[eDebate] defending the first amendment vs national security wording

[Pacedebate at aol.com]

also posted on the blog...
 
 
This should have been clear from my  post on “overrule” but just to be clear 
I’m done advocating for the supplemental  resolutions I created in response 
to the TC feedback. When I did that I got away  from the solvency advocates I 
had found and the original intent of my topic.  Here is the wording I defended 
in my original paper and that I’m defending  now: 
Resolved: that the United States  Supreme Court should rule an act or acts of 
the executive branch  unconstitutional, specifically holding that the  first 
amendment should take precedence over national security  concerns. 
Most of the concerns I’ve seen so  far really apply to the supplemental 
resolutions I’d created but I’ll mention  all the ones I can remember from what I 
saw on the webcast and from the notes  that Brad posted. I wanted to start with
…. 
First  Amendment 
Toward the end of the meeting  someone argued that this topic would become 
all about the first amendment. In  Brad’s notes this was listed as “the topic 
might be shifted too much to a  theoretical question about the first amendment.”
 I’m not exactly sure what this  means but um, yeah. Exactly. The aff better 
come prepared to defend why the  Supreme Court needs to set a precedent on the 
first amendment. If you think that  makes for a bad topic then you should 
definitely argue against this resolution.  “Generic” strategy number one for the 
negative should be a grounds counterplan.  Rule on different grounds. To me 
that is at the heart of what Courts debates  should be all about. 
Grounds Counterplans are TOO  good 
Here, they have me feeling like the  folks who worked on the other first 
amendment topic. First, it’s too aff biased,  now it’s too neg biased….ah now I 
know what it feels like to be on the topic  committee J 
The FOIA aff is my  core example of an aff that would really work on this 
topic. It has really good  evidence to answer the agent counterplan and is a core 
first amendment issue  that can be used as offense against the equal 
protection counterplan.  
It is all about  precedent. The aff needs to come into debates ready to 
defend setting a strong  precedent for the first amendment. 
The precedent  matters - Supreme Court precedents cross over administrative 
agency  lines. 
Harvey ’96 (James, 37 Wm and  Mary L. Rev. 1569, twm) 
When issues cross  agency lines, DOJ properly should determine consistent 
government  policy. n227 For example,  issues concerning administrative 
procedure, civil procedure, the Freedom of Information Act, n228  or equal protection 
implicate  the way that government acts as a whole. n229 Adverse precedents in 
these  areas hurt government entities other than just the litigating agency. 
The risks,  therefore, demand DOJ involvement in these areas. Officers like the 
solicitor  general, for example, have a mandate to look after the interests 
of all of  government. 
The FOIA case is all  about the first amendment and a strategic aff will 
write a narrow plan and argue  that an FOIA precedent putting the first amendment 
above national security will  be used in other areas. 
For example,   
plan: the USSC  should rule that secrecy in immigration hearings is 
unconstitutional on the  grounds that it violates the first amendment. 
cplan: the USSC  should rule that secrecy in immigration hearings is 
unconstitutional on the  grounds that it violates equal protection. 
There are a plethora  of aff add on's based around right of access of the  
media. 
Papandrea, Assistant Prof. of Law Boston  College, ’05 (Mary-Rose, 25 B.C. 
Third World L.J. 35, p 38, twm) 
History has  demonstrated that without an enforceable right to know about 
government  activities, the executive branch is likely to reveal only the 
information that  serves its purposes, whatever they may  be. This Article suggests 
that the courts must keep in mind the interest in  effective self-government 
that drove FOIA's passage in 1966 and the recognition  of the First Amendment 
right of access in 1980. The right to know is more, not  less, important in a 
time of crisis, and it is no less important when the rights  of noncitizens are 
at issue. Indeed, history amply demonstrates that it is  during times of 
crisis that the government is more likely to engage in  questionable behavior and 
employ secrecy to conceal its  failures. 
The negative might  try to start writing a broader counterplan i.e. the USSC 
will rule that secret  activities violate equal protection but if they do that 
then what is their net  benefit going to be - certainly not one of the bad 
court DA's since those  probably link more which means they have to have a first 
amendment precedents  bad DA. There are a couple of those floating around but 
they aren't particularly  unique and there are just as many mediocre equal 
protection DA's the aff could  use as offense. 
There are also some  bad court DA's that link to misuse of precedent. I get 
that "the court doesn't  work that way" doesn't get the aff anywhere if the cp 
solves all the aff but  usually the net benefit will be pretty small and a DA 
that says Roberts  promised he would stick with precedent and this case 
clearly is a bizarre ruling  for the SC can offset the "any risk of the da" args 
from the  neg. 
Hamdi  
Steve pointed out that Hamdi may  have eroded Goldman. This was directly 
responsive to the resolution where I  specified this decision and so I don’t think 
it really applies to my original  wording but just in case… 
Hamdi was a very narrow decision  merely about whether the U.S. courts even 
had jurisdiction  over these issues. It is a minor point in the over all 
dispute about  presidential powers not particularly relevant to the overall question 
of  deference and it isn’t in any way relevant to Supreme Court deference to 
the  military on first amendment issues. 
Wilson ’06 (Elizabeth, 8 U. Pa. J. Const. L. 165, twm)

In June of  2004, shortly after the  Abu Ghraib prison crisis, the Supreme 
Court held that the district courts of  the United States had  jurisdiction to 
hear habeas petitions filed by alien detainees being held in  Guantanamo Bay, 
Cuba challenging the legality of  their detentions. Rasul v. Bush, n1 and its 
companion cases Hamdi v. Rumsfeld n2 and Rumsfeld  v. Padilla, n3 addressed the 
fate of more than 600 detainees being held in what  has been called a legal 
"black hole," as the Government asserted that neither  the U.S. Constitution 
nor the Geneva Conventions applied to alleged members of  Al Qaeda that were 
apprehended during the war on terrorism. n4 Although these  decisions  [*166]  
were hailed as a victory for the American legal  system and the rule of law, 
they have not led to the swift demise of the  Government's post-9/11 experiment 
in Guantanamo Bay: its creation of an unregulated  offshore penal colony. With 
the cases on remand to the lower courts, the  Government re-filed its motion 
to dismiss, obstructed counsel's initial attempts  to communicate with their 
clients, and in essence acted as if the Supreme Court  had not addressed the 
issue. As of this writing, not a single detainee has  been released as a result 
of judicial review. A key issue on remand has been  whether the detainees 
possess substantive constitutional rights that have been  violated by their 
detention. The Government apparently chose Guantanamo Bay as an indefinite detention 
center for  alleged "enemy combatants" in the belief that the writ of habeas 
corpus would  not be available to aliens detained there. n5 In deciding that 
federal courts  indeed have habeas jurisdiction, as conferred by statute, to 
decide the  lawfulness of detainees' custody, Rasul remanded the cases for 
further  proceedings on the merits but only implicitly addressed the question of  
detainees' constitutional status. The Rasul (now Al Odah) n6 remand litigation  
has focused in large measure on the question of whether the U.S. Constitution  
applies to protect aliens detained in military custody outside of  U.S. 
sovereign territory. In so  doing, this litigation has confronted the more general 
question of the  Constitution's extraterritorial scope.
The Government's position has been  a simple one: the Constitution does not 
reach aliens detained outside of the  United  States. According to the 
Government, Rasul  decided the question of jurisdiction only and did not address the 
question of  whether detainees have any substantive rights that may be 
vindicated; and  because petitioners are outside of U.S. territorial sovereignty, they 
are, as aliens  without significant voluntary connections with the United 
States,  without constitutional rights. Based on Johnson v. Eisentrager n7 and 
United  States v. Verdugo-Urquidez, n8 two key Supreme Court precedents that 
seemingly  foreclose the application of the Constitution to aliens abroad, the 
Government  argues that the petitions must be dismissed, or judgment as a matter 
of law must  be granted in the Government's favor. n9  
And, Hamdi won’t hurt the negs  national security DA’s I identified as core 
neg ground in the wording  paper. 
Jackson, Prof. of  Law Georgetown  ’06 (Vicki, 91 Cornell  L. Rev. 303, twm) 
Hamdi also, in  important respects, sanctioned an expansion of presidential 
power, upholding the  President's authority to classify U.S. citizens as enemy 
combatants and to  detain them for extended periods in order to prevent their 
return to the  battlefield, pursuant to a congressional resolution authorizing 
"necessary  and appropriate force" against "nations, organizations, or 
persons" responsible  for the terrorist attacks of September 11, 2001 on the United  
States. 
High School  topic 
The cards above are a nice segue way  into this issue…just because the cards 
above are about presidential powers don’t  be fooled into thinking this topic 
will be a rehash of the high school topic.  I’m just responding to the point 
Steve made about Hamdi’s impact on the wording.  Is there some overlap with the 
high school topic? Sure, but it’s not substantial  and the ways in which it 
will overlap aren’t unique to this topic. Did the high  school community roll 
out the executive order and congress counterplans with  politics net benefits? 
Of course, but that is going to happen on almost all of  the overrule topics 
and if the First Amendment argument above is correct then my  wording will 
force debaters into the grounds issues which was a drop in the  bucket of the high 
school topic.  
Noah  Chestnut 
Basically, he said the Supreme Court  is too narrow. I don’t think he will 
find too much support among the TC for this  opinion and I just think the aff 
has to work to win that the SC is key. The  precedent stuff above is one 
potential response to this as are the executive  order/congress cp stuff I posted 
previously. 
And, 
Supreme Court  action is key. 
Anderson ’04 (David, 69  Brooklyn L. Rev. 755,  twm) 
The third reason  for doubting the wisdom of excluding common law courts from 
the resolution of  speech-tort conflicts has to do with institutional 
competence. The Supreme Court's expertise and  sensitivity in matters of free speech 
is unquestionable. If there is a  specialized court for free speech anywhere 
in the world, the Supreme Court is it. It sees and  decides every type of First 
 Amendment case, from picketing n267 and symbolic speech   n268 to 
pornography n269 and national security.  n270  It is the engine that has driven the 
development of the remarkable system of  freedom of expression in the United 
States. 
War on Terror lost the area  balloting 
I thought Gordon was pretty  persuasive on this issue. People had a chance to 
vote for war on terror and they  didn’t. I think Kathryn (sorry if I got the 
name wrong my picture and sound was  pretty fuzzy at times) also made the 
point that her region voted against that  topic because they didn’t want a rehash 
of the high school topic. The war on  terror DA is clearly a negative argument 
on this topic and that debate will  happen if the neg wants it to. There are 
a couple of aff’s that can probably  sidestep that debate and the links will 
be different but it’s the biggest area  of overlap with the high school debate. 
However, there is a big difference  between having a topic that requires the 
aff to address the war on terror (which  is what the area vote was about) and 
people opposing that the terrorism issue be  debated at all. If I’m wrong and 
the East was voting against terrorism being  relevant to the topic then they 
will vote en masse against this wording but I  really don’t think that’s what 
people were voting against.   

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