[eDebate] Rethinking Caselists

Steven D'Amico stevendamico
Sat Sep 16 15:07:31 CDT 2006

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
> 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
> 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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