[eDebate] first amendment vs national security wording - answering the EO or congress cp
Pacedebate at aol.com
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
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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