[eDebate] Rethinking Caselists

[Steven D'Amico]

Seriously, get over it. Case lists are good. Period. Second, do more
reading. There are a lot of things about Quirnin unaffected by Hamden. I'm
not gonna tell you what they are--untill there is a -gasp- caselist.
Caselists are good. Get over it.


On 9/15/06, Danielle Verney <daisy_verney at hotmail.com> wrote:

>

> Sigh, I should be cutting cards for Kings, but I am easily provoked.  Here

> is the line by line, I apologize to others who should be doing work for

> the

> length.

>

> You Say:

> I guess you will soon see how limited Quirin really is in light of Hamdam.

> Exhibit "A" Bush's speech today.

>

> I Say:

> I haven't read the speech yet so you'll have to explain specifically what

> you mean – However, since Bush really wants to have tribunals, and thinks

> that's still a possibility, I bet my case saying they are unconstitutional

> would be ill received by him.

>

> Some Global Arguments for below;

> 1)      A lot of your argument seems premised on you winning a very narrow

> interpretation in the T debate.  I don't think this will happen in actual

> debates.  One as you have above mentioned it is a somewhat smallish topic

> (although not too small for a case list by far – we needed case list for

> sanctions topic 8 years back and that was easily smaller).  Judges are

> going

> to be more flexible as to topicality debates – and debaters aren't going

> to

> want to go for T against predictable cases.  This can easily be done

> without

> exploding the topic

> 2)      Another problematic assumption is a shifting use of the term

> decision as

> used in the topic – this was obviously a long discussion before the topic

> vote – my point from then:

> "I think it's pretty clear that the topic has to mean something like

> overrule a holding. As the Manc pointed out earlier it would be pretty

> ridiculous to change the actual judgment – many of those people are dead,

> and clearly they have moved on. Likewise it has to mean just one (or more,

> but not all) the holdings otherwise you would be overruling ridiculous

> things like jurisdiction and standing – if you did that the court can't

> even

> address the rest of the holdings anyways. So its pretty clearly gotta be a

> holding. And this is what we want – it's what all the literature

> supports."

> So, overruling Quirin means one of its holdings – or it will in actual

> debates

>

> You Say:

> Next Quirin says nothing about enemy detention centers. So, there is

> nothing

> on

> this issue within Quirin to overrule. So, I guess you can complain about

> GITMO

> all day long. But, I am not sure how overruling Quirin functions as a

> solvency

> mechanism for gitmo.

> I am VERY interested to see the card, cites, etc. any card, that says

> overturing

> Quirin will somehow get rid of GITMOor other military or CIA detention

> centers.

> Please be so gracious as to inform me.

> Quirin, from what little I have read, dealt with military tribunals. Ya,

> know

> nazi sabtouers coming over, Roosevelt setting up a kangaroo court, etc.

> The

> problem with tribunals is that as of today--right now--there are none. So

> your harms are purely hypothetical--not good for an affirmative team. Now,

> next

> week, if Congress gets past Lindsey Graham (former JAG lawyer) and John

> McCain

> (former POW and torture victim), then you may have a case. But, all of

> your

> cards better be specific to the type of military tribunal established in

> the

> McCain compromise bill.

>

> I Say:

> As To Tribunals

> I can read uniqueness cards that a bill will pass, should make harms real

> enough.  Also, you're going to concede that card as it will be key to most

> of your disads – unless you really want to a) really win I have zero risk

> of

> harms so you can win with just a lame stare decisis DA or b) have a

> throwdown as to whether or not Quirin was correctly decided and claim all

> your impacts from constitutional doctrines like Separation of

> Powers.  These

> might be some strategies, but I doubt they'll be the majority – and there

> is

> really nothing even bad about b)

> And I already can find cards about the various bills, can't you?  In

> addition I can use my old cards – point out what features of the old

> tribunals they indicted, and then point out that the Congress retained

> that

> feature.  Furthermore, I can find various cards that say tribunals are

> always bad, no matter how they are conducted.

> Finally, all the changes above apply equally to the aff – your tribunals

> are

> good stuff will have to be responsive to the post-Hamdi changes (or you

> could run a overrule Hamdan plan, but that also lets me have all my old

> cards back as well).  Quirin affs will have to be updated – this hasn't

> been

> a huge problem for debaters before, see North Korea during sanctions year,

> or SORT during treaties.  Hell on this topic it will be easier, I doubt

> that

> the daily news will effect many of the other affs all that much so you

> will

> have time to keep up with Quirin.

>

> As To Detentions (whether in GITMO or CIA black cites)

> See 1) & 2), I think I can win that a change in how the court reviews

> enemy

> combatant determinations is topical.  The Court believes that Quirin is

> precedent for the power to declare enemy combatants; (he capture and

> detention of lawful combatants and the capture, detention, and trial of

> unlawful combatants, by "universal agreement and practice," are "important

> incident[s] of war." Ex parte Quirin, 317 U.S., at 28 – quoted from Hamdi

> 542 U.S. 507, 519)  Scalia agrees this is what the Hamdi plurality was

> doing, although he would have distinguished Hamdi or simply overruled

> Quirin

> as applied to Americans (The Government argues that our more recent

> jurisprudence ratifies its indefinite imprisonment of a citizen within the

> territorial jurisdiction of federal courts. It places primary reliance

> upon

> Ex parte Quirin, 317 U.S. 1, 87 L. Ed. 3, 63 S. Ct. 2 (1942), -- quoted

> from

> Hamdi 542 U.S. 507, 569 (Scalia J. dissenting)).

> That the Supreme Court relies on Quirin as the precedent for the

> President's

> authority to designate and detain enemy combatants is pretty good evidence

> that overruling that precedent is overruling the decision.

> To pre-empt – having decision mean holding used as precedent by the court

> for that issue – doesn't explode the topic because good distinguish

> counter

> plans will check if you go to tangential issues.

>

> You Say:

> A report by the American Bar Association commenting on this case, states:

> The Quirin case, however, does not stand for the proposition that

> detainees

> may

> be held incommunicado and denied access to counsel; the defendants in

> Quirin

> were able to seek review and they were represented by counsel. In Quirin,

> "The

> question for decision is whether the detention of petitioners for trial by

> Military Commission ... is in conformity with the laws and Constitution of

> the

> United States. " Quirin, 317 U.S. at 18. Since the Supreme Court has

> decided

> that even enemy aliens not lawfully within the United States are entitled

> to

> review under the circumstances of Quirin,11 that right could hardly be

> denied

> to U. S. citizens and other persons lawfully present in the United States,

> especially when held without any charges at all.[108]

> So, I am not sure how overuring Quirin gets you any ground on GITMO.

>

> I Say:

> Currently the court says there is jurisdiction for habeas review for GITMO

> (I'm assuming Rasul is what you mean above).  It doesn't specify if that

> means anything, since they haven't said yet if the Hamdi review of enemy

> combatants applies to non-Americans captured abroad.  It may well be that

> the President's say so is enough to detain non-Americans captured abroad.

> And even if Hamdi applies (or if you're an American) Hamdi's standard is

> very weak.  So to get GITMO advantage…

> Plan – Court should rule alleged enemy combatants cannot be held AT ALL

> unless the government proves by a preponderance of the evidence (or

> another

> standard as long as its higher than the one in Hamdi) that they are enemy

> combatants before a neutral court.  Yes, I am more specifically overruling

> Hamdi, but since Hamdi relies explicitly on Quirin for this point I am

> overruling Quirin.

> What you have cut immediately above is a distinguish CP card – but since

> the

> CP adopts the same ruling – your net benefits are stare decisis/court

> cred.

> That's if you win that I have to make the overrule explicit, plenty of lit

> that I don't have to say it out loud (and you even agree below, "when a

> case

> is said to no longer have governing precedent, it is, in effect overruled

> ")

> .  And you have to win theory justifications for your massive PIC.  These

> limits are why I think that bad distinguish CPs fail.

>

> You Say:

> There is also a Congressional Report noting that mentions of detention in

> Quirin

> is merely dicta and not precedent, so that gets you nothing.

>

> I Say:

> See above, I am betting I can win that T debate – Scalia trumps

> Congressional Record as a source, plus no abuse as detentions are

> infinitely

> predictable.

>

> You Say:

> You write-twice-that "Sorry that should read "you have at times stated

> that

> >you think Hamdan overruled Quirin (at least in part), particularly that

> >Scalia thought Quirin had been overruled."

> Yes, yes yes, I know I am crazy but for some reason, when I read from

> Scalia

> and

> he says "Because Congress has created a novel unitary scheme of Article

> III

> review of military commissions that was absent in 1942, Quirin is no

> longer

> governing precedent." I give it some weight.

> That is a direct quote from Scalia. So I am not quite sure why you think

> this is

> some radical idea. Silly, huh. Just that in Supreme Court language, when a

> case

> is said to no longer have governing precedent, it is, in effect overruled.

>

> I Say:

> Except as you have previously recognized sometimes when we say overrule we

> are talking about distinct holdings.  Scalia clearly means holding

> here.  In

> that sentence, and indeed the entirety of Scalia's Hamdan dissent, Scalia

> is

> addressing the issue of whether the court has jurisdiction to hear

> Hamdan's

> case given the DTA.  The DTA's novel scheme, to him, moots the need for

> the

> Quirin extra-ordinary remedy of habeas review.  There is no analysis as to

> how this would effect the main holding in Quirin that tribunals are

> constitutional (nor the arguable holding that Quirin allows detention of

> enemy combatants)  That a justice says X is no longer governing precedent

> when specifically speaking about a certain issue is little to no support

> for

> the position that Xs holdings on other issues are now no longer good.  It

> simply makes no sense in context to read this the way you are.

> And we know for sure this isn't what Scalia meant because he joins

> Thomas's

> Hamdan dissent which would have held that it was legal to use the

> tribunals

> as they were against Hamdan.  And Thomas relied on Quirin

>

> You Say:

> There is also evidence out there saying that because the certain portions

> of

> the Geneva Convention were passed after Quirin, Quirin is no longer

> controlling

> precedent--or has little real effect.

>

> Here are some other quotes that have lead to my wildly irrational

> assertion

> that

> Quirin has been mooted and/or overrule:

> "The Bush Administration's third legal pretext relied on the case of

> German

> soldiers captured in the US during World War II. The group of seven

> saboteurs

> was captured and tried by a military tribunal. One of these soldiers,

> Herbert

> Hans Haupt, was a US citizen. The court in Ex Parte Quirin found that

> Haupt's

> US citizenship was not sufficient to protect him from being tried in a

> military

> tribunal. Judge Floyd found unpersuasive the Bush administration's

> argument

> for

> application of Quirin to the al-Muhajir case for several compelling

> reasons:

> 1)

> In Quirin, the Court found that Congress had explicitly authorized

> military

> tribunals to try offenses against the law of war in appropriate cases. The

> current Congress did nothing to provide for a suspension of habeus corpus

> under

> al-Muhajir's circumstances. 2) "In Quirin, Haupt was charged with a crime

> and

> tried by a military tribunal. In [this] case, [al-Muhajir] has not been

> charged

> and has not been tried." 3) "Quirin involves a prisoner whose detention

> was

> punitive whereas Petitioner's detention is purportedly preventative." 4)

> "Quirin is concerned more with whether the petitioner was going to be

> tried

> by

> a military tribunal or a civilian court. The case at bar is concerned with

> whether [al-Muhajir] is going to be charged and tried at all." 5) "Quirin

> involved a war that had a definite ending date. The present war on

> terrorism

> does not." Floyd did not expand on this final reason for rejecting the

> application of Quirin, but the implication is fascinating, particularly

> coming

> from a Bush appointee. He seems to be saying that al-Muhajir's detention

> is

> particularly troublesome when considering the perpetual nature of the

> current

> "war on terrorism." Extreme suspensions of civil liberties must be

> reserved

> for

> clearly defined, short-term emergency protective measures, if they are

> ever

> appropriate at all. The everlasting "war on terrorism" does not fit this

> description.

> Judge Floyd's sweeping decision calls the administration's detention of

> al-Muhajir offensive to the rule of law. The decision specifies that after

> spending the past two and a half years in a South Carolina Naval Brig,

> al-Muhajir must be charged for a crime within 45 days or be released.

> Judge Floyd's ruling concludes by stating that to accept the Bush

> administration's baseless legal arguments "would not only offend the rule

> of

> law and violate this country's constitutional tradition, but it would also

> be a

> betrayal of this Nation's commitment to the separation of powers that

> safeguards

> our democratic values and individual liberties." By rejecting the Bush

> administration's exercise of dictatorial powers, Floyd's ruling is an

> important

> affirmation of basic constitutional liberties. "

>

> I Say:

> Yay! More cards supporting your useless distinguish CP.  The problem with

> all of these is they are arguments as to why the Court shouldn't consider

> Quirin binding precedent, not that the Court has.  These people lost.  You

> won't win argument on inherency or T with this when Hamdan just upheld the

> constitutionality of tribunals in the abstract relying on Quirin & when

> Hamdi upheld/modified enemy combatant detention relying on Quirin.

>

> While it is still constitutional to have tribunals you really can't say

> that

> Quirin has been overruled.

>

>

>

>

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