[eDebate] Rethinking Caselists

Danielle Verney daisy_verney
Fri Sep 15 21:04:51 CDT 2006


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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