[eDebate] Rethinking Caselists
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
I guess you will soon see how limited Quirin really is in light of Hamdam.
Exhibit "A" Bush's speech today.
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
Next Quirin says nothing about enemy detention centers. So, there is nothing
this issue within Quirin to overrule. So, I guess you can complain about
all day long. But, I am not sure how overruling Quirin functions as a
mechanism for gitmo.
I am VERY interested to see the card, cites, etc. any card, that says
Quirin will somehow get rid of GITMOor other military or CIA detention
Please be so gracious as to inform me.
Quirin, from what little I have read, dealt with military tribunals. Ya,
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,
week, if Congress gets past Lindsey Graham (former JAG lawyer) and John
(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.
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.
A report by the American Bar Association commenting on this case, states:
The Quirin case, however, does not stand for the proposition that detainees
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,
question for decision is whether the detention of petitioners for trial by
Military Commission ... is in conformity with the laws and Constitution of
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
to U. S. citizens and other persons lawfully present in the United States,
especially when held without any charges at all.
So, I am not sure how overuring Quirin gets you any ground on GITMO.
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
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.
There is also a Congressional Report noting that mentions of detention in
is merely dicta and not precedent, so that gets you nothing.
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
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
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
some radical idea. Silly, huh. Just that in Supreme Court language, when a
is said to no longer have governing precedent, it is, in effect overruled.
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
There is also evidence out there saying that because the certain portions of
the Geneva Convention were passed after Quirin, Quirin is no longer
precedent--or has little real effect.
Here are some other quotes that have lead to my wildly irrational assertion
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
was captured and tried by a military tribunal. One of these soldiers,
Hans Haupt, was a US citizen. The court in Ex Parte Quirin found that
US citizenship was not sufficient to protect him from being tried in a
tribunal. Judge Floyd found unpersuasive the Bush administration's argument
application of Quirin to the al-Muhajir case for several compelling reasons:
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
al-Muhajir's circumstances. 2) "In Quirin, Haupt was charged with a crime
tried by a military tribunal. In [this] case, [al-Muhajir] has not been
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
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
from a Bush appointee. He seems to be saying that al-Muhajir's detention is
particularly troublesome when considering the perpetual nature of the
"war on terrorism." Extreme suspensions of civil liberties must be reserved
clearly defined, short-term emergency protective measures, if they are ever
appropriate at all. The everlasting "war on terrorism" does not fit this
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
betrayal of this Nation's commitment to the separation of powers that
our democratic values and individual liberties." By rejecting the Bush
administration's exercise of dictatorial powers, Floyd's ruling is an
affirmation of basic constitutional liberties. "
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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