[eDebate] first amendment vs national security wording - answering the EO or congress cp

Pacedebate at aol.com Pacedebate
Thu Jun 1 11:46:28 CDT 2006

This was also posted on the blog....
My understanding is that there is some concern about the affirmatives  
ability to answer the agent counterplans if the wording I proposed were to win.  
Clearly some of the potential aff ideas I previously posted are vulnerable to  
this negative argument. In some ways that is a needed check on what is otherwise 
 a very large topic even accounting for the ability of the negative to use a  
grounds counterplan.
For the aff to avoid this issue they either need to:
1) find one of those unique cases where the agent cp won't solve (I'll  
identify one of those in just a moment).
2) set a precedent that will be used in other areas to create add on's  that 
the cp can't solve. To set that kind of a precedent would require a rather  
large action which could force the affs to the core of the topic.
3) find a reason why it's uniquely important that the SC act on a  particular 
issue. For example, there were cases on the high school topic that  could 
claim advantages based merely on hearing a case because the exec was  arguing 
that the SC didn't really have jurisdiction over some issues. Hearing  the case 
accrued an sop advantage that congressional or exec action couldn't  access.
I haven't spent much time on isolating affs that can beat the agent CP  on 
the straight up "you won't solve our aff" style arguments but I do think  there 
are a few. For example, the Freedom of Information Action aff I listed a  
solvency advocate has in that same article this card:
Papandrea, Assistant Prof. of Law  Boston College, ?05 (Mary-Rose, 25 B.C. 
Third World L.J.  35, p. 47, twm) 
In rejecting the right of access to  deportation proceedings for immigrants 
rounded up after the September 11  terrorist attacks, the Third Circuit also 
suggested that the right of access  was unimportant because there was, "as 
always, the powerful check of political  accountability on Executive discretion." 
n232 This statement reflects the  court's profound misconception of the role of 
judicial review and the important  role of the courts in checking the other 
two branches of government. The  Third Circuit abdicated its role and left it 
to the political process to check  the government's failure to disclose 
information. This approach is not a novel  one, and indeed was the majority view of 
the Court prior to the Richmond  Newspapers decision in 1980. Justice Stewart 
famously declared in a law  review article he authored:  
There is no constitutional right to  have access to particular government 
information, or to require openness from  the bureaucracy... The Constitution 
itself is neither a Freedom of Information  Act nor an Official Secrets Act... We 
must rely, as so often in our system we  must, on the tug and pull of the 
political forces in American society. n233  Chief Justice Burger argued in the 
plurality opinion in Houchins (prior  to Richmond Newspapers) that recognizing 
the right of access would  "invite the Court to involve itself in what is 
clearly a legislative task which  the Constitution has left to the political 
processes" and that instead, "we must  rely, as so often in our system we must, on 
the tug and pull of the political  forces in American society." n234 But as 
scholars have argued for decades,  abandoning the right of access to the whims of 
the political process is  problematic. The government's tendency to suppress 
damaging news and to  highlight favorable news is often a deliberate effort to 
skew public debate and  the public's perception of the government's 
performance and foreign affairs.  n235  [*76]  Former executive branch officials have 
admitted that  they selectively released sensitive information in a conscious 
effort to  generate public support for its policies or serve some other 
bureaucratic or  personal agenda. n236 For example, former national security advisor 
Zbigniew  Brzezinski admitted that he released otherwise sensitive information 
for  "explicit administration purposes," the former Assistant Secretary of 
Defense  under President Carter conceded that "he had the authority to 
declassify  particular pieces of information when that seemed necessary,'" and a White 
House  official under President Kennedy agreed that high-ranking 
administration  officials "knowingly and deliberately disseminated [classified] information 
from  time to time in order to advance the interests of a particular person, 
[or]  policy." n237 As one commentator noted, "the executive's power to 
classify  and declassify information raises the specter of government 
misinformation, or  its weaker and less noxious relative, spin control.'" n238 The result is 
 a distortion of the public debate on fundamental public issues. Although the 
 Executive has not hesitated to release details concerning the arrest and  
prosecution of individuals believed to have a connection to terrorism -- such as 
 Hamdi, Padilla, and Moussaoui -- the Executive has continued to resist  
information requests regarding the other individuals investigated after  September 
11 who have been found to have no connection to terrorism. This  sort of 
selective disclosure of information raises the concern that the  government is 
abusing the "national security" umbrella to conceal its  counterterrorism efforts 
that have been less than successful and in turn to  "spin" public debate on 
the government's performance. 
And, here is one ultra generic  Supreme Court is key card - although I get 
that this might not even be enough to  win a debate I think it gives credence to 
the notion that the FOIA aff isn't the  only one that will be able to justify 
why SC is a better actor than congress or  the executive. 
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 picketingn267 and symbolic speech   n268 to 
pornographyn269 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. 
I realize that this isn't a  comprehensive analysis I do think it should 
resolve any concern that the neg  will win every debate on an agent cp. 

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