than this one. The USA Freedom Act, in its original form, was popular enough in the House to have passed unamended, had it been allowed to come to the floor. In the Senate, the same may well be true, and our next steps on Capitol Hill will be to work to make that happen.

When we look back in a generation at the era of our out-of-control surveillance state, we will wonder why we didn't take the Fourth Amendment as seriously as our Founders took it. We will feel shame that we were willing to sell our Bill of Rights in an attempt to thwart the same terrorists said to be attacking it. The sooner we replace this act with actual reform , the sooner our out-of-control surveillance state will finally be a thing to look back on .

Second, constitutional safeguards against warrantless surveillance must be maintained regardless of consequences. “Weighing” privacy against security nullifies the Fourth Amendment.

Cole 6 — David Cole, Professor at Georgetown University Law Center, has litigated many significant constitutional cases in the Supreme Court, holds a J.D. from Yale Law School, 2007 (“How to Skip the Constitution,” New York Review of Books, November 16th, Available Online at http://www.nybooks.com/articles/archives/2006/nov/16/how-to-skip-the-constitution/, Accessed 06-28-2015)

Judge Posner is not troubled by any of these measures, at least as a constitutional matter. His theory of the Constitution is at once candid and cavalier. Rejecting popular conservative attacks on “judicial activism,” he argues that in view of the open-ended character of many of the document’s most important terms—“reasonable” searches and seizures, “due process of law,” “equal protection,” and even “liberty” itself—it is not objectionable but inevitable that constitutional law is made by judges. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards, arguing that neither the Constitution’s text nor the history of its framing gives much guidance in dealing with most of the hard questions of the day. Constitutional law, he maintains, “is intended to be a loose garment; if it binds too tightly, it will not be adaptable to changing circumstances.”

But Posner then goes on to treat the Constitution as essentially a license to open-ended “balancing” of interests by the political branches and

the courts. His thinking is informed largely by an economist’s predilection for cost-benefit analysis and a philosophical enthusiasm for pragmatism. Posner’s reputation as a scholar rests not on his contributions to constitutional theory, but on his role as one of the founding fathers of the movement that applied economic analysis to law. His new book might just as well have been called “An Economist Looks at the Constitution.” In the end, constitutional interpretation for Posner is little more than a balancing act, and when the costs of a catastrophic terrorist attack are placed on the scale, he almost always feels they outweigh concerns about individual rights and liberties .

Consider, for example, his views on electronic surveillance. The Bush administration currently faces several dozen lawsuits challenging various aspects of its NSA spying program, which, according to the administration, involves the warrantless wiretapping of international phone calls and e-mails where one of the participants is thought to be connected with al-Qaeda or affiliated groups. That program, as I and many other constitutional scholars have argued, violates a provision in the Foreign Intelligence Surveillance Act (FISA) specifying that it is a crime for officials not to seek a warrant from the appropriate court before engaging in such wiretapping.1 The Bush administration seeks to justify this violation of law by invoking an inherent presidential power to ignore congressional legislation, echoing President Richard Nixon’s defense of his own decision to authorize warrantless wiretapping during the Vietnam War: “When the president does it, that means that it is not illegal.” Posner not only sees nothing wrong with the NSA program; he would also find constitutional a far more sweeping measure that subjected every phone call and e- mail in the nation, domestic as well as international, to initial computer screening for patterns of suspicious words, and then permitted intelligence agents to follow up on all communications that the computer treated as suspicious.

How does Posner reach the conclusion that the Constitution would permit such an Orwellian scheme, far more invasive than the Bush administration, if it is to be believed, has been willing to undertake so far? In a word, balancing . In Posner’s view, the costs to personal liberty of such a program are minimal, and are outweighed by the benefits to our security. Having a computer analyze one’s phone calls is no big deal, he claims, as long as we know it’s only looking for terrorists. He admits that there might be a danger of misuse of the information by the agents who follow up on the computer’s “suspects,” but he considers that risk minimal because he is confident that any such abuse would likely come to light and be widely criticized. (He fails to acknowledge that whistleblowing would be far less likely if he had his way and an Official Secrets Act were passed making it a crime to publish leaked government secrets.) As for the benefits of such surveillance, Posner surmises that such a program might sweep up sufficient data to permit intelligence agents to “connect the dots” and prevent a catastrophic attack. Even if it didn’t, he writes, it would at least have the salutary effect of discouraging terrorists from communicating by telephone and e-mail.

Every aspect of Posner’s analysis is open to question . He ignores that privacy is essential to political freedom : if everyone knows that their every electronic communication is subject to government monitoring , even by a computer, it would likely have a substantial chilling effect on communications that the government might conceivably find objectionable, not just terrorist planning, and not just criminal conduct. Moreover, Posner ignores the myriad ways in which the government can harass people without its ill intent ever coming to light. For example, the government can selectively prosecute minor infractions of the law , launch arbitrary tax investigations , and engage in blackmail , all methods perfected by FBI Director J. Edgar Hoover . Contrary to Posner’s claims, one cannot , as the FBI’s abuses showed, trust public scrutiny to forestall such tactics, even in the absence of an Official Secrets Act. Finally, it is far from clear that such a program would be effective—the sheer volume of “dots” generated would make connecting them virtually impossible. In any case, computer programs would be relatively easy to evade through the use of code words.

The real answer to Posner’s notion of balance , however, is not to show that a different balance can be struck, but to return to established Fourth Amendment jurisprudence , which has long required that searches must generally be justified by a showing of objective, specific suspicion approved by a judge who is willing to issue a specific warrant . The requirements that a warrant be issued and that it be based on “probable cause” are designed to protect privacy unless there are fairly strong grounds for official intrusion. The principal evil that the Fourth Amendment was drafted to avoid was the “general warrant,” which permitted government officials to search anyone’s home , without suspicion of specific individuals. Posner’s program is nothing less than a twenty-first-century version of exactly what the Fourth Amendment was designed to forbid . Through an open-ended and inevitably subjective balancing of privacy and security, he has managed to turn the Fourth Amendment on its head.

Third, constitutional privacy protections are the foundation of freedom. Mass surveillance is inherently repressive because it exposes individuals to inescapable, oppressive scrutiny.

Greenwald 14 — Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept, former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundation’s Pioneer Award, holds a J.D. from New York University School of Law, 2014 (“The Harm of Surveillance,” No Place To Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, Published by Metropolitan Books, ISBN 9781627790734, p. 173-174)

Privacy is essential to human freedom and happiness for reasons that are rarely discussed but instinctively understood by most people, as evidenced by the lengths to which they go to protect their own. To begin with, people radically change their behavior when they know they are being watched . They will strive to do that which is expected of them. They want to avoid shame and condemnation. They do so by adhering tightly to accepted social practices, by staying within imposed boundaries, avoiding action that might be seen as deviant or abnormal.

The range of choices people consider when they believe that others are watching is therefore far more limited than what they might do when acting in a private realm. A denial of privacy operates to severely restrict one’s freedom of choice.

Several years ago, I attended the bat mitzvah of my best friend’s daughter. During the ceremony, the rabbi emphasized that “the central lesson” for the girl to learn was that she was “always being watched and judged.” He told her that God always knew what she was doing, every choice, every action, and even every thought, no matter how private. “You are never alone,” he said, which meant that she should always adhere to God’s will.

The rabbi’s point was clear: if you can never evade the watchful eyes of a supreme authority, there is no choice but to follow the dictates that authority imposes. You cannot even consider forging your own path beyond those rules: if you believe you are always being watched and judged, you are not really a free individual .

All oppressive authorities — political, religious, societal, parental — rely on this vital truth, using it as a principal tool to enforce orthodoxies , compel adherence, and quash dissent . It is in their interest to convey that nothing their subjects do will escape the knowledge of the authorities. Far more effectively than a police force , the deprivation of privacy will crush any temptation to deviate from rules and norms.

What is lost when the private realm is abolished are many of the [end page 173] attributes typically associated with quality of life . Most people have experienced how privacy enables liberation from constraint. And we’ve all, conversely, had the experience of engaging in private behavior when we thought we were alone — dancing, confessing, exploring sexual expression, sharing untested ideas — only to feel shame at having been seen by others.

Only when we believe that nobody else is watching us do we feel free — safe — to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves. What made the Internet so appealing was precisely that it afforded the ability to speak and act anonymously, which is so vital to individual exploration.

For that reason, it is in the realm of privacy where creativity , dissent , and challenges to orthodoxy germinate . A society in which everyone knows they can be watched by the state — where the private realm is effectively eliminated — is one in which those attributes are lost, at both the societal and the individual level.

Mass surveillance by the state is therefore inherently repressive , even in the unlikely case that it is not abused by vindictive officials to do things like gain private information about political opponents. Regardless of how surveillance is used or abused, the limits it imposes on freedom are intrinsic to its existence.

Finally, constitutional rights like privacy can’t be “outweighed” on the basis of cost-benefit analysis. This is especially important in the context of terrorism.

Cole 7 — David Cole, Professor at Georgetown University Law Center, has litigated many significant constitutional cases in the Supreme Court, holds a J.D. from Yale Law School, 2007 (“Book Review: The Poverty of Posner's Pragmatism: Balancing Away Liberty After 9/11 (Review of Richard A. Posner’s Not A Suicide Pact: The Constitution In A Time Of National Emergency),” Stanford Law Review (59 Stan. L. Rev. 1735), April, Available Online to Subscribing Institutions via Lexis-Nexis)

II. The Disappearing Constitution

The general problem with Posner's approach is that it does away with the animating idea of the Constitution - namely, that it is a form of collective precommitment . The genius behind the Constitution is precisely the recognition that "pragmatic" cost-benefit decisions of the type Posner favors will often appear in the short term to favor actions that in the long term are contrary to our own best principles . Just as we may be tempted to smoke a cigarette tonight [*1746] even though in the long term we are likely to

suffer as a result, so we know collectively that in the short term we are likely to empower government to suppress unpopular speech, invade the privacy of "dangerous" minorities, and abuse suspected criminals, even though in the long term such actions undermine the values of free speech, equality, and privacy that are necessary to democracy and human flourishing . If we were always capable of rationally assessing the costs and benefits in such a way as to maximize our collective well-being, short-term and long-term, we might not need a Constitution. But knowing that societies , like individuals, will be tempted to act in ways that undermine their own best interests , we have precommitted to a set of constitutional constraints on pragmatic balancing . Posner's view that the Constitution must bend to the point of authorizing virtually any initiative that seems pragmatic to him reduces the Constitution to a precommitment to balance costs and benefits, and that is no precommitment at all .

Constitutional theory demands more than ad hoc balancing. n27 While the nature of competing interests means that at some level of generality, a balance must be struck, constitutional analysis is not an invitation to the freewheeling , all- things-considered balance of the economist. Instead, it requires an effort, guided by text, precedent, and history, to identify the higher principles that guide us as a society , principles so important that they trump democracy itself (not to mention efficiency). The judge's constitutional duty was perhaps best captured by Justice John Marshall Harlan, writing about the due process clause:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. n28

Instead of looking to the Constitution and its jurisprudence as a reflection of our collective effort to determine the higher principles that should guide us, as Harlan suggests, Posner would start from scratch, assessing what is best from a pragmatic, open-ended balancing approach that he admits ultimately involves weighing imponderables.

[*1747] Posner insists that to declare a practice constitutional is not the same as saying that it is desirable as a policy matter: "Much that the government is permitted by the Constitution to do it should not do and can be forbidden to do by legislation or treaties" (p. 7). That is certainly true as a theoretical matter, at least where one's constitutional theory is not reducible to one's policy preferences. But Posner appears to view questions of constitutionality as simply a matter of weighing all the costs and benefits, which is surely the same utilitarian calculus the policymaker would use to determine whether a practice is desirable. Under Posner's approach, then, it is difficult to see why there would be any room between what is desirable and what is constitutional.

If constitutionalism is to have any bite, it must be distinct from mere policy preferences. In fact, our Constitution gives judges the authority to declare acts of democratically elected officials unconstitutional on the understanding that they will not simply engage in the same cost-benefit analyses that politicians and economists undertake. The very sources Judge Posner dismisses - text, precedent, tradition, and reason - as unhelpful in the face of the threat of catastrophic terrorism are absolutely essential to principled constitutional decision-making. It is true that text, precedent, tradition, and reason do not determine results in some mechanistic way. That is why we ask judges, not machines, to decide constitutional cases. But these sources are nonetheless critically important constraints on and guides to constitutional decision-making. They are what identify those principles that have been deemed fundamental - and therefore constitutional - over our collective history.

The Framers of the Constitution did not simply say "the government may engage in any practice whose benefits outweigh its costs ," as Judge Posner would have it. Instead, they struggled to articulate a limited number of fundamental principles and enshrine them above the everyday pragmatic judgments of politicians. They foresaw what modern history has shown to be all too true - that while democracy is an important antidote to tyranny, it can also facilitate a particular kind of tyranny - the tyranny of the majority. Constitutional principles protect those who are likely to be the targets of such tyranny, such as terror suspects, religious and racial minorities, criminal defendants, enemy combatants, foreign nationals, and, especially in this day and age , Arabs and Muslims. Relegating such individuals to the mercy of the legislature denies the existence of that threat . The Constitution is about more than efficiency and more than democracy; it is a collective commitment to the equal worth and dignity of all human beings . To fail to see that is to miss the very point of constitutional law.

Posner's trump card is that because terrorism in the twenty-first century poses the risk of truly catastrophic harm, it renders constitutional precedent and history largely irrelevant. Everything has changed. We are in a new paradigm, in which, as Alberto Gonzales said of the Geneva Conventions, the old rules (apparently including even those enshrined in the Constitution) are now [*1748] "quaint" or "obsolete." n29 But each new generation faces unforeseen challenges. The advent of modern weaponry changed war as we knew it. Communism backed by the Soviet Union posed a "new" threat of totalitarian takeover. The development of the nuclear bomb ushered in yet another new era. This is not to deny that there is a real threat that terrorists may get their hands on weapons of mass destruction, and that this threat must be taken very seriously. But it is to insist on what is a truly conservative point - that principles developed and applied over two centuries still have something important to say in guiding us as we address the threat of modern terrorism.

The corollary to Posner's pragmatic and utilitarian balancing approach to the Constitution is that judges should defer to the political branches on national security questions. Judges have no special expertise in national security, he argues, while the political branches do (p. 9). Decisions invalidating security measures as unconstitutional reduce our flexibility, for they are extremely difficult to change through the political process, and may cut off avenues of experimentation (p. 27). But the Constitution was meant to cut off certain avenues. Trying suspected terrorists without a jury, locking them up without access to a judge, convicting them without proving guilt beyond a reasonable doubt, searching them without probable cause or a warrant, and subjecting them to torture all might make terrorists' tasks more difficult (although, as I have argued elsewhere, many of these shortcuts actually help the terrorists and make us more vulnerable, because of the backlash they provoke). n30 But while the Constitution may not be a "suicide pact," neither is it a license to do anything our leaders think might improve our safety.

New Affirmative Backlines

They Say: “Posner – Balancing Good”The Constitution enshrines fundamental principles as side constraints that guide cost-benefit policy analysis. It’s not just a question of balancing — Posner is wrong.

Cole 7 — David Cole, Professor at Georgetown University Law Center, has litigated many significant constitutional cases in the Supreme Court, holds a J.D. from Yale Law School, 2007 (“‘How to Skip the Constitution’: An Exchange,” New York Review of Books, January 11th, Available Online at http://www.nybooks.com/articles/archives/2007/jan/11/how-to-skip-the-constitution-an-exchange/, Accessed 06-28-2015)

More generally, Judge Posner shies away from his own constitutional theory when he says that to declare a practice constitutional is not the same as saying that it is desirable as a policy matter. That is certainly true as a theoretical matter, at least where one’s constitutional theory is not reducible to one’s policy preferences. But as my review points out, Posner views questions of constitutionality as simply a matter of weighing all the costs and benefits, which is surely the same utilitarian calculus the policymaker would use to determine whether a practice is desirable. Under Posner’s approach, then, it’s hard to see why there would be any room between what is desirable and what is constitutional.

Judge Posner accuses me, in effect, of subscribing to the same constitutionalism-as-policy approach that he uses by asserting, without evidentiary support, that my constitutional views simply track my own policy preferences; “the rest is rhetoric.” But I believe that there is a critical distinction between constitutionalism and mere policy preferences . In fact, our Constitution gives judges the authority to declare acts of democratically elected officials unconstitutional on the understanding that they do not simply engage in the same cost-benefit analyses that politicians and economists undertake.

My own view is that the very sources Judge Posner dismisses—text, precedent, tradition, and reason—are absolutely essential to principled constitutional decision-making. Posner suggests that because none of these elements necessarily provides a determinate answer to difficult questions, we may as well abandon them for his seat-of-the-pants , cost-benefit approach . It is true that text, precedent, tradition, and reason do not determine results in some mechanistic way. That is why we ask judges, not machines, to decide constitutional cases. But these sources are nonetheless critically important constraints on and guides to constitutional decision-making. They are what identify those principles that have been deemed fundamental—and therefore

constitutional —over our collective history. That there are differences over principle in no way excludes the need for reasoned argument about them.

There is a reason the framers of the Constitution did not simply say “the government may engage in any practice whose benefits outweigh its costs,” as Judge Posner would have it, but instead struggled to articulate a limited number of fundamental principles and enshrine them above the everyday pragmatic judgments of politicians . They foresaw what modern history has shown to be all too true—that while democracy is an important antidote to tyranny, it can also facilitate a particular kind of tyranny—the tyranny of the majority. Constitutional principles protect those who are likely to be the targets of such tyranny, such as terror suspects , religious and racial minorities , criminal defendants , enemy combatants , foreign nationals , and , especially in this day and age, Arabs and Muslims . Relegating such individuals to the mercy of the legislature—whether it be Republican or Democratic—denies that threat . The Constitution is about more than efficiency, and more than democracy; it is a collective commitment to the equal worth and dignity of all human beings . To call that mere “rhetoric” is to miss the very point of constitutional law.

Posner’s arguments are bad scholarship.

Kakutani 6 — Michiko Kakutani, Pulitzer Prize-winning critic for the New York Times, holds a B.A. in English from Yale University, 2006 (“A Jurist’s Argument for Bending the Constitution,” New York Times, September 19th, Available Online at http://www.nytimes.com/2006/09/19/books/19kaku.html, Accessed 06-28-2015)

The Bush administration’s assertion that the war on terror is a new kind of war requiring new rules and a new equation between liberty and security is vehemently echoed by Richard A. Posner’s alarming new book, “Not a Suicide Pact: The Constitution in a Time of National Emergency.”

In addition to being a judge on the United States Court of Appeals for the Seventh Circuit, Judge Posner is a prolific author, a lecturer at the University of Chicago Law School and an intellectual leader of a school of jurisprudence that has pioneered the use of economics to analyze legal issues. He is known for his willfully provocative opinions — he once co-wrote an article recommending the private sales of babies — and the positions he takes in this volume will not only fuel his own controversial reputation but also underscore just how negotiable constitutional rights have become in the eyes of administration proponents, who argue that the dangers of terrorism trump civil liberties.

The very language Judge Posner uses in this shrilly titled volume conveys his impatience with constitutional rights, while signaling his determination

to deliver a polemical battle cry, not a work of carefully reasoned scholarship. He writes about lawyers’ “rights fetishes,” complains about judges’ “thralldom to precedent” and declares that the absence of an Official Secrets Act — which could be used to punish journalists for publishing leaked classified material — reflects “a national culture of nosiness, and of distrust of government bordering on paranoia.”

Near the beginning of “Not a Suicide Pact” Judge Posner writes that “rooting out an invisible enemy in our midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and for eras in which the only serious internal threat (apart from spies) came from common criminals.”

He argues that “it would be odd if the framers of the Constitution had cared more about every provision of the Bill of Rights than about national and personal survival.” And he concludes that “the importance of demonstrating resolve at the outset of a grim struggle explains and to a degree justifies the excesses of repression that so often accompany our entry into war, including the war against Al Qaeda.”

This willingness to bend the Constitution reflects Judge Posner’s archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis . Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting . It is a distinctly cynical outlook that imputes the most mercenary of motives to everyone from journalists to judges: just as Judge Posner has asserted that the media merely pander to the demands of their audiences rather than striving to inform the public, so he suggests in these pages that justices simply “make up constitutional law as they go along,” following subjective criteria instead of striving to uphold principle and precedent.

In fact, Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience’s sake. “The greater the potential value of the information sought to be elicited by an interrogation,” he writes, “the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach.”

Many of Judge Posner’s arguments in this book are riddled with self-serving contradictions. While he declares that “the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional,” he also argues that “a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety.”

In another chapter, which discusses warrantless eavesdropping by the N.S.A., Judge Posner shrugs off the concern that government scrutiny of private communications could lead to embarrassment, intimidation or blackmail of the administration’s opponents. While he acknowledges that “such things have happened in the past,” he says that “they are less likely to happen today” because factors like “the growth of a culture of leaking and whistle-blowing” and “more numerous and competitive media” have converged “to make American government a fishbowl,” and “secrets concerning matters that interest the public cannot be kept for long.”

Later in the book, however, he suggests that people’s privacy (regarding information collected by government data mining) would be better protected if there were more restrictions placed on the news media and “the principle of the Pentagon Papers case” were “relaxed to permit measures to prevent the media from publishing properly classified information.”

Other arguments in this volume are no more than unsubstantiated — indeed, highly dubious — assertions. Judge Posner writes that “it is better that the president assume the full responsibility for national security surveillance than that responsibility be diffused” by involving judges because “when power is concentrated, so is responsibility”: “There would be fewer executions,” he reasons, “if the sentencing judge had to administer the lethal injection.”

Judge Posner also insists that there is little reason for the judicial branch of government to act as a check on presidential overreaching when national security measures are agreed upon by Congress and the White House, because the legislative and executive branches “are rivalrous even when nominally controlled by the same political party.” The Republican Congress, he asserts in the face of overwhelming evidence to the contrary, “has not been a rubber stamp for the national security initiatives of the Bush administration.”

By the end of this chilling book, the reader realizes that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime . For instance, he expresses irritation with the Supreme Court’s 1969 Brandenburg ruling, which stipulated that speech advocating violence or other criminal conduct cannot constitutionally be suppressed unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Although Judge Posner writes that “in the present circumstances the enactment of laws forbidding radical Islamist expression would be needlessly provocative,” he ominously adds that “the situation may change” and that he believes “the incitement/threat category could be expanded” to include “generalized advocacy of violence against the United States.”

In his opinion, he says, “to tell Congress and the president that they can do nothing to prevent forms of advocacy likely to multiply the number of future terrorists makes no more sense than telling them that they cannot prevent the publication of recipes for bioweapons because it would probably take years to get from the recipe to the actual manufacture, let alone use, of the weapons.”

Judge Posner believes that “additional counterterrorist measures, in particular in the related areas of electronic surveillance and computerized data mining, could be taken without violating the Constitution (even if there were a clear constitutional right to informational privacy), especially if the effect on privacy is minimized by a strict rule against using information obtained through such means for any purpose other than to protect national security.” And he writes that “coercive interrogation up to and including torture might survive constitutional challenge as long as the fruits of such interrogation were not used in a criminal prosecution.”

So is there anything Judge Posner thinks the Constitution forbids? He writes: “But there is no handle in the constitutional text for the unilateral assumption of dictatorial powers by the president, no matter how desperate the circumstances. We don’t want the Constitution to be just an old piece of parchment.”

That snarkily delivered “just,” along with the use of the adjective “unilateral” to modify “assumption of dictatorial powers,” says it all: this book suggests that Judge Posner does regard the Constitution as an old piece of parchment — a piece of parchment with certain rules, but rules that “are made to be broken ” by a president during an emergency, no matter how long that emergency may last.

They Say: “Posner – Privacy Irrelevant”Posner’s anti-privacy argument breeds conformity and passivity.

Greenwald 14 — Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept, former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundation’s Pioneer Award, holds a J.D. from New York University School of Law, 2014 (“What Bad, Shameful, Dirty Behavior is U.S. Judge Richard Posner Hiding? Demand to Know.,” The Intercept, December 8th, Available Online at https://firstlook.org/theintercept/2014/12/08/bad-shameful-dirty-secrets-u-s-judge-richard-posner-hiding-demand-know/, Accessed 06-28-2015)

Richard Posner has been a federal appellate judge for 34 years, having been nominated by President Reagan in 1981. At a conference last week in Washington, Posner said the NSA should have the unlimited ability to collect whatever communications and other information it wants: “If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that’s fine.” The NSA should have “carte blanche” to collect what it wants because “privacy interests should really have very little weight when you’re talking about national security.”

His rationale? “I think privacy is actually overvalued,” the distinguished jurist pronounced. Privacy, he explained, is something people crave in order to prevent others from learning about the shameful and filthy things they do:

Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.

Unlike you and your need to hide your bad and dirty acts, Judge Posner has no need for privacy – or so he claims: “If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text,” he said. “What’s the big deal?” He added: “Other people must have really exciting stuff. Do they narrate their adulteries, or something like that?”

I would like to propose a campaign inspired by Judge Posner’s claims (just by the way, one of his duties as a federal judge is to uphold the Fourth Amendment). In doing so, I’ll make the following observations:

First, note the bargain Judge Posner offers, the one that is implicitly at the heart of all surveillance advocacy: as long as you make yourself extremely boring and unthreatening – don’t exercise your political

liberties, but instead, just take pictures of your cat, arrange Little League games, and exchange recipes – then you have nothing to worry about from surveillance . In other words, as long as you remain what Judge Posner is – an obedient servant of political and corporate power – then you have nothing to worry about from surveillance .

The converse, of course, is equally true: if you do anything unorthodox or challenging to those in power – if , for instance, you become a civil rights leader or an antiwar activist – then you are justifiably provoking surveillance aimed at you. That is the bargain at the heart of the anti- privacy case, which is why a surveillance state , by design, breeds conformity and passivity – which in turn is why all power centers crave it. Every time surveillance is discussed, someone says something to the effect of: “I’m not worried about being surveilled because I’ve chosen to do nothing that’d be interesting to the government or anyone else.” That self-imprisoning mindset, by itself , is as harmful as any abuse of surveillance power (in September, I gave a 15-minute TED talk specifically designed to address and refute the inane “nothing to hide” anti-privacy rationale Judge Posner offers here).

Posner’s anti-privacy argument is rooted in privilege — surveillance always targets dissidents and marginalized groups.

Greenwald 14 — Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept, former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundation’s Pioneer Award, holds a J.D. from New York University School of Law, 2014 (“What Bad, Shameful, Dirty Behavior is U.S. Judge Richard Posner Hiding? Demand to Know.,” The Intercept, December 8th, Available Online at https://firstlook.org/theintercept/2014/12/08/bad-shameful-dirty-secrets-u-s-judge-richard-posner-hiding-demand-know/, Accessed 06-28-2015)

Second, Judge Posner’s is the voice of unadulterated wealth, power and privilege talking. The distinguished judge – like all those of similar position and class – has all sorts of ways that his personal privacy is safeguarded: government-provided security, electronic gates that protect his home and office, a staff of people who work for him. It’s almost never the Judge Richard Posners of the world who are subjected to abusive surveillance, but rather actual dissidents , activists and members of marginalized and minority groups . That’s true even in

the most tyrannical states: in Mubarak’s Egypt, it was the pro-democracy protesters in Tahrir Square targeted with violence, torture, and other forms of repression, not the loyal and corrupt judges who served Mubarak’s agenda. Servants of power are usually immune, or at least unmolested. So it’s always very easy for the Richard Posners of the world to dismiss concerns over privacy violations because they are typically not the ones targeted.

To see how power-based rather than principled Posner’s views are, consider what he said and did in a 2011 case – brought by the ACLU – where he mocked the idea that citizens have a First Amendment right to film the police. During Oral Argument, he immediately interrupted the ACLU lawyer arguing that citizens have this right, and the following exchange occurred:

JUDGE POSNER: Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.

ACLU attorney Richard O’Brien: Is that a bad thing, your honor?

JUDGE POSNER: Yes, it is a bad thing. There is such a thing as privacy.

Like so many federal judges, Judge Posner recognizes rights only when they belong to agents of the state or the economic elite . When it’s ordinary citizens at issue, he snidely rejects any such protections . Of course, this is exactly backwards : those exercising public power (police officers) have a lower entitlement to privacy than private individuals. But power- servants like Judge Posner view only actors of the state and those who serve it (such as himself) as entitled to these prerogatives. That’s become the corrupt essence of the U.S. justice system, and it’s perfectly expressed by Judge Posner’s radically divergent views based on whose privacy is at stake.

Posner’s anti-privacy argument is obviously disingenuous — he doesn’t live a fully public life.

Greenwald 14 — Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public Service for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept, former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for Independent Journalism, the Online Journalism Award for investigative work on the abusive detention conditions of Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett Foundation Award for investigative journalism, the Gannett Foundation Watchdog Journalism Award, the Esso Premio for Excellence in Investigative Reporting in Brazil, and the Electronic Frontier Foundation’s Pioneer Award, holds a J.D. from New York University School of Law, 2014 (“What Bad, Shameful, Dirty Behavior is U.S. Judge Richard Posner Hiding? Demand to Know.,” The Intercept, December 8th, Available Online at https://firstlook.org/theintercept/2014/12/08/bad-shameful-dirty-secrets-u-s-judge-richard-posner-hiding-demand-know/, Accessed 06-28-2015)

Third, if Judge Posner really believes what he’s saying about privacy, and if it’s really true that he personally has nothing to hide – he just has some cat videos and some pictures of his grandkids – then he should prove that with his actions . Every day, he should publicly post online all of the emails he sends and receives , along with transcripts of his tele phone and in- person conversations. Or just put a recording device in his office and on his person , and upload the full audio every day. He should also put video cameras in all the rooms in his home and office, and stream it live on the internet 24 hours a day. If there’s a specific reason for excluding a particular conversation – say, something relating to attorney/client privilege – he can post a log identifying the metadata of the withheld communications. If he agrees to this framework, I’d work hard on a campaign to raise the funds to do this, and have no doubt the money could be raised very quickly.

What possible objections could he have to any of this? After all, the Hon. Richard Posner has nothing to hide . He’s a good person. He does nothing shameful, corrupt, adulterous, or otherwise embarrassing – nothing constituting “the sorts of bad activities that would cause other people not to want to deal with [him].” Perish the thought. So why isn’t he doing this , or why wouldn’t he? A campaign to encourage him to agree to this system of transparency – to show he has the courage of his convictions – would, I think, be constructive. Anyone wishing to do so can submit that encouragement to him, and to argue for its virtue, by email or telephone, here or here.

They Say: “Other Impacts Outweigh Constitution”

Unconstitutional policies should be rejected on-face — it is a jurisdictional issue.

Carter 87 — Steven Carter, Professor of Law at Yale University, 1987 (“From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers,” Brigham Young University Law Review, Issue 3, Available Online at http://lawreview.byu.edu/archives/1987/3/car.pdf, Accessed 01-12-2013)

The Constitution, which is after all a species of law, is thus quite naturally viewed as a potential impediment to policy, a barrier that must be adjusted, through interpretation or amendment, more often than preservation of government under that Constitution is viewed as a desirable policy in itself. In this the modern student of policy is like the modern moral philosopher—and like a good number of constitutional theorists as well—in denigrating the value of preserving any particular process and exalting the desirable result. But constitutionalism assigns enormous importance to process , and consequently assigns costs, albeit perhaps intangible ones, to violating the constitutional process. For the constitutionalist, as for classical liberal democratic theory, the autonomy of the people themselves, not the achievement of some well-intentioned government policy , is the ultimate end for which the government exists. As a consequence, no violation of the means the people have approved for pursuit of policy—here, the means embodied in the structural provisions of the Constitution —can be justified through reference to the policy itself as the end .

They Say: “Violations of Constitution Not Unique”

Reject every violation of the Constitution — even if non-unique.

CTFP 99 — Chattanooga Times Free Press, 1999 (“Upholding the Constitution,” July 14th, Available Online via Lexis)

It long has been highly disturbing that many public officials -- from the president of the United States, members of Congress, justices of the U.S. Supreme Court and on down the line -- have often ignored the Constitution of the United States and the Constitutions of the various states when what the Constitutions say is at variance with what the officials want to do.

Thomas Jefferson had it right when he said: "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

But we have seen countless public officials swear to uphold the Constitution -- and then flagrantly violate it in many ways. They range from sending American troops into unconstitutional, undeclared war to permitting the killing of millions of unborn American babies with no valid constitutional justification whatsoever.

There have been huge violations of the Constitution of the United States and of the Constitutions of the 50 states. There also have been many relatively minor violations of them. But if we are to maintain the rule of law, justice and liberty in America, we should abide by each Constitution in every respect, large or small, or approve amendments by proper constitutional processes if that seems advisable.

In Chattanooga we have seen a case involving "little" violations. But no violation is insignificant, and none should be tolerated.

Throughout his service on the bench, Chattanooga City Judge Walter Williams has been zealous for law enforcement. Sometimes he has been overzealous. Being a champion of traffic safety and highly critical of speeders, Judge Williams on occasion has "thrown the book" at offenders. Specifically, he has relied upon a 1991 Tennessee law providing for penalties to be as much as $500.

The problem, however, is that the 1991 law is contrary to the Tennessee Constitution, which says in Article VI, Section 14: "No fine shall be laid on any citizen of this state that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars."

There are no juries in City Court. So under the Constitution there can be no fines of more than $50. It is reported, however, that some 225 fines of more than $50 have been imposed.

That was the issue that Criminal Court Judge Doug Meyer was called to rule upon.

"Judge Williams only followed what was enacted by the Legislature and City Council," Judge Meyer said. "I don't fault him for that. He was following what he thought the law to be." But Judge Meyer continued: "If someone is fined $50 in Sessions Court for what is essentially a state offense, and the City Court fine for the same offense is $500, clearly that is not equal justice under the law."

The 1991 law used the term "monetary penalties" but the meaning is clearly "fines." So Judge Meyer said, "I have to look at the Constitution and what it means. It is not what you call something, but what it actually is that really counts. Obviously these monetary penalties are fines."

Judge Meyer is absolutely right.

How we wish that -- in every case involving either the national or the state Constitutions -- every justice, judge, president, member of Congress, governor, legislator and all other officials who swear to uphold the Constitution would stick to the honest meaning of words .

The liberty of us all in America stands on the foundation of constitutional government . We should allow no one to undermine or erode that foundation on issues either small or large .

They Say: “No Threshold For Impact”Don’t take the risk — the Constitution is too important to play Russian roulette.

Eidsmoe 92 — John A. Eidsmoe, Lieutenant Colonel and Constitutional Attorney in the United States Air Force Reserve, Professor of Law at the Thomas Goode Jones School of Law at Faulkner University, holds a J.D. from the University of Iowa, 1992 (“A New Constitutional Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution,” USAFA Journal of Legal Studies (3 USAFA J. Leg. Stud. 35), Available Online to Subscribing Institutions via Lexis-Nexis)

Concon proponents insist that these dangers are minuscule compared with the destabilization and unrest that would result from an economic collapse, which they believe is imminent if the deficit is not brought under control. n51 But serious questions must be raised as to whether a balanced budget would restrain an irresponsible spendthrift Congress any more effectively that current statutes requiring that the budget be balanced, statutes which Congress routinely ignores. But over and above this concern, let us remember the timeless words of Daniel Webster:

Other misfortunes may be borne, or their effects overcome. If disastrous war should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still under a new cultivation, they will grow green again , and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But who shall reconstruct the fabric of demolished government? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skilful architecture which united national sovereignty with State rights, individual security, and public prosperity? No, if these columns fall, they will be raised not again . Like the Coliseum and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer tears, however, will flow over them, than were ever shed over the remnants of a more glorious edifice than Greece or Rome ever saw, the edifice of constitutional American liberty. n52

It is possible that a constitutional convention could take place and no ne of these drastic consequences would come to pass. It is possible to play Russian roulette and [*58] emerge without a scratch; in fact, with only one bullet in the chamber, the odds of being shot are only one in six. But when the stakes are as high as one's life, or the constitutional system that has shaped this nation into what it is today, these odds are too great to take the risk .

They Say: “Constitution is Indeterminate”The Constitution is not indeterminate.

Shaw 13 — Julia Shaw, Research Associate and Program Manager at the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation, Ph.D. Candidate in Political Theory at the Catholic University of America, 2013 (“In denial over Constitution’s enduring relevance,” Washington Times, January 11th, Available Online at http://www.washingtontimes.com/news/2013/jan/11/in-denial-over-constitutions-enduring-relevance/#ixzz30qk59WFd, Accessed 05-05-2014)

Yet Mr. Seidman’s premise is wrong . There aren’t infinite potential meanings to the Constitution .

Indeed, the Constitution is crystal clear about many things . Moreover, thanks to commentaries, pamphlets, letters, well-documented debates and drafting records from the Founding Fathers, the meaning of the Constitution is, in fact, knowable. James Madison’s “Notes on the Convention” offer a detailed account of the drafting of the Constitution. The Federalist Papers and Justice Joseph Story’s “Commentaries on the Constitution” clearly explain the meaning of the Constitution. Using these works as a model, “The Heritage Guide to the Constitution” offers a comprehensive explanation and analysis of every clause in the Constitution.

Despite what Mr. Seidman writes, many provisions of the Constitution have clear , uncontroversial meanings . The president must swear an oath to preserve and defend the Constitution before taking office. The House has to keep a journal. No person shall be convicted of treason without “the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

There is no question that the Constitution creates two houses of Congress (not one, or five), that representatives must be at least 25 years old to serve, or that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner.”

To be sure, there are controversial provisions, and throughout American history there has been robust disagreement about the meanings of specific clauses and powers. Who can suspend habeas corpus? Can Congress use its spending power on internal improvements? Must the president enforce every law? Does the First Amendment protect anonymous speech or obscenity?

Still, because the Constitution’s meaning is knowable, as Reagan administration U.S. Attorney General Edwin Meese has explained, the document merits a particular approach. “Where the language of the Constitution is specific, it must be obeyed. Where there is demonstrable consensus among the Founders and ratifiers as to a principle stated or implied in the Constitution, it should be followed,” he writes. “Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself .” Such an approach does not “remove controversy , or

disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law .”

Mr. Seidman is wrong. The Constitution’s language is not “broad enough to encompass an almost infinitely wide range of positions.” Much of the Constitution’s language leads inexorably to one correct answer . Even the toughest , thorniest clauses still yield only a narrow range of possibly correct answers .

They Say: “Constitutionalism Bad”Abandoning the Constitution risks tyranny — there’s no realistic alternative.

Tribe 13 — Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, holds eleven honorary doctorate degrees, helped write the constitutions of South Africa, the Czech Republic, and the Marshall Islands, 2013 (“Is It Time to Scrap the Constitution?,” Letter To The Editor — New York Times, January 3rd, Available Online at http://www.nytimes.com/2013/01/04/opinion/is-it-time-to-scrap-the-constitution.html, Accessed 05-05-2014)

Louis Michael Seidman wants us to “kick our constitutional-law addiction.” Why? He proclaims our political system “dysfunctional” and our government “broken” but makes no convincing case that the Constitution is to blame for our recurring political breakdowns or that giving up on it would reduce our dysfunction. But malformed though it is, the rickety old structure has served us well over the centuries.

Mr. Seidman offers nothing to suggest how we might go about govern ing ourselves once liberated from the Constitution, the skeletal structure that frames a living conversation about our relationship with government, not blind worship of “a poetic piece of parchment.”

He confidently predicts that his proposal wouldn’t yield total anarchy. But he doesn’t explain how we could preserve even the “ political stability ” he values while treating the Constitution’s provisions as mere recommendations, to be accepted or rejected through processes whose constitution-free structure he never specifies .

He tells us that he would preserve free speech and religion, equal protection and limited government, but he never explains how he picks those values over others or how his maddeningly vague proposal would “give real freedom a chance” rather than risk tyranny.

The alternative won’t protect fundamental values like freedom of speech and due process.

Adler 12 — Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University, holds a J.D. from George Mason University, 2012 (“Seidman: ‘Let’s Give Up on [Parts of] the Constitution’,” The Volokh Conspiracy—a scholarly law blog, December 31st, Available Online at http://www.volokh.com/2012/12/31/seidman-lets-give-up-on-parts-of-the-constitution/, Accessed 05-05-2014)

Seidman cites what he characterizes as a proud history of “constitutional disobedience” to suggest that ignoring the document would be all to the good, suggesting that the country would be better off if political disputes about everything from budgetary policy to military conflict were merely debated on the policy merits. Yet Seidman conspicuously ignores the various policy measures throughout our nation’s history that would have remained the law of the land were it not for the Constitution, including numerous restrictions on the freedom of speech and the detention policies struck down by the Court in Boumediene.

Seidman suggests that liberal constitutional values such as the freedom of speech and religion, equal protection, and due process “ are important , whether or not they are in the Constitution” and that “ we should continue to follow those requirements out of respect, not obligation .” But our political history shows quite clearly that the political process is more than willing to trample such principles, often with substantial popular support even with a constitutional obligation to respect. Yet the whole point of a constitution is to prevent such abuses and constrain popular majorities .

They Say: “DA Turns Case”The neg’s impact comparison relies on juking the stats. “Balancing” liberty and security is a rigged game that always already subjugates rights.

Sidhu 9 — Dawinder S. Sidhu, Visiting Researcher at the Georgetown University Law Center, former Fellow at the Center for Internet and Society at Stanford University, holds a J.D. from The George Washington University Law School and an M.A. in Government from Johns Hopkins University, 2009 (“Wartime America and the Wire: A Response to Posner's Post-9/11 Constitutional Framework,” George Mason University Civil Rights Law Journal (20 Geo. Mason U. Civ. Rts. L.J. 37), Fall, Available Online to Subscribing Institutions via Lexis-Nexis)

IV. Rigging the Game

"Juking the stats." n101

- Roland "Prez" Pryzbylewski, The Wire

In Not a Suicide Pact, Posner not only presents an unhelpful balancing scheme between liberty and security, a contest that is attended only by civil libertarians and hawkish security folks, but then also stacks the deck against the preservation of liberty such that security will invariably be dominant and liberty must consequently give way. n102 In particular, Posner posits that in times of war, greater weight is to be placed on security measures due to the heightened interest in protecting the homeland. He writes, "In times of danger, the weight of concerns for public safety increases relative to that of liberty concerns, and civil liberties are narrowed." n103 He continues, "[A] decline in [*55] security causes the balance to shift against liberty," n104 and "the more endangered we feel, the more weight we place on the interest in safety." n105

Moreover, according to Posner, elevating security concerns above liberty interests may be necessary to ward off future terrorist activity. He speculates that "[a] minor curtailment of present civil liberties, to the extent that it reduces the probability of a terrorist attack, reduces the likelihood of a major future curtailment of those liberties." n106 Otherwise, "rooting out" the enemy "might be fatally inhibited if we felt constrained to strict observance of civil liberties." n107 From the government's point of view, Posner simply notes, "It is better to be safe than sorry." n108

Prez and others in The Wire often expressed their disappointment with the concept of " juking the stats ." n109 This refers to a situation in which the powers that be—police commanders, high-level public school officials, or politicians—would manipulate perspectives or information to ultimately achieve a predetermined, preferred outcome . n110 It refers to the rigging of the system ; it is result-oriented decisionmaking by those at the top of the power structure to the detriment [*56] of those

stakeholders with little or no bargaining ability . n111 For example, in an effort to appease the city's political leadership and the public to which the politicians were accountable, the high-level police officials implemented a strategy to increase the absolute number of arrests; in essence, they manufactured the impression that they were making a dent in city crime. n112 Although the number of arrests did increase, the arrests were of minor users and offenders; as such, police resources were drawn away from infiltrating the primary sources of the city's drug and related crime problems. n113 Even when the police furnished statistics that supported the suggestion that they were successful in addressing crime, in actuality the drug camp was unfazed and the public remained vulnerable to widespread drug trafficking and associated criminal activities. n114 The campaign, though successful on its face, was in truth ineffective and counterproductive.

Just as information could be "juked" to support a self-fulfilling outcome in The Wire, legal commentators recognize that the constitutional equation suggested by Posner is not objectively calibrated , but instead will yield only one pre-determined answer : Civil liberties must defer to security programs or policies . David Cole of the Georgetown University Law Center observed that "constitutional interpretation for Posner is little more than an all-things-considered balancing act—and when the potential costs of a catastrophic terrorist attack are placed on the scale, the concerns of constitutional rights and civil liberties are almost inevitably outweighed." n115 Two others criticize Posner's law and economics approach to security issues because his "method works largely through a cost-benefit analysis where equality and antisubordination never quite measure up to the concerns against [*57] which they are being measured." n116 Similarly, another commentator writes that Posner's "method ... tilts in the favor of security more often than not." n117

In proposing that post-9/11 constitutional questions implicating the security of the nation be reduced to a balancing of purportedly competing interests, Posner offers a mechanism that is not only faulty in design, as both security and liberty can be simultaneously managed, but also troublesome in its application, as security invariably subjugates other constitutional interests, specifically individual rights. Accordingly, Posner's recommendation is consistent with the "rigging" exhibited and discredited in The Wire —giving the impression of an objective approach to produce a pre-determined outcome , but in essence depriving the people of a legitimate debate on the proper relationship between national security and individual rights.

They Say: “Isaac ‘2”Isaac is wrong — he’s demanding an all-out War on Terror. How’s that going?

Steger 2 — Manfred B. Steger, Associate Professor of Politics & Government at Illinois State University, holds a Ph.D. in Political Science from Rutgers University, 2002 (“Ends, Means, and the Politics of Dissent: Reply to Jeffrey C. Isaac,” Dissent, Volume 49, Issue 2, Spring, Available Online to Subscribing Institutions via EBSCOhost, p. 74-75)

Idealizing “Realist Politics”

Another reason for the systemic distortion and marginalization of the campus left’s pacifism is the widespread idealization of so-called “realist politics.” Throughout his article, Isaac adopts the questionable metaphysical assumptions that underlie the realist paradigm : “In the best of all imaginable worlds, it might be possible to defeat al-Qaeda without using force and without dealing with corrupt regimes and political forces like the Northern Alliance. But [end page 74] in this world it is not possible. And this, alas, is the only world that exists.” Note how Isaac claims for himself the same omniscient vantage point that he so dislikes in the campus left. This arrogant spirit of ontological absolutism pervades his essay. Here is another example: “To accomplish anything in the political world, one must attend to the means that are necessary to bring it about.” Of course, having defined what counts as the “political world,” Isaac employs the term “necessary” to imply war-like activities. In short, the only way to fight terrorism is to declare a large-scale war on it, thus fighting violence with greater violence. Anybody challenging Isaac ’s conclusions or his underlying realist metaphysics is naïve , unpragmatic , vague , irrational , an accomplice of terrorism , and —this is my favorite charge—out of touch with the “preoccupations and opinions of the vast majority of Americans.” Isaac’s cheap rhetorical appeal to “common sense,” is , indeed, an embarrassing move for an intellectual descendent of the gadfly Socrates who contributes regularly to a progressive magazine titled Dissent.

The idealization of realism is very much part of the dominant ideology of violence . Once people accept that large-scale war constitutes the only “realistic” response to September 11, then its many failings are easily shrugged off as “unavoidable byproducts” or “collateral damage,” while its often meager achievements are blown out of proportion to maintain the public’s faith in the effectiveness of violence. A truly “realistic” evaluation of the retaliatory violence

employed by the United States and its allies in the war on terrorism reveals the remarkable ineffectiveness of the violent method. What has actually been achieved?

We toppled the Taliban regime, but the fighting in Afghanistan hasn’t come to an end. We killed between a thousand and thirty-seven hundred Afghan civilians. The oppressive situation for Afghan women has improved only marginally. The example of a large-scale “war on terrorism” has been copied by various regimes to justify aggressive action against “subversives.” Take, for example, conflicts in Israel/Palestine, India/Pakistan, Colombia, Central Asian republics, and so on. Although the war on terrorism costs U.S. taxpayers billions of dollars, our government has steadily expanded it to other parts of the world. The United States has struck questionable alliances with groups and nations that are profoundly undemocratic and have long records of human rights abuses. Civil rights and liberties in our country are being undermined in the name of national security—think of the 2001 Patriot Act. Finally, Osama bin Laden, Ayman al- Zawahiri, Mullah Omar, and other leading Taliban and al-Qaeda members have not been captured. This is by no means a great scorecard for the violent method, but because large-scale war is supposedly the only “realistic” course of action, most Americans tolerate the failures of our military response.

Let me emphasize, finally, that I agree with Isaac’s assertion that finding a proper relationship between means and ends is the most difficult challenge for both political thinkers and activists. Contrary to his account, however, I believe that the pacifist campus left has played a constructive role by countering realist mainstream arguments that favor an all-out war on terrorism . This overreliance on military means has only pulled us further into the apocalyptic scenario of terrorist strikes, counterstrikes, and deepening misery. It has also contributed to the rapid buildup of a national security regime that threatens our liberties and democratic arrangements . Isaac’s pigeonholing of the pacifist campus left is wrong ; on balance, its members have expressed morally nuanced opinions and offered pragmatic alternative strategies.

The War on Terror has killed more than 1.3 million people.

Wilkins 15 — Brett Wilkins, Editor-at-Large for U.S. News at Digital Journal, 2015 (“Doctors' group says 1.3 million killed in U.S. 'War on Terror',” Digital Journal, March 25th, Available Online at http://www.digitaljournal.com/news/world/study-1-3-million-killed-in-usa-war-on-terror/article/429180, Accessed 06-21-2015)

A group of international physicians' organizations has published a study concluding US-led wars in Iraq, Afghanistan and Pakistan have killed more than 1.3 million people .

The Nobel Prize-winning International Physicians for the Prevention of Nuclear War, along with Physicians for Social Responsibility and Physicians for Global Survival have released a report titled "Body Count: Casualty Figures after 10 Years of the 'War on Terror.'" The study examined direct and indirect deaths caused by more than a decade of US-led war in three countries, Iraq, Afghanistan and Pakistan, but did not include deaths in other countries attacked by American and allied military forces, including Yemen, Somalia, Libya and Syria.

The study noted that while the United States closely monitors casualty figures for allied troops—4,804 coalition deaths in Iraq; 3,485 in Afghanistan, the number of civilians and enemy combatants killed by US and allied forces is " officially ignored ."

The IPPNW investigation , which scoured the results of individual studies and data published by U nited Nations organizations , government agencies and n on- g overnmental o rganization s , concluded the ongoing war "has, directly or indirectly, killed around 1 million people in Iraq, 220,000 in Afghanistan and 80,000 in Pakistan."

"The figure is approximately 10 times greater than that of which the public, experts and decision makers are aware," the study's authors write. "And this is only a conservative estimate . The total number of deaths in the three countries... could also be in excess of 2 million ."

The consequences of terrorism don’t justify violations of fundamental freedom — math.

Friedersdorf 13 — Conor Friedersdorf, Staff Writer for The Atlantic, 2013 (“The Irrationality of Giving Up This Much Liberty to Fight Terror,” The Atlantic, June 10th, Available Online at http://www.theatlantic.com/politics/archive/2013/06/the-irrationality-of-giving-up-this-much-liberty-to-fight-terror/276695/, Accessed 06-21-2015)

As individuals, Americans are generally good at denying al-Qaeda the pleasure of terrorizing us into submission. Our cities are bustling; our subways are packed every rush hour; there doesn't seem to be an empty seat on any flight I'm ever on. But as a collective, irrational cowardice is getting the better of our polity. Terrorism isn't something we're ceding liberty to fight because the threat is especially dire compared to other dangers of the modern

world. All sorts of things kill us in far greater numbers . Rather, like airplane crashes and shark attacks, acts of terror are scarier than most causes of death. The seeming contradictions in how we treat different threats suggest that we aren't trading civil liberties for security, but a sense of security. We aren't empowering the national-security state so that we're safer, but so we feel safer .

Of course we should dedicate significant resources and effort to stopping terrorism. But consider some hard facts . In 2001, the year when America suffered an unprecedented terrorist attack – by far the biggest in its history – roughly 3,000 people died from terrorism in the U.S.

Let's put that in context. That same year in the United States:

* 71,372 died of diabetes.

* 29,573 were killed by guns.

* 13,290 were killed in drunk driving accidents.

That's what things looked like at the all-time peak for deaths by terrorism. Now let's take a longer view. We'll choose an interval that still includes the biggest terrorist attack in American history: 1999 to 2010 .

Again, terrorists killed roughly 3,000 people in the U nited States. And in that interval,

* roughly 360,000 were killed by guns (actually, the figure the CDC gives is 364,483 -- in other words, by rounding, I just elided more gun deaths than there were total terrorism deaths).

* roughly 150,000 were killed in drunk-driving accidents . [Graphic Omitted]

Measured in lives lost, during an interval that includes the biggest terrorist attack in American history, guns posed a threat to American lives that was more than 100 times greater than the threat of terrorism. Over the same interval, drunk driving threatened our safety 50 times more than terrorism .

Those aren't the only threats many times more deadly than terrorism, either.

The CDC estimates that food poisoning kills roughly 3,000 Americans every year . Every year, food-borne illness takes as many lives in the U.S. as were lost during the high outlier of terrorism deaths. It's a killer

more deadly than terrorism. Should we cede a significant amount of liberty to fight it?

Government officials, much of the media, and most American citizens talk about terrorism as if they're totally oblivious to this context – as if it is different than all other threats we face, in both kind and degree. Since The Guardian and other news outlets started revealing the scope of the surveillance state last week, numerous commentators and government officials, including President Obama himself, have talked about the need to properly "balance" liberty and security.

The U.S. should certainly try to prevent terrorist attacks, and there is a lot that government can and has done since 9/11 to improve security in ways that are totally unobjectionable. But it is not rational to give up massive amounts of privacy and liberty to stay marginally safer from a threat that, however scary, endangers the average American far less than his or her daily commute . In 2011*, 32,367 Americans died in traffic fatalities. Terrorism killed 17 U.S. civilians that year. How many Americans feared dying in their vehicles more than dying in a terrorist attack?

[Footnote (*) moved from end of article: Said Ronald Bailey in a piece published in September of 2011, "a rough calculation suggests that in the last five years, your chances of being killed by a terrorist are about one in 20 million. This compares annual risk of dying in a car accident of 1 in 19,000; drowning in a bathtub at 1 in 800,000; dying in a building fire at 1 in 99,000; or being struck by lightning at 1 in 5,500,000. In other words, in the last five years you were four times more likely to be struck by lightning than killed by a terrorist."

Certainly not me! I irrationally find terrorism far scarier than the sober incompetents and irresponsible drunks who surround my vehicle every time I take a carefree trip down a Los Angeles freeway. The idea that the government could keep me safe from terrorism is very emotionally appealing.

But intellectually, I know two things:

* America has preserved liberty and privacy in the face of threats far greater than terrorism has so far posed (based on the number of people actually killed in terrorist attacks), and we've been better off for it.

* Ceding liberty and privacy to keep myself safe from terrorism doesn't even guarantee that I'll be safer! It's possible that the surveillance state will prove invasive and ineffective. Or that giving the state so

much latitude to exercise extreme power in secret will itself threaten my safety.

I understand, as well as anyone, that terrorism is scary. But it's time to stop reacting to it with our guts, and to start reacting with our brains , not just when we're deciding to vacation in Washington or New York, but also when we're making policy together as free citizens. Civil libertarians are not demanding foolish or unreasonable courage when they suggest that the threat of terrorism isn't so great as to warrant massive spying on innocent Americans and the creation of a permanent database that practically guarantees eventual abuse.

Americans would never welcome a secret surveillance state to reduce diabetes deaths, or gun deaths, or drunk-driving deaths by 3,000 per year. Indeed, Congress regularly votes down far less invasive policies meant to address those problems because they offend our notions of liberty. So what sense does it make to suggest, as Obama does, that "balancing" liberty with safety from terrorism – which kills far fewer than 3,000 Americans annually – compels those same invasive methods to be granted, in secret, as long as terrorists are plotting?That only makes sense if the policy is aimed at lessening not just at wrongful deaths, but also exaggerated fears and emotions**. Hence my refusal to go along. Do you know what scares me more than terrorism? A polity that reacts to fear by ceding more autonomy and power to its secret police .

Utilitarian defenses of NSA surveillance are wrong because they conflate efficiency with utility. The case outweighs within a utilitarian framework.

Hladik 14 — Casey Hladik, Philosophy Student at Ball State University, citing Alan Rusbridger—Editor of The Guardian newspaper which published articles by Glenn Greenwald and its own reporters about the National Security Agency based on documents leaked by Edward Snowden, and John Stuart Mill—a 19th century British philosopher who wrote the seminal work Utilitarianism, 2014 (“Rusbridger’s ‘The Snowden Leaks and the Public’ and Mill’s Utilitarianism: An Analysis of the Utilitarian Concern of ‘Going Dark’,” Stance, Volume 7, April, Available Online at http://www.bsu.edu/libraries/virtualpress/stance/2014_spring/03Hladik29-40.pdf, Accessed 06-20-2015, p. 38-40)

Conclusion

What the British and American people gain in security from the surveillance activities of the NSA and GCHQ is modest in comparison to what they lose in security. These practices also strip away their moral

rights to privacy and freedoms . The utilitarian appeal put forth by the British and American officials who support these practices has been shown to be unsustainable in a utilitarian framework —largely because they determine the dictates of utility with a fundamental lack of understanding of the pleasures and pains involved. [end page 38]

Therefore, according to Mill’s theory of utility, these surveillance programs are expedient rather than ethical . Indeed, Mill writes, there have been many institutions throughout history which have been justified by supposed appeals to utility, only to be condemned later as blatantly unethical . One example which Mill cites is slavery : at one point in the history of the United States, slavery was argued to be a “necessity of social existence” because the social benefits outweighed the drawbacks.36 It has since been clarified, however, that the institution is a violation of the utilitarian paradigm that each ought to receive what he or she justly deserves. Mill writes, “The entire history of social improvement has been a series of transitions by which one custom or institution after another, from being a supposed primary necessity of social existence, has passed into the rank of a universally stigmatized injustice and tyranny.”37

Indeed, history will show that the mass surveillance programs of the NSA and GCHQ followed the dictates of expedience rather than ethics . This fact is evident in a remark by the head of a British intelligence agency: “There’s nothing in it for us in being more open about what we do.”38 This official is clearly more concerned about the efficiency of his organization than the good of British citizens. Indeed, although the NSA and GCHQ appeal to utilitarianism in attempting to justify their practices, when these practices ( i.e., their consequences ) are critiqued according to the utilitarian framework, it becomes clear that these practices are consistent with efficiency rather than utility . The negative consequences of these activities clearly outweigh the positive ones: the NSA and GCHQ are compromising rather than bolstering security in the U nited States and Britain, and they are threatening the moral rights promoted in the utilitarian framework rather than protecting them , so they are detracting from the peaceful functioning of society rather than facilitating it.

Government officials who approve of the indiscriminate, large-scale spying on American and British citizens by the NSA and GCHQ claim that, if their practices are limited, the world will “go dark” and chaos will ensue. Although the utility behind this argument initially seems compelling , it does not hold . Those who oversee the intelligence

organizations are not fully informed as to the pleasures [end page 39] and pains involved, and, hence, their ethical calculus is skewed . In actuality, the negative consequences of these programs outweigh the positive ones. As a result, these programs can be said to be expedient rather than ethical , and they ought to be terminated .